1st COA--Doctors Hospital v. Hernandez

In this case, Doctors Hospital and Nurse Price challenged the trial court's denial of their motion to dismiss and objections to Plaintiff's expert reports.  This undeniably tragic case arose from the death of Cynthia Hernandez just eight hours after delivering her daughter.  Plaintiffs filed the expert reports of Harold Miller, M.D., an ob-gyn, and Traci McManaman-Bridges, a registered nurse.

Defendants first claimed that Dr. Miller was not qualified to serve as an expert because his experience was all in teaching hospitals, such as Ben Taub Hospital and not in smaller, tertiary care hospitals.  The COA rejected this claim, sating that the relevant inquiry must be guided by CPRC 74.402, which states:

(a) For purposes of this section, "practicing health care" includes:

(1)training health care providers in the same field as the defendant health care provider at an   accredited educational institution; or
(2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider.
(b)In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person:
(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.
(c) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness:
(1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and
(2) is actively practicing health care in rendering health care services relevant to the claim.

The COA held that Dr. Miller was qualified as he was a board certified ob-gyn in practice since 1967 with extensive practical and teaching experience.  Defendants also claimed that Dr. Miller was not qualified to opine as to the conduct of the nurses.  The COA also rejected this argument.  Dr. Miller stated that he had experienced working with nurses and was familiar with the standard of care for nurses.

In their second point of error, Defendants claimed that Dr. Miller's expert report was insufficient because it contradicted the medical records.  The COA reiterated the rule that only the four corners of the expert report can be considered in a motion to dismiss.  Finally, Defendants claimed that the report was conclusory as to causation.  The COA held that the report sufficiently linked the conclusions to the facts of the case.  The trial court's decision was affirmed.

See the opinion at Doctors Hospital v. Hernandez

AAPS v. Texas Medical Board

The 5th Circuit reinstated claims brought by the Association of American Physicians and Surgeons (AAPS) against the Texas Medical Board (TMB). 

AAPS filed suit against TMB in 2007 alleging (1) manipulation of patient complaints; (2) conflict of interest by the former chairman of the DRC; (3) arbitrary rejection of a decision from an administrative law judge; and (4) retaliation.  TMB asserted numerous defenses and filed a motion to dismiss which was granted by the district court.

On appeal, the Fifth Circuit considered whether AAPS had standing to sue for its members' grievances.  The Court looked to Hunt v. Wash. St. Apple Adver. Comm'n's rule on associational standing which holds that "An association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit."  432 U.S. 333, 343 (1977). 

The Court focuses on the third prong--whether this suit would require participation of the individual members in the lawsuit.  It examined cases from the Third, Seventh, and Tenth Circuits in which Hunt has been applied.  Finally, the Court held that AAPS's claims supported the grant of associational standing.  It noted:

AAPS's complaint alleged, among other things, abuses perpetrated on physician by means of anonymous complaints, harassment of doctors who complained about the Board, and conflicts of interest by decision-makers.  If practiced systematically, such abuses may have violated or chilled AAPS members' constitutional rights.  Proof of these misdeeds could establish a pattern with evidence from the Board's witnesses and files and from a small but significant sample of physicians.  Because AAPS seeks only equitable relief from these alleged violations, both the claims and relief appear to support judicially efficient management if associational standing is granted.

Click here for the Court's opinion. 

Click here to see AAPS' take on the opinion. 

Inappropriate Use of Cardiac Stents = Many Lawsuits

NY Doc faces suit over cardiac stents

Using Interpleader to Resolve Liens

Recently we settled a case in which the Plaintiff had received care at the VA Medical Center in Houston.  Both sides were concerned about resolving the VA lien.  Plaintiff's counsel contacted the VA and was told that because VA patients are not charged, bills are not routinely created.  Because we had notified them of the settlement, they would put our case "in line" to create a bill and let us know the amount of the lien.  They could not tell us how long this would take. 

The plaintiff in this case was disabled and his family needed the settlement money for his ongoing care.  In order to expedite the handling of the lien, we filed an interpleader petition.  We served the petition on the Regional Counsel and the VA Medical Center.  Within days, we got a call from the Regional Counsel advising us that she was working on the lien.  Within about two weeks, and prior to the interpleader hearing, we had written confirmation of the amount of the lien.  We were able to fund the settlement and pay the lien amount without a long delay. 

