TEXAS SUPREME COURT JUSTICE LEHRMANN'S OPINIONS IN MEDICAL
AND PERSONAL INJURY CASES
(it should be noted that in every one of these cases Chief Justice Hecht disagreed with Justice Lehrman--SCOTexasBlog.com shows she is the least likely of the 8 Associate Justices to vote with Hecht on any case. In many of these cases, Justice Lehrmann was the sole dissenting vote.)
Health care liability cases
Tenet Hospitals Ltd. v. Rivera, 445 S.W.3d 698 (Tex. 2014)
• Mother, on behalf of minor child, brought action against hospital and physician for medical negligence, arising from emergency cesarean section allegedly resulting in minor's permanent neurological injury and disability.
Guzman authored. Held: TMLA statute of repose did not violate open courts provision and was not unconstitutionally retroactive
• Lehrmann solo dissent
o “However legitimate a statute's purpose, the Legislature may not abrogate a child's established common law cause of action before that child reaches the age of majority. The Medical Liability Act's statute of repose does exactly that in this case, violating the Texas Constitution's open courts guarantee as well as its prohibition against retroactive laws.”
Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011)
• Personal injury / medical malpractice case. Limitations.
• 7-2, Johnson authored. Held: two-year limitations period barred joinder of physicians even though patient had attempted joinder within 60 days of physicians' being designated as responsible third parties.
• Lehrmann dissented (joined by Medina)
o “the Legislature’s simultaneous adoption of a ten-year repose period for medical liability claims and its amendments to chapter 33 create an ambiguity that justifies consideration of legislative history bearing on the specific issue before us”Molinet v. Kimbrell, 356 S.W.3d 407, 418-19 (Tex. 2011) (Lehrmann, J., dissenting)
Franka v. Velasquez, 332 S.W.3d 367, 389 (Tex. 2011)
• Personal injury / medical malpractice claim arising from injuries to infant during birth.
• 7-2, Hecht authored. Fact issue about whether claim could be asserted against medical resident. Suit could be brought against university hospital under Tort Claims Act.
• Lehrmann joined Medina dissent.
Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392 (Tex. 2011)
• Nursing home resident died following a spider bite. Estate sued nursing home for negligence.
• 7-2, Johnson authored. Held: claim fell within the statutory definition of a health care liability claim (HCLC) so that estate was required to timely file an expert report.
o “The dissent opines that interpreting the language of the statute to mean what it simply and plainly says—as we do—will cause confusion. We fail to see how. Consistently interpreting statutory language according to its plain meaning and context, unless that interpretation yields an absurd or nonsensical result, honors the Legislature's intent and reduces confusion by giving legislators, the bar, and ordinary persons confidence that courts will interpret statutes to mean what they say. . . .”
o “It is not absurd or nonsensical for the Legislature to have required that a party filing suit against a health care provider must timely serve a statutory expert report. In a suit against a nursing home—a health care provider—based on allegations that the facility failed to take proper actions it should have ‘performed or furnished, ... for, to, or on behalf of a patient during the patient's ... confinement,’ a claimant must timely serve a statutory expert report. Johnson did not do so and her claim must be dismissed.”
• Lehrmann dissented (joined by Medina)
o “The Court's contorted reading of the statute will disserve both patients and health care providers.”
o “Health care providers will incur higher medical malpractice insurance premiums as insurers adjust their rates to account for more claims attributed to medical malpractice.”
Texas W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (Tex. 2012)
• Estate of psychiatric patient brought health care liability claim (HCLC) against hospital and hospital's employee who was involved in physical altercation with patient that resulted in patient's death and injuries to employee. Employee brought cross-claim of negligence against hospital, which was a nonsubscriber to workers' compensation scheme.
• 6-3, Wainwright authored. Held: to qualify as an HCLC, a claim that is based on departures from accepted standards of safety need not be directly related to health care
• Lehrmann dissented (joined by Medina/Willett)
o “Plainly, the Legislature contemplated that a health care liability claim based upon a departure from standards of health care would stem from medical treatment directed toward a particular patient—‘the patient’ whose care, treatment, or confinement is the subject of the lawsuit.”
But see CHCA Bayshore, L.P. v. Ramos, 388 S.W.3d 741, 744 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (applying “a separate aspect of the statutory definition of ‘health care liability claim’—that term's inclusion of ‘professional or administrative services directly related to health care’).
Lehrmann’s insistence that the TMLA is limited to claims arising from a direct physician-patient interaction ignores the obviously broader scope of the HCLC definition.
• The definition is not limited to physician defendants, but also includes “health care providers.”
