Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Tuesday, March 23, 2010

What is res ipsa loquitur in the med-mal context?

RES IPSA LOQUITUR (the thing speaks for itself) The rule of res ipsa loquitur allows an inference of negligence, absent direct proof, only when injury would ordinarily not have occurred but for negligence, and the defendant's negligence is probable. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 604 (Tex. 2004). The application of the doctrine of res ipsa loquitur is specifically limited in health care liability claims to "those cases to which it has been applied by the appellate courts of this state as of August 29, 1977." Tex. Civ. Prac. & Rem. Code Ann. § 74.201 (Vernon 2005). The three categories where appellate courts have typically applied the doctrine in medical malpractice cases are (1) negligence in the use of mechanical instruments, (2) operating on the wrong portion of the body, and (3) leaving surgical instruments or sponges within the body. Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex.1990). SOURCE: 05-08-01392-CV (Dallas Court of Appeals 3/22/2010) In her third issue, [Plaintiff] claims that the doctrine of res ipsa loquitur applies alleviating the need for an expert report.

A plaintiff who files a health care liability claim must file an expert report within 120 days of filing suit. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2009). The only way to extend the 120-day deadline for filing the report is by written agreement of the parties. Id. Section 74.001(a)(13) defines a health care liability claim as a "cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract." Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (Vernon 2005). An expert report must provide the expert's opinion as to the applicable standard of care and how the care provided failed to meet the standard of care and explain the relationship between that failure and the claimed injury. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) . If a claimant fails to timely file an expert report, the trial court shall dismiss the claim with respect to the physician or health care provider with prejudice to the refiling of the claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2).

A health care liability claim cannot be recast as another cause of action in an attempt to avoid the expert report requirement. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005). We look to the underlying nature of a claim to determine whether it constitutes a health care liability claim. Boothe v. Dixon, 180 S.W.3d 915, 919 (Tex. App.-Dallas 2005, no pet.). If an act or omission complained of is an inseparable part of the rendition of health care services, the claim is a health care liability claim. Id. Whether a claim is a health care liability claim under section 74.351 is a question of law and is reviewed de novo. Id.

In her amended petition, [Plaintiff] asserted claims for medical malpractice, fraudulent misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, violations of the Texas Health and Safety Code, assault and battery, and civil rights violations. The focal point of each of her claims is her treatment while hospitalized at Green Oaks. She complains of Dr. Carson's decision to administer Haldol against her wishes, the manner in which her concerns over the medication were or were not conveyed to Dr. Carson, the threat of physical violence if she refused the medication, the lack of obtaining prior consent, the delay in her treatment for severe side effects suffered as a result of the Haldol, and her inability to obtain something to write with to work on her religious exercises. The essence of each of [Plainitiff's] claims is negligence in the rendition of health care services. The fact that some of the alleged acts were done knowingly or indifferently does not change the nature of the claim. See Lee v. Boothe, 235 S.W.3d 448, 452 (Tex. App.-Dallas 2007, pet. denied).

[Plaintiff] also contends and we agree that a patient receiving either voluntary or involuntary mental health services has the right to refuse medication. However, administration of a psychoactive medication may be given without consent in certain circumstances. See Tex. Health & Safety Code Ann. § 576.025(a)(1) (Vernon Supp. 2009). She relies upon Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005) to support her contention that medication given without consent constitutes a battery. The supreme court held, however, that failure to obtain consent does not automatically result in liability. Id. at 838. Expert testimony is still necessary to determine whether there were reasons for providing medical care without consent that do not breach any applicable standard of care. Id. Thus, [Plainitiff's] battery claim still necessitates an expert report.

We conclude that each of [Plainitiff's] claims constitutes a health care liability claim. SOURCE: 05-08-01392-CV (Dallas Court of Appeals 3/22/2010)