No Apologies

They say that love means never having to say you’re sorry.  Apparently, the other thing that excuses apologies is being on the Texas Supreme Court.

Dabbling in healthcare law as I do on a fairly regular and ongoing basis, the coverage of the Texas Medical Liability Act is a major concern for my practice.  The Act carries with it a slew of special provisions that don’t apply to other areas of litigation practice, so it’s important to know when those provisions apply and when they don’t.  If the law says a case falls under the rubric of healthcare liability, and the lawyer prosecuting it doesn’t fulfill the statute’s procedural requirements, it can result in the claim being thrown out and the lawyer’s reputation being significantly tarnished.

As a result, I follow pretty closely how the high nine in Austin construe the statute and its reach.  It’s no secret in legal circles that the reach seems to have been stretched far beyond what was ever intended.  The Act itself defines a healthcare claim as a case based on “treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care.”  Seems simple enough, right?  Well, that coverage had been deemed to include everything from performing surgery to laser hair removal to figuring out how frequently a nursing home needs to bring in the exterminator to get rid of spiders.

So, when the Texas Supreme Court reviewed the case of Texas West Oaks Hospital v. Williams back in 2012, I had high hopes that the Court would rein in the absurdity.  So much for that.  In Williams, a hospital employee sued his employer for negligence following a fight with a severely paranoid-schizophrenic patient, prone to violence.  In the altercation between the patient and Williams, the patient died, and Williams was injured.  The patient’s family sued both the hospital and Williams, individually, under a healthcare liability theory, and Williams cross-claimed against the hospital for failure to provide him a safe workplace and train him to deal with severely schizophrenic patients.  Both the trial court and the Fourteenth Court of Appeals rejected the hospital’s argument that Williams’s suit against the hospital was a healthcare liability claim.  The Court of Appeals reasoned that the hospital’s duty to Williams arose out of an employer-employee relationship, not a physician-patient relationship and that claims arising out of safety provided by a healthcare institution deal with safety that is “directly related to healthcare” under the plain language of the statute.  But not according to the high court.

In a majority opinion authored by Justice Wainwright, the Court managed to divorce a claimant in “healthcare” from any sort of physician-patient or provider-patient relationship and “safety” under the Medical Liability Act from safety having any relationship to healthcare, saying no direct relation was needed. The Court held that Williams was a claimant under the Act, regardless of the fact that he never sought healthcare, never received healthcare, and his damages had nothing to do with receiving healthcare, and that the safety standards he questioned didn’t even have to have anything to do with healthcare. Basically, if it’s related to safety and it’s against a healthcare provider, it’s healthcare.

And then, just over two years later, the Court reversed course in Ross v. St. Luke’s Episcopal Hospital.  Ross was a standard issue “slip and fall” case, where a hospital visitor slipped near the lobby exit doors of the hospital, sustaining injury.  Based on Williams, the hospital argued that this was a claim for violation of a safety standard that, of course, did not have to be related to healthcare.  Except now the Court said that it did.  Or, at least, it said that it couldn’t be healthcare if it had absolutely zero to do with healthcare, and in this case, it was about keeping the floors clean and non-skid.  The Ross Court then went on to provide a non-exhaustive list of seven factors that could be used to determine if a claim for a violation of safety standards was a healthcare liability claim.  Interestingly, two of those factors were: “At the time of the injury was the claimant in the process of seeking or receiving health care?” and “Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider?”  And if you think those two factors sound remarkably like things that the Court rejected as being of importance in Williams, I’d have to say you’re onto something.

And now, more recently, we have the case of Reddic v. East Texas Medical Center, where the Court issued a per curiam decision that basically doubles down on the ideas put forth in Ross, holding that there should be some sort of “substantial nexus” between safety and healthcare, as opposed to a “direct connection.”  A per curiam decision is what the Court issues when the prospect it stands for is as obvious as the sun coming up in the morning or water being wet.  Again, if all this sounds like furious backpedaling to you, it sounds like it to me, too.  Williams was subject to a lot of criticism, and the one-two combination of Ross and Reddic could well be interpreted as the Court’s way of saying “my bad.”  In the face of proposed legislation attempting to re-establish a connection between safety and healthcare and likely howls of protest from the insurance industry, the Court seems to have backtracked significantly. (Since I first drafted this post, the Court has now issued yet another per curiam in Galvan v. Memorial Hermann Hospital System. A court that previously seemed to see every premises claim as a healthcare liability claim now couldn’t find one with a telescope, a metal detector, and a crack team of investigators.)

But when you’re the Texas Supreme Court, you don’t ever have to admit being wrong.  It was we, the great unwashed, who missed the nuances of Williams and created problems, rather than the Court taking a ham-fisted approach that overly broadened the reach of the Medical Liability Act.  Fortunately, later action appears to have atoned for the sins of Williams. Apologetic or not, I’ll gladly accept that result, even absent a heartfelt confession.