Concurring opinion issued September 18, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00309-CV
———————————
DR. MALLADI SUDHAKAR REDDY, Appellant
V.
DIANNA LYNN VEEDELL AND MAURY VEEDELL, Appellees
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Case No. 2013-23734
CONCURRING OPINION
I agree that the recent caselaw controls the outcome of this case in this court,
and I also agree with the disposition of this appeal on the merits. “Whether a claim
is a health care liability claim depends on the underlying nature of the claim being
made.”1 Considering the entire text of the Texas Medical Liability Act (TMLA), I
conclude that the statute does not require an expert report in the circumstance of a
lawsuit alleging a doctor’s negligence in hitting a bicyclist with his car, even if the
doctor was distracted by a telephone call from a hospital.
That said, I do not agree with the reasoning employed in our court’s recent
Williams v. Riverside decision,2 even though it leads to the correct outcome here.
The Texas Supreme Court has granted review in Ross v. St. Luke’s Episcopal
Hospital,3 which presents a substantially similar issue concerning the scope of the
“safety claim.”4 Because this case helpfully illuminates problematic facets of
applying the TMLA to safety claims against physician defendants, I offer the
following additional observations.
1
Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010); see also Diversicare
Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005) (“To
determine whether a cause of action is a health care liability claim . . . we
examine the underlying nature of the claim and are not bound by the form of
the pleading.”).
2
No. 01-13-00335-CV, 2014 WL 4259889 (Tex. App.—Houston [1st Dist.]
Aug. 28, 2014, no pet. h.) (mem. op.).
3
No. 14-12-00885-CV, 2013 WL 1136613 (Tex. App.—Houston [14th Dist.]
Mar. 19, 2013, pet. granted) (mem. op.).
4
But for the Supreme Court’s decision to review Ross, which gives cause for
some hope of authoritative guidance concerning safety claims under the
TMLA, I would recommend that this court grant a sua sponte en banc
reconsideration of Williams v. Riverside. See TEX. R. APP. P. 49.7.
2
The TMLA’s fundamental purpose5 of reducing the costs associated with
“health care liability claims” (HCLCs)6 and the statute’s expansive definition of
“health care”7 have resulted in the application of an appropriately broad scope to
these statutorily defined terms.8 The broad application of the TMLA to claims
arising from claimed departures from “accepted standards of medical care, or
health care” thus effectively subsumes any claim arising from alleged departures
from accepted standards of “safety,” to the extent such “safety claims” are directly
related to health care. This feature of the HCLC definition has been noted as one
5
See, e.g., Scoresby v. Santillan, 346 S.W.3d 546, 552 (Tex. 2011). The
statute seeks to further this goal by deterring “frivolous lawsuits by requiring
a claimant early in litigation to produce the opinion of suitable expert that
his claim has merit.” Id.
6
TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13) (“‘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.”).
7
Id. § 74.001(a)(10) (“‘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”).
8
See, e.g., Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012) (“The broad
language of the TMLA evidences legislative intent for the statute to have
expansive application.”); Diversicare, 185 S.W.3d at 847.
3
justification for concluding that the separate category of TMLA safety claims
cannot be limited to those “directly related to health care,” despite a strong textual
argument to that effect,9 because such an interpretation would run afoul of the
interpretive canon against surplusage.10 But the potential problem of surplusage
need not inexorably dictate the scope of the safety claim. “Sometimes drafters do
repeat themselves and do include words that add nothing of substance . . . .”11
9
See, e.g., Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724, 729–30 (Tex.
2013) (Boyd, J., concurring).
10
See Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 192 (Tex. 2012)
(citing TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10)). Notably, the West
Oaks opinion states that “‘medical care’ and ‘health care’ HCLCs require
that the claimant be a patient.” Id. at 178 (emphasis supplied). If that were
the case, then it would be easy to avoid the surplusage problem because the
other types of HCLCs can be brought by the full range of covered
“claimants,” which is broader than just patients. See TEX. CIV. PRAC. & REM.
CODE § 74.001(a)(2) (defining “claimant”); Tex. W. Oaks, 371 S.W.3d at
178–79 (discussing “claimant” definition). However, the quoted language
limiting certain types of HCLCs to patient-claimants appears to be an
inadvertently narrow articulation of what is described elsewhere in the
opinion as a requirement that there be some connection to “a patient-
physician relationship,” without any requirement that the claimant be the
patient. Tex. W. Oaks, 371 S.W.3d at 180. This understanding is evident
from both West Oaks itself and from the later Psychiatric Solutions case.
