Transcript www.tha.org

Health Law Liability
Year in Review
2011 Texas Health Law
Conference
Austin, Texas
October 10-11, 2011
Yvonne K. Puig
Daphne Andritsos Calderon
Copyright, 2011. All Rights Reserved.
1
ISSUES AFFECTING HOSPITALS AND HEALTHCARE PROVIDERS
Physician Credentialing & HCQIA Immunity
Leal v. Secretary of Health & Human Services p. 1
• 11th Circuit Court of Appeals held that a
hospital’s 60-day summary suspension of a
physician based on disruptive conduct fell within
the definition of a reportable event under HCQIA
and was reportable to the NPDB
• Dr. Leal “pitched a fit” when he was told he
would have to wait to use an operating room and
became so angry he broke a telephone, shattered
the glass on a copy machine, shoved a metal cart
so hard that it damaged a door, threw jelly beans
down a hallway in the surgical suite, flung a
medical chart to the ground and verbally abused
a nurse manager
2
Leal v. Secretary of Health &
Human Services (cont’d)
• Hospital imposed a 60-day summary suspension on his
privileges for the “violent and unprofessional actions”
• The hospital reported the suspension to the NPDB
• Dr. Leal sought review of the report by the Secretary of
Health and Human Services
• HQCIA requires a hospital to report a professional
review action that adversely affects a physician’s clinical
privileges for more than 30 days
• Even though Dr. Leal’s conduct did not involve patients,
the hospital was nonetheless required to report his
conduct under HCQIA because actual harm to a patient
is not a prerequisite for a disciplinary action
3
Stratienko v. Chattanooga-Hamilton
County Hospital p. 2
• Sixth Circuit held that state-action immunity from claims
for alleged antitrust violations extends to a public
hospital whose suspension of a doctor’s privileges may
have had anti-competitive effects
• Dr. Stratienko, an interventional cardiologist, shoved
another doctor in the Hospital’s break room
• Dr. Twiest informed the MEC of his investigation, but
sought the opinion of only one member—Dr. Nita
Shumaker—because the other two had conflicts of
interest
• Dr. Twiest informed Dr. Stratienko that his privileges
were being temporarily suspended, effective immediately
4
Stratienko v. Chattanooga-Hamilton
County Hospital (cont’d)
• Instead of invoking his right to appear before the
Hearing Panel, Dr. Stratienko sued Dr. Twiest, the three
members of the MEC, other individual doctors, and the
Chattanooga-Hamilton County Hospital Authority,
which operated Erlanger Hospital
• The lawsuit alleged antitrust violations,
• The suit also alleged that Dr. Stratienko’s suspension
violated the equal protection and due process provisions
of the United States Constitution
• The district court dismissed the antitrust claims and
granted summary judgment for Dr. Twiest and the
Hospital on the constitutional claims, and the Sixth
Circuit affirmed the district court’s orders
5
Stratienko v. Chattanooga-Hamilton
County Hospital (cont’d)
• As to the antitrust claims, the court held that the two
doctors who did not participate in Dr. Stratienko’s
suspension could not have conspired to restrain trade
• Hospital enjoyed state-action immunity as a state
subdivision acting pursuant to the “clear policy”
under Tennessee law of letting private-act hospitals
like Erlanger determine privileges without regard to
competitive consequences
• The court held, any deprivation of Dr. Stratienko’s
due process rights was limited because the
suspension was temporary and affected his privileges
at only one hospital
6
Ray v. Pinnacle Health Hospitals p. 4
• The Third Circuit affirmed summary judgment for a
hospital on a doctor’s racial discrimination and
retaliation claims, finding that the doctor failed to
produce sufficient evidence to rebut the hospital’s
explanation that its decision not to renew his
medical staff appointment was based on concerns
about his competency
• From 1992 through July 2007, Dr. Ray had
surgical privileges at Pinnacle Health Hospitals
• Dr. Ray was not an employee of Pinnacle and
despite his periodic requests he was not invited to
join the faculty of the hospital’s residency program
7
Ray v. Pinnacle Health Hospitals (cont’d)
• Dr. Ray’s surgical privileges were regularly renewed
for two-year periods until January 2007, when Pinnacle
notified him that his privileges would be renewed for
only six months due to an ongoing quality assurance
investigation into several of his case histories
• In April of that year, Dr. Ray sued Pinnacle, alleging
the hospital violated 42 U.S.C. § 1981 by
discriminating against him on the basis of his AsianIndian race
• Pinnacle’s Credentials Committee unanimously
recommended to the MEC that Dr. Ray’s application
for reappointment be denied
8
Ray v. Pinnacle Health Hospitals (cont’d)
• The MEC unanimously approved the Committee’s
recommendation
• The FHC unanimously concluded that although
“several of the MEC’s findings were unreasonable or
unsupported by the record,” Dr. Ray’s reappointment
application should be denied because of his “exercise
of poor clinical judgment in pre-operative, interoperative, and post-operative patient care render[ed]
patient care below accepted standards of medical
practice.”
