The Texas Fourteenth Court of Appeals (“Texas Appellate Court”) stated in its opinion filed on August 27, 2020: “A psychiatrist challenges the trial court’s denial of his motion to dismiss a patient’s claims under the Texas Medical Liability Act for failure to serve an expert report. The patient seeks to recover damages based on injuries she claims to have suffered when she tripped on a rug in the psychiatrist’s waiting room. The patient contends that her claims are based on a premises-liability theory while the psychiatrist contends the claims tie inextricably to his duties as the patient’s health care provider. Concluding that expert medical testimony is unnecessary to prove or refute the patient’s claims and that the patient has not alleged facts that give rise to a health care liability claim, we overrule the psychiatrist’s issues and affirm the trial court’s denial of the psychiatrist’s motion to dismiss.”
The Underlying Facts
The plaintiff had four visits with the defendant psychiatrist for insomnia, anxiety, and refills of her medication. The notes from her first visit reflect that she had a psychiatric history of depression, anxiety, and insomnia, and a medical history of chronic back and neck pain, arthritis, and heart fluttering. The psychiatrist diagnosed the plaintiff with depression and chronic pain.
During her second visit, the plaintiff had an open wound in the big toe of her left foot that appeared to be infected. She was told to see her primary care physician about this wound. The notes from the third visit reflect that the plaintiff had a boot on her foot and that her infected toe was being treated with antibiotics. The notes from the plaintiff’s fourth (and last) visit reflect that the plaintiff “[f]ell again,” and had some foot pain. The notes from the last visit also state that the psychiatrist was going to give the plaintiff “a minimal supply of Tramadol” to last her until she could get an appointment with her primary care physician, and stated that it was suggested to the plaintiff that she “look into getting a walker or cane for her safety.”
The plaintiff subsequently sued the psychiatrist and the building’s owner, alleging that during a visit to the psychiatrist’s office, she tripped over a misplaced rug in the waiting room. The lawsuit alleged negligence claims based on a premises-liability theory. A footnote to the plaintiff’s complaint denied that her claims were health care liability claims and declared the alleged negligence was unrelated to the psychiatrist’s duties of care as a health care provider.
The defendant psychiatrist field a motion to dismiss, arguing that the plaintiff’s claim against him is a health care liability claim because (1) the plaintiff was his patient at the time of her alleged fall in his office; (2) the alleged fall occurred when the plaintiff was in his office for a medical visit; and (3) the plaintiff received medical care and advice from him related to her foot and walking safety. The trial court denied the defendant psychiatrist’s motion to dismiss, and the defendant appealed.
Texas Appellate Court Opinion
Health care liability claims are subject to the Texas Medical Liability Act (“Act”), including its expert-report requirement. Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13), 74.351(a). Under the Act, a plaintiff asserting a health care liability claim must serve an expert report within 120 days of the filing of an answer by any defendant physician or health care provider. § 74.351(a). If the plaintiff fails to serve an expert report, the trial court must dismiss the plaintiff’s claims on the defendant’s motion. § 74.351(b)(2).
If a patient asserts a claim against a physician or health care provider based on facts implicating the defendant’s conduct during the patient’s care, treatment, or confinement, then a rebuttable presumption arises that the patient’s claim is a health care liability claim, and the plaintiff bears the burden of rebutting the presumption.
The Act defines a health care liability claim as “a cause of action 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, whether the claimant’s claim or cause of action sounds in tort or contract. The term does not include a cause of action described by Section 406.033(a) or 408.001(b), Labor Code, against an employer by an employee or the employee’s surviving spouse or heir.” “Health care” is defined as “any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” “Medical care” is defined as “any act defined as practicing medicine under Section 151.002, Occupations Code, performed or furnished, or which should have been performed, by one licensed to practice medicine in this state for, to, or on behalf of a patient during the patient’s care, treatment, or confinement.”
The Texas Appellate Court stated that a safety-standards claim need not be directly related to the provision of health care to qualify as a health care liability claim. For a safety-standards claim to amount to a health care liability claim, there must be a substantive nexus between the safety standards allegedly violated and the provision of health care. That nexus must be more than a “but for” relationship.
There are seven non-exclusive considerations for courts to employ when analyzing whether a safety-standards claim amounts to a health care liability claim:
1. Did the defendant’s alleged negligence occur while the defendant was performing tasks with the purpose of protecting patients from harm?
2. Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special, medical care was implicated?
3. At the time of the injury was the claimant in the process of seeking or receiving health care?
4. At the time of the injury was the claimant providing or assisting in providing health care?
5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider?
6. If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care?
7. Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety-related requirements set for health care providers by governmental or accrediting agencies?
The pivotal issue in a safety-standards-based claim is whether the standards on which the claim is based implicate the defendant’s duties as a health care provider, including its duties to provide for patient safety. A safety-standards claim does not fall within the Act’s provisions just because the underlying occurrence took place in a health care facility, the claim is against a health care provider, or both.
The Texas Appellate Court stated that the record does not show that expert medical or expert health care testimony is necessary to prove or refute the merits of the plaintiff’s negligence claim against the defendant psychiatrist based on premises liability, noting that the psychiatrist did not yet have any of the new information in the notes for the last visit and the psychiatrist had not yet recommended a walker or cane when the plaintiff tripped and fell.
Citing a previous Texas Supreme Court opinion, the Texas Appellate Court stated that (1) the plaintiff was not seeking, receiving, or providing health care when she fell; (2) the area where the plaintiff fell was not where patients would be during treatment; and (3) the record did not show the cleaning and buffing of the floor were for the purpose of protecting patients. The Texas Appellate Court explained that the defendant psychiatrist was not performing tasks with the purpose of protecting patients from harm when the rug was allegedly misplaced, or when the psychiatrist allegedly failed to make safe or warn the plaintiff of this allegedly unreasonably dangerous condition, and the record does not show that the plaintiff was in the process of receiving health care when she allegedly tripped and fell.
The Texas Appellate Court stated: “The alleged negligence is not based on safety standards arising from professional duties [the defendant psychiatrist] owed. [The psychiatrist] has not identified any safety standards that arise from professional duties based on [the plaintiff’s] allegation that the rug was an unreasonably dangerous condition.” Furthermore, “[t]he instrumentality involved — a rug — was not a type used in providing healthcare.”
The Texas Appellate Court concluded: “A claim does not fall within the Texas Medical Liability Act’s provisions just because the underlying occurrence took place in a health care facility, the claim is against a health care provider, or both … On balance, the Ross considerations compel us to conclude that [the plaintiff’s] alleged trip-and-fall accident is not substantively related to [the defendant psychiatrist’s] provision of medical care or health care … The safety standards implicated in this case do not have a substantive nexus with providing medical care or health care.”
Source Valdes v. Shields, No. 14-18-00725-CV.
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