Simpson P.C.

Ragging on the Texas Supreme Court—particularly when it comes to the Court’s rulings on healthcare law—is not exactly a new pastime for me.  To be honest, I’ve probably said a lot more negative things about the Court’s interpretations of the Texas Medical Liability Act than I have positive things.  A lot more.  So it’s nice to be able to point out when I think the Court got something right.  And a couple weeks ago, it did exactly that in the case of Certified EMS v. Potts.

 Potts is kind of a big deal for those of us on the plaintiffs’ side of the bar.  Some time ago, the Texas Legislature required that plaintiffs in healthcare liability cases provide reports from qualified medical experts that support their allegations very early in a case or have the case dismissed.  And by “very early,” I mean before any kind of meaningful investigation beyond reviewing medical records.  No talking to opposing witnesses, no talking to defendants.  Figure it out from the records or have your case thrown out of court.  Sometimes, one theory is obvious from the records, but others aren’t so easily discovered.

The basic mechanism of the procedure is that a plaintiff has 120 days from the time he files his lawsuit to serve an expert report that addresses the three chief elements of his liability case—the standard of care, breach of that standard, and causation—on the defendant.  Once he serves that report, the defendant has 21 days to object to deficiencies in it, and the plaintiff usually gets another 30 days to cure that deficiency.  If the plaintiff doesn’t cure the deficiency, and the trial court agrees that it is a deficiency, the defendant can move to dismiss the case and recover his or its attorneys’ fees and costs from the losing plaintiff.  The idea is to weed out, at an early stage, frivolous cases—the ones that can’t be won by the plaintiff; no way, no how.

Years ago, the Court held that the only thing a plaintiff needs to do in an expert report is set out the basic stuff the defendant did wrong—the conduct the plaintiff’s suit calls into question—and show that his case has “merit.”  At the same time, the Court held that “showing merit” doesn’t mean proving the case, as would need to be done at trial, and it doesn’t mean removing all doubt as to whether or not the plaintiff can ultimately prevail.  But in the grand tradition of “give ‘em an inch, and they’ll take a mile,” health care defendants have taken what was, ostensibly, supposed to be a brief procedural matter and turned it into a mini-trial that can last well over a year, all the while running up costs that the health care liability law was supposed to limit.  Rather than saving objections to expert reports for those cases where there is a clear deficiency, many health care defendants and their lawyers—on marching orders from the real puppet masters, their insurance companies—object to every expert report they’re given and move to dismiss every case, regardless of its merit.  And that’s what happened in Potts.

The facts of Potts really aren’t as important as the holding.  That said, the plaintiff in Potts had set forth more than one theory of liability—against a corporate defendant, individually, and through one of its employees—but provided an expert report that supported only one of those theories—the one through the employee.  The defendant moved to dismiss—not the case—but the claim against itself, individually, though the vicarious claim would have survived.  The trial court denied the motion, and the First Court of Appeals affirmed, holding that the Texas Medical Liability Act seeks to dismiss entire cases or causes of action, not individual theories of liability, by its plain language.  The Texas Supreme Court’s opinion is a bit shorter on analysis (it specifically says that it doesn’t adopt the First Court’s rationale), but it reaches the same conclusion—supporting one theory of liability lets the case go forward as to every theory alleged (and even new ones that weren’t alleged before, as long as the defendant stays the same).

The holding itself is useful, but for me, the real significance of Potts is that it’s an effort by the Texas Supreme Court to cram the genie back into the bottle.  Recent precedents suggest that the Court is getting tired of the number of health care cases being brought up before it on procedural technicalities.  Potts stands as another in a line of cases that attempts to restore authority to trial courts over a procedure that has become—put bluntly—disrespectful of the authority of those trial courts.  With Potts, the Court has definitively cut off one avenue of appeal, and it may be only a matter of time before we eventually see a defendant held responsible for filing a frivolous appeal of an expert report matter.  Texas appellate courts are, understandably, reluctant to issue such rebukes, but one may be necessary before the landscape truly changes.  Nevertheless, the Texas Supreme Court has taken a needed step toward sanity with Potts.  That is something I am happy to write about, any time.

Anybody who watches the evening news has seen them—advertisements for prescription drugs of all sorts to ease chronic pain, lighten depression, make things that won’t get up get up, and make things that won’t stay in stay in.  Each comes with a soothing voiceover noting that the drug in question “is not for everyone” and that serious side effects can occur.  The litany of admonishments ends with sage advice to “ask your doctor” and a repetition of the slogan that started the whole ad.   End scene.

