Dumping and Other Statutory Violations

Texas Trial Lawyers Association

12th Annual Medical Malpractice Conference

Houston, Texas September 20-21, 2001

Timothy D. Riley

Riley Law Firm

P. O. Box 542179

Houston, Texas 77254-2179

Phone 713.868.1717

Fax 713.868.9393

E-Mail tdr@txtrial.com

 

Table of Contents

I. INTRODUCTION 1

II. NEGLIGENCE PER SE 1

III. EMTALA 3

A. INTENT OF EMTALA 3

B. HOSPITAL APPLICABILITY 3

C. PATIENT ELIGIBILITY 3

D. WHAT EMTALA REQUIRES 4

i. “MEDICAL SCREENING EXAMINATION” 4

ii. “EMERGENCY MEDICAL CONDITION” 5

iii. DUTY TO STABILIZE 6

a. DEFENSE OF NON-CONSENT TO TREATMENT 7

b. DEFENSE OF NON-CONSENT TO TRANSFER 7

iv. DUTY TO APPROPRIATELY TRANSFER 7

a. TRANSFER AFTER STABILIZATION 8

b. REQUESTED TRANSFER 8

c. TRANSFER FOR MEDICAL REASONS 8

d. TRANSFER MUST BE “APPROPRIATE” 8

E. PRIVATE CIVIL ACTION UNDER EMTALA 8

i. POTENTIAL PLAINTIFFS 8

ii. JURISDICTION AND REMOVAL 8

iii. PRE-EMPTION 9

iv. LIMITATIONS 10

v. DAMAGES 10

IV. THE TEXAS EMERGENCY ROOM ANTI-DISCRIMINATION AND TRANSFER ACTS 10

A. § 311.021, Tex. Health & Safety Code, COVERED SERVICES 10

B. CONDUCT PROHIBITED 10

C. PROVIDERS COVERED 11

D. PENALTIES 11

E. § 241.027, Tex. Health & Safety Code, COVERED SERVICES 11

F. PENALTIES 11

G. NEGLIGENCE PER SE UNDER §311.022 and § 241.027, Tex. Health & Safety Code 11

V. USE OF STATUTORY AND REGULATORY STANDARDS AS EVIDENTIARY OF BREACHES OF A VOLUNTARILY ADOPTED STANDARD OF CARE 12

A. REQUIREMENTS OF 42 CFR § 482.12 12

B. VOLUNTARY ASSUMPTION OF DUTY 16

C. THE NON-DELEGABLE DUTY DOCTRINE 16

D. THE REGULATION ITSELF AS EVIDENTIARY OF THE STANDARD 18

E. EXPERT TESTIMONY REGARDING APPLICABILITY OF THE REGULATION AS A STANDARD OF CARE 18

F. CONCERN REGARDING REMOVAL TO FEDERAL COURT 19

VI. CONCLUSION 19

I. INTRODUCTION

Increasingly, causes of action are dependent on allegations and proof of statutory provisions. Sometimes, the statutes provide the causes of action; other times the statutes serve as a standard in establishing common law causes of action.

This article will address in detail one statutory cause of action, EMTALA, and will also address violations of statutes and regulations that can be utilized to give rise to liability under common law causes of action.

II. NEGLIGENCE PER SE

The most common instance of a statutory violation giving rise to a common law cause of action is the doctrine of negligence per se, i.e., the application of criminal statutes to negligence-based common law causes of action. Generally speaking, negligence per se is applied when a penal statute prohibits conduct of a particular type and the injured party is among the class of persons intended to be protected by that statute. Smith v. Merritt, 940 S.W.2d 602, 607 (Tex. 1997). In a negligence per se case, it is not necessary to show that the defendant acted in an unreasonable or imprudent manner by the usual evidentiary means. Rather, it is only necessary to prove that the defendant violated the applicable statute and that the violation of the statute resulted in the applicable injuries. Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998).

In the Perry case, the Texas Supreme Court significantly narrowed the doctrine, establishing a number of additional factors that should be considered when determining whether the doctrine of negligence per se should be applied. Those factors include whether:

(a) the statute is the sole source of any tort duty from the defendant to the plaintiff or merely supplies a standard of conduct for an existing common-law duty;

(b) the statute puts the public on notice by clearly defining the required conduct;

(c) the statute would impose liability without fault;

(d) negligence per se would result in ruinous damages disproportionate to the seriousness of the statutory violation; and

(e) the plaintiff’s injury is a direct or indirect result of violation of the statute. Id.

The doctrine of negligence per se is not expressly recognized in the Texas Medical Liability Insurance Improvement Act, article 4590i, Tex. Rev. Civ. Stat. Neither, however, is the application of the doctrine prohibited under article 4590i.

Theoretically, therefore, since there is no prohibition on the doctrine in medical malpractice cases, it ought to be possible to prove the violation of a penal statute by a health care provider, together with causation, and establish liability without the necessity of expert testimony on whether the health care provider violated any applicable standard of care. In fact, objective application of the criteria established in Perry clearly would favor adoption of the negligence per se standard with respect to many statutory violations by health care providers, since most of such statutes were designed to protect patients and they would not impose liability without fault.

The problem with application of the doctrine in medical litigation, however, arises with harmonization of the evidentiary relaxation of violation of standards in negligence per se claims with the heightened evidentiary requirements for establishing same under traditional Texas medical malpractice law.

Clearly, except in the instance of matters within the knowledge of laypersons, the doctrine of informed consent, or matters falling within the very limited application of the doctrine of res ipsa loquitur, qualified expert medical testimony is necessary to establish a violation of the standard of care in a Texas medical malpractice case. Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977). Accordingly, proving the mere violation of a statute to establish violation of the standard of care, without expert testimony supporting same, would appear to conflict with the requirements of Hood v. Phillips.

In Hand v. Tavera, 864 S.W.23d 678, 680 (Tex. App. – San Antonio 1993, no writ), the court held that a physician’s violation of EMTALA, discussed thoroughly below, could not give rise to a negligence per se claim. The court reasoned that, because EMTALA created a cause of action against hospitals and not physicians, the use of an EMTALA violation to satisfy a negligence per se claim against the violating physician would be inappropriate. Id.

It appears that the Hand Court confused the doctrines of implied causes of action and negligence per se. However, EMTALA clearly is penal in nature, clearly was intended to protect patients, and clearly applies in the penal context to physicians. Burditt v. U.S. Dept. of Health & Human Services, 934 F.2d 1362 (5th Cir. 1991). Thus, for reasons discussed in more detail in ¶ V below, in the appropriate case it may still be worth an attempt to impose a negligence per se standard in a common law cause of action against a physician based on the physician’s violation of the mandatory standards of EMTALA.

Very recently the Fort Worth Court of Appeals, in Pack v. Crossroads, Inc., ___ S.W.3d ___, 2001 WL 839026 (Tex. App. – Fort Worth, no pet.) (No. 2-00-219-CV, July 26, 2001), addressed this issue. Pack concerned a hospital death from sepsis secondary to decubitis ulcers. A nursing home and a later hospital were both defendants. The plaintiff lost a jury verdict, but appealed the pre-trial striking of their pleadings of negligence per se.

Against the hospital, the plaintiff confusingly contended that violation of the standards of article 4590i itself could give rise to a negligence per se claim, without the necessity of supporting expert testimony. The Court of Appeals correctly rejected the claim, since article 4590i itself does not establish standards of care or provide penalties for violation of same.

However, the plaintiff also contended that violation of certain licensure and certification requirements under the Texas Administrative Code could serve as the basis for a negligence per se claim. The Court of Appeals rejected this claim as well. However, it is notable that the court did so only because it determined that the administrative penalties provided for violation of the regulations were not “penal” in nature. Accordingly, applying Perry, the Pack Court held that violation of this standard could not give rise to a negligence per se cause of action.

The Pack Court was perhaps correct in both determinations. However, does the rationale of Pack give rise to an argument that violation of a true penal statute, such as assault, could give rise to a negligence per se claim? Moreover, in those rare instances in which intentional conduct by a health care provider is involved, could the plaintiff submit the case under a negligence per se claim and avoid any coverage defenses for intentional conduct, since negligent and intentional conduct are ordinarily deemed to be mutually exclusive? Fulmer v. Rider, 635 S.W.2d 8ton. 882 (Tex. App. – Tyler 1982, writ ref’d n.r.e.).

In addition, what the plaintiff apparently did not do in Pack was secure expert testimony or an admission by the hospital that compliance with the regulation constituted a minimum standard of care, a potentially much more fruitful area discussed in further detail below, at ¶ V, infra.

III. EMTALA

A. INTENT OF EMTALA

In 1986, the United States Congress passed the Emergency Medical Treatment and Active Labor Act, 42 USC § 1395dd [EMTALA]. EMTALA was a part of the Comprehensive Ominbus Budget Reconciliation Act of 1986 [COBRA]. EMTALA applies to the presentation of patients to hospital emergency rooms, including but not limited to those in active labor, and patient transfers.

EMTALA was not intended to create a “federal malpractice statute” against hospitals. Marshall v. East Carroll Parish Hosp. Svc. Dist., 134 F.3d 319, 322 (5th Cir. 1998). Rather, EMTALA was passed to prevent “patient dumping,” i.e., refusal of treatment because of inability to pay and inappropriate transfer of indigent patients from private hospitals to public facilities. Id. See also Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266 (6th Cir. 1990). Prior to the passage of EMTALA, it was estimated in one study that 87% of hospitals in Cook County, Illinois, were transferring patients solely for economic reasons. Schiff, Transfers to a Public Hospital, 314 NEJM 552, 556 (1986).

Of significant import, one of the goals in passing EMTALA was to address the growing inability of patients under state law to hold hospitals liable in malpractice for inappropriate emergency department medical care. Correa v. Hospital San Francisco, 69 F.3d 1184, 1189-90 (1st Cir. 1995). See also Bera, Preventing “Patient Dumping”: The Supreme Court Turns Away the Sixth Circuit’s Interpretation of EMTALA, 36 Hou. L. Rev. 615,623 (1999).

B. HOSPITAL APPLICABILITY

EMTALA applies only to hospitals that accept federal funding under the Medicare program. Diaz v. Grupo de Empresas de Salud, 112 F.Supp. 222, 225 (D. P.R. 2000). Moreover, EMTALA only applies to hospitals that maintain “emergency rooms” or equivalent treatment facilities. 42 USC § 1395dd(a); Correa, 69 F.3d at 1190.

A hospital can be held vicariously liable for the decision of an independent contractor emergency physician which violates EMTALA. Battle v. Memorial Hosp. at Gulfport, 228 F.3d 544, 557 (5th Cir. 2000); Burditt, 934 F.2d at 1374. However, although individual physicians can be subjected to monetary fines for violations of EMTALA, no private cause of action exists against individuals under EMTALA. Baber v. Hospital Corp. of America, 977 F.2d 872, 877 (4th Cir. 1992); Hand, 864 S.W.2d at 680-81.

