Texas Doctor Alleges Claim Against Him For Injuries Caused By His Cow Is A Medical Malpractice Claim

162017_132140396847214_292624_nA retired Texas doctor whose cows escaped from his property and caused serious injuries to a man whose motor vehicle struck the doctor’s cows on a public roadway alleges that the claim against him is a medical malpractice claim and therefore is subject to Texas’ medical malpractice laws that require the filing of expert reports to establish professional liability.

The retired 82-year-old doctor had moved to dismiss the cow-claim filed against him by the injured driver, alleging that the plaintiff must file a report from a medical expert that establishes the standard of medical care that the defendant doctor allegedly breached.

Source

The defendant cow-doctor cites a 2012 case decided by the Supreme Court of Texas (“Supreme Court”) in which the Supreme Court stated, “At issue in this interlocutory appeal is whether the claims of an employee against his employer, both of whom are health care providers, alleging injuries arising out of inadequate training, supervision, risk-mitigation, and safety in a mental health facility, constitute health care liability claims (HCLCs) under the Texas Medical Liability Act (TMLA or Act). See Tex. Civ. Prac. & Rem.Code ch. 74 et seq. [“the breadth of HCLCs include causes of action against physicians and health care providers for negligence in the provision of “medical care, or health care, or safety or professional or administrative services directly related to health care.” Tex. Civ. Prac. & Rem. Code Section 74.001(a)(13)”; “the issue posed is whether the umbrella fashioned by the Legislature’s promulgation of the TMLA includes the cause of action brought by a claimant against physicians or health care providers”]. We conclude that the TMLA does not require that the claimant be a patient of the health care provider for his claims to fall under the Act, so long as the Act’s other requirements are met. We hold that the employee here is properly characterized as a “claimant” under the Act and his allegations against his nonsubscribing employer are health care and safety claims under the TMLA’s definition of HCLCs, requiring an expert report to maintain his lawsuit” …

“An HCLC contains three basic elements: 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.” (emphasis added)

The Supreme Court stated, “We conclude that the safety component of HCLCs need not be directly related to the provision of health care … Although HCLCs, as defined, include causes of action against health care providers brought by “claimants,” the specific incorporation of the patient relationship for health care and medical care claims governs the HCLC for departures from accepted standards of medical care and health care … However, that limitation does not apply to claims of safety, which is not defined with reference to a patient.”

The dissent opinion in the Supreme Court case stated, “I would hold that a claim for safety under the Health Care Liability Act must arise from a breach of a health care provider’s duty to adequately ensure a patient’s safety in providing health care services.” The dissent prophetically predicted, “The Court’s reading of the term “safety” — “untouched by danger, not exposed to danger; secure from danger, harm or loss” — is so broad that almost any claim against a health care provider can now be deemed a health care liability claim. If a hospital cook leaves an unlit gas burner on and causes an explosion, claims for any resulting injuries might be health care liability claims. If a nurse’s deranged spouse arrives at a clinic and shoots her, her claim that the facility provided inadequate security will also fall under the statute. Surely the Legislature did not intend to make professional liability insurers responsible for such claims in order to solve an insurance availability crisis.”

Texas West Oaks Hospital v. Williams, No.10-0603.

Isn’t it ironic (if not outrageous) that a defendant (who happens to be a retired doctor) in an escaped cow case in Texas is citing Texas’ medical malpractice tort reform laws that were enacted with the espoused purpose of avoiding “frivolous” medical malpractice claims, in an attempt to insulate himself from his personal responsibility to make sure that his cows do not stray from his property and cause injury to drivers on public roadways?

The retired doctor’s specious argument has resulted in the undue and unnecessary delay in the trial of the injured driver’s personal injury claim against him.

If you or a family member were injured (or worse) as a result of medical negligence in Texas, you should promptly seek the legal advice of a Texas medical malpractice attorney who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice lawyers in Texas who may assist you.

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This entry was posted on Tuesday, April 14th, 2015 at 5:25 am. Both comments and pings are currently closed.

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