We here at Painter Law Firm frequently get questions from other attorneys about whether a potential case falls within the dangerous grips of the Texas medical malpractice tort reform statute known as Chapter 74 (Texas Civil Practice & Remedies Code Ch. 74). I'm happy to try and help others try to avoid this minefield.
This special statute covers all health care liability claims and requires medical malpractice plaintiffs to jump through costly and time-consuming hoops, including sending a pre-suit notice letter and producing a detailed report from at least one medical expert very early in the lawsuit.
Plus, the tort reform law has teeth. If a plaintiff doesn’t meet the deadline for producing a proper expert report, the trial court is required to dismiss the case and order the plaintiff to pay the other side’s attorney’s fees.
Most litigation attorneys don’t regularly handle medical malpractice lawsuits. Some of them decide to dabble in this complex area of the law every now and then. And some of those lawyers take a gamble by trying to pursue a lawsuit against a hospital or doctor without following all of the Chapter 74 requirements. They usually think they’ll get by with some argument that their lawsuit isn’t a health care liability claim and, therefore, is exempt from the burdens of tort reform.
When I get calls asking about whether a claim falls within Chapter 74, my advice is always the same. The safest approach is to presume it applies because the stakes for clients are so high.
A recent opinion entered by Houston’s 14th Court of Appeals explains why. The case is styled The University of Texas Medical Branch at Galveston v. Brenda Jackson, No. 14-18-00887-CV, 14th Court of Appeals.
In this opinion, the court explained that Chapter 74, the Texas tort reform statute applying to health care liability claims, “casts a wide net,” essentially creating a presumption that a claim is a health care liability claim if it is against a physician or health care provider and is based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement.
The statute applies whether the claim involves treatment, lack of treatment, or a departure from the standard of medical care, health care, or safety.
That’s a broad statute! And, like it or not, courts like the 14th Court of Appeals interpret the law as showing a broad legislative intent to apply expansively to almost anything.
In the Jackson case, the patient went to University of Texas Medical Branch at Galveston Hospital (UTMB) for a colonoscopy. In the lawsuit, the plaintiff alleged that, while “walking from the prep room to the procedure area,” she “slipped on a liquid believed to be water.” The liquid was in an area not open to the general public.
Upon reading that sentence, it’s pretty easy to predict how this case would come down. There’s a line of prior appellate decisions that establish that slip and falls that occur in patient care areas are health care liability claims that are subject to the full brunt of Chapter 74 tort reform requirements. For example, the Texas Supreme Court’s opinion in Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496 (Tex. 2015).
Sure enough, the court of appeals in Jackson ruled that this case was a health care liability claim, meaning that the case will be dismissed because the plaintiff didn’t meet the deadline for serving a medical expert report. And, of course, if the defendant asks for it, the trial court will enter an order requiring the plaintiff to pay UTMB’s legal fees.
The key factors that the court relied on in making this decision include:
• The plaintiff was a patient at the hospital seeking medical care
• Patient care had already begun because she had been prepped and was on the way to the procedure room
• The slip and fall occurred in a patient care area that was off limits to the general public
• Protecting patient safety is part of providing health care
• Federal law requires the hospital to meet safety standards
Even if the plaintiff’s case had managed to overcome the expert report issue, it’s likely that the case wouldn’t have turned out well. As a public hospital, UTMB is protected by the draconian Texas Tort Claims Act. You can read more about that here. That law restricts the type of negligence claims that a person may pursue against the government, including public hospitals.
If you’ve been seriously injured because of poor care at a hospital or by a doctor, then I urge you to contact a top-rated Houston, Texas lawyer who’s experienced and skilled in handling medical malpractice cases.
