The little-known loophole Texas hospitals use to try to avoid medical malpractice responsibility
When defending medical malpractice lawsuits, many hospitals take the position that their registered nurses are little more than dunces
One of the most notable fictions of Texas law is the corporate practice of medicine doctrine. Under this court-created precedent, Texas hospitals are not allowed to employ physicians.
Don’t get me wrong, Texas hospitals have figured out a lot of ways to skirt the corporate practice of medicine doctrine. Many of them have formed separate organizations that they control, which, in turn, employ physicians.
This murky issue is always difficult for doctors from other states to understand, because virtually all of them are hospital employees. It’s also confusing to Texas residents because misleading advertising by hospitals suggests that they employ the best doctors around.
Hospitals avoid responsibility for physician mistakes
When it comes to medical malpractice lawsuits, though, the same Texas hospitals take a different approach. They stand firm on the proposition that they can’t be held responsible for physician mistakes because hospitals only employ nurses and techs, not doctors.
For instance, I’m working on a case now where a defendant hospital is trying to get a trial court to dismiss a case out of the gate on this very issue. The circumstances of the case involve a man who went to the hospital emergency room and was misdiagnosed and discharged from the hospital. Only later did they learn that he had been having a stroke at that time.
When Painter Law Firm started working on the case, we hired medical and nursing experts to review the records. The emergency room nurse observed and documented different things than the emergency physician did. According to our experts, one of those observations—the patient’s inability to walk or stand independently—was critical information that the doctor should’ve been aware of.
The experts concluded that, if the emergency nurse had brought this to the attention of the emergency physician, the doctor would’ve decided against discharging the patient. This would’ve led to a proper diagnosis and treatment of the stroke.
Hospital gamesmanship in preliminary expert report disputes
Texas law requires medical malpractice plaintiffs to produce expert reports from physicians and nurses early in the litigation to give fair notice of the claims and demonstrate to the trial court that the case is not frivolous. Speaking of frivolous, healthcare defendants frequently make frivolous objections to the adequacy of these reports. Occasionally, though, appellate courts find a defense objection that makes sense.
This happened in a recent case, Columbia Valley Healthcare System L.P. d/b/a Valley Regional Medical Center v. Maria Zamarripa, 526 S.W.3d 453 (Tex. 2017), which was decided by the Texas Supreme Court in 2017.
The Zamarripa case deals with the sufficiency of these early preliminary expert reports, which we typically refer to as Chapter 74 reports, named after a statute that requires them. The plaintiffs filed a birth injury lawsuit against a hospital and some physicians, alleging mismanagement of a third-trimester pregnancy where there were problems with the placenta.
The plaintiffs timely produced preliminary expert reports from a labor and delivery nursing expert and an OB/GYN physician. The crux of the nursing criticism against the hospital was that the nursing staff did not advocate for additional treatment of preterm labor; for further investigation and treatment of abnormal lab work, pain, and pressure; and against discharge.
Because Texas law does not allow nurses to offer opinions as to how nursing mistakes cause injury to a patient, the plaintiffs took the typical tag-team approach of having the OB/GYN medical expert address that. The medical expert wrote in his report that because of the nursing mistakes, the pregnant mom was being transferred in a ground ambulance when she needed an emergency C-section and hysterectomy, leading to her death. In other words, if the nurses had performed appropriately, the mom would have been in the hospital where these emergency complications could be managed immediately.
The hospital objected to these Chapter 74 expert reports, arguing that they were collectively speculative, and that it is a physician, rather than nursing, function to make the decision to discharge a patient.
The case made it all the way to the Texas Supreme Court, where the court ruled that the hospital “appears to be correct with respect to statements of the expert reports indicating that the nursing experts report seems to suggest that the hospital breached its standard of care in not providing the attending physician information that would’ve persuaded him to change his mind. While the report does not explain how that could’ve happened, we cannot say it would be impossible.”
The Texas Supreme Court then remanded the case back to the trial court to consider whether the plaintiffs’ experts could fix this deficiency through amendments to one or both reports. Under existing case precedent, a trial court must grant one 30-day extension if it thinks that the deficiencies are curable.
After the Zamarripa opinion, other Texas appellate courts have had the opportunity to take out similar situations. For example, Houston’s 14th Court of Appeals entered a decision in the Manju Monga, M.D. v. Israel Perez case. In that case, there was a question of whether a recommendation to deliver a baby immediately made by a maternal fetal medicine specialist to a primary obstetrician would’ve made a difference.
The court looked closely at the text of the preliminary plaintiffs’ expert reports to determine whether the opinion that it would’ve made a difference was speculative or not. In ruling that it was not speculative, the court looked to the statements contained in the report of information showing that the opinion was based on facts stated in the medical records that he reviewed. The court also looked favorably on the statement of the expert report that it was reasonable to anticipate that a primary doctor would follow the recommendation of consulting specialist.
Experienced legal representation is critical
There are a lot of good lawyers in Texas. There are well over 20,000 licensed attorneys in Harris County alone. When it comes to medical malpractice cases, though, not many of them have direct experience in handling them.
Because Texas law front-loads expert report requirements in medical malpractice cases, it’s important to select a competent, experienced medical malpractice attorney to handle your case from the start.
We are here to help
If you or a loved one has been seriously injured by hospital, nursing, physician, or surgical care, then the experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, are here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.
All consultations are free and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.
Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2017, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
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