Call us today at 281-580-8800 or email us at ask@painterfirm.com

Law of the case doctrine prevents defendant from taking two bites at the apple Contact Now

Houston appellate court rejects Shiloh Treatment Center's two attempts to have negligence case dismissed

Law of the case doctrine prevents defendant from taking two bites at the apple

Houston’s First Court of Appeals disposed of an interesting medical malpractice procedural issue in a recent opinion. The case is styled Shiloh Treatment Center, Inc., Shiloh II, LLC, Behavioral Training Research, Inc. and Clay Dean Hill v. Destin Edward Ward; No. 01-19-00969-CV. You can read the opinion here.

One of the hurdles imposed on Texas medical malpractice plaintiffs by the 2003 round of tort reform is producing a medical expert report within 120 days of each defendant filing an answer in the lawsuit. There are many requirements for these expert reports, which must be prepared in a vacuum of any discovery other than the medical records.

For example, at least one of the experts offered by a plaintiff must be a physician with specific experience in diagnosing or treating the specific type of care relevant to the lawsuit.

Plus, plaintiffs must produce expert report(s) that detail the standard of care, how each defendant violated the standard of care, and how it caused harm to the plaintiff.

If a defendant healthcare provider is dissatisfied with the degree of specificity in the expert reports, or, as more often seems to be the case, just doesn’t like what the experts has to say, then the defendant can file objections and a motion to dismiss.

Shortly after the tort reform statute was passed, a plaintiff’s attorney could virtually guarantee objections in every case. The Texas appellate courts have grown weary of the frivolous defense objections and has tighten the reins. In my experience, it’s unusual these days for inexperienced plaintiff’s medical malpractice attorney to have to deal with such objections in healthcare liability claims, let alone have a trial or appellate court sustained them.

This is where the recent case out of the First Court of Appeals is so interesting. Over a period of almost a decade, the healthcare defendants filed two separate motions to dismiss the case that they contended was a medical malpractice claim. The case is odd and interesting because the law of the case doctrine provides that a party only gives one bite at the apple for any issue that’s decided by appellate court with finality.

The factual background here is that Shiloh Treatment Center operates facilities for mentally challenged youth. A young man (the plaintiff) was a resident of one of these facilities. He wandered away from the security of the property and was injured in a car-pedestrian collision.

The plaintiff filed a lawsuit alleging general negligence—not medical malpractice—against Shiloh Treatment Center and other parties. When the statutory 120-day expert report requirement for healthcare liability claims past, Shiloh Treatment Center filed a motion to dismiss. Basically, the center contended that this was a medical malpractice/healthcare liability claim, despite the way the plaintiff’s original petition was pled, so the onerous tort form requirements applied.

The trial court held an oral hearing on the motion to dismiss. At that time, the plaintiff argued that Shiloh Treatment Center doesn’t provide medical care and treatment under any definition, so no expert report was required. Trial court agreed and denied the defendant’s motion.

Shiloh took the trial court’s decision up on an interlocutory appeal to the Houston Court of Appeals, which agreed with the trial court and affirmed the ruling. In that decision, the appellate court found that the plaintiff’s original petition did not assert healthcare liability claim, so an expert report was not required. The court remanded the case back to the trial court for additional proceedings, and the defendant did not appeal the First Court of Appeals ruling to the Texas Supreme Court.

Around four years past, with the case slowly proceeding in the trial court. Then, suddenly, Shiloh Treatment Center filed a second motion to dismiss, featuring the identical argument with some additional supporting evidence. The trial court again denied the motion to dismiss and, predictably, Shiloh took it up on appeal.

Shiloh’s creative, but rejected and flawed, argument on appeal was that the First Court of Appeals had previously identify the types of evidence that would be needed to show that Shiloh and the other parties were actually health care providers. Shiloh argued, in turn, that it had now assembled that evidence and felt compelled in the interest of justice to be allowed another bite at the motion to dismiss apple. Oddly, though, the defendant acknowledged that it already had access to the additional evidence back when it moved for dismissal the first time.

Given that the principal purpose of the tort reform statute, the Texas Medical Liability Act, is to reduce the expense of health care liability claims, it wasn’t surprising to me that the court quickly disposed of the defendant’s repetitive motion to dismiss. The court noted that allowing this type of shenanigan would be simply wasteful and would contravene the underlying purposes of the tort reform law.

If you’ve been seriously injured because of poor healthcare, it’s important to contact a skilled Houston, Texas medical malpractice lawyer about your potential claim. Even when healthcare doesn’t seem to be involved, but there is a defendant who might claim to be a healthcare provider. There are possibility of a cases like this, where defendant tries to fit a square peg case into a round hole in the tort reform statute.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


// Read full biography
// Read more expertise by Robert Painter

Discover More