Neither of the claimants in those cases was a patient, yet the Court held that
each claim qualified as a “health care” HCLC because a patient-physician
relationship was involved. See id. at 181–83 (claimant assaulted by
psychiatric patient who was being treated by the claimant’s employer);
Psychiatric Solutions, 414 S.W.3d at 726 (same).
11
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 176 (2012). For example, the TMLA’s
4
Accordingly, “[p]ut to a choice . . . a court may well prefer ordinary meaning to an
unusual meaning that will avoid surplusage . . . .”12
The fact pattern of this case suggests other problems with broadly construing
the category of “safety” claims without the limiting qualification that such claims
must be directly related to health care. When the defendant is a “health care
provider,” as it was in West Oaks,13 Psychiatric Solutions,14 and Ross,15 it stands to
reason that the potential for a connection to health care should be evident to the
claimant. The non-patient plaintiff advancing a garden-variety negligence claim
against a health care provider should confront “no major obstacle” in satisfying the
TMLA’s requirement of an expert report, and prudently should file one to avoid
the risk of dismissal.16 But the potential classification of a claim as an HCLC may
broad definition of “health care” appears to entirely subsume the definition
of “medical care,” yet the HCLC definition references both in a fashion that
adds no apparent substance by including “medical care.” See TEX. CIV.
PRAC. & REM. CODE § 74.001(a)(10), (13), (19).
12
SCALIA & GARNER, supra note 11, at 176.
13
Tex. W. Oaks, 371 S.W.3d at 174 (private mental health hospital).
14
Psychiatric Solutions, 414 S.W.3d at 724-25 (psychiatric facility).
15
Ross, 2013 WL 1136613, at *1 (hospital).
16
See Loaisiga, 379 S.W.3d at 264 (Hecht, J., concurring and dissenting)
(observing that “[o]ne need not turn to the Mayo Clinic” for an opinion
establishing that “sexual assault is not a part of health care”). The Williams
5
not be evident when the defendant is a physician and the claim does not arise from
a health-care setting, such as the accident in this case. The original petition in this
case identified Reddy as a doctor, but it is entirely conceivable that a similar
accident could occur involving a physician-defendant, and that fact of a
physician’s involvement may not be known until a motion to dismiss is filed,
faulting the claimant for failing to file an expert report. Unlike the circumstance in
which an actually filed report is found to be deficient,17 the Act includes no
procedural mechanism to protect the claimant who lacks notice of circumstances
causing her claim to be classified as an HCLC.
Many courts of appeals have resisted the West Oaks interpretation of the
safety claim by applying a different, atextual requirement of an indirect relation to
v. Riverside panel expressed its skepticism, speculating that it is
“improbable” that the claimant “could locate a premises liability expert who
also practiced ‘health care in a field of practice that involves the same type
of care or treatment as that delivered by’ the defendant hospital.” Williams,
2014 WL 4259889, at *8. However, since the claim in Williams v. Riverside
did not implicate any alleged departure “from accepted standards of health
care,” the TMLA’s special statutory qualifications for an expert witness in a
suit against a health care provider would not apply to the expert report
required by section 74.351. See TEX. CIV. PRAC. & REM. CODE
§§ 74.351(r)(5)(B) & 74.402. Instead, the expert would only have to be “a
physician who is otherwise qualified to render opinions . . . under the Texas
Rules of Evidence” on the “causal relationship between the injury, harm, or
damages claimed and the alleged departure from the applicable standard of
care.” Id. § 74.351(r)(5)(C).
17
TEX. CIV. PRAC. & REM. CODE § 74.351(c).
6
health care. In my view, even though this construct may lead to the correct result in
some cases, such as this case, requiring an indirect relationship to health care has
no footing in the statute and causes greater violence to a textual reading of the
TMLA than would result from limiting safety claims to those directly related to
health care.
I would not have resorted to such an atextual construction of the statute if a
panel of our court had not already joined the other courts of appeals that have done
so. Instead, I would begin with the recognition that the explication of the scope of
the safety claim was not necessary to the result in either West Oaks or Psychiatric
Solutions.18 Both of those cases involved circumstances that the Supreme Court
found to be directly related to health care,19 and that fact already has been
18
See Mem’l Hermann Hosp. Sys. v. Galvan, 434 S.W.3d 176, 180 (Tex.
App.—Houston [14th Dist.] 2014, pet. filed) (“Even though it was not
necessary to the determination of the case, the [Texas West Oaks v.]
Williams court then addressed whether the plaintiff’s negligence claims were
health care liability claims because the plaintiff alleged departures from
accepted safety standards.”); see also Williams, 2014 WL 4259889, at *6
(“We agree with Galvan that this portion of the opinion is judicial dicta.”).
