Sharp's
Texas Med Mal Update:
Since 1998 we have published and
distributed
free to
clients, judges,
and risk management executives the "Sharp's Texas Med Mal Update", a
monthly newsletter of the previous thirty days' Texas Supreme and
Appellate Court decisions on medical malpractice and related cases.
Please feel free to browse the most recent 12 newsletters below.
The case summary contained in these newsletters is not meant to be a
comprehensive discussion of the details of the case, but rather a brief
outline of one or more of the more important legal principles
illustrated by the decision. Please read the case report itself and
obtain appropriate legal consultation as needed.
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For full-text opinion or further discussion,
please
contact William J.
Sharp,
William J. Sharp & Associates, 3701 Kirby Dr., Ste. 850,
Houston,
TX 77098,
(713) 529 2400 voice, (713) 529 2426 fax
Board Certified, Personal Injury Trial Law, Texas Board of Legal
Specialization
The commentary below is not legal advice and is not intended to create
an attorney-client relationship with the reader or ultimate consumer.
© 1998-2011 William J. Sharp. All Rights Reserved.
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Slipping on
gel=Healthcare liability claim.
St.
David’s Healthcare v. Esparza, S.Ct., 8/26/11:
The patient slipped and was injured on gel that had fallen from the
nurse’s gloves. He sued but did not file an expert
report. Motion to dismiss was denied, aff’d by the appellate
court. Held, rev’d and remanded with instruction to
dismiss. The nature of the claim was a health care liability
claim, involving alleged negligence of the nurse in allowing the gel to fall and not
cleaning it up. An expert report was required.
Allowing
spider bite=Healthcare liability
claim.
Omaha
Healthcare Center v. Johnson, S.Ct., 7/1/11:
The patient was bitten by a spider and sued claiming premises
liability for unsafe premises. Motion to dismiss was denied,
aff’d by the appellate court. Held, rev’d and remanded.
The definition of a healthcare liability claim includes alleged
failures to maintain patient “safety”, which includes allegations
that the nursing home was not maintained properly. Two
dissenters believed that this was more in the nature of a premises
liability claim, noting that the expert report would have to be written by
an exterminator rather than a health care professional.
Initial
report need not contain “standard, breach, and causation” opinions
to merit 30 day extension.
Scoresby v
Santillan, S.Ct., 7/1/11: A document qualifies as
“expert report” under the Act if it contains statement of
opinion by an expert indicating that claim has merit; this is
sufficient to allow granting of a 30 day extension to cure
deficiencies in such report. The trial court should
favor granting plaintiff 30 days in which to cure a deficiency in
the expert report or the qualifications of the expert, during which
time the defendant may not appeal. Such a report, even though deficient,
does not constitute “no report” requiring immediate dismissal.
Notice
letter must include
authorization.
Carreras
v. Marroquin, S.Ct., 6/10/11: In a med mal
wrongful death case, dismissal of plaintiff’s case was ordered based
upon the expiration of limitations. The controlling statute
providing for tolling if notice of the claim is given as statutorily
provided to the health care provider requires that a plaintiff must
provide both the statutorily required notice and the statutorily
required authorization form for release of protected health
information, CPRC §§ 74. 051, 74. 052, and 74. 251. In this
case, the notice of claim given to the physician without the
statutorily required authorization form did not toll the limitations period. This case abrogated the
holding in Hill v. Russell to the contrary.
Expert report procedure explained by Supreme Court:
Samlowski v. Wooten, S.Ct., 2/25/11: In
a case involving the nature and exercise of the trial court's
discretion in allowing a 30 day extension to cure a deficient expert
report, the Supreme Court announced a new procedure for plaintiffs to
use to preserve error in the event the extension is denied. The court's
plurality opinion notes that the statute is unclear regarding how the
court is to exercise its discretion, and decides that, in the case of a
deficient report, the trial court should grant the extension if the
deficiency is one that can be cured within the 30 day extension period:
"A trial court should therefore grant an extension when a deficient
expert report can readily be cured and deny the extension when it
cannot." Moreover, once a trial court denies plaintiff's motion for a
30 day extension and dismisses the case, in order to preserve error the
plaintiff must move the trial court to reconsider, and show within 30
days that he could have corrected the deficiency, presumably by filing
and serving a compliant report: "When the trial court denies a motion
to cure, the claimant must make a record that demonstrates the
deficiency would have been cured." The Supreme Court remanded this case
to the trial court so that plaintiff would have an opportunity to
follow this newly-announced procedure in the court below. A
dissent/partial concurrence by Justice Guzmann (joined by Lehrmann, J.
and Wainwright, J.) noted potential problems in meshing this new
procedure with the existing statutory remedy by appeal. A dissent by
Justice Johnson (joined by Green, J. and Willett, J.) would have found
that the trial court did not abuse its discretion in dismissing, and
would have reversed the appellate court and affirmed the dismissal.
Cause against a prescribing doctor of negligent driver is a healthcare liability claim:
Buchanan v. O’Donnell, San Antonio, 2/23/11: Plaintiff
auto accident victim sued the driver of the other car for
negligence. Plaintiff also sued the healthcare providers who
prescribed medication to that driver, alleging their negligent health
care contributed to the accident and her injury. Held, this was a
healthcare liability claim, requiring an expert report. Dismissal
as to the healthcare providers was affirmed.
Cause against a therapist for sexual exploitation outside of treatment is not a healthcare liability claim:
Nexus Recover Center, Inc. v. Mathis, Dallas, 2/10/11: Plaintiff
received mental health counseling from an employee healthcare
provider of defendant Nexis. After the clinical care ended the
defendant’s employee approached plaintiff and initiated an “intimate
sexual relationship” in violation of C.P.R.C. §81.001 dealing with
sexual exploitation by a mental health services provider.
