Involving Opinions Issued Since 3/1/2024
- Noe v. Velasco, No. 22-0410, ___ S.W.3d ___, 2024 WL 2095961 (Tex. May 10, 2024).
Medical Negligence – Birth of a Healthy Child
This is a failed tubal case. Per the Texas Supreme Court, “[the mother] claims the doctor’s actions caused an unplanned pregnancy and the birth of her healthy fourth child, a daughter now eight years old. We must decide whether the mother has pleaded a cause of action recognized under Texas law and, if so, whether she has adduced evidence of damages sufficient to defeat a no-evidence motion for summary judgment.” The court went on to state it “has not squarely addressed the validity of a claim for medical negligence that results in an unplanned pregnancy and birth of a healthy child.”
The court began its analysis by pointing out that the issue is not whether there is a cause of action for “wrongful pregnancy,” or some similar descriptive term. The issue is the “substance” of the claim alleged. The claimant alleges the defendant doctor “owed and breached duties of care in providing her medical treatment which caused her damages. The claim alleged is, in substance, a claim for medical negligence, which Texas law indisputably recognizes. For these reasons, the court of appeals correctly concluded that [the patient] pleaded a claim recognized under Texas law.”
The court moved next to damages. In first addressing noneconomic damages (also referred to by the court as “nonpecuniary” damages), the court held “awarding nonpecuniary costs that arise from pregnancy and the birth of a healthy child is fundamentally incompatible with Texas’ longstanding recognition that a parent is not injured by the healthy child’s birth or existence.” Here, the mother sought recovery for her mental anguish and pain and suffering from her pregnancy and childbirth. With respect to those damages the Texas Supreme Court stated, “Given the inextricable link between the nonpecuniary damages sought and the very existence of the child, we hold that a parent may not recover noneconomic damages in a medical-negligence case arising from a healthy child’s birth.”
With respect to economic damages, the court stated that based on established precedent “the economic expenses of raising the child are not recoverable as a matter of law.” The court added, “[claimant] offers no meaningful argument for departing from these precedents and expanding potential liability to the degree that it could cripple obstetricians.” The court then addressed the mother’s medical expenses and held “that medical expenses incurred during the pregnancy and postpartum period as a result of medical negligence are recoverable, as are the expenses incurred for the sterilization procedure that was not successfully performed.” The court went on to emphasize, however, “in deeming the mother’s prenatal, delivery, and postnatal medical expenses recoverable, the compensable injury is not the life of the child or even the pregnancy or birth. Rather, the injury is the actual economic costs for medical care incurred during the pregnancy and postpartum period. Those medical expenses are a direct and obvious result of the medical negligence, are easily calculable according to the ordinary techniques of tort law, and have no tendency to disparage the child’s existence.”
The Texas Supreme Court concluded by discussing why claimant had “adduced no evidence of compensable damages” (emphasis in original). The court recognized claimant “sought damages for medical expenses; physical pain and suffering; mental anguish; and the costs to maintain, support, and educate her daughter.” The court stated that its “holding that noneconomic damages and the economic costs of rearing a child are not recoverable leaves only [claimant’s] claim for medical and related expenses as potentially compensable.” With respect to this lone element of damages, the court held claimant “adduced no evidence of such damages” in response to defendant’s motion for summary judgment. Thus, while claimant did allege a viable claim for medical negligence, most of the damages sought were held to be “unrecoverable.” With respect to the recoverable damages alleged (medical expenses), claimant failed to adduce any summary judgment evidence supporting an award of such damages.
- Hampton v. Thome, 687 S.W.3d 496 (Tex. 2024).
Tolling Statute of Limitations – Sufficient Section 74.051 Medical Authorization
In this case the Texas Supreme Court ruled that “an imperfect medical authorization form is nevertheless a medical authorization form, which is sufficient to toll the statute of limitations 75 days under section 74.051(c).” Here, the court held, “Whatever imperfections or omissions existed in the plaintiff’s medical authorization form in this case, it was genuinely a medical authorization form resembling the one required by the Legislature, and the plaintiff served it with the notice of claim. This was sufficient, as we understand this statutory scheme, to trigger the 75-day tolling period which means the suit was timely.”
Here, claimant sent notice of claim with an authorization within two years after the treatment at issue. She did not, however, file suit within that two-year time frame; she did file suit within two years and seventy-five days. Thus, suit was only timely if the authorization form provided with the notice was sufficient to toll the statute of limitations for 75 days (citing Tex. Civ. Prac. & Rem. Code sections 74.051(c), 74.052(a)). The authorization form provided by claimant with her notice of claim, however, only included two providers, a hospital and an orthopedic practice group.
After more than a year of discovery, defendant moved for summary judgment on limitations arguing the authorization provided was deficient and, therefore, limitations could not be tolled for 75 days. Defendant argued the authorization was deficient because the form did not (1) include the required provision authorizing the defendant physician to obtain records from providers who would treat the patient after the date of the authorization, (2) list several providers that treated the patient in connection with her alleged injuries, and (3) list several providers that had treated the patient in the five years prior to the underlying incident.
The trial court denied defendant’s limitations motion for summary judgment, and the case proceeded to trial. Claimant prevailed at trial and obtained a $555,678 verdict (the final judgment was $255,678 after the application of the noneconomic damage cap). Defendant appealed and the Beaumont Court of Appeals reversed the trial court, holding the 75-day tolling provision was unavailable because of the authorization’s defects. Thome v. Hampton, 683 S.W.3d 22 (Tex. App.—Beaumont 2022), rev’d, Hampton v. Thome, 687 S.W.3d 496 (Tex. 2024).
In addressing the many cases from various courts of appeals that have held tolling is not available when an authorization has deficiencies like those here (and in which the Texas Supreme Court had denied petitions for review), the Texas Supreme Court stated that, “While none of these decisions is an unreasonable application of Chapter 74 and this Court’s precedent, most of the approaches adopted by the courts of appeals share the same two drawbacks” – those drawback being (1) protracted litigation and appeals about authorizations and not case merits (“non-merits satellite litigation”), and (2) “retroactive” adjustment of the statute of limitations based on “fact-intensive determinations made later in the litigation.”
