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Texas Supreme Court Ends Practice of “Claim Splitting” in Health Care Liabilty Cases

by Kroger Burrus on December 21st, 2010

In Yamada v. Friend, No. 08-0262, the Texas Supreme Court recently held a plaintiff cannot use alternative pleading to “split” a cause of action into both a health care liability claim and an ordinary negligence claim based on the same facts. In this case, a twelve-year old girl collapsed while waiting in line for a ride at the North Richland Hills Family Water Park. Emergency aid was rendered by park employees and the Fire Department, but the girl later died at a hospital due to a heart condition.

The family filed suit against the water park and Dr. Yamada, a physician who had been retained by the park as a safety consultant. Chief among the family’s complaints was the alleged negligent placement of an automated external defibrillator (“AED”) that could have prevented their daughter’s death. The suit alleged Dr. Yamada was negligent for the advice he provided regarding the placement of the AED and that he was negligent in the actual placement of the AED.

Dr. Yamada filed a motion to dismiss the case in the trial court after the family failed to file the expert report required by Section 74.351 of the Civil Practice & Remedies Code. The trial court denied the motion and the case was appealed to the Fort Worth Court of Appeals.

The Court of Appeals held the family had two distinct claims against Dr. Yamada that implicated two different standards of care. First, the claim that he was negligent in providing medical advice regarding the AED placement was a health care liability claim requiring Dr. Yamada to act as an ordinarily prudent emergency medicine physician. Second, the claim related to the actual placement of the AED was an ordinary negligence claim that did not have a heightened standard of care. Based on this reasoning, the Fort Worth Court dismissed the claim related to the advice provided by Dr. Yamada, but held the claim related to the placement was not a health care liability claim. Thus, an expert report was not required to be served on that claim for ordinary negligence.

The Texas Supreme Court reversed the Fort Worth Court’s opinion and dismissed all the claims against Dr. Yamada. It is well established that a plaintiff cannot use artful pleading to recast claims to avoid the requirement of Chapter 74. The two claims asserted against Dr. Yamada were based upon the same facts and “cannot be split into health care and non-health care claims by pleading his actions violated different standards of care.”

In most health care liability claims there are at least some actions by the health care provider that fall within the common knowledge of jurors and would not require expert testimony to explain why those actions were negligent. However, if courts were to allow the fact a particular action or omission could give rise to an ordinary negligence claim, while other actions or omissions occurring in the same course of treatment constituted a health care liability claim, it would effectively negate the procedural provisions of Chapter 74.

There were two other issues raised by Dr. Yamada that the Supreme Court did not address. First, he argued that the family’s “ordinary negligence” claims were safety claims directly related to health care that fell within the purview of Chapter 74. Second, he argued that he could not be liable because he did not have a physician-patient relationship with the deceased girl.

This decision is favorable for health care providers in Texas because it further solidifies the long standing principle that a plaintiff cannot plead his or her way around Chapter 74. While “alternative pleading” is typically allowed under Texas law, the Supreme Court has effectively ended that practice in health care liability claims. A copy of the Court’s opinion is available at:

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