Malpractice: what is still at risk?

Recent Texas case law decisions have confirmed that the Medical Liability Act is working. The broader definition of health care provider and the expert report requirements have resulted in many plaintiffs losing their case without trial. In the last few years, numerous courts have continued to address several aspects of the Texas Medical Liability Act's scope:

1. What is an adequate report under §74.351?

2. When, if ever, can a plaintiff get around the 120-day report requirement?

3. Is assault and battery a health care claim or not?

4. Does the Medical Liability Act trump rule 202 presuit investigations of potential claims?

Recent decisions have also affirmed that other aspects of Texas tort reform, under both the Medical Liability Act and the Texas Tort Claims Act, have made plaintiff prosecution of health care providers more difficult. For example, Texas courts have confirmed the heightened burden of proof and partial immunity in situations of Good Samaritans and physicians who are governmental employees.

While tort reform has assisted the defendants and their insurance companies, claims adjusters also need to be cognizant of their duties to their insured during the claim and settlement process and assist their insured and the attorney assigned to represent the insured's interests. The “Stowers doctrine” is still the primary obligation of the adjustor. The Prompt Payment and Settlement of Claims section of the Insurance Code (1) may also be a trap for the unwary and/or untimely.

This article reviews recent cases addressing the requirement for an adequate report under chapter 74 of the Texas Civil Practice and Remedies Code, as well as application of the reform's statutory cap and emergency health care provisions.

FACTORS RELATED TO AN ADEQUATE REPORT UNDER §74.351

Timing of the report

In Texas, the adequacy of the 120-day report under §74.351 is frequently reviewed on appeal. Clearly, the simplest case concerns the timing of the report. If it is not served on the 120th day from the day the petition is filed, the plaintiff's case is subject to dismissal, along with ajudgment for attorney's fees against the plaintiff. For example, a patient's suit was dismissed when the plaintiff's attorney filed a notice of filing of the expert affidavit and a first amended notice of filing of the expert's curriculum vitae in court, without stating that those copies were served on the respective defendants. In another case, the plaintiff maintained that the mailbox rule applied and that the inadvertent failure to accompany the resume with the expert report should not be held as a death penalty sanction. The court of appeals stated that it did not believe it had any discretion under this statute and dismissed the case (2). A Beaumont court of appeals took a similar approach on a case in which the plaintiff filed the lawsuit but the physician was not served until over 6 months after the filing of the claim. The lawyer for the plaintiff filed the report and an amended report with the court but did not try to serve a copy upon the defendant doctor. When the physician answered through counsel, a dismissal motion was filed. The trial court denied the motion to dismiss, but the Beaumont court of appeals reviewed it and granted the dismissal, stating that no constitutional challenge existed, as the statute was clear: 120 days from the filing of suit, the health care provider or his attorney was to receive a copy of the expert report(s) (3).

The 120-day timing rule has been avoided in some cases by the plaintiff taking a nonsuit—i.e., voluntarily dropping the suit without prejudice. Under the old law, this worked. Under chapter 74, nonsuiting no longer works, as the health care filing of the original petition initiates the 120 days, not the suit. For example, husband and wife plaintiffs filed a suit and then dropped it after the 120-day time period had expired. They refiled their suit later, arguing that the filing of the new suit allowed them to restart the 120 days. They lost that issue (4).

Another attack on the 120-day rule has been based on claims that the 120 days cannot run during the time of an abatement or during an incapacity by the plaintiff. In one case, a mother lacked the capacity to sue until she was appointed as guardian for her son; she argued that the 120-day deadline did not commence. The court found that the appointment of the guardianship related back to the original filing and therefore the plaintiff's argument for staying the 120-day period failed. (This decision fell under §74.351[a], first enacted in 2003.) Since that time, the original petition has been the trigger date (5). In another case, the parents of a minor child allegedly injured from a prenatal infection that was not properly diagnosed filed an action and failed to timely file their medical expert report. They filed a motion for extension of the deadline and an oral motion for nonsuit without prejudice. The defendant doctors had already filed a motion to dismiss with prejudice. The doctors won (6). Essentially the court simply has no discretion if the 120-day deadline is missed. The court must enter an order dismissing the case with prejudice and awarding attorney's fees as a sanction (7).

Qualifications of the expert

The Medical Liability Act codifies the required qualifications for an expert witness to testify against another health care provider and the required qualifications for an expert witness to address causation in a health care liability claim (8). The courts have taken notice of the fact that a specific statute identifies those standards. A physician who is named as a defendant is entitled to have a physician who is practicing at the time to address causation. Likewise, other health care providers—which include nurse anesthetists, pharmacists, nurses, and potentially all health care providers who are licensed, certified, or registered in Texas—are entitled to a standard-of-care expert who practices in the same field. All experts must show that they have knowledge of the accepted standards of care for the diagnosis, care, and treatment of the illness, injury, or condition involved in the claim and are qualified based on training or experience (9). This information must all be demonstrated within the report and the resume of the expert witness.

On causation, under Texas Civil Practices and Remedies Code Annotated §74.403, the standard is even stricter. The only person who may address causation in the expert witness report for any health care provider or physician is a physician who is otherwise qualified to render opinions on the causal relationship under the Texas Rules of Evidence. The only exceptions involve dentists or podiatrists; when dentists or podiatrists are sued, the plaintiff may use expert witnesses in those specialties. Otherwise, for each health care provider defendant, there must be a corresponding physician report as well as a standard-of-care report addressing the defendant's conduct; otherwise, there is an inadequate or “no report” against that defendant.

Cases relating to qualified standard-of-care experts

In Foster v. Zavala (10), the trial court denied a podiatrist's motion to dismiss under §74.351. The plaintiff's expert report was prepared by a cardiovascular surgeon. The podiatrist asserted that the cardiovascular surgeon was not qualified to offer an expert opinion on the acceptable standards of care for a podiatrist, as required under Texas Civil Practices and Remedies Code Annotated §74.402. While the trial court denied the motion of the podiatrist, Dr. Foster, the Eastland court of appeals agreed with Dr. Foster. The court looked at the definition of what constitutes practicing health care under §74.402(a) and assumed that the cardiovascular surgeon was practicing health care. The court then noted that the expert must practice in the field that involves the same care or treatment as the defendant. It found that the field of podiatry and the field of cardiovascular surgery did not appear to relate, especially when reviewing the report and the plaintiff expert's curriculum vitae. It could not see within those two documents anything that established that the cardiovascular surgeon was competent to testify as to a podiatrist's standard of care. The court also found that while the cardiovascular surgeon concluded that he knew what the podiatrist's standard of care was, he did not demonstrate within the report how he came to have such knowledge; therefore, it rejected his report. It also noted that he had failed to establish that he was actively practicing in the area relevant to the claim or that he was educating people in that area. So, once again, the court rejected him as qualified. The court then found that this was not an objective good faith effort to comply with the definition of an expert report under §74.351 and held that the trial court abused its discretion in refusing to dismiss the Zavala claim.

Zavala took an interesting twist, which may not withstand scrutiny in further cases. The court noted that §74.351 (c) allows a 30-day extension to cure the deficiency of the report rather than an instruction to dismiss with prejudice. This particular plaintiff did not request an extension in the event her report was found inadequate. However, she defended the adequacy of the report and filed a cross-motion for sanctions for filing the objection to adequacy of the report. The court of appeals refused to consider dismissal as an appropriate action. The opinion pointed out that other cases that found expert reports inadequate allowed the plaintiff a 30-day cure as permitted under §74.351 (c). This case, while still protecting the plaintiff, suggests to the court that in a truly ridiculous scenario (i.e., a nurse report trying to establish causation?), a case may be ripe for a dismissal if the plaintiff has failed to ask alternatively for an extension.

In Pisasale v. The Ensign Group, Inc., the plaintiff identified a nursing home inspector to address the failure of the nursing home and its personnel. The court found him unqualified. “In a suit against a “nonphysician health-care provider,” the report must be given by “an expert who has knowledge of accepted standards of care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim.” The court continued:

The bulk of McMann's report consists of his detailed critique of the nursing care provided to Mr. Pisasale. While McMann perhaps has knowledge of the federal and state regulations pertaining to nursing homes, neither his report nor his curriculum vitae indicate that he has any training, certification, or experience working as a nurse or other kind of a health-care provider. Even if McMann were a registered nurse, he would not be qualified to render an opinion as to causation because nurses are prohibited from acts of medical diagnosis [citations omitted] (11).

