This is the first of three posts about the Texas Supreme Court’s recent decision in Marks v. St. Luke’s Hospital, No. 07-0783 (DDB).

The Marks decision was the most divided case from the Texas Supreme Court’s 2009 Term — after being the most divided case from its 2008 Term.

The split was 5-4 each time, with the Court reaching an opposite judgment on rehearing. And the lead opinion, both times, was written by the same Justice.

In gathering my thoughts about the case, I realized that they do not fit neatly in a single post. So I am writing three.

• This first post gives the background and discusses whether this grant of a rehearing fits into the Court’s practice (and why I think the criticism it is receiving for granting rehearing in this case may be misplaced).

• The second post tries to pin down the substantive holding of the case (which proves to be elusive).

• The third post is about “zombie opinions,” the opinions of the Texas Supreme Court that still linger as nominally controlling law between the time rehearing is granted and the time a new opinion is issued.

Let’s get started.

Just enough procedural background to follow along with this series of posts

The key legal question in Marks is whether an injury caused by the failure of a hospital bed is covered within the scope of Texas’s 2003 medical-malpractice reforms. If so, then Marks loses because his attorney did not follow the gauntlet of procedures those statutes set up (such as the strict requirements for early expert-witness reports that have led to so many appellate cases the past few years).

If a close question is one about which reasonable jurists can disagree, Marks is about as close as it gets.

The district court determined that, yes, this was a health-care liability claim and thus required a timely expert report. It dismissed the claim for failure to file that report.

Marks appealed, and in 2005 the First Court of Appeals in Houston reversed, concluding that this was not a health-care liability claim. (If you want to see this opinion or the later opinions, they are linked from the DocketDB page for this case.)

Meanwhile, the Texas Supreme Court was considering a similar question in Diversicare General Partner, Inc. v. Rubio, No. 02-0849 (DDB). The Texas Supreme Court issued its Diversicare opinions in October 2005. The Court was split 6-3 (and 5-4 on some issues), concluding that a patient’s claim for negligence when a nursing home failed to prevent sexual assault at the hands of another patient was barred by a two-year statute of limitations applicable to health-care liability claims.

The Diversicare majority explained that these claims were covered “health care” claims “because the supervision of Rubio and the patient who assaulted her and the protection of Rubio are inseparable from the health care and nursing services provided to her.”

The Marks case soon came before the Texas Supreme Court in the wake of that decision, and in 2006 the Court issued an order “[w]ithout reference to the merits” to vacate and remand the case to the court of appeals for further consideration “in light of our decision in Diversicare“. St. Luke’s Hospital v. Marks, No. 05-0693 (DDB).

Having received the case back, the First Court reconsidered the merits and this time decided — split 2-1 (majority – dissent) — that Marks’s claims were indeed health-care liability claims and must be dismissed.

This petition, decision, and rehearing

This time, Marks was the one filing a petition for review with the Texas Supreme Court. The Court granted review and set the case for oral argument. In its August 2009 end-of-term opinions, the Texas Supreme Court ruled 5-4 that the court of appeals should be reversed because the claims could be characterized as “premises liability” claims rather than claims truly integral to health care.

Subsequently, St. Luke’s filed a motion for rehearing. Roughly six months later, the Texas Supreme Court formally granted that motion for rehearing but did not yet withdraw its prior opinion. (( More about the metaphysical distinction here in my third post, about “zombie opinions.” ))

In August 2010 (once again, with the year-end orders), the Texas Supreme Court issued its new set of opinions in Marks and withdrew its previous opinions. This time, the Court ruled 5-4 that the judgment of the court of appeals should be affirmed and Marks’s claims dismissed.

• Justice Medina wrote the opinion of the Court. He was joined by Justice Hecht, and only in part by Justices Johnson, Wainwright, and Willett. (( Make a note of this “joined in part” distinction. In most cases, those partial joins don’t affect the outcome. In this case, as I’ll discuss more in the second post, these partial joins may undermine the precedential value of the case. ))

• Justice Wainwright also wrote a concurring opinion. Justice Johnson, too, wrote a concurring opinion, joined in full by Justice Willett and in part by Justices Hecht and Wainwright.

