On May 1, 2015, the Texas Supreme Court addressed the much debated issue of how far Chapter 74 reaches. In Ross v. St. Luke’s Episcopal Hospital the Court held that a hospital visitor’s slip-and-fall claim is not a Chapter 74 health care liability claim (HCLC).
Lezla Ross, a visitor to St. Luke’s Episcopal Hospital, sued the hospital on a premises liability theory after she slipped and fell near the lobby exit doors. The trial court and court of appeals concluded Ross’s claim was an HCLC subject to Chapter 74’s expert report requirement. The Court disagreed holding Ross did not assert an HCLC because the record did not demonstrate a relationship between the safety standards Ross alleged the hospital breached—standards for maintaining the floor inside the lobby exit doors—and the provision of health care, other than the location of the occurrence and the hospital’s status as a health care provider.
Relying on the Court’s decision in Texas West Oaks v. Williams the hospital asserted Ross’s claim was an HCLC and moved for dismissal because she failed to serve a Chapter 74 expert report. The trial court agreed and dismissed Ross’s slip-and-fall claim. On appeal, the Fourteenth Court of Appeals concluded that under Williams it is not necessary for any connection to exist between health care and the safety standard on which a claim is based in order for the claim to come within Chapter 74.
The pivotal issue in a safety standards-based liability claim is whether the standards on which the claim is based implicate the defendant’s duties as a health care provider, including its duties to provide for patient safety. To determine whether Ross’s safety standards-based claim was an HCLC, the Court conducted a seven-prong analysis:
- 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;
- 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;
- At the time of the injury was the claimant in the process of seeking or receiving health care;
- At the time of the injury was the claimant providing or assisting in providing health care;
- Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider;
- If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; or
- 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?
The Court’s answer to all seven questions was “no.” The record did not show that the cleaning and buffing of the floor near the exit doors was for the purpose of protecting patients. Nor did the record reflect that the area where Ross fell was one where patients might be during their treatment so that the hospital’s obligation to protect patients was implicated by the condition of the floor at that location. Ross was not seeking or receiving health care, nor was she a health care provider or assisting in providing health care at the time she fell. There was no evidence the negligence alleged by Ross was based on safety standards arising from professional duties owed by the hospital as a health care provider. There was also no evidence that the equipment or materials used to clean and buff the floor were particularly suited to providing for the safety of patients, nor did the record demonstrate that the cleaning and buffing of the floor near the exit doors was to comply with a safety-related requirement set for health care providers by a governmental or accrediting authority.
The Court decided Ross’s claim was based on safety standards that had no substantive relationship to the hospital’s providing of health care so it was not an HCLC. Because her claim was not an HCLC she was not required to serve an expert report to avoid dismissal of her suit. The Court reversed and remanded.
Over the past few years, the scope of claims falling within Chapter 74 has significantly broadened. The Ross decision demonstrates the Court is clarifying the types of claims that are and are not HCLCs.
If a hospital visitor slips and falls, is it a Chapter 74 health care liability claim? The Texas Supreme Court is currently considering this question. On November 15, 2014, the Court heard oral argument in Ross v. St. Luke’s Episcopal Hospital. Additionally, the court requested briefing on the merits in another five slip-and-fall cases: Doctor’s Hospital v. Mejia, CHRISTUS St. Elizabeth Hospital v. Guillory, Northeast Methodist Hospital v. Dewey, Reddic v. East Texas Medical Center, and Galvan v. Memorial Hermann Hospital. The court also requested briefing in Baylor University Medical Center v. Lawton, a case considering whether a hospital employee’s toxic inhalation injury claim is a health care liability claim.
On March 14, 2015, Partners Edward Kroger and Dale Burrus graduated from Rice University’s Graduate Certificate Program in Health Care Management. The five month program is offered through Rice University’s Jesse H. Jones Graduate School of Business, and addresses topics such as Strategy Formulation, Competitive Analysis, Strategic Marketing, Patient Management, Health Care Process Mapping and Quality Improvement.
On February 14, 2015, Managing Partner Edward J. Kroger spoke about Medicolegal Issues in Geriatric Ophthalmology at the 4th Annual Symposium on Enhancing Geriatric Understanding and Education (SEGUE) at the Houston Methodist Research Institute.
For four years in a row SEGUE has provided quality education for non-geriatricians regarding geriatric care. The aim of the symposium is to prepare healthcare providers for aging patient populations. Physicians and nurses receive professional education credits from attending the symposium and participating in various activities.
Dr. Kroger covered a variety of legal issues in geriatric ophthalmology and emphasized best practices for healthcare providers.
