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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”

Medical Malpractice

THE PROFESSIONAL-PATIENT RELATIONSHIP (it is a question of law that the court will have to decide early in the case)

The threshold question is whether the doctor had a relationship with the patient sufficient to create a duty.

A physician relationship is usually a prerequisite to a professional malpractice suit against a doctor.

            Insurance coverage examination usually creates no duty.

            Workplace examinations may give rise to a P/P relationship.

The Contract Between the Patient and Physician

            Express and Implied Contract

Physicians in private practice may contract for their services as they see fit, and retain substantial control over the extent of their contact with patients by:

·         limiting their specialty, scope of practice or conditions under which they will see patients

·         transfer responsibility by referring patients to other specialists

·         refuse to enter into a contract or treat patients

An implied contract is usually the basis of the relationship between a physician and patient.

Once the P/P relationship has been created, physicians are subject to an obligation of continuing attention.

When a patient goes to the doctor’s office, he is offering to enter into a contract with the physician, when the physician examines the patient, he accepts the offer and an implied contract is created.

While the relationship in many ways looks like a traditional contract it differs in three ways:

1.       the terms of the contract are largely fixed in advance of any bargaining, by standard or customary practices that the physician must follow at the risk of liability for malpractice

2.       professional ethics impose fiduciary obligations on physicians in a variety of ways

3.       professionals are constrained in their ability to withdraw from their contracts by judicial caselaw defining patient abandonment

Physicians in Institutions

Physicians who practice in institutions must provide health care within the limits of the health plan coverage or their employment contracts with the institution.

Physicians who are members of a health maintenance organization or a health plan have a duty to treat plan members as a result of their contractual obligation to the HMO.

Hand v. Tavera (duty arises by contract)

Facts:  P (a Humana Health Care member) went to the Humana hospital emergency room where the emergency room physician recommended that he be hospitalized. The doctor responsible for making admission decisions said he should be treated as an outpatient. P went home and had a stroke. The issue is whether there was a P/P relationship between P and the doctor who made the outpatient decision.

Holding:  P had paid in advance for the services of the Humana plan doctor on duty that night and the physician-patient relationship existed. When the health-care plans’ insured shows up at a participating hospital emergency room and the plan’s doctor on call is consulted about treatment or admission there is a P/P relationship between the doctor and the insured.

Note: A physician with staff privileges at a hospital agrees to a doctor/patient relationship with whom ever comes into the hospital. Physician’s on-call to treat emergency patients are under a duty to treat patients. (However, in TX, there must be some further affirmative step by the physician to establish the relationship)

            Specific Promises and Warranties of Cure

            Advantages of a contract claim:

·         statute of limitations is typically longer than for a tort action

·         P need not establish the medical standard of care and thus may not need to present expert testimony

·         a contract claim offers a remedy to the P who underwent the procedure because of the enticements of the doctor

The contract between the P and P can be breached in a number of ways:

·         the physician may promise to use a certain procedure and then use an alternate procedure

·         where the doctor promises a particular result which fails to occur

Exculpatory Clauses

            Tunkl v. Regents of Univ. of Ca.

Facts: The hospital was a nonprofit charitable organization. Upon entry, P signed a statement that released the hospital from any and all liability for negligent or wrongful acts of its employees. P brought a negligence suit. The issue is whether the release from liability of future negligence is invalid.

Holding: Exculpatory provisions may only stand if they do not involve the public interest.  The hospital-patient contract clearly falls within the category of agreements affecting the public interest, therefore the exculpatory clause is invalid.

            As a general rule, exculpatory agreements signed by patients are invalid.

These exculpatory clauses are almost adhesion contracts. Moreover since most of the people involved are poor, there is a serious question about whether it is a knowing and voluntary waiver. At any rate, the law will not permit a waiver of the public interest.

Note: The only exception courts find acceptable is an exculpatory agreements for treatments involving experimental procedures as the patients last hope for survival.

Partial Limitations on the Right to Sue

The following case offers a defense of a partial waiver under a special set of circumstances:

            Shorter v. Drury

            Facts: P was a Jehovah’s Witness and is prohibited by his religious doctrine

from receiving blood transfusions.  D (the doctor) performed and operation on P that had the risk of bleeding. Prior to the operation P signed a refusal to permit transfusions. During the operation D severely cut P who began to bleed.  She refused blood and bled to death. The issues are whether the refusal was valid and whether assumption of risk is a valid defense.

Holding: The refusal was valid and not against public policy. Given the particular problems faced when a patient on religious grounds refuses to permit necessary or advisable blood transfusions, the use of a release such as signed here is appropriate. Otherwise, hospitals would be required to obtain court orders or would refuse to care for Jehovah’s Witnesses. Moreover, P assumed the risk of death from undertaking an operation which had to be performed w/o blood transfusions.

Texas Cases:

In Wilson v. Winsett, the Texas Rehabilitation Commission requested that Doctor Winsett examine P for the purpose of furnishing to the Commission his opinion of her rehabilitative potential. D found something in her lungs but did not tell her. P later died of lung cancer.  P alleges that there was a P/P relationship and that D was negligent.  The court held that there was no P/P relationship as she neither selected the doctor nor submitted herself for medical treatment.  The duty arises when the patient requests and is supplied medical information.

In Johnston v. Sibley, P claimed he was injured on the job and submitted a claim for workman’s compensation benefits. The insurance company retained the doctor to examine P. The doctor concluded that P had no injury. P claims that the doctor negligently failed to diagnose his disability. The court held that where a doctor conducts an examination of an injured employee solely for the purpose of evaluating the employees disability for the insurance carrier after a claim has been filed is not liable for negligence as there was no P/P relationship. The doctors only duty is to conduct the examination in a manner so as not to harm the person being examined.

In Wheeler v. Yettie Kersting Memorial Hosp., P was pregnant and sought to be transferred to another hospital.  There was concern about whether she would make it to the other hospital before giving birth. The on-call doctor, based on a nurse’s assessment communicated to him by phone, authorized the transfer.  P gave birth enroute and the fetus died due to complications.  P sued D for negligence.  D argues that there was no P/P relationship and therefore no duty. The court held that the mere fact that a physician is on-call does not in and of itself impose a duty.  In other cases refusing to respond and instructing person to call her own doctor did not establish a P/P. Here, however, the doctor evaluated the status of P and gave his approval. This was sufficient to establish a P/P. (the key here was whether there was an affirmative action)

In Krishnan v. Sepulveda, while the doctor was providing prenatal care, the mother developed a condition. The doctor failed to diagnose and treat the condition. As a result, the child was delivered stillborn.  The issue was whether the parents could recover damages from the birth of a stillborn fetus resulting from injury to the mother caused by the negligent treatment of the doctor.  The court held that there is no wrongful death or survival cause of action for the death of a fetus. However, the mother can recover mental anguish damages suffered as a result of the negligent treatment, which included the loss of her fetus.  Here, the doctor had a clear, legal duty to provide competent medical care to the mother. The doctor owed no such duty to the father, as no P/P existed between them.

In Dougherty v. Gifford, P’s specialist took a biopsy and sent it to Doughherty who had a contract to perform all of the hospitals pathology work. A doctor who worked for Dougherty diagnosed malignant cancer.  As a result, P underwent chemotherapy until he discovered that there was no cancer. P sued D for medical malpractice in making a negligent diagnosis.  D argues that there was no P/P relationship since the pathology work was done exclusively for other doctors, the pathologist did not see P and P did not select the pathologist. The court held that D created a relationship with P by accepting the work, conducting the analysis, preparing the report and billing P.  These circumstances created an implied agreement between the parties.  Here, D had P’s implied consent to perform the services for his benefit.

Terminating the relationship

While its OK to terminate the relationship it is not OK to abandon the patient.

In TX, the physician can terminate the relationship by giving the patient a reasonable time to find another physician.

What is reasonable will vary depending on the nature of care:

·         is it life threatening

·         is it life altering (e.g.  pregnancy)

·         is it routine

General Rule: the doctor needs to give the patient approximately 30 days notice and will have to treat them during that 30 day period


The obligations of health professionals normally extend only to those patients with whom they have a legal relationship, either under an implied or express contract.

However, in some instances, physicians may have a duty to protect third parties.

            Psychiatric Patients

The following two cases deal with the issue of whether a psychiatrist has a duty to warn third parties of a patients threats.

            In Tarasoff v. Regents of the University of CA, a man confided his intention to

kill the victim to his psychologist. No one attempted to warn the victim who was killed by the man two months later. The parents sued, alleging negligence in the therapists’ failure to warn the victim. The court held that a therapist treating a mentally ill patient owes a duty of reasonable care to warn threatened persons against foreseeable danger created by the patient’s condition.

In Thepar v. Zezulka (TX), a man told his therapist that he felt like killing his stepfather. No family member was warned. Within in month the stepfather was shot and killed. The wife brought suit and alleged negligence in the therapists’ failure to warn the victim.  The court held that there was no duty to warn third parties of a patient’s threat. The court reasoned that the confidentiality statute governing mental-health professionals prohibited the therapist from warning the family. (Under TX law mental health professionals can make the threats known to the police but are not immune from civil liability if they do. So, the physician has no duty to disclose, but if he does he opens himself up to a lawsuit)

            Non-Psychiatric Patients

                        Pate v. Threlkel

Facts: The patient received treatment for a genetically transferable disease. Sometime thereafter the patients daughter was diagnosed with the same disease.  The daughter sued and alleged that the physician (who treated the mother) knew or should have known of the likelihood that her children would have inherited the condition genetically and that the physicians were under a duty to warn the mother that her children should be tested. The physician argued that there was no P/P between him and the daughter.