Has anyone tried this as a means of resolving a Medicare lien?



Post on October 2010 TMB Meeting

Notes and Thoughts on October 28, 2010 TMB meeting

Click here to be taken to Health License Defense's summary of the meeting.

Hospital Malpractice Claims Increase for Third Consecutive Year

Check out Leah Greene's post at Kroger Frisby.

Gannon v. Wyche; Petition for Review filed

The health care providers filed a Petition for Review in the Texas Supreme Court on November 5, 2010.

See the docket page at Docket DB.

See my summary of the appellate opinion at 14th COA; Gannon et al v.-Wyche; expert reports. 

Investing in Lawsuits

NYT Business Day

The New York Times has an article today on investors funding personal injury lawsuits, including medical malpractice cases.  The articles references the Texas cases filed by Jared Woodfill against BNSF for failing to provide safety equipment or warnings to employees working with creosote. 

What effect do you think this trend would have on resolving medical malpractice claims in Texas? 

SCOTX extends electronic briefing rules

SCOTX blog

Check out Don Cruse's post on the new electronic briefing rules in the Texas Supreme Court.

Supreme Court hears oral arguments in an expert report case

On Tuesday November 9, 2010, the Supreme Court heard oral arguments in an expert report/no report case.  Below is the summary from Osler McCarthy, the Court's staff attorney for public information.  Click on docket for links to the briefs and procedural history of this case. 

Tyler Scoresby, M.D. v. Catarino Santillan, No. 09-0497 (Docket)

In this appeal from a trial court’s failure to dismiss a health-care liability suit, a principal issue is whether an expert report can be so deficient in addressing the elements of a claim that it constitutes no report at all, requiring dismissal instead of an extension to cure the defects. Santillan sued over alleged mistakes during surgery on a minor son’s nasal tumors that led to bleeding and his partial paralysis. Dr. Scoresby, an ear-nose-throat surgeon, moved to dismiss the claim because Santillan’s expert report, by a neurologist, did not establish a care standard, show how the standard was breached or how the breach caused the son’s injuries. The report also did not include the expert’s credentials. Instead of dismissing the suit, the trial granted a 30-day statutory extension to cure a deficient report. Scoresby appealed that ruling, arguing to the court of appeals, as he does in this Court, that the expert report amounted to no report at all, requiring dismissal. The appeals court dismissed the doctor’s interlocutory appeal, holding that an extension to cure a deficient report could not be reviewed.

My thanks to Don Cruse and the Supreme Court of Texas blog. 

AMA - New AMA Policy Helps Guide Physicians’ Use of Social Media

AMA - New AMA Policy Helps Guide Physicians’ Use of Social Media

14th COA--West Houston Medical Center v. Priester; timeliness of an expert report

When does the clock start for an expert report when plaintiff has filed more than one lawsuit arising from the same incident?



In this interlocutory appeal, the COA considered whether the trial court was required to dismiss the claims against West Houston Medical Center because the plaintiff failed to serve it within 120 days of filing an original petition against a different defendant in a separate suit. 

Plaintiff sued an employee of WHMC in county court for sexual assault and intentional infliction of emotional distress. Counsel for the parties agreed on the record that this was not a health care liability claim and that no report was required.

Subsequently, Plaintiff sued WHMC in district court.  Within 120 days of filing suit, she served three expert reports.  WHMC objected to the timeliness of the reports, claiming they should have been served within 120 days of the suit against the employee. 

The Court rejected WHMC's arguments and held, "The filing of an original petition does not 'start the clock' for the claimant to serve expert reports on health care providers whom the claimant has never named as a party."  The COA also pointed out, "[E]ven when a defendant health care provider has been added to a pending suit by amendment of the petition, courts consistently have held that expert reports as to the claims against that defendant must be filed within 120 days after an amended petition first added that provider to the case." 

See the opinion at WHMC v. Priester.

