By Alex Stein
As I wrote previously – see here, here, here, here, here, here, here, here, and here – whether a tort action sounds in “medical malpractice” as opposed to general negligence, or vice versa, can be crucial. Suits sounding in “medical malpractice” must satisfy special requirements that include shortened limitations periods, statutes of repose, and expert affidavits (or certificates of merit) at filing. In many states, those suits are also subject to special damage caps. Suits sounding in general negligence are free from these constraints. Filing and prosecuting those suits is consequently not as onerous and expensive as filing and prosecuting medical malpractice actions. For that reason, we witness many disputes over this pivotal categorization issue.
Most of those disputes are about falling accidents: see, e.g., Churchill v. Columbus Community Hosp., 830 N.W.2d 53 (Neb. 2013) (suit in connection with patient’s falling on wet floor while descending the steps of clinic’s aboveground pool categorized as sounding in medical malpractice rather than premises liability); Stanley v. Lebetkin, 123 A.D.2d 854 (N.Y. 1986) (suit by a plaintiff who fractured ankle while getting off doctor’s examining table categorized as sounding in medical malpractice rather than general negligence); Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525 (Tex. 2011) (suit by hospital patient who slipped on wet floor while getting out of bathtub categorized as “health care liability” claim); Rome v. Flower Memorial Hosp., 635 N.E.2d 1239 (Ohio 1994) (suits by a patient who fell off an x-ray table and by a plaintiff who sustained injuries after a component of his wheelchair collapsed while he was being transported from the physical therapy department categorized as sounding in medical malpractice); Husby v. S. Ala. Nursing Home, Inc., 712 So. 2d 750, 751–54 (Ala. 1998) (suit involving nursing home resident who fell out of bed, fractured her femur and died shortly after femoral surgery categorized as sounding in medical malpractice); Chandler v. Opensided MRI of Atlanta 682 S.E.2d 165 (Ga. App. 2009) (instructing lower court to determine whether a suit by a patient who sustained injury from falling on the floor from an MRI table sounds in medical malpractice).
This issue has recently been revisited by the Texas Supreme Court in Ross v. St. Luke’s Episcopal Hospital, — S.W.3d —- (Tex. 2015), 2015 WL 2009744, a case that involved a hospital visitor who slipped and fell near the lobby exit doors and sued the hospital on a premises liability theory.
The hospital argued that this suit was a “health care liability claim” under the Texas Medical Liability Act (TMLA), which required the plaintiff to submit to court an expert report. Because the plaintiff submitted no such report, the hospital asked the trial court to dismiss the suit. The hospital’s categorization of the suit as a “health care liability claim” relied on Texas West Oaks Hospital, L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012)—a holding that “when a safety standards-based claim is made against a health care provider, the Texas Medical Liability Act … does not require the safety standards to be directly related to the provision of health care in order for the claim to be a health care liability claim.” Based on that decision, the trial court granted the motion to dismiss and the court of appeals affirmed.
The Supreme Court of Texas accepted the hospital’s argument. After observing that “the purpose of the TMLA’s expert report requirement is not to have claims dismissed regardless of their merits, but rather it is to identify and deter frivolous claims while not unduly restricting a claimant’s rights” (citing Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011)), the Court ruled that it “fail[s] to see how the Legislature could have intended the requirement of an expert report to apply under circumstances where the conduct of which a plaintiff complains is wholly and conclusively inconsistent with, and thus separable from, the rendition of “medical care, or health care, or safety or professional or administrative services directly related to health care” even though the conduct occurred in a health care context.” “A safety standards-based claim”—it explained “does not come within the TMLA’s provisions just because the underlying occurrence took place in a health care facility, the claim is against a health care provider, or both.”
According to the Court, whether a suit sounds in healthcare liability, as opposed to general negligence, or vice versa, depends on the nature of the risk associated with the plaintiff’s allegations of damage. When that risk originates from the defendant’s provision of medical care, the suit sounds in healthcare liability. When the risk originates from an ancillary activity identical to those carried out for purposes other than medical care, the suit sounds in general negligence.
To facilitate the requisite categorization, the Court singled out “certain non-exclusive considerations,” namely,
- Did the alleged negligence of the defendant occur in the course of the defendant’s performing tasks with the purpose of protecting patients from harm;
- Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special, medical care was implicated;
- At the time of the injury was the claimant in the process of seeking or receiving health care;
- At the time of the injury was the claimant providing or assisting in providing health care;
- Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider;
- If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; or
- Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety-related requirements set for health care providers by governmental or accrediting agencies?
The Court ruled that, in the case at bar, the answer to each of these questions is No, which indicates that the plaintiff properly filed a general negligence suit.
The Court’s risk analysis strikes me as superior to the general multifactor test, summarized in Chandler v. Opensided MRI of Atlanta 682 S.E.2d 165 (Ga. App. 2009). Unlike the widely adopted multifactor, it yields predictable outcomes that align with insurers’ pricing of liability policies.