In Centocor, Inc. v. Hamilton, an appeal from the Corpus Christi Court of Appeals, the Texas Supreme Court now wades into the issue of whether a drug manufacturer can still rely on the “learned intermediary” defense that has long been a staple of any drug or medical device manufacturing defendant’s legal arsenal.  The defense essentially says that, if you give appropriate warnings about the dos and don’ts of using a particular drug or device to a patient’s doctor—the one who is actually prescribing the use of the drug or device in question—you are insulated from telling the patient, himself.  The law assumes that the doctor will pass on any necessary warnings to the patient because the doctor himself has a duty to the patient.

Does this make sense?  Well, yes and no.  On the one hand, a doctor does have a duty to his patient—both in the form of prescribing medications where the potential risk is outweighed by the reward and of educating himself and informing his patient of the potential side effects.  On the other hand, no doctor can be expected to read his patient the entire entry on a drug from the Physicians’ Desk Reference (PDR)—which exhaustively details the results of every study on a particular prescription medication.  If you read those full descriptions any time the doctor gave you a prescription, you’d never agree to take anything again, as they read like a catalogue of disaster akin to something from the Old Testament.  (No arthritis treatment has ever been connected to a plague of locusts, but just wait.)  Moreover, with drug companies now taking it upon themselves to advertise directly to consumers, do they have a duty to give all sides of the story?  And not just the one that makes their product look like a miracle cure?  (Notably, these drugs that are being advertised still can be prescribed only by a physician, so a physician’s involvement and approval is still very necessary.)

In Centocor, set for oral argument on December 8, the Court will likely consider the effect of all those ads on the nightly news.  Does the direct marketing of drugs to consumers create a greater duty for the manufacturers of those drugs, and is it a duty that they cannot fulfill by merely providing warnings to an intermediary?

It’s a good question.  Right now, patients get all the spin but very little of the real information.  Even so, it seems like manufacturers should be able to tell prospective buyers that their product exists and that it might be helpful.  One thing is certain though:  if the Court makes inroads on the “learned intermediary” defense, those voiceover warnings in the TV ads are going to be longer and louder.  Either that, or expect a free copy of the PDR any time you visit the pharmacy.

Tip o’ the hat to the Supreme Court of Texas Blog.

UPDATE:  Surprise!!!  They held for the drug manufacturer.

There are times you just know that the Texas Supreme Court is up to something.  You can tell from the cases accepted for review that have a recurring theme, and, while it’s often difficult to figure out what the Court will eventually say, you know something or other is coming down the pipeline.

A few weeks ago, the Court accepted review of two cases that might or might not fall under the Texas medical liability law.  I’ve expounded on various aspects of that law in several earlier posts.  The applicability of the medical liability statutes—Chapter 74 of the Texas Civil Practice and Remedies Code—is significant because of the procedural burdens—or protections, depending on how you look at it—that they place on parties to a case.  One of the most significant of those burdens is the expert report requirement.  The law requires that any plaintiff filing a healthcare liability claim serve a report from an expert witness or witnesses—usually a physician—outlining the medical facts and standards underlying the case within 120 days of commencing suit.  Failure to comply carries a heavy penalty.  The case gets dismissed with prejudice to re-filing, and, to add insult to injury, the plaintiff gets to pay the defendant’s attorneys’ fees.

So whether or not a case qualifies as a “healthcare liability claim” and is thus subject to Chapter 74 is a significant issue.  And that’s why two recent petitions granted by the Court caught my attention.  In Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel, an appeal from Houston’s Fourteenth Court of Appeals, a defendant physician accused of sexually assaulting a patient moved for dismissal as a result of her failure to serve an appropriate expert report, thus attempting to classify her claim as a simple departure from a standard of medical care.  Both the trial court and the court of appeals rejected his argument.  Now the Supremes will get their say.

In Texas West Oaks Hospital, LP v. Frederick Williams, another case out of the Fourteenth, 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 subsequently sued both the hospital and Williams under a healthcare liability theory, and Williams cross-claimed against the hospital.  The case raises interesting questions as to whether Williams’s cross-claim—because it arises out of an original healthcare liability claim—may itself be healthcare liability claim.  This was certainly the position taken by the hospital, but again, both the trial court and the court of appeals rejected it.

