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Texas Judicial Update of Medical Malpractice Case Law 1999 - 2000

I. Introduction

In building on the work of Professor J. Hadley Edgar of Texas Tech University Law School and others that have done the Judicial Update for prior St. Mary's-Texas Tech Schools of Law Medical Malpractice Conferences, "[t]he following cases continue to define and refine the law of medical malpractice in Texas."

II. Evidence

A. Expert Testimony
1. McIntyre v. Smith1

In McIntyre v. Smith , the court overturned a directed verdict in holding that "(1) plaintiffs' medical witnesses in other specialties, who testified that they were familiar with technique of placing catheter, were qualified to testify as experts on standard of care, and (2) whether nephrologist breached that standard of care, and whether his actions proximately caused death of patient, were issues for jury." More specifically, the court found that inserting a venous catheter "is equally developed in many fields of medicine, and thus, those practitioners who perform these medical techniques are qualified to give the standard of care that would apply to Smith's actions in this case."

2. Spivey v. James2

In Spivey v. James , the appellate court affirmed that the trial court did not abuse its discretion when it excluded an expert from testifying against a dental surgeon because the expert even though a dentist was not a dental surgeon. The court, however, reversed the trial court's decision to exclude a second expert because the second expert proffered had a doctorate of dental surgery from the same school as the Defendant. Although the second expert did not practice in the surgical field, he was trained in the field, has a degree, practiced dentistry for 21 years and 15% of his practice was devoted to patients with the same condition as plaintiff. Based on this evidence, the appellate court concluded that the trial court abused its discretion in holding that the second expert was not qualified to testify. Reversed and remanded.

The standard for reviewing the trial court's ruling requires a finding that the trial court abused its discretion by refusing to permit witnesses to testify and that the error caused the rendition of an improper judgment. Relying on Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996); E.I. du Pont de Menoursc & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995); Hall v. Huff, 957 S.W.2d 90, 100 (Tex.App-Texarkana 1997, writ denied); Southland Lloyd's Ins. Co. v. Tomberlain, 919 S.W.2d 822, 826 (Tex.App-Texarkana 1996, writ denied), the court stated the premise of whether an expert witness is qualified to testify is within the trial court's discretion, and will not be disturbed on appeal absent a showing that the court abused its discretion. The reviewing court looks to see whether the trial court acted without reference to guiding principles or rules. The offering party has the burden of establishing that the expert witness's testimony is qualified, relevant to issues in the case, based upon a reliable foundation, and will assist the trier of fact. In addition, the offering party must establish that the expert has the knowledge, skill, experience, training, or education regarding the specific issued before the court which would qualify the expert to give an opinion on that particular subject, and that the underlying foundation upon which that opinion is based must be reliable.

B. Privileges
1. Warnke v. Boone3

In Warnke v. Boone , the Court held that relief under that Section 5.08(i) of the Texas Medical Practice Act is limited only to those plaintiffs who are "patients" as defined in subsection 5.08(m). In this case Plaintiff applied for employment with the Houston Police Department. During a pre-employment background check, the police department contacted a physician concerning the medical records of Plaintiff's minor child. Minor's Physician showed and discussed the child's medical records with a sergeant from the Houston Police Department, and the Plaintiff was subsequently denied employment. Plaintiff filed suit alleging wrongful disclosure of confidential information. Plaintiff sued for wrongful disclosure of confidential information regarding possible abuse of the minor child pursuant to the Texas Medical Practice Act, TEX. REV. CIV. STAT. art. 4495b, ?5.08 (Vernon's Pamph. 1999) and for intentional infliction of emotional distress. Defendant moved for summary judgment which was granted by the trial court. The appellate court concluded that summary judgment was proper because the minor's physician owed Plaintiff no legal duty under Article 4495b, Section 5.08(o).

2. In re Fontenot4

In Fontenot , the Court of Appeals held that the new witness statement rule (Tex. R.Civ. P. 192.3 (h)) does not include communications between the doctor, his attorneys and malpractice insurers that concerned another law suit, and to include them would violate the attorney client privilege. In this case the executrix of the patient's estate sought discovery via a request for disclosure of a doctor's letter to his attorney in another law suit and a claims questionnaire submitted to his liability insurer regarding the other suit. The trial court ordered production of the documents, but the Court of Appeals granted a writ of mandamus protecting the physician from having to produce the letter and questionnaire.

3. In re Osteopathic Medical5

In Osteopathic Medical , the Appeals court found that documents are considered to be a privileged medical peer review document, if it was prepared to provide information to facilitate a committee's peer review function of investigating incidents such as slip and falls. In this case, the plaintiff slipped and fell in the physical therapy facility of the Osteopathic Medical Center of Texas and Plaintiff sought any and all accident reports regarding the incident. The trial court compelled disclosure of two documents that the hospital claimed were excluded from discovery by medical peer review privilege. The court differentiated documents that are created in the normal course of business related to medical and health care services from those strictly made for a peer review group in evaluating unusual incidents.

III. Discovery Rules
A. In re: Doctors Hospital of Laredo, Ltd.6

In Doctors Hospital , the court concluded the trial court abused its discretion when it signed an order setting the depositions of a testifying expert and a consulting expert ordering each doctor to produce in-camera their federal income tax returns for the past 3 years that indicated all income derived from being either a testifying experts and/or consulting experts." In addition, the court also ordered the testifying expert to produce in-camera his calendars for the past 3 years. The hospital subsequently sought mandamus relief.

In the case, Plaintiffs sued Doctors Hospital of Laredo for medical malpractice arising from the birth of their child. Plaintiffs subsequently noticed the depositions of a physician, originally designated as a testifying expert, but redesignated as a consulting expert, and a testifying expert. Also subpoenaed were the doctors' income tax schedules and personal calendars. The hospital moved to quash the depositions and further moved for a protective order. At the hearing, the plaintiffs argued they needed the requested documents to show the bias of the hospital's experts.

This is an original proceeding involving the interpretation of Rule 192.3 of the new discovery rules. The hospital contends the plaintiffs may not depose the physician who was redesignated from a testifying expert to a consulting expert. Plaintiffs claim the redesignation is improper. Rule 192.3(a) prevents discovery of a consulting expert's opinion, provided a testifying expert has not reviewed the opinion. It is not improper to de-designate a testifying expert as long as it is not part of a bargain between adversaries to suppress testimony or some other improper reason. The appellate court however concluded that the record does not imply an improper, prohibited purpose, therefore, the trial court abused its discretion in ordering the deposition of de-designated expert.

Turning its attention to the testifying expert and his income tax schedules and calendars, the court held that the new discovery rules, in particular Rule 192.3, does not overrule Russell v. Young, 452 S.W.2d 434 (Tex. 1970) wherein the Texas Supreme Court held that personal financial records and appointment books are generally not discoverable to demonstrate the bias of a non-party witness. Comparing the former discovery rule 166(b)(2)(e) with the new discovery rule 192.3(e)(5) the court noted that a party may discover any bias of the testifying witness, however the court found no historical commentary that would suggest the rule drafters intended to overrule Russell and its progeny.

IV. LIMITATIONS

A. Gross v. Kahanek7

In Gross, the Texas Supreme Court held that a wrongful death cause of action is not tolled due to minority and a doctor's "course of treatment" may end when another doctor becomes responsible for refilling a prescription. In this case the Supreme Court affirmed the court of appeals judgment on the survival claim holding that the survival claim was not barred because the deceased child was a minor and the limitations period was tolled for her claim until her death. The Supreme Court, however, reversed the court of appeals judgment on the wrongful death claim stating that the statute began to run when the Defendant's course of treatment ended.

To determine when a course of treatment ends, the court considered "factors such as: (1) whether the physician continues to examine or attend the patient, and (2) whether the condition requires further services from the physician." The court determined that the doctor in the instant suit maintained a continuing course of treatment for the deceased minor so long as he was prescribing to her and that this ended when the pediatrician began ordering the medication.

B. Grace v. Colorito8

In Grace v. Colorito, the court concluded that the discovery rule is not applicable in this case since the harm must be both objectively verifiable and inherently undiscoverable for the discovery rule to apply. Having rejected plaintiff's argument of the unsound mind provision and the discovery rule, the court affirmed the trial court's summary judgment.

In the case plaintiff claims that defendant psychologist negligently treated her for psychological problems from 1991 - 1992. She filed suit on March 5, 1998 and defendant moved for summary judgment alleging that the claim was time barred under the two year statute of limitations for healthcare providers and the MLIIA and the two year limitations statute for negligence. Defendant's motion for summary judgment was granted and Plaintiff appealed on the following three issues: 1) that the Medical Liability Act does not apply because Defendant is not a health care provider; 2) the discovery rule tolls the two year statute of limitations under 16.003 of the Tex. Civ. Prac. & Rem. Code; and 3) that the unsound mind provision in Section 16.001 also tolls that limitations period.

This is a "false memories" case alleged to be created by Defendant while Plaintiff was heavily medicated and confused during therapy. Plaintiff voluntarily sought psychological treatment in 1991 and terminated her therapy in March 1992. She claims Defendant planted memories concerning cult activity of sexual abuse. Although Plaintiff voluntarily sought psychological treatment in 1991, she never initiated proceedings to be declared mentally incompetent. Plaintiff argued that the statute of limitations containing the MLIIA is inapplicable because the claim must be a health care liability claim and Defendant psychologist must be a healthcare provider. It is well settled that a psychologist is not a health care provider under the Medical Liability Act. The appellate court held that Defendant does not come within the statutory definition of "health care provider" under the MLIIA and the two-year statute of limitations contained in that statute is inapplicable.

