Marks v. St. Luke’s Episcopal Hospital, No. 07-0783 (Aug. 28, 2009) (DocketDB)

Is an injury caused by a defective hospital bed a “health care liability” claim subject the expert-report requirement imposed by Texas’ recent medical-malpractice reforms?

The Justices on the Texas Supreme Court divided 5-4 on that question this morning, issuing a total of five separate opinions. The answer? “No.” (( Court watchers might note that Justice Brister, who has announced his departure next week, was among the 5 Justices in the majority. If this opinion had lingered a little longer, it would have been a 4-4 deadlock awaiting a new Justice to decide. ))

If this fact pattern seems familiar, it should. In 2006, the Texas Supreme Court considered this same case:

After full briefing, we granted the Hospital’s petition. Rather than parse through Marks’s claims, however, we vacated the court of appeal’s judgment without reference to the merits and remanded for the court of appeals to consider the nature of these claims in light of Diversicare. St. Luke’s Episcopal Hosp. v. Marks, 193 S.W.3d 575 (Tex. 2006) (per curiam). Following our remand, a divided court of appeals affirmed the trial court’s dismissal for want of a timely expert report, concluding that Marks had asserted only health care liability claims. 229 S.W.3d at 402. One justice dissented in part, urging that Marks’s fourth claim concerning the defective footboard was a premises-liability claim rather than a health care liability claim under the Medical Liability and Insurance Improvement Act. Id. at 403 (Jennings, J., dissenting in part).

Justice Medina wrote the majority opinion. Its conclusion was that the medical-malpractice reform statute was meant to affect malpractice, not just any accident that happened to occur at a medical facility:

By comparison, neither the statute nor the historical background suggests that physicians or health care providers were similarly challenged when obtaining commercial general liability insurance coverage for ordinary, non-medical accidents on their premises. The Legislature was responding only to a medical-malpractice insurance crisis, and medical malpractice insurance generally does not cover premises liability claims. . . .

All patient injuries in a health care setting, regardless of cause, may be said to implicate patient safety in the broader sense, but not all patient injuries involve malpractice. Given the statute’s objective and the Legislature’s express concern, the Legislature evidently did not intend to define safety as broadly as the Hospital proposes.

The Chief Justice joined that opinion and also wrote an interesting separate concurrence, in which he noted that he had disagreed with this position in Diversicare but was joining today’s opinion out of respect for stare decisis (although he did not use that term).

The principal dissent, which had four votes, was written by Justice Johnson:

In order to preclude Marks’s suit from being subject to the MLIIA, the Court must, and does, reach three conclusions with which I disagree. The first is that one injury based on a single set of facts can, by the manner in which pleadings are formulated, be both a health care liability claim and a non-health care liability claim. The second is that a hospital bed furnished to a post-surgery hospital inpatient is not an inseparable part of health care provided by the hospital. The third is that accepted standards of hospital safety do not include providing safe hospital beds to patients confined in the hospital.

Justice Hecht and Justice Wainwright each wrote separate dissents as well.

This was the most divisive case on today’s fiscal-year-end order list. More summaries are on the way.