• The definition is not limited to “medical care” or “health care”—it includes ancillary matters such as “professional or administrative services directly related to health care.”
o “In enacting chapter 74, the Legislature found that ‘the number of health care liability claims [had] increased since 1995 inordinately[,] caus[ing] a serious public problem in availability and affordability of adequate medical professional liability insurance.’ It adopted the Act to reduce the frequency and decrease the costs of those claims. By sweeping a whole new class of claims—negligence claims of employees of health care institutions—into chapter 74, the Court increases the number of health care liability claims and thwarts that purpose.” (Citations omitted.)
In this case and others, Lehrmann asserts the nonsensical proposition that drawing more claims into the HCLC definition somehow increases costs to health care providers. She ignores the effect that the TMLA has to screen out frivolous claims at an early stage—applying it more broadly means more claims have to survive the procedural barrier.
o “The upshot of the Court's decision is that medical professional liability insurers will be responsible for claims that normally would have fallen under a health care employer's workers compensation or comprehensive liability coverage.”
This is nonsense because the definition of HCLCs is completely unrelated to the scope of claims covered by various insurance policies typically used in the health-care industry.
o “The Court has previously declined to construe provisions of the Act in a way that would lead to absurd results.”
She thinks the tort reform outcome as applied by the majority is an “absurd result”! The absurdity doctrine should be a true safety valve of last resort to guard against obvious drafting errors. By saying this result is absurd, she legislates from the bench.
Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658 (Tex. 2010)
• Patient brought action against hospital to recover for injuries he sustained when he fell from bed while attempting to use footboard to push himself up into standing position.
• 5-4, Medina authored (plurality). Held: claims were HCLCs covered by TMLA
• Lehrmann joined Jefferson partial concur/dissent
o “Because I do not believe that the bed's footboard was integral to or inseparable from the health care services St. Luke's provided to Marks, I respectfully dissent from the Court's judgment affirming the court of appeals' judgment on this ground.”
Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012)
• Patients brought action against physician and, based on vicarious liability theory, his professional association (P.A.), asserting similar claims of civil assault for physician's alleged misconduct during medical examinations.
• Johnson authored (6-justice majority). Held: plaintiffs failed to rebut presumption that their claims were HCLCs, but deficiencies in report were curable.
• Lehrmann solo concur/dissent
o “. . . I believe the Court places too onerous a burden on claimants by requiring them to conclusively establish that their claims are not health care liability claims. I would require a claimant to satisfy a standard comparable to a “clear and convincing” standard of proof. Under that standard, a trial court should require a claimant asserting claims against a health care provider arising in the context of the delivery of medical services to file an expert report unless the record justifies a firm conviction or belief that the claims presented are not health care liability claims.”
o “. . . I would hold that plaintiffs whose claims arise in the medical context are not required to provide expert reports if the record justifies a firm belief or conviction that the claims are not health care liability claims. This is essentially the same as the burden of proof required to terminate parental rights.”
Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010)
• Medical malpractice action against hospital and physician, arising out of treatment of patient at hospital.
• Guzman wrote majority opinion, held that an expert report was conclusory with respect to causation and thus deficient.
• Lehrmann joined Jefferson partial dissent, which argued that an expert report was adequate to support a claim for pain and suffering based on the doctor’s malpractice.
• Lehrmann also wrote her own separate partial dissent to object to remanding the case to award attorney’s fees and costs.
Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012)
• Parents of state hospital psychiatric patient brought HCLC against hospital after patient placed plastic bag over his head and asphyxiated himself. Hospital claimed immunity on appeal.
• 6-3, Johnson authored. Held: hospital could raise sovereign immunity for the first time on appeal. Remand for development of record on jurisdictional issue.
• Hecht joined majority opinion and wrote concurring opinion
• Lehrmann concurred/dissented (joined by Jefferson/Medina). She would require the hospital to have raised sovereign immunity first in the trial court.
Other personal injury cases
Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011)
• Medical damages in personal injury car wreck case.
• 7-2, Hecht authored. Evidence provision limiting recovery of medical or health care expenses to the amount actually paid or incurred by or on behalf of the claimant limits recovery, and consequently the evidence at trial, to expenses that the provider has a legal right to be paid
• Lehrmann dissented (joined by Medina)
o “I disagree with the Court's conclusion that the Legislature intended to prohibit the introduction of evidence of amounts that are written off and never paid, as they represent collateral source benefits.” Haygood v. De Escabedo, 356 S.W.3d 390, 400 (Tex. 2011) (Lehrmann, J., dissenting).
o “The Court's unwillingness to consult the drafting history of section 41.0105—even in the face of two competing, yet reasonable, interpretations—shakes the foundations of its decision.” Haygood v. De Escabedo, 356 S.W.3d 390, 401 (Tex. 2011) (Lehrmann, J., dissenting).