14th COA--Kapoor v. Klovenski; expert report failed to state qualifications and causation in a failure to diagnose cancer case

The Estate of Margaret Klovenski sued Dr. Kapoor and alleged that he failed to diagnose her cancer.  Plaintiffs filed the expert report of Dr. Julie Graves Moy.   Dr. Kapoor objected and moved to dismiss.  He alleged that Dr. Moy (1) was unqualified; (2) offered only conclusory opinions about causation; and (3) failed to state the standard of care or Dr. Kapoor's breach.

The COA first discussed qualifications and referred to the Broders case.  The COA held, "Where a physician's failure to diagnose is alleged to have harmed a pt, an expert testifying as to causation must be qualified to opine about the effect of a timely diagnosis and treatment on the outcome."  Dr. Moy did not state any experience or credentials to demonstrate that she was qualified to testify about what treatments would have been available with an earlier diagnosis or whether earlier administration of potential treatments would have resulted in a more favorable outcome.  As a result, the COA held that the trial court abused its discretion in overruling Dr. Kapoor's objections. 

The COA also considered Dr. Kapoor's objections to Dr. Moy's statements on the causal link between his failure to diagnose cancer and Ms. Klovenski's death.  The COA noted that in opining on causation, the expert must offer more that a general opinion that timely diagnosis would have led to a better outcome.  In this type of case, the expert must explain how the complained-of harm would not have happened if the injury had been diagnosed in a timely fashion.  Because Dr. Moy failed to connect her conclusion to any specific facts regarding whether this cancer was treatable or how earlier treatment would have changed her prognosis, her report was insufficient. 

The COA remanded the case to the trial court to consider whether to grant Plaintiff a 30-day extension to cure the report.

See the opinion at Kapoor v. Klovenski.

This opinion was released on September 23, 2010.

Ten Things Your Expert Forgot to Tell You

Check out this helpful article from the ABA Litigation Section.

Ten Things Your Expert Forgot to Tell You

I personally once called someone to see if they would review a case.  His assistant seemed surprised at my request.  I then looked him up on the Medical Board site and found that he was under Board Order for abusing anesthesia drugs and had once been found passed out in an OR after self-administering drugs.  Lesson:  Always check licensure status before making the first contact!

Sometimes we get so enamored with our experts and their helpful opinions that we look at them as opposing counsel or the jury would.  A good practice would be to spend as much time researching your own experts as you do researching those retained by the opposing side.  While these aren't the most "fun" topics to discuss with your retained experts, finding out this information well in advance of a designation deadline could save you time and embarassment later in your case. 

My thanks to Francisco Ramos, Jr. for his great article. 

1st COA--Tien v. Alappatt; expert report; disclosure of risks

In this memorandum opinion, the COA held that Tien was required to file an expert report, despite his claim that no report was required because his claim cetnered on disclosure of the risks of a surgical procedure. 

Tien filed suit against Dr. Alappatt, claiming that Dr. Alapapatt should have disclosed the risks of a pan-retinal photocoagulation (PRP) on his eyes.  Tien filed an expert report.  Dr. Alappatt moved to dismiss because the report was insufficient.  The trial court agreed and dismissed the case with prejudice. 

On appeal, Tien did not argue that the report was sufficient; instead, he claimed that he did not need to file a report because of the nature of his claims.  He said that because the Texas Medical Board required certain disclosures that were not made, no expert report was required.  The COA referred to Supreme Court authority that has held that an action alleging a physician's failure to inform a patient fully of the risks of surgery is a negligence claim governed by the procedural requirements of the Medical Liability Act.  Because he failed to file a sufficient expert report, the trial court properly dismissed Tien's claim. 

See the opinion at Tien v. Alappatt.

1st COA--Mettauer v. Noble et al., objections to expert report

In this wrongful death case, Dr. Mettauer objected to the timely-filed expert report of Dr. Joseph Carey.  Dr. Mettauer claimed that Dr. Carey was not a qualified expert.  He claimed that because Dr. Carey did not perform thoracoscopic cardiac ablation, the procedure at issue in the case, he is not qualified as an expert. Dr. Mettauer also claimed that the Dr. Carey based his conclusions on assumptions or mistakes and did not provide the necessary causal facts to link Dr. Mettauer's procedure and the death.  After the initial hearing, Dr. Carey amended his report, but Dr. Mettauer lodged the same objections.  The objections were overruled and this appeal followed.

