Texas Case Law Updates

Below are highlights of Texas Appellate Court cases (unless otherwise specified) from mid-February through June.?

Relation Back

The TX Supreme Court ruled that diligence in attempting service of process prevents the running of limitations for as long as plaintiff labors to achieve service and will relate back to the date of filing if service is diligently performed.? Diligence means trying to achieve service as if one wanted to do it, not merely as if one had to do it.? The analysis is that of an ordinary prudent person, examining the time it took to secure citation, service, or both, and the type of effort or lack of effort expended in procuring service.? Texas State University v. Tanner

Duty to Defend?

TMLT did not have a duty to defend an insured physician when the claims brought by a former patient against the physician were based on financial exploitation and were unrelated to the physician’s care for the patient.? In Re Texas Medical Liability Trust

Whether Case is Health Care Liability Claim

A case was a health care liability case when a Plaintiff sued a doctor about a note that the doctor had included in the medical records of the son of the Plaintiff, incorrectly stating that the Plaintiff had HIV.? The Appellate Court reminded that health care liability claims do not distinguish between departures from the standard of care that are intentional versus merely negligent.? Grant v. Handal???

A case was not a health care liability case when a patient sued her plastic surgeon for a $4,000 deposit that she had made for liposuction when the patient cancelled and sought a refund for the surgery.? The lawsuit was for violations of the Deceptive Trade Practices Act and was unrelated to treatment, lack of treatment, departure from accepted standard of medical care, or services related to health care.? Lopez v. Herrera

A case was not a health care liability claim when a minor child who was struggling with behavioral issues and enrolled in a treatment program fell asleep in a van that was transporting her as part of that treatment program.? The van was left unattended, and the minor had to kick out a window to exit the van.? The minor filed lawsuit, asserting that she suffered personal injuries when she was negligently supervised.? The Appellate Court concluded that there was no “substantive nexus” between the safety standards allegedly violated and the provision of health care.? Texas Laurel Ridge Hospital v. Mainor?

Dallas and Bexar Counties sued pharmacies that prescribed opioid medication.? The pharmacies argued the claims should be dismissed because they were health care liability claims, and the Counties had not served expert reports.? The Court of Appeals concluded that a county is not a person at common law and was not required to serve the pharmacies with an expert report.? The court’s denial of the pharmacies’ motions to dismiss was affirmed.? Albertson Companies v. County of Dallas

This Harris County case revolved around an attending physician’s false statement to Plaintiff’s disability benefits insurer resulting in discontinuation of disability benefits.? The dispositive issue was whether the lawsuit fell within the Texas Medical Liability Act when a motion to dismiss was filed after Plaintiff failed to serve an expert report.? The Court concluded that an expert report was required because creation of a false record concerning medical treatment and assessment is a health care liability claim.? This is bolstered by the likelihood that the claim would require Plaintiff, Defendant, or both to put on expert testimony at trial.? Dismissal was warranted.? However, the case was NOT remanded to determine attorney’s fees, which had not been conclusively proven, because Defendants did not request that the Appellate court reverse and remand to allow them to prove the amount of attorney’s fees.? Solomon v. Buckle

In a case about whether a lawsuit revolving around billing violations during emergency transport was a health care liability claim , the Court concluded that it was.? The Plaintiff received some level of care from EMS, and the EMS company was a licensed emergency services provider.? The resolution to Plaintiff’s challenge to the level of care provided and appropriate commensurate billing is not within lay knowledge and expert medical testimony would be required.? Therefore, the lack of compliance with Chapter 74 warranted case dismissal.? Louis v. Liberty County Emergency Medical Services

A lawsuit was not a healthcare liability claim and did not need an expert report when a patient was “offensively touched” by her physician as she came out of surgery.? The sexual assault was not an “inseparable part of the rendition of medical care.”? In addition, no expert testimony was required to conclude that the actions fell outside acceptable safety or medical standards.? Jaffer v. Maestas???????

Chapter 74 Medical Authorization?

This is the first Chapter 74 medical authorization case since the TXSC’s ruling in Hampton v. Thome.? A reminder that in Hampton, the Court ruled that when an authorization requires modification, the statutory consequence is abatement, not revocation of tolling.? Three exceptions to this are as follows:? 1) the form is so grossly deficient that it could not be called a medical authorization; 2) the authorization form is a “bad-faith attempt to mislead the defendant”; or 3) the form is fraudulent.? In this Appellate Case, there were no allegations about the Chapter 74 authorization being fraudulent, completed in bad faith, or grossly deficient.? Therefore, the trial court’s order dismissing the underlying lawsuit was reversed, and the case was remanded.? Emergy and Allison v. HCA

Chapter 74 Cases:? Adequacy of Expert Report

A Houston trial court granted Houston Methodist Hospital’s motion to dismiss, finding the expert report was conclusory to causation.? The Appellate Court overturned the ruling, finding that the expert report provided a fair summary of how proximate cause was going to be proven and provided a basis for the trial court to conclude that the claims had merit.? Zinsmeister v. Houston Methodist Hospital

Licensed nursing home administrator experts were qualified to address standard of care when a resident of an assisted living facility died from hypothermia.? A forensic pathologist and medical examiner were qualified to opine on causation.? The trial court did not abuse its discretion by the denying motion to dismiss.? Ramsay v. Ferguson

An amended chapter 74 expert report was sufficient in discussing the expert’s opinions on standard of care and breach even though a “more robust discussion” could have been provided.? The expert report requirement is a low initial threshold intended to deter frivolous claims, not to dispose of claims regardless of their merit.? Horndeski v. Price?

