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.