Holding: Under the prevailing standard of care the physicians were under a duty to warn the mother of the importance of testing her children for the disease. Normally, only a patient who is in privity with the physician may maintain a cause of action. However, when the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties, then the physicians duty runs to those third parties (who may bring an action).

NOTE: The duty to warn is satisfied by warning the patient. (and the court assumes that the patient will inform their children)

            Other courts have held that doctors have a duty to warn about:

·         contagious diseases (numerous contagious disease are mandatorily reportable to the health dept)

·         the immediate family about non-contagious disease (disease was transmitted by ticks)

·         deadly illnesses such as AIDS

·         medication side effects

Once the physician warns the patient of the risk to others and advises the patient how to prevent the spread of disease, the physician has fulfilled his duty.

In deciding whether to impose a duty Tx. employs a balancing test:

            The test dictates that the court consider:

·         the risk

·         foreseeability

·         likelihood of injury weighed against the social utility of the actors conduct

·         the magnitude of the burden of guarding against the injury

·         consequences of placing that burden on the actor

Texas Cases:

·         Physicians do not have a duty to third parties to warn epileptic patients not to drive.  Praesel v. Johnson

·         Physician who transferred patient form critical care unit to private room owed no duty to hospital employees stemming from his medical treatment of patient, and thus physician could not be held liable for death and injuries sustained while trying to subdue patient when he became violent. Van Horn v. Chambers (there is no special relationship here that imposes a duty to control the patient)

·         Hospital owes no legal duty to a third party (husband) to provide competent care to the third parties wife or unborn child. A physician’s primary duty is too the patient, not to the patient’s relatives. Edinburg Hosp. Auth. v. Trevino

·         Mental health professional owes no duty to parent not to negligently misdiagnose condition of child, and thus psychologist could not be held liable to father for misdiagnosis that child had been sexually abused and that father was abuser. Bird v. W.C.W.

·         Under proper facts, a physician can owe a duty to use reasonable care to protect the driving public where physicians negligence in diagnosis or treatment of his patient contributed to the plaintiffs injuries, and where harm resulting to plaintiff was reasonably foreseeable consequence of physicians failure to warn his patient to drive. Gooden v. Tips (Doc should have warned pt. not to drive under the influence of Quaalude)


The Standard of Care

Medical malpractice is legal fault by a physician or surgeon. It arises from the failure of a physician to provide the quality of care required by law.

A physician has a legal obligation to provide minimally sound judgement and render minimally competent care in the course of the services he provides.

The question is: What are the minimal standards of care and judgement?

                        Hall v. Hilbun

Facts: The patient complained of abdominal discomfort.  The doctor diagnosed the problem and performed surgery with apparent success. The patient died 14 hours after the surgery. The husband brought a wrongful death action and argued that the doctor failed to provide adequate post-operative care. The P introduced experts who testified that the doctor did not provide the level of care that he should have.  The trial court excluded the expert’s evidence because he was not familiar with the local standards.

Holding: In light of the nationalization of medical education and training and the acknowledgement that reasonable expectations regarding a physicians skill and knowledge are the same everywhere, the court adopts a competence based national standard of care:

Given circumstances of each patient, each physician has non-delegable duty of care to use his or her knowledge and therewith treat through maximum reasonable medical recovery each patient, with such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in same specialty or general field of practice throughout United States, who have available to them same general facilities, services, equipment, and options;

However, with respect to the medical facilities and equipment, the old locality rule still applies as in many rural areas certain facilities and equipment may not be available. Moreover, where expert lives or where he or she practices his or her profession has no relevance per se with respect to whether person may be qualified and accepted by court as expert witness.

Bowles v. Bourdon

Facts: A boy fractured his elbow and the doctor bandaged his arm. Shortly thereafter the boy complained of numbness, cold skin, and discoloration. The doctor said everything was OK. Eventually it was determined that the boy had contracture of his hand (lost feeling and movement).  The parents sued and claimed that the doctor bandaged his arm too tightly and this caused the problem. The trial court said P did not support their allegations of negligence with proper or sufficient expert testimony.

Holding: In cases concerning medical treatment, the court and jury have to rely on expert evidence. A patient has no cause of action unless he proves by a doctor of the same school of practice that diagnosis or treatment was such as to constitute negligence and that it was a proximate cause of patient’s injuries. Here, the testimony only shows that D’s actions were only a possible cause of the injury. The court also held that medical books are not admissible to prove their own statements.

In a medical malpractice suit P must prove by a doctor of the same school of practice as the defendant (an expert):

(1)    diagnosis or treatment complained of was such as to constitute negligence (standard of care) and

(2)    that it was the proximate cause of the patients injuries


To win a suit you have to prove by expert medical testimony from a physician of the same school of practice. M.D. vs. D.O vs. Ph.D. vs. Chiropractor, these are all different schools

In Hart v. Van Zandt, a D.O. testified against an M.D. But the court said that this was OK since their education, training, and experience are the same and they can testify against each other. If a doctor has been through a residency program then he will probably be able to testify.

Expert Physician testifies to 1) standard of care and 2) proximate cause

The question is whether the expert is qualified (through training, experience, and education) to testify. Moreover, a non-medical doctor might be qualified to testify about proximate cause but not standard of care. So a Ph.D. scientist might be qualified to testify about the effect a drug has on the brain (proximate cause) but the same Ph.D. would not be able to testify about the standard of care involved in administering the drug.

General Rule: To testify, must be same school of medicine (and probably same specialty) unless they have the same training, experience and education

            The distinction now is more between nurses/doctors or MD’s/Chiros

Locality Rule

Many courts have switched from the locality rule to a national standard in part because of the “conspiracy of silence” which occurs because doctors do not like testify against one another and so it limits the pool of available experts.

·         the locality rule has been viewed as a subsidy for rural areas

·         urban people sue more

·         substantial regional variations exist in the use of many procedures, with no apparent differences in outcome

In Wilson v. Scott, P sued D for failure to disclose but offered no expert evidence. D argued that P had the burden of proving by expert medical evidence the medically accepted standard for cautioning a patient about the risks. However, here the court allowed the adverse witness (D) to establish the standard of care and said that P failed to show D failed to conform. The court also set forth the TX locality rule:

the plaintiff had the burden to prove by expert medical evidence what a reasonable medical practitioner of the same school and a same or similar community under the same or similar circumstances would have disclosed to his patient about the risks incident to a proposed diagnosis or treatment, that the physician departed from that standard, causation, and damages.

In Peterson v. Shields (TX), P sued D for failing to disclose a risk of nerve damage before operating. D was from Texarkana, while P’s expert witness was from Houston.  Based on this, the trial judge applied the locality rule and granted D a directed verdict. On appeal the court held that the locality rule does not apply in a suit based on failure to disclose the risks involved. Under the applicable Act the locality rule is replaced with a reasonable person rule: P must show negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making the decision to give or withhold consent.

Note: Captain of the Ship Doctrine: it used to be the case in TX that a doctor could be held strictly liable for his mere presence in the operating room under the captain of the ship doctrine. The theory was that he was in command and in charge and was therefore responsible for what happened. However, in Sparger v. Worley, the court held that the doctrine was a false special rule of agency and was no longer applicable. Now, if you want to hold a physician liable for the acts of a third party, you have to show that they were a borrowed servant.

Under the borrowed servant doctrine the essential inquiry would be whether or not the surgeon had the right to control the assisting nurses in the details of the specific act raising the issue of liability.

Note: Telemedicine and Rural Practice: medical databases are not available for any doctor with a computer and a modem. The question is whether ease of access to medical databases will raise the standard of knowledge of the average physician

            TELEMEDICINE (guest lecture)

                        New area – new law

                        Definition: some connection to medicine by some form of telecommunications

                        Pt is one place – physician is somewhere else

                        Using a live interactive videoconference system the physician can treat a patient

The communications system is not practicing medicine its is a tool to allow the practice of medicine


1.       Licensure

Can use you use telemedicine to practice on a patient in N.M. If the doctor is licensed in TX and is in TX?

The law says the practice of medicine occurs where the patient is.

Tech makes sure physician is licensed in the state where the patient is

There has been some talk about a federal license pertaining to telemedicine (but states oppose this)

Another option is interstate compacts between states whereby they agree to allow each other to practice telemedicine over state lines

2.       Privacy

For privacy reasons, operators have to make sure the signal is secure

In TX a statute says an examination by telemedicine is the same as an in-patient examination and hence the same confidentiality attaches

3.       Limitations on picture quality

Two main limitations: (1) connectivity (getting the signal from A to B) and (2) equipment (quality of the monitor, speed of computer)

Expert Testimony

            In any jurisdiction, P’s must , in order to withstand a motion for a directed verdict:

1.       qualify their medical witnesses as experts

2.       satisfy the court that the experts testimony will assist the trier of fact

3.       have the witnesses testify based upon facts that support their expert opinions

A plaintiff must offer proof that the defendant physician breached the legally required standard of care and was thus negligent

In Broders v. Heise, the P sought to introduce the testimony of an emergency room doctor to testify in a wrongful death case. P’s offered evidence that the doctor was a MD (as were D’s) and understood the services that should be provided by a neurosurgeon. The trial court excluded the testimony on the basis that the doctor was not competent to testify on these matters. The court of appeals affirmed and held that:

·         the qualification of a witness is within the trial courts discretion

·         the party offering the experts testimony has the burden to prove that the witness is qualified

·         medical doctors are not automatically qualified by virtue of their degrees

·         in order to be qualified as an expert witness; the offering party must show that the expert has knowledge, skill, experience , training or education regarding the specific issue before the court

Notes: In Broder, P’s witness testified to (1) standard of care and (2) proximate cause. The court said he was not qualified to testify as to probable cause

Procedural matter: Under the Medical Liability and Insurance Improvement Act

            Ninety days from when a medical malpractice action is filed, the P has to:

(1)    file a $5,000 cost bond for each provider he sues or

If he does not file within 90 days, D can request a $7,500 bond

(2)    file an experts report 

Within 180 days from the time the suit is filed the plaintiff must file an expert’s report

If he does not file within the 180 days the court shall dismiss the order with prejudice, plus D can file for reasonable costs (but P may be able to get it reinstated)

As a tactical maneuver, it may be best to wait until the 180 days is up to file a motion to dismiss, otherwise you educate P about the statute

The expert’s initial report is not admissible at trial. But P can waive this and allow D to cross-examine the witness; otherwise D will have to pay for another expert report

There are two extension provisions (P is only entitled to one of them): (1) extension because you did not know about the requirement and (2) an a 30-day extension for good cause

So the max P will get to file the initial experts report is 210 days from the time of filing the suit

Practice Guidelines as Codified Standards of Care

Substantial regional variations exist in the use of many procedures, with no apparent differences in outcome.

