Issue # 3:11, November 2015

General Tort or Medical Malpractice? The Definition of a “Healthcare Provider”

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.

Medical Malpractice in an Emergency Room. What Constitutes an “Emergency” Treatment?

Nguyen v. Southwestern Emergency Physicians, P.C., — S.E.2d —, 2015 WL 6631964 (Ga. 2015)

Under Georgia statute, previously discussed here and here, allegations of medical malpractice “arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department” must show “gross negligence” and be proven by “clear and convincing evidence.” OCGA § 51–1–29.5(c). Failure to prove the defendant’s gross negligence by clear and convincing evidence should result in a dismissal of the plaintiff’s suit.

In Johnson v. Omondi, 751 S.E.2d 288 (Ga. 2013), the Georgia Supreme Court relied on prior precedent to define “gross negligence” as the defendant’s “failure to exercise even a slight degree of care.” The Court also ruled that in deciding a motion for summary judgment, the trial judge “must view the evidence presented through the prism of the substantive evidentiary burden”: clear and convincing evidence. Under this regime, it is the plaintiff’s burden to produce evidence upon which a reasonable jury could determine that the defendant completely failed to deliver the requisite medical care. As a corollary, the plaintiff’s expert witness must give an unequivocal account of the defendant’s profound unprofessionalism. Absent such testimony, the trial judge should dismiss the suit summarily. For my analysis of this decision, see here. See also Abdel–Samed v. Dailey, 755 S.E.2d 805 (Ga. 2014) – a case in which the plaintiff managed to produce enough evidence of gross negligence to move the case to the jury. For my discussion of this case, see here.

In the case at bar, the plaintiffs attempted to bypass these rules by disputing the “emergency” nature of the treatment in question. The applicable statute, OCGA § 51–1–29.5, defines “emergency medical care” as “bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part” (emphasis added).

The case involved the plaintiffs’ infant daughter who fell off her bad and was taken to the defendants’ emergency facility after developing “a huge discolored bump on her head.” The plaintiffs alleged that “the emergency room personnel committed malpractice in failing to properly evaluate the child and releasing her from the ER without diagnosing and treating her subdural hematoma and skull fracture, which led a few days later to severe brain damage.” The plaintiffs argued that these actions amounted to a non-emergency treatment and that the emergency rules consequently did not apply.

The Supreme Court disagreed. The Court decided – properly, in my opinion – that the emergency rules may well apply to a provider’s failure to recognize and treat a patient’s condition as an emergency. “The fact that [the plaintiffs’ daughter] was given a non-emergency ranking … and treated as a non-emergency patient,” it explained, “does not prevent these evaluations from being “bona fide emergency services” under the ER statute.” Based on this observation, the Court ruled that “the record shows a genuine issue of material fact as to whether the heightened proof standards set forth in OCGA § 51–1–29.5(c) apply in this case” and that “the trial court therefore erred in granting [the plaintiffs] summary judgment on this issue.” Whether the plaintiffs’ daughter received an “emergency” treatment should be decided by the jury.

Slips and Falls in Hospitals: When Do They Constitute “Medical Malpractice”?

Reddic v. East Texas Medical Center Regional Health Care System, — S.W.3d —, 2015 WL 6558270 (Tex. 2015)

This case features a visitor who filed a negligence suit against the hospital. The suit alleged that the visitor slipped and fell in a hospital’s reception area on a mat saturated with water. The hospital moved to dismiss the suit for failure to timely serve an expert report pursuant to the Texas Medical Liability Act (TMLA). The visitor responded that TMLA only applies to actions alleging medical malpractice and does not apply to regular negligence suits such as hers.

The Texas Supreme Court agreed with the visitor. This decision relied on the Court’s prior decision, Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496, 504-05; 2015 WL 2009744 (Tex. 2015), which I analyzed here.

Specifically, the Court ruled that floor care in an area frequented by persons seeking or receiving medical attention is related to the provision of healthcare, but does not constitute “health care” in and of itself. Whether it falls into the “health care” definition depends on the seven Ross criteria:

  1. Did the alleged negligence of the defendant occur in the course of the defendant’s 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; or
  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?

Based on these criteria, the Court decided that it finds no “substantive nexus between the safety standards [the visitor] claims the hospital violated and the hospital’s provision of health care.”