Recently, we wrote about a USC-affiliated program that gives out free, factual medical information to Hollywood scriptwriters. Still, there appears to be some who may have failed to consult the experts. Test your knowledge of medical facts and fiction in the movies.
Fact or fiction?
1. In the classic James Bond film Goldfinger, a character dies from “skin suffocation” after being completely covered in gold paint. Mr. Bond explains in the film that if a square at the spine have been left unpainted, the character would have lived.
2. In a memorable scene from Pulp Fiction, Vincent Vega (played by John Travolta) rescues Mrs. Wallace (Uma Thurman) from an impending drug overdose with an injection of adrenalin directly into her heart – a standard procedure in emergency rooms.
3. Electroconvulsive therapy (ECT), or “shock treatment”, as depicted in One Flew Over the Cuckoo’s Nest, is a procedure still used today.
4. In the movie The Firm, starring Tom Cruise, the Gene Hackman character states he can’t fly within 24 hours of scuba diving during a trip to the Cayman Islands. A medical basis for this statement exists; it wasn’t just made up by the screenwriters as a plot device.
5. In the Godfather, a nurse caring for the Don, who is recovering from an assassination attempt, helps Michael Corleone wheel the Don’s bed into another hospital room for security reasons. This is something that a nurse would readily do when requested.
Check back next week for answers.
Kroger | Burrus is pleased to announce that Lauren M. Nelson, JD has been selected as a 2015 Texas Rising Star. Ms. Nelson was previously selected in 2012, 2013 and 2014. Lawyers who are 40 years old or younger are eligible for peer nomination. The selection process includes a review of credentials and experience. Ultimately, less than 2.5% of the state’s younger lawyers are recognized for this award.
Ms. Nelson is a graduate of Baylor University and South Texas College of Law. She is currently pursuing her MBA at Baylor University. She practices in the areas of medical malpractice defense and health law, representing health care providers across Texas.
Did you ever wonder where TV shows get their medical information? One source is Beverly Hills-based Hollywood, Health, and Society, an affiliate of the University of Southern California. Funded in part by the Centers for Disease Control and Prevention, and free of charge to callers, the program serves as a reference center for TV producers and writers who wish to provide shows with medically-accurate storylines.
The company’s staff consults with medical experts around the country to obtain the right information. Some experts will even go where the writers are, taking them on field trips such as to the county morgue, to enhance the reality of their scripts. While drama may be a priority, putting out accurate medical storylines can be a public health service without anyone ever knowing it, said Hollywood, Health, and Society board member/ED physician and producer of Grey’s Anatomy, Dr. Zoanne Clack.
Now if they would only call us – we’d let them know nurses do a lot more than pass pills, shuffle papers, and gossip at the nurses’ station, as Hollywood often portrays!
To read more:
http://www.truthaboutnursing.org (advocating accurate images of nursing in the media)
Edward J. Kroger, MD, JD and E. Dale Burrus, JD, LLM have been selected by their peers as 2014 Texas Super Lawyers. Dr. Kroger and Ms. Burrus practice in the areas of health law and medical malpractice defense. Their clients include health care facilities and medical professionals across Texas.
Match diseases with names:
||A. Mary Mallon|
||B. Fredrick Daniel von Recklinghausen|
||C. Lou Gehrig|
||D. Hans C. J. Reiter|
||E. Hakaru Hashimoto|
||F. Gerhard Hansen|
- Amyotrophic Lateral Sclerosis – (C) The neurodegenerative disease is also named after baseball hall of famer Lou Gehrig (1903-1941).
- Neurofibromatosis – (B) Von Recklinghausen disease or neurofibromatosis, a nerve tumor disorder, is named for the pathologist who first described it in 1882. Englishman Joseph Merrick (1862-1890) was the famous “Elephant Man” thought to have had the disease.
- Salmonella typhi – (A) Mary Mallon, a/k/a “Typhoid Mary”, as called in the Journal of the American Medical Association in 1908, was the first known carrier of Salmonella typhi which causes Typhoid Fever. She worked as a cook, thereby spreading the disease to dozens until she was eventually apprehended and quarantined for the rest of her life on an island in New York City’s East River. Salmonella is named after a veterinary pathologist, Daniel Elmer Salmon, although a man named “Smith” actually discovered the bacteria. See the quarantine island today:
- Leprosy – (F) Leprosy is also known as Hansen’s disease, for the Norwegian physician who identified causative bacteria Mycobacterium leprae.
