Medical Malpractice, Winter 2010
December 8, 2010
Several opinions interpreting health care liability claims came out of Texas’ appellate courts this year which are favorable to the defense of such claims and specifically demonstrate the courts’ expansion of the definition of a health care liability claim and tightening of the standard by which medical malpractice plaintiffs must prove their claims in those cases involving the provision of emergency medical care. This newsletter highlights two of those cases and demonstrates the benefits to health care provider defendants in current and future medical malpractice actions.
THE DEFINITION OF A “HEALTH CARE LIABILITY CLAIM” EXPANDED
Marks v. St. Luke’s Episcopal Hospital
The Texas Supreme Court recently expanded the definition of a health care liability claim, when it held that a plaintiff’s claims against the hospital for injuries arising from the improper operation of a hospital bed constituted a health care liability claim and was thus subject to the expert report requirements set forth under article 4590i or the Medical Liability and Insurance Improvement Act.1,2 Factually, Plaintiff Irving W. Marks fell in his hospital room several days following surgery.3 Mr. Marks alleged his fall was caused by the footboard on his hospital bed, which collapsed as he attempted to use it to push himself up from the bed into a standing position.4 He sued the hospital, asserting that the hospital was negligent in (1) failing to train and supervise its nursing staff appropriately; (2) failing to provide him with the assistance he needed for daily activities; (3) failing to provide him with a safe environment in which to recover; and (4) supplying him with a hospital bed which was negligently assembled by the hospital’s employees.5 Mr. Marks agreed that claims (1) through (3) were health care liability claims, but that claim (4) was akin to a premises liability claim and thus not subject to the procedural requirements of a health care liability claim.
Defendant St. Luke’s Episcopal Hospital filed a motion to dismiss the case against it, asserting that all of Plaintiff’s pleadings constituted a health care liability claim, which was required to be substantiated by a timely-filed expert report. The trial court granted St. Luke’s motion to dismiss.6 After several decisions, the court of appeals affirmed the trial court’s judgment of dismissal for failure to timely file an expert report, but notably one dissenting justice argued that Plaintiff’s fourth claim concerning the defective footboard constituted a premises liability claim instead of a health care liability claim. The Supreme Court of Texas granted Mr. Marks’ petition for review to consider the issue.
Mr. Marks argued that the defectively attached footboard presented an unsafe condition, which constituted a premises liability claim as opposed to a health care liability claim.7Directly following, he argued that his defective-bed-claim involved ordinary negligence instead of a departure from accepted standards of health care or safety, and thus, no expert report was needed.8 On review, the Supreme Court went into a lengthy analysis of the definition of a “health care liability claim” and determined the issue was whether St. Luke’s alleged failure to provide its patients with a safe bed implicatedparticular standards which were comprised by the definition of a health care liability claim.9
Ultimately, the Supreme Court rationalized that Mr. Marks’ asserted injuries were caused by St. Luke’s failure to maintain or assemble a hospital bed.10 Further, the Court reasoned that Mr. Marks’ claim was concretely based on the failure of a piece of equipment which was supplied during his inpatient care. As such, the Supreme Court held that medical equipment particular to a specific patient’s care or treatment was “an integral and inseparable part of the health care services provided.”11 Simply put, because the unsafe or defective condition of the hospital equipment injured a patient, the Supreme Court reasoned this was a health care liability claim.12 Given that Mr. Marks failed to timely file an expert report, the Supreme Court determined that this cause of action, like the others, should be dismissed with prejudice.13
What does this mean? This expansion of the definition of a health care liability claim affords the defendant-provider the procedural and substantive benefits of such a claim. Specifically, it forces a plaintiff to produce an expert report (an extra procedural hurdle to jump), even in those cases which appear to be based upon a general liability or premises liability claim, so long as the plaintiff was a patient at the health care institution at the time the alleged negligent act occurred, even if the alleged negligent act did not arise out of the actual provision of “health care” per se, so long as the act arose out of a situation deemed “an integral and inseparable part of the health care services provided” to the patient – such as a properly functioning hospital bed.