There have been recent substantial efforts toward standard setting and specifying treatments for particular diseases.

Clinical pathways/guidelines: interdisciplinary plans of care that outline the ideal sequence and timing of interventions for patients with a particular diagnosis, procedure, or symptom.

Other Methods of Proving Negligence

1.       examination of D’s expert witnesses

2.       an admission by the defendant that he or she was negligent

3.       testimony by the plaintiff, in the rare case where he or she is a medical expert qualified to evaluate the doctors conduct

4.       common knowledge in situations where a layperson could understand the negligence without the assistance of experts

5.       use of res ipsa loquitur

Notes: How to establish the Standard of Care:

·         bring in a physician to testify that they know what the standard of care is in that particular area

·         statutes that spell out the standard of care

·         hospital policies and procedures, medical staff by-laws

·         national guidelines


The courts have developed several doctrines that ease the plaintiff’s burden of proof, shifting either the burden of production or persuasion onto the D.

            Res Ipsa Loquitur

            “the thing speaks for itself”

The doctrine of res ipsa loquitur eliminates the P’s need to present expert testimony as to negligence of the D.

The doctrine has three conditions:

(1)    the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence

(2)    it must be caused by an agency or instrumentality within the exclusive control of the D

(3)    it must not have been due to any voluntary action or contribution on the part of P

Ybarra v. Spangard

Facts: P went into the hospital for an appendectomy. After the surgery was over P was unable to lift or rotate his arm. P argued that res ipsa loquitur applied. D argued that there is no showing of any particular defendant, nor any particular instrumentality.

Holding: This is a proper case for the application of the doctrine. There was a distinct injury to a healthy part of the body not the subject of treatment. As D was unconscious it is unreasonable to insist that he ID one of the D’s or the instrumentality.  Where a P receives unusual injuries while unconscious and in the course of medical treatment, all those D’s who had any control over his body or the instrumentality’s which might have caused the injuries may be properly called upon to meet the inference of negligence by giving an explanation of their conduct.

Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone’s negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability.


As a general rule, the doctrine of res ipsa loquitur is inapplicable to medical malpractice cases. Ordinarily both negligence and proximate cause must be proven by medical testimony.

Use of the doctrine is limited to instances where the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, requiring no expert testimony.


·         negligence in the use of mechanical instruments,

·         operating on the wrong part of the body

·         leaving surgical equipment inside the body

In the above instances the requirement of medical testimony is eliminated, but the necessity of proof of negligence remains.

In Miller v. Hardy, P’s spinal cord was injured while he was under anesthetic, either while being moved from stretcher to operating table or from operating table to stretcher. P argued that doctrine of res ipsa loquitur applied. However, D proved that the anesthetist was in charge at all times during the surgical proceeding except for the actual surgery and that the patients injuries did not occur as a result of the surgery. Therefore P failed to show that the instrumentality causing injury was under the exclusive management and control of the defendant.

In Haddock v. Arnspinger, P’ colon was perforated during a routine proctological examination. The court held that the doctrine of res ipsa loquitur did not apply, as use of a colonscope for proctological examination was not a matter plainly within common knowledge of laymen. The court reasoned that the instrument required extensive training and experience for proper use.


            Negligent Infliction of Mental Distress

Historically there have been two main barriers to these types of actions: (1) physical injury requirement and (2) there must be a duty not to inflict mental distress

Most medical malpractice cases are negligence suits for physical injury or lost wages suffered by the patient or wrongful death actions.

Recent cases have allowed patients to sue a health care provider for the negligent infliction of emotional distress under particularly egregious circumstances.

Most jurisdiction only allow recovery for physical injuries and hence most only recognize recovery for emotional distress in limited circumstances.

Negligent infliction of mental distress cases typically involves “bystanders” who witness injury to a loved one.

However, in some instances the nature of the relationship between the parties may be such that there arises a duty to exercise ordinary care to avoid causing emotional harm.

In order for a plaintiff to raise a claim of negligent infliction of emotional distress, there must be a duty not to negligently inflict emotional distress.

For example, such claims have been recognized in the negligent performance of contractual services that carry with them deeply emotional responses in the event of breach (delivering telegrams announcing the death of a close relative) In these instances there is a duty not to negligently inflict emotional distress.

In Oswald v. Legrand, the court extended the liability for emotional injury to the delivery of medical services. The court reasoned that the birth of a child involves a matter of life and death evoking such mental concern and solitude that the breach of a contract incident thereto will inevitably result in mental anguish, pain and suffering. (this is the case where the baby was pronounced stillborn but was still alive) The court held that in the delivery of medical service there is a duty not to inflict emotional distress.

Moreover, the court in the above case held that since the incidents involved commonly understood issue s of professional courtesy in communication regarding a patient’s treatment; no expert testimony was needed.

In St.Elizabeth Hospital v. Garrard (TX), the court held that proof of physical injury is no longer required in order to recover for negligent infliction of mental anguish. The court provided a number of reasons for abolishing the requirement:

·         it arbitrarily denies court access to persons with valid claims they could prove if permitted to do so

·         it encourages extravagant pleading and distorted testimony (P’s will exaggerate symptoms)

·         the concept of physical manifestation has been expanded to the point where the term has lost much of its former significance

·         it is well recognized that certain psychological injuries can be just as severe and debilitating as physical injuries

In Boyles v. Kerr, the court held that there is no general duty in Texas not to negligent inflict emotional distress. A claimant may recover mental anguish damages only in connection with the defendants’ breach of some other legal duty. There is no independent cause of action for negligent infliction of emotional distress.

Fraudulent Concealment and Spoliation of Evidence

In some jurisdictions courts have allowed a separate intentional tort to be pleaded along with a negligence claim where the physician has deliberately altered records to create misleading entries or has knowingly made a false representation to P.

Three purposes for these types of actions:

(1)    to show fraudulent concealment by the physician of obvious negligence, so that the statute of limitations will be tolled

(2)    to void the patients informed consent, so that a battery theory may be used

(3)    as a separate theory of recovery

Fraudulent Concealment (elements)

1.       a false representation

2.       of a material fact was made and

3.       was relied upon by the patient in ignorance of the true facts

4.       so that damage resulted


                        A separate action for spoliation is allowed in some jurisdictions.

Spoliation of evidence may consist of altering the medical, record, or adding to it after an initial entry, deleting, substituting, or destroying x-rays, laboratory records, or physical evidence.

A spoliation claim may allow the P to circumvent statutory limitations on damages in some states.

In TEXAS, there is no independent tort cause of action for spoliation. The court in Trevino v. Ortega, supplied a number of reasons:

·         such a tort would lead to duplicate litigation

·         would encourage relitigation

·         there are already adequate remedies within the context of the underlying lawsuit

What the plaintiff can do is move for sanctions or a spoliation presumption (the death penalty) which puts the burden on D to show no negligence.

Assault and Battery

In an assault and battery case, the plaintiff must prove that the doctor intentionally and knowingly had physical contact with her.

If the defendant establishes the lack of physical contact, then he successfully eliminates an essential element of the cause of faction, thereby making it impossible for P to prevail at trial.

            Medical Liability and Insurance Improvement Act

§ 12.01(a) says that applicable provisions of the Business & Commerce Code do not apply to claims against physician that resulted from negligence

In Sorokolit v. Rhodes (TEXAS), the patient went in to have breast implants. P alleges that D guaranteed and warranted the results of the surgery. The results were not as warranted and P brought claims under the Deceptive Trade Practices Act. (breach of implied warranty and knowing misrepresentation or breach of express warranty) D argued that § 12.01(a) precluded such actions. The court held that § 12.01(a) only precludes a DPTA suit for negligence, that is a suit founded on a breach of the accepted standard of care. The § 12.01(a) does not preclude suits under the DTPA for knowing misrepresentation or breach of express warranty.

The underlying nature of the claim determines whether § 12.01(a) prevents suit for violation of the DTPA. Claims that a physician or health care provider was negligent may not be recast to avoid standards set forth in the MLII Act. (in the above case, this is not just a mere recharacterization of  a negligence suit, here the doctor warranted his results and that is the basis of the claim)

In Nguyen v. Kim, the court held that the patients claim that the physician violated the DTPA by failing to disclose information concerning the risks and consequences of procedures so that the patient would have all of the necessary information with which to consent to procedures and that the physician took advantage of P’s lack of knowledge, experience or capacity to an unfair degree constituted negligence claims which could not be brought under the DTPA.

