. . . because it can come back to bite you. All lawyers—and particularly appellate lawyers—learn the value of preserving arguments for later review by an appellate court and choosing the right argument to advance. Sometimes, this lesson gets learned the hard way.
In 2003, the Texas Legislature enacted a slew of healthcare “reform” initiatives aimed at lawsuits against healthcare providers. Among the procedural niceties created by the new law was a requirement that any plaintiff bringing a healthcare liability claim provide a report authored by a qualified expert witness that outlined the plaintiff’s factual allegations and the basis for recovery of damages. The expert report requirement hinges upon the case’s classification as a healthcare liability claim, which the applicable statute defines—more than a little tautologically—as a case brought “against a health care provider or physician” for a breach of accepted standards of medical care.
Fast forward to 2010 and the case of Roy Kenji Yamada, M.D., v. Laura Friend, an opinion recently issued by the Texas Supreme Court. The case arose out of an incident at a waterpark owned by the City of Richland Hills, when Sarah Elizabeth Friend died from a heart condition for want of appropriate resuscitation with an automated external defibrillator (AED). Dr. Yamada—a defendant in the trial court and the appellant on appeal—became involved by virtue of his having advised the City on placement of AEDs at the park. In the trial court, Friend, the plaintiff, alleged that Dr. Yamada had a duty to act as a “reasonable emergency physician”—classic healthcare liability language—as well as a duty to “act with ordinary care”—standard negligence language. Dr. Yamada moved for dismissal of the suit on the grounds that Friend failed to provide the expert report required by the 2003 healthcare reforms. Friend countered that her suit was based upon Dr. Yamada’s mere provision of consultative advice and recommendations with regard to safety. The trial court ultimately denied Dr. Yamada’s motion, and he appealed.
The Fort Worth Court of Appeals, in reviewing the case, held that Friend’s pleadings alleged negligence based on both the standards applicable to an emergency physician and standards of ordinary care. The Court reasoned that medical testimony is not required to determine where an AED should be placed, thus any such argument was not a healthcare liability claim. Nevertheless, it also held that any claims implicating Dr. Yamada’s duty to act as an emergency physician were healthcare liability claims subject to the expert report requirement and that Friend’s failure to provide an expert report mandated dismissal of those claims. Thus, the Court held that the same facts implicated two distinct claims—one subject to the healthcare liability law and one not.
Before the Texas Supreme Court, Friend’s lawyers made an understandable, though regrettable choice. Rather than taking issue with the Court of Appeals’ characterization of any of their claims as healthcare liability claims, they conceded that the Court of Appeals correctly held that their claims implicating Dr. Yamada’s status as an emergency physician were healthcare liability claims and thus subject to dismissal. Disputing this characterization might have been fruitful, as indicated by a footnote in Justice Johnson’s opinion for the Supreme Court. He noted the lack of a physician-patient relationship—a classic prerequisite for a healthcare liability claim—as well as a possible argument that the basic facts did not implicate the provision of healthcare. Nevertheless, the choice to concede on this point proved fatal to all of Friend’s claims.
The Court held that the same set of facts could not form the basis of both a healthcare liability claim and an ordinary negligence claim. Had Friend not conceded that the facts did implicate the healthcare liability law, she could have argued the opposite. Instead, the Court was able to make a more limited holding that sidestepped the potentially more fruitful aspects of her case. Because Friend conceded that the underlying facts of both her claims implicated healthcare, she lost on both counts. Choosing to concede on one point instead of to fight ultimately conceded the entire case.
While it is important to “pick a horse” at the appellate level, picking the right one is just as important. Moreover, knowing when not to show deference to a lower court’s decision is the appellate lawyer’s art and should be his forte, lest abandoning one claim lead to abandoning an entire cause.
The Supreme Court’s opinion is here: http://www.supreme.courts.state.tx.us/historical/2010/dec/080262.htm