The broad application of the Texas tort reform protections for medical malpractice and health care liability defendants is well known. It’s not without limits, though.
One physician famously found this out the hard way. When his cattle got loose and caused a car wreck, the doctor filed a motion to dismiss under the medical malpractice tort reform statute because the plaintiff hadn’t served an expert report requirement. The appellate court shot that down and sanctioned him.
The intersection of the animal kingdom and Texas health care is back, this time in a new opinion entered by Houston’s First Court of Appeals. The case is styled Village Green Alzheimer’s Care Home, LLC v. Graves, No. 01-21-00131-CV, In the First Court of Appeals. You can read the opinion here.
In this case, an elderly lady was a resident at Village Green Alzheimer’s Care Home, which is an assisted living facility. According to the lawsuit petition, a dog was allowed to roam in the lobby. It lunged at the elderly lady, knocked her down, and mauled her face. The bites were so severe that she required many stitches to close multiple gashes on her face. One of the large puncture wounds was so close to her eye that they couldn’t close it, though.
The family investigated circumstances and, according to the lawsuit petition, found that Village Green had a history of allowing stray dogs to stay in the lobby. The same dog that bit this resident had bitten other residents on two prior occasions. On an earlier incident, a different stray dog bit a hospice nurse who was walking through the lobby.
Even though, it’s been my general experience that nursing homes and assisted living facilities set a pretty low bar, the act of allowing stray dogs to live in the lobby of a facility caring for elderly patients seems ridiculous.
After the resident’s family filed a lawsuit for premises liability and gross negligence claims, Village Green filed a motion to dismiss for the plaintiffs’ failure to serve an expert report as required by the Texas Medical Liability Act (the tort reform statute). The trial court denied the motion to dismiss and the facility appealed.
To determine whether the trial court was correct in its ruling, the appellate court had to determine whether this was truly a health care liability claim for medical malpractice. Common law decisions interpreting the statute have focused on whether the issue in the lawsuit is related to the provision of health care.
Interestingly, the facility argued that its alleged negligence in allowing an aggressive stray dog access to its elderly residents would violate the safety standard because the facility had a general duty to provide its residents with a safe environment. The First Court of Appeals noted that the Texas Supreme Court has held that general obligations provide a safe environment, without more, or enough to make a safety claim fall within the definition of a health care liability claims. That case is styled Galvan v. Memorial Hermann Hosp. Sys., 476 S.W.3d 429, 432-33 (Tex. 2015).
In premises liability claims, like this, the key issue is whether there is a substantive nexus between safety standards imposed on a health care provider, as opposed to general duties of a premises owner.
In a soundly common-sense opinion, the First Court of Appeals upheld the trial court’s denial of the motion to dismiss. In its analysis, the court noted that residents may sometimes receive care in the lobby of the facility, but that all of the other factors under the Texas Supreme Court’s Ross factors weigh in against this being a health care liability claim. (The citation for that case, by the way is Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 502 (Tex. 2015)).
• No active care was occurring at the time of the dog attack.
• The resident/patient was alone.
• The resident/patient wasn’t being guided through the area by a facility employee.
• The facility staff wasn’t having any interaction with the resident/patient at the time of the incident.
Any time a patient, resident, or family member is considering litigation against a Texas health care facility, it’s a good idea to consult with a top-rated experienced Texas medical malpractice lawyer about the potential case. Even when the draconian tort reform protections don’t apply, such as in this case, it may be necessary to fight back a legal challenge by the health care provider.