Just Visiting: Health Care Liability Claims and Nonpatient Injuries in a Health Care Setting

Abstract

As litigators are keenly aware, no locale is immune from potential tort liability. People are injured in day-to-day activities such as driving, shopping, and -- as this Article will explore -- even visiting a loved one at the hospital. Specifically, this Article examines the sometimes-slippery world of premises-liability litigation involving hospitals with particular focus on claims brought by visitors and employees. This has been a topic of immense interest among the intermediate appellate courts since March 2013, when two competing and highly influential standards were created within twenty days of one another in the wake of the Texas Supreme Court's unwillingness to fully resolve all applicable interpretive problems. As of this writing, the Texas Supreme Court is considering another case that yet again may prove to be the final word on the matter. Time will tell.

Part II of this Article will briefly describe the history behind the Texas Legislature's definition of “health care liability claim” and the expert-report requirement within the context of tort reform legislation. Part III will discuss the Texas Supreme Court's guidance on when a premises-liability claim is a health care liability claim. Part IV discusses the approaches that the intermediate appellate courts have developed to identify such claims. Part V explores the frequently implicit distinction between hospitals and nursing homes when making a health care liability determination. Part VI addresses the weaknesses and absurdities that lurk within the current approaches. Finally, Part VII provides recommendations for solving the primary issues in this corner of the law in anticipation of the Texas Supreme Court's opinion in Ross v. St. Luke's Episcopal Hospital, a case for which the court heard oral argument on November 5, 2014.

Keywords: Health Care Liability Claim, civil procedure, torts, tort reform