C. PATIENT ELIGIBILITY

EMTALA applies to “any person” presenting for medical treatment to an emergency department. 42 USC § 1395dd(a). Thus, it is not required that the patient be indigent or uninsured to qualify for recognition of a cause of action under EMTALA. Cleland, 917 F.2d at 270-71. (This citation was cited as important by analogy by the Fifth Circuit in Burditt, 934 F.2d at 1373.)

It has been held that the patient physically must physically come to the emergency department to receive treatment to qualify under EMTALA. Miller v. Medical Center of Southwest La., 22 F.3d 626, 629-30 (5th Cir. 1994); Rios v. Baptist Mem. Hosp. Sys., 935 S.W.2d 799 (Tex. App. – San Antonio 1996, writ denied). A telephone request for service is insufficient as a matter of law. Miller, 22 S.W.2d at 629-30. It is not enough for the patient to merely walk through the emergency department with an obvious injury. Rios, 935 S.W.2d at 803-04. It is imperative that the patient indicate he is somehow seeking emergency treatment. Id.

However, the door through which the patient walks is irrelevant; it is not necessary that the patient walk directly into the emergency department. Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1135 (6th Cir. 1990); McIntyre v. Schick, 795 F.Supp. 777, 781 (E.D. Va. 1992). For example, entering an ambulance operated by a hospital enroute to an emergency room constitutes a patient “coming to the emergency department” under EMTALA. Hernandez v. Starr Co. Hosp. Dist., 30 F.Supp.2d 970 (S.D. Tex. 1999). It is only required that the patient request emergency medical care from the hospital in some fashion that would convey that desire to the facility. Rios, 935 S.W.2d at 803-04.

D. WHAT EMTALA REQUIRES

i. “MEDICAL SCREENING EXAMINATION”

When any patient presents to a hospital emergency room seeking medical assistance, the hospital is obligated to perform an appropriate “medical screening examination.” This examination must be in compliance with the “capabilities” of the hospital’s emergency department, including the capabilities of “ancillary services” routinely available to the hospital’s emergency department. Id.

The term “medical screening examination” was not defined in EMTALA. Some courts have interpreted the term as requiring only equanimity in the provision of screening examinations to all patients. Accordingly, if the hospital would ordinarily provide paying patients with expensive diagnostic screening services, such as a screening CT scan or MRI, the hospital must do the same for every patient with similar presenting symptoms. Marshall, 134 F.3d at 322-23.

Whether a screening examination is actionable under EMTALA is not judged by the proficiency of the examination in accurately diagnosing the patient’s illness. Id. at 322. Indeed, even if the physician and/or the hospital could be held liable for malpractice for a poor or insufficient examination, the patient could not recover under EMTALA so long as the examination was performed. Id. at 322.

Stated differently, “[t]he appropriateness of the screening examination is determined by reference to how the hospital treats other patients who are perceived to have the same medical condition….” Fisher v. New York Health and Hospitals Corp., 989 F.Supp. 444, 449 (E.D. N.Y. 1998). This line was expressly taken to avoid interpreting EMTALA as creating a new federal cause of action for emergency medical malpractice. Id. However, this application would also mean that if a hospital routinely provides improper examinations, for example, to patients presenting with chest pain, the conduct would not be actionable under EMTALA so long as all patients are similarly (mis)treated. Accordingly, other courts have been more realistic in their evaluation of the screening requirements of EMTALA, In the First, Fourth, and D.C. Circuits, the requirements of EMTALA have been interpreted not only to require equanimity in the provision of the screening examination, but that the screening examination be reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients. Correa, 69 F.3d at 1192; Baber, 977 F.2d at 879; Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1041 (D.C. Cir. 1991). See also Stanger, Private Lawsuits Under EMTALA, 12 No. 5 Health Law 27 (June 2000).

Moreover, there is some reason to question the vitality of those cases which hold that only equanimity in the provision of screening examinations is required. It appears that the basis for the cases looking only to equanimity was that EMTALA was only violated, in the screening examination context, if a patient were indigent and treated differently because of his indigence. See, e.g., Cleland, 917 F.2d at 270-71; Marshall, 69 F.3d at 322-23.

The Cleland Court determined that it was not necessary for a patient to be indigent or uninsured to qualify for coverage under EMTALA. Cleland, 917 F.2d at 270-71. Indeed, no such requirement appears in the statute. To deny liability, though, the Cleland Court then held that the plaintiff must show an “improper motive,” inconsistent with the object of the statute, to establish liability. Finding no such motive in that case, coverage was denied.

However, in 1999, the United States Supreme Court decided the case of Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 119 S.Ct. 685, 142 L.Ed.2d 648 (1999). The Court determined that there was no requirement of an “improper purpose” in establishing EMTALA liability for failure to stabilize a patient. Roberts, 525 U.S. at 252. The requirement of providing stabilization treatment is different from the screening examination requirement, and is discussed in more detail in ¶ III(D)(iii), infra.

The language of the two sections is somewhat different, and the Court expressly deferred ruling on whether a requirement of “improper motive” was appropriate with regard to “screening examinations.” Id. at 253. The Court noted, however, that the Sixth Circuit’s requirement of an “improper purpose” in the screening examination context was “in conflict” with the majority of the cases looking at the issue. Id. at 253 n.1. At least two Texas state courts have held that there is no indigency requirement under the screening provision of EMTALA. Casey v. Amarillo Hosp. Dist., 947 S.W.2d 301, 305 (Tex. App. – Amarillo 1997, writ denied); C.M. v. Tomball, 961 S.W.2d 236, 241 (Tex. App. – Houston [1st Dist.] 1997, no writ).

If it is unnecessary that the patient be indigent or uninsured to qualify under EMTALA, and it is unnecessary to require a showing of an “improper motive” inconsistent with the purpose of the statute, it would appear that the statute might also be reasonably construed to require screening examinations not only to be equally applied, but also sufficient to reasonably discover emergency medical conditions. Correa, 69 F.3d at 1192. Thus, EMTALA may be closer to a federal cause of action for improper screening in the emergency department than envisioned by many federal courts.

ii. “EMERGENCY MEDICAL CONDITION”

If an “emergency medical condition” is perceived in the screening examination, EMTALA requires the hospital either:

(a) to provide such further medical examination and treatment, within the capabilities of the staff and facilities, as may be required to stabilize the condition; or

(b) to transfer the individual to another medical facility in accordance with the rules concerning transfer, as discussed below. 42 USC § 1395dd(b).

An “emergency medical condition” is statutorily defined as one manifesting itself by acute symptoms of sufficient severity (including severe pain), such that the absence of immediate medical attention could reasonably be expected to:

(1) place the health of the individual (or unborn child), in serious jeopardy;

(2) result in serious impairment of bodily functions; or

(3) result in serious dysfunction of any bodily organ or part. 42 USC § 1395dd(e).

With respect to a pregnant woman who is having contractions, EMTALA applies if:

(1) there is inadequate time to effect a safe transfer to another hospital before delivery; or

(2) the transfer may pose a threat to the health or safety of the woman or unborn child. Id.

In a confounding twist, it has been held that it is not enough that the patient actually have an emergency medical condition to mandate stabilization under EMTALA. Rather, the emergency health care providers must subjectively perceive that an emergency medical condition exists before liability for failure to stabilize or appropriately transfer can arise. Battle, 228 F.3d at 558; Baber, 977 F.2d at 883. Even if it should turn out that the emergency department personnel were wrong in their assessment, no liability will attach absent subjective knowledge of the presence of the emergency medical condition. James v. Sunrise Hosp., 86 F.3d 885, 888-89 (9th Cir. 1995).

However, the standard may have little import in many practical contexts. For example, in Battle, the emergency room physician wrote in the chart that the patient suffered from a seizure disorder. The emergency physician, however, apparently did not perceive seizure disorder as an “emergency medical condition.” Battle, 228 F.3d at 558. The plaintiffs’ experts, however, testified that a seizure disorder is an emergency medical condition, which the court concluded created a fact issue as t>Id.

The requirement of subjective knowledge of the existence of an emergency medical condition is paradoxical. In Urban v. King, 43 F.3d 523 (10th Cir. 1994), the plaintiff argued that recognizing such a requirement onto EMTALA would encourage misdiagnos>) o avoid EMTALA liability, Id. at 526-27. The Tenth Circuit Court of Appeals disagreed, noting that the duty to provide appropriate medical screening examinations under EMTALA should be sufficient to alleviate that concern. Id. However, if equanimity and not adequacy of medical screening examinations is all that is required under the screening requirement, it is difficult to see how compliance with that provision will ameliorate concerns over intentional misdiagnoses to avoid the requirement of providing stabilization treatment. If a hospital would intentionally underdiagnose a presenting injury to avoid the expense of stabilization treatment, would it not also intentionally understate symptoms of a presenting emergency patient to justify an inadequate screening examination?

The lesson to be learned: have your expert testify that the condition perceived by the emergency room physician was an “emergency medical condition” as defined in EMTALA. Battle, 228 F.3d at 558.

iii. DUTY TO STABILIZE

Assuming a qualifying emergency medical condition has been subjectively appreciated by the medical staff, a duty arises to stabilize the patient within the capabilities of the hospital and its staff or to make an appropriate transfer. To “stabilize” the patient means to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the conditize:is likely to result from or occur during the transfer of the individual from a facility, or, with respect to a laboring patient, to deliver the patient, including delivery of the placenta. 42 USC § 1395dd(e)(3)(A).

The duty to stabilize the patient appears to be essentially absolute. In re Baby K, 16 F.3d 590 (4th Cir.), cert. denied, 513 U.S. 42, 115 S.Ct. 91, 130 L.Ed.2d 42 (1994). In the Baby K case, an anencephalic infant was born at a Virginia hospital. The child had respiratory problems and was mechanically ventilated. The physicians tried to persuade the parents that the child should be given palliative care only, with DNR orders. However, the mother demanded resuscitation as required.

The hospital brought a declaratory judgment action, seeking to avoid the requirements of EMTALA to stabilize the patient should she go into respiratory distress. The Fourth Circuit Court of Appeals denied the request, holding that the requirements of EMTALA to stabilize the patient were absolute. The fact that the provision of resuscitative care was above the standard of care in the community for dealing with anencephalic infants was irrelevant. Id. at 596. It was also irrelevant that the physicians deemed the care morally and ethically inappropriate. Id.