§ 13.01(d) says that all health care liability claims are required to provide an expert report or take voluntary non-suit within 180 days.

In Williams v. Walker (TEXAS) the patient brought an assault and battery case against a doctor. She alleged that the doctor performed a procedure w/o her consent and caused her injury. The suit was dismissed because the P did not file an expert’s report within the deadline. P says common cause of action like assault and battery are not governed by the act. The court held that the patients assault and battery claim is a recast “health care liability claim” and that she was required to provide an expert within 180 days. The court reasoned that the underlying nature of the claim involves assertions against a physician for treatment.

            There is no Bystander Recovery in med/mal cases in TX. Why?

1.       There is often blood and other shocking things associated with normal operating procedure, so a bystander might experience mental anguish , whereas a caregiver would not because he knows what’s going on

2.       Plus, need an expert to show something was wrong (how does bystander know something is wrong?)

3.       physicians primary duty is to the patient not to the patients relatives


            Wrongful birth:

General Rule: TX does not recognize a cause of action for wrongful life

In Nelson, the P’s tried to argued that the doctors negligence was the proximate cause of the child having to live in an impaired condition and sought compensation for the added medical expenses and for the pain and suffering of having to live with muscular dystrophy. The court held that there is no cause of action in Texas for wrongful life. Courts are unwilling to hold that a plaintiff can recover damages for being alive. It is impossible to measure the benefits of life against the detriments of an impaired life.

                        TX does recognize a cause of action for wrongful birth

Jacobs: allows wrongful birth, but damages are limited to an economic measure of damages (expenses reasonably necessary for care and treatment of the child)

A wrongful birth cause of action is owned by the parents as it is their increased cost once the child is born.

Public policy dictates life over death so argument that quality of life would have been better had they not been born is not allowed.

            Loss of fetus:

Pietila: no cause of action for the loss of a fetus (In this case the mother brought a M/M case for emotional harm from the loss of a fetus. The court held that they are precluded, as a matter of law, from bringing suit for their mental anguish arising out of the treatment or injury of their unborn child. They are limited to claims arising out of injury to the mother.)

Blackman: No cause of action could be maintained under the wrongful death statute for death of a fetus.

Krishna: a woman has a cause of action for negligence committed on her and can recover damages for the mental anguish due to the loss of the fetus (have to allege that the negligence was committed on the mom: failure to monitor, failure to diagnose)


            The Respectable Minority Rule

The rule: “Where two or more schools thought exist among competent members of the medical profession concerning proper medical treatment for a given ailment, each of which is supported by responsible medical authority, it is not malpractice to be among the minority in a given city who follow one of the accepted schools” Chumbler v. McClure

The respectable minority rule allows for variation in clinical judgement: a physician does not incur liability merely by electing to pursue one of several recognized courses of treatment.

The instruction (as to the rule) is intended for those situations where medical experts may disagree among themselves.

In TEXAS, the rule is called the “reasonable and prudent” physician test:

In Henderson v. Heyer-Schulte Corp., the plaintiff went in for artificial breast implants. The surgeon intentionally slit the envelope to allow the gel to escape and fill the mammary pockets. The issue was whether the technique of slitting was negligent. (the procedure had been in common use at one time but was no longer used). The court held that the proper test for the standard of care where the P attacks the surgical procedure selected and employed by the doctor is: Whether the physician undertook a mode or form of treatment which a reasonable and prudent member of the medical profession would not undertake under the same or similar circumstances.

            States that instruct on two schools of thought often impose restrictions on the defense:

1.       size of the respectable minority (how many physician constitutes a minority)

2.      failures to properly diagnose

3.      Weight given to the plaintiff as to good practice

A corollary of the “respectable minority “ rule is the “honest error in judgement” doctrine which allows for a range of uncertainty in choosing between alternative treatments.

Practice Guidelines As An Affirmative Defense

Medical practice guidelines or practice protocols might to be used as an affirmative defense by physicians in a malpractice suit to show compliance with accepted practice.

In Maine, legislation was passed to immunize physicians from suit if they practice in accordance with such standards. 

The law was premised on the idea that doctors practice too much “defensive medicine” in response to liability fears.

Clinical Innovation

In Brook v. St.John’s Hickey Memorial Hospital, a radiologist injected contrast medium into the calves of the patient leg rather than the buttocks (the recommended site). The patient later experienced injury and sued the doctor, alleging that the doctor was trying an untested medical experiment as the injection site was not specifically recommended by the medical community. The court disagreed and held that the doctor had professional reasons (articles cautioned against an injection in the buttocks for young children and the procedure was successful in the past). Moreover, a physician is presumed to have the knowledge and skill necessary to use some innovation to fit the peculiar circumstances of each case.

Experiments are acceptable to courts when conventional treatments are largely ineffective or where the patient is terminally ill and has little to lose by experimentation.

Most clinical innovation falls somewhere between standard practice and experimental research.

            Good Samaritan Acts

This type of legislation is too protect health care professionals who render emergency aid from civil liability for damages for any injury they cause or enhance.

The scene of the emergency:

In McKenena v. Cedars Hospital (CA) the court said nothing in the statute precludes application of the Good Samaritan statute to emergency situations in hospitals (doctor was a medical volunteer as he was not “on call” for emergencies)

In TX the scene of the emergency does not include a hospital or other healthcare facility or means of medical transport.

            Statute of Limitations

In Sax v Votteler, the parents of a child brought a medical malpractice suit on her behalf. Treatment ended in ’76, the suit was commenced in ’79. The D sought summary judgement on the basis that the statute of limitation had run out. The parents challenged the constitutionality of the statute. The statute provide that adults had two years to bring a suit and minors under six had until their eight birthday to bring suit. The court held that, under the TX due process provision, the statute was unconstitutional. The effect of the statute was to effectively bar the child any remedy if the parents failed to file suit. Status of the law after the case:

            Statute of limitations:

Adult: two years after the breach or tort (if not clearly identifiable go to 2 or 3)

                    Minor: two years after attaining majority or removal of disabilities.

Sax sets forth the test for analyzing a litigant’s right to redress:

            Litigant must satisfy two criteria:

(1)    it must be shown that the litigant has a cognizable common law cause of action that is being restricted

(2)    the litigant must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute

In Borderlon, the Doctor purposefully left a needle in a patient. The patient alleged that he fraudulently concealed the fact. The patient brought a suit six days after the two-year SOL. The D argued that the suit was too late and that sec. 10.01 abolished fraudulent concealment as an equitable estoppel to the defense of limitations. The court disagrees and holds that “sec. 10.01 does not abolish fraudulent concealment as an equitable estoppel to the affirmative defense of limitations under that statute.


            Statute of Limitations

            Texas is governed by art. 4590I sections 4.01 and 10.01

            4.01 notice letter

You have to give 60 days notice before you file suit. This notice letter will toll the statute of limitations for 75 days. The 60-day notice period is designed to facilitate settlement. (it  is  a sixty day abatement period where nothing is supposed to go on)

If you have multiple D’s, if you send notice to one D it is notice for all the D’s

RULE: notice to one is notice to all (this rule applies to the statute of limitations but does not apply to the sixty-day abatement period, Each D is still entitled to that, but it is not a big deal)

If you give notice you will get two years and 75 days (from the date of the tort/breach to file suit)

If you wait until two years and one day to give notice, you are out of luck.

RULE: No claim may ever be timely lodged more than two years and 75 days after its accrual.


                        When do the SOL begin to run?

                        Cause of action begins to run:

1.       date of the breach or tort

2.       date of the last treatment

3.       date of last hospitalization

If you have a clearly identifiable date you have to use that date (P’s should pick the earliest possible date that way you avoid any problem of exceeding the SOL)

If you can clearly identify the date of the injury, that is the date the cause of action accrues.

In Morrison, P argued that the statute of limitations begin to run with the occurrence of the last of the three events. Court said NO.


                        Sec. 10.01 says: minors under 12 get until they are 14 to file suit

                        However, this is the law: Minors get 18+2

            Tolling provisions   

General Rule: no tolling provisions apply outside 4590i (minority and 75days are contained within 4590i)

                        Minority does toll it; minors get 18=2

                        “Relation back” doctrine does still apply

Valdez said: Suspension statue does apply (which provides for the temporary suspension, 12 month, of limitations in case of the death of the person in whose favor the cause of action has accrued) but does not apply to wrongful death suits. THIS IS NO LONGER GOOD LAW

The discovery rule (the statute of limitations did not begin to run until the patient knew or should have known of the alleged malpractice) does not apply.

Physicians temporary absence from the state will not toll the SOL (in a non-med/mal case, D’s absence from the state will not toll the SOL)

Open Courts Provision: the rationale underlying the provision is that the legislature has no power to make a remedy by due course of law contingent on an impossible condition = you can’t give someone a cause of action and then take it away before they know they have a cause of action

In Shidaker v. Winsett, the estate of the deceased brought suit and alleged that the doc’s negligent diagnosis and medical treatment was the proximate cause of his death. Doctor Winsett moved for summary judgment on the ground that the Shidakers' claims were barred by limitations specified in the Medical Liability and Insurance Improvement Act of Texas (the Medical Liability Act). As material to this cause, the Act provides that: Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.  It followed, Dr. Winsett proposed, that since the Shidakers' action filed on October 14, 1988 was filed more than two years after he last examined or treated the deceased on October 1, 1985, their claims are barred by limitations. In response, the Shidakers answered that their cause of action was for wrongful death, which did not arise until the deceased died on May 13, 1987, and their action, filed less than two years later, was timely under the statute addressing limitations of personal actions. The statute provides that: A person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person. The court held that: (1) statute of limitations of the Medical Liability Act, rather than wrongful death limitations statute, applied to the action, and (2) application of the Medical Liability Act limitations period did not violate the open courts provision where plaintiffs were aware of the alleged malpractice by the physician within one year and patient died more than four months before the limitations period expired.

