Verdicts

Medical Care Does Not Include Alleged Assault and Humiliation

A trial court erred in dismissing this claim based on assault and intentional infliction of emotional distress for lack of a medical expert report, because the claims did not involve the delivery of medical care. Drewery v. Adventist Health System/Texas Inc., 2011 Tex. App. LEXIS 3895 (5/20/11).

The plaintiff, who underwent a tonsillectomy at the defendant hospital, was also employed by the hospital as a surgical technician. While he was anesthetized for his operation, two registered nurses with whom he worked allegedly painted his fingernails and toenails with nail polish, wrote on the bottoms of his feet “Barb was here” and “Kris was here,” and wrapped his thumb in tape (they did this, he claimed, because he sucks his thumb). When he returned to work, the two nurses and others allegedly teased the plaintiff and made false allegations concerning his sexual orientation, creating what he described as a hostile work environment. The hospital allegedly ignored his complaints about the situation and did nothing to discipline the nurses.

The plaintiff brought suit against the two nurses for assault and for intentional infliction of emotional distress, and against the hospital on a basis of vicarious liability. He claimed that he suffered nausea, sleep loss and appetite loss because the nurses' actions humiliated him and left him wondering if anything else untoward had happened while he was under anesthesia. The original complaint contained an allegation that by painting the plaintiff's fingernails, the defendants could have prevented his health care providers from recognizing if his coloration had changed (cyanosis), which would have indicated medical distress. His amended complaint deleted this language.

Texas's District Court of Bell County, 169th Judicial District, dismissed the claims with prejudice because the plaintiff did not file the expert report required of medical liability claims under Texas law (Tex. Civ. Prac. & Rem. Code Ann. ' 74.351).

The question on appeal to the Court of Appeals of Texas, Third District, Austin, was whether the plaintiff's claims were health care liability claims, and thus subject to the expert-report requirement. A health care liability claim is defined by Tex. Civ. Prac. & Rem. Code Ann. ' 74.001(a)(13) as a claim “against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant.” The Texas Supreme Court explained in Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658 (Tex. 2010), that under definition in ' 74.001(a)(13), a health care liability claims consists of three elements: 1) that a physician or other health care provider is the defendant; 2) that the basis of the suit is the patient's treatment, lack of treatment, or some other departure from accepted standards of medical care or health care or safety; and 3) that the defendant's act, omission, or departure from the standard of care proximately cause the patient's injury or death.

To bolster their assertion that the plaintiff's claim was one concerning the delivery of health care, the defendants relied heavily on the allegation contained in plaintiff's original complaint ' that the painting of the plaintiff's fingernails while he was undergoing medical treatment could have prevented his health care providers from recognizing that he was in medical distress while sedated. The appellate court pointed out, however, that an amended complaint supersedes any previous complaints so that the original allegations are no longer part of the pleading on record. See Tex. R. Civ. P. 65. That said, the court concluded that the plaintiff's claims ' both as originally pleaded and as later amended ' were not health care liability claims. Specifically, neither of his causes of action: 1) required expert testimony; 2) implicated any community standards of care; 3) involved hiring, training, supervision, or any other independent act on the part of the hospital; or 4) related to a medical or health care procedure. “Indeed,” stated the court, “many of the factual allegations asserted in his petition did not even take place while he was a patient under the defendants' care, but occurred after the fact in the context of workplace discrimination. Even those allegations that concern the conduct of health care providers before and during the surgery, however, do not address any negligent acts or omissions related to his care.” Therefore, the plaintiff's claims did not satisfy the second prong of the Marks test because they did not relate to his treatment or any deviation from the standards of medical care.

In addition, the circumstances required by the third element of the Marks test were absent. The injuries complained of were not proximately caused by the defendants' medical acts, omissions or deviations from the standard of care. As the court explained, the plaintiff “did not allege that he was physically harmed by the painting of his fingernails, nor that he actually developed cyanosis, which would have been detected but for the defendants' conduct. Nor has he pleaded any emotional or psychological injury that he suffered as a result of the provision of medical treatment, lack of treatment, or other departure from accepted standards of medical or health care or safety (e.g., that he suffered emotional distress from knowing he could have developed cyanosis and it might not have been discovered). On the contrary, [the plaintiff] is not attempting to recover for the medical negligence of any defendant; the only damages he has sought and the only damages that are supported by his pleadings relate to the intentional torts that he has alleged.” These were that he was humiliated by the intentional physical violation of his body by his co-workers, and that his embarrassment continued due to the teasing he was subjected to in the workplace following the assault.

The appellate court concluded that, as the plaintiff's claims were not based on the health care he received, his suit should not have been dismissed for lack of an expert medical report. The case was therefore remanded to the trial court for further proceedings.

