Is Laser Hair Removal Health Care? We’ll Have to Wait and See…

From Don Cruse's Supreme Court of Texas blog:

The Ghazali laser-hair-removal case is done

The Court had set Basith Ghazali, M.D. v. Brown, No. 10-0232 for oral argument in September. The case asked how the Texas medical-malpractice statute applied to laser hair removal — an issue on which the Dallas Court has also weighed in.

When argument day came, the parties asked the Court to postpone the argument pending a possible settlement. Today, the Court granted the parties' joint request to dismiss the case.

New Rules for Permissive Interlocutory Appeals; MSJ on Statute of Limitations?

Don Cruse, who writes the SCOTX blog, has a good discussion of the new rules for permissive interlocutory appeals.

I don't know how often we will have occasion to use this procedure in medical malpractice cases. One scenario that comes to mind is a Motion for Summary Judgment based on the statute of limitations. It's a question of law and early resolution of the issue could result in termination of the litigation. It seems that you could make a case that resolving whether the SOL had lapsed was an issue that should be decided on an interlocutory basis, possibly avoiding preparing and trying an entire case only to have the whole thing reversed on appeal.

Supreme Court Rules
SCOTX blog entry

HB 274 signed into law

Here's a link to the final version of the new laws on expedited dismissals, loser pays, and designation of responsible third parties.

HB 274.

Texas Physicians Urge Governor to Sign Medical Board Changes

Texas Physicians Urge Governor to Sign Medical Board Changes

Important changes included in the three bills do the following:

• Prohibit the filing of all anonymous complaints;
• Require the board to notify the physician when insurance companies, pharmaceutical companies, or third-party administrators file a complaint;
• Increase the time for a physician to respond to a complaint notice from 30 days to 45 days;
• Allow TMB to require a remedial action plan rather than impose a fine for a minor administrative violation;
• Allow physicians to tape the proceedings of a TMB informal settlement conference;
• Institute a seven-year statute of limitations on bringing a disciplinary action, mirroring the TMB rule on how long doctors need to keep a patient’s medical record; and
• Bind TMB to the ruling of an administrative law judge in a proceeding supervised by the State Office of Administrative Hearings.

"Loser Pays" Bill

Here is a link to HB 274, the latest in Texas tort reform:  HB 274.

Drop in Medical Malpractice Suits

Malpractice lawsuits plummet.

Settlement Credit Calculator

I've developed a spreadsheet to calculate settlement credits and compare the dollar-for-dollar and percentage credits.  You can plug in projected credits, verdicts, and percentages of responsibility to see the adjusted amount your client would have to pay under each credit option. 

I am having trouble uploading the calculator to the blog right now, but if you would like a copy, just email me at makhan@bostonhughes.com.

Supreme Court rules patient fall in the bathroom is a health care claim; Harris Methodist v. Ollie

The Texas Supreme Court issued a per curiam opinion in Harris Methodist Fort Worth v. Ollie today.  In this case, Plaintiff Ollie sued the hospital after slipping on a wet bathroom floor during her post-operative stay.  She alleged general negligence and medical malpractice, but later amended her petition to omit the medical malpractice claims.  When she failed to provide an expert report, the hospital moved for dismissal.  The trial court denied the motion and the Court of Appeals affirmed. 

The Supreme Court stated that in order to determine if Ollie's was a health care liability claim, it was required to look at the underlying nature of the claim.  "Thus, it is the underlying nature of Ollie’s claim that determines whether the claim is for a departure from accepted standards of safety relating to 'an act . . . that should have been performed or furnished by [Harris Methodist] for, to, or on behalf of [Ollie] during [Ollie’s] medical care, treatment, or confinement.'"  The claim went to whether the hospital should have provided services to keep her safe during her post-operative stay and was health care liability claim.

See the opinion at Harris Methodist Fort Worth v. Ollie.

New Jury Instructions as of April 1

The new plain-language jury instructions took effect on April 1. Here is a link to the new instructions:

Supreme Court re TRCP 281 and 284

I think the Committee did a great job preserving the spirit of the rules while making them much easier to understand. I'll let you know once I see them in action.

 

 

 

Conflicts of Interest

Study Finds Conflicts Among Panels’ Doctors

NY Times article on conflicts of interest among panelists making recommendations on guidelines for cardiovascular care.