- Chronic lymphocytic thyroiditis – (E) Hashimoto’s thyroiditis, or chronic lymphocytic thyroiditis, is an autoimmune disorder of the thyroid gland and the most common cause of hypothyroidism in parts of the world without sufficient iodine levels. It was named after Japanese surgeon Hakaru Hashimoto (1881 – 1934).
- Reactive arthritis – (D) Another autoimmune disorder, reactive arthritis, was formerly known as Reiter’s Syndrome for German physician Hans C. J. Reiter, until his Nazi past was revealed.
On August 8, 2014, the World Health Organization declared the Ebola virus a Public Health Emergency of International Concern (PHIEC). Specific information regarding the signs and symptoms of, history and current status of the Ebola virus epidemic can be found here. The mortality rate ranges from 50 to 70%. There is no proven treatment or vaccine for the Ebola virus.
By now, most have heard of Dr. Kent Brantly and Nancy Writebol, missionaries who contracted the Ebola virus in Africa and are being treated at Emory University Hospital in Atlanta. Their condition is reportedly improving and has been attributed to ZMapp, an experimental drug that has been tested only on monkeys. Dr. Brantly and Mrs. Writebol were allowed access to the drug through the “compassionate use” program of the Food and Drug Administration (FDA). The FDA considers requests for access to experimental drugs to people outside clinical trials if a patient meets the following criteria: (1) the disease or condition is serious or immediately life-threatening; (2) no comparable or satisfactory therapeutic alternatives exist; (3) the drug manufacturer and the patient’s doctor make arrangements to obtain the drug for the patient; and (4) the FDA authorizes these arrangements.
A request for the exemption may not result in access to it. Drug companies may balk at providing an experimental drug out of concern for bad publicity if the recipient dies or develops life-threatening side effects. A physician may not agree to the use of the drug out of fear of liability or exposing the patient to significant health risks.
The FDA warns patients seeking access of the following: the treatment may not work; the drug may have unknown health risks; and obtaining approval from the FDA may take some time, as there is no deadline for the FDA to respond to these requests. If access is granted, the drug manufacturer may charge the patient for the drug, which is typically expensive, and not paid for by insurance. After the initial cost of the drug, there may be associated costs for monitoring the drug’s effect.
According to the Center for Disease Control, however, ZMapp’s manufacturer has a limited supply of the drug. In addition, it has not started Phase 1 (of 4) of the clinical trial to determine its safety and effectiveness. On August 9, Reuters reported that The Centers for Innovation in Advanced Development and Manufacturing, which were set up by the US Department of Health and Human Services to partner with private industry to respond to any major public health threat, expressed willingness to assist with making experimental drugs to treat Ebola. We will continue to monitor whether this organization is asked to manufacture any experimental drugs for the Ebola epidemic in Africa.
Congratulations to Managing Partner Edward J. Kroger, MD, JD for being selected by H Texas Magazine as one of Houston’s Top Lawyers in 2014.
Schrade v. Earle
A radiologist who was sued for allegedly performing an unnecessary neck surgery testified that dye leaking out of the C4-C5 level of the patient’s neck indicated the need for the surgery at issue. The patient sought to impeach the radiologist with a discography film, but the court excluded it because it had not been produced in discovery. Contending the discography film proved the radiologist committed perjury, the patient moved for a new trial. The San Antonio appellate court upheld the denial of the motion for new trial, noting that there was a dispute over the proper interpretation of the discography film, and an affidavit from the patient’s expert alone did not prove the radiologist committed perjury.
CHCA West Houston v. Shelley
A hospital employee filed a slip-and-fall claim against the hospital, which moved for dismissal due to her failure to file an expert report. The employee argued that her claim was not a health care liability claim. The Houston appellate court reversed the trial court’s denial of the hospital’s motion to dismiss, extending to hospital employees its earlier holdings that slip-and-fall claims by hospital visitors qualify as health care liability claims.
Doctor Accused of Overprescribing Painkillers Convicted of Manslaughter
A New York doctor whose prescription practices were allegedly responsible for the fatal overdoses of two patients has been convicted on two counts of second-degree manslaughter, as well as several lesser charges. He faces a prison term of five to 15 years on each of the manslaughter counts.
Survey: Few Physicians Would Choose ‘Extraordinary Measures’ for Themselves
Among physicians surveyed about what treatment options they would select if faced with a terminal illness, only 7% would request that extraordinary measures be taken. About 55% would request palliative care, 43% would request hospice care, 39% would choose not to be resuscitated and the remaining 16% were unsure.