Dr. Mettauer's first challenge to Dr. Carey's expert report centered on misstatements and factual errors in the report.  In support of his position, Dr. Mettauer's counsel showed the trial court additional medical records, a PowerPoint presentation on the use of the surgical system, and Dr. Mettauer's answers to interrogatories.  Dr. Mettauer argued that the trial court should ave been allowed to consider this evidence and to take judicial notice of specific medical facts.  The appellate court denied this challenge, holding

• The appellate court may not engage in a review of the documents not relied upon by the expert.
• The trial court's role is that of a gatekeeper, not a factfinder.
• Extraneous information, which was not relied upon by an expert in making his determinations and which does not appear in the report, may not be reviewed in determining the sufficiency of an expert report.

The trial court then considered the challenge to Dr. Carey's qualifications.  Dr. Carey stated in his report that although he had not performed a  thoracoscpic cardiac ablation, he had done thorascopic procedures and he had done open cardiac ablations.  The appellate court held that this was sufficient to show that Dr. Carey had knowledge of the accepted standards of care for a  thoracoscpic cardiac ablation.

Plaintiffs sought sanctions against Dr. Mettauer for filing a frivolous appeal.  The Court noted that Dr. Mettauer's arguments regarding extraneous information were contrary to overwhelming weigh of authority.  However, it noted that his reasoning was based on prior case law (Baptist Hospitals of Southeast Texas v. Carter, 2008 WL 2917109 at *3, Tex. App.--Beaumont 2008, no pet. mem. op.) and that the more recent case that the Court relied on (Christus Health Se. Tex v. Broussard, 306 S.W.3d 934, 939 Tex. App.--Beaumont 2010, no pet.)  was issued only day before the notice of appeal was filed.  The Court did not award sanctions.

See the opinion at Mettauer v. Noble. 

9th COA--Ngo and Annavajjhala v. Lewis; expert reports, analytical gap in expert opinions

The 9th COA considered this appeal of Dr. Ngo and Dr. Annavajjhala's motions to dismiss for failure to serve an adequate expert report.  The case stems from the defendants' treatment of a newborn with Group B Streptococcus (GBS) infection.   On appeal, Dr. Ngo claimed that the trial court erred because Dr. Thach's report failed to explained how the infant's outcome would have changed if she accomplished the tasks identified by Dr. Thach sooner than she actually did.  She claims the report is insufficient because it is conclusory.  The COA agreed.  It held that the report contained analytical gaps with respect to connecting the criticisms about delays in treatment of the cause of the infant's death.  The report did not explain the expert's conclusions with enough specificity to allow the trial court to link the conclusions to the facts. 

Dr. Annavajjhala also argued that Dr. Thach's opinions fail to establish a causal link between her actions and the infant's injuries.  The COA noted, "In cases involving a pre-existing condition that results in the patient's death, an adequate explanation of causation would explain how the delays in the patient's treatment were substantial factors that caused the patient to lose his probability of surviving."   Dr. Thach's report did not address the infant's chances of survival.  Because the report provided an insufficient explanation of causation, it did not meet the requirement of Section 74.351.  The COA remanded the case for dismissal and and award of attorneys' fees and costs to the defendants.

See the opinion at Ngo v. Lewis.

4th COA; Thomas v. Clayton; no trial expert; res ipsa loquitur

The San Antonio COA affirmed the trial court's grant of Dr. Clayton's no-evidence motion for summary judgment.   During his deposition, Plaintiff's expert recanted his criticisms of Dr. Clayton, leaving Plaintiffs without an expert.  With trial less than thirty days away, Plaintiffs filed a motion asking the court for more time to secure an additional expert. Dr. Clayton then filed a motion seeking leave to file a no-evidence motion for summary judgment.  The Court denied Plaintiff's motion, allowed the MSJ, and ultimately granted the MSJ.

On appeal, Plaintiffs argued that the court abused its discretion in denying their motion for additional time to get a new expert.  The appellate court reviewed the decision under the abuse of discretion standard.  The COA noted that the case had been on file for approximately twenty-one months, that the DCO had been in place for seven months, and that the expert had been designated at least three months prior to his deposition.  They pointed out that Plaintiffs did not provide evidence of their due diligence in securing the testimony of the expert who ultimately changed his opinions. 