SC: Turtle Healthcare Group v. Linan; recasting claims

This case considered whether claims based on the failure of a ventilator were subject to the MLA or whether they were ordinary negligence claims. The Court held that all of the claims were subject to the MLA. Because no expert report was provided, the claims were dismissed.

The Court pointed out that "all the Linans' claims are based on the same underlying facts and the Linans' pleadings are essentially that Maria's death was caused by Turtle's negligence in the "operation and/or maintenance of the . . . ventilator and/or its components and accessories." Thus, the claims could not be recast as battery or ordinary negligence claims.
See the opinion at Turtle Healthcare Group v. Linan.

SC: Stockton v. Offenbach; missing defendant and failure to serve expert report

Plaintiff Stockton tried to sue her former obstetrician for injuries incurred during the birth of her son. Dr. Offenbach was allegedly addicted to drugs at the time of the delivery. He lost his medical license in 2001 and presumably left Texas after that time. His whereabouts are unknown. Despite this, Stockton sought to find him in order to file this claim. She was not able to locate him before doing so on June 13, 2007. There was a delay in the trial court's granting her motion for substituted service. Citation was eventually accomplished and Offenbach was directed to answer the suit by April 28, 2008. By this time, the 120-day deadline for filing the expert report had passed.

Offenbach's insurance company hired an attorney to represent him. The attorney moved to dismiss the case because Stockton had not served the expert report within 120-days. Stockton responded that service would have been impossible because Offenbach could not be located and substituted service had not been approved. The trial court agreed that the deadline could not apply and denied the motion to dismiss. On appeal, the COA reviewed the claim de novo and concluded the MLA required dismissal. Stockton then appealed to the Supreme Court.

The Supreme Court first held that de novo was the appropriate standard of review because "whether the statute permits additional time beyond the 120-day deadline or is unconstitutional, as applied, are legal questions."

The Court then considered whether to apply a "due diligence" exception to the 120-day requirement. The Court declined to make a firm ruling on whether this exception is available in the service of expert reports, but instead said, "But even assuming that a due diligence exception applies to service completed after Chapter 74's expert report deadline, we are not persuaded that the evidence here is legally sufficient to raise the issue." It then noted that Stockton knew of the deadline when filing and allowed the 120-days to lapse before getting a ruling on her motion for substituted service. The Court further pointed out Stockton did not appear to inform the trial court of the impending expert report deadline and the need for immediate relief.

Finally, the Court considered whether the expert report deadline violated the Texas Constitution's open courts provision. The Supreme Court agreed with the COA finding that "there was neither evidence that compliance with section 74.351(a) was impossible nor evidence that the statute prevented Stockton from pursuing her claim."

It is important to note that the Court recognized the difficulty that plaintiffs can face in serving the defendant with citation—much less the expert report—within 120 days. The Court stated that although the purpose of the statute was to weed out frivolous claims, "That purpose would not be sacrificed, however, by calculating the expert report deadline from the date the physician or other health care provider becomes a party to the proceeding through service or appearance. Calculating the deadline from that date would also better fit the statute's requirement that the expert report is to be served on 'each party or the party's attorney.'"

See the opinion at Stockton v. Offenbach.

What are your thoughts on the standard suggested by the Court? Have you had experiences whether the defendant could not be served within 120-days? How did you accomplish service of the expert report?

SC—Samlowski v. Wooten; Thirty-Day Extensions

In this fractured opinion, the Court considered under what circumstances a trial court might abuse its discretion in denying a thirty-day extension to cure an expert report. In this case, the COA remanded the case back to the trial court for further proceedings. The Supreme Court agreed with the decision, but had no common reason for doing so. Justice Medina summarized the breakdown as, "Three members of the Court essentially agree with the court of appeals' analysis, three members disagree with that analysis and would reverse and render, and three members disagree with the court of appeals' analysis but would nevertheless remand in the interests of justice."

As is the case in almost all challenges to expert reports, the physician challenged the report as deficient as to how the care rendered caused the injury, harm or damages claimed. The trial court granted the motion and did not allow a thirty-day extension of time to cure the deficiency.

On appeal, Wooten claimed that he should have received the thirty-day extension. The COA held that the report was deficient "because it did "not represent a good-faith effort to summarize the causal relationship between Dr. Samlowski's failures to meet the applicable standards of care and Wooten's claimed injury, harm, and damages." But the COA then remanded the case back to the trial court to allow additional time to cure the deficiency, noting that the report was a good-faith attempt to comply with the statute that could be cured with a supplemental report.

