IN THE SUPREME COURT OF TEXAS
════════════
No. 07-0783
Irving W. Marks,
Petitioner,
v.
St. Luke’s Episcopal Hospital,
Respondent
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the First District of
Texas
Argued September
11, 2008
Justice Johnson, joined by
Justice Hecht, Justice Wainwright,
and Justice Willett,
dissenting.
The Court today allows a health care liability claim to go forward
despite Marks’s failure to comply with the Medical Liability Insurance
Improvement Act (MLIIA or Act). It does so by (1) condoning the recasting of a
claim by a patient based on an injury caused by specialized hospital equipment
into a non-health care claim by artful pleadings; and (2) misconstruing plain,
unambiguous statutory language. I dissent.
Marks underwent surgery at St. Luke’s Hospital to implant a morphine pump
into his spinal cord after multiple previous surgeries failed to alleviate his
back problems. After surgery, the nursing staff made a notation in his medical
records that he was at risk of falling because of his limited mobility, his need
for an ambulatory assistance device, and the fact he was on morphine, and
“Safety/Fall Precautions” were being implemented. The hospital’s Safety/Fall
Precautions included provisions that there should be “no environmental hazards”
in Marks’s room, his hospital bed was to be “in a low position with the brakes
applied,” and the “side rails and safety devices” should be used as indicated.
Marks alleges that seven days after his surgery and while still an inpatient, he
and the footboard on his hospital bed fell when he placed his hand on the
footboard and attempted to push himself from the bed to a standing position.
Marks sued St. Luke’s. He alleged the hospital was negligent in the
following respects: (1) failing to properly train and supervise hospital
employees in how to prevent falls and injuries; (2) failing to provide Marks
with the assistance he required for daily living activities; (3) failing to
provide him with a safe environment in which to receive treatment and recover;
and (4) providing him with a hospital bed that had been negligently assembled
and maintained by the hospital’s employees or nursing staff. The Court holds,
and I agree, that the first three claims are health care liability claims that
fall under the MLIIA. But, unlike the Court, I would hold that the entire suit
is a health care liability claim subject to the procedures and limitations set
out in the Act.
In order to preclude Marks’s suit from being subject to the MLIIA, the
Court must, and does, reach three conclusions with which I disagree. The first
is that one injury based on a single set of facts can, by the manner in which
pleadings are formulated, be both a health care liability claim and a non-health
care liability claim. The second is that a hospital bed furnished to a
post-surgery hospital inpatient is not an inseparable part of health care provided by the hospital. The third is that accepted
standards of hospital safety do not include providing safe hospital beds to
patients confined in the hospital.
First, the Court’s holding allows a cause of action by a patient against
a health care provider to be both a health care claim and a non-health care
claim, even though the action arises from a single injury based on a single set
of facts. The Court concludes that because of the manner in which Marks pleads
his suit, three of his liability theories are health care liability claims while
the other is a premises liability claim that is not subject to the MLIIA. In
Diversicare, the concurring and dissenting
justices similarly concluded that the victim of sexual assault at a nursing home
asserted a premises liability claim against the nursing home independent of her
health care liability claim. Diversicare Gen. Partner,
Inc. v. Rubio, 185 S.W.3d 842, 857-58 (Tex. 2005) (Jefferson, C.J.,
concurring in part, and dissenting in part); id. at 861-66 (O’Neill, J., dissenting). The Court rejected that
view because it “would open the door to splicing health care liability claims
into a multitude of other causes of action with standards of care, damages, and
procedures contrary to the Legislature’s explicit requirements. It is well
settled that such artful pleading and recasting of claims is not permitted.”
Id. at 854; see also Murphy v. Russell, 167 S.W.3d 835, 838
(Tex. 2005) (“[A] claimant cannot escape the Legislature’s statutory scheme by
artful pleading.”); Garland Cmty. Hosp. v.
Rose, 156 S.W.3d 541, 543 (Tex. 2004) (“Plaintiffs cannot use artful
pleading to avoid the MLIIA’s requirements when the
essence of the suit is a health care liability claim.”). The Court today
circumvents explicit language the Court used in Diversicare and other cases rejecting this type of
claim-splitting by pleadings. The holding will inevitably open the door to
manipulated, inventive, and artful pleading designed to avoid the MLIIA
requirements and limitations by recasting of claims.
Allowing this type of claim-splitting almost assuredly will lead to more
extended and expensive trial court proceedings to determine whether a patient’s
pleadings assert health care liability claims subject to the MLIIA, non-health
care liability claims, or both; and if both, which is which. As this appeal
shows, there will be more extended and expensive appellate proceedings for the
same purpose. Extended judicial proceedings and associated increased costs,
including “economic” settlements to avoid litigation expense, are a significant
part of what the Legislature intended to avoid through enactment of the MLIIA.