In Jennings v. Burgess, Patient sued her primary care physician claiming that he negligently referred her to another general practitioner for treatment of cancerous nasal lesion. The court held that two-year statute of limitations began to run on date of referral, and since plaintiff had reasonable opportunity to discover alleged wrong and bring suit, open courts provision did not prevent statute of limitations from applying.

            Contributory Fault of The Patient

In Ostrowski v. Azzara, the patient was a heavy smoker and an insulin dependent diabetic. She sought treatment from D of a hurt toe. D cut off the toenail. The toe failed to heal and had to be cut-off. P alleges that the doctor acted negligently by cutting off the toenail w/o adequate consideration of P’s condition. D argued that P continued to smoke cigarettes and failed to maintain her diet; both of which contributed to the injury. The jury concluded that D was negligent but since P was 51% at fault no recovery was allowed. The court discusses a number of doctrines and how they apply:

            Comparative negligence: P can recover if his fault is less than 50%

Doctrine of avoidable consequences: a P who has suffered an injury as the proximate result of a tort cannot recover for any portion of the harm that by the exercise of reasonable care he could have avoided (comes into action when the injured parties carelessness occurs after the D’s legal wrong has been committed) this is a rule of damages not a defense                

Doctrine of the particularly susceptible victim: a defendant must take the plaintiff as he finds him (i.e. with pre-existing conditions)

Doctrine of aggravation of a preexisting condition: a D whose acts aggravate a P’s preexisting condition is liable only for the amount of harm actually caused by the negligence

In a case like this where P already has a preexisting condition the doctrine of comparative negligence would not be appropriate. The pre-treatment health habits of a patient are not to be considered as evidence of fault that would have otherwise been pled in bar to a claim of injury due to the professional misconduct of a health professional. However, mitigation or apportionment of damages may be expressed in terms of the patient’s fault.

Court basically says that if a doctor make a patient worse off than they already were, then the doctor is liable.


Smoking is not a simple, easily abandoned choice so it may be unfair to bar recovery based on that.

The theory of contributory negligence is typically invoked when a patient failed to follow physician’s instructions after a procedure was performed or while in the hospital.

The defense Assumption of risk has been successful when the patient decides to undergo unconventional treatment (as long as she was clear of the nature of the treatment and signed a consent form) and in cases of obvious defects of which the patient should have been aware, such as hazards in the hospital room (P tripped over TV cord in hospital room; she knew it was there, having previously pointed it out to the staff) TX


In a contributory negligence case – any negligence on the part of the plaintiff bars recovery

In Texas we have comparative negligence: a claimant may not recover damages if his percentage of responsibility is greater than 50% (see Ch.33)

However, if the plaintiff was intentionally harmed then the defendant is still liable (so if D’s intentional act resulted in 20% of the responsibility, P can still collect for the 20%)

The trier of fact (jury) must determine the percentage of responsibility for all of these parties: each claimant, defendant, settling person and responsible 3rd party who has been joined

If one of the defendants settles before the trail, the remaining D’s can either take a dollar for dollar credit or can take a percentage credit For example if D1 decides to settle for $100,000, D2 and D3 must make a decision before trial;

say they choose a dollar for dollar credit (as most D’s do) and the verdict was $1mil, then they would have to pay $900,000. If they had chosen a percentage credit they would have to pay $800,000. So in this case they would have been better off with the percentage credit. (the percentage is determined by the statute, not percentage of liability)

If a defendant is held to be more than 50% responsible, he is held to be jointly and severally liable.

            Multiple Defendants

                        Joint Tortfeasor Doctrine

In the typical malpractice case in which the parties acted together to commit the wrong, or the parties acts, if independent, unite to cause a single injury, multiple defendants are considered joint rather than separate tortfeasors

The culpable defendant is responsible for all damages unless he can demonstrate that the damages for which he is responsible are capable of some reasonable apportionment.

                        Multiple Defendants and Burden Shifting

What if someone caused an injury but its impossible to determine which D caused the injury (see Ybarra; patient was under, so could not know who messed up during surgery)?

Many states will use burden shifting to cover multiple defendants/uncertain proof situations.

The burden is then placed on each D to prove that he did not cause the harm.

Cases involving the marketing of drugs and multiple defendants sometimes use “market share” to determine liability.

                        Alternate Causal Tests

              Proximate cause has been criticized as being a confusing doctrine.

CA. has adopted a “substantial factor” test where the jury is asked to determine whether the defendants conduct was a “substantial factor” in bringing about harm.

            Lost Chance of Survival

In order to win a medical malpractice action the P must show proximate causation: that the negligence caused the injury or death

The ultimate standard of proof on the causation issue is whether, by a preponderance of the evidence, the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred. (but for the negligence his chance of survival was greater than 50%)

The effect of the standard is to bar recovery where the defendants negligence deprived the tort victim of only a 50% or less chance of avoiding the ultimate harm.

Where preexisting illnesses or injuries have made a patients chance of avoiding the ultimate harm improbable even before the negligent conduct occurs (i.e. the patient would die or suffer impairment anyway) the application of these traditional causation principles will totally bar recovery, even if such negligence has deprived the patient of a chance of avoiding the harm.

A number of states have sough to ameliorate this result by adopting some version of the “loss of chance doctrine”

The theory is: say D’s negligence robbed the patient of their less than 50 % chance of survival, the patient should be able to recover for that loss of that chance of survival. Example: 


Survival Rates for Cancer Stage

 If detected at this stage              the survival rates is


                                                Zero                                         100%

                                                I                                               95%

                                                II                                              70-85%

                                                III                                            50%

                                                IV                                            0-5%

So if the doctor misdiagnoses at Stage Zero-II, the patient can show proximate cause under the traditional rules of proximate cause, at stage III-IV the P can’t prove proximate cause by a preponderance (50%) 

However, under systems that allow Lost Chance of Survival; if doc misdiagnoses cancer and P dies from the Stage IV cancer (which would have happened regardless of doctors misdiagnoses) the P could recover because she lost that 5% chance of survival

Three main variations:

(1)    relaxed causation: (lowers the standard of proof) this approach simply loosens the traditional standard of evidentiary sufficiency, permitting the causation issue to be resolved by the fact finder even though there is no evidence of  a reasonable probability that the D’s negligence cause the patients had death or other ultimate harm

(2)    separate injury; this approach conceptualizes the lost chance of survivable or improved health as a distinct, compensable injury, creating a separate cause of action for its recovery (damages are limited solely to the value of the lost chance)

(3)    Hybrid: applies the relaxed causation approach while limiting damages to the value of the lost chance.

The ultimate issue is whether the misdiagnosis caused the death or would the patient have died anyway, if he was already going to die, no matter what D’s did she was going to die, so their misdiagnosis did not cause the death and therefore they cannot be held liable for her death.

In Texas, there is no common-law cause of action for lost chance of survival in medical malpractice cases. If chance of survival is 50% or less the court will not allow a cause of action

Actions for personal injury of deceased victim and for separate injury of victim’s heirs are permitted solely by virtue of the Wrongful Death Act and survivorship statute.


Origins of the Informed Consent Doctrine

Informed consent has developed out of strong judicial deference toward individual autonomy, reflecting a basic belief that an individual has a right to be free from nonconsensual interference with his or her person

Doctrine of informed consent can serve six functions:

1.       protect individual autonomy

2.       protect patients status as a human being

3.       avoid fraud or duress

4.       encourage doctors to carefully consider their decisions

5.       foster rationale decision-making by the patient

6.       involve the public generally in medicine

The doctrine of battery provided the theoretical underpinnings of the cause of action

Battery protected a patients physical integrity from harmful contacts and had a number of advantages: (1) the physician has few defenses to battery (2) the plaintiff need not introduce expert testimony (3) to prove causation the P only need show an unconsented to touching occurred

So need consent forms to allow touching, as touching w/o consent is a battery.

In Tx, 4590i says an informed consent claim must be brought under the statute and is therefore a negligence claim, not a battery claim (the statute trumps the common-law battery claim)

Legal Framework of Informed Consent

Negligence as a basis for recovery

In Canterbury v. Spence, a patient went in to seek treatment for his back pain. He then submitted to an operation without being informed of the risk of paralysis incidental thereto. The lower half of his body ended up paralyzed. The trial court granted a motion for a directed verdict because there was no evidence of negligent treatment. The P argued that the negligence was in not informing the patient of the risks involved. The court agreed and held that the physician had a duty to disclose the risk of paralysis as matter of law. The court reasoned that part of the doctors duty to treat the patient is a duty of reasonable disclosure of the choices with respect to proposed therapy and the dangers inherently and potentially involved. The duty arises when such conduct is reasonable under the circumstances.

Scope of the disclosure: a risk is material and requires disclosure when a reasonable person would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.