Additionally, the Court did not agree with Plaintiff's argument that the extension of time should have been considered under the Chapter 74 "one-time extension" for curing a deficient expert report. 

Plaintiffs then argued that res ipsa loquitur applied to their claim, thus negating the need for the expert.  The Court rejected this argument, holding the "the performance of a lumbar epidural steroid injection into the lumbar spine with the use of magnetic resonance imaging is clearly not within the common knowledge of a layman."

See the full opinion at Thomas v. Clayton.

10th COA--College Station Medical Center v. Todd; expert reports in a vicarious liability claim

Todd sued College Station Medical Center for injuries sustained in fall while she was a patient at the hospital.  Within the 120-day deadline, she filed the report of Nurse Foster.  CSMC filed objections.  After the 120-day deadline, Todd served two other reports.  At the hearing on CSMC's objections, the Court granted the objections as to direct liability claims against CSMC, but denied them as to vicarious liability claims.

Todd then amended her petition, deleting the direct liability claims, but adding a premises liability claim.  CSMC filed another motion to dismiss, alleging that no expert report had been filed.  At the hearing, the Court again granted the objections as to direct liability claims against CSMC, but denied them as to vicarious liability and premises liability claims.  CSMC appealed this decision.

CSMC argues that because the only timely-filed expert report was that of nurse who is disqualified from offering opinions on causation, dismissal was required.  The Court agreed that the nurse could not address causation.  Her report, standing along, did not constitute an expert report.  Because there was no report as to the direct liability of CSMC, there was no report as to the vicarious liability.

Plaintiff then argued that she did not need a physician-authored report on causation because the causation in this case could be commonly understood by laypeople.  The Court rejected this theory.  The statutory obligation to file a timely expert report remains even if causation is commonly understood. 

The COA then looked at whether the trial court should have dismissed the premises liability claims.  CSMC argued that these claims were an attempt to recast the health care liability claims.  The Court agreed and held that the premises liability allegations were based on a claimed departure of standards of care related to health care, safety, and professional and administrative services directly related to health care.  The Court pointed out that the duty owed by a health care staff is distinct from the duty of ordinary care owed by premises owners to their residents and invitees.

See the opinion at CSMC v. Todd.

14th COA--Gannon et al v. Wyche; expert reports

Lamar and Traci Wyche sued multiple health care providers in connection with the care of their premature daughter, Kyla.  They served the expert reports of Harley Rotbart, M.D. and NiKole Armstrong, RN.  The physicians and nurse practitioners named in the suit moved to dismiss on the basis of inadequate expert reports.  The trial court denied the motion and this appeal followed.

On appeal, the COA considered whether Dr. Rotbart could rely on the unsworn statement of Traci Wyche in formulating his opinions.  The statement was a day-by-day description of Kyla's condition.  It was signed by Mrs. Wyche and two witnesses.   The Court reviewed the report of Dr. Rotbart and concluded that Dr. Rotbart's reliance on the statement did not render his opinions conclusory or insufficient.  The COA noted the following:

• An expert report does not have to meet the same requirements as evidence offered in a summary judgment proceeding.
• The credibility and weight to be given the facts supporting the expert's opinions is an issue for trial. 

In their second issue, the nurse practitioners argued that the expert reports were insufficient as to causation.  The COA agreed with this point.  Dr. Rotbart's report focused solely on the standards of care, breaches, and casuation of the physicians.  There was no discussion of causation as to the nurse practitioners.  The Court then refused to remand the case for dismissal, stating that this was a deficient report, not a "no report."  The case was remanded for consideration of Plaintiff's request for a 30-day extension of time to cure the deficiencies in the reports.

See the opinion at Gannon v. Wyche.

SC--Garcia v. Gomez; Attorneys Fee when No Expert Report is Served

Thanks to David Walsh with Chamblee & Ryan  for this summary.

