The scope of health care liability claims covered by Texas tort reform is broader than many people seem to think. A recent case out of Houston’s First Court of Appeals illustrates this fact in a non-emergency motor vehicle collision involving an ambulance.
The case is styled City of Houston v. Hussein, No. 01-18-00683-CV, In the First Court of Appeals. You can read the opinion here.
The Texas medical malpractice tort reform statute is called the Texas Medical Liability Act. It’s easy to understand why people want to avoid this draconian statute. It’s a unique law that requires medical malpractice plaintiffs to produce expensive, rather comprehensive medical expert reports early in the litigation. Additionally, there are limits or caps in place for non-economic damages such as pain, suffering, and mental anguish.
Determining whether the statute applies to a potential case is an all-around high-stakes exercise. If a plaintiff’s attorney makes the wrong call and doesn’t comply with the statute, the case will get dismissed with an order for the plaintiff to pay the defendant’s attorney’s fees. I think of this as the ultimate instance of adding insult to injury!
Back to the new opinion out of the Houston Court of Appeals. The facts of the case began with a 911 call made by a patient was having chest pain that she rated as 8/10. A City of Houston ambulance and emergency medical technician (EMT) crew responded to the call and determined that the patient had an urgent, but not critical condition.
The ambulance crew decided to transfer the patient to a nearby hospital without the lights and sirens engaged. The EMT crew felt that their location was roughly equidistant to two different hospitals. They started to take the patient to one facility, but the patient requested that they take her to the other hospital because she had already been treated there.
In the process of turning the ambulance around to go to new hospital, the driver ran the ambulance into a concrete barrier at a toll booth, causing injury to the patient.
The plaintiffs filed a lawsuit against the City of Houston that sounded like a plain-vanilla car accident petition. The allegations were that the ambulance driver was negligent in failing to keep a proper lookout, failing to control the speed of the ambulance, failing to drive at a safe speed and in a single lane, and driving at an excessive speed.
Unfortunately, the plaintiffs didn’t comply with the Texas Medical Liability Act by serving a medical expert report and accompanying curriculum vitae within 120 days after the defendant City of Houston filed an answer in the lawsuit. The City quickly filed a motion to dismiss on that ground.
The appellate court considered factors previously announced by the Texas Supreme Court that are non-exclusive considerations to determine whether a safety standards violation is a health care liability claim covered by the tort reform statute. Here are the factors were considered in Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 501 (Tex. 2015):
• Whether the alleged negligence occured in the course of the defendant’s performing tasks with the purpose of protecting patients from harm.
• Whether the alleged injuries occurred in a place where patients were receiving care, so that the obligation of the provider to protect persons who required medical care was implicated.
• Whether the plaintiff was seeking or receiving health care when the alleged injuries occurred.
• Whether the plaintiff is providing or assisting in the providing of health care when the injuries occurred.
• Whether the alleged negligence arises from safety standards that are part of the professional duties owed by the health care provider.
• If an instrumentality was involved in the defendant’s alleged negligence, whether it was a type used in the providing of health care.
• Whether the alleged negligence implicated safety-related requirements set for health care providers by governmental or accrediting agencies.
Given the fact that the ambulance was responding to a 911 medical call and transporting a patient to a hospital or health care, I wasn’t surprised that the appellate court determined that these factors established that even this motor vehicle collision claim was covered by the Texas Medical Liability Act. This, of course, means that the case was dismissed because the plaintiff didn’t comply with the expert report requirements.
Interestingly, the plaintiff made the interesting argument that the tort reform statute expert testimony requirement made no sense. The briefing alleged that “there is no necessity for expert testimony from a health care professional to resolve” her claim.
The court noted, though, that “Although how much expert testimony from a health is necessary to support a plaintiff’s claim is a relevant consideration in deciding whether a safety-standard claim constitutes a health care liability claim, whether medical expert testimony will be needed to establish a plaintiff’s claim is not determinative of the issue.” The court even added that a claim may still be a health care liability claim when no expert testimony is required at all.
The Texas brand of tort reform is tough in medical malpractice cases. Outcomes like this are one of the reasons why we always advise anyone injured in negligence that’s in any way related to healthcare to consult with a top-rated attorney with significant experience in Texas medical malpractice cases.
