Texas’ Landmark Medical Lawsuit Reforms Resolved by the Courts

Elements of HB 4: Texas’ 2003 Landmark Medical Lawsuit Reforms Resolved by the Courts

Ten-year statute of repose
(Methodist v. Rankin)

• A plaintiff must file a health care suit within 10 years of the act or omission otherwise the case is time barred.
• This absolute, no exceptions, filing deadline cuts the tail of an obstetrician, neonatologist or a hospital in half.
• A statute of repose is different than a statute of limitations in that it addresses deferred claims for potential injuries that may be inherently undiscoverable.

Two-Year Statute of Limitations
(Walters v. Cleveland Regional Hospital)

• The two-year statute of limitations may be shortened if the plaintiff discovers the inherently undiscoverable injury more than 8 years (but less than 10 years) after treatment was rendered.
• The two-year statute of limitations applies in instances where a party has been added to a health care liability claim under the responsible third party statute.

Responsible Third-Party
(Molinet v. Kimbrell)

• The two-year statute of limitations controls in instances where a party has been added to a health care liability claim under the responsible third party statute.
• If a responsible third party is designated by a defendant, the plaintiff has 60 days to bring the party into the lawsuit and the suit is deemed to have been filed timely provided that the two-year statute of limitations has not run.

Paid or incurred
(Haygood v. de Escabedo)

• Recovery of medical expenses incurred is limited to the amount actually paid or owed by the claimant or anyone acting on behalf of the claimant.
• Otherwise stated, “Actually paid and incurred” means expenses that have been or will be paid, and excludes the difference between such amount and charges the service provider bills but has no right to be paid.
• Only evidence of recoverable medical expenses is admissible at trial.
• Since a claimant is not entitled to recover medical charges that a provider is not entitled to be paid, evidence of such charges is irrelevant to the issue of damages are therefore inadmissible.
• Adjustment in billed medical charges required by an insurer is not a collateral benefit.

Expert Witness Report

• The plaintiff is required to produce an expert report within 120 days of filing a suit.
• The 120-day deadline cannot be extended by a scheduling order (unless the extension is mutually agreed upon in writing by both plaintiff and defense).(Spectrum v. McDaniel)
• A claimant may cure a deficient expert report with a report from a new expert. A plaintiff is entitled to a single, 30-day extension to do so. (Lewis v. Funderburk, In re Buster, & Danos v. Rittger).

Granting a 30-day extension to cure a deficient expert report
(Scoresby v. Santillan)

• A single, 30-day extension to cure deficiencies in an expert report should be liberally granted so long as the report is authored by a person with some medical expertise and the report offers an opinion that the defendants were liable for the plaintiff’s injuries.
• The lenient standard avoids the expense and delay of multiple interlocutory appeals.
• A document utterly devoid of substantive content is not curable and therefore is not eligible for a 30-day extension to cure its deficiencies.

Statutory Sanctions

• Sanctions are available when no expert report is served, even after a 30-day extension has been granted. (Badiga v. Lopez)
• Sanction of dismissal with prejudice and award of attorney fees can occur even if the attorney fees are first sought after the case is non-suited. (Crities v. Collin)
• Sanctions are available through appeal after the case is non-suited. (Hernandez v. Ebrom)
• Some proof of incurred attorney fees may support sanctions. (Garcia v. Gomez)

Dismissal
(Ogletree v. Matthews)

• Denial of motion to dismiss and the granting of extension to cure an expert report is not appealable. 

Rule 202 Depositions
(in re Jordan)

• Rule 202 pre-suit oral depositions are prohibited in health care lawsuits.
• There is no limitation on written depositions.

Public Hospital
(Kassen v. Hatley)

• A plaintiff may sue a public hospital or a doctor working for a public hospital. A suit against a government employee is construed to be a suit against the employee in that employee’s official capacity.
• Plaintiffs cannot circumvent the Texas Tort Claims Act cap on damages by suing government employees individually.

Defective Hospital Bed
(Marks v. St. Luke’s)

• A hospital bed is an inseparable and integral part of patient care.
• A medical malpractice suit cannot be artfully pled as a simple negligence case.
• Medical malpractice and simple negligence cases cannot be packaged as a dual claim as a means to dodge the expert report requirement or side-step the non-economic damage cap.

As of 10/3/11