• The FHC’s decision was unanimously confirmed by
the Appellate Review Committee, and the full board of
directors voted to deny Dr. Ray’s reappointment
9
Ray v. Pinnacle Health Hospitals (cont’d)
• Following the denial of his reappointment, Dr. Ray
amended his complaint against Pinnacle to allege
unlawful retaliation
• The district court granted Pinnacle’s motion for
summary judgment on all claims
• In the summary judgment context, “the plaintiff must
point to some evidence, direct or circumstantial, from
which a fact finder could reasonably either (1)
disbelieve the employer’s articulated legitimate
reasons; or (2) believe that an invidious discriminatory
reason was more likely than not a motivating or
determining cause of the employer’s action
10
Ray v. Pinnacle Health Hospitals (cont’d)
• It held that one other surgeon’s opinion that Ray
was a good doctor is insufficient to suggest that race
motivated the decisions of four separate review
panels, comprised of over 37 physicians and
Pinnacle’s board of directors, all of whom reviewed
Ray’s patient records
• The court made clear that a plaintiff alleging racial
discrimination “must show, not merely that the
employer’s proferred reason was wrong, but that it
was so plainly wrong that it cannot have been the
employer’s real reason”
11
Chudacoff v. University Medical Center p. 6
• In Chudacoff, the Ninth Circuit held that private
physician members of a public hospital’s medical
executive board are “state actors” who can be held
liable for violating a physician’s constitutional rights
• Dr. Richard Chudacoff appealed the district court’s
grant of summary judgment in his civil rights action
arising from the suspension, without prior notice or a
fair hearing, of his medical staff privileges at the
University Medical Center of Southern Nevada
(UMC)
12
Chudacoff v. University Medical Center
(cont’d)
• The sole issue on appeal was “whom, if anyone,
Chudacoff may sue under 42 U.S.C. § 1983 for his
constitutional injury”
• Even though the doctors were private individuals
not technically employed by UMC, their actions in
suspending Chudacoff’s privileges had such a close
nexus with the state that they could be treated as
state actors
• Their authority to suspend Chudacoff’s privileges,
after all, derived from UMC, which in turn derived
its authority directly from state law
13
Chudacoff v. University Medical Center
(cont’d)
• The court affirmed the summary judgment as to
Chudacoff’s claims directly against UMC and its
Board of Trustees, however, holding that Chudacoff
failed to establish “that his constitutional injury was
caused by employees acting pursuant to an official
policy or longstanding practice or custom, or that
the injury was caused or ratified by an individual
with final policymaking authority”
14
Sternberg v. Naticoke Memorial Hospital p. 6
• Lawsuit brought by an orthopedic surgeon whose
privileges were summarily suspended for disruptive
behavior
• Court found HCQIA immunity from liability applied
even though the surgeon’s behavior did not put any
patients in imminent danger
• He was critical of hospital practices and vocal about
quality of care issues
• Staff, patients and/or doctors filed complaints against
the surgeon every few months concerning his “loud
and antagonistic manner”
15
Sternberg v. Naticoke Memorial Hospital
(cont’d)
• Throughout his tenure at the hospital, he was being
treated for a psychiatric disorder
• Dr. Sternberg was dissatisfied with his case
scheduling and, after belittling the staff, disrupted a
doctor’s meeting by verbally attacking a member of
the staff
• He became very angry and waved the drill he was
holding in the air while in the OR
• The MEC recommended that his medical privileges
be revoked based on his “continuing pattern of
disruptive behavior” that “placed patients at risk”
16
Sternberg v. Naticoke Memorial Hospital
(cont’d)
• Later, Dr. Sternberg was running for public office
and was told by the hospital that he could not
campaign there
• He invited a reporter to observe him in the OR
• By day’s end, Dr. Sternberg was placed on
precautionary suspension for bringing a reporter
into the OR under false pretenses thus disrupting the
ability of the OR staff to provide appropriate patient
care and subjecting the patient to risk of infection
• The hospital offered the surgeon a leave of absence
in lieu of a suspension which he accepted
17
Sternberg v. Naticoke Memorial Hospital
(cont’d)
• Dr. Sternberg was reappointed on December 7,
2006, but was required to complete a three-day
program for physicians who engage in disruptive
behavior
• He complied with the condition and returned to
work on December 14
• He remained on staff at the hospital until his
resignation on January 31, 2008
• Before he resigned he filed a lawsuit against the
hospital for tortious interference with business,
defamation and breach of the bylaws
18
Sternberg v. Naticoke Memorial Hospital
(cont’d)
• The court granted the hospital’s motion for
summary judgment on statutory immunity and
awarded the hospital its attorneys’ fees and costs
• On appeal, Dr. Sternberg claimed the MEC did not
have a reasonable basis to believe that his conduct
could be an imminent danger to someone’s health
and thus there was sufficient evidence for a jury to
conclude that the hospital was not entitled to
HCQIA immunity
• He argued that the reporter’s presence did not
endanger any patient
19
Sternberg v. Naticoke Memorial Hospital
(cont’d)
• The court rejected this argument explaining that Dr.
