Texas Supreme Court: A slip-and-fall in a hospital lobby is not a health-care liability claim. -- Duh! - Comment on Ross v. St. Luke's Episcopal Hospital (May 1, 2015)

Comment on Ross v. St. Luke's Episcopal Hospital (Tex. 2015) 

JURISPRUDENCE, TEXAS STYLE 

The slippery slope on the med-mal front in Texas: 
Wet floor not medical malpractice after all  

Sadly, a truism such as this passes for exciting legal news in Texas, and beyond. It is an illustration of how abstruse the Texas Supreme Court's rulings have become to justify the high court's resolution of most appeals it agrees to hear in a manner to vindicate the interest of a narrow group of favored litigants, which includes big corporations and health care providers. 

The Texas Supreme Court's earlier ruling that a claim against a health care provider need not be a medical malpractice claim to qualify for dismissal as a medical malpractice claim -- thereby effectively granting immunity to doctors and hospitals for all sorts of other claims -- just went too far even for the practicing bar that is accustomed to take its "guidance" from the supreme court; is not allowed to criticize sitting justices; and would be bound by supreme nonsense articulated in precedent-setting opinions in any event, no matter how troubled they may be by it. 

The cognitive dissonance and sheer disbelief engendered by the supreme court's pronouncements in its relentless pursuit of judicial tort reform are, after all, an occupational hazard for litigators; -- something that comes with the territory. Texas trial lawyers' BS detectors have to be periodically re-calibrated to avoid overheating when coping with volleys of opinions from the high court that abrogate rights and remedies, deny ordinary people their day in court, and already put many of their peers out of business on both sides of the docket.   
  
The high court has now "corrected" one such supreme nonsense -- nonsense with grave consequences for the rights of injured people because lower courts have to enforce it -- by restricting the earlier ruling to the effect that a med-mal claim no longer needs to involve medical malpractice by announcing a laundry list of factors that may still justify treating a claim against a hospital or doctor as a med-mal claim, with attendant expert report requirement and other procedural hurdles, when the claimant is not a hospital visitor who slipped and got hurt in the facility's lobby. 

The latter was the fact scenario in the case in which the supremes have now elevated truism to a new genre of jurisprudence, following a string of legal news of the weird, and subdued griping and whispers of dissension on lawfirm blogs and web sites. Not to mention a law review article politely exposing how "Texas" had gone too far in the medical liability realm.  

Read opinion on Google Scholar by clicking on case style below

ROSS V. ST. LUKE'S EPISCOPAL HOSPITAL, Tex: Supreme Court 2015

and the Supreme Court ruling that caused the fracas: 

Texas West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012)

and subsequent citing cases (progeny) 

Meanwhile, the Corpus Christi Court of Appeals had ruled that a hospital visitor injured by a sliding door with lateral guillotine functionality -- a plaintiff who like Ross in the supreme court case also was not a patient -- can't pursue a premises liability claim against the hospital because her personal injury claim is a health care liability claim and she did not file an expert report showing how the limb-chopping door violated the applicable standard of medical care. To add insult to injury, the maternity ward visitor struck by the malfunctioning door was told she will have to pay the hospital's attorney's fees. 

RELATED LEGAL NEWS ITEMS: 

Angela Morris. "Lawmaker: Employment Lawsuit Isn't Health Care Claim." TEXAS LAWYER, May 4, 2015, p. 12. 
John Counsel. "Dallas Judge: Doctor's Cow in Road Is Not Med Mal". TEXAS LAWYER, April 20, 2015, p. 8.
"How Is Hitting a Cow in the Road Med Mal? TEXAS LAWYER, Jan. 29, 2015. 

BLAWG POSTS: 
Bob Kraft. "Medical Malpractice Tort Reform Runs Wild in Texas." Feb. 24, 2015 (blog post). 

INTERIM CITATION: 
Ross v. St. Luke's Episcopal Hospital, 58 Tex. S.Ct. J. 766 (May 1, 2015)

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. 

What is an "expert report" required by the Texas statute governing health care liability claims?

EXPERT REPORTS UNDER TEXAS MEDICAL LIABILITY ACT

The Texas Medical Liability Act requires a claimant asserting a health care liability claim to timely serve one or more expert reports addressing the conduct of each health care provider against whom a claim has been asserted. § 74.351(a). If a sufficient expert report is not filed within the requisite period specified, section 74.351(b) mandates the court enter an order dismissing that claim, with prejudice. As to the sufficiency of the report, section 74.351(l) provides a trial court "shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report . . . ." To qualify as an objective good faith effort the report must (1) inform the defendant of the specific conduct the claimant questions, and (2) provide a basis for the trial court to conclude there is a meritorious claim. Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012); Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011) (citing Palacios, 46 S.W.3d at 879).

An "expert report" is defined as a written report by an expert that provides a fair summary of the expert's opinions regarding (1) the applicable standards of care, (2) the manner in which the care rendered by the physician or health care provider fails to meet those standards and (3) the causal relationship between that failure and the injury, harm or damages claimed. See § 74.351(r)(6); see also TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013) (citing Palacios, 46 S.W.3d at 879); Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). The expert report must not be conclusory in its explanation of causation and it must explain the basis for the expert's causation opinions by linking the expert's conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Palacios, 46 S.W.3d at 879; Wells v. Ashmore, 202 S.W.3d 465, 467 (Tex. App.-Amarillo 2006, no pet.). The report need not present evidence as if the plaintiff was actually litigating the merits, Palacios, 46 S.W.3d at 879, and there are no magic words required to establish causation. Bowie Mem'l Hosp., 79 S.W.3d at 53. "[A] report that satisfies these requirements, even if as to one theory only; entitle[s] the claimant to proceed with a suit against the physician or health care provider." Potts, 392 S.W.3d at 630.

SOURCE: AMARILLO COURT OF APPEALS - No. 07-13-00181-CV - 10/7/2014