To prevail under the unsound mind theory, plaintiff is required to produce specific evidence that she did not have the mental capacity to pursue litigation for a definite period of time or to produce sufficient fact based expert opinions to that effect. Although Plaintiff generally alleged that she was of unsound mind due to being heavily medicated, Plaintiff failed to provide specific dates to show how the medication might have caused her to be of unsound mind. The appellate court concluded that Plaintiff failed to create a fact issue regarding her mental capacity sufficient to toll the general statute of limitations.

The discovery rule has been recognized by Texas courts as an exception to defer the accrual of a cause of action until a plaintiff knew, or through the exercise of reasonable diligence, should have known of the facts giving rise to the cause of action. The discovery rule is only applicable in most cases in which the injury must be inherently undiscoverable and the evidence of the injury must be objectively verifiable. The Supreme Court has concluded that expert testimony regarding oppressed memory is not objectively verifiable and thus the discovery rule does not apply.

C. Karley v. Bell 9

In Karley v. Bell , the court affirmed the trial court's summary judgment against Plaintiff based on the statute of limitations holding that if date of negligence can be ascertained, the limitations period must be measured from that date. More specifically, the court held that "(1) dates of doctor's alleged negligence were readily ascertainable, and thus, it was immaterial whether doctor established a course of treatment for patient's rectal pain and bleeding in determination of when limitations period began; (2) doctor could not have breached duty to conduct or recommend complete physical examination on date of patient's first visit, when cancer was undetectable at that time, and thus limitations period could not have begun on that date; (3) statute of limitations could not be measured from date of patient's second visit to doctor, when children did not argue that limitations period began on that date; and (4) limitations period could not be measured from date of last visit, where alleged malpractice did not occur on that date, but rather, on that date, doctor made referral to surgeon who discovered cancer."

In this case the patient and later patient's children brought suit against health care providers alleging medical malpractice in failure to timely diagnose cancer. In April 1993, Plaintiff began experiencing rectal pain and bleeding. Defendant physician first examined Plaintiff on April 23, 1993, at which time he diagnosed hemorrhoids and gave her a prescription for Anusol. Plaintiff obtained a refill of Anusol on June 5, 1993 and an entry in her chart indicates that on June 22, 1994, Defendant reviewed her chart and called in a refill of Anusol to an Eckerd pharmacy. The parties are in dispute about whether Defendant saw Plaintiff between April 23, 1993 and September 21, 1994. Although Plaintiff contended in her deposition that she had office visits with Defendant on two occasions within these dates, neither she nor Defendant had any record of such visits.

On September 21, 1994, Plaintiff saw Defendant about a lump she had discovered in her right breast and her ongoing problem with rectal bleeding. Still believing that Plaintiff's rectal bleeding was due to hemorrhoids, Defendant again prescribed Anusol. On October 10, 1994, Defendant re-examined Plaintiff, prescribed Anaprox, and advised her to consult a surgeon about possible surgery on her hemorrhoids. Plaintiff saw a surgeon on October 14, 1994, at which time he performed a digital rectal examination and discovered a substantial mass that was biopsied and diagnosed colorectal cancer. On October 20, 1994, Plaintiff had surgery to remove the malignant tumor, and doctors discovered that her cancer had metastasized to several of her organs, including her liver.

Plaintiff sent notice of her intent to file a health care liability claim to Defendant on September 12, 1996 and filed suit against Defendant on October 15, 1996. Plaintiff died on June 22, 1997. Defendant filed motions for summary judgment, arguing that the suit was barred by the applicable two-year statute of limitations. The trial court granted the motions for summary judgment.

D. Wilson v. Kothauer10

In Wilson v. Kothauer , the Plaintiff brought a medical malpractice claim against Defendant alleging failure to properly evaluate and treat a wrist fracture. The court held that because of the limited treatment from the Defendant orthopedic (initial referral from treating physician and a follow up four months later that showed the initial misdiagnosis) there was not significant involvement to constitute a "course of treatment" with regard to the fracture. The court reasoned that the Plaintiff was not receiving a continuous course of treatment from orthopedist for limitations purposes and the initial examination should be used to determine the running of the statute of limitations. Thus, this claim was time barred.

E. Clements v. Conard11

In Clements v. Conard , the court held that "patient's claim was barred by statute of limitations, despite fact that doctor remained patient's primary care physician within limitations period". In this decision the court held that the Plaintiff had a reasonable time (15 months) after the diagnosis of cancer to file suit against the Defendant for failure to diagnose the cancer, but failed to timely file her action.

Plaintiff originally went to see the Defendant on 5/11/95 complaining of "swelling and soreness in her breasts, chest pain, swollen ankles, and the fact that she had not had a menstrual period in several months." Later, she complained that she was losing her hair. The last time she saw Defendant for these symptoms was 5/31/95 when he referred her to another physician in his provider program, however, he continued to be her primary treating physician and she saw representatives of his 19 times between 5/95 and 4/96.

In 3/96, she went to another group of physicians who diagnosed her with breast cancer and she was treated with a radical mastectomy. Plaintiff sent a notice letter to Defendants on 2/20/98 and filed suit on 5/8/98. The court held that because the last time that Defendant physically examined and saw Plaintiff for the above symptoms was on 5/31/95, the statute began to run on 5/31/95. Further, that the Plaintiff was aware of her injury, its cause, and the potentially culpable parties, but failed to file suit within a reasonable time of 15 months. Therefore, summary judgement should be upheld and her claim is barred.

V. DAMAGES

A. Horizon/CMS Healthcare Corp. v. Auld12

In Horizon, the Supreme Court held that while punitive damages are not capped under Article 4590i, prejudgment interest is. In this nursing home negligence case, the jury awarded $2.3 million in compensatory damages and $90 million in exemplary damages. On appeal, the court of appeals held that neither prejudgment interest nor punitive damages were capped. The Supreme Court affirmed in part (punitive damages) and reversed in part (prejudgment interest).

The Supreme Court held that the cap on punitive damages found in the Texas Civil Practice and Remedies Code, section 41.007, instead of the damages cap found in Article 4590i, sec. 11.02(a), applied to cap the total amount of punitive damages recoverable by a claimant. The Court based this decision on the legislative history of Article 4590i, on the plain language of the statutes themselves and on the Texas Insurance Code=s prohibition against insuring punitive damages. The Supreme Court reasoned that the purpose of the Act was to address the perceived public problem in the limited availability and affordability of adequate medical liability insurance that had a material adverse effect on the delivery of medical care in Texas. Thus, the legislature capped the amount of damages a physician or health care provider would be required to pay in attempt to control health care costs.

Among other factors, the Supreme Court looked to Article 5.15-1 sec. 8 of the Texas Insurance Code which provides that professional medical liability insurance policies shall not include coverage for punitive damages that may be assessed against a health care provider. In Texas, it is against public policy to permit someone to insure himself against his own gross negligence or willful injury of another. Thus, this provision made punitive damages uninsurable so that the intentionally or grossly negligent health care provider would be penalized and hopefully deterred. Thus, allowing punitive damages to be capped under Article 4590i would not deter future bad acts, lower insurance rates or increase the availability of medical care in Texas, because insurers cannot insure against punitive damages.

In reaching the opposite result with regard to prejudgment interest, the Supreme Court held that prejudgment interest did indeed fall under the damages cap of Article 4590i, sec. 11.02(a). Once again, the Supreme Court looked to the legislative history of Article 4590i and concluded that the legislature intended to place an unequivocal limit on the amount of damages that a health care provider must pay in a final judgment. Section 11.02(a) states that the cap applies to a health care provider=s Acivil liability for damages.@ Looking to the definition of Adamages@, the Supreme Court held that prejudgment interest falls within the common law meaning of the word.

VI. MLIIA-COST BOND AND EXPERT REPORTS

A. Due Process

1. McGlothlin v. Cullington13

In McGlothlin, the court of appeals upheld a trial court's dismissal of a medical negligence claim against a physician for failing to comply with the cost bond requirement or file an expert report as required by the MLIIA. The court concluded that the cost bond and expert report requirements of Article 4590i, Section 13.01 did not violate the due process protections of the United States and Texas Constitutions as applied to Plaintiff's case.

In this case Plaintiff argued her due process rights were violated because she is not able to prosecute her injury claim due to the cost bond and expert report requirements, therefore, the statute unconstitutionally restricted her medical malpractice claim. To determine whether a statute denies a constitutional right to a litigant, the court analyzed the statute using the criteria established by Sacks v. Vottler, 648 S.W.2d 661 (Tex. 1983). The Sacks court enumerated a two prong test: 1) the litigant must show that a cognizable common law cause of action is being restricted; and 2) the litigant must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute. The court reviewed the history behind passage of the MLIIA. The court also reviewed the Texas Open Courts guaranty provided in Article 1, Section 13 of the Texas Constitution. The court first noted that the statute offers litigants two means of preserving a malpractice claim either by 1) a cost bond/cash deposit or 2) through an expert report. No reason was given by the Plaintiff in the record for failure to comply with the MLIIA within the initial 90 days after filing suit, and there was no indication whether she ever attempted to comply with the statute. The court found her affidavit wholly insufficient to establish proof that Section 13.01 was unconstitutional as applied to her and the due process challenges were overruled.

2. Knie v. Piskun14

In Knie v. Piskun , the court held that "indigence of patient did not excuse patient from expert medical report requirement of the Medical Liability and Insurance Improvement Act; (2) patient was not entitled to have county pay her expert witness expenses and related litigation expenses; (3) patient was not entitled to 30-day grace period for filing expert medical report; (4) patient challenging constitutionality of Medical Liability and Insurance Improvement Act was not required to serve Attorney General, overruling Allen, 888 S.W.2d 219; (5) expert medical report requirements did not violate patient's rights to equal protection, due process, or access to courts; and (6) patient failed to overcome presumption of constitutionality with respect to her First Amendment claim."

In this case Plaintiff filed claim pro se for misdiagnosis of a herniated disk that left her paralyzed from the chest down. Plaintiff later hired an attorney, but the court held that a mistake of not filing an expert report could only extend the 180 day period for thirty days immediately after the 180 day period, as such her claim was dismissed.

B. Notice and Opportunity to be Heard

1. Mercy Hospital of Laredo 15

In Mercy Hospital of Laredo , the court held that a trial court did not abuse its discretion when it dismissed a medical malpractice claim due to Plaintiff's failure to file an expert report or a cost bond/cash deposit even though the Defendant did not provide adequate notice of the dismissal hearing.

In this case an appeal was taken from the trial court's order dismissing plaintiffs' health care liability claim against a hospital and physician wherein plaintiffs contended that the trial court's order was void because Plaintiffs did not receive adequate notice of the hearing that resulted in the dismissal. Although the record indicates that copies of the cover letter and amended joint motion to compel were faxed to plaintiffs' counsel on May 6 and again on May 7, 1998, counsel claims he did not receive the fax until May 7, 1998. The trial court heard the amended motion to compel on May 11, 1998 over the objection of plaintiffs' attorney who argued that he did not have adequate notice of the hearing under Texas Rule of Civil Procedure 21, 21a. Noting the clarity of Section 13.01(e), the trial court dismissed the plaintiffs' claims against hospital and physician on June 9, 1998, the trial court entered a written order dismissing the case with prejudice.

Plaintiffs contended that the trial court's order dismissing their claim was void because they did not receive timely notice of the hearing on the amended motion to compel. The court held that because the trial court had jurisdiction over both parties and the subject matter involved in this case involved jurisdiction to render judgment, the order was not void. The court reviewed Rule 21 of the Texas Rules of Civil Procedure, which requires that all parties shall be served with a motion and notice of any hearing on a motion at least three (3) days prior to the hearing. Rule 21a extends the notice period by three (3) days when the service of notice is accompanied by fax. When Rule 21a is applicable, Saturdays and Sundays are included in the computation of this time. The undisputed evidence shows that the hearing on the amended motion to compel took place on May 11, 1998, less than six (6) days after the notice was received. Rule 21 authorizes the court to shorten the notice requirement and the trial court's action shortening the notice period will not be disturbed on appeal without a showing of an abuse of discretion. The court noted while plaintiffs did not have six (6) days notice of the amended motion to compel, they did have adequate notice of the original motion to compel, which complained of the same fundamental issue listed in the amended motion to compel, that is, the plaintiffs failure to file expert reports.

The court held that the only means the plaintiff has of preventing dismissal is to request a thirty (30) day grace period to permit the filing of the missing expert reports. Although the plaintiffs did not prepare a grace period request, the trial court permitted plaintiffs to present argument regarding their failure to file expert reports. The trial court concluded that plaintiffs' failure to comply with ? 13 was insufficient to defeat a mandatory dismissal, therefore, the appellate court held that the trial court acted within its discretion to consider the amended motion to compel.

2. Garcia v. Willman16

In Garcia v. Willman , the court held that expert reports filed under 4590i are not to be used as evidence to defeat a motion for summary judgment, but a Plaintiff must be given an opportunity to be heard. In this case Defendant's objections to use the expert affidavits were only made one day prior to the summary judgment hearing and thus the Plaintiff did not have an opportunity to amend prior to the hearing.

In this case, Plaintiff filed the affidavit of an expert dated November 26, 1996, provided that Defendant's and others' conduct fell below the standard of care because they failed to diagnose and treat Plaintiff's condition prior to prescribing Dilantin and discharging her from the hospital. Almost one year later on October 2, 1997, Defendant filed his motion for summary judgment that included his own affidavit denying that he deviated from the acceptable standard of care in treating Plaintiff.

In response, Plaintiff filed two expert witness affidavits from her expert. The first affidavit was the same affidavit used to comply with the procedural requirements of Article 4590i. The second affidavit by her expert entitled "supplemental affidavit" discussed his review of several documents since the previous affidavit and concluded that a reasonable and prudent doctor in Defendant's situation would have called the pharmacy and canceled the prescription for Dilantin before Plaintiff was discharged from Hospital.

Defendant objected to both expert affidavits arguing that Plaintiff was statutorily prohibited from using either and both should be struck. The trial court agreed and struck both affidavits and granted Defendant's motion for summary judgment, along with his motion to sever. Plaintiff argued on appeal that the affidavits submitted for the purposes of complying with ? 13.01 of Article 4590i may be used as summary judgment evidence.

Defendant's objection to Plaintiff expert's affidavit was based on ? 13.01(k) of MLIIA that: "not assuming any other law, an expert report filed under this section: 1) is not admissible in evidence by a defendant; 2) shall not be used in a deposition, trial, or other proceedings; and 3) shall not be referred to by a defendant during the course of the action for any purpose. Because the affidavit was initially submitted for purposes of qualifying as an Article 4590i expert report, the clear statutory language of 13.01(k) prohibits Plaintiff from using the same affidavit as summary judgment evidence. Furthermore, Defendant points out that the statute prevents him from being able to controvert the affidavit.

Plaintiff contends that Defendant's interpretation of the statute creates an absurdity because a statute that requires the plaintiff to prove prima facia proof on a cause of action should not operate to later prevent the plaintiff from using that proof. Focusing on the plain language of the statute, the appellate court found the language of Section 13.01(k) to be clear and unambiguous, held that the trial court properly struck the first affidavit. The appellate court held that the trial court properly struck the expert's supplemental affidavit because standing alone it failed to meet the requirements of an expert report under Article 4590i.

Plaintiff argued that even if the affidavit was defective, the defect was a matter of form and she should have been given the opportunity to amend. The court noted that Defendant's objection to Plaintiff expert's affidavits were received the day before the summary judgment hearing, leaving Plaintiff without any opportunity to amend prior to the hearing. Furthermore, at the hearing, Plaintiff then requested permission from the court for leave or continuance to correct the defect. The appellate court held the trial court should have provided Plaintiff the opportunity to amend prior to the granting of summary judgment.

C. Dismissal with Prejudice must be Pled

1. Martinez v. Lakshmikanth17

In Martinez , the court held that ? 13.01(d) does not prohibit a plaintiff from taking a non-suit after the 180th day and that it was error for the trial judge in the second suit to grant the dismissal. In the case the court noted that the language places the burden on the doctors to move the trial court to dismiss the cause of action with prejudice and failure to make the appropriate motion in a timely manner waives the defendant's right to this remedy.

This is an appeal from the trial court's dismissal with prejudice of plaintiffs health care liability claim. After filing suit against several physicians, Plaintiffs failed to either file their expert report or non-suit within 180 days of filing suit in accordance with MLIIA. On the 223rd day after filing suit, the appellants non-suited their cause of action without prejudice and refiled their claim in Cameron County, Texas. The doctors moved the court to dismiss the second suit pursuant to section 13.01(e) of the Act for failure to either file their expert report or non-suit within 180 days of filing of the first suit, which the trial court granted. Plaintiffs appealed challenging the trial court's ability to dismiss the action under ? 13.01(e).

The doctors argued that section 13.01(e) of the Act, when read in conjunction with sections 13.01(d) and (n), that a plaintiff is only permitted to take a non-suit without prejudice within the first 180 days after suit has been filed, thereafter it would be a de facto automatic dismissal with prejudice. Reviewing this appeal under the rules of statutory construction and applying the plain and common meaning rule, the court noted that ? 13.01(d) expressly state that "the court shall, on the motion of the affected physician or health care provider, enter an order awarding as sanctions against the claimant ? the dismissal of the action of the claimant against that defendant with prejudice to the claim's refiling."

D. Challenges to the Adequacy of the Expert Report

1. Gonzalez v. El Paso Hospital Dist., 18

In Gonzalez v. El Paso , the Court upheld the trial court's decision to dismiss Plaintiff's claim with prejudice for failure to include statements pertaining to causation in an expert report pursuant to 4590i. The Court in upholding the dismissal stated that it was not necessary to include the words "cause" or "causation", but some word, phrase, or reference to causation is definitely required. In this case the court used an abuse of discretion standard to review a trial court's dismissal of a medical malpractice action under Article 4590i ? 13.01(e). This is in contrast to the more lenient standard used in Palacios which is discussed below.

In this case, the parents brought a medical malpractice suit over the death of their newborn daughter. The Plaintiffs timely filed the report of their expert, however, the report was silent on the issue of causation. Because the report completely failed to address the issue of causation, the appellate court could not say that the trial court acted unreasonably in determining that the report did not reflect a good faith effort to comply with the definition of an expert report.

The Gonzalezes further argued that dismissal was improper because the defendants waited more than a year beyond the 180 day deadline to seek dismissal based on the shortcomings of the report. The court, however, overruled that complaint because ? 13.01 makes no mention of a time limitation for challenging the sufficiency of an expert report.

2. Schorp v. Baptist Memorial Health System & Randall Bell, M.D. 19

In Schorp v. Baptist Memorial Health System and Randall Bell, M.D. , the court affirmed the dismissal of trial court holding that an anonymous report filed by the Plaintiff, that asserted the doctor's treatment fell below the standard of care did not qualify as a "expert report" within the meaning of MLIIA. Further, the Plaintiff did not meet the burden of showing that an accident or mistake occurred under the Act such that the plaintiff was entitled to a 30-day grace period.

