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?