For those reasons, the Texas Supreme Court adopted the following “bright-line rule” when dealing with deficient authorizations. “If the pre-suit notice required by section 74.051 is accompanied by a medical authorization form that resembles the statutorily required form but that turns out to be erroneous or incomplete, the 75-day tolling period provided by section 74.051(c) remains available.” In adopting this bright-line rule, the court acknowledges “the possibility that a document proffered as a medical authorization form may be so grossly deficient on its face that it could never genuinely be called ‘a medical authorization in the form specified,’” as required by statute. The court further acknowledged “the possibility that an erroneous or incomplete authorization form proffered in a bad-faith attempt to mislead the defendant,” and the possibility of a fraudulently provided authorization that courts “should count as no authorization form at all under the old rule that ‘fraud vitiates whatever it touches’” (citing Stonecipher’s Est. v. Butts’ Est., 591 S.W.3d 806 (Tex. 1979) (quoting Morris v. House, 32 Tex. 492 (1870)). The court expressed its hope these “abuses will be rare” and stated that in such instances “trial courts are equipped to deal with them – whether by sanctions or by refusing tolling because no genuine authorization form has been served.”
- Demerson v. Smith, No. 01-22-00579-CV, 2024 WL 3107689 (Tex. App.—Houston [1st Dist.] Jun. 25, 2024, n.w.h.) (mem. op.)
Service of Chapter 74 Expert Report
The issue in this case is proper service of a claimant’s Chapter 74 expert report and CV, including whether sending the report and CV to defense counsel’s electronic service provider constitutes “service” of the report and CV required by section 74.351(a) of the Texas Civil Practice & Remedies Code and Rule 21a of the Texas Rules of Civil Procedure. Even though the facts seem to clearly establish the defendant physician and her counsel had received claimant’s expert report and CV within the time allowed, defendant challenged “service” of claimant’s report and CV on a number of grounds. The defendant challenged both (1) pre-suit service on her professional liability insurance carrier (TMLT), and (2) post-service to her counsel’s electronic filing services provider.
In 2021 before filing suit, claimant’s counsel sent defendant a Notice of Claim pursuant to section 74.051 of the Texas Civil Practice & Remedies Code. On July 30, 2021, TMLT faxed claimant’s counsel a letter advising that as defendant’s “professional liability insurance carrier” it had been provided the Notice “for response.” The letter from TMLT also requested additional information so that it could “properly evaluate [claimant’s] claim.” On January 7, 2022, claimant’s counsel emailed a copy of claimant’s expert report to TMLT. That same day, TMLT responded to this email, acknowledging receipt of the report. This email also stated that TMLT would “forward a copy of the report to [the defendant doctor,]” and mentioned assignment of defense counsel to handle the claim. Claimant timely filed her health care liability claim (for negligent performance of a circumcision on her minor son) on January 10, 2022.
In addressing defendant’s complaint about pre-suit service of claimant’s expert report, the First District Court of Appeals first pointed out that the Texas Supreme Court has held a Chapter 74 expert report can be served before suit is filed (citing Hebner v. Reddy, 498 S.W.3d 37 (Tex. 2016); Ransom v. Eaton, 503 S.W.3d 411 (Tex. 2016)). The court then addressed why it disagreed with defendant’s claim Texas law required pre-suit service of the report on either the party (the defendant physician) or “the party’s attorney,” and was holding that service of the report on TMLT was proper. The court discussed that the term “serve” is not defined by section 75.351(a) (or under section 74.001(a) for that matter), but that “several courts” have held the Legislature had intended for compliance with Rule 21a of the Texas Rules of Civil Procedure “to fulfill the requirements of section 74.351(a)” (citing Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013)). The court then quoted Rule 21a (a)’s provision stating notices required under that rule “may be served by delivering a copy to the party to be served, or the party’s duly authorized agent or attorney of record (emphasis in original).
The court discussed that both TMLT’s July 30, 2021 letter to claimant’s counsel and the defendant doctor’s TMLT insurance policy showed TMLT had the right and duty to handle and defend claimant’s claim against defendant. Based on this evidence, the court found claimant “served her expert report pre-suit on [defendant’s] duly authorized agent – TMLT – via email on January 7, 2022” (NOTE: Defendant also argued pre-suit notice was defective because a separate CV with the expert’s qualifications was not provided with the pre-suit expert report. This argument was rejected because “the expert report served [pre-suit] on TMLT included sufficient indicia of [the expert’s] qualifications, thus complying with the service requirement of Section 74.351(a).” Further, the court stated “that issue did not implicate timely service under Section 74.351(a), but rather the sufficiency of the report,” and that defendant did not object to the report as deficient on qualifications).
Defendant also argued that both Offenbach v. Stockton, 285 S.W.3d 517, 521 (Tex. App.—Dallas 2009), aff’d, 336 S.W.3d 610 (Tex. 2011) and Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011) hold pre-suit service of an expert report on a defendant’s professional liability insurance carrier is not proper “service.” In addressing this contention, the First Court of Appeals explained why a statement of this nature by the Dallas Court of Appeals in Offenbach was dicta, and that this issue was not addressed by the Texas Supreme Court in Stockton. Regardless, the court pointed out that in contrast to Offenbach and Stockton it was undisputed here that both the defendant doctor and her liability carrier received the expert report pre-suit.
With respect to post-suit service of the report and CV, on February 9, 2022 defendant served her answer on claimant’s counsel through the electronic filing manager “eFileTexas.gov” and the electronic filing service provider “MyFileRunner.com.” The District Clerk accepted this filing at 12:40 p.m. that day. At 3:40 p.m. that same day, claimant served her expert report and CV on defendant through the same file manager and service provider. Even though defendant argued (without strong supporting evidence) counsel did not receive the report and CV claimant served through defendant’s file manager and service provider on February 9, 2022, Rule 21a (a)(1) of the Texas Rules of Civil Procedure provides “Electronic service is complete on transmission of the document to the serving party’s electronic filing service provider.” There was no dispute that the report and CV were properly and timely served through the file manager and service provider, as required by Rule 21a (a)(1). The court pointed out that a motion to dismiss is triggered under section 74.351(a) only when a report and CV are not timely served; a motion to dismiss is not triggered for untimely receipt of a report and CV that were timely served. Per the “plain language” of Rule 21a (b)(3), claimant “completed service of the report and CV when she [through her counsel] transmitted the documents to MyFileRunner.com” well within the 120-day time allowed.