Sternberg failed to account for his long history of
disruptive behavior in the face of multiple warnings
including that he “yelled at staff members and other
doctors, demeaned patients, kicked doors, threw
charts, and generally overreacted to problems that
arise in any hospital, such as scheduling conflicts”
20
In re Rio Grande Regional Hospital p. 8
• Mandamus proceeding, the Thirteenth Court of
Appeals addressed whether a physician’s medical
staff file, including 400 pages of credentialing
information was privileged and whether the nonparty hospital had waived such privilege
• In the underlying suit filed by plaintiffs against an
Ob/Gyn physician, Rio Grande Regional Hospital
was subpoenaed as a non-party by the plaintiffs to
produce all correspondence between the hospital
and the physician
21
In re Rio Grande Regional Hospital (cont’d)
• The hospital filed a motion for protective order and
to quash the subpoena asserting that the requested
information was protected from disclosure by Texas
medical committee and peer review privileges
• The hospital argued on mandamus that because the
plaintiffs never produced any evidence refuting the
hospital’s prima facie showing of privilege, the trial
court abused its discretion
• The appellate court agreed
22
In re Rio Grande Regional Hospital (cont’d)
• While the general medical committee privilege may be
waived by voluntary disclosure, the peer review privilege
requires explicit written waiver and the peer review
privilege has been held to protect hospital credentials files
of physicians
• Here, the affidavit of the director of medical staff affairs
established that she had maintained the file as confidential
and that no written waiver had been executed
• The court concluded that the affidavit, combined with the
privilege log and in camera document production,
established a prima facie case of privilege and the
plaintiffs failed to meet their burden of either
controverting such evidence, showing waiver or that the
documents were made in the ordinary course of business 23
Theories of Liability
Greenville Surgery Center v. Beebe p. 9
• The 5th District Court of Appeals upheld the grant of
summary judgment in favor of a group of physicians
seeking to establish that a covenant not to compete in
another ambulatory surgery center joint venture was
unenforceable
• The physicians were limited partner investors in
Greenville Surgery Center, Ltd. (GSC),which owns and
operates an ophthalmology surgery center in Dallas
• Limited partnership agreement contained a covenant
not to compete barring the limited partners from
owning an interest in a competing facility while being a
limited partner at GSC
24
Greenville Surgery Center v. Beebe (cont’d)
• In early 2007, the physicians began discussing a
new facility in anticipation of GSC building’s lease
expiration
• By October 2007, the physicians entered into a
contract to purchase land located 1.5 miles from the
surgery center
• After being threatened with a lawsuit by GSC, the
physicians filed suit, seeking a declaration that the
covenant not to compete was unenforceable and
injunctive relief requesting that the court enjoin
GSC from interfering with their efforts to build the
new surgery center
25
Greenville Surgery Center v. Beebe (cont’d)
• On appeal, the court addressed whether the trial
court erred in holding that Section 15.50(b) of the
Texas Business & Commerce Code applied to the
covenant not to compete
• Court noted that the code section provides that a
covenant not to compete is enforceable against a
person licensed as a physician by the Texas Medical
Board, if among other requirements, such covenant
provides for a buy out of the covenant by the
physician at a reasonable price, or at the option of
either party
26
Greenville Surgery Center v. Beebe (cont’d)
• In this case, the covenant did not have the buy-out
provision as required by the statute
• Thus, based on review of the plain language of the
statute and the covenant not to compete, the trial
court properly applied Section 15.50(b) in this case
27
Moreno v. Quintana p. 11
• On appeal from summary judgments granted in
favor of the hospital and doctor defendants, the
8th District Court of Appeals stated that although
“Texas may not formally recognize an
independent, common law, cause of action for
negligent credentialing, such allegations are
recognized by Texas courts and by statutory
authority as actionable theories of liability in
medical negligence cases”
• Plaintiffs asserted that the hospital negligently
credentialed the physician assistant who was
involved in the patient’s care
28
Moreno v. Quintana (cont’d)
• Court reversed the summary judgments finding
issues of fact regarding causation
• The court then held that “negligent credentialing is
a viable theory of liability for medical negligence on
the part of a health care entity, which fails to abide
by the specialized standard of care and industry
guidelines, which govern the credentialing process
for medical staff”
• Court concluded that summary judgment for the
hospital was not properly granted on the basis that
negligent credentialing is not recognized as a basis
of liability in Texas
29
Moreno v. Quintana (cont’d)
• Having concluded that such a cause of action exists,
the court turned its focus on plaintiffs’ burden of
proof under Texas Occupations Code
• The provision provides immunity for health care
entities absent a showing of malice in the
credentialing process
• Hospital asserted that the provision applied to the
credentialing of a physician’s assistant as well as
physicians and because there was no showing of
malice with regard to the hospital’s credentialing
procedures, summary judgment was proper
• The appellate court disagreed
30
Moreno v. Quintana (cont’d)
• Court reasoned that because the subtitle of Section
160.010 was dedicated solely to the licensing of
physicians, the legislature must have intended that
the provision only apply to credentialing decisions
involving physicians
• Both the hospital and Dr. Quintana filed petitions
for review before the Texas Supreme Court which
were denied
31
Rawlins v. Daughters of Charity
Health Services p. 14
• On appeal from a no evidence summary judgment,
the Austin Court of Appeals held that there was
no evidence in the record to support the claim
that the Plaintiff, Rachel Rawlins, “justifiably
relied on her belief” that a pathologist, Richard
Hammer, M.D., worked for Seton Medical Center
• Ms. Rawlins had surgery at Seton and tissue was
sent to the pathology department for biopsy where
Dr. Hammer reviewed the slides and reported his
findings
32
Rawlins v. Daughters of Charity
Health Services (cont’d)
• Ms. Rawlins asserted in her lawsuit that Dr.
Hammer misdiagnosed her breast cancer as
micrometastatic disease, which resulted in her
undergoing unnecessary chemotherapy and other
treatments
• She claimed that Dr. Hammer, who was employed
by Clinical Pathology Associates, was the ostensible
agent of the hospital
• Clinical Pathology Associates was an independent
entity that contracted with Seton to provide
pathology services
33
Rawlins v. Daughters of Charity
Health Services (cont’d)
• Ms. Rawlins never met Dr. Hammer and did not
select him as her pathologist
• She received Dr. Hammer’s pathology reports on
letterhead entitled “Seton Medical Center
Department of Pathology” with notations including
the words “SMC Surgical Path Report” or “SMC
pathology.”
