Responsible third parties and proportionate responsibility in Texas medical malpractice cases

One of the myriad murky areas of medical malpractice law in Texas involves proportionate responsibility.

Fundamentally, proportionate responsibility refers to the role of the jury to allocate a percentage responsibility to each responsible defendant or party after a finding negligence. At the conclusion of the trial in a medical malpractice case, the first question that the jury is asked deals with whether the negligence, if any, of the named defendants or individuals proximately caused injury to the plaintiff. If the jury answers “yes,” then the next question in a multi-defendant case requires the jury to assign a percentage responsibility to each defendant. The proportionate responsibility of each defendant, as determined by the jury, determines the percentage responsibility and what damages can be collected from each defendant.

Additionally, though, Texas law provides procedural tools that defendants may use in some circumstances to bring non-defendant third partys into the proportionate responsibility exercise, in an attempt to deflect blame from themselves. One of these is called responsible third-party practice.

Texas Civil Practice & Remedies Code chapter 33 defines, in relevant part, a responsible third-party as “any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages sought, whether by negligent act or omission . . . .”

When a defendant properly discloses and designates a responsible third-party, the name of that individual or entity is included in the jury charge for proportionate responsibility purposes. This is never welcomed news for plaintiff because any percentage of responsibility allocated by the jury to the responsible third-party isn’t assigned to a defendant from whom the judgment may be collected.

As a recent order from Houston’s 14th Court of Appeals in a mandamus action shows, medical malpractice plaintiffs and their attorney should be prepared to enforce the procedural requirements for proper disclosure and designation of responsible third parties by the defendant. The case is styled In re Amy I. Lee, M.D., Amy I. Lee, M.D., P.A., Jayme Lynee Adams, CRNA, and U.S. Anesthesia Partners, Inc.., No. 14-21-00057-CV, and you can read the court’s order here.

Under Texas law, a party who believes that the trial court abused its discretion may, in certain circumstances, file a petition for writ of mandamus with an appellate court. When granted, a mandamus order from an appellate court will direct the trial judge to comply with the terms of the order.

In this case, the proportionate responsibility and responsible third-party dispute arose after the trial judge denied the defendants’ motion for leave to designate responsible third-party and granted the plaintiff’s special exceptions and motion to dismiss the defendants’ defense under the proportionate responsibility statute. The trial court’s ruling the defendants would not be able to try to shift blame to responsible third-party at trial, which alarmed them enough that they decided to file a mandamus action.

Get a short order, the 14th Court of Appeals denied the defendants’ requested relief, simply noting that they “have not shown they are entitled to mandamus relief.”

Digging into the appellate and trial record revealed more of the issues and arguments.

First, Texas law requires parties to make initial disclosures, including identification of individuals or entities that may be designated as responsible third parties. The trial court medical malpractice wrongful death case was filed on June 12, 2018. The petition alleged negligent anesthesia care during an esophagogastroduodenoscopy (EGD) at Memorial Hermann Memorial City Hospital.

The two-year statute of limitations expired on March 20, 2019.

Procedurally, the way a defendant gets the issue of responsible third-party designation before the court is by filing a motion for leave. The defendants waited until August 10, 2020, to file a motion for leave to designate three physicians as responsible third parties. The statute affords the plaintiff a brief window to object to such a motion, which the plaintiff in this case is dead.

The plaintiff objected on the grounds that the defendants didn’t timely disclose the three physicians as potential responsible third parties and waited until after the statute of limitations had elapsed before filing the late motion for leave. This deprived the plaintiff of the option of adding those three physicians as defendants in the lawsuit.

In my experience as a Texas medical malpractice lawyer, it’s common for defendants to run the clock and wait until shortly before trial to try to pull out the responsible third-party card.

In this case, though, the plaintiff’s response took it up a notch, filing special exceptions and motion to dismiss along with the objection to the defendant’s motion for leave. Special exceptions are a tool that a party can use to bring pleading defects to the attention of the trial court. The plaintiff here requested that the court strike the defendants’ responsible third-party and proportionate responsibility defense pleadings on two grounds. First, the defendants failed to properly disclose potential responsible third parties before the statute of limitations lapsed. Second, the trial court had previously entered an uncontested summary judgment in favor of one of the responsible third parties, meaning that the court had already determined as a matter of law the third party was not negligent.

Based on the disposition of the defendants’ petition for mandamus by the 14th Court of Appeals, the trial court’s ruling will remain in effect, denying submission of responsible third parties to the jury in any proportionate responsibility defense at trial.

If you’ve been seriously injured because of poor medical or hospital care in Texas, then contact an experienced top-rated Houston, Texas medical malpractice lawyer to discuss your potential case.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys 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 for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.