A patient was sexually assaulted by a CNA while she was sedated.? Plaintiff’s expert report did not describe the standard of care, nor did it describe the breach or causation.? It did not allege that someone committed malpractice.? Further, the author of the report was not shown to be qualified to offer expert opinions to the hospital.? The report was so deficient that it did not constitute an expert report and did not meet the minimal requirements necessary to obtain a 30-day extension to cure.? Memorial Herman v. Mason???

The Court concluded that the expert report failed to explain how a doctor’s breach, failing to order a CT scan with contrast, caused the patient’s injury.? In addition, it was not clear from the report what the injury, harm or damages was.? The report also failed to address foreseeability.? However, it was not deficient enough to constitute no report so an opportunity should be given to cure the deficiencies in the report.? Dr. Perez v. Hanawa?

When Plaintiff failed to serve an expert report and Defendants did not file the Motin to Dismiss for about a year after the expert report was due, the Court examined whether Defendants waived their procedural right to dismiss.? In examining this issue, the Court held that engaging in discovery has little bearing on the intent to waive the right.? Although the time elapsed in litigation should be taken into consideration, the case was never set for trial or pre-trial hearing nor was there a scheduling order in the record.? Defendants had not sought any affirmative relief and had not engaged in settlement negotiations, so this did not indicate waiver.? The Court concluded that Defendants conduct did not clearly demonstrate their intent to waive the right to dismissal.? Therefore, the case should be dismissed with prejudice and awarding of attorney’s fees and court costs.? Med Care Emergency Medical Services v. Rincon

The trial court abused its discretion when it dismissed plaintiff’s claims.? The Appellate Court found that the expert report adequately addressed a theory of liability.? Kosar v. Kingwood Medical Center

In determining whether an expert report constitutes an “objective good faith effort”, the trial court must view the report in its entirety, rather than isolating specific portions or sections, to determine its sufficiency.? It may not consider an expert’s credibility, the data relied on by the expert, or the documents the expert failed to consider.? The trial court’s judgment denying the motion to dismiss was affirmed.? Garcia-Cantu v. Gonzalez

The Appellate Court found that an expert’s report linked how and why the breach by a doctor and a facility led to a patient’s suicide, affirming the trial court’s overruling of objections to the expert report.? Shrestha v. Johnson

Exemplary Damages

In an underlying case about a construction property damage, the Supreme Court of Texas reminded that “a divided jury does not support exemplary damages.”? CPRC Chapter 41.003 governs exemplary damages.? The standards say that exemplary damages may only be awarded if the jury is unanimous in finding liability and in the amount of exemplary damages.? In addition, the claimant must prove “by clear and convincing evidence” the elements of exemplary damages.? It is the claimant who bears the burden to obtain the findings necessary to impose exemplary damages, including by challenging a divided verdict as infirm or in need of clarification.? Oscar Renda Contracting v. Bruce

Obtaining Medical Records

The underlying case involved a personal injury auto accident, and compensation was sought for past and future medical expenses.? The Defendant sought an executed medical authorization from Plaintiff, which Plaintiff refused to sign.? Defendant filed a motion to compel, which was denied.? Defendant filed an Application for Writ of Mandamus, arguing that the trial court abused its discretion.? The Court of Appeals of Texas, Houston found the following:? 1) the medical records are relevant; 2) Plaintiff’s production of medical records with her initial disclosures does not preclude the Defendant from requesting that Plaintiff execute a medical release; 3) Defendant was not required to pursue a motion to compel against the medical providers prior to moving to compel the Plaintiff to execute the medical release; and 4) asking the Plaintiff to execute a medical authorization is not impermissible under Rule 196.? The mandamus was granted, and the trial court was ordered to vacate the order denying the motion to compel.? In Re Austin Maintenance & Construction

Abortion

The TX Supreme Court vacated a trial court's injunction and clarified when a physician can perform an abortion. The physician must exercise "reasonable medical judgment" that a woman has a life-threatening physical condition that places her at risk of death or serious physical impairment unless an abortion is performed. A physician can intervene before imminent death or serious physical impairment. However, pregnancy itself is not a life-threatening condition. Additionally, abortion is not permitted based solely on the unborn child having an abnormal condition. An unborn child's diagnosis must be coupled with reasonable medical judgment about the mother's life-threatening physical condition.? State of Texas v. Zurawski