See former Tex. Rev. Civ. Stat.
art. 4590i, § 1.02(b)(2);1 see also id. § 1.02(b)(1).
The most appropriate course in circumstances such as these is the course
the Court has taken before today: when the substance of a patient’s claim for
injury comes within the statutory definition of a health care liability claim,
then the MLIIA applies to all the plaintiff’s claims against the health care
provider based on that injury. Here, no matter how Marks pleads his case, the
substantive facts implicate questions about whether St. Luke’s met accepted
standards of health care and safety. His injury arose during his hospital
confinement and from his use of a hospital bed—a bed the nurses’ notes show was
a specialty bed being used for patient care—that was allegedly improperly
assembled and maintained by hospital employees. For this reason, I would hold
that Marks’s injury and damages arise from a health care liability claim and
that he cannot avoid application of the MLIIA by pleading otherwise.
Next, I would hold that the hospital bed furnished to Marks was an
integral and inseparable part of the health care he received from St. Luke’s, so
his allegations that the bed was negligently assembled and maintained fall
within the provisions of the MLIIA. Thus, even if a plaintiff could recast a
health care claim into another type of claim by artful pleadings, Marks has not
done so.
In determining whether the MLIIA encompasses Marks’s claims, the
statutory construction rules are well established. When interpreting statutes,
courts should ascertain and give effect to the Legislature’s intent as expressed
by the language of the statute. E.g., Entergy Gulf States, Inc. v.
Summers, 282 S.W.3d 433, 437 (Tex. 2009); State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (“[W]hen
possible, we discern [legislative intent] from the plain meaning of the words
chosen.”). The prime principle to follow when construing a statute is “the words
[the Legislature] chooses should be the surest guide to legislative intent.”
See Fitzgerald v. Advanced Spine Fixation Sys.,
Inc., 996 S.W.2d 864, 866 (Tex. 1999). Only when those words are ambiguous
do we “resort to rules of construction or extrinsic aids.” In re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007).
We use definitions prescribed by the Legislature and any technical or particular
meaning the words have acquired, but otherwise we construe the statute’s words
according to their plain and common meaning unless a contrary intention is
apparent from the context or unless such a construction leads to nonsensical or
absurd results. FKM P’ship, Ltd. v. Bd. of Regents
of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008); see also
Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d
278, 284 (Tex. 1999).
St. Luke’s asserts Marks’s suit implicates accepted standards of both
health care and safety as referenced by the MLIIA. The Court, however, focuses
on St. Luke’s safety argument and summarily concludes Marks’s hospital bed claim
does not assert a departure from the accepted standards of health care. ___ S.W.3d at ___. I disagree.
The MLIIA defines a health care liability claim as follows:
a cause of
action against a health care provider or physician for treatment, lack of
treatment, or other claimed departure from accepted standards of medical care or
health care or safety which proximately results in injury to or death of the
patient, whether the patient’s claims or cause of action sounds in tort or
contract.
Tex. Rev. Civ. Stat. art. 4590i, § 1.03(a)(4).2 Under the statute, a cause of action is a
health care liability claim if it (1) is against a health care provider or
physician; (2) for treatment, lack of treatment, or other claimed departure from
accepted standards of medical care or health care or safety; and (3) the alleged
departure from accepted standards proximately results in injury to or death of
the patient. The Act broadly defines “health care” as
any act or treatment performed or furnished, or which should
have been performed or furnished, by any health care provider for, to, or on
behalf of a patient during the patient’s medical care, treatment, or
confinement.
Tex. Rev. Civ. Stat. art. 4590i, § 1.03(a)(2); see Diversicare, 185
S.W.3d at 847 (describing health care as “broadly defined” under the MLIIA).
As relevant here, health care includes any act that was or should
have been performed by a health care provider for, to, or on behalf of a patient
during the patient’s medical care, treatment, or confinement. Applying this
broad definition, we have previously concluded that a cause of action alleges a
departure from accepted standards of health care if the act or omission
complained of is an inseparable part of the rendition of health care services.
Diversicare, 185 S.W.3d at 848; see Walden
v. Jeffery, 907 S.W.2d 446, 448 (Tex. 1995).
