Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

Need a little legal ammo? Search for caselaw on legal theories and defenses here:

Thursday, February 7, 2013

Is a complaint about violation of a patient's medical privacy a med-mal claim? A new twist on scope of HCLC in Texas

 
A healthcare liability claim [HCLC] consists of three elements: "(1) a physician or health care provider must be a defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's act or omission complained of must proximately cause the injury to the claimant." Tex. West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 180 (Tex. 2012); Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 662 (Tex. 2010).

So far so good; the provision mandating dismissal when an expert report is not timely filed is by now also pretty widely known, and has wrought havoc in the med-mal legal niche (at least on the plaintiffs' side).
 
But what is a health care liability claim? How far does the definition reach? There has been much litigation over that issue, and many cases have reached the Texas Supreme Court, usually with predictible results.
 
But here is a new twist: What if the state sues a doctor for violating a patient's privacy by releasing or discarding protected medical records carelessly? Is that an HCLC subject to the expert report requirement - and thus dismissal - when no report is filed?
Justices of the Corpus Christi Court of Appeals just had the opportunity to weigh in on the matter.
 
OPIONION EXCERPTS FROM HOLZMAN V. STATE OF TEXAS





I. BACKGROUND
The State of Texas, acting through the Office of the Attorney General, filed this suit against appellant after it discovered that appellant had allegedly discarded approximately 200 medical files containing sensitive personal information about her patients in a trash dumpster accessible to the public. The State asserted causes of action under the Deceptive Trade Practices Act and the Identity Theft Enforcement and Protection Act. See TEX. BUS. & COM. CODE ANN. §§ 17.01-.926 (West 2011 & West Supp. 2011); §§ 521.001-.152 (West 2011 & West Supp. 2011).
In its live petition, the State alleges in relevant part:
In the regular course of business, defendant[] provide[s] medical services to [her] patients. Defendant[] maintain[s] the patient's medical file, in [her] possession, custody, and control and has kept all of the files, as part of defendant[`]s[] business records, since the inception of the medical practice.
. . .
Although the medical files contain sensitive personal information that could be used to steal the identities of individuals or to permit access to an individual's private medical information, defendant[] failed to implement and maintain reasonable procedures to protect and safeguard from unlawful use or disclosure any sensitive personal information collected or maintained by defendant[] in the regular course of business. . . .
As a consequence of defendant[`]s[] failure to implement and maintain reasonable procedures to protect and safeguard such information, on or about May 2, 2009, approximately 200 of defendant[`]s[] medical files, containing sensitive personal information, were found in a trash dumpster that was readily accessible to the public in Corpus Christi, Texas.
One hundred and twenty days after the State filed suit, appellant filed a motion to dismiss the lawsuit, arguing that the claims alleged by the State were subject to the provisions of chapter 74 of the Texas Civil Practice and Remedies Code and that the claims should be dismissed because the State had failed to comply with the provisions of that chapter. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. The trial court denied the motion, and this appeal ensued. See id. § 51.014(a)(9) (West 2011).






This case involves two distinct issues: (1) Are the claims in this case healthcare liability claims subject to the provisions of chapter 74? (2) If so, is the State of Texas subject to the provisions of chapter 74?