The Cantebury rule uses the reasonable patient as the measure of the scope of the disclosure (patient oriented disclosure standard)

Other jurisdictions employ the professional disclosure standard, measuring the duty to disclose by the standard of the reasonable medical practitioner similarly situated (this is a physician oriented standard)

Arguments for this approach: (1) protects good medical practice (2) a pt oriented standard would force docs to spend unnecessary time going over every possible risk (3) only the physician can accurately evaluate the risk on the individual patient

Categories of info to be disclosed:

1.       diagnosis

2.       nature and purpose of proposed treatment

3.       risks of the treatment

4.       treatment alternatives

Disclosure of Physician-Specific Risk Information

In Johnson v. Kokemoor, the patient alleged that the doctor, in undertaking his duty to obtain the patients informed consent before operating to clip an aneurysm, failed (1) to divulge the extent of his experience (2) to compare the morbidity and mortality rates for this type of surgery among experienced surgeons and inexperienced surgeons (3) to refer the patient to somewhere staffed with more experienced surgeons. The court held that (1) evidence regarding surgeon's lack of experience with particular surgical procedure and difficulty of proposed procedure was properly admitted; (2) statistical evidence concerning morbidity and mortality rates when surgery at issue was performed by physician of limited experience, such as defendant surgeon, and by acknowledged masters in field was properly admitted; and (3) evidence that surgeon should have advised patient of possibility of undergoing surgery at tertiary care facility with more experienced surgeon in better-equipped facility was properly admitted. All of these things could be important to the patients’ decision and had a reasonable person in P’s position been aware of these three things they would not have undergone surgery with D.

Note: Most courts resist requirements that specific percentages of risks be disclosed arguing that medicine is an inexact science. In Tx we rely on credentialing or peer review to take care of doctors who have low success rates or diminished skills (there is no case in Tx that holds that the doc has to reveal specific info about his success)

Texas has adopted the Cantebury reasonable person rule by way of statute. §6.02 of 4590i replaces the common law locality rule with the reasonable person rule, which focuses on the disclosures that would influence a reasonable person in deciding whether to consent to a recommended medical procedure.

Under §6.03, In Texas the Texas Medical Disclosure Panel examines every medical and surgical procedure and determines whether disclosure is required and how much is required. (the panel is composed of nine members = 6 doctors and 3 lawyers)

The panel comes up with two lists:

List A = all procedures the panel has looked at and decided require full disclosure

List B = no disclosure required

If no determination has been made the duty imposed is: to disclose all risks or hazards which could influence a reasonable person in making a decision to consent to the procedure.

If a procedure is on list A and there is no disclosure, it creates a rebuttable presumption that the doctor was negligent.

Barclay case: the doc failed to disclose certain risks associated w/ some drugs he prescribed to the patient. There was no panel determination in this case, therefore P must prove by expert testimony that the medical condition complained of is a risk inherent in the medical procedure performed. The P must show two things:

(1)    the risk is inherent in the procedure and

(2)    the risk is material (could influence a reasonable persons decision to consent to the procedure)

In the above case, the doc said that he did not inform the patient of the side effects because he felt the patient needed to take the medicine (P was crazy) and would not have taken it had he known of the risks/side effects. The court said it is not up to the doc, it is up to the reasonable patient standard: would a reasonable patient have taken the drugs even though he knew of the risk.

Who can consent? competent adults, it is not a legal definition of competency, you can give consent if the doctor decides you are competent to give consent. Parents/guardians can consent for minors.

In Ritter v. Delaney (TX) the P claims that the hospital failed to obtain her informed consent to the surgical procedure. P was trying to claim that the hospital was liable under an agency theory since a nurse obtained her consent. The court held that only the operating physician, and not the hospital or other physician involved in the diagnosis and/or treatment of P’s condition, had a duty to obtain pts informed consent to the surgical procedure.

In Melissino (TX) (case where Loatian refugees thumb was crushed) patient refused to consent to thumb reconstruction but consented to what he thought was just a skin graft which was in fact a thumb reconstruction. The court held that the doc misrepresented the facts and therefore failed to obtain the pts informed consent.

Disclosure of Statistical Mortality Information

Patients with diseases such as cancer usually face a reduced life expectancy even with the best medical treatment. Must the doctor inform the patient of his life expectancy based on statistical tables?

In Arato v. Avedon, the patient was diagnosed w/ pancreatic cancer and his doctors recommended he undergo chemo-therapy. They informed him of the effectiveness of the treatment, its side effects, and noted that one of his options was not to under go the treatment. In addition, they told him at the outset that most such victims die of the disease, they did not disclose to him the high statistical mortality rate associated w/ such cancer. P argued that the physicians breached their duty to obtain the patients informed consent by failing to disclose his statistical life expectancy. (and that such info was material to his decision to undergo postoperative treatment) The court held that the appropriate measure of physicians' conduct was whether physicians disclosed all material information to patient. Doctrine of informed consent imposes on physician duty to disclose to patient all material information--information that physician knows or should know would be regarded as significant by reasonable person in patient's position when deciding to accept or reject recommended medical procedure--needed to make informed decision regarding proposed treatment; doctrine does not require as a matter of law that particular species of information be disclosed.

            Disclosure of Risks of Non-Treatment

In Truman v. Thomas, P went to see doc about vaginal discharges and a rough cervix. The doc treated P for a 7-year period. She was finally diagnosed with cervical cancer and died soon thereafter. Her children brought a wrongful death action against the doc for his failure to perform a pap smear test. They argue that he breached his duty of care to Pt when he failed to inform her of the potentially fatal consequences of allowing cervical cancer to develop undetected by a pap smear. The doc argued that a patient who rejects her physicians advice has the burden of inquiring as to the consequences of the decision. The court held that the Scope of physician's duty to disclose is measured by amount of knowledge patient needs in order to make an informed choice; all information material to patient's decision should be given. Moreover, If patient indicates that he or she is going to decline risk-free test or treatment, then doctor has duty of advising of all material risks of which reasonable person would want to be informed before deciding not to undergo procedure. The “fiducial qualities” of the physician-patient relationship mandate disclosure, given patient ignorance.

Note: there is some concern that the physician may go for a “hard sell” in order to avoid the applications of the Truman doctrine

            Disclosure of Physician Conflicts of Interest

Medical professionals are in a position of dominance with regard to their patients. The relationship is inherently unequal. As a result the law imposes a fiduciary duty upon the physician.

In Moore v. Regents of the University of Ca, the patient was diagnosed with hairy cell leukemia. The D’s recommended that his spleen be removed and intended to use his spleen to develop commercial products. D’s did not inform P of their intent or subsequent actions. P alleges that D failed to disclose the extent of his research and economic interests in Moore's cells before obtaining consent to the medical procedures by which the cells were extracted. The court concludes that (1) a physician must disclose personal interests unrelated to the patient's health, whether research or economic, that may affect the physician's professional judgment; and (2) a physician's failure to disclose such interests may give rise to a cause of action for performing medical procedures without informed consent or breach of fiduciary duty. Accordingly, we hold that a physician who is seeking a patient's consent for a medical procedure must, in order to satisfy his fiduciary duty and to obtain the patient's informed consent, disclose personal interests unrelated to the patient's health, whether research or economic, that may affect his medical judgment.


Traditionally the relationship of doctor to hospital was one of independent contractor rather than employee. The hospital, therefore, was not regularly targeted as a defendant in a medical malpractice suit.

Until recently hospitals have been considered as charitable institutions, and as such were exempted from the general rule that a corporation is responsible for its employees.

The reasons for the charitable immunity were related to hospital difficulties in getting liability insurance and the fiscal fragility of many hospitals in a time before extensive government financing of health care.

The rule of charitable immunity has all but disappeared. (although governmental immunity still remains)

Two basic kinds of liability for a hospital: (1) Vicarious and (2) Direct

Vicarious Liability Doctrine

Generally the hospital is not liable for the physicians actions because the docs are considered independent contractors.

Vicarious liability theories are a way to get around the I/C relationship and hold the hospital liable for the docs actions.

Captain of the Ship Doctrine: provides that a physician who exercise control and authority over nurses and other health care professional should be held liable for their negligence. It is a strict liability theory, often predicated on the surgeons “right to control”, rather than actual control. (TX has rejected this doctrine see above)

As a general rule, absent an employment relationship, a doctors mere affiliation with a hospital is not sufficient to hold a hospital vicariously liable for the doctors negligent conduct. A hospital does not generally expose itself to vicarious liability for a doctor’s action by merely extending staff privileges.

There are three theories of vicarious liability: (1) right to control (2) ostensible agency and (3) inherent function

1. The Control Test: In Berel v. HCA Health Services of Texas, Inc, the court held that if a hospital retains the right to control the details of the work to be performed by a contracting party, a master-servant relationship exists that will authorize the application of the doctrine of respondent superior. It is the right to control, not actual control, that gives rise to a duty to see that the independent contractor performs his work in a safe manner.

Under this theory the P is trying to get to the hospital by saying that the hospital had the right to control the actions of the physician and is therefore liable for his actions

In determining whether the hospital has a right to control the court will look at:

·         whether the physician has an outside office/practice

·         if he has an office in the hospital; whether he pays rent

·         does hospital withhold from the docs checks

·         does the doc bill separately

2. Ostensible agency (or apparent agency): one who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for the physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants 

The basic notion is that if it appears to the patient that the doctor is a hospital employee then the hospital can be held liable

Ostensible agency is from the perspective of the P

Factors court will look at:

·         what did the doctor say to the patient

·         is there hospital advertisement featuring doctors

·         does the doc wear the hospital name on his coat

·         look at brochures in lobby

Note: you cannot have ostensible agency with a government entity: in such a case the doc is either an employee or an independent contractor


TX treats Ostensible agency as an affirmative defense for the plaintiff, that is when the hospital proves that the doc was not an employee, then P will assert ostensible agency as a defense to the hospitals claim

As a general rule a hospital is not ordinarily liable for the negligence of a physician who is an independent contractor.

