Southeast Texas Record

Saturday, February 22, 2020

Ordinary negligence, medical malpractice can't be pursued in same claim, Texas SC says

By Steve Korris | Dec 22, 2010


AUSTIN – Parents who didn't sustain a malpractice claim against a doctor can't pursue it as a case of ordinary negligence, the Supreme Court of Texas decided on Dec. 17.
The Justices dismissed emergency medicine specialist Dr. Roy Yamada from a suit Laura Friend and Luther Friend filed over the death of 12-year-old daughter Sarah.
"Clearly, particular actions or omissions underlying health care liability claims can be highlighted and alleged to be breaches of ordinary standards of care," Justice Phil Johnson wrote.
"But if the same underlying facts are allowed to give rise to both types of claims, then the Texas Medical Liability Act and its procedures and limitations will effectively be negated," he wrote.
"Plaintiffs will be able to entirely avoid application of the TMLA by carefully choosing the acts and omissions on which to base their claims and the language by which they assert their claims," he wrote.
In 2004, Sarah collapsed at a municipal water park in North Richland Hills.
Park workers and a rescue team from the local fire department administered first aid and sent her to a hospital, where she died.
The parents sued the city and individuals in Tarrant County district court, claiming an automated external defibrillator would have saved Sarah.
They later joined Yamada to the suit, alleging he recommended safety practices and procedures at the park.
They claimed he breached a duty to exercise ordinary care.
Yamada moved to dismiss, arguing the Friends didn't file an expert report as medical malpractice law requires.
They answered that he provided faulty advice and recommendations, not medical care.
District Judge Robert McGrath denied the motion, and Second District appeals judges in Fort Worth partially affirmed him.
Second District judges found McGrath should have applied medical malpractice law to a claim that Yamada negligently advised the city where to place defibrillators.
The Friends didn't appeal the decision about defibrillators, but Yamada appealed the decision about ordinary negligence.
All nine Justices agreed with the doctor.
"The Friends' claims against Dr. Yamada cannot be split into health care and non health care claims by pleading that his actions violated different standards of care; all their claims must be dismissed," Johnson wrote.
He wrote that the Friends would measure his conduct by ordinary standards as opposed to standards requiring specific expertise in health care.
"But it would be hard to find a health care liability claim in which some action by the health care provider or physician arguably would not be within the common knowledge of jurors, and thus would support a claim for ordinary negligence," he wrote.
"This case is a prime example of such a claim," he wrote.
Kevin Carey and Bonnie Bleil represented Yamada.
Darrell Keith, Courtney Keith, Arin Schall and Jeffrey Kobs represented the Friends.

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