The opposite result was reached, however, by the same court in Bryan v. Rectors & Visitors of the Univ. of Va., 95 F.3d 349 (6th Cir. 1996). In Bryan, the patient was admitted for twelve days for an emergency condition. The hospital declined, however, to undertake further measures to prevent the patient’s death when she had a respiratory episode. The patient died and suit was brought against the hospital under EMTALA, relying primarily on Baby K.

The Bryan Court held that, once the patient was admitted, EMTALA no longer applied and that any recovery must be had under state law. Id. at 352. Recovery under EMTALA was never envisioned for decisions arising from the long term care considerations of an admitted patient. Id. Baby K was distinguishable, according to the Bryan Court, because the prior case did not address how long the treatment would be required. The Bryan Court’s attempted distinction of Baby K appears illusory.

A more sensible conclusion was earlier reached by the same court in Thornton v. Southwest Detroit Hosp., 895 F.2d 1131 (6th Cir. 1990). In that case, the Sixth Circuit held that simple admission of the patient to the hospital was not an event which disqualified the patient from the protection of EMTALA. Rather, even if the patient was admitted from the emergency room, the patient was still entitled to EMTALA protection until the patient’s condition had been stabilized. Id. at 1134-35. Once the patient was determined appropriately to have been “stabilized,” within the meaning of the statute, the hospital was not required to continue to house the patient under EMTALA. Id. Logically, for many long term care patients who cannot survive without continuous mechanical ventilation, their condition will never stabilize to the extent that they can be safely discharged. Baby K, 16 F.3d at 596.

a. DEFENSE OF NON-CONSENT TO TREATMENT

If the hospital has attempted to provide stabilization treatment to a patient and the patient refuses the treatment, the hospital has no liability under this statute. 42 USC § 1395dd(b)(2). However, for this defense to apply, the patient must be provided sufficient information regarding the risks and benefits to the patient of such examination or treatment and refuse to consent after being adequately informed.

b. DEFENSE OF NON-CONSENT TO TRANSFER

If a hospital elects to make an “appropriate transfer,” as discussed below, and the patient refuses the transfer after being informed of the risks and benefits of same, the hospital will not be liable under EMTALA. Id.

iv. DUTY TO APPROPRIATELY TRANSFER

Under EMTALA, a “transfer” also means a discharge. The term includes the movement of a patient outside the hospital’s facilities at the direction of any person employed by or affiliated with the hospital, directly or indirectly. A transfer does not include, however, the discharge of ao thient who has been declared dead, or a patient who leaves the facility without the consent of hospital personnel. 42 USC § 1395dd(e).

a. TRANSFER AFTER STABILIZATION

Once the patient has been “stabilized,” as defined in the statute, the patient can be freely transferred.

b. REQUESTED TRANSFER

If the patient, after being informed of the risks and benefits of transfer, requests the transfer, the hospital is free to transfer. 42 USC § 1395dd(c)(1)(A)(i).

c. TRANSFER FOR MEDICAL REASONS

A patient may be transferred if a physician certifies, in writing, that, based on the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another facility outweigh the increased risks to the patient. 42 USC § 1395dd(c)(1)(A)(ii). The certification must include a summary of the risks and benefits on which the certification is based. 42 USC § 1395dd(c)(1).

d. TRANSFER MUST BE “APPROPRIATE”

The transfer must in any event be what the statute defines as an “appropriate transfer.” This means that: (a) the transferring hospital has provided medical treatment within its capability which minimizes the risks to the individual’s health; and (b) the receiving facility has available space and qualified personnel and has agreed to accept the transfer. 42 USC § 1395dd(c)(2).

E. PRIVATE CIVIL ACTION UNDER EMTALA

i. POTENTIAL PLAINTIFFS

Any individual who suffers personal harm (or any medical facility that suffers a financial loss), as a direct result of a covered hospital’s violation of EMTALA may sue for any damages available for personal injury or financial loss under the law of the state incausich the hospital is located. 42 USC § 1395dd(d)(2)(A)(B).

ii. JURISDICTION AND REMOVAL

EMTALA claims invoke federal question jurisdiction. Bryant v. Riddle Mem. Hosp., 689 F.Supp. 490 (E.D. Pa. 1988). A federal court may also exercise its ancillary jurisdiction to consider state law medical malpractice claims filed coincident with EMTALA claims. Thornton, 895 F.2d at 1133.

However, the state courts have concurrent jurisdiction over EMTALA claims. Burks v. St. Joseph’s Hosp., 396 N.W.2d 391, 399 (Wi. 1999). Accordingly, suits alleging damages expressly under EMTALA will be entertained by the state courts if not removed. See, e.g., C.M. v. Tomball Regional Hosp., 961 S.W.2d at 236.

A defendant can properly remove a suit raising an EMTALA cause of action to federal court. E.g., Newsome v. Mann, 105 F.Supp.2d 610 (E.D. Ky. 2000). However, if the EMTALA claims are dismissed, the federal court has discretion to retain jurisdiction over the state law claims, but will usually remand same if it is early in the process. See, e.g.vX„ban v. King, 834 F.Supp. 1328, 1334 (D. Kan. 1993), aff’d 43 F.3d 523 (10th Cir. 1994).

However, removal may not be appropriate if the only cause of action asserted is clearly a state cause of action, even if a violation of EMTALA is alleged to be evidentiary of a deviation from the applicable standard of care. Sercye-McCollum v. Ravenswood Hosp. Med. Center, 140 F.Supp.2d 944, 946 (N.D. Il. 2001). Although not expressly addressed in the context of EMTALA, this would appear to be the law in the Fifth Circuit as well. Howery v. Allstate Ins. Co., 243 F.3d 912, 915-17 (5th Cir. 2001).

To determine whether removal is appropriate when a federal statute is referenced in the complaint, the courts must first determine whether the case “arises under federal law.” City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 163, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). In making this determination, the courts generally rule that the suit “arises under the law that creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 585, 60 L.Ed. 987 (1916).

State law claims often incorporate federal standards or require the interpts htion of federal law. Howery, 243 F.3d at 917. The Fifth Circuit recently held that a federal question is raised only when resolution of the federal right is necessary to resolve the case. Id.

In Howery, the plaintiff sued under Texas’ DTPA. The plaintiff contended that the defendant’s violation of the federal Fair Credit Reporting Act constituted a violation of the DTPA. Id. at 918. This was only one of several “laundry list” violations of the DTPA alleged in the complaint. Since the plaintiff alleged a number of violations by the defendant which gave rise to a DTPA cause of action, it was not necessary for the question under the FCRA to be resolved in the suit. Accordingly, removal was deemed improper. Id. at 918-19.

iii. PRE-EMPTION

By its express terms, EMTALA does not pre-empt state law except to the extent state law is inconsistent with EMTALA. 42 USC § 1395dd(f). However, the courts are split as to the scope of the non-pre-emption provision of EMTALA.

In Root v. New Liberty Hosp. Dist., 209 F.3d 1068 (8th Cir. 2000), the court looked at whether EMTALA pre-empted the Missouri law of sovereign immunity with respect to public hospitals. The Eighth Circuit held that it did not, and that the state hospital could therefore be held liable under EMTALA, although it could not be sued under state law. Id. at 1070.

In Parrish v. Brooks, 856 S.W.2d 522 (Tex. App. – Texarkana 1993, writ denied), the Texarkana Court of Appeals held that the requirement of notice within 6 months of the event under the Texas Tort Claims Act was pre-empted by EMTALA. Id. at 526.

However, the issue was revisited ver recently in Johnson v. Nacogdoches Co. Hosp. Dist., ___ S.W.3d ___, 2001 WL 840264 (Tex. App. – Tyler, no pet.) (No. 12-00-00348-CV) (July 25, 2001). The Tyler Court of Appeals declined to follow Parrish, holding that the 6 month notice requirement is procedural, not substantive, and therefore not pre-empted by EMTALA. Id. Accord, Draper v. Chiapuzio, 755 F.Supp. 331 (D.C. Or. 1991). Accordingly, under Johnson and Draper, both state and federal claims against a governmental hospital are barred absent 6 month notice of the claim to the governmental unit.

However, a state procedural requirement of submission to a medical review panel was deemed inconsistent with the express terms of EMTALA and thus pre-empted. Spradlin v. Acadia-St. Landry Medical Foundation, 758 So.2d 116 (La. 2000). This was true because the statute provides that any person who sustains personal injury as a result of violation of EMTALA can bring a cause of action, with no requirement that the patient first submit to a medical review panel.

iv. LIMITATIONS

Any claim under EMTALA must be filed within two years of the date of the violation or it is time-barred. 42 USC § 1395dd(d)(2)(C). Note the possible limitation with respect to governmental hospitals discussed immediately above, however.

v. DAMAGES

EMTALA provides that a person bringing an EMTALA cause of action may obtain “those damages available for personal injury under the law of the State in which the hospital is located.” 42 USC § 1395dd(d)(2)(A). That includes compensatory damages and punitive damages, but only if punitive damages are allowed under the law of the state where the hospital sits. Taylor v. Dallas Co. Hosp. Dist., 976 F.Supp. 437 (N.D. Tex. 1996).

The majority rule is that state damage caps on medical malpractice claims are applied to EMTALA recoveries. See, e.g., Power v. Arlington Hosp. Ass’n, 42 F.3d 851, 861-63 (4th Cir. 1994); Barris v. County of Los Angeles, 20 Cal.4th 101, 972 P.2d 966, 83 Cal.Rptr.2d 145 (1999). Thus, it would appear that the wrongful death cap limits of article 4590i would apply to EMTALA recoveries, as would the punitive damage caps of the Texas Civil Practices and Remedies Code.

It is notable that several courts have held that state medical malpractice damage caps do not apply to EMTALA claims because EMTALA claims are not within the class of claims covered by such statutory schemes. Brooks v. Maryland Gen’l Hosp., Inc., 996 F.2d 708 (4th Cir. 1993); Jackson v. East Bay Hosp., 980 F.Supp. 1341, 1347 (N.D. Ca. 1997). In other words, since:

(a) statutory malpractice caps only apply to claims arising from the negligence of the health care provider; and

(b) EMTALA requires no showing of negligence; then

(c) the statutory caps do not apply to EMTALA claims.

However, the definition of a covered “health care liability claim” under article 4590i is so broad that it is doubtful that these cases would be followed here.

IV. THE TEXAS EMERGENCY ROOM ANTI-DISCRIMINATION AND TRANSFER ACTS

Texas has two statutes that bear some resemblance to EMTALA. The first, § 311.021, et seq., Tex. Health & Safety Code, was passed originally in 1975 and then amended in 1989. The statute applies to the provision of emergency medical services at Texas hospitals. The second, § 241.027, et seq., Tex. Health & Safety Code, was passed in 1993, and applies to restrictions on hospital to hospital transfer of patients.

  • § 311.021, Tex. Health & Safety Code, COVERED SERVICES

This statute defines “emergency services” to include those customarily available at a hospital to:

(a) sustain a person’s life;

(b) prevent serious permanent disfigurement; or

(c) provide labor and delivery services to a pregnant patient.

  • CONDUCT PROHIBITED

This statute prohibits discrimination in the provision of emergency services on the basis of race, religion, national ancestry, or ability to pay. § 311.022(a)(b), Tex. Health & Safety Code.

  • PROVIDERS COVERED

§ 311.022(a) makes it clear that the requirements of the statute apply to any officer, employee, or medical staff member of a general hospital.

  • PENALTIES

A person who violates the statute can be held liable for a Class B misdemeanor, unless the conduct results in a permanent injury, permanent disability, or death, or if the provider acted intentionally or knowingly, in which case the violation constitutes a Class A misdemeanor. § 311.022(c)(d), Tex. Health & Safety Code.

  • § 241.027, Tex. Health & Safety Code, COVERED SERVICES

This statute essentially prevents the “inappropriate” transfer of patients who have emergency medical conditions. It is markedly similar to EMTALA, and was clearly modeled after the federal statute.

  • PENALTIES

This statute provides penalty fines for hospitals which violate its transfer requirements. § 241.055, Tex. Health & Safety Code.

  • NEGLIGENCE PER SE UNDER §311.022 and § 241.027, Tex. Health & Safety Code

There have been very few cases which have addressed the applicability of §311.021 to a private cause of action for damages. To date, no Texas case has addressed the possibility of application of § 241.027 to negligence per se claims against hospitals.

In Fought v. Solce, 821 S.W.2d 218 (Tex. App. – Houston [1st Dist.] 1991, writ denied), the majority of the Houston Court of Appeals expressly held that the predecessor to § 311.021 could not be utilized to impose a negligence per se standard against a physician. In that case, the patient showed up at the emergency department with severe leg injuries. Dr. Solce, the orthopedist on call, was consulted and asked to see the patient. He declined, allegedly because the patient had no health insurance. The patient later had his leg amputated, allegedly as a result of delayed treatment. Id. at 221.

With little discussion of its reasoning, the majority in Fought determined it would decline to apply the requirements of the statute to create a negligence per se cause of action because there was no physician-patient relationship established as a matter of law. Id.

However, Justice M. O’Connor, in a separate opinion dissenting from the denial of a petition to reconsider the case en banc, noted that the statute did not require that a physician-patient relationship exist. Rather, if any member of the hospital staff refuses to provide treatment on the basis of inability to pay, the staff member can be held liable under the statute. Citing the well-established rule of El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex. 1987), that violation of a statute designed to protect the public gives rise to a claim for negligence per se, Justice O’Connor argued that the case should have been remanded to trial. Fought v. Solce, 837 S.W.2d 275 (Tex. App. – Houston [1st Dist.] 1992, writ denied) (O’Connor, J., dissenting from order overruling motion for en banc consideration).

Two years later, the San Antonio Court of Appeals decided the case of Hand v. Tavera, 864 S.W.2d at 678. In that case, the plaintiff also contended that § 311.021 could give rise to a negligence per se cause of action. Id. at 681. The court impliedly assumed that the statute would give rise to such a claim, but dismissed the plaintiff’s claim because there was no evidence the physician refused to treat on a prohibited basis. Id. at 681.

These results can perhaps be reconciled by reference to the reason the majority in Fought declined to extend negligence per se liability to Dr. Solce – the absence of a physician-patient relationship. There has long been a running dispute among Texas cases as to whether a physician who is “on call” for specialty service in the emergency room can have liability to a patient he does not actually see.

In St. John v. Pope, 901 S.W.2d 420 (Tex. 1995), the Texas Supreme Court held that an internist, consulted by an emergency room doctor about a patient in the emergency room, but who had no contractual duty to treat the patient and declined to do so on the basis of his lack of training in the field, had no physician relationship with the patient as a matter of law. Id. at 423-24. However, the Court noted that the fact that the physician did not directly see the patient did not preclude the creation of the physician-patient relationship. Although Dr. St. John listened to the emergency physician’s description of the patient, Dr. St. John did not do so with the purpose of recommending a course of conduct. Rather, he listened solely to determine whether he should undertake the patient’s care. Id.

The Court did hold, however, that a physician can create in advance a physician-patient relationship by, for example, entering into a contract with the hospital that leaves the physician with no discretion to decline to treat the hospital’s patients. Id. This statement has been applied by other courts to recognize the existence of a physician-patient relationship when the on-call physician has agreed with the patient’s health insurer to evaluate patients who present to the emergency department. Hand, 864 S.W.2d at 679. Similarly, a physician-patient relationship has been recognized when the on-call physician takes information over the phone and makes recommendations for treatment. Lection v. Dyll, ___ S.W.3d ___, 2001 WL 688131 (Tex. App. – Dallas 2001, no pet.) (No. 05-98-01089-CV) (June 20, 2001); Wheeler v. Yettie Kersting Mem. Hosp., 866 S.W.2d 32, 39-40 (Tex. App. – Houston [1st Dist.] 1993, no writ).

Accordingly, a good argument can be made that § 311.022 can serve as the basis for a negligence per se cause of action, but only if a physician-patient relationship is first determined to exist. Hand, 864 S.W.2d at 681.

The transfer provision applicable to hospitals, § 241.027, has never been addressed in the context of a negligence per se claim. However, the rationale of Smith v. Merritt, 940 S.W.2d 602, 607 (Tex. 1997), and Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998), would appear clearly to favor the imposition of a negligence per se standard with respect to both statutes.

Perhaps the larger question is how the courts will deal with the requirement of expert testimony should the negligence per se standard be adopted in either instance. This may create the biggest intellectual obstacle to application of the negligence per se doctrine under these statutes. See, e.g., Pack v. Crossroads, Inc., ___ S.W.3d ___, 2001 WL 839026 (Tex. App. – Fort Worth, no petition) (No. 2-00-219-CV, July 26, 2001).

V. USE OF STATUTORY AND REGULATORY STANDARDS AS EVIDENTIARY OF BREACHES OF A VOLUNTARILY ADOPTED STANDARD OF CARE

  • REQUIREMENTS OF 42 CFR § 482.12

There are numerous Medicare regulations applicable to participating hospitals. As an overall statement, as a condition of participation in the Medicare program, the governing body of a hospital must:

(a) “be responsible for services furnished in the hospital whether or not they are furnished under contracts”;

(b) “ensure that a contractor of services… furnishes services that permit the hospital to comply with all applicable conditions of participation and standards for the contracted services”; and

(c) “ensure that the services performed under a contract are provided in a safe and effective manner.”

42 CFR § 482.12(e).

More specifically, with regard to nursing services, a participating hospital must comply with the following requirements:

“The hospital must have an organized nursing service that provides 24-hour nursing services. The nursing services must be furnished or supervised by a registered nurse.

(a) Standard: Organization. The hospital must have a well-organized service with a plan of administrative authority and delineation of responsibilities for patient care. The director of the nursing service must be a licensed registered nurse. He or she is responsible for the operation of t he service, including determining the types and numbers of nursing personnel and staff necessary to provide nursing care for all areas of the hospital.

(b) Standard. Staffing and delivery of care. The nursing service must have adequate numbers of licensed registered nurses, licensed practical (vocational) nurses, and other personnel to provide nursing care to all patients as needed. There must be supervisory and staff personnel for each department of nursing unit to ensure, when needed, the immediate availability of a registered nurse for bedside care of any patient.

(1) The hospital must provide 24-hour nursing services furnished or supervised by a registered nurse, and have a licensed practical nurse or registered nurse on duty at all times, except for rural hospitals that have in effect a 24-hour nursing waiver granted under § 405.1910(c) of this chapter.

(2) The nursing service must have a procedure to ensure that hospital nursing personnel for whom licensure is required have valid and current licensure.

(3) A registered nurse must supervise and evaluate the nursing care for each patient.

(4) The hospital must ensure that the nursing staff develops, and keeps current, a nursing care plan for each patient.

(5) A registered nurse must assign the nursing care of each patient to other nursing personnel in accordance with the patient’s needs and the specialized qualifications and competence of the nursing staff available.

(6) Non-employee licensed nurses who are working in the hospital must adhere to the policies and procedures of the hospital. The director of nursing service must provide for the adequate supervision and evaluation of the clinical activities of non-employee nursing personnel which occur within the responsibility of the nursing service.

(c) Standard: Preparation and administration of drugs. Drugs and biologicals must be prepared and administered in accordance with Federal and State laws, the orders of the practitioner or practitioners responsible for the patient’s care as specified under § 482.12(c), and accepted standards of practice.

(1) All drugs and biologicals must be administered by, or under supervision of, nursing or other personnel in accordance with Federal and State laws and regulations, including applicable licensing requirements, and in accordance with the approved medical staff policies and procedures.

(2) All orders for drugs and biologicals must be in writing and signed by the practitioner or practitioners responsible for the care of the patient as specified under § 482.12(c). When telephone or oral orders must be used, they must be–

(i) Accepted only by personnel that are authorized to do so by the medical staff policies and procedures, consistent with Federal and State law;

(ii) Signed or initialed by the prescribing practitioner as soon as possible; and

(iii) Used infrequently.

(3) Blood transfusions and intravenous medications must be administered in accordance with State law and approved medical staff policies and procedures. If blood transfusions and intravenous medications are administered by personnel other than doctors of medicine or osteopathy, the personnel must have special training for this duty.

(4) There must be a hospital procedure for reporting transfusion reactions, adverse drug reactions, and errors in administration of drugs.”

42 C.F.R. § 482.23.

With regard to anesthesia services:

“If the hospital furnishes anesthesia services, they must be provided in a well organized manner under the direction of a qualified doctor of medicine or osteopathy. The service is responsible for all anesthesia administered in the hospital.

<Text of subsection (a) effective Nov. 14, 2001.>

(a) Standard: Staffing. The organization of anesthesia services must be appropriate to the scope of the services offered. Anesthesia must be administered by only a licensed practitioner permitted by the State to administer anesthetics.

<Text of subsection (a) effective until Nov. 14, 2001.>

(a) Standard: Organization and staffing. The organization of anesthesia services must be appropriate to the scope of the services offered. Anesthesia must be administered by only–

(b) Standard: Delivery of services. Anesthesia services must be consistent with needs and resources. Policies on anesthesia procedures must include the delineation of preanesthesia and post anesthesia responsibilities. The policies must ensure that the following are provided for each patient:

(1) A preanesthesia evaluation by an individual qualified to administer anesthesia under paragraph (a) of this section performed within 48 hours prior to surgery.

(2) An intraoperative anesthesia record.

(3) With respect to inpatients, a postanesthesia followup report by the individual who administers the anesthesia that is written within 48 hours after surgery.