In this case the Plaintiff brought a medical malpractice action against hospital and doctor in connection with an amputation of two fingers allegedly necessitated by improper insertion of a medical device in the left arm during a hospitalization for pneumonia. Both the hospital and doctor moved to dismiss for failure to timely file an expert report. The trial court granted the motions to dismiss, and the patient appealed.

Plaintiff seeking a 30-day grace period within which to comply with a requirement of filing an expert report maintains the burden of showing some excuse or accident or mistake to establish that she did not act intentionally or with conscious indifference in failing to file within the statutory period. It is then defendant's burden to controvert the plaintiff's evidence of mistake, or else an issue of mistake exists, and an extension must be granted.

The belief by patient's attorney that the doctor would grant an extension to file expert report if the improper anonymous report, which was filed within the statutory period prescribed by MLIIA, was not acceptable did not amount to "accident or mistake" under the Act such that the patient was entitled to a 30-day grace period in light of no written agreement for extension and letter from doctor's counsel. Although the MLIIA unambiguously requires that the trial court enter an order, pursuant to defendant's motion, requiring that a plaintiff who has not filed an expert report, to post a $7,500 bond within 21 days of such order or risk dismissal of the case, there is nothing in the Act that requires the defendant to enter and file such a motion.

The court held that only expert testimony could aid a jury in determining whether insertion of an arterial line in the patient's left arm and subsequent corrective action by medical personnel amounted to medical malpractice, and thus dismissal of the claim of res ipsa loquitur was warranted. By asserting that in order to contain litigation costs, the plaintiff chose not to file an expert report as required under MLIIA, the patient failed to show how the requirement prevented her from asserting a claim for medical malpractice, and thus, plaintiff did not satisfy the burden of showing that the requirement prevented her from pursuing her claim, as required to challenge the constitutionality of the requirement under due process or open courts provisions of the state constitution.

3. Palacios v. American Transitional Care Centers of Texas, Inc.,20

In Palacios v. American Transitional Care Centers of Texas, Inc. , the court held that even if the report were not a "fair summary," it represented "a good faith effort to comply with the definition of an expert report in [? 13.01(r)(6)]. The court held that summary judgment standard of review, and not abuse of discretion standard, will be the proper standard on appeal to determine the adequacy of an expert report.

In this case Plaintiff suffered a two-story fall at work. He sustained multiple fractures and a severe brain injury. After a year of rehabilitation, he was admitted to the hospital on March 23, 1993. The severity of his brain damage required that him to wear restraints while in his hospital bed. On May 14, 1994, Plaintiff fell from his bed to the floor. He was treated in the emergency room by Defendant physician and the fall from the bed resulted in additional brain injury and surgery. Initially, the Plaintiff sued Defendant physicians and the hospital claiming negligence, failure to instruct and train employees, failure to use restraints and failure to properly monitor employees.

The expert report that criticized the patient's care and subsequent treatment after he fell from his bed, was adequately directed to the hospital in compliance with MLIIA. In addition, the court held the expert report, noting that it was unclear how patient could have untied four restraints in under 10 minutes and that precautions were not taken to prevent patient's fall, was not too conclusory to give a fair summary of how the hospital breached its standard of care. The court concluded that even assuming the expert report was not a fair summary of the hospital's breach of the standard of care and causation, it nevertheless represented a good faith effort to provide a fair summary.

Interestingly, however, in Jackson v. Reardon , where the issue was whether the Plaintiff should be excused from filing his expert report late, the Houston First Court of Appeals applied the abuse of discretion standard. In so doing, the court distinguished Palacios in which the sole issue was whether a timely filed expert report complies with Article 4590i ? ? 13.01(l) and (r)(6).

4. Hart v. Wright21

In Hart v. Wright , the court of appeals found that the Plaintiff's expert report did not address the standard of care, deviation from that standard, or a deviation from the standard caused damages. Rather, the report merely concluded that the Plaintiff demonstrated signs and symptoms of a heart attack and was a mere conclusory report that was not a good faith effort required by the statute.

The Plaintiff in his backyard and began sweating, became flushed, and experienced pain in his arms, neck and chest. He was treated in the emergency room of Defendant Hospital, where he vomited and described feeling like "something was sitting on his chest." Plaintiff's neck and chest were x-rayed, and a cat scan was ordered. Plaintiff was given a shot and released later that day, but the following morning, he was admitted to another hospital. An examination and tests indicated that he had suffered a heart attack. Cardiac catheterization revealed a complete occlusion of the left anterior descending coronary artery. Subsequently, the Plaintiffs filed suit against Defendant hospital and the treating doctors at Defendant hospital.

The Plaintiffs offered the following written report of their expert, Dr. Maewal in affidavit form to comply with their obligation under the Act:

My name is Hrishi K. Maewal. I am over the age of majority. I have never been convicted of a felony or a crime of moral turpitude, and I am in all things qualified to make this affidavit. I am a physician licensed to practice medicine in the State of Texas.

I am currently practicing medicine and was practicing medicine on January 22, 1996.
I am board certified in Internal Medicine, Pulmonary Disease, Cardiology, and Critical Care Medicine.
I examined Bobby Hart at Harris Methodists Fort Worth Hospital on January 23, 1996.
Based on the history obtained from the patient and his family members along with the supporting evidence of laboratory evaluation which showed an elevated creatine kinase of 1854 U/L, CK-MB 219.7 ng/ml and % relative index 11.9 at 10:41 a.m. along with an EKG which shows an inferior infarction with Q-waves, in my expert opinion, Mr. Hart was experiencing an acute myocardial infarction at approximately 5:00 p.m. on January 22, 1996 while a patient in the emergency room at Huguley Memorial Hospital.
Based on the above analysis, Dr. Wright, the treating physician at Huguley Memorial Hospital, and Huguley Memorial Hospital departed from the acceptable standard of care for the diagnosis, medical care, and treatment of a patient with an acute myocardial infarction.

The Plaintiffs argued that even though expert's report did not include all of the information required by section 13.01(r)(6), it nonetheless satisfied the definition of an expert report. For Plaintiffs' expert to qualify as an expert, the report had to show that he had knowledge of the accepted standards of care for the diagnosis, care and treatment of the injury involved, how the applicable standard was breached, and how the alleged breach contributed to Plaintiff's injuries or damages. While a party need not marshal all of its proof, a good faith effort in preparing an expert report must, at a minimum, attempt to incorporate the three requirements found in section 13.01(r)(6). Here, the court found that the Plaintiffs report did not meet the requirements for an expert report, nor was it a good faith effort.

5. Roberts v. Irigoyen22

In Roberts v. Irigoyen , the court of appeals held the trial court correctly found that the plaintiff's interrogatory answers failed to include the substantive requirements for an expert report as defined by ? 13.01(r)(6). Specifically, the court found that the interrogatory answers failed to identify the applicable standards of care and to establish a causal relationship between the failure to meet the standard of care and the injury claimed.

E. Scheduling Mistakes

1. Tibbetts v. Gagliardi 23

In Tibbetts, the court held that because the record revealed that a stay order had been in effect, Plaintiff's failure to file adequate expert reports did not result from intentional conduct nor conscious indifference. Thus, the court reversed and remanded the trial court's dismissal.

In this case Plaintiff executed several Rule 11 agreements extending the deadline for filing an expert report. These agreements did not affect any filing deadlines relative to the claims against two Defendants asserting the motion to dismiss because their professional liability carrier had been placed in receivership until February 1998. The notice of stay provided that all proceedings in which an impaired insurer is a party or is obligated to defend shall be stayed for six months and any additional time thereafter as may be determined by the court from the date.

In April 1998, these Defendants filed respective motions to dismiss Plaintiff's action because of her failure to file expert reports in compliance with the MLIIA. Plaintiff responded by asserting that she filed two expert reports relative to her claims against Defendants; she contended that the two reports complied with the MLIIA.

In the alternative, Plaintiff responded that if the expert reports were inadequate, it was not due to conscious indifference. With regard to the motions to dismiss, Plaintiff contended that the deadline to file expert reports to support her claims against these two doctors should not lapse because of the stay order and the respective Rule 11 agreements. Finally, relying on Section 13.01(g) of the MLIIA, Plaintiff moved the trial court for additional time to file expert reports to support her claims against Defendants. The trial court denied appellant's request and granted Defendants' respective motions and dismissed Plaintiff's claims with prejudice. The trial court also awarded reasonable attorney's fees to all defendants.

The two expert reports filed by appellant consisted of two letters authored by her counsel, printed on law firm letterhead that were addressed to a New York doctor. The two letters were identical and described the laws of Texas as requiring an expert report to support a medical malpractice claim. The New York doctor was asked to respond to two questions concerning whether Defendants, respectively, were negligent in each care and treatment of Plaintiff. Following each question there was a blank line for the New York doctor to indicate either yes or no. The New York doctor or someone marked "yes" on each letter for each defendant doctor. The same format was followed concerning a question about proximate cause. Both letters concluded by stating that due to the rather short time in which to file this letter report with the court, counsel would appreciate your checking the above blanks and faxing it back to the office. The letters were signed by Plaintiff's counsel only. The appellate court found that other than being addressed to the New York doctor only, these purported expert reports provide no proof that the New York doctor is the person who in actuality responded to the questions.

The court further held that the two letters completely failed to satisfy the definition of an expert report. The court notes that the reports failed to provide: (1) a fair summary of opinions concerning applicable medical standard of care; (2) a fair summary of opinions describing the manner in which the care rendered failed to meet any applicable standards; and (3) a fair summary of the expert's opinions concerning the causal relationships between the failure and the injury harm or damages claimed, as required by the MLIIA, ? 13.01(r)(6).

