healthcare liability claim in Texas

2015Partner, Inc. v. Rubio, 185 S.W.3d 842, 853 (Tex. 2005) (holding patient’s claim based on sexual assault by another patient caused by nursing home’s negligence in failing to provide adequate supervision was a healthcare liability claim).

2013Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex.2005) (in determining whether a claim is a healthcare liability claim, we focus on the duties allegedly breached rather than the type of injuries suffered).

2010The issue before the Court was whether “negligent credentialing” was a healthcare liability claim subject to the medical expert report requirements of the Texas Medical Liability and Insurance Improvement Act. 3 Id.

2010The issue before the Court was whether “negligent credentialing” was a healthcare liability claim subject to the medical expert report requirements of the Texas Medical Liability and Insurance Improvement Act.3 Id.

2016EXPERT REPORT REQUIREMENT and Standard of Review When presented with a motion to dismiss a healthcare liability claim, the trial court must determine whether the expert report “ ‘represents a good-faith effort to comply with the statutory definition of an expert report.’ ” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (quoting Am.

2015See Wright, 79 S.W.3d at 52 ; Palacios, 46 S.W.3d at 878 ; see also TEX.

2006See Schneider v. Haws, 118 S.W.3d 886, 889 (Tex. App.–Amarillo 2003, no pet.) (describing the elements of a healthcare liability claim); see also Columbia Medical Center of Las Colinas v. Bush, 122 S.W.3d 835, 852 (Tex. App.–Fort Worth 2003, pet. denied) (stating that causation is established when the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred).

2006See Schneider v. Haws, 118 S.W.3d 886, 889 (Tex.App.-Amarillo 2003, no pet.) (describing the elements of a healthcare liability claim); see also Columbia Medical Center of Las Colinas v. Bush, 122 S.W.3d 835, 852 (Tex.App.-Fort Worth 2003, pet. denied) (stating that causation is established when the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred).

2006See Schneider v. Haws, 118 S.W.3d 886, 889 (Tex. App.–Amarillo 2003, no pet.) (describing the elements of a healthcare liability claim); see also Columbia Medical Center of Las Colinas v. Bush, 122 S.W.3d 835, 852 (Tex. App.–Fort Worth 2003, pet. denied) (stating that causation is established when the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred).

2006See Schneider v. Haws, 118 S.W.3d 886, 889 (Tex.App.-Amarillo 2003, no pet.) (describing the elements of a healthcare liability claim); see also Columbia Medical Center of Las Colinas v. Bush, 122 S.W.3d 835, 852 (Tex.App.-Fort Worth 2003, pet. denied) (stating that causation is established when the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred).

2020See id. at 631 (“If a healthcare liability claim contains at least one viable liability theory, as evidenced by an expert report meeting statutory requirements, the claim cannot be frivolous.”).

2019Code Ann. § 51.014 (a)(9) (Vernon 2018) (permitting appeal from an interlocutory order that denies all or part of the relief sought by a motion under Civil Practice and Remedies Code section 74.351(b), except that an appeal may not be taken from an order granting an extension under section 74.351); see also Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011) (The trial court’s refusal to dismiss a healthcare liability claim is immediately appealable.). 7 theory supported by the record and infer any necessary findings of fact to support the ruling.

2014See, e.g., Hillery v. Kyle, 371 S.W.3d 482, 492 (Tex.App.-Houston [1st Dist.] 2012, no pet.).

2014See, e.g., Hillery v. Kyle, 371 S.W.3d 482, 492 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

2011Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006).

2011Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006).

2018In Palacios , the Supreme Court of Texas explained that when considering a motion to dismiss a healthcare-liability claim because of insufficient expert reports, "[t]he issue for the trial court is whether 'the report' represents a good-faith effort to comply with the statutory definition of an expert report." 46 S.W.3d at 878 .

2017In Palacios, the Supreme Court of Texas explained that when considering a motion to dismiss a healthcare-liability claim because of insufficient expert reports, “[t]he issue for the trial court is whether ‘the report’ represents a good-faith effort to comply with the statutory definition of an expert report.” 46 S.W.3d at 878–79. 4 To constitute a “good-faith effort,” a report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question, and (2) it must provide a basis for the trial court to conclude th

2022Our consideration includes, but is not limited to, “medical records regarding examination or treatment of the plaintiff, if any, and the defendant’s pleadings and explanation for how the contact at issue was part of medical care, or health care, or safety or professional or administrative services directly related to health care.” Id. 4 Applicable Law Under the TMLA, a plaintiff whose claim constitutes a healthcare-liability claim must serve an expert report, along with a curriculum vitae for the expert whose opinion is offered, on a defendant physician or healthcare provider within 120 days o

2022The TMLA creates a rebuttable presumption that a plaintiff’s claim is a healthcare-liability claim if it is brought against a physician or healthcare provider and “is based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement.” Loaisiga, 379 S.W.3d at 256 .