Houston Hospitals Ranked Highly by US News and World Report
Multiple Houston-area hospitals received high scores in US News and World Reports’ latest hospital rankings. Texas Children’s Hospital was ranked second nationwide for neonatology and cardiology services and was named among the top 10 children’s hospitals in seven other categories. MD Anderson Cancer Center was ranked second among hospitals nationwide for cancer treatment and was listed among the top 10 hospitals for ear, nose and throat and gynecological services. TIRR Memorial Hermann was ranked third among hospitals providing rehabilitation services, and the Menninger Clinic was named among the top five health care entities for psychiatric services.
Nursing Workforce Spikes Despite Projected Shortage
Contrary to an anticipated shortage of nurses, the nursing workforce in the US has grown more rapidly than projected. In 2012, there were 2.7 million registered nurses nationwide, exceeding estimates from a year earlier by about 500,000, according to a study published in the journal Health Affairs. The study suggests that nurses delaying retirement contributed to an additional 136,000 nurses remaining in the workforce.
Study Suggests EHRs do not Contribute to Hospitals Overcharging Medicare
A comparison of the billing practices between hospitals that use paper records and those that have transitioned to electronic health records found no difference in their billing practices, suggesting fears that electronic health records would contribute to overcharging Medicare may be unwarranted.
Hand Hygiene Rates Higher When Auditors Visible
Hand hygiene rates were three times higher when auditors were visible to healthcare workers, according to a study at a major acute care hospital in Canada.
Medicare Providers Reportedly Lose Millions Due to Excessive Audits
Healthcare providers say they are spending millions of dollars tied up in appeals due to an increasing number of Medicare audits. The rise in the often duplicative audits has not succeeded in reducing Medicare fraud, according to a recent report from the US Senate Special Committee on Aging, which has criticized the government for not targeting its resources more effectively.
Study Questions Necessity of Fasting Before Cholesterol Tests
While medical groups recommend that patients fast for up to 12 hours before taking a blood lipid test, a recent analysis suggests that a non-fasting cholesterol test may provide the same prognostic value as a fasting test.
Memorial Hermann Southwest Hospital v. Hayden
A hospital visitor filed suit alleging the hospital was responsible for her slip and fall. The hospital moved for dismissal on the basis no expert report was filed, but passed the dismissal hearing after the visitor amended her petition and asserted that her claim was a premises liability claim not subject to Chapter 74. After the Texas Supreme Court’s decision in Texas W. Oaks Hosp. v. Williams, the hospital moved to dismiss again. The appellate court affirmed the trial court’s finding that the claim constituted a health care liability claim, and that the hospital had waived its right to move for dismissal after passing on the initial dismissal hearing, engaging in extensive trial preparation, and waiting approximately 670 days after the visitor amended her petition to file its second motion to dismiss.
Smith v. Wall
A dental patient who allegedly sustained nerve damage during a wisdom tooth extraction filed suit against his dentist, alleging he failed to obtain informed consent regarding the risk of nerve damage. The trial court granted the dentist’s motion to dismiss, holding that the patient’s expert reports were inadequate. The Austin appellate court reversed, finding that the expert adequately described his opinion that the dentist’s failure to obtain informed consent was a breach of the standard of care that caused the patient’s injury.
Number of Induced Labors Declines
After almost two decades during which the number of induced labors had steadily increased, the number of US infants born early due to induced labor or C-section is on the decline. Between 1990 and 2010, the rate of induced labors had increased from 10% to 24%, but has been dropping slowly in recent years, in part due to recent efforts by medical societies to advocate against unnecessary induced labors.
Study Validates Hospital’s Efforts to Improve Patient Safety
A Connecticut hospital’s efforts to improve patient safety through standardizing practices, training health care providers to improve teamwork, and hiring a patient safety nurse have paid off, according to a study by Yale School of Medicine researchers. Researchers found that in the five years after the initiative was started, the hospital experienced a 50% reduction in liability claims and a 95% decrease in liability payments compared to the five years preceding the initiative.
CHRISTUS Selects First President for Children’s Hospital of San Antonio
Elias J. Neujahr has been chosen to serve as the first president of CHRISTUS Santa Rosa Health System’s new Children’s Hospital of San Antonio, which is currently under construction downtown. Neujahr comes to San Antonio from Spectrum Health in Grand Rapids, Michigan, where he was responsible for medical group and hospital operations at Helen DeVos Children’s Hospital. His prior experience includes serving as vice president of clinical resources for the Women and Infants Hospital of Rhode Island and The Children’s Hospital in Denver.