This particular plaintiff also had a physician address causation, but once again the expert's opinions were found conclusory, and the plaintiff lost his case. (Again, this was based on prereform case law.)

Cases relating to qualified experts for causation

In Bogar v. Esparza (12), a patient died from an overdose of a postsurgical drug. The physician and the hospital filed a joint motion for dismissal and attorney's fees after the survivors filed a report by a toxicologist. While a toxicologist may have the experience and training to address causation under the Texas Rules of Evidence, §74.403 limits these expert reports to physicians. The Bogar court found that the toxicologist's document was not a report and, therefore, dismissed the case, awarding attorney's fees.

In In re Baptist Hospitals of Southeast Texas (13), the plaintiffs confidently set forth a nurse's written report to meet the 120-day report requirements. The nurse addressed burns on a patient's foot allegedly occurring during nursing care at a hospital. While her standard-of-care testimony might have survived, the court noted that this patient may have had burns on arrival and/or burns during her admission at the facility. The hospital's motion to dismiss as to treatment for any burn before admission was granted in its entirety and affirmed on appeal. The plaintiff's designated nurse expert was also found not qualified to address the cause of burns during admission.

Clear attribution and explanation of causation

The attribution and explanation of causation can be the Achilles heel in the 120-day expert report. The rule was announced in American Transitional Care Centers of Texas, Inc. v. Palacios (14) and in Bowie Mem'l Hosp. v. Wright (15) and frequently is the basis used by a court in ruling a report inadequate.

In Lopez v. Sinha (16), the plaintiff experienced abdominal problems intraoperatively. The plaintiff's expert did not explain what role a specific physician's conduct played in causing the subsequent interventions. Nor was there any indication in the report as to which of the multiple subsequent interventions and/or surgical procedures were caused by the offending physician's conduct. The expert listed potential problems that can occur when the bile is not completely evacuated but did not specify whether the patient experienced all or some of those problems. The court said the report was not a good faith effort to summarize the causal relationship between the specific physician's conduct and the appellant's injuries. The court found the expert report conclusory.

In another case, that of Wells v. Ashmore (17), the court found that the experts’ opinions did not explain the link between the alleged errors committed by Dr. Wells that caused Mr. Ashmore's death. “Simply put, without knowing what Lawrence ultimately died of, we are left to only guess at the relationship between supposed bad acts on the part of the doctor and the death.” The expert had written down the conditions that the patient had, such as peripheral vasoconstriction and hypoperfusion, manifestation of mental confusion, and kidney shutdown, but did not explain to the court's satisfaction that there was a relationship between these conditions and the conduct of the specific doctor.

Pisasale v. The Ensign Group, Inc. (11) was a one-two punch, old-law article 4590 (i) expert report that the court of appeals found deficient, affirming the trial judge's dismissal. On the issue of causation, a physician stated in his report: “I think their negligence was a proximate cause.” The court noted that the plaintiff's causation chronology indicated that the nursing home patient was quite ill at the time of admission, but the expert made no effort to eliminate the preexisting conditions as the cause of the injuries. As such, the court of appeals affirmed the trial court's dismissal of the case, concluding that the report was not a good faith effort to summarize the causal relationship.

Adequacy in cases addressed by the texas supreme court

During 2006, the Texas Supreme Court heard two cases in which the adequacy of the expert report tendered by the patient was the question for the court.

In Olveda v. Sepulveda, the plaintiffs sued for the wrongful death and survivorship actions for the death of a baby and the mother (who died of HELLP syndrome several days later) (18). The obstetrician had called the urologist into the case to conduct some tests. During the examination, the baby's heart rate became depressed. The plaintiffs’ complaint was that the medical team did not properly identify the mother's HELLP syndrome, nor did they properly respond to it in treating the fetus. The plaintiffs’ expert was an obstetrician who expressed qualifications to address procedures, including what a urologist should do. The only defendant physician attacking the adequacy of the expert report was the urologist. The court found that the expert was not qualified as to the urologist, as her report did not reveal how she could identify what the urology standard of care was. Nor was the causation argument adequate in identifying how any omission by the urologist led to the demise of either the infant or mother. This was held under the old law to be “no report,” requiring dismissal and an award of attorney's fees.

