Last week, the Fourteenth Court of Appeals ruled in Brazos Presbyterian Homes, Inc. v. Lander 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.