2021See id. at 197 ; Diversicare, 185 S.W.3d at 854 .

2015“Our prior decisions are to the effect that if -5- 04-14-00518-CV the gravamen or essence of a cause of action is a health care liability claim, then allowing the claim to be split or spliced into a multitude of other causes of action with differing standards of care, damages, and procedures would contravene the Legislature’s explicit requirements.” Yamada v. Friend, 335 S.W.3d 192, 197 (Tex. 2010).

2010See , e.g. , Runcie v. Foley , 274 S.W.3d 232 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Daughtery v. Schiessler , 229 S.W.3d 773 (Tex. App.—Eastland 2007, no pet.); Mokkala v. Mead , 178 S.W.3d 66 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

2010See, e.g., Runcie v. Foley, 274 S.W.3d 232 (Tex.App.-Houston [1st Dist.] 2008, no pet.); Daughtery v. Schiessler, 229 S.W.3d 773 (Tex.App.-Eastland 2007, no pet.); Mokkala v. Mead, 178 S.W.3d 66 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).

2008Standard of Review "Whether a cause of action advances a healthcare liability claim is a question of law to be reviewed de novo . . . ." Id. ; see also Lee v. Boothe , 235 S.W.3d 448, 451 (Tex. App.--Dallas 2007, pet. filed); Boothe v. Dixon , 180 S.W.3d 915, 919 (Tex. App.--Dallas 2005, no pet.); cf. Garland Cmty. Hosp. v. Rose , 156 S.W.3d 541, 543-44 (Tex. 2004) (under predecessor statute, essentially conducting de novo review, though not stating standard).

2008Standard of Review “Whether a cause of action advances a healthcare liability claim is a question of law to be reviewed de novo....” Id.; see also Lee v. Boothe, 235 S.W.3d 448, 451 (Tex.App.-Dallas 2007, pet. filed); Boothe v. Dixon, 180 S.W.Bd 915, 919 (Tex.App.-Dallas 2005, no pet.); cf. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543-44 (Tex.2004) (under predecessor statute, essentially conducting de novo review, though not stating standard).

2022Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 757 (Tex. 2014).

2021Furthermore, expert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of laypersons. “[I]n considering whether a claim alleges a departure from accepted standards of medical or health care, a court should first determine whether expert medical or health care testimony is needed to establish the requisite standard of care and breach.” Bioderm, 426 S.W.3d at 760 .

2015To be a healthcare-liability claim, the claim “need not be directly related to the provision of health care,” id. at 185 (emphasis added), but it must be “substantively related to the defendant’s providing of medical or health care.” Ross v. St.

2013A healthcare liability claim consists of three elements:1 “(1) a physician or health care provider must be a defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s act or omission complained of must proximately cause the injury to the claimant.” Tex. West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 180 (Tex. 2012); Marks v. St.

2024Id. 5 “[A] defendant’s conduct is implicated when an expert report is ‘directed primarily’ to care provided by the defendant, and the report informs the defendant of specific conduct called into question and provides a basis for the trial court to determine that the claim has merit.” Beckwith v. White, 285 S.W.3d 56, 62 (Tex. App.—Houston [1st Dist.] 2009, no pet) (citation omitted).

2023Id. “[A] defendant’s conduct is implicated when an expert report is ‘directed primarily’ to care provided by the defendant, and the report informs the defendant of specific conduct called into question and provides a basis for the trial court to determine that the claim has merit.” Beckwith v. White, 285 S.W.3d 56, 62 (Tex. App.—Houston [1st Dist.] 2009, no pet) (citation omitted). 8 We review a trial court’s ruling on the sufficiency of an expert’s report and on a motion to dismiss for an abuse of discretion.

2022P’ship, 401 S.W.3d at 44 (“[B]ecause the trial court did not abuse its discretion in finding Moreno’s reports adequate as to her theory that [the hospital] is vicariously liable for the doctor’s actions, her suit against [the hospital]—including her claims that the hospital has direct liability and vicarious liability for actions of the nurses— may proceed.”); Certified EMS, Inc., 392 S.W.3d at 632 (“[W]hen a healthcare liability claim involves a vicarious liability theory, either alone or in combination with other theories, an expert report that meets the statutory standards as to the 16 empl

2018P’ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013) (“[B]ecause the trial court did not abuse its discretion in finding Moreno’s reports adequate as to her theory that [the hospital] is vicariously liable for the doctor’s actions, her suit against [the hospital]—including her claims that the hospital has direct liability and vicarious liability for actions of the nurses—may proceed.”); Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013) (“[W]hen a healthcare liability claim involves a vicarious liability theory, either alone or in combination with other theories, an expert report that me