The second case, decided in June 2006, was Jernigan v. Langley (19). In Langley (also an old article 4590i case) the physician's motion to dismiss was granted because Dr. Jernigan was mentioned only in a passing reference that did not identify with specificity any action or inaction that breached an applicable standard of care. As such, the court of appeals found the report to be “no report” and dismissed as to Dr. Jernigan.

Identification of the defendant in the report

It is clear the reports must identify the defendant and the conduct attributable to the defendant.

In Garcia v. Marichalar (20), an expert report submitted by a patient in a health care liability action against a number of named defendants did not include one specific doctor's name. The trial court initially denied the motion to dismiss. The court of appeals found that the expert report that did not name the doctor did not constitute a good faith effort to comply with the statutory requirements of the expert report as to that doctor. Since it was a new-law case, the case was remanded, requiring the plaintiff to correct the error.

Interestingly, a plaintiff can survive an identification challenge if the plaintiff identifies and implicates the entity's employees who are specifically held responsible for the deviations in the standard of care. In the case of University of Texas Southwestern Medical Center v. Dale (21), the medical school was named as a defendant, but none of its employees were. The expert report did not address the medical school specifically but did identify the resident physicians’ standard of care, violation of standard of care, and causation. The Dallas court of appeals noted that the pleadings only addressed the medical school as being vicariously liable for the conduct of these employees. The court felt that this implicated the entity and complied with §74.351 (a).

EFFORTS TO CIRCUMVENT THE 120-DAY REPORT REQUIREMENT

In the past year, plaintiffs have tried to circumvent the requirement for a timely report in three ways: 1) by claiming they have a general premises liability claim rather than a health care liability claim; 2) by claiming they have a res ipsa loquitur claim; and 3) by claiming the incident was assault and battery. Overall, the standards of determining whether a health care liability claim exists have been addressed by the Texas Supreme Court in Diversicare General Partners, Inc. v. Rubio (22). There are two basic tests under the Supreme Court opinion:

1. Examine the underlying nature of the claim to see if it falls within the rubric of the Medical Liability Act

2. Evaluate whether the act complained of as a tort is an inseparable part of the rendition of health care services

3. Plaintiffs have also attempted to evade other aspects of chapter 74 legislation.

Use of general liability premises

In Empowerment Options, Inc. v. Easley (23), the resident of a health care facility filed a lawsuit in which he filed a notice of claim, made a health care claim, and then nonsuited. He then filed a second lawsuit, alleging simply general liability. The court considered the expert reports filed with the second lawsuit as well as documents from the original lawsuit and noted that a health care facility has an obligation to its patients that is not the same as the general duty of a premises owner to invitees. Therefore, health care staffing and premises decisions are a part of providing health care, requiring expert testimony (24). The court noted that the plaintiff's negligence claims against appellants are claims for breaches of the standard of care for a health care provider, because the supervision, treatment, and protection of a resident or patient of the facility are inseparable from the health care services provided to him as a resident at the facility: “[J]udgments concerning health and medical care, including protection of patients, are made by health care professionals as part of the care and treatment of the patients admitted to their facilities.”

Easley's negligence claims also alleged departures from accepted standards of safety (25). The definition of “safety” is the condition of being “untouched by danger; not exposed to danger; secure from danger, harm or loss” (26). The professional duties of supervision, monitoring, and protection of a patient population at a facility implicate both the accepted standards of health care and safety under the act (26).

In Espinosa v. Baptist Health System (27), the plaintiff attempted to state that a malfunctioning trapeze bar over his bed was not a health care claim. The court stated:

In the present case, the record reflects that the “overhead bed frame device” referred to by Espinosa in his pleadings, also known as a trapeze bar or trapeze, was authorized as part of Espinosa's medical care by his physician in both the physician's written order and the Orthopedic Surgery Initial Evaluation. Evidently, Espinosa's physician was of the professional medical opinion that the trapeze was necessary to Espinosa's continued medical care. He ordered the trapeze as part of Espinosa's medical treatment and had a plan in place for Espinosa to use the trapeze whenever he moved in and out of his hospital bed. Also, the trapeze was assembled and attached by a nurse and an orthopedic technician, both of whom were employees of the hospital and were relying on the doctor's orders in the use of this device for Espinosa's continued medical care.

