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The Texas Appellate  Court system routinely issues opinions that effect the defense of a health care liability claim. The following is a list of some of key Texas Supreme Court cases since 2009 on health care liability claims and cases from the Appellate Courts that set a new legal precedent or further developed the current law for health care defendants. For the most recent appellate decisions on health care liability claims, please see our blog.


EduCare Community Living v. Celedon, No. 13- 08-00461-CV, 2009 WL 3210950 (Tex. App.—Corpus Christi 2009, no pet.).
A patient at a day program operated by an intermediate care facility (ICF-MR) for the mentally retarded was allegedly sexually assaulted by another patient. The patient filed suit against the ICF/MR alleging that it failed to keep her safe from harm because the door to a shed where the assault occurred was not properly locked. The Corpus Christi Court of Appeals held the claims were health care liability claims because the allegations went to the failure to properly care for and supervise the patients. 


Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658 (Tex. 2010).
A hospital patient recovering from back surgery attempted to use the footboard to rise to a standing position, which became loose and caused him to fall.   Initially, the Texas Supreme Court held the claims regarding the negligent installation of the bed were not health care liability claims because the unsafe condition was not an inseparable part of the patient’s care or treatment. Subsequently, the Court withdrew its opinion and issued a new opinion, holding the medical equipment used in a patient's care or treatment is an inseparable part of the health care services provided. When the unsafe or defective condition of the medical equipment injures the patient, the resulting cause of action is a health care liability claim.


Carreras v. Marroquin, 297 S.W.3d 420 (Tex. App.—Corpus Christi 2009, pet. granted).
The plaintiff served the defendant physician with a presuit notice of claim letter, but failed to include the statutory authorization for the release of medical records. After suit was filed, the defendant moved for summary judgment on the basis the failure to provide him with the authorization meant that the plaintiff was not entitled to the 75 day tolling provision of Section 74.051. The trial court denied the motion and signed an order allowing for an immediate appeal. The Corpus Christi Court of Appeals affirmed the trial court’s holding that serving the presuit notice of claim letter even without the required authorization was sufficient to invoke the 75 day tolling period. 

In 2008, the El Paso Court of Appeals reached the opposite conclusion in Rabatin v. Kidd, 281 S.W. 3d 558 (Tex. App.—El Paso 2008, no pet.). The Texas Supreme Court granted a petition for review of Carreras on June 25, 2010 and is expected to resolve this inconsistency in the appellate courts. 


Lone Star HMA, L.P. v. Wheeler, 292 S.W.3d 812 (Tex. App.—Dallas 2009, no pet.).
A plaintiff served an original petition on a defendant hospital named Mesquite Community Hospital a/k/a Woman's Hospital at Dallas Regional Medical Center in both pleadings. The registered agent would not accept service because it was not the agent for “Mesquite Community Hospital." Two petitions later, the plaintiff correctly named the defendant as Mesquite Community Hospital a/k/a/ Lone Star HMA, L.P. d/b/a Women's Hospital at Dallas Regional Medical Center. Service was perfected and the defendant filed an answer as “Lone Star HMA, L.P. d/b/a Woman's Hospital at Dallas Regional Medical Center f/k/a Mesquite Community Hospital.” The trial court denied the defendant’s motion to dismiss for failure to serve an expert report within 120 days of the filing of the original petition in which the hospital was misidentified. The Dallas Court of Appeals reversed, holding that misidentification did not toll the 120 day deadline to serve an expert report. There is no equitable tolling under Chapter 74 for serving expert reports.


Hernandez v. Ebrom, 289 S.W.3d 316 (Tex. 2009).
The plaintiff timely served the defendant physician with an expert report and objections were timely filed. The defendant physician filed a motion to dismiss on the basis the report was insufficient, which was denied by the trial court. Six months later, the plaintiff voluntarily nonsuited his claims against the defendant physician. The defendant physician then filed an interlocutory appeal, which was dismissed for lack of jurisdiction by the appellate court because issue was rendered moot by the filing of the nonsuit. The Texas Supreme Court reversed and held there is no deadline to file an interlocutory appeal on the denial of a motion to dismiss. Even though the nonsuit had been filed, the defendant physician maintained his right to the statutory appeal.


In re Collins, 286 S.W.3d 911 (Tex. 2009).
The trial court entered an order prohibiting any ex parte communications between the defendant health care provider and the plaintiff’s treating physicians. The defendant filed a petition for writ of mandamus, and the appellate court upheld the trial court’s order. The Texas Supreme Court reversed both courts and held that it was an abuse of discretion for the trial court to enter an order prohibiting ex parte communications unless the plaintiff shows specific and demonstrable injury that would result from the communication.


In re Lumsden, 291 S.W.3d 456 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding).
A patient filed suit against three health care providers and timely served each with an expert report. One of the defendants filed an interlocutory appeal of the trial court’s denial of a motion to dismiss challenging the sufficiency of the report. While the appeal was pending, the patient sought to depose the other two defendants and several employees of the defendant who filed the interlocutory appeal. The trial court stayed the trial of the case, but refused to stay discovery. One of the non-appealing defendants filed a petition for writ of mandamus asking that all discovery be stayed while the codefendant’s interlocutory appeal was pending. The Houston Fourteenth Court of Appeals held the discovery limitations governing prior to the service of an expert report remain in effect for all defendants even if only one defendant challenges the denial of a motion to dismiss by interlocutory appeal.  


Crites v. Collins, 284 S.W.3d 839 (Tex. 2009).
After failing to serve the defendant with an expert report by the 120 day deadline, the plaintiffs filed a notice of nonsuit, which is effective upon filing. The next day the defendant health care provider filed a motion to dismiss seeking attorney fees as sanctions. The trial court signed an order of nonsuit and denied the defendant’s motion to dismiss. The Texas Supreme Court held that the trial court erred in not granting the motion and awarding attorney’s fees. Even though a nonsuit is effective upon filing, the trial court still has plenary power to hear a motion for sanctions.


In re Watkins 279 S.W.3d 633 (Tex. 2009).
A patient alleged her eye was injured while a physician was repairing a lesion on her face. A report was filed within 120 days of the filing of the original petition and objections to the report were timely filed.  The trial court granted a 30-day extension for the patient to obtain a new report. The physician did not object to the subsequent report, but filed both an interlocutory appeal and petition for writ of mandamus regarding the 30-day extension. The Texas Supreme Court held that mandamus relief is not available when a trial court grants a 30-day extension to serve an expert report. The only immediate appellate remedy is an interlocutory appeal regarding the sufficiency of the report.


Skloss v. Perez, No. 01-08-00484-CV, 2009 WL 40438 (Tex. App.—Houston [1st Dist.] January 08, 2009, no pet.).
A family sued their Licensed Professional Counselor (LPC) for failure to provide proper treatment and for fraudulent billing practices. On a case of first impression, the Houston First Court of Appeals held that an LPC was a health care provider under Chapter 74. The Court also found all the claims were health care liability claims because the essence of the claims was that the plaintiffs were injured by the LPC’s lapses in professional judgment.


These cases summaries are provided for the sole purpose of serving as an informational source to our clients and prospective clients.  The summaries do not constitute legal advice and should not be construed as Kroger | Burrus offering any legal opinion on the specific facts of any case.