• The reports did not separately identify Clinical
Pathology Associates or state that Dr. Hammer was
an independent contractor
34
Rawlins v. Daughters of Charity
Health Services (cont’d)
• She alleged that Dr. Hammer was the actual agent
or employee of Seton, or alternatively, that he was
an ostensible agent of the hospital
• Seton filed a motion for summary judgment on
Plaintiff’s claim that Dr. Hammer was not the
actual agent of Seton, which Plaintiff did not oppose
• The court reasoned that the Plaintiff’s belief that
Dr. Hammer “was a Seton pathologist only ‘played
into’ her decision not seek a second opinion” and
was insufficient to raise a genuine issue of material
fact
35
Humble Emergency Physicians v.
Memorial Hermann p. 15
• Humble Emergency Physicians, P.A. (Humble)
challenged the trial court’s grant of summary
judgment in favor of Memorial Hermann
Healthcare System, Inc. (Memorial), TeamHealth,
Inc., and two of TeamHealth’s affiliate companies
• Humble, a professional association of emergency
physicians, provided emergency medical and
administrative services to Northeast Medical
Center Hospital (Northeast) pursuant to a
contract set to expire on June 30, 2007
• In January of 2007, Memorial acquired Northeast
and assumed the contract with Humble
36
Humble Emergency Physicians v.
Memorial Hermann (cont’d)
• Humble sued Memorial, TeamHealth, and two of
TeamHealth’s affiliate companies
• It alleged that Memorial represented to Humble that
its bid process would be “fair and equal,” but in
fact Memorial had a “secret understanding” with
TeamHealth that it would be selected
• Humble further alleged that TeamHealth and two of
its affiliate companies conspired with Memorial to
induce Northeast to breach its duties to Humble
• The trial court granted summary judgment in favor
of all defendants, and Humble appealed
37
Humble Emergency Physicians v.
Memorial Hermann (cont’d)
• Humble argued the trial court erred in not ordering
the production of the bid submissions and the
contracts ultimately executed between Memorial
and TeamHealth
• The court of appeals, however, held the district
court had not abused its discretion in refusing to
compel production
• The bid submissions, the court held, were protected
by the “medical committee privilege” because they
were received at the request of an ad hoc committee
created by Memorial to select an emergency service
provider
38
Beller v. Health & Hospital Corp p. 16
• According to the U.S. District Court for the
Southern District of Indiana, a hospital operating
an ambulance service may be liable under the
Emergency Medical Treatment and Labor Act
(EMTALA) for its ambulance workers’ failure to
stabilize a patient before transporting her to
another hospital
• Thirty-four weeks into her pregnancy, Melissa
Welch called 911 because part of her baby’s
umbilical cord was protruding outside her body
39
Beller v. Health & Hospital Corp (cont’d)
• Warren called nearby St. Francis Beech Grove
Hospital and was advised by a doctor there that,
although the hospital lacked obstetrical facilities,
Warren could bring Welch there
• After examining Welch, doctors at St. Francis
determined that she needed to be transferred to a
hospital with emergency obstetrical facilities
• Following the transfer, Welch delivered her baby,
plaintiff Joshua Beller, but he suffered severe brain
damage from lack of oxygen
40
Beller v. Health & Hospital Corp (cont’d)
• The court first addressed the applicability of the
EMTALA, which applies only to a patient who
“comes to the emergency department” of a hospital
• The district court held that, at the least, a genuine
issue of material fact existed as to whether the
plaintiffs had “come to” HHC’s emergency
department
• The court then explained that if the plaintiffs did
“come to” HHC’s emergency department, EMTALA
prohibited the ambulance service from transferring”
them without first stabilizing their condition
41
Beller v. Health & Hospital Corp (cont’d)
• EMTALA defines “transfer” as “the movement
(including the discharge) of an individual outside a
hospital’s facilities at the direction of any person”
• The court, however, found a question of fact as to
whether Warren, the ambulance operator and an
HHC employee, made the actual decision to take the
plaintiffs to St. Francis
42
Grain v. Trinity Health p. 17
• In this opinion, the Sixth Circuit affirmed a
summary judgment on various discrimination
claims brought by a physician against a hospital
that hired him to open a neurosurgery practice
• Mercy Hospital recruited Dr. Peter Grain, who is
African-American, to open a neurosurgery
practice in Port Huron, Michigan
• The hospital and Grain executed an Income
Guarantee Agreement (IGA) to cover his first
three years of practice
43
Grain v. Trinity Health (cont’d)
• After conflict arose between the parties, however,
the hospital stopped paying Grain within the first
year
• Some time later, Grain pursued but was denied a
job at another hospital, allegedly because Mercy’s
emergency room director provided the potential
employer with a scathing review of Grain
• Mercy ultimately decided to close its neurosurgery
program, citing patient safety and financial
concerns
44
Grain v. Trinity Health (cont’d)
• Grain brought suit shortly thereafter, alleging various
claims including breach of contract and unlawful
discrimination
• After recovering $1.6 million dollars in the arbitration
proceedings, Grain renewed his discrimination and
various other claims in federal court
• The district court granted summary judgment for
Mercy, and Grain appealed
• In order to prevail on his discrimination claims, the
Sixth Circuit noted, Grain had to establish that Mercy
intentionally discriminated against him on the basis of
his race in violation of 42 U.S.C. § 1981
45
Grain v. Trinity Health (cont’d)
• Discrimination arguments focused on Mercy’s
closing the neurosurgery program
• Grain alleged that by doing so, Mercy interfered
with both his implicit contractual relationship with
Mercy based on the hospital’s by-laws and his
future contractual relationships with referral
sources
• The court held, because Mercy had offered
legitimate, non-discriminatory explanations for
closing the program, and Grain failed to establish
that those reasons were pretext for discrimination
46
INTERPRETATION AND APPLICATION OF The Texas Civil Practice & Remedies Code
Substantive Issues Raised Under TCPRC
Turner v. Franklin p. 18
• Plaintiffs appealed the trial court’s grant of
summary judgment finding their claims were ones
arising from the provision of “emergency medical
care”
• The plaintiffs sought treatment for their son,
K.M.T., at the ER of Presbyterian Hospital when he
complained of severe pain in his left lower
abdominal region and swelling in his left testicle
• He was examined by Dr. Franklin in the ED and an
ultrasound that was read by the on call radiologist,
Dr. Cohn, revealed epididymitis with no evidence of
torsion
47
Turner v. Franklin (cont’d)
• The plaintiffs sued claiming that Dr. Cohn improperly
interpreted the ultrasound and Dr. Franklin failed to
consult a urologist and failed to accurately diagnose
K.M.T.
