The Difficulty of Premises Liability Claims in Texas Hospitals and Medical Facilities
Premises liability refers to the body of law that pertains to property owner’s liability for failing to remedy or warn of dangerous condition upon their property. This covers anything from dangerous objects that could cause injury to unseen things that make one slip and fall or trip and fall. With regards to most public premises and their invitees (customers, visitors, employees and other member of the public the property is open to) the rule is that the property owner has a duty to warn of those conditions of which he knows or should know of upon reasonable inspection of the property. To prevail, the injured party must bring a claim and prove this. When a health care provider is involved, however, it is not always as simple. This article discusses the difficulty of premises liability claims in Texas hospitals and what injured claimants can expect.
The Texas Medical Liability Act (TMLA)
In 2003, the Texas Legislature enacted the Texas Medical Liability Act. This act set forth new requirements to bring health care liability claims. The TMLA defines a health care liability claim as:
“A cause of action 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, whether the claimant’s claim or cause of action sounds in tort or contract.” TexCiv.Prac.&Rem.Code Sec. 74.001(a)(13).
This definition expanded what was traditionally medical malpractice into health care liability and swept up many claims against health care providers that had not been covered prior to that time.
The Expert Report Requirement of the TMLA
The problem with cases being characterized as a health care liability claim, is that it changes the requirements of what it takes to bring a claim. If a claim is a health care liability claim, then the Plaintiff must file an expert report from a qualified medical provider setting forth the exact standard of care that applies and how it was violated within 120 days of filing the lawsuit. If the Plaintiff fails to do so, the case must be dismissed with no opportunity to refile. Locating and hiring a medical provider to render such a report is often neither easy nor cheap. It can substantially increase the cost of filing a lawsuit. Further, if the report doesn’t withstand the Court’s scrutiny, it can be thrown out with the case following shortly thereafter. This exposes the lawyer to potential legal malpractice liability. As a result, many lawyers do not have the time, resources nor desire to handle health care liability claims.
Confusion in the Courts of Appeals
The Texas Courts of Appeals wrestled with how to interpret the Texas Medical Liability Act’s definition of what a health care liability claim was. With regards to slip and fall and other premises liability claims, the various courts struggled with how to interpret the statute. Many came up with conflicting results as to whether a premises liability claim fell under the definition. Some distinguished the cases depending upon whether the person who fell was a patient, employee or visitor. Some looked at where they fell. After numerous inconsistent results, the Texas Supreme Court began to address the issue.
The Texas Supreme Court Addresses Hospital Premises Liability
In the case of Marks v. St. Lukes Episcopal Hospital, 319 S.W.3d 658, (Tex. 2010), a patient brought a lawsuit against the hospital when he sustained injuries while attempting to get into bed. He was attempting to use a footboard to push himself up onto the bed. After analyzing the facts, the Court determined that his claims alleged a defective assembly and/or maintenance of the bed and footboard. Because these claims dealt with safety issues and the medical provider’s duties as medical providers and not just property owners, it was held to be a health care liability claim. End result, the patient’s case was dismissed for failure to file an expert report.
The Marks case confirmed many fears that premises liability in health facilities had been forever changed. But how would this case, that involved a defective condition in the bed, affect other premises liability claims?
Patent Assaults a Medical Provider
In Texas West Oaks Hospital, L.P. v. Williams, 371 S.W.3d 171, (Tex. 2012), wrongful death beneficiaries of an employee sued the hospital employer for wrongful death after a mental patient attacked and killed the employee. The Texas Supreme Court held that when a safety standards-based claim is made against a health care provider, the Texas Medical Liability Act (TMLA), TEX. CIV. PRAC. & REM. CODE ch. 74, does not require the safety standards to be directly related to the provision of health care in order for the claim to be a health care liability claim (HCLC). In so holding, they found the case to be a healthcare liability claim not a simple premises liability claim. Again, end result, the case was dismissed it for failure to provide and expert report.
The result of this case was to raise question in the Court’s of Appeals as to whether all premises liability claims involving employees were now health care liability claims. This resulted in some Courts distinguishing whether the person was an employee vs a patient or visitor in deciding these kinds of cases.
Visitor Slip and Falls in Hospitals
In May of 2015, the Texas Supreme Court decided the case of: Ross v. St. Lukes Episcopal Hospital, 462 S.W.3d 496, (Tex.2015). In that case, a visitor brought a lawsuit against the hospital after she slipped and fell inside the hospital doors where the floors were being cleaned and buffed. The Supreme Court looked at this case, noting the confusion in the lower courts and concluded that this was not a healthcare liability claim. In doing so they discussed the confusion and attempted to set forth a test standard as follows:
As this case demonstrates, the line between a safety standards-based claim that is not an HCLC and one that is an HCLC may not always be clear. But certain non-exclusive considerations lend themselves to analyzing whether such a claim is substantively related to the defendant’s providing of medical or health care and is therefore an HCLC:
- Did the alleged negligence of the defendant occur in the course of the defendant’s performing tasks with the purpose of protecting patients from harm;
- Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special, medical care was implicated;
- At the time of the injury was the claimant in the process of seeking or receiving health care;
- At the time of the injury was the claimant providing or assisting in providing health care;
- Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider;
- If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; or
- Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety-related requirements set for health care providers by governmental or accrediting agencies?
Measuring Ross’s claim by the foregoing considerations, it is clear that the answer to each is “no.” id. At page 505.