THE EMERGENCY MEDICAL CARE STANDARD EXPANDED
Turner v. Franklin, M.D.
As most practitioners know, there is a provision in the Texas Civil Practice & Remedies Code (Section 74.153) that sets forth an elevated standard of negligence in cases involving emergency medical care. Based on recent Texas case law interpreting the scope and application of this provision, attorneys defending providers in an emergency care setting can now argue that a plaintiff is required to establish at trial that the Defendant-provider deviated from the applicable standard of care “with willful and wanton negligence.” The recent Dallas Court of Appeals decision, Turner v. Franklin, M.D., construed Texas Civil Practice & Remedies Code § 74.153 broadly to signify that even if a plaintiff’s condition was ultimately diagnosed and treated as a non-emergency, it still may constitute “emergency medical care” as defined by Chapter 74, if the care was provided in the emergency department setting and the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy.14 In other words, so long as the provider has a concern that the patient’s condition could present an emergency, the statute applies, even it is ultimately diagnosed and treated as a non-emergency.
By way of background, § 74.153 governs health care liability claims for injuries or death arising from the provisions of “emergency medical care” in a hospital emergency department, or in an obstetrical unit or surgical unit immediately following the evaluation or treatment of a patient in a hospital emergency department. It states that, for such claims, the claimant
may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the claimant shows by a preponderance of the evidence that the physician or health care provider, with willful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances (emphasis added).15
More particularly, “emergency medical services” is defined under § 74.001(7) as “bona fide emergency services provided after the sudden onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy” (emphasis added).
Based on this definition, the Court in Turner concluded that “bona fide emergency services” signified any action or effort undertaken in a good faith effort to diagnose or treat a mental or physical disease or injury by any system or method, or the attempt to effect cures of those conditions. And if the services were provided during the time period and circumstances as set forth under § 74.001(7), they constitute “emergency medical care.” By way of example, the Court held that this standard specifically applied to a radiologist in that case reading films from home via tele-radiology, even though his reading of the film diagnosed a non-emergent condition.
The Court also clarified that the “willful and wanton” component of the statute is equivalent to a gross negligence standard, requiring proof of both the objective and subjective elements of that standard.
Essentially, this ruling establishes that “emergency medical care” is not limited to only circumstances when a physician actually diagnoses a condition as an “emergency” and then treats it accordingly. Instead, the Court’s finding states that as long as a diagnosis and treatment of the patient’s condition – upon presentation to the emergency department – could reasonably be expected to constitute and emergency, even if it turns out not to be – the care and treatment of that condition constitutes “emergency medical care” under the statute. Consequently, in order to find the physician who was providing such care liable, the plaintiff must show by a preponderance of the evidence that the provider deviated from the applicable standard of care “with willful and wanton negligence.” This is a much higher standard of proof than the preponderance of the evidence standard applied in medical negligence cases which simply requires the plaintiff to show that the defendant-provider more likely than not provided negligent care, with no “intent” component required. The emergency medical care standard requires a prospective versus a retrospective review.
What does this mean? In a nutshell, plaintiffs filing suit against health care providers related to care provided in an emergency department setting, as discussed above, will be required to prove their case against the provider at the more stringent willful and wanton standard, so long as the provider perceived the condition as a potential emergency upon initial presentation, regardless of whether the condition was ultimately diagnosed and treated as an emergency.
1 Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 666 (Tex. 2010).
2 Article 4590i is the predecessor statute to Chapter 74 of the Texas Civil Practice & Remedies Code and cases interpreting the Article, such as this one, are equally applicable to Chapter 74.
3 Id. at 660.
6 Id. at 661.
7 Id. at 662.
10 Id at 664.
13 Id. at 665.
14 Turner, et. al. v. Franklin, —S.W.3d—, 2010 WL 3192938, (Tex. App.—Dallas, August 13, 2010).
15 Tex. Civ. Prac. & Rem. Code § 74.153.
16 Tex. Civ. Prac. & Rem. Code § 74.001(7).