The Texas Supreme Court was on a roll last week in entering decisions that are unfriendly to patients and plaintiffs in medical malpractice cases. In two separate opinions released on February 21, 2020, the court continued its never-ending quest to expand the scope of Lone Star tort reform.
Willful and wanton negligence
In Glenn v. Leal, the Supreme Court reversed and remanded a decision by Houston’s First Court of Appeals. Emergency medical care was at issue, specifically application of the nonsensical, illogically-named “willful and wanton negligence” standard.
Texas Civil Practice & Remedies Code Section 74.153 requires medical malpractice plaintiffs to meet a much higher standard of care involving bona fide emergency care in hospital emergency rooms (ER) and labor and delivery units. Willful and wanton negligence means that a plaintiff must prove that an ER doctor or nurse had actual, subjective knowledge of a condition that required evaluation or treatment but objectively didn’t act appropriately.
The court interpreted the statute expansively, ruling that it also applies to obstetrical/labor and delivery care even when a patient wasn’t first treated in a hospital ER.
Even corporations can get hit by the medical malpractice expert report requirement
Under Texas Civil Practice & Remedies Code Section 74.351, health care liability claim (medical malpractice) plaintiffs have to meet a special requirement of furnishing a medical expert report early in the litigation. If a plaintiff misses the deadline, then the defendant can file a motion to dismiss. The trial court has no discretion to deny the motion and, upon request by a defendant, must order the plaintiff to pay the defendant’s attorney’s fees.
I get questions all the time from attorneys with little experience in Texas medical malpractice about whether they should comply with the expert report requirement for a particular set of facts. In general, I think it’s better to be safe than sorry, as the Supreme Court’s opinion in Coming Attractions Bridal and Formal Inc. v. Texas Health Resources illustrates.
An out-of-state bridal shop sued Texas Health Resources, which operated a Dallas hospital. The bridal store claimed economic (money) damages, arguing that the defendant didn’t properly quarantine a nurse who treated a patient with the Ebola virus at the hospital. Later, the nurse shopped at the bridal stop, which public health authorities ordered closed. Bad publicity made the bridal shop go out of business.
The bridal shop got a sour taste of Texas justice when the defendant filed a motion to dismiss for failure of the corporation to produce an expert report. The case made its way to the Texas Supreme Court, which held that even a corporation suing a health care provider is a claimant under our tort reform statute and must meet the expert report requirement.
Experience matters
When looking for a Texas medical malpractice lawyer, remember that direct experience in this complex area of the law matters. Find a top-rated experienced Houston, Texas medical malpractice attorney to handle your potential case.
