“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”
I often think about this quote from Lewis Carroll’s book Through the Looking Glass. I find that it fits well to Texas medical malpractice litigation.
What does Alice Wonderland have to with medical negligence, you wonder?
Texas courts routinely make decisions about whether plaintiffs’ lawsuits against healthcare providers are health care liability claims. The answer to such questions present high stakes. Health care liability claims are defined by statute and are governed by tort reform limits and requirements including early production of expert reports and damages caps. Non-health care liability claims aren’t limited by those measures.
The scary part of the situation is that if a plaintiff and his or her attorney decides a matter isn’t a health care liability claim and the court disagrees, then the case gets dismissed. I’ve seen this happen multiple times to good attorneys who aren’t familiar with the complexities of Texas medical malpractice law.
This procedural issue was highlighted in an interesting recent Dallas case styled Christine Faber v. Collin Creek Assisted Living Center, Inc. d/b/a Dayspring Assisted Living Community, No. 05-18-00827-CV, In the Dallas Court of Appeals. You can read the opinion here.
The plaintiff filed a lawsuit against Dayspring Assisted Living Community in a Collin County, Texas trial court. The defendant filed a motion to dismiss, which the court granted, after the plaintiff didn’t serve a medical expert report. Remember, an expert report is mandatory for a health care liability claim, but otherwise wouldn’t be needed, at least at the early stage of litigation.
The plaintiff appealed to the Dallas Court of Appeals, where a panel of the court affirmed (agreed with) the trial court’s judgment, leaving it intact. The plaintiff asked for a review by the entire Court of Appeals (en banc), which was granted, resulting in a rare reversal of both the panel of the Dallas Court of Appeals and the trial court—on the ground that the plaintiff’s case wasn’t a health care liability claim after all.
“When I used a word,” Humpty Dumpty said . . .
Now, for the facts of the case.
The plaintiff’s mother was a resident of Dayspring. The daughter went to the facility to pick up her mom from Dayspring to take her to get her hair done.
A Dayspring employee rolled the mom out on a rolling walker. In the process, the walker got caught in large crack in the sidewalk, and the mom fell and hit her head on the concrete. It was such a bad fall that within a few days she died.
The plaintiff filed a wrongful death lawsuit that include claims for premises liability, as well as the role of the Dayspring employee in the injury, the facility’s lack of supervision and training of employees, failure to implement rules and regulations to ensure the safe transport of patients, and failure to render adequate and timely aid.
The question for the court was whether these allegations were health care liability claims governed by the draconian Texas Medical Liability Act. The trial court said yes. The panel of the Dallas Court of Appeals said yes. And the en banc Dallas Court of Appeals said no—and they got the final say (unless it goes up further on appeal to the Texas Supreme Court).
The Texas Medical Liability Act (TMLA) defines a health care liability claim as a cause of action against a health care provider or physician for treatment, lack of treatment, or other claim to departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately result in injury to or death of the claimant, whether the claimant’s claim or cause of action sounds in tort or in contract.
The opinion from the full Dallas Court of Appeals noted that precedent has found that the TMLA essentially creates 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 the patient’s care, treatment or confinement.
Yet, that precedent is rebuttable.
And the court determined that the plaintiff rebutted it in this case.
The bottom line of the court’s analysis is that there was no substantive nexus between the plaintiff’s claims in standards implicating Dayspring’s duties as a health care provider. In the court’s opinion that’s the bright line.
I find this to be a common-sense bright line. It was the legislature’s intent to provide a measure of protection to doctors, hospitals, and other health care facilities when they are engaged in conduct related to a patient’s care, treatment or confinement. The other hand, non-health care tasks shouldn’t have those protections.
If you’ve been seriously injured at the hospital or office of the healthcare provider in Texas, your best odds for successful result in the hands of a top-rated experienced Texas medical malpractice lawyer.