Plaintiff maintained that she made a good faith effort to comply with ? 13.1 of Article 4590i when she filed the two letters. To support this contention, she relied upon her counsel's affidavit. Her counsel maintained that at the time she filed the expert reports, that it was an oversight on her part not to notice the definition of expert report and concluded that she was not "consciously indifferent" with regard to these reports. The appellate court found no abuse of discretion and held that the trial court did not act unreasonably or arbitrarily in finding Plaintiff's counsel failed to make a good faith effort to comply with the definition of expert report. Turning its attention to the automatic stay due to the liability carrier being placed in receivership, the court noted that the trial court's docket sheets contained information stating that the stay was lifted on February 18, 1998. Because the Insurance Code stays all judicial proceedings during the pendency of a stay order, the court held that Plaintiff was not required to file expert reports during such period of abeyance.

The appellate court dismissed the award of attorney's fees for each of the doctors because no dollar amount was specified in the orders awarding reasonable attorney's fees and costs of court, and there is no testimony, no affidavits, no billing records, nor any other evidence in the records to support an award of attorney's fees.

2. Pfeiffer v. Jacob23

In Pfeiffer v. Jacob , the Court held that the excuse that Plaintiff's doctor needed more time to examine her, did not constitute mistake or accident in filing an expert report late. Thus, upholding the Trial Court's dismissal of Plaintiff's claim.

3. Finley v. Steenkamp 24

In Finley v. Steenkamp , the Court held that Plaintiff's belief that the deadline for filing expert report required by Medical Liability and Insurance Improvement Act was replaced by discovery deadline in trial court's scheduling order did not warrant giving patient extension of time to file report on grounds of accident or mistake. The record indicated that scheduling order was issued after the report was due and set a deadline for designation of experts that were to be presented at trial.

4. Tesch v. Straud25

In Tesch v. Straud , the Court held that "the patient was not entitled to 30 day extension for good cause to file expert report required by Medical Liability and Insurance Improvement Act, and (2) patient's belief that deadline for filing expert report was extended by proposed scheduling order did not warrant giving patient extension of time to file report on grounds of accident or mistake." In this case the Plaintiff's attorney negotiated a Rule 11 Scheduling Order with opposing counsel that included dates to designate experts. Plaintiff's attorney was under the impression that this agreement included an extension for the expert report requirement, though the written Rule 11 agreement that had not been signed nor the Defendant's attorney's recollection of the agreement supported this contention.

VII. SUMMARY JUDGMENT

A. Gomez v. Tri-City Community Hospital, Ltd26

In Gomez, the patient Geronimo Carrasco, on April 20, 1995, was taken to the emergency department of Tri-City Community Hospital ("hospital") by ambulance complaining of back pain. He was admitted for observation and released on April 21, 1995. At the time of his release he was still complaining of back pain. On April 22, 1995, the patient returned to the hospital complaining of continuing back pain and the inability to stand. A chest x-ray was taken on April 22nd which revealed a significantly widened mediastinum and an increase in the size of the cardiac silhouette. On April 24, 1995, a radiologist reviewed the x-ray and dictated his report. In his report, the radiologist stated "in the setting of back pain, consideration should be given for aortic dissection." The report also states "ward notified 4/24/95." Sometime during April 24, 1995, the patient's condition deteriorated and he was transferred to Methodist Hospital in San Antonio. A CT scan showed a dissecting thoracic aortic aneurysm and the patient subsequently underwent emergency surgery. This was confirmed in surgery and the surgeons were able to operate successfully and the patient was fairly stable following the surgery. The following day, the patient suffered another catastrophic event, emergency surgery was performed, and despite resuscitative efforts, the patient died. Appellants sued the hospital and the emergency room physician. The emergency room physician settled with appellants. The hospital subsequently filed a motion for summary judgment.

Plaintiff alleged that the hospital administered care that fell below the proper standard of care by failing to properly record the patient's complaints and failing to timely report the results from the x-ray taken April 22, 1995. In response to the hospital's no evidence summary judgment, appellant's filed two affidavits of Comer Roger Youmans, Jr., M.D., together with the medical records from the hospital. Dr. Youmans' affidavit alleged that the patient's chance for success would have been significantly better if the aneurysm had been operated on under an elective basis, as opposed to a post rupture emergency basis. He further testified that although the x-ray report was not dictated until April 24, 1995, there was no attempt by the hospital personnel to convey what should have been emergency information to the attending physicians on the day of admission. Furthermore, after noting the hospital's failure to convey the emergency type information on the day of admission, Dr. Youmans stated that the correct diagnosis apparently was not suspected until April 24. This statement, the court of appeals held links the hospital's failure to convey the x-ray information with the misdiagnosis. Therefore, at the very least, the evidence rises to a level that would lead reasonable and fair minded people to conclude that the absence of the x-ray report caused the improper diagnosis. Dr. Youmans' affidavit, the court held, "provides more than the scintilla of evidence that the hospital's failure to ensure that the x-ray was read and relayed to the attending physician on the day of admission was the proximate cause of the appellants' injuries." Reversed and Remanded.

B. McCombs v. Children's Med. Cen. Of Dallas27

This is an appeal from a no-evidence summary judgment granted in favor of Children's Medical Hospital (Children's). In McCombs , appellants' daughter was seen at Children's Emergency Center with fever, vomiting, and coughing. Blood cultures were obtained, prior to giving antibiotics, to determine if there was an infection present. The child was sent home and followed by a home health nurse. Subsequent to this Children's visit the report of the blood cultures were received by the EC staff and reported to the child's pediatrician. A nurse, the transplant coordinator from Children's, contacted the family to have another set of blood cultures drawn. The report from the second set of blood cultures was reported to a Children's EC nurse who reported the results to either the EC attending or resident on call. No one called the child's pediatrician on the second set of blood cultures. The laboratory called the EC several weeks later further reporting on the second blood culture a "rapidly growing mycobacterium." The pediatrician was made aware of this report and the child was admitted to the hospital and died two days after admission. Children's moved for summary judgment contending that the appellants failed to produce evidence that the care provided to their daughter failed to meet the applicable standard of care.

The appellants argued that Children's was required to report the laboratory results to the pediatrician. To support this contention the appellants rely on the hospital's expert to establish the standard of care applicable to the hospital. Although the expert opined that a physician should be notified of the test, the expert never identified who was responsible for reporting the results to the pediatrician. The court held that since an actor or actors were never identified as breaching the standard of care, it is impossible to determine the appropriate standard of care to be applied. Judgment of the trial court was affirmed.

C. Steinkamp v. Caremark28

In Steinkamp , the appellants appeal from a no-evidence summary judgment granted to appellee and the trial court's order striking some of the appellants' evidence. The appellate court reviewed the standard of review of a no-evidence summary judgment noting that it has been held to be the same as that for a directed verdict. If the respondent in a no-evidence summary judgment raises more than a scintilla of probative evidence to raise a genuine issue of material fact, then summary judgment cannot be granted.

In the first issue on appeal, the appellant asserts that the trial court erred in striking the summary judgment evidence that came from a portion of the case that had been severed. The standard of admission or exclusion of summary judgment evidence is reviewed under an abuse of discretion standard. The El Paso court noted that Rule 166a(i) does not require a party to needlessly duplicate evidence already found in the court's file, however a party must insure that the evidence is properly before the trial court. This can be achieved by requesting that the trial court take judicial notice of the evidence that is already in the record or by incorporating the document or evidence into the party's motion. The court held that magic language is not necessary. In the instant suit, appellant stated in the opening paragraph of her response to summary judgment that she was relying on the severed party's summary judgment. Additionally, certain express portions of the severed party's summary judgment were incorporated into the body of appellant's response to summary judgment. Therefore, the appellate court concluded that the evidence was properly before the court and the trial court abused its discretion in excluding the evidence.

The court also examined the trial court's striking of appellant's expert witness. The court noted that the general rule in medical malpractice claims to establish negligence is through expert testimony. The court also noted the exception to this general rule that where medical negligence can be demonstrated by facts that can be evaluated by common knowledge, expert testimony is unnecessary. In the case at bar, the nurse left a broken intravenous catheter in the patient's body. The court held that these facts presented a case that clearly fit within the common knowledge exception to the requirement for expert testimony the court abused its discretion in striking the expert's testimony on the basis that he was not qualified.

Defendants also moved for summary judgment on the plaintiff's thoracic outlet syndrome stating that plaintiff could not prove causation. The trial court granted summary judgment and plaintiff appealed. Causation, the court noted must be shown within a reasonable degree of probability. Plaintiff introduced no evidence of probative value demonstrating causation, therefore this issue was overruled.