It is interesting that in the above case, all of the 7 answers were “no.” This made it easy. However, it is not always so clear of a test when some answers are “yes” and others “no.” The problem of trying to determine how a court will answer each of the above questions in a specific case contributes to the difficulty of premise liability claims in Texas hospitals.
In the typical slip and fall case involving a visitor, most if not all of the answers are going to be “no.” Subsequently the Texas Supreme Court issued two more opinions that agree with this. See. Reddic v. East Texas Medical Center Regional Health Care System, 474 S.W.3d 672, (Tex. 2015) (A visitor filed negligence action against hospital, alleging that she fell while walking from main entrance to front desk on a mat saturated with water. The Supreme Court held this was not a health care liability claim.) Galvan v. Memorial Herman Hospital System, 476 S.W.3d 429, (Tex.2015) A visitor slipped and fell on water in the hall held not a health care liability claim.
Patients and Premises Liability Claims
Patients are not as cut and dry as visitors. They are there seeking health care and they may be in a place where health care is being provided. Thus, where a patient fell into an open grease pit and was injured while a resident at a substance abuse center, the court found that the case was a health care liability claim. In this situation, the court reasoned that Substance abuse treatment centers like Riverside are required to adhere to the same standard of care for their patients—a standard that includes the maintenance of a safe environment and is mandated by the State Health Department. Furthermore, the patient was in an area the general public could not access. Little v. Riverside General Hospital, Inc. 2016 WL 208142 Not Reported in S.W.3d (Houston[14th Dist] 2016). So even though the open grease pit had nothing to do with the patient’s care, his status as a resident in the facility made this otherwise premises liability claim into a health care liability claim.
Similarly, in Phillips v. Jones, not reported in S.W.3d 2016 WL 80561 (Tex.App.—Dallas Jan 7, 2016, no pet.), the Dallas Court of Appeals found a patient who sued after slipping while stepping down from the exam table was a health care liability claim. The Court noted: “A physician’s examination room is not a room ‘accessible by the public.’ Instead, it is a room accessible by the physician, staff, and patients. The physician uses the examination room to examine patients who have sought the physician’s medical services.” They went on to opine that:
“The examination table, along with the step used for getting on and off the table, is ‘an instrumentality’ integral to the rendition of medical services in a physician’s examination room. … And ‘an accepted standard of safety is implicated … when the unsafe condition or thing, causing injury to the patient, is an inseparable or integral part of the patient’s care or treatment.’”
However, it is important to note here that just being a patient does not mean it is a health care liability claim. In Houston Methodist Willowbrook Hospital v. Ramirez, –S.W.3d–, 2017 WL 6374751, a slip and fall by a patient that was held not to be a health care liability claim. The slip and fall in this case occurred in a hallway that was accessible to visitors, not an area for providing treatment.
The problem posed for patients who are injured on the premises is that while we know what factors are considered, there is no clear idea of how many of the magic 7 must be answered in the negative to avoid being a health care liability claim. This leads some lawyers to cover themselves as a premises liability lawyer handling patient slip and fall cases by just assuming that a Court may find the case is a health care liability claim and to go ahead and find an expert and shell out the $10K it may require to have a report done to fight off a challenge. This makes many medical facility slip and fall cases too costly and too risky for a premises liability attorney to want to take on. Thus, the test itself adds to the difficulty of premises liability claims in Texas hospitals.
Hospital Employees and Premises Liability Claims
Employees seem to be situated in a similar situation of uncertainty as that of patients. In PHCC—La Hacienda Rehab. & Health Care Ctr. LLC v. Crume, 492 S.W.3d 797, 801 (Tex. App.—Houston [1stDist.] 2016, no pet.), the claim of an employee of a nursing home receiving electric shock while working on nursing home suing nursing home was held not to be a healthcare liability claim. Additionally, a nurse who tripped over extension cord at hospital has been held not to be a health care liability claim. Williams v. Riverside General Hospital, Inc., not Reported in S.W.3d, 2014 WL 4259889, (Houston[1st Dist.].
However, in Morrison v. Whispering Pines Lodge I, L.L.P., 428 S.W.3d 327 (Tex.App.–Texarkana 2014, pet. filed), when a nursing home employee fell on a mopped floor in a patient shower area while retrieving a towel for a resident, it was held to be a health care liability claim where the claim “was based on nursing home’s alleged departures from accepted standards of safety and was at least indirectly connected to the provision of health care.” This opinion has been limited to its facts by a subsequent Texarkana case that found a slip and fall at a hospital not to be a health care liability claim n because the legislature “has taken steps to ensure that the living environment for such residents meets certain required, minimum standards in order to protect the health, safety, welfare, dignity, and rights of each resident. “ Waston v. Good Shepherd Medical Center, 456 S.W.2d 585, (Tex.App.—Texarkana, 2015, pet filed.) As a result of the conflicts and uncertainty, again, a prudent lawyer may feel the need to cover himself by hiring an expert and having a report done. Thus, the concern about what facts may be carved out and treated differently due to some yet-to-be-considered legislative policy contributes to the difficulty of premises liability claims in Texas hospitals.
Conclusion for Health Care Liability Claims and Premises Liability
Due to the uncertainty of the 7-prong test and inconsistency of application in various courts of appeals, the difficulty of premises liability claims in Texas hospitals presents a challenge not found in traditional common law premises liability claims. The lawyer in many cases must take his best guess at what the courts of appeals would do with the specific facts at hand and decide whether he is willing to risk not getting an expert report. If he chooses not to shell out for the report and he is wrong, he risks being sued for malpractice by his client. As a result, many lawyers chose not to handle run of the mill premises liability claims that occur on medical facility premises.