In another case involving an outpatient home health visit, a patient successfully got around the 120-day report requirement (28). The health care provider had placed a supply bag on a table at the patient's home. The supply bag fell onto the patient, injuring him. The court found that this was not an “inseparable part” of the rendering of health care services. Placing the bag on the table was a general liability claim. No expert report was required. A patient falling from a treadmill was also held to be a general liability claim (29).

Use of res ipsa loquitur

In several cases, patients are attempting to state that the doctrine of res ipsa loquitur relieves the patient from meeting statutory requirements of filing expert reports. Again, the recent cases rarely find it as an exception to the statute. Res ipsa loquitur is a limited theory of liability, in which the “injury speaks for itself.” Under §74.201, the legislature recognized that “the common law doctrine of Res Ipsa Loquitur shall only apply to health care liability claims against health care providers or physicians in those cases to which it has been applied by the appellate courts of this state as of August 29, 1977.” Essentially the standard is that if the nature of the alleged malpractice and injuries are plainly within the common knowledge of a layperson, res ipsa loquitur is the applicable standard. Beware, however: res ipsa loquitur might apply in a standard-of-care situation such as when a sponge is left in the patient's body, but causation experts might be needed to connect or link the defendant's negligence with the plaintiff's injury.

In Garcia v. Marichalar (30), a number of defendant physicians as well as entities were sued. The expert report named all but one, Dr. Garcia. Dr. Garcia filed a motion to dismiss under §74.351, stating that he was not served a report and therefore must be dismissed. The trial court denied his motion, and the appeal took an unusual turn. The district judge decided that he would grant relief allowed under the 30-day rule. Dr. Garcia said that that impaired his rights of appeal. The court of appeals agreed, and the case went forward in its original posture.

Expert reports identified deviations from the standard of care (leaving a sponge behind) and causation, but did not name Dr. Garcia. As such, the only point on appeal was whether or not leaving a sponge in the body was sufficient protection for the plaintiff to continue the case against Dr. Garcia as a res ipsa case. The court found that it was not, since expert testimony was going to be necessary to establish the nature of any injury suffered by her from the sponge remaining in the body. As such, the case against Dr. Garcia was dismissed.

This analysis has been followed in other cases in Texas, including Methodist Health Care System of San Antonio v. Martinez-Partido (31) and Ameritus Corp. v. Highsmith (32).

Use of assault and battery claims

In the last few years, it appears that a lot of plaintiff lawyers are not concerned about the lack of insurance coverage available for claims of assault and battery or sexual acts or other intentional torts that avoid a health care liability claim. The Texas Supreme Court considered such a case in Diversicare General Partner, Inc. v. Rubio (22). As indicated earlier in this article, the Rubio case refined the Palacios test for focusing on whether or not a claim is a health care liability claim, requiring conformity to the statutory guidelines of chapter 74 or its predecessor. The two-part test examines the underlying nature of the claim, not the nature of the pleading, and focuses on whether or not the act or omission complained of is an inseparable part of the rendition of medical services. Additionally, Rubio noted that the necessity of expert testimony to prove a claim may also be an important factor in determining whether a cause of action is an inseparable part of the rendition of health care services.

In the Rubio case, a nursing home patient sustained injuries in two separate falls. Her daughter brought suit on behalf of the patient under those initial facts. During suit, she learned that her mother had also been sexually assaulted by another patient while she resided at the nursing home. The petition was amended. Additional theories alleged premises liability, negligent supervision, and fraudulent inducement. This was an old-law, article 4590 (i) case. The court specifically found that this was a health care environment and, therefore, expert testimony was required. The judge found that the monitoring of patients and their danger to other patients was specifically a matter that required expert testimony. The court held that the patient should have provided an expert report. The fact that an assault and battery was alleged did not save the plaintiff from a dismissal (old law case) for failing to present an expert report. A similar result is found in Bush v. Green Oaks Operator, Inc. (33), in which separating and segregating patients in a psychiatric hospital was found to be an inseparable part of health care.

In Haynes v. Beceiro (34), the plaintiff alleged a battery, claiming that a doctor who was not named on the consent form participated in the surgery. The court stated that “medical treatment will not constitute a battery unless it is provided without the patient's consent,” citing Murphy v. Russell (35). The court also found that the consent was adequate since language in the form mentioned that “associates” of the surgeon may “treat my condition”; the defendant, Dr. Beceiro, was such an associate.