(4) With respect to outpatients, a postanesthesia evaluation for proper anesthesia recovery performed in accordance with policies and procedures approved by the medical staff.”

42 C.F.R. § 482.52.

With regard to surgical services:

“If the hospital provides surgical services, the services must be well organized and provided in accordance with acceptable standards of practice. If outpatient surgical services are offered the services must be consistent in quality with inpatient care in accordance with the complexity of services offered.

(a) Standard: Organization and staffing. The organization of the surgical services must be appropriate to the scope of the services offered.

(1) The operating rooms must be supervised by an experienced registered nurse or a doctor of medicine or osteopathy.

(2) Licensed practical nurses (LPNs) and surgical technologists (operating room technicians) may serve as “scrub nurses” under the supervision of a registered nurse.

(3) Qualified registered nurses may perform circulating duties in the operating room. In accordance with applicable State laws and approved medical staff policies and procedures, LPNs and surgical technologists may assist in circulatory duties under the supervision of a qualified registered nurse who is immediately available to respond to emergencies.

(4) Surgical privileges must be delineated for all practitioners performing surgery in accordance with the competencies of each practitioner. The surgical service must maintain a roster of practitioners specifying the surgical privileges of each practitioner.

(b) Standard: Delivery of service. Surgical services must be consistent with needs and resources. Policies governing surgical care must be designed to assure the achievement and maintenance of high standards of medical practice and patient care.

(1) There must be a complete history and physical work-up in the chart of every patient prior to surgery, except in emergencies. If this has been dictated, but not yet recorded in the patient’s chart, there must be a statement to that effect and an admission note in the chart by the practitioner who admitted the patient.

(2) A properly executed informed consent form for the operation must be in the patient’s chart before surgery, except in emergencies.

(3) The following equipment must be available to the operating room suites: call-in-system, cardiac monitor, resuscitator, defibrillator, aspirator, and tracheotomy set.

(4) There must be adequate provisions for immediate post-operative care.

(5) The operating room register must be complete and up-to-date.

(6) An operative report describing techniques, findings, and tissues removed or altered must be written or dictated immediately following surgery and signed by the surgeon.”

42 C.F.R. § 482.51.

These regulations clearly do not provide a statutory or implied causes of action. Wheat v. Mass, 994 F.2d 273, 276 (5th Cir. 1993); Brogdon v. National Healthcare Corp., 103 F.Supp.2d 1322, 1330(N.D. Ga. 2000). Nor are the provisions penal in nature, such that they might be applied to a negligence per se standard. Pack v. Crossroads, Inc., ___ S.W.3d ___, 2001 WL 839026 (Tex. App. – Fort Worth, no petition) (No. 2-00-219-CV, July 26, 2001).

However, is evidence of violation of the regulations otherwise admissible:

(a) to establish a standard of care;

(b) because violation of the regulations by a contractor is violative of a non-delegable duty of the hospital itself, making the hospital vicariously liable for same; and/or

(c) as probative of the violation of the standard of care by the hospital?

Probably so.

  • VOLUNTARY ASSUMPTION OF DUTY

It is beyond the necessity of citation to authority to state that, under Texas law, a hospital ordinarily has no duty to supervise the practice of medicine of independent contractor physicians on staff.

However, it is equally beyond dispute that, under Texas law, though a person may have no duty to act, once he voluntarily undertakes a duty, he is obligated to carry out the function in a non-negligent fashion. Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983); Klager v. Worthing, 966 S.W.2d 77, 83 (Tex. App. – San Antonio 1996, writ denied).

For this “negligent undertaking” to apply:

(a) the failure to exercise such care must increase the risk of harm; or

(b) the harm must be suffered because the plaintiff relied on the other’s undertaking.

Torrington Co. v. Stutzman, 46 S.W.2d 829, 838 (Tex. 2001) (citing Restatement (Second) of Torts 323 (1965).

In the Medicare context, both prongs of Torrington should easily be met. First, it would be difficult to argue that a hospital failing to ensure that services are rendered in a safe and effective manner does not increase the risk of that occurring. Second, undoubtedly most Medicare plaintiffs would testify that they entered a Medicare-approved hospital in reliance of the hospital’s compliance with the duties imposed by Medicare.

A health care provider can create a liability standard of care by his own testimony. Wilson v. Scott, 412 S.W.2d 299, 303 (Tex. 1967). Because hospitals must adhere to the regulations cited above as a condition to participation, it should be an elementary matter to get a hospital administrator to admit that following of such regulations is a policy of the hospital. Clearly, if the policies are those of the hospital, they are admissible for the purpose of determining the proper standard of care of the hospital. McCombs v. Childrens’ Med. Center of Dallas, 1 S.W.3d 256, 259 (Tex. App. – Texarkana 1999, pet. denied); Denton Regional Med. Ctr. v. LaCroix, 947 S.W.2d 941, 951 (Tex. App. – Fort Worth 1997, writ dism’d by agr.).

Accordingly, a very good argument can be made that participating hospitals, by agreeing to participate in the Medicare program, at least with regard to Medicare patients, have waived the protection of Texas law with regard to oversight of physicians, and assumed a duty to ensure that such services are provided in a safe and effective manner, in accordance with 42 CFR § 482.12(e); Torrington Co., 46 S.W.3d at 838; Klager, 966 S.W.2d at 83.

  • THE NON-DELEGABLE DUTY DOCTRINE

Stated broadly, the regulations quoted above impose the following specific duties on the hospital:

Nursing services – (a) to provide adequately trained and supervised nurses in sufficient numbers to meet patient needs, (b) with a nursing care plan for each patient, and (c) with each patient’s care supervised and evaluated by a registered nurse. 42 C.F.R. § 482.23.

Anesthesia services – (a) must be provided in a well-organized manner, (b) under the direction of a physician, (c) with adequate staffing; (d) with an adequate preanesthesia evaluation, an intraoperative anesthesia record, and a postanesthesia followup report by the person who administered the anesthesia. 42 C.F.R. § 482.52.

Surgical services – (a) must be provided in accordance with acceptable standards of practice, (b) must be designed to assure the achievement and maintenance of high standards of medical practice and patient care, (c) must be a complete history and physical in every patient’s chart prior to surgery, (d) must be preceded by a properly executed informed consent form for the operation to be performed. 42 C.F.R. § 482.51.

General supervisory/oversight duties: (a) be responsible for services furnished in the hospital, (b) ensure that a contractor furnishes services in compliance with the requirements imposed on the hospital, and (c) ensure that all services provided by contractors are provided in a “safe and effective manner.”

42 CFR § 482.12(e).

Clearly, these regulations envision that certain anesthetic, surgical, nursing, and other services will be provided by persons other than hospital employees. However, that does not necessarily mean that the hospital can delegate these services to contractors and escape liability 1987damages that result from the failure of the contractors to comply with these requirements.

Texas recognizes that: “when a duty is imposed by law on the basis of concerns for public safety, the party bearing the duty cannot escape it by delegating it to an independent contractor.” MBank El Paso, N.A. v. Sanchez, 836 S.W.2d 151, 153 (Tex. 1992). This conclusion is supported by the Restatement (Second) of Torts:

“One who by statute or administrative regulation is under a duty to provide specified safeguards or protections for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.”

Restatement (Second) of Torts § 424 (1965). Comment a to the Restatement notes:

“The rule stated in this Section applies whenever a statute or an administrative regulation imposes a duty upon one doing particular work to provide safeguards or precautions for the safety of others. In such a case the employer cannot delegate his duty to provide such safeguards or precautions to an independent contractor.”
Id. at comment a.

The question then is whether the Congress, by imposing general and specific duties on participating hospitals, intended to impose non-delegable duties on those providers. The legislative history of the regulations clearly and unambiguously indicates such an intention:

“These revisions are intended to simplify and clarify Federal requirements, to provide maximum flexibility in hospital administration while strengthening patient health and safety, to emphasize outcomes rather than processes, to promote cost effectiveness while maintaining quality care, and to achieve more effective compliance with Federal requirements.”

51 Fed. Reg. 22010 (1986)

The agency comment continues:

“The 1983 NPRM [Notice of Proposed Rulemaking], was intended to clarify that the hospital has ultimate responsibility for services, whether they are provided directly, such as by its own employees, by leasing, or through arrangements, such as formal contracts, joint ventures, informal agreements, or shared services. Because many contracted services are integral to direct patient care and are important aspects of health and safety, a hospital cannot abdicate its responsibility simply by providing that service through a contract with an outside resource. For purposes of assuring adequate care, the nature of the arrangement between the hospital and the “contractor” is irrelevant. The NPRM, therefore, proposed to specify that the governing body must be responsible for these services and that the services must be provided in a safe and effective manner.”

51 Fed. Reg. 22015 (1986).

The MBank case is relatively directly on-point. In that case, a lender used an outside agency to repossess secured property. The agency failed to do so in a manner which preserved the public peace. Accordingly, the bank was sued for the tortious conduct of the agency.

The Texas Supreme Court focused on the statute which allows lenders to use non-judicial repossession processes. The Texas Supreme Court held that the statute (which provides that non-judicial is allowed provided a breach of the peace does not result from same), imposed a non-delegable duty on the repossesor. Thus, the tortious conduct by the agency was attributable to the repossessor as a matter of law. Mbank, 836 S.W.2d at 153.

In reaching that conclusion, the Court held that, because the statute imposed the duty out of concern for public safety, the bank could not avoid its obligations by delegating the duties to an independent contractor. Id. The same would appear to be true in this instance.

Either by the words in the regulations themselves or by reference to the legislative history of the rules, there is no question that these Medicare rules were clearly designed to promote assurance of public safety by participating hospitals. Indeed, in a related context, the United States Supreme Court has recognized this purpose. Fischer v. United States, 529 U.S. 667, 671-72, 120 S.Ct. 1780, 1783-84 (2000). Moreover, the regulations clearly provide that the participating hospitals are to remain “responsible” for the acts of all contractors employed at the hospital. Accordingly, a very strong argument can be made that these Medicare regulations impose a non-delegable duty to provide medical, nursing, surgical, anesthesia, and related services in a safe and effective manner, and that any failure to do so will result in liability to the participating hospital. Mbank, 836 S.W.3d at 153.

  • THE REGULATION ITSELF AS EVIDENTIARY OF THE STANDARD

Administrative regulations established for the protection of persons who bring suit are independently admissible as relevant to the standard of care, even if the regulation does not satisfy the requirements to establish a claim of negligence per se. See, e.g., Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718, 720 (Tex. App. – San Antonio 1995, no writ) (OSHA regulations).