 
A healthcare liability claim consists of three element ... [OMITTED, SEE ABOVE]
In this case, the first element is not in dispute. The relevant inquiry concerns the second and third elements.
"A cause of action alleges a departure from accepted standards of safety if the act or omission complained of is an inseparable part of the rendition of medical services." Valley Baptist Med. Ctr. v. Azua, 198 S.W.3d 810, 814 (Tex. App.-Corpus Christi 2006, no pet.). If the essence of the suit is a healthcare liability claim, a party cannot avoid the requirements of chapter 74 through artful pleading. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005). Therefore, in determining whether the claim is governed by chapter 74, we review the underlying nature of the claim and not the labels used by claimants. Azua, 198 S.W.3d at 814.
The core allegations in this case are that, in the course of providing healthcare to patients, (1) appellant maintained medical files, (2) the files contained private medical information, (3) appellant had a duty to keep the information confidential, and (4) appellant breached that duty with respect to 200 files by disposing of them in a trash dumpster accessible to the public.
The Dallas Court of Appeals has previously noted that "[m]aintaining the confidentiality of patient records is part of the core function of providing health care services." Sloan v. Farmer, 217 S.W.3d 763, 768 (Tex. App.-Dallas 2007, pet. denied). According to the court, "any duty [a healthcare provider] may have had to maintain the confidentiality of the health-care communication is inextricably intertwined with the physician-patient relationship and the health-care services to which the communication pertains." Id. Thus, in Sloan, the court concluded that chapter 74 was applicable to claims involving alleged breaches of confidentiality between physician and patient. Id. at 768-69.
Assuming the foregoing establishes the second element of a healthcare liability claim, what remains missing is an allegation of a patient's injury or death. See Marks, 319 S.W.3d at 662. Obviously, the State is not a patient. Nor has the State alleged that any patient suffered bodily injury or death. If any non-physical injury has been alleged in this suit, it arises from the medical files being deposited in a trash dumpster accessible to the public. However, the State did not allege that this act caused any person to suffer any injury. There is no allegation that any confidential information actually fell into the hands of any third-parties—only that the information could have potentially been accessed by the public. Thus, the injury, if any, is purely hypothetical. Moreover, it is not necessary for the State to allege any injury to a patient to recover the civil penalties it seeks in its live petition. See TEX. BUS. & COM. CODE ANN. §§ 17.47(c) (DTPA); 521.151(a) (ITEPA). Therefore, we conclude that the third element for a healthcare liability claim is absent in this case.
Accordingly, the trial court did not err in denying appellant's motion to dismiss. Appellant's two issues are overruled.
III. CONCLUSION
The judgment of the trial court is affirmed.

SOURCE: CORPUS CHRISTI COURT OF APPEALS - 13-11-00168-CV - 1/31/2013
But that's not all. One justice dissented …


DISSENTING MEMORANDUM OPINION

GINA M. BENAVIDES, Justice.

The Texas Supreme Court has issued two recent opinions, Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012), and Texas West Oaks Hospital v. Williams, 371 S.W.3d 171 (Tex. 2012), which take an expansive view of the Texas Medical Liability Act. Because the current case law from Texas's high court supports the propositions that chapter 74 of the Texas Civil Practices and Remedies code trumps the other causes of action pleaded in this case, and that chapter 74 applies to the State of Texas, I dissent.

I. BACKGROUND

The State of Texas, through the Office of the Attorney General, filed suit against Dr. Holzman when it discovered that her medical office discarded nearly two hundred medical files in a trash dumpster easily accessible to the public. The medical files contained sensitive personal health information, including full names, social security numbers, dates of birth, and medical conditions, of several of Dr. Holzman's patients and former patients. The medical conditions, in particular, revealed intensely personal information: these conditions included diagnoses for mental retardation; neurogenic bladder, or lack of bladder control; urinary tract infections; gross hematuria (blood in the urine); diabetes; incontinence; growths in the scrotum; and spermatocele, or scrotal cysts.

The State's lawsuit asserted causes of action under the Texas Deceptive Trade Practices Act (DTPA) and the Identity Theft Enforcement and Protection Act (ITEPA), claiming that Dr. Holzman promised, but breached, a statutory duty to implement and maintain reasonable procedures to protect her patients' personal information. See TEX. BUS. & COM. CODE ANN. §§ 17.01-.926; §§ 521.001-.152 (West 2011 & West Supp. 2011).

One-hundred twenty days after the State filed its suit, Dr. Holzman filed a motion to dismiss the lawsuit. Arguing that the State's lawsuit fell within the ambit of the Texas Medical Liability Act, Dr. Holzman contended that the case should be dismissed because of the State's failure to file a mandatory expert report as required by chapter 74. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). Dr. Holzman argued that the lawsuit was "within the purview of Chapter 74's limitation of health care liability . . . [which] controls over all other law, including each statute relied on by Plaintiff." See id. § 74.002 (West 2011) (providing that "in the event of a conflict between this chapter and another law . . . this chapter controls to the extent of the conflict."). The trial court disagreed that this case was a health care liability lawsuit and denied the motion to dismiss.

I would hold that the trial court erred in this regard, and would grant the motion to dismiss.

