Southeast Texas Record

Wednesday, April 1, 2020

Texas SC opines no expert report needed in slip & fall against hospital

By David Yates | May 6, 2015

Three years ago, a Texas Supreme Court ruling blurred the lines on lawsuits against medical providers, theoretically requiring even slip and fall plaintiffs to file a medical expert report when suing a hospital.

On Friday, May 1, justices built upon their previous ruling, reversing and remanding a slip and fall case against St. Luke’s Episcopal Hospital that had been dismissed for lack of an expert report.

Plaintiff Lezlea Ross sued the Houston hospital after slipping in the lobby. She was visiting a patient at the time.

In response to the litigation, St. Luke’s moved for dismissal on the grounds Ross’ suit was a health care liability claim and she failed to file an expert report in compliance with the Texas Medical Liability Act, court records show.

To support its TMLA argument, the hospital cited a June 29, 2012, Texas Supreme Court decision, Texas West Oaks Hospital et al v. Frederick Williams.

The plaintiff in that case, Frederick Williams, was a caregiver employed by Texas West Oaks who sued the hospital after receiving an on-the-job injury injured while supervising a patient, court records show.

The high court opined that an on-the-job injury claim brought by a hospital worker was required to have expert report like those required in a traditional medical malpractice case.

As a result of the court’s decision, when a suable offense occurs in a health care environment, whether it is sexual assault, racial discrimination, or slip and fall, those cases could be considered a health care liability claim under the act.

Following the reasoning of the Supreme Court’s 2012 ruling, the trial court granted St. Luke’s motion to dismiss. An appeals court affirmed the decision, setting the case on a path to Texas’ highest court.

“Under this record Ross’s claim is based on safety standards that have no substantive relationship to the hospital’s providing of health care, so it is not an HCLC (health care liability claim),” opined Justice Phil Johnson in the court’s May 1 decision.

“Because her claim is not an HCLC, she was not required to serve an expert report to avoid dismissal of her suit. We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.”

Justice Debra Lehrmann, joined by Justice John Devine, offered a concurring opinion.

“I join the Court’s opinion and agree that the claims asserted in this case have no connection to the provision of health care,” writes Lehrmann.

“I write separately, however, to emphasize my concern that a statute intended to address the insurance crisis stemming from the volume of frivolous medical-malpractice lawsuits has become a nebulous barrier to what were once ordinary negligence suits brought by plaintiffs alleging no breach of any professional duty of care.”

The muddled lines between health care liability claims and “ordinary” lawsuits against medical providers have prompted legislation this session aimed at making sure plaintiffs who bring those ordinary suits aren’t herded under the umbrella of Texas’ tort reform laws.

On Jan. 27 state Rep. Chris Turner, a Democrat representing District 101, introduced House Bill 956, seeking to make sure only patients who bring med-mal claims have their damages capped.

“Under current law, if a person is assaulted or injured in a healthcare setting and seeks legal relief, they are subject to the liability limits and other provisions laid out in the Texas Medical Liability Act,” said Turner in a statement.

“I am confident that this was not the intent of the law and something must be done to address it this session. By making the definition apply solely to patients, we’ll ensure that a case filed by nurse who is sexually assaulted on the job or an electrician hit by a falling beam isn’t treated as medical malpractice.”

Texas SC case No. 13-0439

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