In particular, Medicare regulations have been held to be relevant to whether hospitals have committed malpractice. Brogdon, at 103 F.Supp.2d at 1333. Moreover, in 1998, the Texas Supreme Court expressly recognized that a statute or regulation can serve as a standard of conduct for an existing common-law duty as the basis for imposition of liability under a common-law negligence cause of action. Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998).

  • EXPERT TESTIMONY REGARDING APPLICABILITY OF THE REGULATION AS A STANDARD OF CARE

In Kissinger v. Turner, 727 S.W.2d 750 (Tex. App. – Fort Worth 1987, writ ref’d n.r.e.), the plaintiffs appealed the exclusion of evidence of violation of Medicare/Medicaid regulations. Id. at 756. The appeal was rejected. However, the court pointed out that, had a qualified expert testified that compliance with the regulation was required under the standard of care, the violation of the regulation likely would have been admissible. Id. In fact, if the expert established the regulation as the minimum standard of care, it would be irrelevant as to whether the particular patient was a Medicare or Medicaid patient.

  • CONCERN REGARDING REMOVAL TO FEDERAL COURT

The author has heard concerns expressed that pleading violation of this regulation could give rise to removal to federal court. The concern would appear to be relatively unfounded.

Removal is not appropriate if the only cause of action asserted is clearly a state cause of action, even if a violation of a federal regulation is alleged to be evidentiary of a deviation from the applicable standard of care. Howery, 243 F.3d at 915-17; Sercye-McCollum, 140 F.Supp.2d at 946.

To determine whether removal is appropriate when a federal statute is referenced in the complaint, the courts must first determine whether the case “arises under federal law.” City of Chicago v. Int’l College of Surgeons, 522 U.S. at 163. In making this determination, the courts generally rule that the suit “arises under the law that creates the cause of action.” American Well Works Co., 241 U.S. at 260.

State law claims often incorporate federal standards or require the interpretation of federal law. Howery, 243 F.3d at 917. The Fifth Circuit recently held that a federal question is raised only when resolution of the federal right is necessary to resolve the case. Id.

As discussed above, in Howery, the plaintiff sued under Texas’ DTPA, contending that the defendant’s violation of the federal Fair Credit Reporting Act constituted one DTPA violation. Id. at 918. Since the plaintiff alleged a number of violations by the defendant which gave rise to a state-based DTPA cause of action, it was not necessary for the question under the FCRA to be resolved in the suit. Accordingly, removal was deemed improper. Id. at 918-19.

The same would appear to be true in this instance. Since the Medicare regulations clearly do not give rise to a federal action, it would appear to be difficult for the defendant to plausibly argue that federal jurisdiction is invoked by establishing a duty, under a pure state cause of action, by mere reference to voluntarily-adopted regulations. Howery, 243 F.3d at 918-19.

VI. CONCLUSION

The number of statutes and regulations which might be employed to establish liability are voluminous. By reference to those listed above, perhaps an idea can be gained as to how other statutes and regulations might be similarly employed in the liability context.

Eighteen Texas Medico-Legal Cases Important to Every Physician

Presented to Greater Houston Anesthesiology, P. A., November 13, 1999

Liability:

1. General Statement of Liability:

Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949)

Facts: Patient, a minor, broke his arm, which was set and casted by Dr. X. The patient’s father, on behalf of his son, sued Dr. X, alleging the cast was too tightly bound, resulting in permanent arm paralysis. The trial court directed a verdict in favor of the physician, which was then appealed. Judgment affirmed.

Critical Holding: No patient has a cause of action for malpractice against his physician unless he proves, through a doctor of the same school of practice, both that: (a) the diagnosis or treatment was negligent; and (b) the negligence was a proximate cause of the patient’s injuries.

2. No Guarantee of Cure:

Hood v. Phillips, 544 S.W.2d 160 (Tex. 1976)

Facts: Patient suffered from emphysema, and sought treatment from Dr. X. Dr. X removed one of the patient’s carotid bodies from his neck, in an attempt to: “improve the airflow to the lungs by lessening the spasm of the involuntary muscles in the bronchial tubes.” Dr. X admitted that the procedure was not generally accepted in the medical community, but testified he had done it between 1200 – 1500 times with 85% of the patients experiencing improvement. The trial court only asked the jury whether Dr. X was guilty of gross negligence, which was answered in the negative. The case was remanded for a new trial on ordinary negligence and informed consent.

Critical Holdings:

A. The court upheld that no physician can be held liable as a guarantor that his proposed treatment will be successful.

B. The court upheld as the standard that a physician will be held liable only if he failed to act as a reasonably prudent physician would have under the same or similar circumstances.

C. The court rejected a standard that would absolve a physician if he conforms to what a “respectable minority” of physicians would do.

3. “Medical Judgment Rule”:

Burks v. Meredith, 546 S.W.2d 366 (Tex. Civ. App. – Waco 1976, writ ref’d n.r.e.)

Facts:The patient was shot in the stomach and was taken to Dumas Hospital, where he was seen by Dr. X, a general practitioner who performed some surgery. Because Dr. X had experience with gunshot wounds and with abdominal surgery, he did not feel it necessary to call in a general surgeon. Dr. X proceeded to perform an exploratory laparatomy. During the procedure, Dr. X repaired a colonic perforation he found from the bullet entry wound. The patient was placed on antibiotics, but later developed an obstruction at the surgery site, secondary to surgical adhesions, and was taken back to surgery by Dr. X. During the second surgery, Dr. X reopened the colon and then called in a general surgeon. When freeing the adhesion, the colon tore, causing an extravasation of fecal content. The patient later died of peritonitis. His survivors sued Dr. X, principally under a theory that he should have called in a general surgeon for both procedures. Jury found for Dr. X, which was affirmed on appeal.

Critical Holding:Affirmed. At best, the plaintiffs proved that Dr. X erred in his judgment as to whether he would be able to handle the surgeries. There was no testimony presented that a reasonably prudent general practitioner, with experience in this area, would not have attempted either surgery. A physician ordinarily cannot be held liable for errors of judgment.

4. Res Ipsa Loquitur:

Haddock v. Arnspiger, 793 S.W.2d 948 (Tex. 1990)

Facts:The patient’s colon was perforated during a colonoscopy by Dr. X. The patient pleaded simple negligence and under the doctrine of res ipsa loquitur. The trial court refused to submit the res ipsa loquitur issue, and the jury found in favor of Dr. X on the negligence claim. The patient appealed, and the judgment was affirmed.

Critical Holding:The doctrine of res ipsa loquitur means “the thing speaks for itself.” It allows a plaintiff to prevail on a negligence theory, without any particular proof as to the defendant’s specific negligent conduct. It arises only when: (a) the event would not ordinarily occur in the absence of negligence; and (b) the instrumentality which caused the incident was under the exclusive control of the defendant immediately prior to the injury. However, when article 4590i was passed, in 1977, it limited application of the doctrine in medical malpractice suits only to those instances in which it had previously been applied. Accordingly, the doctrine is only potentially applicable to instances which would be within the knowledge of ordinary laypersons, such as surgery on the wrong part of the body, leaving a foreign object, and sometimes from injury resulting from the use of a mechanical object, such as burning from an x-ray machine. However, where the type of mechanical instrument being used is not within the ordinary knowledge of laypersons, such as the use of a colonoscope, the doctrine will not be applied.

5. DTPA and Doctors:

Sorokolit v. Rhodes, 889 S.W.2d 239 (Tex. 1994)

Facts:The patient went to Dr. X for breast augmentation surgery. Dr. X allegedly showed Ms. Patient and her husband a book with pictures of nude models and told them to pick the breasts they liked. When they did, Dr. X allegedly guaranteed the patient that her breasts would look just like the picture after surgery, and they did not. Mr. and Ms. Patient sued Dr. X under the Texas Deceptive Trade Practices – Consumer Protection Act, contending that he had warranted a particular result. The case was dismissed and the plaintiffs appealed. The judgment was reversed for trial.

Critical Holding:Article 4590i specifically excludes liability for physicians for claims arising in negligence under the DTPA. However, the claim in issue here was not a claim based in negligence, but rather one based on an express warranty. Accordingly, the suit could be brought under the DTPA against the physician.

6. Liability for CRNA Negligence:

Owens v. Litton, No. A14-90-0442-CV, 1991 Tex. App. LEXIS 2656 (Tex. App. – Houston [14th Dist.] 1991)

Facts:Patient underwent surgery at St. Mary’s Hospital in Galveston. Anesthesia was administered by a CRNA (hospital employee), who was supervised by anesthesiologist Dr. X. Dr. Y was the Chief of Anesthesia at St. Mary’s, and the president of the group which had the anesthesia contract at St. Mary’s. Patient suffered a cardiac arrest and subsequently died. His survivors sued and settled with everyone but Dr. Y. The case against Dr. Y was dismissed on summary judgment and the plaintiffs appealed. The case was reversed for trial.

Critical Holding:Whether a supervisor can be held liable for the negligence of someone he is supervising is generally determined by whether the supervisor controlled the details of the employee’s work or had the right to control same. In this case, the contract with Dr. Y’s group gave Dr. Y the right to control exactly how the CRNA carried out his duties. Accordingly, there was a fact issue presented as to whether Dr. Y had the right to control the CRNA’s work and thus could be held liable for his negligence.

Defenses:

1. Unavoidable Accident (Complication):

Wisenbarger v. Gonzales Warm Springs Rehabilitation Hosp., Inc., 789 S.W.2d 688 (Tex. App. – Corpus Christi 1990, writ denied)

Facts:The patient, at age 74, was thrown from his motorcycle and rendered a paraplegic. Post-surgery, he was transferred to Gonzales Warm Springs Rehabilitation Hospital for recuperative care and paraplegic training. While there, a previously existing decubitus ulcer deteriorated, ultimately exposing his spinal cord and requiring a secondary closure. The patient sued the facility for negligence. The facility plead that the deterioration of the ulcer was an “unavoidable accident,” a defensive theory historically allowed when there is evidence an event, like an automobile accident, was caused by some force beyond the control of either the plaintiff or the defendant, such as ice on the roadway. In this case, the facility contended that the deterioration of the decubitus ulcer was caused by the patient’s advanced age, his paraplegic condition, and the nature and location of the original injury. The trial court submitted the negligence/proximate cause issue to the jury with the following instruction: “An occurrence may be an unavoidable accident, that is, an event not proximately caused by the negligence of any party to it.” The jury found in favor of the facility, and the patient appealed. The judgment was affirmed.

Critical Holding:If there is evidence that the injury was caused by some condition of nature, such as infection, etc., which was not related to the defendant’s conduct, the “unavoidable accident” defense can apply in a medical malpractice case. It is somewhat confusing as worded, and probably should be referred to as an “unavoidable complication,” rather than an “unavoidable accident.”

