A Texas appeals court has ruled that a lawsuit brought by a federal employee against a hospital where she was working can proceed.
Nina McNew was an employee of Westat, doing government-funded statistics research at Lyndon B. Johnson Hospital in Houston, when she allegedly contracted breast cancer from a radiation device in close proximity to where she was working.
In August 2017, McNew sued the Harris County Hospital District for negligence, asserting the hospital breached its duty by, “placing [McNew] in an office that was immediately adjacent to a powerful x-ray machine that emitted powerful radiation,” according to the 14th Circuit Court of Appeals ruling.
In June 2018, the hospital filed a motion to dismiss, claiming McNew’s case was a health care liability claim, and should have been, “dismissed for McNew’s failure to comply with TMLA (Texas Medical Liability Act) expert-report requirement.”
The trial court overruled the motion, and the appellate court upheld that decision in a ruling issued Feb. 27.
Among the factors cited by the three-judge panel was that the hospital had not met the burden of proving McNew’s claim was a health care liability claim.
In the ruling written by Justice Meagan Hassan, the appeals court noted that under TMLA, health care liability claims are brought, “against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant.”
McNew was not at the hospital to receive medical treatment, the court noted, but in her capacity as a researcher who recorded statistical data.
Case law cited in the appellate ruling included Ross v. St. Luke’s Episcopal Hosp (Texas, 2015.)
“Because McNew did not assert a claim based on facts implicating the Hospital’s conduct during any care, treatment, or confinement of McNew, no rebuttable presumption arose that McNew’s claim is a health care liability claim, so the Hospital bore the burden of proving that McNew’s claim is a health care liability claim,” the court wrote.
McNew died on Sept. 8, 2018.