Blog

Tort Reform Ad Abdsurdum: A Nursing Home Valet Accident is Now a "Health Care Liability Case"

Photo of Brian Humphrey

Last week, the Fourteenth Court of Appeals ruled in Brazos Presbyterian Homes, Inc. v. Lander that that case, an auto accident case involving a nursing home visitor and the home's valet, was a "health care liability case" subject to Texas medical malpractice tort reform laws, including its expert report requirement and damages cap. This case continues the trend, started by the Texas Supreme Court's decision in Texas West Oaks Hospital v. Williams, in which the scope of the medical malpractice reform statute has been expanded-perhaps beyond even its most fervent proponents' expectations-to cover an increasing variety of ordinary personal injury cases that have nothing to do with health care.

The law in question is Chapter 74 of the Texas Civil Practice & Remedies Code. Championed by "tort reform" advocates as a way to combat what they saw as a "crisis" of frivolous medical malpractice claims, Chapter 74 requires plaintiffs in what it defines as "health care liability cases" to have an expert witness, usually a doctor, prepare a report detailing what the health care provider did wrong and how it injured the plaintiff. This report, which is normally expensive to prepare, must be served on the defendant by the 120th day after the defendant files an answer. If the expert report is not filed or is filed even a day late, the court must dismiss the case on the defendant's motion and require the plaintiff to pay the defendant's attorney fees. The statute also includes certain pre-suit notice requirements, bars claims for most injuries that are more than two years old under a "statute of repose," and imposes a cap on noneconomic damages regardless of the severity of the injury. In short, the law makes it difficult and expensive for those injured by the negligence of doctors, hospitals, or nursing homes to enforce their rights in our courts, and then sharply limits the compensation that can be awarded by judges and juries for even the most horrific of injuries.

Chapter 74 applies to any "health care liability claim," which is defined 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 and professional or administrative services directly related to health care." Most reasonable people reading that definition would probably conclude that Chapter 74 applies only to medical malpractice claims, or at least only to claims bearing some relationship to actual health care. According to the Texas Supreme Court in Texas West Oaks Hospital v. Williams, those people would be wrong.

In Williams, a 2012 case, the Texas Supreme Court held that a "nonsubscriber" suit brought against a psychiatric hospital by one of its own employees who was assaulted by a patient was a "health care liability case" because it involved a "claimed departure from accepted standards of ... safety." The Supreme Court interpreted the statute in such a way that "directly related to health care" does not modify the term "safety," holding that a "health care liability claim" based on "safety" need not be directly related to health care.

In Ross v. St. Luke's Episcopal Hospital and Memorial Hermann Hospital System v. Galvan, two slip-and-fall suits brought by hospital visitors, the Fourteenth Court of Appeals took another step down the road paved by Williams and held that Chapter 74 applied even to these ordinary common-law tort claims. In Ross, an unpublished case currently on appeal to the Texas Supreme Court, the Court of Appeals appeared to recognize the absurdity of the result, noting: "Ross likely never imagined that, under the Texas Supreme Court's construction, the plain language of the Texas Medical Liability Act would swallow her garden-variety slip and fall case. But it has." The Ross Court nonetheless held that this result was compelled by the Supreme Court's ruling in Williams.

In Galvan, which was a reported case, the Court of Appeals held conducted further analysis and re-affirmed Ross's holding. In a concurrence, Justice Boyce agreed that the case was controlled by Ross, but criticized Ross, instead agreeing "with opinions concluding that characterizing a slip-and-fall claim by a hospital visitor as a Chapter 71 health care liability claim is not compelled by Chapter 74's language, by the policies underlying the statute, or by the Supreme Court's decision in Williams."

The Fourteenth Court of Appeals took us a step closer to that extreme in Brazos Presbyterian Homes v. Lander involved a senior citizen, Betty Lander, was injured when a valet at a nursing home she was visiting allowed her car to roll backward with her next to it, crushing her arm between the car door and a pole. Lander sued the nursing home for negligence in hiring and supervising the valet company. The nursing home filed a motion to dismiss under Chapter 74, claiming that the case was a "health care liability case" and pointing out that the plaintiff had not filed an expert report. The trial court denied the motion, ruling that the case was not a "health care liability case."

The nursing home immediately appealed the ruling to the Fourteenth Court of Appeals. The Fourteenth Court of Appeals reversed the trial court's ruling, rendered judgment that Lander's case be dismissed, and remanded the case to the trial court to determine how much in attorney fees her estate (Lander passed away after the lawsuit was filed) will have to pay the nursing home. The Court of Appeals held that, under Williams and Galvan this ordinary auto accident case was now subject to the same expert report requirement as a medical malpractice case. Justice Boyce again filed a concurring opinion, echoing his concurrence in Galvan.