D. Aguirre v. South Texas Blood & Tissue Center29

In Aguirre v. South Texas Blood & Tissue Center, a patient and her family sued a hospital claiming the hospital negligently caused the patient to contract HIV following a blood transfusion. In 1983 following the delivery of her second child, plaintiff received two units of washed platelets. The units, supplied by South Texas Blood & Tissue Center, consisted of pooled platelets from six individual donors for a maximum of twelve different donors. In 1993, plaintiff began experiencing health problems and was eventually diagnosed as HIV positive on January 4, 1994. Suit was brought against South Texas claiming that it was negligent because it failed to exercise the degree of care that is ordinarily exercised by blood banks in its drawing, preparation, handling, screening and testing of blood products and that such negligence proximately caused plaintiff to become HIV positive. The blood center filed its no evidence summary judgment, which was granted by the trial court. Initially, plaintiff appealed and this court reversed and remanded the summary judgment. South Texas filed a motion for rehearing which was granted. Although the court agreed that plaintiff presented voluminous evidence and the evidence presented created a genuine issue of material fact on two elements - duty and breach, the court could not find that the record before it contained evidence that a breach by South Texas, if any, proximately caused plaintiff to contract AIDS. The court cited Rule 166a(i) that allows the litigant to move for summary judgment as to all or part of a lawsuit on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Plaintiff asked the appellate court to apply a rebuttable presumption that the donor records South Texas destroyed were prejudicial to South Texas, which would enable plaintiff to survive a no evidence summary judgment. Plaintiff contended that South Texas had a duty not to destroy its donor records, and that such breach of its duty raises a jury question on the issue of negligence. On February 13, 1989, South Texas destroyed all of its donor records from 1983 in the regular course of business, in accordance with the then current standard operating procedures of the American Association of Blood Banks, an industry wide organization, which provided for the destruction of donor records after 5 years. The court reviewed Trevino v. Ortega, 969 S.W.2d 950, 951 (Tex. 1998) where the Texas Supreme Court expressly rejected spoliation of evidence as an independent tort. Intentional destruction or spoliation of evidence relevant to a case may, in a trial court's discretion, give rise to a presumption that the destroyed evidence would not have been favorable to its destroyer. See Ordornez v. M.W. McCurdy & Co., Inc., 984 S.W.2d 264, 273 (Tex. App. - Houston [1st Dist.], no pet.). The presumption may be rebutted by showing that the evidence in question was not destroyed with fraudulent intent or purpose. Plaintiff raised the issue of entitlement to a presumption in her response to summary judgment, but the trial court granted a summary judgment. Because the trial court has the discretion to grant a spoliation presumption, the appellate court must first review the trial court's implied rejection of plaintiff's request for presumption for an abuse of discretion. After finding no abuse of discretion, the appellate court proceeded under the no evidence standard to determine whether, without the presumption, more than a scintilla of evidence existed precluding summary judgment.

Plaintiff presented two pieces of evidence to support her position that she is entitled to favorable presumption. The first was an affidavit of an attorney retained in October of 1988 by another family of an individual who died of AIDS complications following a blood transfusion he received in 1984. The affidavit alleged that more likely than not, he had sent a records request to South Texas in the Fall of 1988 requesting records pertaining to all the blood this individual received. The attorney had subsequently destroyed his litigation file pertaining to this matter and could not prove that he in fact had sent this letter. The next piece of evidence introduced was the deposition of Dr. Norman Kalman, Director of South Texas. He testified that there was a general discussion regarding transfusion related AIDS cases in the blood bank community in 1983, but that South Texas was unaware of any potential litigation directed against itself. The evidence shows that South Texas had no actual notice that it would be called to defend a lawsuit arising out of the 1983 transfusions and had no reasonable expectation at the time that it would be called to defend against them. Since the records were destroyed in the regular course of business, without negligence on its part, the appellate court found that the trial court did not err in finding that plaintiff would not be entitled to an instruction that a jury should presume that the destroyed records would have been a benefit to her. Turning to the issue of whether, without the presumption, plaintiff put forth more than a scintilla of evidence to survive the no evidence summary judgment motion, the court found that she did not. The record before the court contained no evidence of proximate cause. The summary judgment was affirmed.

E. Zapata v. The Children's Clinic30

In Zapata, the parents of deceased infant patient brought suit against The Children's Clinic and several physicians ("the Clinic") alleging negligence and wrongful death in the treatment of their 5 month old son. The trial court granted a no evidence summary judgment filed by the Clinic which asserted the physicians did not breach the applicable standard of care.

On June 20, 1994, the child was admitted to Driskell Children's Hospital and at the time of the admission the parents informed the hospital personnel that the child was being treated for gastroesophageal reflux with Reglan. It is undisputed that he child did not receive Reglan while he was hospitalized. Four days after admission, the child's father fed him, burped him, and laid him down to sleep. He left the room for a few moments and upon return noticed the child was asleep and lying on his back. Later the father heard the child making a gasping noise, noticed he was blue and not breathing. Attempts to resuscitate the child were unsuccessful. The appellate court reviewed the elements of a medical malpractice cause of action, as well as the standard of review for a no-evidence summary judgment. The plaintiffs produced expert testimony that the Clinic breached the standard of care by failing to administer the medication. The expert however acknowledged that the decision to medicate is discretionary with the physician prescribing the medication and would different to the physician if the physician chose to discontinue the treatment. The expert concluded this would not be a breach of the standard of care. In addition to the expert testimony, plaintiffs presented evidence that the hospital records contained no indicate that the child was taken off the Reglan and the parent also testified that he Clinic did not inform her of any decision to take the child off the medication. In support of its motion for summary judgment, the Clinic included deposition testimony from the prescribing physicians who asserted that they consciously decided to discontinue the Reglan medication at the time of the hospital admission. The court held that because this is contrary evidence, it must be disregarded in evaluating the trial court's decision on the Clinic's motion for summary judgment. Taking the expert's testimony, the conspicuous absence of any notation in the hospital records showing that the prescribing physicians decided to take the child off the Reglan and the parents own testimony that she was not informed that her son would be taken off the medication, the court held that more than a scintilla of probative evidence existed thereby raising a genuine issue of material fact. Reversed and remanded.

VIII. TEXAS TORT CLAIMS ACT

A. McCall v. Dallas County Hospital District31

In McCall, Eugene McCall, while a patient at Parkland Hospital in Dallas suffered cardiac arrest with subsequent death. McCall's wife and three children brought wrongful death and survival actions against Parkland. Parkland is a governmental entity normally entitled to sovereign immunity and therefore any claim against Parkland must fall within the Texas Tort Claims Act. The McCalls claimed that Parkland was negligent and waived its immunity under the Texas Tort Claims Act through 1) the misuse of tangible personal property; and 2) the failure of the hospital to use additional tangible property. The McCalls argued that the hospital staff misused the EKG and x-ray equipment because they improperly interpreted the graphs produced by the equipment. While such use would constitute a waiver under the Texas Tort Claims Act, the court noted in both instances there was no evidence to show that the property was misused. The McCalls also complained that Parkland failed to use a monitor, oxygen equipment, a monitored bed and other tangible property to treat Mr. McCall. "The Supreme Court has never held that mere nonuse of property can support a claim under the Texas Tort Claims Act." Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994). Therefore, judgment of the trial court was affirmed.

B. Ager v. Wichita General Hospital32

This is an appeal from a take nothing summary judgment granted in favor of Wichita General Hospital, which is a governmental entity entitled to sovereign immunity. In Ager, because Wichita General Hospital is entitled to sovereign immunity, the court concluded that it must determine whether plaintiff sufficiently pleaded and proved by competent summary judgment evidence that her injuries were proximately caused by the condition or use of tangible personal property. Plaintiff argued that she sufficiently plead and proved that the nurses at the hospital negligently used thermometers and stethoscopes, thereby bringing her claim within the waiver of provision of the Texas Tort Claims Act. Civ. Prac. & Rem. Code ?101.021(2). Although plaintiff alleged the misuse of property, she made no specific allegations that any tangible item or its use was a contributing factor of her injury and therefore the court held appellant's petition did not sufficiently plead her cause within the waiver of provision. The court next analyzed whether appellant's response to the motion for summary judgment and attached proof presented a fact question on the use or misuse of tangible personal property. The evidence offered by appellant was an affidavit submitted by an expert containing mere speculation whether the nurses may have used those enumerated items and therefore the court concluded it did not create a fact issue on the element of use or misuse of tangible property. The trial court judgment was affirmed.

C. Maldonado v. Frio Hosp. Assoc. 33

In Maldonado v. Frio Hospital , the Parents of a child who allegedly suffered severe brain damage as result of nurses' negligence (failure to properly use the fetal heart monitor) brought personal injury action against non-profit hospital association that managed hospital. The Court held non-profit organization was not employer of nurses and thus liability from the actions of hospital's employees pursuant to statute and the management contract remains exclusively with the hospital district. As such, liability is limited to V.T.C.A., Civil Practice & Remedies Code ? 101.021(2) that states governmental units are liable for personal injury and death caused by a condition or use of tangible personal or real property.

IX. Nature of Cause of Action

1. Williams v. Walker34

In Williams v. Walker , the appellate court rejected Plaintiff argument that her claim was an assault and battery, and held that claims governed by Article 4590i may not be "recast" as different actions to avoid the standards set forth in the Act.

Though not often contested, the threshold issue in ? 13.01 litigation is whether the plaintiff's claim is one for medical malpractice. The issue before the appellate court was whether the plaintiff's claim, plead as assault and battery, was governed by common law or by the Act. Plaintiff sought treatment from Defendant for an abscess and claims she clearly stated she did not want to be cut. Then, without her consent, Defendant surgically drained the abscess. Plaintiff alleged she sustained profuse bleeding and that the abscess was incompletely removed. She filed suit alleging assault and battery and did not comply with the 180-day rule in ? 13.01(d). The trial court dismissed the suit with prejudice, and Plaintiff appealed claiming the trial court erred because her common law cause of action for assault and battery was not governed by the Act.