On petition for review, Dr. Samlowski argued that the positions taken by the COA were at odds. Either the report was a not a good-faith effort and dismissal was warranted or it was a good-faith effort and a supplemental report should be allowed. It could not be both. He argued that the court of appeals was substituting its judgment for that of the trial court in finding that the report could be easily cured. Wooten argued that the trial court's discretion should be judged by the good faith efforts shown in the deficient report.

Judgment of the Court

The Supreme Court first explained that Section 74.351(c), which governs the thirty-day extension, provides no guidance on how the trial court should exercise its discretion in allowing these distinctions. "Guidance must come instead from the broader purposes of the Texas Medical Liability Act of which section 74.351(c) is a part." The Court looked at the principle of the Medical Liability Act which is to deter frivolous claims and preserve meritorious claims. In order to do this, the trial courts must consider whether the report is capable of being cured within the thirty-day period. "A trial court should therefore grant an extension when a deficient expert report can readily be cured and deny the extension when it cannot."

Justice Medina went on to explain the procedure that the claimant should follow if the report is deemed deficient and no extension is granted:

The claimant must therefore be prepared to cure a deficient expert report whether or not the trial court grants the claimant's motion. When, as in this case, the trial court simultaneously finds the expert report deficient, denies a motion to cure, and dismisses the underlying health care liability claim, the claimant must move the court to reconsider and promptly fix any problems with the report. This should further be done within the statutory, thirty-day period, thereby demonstrating that the report would have been cured had the extension been granted. If this is accomplished and the court refuses to reconsider, the now compliant report will typically establish the trial court's abuse of discretion.

Justice Medina then concedes that the report in this case was described as thorough and well-detailed, implying that a cure was likely possible. He points out that the statute was silent on what should have been done in this case to preserve the parties' rights. As a result, he agreed with remand to the trial court.

Read Justice Medina's opinion at Judgment of the Court

Concurrence

Justice Guzman disagreed with the procedures set forth by Justice Medina. She explained that the abuse of discretion should be judged by the initial report—not the amended report. She holds, "Therefore, as long as a claimant has filed a report (as defined by the statute), the specific deficiencies of a report should not determine whether the trial court should grant an extension. Rather, a trial court should be able to determine, based on the initial report, if a claim warrants an extension—that is, whether a claim could potentially have merit if the report were cured. A report from a qualified health care professional stating a belief that a plaintiff has a claim against a defendant, even though elements of the report are deficient, should be sufficient for a trial court to determine the curability of the report."

Justice Guzman ultimately held that the trial court abused its discretion in denying the motion for an extension to cure the report. She joined the judgment remanding the case to the trial court.

Read Justice Guzman's opinion at Concurrence.

Dissent and Concurrence

Justice Wainwright dissented in part, but concurred in the judgment. He also disagreed with Justice Medina's standard for reviewing extensions to cure expert reports as this procedure would increase time, costs, and undermine the purpose of the expert report requirement—which is to deter frivolous claims. He then argues that the standard of review for expert report challenges should be de novo. The review is based on documents, not assessment of witness testimony or other evidence. De novo review would promote consistency and predictability across the state. Applying de novo review, Justice Wainwright found that the report addressed all of the elements of the statute and that remand to the trial court for consideration of the extension was appropriate.

Read Justice Wainwright's opinion at Dissent and Concurrence.

Dissent

Justice Johnson and two other justices dissented from the judgment. He noted that the thirty-day extension was to be reviewed under the abuse of discretion standard and pointed out, "From the Legislature's establishing of a deadline for serving a report and directing that the suit shall be dismissed unless the deadline is met or the trial court grants an extension "in order to cure the deficiency," at least three criteria for the granting of an extension of time can be distilled. See TEX. CIV. PRAC. & REM. CODE § 74.351(c) (emphasis added). First, the deficient report must qualify as a report, albeit a deficient one. Second, the deficient report must have been served within the statutorily-specified time limit. Third, the deficient report will be cured during the extension if one is granted."

Because there was no evidence in the record to suggest that the report could have been cured if an extension were granted, the trial court did not abuse its discretion. Justice Johnson also pointed out that nothing prevented Wooten from curing the defects in the report. She did not file a supplemental report and did not seek rehearing of the trial court's ruling. Because she failed to avail herself of procedural measures, there was no basis to overturn the trial court's decision.

See Justice Johnson's opinion at Dissent.  

Bills pertaining to TMA

Jon Porter of Health License Defense has a helpful post on legislation affecting the Texas Medical Board. 

