Verticor, Ltd. v. Wood, — S.W.3d — 2015 WL 7166024 (Tex.App.–Austin 2015)
Every defendant in a suit for medically inflicted injuries wants to be a “healthcare provider.” This status entitles the defendant to categorize the suit as “medical malpractice” and become eligible to special litigation advantages, which include shortened limitations and repose periods, dismissal of suits not verified by experts, and statutory caps on damages.
In the case at bar, Verticor, the manufacturer of Eclipse Shield – a spinal implant for fusion – claimed to be a “healthcare provider” for purposes of the Texas Medical Liability Act (TMLA). The purpose of this claim was to recharacterize the products liability action filed against Verticor into a “healthcare liability claim” that can proceed to court only upon showing of medical malpractice verified by an expert. To establish this claim, Verticor argued that it provides the Eclipse Shield “for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement” under its “device manufacturer” license. This service, explained Verticor, makes it a “healthcare provider.”
The Texas appellate court disagreed. To be a “healthcare provider” – it explained – a person or a firm must be authorized to “to provide something that is in itself health care”: an “act” or “treatment” … that is “performed or furnished,” or should have been, “for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” According to the court, “the first alternative, an “act,” denotes some sort of deed or activity. As an inanimate object, the Eclipse Shield, in itself, could not be an “act,” although it might be utilized in acts that qualify as “health care,” such as surgery. Similarly, the other alternative, “treatment” also denotes some form of activity that is performed or furnished for or to a patient. Consequently, the Eclipse Shield would not, in itself, be a “treatment,” although it might be utilized in a “treatment.””
The court also drew an important distinction between medical device manufacturers, such as Verticor, and prosthetics producers who custom fabricate and fit medical devices to replace the missing limbs of specific patients. These producers, held the court, have been properly categorized as “healthcare providers” in Strobel v. Marlow, 341 S.W.3d 470 (Tex.App.–Dallas 2011).
This decision is absolutely correct. FDA-compliant manufacturers of medical devices receive enough protection against tort liability pursuant to the Medical Device Amendments Act of 1976. See Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). Giving them an additional layer of protection against suit, enjoyed by defendants in medical malpractice actions, makes no sense at all.