Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Sunday, November 2, 2014

How does Texas law define a med-mal claim (health care liability claim)? Who is a covered provider? What is health care?


DEFINITION OF HEALTH CARE LIABILITY CLAIM 

Whether [a] claim is a health care liability claim is a question of law we review de novo. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012). When construing a statute, we give it the effect the Legislature intended. See Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009). The best expression of the Legislature's intent is the plain meaning of the statute's text. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). More particularly, the broad language of the Medical Liability Act evinces legislative intent for the statute to have expansive application. Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012). In determining whether Sok's claim is a health care liability claim, we focus on the underlying nature of the cause of action and are not bound by the pleadings. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005).

The Medical Liability Act 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 § 74.001(a)(13). In Texas West Oaks, we observed that this statutory definition contains 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.
371 S.W.3d at 179-80. No one element, occurring independent of the other two, will recast a claim into a health care liability claim.

Who is a Health Care Provider?

The Medical Liability Act defines a health care provider to include, inter alia, an affiliate of a physician. See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(12)(B)(i). The statute defines "affiliate" as "a person who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a specified person, including any direct or indirect parent or subsidiary." Id. § 74.001(a)(1). And the statute defines control as "the possession of the power to direct the management and policies of the person" through ownership. Id. § 74.001(a)(3). Therefore, if we determine Dr. Nguyen directly or indirectly controls Bioderm, then we must conclude Bioderm is Dr. Nguyen's affiliate and is a health care provider under the Act. Id. §§ 74.001(a)(1), (a)(12)(B)(i).

What is health care? 

The Medical Liability Act defines health care as "any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10). In Texas West Oaks, we considered whether a claim alleged a departure from accepted standards of health care and held that "if expert medical or health care testimony is necessary to prove or refute the merits of the claim against a physician or health care provider, the claim is a health care liability claim." 371 S.W.3d at 182. Accordingly, in considering whether a claim alleges a departure from accepted standards of medical or health care, a court should first determine whether expert medical or health care testimony is needed to establish the requisite standard of care and breach.[11] See id. And only if expert testimony is not needed should a court proceed to consider the totality of the circumstances, as a claim may still be a health care liability claim despite that "in the final analysis, expert testimony may not be necessary to support a verdict." Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005).[12] Therefore, we address whether expert health care testimony is needed to prove or refute the merits of Sok's claim.

SOURCE: TEXAS SUPREME COURT - No. 11-077 - 3/28/2014 - BIODERM SKIN CARE, LLC v. SOC 
The crux of the parties' disagreement on this question is whether Bioderm qualifies as a health care provider. Because Bioderm is an affiliate of a physician, we conclude it is a health care provider under the Medical Liability Act.