The Court of Appeals Sixth Appellate District of Texas at Texarkana (“Texas Appellate Court”) held in its Memorandum Opinion filed on September 3, 2021 that the plaintiff nurse employee of the defendant hospital, who sued for intentional infliction of emotional distress for placing him in a diaper, painting his toenails, and affixing the colostomy bag while he was under anesthesia during surgery, were health care liability claims (“HCLC”) that required the plaintiff to serve an expert report on the defendant hospital (“Christus”) within 120 days after Christus filed its original answer. Since the plaintiff served no expert report on Christus and Christus moved to dismiss on that basis, the trial court was required to grant Christus’s motion and to award it reasonable attorney fees and costs.
The Texas Medical Liability Act
The Texas Medical Liability Act (“Act”) defines an HCLC 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.”
As set forth in the Act, an HCLC has three elements: (1) the defendant is a health care provider or physician; (2) the claimant’s cause of action is for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s alleged departure from accepted standards proximately caused the claimant’s injury or death.
The Act defines “health care” 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.”
Although the Act does not define “safety,” the Texas Supreme Court has defined it as the condition of being untouched by danger; not exposed to danger; secure from danger, harm or loss.
The Texas Appellate Court stated in the case it was deciding: “a plaintiff who asserts both an HCLC and a claim under a different theory of recovery based on the same underlying facts may not avoid dismissal for failure to file an expert report by amending his petition after the 120-day deadline and removing the HCLC … Sonnier has tried to evade the requirements of Section 74.351 by amending his petition after the expiration of the 120-day deadline and removing any allegations that Christus violated any standard of care for a hospital. Because only considering Sonnier’s amended petition may result in impermissibly allowing the claim to be “split or spliced into a multitude of other causes of action,” we must consider his original petition to determine whether “the gravamen or essence of a cause of action is a health care liability claim.””
The Texas Appellate Court held: “Sonnier’s claims against Christus “[are] against a . . . . health care provider and [are] based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement.” Loaisiga, 379 S.W.3d at 256. As a result, Sonnier’s claims against Christus are presumptively HCLCs.”
Source Christus Good Shepherd Medical Center v. Sonnier, No. 06-21-00031-C.
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