2022P’ship, 401 S.W.3d at 44 (“[B]ecause the trial court did not abuse its discretion in finding Moreno’s reports adequate as to her theory that [the hospital] is vicariously liable for the doctor’s actions, her suit against [the hospital]—including her claims that the hospital has direct liability and vicarious liability for actions of the nurses— may proceed.”); Certified EMS, Inc., 392 S.W.3d at 632 (“[W]hen a healthcare liability claim involves a vicarious liability theory, either alone or in combination with other theories, an expert report that meets the statutory standards as to the 16 empl

2018P’ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013) (“[B]ecause the trial court did not abuse its discretion in finding Moreno’s reports adequate as to her theory that [the hospital] is vicariously liable for the doctor’s actions, her suit against [the hospital]—including her claims that the hospital has direct liability and vicarious liability for actions of the nurses—may proceed.”); Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013) (“[W]hen a healthcare liability claim involves a vicarious liability theory, either alone or in combination with other theories, an expert report that me

2021See 877 S.W.2d at 475 .

2021See 877 S.W.2d at 475 .

2019See Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex. App.—San Antonio 2004, no pet.) (holding the trial court properly dismissed a healthcare liability claim when the expert’s report did not set forth facts or explain the medical basis for her opinion that the doctor’s breaches caused the patient’s injury); Lopez v. Montemayor, 131 S.W.3d 54, 60 (Tex. App.—San Antonio 2003, pet. denied) (holding that an expert’s opinion was conclusory and did not fulfill statutory causation requirements when it did not provide information linking the doctor’s actions to the patient’s death).

2014Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex. App.—San Antonio 2004, no pet.) (holding the trial court properly dismissed a healthcare liability claim when the expert’s report did not set forth facts or explain the medical basis for her opinion that the doctor’s breaches caused the patient’s injury); Lopez v. Montemayor, 131 S.W.3d 54, 60 (Tex. App.—San Antonio 2003, pet. denied) (holding that an expert’s opinion was conclusory and did not fulfill statutory causation requirements when it did not provide information linking the doctor’s actions to the patient’s death).

2019See Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex. App.—San Antonio 2004, no pet.) (holding the trial court properly dismissed a healthcare liability claim when the expert’s report did not set forth facts or explain the medical basis for her opinion that the doctor’s breaches caused the patient’s injury); Lopez v. Montemayor, 131 S.W.3d 54, 60 (Tex. App.—San Antonio 2003, pet. denied) (holding that an expert’s opinion was conclusory and did not fulfill statutory causation requirements when it did not provide information linking the doctor’s actions to the patient’s death).

2014Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex. App.—San Antonio 2004, no pet.) (holding the trial court properly dismissed a healthcare liability claim when the expert’s report did not set forth facts or explain the medical basis for her opinion that the doctor’s breaches caused the patient’s injury); Lopez v. Montemayor, 131 S.W.3d 54, 60 (Tex. App.—San Antonio 2003, pet. denied) (holding that an expert’s opinion was conclusory and did not fulfill statutory causation requirements when it did not provide information linking the doctor’s actions to the patient’s death).

2019See Murphy v. Russel, 167 S.W.3d 835, 838 (Tex. 2005) (expressing the general concept that “a claimant cannot escape the Legislature’s statutory scheme by artful pleading” in the context of a healthcare liability claim).

2009Rubio , 185 S.W.3d at 851 ; see also Hunsucker , 238 S.W.3d at 426 (“It is well established ‘that a claimant cannot escape the Legislature’s statutory scheme by artful pleading.’”) (quoting Murphy v. Russell , 167 S.W.3d 835, 838 (Tex. 2005)).

2016Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669 , 671–72 (Tex. 2008) (per curiam).

2009Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex.2008).

2010See , e.g. , Runcie v. Foley , 274 S.W.3d 232 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Daughtery v. Schiessler , 229 S.W.3d 773 (Tex. App.—Eastland 2007, no pet.); Mokkala v. Mead , 178 S.W.3d 66 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

2010See, e.g., Runcie v. Foley, 274 S.W.3d 232 (Tex.App.-Houston [1st Dist.] 2008, no pet.); Daughtery v. Schiessler, 229 S.W.3d 773 (Tex.App.-Eastland 2007, no pet.); Mokkala v. Mead, 178 S.W.3d 66 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).

2021The line between a safety standards-based claim that is not a healthcare liability claim and one that is “may not always be clear.” Id.

2015The Court first considers whether Plaintif f presents a healthcare liability claim. out several non- Luke's Episcopal Hospital, 462 S.W.3d 496 (Tex. 2015), the Supreme Court set d claim is a healthcare exclusive considerations for determining whether a safety standards-base rations it listed, liability claim under the Texas Medical Liability Act, supra. Among the conside or assisting in the Court included: "At the time of the injury was the claimant providing gs, Plaintif f alleged that Plaintif f was at providing health care?" At p. 505.

2021Id. § 74.351(b); Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex. 2008).

2009See Leland , 257 S.W.3d at 208 ; Lewis , 253 S.W.3d at 208 .