Texas Supreme Court Expands Reach of Medical Malpractice “Expert Report” Requirements to Claim By Employee Against Employer.

by Jay Pate

The Texas Medical Liability Act (the “Act”) was enacted by the Texas legislature in 2003. Under the Act, one of the requirements to file a medical malpractice claim is that the claimant must provide a medical “expert report” supporting the case within 120 days of filing the lawsuit. The expert report requirement is a significant, additional hoop that medical malpractice claimants are required to jump through in order to pursue their claims.

The expert report requirement applies to what are called “health care liability claims.” The Act includes the following definition of “health care”:

“Health care” means any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement. TEX. CIV. PRAC. & REM.CODE § 74.001(a)(10) (emphasis supplied).

Consistent with this definition—which clearly requires a “patient”—courts since 2003 had (until now) applied the expert report requirements only in cases brought by patients (and similarly-situated claims such as those by the estates of patients or the spouses of patients) that were based on the medical treatment of the patient.

However, the Supreme Court has now held that the Act is not limited to claims regarding the treatment of patients. The Court has held that the expert report requirements can also apply to a claim by an employee against his employer who is a health care provider. As a practical matter, this means that the additional work, time and expense of providing such a expert report as well as the great risk of failing to do so (your case will be dismissed and you will be ordered to pay your employer’s attorneys fees) now apply to a whole new area.

In Texas West Oaks Hosp., LP v. Williams, No. 10–0603 (Tex. Sup. Ct. June 29, 2012), Williams, a psychiatric technician and professional caregiver at West Oaks Hospital, was injured on the job while supervising a patient. Williams claimed that his injuries were caused by his employer West Oaks Hospital failing to properly train, warn and supervise him to work with potentially violent psychiatric patients. The hospital argued the claims should be dismissed because the claims should be considered “health care liability claims” and Williams had failed to provide a required expert report. The Supreme Court agreed. Rather than focus on the definition of “health care” set forth above, the Supreme Court focused on the absence of the word “patient” in the Act’s definitions of the following terms:

‘Health care liability claim’ means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract. TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13).

‘Claimant’ means a person, including a decedent’s estate, seeking or who has sought recovery of damages in a health care liability claim. All persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant. TEX. CIV. PRAC. & REM.CODE § 74.001(a)(2)

Based largely on the Legislature’s use of the term “claimant” rather than “patient” in the health care liability claim definition, the Court determined that a claim can fall under the health care prong of the definition even absent a physician-patient relationship so long as a physician-patient relationship is “involved.” The Supreme Court agreed with the employer-hospital that the employee’s claims were encompassed by the Act. Thus, the employee should have timely provided an expert report supporting the claims that the employee’s injury was due to the employer failing to properly train, warn and supervise him to work with potentially violent psychiatric patients. The Supreme Court ordered the case to be dismissed and for the trial court to consider the employer’s request to recover its attorney fees from the employee.

The bottom line is that Texas plaintiffs need to be careful before deciding not to provide an expert report. The plaintiff and her attorney need to carefully consider whether the lawsuit might be within the scope of “health care liability claims” covered by the Act. If you have any questions about pursuing a medical malpractice or other claim that might be covered by the Act (including its expert report requirements), please contact us a for free case evaluation.

You can read the full opinion in Texas West Oaks Hosp., LP v. Williams, No. 10–0603 (Tex. Sup. Ct. June 29, 2012) here: