Sunday, February 20, 2011

Physician Discipline

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

Monday, February 14, 2011

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

Friday, February 11, 2011

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. 

Monday, February 7, 2011

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..