2. Rogers v. Crossroads Nursing Service35

In Rogers v. Crossroads Nursing Service , the court held that the Plaintiff's claim was one for common law negligence and that the Act did not apply. In this case, Defendant provided home health care to Plaintiff while he recuperated from back surgery. Plaintiff alleged that Defendant's employee negligently placed a heavy supply bag on a table close to him that fell and re-injured his back. He sued Defendant for the employee's conduct under the theory of common law negligence. The trial court dismissed Plaintiff's suit because he failed to provide an expert report to Defendant in accordance with the ? 13.01. Plaintiff appealed, contending the action was for common law negligence and not governed by the Act. The Court of Appeals agreed because the question of how to place a heavy supply bag in a patient's home so as not to injure the patient is not governed by an accepted standard of safety within the health care industry, but rather is governed by the standard of ordinary care. Accordingly, the court found that Plaintiff's cause of action for negligence was not a health care liability claim, but rather, one for common law negligence.

X. Miscellaneous

A. Health Care Providers under MLIIA

1. Henry v. Premier36

In Henry v. Premier , the Plaintiffs sent notice to a physical therapist prior to the two year statute of limitation of their intent to assert a health care liability claim for negligent treatment. After the notice was sent, but prior to expiration of seventy-five days after the statute of limitations, the Plaintiffs sent notices to the hospital and physicians involved in alleged negligent treatment. Defendants claimed that the physical therapist was not a medical provider under 4590i, no 75 day tolling period occurred, and the claims against the hospital and physicians were time barred. The Court held that "physical therapists are not included in the specific itemized definitions of 'health care provider' under the MLIIA", but "summary judgment was not proper because [Plaintiffs] affirmatively pled that Premier and its employee were agents of the hospital and thus, fall under the section 1.03(a)(3) definition of health care providers." "If so, the tolling provision of the MLIIA could be applicable to Premier through the hospital under section 1.03(a)(3) because the term "health care provider" also includes any officer, employer, or agent thereof acting within the course and scope of employment."

2. Neasbitt v. Warren37

In Neasbitt v. Warren , the Court held "that veterinarians are not "physicians" within the plain meaning of Texas Medical Liability and Insurance Improvement Act, and thus, the Act did not apply to vets. In the case owners of horse sued veterinarian for negligent treatment of their horse, which caused a severe rectal tear, surgery, and the horse ultimately having to be put to sleep. Veterinarian moved for cost bond pursuant to Texas Medical Liability and Insurance Improvement Act, which requires posting of bonds when filing health care liability claims without an expert report. The Court reversed and remanded the claim.

B. DUTY TO PUBLIC/THIRD PERSONS

1. Thapar v. Zezulka

38 In Thapar v. Zezulka , Henry Zezulka was murdered by his stepson, Mr. Lilly, who was a patient of the defendant psychiatrist, Dr. Renu Thapar. Dr. Thapar treated the stepson for post-traumatic stress disorder, paranoia and delusions. He was hospitalized under Dr. Thapar's care multiple times, and she also treated him with antipsychotic medication and psychotherapy on an outpatient basis. During his final inpatient stay, the stepson told Dr. Thapar that he wanted to kill Mr. Zezulka. Dr. Thapar did not notify the Zezulka's family that Mr. Lilly had been discharged. A month after Dr. Thapar released him from the hospital, he carried out his threat. The stepfather's widow, Lyndall Zezulka, who was the patient's mother, sued Dr. Thapar. She alleged that Dr. Thapar was negligent in failing to warn Mr. Zezulka or the police of his stepson's threats, and in improperly diagnosing and treating the stepson and releasing him prematurely from the hospital. The trial court rendered summary judgment for Dr. Thapar. The court of appeals reversed and remanded. The court of appeals rejected Dr. Thapar's argument that Zezulka had consented to the summary judgment and therefore, could not appeal it. The court of appeals, citing Torasoff v. Regents of University of California, 551 P.2d 334 (Cal.1976), held that because Dr. Thapar allegedly knew of a specific threat to a specific identifiable person, she could owe a duty to that person despite the absence of the traditional physician-patient relationship. The supreme court granted petition for review, and held that the wife could not recover from the psychiatrist for negligent diagnosis or treatment, absent any doctor-patient relationship between the wife and the psychiatrist giving rise to a duty to the wife. The supreme court held that the psychiatrist, to whom the patient admitted he felt like killing the victim, had no common law duty to warn the victim or victim's family, and the psychiatrist was prohibited by confidentiality statute from disclosing to the victim that the son admitted during a therapy session that he felt like killing the victim, thus the psychiatrist had no statutory duty to warn the victim's family of the patient's threat. C. HOSPITAL LIABILITY

1. St. Joseph Hospital v. Wolff

39 In St. Joseph Hospital v. Wolff , a minor patient and her parents brought a medical malpractice action against a hospital, surgical resident, a foundation that employed the resident and other parties. Following settlement with all parties except the hospital, the trial court entered judgment on a jury verdict for the patient and her parents, from which the hospital appealed. St. Joseph, a private hospital located in Houston, operated a general surgery residency program. To provide its surgical residents with extensive experience in general surgery, St. Joseph established an Integrated General Surgery Residency Program with the Central Texas Medical Foundation, a nonprofit organization that renders medical treatment to patients at Brackenridge Hospital located in Austin, Texas. Through this program, St. Joseph assigns surgical residents in its program to train in the Integrated Program with the Foundation at Brackenridge. In May of 1994, Stacy Wolff was in a serious car accident while a passenger in a car operated by a friend. After initial emergency treatment at the scene, the unconscious Stacy was taken to Brackenridge by helicopter where she was admitted to the hospital's intensive care unit, and placed on a ventilator because she could not breath without assistance. Subsequently, Stacy was assigned to Dr. Villafani, a third year surgical resident from St. Joseph on assignment to Brackenridge through the Integrated Program.

Several days later, due to Stacy's continued dependence on a ventilator, Dr. Villafani performed a tracheostomy. Subsequently, she suffered a fistula and began to bleed profusely, and went into cardiac arrest, resulting in permanent brain damage.

The Wolffs brought suit against Drs. Villafina, Dr. Harshaw, Brackenridge Hospital, St. Joseph Hospital, and the Foundation alleging that the defendants were vicariously liable for Dr. Villafani's negligence and alleging that St. Joseph and the Foundation were engaged in a joint venture or joint enterprise and were thus jointly liable for any negligent acts or omissions of Dr. Villafani. At time of trial, all defendants had settled except St. Joseph. The court of appeals held that the finding that the hospital was engaged in joint enterprise with the Foundation that employed the negligent surgical resident was supported by the evidence, and the district court was not required to give an instruction to apportion responsibility for malpractice among five of seven settling parties, and that the district court properly refused to cap any damage award.

The court found that the hospital and the Foundation that employed the surgical resident shared a common business or pecuniary interest in integrated general surgical residency program and was supported by the evidence. The jury found that the hospital and Foundation were engaged in a joint enterprise, and thus, that the hospital was liable for the surgical resident's negligence. The hospital and Foundation had an interest in creating a graduate surgical residency program in order to gain an accredited program, and each benefited from an integrated program in that they were given the opportunity to recruit qualified physicians and bolster their residency program. The enterprise resulted in the hospital receiving higher Medicare payments and the hospital and Foundation were able to share some of the financial benefits and costs related to the integrated program. The court held that the participants in a joint enterprise must also have equal right to direct and control the enterprise. St. Joseph argued that it owed no duty to Stacy because she was never a patient at St. Joseph, and thus there was no hospital-patient relationship between Stacy and St. Joseph. The court held that St. Joseph and the Foundation were engaged in a joint enterprise whereby each participant was responsible for the negligent acts of the other. Thus, St. Joseph need not be held directly negligent.

D. NME Hospitals, Inc. v. Margaret A. Rennels, M.D.40

In NME Hospitals, Inc. v. Margaret A. Rennels, M.D., the Supreme Court held that in order to maintain an action under the Texas Commission on Human Rights Act when no direct employment relationship exists between plaintiff and the defendant, the plaintiff must show: 1) that the defendant is an employer within the statutory definition of the Texas Commission on Human Rights Act; 2) that some sort of employment relationship existed between the plaintiff and a third party; and 3) that the defendant controlled access to the plaintiff's employment opportunities and denied or interfered with that access based upon unlawful criteria.

In this case a pathologist who was employed by a laboratory filed suit against the hospital and her employer claiming retaliatory discharge and conspiracy to violate the Texas Commission on Human Rights Act. The trial court entered summary judgment in favor of the hospital, and the pathologist proceeded to trial against the lab. The plaintiff appealed the summary judgment, and the El Paso Court of Appeals reversed and remanded. On petition for review, the supreme court held that the pathologist had standing under the Texas Commission on Human Rights Act to sue the hospital that contracted with her direct employer for retaliatory discharge and for conspiracy to violate the Texas Commission on Human Rights Act, where the contract between the hospital and the employer gave hospital control over the employer's decision to transfer ownership interests, where the pathologist was denied ownership interest after the hospital's interference, and the hospital knew that the pathologist filed a sex discrimination claim against the employer based in part on denial of ownership interest.

The court held that to maintain standing under Title VII, in the absence of a direct employment relationship between the plaintiff and defendant, that the plaintiff must show that an employer within the definition of Title VII, using its position of power and control, adversely and wrongfully interfered with the plaintiff's employment relationship with a third party.

D. Physician-Patient Relationship

1. Reynosa v. Huff

41 In Reynosa v. Huff , the parents of a baby born with brain damage and neurological problems brought suit against the hospital and doctors, including Dr. Huff. The Appeals court held that Dr. Huff did not owe the parents of the child duty of adequate care based on his mere presence in the labor and delivery room without making affirmative steps toward advancing the physician-patient relationship.