Court Asks Appellate Court to Affirm Sanctions Ruling

The Common Pleas Court of Philadelphia County recommended affirmance on appeal of its March 2010 decision imposing sanctions on an attorney and his firm for submitting a certificate of merit in a medical malpractice action based not on the medical opinion of a qualified physician but on the legal opinion of a doctor/attorney who no longer maintains a license to practice medicine. Fallon v. Hahnemann Hospital University Medivac, 2011 Phila. Ct. Com. Pl. LEXIS 166 (7/7/2011).

The plaintiff brought suit against several of the deceased's health care providers, claiming negligence of various kinds. The cause of action against Hahnemann Medivac, a medical transport service, was soon dismissed. The Hahnemann defendants then filed a motion for sanctions, alleging that plaintiff's counsel had improperly filed a certificate of merit with the court that was based on the opinion of a doctor no longer licensed to practice medicine in Pennsylvania. This is a violation of Pennsylvania's MCare Act (40 P.S. ' 1303.512).

Under Pennsylvania Rules of Civil Procedure (Pa. R. C. P.) 1042.3, medical malpractice plaintiff attorneys must file a certificate of merit with the court attesting to the fact that a qualified medical expert has reviewed the merits of the case and has found there is a reasonable probability that the medical care the plaintiff received did not meet the standard of care that proximately caused the complained-of injuries. In order to be a “qualified medical expert,” the physician must hold an unrestricted medical license and either be in practice or be teaching medicine (or be recently retired from either). 40 P.S. ' 1303.512. The plaintiff attorney obtained a letter from a doctor who has not held a full medical license for 20 years. That doctor is also an attorney, and the letter, marked by its author as confidential attorney work product, primarily expressed a legal opinion that the case against the Hahnemann defendants probably was not meritorious. Plaintiff's attorney based his certificate of merit on the contents of this letter.

The Court of Common Pleas in March 2010 found the plaintiff attorney's certificate of merit was filed in violation of ' 1042.3 because the letter it was based on: 1) did not express a medical expert's opinion but was intended to be confidential attorney work product; 2) offered the opinion that merit was not likely to be found in the case against the Hahnemann defendants; and 3) was written by a doctor not qualified under Pennsylvania law to provide an expert medical opinion for the purposes of a certificate of merit. The court at that time imposed sanctions against the attorney and his firm in accordance with Pa. R. C. P. 1023.4(a)(2)(3), requiring them to pay the Hahnemann defendants' costs and expenses in defending the action. In the present opinion, the court reiterated its reasons for imposing those sanctions, and recommended affirmance on appeal.

Medical Care Does Not Include Alleged Assault and Humiliation

A trial court erred in dismissing this claim based on assault and intentional infliction of emotional distress for lack of a medical expert report, because the claims did not involve the delivery of medical care. Drewery v. Adventist Health System/Texas Inc., 2011 Tex. App. LEXIS 3895 (5/20/11).

The plaintiff, who underwent a tonsillectomy at the defendant hospital, was also employed by the hospital as a surgical technician. While he was anesthetized for his operation, two registered nurses with whom he worked allegedly painted his fingernails and toenails with nail polish, wrote on the bottoms of his feet “Barb was here” and “Kris was here,” and wrapped his thumb in tape (they did this, he claimed, because he sucks his thumb). When he returned to work, the two nurses and others allegedly teased the plaintiff and made false allegations concerning his sexual orientation, creating what he described as a hostile work environment. The hospital allegedly ignored his complaints about the situation and did nothing to discipline the nurses.

The plaintiff brought suit against the two nurses for assault and for intentional infliction of emotional distress, and against the hospital on a basis of vicarious liability. He claimed that he suffered nausea, sleep loss and appetite loss because the nurses' actions humiliated him and left him wondering if anything else untoward had happened while he was under anesthesia. The original complaint contained an allegation that by painting the plaintiff's fingernails, the defendants could have prevented his health care providers from recognizing if his coloration had changed (cyanosis), which would have indicated medical distress. His amended complaint deleted this language.

Texas's District Court of Bell County, 169th Judicial District, dismissed the claims with prejudice because the plaintiff did not file the expert report required of medical liability claims under Texas law (Tex. Civ. Prac. & Rem. Code Ann. ' 74.351).

The question on appeal to the Court of Appeals of Texas, Third District, Austin, was whether the plaintiff's claims were health care liability claims, and thus subject to the expert-report requirement. A health care liability claim is defined by Tex. Civ. Prac. & Rem. Code Ann. ' 74.001(a)(13) as a claim “against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant.” The Texas Supreme Court explained in Marks v. St. Luke's Episcopal Hosp. , 319 S.W.3d 658 (Tex. 2010), that under definition in ' 74.001(a)(13), a health care liability claims consists of three elements: 1) that a physician or other health care provider is the defendant; 2) that the basis of the suit is the patient's treatment, lack of treatment, or some other departure from accepted standards of medical care or health care or safety; and 3) that the defendant's act, omission, or departure from the standard of care proximately cause the patient's injury or death.