2. Limitations:

Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984)

Facts:Mr. and Ms. Patient gave birth to a child with Duchenne muscular dystrophy. Several years later, Ms. Patient became pregnant again. Their Ob/Gyn, Dr. X, advised the Nelsons that they were no more likely to give birth to another child with Duchenne muscular dystrophy than a family without their prior history. They proceeded with the delivery. Three years after birth, the child developed notable neurologic problems and was diagnosed with Duchenne muscular dystrophy. The Nelsons sued Dr. X for negligence. The case was dismissed because it was not brought within two years of the medical treatment in issue. Reversed for trial.

Critical Holding:The “absolute” two year limitation period of article 4590i (actually a materially identical prior statute), is unconstitutional as applied to the extent it cuts off a patient’s cause of action before the plaintiff could reasonably have discovered same. The Patients could not possibly have discovered their son’s Duchenne muscular dystrophy within two years of Dr. X’s alleged negligence, and therefore the limitations period is unconstitutional as applied to their claim.

3. Limitations as to Minors’ Claims:

Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995)

Facts:When the minor patient was 15 years old, Dr. X operated on his right leg, inserting metal pins in the femur. Later, it was determined that one of the pins was protruding into the right hip joint. The patient turned 18 on December 16, 1999, and underwent a total hip replacement a few years later. Eighteen months after he turned 18, the patient sued Dr. X. The case was dismissed on the basis of the limitations period of article 4590i, which stated that minors’ claims must be filed within two years of the treatment in issue, excepting only that minors under the age of 12 must file by their 14th birthday. Case dismissed on summary judgment – remanded for trial by the Supreme Court of Texas.

Critical Holding:To the extent article 4590i requires a minor, who suffers under a legal disability, to file a claim before he attains the age of majority, the statute is an unconstitutional deprivation of the minor’s access to the courts. Accordingly, the minor has two years from his 18th birthday to file suit.

4. Patient Contributory Negligence:

Elbaor v. Smith, 845 S.W.2d 240 (Tex. 1992)

Facts:The patient’s left ankle was very seriously injured in an automobile accident. After initial surgical treatment, she was transferred to the care of Dr. X, at Arlington Community Hospital [ACH]. Ultimately, after severe infection was encountered, the patient’s ankle had to be fused, resulting in permanent disability. There was evidence that the patient’s ankle was not infected when she arrived at ACH. There was also evidence that the patient refused to take prophylactic antibiotics at ACH, and that the antibiotics probably would have prevented the infection. The jury found in favor of the plaintiff. However, the trial court refused to submit the issue of the patient’s contributory negligence, and Dr. X appealed. Reversed for retrial.

Critical Holding:When there is expert evidence that the plaintiff’s own conduct fell below the standard of a reasonably prudent person under the same or similar circumstances, and that conduct contributed to the injury in issue, it is error to refuse to submit the plaintiff’s contributory negligence. However, note the distinction in Sendejar, below, and note that the trial court also refused to submit Ms. Smith’s contributory negligence in smoking. The Texas Supreme Court declined to address whether this pre-medical treatment conduct by the patient could constitute contributory negligence.

Sendejar v. Alice Physicians & Surgeons Hosp., Inc., 555 S.W.2d 879 (Tex. Civ. App. – Tyler 1977, writ ref’d n.r.e.)

Facts:One Saturday evening, the patient, Jr., a 20 year old male, ran his vehicle off the road at a high rate of speed after becoming drunk. He was taken by ambulance to the hospital. Because of his intoxication, the Emergency Department physician, Dr. X, could only perform a limited examination. Plain film x-rays of the spine were negative, and the patient had no complaints of back pain. He was admitted under the service of his family physician, Dr. Y. Dr. Y did not see the patient over the weekend. On Sunday evening, the nurses noted the patient was paraplegic. He was later transferred and determined to be a permanent paraplegic. The jury found in favor of the defendants, and also found that the patient’s negligence in driving while intoxicated was the sole cause of his paraplegia. The plaintiff appealed, contending that his pre-treatment conduct could not be contributory negligence to the medical malpractice cause of action as a matter of law. Judgment affirmed, but only because the finding of contributory negligence was moot, in light of the findings in the defendants’ favor as to their negligence.

Critical Holding:In order for the patient’s conduct to be contributory negligence, “it must have been an active and efficient contributing cause of the injury; it must have been simultaneous and co-operating with the alleged fault of the defendant, must have entered into the creation of the cause of action, and must have been an element in the transaction which constituted it.” The patient’s negligence in causing the accident which brought him to the hospital cannot be determined with the defendants’ medical negligence, perhaps to bar the plaintiff’s recovery. This holding is consistent with the common law “plaintiff as an eggshell” theory; i.e., that a negligent tortfeasor takes his victim as he finds him.

Query: The Sendejar case preceded modern Texas comparative responsibility law, in which any conduct on the part of the plaintiff, which violates any standard and that contributes in any way to the injury in issue, must be submitted to the jury. Suppose a patient expires of intra-operative respiratory problems secondary to years of voluntary smoking, but the family sues the anesthesiologist for failure to properly resuscitate. Should the anesthesiologist be able to plead and prove that the decedent’s own negligence was a cause of his death?

Expert Testimony:

1. Standards for Expert Testimony:

Broders v. Heise, 924 S.W.2d 148 (Tex. 1996)

Facts:The patient had been drinking and was brutally beaten by an unknown assailant. She was found unconscious on the sidewalk and transported to the hospital. At the hospital, there was no evidence of significant head trauma. A head CT was negative. The patient was released in relatively good condition, about 16 hours after arrival. Around five hours later, she was returned to the hospital. A repeat head CT, interpreted by a neurosurgeon, revealed fractures, with both bleeding and swelling of the brain. Mannitol was administered but the patient quickly deteriorated and expired. The neurosurgeon testified for the defense that the patient had suffered a diffuse mechanical disruption to the cerebral cortex, the cerebellum, and the brain stem, which resulted in general swelling of the brain tissues. The condition was untreatable and inoperable, and any efforts to control the swelling medically would not likely have been successful. The plaintiffs offered the testimony of an Emergency Department physician, who attempted to testify that earlier treatment would likely have saved the patient’s life. The testimony was refused by the trial court, and the jury returned a verdict in the physician’s favor. The plaintiffs appealed, but the judgment was affirmed.

Critical Holding:The fact that a witness is a licensed medical doctor does not give him the right to offer opinions in all medical subject areas. An emergency room physician conceivably might be able to testify in this area, but the plaintiffs would first have to establish that he was sufficiently qualified in that particular field to be able to offer the testimony.

Ponder v. Texarkana Memorial Hospital, Inc., 840 S.W.2d 476 (Tex. App. – Houston [14th Dist.] 1991, writ denied)

Facts:Patient was born at Texarkana Memorial Hospital, to a gestationally-diabetic mother. He was later determined to have brain damage, and the plaintiffs contended it was caused by both low calcium and low blood sugar levels during the first 48 hours of life, as well as dilantin toxicity. The plaintiffs offered the testimony of Dr. Z, who had masters degrees in both physiology and biology. Dr. Z had a doctorate in neuroscience, and had taught on the faculty at Baylor College of Medicine in research, neuroscience, neurology, and sensory neurophysiology. Dr. Z was offered to testify as to the cause of Steven’s brain damage, however, the trial court excluded the testimony on the basis that Dr. Z was not a licensed medical doctor. Partial directed verdicts were granted, and the jury returned verdicts in the defendants’ favor on the remaining issues. The plaintiffs appealed, and the case was reversed for retrial.

Critical Holding:Dr. Z was properly qualified to render opinions on causation of brain injuries. He taught neurophysiology to medical students, and it is implausible to suggest he is unqualified to address the issues for a lay jury. It is not necessary that he be licensed to practice medicine.

2. Physician Can Set Own (Negative) Standards:

Allen v. Roark, 625 S.W.2d 411 (Tex. App. – Fort Worth 1981), aff’d in part and rev’d in part, 633 S.W.2d 804 (Tex. 1982)

Facts:The patient was delivered by forceps in a frank breech presentation by Dr. X and Dr. Y. The child’s skull was fractured by the forceps delivery. The parents sued for the child’s pain and suffering. At trial, the plaintiffs presented no expert testimony. However, Dr. X testified that, if a fracture was presumed to exist as a result of the procedure, the standard of care would require that the parents be advised so that the child’s skull could be evaluated. The juCir.ound in favor of the plaintiffs.

Critical Holding:Dr. X’s testimony was sufficient to create a fact issue as to his negligence. Independent expert testimony was unnecessary.

Damages:

1. Constitutionality of Article 4590i Damage Caps:

Lucas v. United States, 757 S.W.2d 687 (Tex. 1988)

Facts:The patient, fourteen months old, developed a swollen neck and fever after a family outing. He was taken to the hospital, where the ED physician determined the child had a cyst in his thyroglossal duct, and ordered an injection of 600,000 units of antibiotics. Unfortunately, the nurse apparently administered the antibiotic directly into the child’s artery, resulting in permanent paraplegia. The court found in favor of the plaintiffs, and awarded damages of several million dollars. The defendants appealed, contending that the liability caps of article 4590i prevented them from being held liable in excess of $500,000, adjusted by changes in the Consumer Price Index since 1977.

Critical Holding:The damage caps under article 4590i are in violation of the “Open Courts” provision of the Texas Constitution. Prior to passage of article 4590i, plaintiffs had a well-recognized common law cause of action for injuries sustained as a result of physicians’ negligence. For a statute that would purport to cut off or restrict such a common law right to survive constitutional scrutiny, the act of the legislature in doing so must not be unreasonable or arbitrary. In other words, there must be shown somewhere in the legislative history that there is a valid correlation between the goal sought to be obtained by the statute and the restriction provided. In article 4590i’s legislative history, there is no evidence that limiting damages in this fashion would have an effect on the availability of, or the rates charged for, medical malpractice insurance. Thus, the statute was both unreasonable and arbitrary, and accordingly must be stricken under the Texas Constitution. “We understand the legislature’s concern in attempting to resolve the health care problems it perceived during the middle of the 1970’s. Nevertheless, we agree with the statement by the Supreme Court of New Hampshire: ‘It is simply unfair and unreasonable to impose the burden of supporting the medical care industry solely upon those persons who are most severely injured and therefore most in need of compensation.”

Rose v. Doctors Hosp., 801 S.W.2d 841 (Tex. 1990)

Facts:The patient died at Doctors Hospital. His wife and parents brought a wrongful death suit against the hospital, alleging that Rose died as a result of the negligent administration of a fatal dose of morphine. The jury awarded several million dollars to the plaintiffs. The hospital appealed, contending that the judgment violated the damage cap of article 4590i. The judgment was reduced to the cap and otherwise affirmed.