Key Legislation to Follow

Legislative Update

Friday, March 11 was the deadline for Texas legislators to file bills and resolutions.  Two bills of note to medical malpractice attorneys are:

HB 2452 (Zedler). Requires a health care institution owned by the state or a political subdivision of the state to provide written notice of the liability limits applicable to that institution in a health care liability claim; (2) the liability limits that would be applicable to a private institution; and (3) whether the physician or health care provider has liability insurance and the limits of that insurance.

HB 274 (Creighton) and SB 13 (Huffman) Allows the prevailing party to recover litigation costs, including attorney’s fees, travel expenses, fees for two expert witnesses, and court costs. If the claim is determined to be an abusive civil action, the attorney can be jointly and severally liable for the costs.

Overuse of the NICU

In Search of Cuts, Health Officials Question NICU Overuse

This NY Times article on changes to NICU policies and admissions immediately made me think of defending that future case in which a child was not admitted to the NICU when he or she should have been. I found it interesting that even Dr. Frank Mazza—who conceded that NICUs can be overused—would want his own wife and child to be in a hospital with a NICU with "the latest and greatest technology."

What are your thoughts? What problems do you foresee in defending baby cases where the use of NICU is an issue?

Physician Discipline

Board Disciplines 129 Physicians
After its February meeting, the Texas Medical Board announced rule changes and disciplinary action for 129 physicians.

14th COA; Beechnut Manor v. Paul

Beechnut Manor, a long-term care institution, appealed the trial court's denial of its motion to dismiss. Paul served an expert report which was challenged. The court granted a thirty-day extension of time to amend the report. A new report was faxed to Beechnut. Beechnut again moved to dismiss, claiming that the new report was untimely and did not cure the prior deficiencies. The trial court denied that motion.

On appeal, the COA noted that the amended report was due thirty-days after the Court's order granting the extension. This would have been April 23, 2010. Paul faxed her report to Beechnut on April 23, 2010 at 6:14 p.m. Under Rule 21a, service by fax that occurs after 5:00 p.m. is considered served the following day. The report was therefore untimely. The trial court had no discretion but to dismiss the claim.

Paul claimed that she did not receive notice of the trial court's order until April 2, 2010, which would have extended the deadline for the new report to May 2. The COA noted that there was no evidence in the record to support this claim. The COA admitted that this was a harsh result, but that it was up to the legislature to determine these deadlines and any grace periods that should be applicable.

See the opinion at Beechnut Manor v. Paul.

NY TImes article about federal malpractice reform

Malpractice Bill Raises Issues About a Lawsuit

Petition for Review Granted: Is Laser Hair Removal Health Care?

The Supreme Court has granted the Petition for Review in Ghazali v. Brown, an expert report case from Tarrant County.  In my quick review of the briefs, it appears that Dr. Ghazali challenged the expert report as insufficient as to him because it only discussed the care of a laser hair removal center.  A revised report was then submitted which made a cursory link between Dr. Ghazali and the center.  In response, Brown claims that this is not a health care liability claim and no report was required.  That, of course, begs the question:  If no report was required, why did she file one? 


Click here for a link to Electronic Briefs. 

Doan v. Christus St. Michael; 6th COA—expert reports and the Open Courts provision

In this appeal of the trial court's dismissal of her health care liability claims, Doan claims that the expert report requirements in Section 74.351 violate the Open Courts provision of the Texas Constitution. Doan's attorney passed away 100 days after the filing of her lawsuit. No one was appointed to handle her case and she was unaware of the attorney's death until after the 120-day deadline passed. She claims that the mandatory dismissal of her case is unconstitutional because it was impossible for her to serve an expert report. Christus argued that there was no impossibility because the expert report could have been served during the 100 days after the lawsuit was filed, and before the attorney died.

The COA noted that Texas courts have consistently held that Section 74.351 does not violate the Open Courts provision. The COA also noted that these cases construing the Open Courts provision have held that the Legislature has no power to make a remedy contingent on an impossible condition. In this case, however, it was not impossible to serve the expert report—it could have been served before the attorney passed away.

The COA pointed out that this result is not necessarily consistent with the purpose of Chapter 74. It stated, "We seriously doubt that the Legislature envisioned that this rule would summarily deny this claim––the purpose of the statute was to deter frivolous claims. But, in this matter, the Legislature removed all discretion from the judicial system, which inevitably leads to harsh and unintended results. Judges in Texas are allowed to exercise judgment and discretion in cases involving life and death, but in the filing of an expert report, the law prohibits it."