• Both doctors moved for summary judgment asserting
that their conduct was not willful and wanton as
required by Section 74.153 of the TCPRC
• On appeal, the Turners argued that because
Dr. Franklin diagnosed a non-emergent condition and
treated K.M.T.’s condition in a non-urgent matter,
Dr. Franklin could not subsequently take advantage of
the protections of Section 74.153
48
Turner v. Franklin (cont’d)
• Thus, the court rejected the Turners’ argument
finding that the very act of diagnosing K.M.T. under
the circumstances fell within the definition of
emergency medical care
• Court concluded that because “medical care”
includes the diagnosis of any disease or injury it
must reject the contention that “bona fide
emergency services” does not include the diagnosis
of a non-emergency condition
• The Turners filed a petition for review and, upon
request by the Texas Supreme Court, Dr. Franklin is
now required to respond to the petition
49
THI of Texas v. Perea p. 19
• Jacob Perea was a 78-year old widower who was
admitted to Covenant Medical Center in Lubbock
several times in the Spring of 2004
• During his admissions, he was diagnosed as being
allergic to Ativan and it was noted in his records
• He suffered a fall, was admitted to Covenant and
then transferred to Southwest Hospital
• Despite documentation in Southwest records, two
nurses administered Ativan to Mr. Perea and he
lapsed into a ventilator-assisted coma
• Southwest transferred him back to Covenant
where he subsequently died
50
THI of Texas v. Perea (cont’d)
• Beneficiaries sued Southwest (THI of Lubbock) for wrongful
death and survival damages
• After a jury trial, the defendants were found negligent and
plaintiffs were awarded a total of $1,696,595.50 in damages
• The appellate court found no abuse of discretion by the trial
court regarding the jury instruction and that THI had
waived any error on negligent credentialing/hiring
• The evidence in the case at trial revealed that the nurse
supervisor who gave the order to the nurse to administer
Ativan, had previously in his career as a nurse in the State
of Colorado, administered Ativan to a patient without
authorization and his nursing license had been suspended as
a result
51
THI of Texas v. Perea (cont’d)
• He testified that the DON at Southwest knew of his
probation and suspension from Colorado and the
reasons therefore, but she still hired him and put him
on the floor to administer medications to patients
• The court explained that an employer is liable for
negligent hiring, supervision or retention when proof
is presented that the employer hired an incompetent
or unfit employee whom it knew or should have known
was incompetent or unfit
• The court held that because THI did not object to the
plaintiffs’ expert testimony at trial, the jury could
consider his testimony
52
THI of Texas v. Perea (cont’d)
• Evidence supported a finding that the nurse supervisor
proceeded to act with conscious indifference to the
known risk and was grossly negligent
• The court also found that THI was corporately liable in
punitive damages for gross negligence because the fact
finder could reasonably infer that the nurse supervisor
was unfit at the time he was recruited to Southwest and
despite this knowledge, he was placed in a position
where he supervised nurses and initiated orders for
prescribed medications
• The petition for review before the Texas Supreme
Court was denied June 24, 2011
53
Carreras v. Marroquin p. 22
• The Corpus-Christi-Edinburg Court of Appeals had held that
the failure of a plaintiff to include a medical authorization with
its notice of health care liability claim did not bar the tolling of
limitations when a plaintiff properly provides pre-suit notice
• The appellate court held that the legislature unambiguously
referred to the required “notice” which triggers tolling, as
completely separate and apart from the medical authorization
form
• On April 1, 2011, the Texas Supreme Court, resolving a split
among Texas courts of appeals, held that in order to toll the
statute of limitations in a medical malpractice action, plaintiffs
must give defendant health care providers notice of their
lawsuit and an authorization releasing their health care
information
54
Carreras v. Marroquin (cont’d)
• The Court explained that the applicable statutory
provisions contained mandatory “must be
accompanied” language
• The Court rejected the argument that an abatement
was the only remedy for the failure to serve the
authorization with the notice, stating that the
abatement only applied in situations where the suit
was filed within the statute of limitations
55
Molinet v. Kimbrell p. 23
• Jeremy Molinet amended his pleadings to add Drs.