In another case, an entity was sued for sexual assault committed by a mental health care technician while the patient was at the center (36). The plaintiff's complaints were primarily vicarious, although there were some direct liability claims. This court found that both the negligent hiring and the sexual exploitation action under chapter 81 were health care liability claims requiring expert reports.

In Oak Park, Inc. v. Harrison (37), a drug addiction patient at a treatment center claimed negligence and premises liability after sustaining an injury when slammed against a wall. Assault was not found. Again, the court of appeals found that the segregation of psychiatric patients constituted a health care liability claim.

In Fields v. Metroplex Hosp. Foundation (38), a patient brought claims of negligence and assault and battery against the hospital, alleging burns from a hot compress placed while receiving postoperative care. The court of appeals affirmed the trial court's dismissal of the case as noncompliant with the statute. The court found again, under the old article 4590 (i) law, that the battery count was also a health care liability claim.

In MacPete v. Bolomey (39), a psychologist was sued for his violation of the father-son relationship. The court found the child's reaction to his father an inseparable part of the treatment of the child's condition, so the reports were found deficient. Again, the underlying nature of the claim of mental therapy and the inseparable nature of the rendition of the medical and/or health care services turned the case.

Editorial comment: Recently we have seen direct liability cases filed against individuals. For example, we are currently appealing a decision denying a motion to dismiss for lack of an expert report on a chiropractor who was alleged, “in the course of chiropractic manipulation, to have sexually assaulted his client.” Since the event occurred during chiropractic manipulation, we have argued that this is an inseparable part of the chiropractic care. While the plaintiff may choose not to use expert testimony and try to rely solely on the “he said, she said” dispute between the chiropractor and client, as a defendant, we will clearly address from a scientific point the fact that the manipulation of particular muscles in the thigh could cause a person to feel sexual “contact” in the pubic area.

Another circumvention: strict interpretation of “health care providers”

The definition of health care provider and a health care liability claim have also been questioned. Plaintiffs will try to use old, prereform law, for example, to argue that licensed professional counselors, psychologists, and other licensed or certified persons in health care not previously named in article 4590i are not health care providers and, therefore, do not get the benefit of chapter 74. The old prereform Medical Liability and Insurance Improvement Act specifically listed what professions would be entitled to protection under the act. Under the old law, the Medical Liability Act applied to physicians, registered nurses, dentists, podiatrists, pharmacists, and nursing homes. The new act used a much more expansive list, starting with the word “including”—which, of course, is not exclusive.

Published opinions on this issue have not yet been decided. There are a few cases, such as the MacPete v. Bolomey case above, which show that courts are leaning toward a broad definition of health care provider to include exactly what chapter 74 defines as “any person, partnership, professional association, corporation, facility or institution duly licensed, certified, registered or chartered by the State of Texas to provide health care” (§74.001[12][A]).

Another circumvention: presuit investigations and potential claims

Some plaintiff lawyers have used rule 202 of the Texas Rules of Civil Procedure to try to obtain presuit deposition discovery of health care providers. That rule provides that a person may petition a court for an order authorizing the taking of a deposition (through oral examination or written questions) on the following grounds:

1. To perpetuate or obtain the person's own testimony or that of another for use in anticipated suits

2. To investigate a potential claim or suit

Creative plaintiff's attorneys have used the mechanism of a potential claim to try to circumvent the freeze on discovery during the 120-day time period before the plaintiff's expert report is due for a health care claim. There is a conflict among the courts of appeal, and it is likely that the Supreme Court of Texas will address this question. The Tyler court of appeals in In re Allan (40) was persuaded by legislative history and what the court perceived to be a gap in the statutory language limiting discovery found in chapter 74's stay under §74.351(s). While written discovery (as defined under rule 192.7), depositions on written questions (as defined under rule 200 of the Texas Rules of Civil Procedure), and discovery from nonparties (as permitted under rule 205) are allowed, all other discovery is to be stayed. The court In re Allan found there was no party defendant yet, as the plaintiff had inadequate medical records to identify potential defendants. The court found that the plaintiff needed to pursue discovery to learn facts and the identity of potential parties. As such, the judges felt they would allow the deposition of target defendants. Decisions of the Houston court of appeals and the Eastland court of appeals have ruled against allowing such presuit depositions. In particular, those courts were persuaded by chapter 74's substantive statement: “In the event of a conflict between this Chapter and any other law, including a rule of procedure, evidence or court rule, Chapter 74 is to control” (41).