However, a hospital may be vicariously liable for the medical malpractice of independent contractor physicians when plaintiffs can establish the elements of ostensible agency:

(1)    the patient had a reasonable belief that the physician was the agent or employee of the hospital

(2)    such belief was generated by the hospital affirmatively holding out the physician as its agent or employee or knowingly permitting the physician to hold herself out as the hospitals agent or employee and 

(3)    he justifiably relied on the representation of authority

The patients belief must be based on or generated by some conduct on the part of the hospital (that the patient did not read the forms or signs and just “thought” the doc was an employee is not enough)

In Bapist Memorial Hospital Sytem v. Smith, Patient who suffered severe brain damage when he went into cardio-respiratory arrest in emergency room after administration of antibiotics brought medical malpractice suit against emergency room doctor and hospital.  He sought to get to the hospital through an ostensible agency theory. The court held that the evidence was sufficient to warrant jury's affirmative finding that hospital represented that doctor was hospital's agent or employee and caused patient to justifiably rely on care and skill of doctor. The evidence showed that hospital placed doctor in position of authority, with implied representation that he was an employee of hospital; moreover, no notices in emergency room hospital or on permission to treat form advised patient that doctor was actually employed by professional association rather than hospital, the clerk asked if he wanted to see one of “our” doctors, and there was a magazine article which made references to the hospitals “skilled health care professionals”.

3. Inherent function: Does the doctor perform a service, which was an inherent function of the hospital, a function without which the hospital could not properly achieve its purpose (like a radiology or lab work)

The idea is that these functions are so inherently important to the function of the hospital, that if the doc performs one he will be liable as an employee



In Washington v. Washington Hospital Center, the patient suffered permanent brain injury from oxygen deprivation in the course of general anesthesia for elective surgery. She sued the hospital for negligently failing to provide a device that allows for early detection of insufficient oxygen in time to prevent the brain injury. The plaintiff presented expert testimony and medical journals, which said such devices are an emerging standard. The hospital argued that the evidence was insufficient and only reflects “recommendations.” The court held that a reasonably prudent juror could find that a reasonably prudent hospital, at the time of the injury, and according to national standards, would have supplied the device.  A standard of due care necessarily embodies what a reasonable prudent hospital would do, and hence care and foresight exceeding the minimum required by law or mandatory professional regulation may be necessary to meet that standard.

A healthcare institution, whether a hospital, nursing home, or clinic, is liable for negligence in:

·         maintaining its facilities,

·         providing and maintaining medical equipment,

·         hiring, supervising, and retaining nurses and other staff, and

·         failing to have in place procedures to protect patients.

·         failing to provide adequate security

·         negligent credentialing

Basic negligence principals govern hospital liability.

The professional duty of a hospital is primarily to provide a safe environment within which diagnosis, treatment, and recovery can be carried out.

Hospitals must have minimum facility and support systems to treat the range of problems and side effects that accompany procedures they offer.

Staffing must be adequate. 

Equipment must be adequate for the services offered, although it need not be the state of the art (there is a duty to transfer if the hospital lacks the necessary device) 

Hospitals own safety rules or internal regulations may serve as a source of a standard of care.


In St. Lukes v Agbor, P sued the hospital for negligently and grossly negligently credentialing of a physician who delivered P’s baby. (P’s allege that the hospital should not have renewed the doctors staff privileges because she has been the subject of many malpractice suits and was not properly insured). D argued that The Medical Practice Act bars such an action, while P argues that because the statute only allows a lawsuit committed with malice, the Legislature did not intend it to apply to patients suits.(they claim it was only meant to protect peer review committees) The court hold that the Act applies and that a hospital is immune from liability in all cases for credentilaing decisions absent a showing of malice. Moreover, since negligent credentialing is not a well-recognized common law cause of action; the Act does not violate the Open Courts Provision.

Malice: required for claim of negligent credentialing against defendant hospital is

(1)    a specific intent by defendant to cause substantial injury to the plaintiff or

(2)     an act or omission that when viewed objectively from the standpoint of the defendant at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others and the defendant has actual or subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

In Bomar v. Walls Regional Hospital, the court held that an owner can be liable for the negligent hiring of an independent contractor when the plaintiffs injuries arise from the hiring of the independent contractor.

            Note: Initial application for privileges is not discoverable

Negligence Per Se

The usual American practice in a tort case not involving health care is to treat violation of a statute as negligence per se, giving rise to a rebuttable presumption of negligence.

In malpractice case, however, standards are typically used to create only a permissible inference of negligence, allowing the plaintiff to get the jury which can then accept or reject the inference of fault.

In Edwards v. Brandywine Hospital, a heparin lock was left in place for either 3 or 4 days, in apparent violation of standards promulgated by the Penn Dept of Health (which said that such lock should be changed every 48 hours). P subsequently developed an infection and sued the hospital. The trial court held that it was negligence as a matter of law. The Superior Court revered and held that it was not negligence per se as the regulation only referenced the standard and did not require its adoption.

Courts have proved resistant to the application of negligence per se to health care institutions, even to create an inference of negligence, unless the standard is specific and supported by expert testimony.

            Duties to Treat Patients

What happens when the patients insurance or other resources are exhausted but the staff physician believes that continued hospitalization is needed?

In Muse v. Charter Hospital of Winston-Salem, Inc., P argued that that the hospital was negligent in that, inter alia, it had a policy practice which required physicians to discharge patients when their insurance expired and that this policy interfered with the exercise of the medical judgement of his treating physician. The D argued that the theory is not a recognized theory of liability. The court held that the general duty of care owed by the hospital to its patients includes a duty not to institute a policy or practice, which required patients to be discharged when their insurance expired.

            Strict Liability

Courts apply strict liability to the distributors of medical products but are reluctant to extend strict liability to a health care provider using the product in such a way incidental to the primary function of providing medical services. Hospitals are not in the business of selling drugs or medical devices, rather they are in the business of providing services.

Hospital administrative and mechanical services have been held to be subject to strict liability.

NOTE: There is a federal act that prevents patient dumping by hospitals. When a patient comes to a hospital and does not have insurance, the hospital cannot just send him off they have to stabilize him.

Managed Care Organizations

Managed care: a phrase often used to describe organizational groupings that attempt to control the utilization of health care services through a variety of techniques, including prepayment by subscribers for services on a contract basis, use of physicians as “gatekeepers” for hospital and specialty services.

The goal of managed care is to reduce health care costs and maximize value to both patient and payer

            Theories of Liabilities

HMOs and IPA’s in theory face the same vicarious and corporate liability questions as hospitals.

Vicarious liability 

These were the first waves of litigation against MCOs

In Boyd v. Albert Einstein Medical Center, P claimed that the HMO was liable for the doctor negligence under an ostensible agency theory. The trial court granted summary judgement for D. The court applied the following test

Two factors in determining ostensible agency:

1.       there is a likelihood that patients will look to the institution rather than the individual physician for care, and

2.       did the hospital hold out the physician as its employee

The court held that the evidence (P paid fees to hospital, HMO advertised that its physicians were competent, P selected doctor from a list provided by the HMO, docs were screened by the HMO) creates an issue of material fact as to whether the docs were the ostensible agents of the HMO.


1.       advertisements claiming a “total care program” as “an entire health care system” could make someone conclude that the physicians of an HMO are its employees.

2.       IPAs and HMOs that become “the institution” that “hold out” the independent contractor as an employee, and also restrict provider selection, which makes those providers that are approved are agents, are vulnerable to ostensible agency arguments.

3.       Public policy argument: Cts say that opening up the HMOs to possible vicarious liability force them to select better doctors.

Direct Institutional Liability

Recent decisions addressing managed care liability indicates judicial willingness to give providers leeway to practice a more conservative cost effective style.

Some designs of physician incentives to promote more cost-effective treatment has, however, been tested.

In Bush v. Dake, the HMO employed a “pool” system, whereby physicians were paid more if they referred less, P claimed that the system was responsible for her misdiagnosis and that such a system violates public policy. The court held that whether the system represents sound public policy is a question for the legislature. However, the court also held that the policy of paying a physician more for not referring a patient was a factor that could be decided by a jury to determine whether the incentives lead to malpractice.


Three relevant features that most managed care programs have from a liability standpoint are:

1.       such programs select a restricted group of health care professionals who provide services to the program’s participants.

2.       Such programs accept a fixed payment per subscriber, in exchange for provision of necessary care.

3.       Managed care organizations use a variety of strategies to ensure cost effective care, such as altering physician incentives.

Duty to Disclose Financial Incentives

See Health Maintenance Organizations, Competitive Medical Plans, and Health Care Prepayment Plans    pg 270


The disclosure act was a compromise.

More info was not required due to:

·         not wanting to put an undue burden on the prepaid plans

·         fee-for-service physicians are not required to provide a notice that they have incentives to provide excessive services.

·         certain info is proprietary and is exempt from disclosure under the FOIA.

Disclosure is a remedy that coincides developments in the theories of informed consent, fiduciary law, and Fraud and Abuse legislation.  Stark amendment prohibit HMOs with medicaid Ks from knowingly paying, directly or indirectly, a physician to induce him to reduce or limit services.

Disclosure is not a very successful cause of action

Problems with disclosure:

·         patients may lack a choice of alternate providers, even if disclosure is made

·         disclosure assumes that cost-sensitive care is less high quality care 

Many HMO’s include gag clauses in their contract with physicians 

Corporate Negligence

Shannon V. McNulty (Pa. 1996)

In Thompson v. Nason Hospital. The Ct. set forth four general areas of corporate liability for hospitals:

·         A duty to use reasonable care in the maintenance of safe and adequate facilities and equipment

·         A duty to select and retain only competent physician

·         A duty to oversee all persons who practice medicine within its walls as to patient care;

·         A duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for patients.