Patrick Kimbrell and John Horan as responsible
third parties after more than two years had passed
since the limitations period began for his health
care liability claim
• Mr. Molinet argued that Chapter 33 of the TCPRC
allowed him to join these two physicians within 60
days of being designated as RTPs —regardless of
Chapter 74’s two-year statute of limitations period
• The Doctors argued that Chapter 74’s two-year
statute of limitations barred Mr. Molinet’s claims
56
Molinet v. Kimbrell (cont’d)
• They argued that Chapter 74 contains a
“notwithstanding any other law” phrase with respect to
its limitations period
• The Supreme Court of Texas affirmed the court of
appeals’ judgment holding that the absolute two-year
statute of limitations period of § 74.251(a) prevails
• The Court explained that the effect of Chapter 33 “is not
to statutorily determine when a suit is commenced
against parties designated as responsible third parties”
and granting a motion for leave to designate a
responsible third party “does not artificially establish the
‘commencement’ of the case against a party. . .” making
the statute of limitations inapplicable
57
Haygood v. Garza de Escabedo p. 25
• Tyler Court of Appeals held that medical
affidavits attesting to the amount of medical bills
initially incurred constitute legally insufficient
evidence of past medical expenses
• Escobedo filed a motion in limine at trial
pursuant to Section 41.005 of the TCPRC urging
that “any evidence or testimony of any amount of
medical or health care bills in excess of the
amount actually paid or incurred by or on behalf
of [Haygood]” should be excluded from trial
58
Haygood v. Garza de Escabedo (cont’d)
• The jury returned a verdict awarding Haygood
$110,069.12 in past medical expenses, which was the
full amount of initial medical expenses incurred without
any insurance payments or provider reductions
• Court of appeals held that, by its terms, Section 41.005
“does not simply provide for the recovery of the
amounts initially incurred by the claimant,” rather, the
section limits the recovery to the amounts actually
incurred by the claimant or on his behalf
• Texas Supreme Court affirmed the holding of the Court
of Appeals
59
Is It a Health Care Liability Claim?
Harris Methodist Fort Worth v. Ollie p. 27
• The Texas Supreme Court held that a patient’s
claim against a hospital for injuries from a fall on
a wet bathroom floor during post-operative
confinement constitutes a health care liability
claim under Chapter 74 of the Civil Practice and
Remedies Code
• During her post-surgery hospitalization, Jo Fawn
Ollie injured her shoulder after slipping on the
wet bathroom floor while getting out of the
bathtub
60
Harris Methodist Fort Worth v. Ollie (cont’d)
• Ollie sued the hospital for “general negligence” and
“medical malpractice,” alleging under both claims that
the hospital failed to properly maintain the floor and to
warn her of the dangerous condition
• Ollie ultimately amended her petition to include only
her general negligence claim
• The “essence of Ollie’s claim”—that the hospital failed
to act with proper care in furnishing a dry bathroom
floor or warning her of the hazards of a wet bathroom
floor—constituted “a safety claim directly related to
services meeting her fundamental needs”
• Because she failed to do so, her claim against the
hospital should have been dismissed
61
Omaha Healthcare Center v. Johnson p. 28
• In an opinion authored by Justice Johnson, the
Texas Supreme Court held that “claims against a
nursing home regarding a patient’s death alleged
to have been caused by a brown recluse spider
bite are health care liability claims . . . that
required an expert report to be served”
• Nursing homes, beyond their obligation to
provide physical care and treatment, “are
required to take actions to provide ‘quality care’
which includes things such as safety of the
environment”
62
Omaha Healthcare Center v. Johnson (cont’d)
• According to a majority of the Court, “[t]hose
claims fell within the statutory definition of a health
care liability claim” and therefore must be
dismissed unless a timely expert report is filed
63
Procedural Issues Under the TCPRC
Scoresby v. Santillan p. 32
• The Fort Worth Court of Appeals held that it had
no jurisdiction to review the appeals of the
physicians in this case because the trial court
granted an extension of time to cure the “no
report” expert reports offered by the plaintiffs
• In an exhaustive opinion, the court of appeals
explained that the Supreme Court of Texas has
not had an opportunity to squarely address this
recurring issue, having only addressed it in
concurring opinions
64
Scoresby v. Santillan (cont’d)
• There was a split of authority with several courts of
appeals having determined that a timely served
report purporting to be an expert report can
nonetheless be a document that is not a statutorilycompliant expert report, while others have rejected
the argument
• The Texas Supreme Court granted petition for
review of this case setting forth a minimum
standard:
65
Scoresby v. Santillan (cont’d)
• A majority of the Texas Supreme Court set the
standard in its opinion dated July 1, 2011
• The Court outlined when a deficient report
constitutes no report, holding that a thirty-day
extension to cure the deficiencies in an expert report
may be granted “if the report is served by the
statutory deadline, if it contains the opinion of an
individual with expertise that the claim has merit,
and if the defendant’s conduct is implicated
66
Expert Reports Under the Act
Jelinek v. Casas p. 33
• When a medical malpractice plaintiff’s symptoms
are reasonably attributable to multiple causes,
her expert must establish that the “medically
superior” conclusion is that the defendants’
negligence caused the plaintiff’s symptoms
• The Supreme Court of Texas made clear in
Jelinek that an expert’s unsupported opinion is
legally insufficient evidence to support a jury’s
verdict on causation
• Applying these principles, the Court overturned a
jury’s verdict in favor of the estate of Eloisa
Casas against Rio Grande Regional Hospital
67
Tenet Hospitals Limited v. Love p. 36
• In this matter, the Eighth District Court of
Appeals reversed and rendered the judgment of
the trial court below and held that the Plaintiff’s
proffered Chapter 74 experts were not qualified to
opine on hospital operations for staffing physician
specialists or the transfer of patients
• In this case, Brenda Melendez was admitted to
Sierra Providence East Medical Center on June
18, 2008, for sharp pain on her left side, following
laparoscopic cholecystectomy five days earlier
• A surgeon examined her the following morning
and diagnostics revealed a biliary leak
68
Tenet Hospitals Limited v. Love (cont’d)
• When the thoracentesis failed to drain a sufficient
amount of fluid, Dr. Pallares requested a pulmonary
consult
• A pulmonologist was not available at the hospital at
that time, and thus, Dr. Pallares transferred Ms.