- Emery v. HCA Health Services of Texas, Inc., No. 09-22-00037-CV, 2024 WL 2972772 (Tex. App.—Beaumont Jun. 13, 2024, n.w.h.) (mem. op.).
Tolling Statute of Limitations – Sufficient Section 74.051 Medical Authorization
In the first appellate case addressing the Texas Supreme Court’s recent authorization sufficiency opinion in Hampton v. Thome (above), the Beaumont Court of Appeals affirmed a trial court’s denial of a defendant’s limitations motion for summary judgment.
This is a claim in which claimants alleged negligence by defendants in failing to properly diagnose and treat the patient for complications from a bariatric surgery performed in Mexico. Defendants argued suit was not timely filed because claimants were not entitled to the 75-day tolling provided for in section 74.051(c) of the Texas Civil Practice & Remedies Code. There was no dispute the authorization form provided was incomplete. The authorization provided failed to disclose the doctors and facilities the patient had seen in the prior five years and for treatment that was related to the condition involved in the suit. In particular, claimants failed to disclose the health care providers involved in her bariatric surgery in Mexico, including the bariatric surgeon and the medical facility where the bariatric surgery was performed.
Citing Hampton v. Thome, the Beaumont Court stated the general rule expressed in Hampton for addressing this situation (where the form provided requires “modification”) is an abatement, unless one of three exceptions exists. Those exceptions are that the form (1) is “so grossly deficient on its face that it could never genuinely be called a medical authorization,” (2) was proffered “in a bad faith attempt mislead the defendant,” and (3) “should not be counted as a form at all by the court under the ‘old rule that fraud vitiates whatever it touches.’” The court pointed out that defendants did not claim the authorization’s incompleteness was due to “bad faith” or fraud, or that the authorization was so grossly deficient to render it no authorization (this is very likely because the Texas Supreme Court’s Hampton v. Thome opinion was not issued until more than two years after the trial court denied defendants’ motion).
Regardless, the Beaumont Court defended claimants’ failure to provide information about the patient’s bariatric surgery health care providers in the authorization because (1) defendants did not claim they were unaware of the patient’s recent bariatric surgery when they treated her, and (2) the underlying claim was “that the defendants failed to properly provide [the patient] with a proper diagnosis and treatment for complications that resulted from the bariatric surgery.” Accordingly, the authorization was sufficient to toll limitations.
- Landon v. The University of Texas Health Science Center at Houston, No. 14-23-00314-CV, 2024 WL 2763378 (Tex. App.—Houston [14th Dist.] May 30, 2024, n.w.h.) (mem. op.).
Statute of Limitations
A prison inmate filed suit in 2017 against the Harris County Sherrif, Dr. Michael Seale, and Dr. Seale’s employer, The University of Texas Health Science Center at Houston, alleging various claims relating to his medical treatment in 2001-2002 during pre-trial detention, and his allegation that from 2001-2010 he was “drugged and suffering from depression.”
The trial court construed the claim against Dr. Seale and UT Houston as a health care liability claim. Thus, the applicable statute was limitations was set forth in Texas Civil Practice & Remedies Code section 74.251(a), and was two years. In evaluating claimant’s position suit was timely filed in 2017, the Fourteenth District Court of Appeals addressed (1) accrual of claimant’s claim, (2) equitable tolling, and (3) open courts.
With respect to accrual, the court pointed out that “[a] cause of action accrues when facts come into existence that permit a plaintiff to recover” (citing Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017)). Based on the summary judgment evidence, the court held this happened in 2002. First, the court discussed that while claimant argued he was not a medical professional and, therefore, could not diagnose himself, his “ability to understand the mechanism of his injuries is different and distinct from his ability to understand that he was injured.” The latter is the key issue. The court then held “[claimant] has been consistently and continuously alleging since 2002 in various legal proceedings that the medications prescribed by the medical defendants in 2001-2002 caused him injury.” In fact, in his appellate brief, claimant stated his claims “stem from 2001-2002 pretrial, trial, and posttrial.” Thus, his claim accrued in 2002, and he did not file suit until 2017, long after limitations expired.
With respect to equitable tolling, the court stated, “Equitable tolling is unavailable if it is inconsistent with the text of a relevant statute” (citing Levinson Alcoser Assocs., L.P. v. El Pistolon II, Ltd., 670 S.W.3d 622, 627 (Tex. 2023); Texas Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 596 (Tex. 2000) (“[t]he common law has been dramatically engrafted upon by the legislature. Where the common law is revised by statute, the statute controls” (quoting Bartley v. Guillot, 990 S.W.2d 481, 485 (Tex. App.—Houston [14th Dist.] 1999, pet. denied)). Thus, equitable tolling is not possible here because section 74.251(a) does not provide for it.
Finally, the court discussed that the issue in an open courts defense is whether “it was impossible or exceedingly difficult for the plaintiff to discover the alleged wrong and sue within the two-year statute of limitations.” Here, “[a]lthough [claimant] may not have been educated about the various medicines he was prescribed, [he] had concerns about the effects of his medications in 2002.” Claimant also admitted that “[t]hese same issues have been in litigation since 2002.” Thus, there is no open courts defense; claimant was aware of the alleged wrong within limitations.
Finally, in a footnote the court of appeals mentions the applicable 10-year statute of repose in section 74.251(b), and states “even if [claimant] had established some tolling of the limitations on his claims, the statute of repose would have barred the claims against the medical defendants,” since the alleged negligence was in 2002 and before and suit was not filed until 2017.
- Albertson Companies, Inc. v. County of Dallas, No. 14-23-00279, No. 14-23-00299, 2024 WL 2279191 (Tex. App.—Houston [14th Dist.] May 21, 2024, pet. filed) (mem. op.).
Definition of “Claimant” Under Section 74.001
This case is part of the Texas multidistrict litigation arising out of the opioid crisis. Here, “Dallas County and Bexar County sued a number of manufacturers, distributors, and retail pharmacies of prescription opioids.” The counties alleged defendants “were negligent and violated their standard of care in their dispensing of opioids. Broadly speaking, the Counties alleged that the Pharmacies dispensed the opioids while systematically ignoring red flags indicating that the opioids were being abused and diverted into secondary, criminal markets.” The Pharmacies argued the claims asserted against them were health care liability claims, and that the claims against them should be dismissed because the Counties had not served them expert reports, as required by section 74.351. The MDL court denied the Pharmacies’ motion and the Pharmacies appealed.