The Ct. then explicitly made HMOs, under the right circumstances, corporately liable for a breach of any of the Thompson duties which causes harm to its subscribers. For Ex:When a benefits provider, be it an insurer or a medical managed care org., interjects itself into the rendering of medical decisions affecting a subscriber’s care it must do so in a medically reasonable manner.  

Defenses to Managed Care Liabilities


§514(a0 provides that ERISA “shall supercede any and all state laws insofar as they may now or hereafter ‘relate to’ any employee benefit plan”

§502(a)(1)(B), states in pertinent part

(a)     Persons empowered to bring a civil action

A civil action may be brought

(1) by a participant or beneficiary

(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan....

The Employee Retirement Income Security Act of 1974 (ERISA) established uniform standards for employee benefits plans and broadly preempted state regulation of these plans.

The statute states that ERISA supercedes state laws to the extent that they “relate to any employee benefit plan” covered by ERISA

ERISA was interpreted by the federal courts in the first wave of litigation as totally preempting common law tort claims (broad interpretation)

However, courts are now beginning to limit the preemption and clause and are holding that many tort theories have little or nothing to do with the administration of pension plan or other benefits

In Estate of Frappier v. Wishnov, decedents estate brought a suit against an HMO and alleged that the decedent died as the result of the medical malpractice of the two doctors. P’s claimed HMO was liable because of direct liability, corporate liability, vicarious liability, and contract theories. D said the claim should be preempted to federal court since the HMO was an ERISA plan. The court said that as a general rule, actions that “relate to” ERISA are preempted by federal law. Concerning the direct negligence, corporate liability and implied contract claims, we concur with the lower court's decision that these allegations would be completely preempted because they present issues unequivocally related to the administration of the plan and are within the scope of section 502(a)(1)(B). However, in no event may the vicarious liability count be dismissed as the same does not "relate to" an employee benefit plan.

Similarly in Pappas v. Asbel v. United States Healthcare Systems of Pennsylvania, Inc. The Court ruled that negligence causes of action were not preempted to fed. courts by ERISA. The court reasoned that Congress could not have intended to fore close recovery to plan beneficiaries injured by negligent medical decisions.

Dukes v. US Healthcare, Inc.

Ct. left open an escape valve for ERISA qualified managed care plans.  The plan could devise a K that would set the quality standard for the provision of health care, thus forcing subscribers to opt out of state law. 

Note: P’s are saying that these are state causes of action and they are not trying to get after plan benefits

In all the ERISA cases the HMO is arguing that the state action brought by the P is a claim that arise under federal law and is thus removable to federal court.

To determine whether a claim "arises under" federal law--and thus is removable--we begin with the "well-pleaded complaint rule." Under the well-pleaded complaint rule, a cause of action "arises under" federal law, and removal is proper, only if a federal question is presented on the face of the plaintiff's properly pleaded complaint.  A federal defense to a plaintiff's state law cause of action ordinarily does not appear on the face of the well-pleaded complaint, and, therefore, usually is insufficient to warrant removal to federal court. Thus, it is well-established that the defense of preemption ordinarily is insufficient justification to permit removal to federal court.

However, The Supreme Court has recognized an exception to the well-pleaded complaint rule--the "complete preemption" exception--under which "Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character."

The Supreme court has determined that Congress intended the complete-preemption doctrine to apply to state law causes of action which fit within the scope of ERISA’s civil-enforcement provisions. It does not include all state claims

TEST: To determine whether the state law claims fall within the scope of § 502(a)(1)(B), must determine whether those claims, properly construed, are "to recover benefits due ... under the terms of [the] plan, to enforce ... rights under the terms of the plan, or to clarify ... rights to future benefits under the terms of the plan."

Examples: if P alleges that the HMOs refused to provide services to which membership entitled them (or cases in which the quality of P’s medical care or the medical skills of the personnel provided to administer that care are so low that the treatment received simply will not qualify as health care at all)

In Dukes v. US Healthcare, the P’s brought negligence suits against the HMO. The P’s received their membership in the HMO through their participation in an EROSA covered welfare plan. The D’s argued that the claims should be removed to federal court as the medical care received is itself the plan benefit. The court concluded that removal was improper. The court reasoned that the plaintiffs' claims, even when construed as U.S. Healthcare suggests, merely attack the quality of the benefits they received: The plaintiffs here simply do not claim that the plans erroneously withheld benefits due. Nor do they ask the state courts to enforce their rights under the terms of their respective plans or to clarify their rights to future benefits. As a result, the plaintiffs' claims fall outside of the scope of § 502(a)(1)(B) and these cases must be remanded to the state courts from which they were removed.

In Corcoran (which Williams says is a horrible case), the Doc says put patient in the hospital because she is a high-risk pregnancy. The utilization review person sought an independent opinion (which said she should be hospitalized) but still refuses to hospitalize her. She lost the baby at home just like the doc feared. She sued for wrongful death. The court concludes that the decision made by the utilization review person was a medical decision but was done in the context of making a determination about the availability of benefits under the plan. Therefore the court holds that the tort action is preempted by ERISA.

Summation of Duke sand Corcoran: Claims challenging the quality of a benefit are not preempted by ERISA (Dukes). Claims based on a failure to treat where the failure was the result of a determination that the requested treatment wasn’t covered by the plan, however, are preempted by ERISA (Corcoran)

Corporate Health Insurance v. Texas Department of Insurance

Facts: P’s (insurance companies) requested a declaration that the Health Care and Liability Act is preempted by ERISA. The Act allows an individual to sue a health insurance carrier, health maintenance organization, or other managed care entity for damages proximately caused by the entity's failure to exercise ordinary care when making a health care treatment decision. P’s argue the Act "impermissibly interferes with the purpose, structure and balance of ERISA and FEHBA, thereby injecting state law into an area exclusively reserved for Congress." D’s contend that the Act regulates the quality of care provided by the HMO [s] operating in Texas. ERISA and FEHBA, in contrast, govern what types of regulations may be placed on an employee benefit plan.


·         under ERISA preemption analysis, a state law relates to an ERISA plan if it has a connection with or reference to such a plan (the Act does not make reference, in fact it expressly excludes ERISA plans)

·         prevision that allowed Independent Review Organization was preempted (and severed from the act)

Purpose of ERISA: so large employee benefits plans will not have to worry about different state regulations

Purpose of Health Care Liability Act: prevent health plans from escaping liability for the medical decisions they “make” “control” or “influence”

            HMO’s want ERISA pre-emptions in order to limit damages

The Health Care Liability Act allows HMO’s to get sued. The Texas legislature felt HMO’s were making medical decisions and therefore are subject to the standard of care.


ERISA will preempt decisions relating to utilization review (are the benefits allowed under pre-certification review) ERISA will not preempt bad decisions made by the doctor about medical care

The key issue in HMO suits is whether it is a qualified plan under ERISA (65 – 75% of the plans are). Once you decide this, you have to look at the preemption language and decide what does ‘relate to’ mean. Have to consider the underlying issues:

What type of decision is being made by the HMO (if it is a benefits decision then ERISA applies)


(1)    is it an ERISA plan

(2)    does the decision relate to bad medical care or denial of benefits

Tort Claims Act

Sovereign immunity: you cannot sue the state of Texas w/o their permission (includes all agencies and universities)

Official immunity: is what attaches to the governmental employee and has three elements:

1.       govt. employee has to be performing a discretionary function (he has to be exercising his own independent discretion, if he is doing what he is told it is a ministerial function and therefore no official immunity)

2.      Acting in good faith

3.      Within the course or scope of employment

The General Rule is that the State has sovereign immunity

So how can you sue the state? The Tort Claims Act is a limited waiver of sovereign immunity and allows a P to sue in the manner authorized by the Act. (If don’t act in accordance with the Act you will waive your suit)

§101.001 (2) Definition of an employee: “ a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor or employee of an independent contractor”

            There is no vicarious liability

            The person is either an employee or is not!

§ 101.021 Government Liability

            A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

            The damage must result from the use or misuse of tangible personal property:

A doc uses instrument to make a misdiagnosis. Here, a use or misuse did not cause the injury.

The use or misuse has to cause the injury (cuts wrong ligament w/ knife)

Failure to give medicine is non-use (P loses)

Giving him the wrong med. is a misuse

            §101.023 Limitation on Amount of Liability

(a) Liability of the state government under this chapter is limited to money damages in a maximum amount of $250,000 for each person and $500,000 for each single occurrence for bodily injury or death and $100,000 for each single occurrence for injury to or destruction of property.
(b) Except as provided by Subsection (c), liability of a unit of local government (County) under this chapter is limited to money damages in a maximum amount of $100,000 for each person and $300,000 for each single occurrence for bodily injury or death and $100,000 for each single occurrence for injury to or destruction of property.
(c) Liability of a municipality under this chapter is limited to money damages in a maximum amount of $250,000 for each person and $500,000 for each single occurrence for bodily injury or death and $100,000 for each single occurrence for injury to or destruction of property.

                        Local/County Govt.       $100,000/300,000

                        City                              $250,000/500,000

                        State                             $250,000/500,000

                        Maximum liability is $500,000

            §101.101 Notice

In order to use the state, you must give formal notice 6 months from the day of the incident or the claim is barred.

The notice must reasonably describe:

(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.

The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged.

You have to send the notice to someone who has authority (duty to investigate)

It is hard to show actual notice

The notice provision overrides all other SOL” as to the state (applies to minors, everyone)

            §101.106 Employees Not Liable After Settlement or Judgement

A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim

If you sue the state and the state settles or a judgement in favor or against the govt., the govt. employee gets off scot free

So if you want to get after the employee you have to nonsuit state w/o prejudice (but doc’s are normally not employee’s)