Texas requires an expert report in a health care liability claim. Under Chapter 74 a claimant shall provide the other side expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.
So what is a health care liability claim, well according to the Texas Supreme Court, an assault is a health care liability claim which requires the filing of an expert report defining the action and breach of health care. (Texas West Oaks Hospital, LP v. Williams, 371 S.W. 3d 171) A slip and fall on wax in the Lobby of the hospital by a person who was leaving after visiting a patient is a health care liability claim according to the 14th Court of Appeals in Ross v. St. Luke’s Episcopal Hospital. Both of those cases determined that an expert report detailing the violation of standard of health care standards was required. Both cases were lost due to the lack of an expert report.
I can see it now on Saturday Night Live, a surgeon is giving his expert opinion on the health benefits of buffing wax in a clockwise vs. counter-wise motion. I’m sure doctors have nothing better to do than to be sued and deposed over how the cleaning staff applied the wax to the lobby floor. Apparently the Supreme Court values doctors’ time and education at the level of floor cleaning because according to them that is a health care issue. As it currently stands, it appears that the only people who are exempt from this insanity are the people who are actually working in the facility (patients and even visitors of patients have been determined to be seeking the health benefits of getting assaulted or learning the health benefits of improper wax application). I believe the staff, employees and doctors of a hospital or medical facility would not be subject to this insanity if they were injured in a slip and fall as they would not be claimants under the construction of the Act.
So what is the solution (other than to have the legislature inform the Supreme Court that they have lost their minds if they think a slip and fall case is a health care claim)? Who would even be qualified to present an expert report that would meet the requirements under Chapter 74 (Health Care Liability Claim)? I don’t want my doctors spending their time on the health benefits of wax, coefficient of friction of various waxing compounds and how that impacts the health care of anyone. I can see a situation where a person injured by a simple slip and fall or other basic negligence act in a medical facility will have to sue every medical provider under the reasoning of the Court. If applying wax to the floor is a health care issue then who is responsible for the decision as to the medical standard of care for applying the wax, your doctor, the nurse, the doctor who was a consultant or gave a second opinion and how can you possibly even meet the standard to provide a report if no one is qualified to provide one.
Here is a solution that seems to have eluded our Texas Supreme Court – common sense. A slip and fall is a slip and fall not a medical malpractice case which requires doctors to be sued and waste their time responding to a lawsuit because of the actions of a cleaning service and interpretation by the Texas Supreme Court that it is a health care claim. Since the Court has gone down this path, it appears the only hope for common sense will be from the legislature to explain that claimant means a person who was harmed while receiving health care, not for walking on the floor. Hopefully this will happen before more cases are dismissed for not providing expert reports which are impossible to obtain, before doctors are sued and their time wasted due to a ruling which everyone (other than the Supreme Court and insurance companies for the hospitals) understand is crazy.