The central issue was Chapter 74’s definition of “claimant.” Chapter 74 defines claimant as “a person, including a decedent’s estate, seeking or who has sought recovery of damages in a health care liability claim” (citing Tex. Civ. Prac. & Rem. Code § 74.001(a)(2)). The parties agreed that Dallas and Bexar County are not “a decedent’s estate.” Thus, the issue was whether the Counties are “a person” under that statute.
Per Chapter 74, “Any term or word of art used in this chapter, not otherwise defined in this chapter, shall have such meaning as consistent with the common law” (citing Tex. Civ. Prac. & Rem. Code § 74.001(b)). Previously, the Texas Supreme Court held, “Person is not defined in [Chapter 74] and therefore must be given its common law meaning” (quoting Tex. W. Oaks Hosp. v. Williams, 371 S.W.3d 171, 178 (Tex. 2012)).
In support of their position, the Pharmacies directed the Fourteenth Court to the Texas Code Construction Act, wherein it states that “person” includes a “government or governmental subdivision,” such as a county (citing Tex. Gov’t Code § 311.005(2)), and other authority. The Pharmacies, however, did not address the crux issue of whether county (or political subdivision) would be included within the common law meaning of person, as required by the Texas Supreme Court and section 74.001(b).
In answering this pertinent question, the Fourteenth District Court of Appeals looked at “the body of law derived from judicial decisions” (citing Lyda Swinerton Builders, Inc. v. Cathay Bank, 409 S.W.3d 221, 243 n.19 (Tex. App.—Houston [14th Dist.] 2013, pet. denied), and “the definitions compiled in Black’s Law Dictionary (citing Coming Attractions Bridal & Formal, Inc. v. Tex. Health Res., 595 S.W.3d 659, 663 n. 8 (Tex. 2020)). With respect to Black’s Law Dictionary, it contains only three entries for the word “person,” and “[t]here is no mention in any of these entries of counties or political subdivisions” (citing Black’s Law Dictionary 1162 (7th ed. 1990)).
With respect to “the body of law derived from judicial decisions,” the court relied primarily on one of its prior decisions, Harris County v. Dowlearn, 489 S.W.2d 140 (Tex. Civ. App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.). In Dowlearn, Harris County raised a claim that the Texas Tort Claims Act was unconstitutional and violated the federal Equal Protection Clause “because portions of it treated counties and cities differently.” In rejecting this argument the Fourteenth Court stated, “As to constitutionality, a municipality, county, or other public corporation or governmental agency created and controlled by the state is not a ‘person’ entitled, as against the state, to equal protection of the laws” (emphasis added). The Fourteenth Court then went on to point out that while the Texas Supreme Court disapproved of Dowlearn in a later opinion, that later opinion did not address Downlearn’s holding a county was not a “person,” and that to the court’s “knowledge, no court has ever expressed disapproval of this court’s holding in Dowlearn that a county was not a person.”
For these reasons the Fourteenth Court of Appeals found Dallas County and Bexar County are not a “person” under Chapter 74, are not a “claimant” under Chapter 74, and, therefore, were not required to serve the Pharmacies expert reports under Chapter 74. Based on these findings, the trial court’s denial of the Pharmacies’ motion to dismiss was affirmed.
- Texas Laurel Ridge Hosp. v. Mainor, No. 13-23-00036-CV, 2024 WL 2198662 (Tex. App.—San Antonio May 16, 2024, no pet.) (mem. op.).
Not a Health Care Liability Claim
This case involves a minor patient being transported from an off-campus pick-up location to attend on-campus treatment. The patient fell asleep during transport and was left in the van when it arrived on campus. The patient was then unknowingly transported to another location and left in the van there for some time before waking up and breaking out of the van. The patient was later found and transported back to the on-campus treatment center.
Suit was filed alleging negligence in failing to supervise and keep the patient safe. Plaintiffs filed a preliminary motion seeking a determination they were not asserting a health care liability claim, and, therefore, did not need to serve an expert report (see Tex. Civ. Prac. & Rem. Code § 74.353(a)). The trial court agreed and defendant appealed. The issue presented was whether the claim asserted “concerns a departure from accepted standards of safety related to the provision of health care.” This means a “‘substantive nexus’ exists between the ‘safety standards alleged violated and the provision of health care,’” with the pivotal issue being “whether the standards on which the claim is based implicate the defendant’s duties as a health care provider, including its duties to provide for patient safety” (citing and quoting Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 501 (Tex. 2015)).
In looking at the seven factors for this test set forth by the Texas Supreme Court in Ross, the Corpus Christi Court of Appeals stated, “Although the third Ross factor is implicated by [Plaintiffs’] suit because [the patient] was in the process of seeking mental health care at the time of the alleged injury, none of the remaining factors are present.” Leaving the patient alone in a locked van did not occur in the course of performing tasks to protect the patient from harm, nothing in the record indicates the van was a place patients might receive treatment, nothing in the record explains the professional duty implicated by leaving the patient in a child-locked vehicle, there is no contention an instrumentality used in providing health care was involved in the alleged negligence, and the duty allegedly violated is not unique to health care providers. Thus, the Corpus Christi Court affirmed the trial court’s determination this was not a health care liability claim.
- Zinsmeister v. Houston Methodist Hosp., No. 14-22-00873-CV, 2024 WL 2207324 (Tex. App.—Houston [14th Dist.] May 16, 2024, no pet.) (mem. op.)
Expert Report Sufficient on Causation
In this health care liability claim, claimants alleged negligence following gastrointestinal surgery that “resulted in prolonged hospitalization, pain and suffering, and unnecessary costs of care.” In support of their claim, claimants served an amended expert report that the hospital objected to and challenged as being conclusory on causation. The trial court granted the hospital’s motion and claimants appealed. Recognizing that under the applicable abuse of discretion standard of review “close calls must go to the trial court” (quoting Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 911 (Tex. 2017)), in a 2-1 opinion the Fourteenth District Court of Appeals reversed the dismissal of claimants’ claim.