19
See Psychiatric Solutions, 414 S.W.3d at 726 (claim alleged that “Palit’s
health care provider employer violated the standard of health care owed to
its psychiatric patients”); Tex. W. Oaks, 371 S.W.3d at 182 (“It would blink
reality to conclude that no professional mental health judgment is required to
decide” what “protocols and standards” apply to treating and supervising “a
mental patient in a mental hospital,” and “whether they were in place at the
time of Williams’ injury.”).
7
expressly invoked by a majority of the Court in Psychiatric Solutions to dismiss
further inquiry into the applicability of the “safety” aspect of the HCLC definition
as “advisory at best.”20
Moreover, the facts of this case are readily distinguishable from West Oaks
and Psychiatric Solutions. Unlike those precedents, in this case of a distracted
doctor striking a bicyclist with his car, there is no connection to health care or any
claim that implicates a standard of care that requires expert testimony to prove or
refute it.21 For that reason, I would conclude that the facts presented by this case
likely were not anticipated by the Court when it discussed the scope of the safety
claim in West Oaks. As such, and in light of the peculiarity of requiring an expert
report in this case and the plausibility of the alternative interpretation limiting
safety claims to those directly related to health care, I would treat the dicta in West
20
See Psychiatric Solutions, 414 S.W.3d at 726 & n.2.
21
See id. at 726 (“because Palit’s allegations implicate a standard of care that
requires expert testimony to prove or refute it, his claim is an HCLC”); Tex.
W. Oaks, 371 S.W.3d at 182 (“Expert testimony in the health care field is
necessary to support Williams’ claims.”).
8
Oaks as “inapplicable and not binding on our facts”22 rather than as a definitive and
indistinguishable statement of “precedential judicial dicta.”23
Regardless of how the Supreme Court ultimately resolves this challenge of
statutory interpretation, there is a possibility of a better path forward. Even though
the Legislature does not write statutes for the courts’ approval,24 it still could
clarify the TMLA in response to manifest interpretive difficulties. Not only could
this relieve the courts and litigants from the continuing burdens of litigation over
the procedural standards,25 it could also better ensure that the standards applied are
those actually approved by the Legislature, as opposed to a standard reflecting the
courts’ best good-faith effort to implement an opaque statute. Legislatures have the
right to expect courts to faithfully implement laws as enacted. When the words fail,
the Legislature has a corresponding responsibility to provide clarity where it is
22
Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex. App.—Houston [14th Dist.]
1999, pet. denied).
23
Galvan, 2014 WL 295166, at *3; Williams, 2014 WL 4259889, at *6.
24
See Jaster v. Comet II Const., Inc., No. 12-0804, 2014 WL 2994503, at *20
(Tex. July 3, 2014) (Hecht, C.J., dissenting).
25
See, e.g., Loaisiga, 379 S.W.3d at 263–64 (Hecht, J., concurring and
dissenting) (“disagreements over the Act’s expert report requirement, which
is merely intended to weed out frivolous claims early on, have resulted in
protracted pretrial proceedings and multiple interlocutory appeals,
threatening to defeat the Act’s purpose by increasing costs and delay that do
nothing to advance claim resolution”).
9
wanting.26 Rather than leaving the difficult work of clarification to the courts,
which have confessed their struggle with the task of reaching consensus about the
meaning of the Act,27 the Legislature could—and, I respectfully suggest, should—
study the historical record of how the Texas Medical Liability Act is being applied
in the courts, evaluate which outcomes do and do not reflect a desirable application
of the statutory scheme, and then amend the statute to more clearly indicate what
kinds of claims are intended to be subject to these special procedures.
Michael Massengale
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
26
See, e.g., Henry J. Friendly, The Gap in Lawmaking—Judges Who Can’t and
Legislators Who Won’t, 63 COLUM. L. REV. 787, 792 (1963) (observing the
dilemma created by a legislature that gives judges “guidance that is defective
in one way or another, and then does nothing by way of remedy when the
problem comes to light”). Cf. Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S. 546, 565, 125 S. Ct. 2611, 2624 (2005) (in the event of an
unintended legislative drafting gap, “it is up to Congress rather than the
courts to fix it”); Reves v. Ernst & Young, 494 U.S. 56, 63, 110 S. Ct. 945,
950 (1990) (“If Congress erred . . . it is for that body, and not this Court, to
correct its mistake.”).
27
See, e.g., Psychiatric Solutions, 414 S.W.3d at 727–31 (Boyd, J.,
concurring).
10