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Supreme Court Rules Against Another Patient

The Texas Supreme Court recently threw out another case brought by a patient. In the case of Turtle Healthcare Group, L.L.C. d/b/a Fred's Pharmacy v. Linan, et al., ___ S.W.3d ___(Tex. 2011)(2/25/11), the family of a woman who was dependent upon a ventilator asked the provider for extra supplies and batteries because of an approaching hurricane. Shortly after power was lost, ventilator was found not operating and the woman was dead.

The family brought suit, alleging several theories. One included a claim that the provider neglected to supply or include adequate batteries. Since that was not considered a "medical malpractice" claim, no expert report was provided.

The Supreme Court permanently dismissed case. It held that all claims against a health care provider must be brought as "malpractice," and therefore must have an expert report.

Here, all of the claims "are based upon the same underlying facts," viz., negligent maintenance and operation of the ventilator. "[P]ermitting the same underlying facts to give rise to both types of claims would effectively negate the procedures and limitations of the TMLA." Accordingly, if the same set of facts gives rise to claims under more than one legal theory, unlike other areas of the law the claims under other legal theories cannot be pursued and the case can only be brought as malpractice.

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