As defendants push harder and harder to bring more cases under the purview of Chapter 74, the Court may take this opportunity to set some sort of boundary.  One would hope so, because as things stand, Chapter 74 has the potential to swallow up a whole host of common law actions and inject itself, with potentially bizarre consequences, into actions far-removed from healthcare.  An inherent tension exists between the traditional cornerstone of medical liability—the physician-patient relationship—and the extensive reach of Chapter 74.  While a defensive tactic in years past was to disclaim any physician-patient relationship (and thus any sort of duty), the new idiom calls for openly invoking that relationship—or at least, to do so 120 days after the lawsuit has been on file.  And that means that the Legislature’s enactment of Chapter 74 is warping the common law in ways it probably was never intended to.  Once again, this is what happens when  politicians, as opposed to juries, decide to dictate who wins lawsuits.

In the latest procedural headache to arise out of Chapter 74, the Texas Medical Liability statute, the Texas Supreme Court issued four separate opinions in the case of Eberhard Samlowski, M.D. v. Carol Wooten. The four opinions—two affirming, as modified, the decision of the Tenth Court of Appeals; one concurring in the result and dissenting in part; and one dissent that would have reversed and rendered—reflect the difficulty judges have finding fairness when fairness was just about the last thing on the Legislature’s mind at the time it enacted the statutory scheme.  The trial court plaintiff, Wooten, won the right to continue to pursue her case.  The losers were the bench and the bar.

Wooten sued Dr. Samlowski for misdiagnosis and performing an unnecessary gall bladder surgery upon her.  She served a timely expert report—authored by Dr. R. Don Patman—on Samlowski in an effort to comply with the relevant provision of Chapter 74, which requires that a report detailing the whats and wherefores of the case be served on all defendants within 120 days of the lawsuit’s commencement.  Samlowski—as was his right—challenged the report as inadequate on the sole issue of causation and moved to dismiss.  Wooten—as was her right—moved for a 30-day extension of time to cure the alleged deficiency.  The trial court granted Samlowski’s motion and simultaneously denied Wooten’s.  Wooten took an appeal to Waco’s Tenth Court, which reversed the trial court judgment and instructed that Wooten should have her 30 days.  Samlowski appealed that court’s decision to the high nine in Austin.

Any first-year law student who has made it three-quarters of the way through Constitutional Law will tell you that the standard of review applied by an appellate court often determines the outcome of a case.  Put simply, limitations on what a court can do often decide a case, regardless of what the court might otherwise be willing to do.  In considering the adequacy of Chapter 74 reports and motions for additional time to prepare them, appellate courts are limited to an “abuse of discretion” standard.  That is, unless the trial court acted completely arbitrarily, they cannot disturb its judgment.

Each of the four opinions issued by the Supreme Court wrestled with the standard of review in its own way.  Justice Medina, writing for himself, Chief Justice Jefferson, and Justice Hecht, argued that the way for Wooten to show an abuse of discretion by the trial court in failing to grant her extension of time was to demonstrate that her report could have been made adequate within the 30-day window provided by Chapter 74 (and within the window of the court’s plenary power).  This would require her to by file an amended report and move for re-hearing of the court’s dismissal order.  If the trial court then denied reconsideration, the necessary showings for appeal would be in place.  But this flies in the face of abundant case law stating that the only matters relevant to determining whether a trial judge abused his discretion are matters before the court at the time it made its decision.  An amended report would not fit this criterion, and Justice Medina’s opinion thus seems to create a new procedure from whole cloth.

Justice Guzman, writing for herself, Justice Lehrman, and, in part, for Justice Wainwright, took a simpler approach, noting that an extension of time such as that sought by Wooten should be granted any time that an expert report’s deficiencies can be cured within the applicable time period to show that the case has merit.  She then suggested that “[a] report from a qualified health care professional stating a belief that a plaintiff has a claim against a defendant, even though elements of the report are deficient, should be sufficient for a trial court to determine the curability of the report.”  The trouble with this approach is the legion of Texas cases holding that such a conclusory statement constitutes no report at all and can support only dismissal under the abuse-of-discretion standard.  Justice Guzman’s opinion provides sadly little explanation of what the report she has in mind would look like.