Plaintiff later sued defendant and the employee for mental anguish
damages. Defendants moved to dismiss for failure of plaintiff to
timely file an expert report. Held, denial of the dismissal
affirmed. The claims were not “healthcare liability” claims
under Chapter 74, either as to the advances of the employee outside of
and after conclusion of the mental health counseling, nor as to Nexis
with regard to the allegations that it negligently hired and supervised
the employee.
“Paid or Incurred” evidentiary basis
Progressive County Mutual v. Delgado, Amarillo, 2/4/11: Non-medical
“paid or incurred” case. The total damages, including the amount
plaintiff actually “paid or incurred” of his medical bills added to his
other damages, was less than the settlement credit. Judgment
reversed and take-nothing judgment rendered for defendant.
Testimony as to what was actually paid or incurred was offered by the
defendant hospital’s “vendor liason”, the surgical group’s “practice
manager”, and the radiology group’s COO.
No lack of informed consent if not an “inherent risk”:
Lovett v. Felton, Amarillo, 1/27/11: Patient
sued chiropractor for damages from neck manipulation which allegedly
resulted in ruptured vertebral artery. Jury found for patient on
theory that the defendant failed to advise him of the risk of arterial
dissection from cervical manipulation. On appeal, reversed and
rendered in favor of the chiropractor. The evidence (expert
testimony) established that a properly performed manipulation could not
cause this injury to a healthy vertebral artery, therefore, this was
not an “inherent risk” of the procedure. The jury finding was
incorrect “as a matter of law.”
All med mal cases against the state fall “under” the Texas Tort Claims Act:
Franka v. Velasquez, S.Ct., 1/21/11: Med
mal case against UT resident arising out of neonatal injury. The
defendants moved for dismissal under the TTCA, claiming the suit could
have been brought against the state (hospital) as it involved use of
tangible property. Plaintiff argued that the defendant hospital
had to first prove that immunity had been waived, i.e., that the use of
a vacuum extractor had been the instrumentality that caused the
harm. The trial court denied the motions to dismiss and the
appellate court affirmed. Held, reversed and remanded. The
Supreme Court held that “for section 101.106(f), suit ‘could have been
brought’ under the Act against the government regardless of whether the
Act waives immunity from suit.” The opinion and dissent discuss frankly
the historic problems with construing the “could have been brought”
provision of the Act and its predecessors.
Med Mal Statute of Limitations prevents suing a RTP after limitations has run:
Molinet v. Kimbrell, S.Ct., 1/21/11: If
the statute of limitations has expired as to a person who is named as a
responsible third party, the plaintiff may not add that person as a
defendant. CPRC §74.251's “notwithstanding any other law”
language trumps the provision of CPRC §33.004 allowing a plaintiff to
name such a defendant even after the statute has run.
MSJ affidavit not a judicial
admission:
Health care defendants provided affidavits in summary judgment
proceeding stating that the patient’s pain could have and should have
discovered that her injury was caused by a retained sponge. Trial
court ruled that these were binding admissions that the
defendants left the sponge in her and that it caused her pain.
Defendants successfully sought mandamus. Held, the statements were made
in a significantly different context regarding how to determine the
patient’s discovery of a cause of action for limitations purposes, and
were not binding as admissions given the defendants’ consistent denial
of the accuracy of the plaintiff’s allegations. In re: Spooner, Hou (1st),
11/30/10
Catheter use
is med mal, attack is not:
Plaintiff pleaded assault claims against doctor, claiming he jammed a
catheter into her and punched and shoved her while performing
a
vaginal exam. The catheter incident was a med mal claim, and the trial
court’s failure to dismiss for failure to file an expert report was
reversed. The described “attack” was not a health-care liability claim
under the statute and thus no report was required. Plaintiff’s
discovery replies referring to “negligence” causing their damages did
not have the effect of amending their allegations of an assault to
bring them within the statutory definition. The case was remanded for
further proceedings on the attack claims. Appell v Muguerza, Hou(14th),
11/23/10
Expert
qualified; need not have direct evidence of medical cause:
Plaintiff successfully appealed granting of dismissals on expert report
as to two defendant physicians. Plaintiff alleged that the defendants
surgeon and assistant negligently clipped his ureter rather than the
intended and adjacent blood vessel, resulting in loss of his kidney. Of
note on appeal are the defendants’ claims that the plaintiff’s expert
was not qualified and that the report was insufficient because the
expert merely “assumed” that the ureter had been clipped. As for the
expert’s qualifications, it was held that the expert vascular surgeon
was qualified to opine about causation regarding a clip being misplaced
by vascular surgeons causing ureteral obstruction and kidney loss. As
for whether the ureter had actually been clipped, the appellate court
was satisfied by the expert’s references to several medical records
from plaintiff’s care after the surgery in which his treating doctors
had referred to the ureter being clipped, including one in which a
ureteral catheterization was attempted and the fact that the
catheter could not pass up the ureter was cited as “proof” that it had
been clipped. Dismissal reversed and remanded. Engh v. Reardon, Hou(1st),
11/10/10
“Official
immunity” did not extend to acts of medical care:
Physician resident at Baylor College of Medicine was sued for alleged
malpractice. This case has an extensive history, going to the Texas
Supreme Court already on issues of state institutional and employee
immunity. On remand to the district court the physician filed a MSJ
claiming that Civil Practice & Remedies Code Chapter 312
conferred
upon physician “official immunity” entitling him to judgment. Held, he
enjoyed only “official immunity” for acts committed in his capacity as
a governmental official. There was no immunity under that chapter for
his acts of alleged medical negligence with respect to patient care.
Denial of the physician’s MSJ was affirmed. Klein v Hernandez, Hou(1st),
11/4/10
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