Melendez to another facility later that day
• When she arrived at the other hospital, she coded,
and died five days later
69
Tenet Hospitals Limited v. Love (cont’d)
• Plaintiff sued the hospital alleging that it: 1) failed
to have the necessary physicians on staff or on call
for the medical care and treatment of its patient
population; 2) should have transferred Ms.
Melendez sooner; and 3) failed to provide Ms.
Melendez with appropriate medical care and
treatment
• As to the allegation regarding specialists, Plaintiff
claimed that “the hospital failed to have an
adequate number and variety of doctors on its
medical staff so that physicians of every medical
specialty are at all times ready and available to
attend the patient population”
70
Tenet Hospitals Limited v. Love (cont’d)
• The hospital challenged the reports urging that the
experts lacked the necessary qualifications to opine
on hospital operations relating to staffing of certain
specialists and the transfer of patients
• The trial court denied the hospital’s motion
challenging the reports, and the hospital appealed
• The court explained that the reports and curricula
vitae merely recite that the doctors are specialist
physicians and have served on various committees
71
Tenet Hospitals Limited v. Love (cont’d)
• “They do not demonstrate whether the doctors’
experience have involved setting policies and
procedures for hospitals, requiring hospitals to staff
certain specialists under certain circumstances, or
running a hospital”
• El Paso Court of Appeals held that Plaintiff failed to
show how the experts were qualified to render an
opinion on what an ordinarily prudent hospital would
do for staffing physician specialists or transferring
patients
• In drawing that conclusion, the court noted that “merely
working for a hospital” does not automatically qualify
an expert with experience in running a hospital
72
IMMUNITY AND JURISDICTION
Immunity
Franka v. Velasquez p. 37
• Section 101.106(f) of the Texas Tort Claims Act
requires the dismissal of a suit against a
government employee acting within the general
scope of his employment “if it could have been
brought under [the Act] against the governmental
[employer].”
• In this case, the Supreme Court of Texas held that
establishing that governmental immunity from suit
has been waived by the Act is not a prerequisite to
a government employee obtaining dismissal under
section 101.106(f)
73
Franka v. Velasquez (cont’d)
• After their baby suffered a broken bone during
delivery, Stacey Velasquez and Saragosa Alaniz
sued the attending doctors, but not the doctors’
employer, the University of Texas Health Science
Center
• One of the doctors moved to dismiss, arguing that
under section 101.106(f) the trial court must dismiss
the plaintiffs’ claim because it could have been
brought against his government employer
• The trial court apparently did not rule on the motion
74
Franka v. Velasquez (cont’d)
• Both doctors subsequently moved for summary
judgment, again relying on section 101.106(f), but
the trial court denied their motions
• The court of appeals affirmed the denial, concluding
that a government employee is not entitled to
dismissal under section 101.106(f) unless he
establishes that his government employer has
waived immunity for the claim under the Tort
Claims Act
75
Franka v. Velasquez (cont’d)
• The Supreme Court reversed, holding that section
101.106(f) requires dismissal regardless of whether
the doctors had established that their government
employer had waived immunity for the plaintiffs’
claim
• The Court noted that its interpretation was
consistent with the statute’s underlying purpose of
limiting suits against government employees acting
within the scope of their employment “to that
afforded by the Act”
76
University of Texas Southwestern Medical
Center v. Gentilello p. 39
• According to the Dallas Court of Appeals, an individual
doctor with the responsibility from his hospital to
ensure compliance with Medicare and Medicaid rules
may be an “appropriate law enforcement authority” for
purposes of the Texas Whistleblower Act
• Dr. Larry Gentilello, the plaintiff, was a tenured
professor of medicine at UT Southwestern Medical
Center (“Southwestern”)
• Prior to the events giving rise to this case, Dr.