The court began its analysis by discussing that in the report before it claimants’ expert stated the applicable standard of care required the defendant hospital assign a hospitalist or internist to the patient postop, and that the hospital breached this standard by not assigning such a specialist to the patient post-op. The report went on to state that the failure to assign such specialist caused the patient’s injury “because it prevented the adequate treatment of [the patient’s] conditions, thereby keeping [the patient] in the hospital longer and leading to the worsening of his conditions.” The report stated the injury suffered by the patient was “leakage at the surgical site,” and this complication resulted in “distress, malnutrition, anemia, and apparently pulmonary complications.” The report acknowledged that the patient was being treated by a surgeon during this time, but that a hospitalist or internist’s care was needed and indicated. The report went on to state that once a hospitalist became involved and began to treat the patient the patient improved and his complications resolved.
The court explained that while the report “does not specifically state what different treatment a hospitalist would have provided” (as opposed to or in addition to the treatment the patient was receiving and had received), and that the report “does provide a fair summary of how proximate cause is going to be proven, provide a basis for the trial court to conclude that [the] claims have merit, and inform [defendant] of the conduct [claimants] call into question” (citing E.D. v. Tex. Health Care, PLLC, 644 S.W.3d 660 (Tex. 2022) (per curiam)). Specifically, the report stated “a surgeon is not capable of treating the complications that arose, that a hospitalist or an internal-medicine doctor is capable of treating those complications, that [the patient’s] complications persisted for longer than they should have because a hospitalist or internal-medicine doctor was not appointed to his care when complications arose and lingered post-surgery, that it is standard practice to appoint a hospitalist or internist in a situation such as this, and that [the patient’s] condition improved and the complications were resolved only after a hospitalist was assigned to his care.” Fort these reasons the majority held “that the [expert’s] statements on proximate cause are more than a mere conclusory assertion.”
The dissenting justice stated, “I agree with the majority that the expert report in this case fails to identify what different treatment a hospitalist or internal medicine specialist would have provided to [the patient] if the hospital had made one available sooner. I part ways with the majority, however, because this failure amounts to an analytical gap in the report such that the report does not sufficiently explain causation. For this reason, I respectfully dissent.” This justice went on to state, “Here, the report does not identify when the hospital should have assigned another physician to [the patient’s] care nor explain what steps that physician should have taken to address the complications from his surgery more quickly. Without such information, the report fails to provide a fair summary of how an earlier referral to a specialist would have prevented [the patient’s] injuries.”
- Lopez v. Herrera, No. 13-22-00508-CV, 2024 WL 2066812 (Tex. App.—Corpus Christi May 9, 2024, no pet.) (mem. op.).
Not a Health Care Liability Claim
The dispute in this case involved return of a $4,000.00 deposit the patient paid for a liposuction procedure. The patient had to cancel the procedure because she was unable to obtain the required negative COVID test, and the doctor refused to return her deposit. The issue presented was whether the claim asserted was for “lack of treatment or a deviation from accepted safety standards” and, thus, was a health care liability claim.
The Corpus Christi Court of Appeals held the “operative facts” of the dispute involved whether plaintiff was entitled to a full refund of her deposit after she cancelled the procedure. Thus, the dispute did not involve treatment, lack of treatment, or departure from accepted standards of medical care, or health care, or safety professional or administrative services directly related to health care; and, therefore, this was not a health care liability claim.
- Grata v. Hernandez, No. 01-23-00817-CV, 2024 WL 1774229 (Tex. App.—Houston [1st Dist.] Apr. 25, 2024, no pet.) (mem. op.).
30-Day Extension/Expert Qualifications
Here the defendant physician challenged claimant’s initial Chapter 74 expert report as inadequate, and sought dismissal of this claim because claimant did not serve an amended report within the 30 days allowed by the trial court.
This mess started because a Harris County trial court was too cute with its ruling on claimant’s initial Chapter 74 report. The defendant physician challenged claimant’s initial report as inadequate. At the end of the hearing on that issue, the trial court asked claimant’s counsel “if he wanted the court to rule or give [him] a 30-day extension to file an amended or supplemental report.” Counsel replied, “I’ll take the 30 days.” When defense counsel asked the court whether it had made any ruling in terms what needed to be cured, the court stated, “Nope. 30 days.” The trial court’s written order was consistent with these rulings, and in addition to granting a 30-day extension to file an amended report stated, “The Court withholds any ruling on the sufficiency of Plaintiff’s Chapter 74 Report at this time.”
The First District Court of Appeals discussed that the applicable law only allows for a 30-day extension to provide an amended or supplemental report if the trial court “finds an expert report deficient.” The First Court continued stating, however, “it does not follow that a trial court implicitly finds that the original report is deficient whenever it grants an extension. In some instances the trial court simply may have erroneously granted an extension on an impermissible basis” (citing Sanchez v. Martin, 378 S.W.3d 58 (Tex. App.—Dallas 2012, no pet.)). The court went on, adding, “this error does not, in and of itself, amount to an implied finding the expert report is deficient,” particularly given the court stated both at the hearing and in its order that it was not finding the report deficient. The First Court further held, “if the issue before us was whether the trial court erred in granting the extension, we would agree…But that error, and the consequences of that error, are not reviewable in this accelerated interlocutory appeal.”
With respect to expert qualifications challenge, the issue was whether the report from a board-certified obstetrician and maternal fetal medicine specialist with 30-years’ experience “showed that [the expert] has practical knowledge as to whether anesthesiologists [like defendant] would ordinarily refrain from administering an epidural anesthetic under similar circumstances.” The court focused on Texas Civil Practice & Remedies Code section 74.401(c)’s requirement that a qualified expert be “board certified or has other substantial training or experience in an area of medical practice relevant to the claim” and “is actively practicing medicine in rendering medical care services relevant to the claim.”
The court held that based on the record, “we can only answer these questions in the affirmative.” In reaching this determination, the court discussed that based on the expert’s decades-long experience in delivering babies, and his experience in treating patients with difficulties like those involved here, “a trial court could reasonably credit his representation that he is familiar with the standard of care applicable to the administration of an epidural anesthesia in this case. The court went on to add, “Notably, this is not an instance in which a physician who practices in an altogether different medical field seeks to opine on the minutiae of anesthesiology. Here, the question is more general – whether an epidural is appropriate during labor when the fetus is ostensibly already showing signs of distress – a subject that a medical doctor who has delivered babies for decades would reasonably know about.”