• Chief Justice Jefferson wrote a concurring and dissenting opinion, joined by Justice Green, Justice Guzman, and Justice Lehrmann.

• And Justice Guzman also wrote a concurring and dissenting opinion.

If you’re just looking at the judgment (“reverse or affirm?”), that’s a 5-4 split in favor of affirming this judgment of dismissal.

If you’re looking at the holding (“what rule of law applies here?”), the headcount is different. The dissent has 4 votes for its framing of the law. But the other votes are divided between Justice Medina’s view and Justice Johnson’s very different view.

More about this in the second post, but Marks may well be a decision that has a judgment but actually has no holding.

Part 1: The fuss about rehearing

With all that background out of the way, let’s turn to the first topic.

The Marks case attracted attention (and some criticism) because the Court reached a different result on rehearing.

In Texas Lawyer, the headline called this outcome a “flip flop”. An op-ed piece in the Star-Telegram called it a “judicial ‘oops'”.

From the standpoint of a practitioner, however, rehearing is an important part of the Texas appellate process. The Texas Supreme Court has discretionary review and, especially at the petition stage, the rehearing process can help the Court better grasp the importance of an issue.

The calculus is a little different after the Court writes an opinion. But, as in the lower appellate courts, rehearings are commonly sought when litigants think the Court has missed the importance of a point, or has announced a rule that will prove unworkable. In those situations, rehearing can minimize the impact of a mistake on the law.

The Texas Supreme Court — unlike its counterpart at One First Street — does take the substance of these motions seriously, granting a few each term. (( The U.S. Supreme Court, perhaps mistaking its finality for infallibility, apparently did not grant review of any petitions for certiorari that had been denied between 1947 and 2007. In the past two terms, it has issued merits decisions that hinged on court-conducted research that was soon revealed to be incorrect (in Kennedy and in Graham); in neither case did it grant rehearing. ))

Even so, it is rare that the outcome of a rehearing is the polar opposite of the original judgment. As reported in Texas Lawyer:

Supreme Court clerk Blake Hawthorne says it is “very, very rare” that the court changes the result of a case after granting a motion for rehearing. Based on his review of 1,111 signed opinions that the Supreme Court issued from 1999 through 2008, Hawthorne says, “Less than .5 percent of the time, the Supreme Court issues a new opinion and changes the result.”

Should it be a concern to anyone that it was the same Justice who wrote lead opinions each time?

Maybe not. Former Justice Enoch was quoted as saying “If the author on reconsideration thinks he got it wrong the first time, it’s his obligation to change his opinion.”

That sentiment seems to match the Texas Supreme Court’s internal operating procedures, which give the author of an opinion a special responsibility in dealing with motions for rehearing (at p. 20): His or her chambers is responsible for a memo to the Court and a recommendation about whether to grant rehearing. According to that procedure manual, “The current practice is that only the chambers responsible for preparing the rehearing memo can request a response.”

In criticizing the Court for granting rehearing, the op-ed piece draws an analogy to the concept of stare decisis:

In certain circumstances, of course, there are sound reasons to reconsider prior judicial decisions. Supreme Court Chief Justice John Roberts spoke eloquently at his confirmation hearings about the proper role of precedent. He emphasized that adherence to precedent promotes fairness, stability and predictability — all important values in our legal system.

Stare decisis seems a poor analogy. Rehearing is about the very same case — not application of precedent to future cases. While the case is pending on rehearing, it is not published in the law books — it is (as the header to the opinion says online) “subject to revision.”

As an advocate, I greatly prefer the Texas Supreme Court’s approach to rehearing against the U.S. Supreme Court’s reluctance to admit the possibility. As nominee for Chief Justice, John Roberts also spoke of judicial “humility”. I would suggest his Court may need a pinch more of that in its rehearing practice.

That’s not to say that the Texas Supreme Court necessarily got this one right (the second part of this series) or that the Texas procedures on rehearing don’t need a little tweaking (the third part of this series). But it would be unfortunate if the headlines about “flip flops” made the Justices less open to the possibility of rehearing when they believe it appropriate.