Gentilello was the Chair of the Division of Burn,
Trauma, and Critical Care and held the Distinguished
C. James Carrico, M.D. Chair in Trauma
77
University of Texas Southwestern Medical
Center v. Gentilello (cont’d)
• When Dr. Gentilello became aware of conduct at
Southwestern that he believed violated Medicare and
Medicaid rules, he reported to Dr. Robert Rege, the
Clinical Department Chair who was charged with
ensuring Southwestern’s compliance with those rules
• Dr. Rege allegedly responded to Dr. Gentilello’s report
by stripping him of his chair positions
• Dr. Gentilello sued Southwestern for violations of the
Texas Whistleblower Act, alleging that he had a good
faith belief that Medicare and Medicaid violations were
occurring and that he reported those violations to the
person that he believed in good faith to have the
authority to investigate and correct those practices
78
University of Texas Southwestern Medical
Center v. Gentilello (cont’d)
• Southwestern filed a plea to the trial court’s
jurisdiction, alleging that Dr. Gentilello’s claims
were barred by sovereign immunity
• The Supreme Court of Texas reversed the court of
appeals’ decision for reconsideration in light of
State v. Leuck, a subsequent decision in which the
Court held that the underlying elements of a
Whistleblower claim must be considered to
ascertain whether a violation has been sufficiently
alleged
79
University of Texas Southwestern Medical
Center v. Gentilello (cont’d)
• The sole issue before the court of appeals on
remand was whether a fact issue existed on whether
Dr. Gentilello had alleged that his report was made
to an “appropriate law enforcement authority”
• The Whistleblower Act defines an “appropriate law
enforcement authority” as an “authority [that] is
part of a governmental entity that the employee in
good faith believes is authorized to (1) regulate
under or enforce the law alleged to be violated in
the report or (2) investigate or prosecute a violation
of criminal law
80
University of Texas Southwestern Medical
Center v. Gentilello (cont’d)
• Construing Dr. Gentilello’s petition liberally, the
court concluded that there was ample evidence in
support of Dr. Gentilello’s having a good faith
belief that Dr. Rege was authorized to regulate
under or enforce the Medicare and Medicaid
programs at Southwestern
• Because the evidence created a fact issue on the
jurisdictional fact of whether Dr. Gentilello had a
good faith belief that he reported to an appropriate
law enforcement authority, the court of appeals
affirmed the trial court’s denial of Southwestern’s
plea to jurisdiction
81
Jurisdiction
University of Texas Southwestern v.
Estate of Arancibia p. 40
• The Supreme Court of Texas in Estate of Arancibia
provided guidance on what constitutes “actual
notice” to a governmental entity of a claim against it
• After Irene Arancibia died from a bowel perforation
received during laparoscopic hernia surgery, her
estate sued the University of Texas Southwestern
Medical Center at Dallas, the hospital where the
surgery was performed
• Southwestern moved to dismiss the case, contending
the trial court lacked jurisdiction because the estate
failed to provide timely notice of its claim
82
University of Texas Southwestern v. Estate
of Arancibia (cont’d)
• After the trial court denied the motion and the court
of appeals affirmed, the Supreme Court granted
Southwestern’s petition for review
• Before it could reach the question of whether
Southwestern had notice of the estate’s claim, the
Supreme Court had to determine whether the notice
requirement was jurisdictional or merely mandatory
• The Texas Tort Claims Act provides a limited
waiver of the immunity from suits for damages that
Southwestern generally enjoys as a government
entity
83
University of Texas Southwestern v. Estate
of Arancibia (cont’d)
• In 2005, the Texas Legislature reversed the Supreme
Court’s characterization of the notice requirement
as mandatory, rather than jurisdictional, by
amending the Government Code to provide that
“[s]tatutory prerequisites to a suit, including the
provision of notice, are jurisdictional requirements
in all suits against a governmental entity.”
• In this case the Court held for the first time that the
2005 amendment applied even to cases filed before
the amendment was passed, so long as the law was
in effect at the time the case was decided
84
University of Texas Southwestern v. Estate
of Arancibia (cont’d)
• Because the estate did not provide Southwestern
with formal notice, the issue before the Court was
whether Southwestern had actual notice of the claim
• The uncontested evidence in this case showed that a
doctor attending Arancibia’s surgery advised his
supervisor of the incident
• The supervisor reviewed the case, and concluded
that although a “technical error occurred during
the original hernia operation resulting in a throughand-through small bowel injury” that contributed to
Arancibia’s death, “[n]o standard of care issues
were identified upon review
85
University of Texas Southwestern v. Estate
of Arancibia (cont’d)
• Based on these facts, the Court found that
Southwestern “was subjectively aware of its fault,
as ultimately alleged by the Arancibias, in
producing or contributing to Arancibia’s death
• Noting that any formal notice provided by the estate
would include only information already known to
Southwestern, the Court concluded that
Southwestern had actual notice as required by the
Texas Tort Claims Act
86
Christus Spohn Healthsystem v. Huizen p. 41
• This recent court of appeals opinion now firmly
holds what the Carroll v. Donau Court stated in
dicta that a hospital district management
contractor is a governmental unit entitled to the
protections under the Texas Tort Claims Act
• In Huizen, the Corpus Christi Court of Appeals
specifically addressed the language of a 1996
master lease agreement between Christus Spohn
and the Nueces County Hospital District and
Sections 285.071 - .072 of Texas Health & Safety
Code
87
Christus Spohn Healthsystem v. Huizen
(cont’d)
• In reversing the judgment of the trial court denying
the hospital’s plea to the jurisdiction, the appellate
court explained that in order to achieve status as a
hospital district management contractor under the
statute: 1) an entity must be a non-profit
corporation, partnership, or sole proprietorship; 2)
the entity must manage or operate a hospital or
provide services under a contract with a hospital
district; and 3) the hospital district must have been
created by general or special law
88
Christus Spohn Healthsystem v. Huizen
(cont’d)
• The court also held that the long term lease
agreement between Christus Spohn and Nueces
County Hospital District established that Christus
Spohn was vested with the duty and responsibility of
assuming sole control of the management of the
hospital
• Thus, because the uncontroverted evidence that
Christus Spohn was a non-profit corporation and
the hospital district was properly created pursuant
to law, Christus Spohn established as a matter of
law that it was a hospital district management
contractor
89
THE END
Questions?
90