- Grant v. Handal, No. 08-23-00336-CV, 2024 WL 1723948 (Tex. App.—El Paso Apr. 22, 2024, no pet.) (mem. op.).
Health Care Liability Claim Alleged
In this matter, a minor patient’s mother discovered in her son’s medical records a note erroneously stating that she had tested positive for HIV. The mother notified the doctor’s office about the error and was advised the note would be removed or corrected. The doctor’s office did not remove or correct the erroneous note, so the mother sued the doctor alleging this false information was “published…to various health care systems and staff members [and] republished locally and nationally to many other third parties.” The mother alleged she “is self-conscious in places and at times she was not before,” and that others treat her son, her husband and her differently “because of the damage done to her reputation and her character.” Claimant, however, failed to serve an expert report within the time allowed and the defendant doctor moved for dismissal of the claim under section 74.351 of the Texas Civil Practice & Remedies Code. The mother appealed.
The El Paso Court of Appeals began its analysis stating that when a claim “is based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement, a rebuttable presumption arises that it is a health care liability claim” (quoting Baylor Scott & White Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019)). In next addressing the “professional or administrative services” prong of a health care liability claim, the court stated, “The Texas Supreme Court has determined that the maintenance of accurate medical records, including ‘accurately recording diagnoses, among other things,’ falls within [the definition of professional and administrative services]” (citing and quoting Weems, 575 S.W.3d at 364-65). Finally, the court mentioned the requirement that the maintenance of accurate medical records at issue must “directly related to health care.” Christus Health Gulf Coast v. Carswell, 505 S.W.3d 528,534 (Tex. 2016)).
In applying this law to the facts, the court held the mother’s claim was presumed to be a health care liability claim because her claim was “based on a note made in her son’s medical records during his treatment.” Next, the court held the mother did nothing to rebut this presumption, and pointed out that the Texas Supreme Court has held that a similar complaint of inaccurate medical records – which is contrary to applicable standards of medical care – asserts a health care liability claim (citing Weems, 575 S.W.3d at 366).
The patient also complained that (1) she was entitled to an oral hearing on this and other issues, and (2) the trial court did not rule her request for an oral hearing (as opposed to ruling based on the parties’ written submissions). First, the El Paso Court noted that due process does not require an oral hearing when dispositive motions like Chapter 74 expert report dismissals or summary judgment motions are at issue (citing Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998); McKinney v. Lee Bivins Found., No. 07-20-00273-CV, 2021 WL 2639922 (Tex. App.—Amarillo Jun. 25, 2021, pet. denied)). Second, with respect to claimant’s failure to rule complaint, the court noted the trial court’s “order granting [the defendant doctor’s] motion to dismiss stated that ‘the Court denies all relief not expressly granted in this judgment.’ In other words, the trial court implicitly denied all [other] pending motions.”
- Kosar v. KPA Consolidation, No. 14-22-00911-CV, 2024 WL 1633646 (Tex. App.—Houston [14th Dist.] Apr. 16, 2024, no pet.) (mem. op.).
Sufficient Expert Report – Possible Independent Contractor
This case appears to involve a slight twist on the usual scenario involving independent contractor staff physicians. “Appears” being the operative word because this opinion only discusses information in the claimant’s expert report and does not discuss what claimant alleges in her live petition.
The issue presented involves claimant’s claim against one of many defendants – Kingwood Hospital. In claimant’s Chapter 74 expert report, the expert discusses numerous claims against the hospital that involve the patient’s transfer from Kingwood to another facility, as well as the treatment of the patient at Kingwood between the time the transfer was ordered and the time the patient actually left Kingwood. A number of the complaints against Kingwood in the report reference actions/decisions made by the on-call surgeon at Kingwood. The hospital objected to the report as being inadequate on alleged breaches of the standard of care and causation.
In the trial court, the hospital argued any expert report complaints about the on-call surgeon were inadequate because “it had no control over the surgeon’s actions or decisions and therefore any breach of the standard of care [the surgeon] committed could not be attributable to it.” In reversing the trial court on this issue, the First District Court of Appeals stated, “At this stage of the legal proceedings, however, the legal relationship between a doctor and a hospital is not relevant and therefore not a valid objection” (citing Harvey v. Kindred Healthcare Operating, Inc., 578 S.W.3d 638 (Tex. App.—Houston [14th Dist.] 2019, no pet.)). The court went on to state “the fact that the on-call surgeon may have been an independent contractor would not be a proper basis for dismissing a health care liability claim under the expert report rule.”
What is generally seen when claimants are trying to tie a hospital to the actions of a staff physician is an allegation of agency by estoppel or ostensible agency in claimant’s live petition (see Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013)). Based on this opinion, it seems claimants do not even need to do that. It seems claimants can simply have their expert report state the hospital is responsible for the doctor’s actions and that is enough at this stage of the proceedings.
- Alani Consulting, Inc. v. Goerner, No. 05-23-00323-CV, 2024 WL 1459877 (Tex. App.—Dallas Apr. 4, 2024, no pet.) (mem. op.).
Local Rule Evidentiary Limitations
This appeal involved a prior Dallas County and 162nd District Court limitation of summary judgment evidence to twenty-five pages. While the Dallas Court of Appeals ruled holding defendants to this limitation was an abuse of discretion by District Judge Eric Moye, this opinion must be read carefully. It applies to an earlier limitation (which has since been amended/updated) and was based on the fact that this earlier limitation did not comply with an earlier provision about when such requirements are valid. Based on currently existing requirements, the current limitation might be valid.
- Jaffer v. Maestas, No. 01-23-00541-CV, 2024 WL 1260281 (Tex. App.—Houston [1st Dist.] Mar. 26, 2024, no pet.).
Not a Health Care Liability Claim
The defendant physician performed a breast augmentation on the patient. The patient alleged that when she woke up in the recovery room following the surgery, the surgeon was inappropriately touching her and having her inappropriately touch him. The patient sued the physician but did not timely serve the physician an expert report. The physician moved to dismiss the suit, but the trial court denied the motion; the physician appealed.
