HEALTH CARE LIABILITY UPDATE, 2014

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1 HEALTH CARE LIABILITY UPDATE, 2014 PAULA SWEENEY Slack & Davis 2911 Turtle Creek Boulevard Suite 1400 Dallas Texas (214) State Bar of Texas ADVANCED MEDICAL TORTS COURSE March 13-14, 2014 Santa Fe, NM CHAPTER 1 This paper has received the State Bar of Texas award for Best Continuing Legal Education Paper and, in 2010, the Texas Judicial Counsel s Award for Best Non-Judicial Paper

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... VIII MEDICAL MALPRACTICE UPDATE... 1 I. SCOPE OF THE ARTICLE... 1 II. THE GOVERNING STATUTES ARTICLE 4590I AND CHAPTER A. Chapter Definitions... 1 B. Article 4590i Definition of Health Care Provider Entities Defined by the Courts as Health care Providers Under Chapter 74 and Article 4590i Definition of Health Care Liability Claim Definition of Physician Chapter 74 Conflict with Other Law C. Chapter 74 and Sovereign Immunity D. Chapter 74 - The Deceptive Trade Practices Statute E. Notice of Claim F. Ad Damnum Clause G. Informed Consent, Chapter 74 Subchapter C and Article 4590i, Subchapter F H. The Bad Result Instruction: Article 4590i, 7.02, and (e)(2) I. Subchapter D, Emergency Care J. Section New Jury Instruction K. Res Ipsa Loquitur L. Statute of Limitations and Repose Limitations Under Article 4590i The Open Courts Exception to the Statute of Limitations Since Tolling of the Statute of Limitations Since Interaction of Article 4590i and Chapter 74 With Other Statutes Tolling Provision and the Effect of Defective Pleadings Statute of Limitations and Its Effect on Derivative Claims Weekends and Holidays Do Not Extend The Statute Minority Tolling and Corporate Dissolution Effect of Plaintiff s Bankruptcy The Effect of Chapter 74, Section M. Limitation on Damages , and and Article 4590i, CPI Adjustment to the Death Cap The Constitutionality of the Damage Caps Article 4590i s Damages Cap and Its Interaction with Other Damages Provisions Unanswered Questions i

3 N. Subchapter M, Article 4590i, and Subchapter H, Chapter 74, The Expert Report Requirement CPRC Section , The Expert Report Rule 202 Depositions Deadline is 120 Days Defense Deadline is 21 Days Effect of Challenge Parties May Agree to Extend Court May Grant 30-Day Extension Interlocutory Appeal Is the Deposition of the Defendant Physician Precluded Prior to the Filing of the 120-day Report? What is Service Under Chapter 74? One Service is Enough CVs Are Magic Words Required Regarding Causation? Inconsistent Statements Within the Report If the Court Can Determine the Basis of Plaintiff s Complaint, the Report is Adequate Good Faith Efforts is the Standard.... Error! Bookmark not defined. 17. How Many Reports Are Required? A Report Cannot Be Entirely Conclusory The Four Corners Rule The Standard of Review No Good Cause Accident or Mistake is Required In Emergency Room Cases, the Report Need Not Speak to Willful and Wanton Negligence Expert Reports in Res Ipsa Loquitur Cases Non-suit and the 120-Day Clock Nonsuit Does Not Cancel Motions for Sanctions or Interlocutory Appeals Qualifications Must Be Shown Within the Body of the Report Distinction Between Defendants Who Are Individuals and Defendants Who Are Not (l), (d) and Interlocutory Appeal Defendant s Failure to Answer or Have a Registered Agent Does Not Vitiate the Duty to Serve a Report But May Result in Tolling of the 120 Day Clock An Expert May Apply the Same Standard of Care to Two Physicians Docket Control Orders Must a Report During the Grace Period be from the Same Expert? Sanctions and Court Costs The Importance of Requesting a Grace Period Extension The Expert Report and Damages Interplay Between Deficient Report and No Report Effect of Amending Claims or Adding Parties Threshold Means Threshold Constitutionality of the Expert Report Requirement Plaintiff s Experts May Rely on Talking with the Patient Chapter 74 Report Cannot be Based on Assumptions Must Plaintiff s Experts be from Texas? Must Use Defendant s Name Experts from Different Fields Permitted? Plaintiff s Counsel May Write the Chapter 74 Report Plaintiff Does Not Forfeit the Opportunity to Cure Deficiencies by Responding to the Objections Made by Defendant Reports in Informed Consent and Negligence Per Se Cases The Chapter 74 Report in Federal Court Daubert Striking of Expert Does Not Invalidate the Report Plaintiff Must Have a Specialized Expert to Maintain a Negligent Credentialing Claim ii