U-Haul Intern., Inc. v. Waldrip, 380 S.W.3d 118 (Tex. 2012)
• Customer, who was injured when rental truck rolled over him after parking brake failed, brought negligence and gross negligence action against national truck rental company, company's state subsidiary, and local independent dealer.
• 8-1, Wainwright authored. Held: trial court's error of admitting evidence about safety of company's trucks in Canada was not harmless.
o “Patterson's testimony is not sufficiently similar to JH6097T and distracted the jury from the relevant legal issues, for several reasons.”
“First, there is no evidence that the trucks tested in Ontario were of the same type or size, or even if their parking brake and transmission systems were the same or similar. . . .”
“The majority of the issues in Patterson's testimony are unrelated to problems with parking brakes or transmissions, the frequency with which the trucks were inspected, or how they were inspected.”
“There was no attempt to identify the safety standards for the same or similar trucks in Canada or in the United States, and no opinion, if admissible, was offered on whether the trucks tested would have been allowed on the road in Texas or the United States.”
“Patterson's testimony falls well short of supporting a reasonable conclusion that safety problems in a foreign country indicated a disregard of inspection and maintenance programs causing an objectively extreme risk of serious injury in the United States; nor does it provide any reasonable basis to conclude that the accident in this case was attributable to a defective U–Haul safety program.”
• Lehrmann solo dissent
o “Regardless of whether the trucks described in Patterson's testimony were similar to the ones that injured Waldrip or what Canada's safety standards require, the fact that more than half of them had brake problems is probative of U–Haul's routine, systemic disregard for its own maintenance policies. For that reason, I think that it is doubtful that the trial court abused its discretion in admitting the evidence. Even assuming it was error, however, the error was harmless in light of the entire record.”
Bostic v. Georgia-Pac. Corp., 439 S.W.3d 332 (Tex. 2014)
• Mesothelioma case brought against product manufacturer and and 39 other defendants.
• 6-3, Willett authored. Evidence was legally insufficient to show exposure caused mesothelioma.
o “in all asbestos cases involving multiple sources of exposure, including mesothelioma cases, the standards for proof of causation in fact are the same. In reviewing the legal sufficiency of the evidence . . . the defendant's product is not a substantial factor in causing the plaintiff's disease if, in light of the evidence of the plaintiff's total exposure to asbestos or other toxins, reasonable persons would not regard the defendant's product as a cause of the disease; to establish substantial factor causation in the absence of direct evidence of causation, the plaintiff must prove with scientifically reliable expert testimony that the plaintiff's exposure to the defendant's product more than doubled the plaintiff's risk of contracting the disease.”
• Lehrmann dissented (joined by Boyd/Devine)
o “By requiring every plaintiff to produce epidemiological studies demonstrating that exposure to every defendant's product independently more than doubled his risk of developing a disease, the Court renders Havner a hindrance rather than a help. In this case, the Bostics produced scientifically reliable evidence that asbestos causes mesothelioma, that it caused Timothy's development of that disease, and that Timothy's exposure to Georgia–Pacific's asbestos-containing products was substantial in relation to his exposure to other asbestos sources. Because they adduced this evidence in the traditional way, they had no need to resort to the alternative measure we approved in Havner.”
Union Carbide Corp. v. Synatzske, 438 S.W.3d 39 (Tex. 2014)
• Representatives of employee's estate and survivors filed suit against employer for wrongful death arising out of employee's work-related exposure to asbestos.
• 5-4, Johnson authored. Held: Demonstration of pulmonary impairment was necessary to support claim.
• Lehrmann issued a solo dissent. She also joined the separate Boyd dissent (which was also joined by Guzman & Devine).
o Solo Lehrmann dissent argued that Chapter 90 was unconstitutionally retroactive.
o Lehrmann also joined Boyd dissent, concluding the statute did not require any level of pulmonary impairment to be shown by a pulmonary function test.
Weeks Marine, Inc. v. Garza, 371 S.W.3d 157 (Tex. 2012)
• Seaman brought action against employer for negligence, unpaid maintenance and cure, compensatory damages caused by unpaid maintenance and cure, and alleging that employer's barge was unseaworthy.
• 6-3, Jefferson authored. Held: no evidence established a causal connection between failure by employer to pay for medical treatment and seaman's injuries
• Lehrmann joined Guzman dissent (joined by Medina). Guzman: “The evidence of this pain and suffering and mental anguish during this three-month period is some evidence that the employer's failure to provide necessary medical services (i.e., “cure”) prolonged the original injury . . . .”