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Medical Malpractice Law Update

Medical Malpractice Law Update. The Law--It Keeps on a Changing!. Medical Malpractice Update. Expansion of HCLCs Expert Reports: What is new and different. Premises Law after West Oaks . Methodist v. German update. Damages update. Governmental Immunity Update. . Expansion of HCLCs.

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Medical Malpractice Law Update

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  1. Medical Malpractice Law Update The Law--It Keeps on a Changing!

  2. Medical Malpractice Update • Expansion of HCLCs • Expert Reports: What is new and different. • Premises Law after West Oaks. • Methodist v. German update. • Damages update. • Governmental Immunity Update.

  3. Expansion of HCLCs • Providing an amputated toe of another patient instead of fetal remains. CHCA Bayshore, LP v. Ramos, 388 S.W.3d 741 (Tex. App. – Houston [1st Dist.] 2012, no pet.). • Death of a nursing home patient from a spider bite.  Omaha Healthcare Center, LLC, v. Johnson, 344 S.W.3d 392 (Tex. 2011). • Doctors’ actions in negligently advising a water park on the use of defibrillators. Yamada v. Friend, 335 S.W.3d 192 (Tex. 2010). • Patient’s fall caused by a defective footboard on a hospital bed. Marks v. St. Luke’s Episcopal Hospital, 319 S.W.3d 658 (Tex. 2010).

  4. Expansion of HCLCs • Patient’s sexual assault by another patient. Diversicare v. Rubio, 185 S.W.3d 842 (Texas. 2005). • Alleged physical assault by hospital security guardwhen attempting to restrain psych patient. Memorial Hermann Hosp. System v. Kerrigan, 383 S.W.3d 611 (Tex. App. – Houston [14th Dist.] 2012, pet. denied). • Alleged misuse of physical therapy traction machine. Trevino v. MC45 Holding, LLC, 2012 WL 4577484 (Tex. App. – Houston, [14th Dist.] 2012, no pet.).

  5. Expansion of HCLCs • Allegation of excessive billing charges by a hospital.McAllen Hospitals, LP v. Gomez, 2013 WL 784688 (Tex. App. – Corpus Christi 2013, no pet.) • Visitor Slip & Fall in Hospital. Ross v. St. Luke’s Episcopal Hosp., 2013 WL 1136613 (Tex. App. – Houston [14th Dist.] 2013, pet. filed.) • Wheelchair patient hurt while being transported from HC facility in a van. Sherman v. Healthsouth Specialty Hosp., ____ S.W.3d ____, 2013 WL 1339824 (Tex. App. – Dallas 2013, no pet.). • Pharmacy compounding product pursuant to doctor’s order. Randoll Mill Pharmacy v. Miller, No. 02-12-00519-CV (Tex. App.—Fort Worth, pending). Oral argument held on June 11, 2013.

  6. Expert Reports:What is new and different? • A non-suit tolls the 120-day report deadline CHCA Women’s Hospital v. Lidji, ___S.W.3d.____ (Tex. 2013) • You can cure a deficient report with new reports from new experts. • You don’t have to address all claims in your reports—only one. • RESULT: Reports are extremely difficult to challenge successfully. • What’s Left? • Is there ever a report that is “no report?” (Taylor v. CHRISTUS, pending in 1st COA—submitted w/o oral argument) • What happens when new reports contradict old ones?

  7. Premises Law:Is there any after West Oaks Cases following West Oaks • Memorial Hermann Hosp. System v. Kerrigan, 383 S.W.3d 611 (Tex. App. – Houston [14th Dist.] 2012, pet. filed) • Trevino v. MC45 Holdings, Inc., 2012 WL 4577484 (Tex. App. – San Antonio 2012, no pet.) (Not “Safety” Prong ) • Ross v. St. Luke’s Episcopal Hospital, 2013 WL 1136613 (Tex. App. – Houston, [14th Dist.] 2013, no pet.) • Sherman v. Healthsouth Specialty Hosp., ____ S.W.3d _____, 2013 WL 1339824 (Tex. App. – Dallas 2013, no pet.)

  8. Premises Law after West Oaks Cases not following West Oaks • Good Shepherd Med. Ctr. V. Twilley, ____ S.W.3d ____, 2013 WL 772136 (Tex. App. – Texarkana 2013, pet. filed). • Totally disagreed with Williams by trying to distinguish it as having no relation to HC.  • Held that the “safety” claims must at least have an “indirect” relationship to the provision of healthcare. • Guillory v. CHRISTUS, No. 09-12-00490-CV (Tex. App.—Beaumont, pending). • Slip & Fall by a visitor in a Hospital • Argued and submitted in June. Still pending.

  9. Other Updates • Methodist v. German, 369 S.W.3d 333 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). • Provides causation defense to Hospitals. • Petition Denied—Case is over. • In re Higby, ___S.W.3d ____(Tex. App.—Houston [14th Dist] 2012, mo. for rehrg. filed). • ACOG grievances constitute privileged peer review actions under Texas law.

  10. Damages update Ellis v. United States, 673 F.3d 367 (5th Cir. 2012). • Plaintiff can recover pecuniary losses “even in the absence of specific evidence of the amount of contributions being made by the deceased before her death, or that she would have continued to contribute in the future.” • Factfinders have “significant discretion in determining pecuniary damages and “may look beyond evidence of calculable financial contributions.” • Pecuniary losses are not subject to the cap on non-economic damages.

  11. Governmental Immunity Update M.D. Anderson v. King, ___S.W.3d ___, 2013 WL 3226790 (Tex. App.—Houston [14th Dist] 2013, n.p.h.). Because the decision to only raise 2 bedrails was an “exercise of medical judgment,” the failure to raise those additional 2 rails constituted a complaint against the nursing staff, rather than a complaint about the use/misuse of tangible personal property.

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