4 51. The Report Requirement When Defendant Defaults Vicarious Liability Claims Do Not Require Separate Expert Reports Court Must Rule Alleged Bias of Expert Not Relevant at Report Stage Procedure for Curing a Defective Report Effect of Abatement Effect of Bankruptcy on Requirements Mistaken Filing in Federal Court Does Not Toll the Statute The 120 Day Report in Tort Claims Cases There Must Not Be an Analytical Gap in Plaintiff s expert s reasoning Article 4590i and the Expert Report Requirement O. Chapter Discovery Procedures P. Subchapter 1 of Chapter 74 and Expert Witnesses The General Rule Experts Not From Texas Case Law Instances in Which Expert Testimony May Not Be Required Daubert and Its Progeny Personal Preference or Opinion Expert Opinion Under Rule 704 Admissible On Ultimate Issues of Mixed Law and Fact Physician Acting as a Specialist The Physician Must Exercise His Skill With Reasonable Care and Diligence The Same School Rule Evidence-Custom Admissible, But Not Conclusive On the Standard of Care in Medical Malpractice Cases Professional Standards Basis for Expert s Opinion Q. Arbitration Agreements, Chapter 74, Subchapter J., and Article 4590i, Subchapter O, The Statute Case Law R. Payments for Future Losses, Chapter 74, Subchapter K, S. A Notable Omission III. THE TEXAS TORT CLAIMS ACT A. Legal Limitations on Liability of Governmental Entities State and County Hospitals The Mandatory Election Clause, Relation Back After Dismissal Is Not Necessary The 120 Day Report Before Government Unit Can Be Liable, Defendant Must be an Employee Must Have Use or Misuse of Tangible Property Pleading Condition or Use of Property What Constitutes Tangible Property Sufficient to Invoke Waiver of Immunity? Causal Link Requirement Interlocutory Appeal Tort Claims Immunity and The Patient Bill of Rights Notice Under the TTCA No Discovery Rule No Tolling For Incompetents Minority Does Not Obviate the Notice Requirement iii

5 16. City Hospitals Liability of Health Care Management Contractors Hospitals Operated by the Federal Government Texas Tort Claims Act Limit On Damages IV. PLEADING AND PROVING THE MEDICAL MALPRACTICE CASE A. Pleadings of Plaintiff Notice of Claim Ad Damnum B. Pleadings of Defendant Limitations Defense Lack of Notice Damages Limitations Contributory Negligence of Plaintiff C. The Cause of Action Establishing the Existence of a Duty: The Patient-Physician Relationship Liability of Physician for Acts of Hospital Personnel Liability for Residents Liability of Physician for Acts of Another Physician Breach of Warranty Theories of Recovery-Negligence Battery Lack of Informed Consent Abandonment Fraud Contract to Cure Texas Deceptive Trade Practices Act Malicious Prosecution False Imprisonment Limitation on Strict Liability Unauthorized Disclosure of Confidential Information Experimental Medicine Unnecessary Surgery Prenatal Injuries Wrongful Pregnancy or Conception Wrongful Birth Wrongful Life Wrongful Continued Life Spoliation Wrongful Death and Survival Actions Physician - Patient Relationship Requirement for Wrongful Death Action Liability for Infection Loss of a Chance Civil Rights Violation Sexual Exploitation Negligent Infliction of Emotional Distress Bystander Recovery Intentional Infliction of Emotional Distress Negligent Misrepresentation Failure to Consult a Specialist Physician Liability Arising from Worker s Compensation Examinations or Care Negligence of Dentists iv