Critical Holding:This case is different from Lucas. In the Lucas case, it was the injured plaintiff who was bringing a cause of action for his own injuries under the common law. However, under the common law, once the patient expires, all causes of action expire with him. Under current statutory law, the survivors can now continue with the decedent’s cause of action in this circumstance, and can also bring their own cause of action for wrongful death. However, these are statutory causes of action. The Texas Constitution’s Open Courts provision only affects well-recognized common law causes of action. Since the survival and wrongful death actions are purely creatures of statute, the legislature is perfectly free to amend the remedies afforded under same by further statutory enactment.

Unanswered Questions: Under Rose, two defendants were found liable, with joint and several liability. Although not reflected in the opinion, it appears from further research that a joint and several judgment was entered against both defendants for the equivalent of two caps. This would appear to violate the cap, which provides that: “In an action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for damages of the physician or health care provider shall be limited to an amount not to exceed $500,000.00.”

Also unaddressed in the opinion is whether prejudgment interest or punitive damages can be added on to the cap. Again, though, further research indicates that the judgments in Rose included prejudgment interest, although that would appear to violate the cap language as well. This question should be answered by the Texas Supreme Court in a case scheduled for argument on November 16, 1999, styled: Horizon /CMS Healthcare Corp. v. Auld, 985 S.W.2d 216 (Tex. App. – Fort Worth 1999, writ granted).

Counter-Claims:

Martin v. Trevino, 578 S.W.2d 763 (Tex. Civ. App. – Corpus Christi 1978, writ ref’d n.r.e.)

Facts:The patient, acting through her lawyer, attorney Y, filed suit against the patient’s physician, Dr. X, alleging malpractice. Dr. X filed a counter-claim against the patient and attorney Y, contending the suit was frivolous and the plaintiff and her lawyer ought to be held liable for attorneys’ fees and damages. The patient later dismissed her claim against Dr. X voluntarily. Dr. X amended his counter-suit to raise causes of action for negligence, malicious prosecution, abuse of process, prima facie tort, and breach of the Texas Code of Professional Responsibility as to the lawyers. The patient and attorney Y moved for summary judgment, which was granted. Dr. X appealed, but the judgment was affirmed.

Critical Holding:Texas law does not support a counter-claim against the plaintiff or her attorneys under any theory asserted. The sole remedies for frivolous suits must be found in other applicable statutes or rules, not under the common law.

Detenbeck v. Koester, 886 S.W.2d 477 (Tex. App. – Houston [1st Dist.] 1994, no writ)

Facts:Patient, acting through her attorney, filed suit for malpractice against her physician, Dr. X. Dr. X contended that patient was motivated to file the suit solely because of mounting medical bills, and solely to attempt to extort a settlement from Dr. X’s liability insurance carrier. Discovery somehow revealed that patient’s first lawyer had the case reviewed by an orthopedic surgeon, who concluded there was no liability. That lawyer withdrew and attorney Y took over the case, filing suit just before limitations expired. The case languished for seven years, at which time attorney Y allegedly started threatening to try the case, solely to coerce a settlement. Dr. X resisted. Two years later, the patient and attorney Y elected to dismiss the case voluntarily with prejudice. Dr. X then brought suit against the patient and attorney Y, claiming abuse of process. The case was dismissed, and the judgment was affirmed.

Critical Holding:The holding in Martin v. Trevino continues to be good law. Even if Dr. X can prove that the case was filed without probable cause and with malicious intent of coercing a settlement, no cause of action is created for abuse of process. The physician’s sole means of recourse remains under the Texas Civil Practices and Remedies Code and the Texas Rules of Civil Procedure.

Mediation Foul: New Rules for the Rulemakers

By: Timothy D. Riley

As with most trial lawyers, over the past few years a substantial part of my practice has been devoted to participation in mediations, some voluntary and some far less voluntary. For the most part, the mediation process has proven successful, as well as being relatively enjoyable and non-contentious.

Likewise, a good number of the mediators I have been exposed to have been professional and sensitive to the concerns of the clients and the lawyers. From that group, over the years I have developed a list of “preferred” mediators, whom I suggest to opposing counsel or the courts when the issue arises. While success in achieving settlement is my main criteria for placing a mediator on my list, a criteria of almost equal importance in my mind is a mediator who will make my client feel comfortable and who will respect the relationship between my client and me.

As mediations have become more and more common, they have become, unfortunately, increasingly formulaic. I do not blame the mediators alone for this devolution in the process. Instead of going into mediations as a process to bring the parties to an understanding of the position of the opponent and ultimately resolution and closure, the mediators and the advocates all more and more seem to come to mediations prepared to do nothing more than enter into a marketplace haggling event with a third party facilitator. Coming to a monetary settlement before the late evening hours seems to be the almost exclusive goal of everyone involved.

Mediation as a process has no formal statutory rules, other than a strong rule of confidentiality. Because of the breadth of the confidentiality protection, there can be no civil liability for any verbal conduct during a mediation, nor does it appear that an attorney can be subjected to disciplinary proceedings for anything that might be said or done during the procedure. As a result of the combination of the protected atmosphere and the parties’ and mediator’s overwhelming motivation to move the parties toward a monetary resolution as quickly as possible, I have seen a willingness of some mediators, co-defense counsel, and various other representatives to make what would otherwise be highly inappropriate and arguably tortious comments directly to the parties.

For example, I have had otherwise ethical lawyers persuade mediators to call my insurance representative out of our session room to try to persuade the representative why my advice was wrong. I have seen mediators pull various clients aside and tell them that they need independent counsel. I have seen mediators, other lawyers, and insurance representatives for other parties attempt to provide legal advice to my client or his insurance carrier.

To put pressure on the insurer, I have too often heard mediators attempt to drive a wedge between the insurer and its insured or the lawyer and his client. In doing so, I have noticed that the level of knowledge held by mediators about insurance law and the attorney-client relationship is often appalling antiquated.

Mediation should be a time at which the parties and their lawyers, insurance representatives, and an objective third party mediator sit down to see whether a suit can be resolved peaceably, amicably, and professionally. The mediation process was statutorily designed to be uniquely non-adversarial and non-threatening to the parties. The parties should reason together, to try to reach a justiciable resolution of the case.

Each of the parties in a mediation has a role. It is counsel’s role to represent his or her client diligently and zealously within the bounds of the law. That includes protecting the client from undue pressure, embarrassment, and unrepresented contact by one with opposing interests.

By statute, the mediator’s role is solely to encourage and assist the parties in reaching a settlement of their dispute. It is not the mediator’s role to provide legal advice or assistance to any of the parties at the mediation, nor is it appropriate to do so. Moreover, it is inappropriate, unprofessional, and arguably tortious (were mediation not a privileged event), for a mediator to interfere in the relationship between the attorney and his client, or between an insurer and its insured.

Each mediator has a set of rules by which his or her mediations will be conducted. The purpose of the mediator setting out these rules is so that the parties can know the guidelines by which they are expected to conduct themselves during the mediation. By knowing the rules, the parties are reasonably expected not to do something inadvertently that is inconsistent with the mediator’s role and goal.

The mediator’s rules tend to be quite reasonable and are usually respected by counsel and the parties. From counsel’s perspective, there are certain other common-sense rules that should be followed if counsel is to be able to carry out his or her role successfully as an attorney for the client as required by law. Those rules also need to be articulated so that the ethical guidelines of counsel in consenting to and continuing in a mediation are also well understood and not inadvertently broken by the mediator or others in a fashion that interferes with the attorney-client relationship.

With that, I have developed the following rules for my client’s and my consenting to and continuing to participate in a mediation:

Riley’s Rules for Counsel Mediation Participation

1. During the entire mediation process, I will remain as my client’s lawyer, advocate, protector, and advisor. I am the only person there exclusively to protect my client’s interests, and my client is counting on me to do my job. My client and I have a time-honored, valued, and constitutionally-protected attorney-client trust relationship, which must be respected. Accordingly, I will not tolerate the mediator or anyone else attempting to interfere, directly or indirectly, with the attorney-client relationship I have with my client. Therefore, under no circumstances will I tolerate:

a) the mediator speaking to my client about any aspect of the case or the mediation outside of my presence;

b) my client being addressed separately by counsel representing other parties, or directly by another party to the suit or claim, or by an insurance or other representative of another party;

c) any comments by the mediator or others to my client with regard to how I am carrying out my job as my client’s lawyer;

d) any comments by the mediator or others as to whether my client should have separate, different, or additional counsel; or

e) the mediator soliciting my client for business during the mediation, directly or indirectly.

2. The mediator is free to give his or her opinions as to legal issues. However, under no circumstances will I tolerate the mediator providing legal advice to my client.

3. If my client is insured and is represented by an insurance representative at the mediation, I will not allow the mediator to attempt to interfere in the relationship between the insurer and its insured.

4. If the mediation involves my representing an insured defendant in a case in which I was retained by the carrier, it is the interim position of the American Law Institute that I may also have an attorney-client relationship with the insurer, although it is subordinated to my attorney-client relationship with the insured. Accordingly, since the insurance representative may be my client, all the rules with respect to “my client ” above will apply with equal force to any insurance representative of my client present at the mediation.

5. Mediation is not a trial or an inquisition. Thus, I will not allow the mediator or opposing counsel to embarrass or potentially do damage to my client’s case by asking questions of the client in the opening session, if the client has made it known they prefer to speak solely through counsel. Neither will I allow the mediator or anyone else to cross-examine my client in the opening session or during any closed session.

6. During the closed sessions, unless invited by me, the mediator will not be allowed to ask my client directly to make an increased offer, if a defendant, or to reduce his or her demand, if a plaintiff. The client deserves to be insulated by counsel from being unduly pressured by others into changing his or her settlement position. The mediator can certainly explain directly to the client the mediator’s rationale as to why the offer should be increased or the demand reduced, and attempt to persuade the client that a prior position should be reconsidered. However, insofar as making a response, that will come solely through me, as my client’s lawyer, after I have had a chance to discuss the best response privately with my client outside the mediator’s presence.

7. Separate meetings between or among the mediator and counsel outside the clients’ presence understandably tend to make clients anxious and suspicious. Accordingly, they should be kept to the bare minimum necessary to achieve the purpose.

8. My client and I are deserving of (and have paid for), the exclusive time and attention of the mediator, just as the mediator is entitled to same from the participants. Thus, I will not agree to participate in a mediation in which the mediator is attempting to conduct another mediation at the same time.

9. The time of the parties, the insurance representatives, and the lawyers is equally valuable as that of the mediator. Accordingly, if I should learn that the mediator has been spending significant lengths of time attending to matters other than the mediation currently in session, my client and I will leave.

10. If my client has considered all aspects of proceeding to trial and has decided that he or she does not want to settle the case, that decision will be respected by the mediator and by me.