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Texarkana Court of Appeals rules that juvenile operating room behavior is a health care liability claim protected by Texas tort reform

Nursing staff painted male patient's toenails, placed an unnecessary diaper and colostomy bag

The Texarkana Court of Appeals recently entered an opinion that reminds me a bit of the infamous cattle car wreck case in the Dallas area.

In the cattle case, a physician’s cows got loose and caused a car wreck. The defendant argued—and took it up on appeal—that because he’s a doctor he was protected by the Texas medical malpractice tort reform law, which meant that the plaintiff had to produce an expert report. Fortunately, neither the trial court nor appellate court agreed on the physician’s absurd argument.

At least the conduct at issue in the Texarkana case took place in the hospital in the case styled Christus Good Shepherd Medical Center v. Michael Sonnier; No. 06-21-00031-CV, In the Texarkana Court of Appeals. You can read the opinion here.

The plaintiff had been working as a charge nurse in the Christus Good Shepherd Medical Center Department of Surgery for over a decade. He was admitted to the hospital for a hernia repair. Fortunately, the hernia surgery itself went well, with no complications.

But, to the patient’s shock and dismay, he awoke after surgery to discover that, while he was under anesthesia, Christus staff members had:

• Placed a diaper on him, even though it would be unusual for most surgery patients.

• Taped a plastic bag to the diaper containing mixed nuts and labeled “These nuts!”

• Signed the inside and outside of the diaper with messages such as “Robin was here! Get well soon!” in the area of his genitals and “poop shoot” on the buttocks.

• Affixed a colostomy back to him, even though he did not need one.

• Painted his toenails bright red.

An out-of-state lawyer filed a lawsuit on the patient’s behalf against Christus alleging claims for intentional infliction of emotional distress, assault, battery, and gross negligence. The hospital filed an original answer.

If the case constitutes a health care liability claim, the filing of the original answer triggered a 120-day deadline for the plaintiff to serve a medical expert report, under Texas Civil Practice & Remedies Code Chapter 74 (Texas Medical Liability Act). He did not do so and the hospital filed a motion to dismiss his claims and asked for a mandatory award of attorney’s fees and costs.

After that, the plaintiff amended his petition, naming the hospital employees as individual defendants and removing any references in the petition to a standard of care. The plaintiff also opposed the motion to dismiss, arguing that the case wasn’t actually a health care liability claim.

As an initial point, an amendment of the pleading generally replaces it, but not if a Ch. 74 motion to dismiss is pending. Thus, if the court determined this was a health care liability claim, the plaintiff would lose.

Spoiler alert: That’s exactly what happened. The appellate court noted that the Texas Medical Liability Act has broad language, which the Texas Supreme Court has held should have expansive application.  After the 120-day deadline, a plaintiff who didn’t serve an expert report can’t circumvent the statutory requirement by:

• Amending his or her petition to add new health care liability claims against a defendant and thereby gain an extension of time to serve an expert report.

• Nonsuiting (dismissing) the original lawsuit and refiling to get another bite at the 120-day apple.

• Amending the petition to drop any health care liability claims while retaining claims under a different theory of recovery based on the same underlying facts.

The court rejected the plaintiff’s pleading of causes of action for intentional infliction of emotional distress, assault, and battery, quoting the Texas Supreme Court’s rationale that “a party cannot avoid Chapter 74’s requirements and limitations through artful pleading.” Baylor Scott & White, Hillcrest Med. Ctr. V. Weems, 575 S.W.3d 357, 363 (Tex. 2019) (citations omitted).

The appellate court then moved on to determine whether the “gravamen or essence of a cause of action is a health care liability claim.” Spoiler alert: Even these bizarre facts are!

Even though the juvenile behavior of the Christus surgical staff wasn’t directly related to legitimate health care, it still implicated conduct that occurred during the course of the patient’s care, treatment, or confinement. As result, the court held that the claims are presumptively health care liability claims.

To rebut the presumption, the appellate record must conclusively show three factors:

• First, there is no complaint about any act of the provider related to medical or health care services other than the alleged offensive contact.

• Second, the alleged offensive contact wasn’t pursuant to actual or implied consent by the plaintiff.

• Third, the only possible relationship between the alleged offensive contact in the rendition of medical services or healthcare was the setting in which the act took place.

The court held that while the hospital didn’t argue that the first two rebuttal factors had not been met, the record did not conclusively establish the third factor.

It was significant to the court’s analysis that the plaintiff’s original petition—the pleading analyzed because it was what was on file on the date the motion to dismiss was filed—discussed health standards of care and alleged violations.

The court also noted that the type of allegations made by the plaintiff could be characterized as violations of accepted standards of safety, which are also health care liability claims under Chapter 74.

In short, because the alleged injuries occurred while the plaintiff was a patient under the care of Christus was dispositive of this matter. The court determined that a health care liability claim was involved and, thus, reversed the trial court and ordered dismissal of the case. To add insult to injury, literally, the hospital will receive an award of its attorney’s fees to be levied against the plaintiff.

In my view, even with the outlandish facts of this case, the outcome was abundantly clear under Texas law. That’s why it’s important to contact an experienced Texas medical malpractice lawyer anytime you have a potential claim against a hospital or health care provider.

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.


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