Other cases suggest that the absurdity won't end there. In In re Richard K. Archer, a recent mandamus denial by the Fifth Court of Appeals in Dallas, a driver sued after he was injured when his vehicle struck a stray cow that was not properly fenced in by its owner, an 82-year-old retired doctor, Richard Archer. Archer filed a motion to dismiss the case because the plaintiff had failed to file a Chapter 74 expert report, claiming that the case is a "health care liability case" under Williams because Archer is a physician and the case involves "accepted standards of safety." When the trial court failed to rule on the motion, Archer filed a petition for writ of mandamus with the Court of Appeals. The Court of Appeals denied the petition because Archer had never requested a hearing on the motion to dismiss, but did not rule on the merits of the motion itself. The case and, presumably, the motion to dismiss remain pending.

Reductio ad absurdum is a form of argument where the falsity of a hypothesis is demonstrated by extending the hypothesis to its logical limits and showing the absurd consequences, and is a familiar process to any first-year law student who has argued hypotheticals with a professor. We are seeing this process played out before our eyes in the Houston appellate courts with the progeny of Texas West Oaks Hospital and Galvan. Unfortunately, this is no thought experiment carried out in the ivory tower of a law school classroom-real flesh-and-blood people living with serious injuries or grieving for lost family members get to experience the absurd consequences of this line of reasoning first-hand.

If you or someone you know has been a victim of medical malpractice, contact an attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or toll free at 1-800-870-9584.

No Comments

Leave a comment
Comment Information

Awards & Recognition

  • 2016-2017 Equal Access to Justice Champion

    The Equal Access to Justice Champions Program was started by the Houston Bar Association in 2006, to help ensure placement of Houston Volunteer Lawyers cases with pro bono volunteers. Originally, firms were tiered according to size, and firms within each tier committed to accept a certain number of pro bono cases from HVL each year for five years.

  • The National Trial Lawyers | Top 100 Trial Lawyers

    The National Trial Lawyers: Top 100 is an invitation-only organization composed of the premier trial lawyers from each state or region who meet stringent qualifications as civil plaintiff and/or criminal defense trial lawyers. Selection is based on a thorough multi-phase objective and uniformly applied process which includes peer nominations combined with third-party research.

  • Million Dollar Advocates Forum

    Established in 1993, the Million Dollar Advocates Forum (which includes the Multi-Million Dollar Advocates Forum) is one of the most prestigious groups of trial lawyers in the United States. Membership is limited to attorneys who have won million and multi-million dollar verdicts and settlements. There are over 4000 members throughout the country. Fewer than 1% of U.S. lawyers are members.

  • Recognized by Best Lawyers America | Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz | 2017

    Recognition by Best Lawyers is based entirely on peer review. Their methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

  • Lead Counsel Rated

    In order to earn the Lead Counsel Rating, an attorney must not only demonstrate significant legal experience, but must also receive multiple peer recommendations advocating his or her ability. This is a key component in the screening process.

  • Texas Super Lawyers | Texas Monthly

    Each year, Super Lawyers recognizes the top lawyers in Texas via a patented multiphase selection process involving peer nomination, independent research and peer evaluation. The Texas lawyers who receive the highest point totals during this selection process are further recognized in Texas Super Lawyers Top Lists.

Get Your Free Case Review 713.587.9668

Let Us Help You Today! Request a Free Consultation

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

Firm News & Updates

  • $50+ Million Personal Injury Fire and Explosion

    The firm successfully represented nearly 100 victims who suffered personal injuries and damages to property from a large fire and explosion resulting in a settlement of more than $50 million. The firm served as lead lawyers on the steering committee in this litigation.

  • $80 Million Personal Injury Large Plant Explosion

    The firm successfully represented 270 plaintiffs', taking a lead role in the plaintiffs' steering committee, who suffered injuries in a large plant explosion resulting in a settlement of nearly $80 million.

  • $50+ Million Personal Injury Plant Fire and Explosion

    The firm successfully represented 45 personal injury victims in a plant fire and explosion, serving on the plaintiffs' steering committee, concluding with a settlement of more than $50 million.

  • $22+ Million Personal Injury Work Site Accident

    The firm prevailed in a personal injury trial for a worksite injury client with the jury returning a verdict and resulting in a judgment of over $22 million for the firm's client.

  • $12 Million Auto Accident 18-Wheeler Collision

    The firm successfully achieved a $12 million settlement for the family of a man who died in an 18 wheeler collision.

  • $30 Million Personal Injury Burn Victims

    The firm prevailed on behalf of three burn victims with settlements totaling nearly $30 million.

Our Record Of Success.

When you are hurt and you choose a law firm to represent you in court or at the negotiation table, you need to carefully consider the firm's record.

More Success Stories