II. WHICH STATUTE APPLIES

There are three statutes at issue in this lawsuit: the Texas Medical Liability Act (TMLA), the DTPA, and the ITEPA. By her first issue, Dr. Holzman claims that the trial court erred when it failed to recognize that this case is a health care liability claim under chapter 74 of the civil practice and remedies code and did not grant her motion to dismiss. I agree.

A. Standard of Review and Applicable Law

"The characterization of a claim as a health care liability claim is a threshold question" in chapter 74 interlocutory appeals. Pallares v. Magic Valley Coop., 267 S.W.3d 67, 70 (Tex. App.-Corpus Christi 2008, pet. denied). Whether a cause of action is a health care liability issue is reviewed de novo. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011).

It is well-settled law in Texas that a "health care liability claim cannot be recast as another cause of action to avoid the requirements of the [medical liability act]." See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005) (providing that courts are not "bound by niceties of pleadings . . ."). "When the essence of the suit is a health care liability claim, a party cannot avoid the requirements of the statute through the artful pleading of his claim." See Sloan v. Farmer, 217 S.W.3d 763, 767 (Tex. App.-Dallas 2007, pet. denied) (citing Diversicare, 185 S.W.3d at 848; Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004); MacGregor Med. Ass'n v. Campbell, 985 S.W.2d 38, 40 (Tex. 1998)). The same underlying set of facts cannot give rise to separate DTPA, ITEPA, and health care liability claims. See Yamada v. Friend, 335 S.W.3d 192, 197 (Tex. 2009). If the same facts give rise to claims under multiple statutes or common-law torts, "then the [TMLA] and its procedures and limitations will be effectively negated." Id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 74.002 (providing that "in the event of a conflict between this chapter and another law . . . this chapter controls to the extent of the conflict.").

Whether a case falls under chapter 74 requires an examination of the underlying nature of the claim. See Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994). "If the act or omission that forms the basis of the complaint is an inseparable part of the rendition of health care services, or if it is based on a breach of the standard of care applicable to health care providers, then the claim is a health care liability claim." Sloan, 217 S.W.3d at 767 (citing Garland Cmty. Hosp., 156 S.W.3d at 544). The claim must have three elements. Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 662 (Tex. 2010). First, a physician or healthcare provider must be the defendant. Id. Second, the suit must be about a "claimed departure from accepted standards of . . . professional or administrative services directly related to health care." Id. Third, the defendant's act or omission departure must proximately cause the patient's injury or death. Id.

B. Rebuttable Presumption in Health Care Liability Claims

Recently, the Texas Supreme Court handed down Loaisiga v. Cerda and reaffirmed that "the broad language of the [TMLA] evidences legislative intent for the statute to have expansive application." 379 S.W.3d 248 (Tex. 2012). Importantly, the high court announced in this case that "the breadth of the statute's text essentially creates a presumption that a claim is a [health care liability claim] if it is against a physician or health care provider and is based on facts implicating the defendant's conduct during the patient's care, treatment, or confinement". Id. at 256. This presumption is rebuttable, however. Id. For example, the supreme court noted that, "in some instances the only possible relationship between the conduct underlying a claim and the rendition of medical services or healthcare will be the healthcare setting . . ., the defendant's status as a doctor or health care provider, or both." Id.

The underlying case appears to meet all of the criteria for a chapter 74 claim. See Marks, 319 S.W.3d at 662. First, the defendant, Dr. Holzman, is a health care provider or physician. See id. Second, the State's claim is that Dr. Holzman had a duty to keep her patients' information private and dispose of it in a proper, lawful way, and that Dr. Holzman departed from that duty. See id.; Sloan, 217 S.W.3d at 767 (holding, in case where a treating physician released health information to a patient's employer, that a physician's "duty of confidentiality is inseparable from the health care services to be provided, and the claimed breach necessarily implicates the standard of care.").

The majority focuses on the third element for a chapter 74 claim, that of injury. See Marks, 319 S.W.3d at 662. I believe that Dr. Holzman's failure to protect her patients' medical records injured her patients' privacy rights by revealing sensitive personal and medical data. Admittedly, as the majority notes, there is nothing in the record documenting that any confidential information fell into the hands of third parties. It is obvious, however, that someone found these patient records—otherwise this lawsuit would not have materialized. The dangers of revealing full names, social security numbers, and dates of birth are well-documented. Disclosure of this information can lead to significant personal and financial ruin in the form of identity theft, credit card theft, and worse. See, e.g., Tex. Comptroller of Pub. Accounts v. AG of Tex., 354 S.W.3d 336, 345 (Tex. 2010) (recognizing that "[i]t is universally agreed that social security numbers are at the heart of identity theft and fraud, and in today's Internet world where information . . . can be instantly and anonymously obtained by anyone with access to the worldwide web, the danger is even greater"). Furthermore, third parties learning about personal medical conditions involving mental or reproductive health issues can cause severe embarrassment or mental anguish. These types of injuries are foreseeable if a patient's medical records are not properly stored or destroyed.