The court acknowledged that because the underlying facts implicate “the defendant’s conduct during the course of a patient’s care, treatment, or confinement,” the patient “must rebut the presumption that her claim is a health care liability claim.” The court then reasoned that “[b]ecause [the patient] does not complain about the procedure itself or any professional or administrative services connected with the health care she received, safety is the only possible relevant standard [to consider].”
The First District Court of Appeals held the patient had not alleged a health care liability claim for the following four reasons. One, the patient did not complain about the procedure itself; she complained about the doctor’s conduct after the procedure as she recovered from anesthesia. Two, nothing indicated the patient consented to the doctor’s actions in any way. Three, “the only possible relationship between the alleged sexual assault and the breast augmentation procedure is that it happened in a surgical recovery room and was committed by the physician.” Fourth, proof of the patient’s claim does not require any expert testimony, or any “professional medical judgment to conclude the allegations of sexual assault by a treating physician fall outside acceptable safety or medical standards.” The court reasoned, “as our sister court concluded in a similar sexual assault claim, ‘it would defy logic’ to suggest that [this] sexual assault, is an inseparable part of the rendition of medical care or a departure from accepted standards of health care” (citing and quoting Wasserman v. Gugel, No. 14-09-00450-CV, 2010 WL 1992622 (Tex. App.—Houston [14th Dist.] May 20, 2010, pet. denied)).
- Louis v. Liberty Co. Emergency Medical Services, Inc., No. 14-22-00671-CV, 2024 WL 1103024-CV (Tex. App.—Houston [14th Dist.] Mar. 14, 2024, no pet.) (mem. op.).
Health Care Liability Claim
An ambulance patient complained about a bill for charges related to “BLS emergency transport” and “BLS disposable supplies” alleging deceptive trade practices because he did not receive “basic life support transport.” In holding a health care liability claim was alleged, the court stated, “It is clear [the patient] does not believe that he received the level of care for which he was billed. However, he received some level of service and/or care. Liberty County EMS supported its motion to dismiss with evidence establishing that it was a licensed emergency services provider in 2019 when [the patient] received care aboard the ambulance. Both [the patient’s] pleadings and affidavit establish that he was transported by ambulance and received health care from Liberty County EMS. For example, [claimant] acknowledged that Liberty County EMS checked his vital signs. Therefore, we are confronted with another situation in which the conduct of the health-care provider and the determination of the care provided is at issue. The resolution of [the patient’s] challenge to the level of the care provided to him and appropriate commensurate billing for those services is not within the lay knowledge. Therefore, the fact-finder would need expert testimony to confirm whether (1) the care received by [the patient] was ‘basic-life support’ as he was billed for and (2) the amount [the patient] was charged was appropriate from the services provided.” Thus, a health care liability claim had been asserted.
- Solomon v. Buckle, No. 01-23-00349-CV, 2024 WL 1098204 (Tex. App.—Houston [1st Dist.] Mar. 14, 2024, no pet.) (mem. op.).
Health Care Liability Claim
Here claimant alleged that false information was submitted to her disability benefits insurer based on actions by two physicians resulting in termination of her disability benefits. Claimant alleged one physician falsely and intentionally represented that she performed certain examinations, and made certain observations and findings, and that the other physician negligently signed the Physician’s Statement provided to her disability carrier conveying the alleged misrepresented examinations, observations, and findings. The issue presented was whether this claim involved “professional or administrative services,” and, therefore was a health care liability subject to the expert report requirements of Texas Civil Practice & Remedies Code section 74.351.
Relying on an analogous/similar Texas Supreme Court case (Baylor Scott & White v. Weems, 575 S.W.3d 357 (Tex. 2019)), the First District Court of Appeals held plaintiff’s claim was a health care liability claim, despite her contention the statements at issue were made in an insurance form (as opposed to a medical record) that “affected her outside the context of her medical treatment and assessment.” The court decided this was a “professional or administrative services” claim for the following reasons. One, “all the information contained in the form [submitted to the insurer] purports to be based on the medical services rendered to [the patient] as part of her care and refers to future care. Hence, the allegedly false statements made in the insurance form are every bit as directly related to health care as the allegedly false statements in Weems.” Second, “Texas law prohibits physicians from engaging in ‘unprofessional or dishonorable conduct that is likely to deceive or defraud the public’” (citing Tex. Occ. Code §§ 164.052(a)(5), 164.053(a)), and “[t]he Texas Medical Board is statutorily authorized to take disciplinary action against a physician who engages in this type of conduct” (Tex. Occ. Code §§ 164.051(a)(1), 164.052(a)(5), 164.053(1)). Finally, “the acts listed as violations by the Board demonstrate that false statements to insurers may qualify as unprofessional and dishonorable conduct subjecting physicians to discipline” (citing 22 Tex. Admin. Code § 190.8(2)).
- Perez v. Hanawa, No. 13-23-00234-CV, 2024 WL 851543 (Tex. App.—Corpus Christi Feb. 29, 2024, no pet.) (mem. op.).
Insufficient Expert Report – Causation
The patient complained of an intestinal perforation that occurred during an ERCP (endoscopic retrograde cholangiopancreatography). The patient started complaining about twenty minutes following the procedure, and interpretation of subsequent imaging suggested an intestinal “perforation.” Within a few hours of the ERCP, exploratory surgery was performed. One or two perforations were found and repaired. The patient, however, later developed sepsis and required long-term acute hospitalization.
The patient timely served an expert report. The issue presented involved whether the report adequately addressed causation. The defendant doctor complained that the expert report “fails to connect the [patient’s] sepsis to a breach of the standard of care.” The defendant doctor further complained that the only opinion that might be considered to address causation states, “rapid recognition of free perforation combined with rapid surgical repair would have limited morbidity following the perforation event,” and that this is a conclusory and insufficient opinion. The defendant doctor also complained about the report’s failure to address the foreseeability component of causation.
The Corpus Christi Court of Appeals agreed, stating the report failed to explain how any breach by the defendant doctor caused the patient’s injury, explaining the report’s statement “‘[r]apid recognition of free perforation combined with rapid surgical repair would have limited morbidity’ even when considered with the entire report, is a conclusory statement that does no more than opine that the breach potentially caused some injury” (emphasis in original). Because this was claimant’s initial Chapter 74 expert report, the Corpus Christi Court stated claimant “should be given an opportunity to cure the deficiencies in the report,” and remanded the case “for further proceedings consistent with this opinion.”