To bolster their assertion that the plaintiff's claim was one concerning the delivery of health care, the defendants relied heavily on the allegation contained in plaintiff's original complaint ' that the painting of the plaintiff's fingernails while he was undergoing medical treatment could have prevented his health care providers from recognizing that he was in medical distress while sedated. The appellate court pointed out, however, that an amended complaint supersedes any previous complaints so that the original allegations are no longer part of the pleading on record. See Tex. R. Civ. P. 65. That said, the court concluded that the plaintiff's claims ' both as originally pleaded and as later amended ' were not health care liability claims. Specifically, neither of his causes of action: 1) required expert testimony; 2) implicated any community standards of care; 3) involved hiring, training, supervision, or any other independent act on the part of the hospital; or 4) related to a medical or health care procedure. “Indeed,” stated the court, “many of the factual allegations asserted in his petition did not even take place while he was a patient under the defendants' care, but occurred after the fact in the context of workplace discrimination. Even those allegations that concern the conduct of health care providers before and during the surgery, however, do not address any negligent acts or omissions related to his care.” Therefore, the plaintiff's claims did not satisfy the second prong of the Marks test because they did not relate to his treatment or any deviation from the standards of medical care.

In addition, the circumstances required by the third element of the Marks test were absent. The injuries complained of were not proximately caused by the defendants' medical acts, omissions or deviations from the standard of care. As the court explained, the plaintiff “did not allege that he was physically harmed by the painting of his fingernails, nor that he actually developed cyanosis, which would have been detected but for the defendants' conduct. Nor has he pleaded any emotional or psychological injury that he suffered as a result of the provision of medical treatment, lack of treatment, or other departure from accepted standards of medical or health care or safety (e.g., that he suffered emotional distress from knowing he could have developed cyanosis and it might not have been discovered). On the contrary, [the plaintiff] is not attempting to recover for the medical negligence of any defendant; the only damages he has sought and the only damages that are supported by his pleadings relate to the intentional torts that he has alleged.” These were that he was humiliated by the intentional physical violation of his body by his co-workers, and that his embarrassment continued due to the teasing he was subjected to in the workplace following the assault.

The appellate court concluded that, as the plaintiff's claims were not based on the health care he received, his suit should not have been dismissed for lack of an expert medical report. The case was therefore remanded to the trial court for further proceedings.

Court Asks Appellate Court to Affirm Sanctions Ruling

The Common Pleas Court of Philadelphia County recommended affirmance on appeal of its March 2010 decision imposing sanctions on an attorney and his firm for submitting a certificate of merit in a medical malpractice action based not on the medical opinion of a qualified physician but on the legal opinion of a doctor/attorney who no longer maintains a license to practice medicine. Fallon v. Hahnemann Hospital University Medivac, 2011 Phila. Ct. Com. Pl. LEXIS 166 (7/7/2011).

The plaintiff brought suit against several of the deceased's health care providers, claiming negligence of various kinds. The cause of action against Hahnemann Medivac, a medical transport service, was soon dismissed. The Hahnemann defendants then filed a motion for sanctions, alleging that plaintiff's counsel had improperly filed a certificate of merit with the court that was based on the opinion of a doctor no longer licensed to practice medicine in Pennsylvania. This is a violation of Pennsylvania's MCare Act (40 P.S. ' 1303.512).

Under Pennsylvania Rules of Civil Procedure (Pa. R. C. P.) 1042.3, medical malpractice plaintiff attorneys must file a certificate of merit with the court attesting to the fact that a qualified medical expert has reviewed the merits of the case and has found there is a reasonable probability that the medical care the plaintiff received did not meet the standard of care that proximately caused the complained-of injuries. In order to be a “qualified medical expert,” the physician must hold an unrestricted medical license and either be in practice or be teaching medicine (or be recently retired from either). 40 P.S. ' 1303.512. The plaintiff attorney obtained a letter from a doctor who has not held a full medical license for 20 years. That doctor is also an attorney, and the letter, marked by its author as confidential attorney work product, primarily expressed a legal opinion that the case against the Hahnemann defendants probably was not meritorious. Plaintiff's attorney based his certificate of merit on the contents of this letter.

The Court of Common Pleas in March 2010 found the plaintiff attorney's certificate of merit was filed in violation of ' 1042.3 because the letter it was based on: 1) did not express a medical expert's opinion but was intended to be confidential attorney work product; 2) offered the opinion that merit was not likely to be found in the case against the Hahnemann defendants; and 3) was written by a doctor not qualified under Pennsylvania law to provide an expert medical opinion for the purposes of a certificate of merit. The court at that time imposed sanctions against the attorney and his firm in accordance with Pa. R. C. P. 1023.4(a)(2)(3), requiring them to pay the Hahnemann defendants' costs and expenses in defending the action. In the present opinion, the court reiterated its reasons for imposing those sanctions, and recommended affirmance on appeal.