The principal issue is whether an attorney’s unchallenged testimony as to what he would have charged in a case, without more, legally supports an attorneys-fee sanction for filing a medical-malpractice claim without an expert report. Gomez first sued Garcia for medical malpractice, based on Dr. Garcia’s alleged failure to use a screen during surgery to prevent an embolism. The patient died after an embolism. When an X-ray revealed such a filter had been implanted, Gomez quit pursuing the claim, but did not nonsuit the case and did not file an expert report by the 120-day deadline. Garcia moved for attorneys fees under Texas Civil Practices and Remedies Code section 74.351(b). Garcia’s attorney testified without challenge as to reasonable fees in such a case. The trial court denied the motion for sanctions and the appeals court affirmed.

The Supreme Court HOLDS evidence existed of reasonable fees and that Garcia incurred the cost of those fees and section 74.351(b) mandates attorneys fees be awarded when expert reports are not filed within time limits. Although Garcia’s attorney’s testimony lacked specifics, it was not, under these circumstances, a mere conclusion but some evidence of what a reasonable attorney’s fee might be in this case. The statute limits the award to the lesser of the two, that is, the fee to be awarded is the lesser of a reasonable fee or the fee actually incurred. Testimony about reasonable fees then is not necessarily evidence about the fees incurred.

See the opinion at Garcia v. Gomez.

5th COA--Taylor v. Fossett; Expert Report must provide factual basis for trial court to infer causation

Thanks to Jenny Andrews of Wallach & Andrews for this summary.

The Dallas court of appeals issued an opinion in Taylor v. Fossett, 2010 WL 3328502 on August 25 holding that when an expert report can only express causation in terms of possibility and recites no facts supporting a causal nexus, the report is fatally deficient.

The plaintiff developed a postoperative C-section wound infection and claimed the physician failed to diagnose and treat it timely, causing her to have several revisions, a multi-week stay, a large scar and long term pain and suffering. The plaintiff's Chapter 74 expert (Adam Levine, M.D.) stated that if Dr. Taylor had re-evaluated her no later than 48 hours after his first check-up, one or more of the revisions "might" have been avoided and her hospital stay reduced. The trial court denied the second motion to dismiss (after agreeing that the first report was deficient in causation and allowing a 30 day period to cure), but the court of appeals held that the report was still deficient.

It found that the plaintiff was actually admitted to the hospital within 48 hours of the doctor's first check up, and with that circumstance, found no factual basis in Levine's report which explained why, if the plaintiff was actually seen and admitted to the hospital, regardless by whom, she could have avoided a longer hospital stay, could have avoided two surgeries and her scar would have been less unsightly.

Levine did not specify "what" exactly would have been minimized in this plaintiff's circumstances, and he certainly did not specify that any of her complications would have been absolutely avoided.

"Dr. Levine's report left the trial court to infer that the alleged delay in diagnosis and treatment proximately caused the additional surgery, pain and scarring without actually providing a factual basis for the trial court to so infer."

See the opinion at Taylor v. Fossett.

13th COA--Christus Spohn Hospital et al v. Lackey; Expert Reports in Survival and Wrongful Death Action

Thanks for Bruce Anderson of Brin & Brin in San Antonio for this case summary.

In Christus Spohn Health System Corporation, et al v Lackey, et al, the court held that the expert reports were adequate for the survival action, but not for the wrongful death action.  They sent the case back to dismiss the wrongful death cause of action (a 30 day extension had already been given). 

This is NOT the law in the 4^th Court of Appeals.  They believe that if the report is sufficient as to any part of plaintiff’s case, the motion to dismiss must be overruled.  This is a conflict that the Supreme Court will have to take on eventually. 

See the opinion at Christus Spohn Hosp. et al v. Lackey

5th COA--Turner v. Franklin; Applying the Emergency Medical Care Standard

This summary provided by Mike Wallach of Wallach & Andrews.

On August 13, 2010, the Dallas Court of Appeals issued an opinion making three important holdings regarding the emergency medical care standard set forth in section 74.153 of the Civil Practice and Remedies Code:

• The emergency medical care standard applies in ER cases even where the diagnosis made is a non-emergent condition;
• 
  
  The willful and wanton standard in the law means "gross negligence"; and
• 
  
  Summary Judgment is an available remedy to deny claims of gross negligence in this context.

