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.

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.

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. 

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.

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.