Justice Johnson, writing for himself, Justice Green, and Justice Willett, dissented from the majority’s “reversal of an errorless trial court judgment.”  (Justice Medina’s opinion did, indeed, note that there was no error in the trial court’s denial of Wooten’s motion but reversed all the same “in the interest of justice.”)  Justice Johnson took Justice Medina’s opinion to task for creating a new procedure after the relevant decision was made.  But, in doing so, he created an even larger hurdle for any claimant.  Under Justice Johnson’s approach, a claimant is charged with making “a proper record on a motion to reconsider.”  Since, as his opinion noted, the determination of whether a report can be cured is a fact question, he appears to require that a claimant be prepared to go forward with a full-blown evidentiary hearing—presumably, with expert testimony—merely to justify obtaining a 30-day extension of time to say the same things in writing that would inevitably come out in the hearing.  The increased costs to claimants could be staggering in light of the limited purpose of the hearing.  Moreover, it would require a claimant to present, not just argument, but testimony to bolster the “curability” of a report that the claimant presumably does not believe defective in the first place.  It would require a claimant to adopt a host of contradictory positions within a single hearing.

Finally, Justice Wainwright, in an additional dissent, made perhaps the most cogent argument of the day and pressed to throw out the abuse-of-discretion standard for reviewing expert reports, altogether.  He suggested replacing it with a de novo standard, wherein the appellate court could review the decision from the ground up.  Such a measure, he argued, would promote consistency among the courts, and it would prevent a denial of an extension by the trial court from being the virtual death knell to a claimant’s case that it is now.

In enacting the procedural protections of Chapter 74, the Legislature ostensibly sought to weed out frivolous lawsuits.  But in providing the draconian sanction of dismissal as an avenue of first resort and lacing the statute with the language of discretion, the Legislature placed the entirety of a claimant’s case in the hands of a single trial judge, effectively removing much of the efficacy of the appellate system from the equation.  Despite loosening the standards for taking an appeal, the standard for actually winning one is still as difficult as ever for appellants.  Though the courthouse doors are open, the judges’ hands are often tied.  Thus, we see cases like this one, where the Justices must turn contortionists’ tricks to seek a fair result, and parties are left with a murky picture of how to protect their rights.  Mercifully, these are few and far between, trial judges rarely denying a claimant additional time to prepare a new or improved report.  But the rare case is still a case, and where certainty and clarity suffer, justice does, too.

The question of what exactly constitutes a medical malpractice suit (or in the gentler language of our Texas Legislature, a “health care liability claim”) raises its head again in this week’s list of cases granted oral argument before the Texas Supreme Court.  In Ghazali v. Brown, the Court takes on the question of whether a claim arising out of botched laser hair removal constitutes a health care liability claim within the meaning of Texas Civil Practice & Remedies Code, Chapter 74, with all its accompanying procedural hurdles/protections, depending on which side of the case you’re on.

The Fort Worth Court of Appeals, in its consideration of the case, held that the hair removal sought by Brown—the plaintiff in the trial court and appellee on appeal—was not “health care” in that it did not seek to “combat, ameliorate, or prevent a disease, disorder, or injury” nor did it relate to “physical disease or disorder or physical deformity or injury.”  Thus, it held that the case could not be a health care liability claim and the appellant—the titular Ghazali—was not entitled to the protections of Chapter 74.  Consequently, his appeal was denied.

But the more interesting question from the standpoint of one who deals with these cases on a regular basis is the existence or non-existence of a physician-patient relationship as affecting the ultimate determination.  The physician-patient relationship has long been the cornerstone of any suit based on medical liability.  If there is no physician-patient relationship, there is no duty; it is that simple.  In this case, Ghazali never actually saw Brown.  It is undisputed that he had no personal contact with her whatsoever and that his role was as an administrator and trainer of staff who actually performed laser treatments.  Yet it is Ghazali who contends that the case sounds in health care liability, rather than common or garden tort.

In an admittedly non-binding footnote, Justice Johnson of the Texas Supreme Court seemed to suggest that the physician-patient relationship is still a significant part of the Court’s thinking as to the applicability of Chapter 74.  In the very recent case of Roy Kenji Yamada, M.D., v. Laura Friend, the Court considered the Chapter 74 procedural complaints of another physician in a similarly supervisory role to that of Ghazali.  While the Court held that the claims in that case were, indeed, health care liability claims, its holding may have had as much to do with unfortunate concessions on the part of a plaintiff’s counsel as anything else.  (See “Be careful what you concede . . .” – The Appellate Lawyer, December 28, 2010).

Here, it is a closer call, in that there is actual individualized “treatment” being given, though the lack of a direct connection between physician and patient could well come into play.  Ghazali argues that the case is a health care liability claim, subject to all the provisions of Chapter 74, though he would likely be the first to disclaim any physician-patient relationship.  These are the kind of contradictions that occur when the law caters heavily to one side of the bar.