Facts of the CaseThe case involves a 14-year old boy who presented at the ER with testicular pain. The symptoms could have been testicular torsion, which is an emergency, or epididiymitis, which is not. The doctors incorrectly diagnosed the boy with epididiymitis and sent him home with antibiotics and pain medication. Several days later, the boy was seen by an urologist and diagnosed with torsion. The delay in treatment of the torsion resulted in loss of the testicle.

Emergency Care
The Plaintiffs argued that the willful and wanton standard set forth in section 74.153 did not apply because the defendant doctors diagnosed the boy with a non-emergent condition. After reviewing the statutory definitions of "bona fide emergency services" the court concluded that the section must cover all emergency treatment regardless of the ultimate diagnosis. The Court explained this conclusion because (1) the diagnosis itself constitutes medical care covered under the statute, (2) the plaintiff's position would create an incentive for doctors to assume the worst to avoid liability, (3) the plaintiffs asked for the question to be a retrospective determination when the statutory language anticipated a prospective one.

Gross Negligence
The court also determined that "willful and wanton" is the equivalent of gross negligence. The court reached this decision by quoting portions of the House Bill 4 legislative debate in which a senator stated that the standard "is basically a gross negligence standard." The Court also cited other cases in which similar language was held to mean "gross negligence."

Summary Judgment
Finally, the Court rejected the notion that a claim of gross negligence under the statute could not be denied on summary judgment. While the Court explained that, in light of the subjective nature of the elements, "summary judgment usually will be inappropriate," it can be available under certain circumstances. In fact, the Court upheld the summary judgment granted to one of the defendants.

See the opinion at Turner v. Franklin.

13th COA--Loaisiga v. Cerda; expert reports

Plaintiffs Cerda and Velez filed a health care liability against Dr. Loaisiga and his PA alleging sexual assault during physical examinations.  Plaintiffs denied that these were health care liability claims, but "out of an abundance of caution," they timely filed the expert report of a physician.  Dr. Loaisiga and his PA filed objections to the report, which were overruled by the trial court.  Dr. Loaisiga and his PA appealed.

On appeal, the COA agreed that these claims were not health care liability claims.   The Court pointed out that this was not a case where the physician's conduct could feasibly be explained as part of the rendition of health care services or treatment.   Because no expert report was required, the trial court was correct to deny the motion to dismiss.

As to Dr. Loaisiga's PA, the appellate court referred to Plaintiff's Petition and noted that no allegation of medical negligence were made against the PA.  As a result, no expert report was required.

See the opinion at Loaisiga v. Cerda et al.

14th COA--UTMB v. Malveaux; Tort Claims Act

The Fourteenth COA heard UTMB's accelerated appeal of the trial court's denial of their plea to jurisdiction. (UTMB had several other points on appeal as well.) This case stemmed from Ms. Malveauz's surgical treatment for breast cancer. UTMB claimed that because Ms. Malveaux's true claims were for lack of informed consent and medical negligence. Plaintiff argued that her claims were for misuse of tangible property, i.e. the physicians had miused equipment in performing her surgery. The trial court sustained all of UTMB's claims.

COA Opinion

3rd COA--Carroll v. Donau et al.; Tort Claims Act

Plaintiff Janet Carroll appealed of the trial court's order granting dismissal of her claims against eight nurse defendants. The Austin COA affirmed the trial court's judgment.

Carroll filed suit against Seton Healthcare Network, who was operating as a "hospital distrcit management contractor." As such, Seton was a "governmental unit" entitled to the protection of Texas Tort Claims Act. After Carroll joined the eight nurses, who were employees of Seton, Seton filed a motion to dismiss under the Tort Claims Act's election-of-remedies provision. Tex. Civ. Prac. & Rem. Code 101.106 The trial court granted the mtion and dismissed the claims against the nurses.

On appeal, the COA relied on the Texas Supreme Court's reasoning in Mission Consolidated Independent School District v. Garcia, 253 S.W.2d 653, 658-659 (Tex. 2008). The Court held, "[b]ecause the Tort Claims Act is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unti, whether it is sued alone or together with its employees, are assumed to be 'under the [Tort Claims Act]' for purposes of section 101.106." Id.