6 38. Liability of Original Tortfeasor for Subsequent Medical Malpractice Patient Dumping or the Duty to Treat in the Emergency Room Sexual Abuse & Repressed Memories Fear of AIDS Negligent Disregard of Patient s DNR Directive Long-Arm Jurisdiction, Out-of-State Physicians V. PLEADING AND PROVING THE HOSPITAL LIABILITY CASE A. Proving the Plaintiff s Cause of Action Vicarious Liability Direct Corporate Liability VI. NURSING HOME LIABILITY A. Repeal of Texas Human Resources Code (1), (k) and Texas Health and Safety Code B. Changes To The Punitive Damages Statute VII. PRELIMINARY DISCOVERY A. Discovery Tools In Medical Malpractice Cases B. Rule 202 Depositions C. Incident, Unusual Occurrence Or Variance Reports D. Compelling Physical and Mental Examinations Expert Witnesses Depositions of Hospital Corporate Officers Photographs Financial Condition of a Hospital Privileges E. Mandamus as a Remedy VIII. SUMMARY JUDGMENT PRACTICE A. Summary Judgment Practice in Texas Adequate Time for Discovery How Much Evidence is Enough? Applicability of Rule 166A(i) B. Summary Judgment Proof Affidavits Depositions Answers to Interrogatories and Requests for Admissions Medical Records C. Determining if Summary Judgment is Proper Has the Movant Negated an Essential Element of the Claimant s Claim or Defense? Has a Fact Issue Been Raised? The Movant Must Raise All Grounds at the Trial Court Level Expert Testimony Must Be Sufficient Expert Must Be Familiar with the Standard of Care v

7 6. The Standard of Care Must Be Specifically Stated Causal Link Must Be Established Fact Issue on Unpleaded Theories is Sufficient Respondent s Summary Judgment Proof Continuances D. Appealing the Grant or Denial of Summary Judgment IX. CROSS-EXAMINATION OF MEDICAL EXPERTS IN THE MEDICAL MALPRACTICE CASE A. Qualifications of Expert Professional Qualifications Lack of Medical Specialty Board Certification Hospital Medical Staff Privileges B. Use of Medical Treatise and Literature C. Use of Medical Records D. Bias, Prejudice, Reputation or Pecuniary Interest Bias and Prejudice Financial Interest of Expert in Success or Outcome of Case Professional Reputation or Character Prior Litigation Testimonial Experience or Expert Specific Financial, Accounting and Income Records of Expert Not Discoverable or Admissible for Impeachment Purposes Insurance Carriers Ex Parte Conferences E. Other Suits F. Prior Complaints Against Experts G. Prior Criminal Record of Expert H. Tampering with Expert Witnesses X. DAMAGES IN MALPRACTICE CASES A. Damages Law in Tort Cases Apply to Malpractice Actions B. Damages Unique to Malpractice Cases XI. THE PLAINTIFF S APPROACH TO THE COURT S CHARGE A. The Court s Charge in Texas General Rules and Trend Toward Simplification The Charge in Malpractice Cases B. Instructions and Special Issues - Legal Authority Negligence Conveying the Legal Standard of Conduct for Physicians to the Jury Proximate Cause Definition Occasion In Question Definition Inferential Rebuttals Informed Consent Submitting Res Ipsa Loquitur by Instruction Damages Limit Instruction vi

8 8. Bad Result Instruction Establishment of Facts: Direct or Circumstantial Evidence Burden of Proof: Preponderance of Evidence by Definition Instruction on Spoliation Disapproved Instructions and Definitions Submission of Emergency Room Cases XII. INSURANCE COVERAGE A. Multiple Claims and Defendants B. The Importance Of The Claim Date APPENDIX A APPENDIX B TOLLING OF THE STATUTE OF LIMITATIONS vii

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