Because Loaisiga presumes that chapter 74 applies in cases involving physicians or health care providers and their conduct, here, I would presume that Dr. Holzman's patients were injured when their records were carelessly discarded in a trash bin accessible to the public. Loaisiga, 379 S.W.3d at 256. This presumption was not rebutted by the State. Id. Because all of the elements of a "health care liability claim" are met, see Marks, 319 S.W.3d at 662, I would hold that chapter 74 applies.

C. Definition of a "Person" Under Chapter 74

The State argues, however, that chapter 74 should not apply to it because it is not a "claimant" under the meaning of the TMLA. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(2). A "claimant," under the statute, is "a person, including a decedent's estate, seeking or who has sought recovery of damages in a health care liability claim." Id. The State contends that it is not a "person" under the statute. Instead, it asserts that it brought this lawsuit in its capacity as a sovereign entity to protect Texas patients and their private medical information.

Here again, I rely on another recent supreme court case. Texas West Oaks Hospital v. Williams expanded the meaning of a "claimant" under the TMLA. 371 S.W.3d at 175. In Texas West Oaks, a mentally ill patient, Mario Vidaurre, died at Texas West Oaks Hospital, a private mental health facility. Id. One of the hospital's technicians, Frank Williams, was injured in the events leading to Vidaurre's death. Id. Vidaurre's estate sued Texas West Oaks and Williams, and Williams countersued Texas West Oaks for failing to properly train, supervise, and protect its employees. Id. West Oaks filed a motion to dismiss on the grounds that Williams's claims constituted health care liability claims and he failed to serve an expert report. Id. at 175-76; see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). Williams contended that his claims were grounded in strict negligence and that his claims as an injured worker "`flow[ed] from the employment relationship' between Williams and West Oaks and [were] not `directly related' to health care." Tex. W. Oaks, 371 S.W.3d at 176.

The Texas Supreme Court disagreed. In its opinion, it explained as follows:

"Person" is not defined in the [Texas Medical Liability Act] and therefore must be given its common law meaning. Changing the term "patient" to "claimant" and defining "claimant" as a "person" expands the breadth of [health care liability claims] beyond the patient population. This in turn necessarily widened the reach of the expert report requirement. . . .

Id. at 178 (internal citations omitted). In sum, the court concluded that the TMLA "does not require that the claimant be a patient of the health care provider for his claims to fall under the Act, so long as the Act's other requirements are met." Id. at 174.

As previously stated, I believe that chapter 74's "other requirements are met" in the underlying case. Id.; see Marks, 319 S.W.3d at 662. The State, although not a "person" or a "patient", can be considered a "claimant" under the proper application of Texas West Oaks. Accordingly, chapter 74 should apply to the State.[1]

D. Conclusion

Because the presumption that this case is a health care liability claim has not been rebutted, see Loaisiga, 379 S.W.3d at 256, and the State is a "claimant" under the statute, see Tex. W. Oaks, 371 S.W.3d at 178, I would hold that chapter 74 applies to this lawsuit. Accordingly, the State was required to have produced an expert report within one-hundred twenty days after the lawsuit was filed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). I would sustain Dr. Holzman's first issue.

III. ATTORNEY'S FEES

Dr. Holzman also claims that she is entitled to attorney's fees because the State failed to file an expert report under section 74.351(b). Because I conclude that chapter 74 applies in this matter, I would also sustain Dr. Holzman's second issue.[2]

IV. CONCLUSION

Because I believe the majority failed to apply recent Texas Supreme Court law that makes chapter 74 applicable to this case, I would reverse the trial court's judgment and grant Dr. Holzman's motion to dismiss.

 
 
 
 
 
 
 
 
 
 
 
 

No comments:

Post a Comment