One of most common types of calls I received from other attorneys starts like this, “Do you think that Chapter 74 applies to . . .”
Why plaintiffs don’t want Chapter 74 to apply
Chapter 74, of course, refers to the Texas Medical Liability Act, which is codified at Texas Health & Safety Code chapter 74. This tort reform law imposed a parade of horrors on medical malpractice plaintiffs, including:
• The requirement to serve at least one medical expert report on each defendant, within 120 days of each defendant filing an answer. The report(s) must be comprehensive, including the standard of care, how the defendant breached the standard of care, and how that mistake approximately caused injury to the plaintiff. The expert report(s) must give fair notice to the defendant of the claims being made and provide the court with assurance that the claim has merit.
• Caps on non-economic damages, which includes serious elements of damages such as pain and suffering, mental anguish, physical impairment, etc. The caps total $250,000 for all physicians or human being healthcare providers, whether one defendant or multiple defendants are named in the lawsuit. For hospitals and facilities, there is a cap of $250,000 per facility, up to a maximum of $500,000.
When the legislature passed this draconian tort reform legislation in 2003, the drafters chose not to index the caps to inflation or the Consumer Price Index. This means that the buying power of the damages caps decreases each and every year.
Given these limitations, it’s easy to understand why plaintiffs and their attorneys try to avoid application of the statute like the plague. Until recent years, it seemed to me that such efforts were futile, but then defendants really tried to push the envelope. Perhaps the best example is a doctor who owned a ranch, who asserted that he was protected by tort reform when some of his cattle straight out onto a road and caused a car crash.
Appellate court push-back on safety-standards claims
I think the frivolous abuses by the defense bar and medical malpractice insurance companies led to some pushback by Texas appellate courts. A major step forward for plaintiffs and justice occurred with the entry of the Texas Supreme Court’s well-reasoned opinion in Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496, 504 (Tex. 2015).
The Ross opinion adopted seven non-exclusive factors that courts can use to consider whether a safety-standards claim, such as a slip and fall, amounts to a health care liability claim that falls within the harsh measures of the Texas Medical Liability Act. Briefly, here are the seven factors:
• Did the alleged negligence occur while the defendant was performing tasks with the purpose of protecting patients from harm?
• Did the injuries occur in a place where patients might be during the time that they were receiving care? The focus is on whether the provider had an obligation at that location to protect patients who required special medical care.
• Was the claimant/plaintiff in the process of seeking or receiving health care when injury occurred?
• Was the claimant/plaintiff providing or assisting in providing health care when injury occurred?
• Is the allegation of negligence based on safety standards arising from professional duties owed by the defendant?
• If an instrument was involved in the defendant’s alleged negligence, was it a type used in providing health care?
• Did the alleged negligence relate to the defendant’s obligations to comply with safety-related requirements set for health care providers by government or accrediting agencies?
Tripping in a doctor’s waiting room
The latest in a line of appellate cases following the important Ross decision was entered by Houston’s 14th Court of Appeals on August 28, 2020. The case arose from a patient who was seeing a psychiatrist named Ignacio Valdes, MD on an outpatient basis.
The case is styled Ignacio Valdes, MD v. Pamela Shields, No. 14-18-00725-CV, In the 14th Court of Appeals. You can read the opinion here.
The patient was being treated for complaints of insomnia and anxiety. The medical records reflect that she had a psychiatric history of depression, anxiety, insomnia, and chronic pain, among other issues.
According to the lawsuit original petition pending before the 157th District Court of Harris County, Texas, the plaintiff/patient was in the waiting room of Dr. Valdes’s medical office, when she tripped over a misplaced rug. She alleged that Dr. Valdes was negligent by failing to maintain, inspect, and correct dangerous conditions in his office and failure to warn her of the dangerous condition that caused her injury.
Interestingly, a footnote in the original petition affirmatively stated that her allegations of negligence against the physician were unrelated to his duties of care as a health care provider.
In deciding that this was not a health care liability claim falling under the grip of Chapter 74, the court determined that there is no need for expert medical or health care testimony to prove or refute the merits of the plaintiff’s negligence claim against the psychiatrist defendant based on premises liability.
Additionally, the 14th Court of Appeals weighed the Ross factors and found that these favored a finding that this was not a health care liability claim:
• The location where the incident allegedly occurred, the waiting room, was not a place for patients to stay while receiving care. Waiting room is accessible to non-patients and patients alike.
• At the time of the alleged injuries, no health care was being provided.
• The safety standards of the lobby are not related to any professional duties of position.
• The instrumentality involved in the incident—a rug—is not a type used in providing healthcare.
• The alleged negligence didn’t occur in the context of an obligation to comply with safety-related requirements for healthcare providers set by governmental or accrediting agencies.
When considering any claim against a hospital, physician, or healthcare provider in Texas, it is important to hire an attorney who is familiar with this challenging and evolving area of law. A good place to start would be contacting a top-rated experienced Houston, Texas medical malpractice lawyer.