The dismissal of Doan's claim was upheld.

See the opinion at Doan v. Christus St. Michael..

Gov. Perry Calls for Expanded Lawsuit Reform in Texas

Office of the Governor Rick Perry - Press Releases - Gov. Perry Calls for Expanded Lawsuit Reform in Texas

TMB Announces New Medical Director

The Texas Medical Board announced Thursday that Linda Gage-White, M.D., will become Medical Director of the agency in mid-January.

Gage-White, an ear, nose and throat specialist, served on the Louisiana State Board of Medical Examiners from 2002 to 2010 as president, vice-president and as a member of the Licensure Committee and the Board's Malpractice Committee.

"We're very pleased to have someone of this caliber join the agency," said TMB Executive Director Mari Robinson, J.D. "Dr. Gage-White's extensive, relevant experience and her passion for patient safety will help fulfill the Board's mission of public protection."

A native of Fort Lauderdale, Florida, Gage-White graduated from Duke University and received her medical degree from the University of Miami School of Medicine. Gage-White interned at Mount Sinai Medical Center in Miami and completed her residency in otolaryngology at the University of Iowa Hospital and Clinics.

She has been affiliated with Louisiana State University Health Sciences Center for 25 years; she founded and served as director for the institution's  multidisciplinary cleft lip and palate clinic. She was in private practice for 10 years before accepting her most recent academic appointment in 2000. She is board-certified in otolaryngology and has taken part in charitable medical missions throughout the world.

Dr. Gage-White fills a position vacated by Alan T. Moore, M.D., TMB's previous medical director. State law requires that if the agency's executive director is a non-physician, a medical director be hired.

1st COA—Wilson v. Shanti, summary judgment after expert’s opinions excluded

Plaintiff Kimberly Wilson sued pain management physician Ishan Shanti, M.D. Ms. Wilson saw treatment for pain in her lower back and left leg. Dr. Shanti performed three sets of injections on Ms. Wilson. Each time, she received an injection on her right side and then would return a few days later for an injection on her left side. Ms. Wilson began to experience pain on her right side between the second and third set of injections. It intensified after the third set of injections.

Ms. Wilson designated Dr. Mark Barhorst as her expert. He wrote a report and testified that the third set of injections caused increased pain to Ms. Wilson's left side and introduced pain to her right side. During his deposition, he said that his opinion was largely based on Ms. Wilson telling him that the pain started after the third set of injections. He also claimed, without explanation, that his opinion would not be wrong if the pain started earlier. During her deposition, Ms. Wilson testified that the pain started after the second set of injections, contradicting her expert.

Dr. Shanti filed a motion to exclude Dr. Barhorst's opinion as unreliable because it was based on an erroneous misunderstanding of when the pain started. Dr. Barhorst prepared a supplemental report in which he stated that his original report and testimony were based on errors. He claimed that the revised facts did not change his opinions, but did not explain why. The trial court granted the motion to exclude Dr. Barhorst. Dr. Shanti then moved for summary judgment, which was also granted. Ms. Wilson's motion for new trial was overruled by operation of law. Ms. Wilson then appealed these three decisions of the trial court.

The COA reiterated that if an expert bases his opinion upon unreliable foundational data, any opinion drawn from that data is unreliable and no evidence. Dr. Barhorst repeatedly emphasized that a basis for his opinions was the belief that Ms. Wilson's pain started after the third set of injections. In his supplemental report, he attempted to correct the error by stating that the third set of injections was "the most proximate cause" of her pain. He did not provide a basis for this conclusion or explain why his ultimate opinion was the same, even though the underlying facts had materially changed. The trial court did not err in excluding Dr. Barhorst's opinions.

Because the trial court properly excluded the testimony of Dr. Barhorst, Ms. Wilson did not have any expert testimony. In a medical malpractice action, breach of the standard of care must be established through expert testimony. On appeal, she claimed that the affidavit of her treating physician, which Dr. Shanti had relied on in his motion, raised a fact issue as to causation. Because she did not raise that issue in the trial court, the appellate court could not consider it.

Finally, the Court noted that Ms. Wilson failed to brief her final issue as to the motion for new trial. Any error on that ground was waived.

See the opinion at Wilson v. Shanti.

NY Times article on Texas tort reform

State’s Tort Reform Makes Lawyers Wary of Taking on Patients