May 13, 2015
by Angela Morris

Rep. Kenneth Sheets, R-Dallas, member, House Judiciary & Civil Jurisprudence Committee

If a bill that the Texas House passed becomes law, a doctor who is hurt on the job and sues his hospital for workers’ compensation would no longer have to worry that the lawsuit might be treated like a health care liability claim, subject to damage caps and expert report requirements.

Lawmakers on May 13 voted 141-1 to pass House Bill 1403 by Rep. Kenneth Sheets, R-Dallas, which changes the definition of a health care liability claim under the state’s medical malpractice statute. The bill excludes certain labor claims by injured or deceased workers or their survivors against their employers, regardless of whether or not the employer carries workers’ compensation insurance.

Sheets said during a May 12 debate that his bill attempted to clarify language in the 2003 Texas Medical Liability Act.

“The intent of the Legislature is being misconstrued,” he said, explaining that just because an incident happens in a health care setting does not mean that it’s a health care liability claim.

HB 1403 co-author Rep. Chris Turner, D-Grand Prairie, added, “Basically what we are doing here is trying to clarify that in the statute, just because someone is in a health care setting when they maybe incur some sort of action they go to court over … that all the requirements of the medical malpractice law don’t necessarily apply to those cases.”

The legislation is a response to a 2012 Texas Supreme Court case, Texas West Oaks Hospital v. Williams. The high court ruled that a claimant did not have to be a patient of a health care provider for his claim to fall under the med-mal statute in Chapter 74 of the Texas Civil Practice & Remedies Code.

“West Oaks held that a claim by either an employee or a nonsubscriber under the labor code was a cause of action under Chapter 74; so the bill says that a claim under the labor code is not a health care liability claim,” said Mike Hull, general counsel of the Texas Alliance for Patient Access, a tort reform group. Hull said that TAPA in 2013 vowed to lawmakers that it would support a legislative fix to West Oaks if the courts failed to resolve the issue.

Bryan Blevins, president of the Texas Trial Lawyers Association, said that the bill addresses one specific part of a problem of the “expanding definition of health care liability claims.” But courts have ruled that other types of lawsuits—such as a slip-and-fall in a hospital lobby—are also health care liability claims, he noted.

Turner proposed a bill that addressed the employment claims as well as the miscellaneous non-health-care claims, said Blevins.

“We never could get agreement on bringing those two bills together, but we still supported Rep. Sheets’ bill that fixed one part of the problem,” he said. “At the same time, the Supreme Court issued an opinion in the last two weeks—the Ross case—and that case actually does deal with the nonemployment cases. … I think at this point, everybody who has been concerned about this issue feels like one part of the problem is going to be solved by Rep. Sheets’ bill, and the other part of the concerns, the Supreme Court has given us guidance on.”

Failed Negotiations

The House accepted an amendment to HB 1403 to delete a provision that would have required an expert report to assert at least one theory of direct liability.

Hull explained that med-mal law requires that a plaintiff file an expert report that explains how a health care provider was directly liable for his injury. But two recent Supreme Court rulings have affected the requirement and created a problem, he said. HB 1403’s direct liability provision sought to address it, noted Hull.

In one case, the high court ruled that if a plaintiff sued a hospital and alleged that it was vicariously liable for his injury, then he wouldn’t have to file an expert report, because vicarious liability is a legal theory rather than a medical one, Hull explained.

Later, he said, the Texas Supreme Court issued a separate ruling that said that if a plaintiff alleged that a nurse hurt him by making 20 mistakes, the plaintiff would only have to file an adequate expert report for one of those 20 claims.

Hull said that some attorneys have interpreted the two rulings together to mean that if they first assert a vicarious liability claim against a hospital—which doesn’t require an expert report—and then later amend their lawsuit with a direct liability claim, then they still would not have to file an expert report because of the previous vicarious liability claim.

Blevins said that the TTLA had concerns about HB 1403’s direct liability provision and that he appreciates that TAPA and Sheets listened to the concerns and deleted the provision from the bill.

Hull and Blevins both noted that they tried but failed to negotiate a third change in the bill. They discussed whether to change a form in the med-mal statute that parties use to request a plaintiff’s medical records. Some health care providers fear that releasing the records might violate federal privacy laws. Hull and Blevins both said it’s a problem, because both sides in a med-mal dispute really need the records.

They ran out of time in negotiations because of upcoming legislative deadlines.

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