A year ago this last April, I wrote about a couple of cases that concerned the potential applicability of the Texas Medical Liability Act being accepted for review by the Texas Supreme Court. At that time, I expressed confidence that the Court would use these cases as an opportunity to put the brakes on the ever and over expansive reach of the Medical Liability Act. As I noted in other posts, the reach of the Act was growing absurd, with defendants arguing that medical expert reports were needed to deal with matters such as pest control and who-knows-what-else-by-the-time-all-this-is-done. But never fear. The high nine in Austin would draw some reasonable boundaries, recognizing that the Medical Liability Act is meant to address claims arising out of a certain sphere of activity and nothing else. The justices would restore order and common sense with the stroke of a pen.
And then they did this.
In Texas West Oaks Hospital, LP v. Frederick 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. 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. Justice Wainwright observed that “[T]raining and staffing policies and supervision and protection of [patients] . . . are integral components of a [health care facility's] rendition of health care services . . . .” (Those are his brackets, not mine.) And thus, friends, are massive cans of worms opened. Because, if training and staffing–things that every employer does–are “integral components of the rendition of health care services” when done by a healthcare facility, what isn’t? Is payroll a healthcare function? What about trash pick-up? How about contracting for food service for patients?
And what happens when a hospital gets sued for allowing a sexually or racially hostile work environment? Well, according to the EEOC, a charge gets filed and then you get a right to sue in federal court. But, according to the logic of the Texas Supreme Court (assuming it follows the logic of Williams), that’s a healthcare liability claim. Why? Because “training and staffing policies” are part of healthcare, and those almost always come into play in employment cases. And what happens when someone trips in the parking lot on the way to see his doctor? Or slips in the hallway? Because safe parking lots and hallways are needed to “protect patients” and are thus a part of healthcare. So, if you’re suing a hospital for a slip-and-fall, be prepared to have a medical expert—a physician unless you want to bring in two experts—on waxing floors in a medical setting. Or fixing potholes in the parking lot. Or putting up warning signs. Or policing the place for thugs that might assault patients. And, of course, contracts to purchase treatment modalities and therapies under contract is pretty clearly related to patient care. [*head explodes*]
Whatever, it’s all healthcare.
And that’s where the Court is really subject to criticism here. The Medical Liability Act isn’t meant to encompass every single case against a healthcare provider. That’s not my opinion; that’s the Court’s own explicit statement. But when the Court expands the coverage of the Act this much, what doesn’t fall under its purview? Answer: nothing. If it’s brought against a physician or healthcare provider, it’s healthcare.
So why should this matter to you, the consumer of healthcare? Because part of the Legislature’s whole [stated] purpose in enacting the Medical Liability Act was to reduce the cost of malpractice insurance for physicians and healthcare providers in Texas. How does ensuring that a whole mess of stuff that has virtually no connection to patient care gets treated as the subject of a malpractice policy advance that goal? (Hint: It doesn’t.) Insurance companies write policies based on risk. The Court has made the risk undertaken by Texas medical liability insurers a constantly moving target. Moreover, they’ve made it a vastly larger target. As Justice Lehrmann—rapidly becoming one of the only sensible members of the high nine in Austin—noted in her dissent in Williams, the upshot of the decision is that professional medical liability insurers will now be responsible for many claims that previously would have been handled by workers’ compensation or general liability insurers. And what happens when an insurer has to handle whole new categories of claims, whether or not it becomes liable on them? It takes on more risk and more defense costs. And what happens when it takes on more risk? It raises its rates to pay for that risk. And what happens to those raised rates? Well, they get passed on to the ultimate consumers of healthcare. That’s simple economics. And that flies in the face of the goals of the Medical Liability Act–to reduce the cost of medical liability insurance and thus drive down the cost of healthcare to Texans and make it more easily available. (Recent statistics show that the Legislature is failing on that last one, too.) And, apparently, it’s beyond the understanding of a majority of the Texas Supreme Court.