Rebecca Simmons and Melanie L. Fry 2012-12-26 02:19:13
Health Care Claims The Texas Supreme Court expanded the breadth of health care liability claims in two cases: Texas West Oaks Hospital, LP v. Williams, 371 S.W.3d 171 (Tex. 2012) and Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012). In Texas West Oaks Hospital, a psychiatric technician, Frederick Williams, was injured while supervising a mentally ill patient. Williams sued his employer, West Oaks Hospital, for negligence based on inadequate training, supervision, risk-mitigation, and safety. Williams did not serve an expert report as required under the Texas Medical Liability Act. He argued that his claims were not HCLCs because he was not a patient and his negligence claims were based on his employment. See Tex Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13), 74.351(a), (b) (West 2011). The Supreme Court rejected Williams’ arguments and held that a claimant need not be a patient to implicate the “health care” prong of the health care liability claims definition as long as a physician-patient relationship is involved. See 371 S.W.3d at 178–79, 181. Furthermore, if expert testimony is necessary to prove or refute the claim, then it is an HCLC. Based on the gravamen of Williams’ claims, the court held they were HCLCs. The court also broadly interpreted the “safety” prong of the HCLC definition, concluding that the “safety” component need not be directly related to the provision of health care. Id. at 186. Moreover, a claim based on safety does not require a patient-physician relationship. This expansive interpretation significantly affects nurses and other employees of physicians and health care providers. As a result of its broad interpretation of the Texas Medical Liability Act, the court recognized that an employee of a non-subscribing employer under the Texas Workers’ Compensation Act whose claims fall under the definition of an HCLC must follow the requirements of the TMLA, while an employee of a subscriber will continue to pursue his claims under the TWCA. Id. at 187. In Loaisiga v. Cerda, the Texas Supreme Court confirmed the expansive application of the TMLA that creates a rebuttable presumption that a claim is an HCLC if it is against a physician or health care provider and implicates the defendant’s conduct during the course of a patient’s care, treatment, or confinement. 379 S.W.3d at 252. Two women sued Dr. Raul Ernesto Loaisiga and his professional association for assault and other claims. The court confirmed that an assault claim is not an HCLC. But the claimant has the burden to conclusively establish that (1) there is no complaint about any act of the provider related to medical or health care services other than the offensive conduct; (2) the alleged offensive contact was not pursuant to actual or implied consent; and (3) the only possible relationship between the alleged offensive contact and the rendition of medical services or healthcare was the setting of the offensive act. The court also held that the TMLA expert report requirements apply to HCLCs against defendants alleged to be directly or vicariously liable. Id. at 263. In Rusk State Hospital v. Black, No. 10-0548, 2012 WL 3800218 (Tex. Aug. 31, 2012), the Texas Supreme Court held that an appellate court may consider whether a governmental entity has immunity for the first time on interlocutory appeal. The court of appeals erred by refusing to consider the hospital’s immunity claim because immunity implicates courts’ subject-matter jurisdiction. However, the court remanded the case to the trial court to develop the record on immunity. In Centocor Inc. v. Hamilton, 372 S.W.3d 140 (Tex. 2012), a unanimous Texas Supreme Court applied the Learned Intermediary Doctrine to prescription drug manufacturers. It held “that a prescription drug manufacturer fulfills its duty to warn end users of its product’s risks by providing adequate warnings to the intermediaries who prescribe the drug and, once fulfilled, it has no further duty to warn the end users directly.” Id. at 157. Furthermore, the court refused to recognize a direct-to-consumer advertising exception based on the facts of that case, and held the Learned Intermediary Doctrine is not an affirmative defense. Id. at 162-166. Workers Compensation Claims The Texas Supreme Court significantly narrowed the claims available to a workers’ compensation claimant in Texas Mutual Insurance Co. v. Ruttiger, 381 S.W.3d 430 (Tex. June 2012) (5-4). It reversed Aranda v. Insurance Co. of North America, 748 S.W.2d 210 (Tex. 1988), and held a workers’ compensation claimant can no longer recover for breach of the duty of good faith and fair dealing. 381 S.W.3d at 433, 446-451. Moreover, a claimant has no cause of action under the Insurance Code for unfair settlement practices. The court continues to recognize actions under the Insurance Code for misrepresentations of an insurance policy. Negligent Hiring and Supervision In Wansey v. Hole, 379 S.W.3d 246 (Tex. 2012) (per curiam), the court held that a negligent hiring claim “requires that the plaintiff suffer some damages from the foreseeable misconduct of an employee hired pursuant to the defendant’s negligent practices.” Id. at 247. Punitive Damages and Gross Negligence In U-Haul International Inc. v. Waldrip, 380 S.W.3d 118 (Tex. 2012), the court discussed the evidence necessary to support a punitive damages award for gross negligence. A jury awarded punitive damages to Talmadge Waldrip after he was injured by a U-Haul truck. Id. at 121. Reversing the award, the court focused on the missing subjective element of gross negligence. Waldrip contended U-Haul acted with conscious indifference by allowing a truck to be rented after it became aware of mechanical problems reported in its database. But absent positive proof of knowledge of problems by management, actual knowledge could not be imputed to U-Haul based on one entry in a massive database. And although a U-Haul officer hired an inexperienced manager, the officer was not subjectively aware of the risk of hiring the manager. One cannot be liable for gross negligence when one subjectively believes that circumstances pose no risk, even if one is wrong. Id. at 141. REBECCA SIMMONS is a former appellate justice and district court judge who chairs the Texas Supreme Court Judicial Committee on Information Technology and teaches at St. Mary's Law School. MELANIE L. FRY is an associate in the San Antonio office of Cox Smith Matthews Inc. She previously served as a law clerk for Texas Supreme Court Justice Don R. Willett.
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