CHRISTUS Upgrading South Texas Medical Center Hospital Campus
Renovations at the CHRISTUS Santa Rosa Hospital — Medical Center should be completed at the Northwest San Antonio campus later this month. CHRISTUS is increasing surgical facility space at the hospital, increasing the overall capacity in the intensive care unit, and adding 22 intermediate care unit beds.
FBI Launches Criminal Inquiry into VA Scandal
The FBI has opened an investigation into accusations that Department of Veterans Affairs officials falsified reports to cover up delayed care for thousands of veterans, according to testimony provided by FBI Director James B. Comey last week to the House Judiciary Committee.
Hospitals Placing Pharmacists in Emergency Departments to Reduce Errors
In an effort to reduce medication errors, some hospitals are turning to pharmacists who specialize in emergency medicine. Medication errors and dangerous drug interactions contribute to 7,000 deaths across the US annually. Although electronic medical systems can help catch these types of errors, a recent study in the Annals of Emergency Medicine found that even with an electronic medical record, 25% of children’s prescriptions had errors, as well as 10% of adults’ prescriptions.
Report: Medicare Frequently Overpays
Medicare paid $6.7 billion more than it should have for office visits and patient evaluations in 2010, according to a report from the Department of Health and Human Services. The Centers for Medicare and Medicaid Services has stated in its reply to the report that it does not intend to change its review of physician’s billings, because it would not be cost-effective to do so.
Cancer Physicians Encouraged to Consider Financial and Medical Impact of Treatments
Physicians should consider the financial impact along with the medical impact of cancer treatments, taking into account both the volume and price of treatments, experts at the world’s largest annual meeting of oncologists have urged. Healthcare costs continue to grow faster than the economy, and in response the American Society of Clinical Oncology is developing a system to rate drugs based on the benefit, side effects, and price.
‘Meaningful Use’ Could Change Order of EHR Adoption
The ‘meaningful use’ guidelines intended to encourage the transition to electronic health records may be impacting the order in which hospitals adopt health record functions, according to a study published by the Journal of the American Medical Informatics Association. The study, which analyzed the order in which hospitals adopted various EHR functions, found that hospitals tended to adopt patient demographics and ancillary results components of EHR systems first, and physician notes, clinical reminders, and guidelines last.
Ultraviolet Cleaning Helps Combat Superbugs
Ultraviolet cleaning can reduce the prevalence of ‘superbugs’ such as methicillin-resistant Staphylococcus aureus by as much as 20%, according to a recent study. Hospitals that used ultraviolet environmental disinfection over the course of the 30 months study experienced some of the lowest incidence of infection in a decade.
Study Links Steroids to Delirium Among ICU Patients
Hospital ICU patients receiving steroids are significantly more likely to develop delirium, according to new Johns Hopkins research. Although the delirium episodes observed tended to subside within a few days, studies have shown that the onset of delirium in the ICU is associated with worse functional recovery and cognitive impairments similar to those caused by moderate traumatic brain injury or mild Alzheimer’s disease.
Health Law Inspiring Hospital Charity Cutbacks
Implementation of the Affordable Care Act is encouraging hospital systems throughout the country to cut back on charitable caregiving in favor of efforts to encourage low-income patients to enroll in online marketplaces. Hospital executives hope that they can encourage individuals to obtain low-cost insurance through the subsidized private plans that are now available.
Women with Diabetes Face Greater Heart Risk than Diabetic Men
Women with diabetes are at a significantly higher risk for developing cardiac problems than diabetic men. A meta-analysis of 64 studies found that diabetic women were at a 44% higher risk for cardiovascular events than diabetic men. Although the reasons for the discrepancy are unclear, some speculate that the reason for the differences may be because women tend to have to gain much more weight than men before developing diabetes, placing diabetic women at a higher risk for coronary heart disease at the time their diabetes is diagnosed.
Prescription Delay Following Stent Placement Common and Deadly
Patients frequently delay filling prescriptions for the blood thinner clopidogrel after receiving heart stents and many who do so face an increased risk for myocardial infarction and death, according to a new study published in the Journal of the American Heart Association. Researchers found a third of patients did not fill their prescriptions within three days of stent placement, placing them at a twofold increase in the risk for death or readmission within two years.
What’s in a name, asked Shakespeare. Many things are named after people: schools, organizations, pets — and diseases. Test your knowledge of diseases named for or associated with specific people. (Hint – diseases may have more than one name):
Match diseases with names:
||A. Mary Mallon|
||B. Fredrick Daniel von Recklinghausen|
||C. Lou Gehrig|
||D. Hans C. J. Reiter|
||E. Hakaru Hashimoto|
||F. Gerhard Hansen|
Check back next week for answers.