Because Caroll's suit against Seton was a suit under section 101.106, her claims against the nurse-employees were barred.

COA opinion

SC--Speegle v. Harris; validity of a hospital lien

The Supreme Court denied the Motion for Rehearing of the Petition for Review in Speegle v. Harris Methodist. The Petition for Review was denied on May 28, 2010. This was a case from the Fort Worth Court of Appeals.

This case stems from treatment provided at Harris Methodist after Mr. Speegle was in auto accident. The hospital's charges were $142,915.01. They filed a hospital lien pursuant to Chapter 55 of the Texas Property Code. Harris Methodist did not bill Medicare for any of its charges. The lien was included in Mr. Speegle's settlement from the auto accident. After receiving the settlement proceeds, Mr. Speegle did not pay the hospital and filed this declaratory action seeking an order that the hospital lien was not valid. The trial court granted summary judgment for the hospital. On appeal, the Fort Worth COA stated:

...under HCFA and CMS regulations, after the 120-day "promptly" period ends, whenever services provided to a Medicare beneficiary are also covered by a liability insurance policy, providers have the right either to bill Medicare or to maintain a lien against a potential liability insurance settlement.

An agency's construction of its own regulations is entitled to substantial deference.We, therefore, defer to the appropriate agency's construction of federal Medicare law granting appellees a federal right to maintain their lien against Speegle's liability insurance settlement in lieu of billing Medicare...

The hospital was allowed to maintain its lien and was not required to first bill Medicare for its service.

COA opinion

7th COA--THI v. Perea; appeal from trial verdict; damages

In this appeal from a jury verdict, the Court considered and overruled six evidentiary challenges.  In their last point on appeal, THI argued that the trial court's verdict should be modified to reflect the damages limitations in Chapters 41 and 74 of the Civil Practice and Remedies Code. 

The Court first held that the overall damages cap was applicable.  Because the judgment did not exceed the cap, the trial court properly applied it. 

The Court then considered whether 74.301(b) could be applied in conjunction with 74.303.  74.301(b) limits non-economic damages.  The Court found that because the two statutory provision do not conflict on their faces, they should both be applied to health care liability claims.  Thus, in this case, the trial court should have limited plaintiffs' non-economic damages to $250,000.  Plaintiff was not required to affirmatively pleas this as a defense in order to have the cap applied.

Finally, the Court held that the exemplary damages cap in 41.008 did not need to be affirmatively pled and should have been applied.  The Court also noted that the cap in 41.008 could be applied in conjunction with that in 74.303. 

See the opinion at THI v. Perea.



8th COA--Providence v. Barnes et al.; expert report, expert qualifications

In this appeal of a motion to dismiss for failing to serve an expert report authored by a qualified expert, the El Paso COA affirmed the trial court's decision. The case stemmed from care and treatment rendered to Plaintiff's mother at Providence. Plaintiffs served the reports and CVs of three experts: Michael Koumijan, M.D.; Juan Contin, M.D. and Angelica Tyler, R.N. Plaintiffs objected the reports, claiming they were inadequate and the authors were not qualified as experts. They also claimed that Dr. Contin's report was not an expert report at all.  

The COA first held that the three expert reports could be read together to determine if they met the standards for Chapter 74 expert report.  The COA then found that Dr. Koumijan and Nurse Tyler stated the standard of care for treating a patient undergoing an angiogram.  They also found the reports adequate as to causation. 

The COA then looked at the expert qualifications.  They overruled Providence's point that Dr. Koumijan was not licensed in Texas.  They then considered whether Dr. Koumijan, Chief of Surgery at a hospital in California, was qualified to testify as to the standard of care for nursing care and transfer of a patient.  Because his position "necessarily entails supervision of and interaction with the requisite health care providers,"  Dr. Koumijan was qualified. 

Providence also challenged the qualification of Nurse Tyler because she worked as a medical care investigator for the Attorney General in New Mexico, not in direct patient care.  The COA held that Nurse Tyler had education, certifications and experience in many areas of nursing.  They stated that her position as an investigator was akin to a consulting health care provider who is licensed, certified or registered in the same field as the defendant.

See the full opinion at Providence v. Barnes.