2. Fenley42

In Fenley, Dan Fenley sought medical care from Dr. Jane S. Tod for headaches, neck pain and ringing in the ears. After performing diagnostic testing, Tod told Fenley he had an inoperable and terminal brain tumor. Fenley was also told he only had a few months to live, suggested pain management care, and referred Fenley to Hospice in the Pines (Hospice). As a condition of admission into Hospice, Tod was required to certify that Fenley had a terminal condition with a life expectancy of six months or less. The volunteer medical director of Hospice, Michael S. Devore, M.D., who neither examined Fenley nor reviewed the test results, also signed the certification form. Fenley was accepted into the Hospice program and two months suffered from a ruptured colon, underwent surgery, developed peritonitis, and subsequently died. After Fenley's death, it was discovered that Fenley never had a terminal brain tumor or any form of terminal condition. Suit was subsequently initiated against Tod, Hospice and Devore for negligence.

Hospice and Devore moved for summary judgment arguing that they did not breach a duty owed to Fenley. Hospice and Devore maintained that a physician/patient relationship did not exist between Devore and Fenley, that Hospice and Devore owed no duty to rediagnose or independently verify the diagnosis made by Tod, and that there was no evidence that Hospice or Devore failed to meet the standard of care in Fenley's treatment. Summary judgment was granted and the appellant's appealed on two points of error.

On appeal, the court first determined whether a physician-patient relationship existed. It is well-settled that "the question of duty is a question of law which must be decided before the issue of standard of care arises." St. John v. Pope, 901 S.W.2d 420, 424 (Tex. 1995) The court reviewed the Hospice manual that was attached to the motion for summary judgment. In particular, the manual stated that the Hospice medical director had overall responsibility for the medical component of Hospice patient care; the medical director certifies patients as being terminally ill with a prognosis of six months or less; the Hospice physician will also participate in establishing the plan of care provides or supervises Hospice care and periodically reviews and updates the plan of care for each individual receiving Hospice care. Citing the Texas Supreme Court's holding in St. John, "the fact that a physician does not deal directly with a patient does not necessarily preclude the existence of a physician/patient relationship" The court concluded that a physician/patient relationship existed between Devore and Fenley.

The court examined the standard of care imposed on Devore. Devore stated in his affidavit that the standard of care does not require the medical director to examine the patient or review the patient's medical chart for the purpose of certifying that a patient is terminally ill. Devore signed the certification based solely on the attending doctor's certification that Fenley had a terminal condition. The report conflicts with the Hospice physician statement on the form itself. The certification form specifically states that as the Hospice physician he certifies that the patient has a life expectancy of six months or less. Inasmuch as the statement says nothing about the Hospice physician certifying that the patient's attending physician has diagnosed the patient, the court concluded there was evidence that material fact issues exist regarding the applicable standard of care and Devore's breach of that care. Devore's affidavit was at odds with the appellant's expert testimony. The expert testified that if Dr. Devore did not personally attend Mr. Fenley, did not examine him, did not read his chart, and if he did not talk to Dr. Tod, then signing the certification statement would be fraudulent ? certainly beneath the standard of care for a physician.

In the third point of error, appellants argued that Hospice did not follow its own admission policy when it admitted Fenley into the program because a patient must be terminally ill with a prognosis of six months or less to live. Appellants contended and the court agreed that a fact issue existed as to whether Hospice breached the acceptable standard of care in admitting Fenley into its Hospice program. Under the doctrine of respondent superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her employer. It was not disputed that Devore was serving as a volunteer medical director, and as such, that he was acting as a Hospice agent in certifying Fenley for Hospice care. As a result, the court concluded that any fact issue raised as to Devore's breach of duty in his role as Hospice medical director was also raised as to Hospice.

E. DECPTIVE TRADE PRACTICES ACT

1. Nguyen v. Kim43

In Nguyen v. Kim , the Nguyens filed suit against the appellee Dr. Poong Young Kim alleging medical malpractice and violations of the Texas Deceptive Trade Practices Act Bus. & C. ? 17.41 et seq. (DTPA) based on medical procedures performed on Mrs. Nguyen. Plaintiffs failed to timely file the medical expert report as required by the Medical Liability and Insurance Improvement Act, TEX.REV.CIV. STAT. art. 4590i ? 13.01(d) (Vernon Supp. 1998) ("MLIIA") and the trial court refused their request for an extension dismissing their claims with prejudice. Three issues were raised on appeal.

Plaintiffs assert that the court erred in dismissing their DTPA claims since those claims were not "health care liability claims" as defined by the MLIIA. The MLIIA expressly bars DTPA claims based on negligence. In Sorokolit v. Rhodes, 889 S.W.2d 239 (Tex.1994) the Texas Supreme Court distinguished DTPA claims based on negligence from other DTPA claims not based on the physician's breach of the accepted standard of medical care. The Houston court concluded that to determine whether a DTPA claim is based on negligence, the court must not focus merely on the pleadings but must look to the underlying nature of the claim. Claims alleging negligence may not be recast as DTPA actions to avoid the standards set forth in the MLIIA. The essence of the plaintiffs claims is that Dr. Kim failed to perform the appropriate procedure necessary to treat Mrs. Nyugen and to prove this claim, the plaintiffs would be required to prove a breach of the applicable standard of care for health care providers. The remaining claims assert nothing more than the failure to obtain informed consent although they were cast as "taking advantage of the lack of knowledge, experience or capacity of Plaintiff to an unfair degree." "In addition, the Texas Supreme Court has expressly stated that an action for the failure of a doctor to fully inform a patient of the risks of surgery is a negligence cause of action." See McKinley v. Stripling, 763 S.W.2d 407, 409 (Tex.1989). The court concluded that the plaintiffs' claims were negligence claims prohibited by the MLIIA.

In addition, the plaintiffs appealed the dismissal of their medical negligence claims because Dr. Kim failed to file a "motion" as required by section 13.01(e) of the MLIIA that provides that "if the plaintiff fails to timely provide the expert report, the trial court shall, on the motion of the affected physician or health care provider enter an order dismissing the suit with prejudice." Dr. Kim did not make his request for dismissal in a formal motion, however, it was included in his response to the plaintiffs' request for leave to file the expert report late. The court reiterated the well-settled rule that in determining the nature of a pleading, the court examines the substance of the plea for relief and not merely the form or title given to it. The doctor's response clearly urges the trial court to deny any relief that would allow a late filed report and to seek a dismissal of the case based on the plaintiffs' failure to comply with the MLIIA. The court found Dr. Kim's pleading to be sufficient.

In their final issue on appeal, the plaintiffs contended that the trial court abused its discretion in denying them a 30 day grace period under section 13.01(g) of the MLIIA, which provides for a grace period if the court finds that the failure of the claimant or claimant's attorney in not filing the required expert report was not intentional or the result of conscious indifference but was the result of an accident or mistake. The court found that the MLIIA does not define conscious indifference and does not provide any definitions or guidance with regard to accident or mistake. This language, the court noted is the same language Texas courts apply in default judgment context under the well known case of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex.1939). It has been held that some excuse, but not necessarily a good excuse, is enough to warrant an extension of time to file the expert report as long as the act or omission was accidental. An example of accidental error is calendaring errors. Conscious indifference means failing to take some action, which would seem indicated to a person of reasonable sensibilities, under the same or similar circumstances. In the instant lawsuit, Dr. Kim's attorney sent a letter to plaintiffs' counsel reminding him of the approaching deadline to file a cost bond or expert report. The attorney filed an affidavit with the court stating that he obtained an expert report, but he did not file a copy with the court or deliver a copy to opposing counsel. Then four months after plaintiffs' counsel represented to the court that he had obtained an expert report, during the hearing on Dr. Kim's motion to dismiss, plaintiffs requested leave to file their report late. Plaintiffs' counsel filed an affidavit that he was unaware of the statutory requirement for filing expert reports. The trial court found this to be inconsistent with counsel's representation four months earlier. Based on the facts presented in the record, including the conflicting evidence, the appellate court held that the trial court did not abuse its discretion by refusing to grant plaintiffs' their requested relief.

F. Jury Instruction

1. Garcia v. Spohn Health System Corp. 45

In Spohn , plaintiff sued the hospital and several doctors for injuries sustained during emergency treatment. Jury was deadlocked as to a number of questions but unanimously agreed that the hospital was not negligent. The trial court entered a take nothing judgement against the hospital, severed the cause against the hospital from that against the doctors, and granted a mistrial against the doctors. The Appeals Court upheld the trial court's judgement holding that a party is entitled to answers given by a jury if unanswered questions are immaterial to recovery. There were no material questions as to the hospital's liability that remained unanswered.

XI. Conclusion

The Texas Supreme Court and Courts of Appeal have continued to refine and shape the law of medical malpractice. During 1999 and 2000, the Supreme Court took on the issues of caps on damages, the statute of limitations, and duty to third parties. In reviewing caps on damages the Court has determined that there is no cap on punitive damages, but there is a cap on interest. On the limitations issue, the Court determined that a wrongful death claim is not tolled due to minority, but a survival claim is. On the duty to third parties issue, the Court held that there is no duty for a psychiatrist to warn a potential victim about a dangerous threat from a patient.

In the Courts of Appeals, the most activity occurred regarding the need for and adequacy of expert reports. In reviewing how the courts have ruled on these issues, it is apparent that the courts tend to all agree that the law requiring expert reports is constitutional, however, there is quite a divergence on procedures to determine the adequacy of an expert report and when to grant an additional 30 days to file an expert report. Other hot issues include the statute of limitations, summary judgment evidence, and sovereign immunity under the Texas Tort Claims Act.

In the coming terms of the Texas Judiciary many additional changes are likely to continue to define and refine the law of medical malpractice in Texas.


 

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