THE STATUTORY CAP

The legislative enactment of chapter 74 of the Texas Civil Practice and Remedies Code, coupled with a constitutional amendment passed by the Texas voters, successfully placed a statutory cap on noneconomic damages. Texas Civil Practice and Remedies Code §74.301 provides a specific limit of $250,000 in damages against an individual physician, health care provider, or health care institution, with a cap of $500,000 total ($250,000 per individual and $250,000 per entity). The cap is applied only if there is one individual and one entity defendant. In other words, even when more than one health care institution isjoined as defendants, the damages are still limited to $250,000 for each claimant (plaintiff). The plaintiff benefits from a $500,000 cap on noneconomic damages only if the plaintiff sues an individual and an entity. In a wrongful death suit or survival action, damages are calculated on a per-defendant basis. Those caps do not apply to the amount of damages awarded for the expense of necessary medical, hospital, and custodial care received before judgment or required in the future. In addition, the liability of the insurer, under the Stowers doctrine (discussed below), shall not exceed the liability of the insured.

The only case to discuss the Stowers doctrine limitation found in the Medical Liability Act since the amendments in 2003 is Welch v. McLean (42). It held that the Stowers doctrine, as found in §74.303 (d), does not lift the damages cap of §74.303 (a) as to physicians. (Where an insurer refused to settle with the claimant within the policy limits, the physician was not then liable beyond the $500,000 cap in a wrongful death suit.) The $500,000 cap is adjusted each year under the Consumer Price Index, just like the wrongful death cap is.

CASES RELATED TO EMERGENCY CARE

Emergency health care providers and Good Samaritans benefit from tort reform. Chapter 74 heightens standards of proof for emergency medicine and health care provision as well as immunity in Good Samaritan cases. Under §74.151, Liability for Emergency Health Care, a person who in good faith administers emergency care is immune when he or she provides care without expectation of remuneration. Those who are the producing cause of the emergency, are at the scene of the emergency, or are soliciting business or seeking to perform a service for remuneration are excluded from this immunity.

Under §74.153, in a suit involving a health care liability claim against a physician or health care provider for injury or death to a patient arising from the provision of emergency medical care in the hospital emergency department, obstetrical unit, or surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the claimant bringing suit may prove that the treatment or lack of treatment by the provider departed from accepted standards of care only if the claimant shows by a preponderance of the evidence that the physician or health care provider was willfully and wantonly negligent. No specific cases invoking that particular standard have been reviewed yet. However, there has been a case involving an anesthesiologist called to an emergency obstetrical problem. The anesthesiologist did not seek remuneration for the resuscitation. The child was injured. Suit was filed, and the anesthesiologist was found to be immune from suit (43). In another case, emergency medical technicians were sued by a woman and her family. The woman was in respiratory distress and died during ambulance transport. The emergency medical technicians were found not liable by the court (44).

In the past 3 years, only two reported cases have discussed the clear-and-convincing evidence standard in the context of emergency department situations. The court in State v. Kelly (45) noted that the state bears the burden of proving voluntary consent to medical treatment by clear and convincing evidence. In a malpractice suit involving the improper administration of a drug (verapamil) in an emergency department, the court held that, while the standard to be applied in determining proximate cause was preponderance of the evidence, establishing malice in medical negligence cases required a clear and convincing evidence standard (46).

Only one reported Texas case in the past 3 years contains a discussion of the Emergency Medical Treatment and Active Labor Act (EMTALA). The case involved a mother who requested that the court order the hospital to continue life-sustaining treatment for her infant son under EMTALA (47). However, the court accepted the hospital's request for exception under EMTALA, and the case did not turn on that aspect.

CONCLUSION

The Texas Medical Liability Act as passed by the Texas Legislature in 2003 truly changed the landscape of damages actions against health care providers. With the requirements of early exchange of written discovery and the early detailed expert report on the defendant health care providers’ violation of standards of care and causation, many cases are never even filed. Many more never make it past the initial dismissal phase when the expert report is evaluated by the court. The emergency standards of care have further strengthened the defense of medical liability actions when patients are thrust into the care of providers with little or no background on their history.

While you can still be sued, with good practices in medical management, documentation, and the help of a good attorney, you should have an optimal result in defending a malpractice claim.