- Memorial Hermann Health System v. Mason, No. 14-23-00306-CV, 2024 WL 805618 (Tex. App.—Houston [14th Dist.] Feb. 27, 2024, no pet.) (mem. op.).
Report Served Was No Expert Report
Patient alleged she was sexually assaulted by a certified nurse assistant while she was sedated. She asserting the hospital was vicariously liable for nurse assistant’s sexual assault and directly liable for negligent supervision of the nurse assistant. The patient did not dispute the hospital’s contention that her claim was a health care liability claim.
The Chapter 74 report provided by claimant came from her primary care physician and briefly discussed adverse effects that can be caused by sedation. The report then stated, “It is my medical opinion that if [the patient] suffered harm or injury within the first several hours after sedation, then, to a reasonable degree of medical certainty, the hospital breached the standard of care.” The hospital moved for dismissal of the claim arguing the report was so deficient it was no expert report at all. The patient argued any deficiencies were curable and asked for thirty days to cure the report if it was determined to be deficient. The Fourteenth District Court of Appeals agreed with the hospital that the report provided was “no report.” In reaching its decision, the court stated,
Far from indicating that [claimant’s] claims have merit, [the expert] does not indicate that [claimant] has a claim at all. [The expert], does not make a single factual allegation about the Hospital, any hospital employee or class of employees, or any event occurring in the Hospital. She does not even represent that [the patient] was ever hospitalized. Although [the expert] speaks generally about procedural sedation and says that “[a] patient may require assistance after the procedure,” she does not allege [the patient] has ever undergone any procedure, in or out of the Hospital. [The expert] concludes her report with the statement, “It is my medical opinion that if [the patient] suffered harm or injury within the first several hours after sedation, then, to a reasonable degree of medical certainly, the Hospital breached the standard of care.” But [the expert] does not contend that [the patient] did suffer any harm or injury, or that [the patient] was ever sedated, or that any such harm or injury was sustained “within the first several hours after sedation,” or that the Hospital or any of its employees did something that should not have been done, or failed to do something that should have been done, or in any way caused [the patient] any harm or injury at any time.
- Ramsay v. Ferguson, No. 07-23-00392-CV, 2024 WL 769537 (Tex. App.—Amarillo Feb. 23, 2024, no pet.) (mem. op.).
Expert Qualifications
This is a Chapter 74 expert report case in which defendants challenged the qualifications of claimant’s experts, two nursing home administrators. Here a 73-year-old died in an assisted living facility from hypothermia following a power outage caused by a winter storm. The lawsuit alleged failure to (1) provide a safe environment, (2) monitor the patient, (3) properly equip the facility, and (4) prevent the patient from developing hypothermia. Claimant served Chapter 74 expert reports from two nursing home administrators and a medical doctor actively practicing forensic pathology.
Defendants challenged claimant’s experts arguing they were “unqualified as a matter of law” to address applicable standards of care and breach because they “are not medical care providers who treat patients.” Defendants further challenged the administrator experts because they are “‘businessmen, not licensed health care professionals,’ and…they have no training in the diagnosis, care, or treatment of the physical infirmity that caused [decedent’s] illness and death.” The trial court denied the motion and defendants appealed.
In affirming the trial court’s denial of defendants’ motion to dismiss, the Amarillo Court of Appeals pointed out that “the statutory definition of ‘health care provider’ includes a director, manager, or employee of a health care institution and ‘health care’ includes any act performed by a health care provider if it relates to a patient’s medical care, treatment, or confinement.” Thus, “licensed nursing home administrators may qualify as experts under the statute” (citing Hollingsworth v. Springs, 353 S.W.3d 506 (Tex. App.—Dallas 2011, no pet.)).
The court went on to point out that “[claimant’s] claims against [defendants’] do not arise from the diagnosis, care, or treatment of [decedent’s] hypothermia. Rather, her claims allege that the assisted living facility and its staff failed to provide [decedent] with a safe physical environment and that this failure led to [decedent] suffering from hypothermia…Therefore, an expert report in this case must demonstrate expertise in the standard of care applicable to an assisted living facility in maintaining a safe physical environment for its residents.” The court went on to explain that the administrator experts were qualified to address standard of care and breach because, “As shown in their reports, both [experts] have experience with policies and procedures for the provision of care to residents of assisted living facilities,” and “because they are practicing health care providers with the requisite licensing, education, and experience in administration necessary to fulfill the requirements of the statute” (citing Hollingsworth, 353 S.W.3d at 516-18)).
The Amarillo Court added that claimant’s forensic pathology expert did not need to be qualified to address applicable standard of care and breach because claimant’s two administration experts were properly qualified that issue and that there was no abuse of discretion in holding this physician was qualified to address decedent’s cause of death from hypothermia because this physician “had years of training in forensic pathology, [] experience as a medical examiner, and [performed] more than 1,500 autopsies.”
- Ruffin v. Henry, No. 14-22-00886-CV, 2024 WL 717692 (Tex. App.—Houston [14th Dist.] Feb. 22, 2024, pet. filed) (mem. op.).
Appeal of Justice Court Dismissal
A pro se plaintiff appealed to county court at law the dismissal of her Harris County justice court claim against a physician for failure to serve an expert report. After moving to recuse the first county court judge, the case was transferred to a second county court. This county court dismissed her claim in this “appeal” of the justice court’s dismissal of her claim, and ordered she pay defendant’s attorney’s fees. Claimant then appealed that county court ruling to the Fourteenth District Court of Appeals.
On review, the Fourteenth Court pointed out that most of the seven issues raised by claimant on appeal “are not supported by any discernable argument or citation to applicable legal authority or to the record,” as required, even of a pro se litigant.
Two additional key things to remember are pointed out in this opinion. First, “A case on appeal from a justice court is tried de novo in the county or district court in which the case is filed” (citing Tex. R. Civ. P. 506). Second, while parties on appeal to a court of appeals have the right to request oral argument to assist in resolution of an appeal (citing id.), that does not mean a party is entitled to oral argument. The Fourteenth Court pointed out that this case was properly submitted for determination based on the briefing because “the issues are authoritatively settled.”