In this case, no one suggests Marks’s hospital confinement while
recovering from the latest of several back surgeries was not medically
necessary. It logically follows that if his condition made hospitalization
medically necessary, then the hospital had to provide him with a reasonably safe
hospital bed. Indeed, the expert reports Marks eventually filed explicated that
as an accepted standard of care. See Tex. Rev. Civ. Stat. art. 4590i, § 1.03(a)(2). And, if a reasonably safe hospital bed was necessary
for Marks’s care and recuperation, it follows that the bed was an integral and
inseparable part of his care and treatment, especially in this case in which it
was an integral part of the hospital’s Safety/Fall Precautions protocol. See
Diversicare, 185 S.W.3d at
849-54.
Nevertheless, the Court focuses on the assembling of the bed as opposed
to its use in patient care and determines that Marks’s claim for negligent
assembly and maintenance of the bed is not a health care liability claim because
it is based on the breach of an ordinary standard of care and not on a discrete
standard of care applicable to the health care industry. Under this holding, St.
Luke’s owed Marks the general duty of care owed by businesses to their
invitees.3 But although health care providers and
patients may well be premises owners or occupiers and invitees, the Legislature
has imposed requirements on how suits by patients against health care providers
may be brought. Those requirements differ from general requirements for suits by
invitees against premises owners or occupiers. See Tex. Rev. Civ. Stat. art. 4590i, § 1.03(a)(3); Diversicare, 185
S.W.3d at 850 (“The obligation of a health care facility to its patients is not
the same as the general duty a premises owner owes to invitees.”). If Marks had
been a guest in a hotel when his bed fell, his fall could well have given rise
to a premises liability claim. But he was not a hotel guest; he was a patient
receiving health care in a hospital. There is a difference because of the MLIIA.
Diversicare, 185 S.W.3d at 850 (“There is an
important distinction in the relationship between premises owners and invitees
on one hand and health care facilities and their patients on the other. The
latter involves health care.”). Further, the bed furnished to Marks was much
more than a hotel bed. As indicated by the nurses’ notes, the bed was intended
to be and was being used as a specialized patient care bed. The nurses’ notes
referenced Safety/Fall Precautions that included keeping the bed in a low
position with the brakes applied and using the bed’s side rails and safety
devices as indicated.
While Marks was a patient, the hospital provided him with a hospital bed
as part and parcel—an integral and inseparable part—of actions “furnished, or
which should have been performed or furnished, by [St. Luke’s] for, to, or on
behalf of [Marks] during [Marks’s] medical care, treatment, or confinement.”
See Tex. Rev.
Civ. Stat. art. 4590i, §
1.03(a)(2). And even if it were debatable whether a
safe, specialized hospital bed was integral to and inseparable from health care
St. Luke’s provided to Marks, the Court need look no further than Marks’s own
expert reports for the answer. Marks eventually served expert reports from Dr.
Jeffrey D. Reuben, an orthopedic surgeon, and Jan Zdanuk, a nurse practitioner. Although the reports were
served too late to save his health care claims from dismissal, they demonstrate
what Marks contends is the proper standard of care.4 Dr. Reuben opined:
The
accepted standard of care for nursing and hospital practice is to provide the
patient with reasonably safe medical equipment, including a hospital bed for
in-patients, to receive and recover from medical treatment. The accepted
standard of good care for nursing and hospital practice is to evaluate each
patient to determine if he/she is a risk to fall. . . . If a . . . patient may
be a risk to fall, the accepted standard of good care for nursing and hospital
practice is to implement interventions to eliminate and reduce the patient’s
risk of falling. . . .
. . . [St.
Luke’s] knows that patients would use the footboard on a hospital bed as support
to get out of bed. It is for this reason that the hospital footboard should be
firmly secured to the hospital bed. [St. Luke’s] staff violated the accepted
standard of care by failing to provide [Marks] with a [footboard] that was
properly secured to the hospital bed. . . . Given [St. Luke’s] staff’s
knowledge that [Marks] was a risk to fall, that he was on morphine, and that its
patients use the footboard as support to get out of the hospital bed, [St.
Luke’s] nursing staff should have provided [Marks] with a footboard that was
properly secured to the hospital bed, and as part of its ongoing duty to assess
and identify potential fall hazards, should have identified and properly secured
the footboard to the hospital bed.
(emphasis added).
Nurse Zdanuk’s opinion was similar:
Hospitals
have a duty to provide a safe environment of care for all patients. This
includes equipment such as hospital beds that must be maintained in safe
operating condition at all times. It is a breach in the standard of care for
a footboard to fall off a bed when a patient leans on it while attempting to get
up resulting in a fall with serious injuries.
This is not, as Marks asserts, a claim merely for “broken furniture;” it
is a claim by a patient based on a bed that was more than a mere piece of
furniture. A waiting room chair is a mere piece of furniture. Even a chair in
Marks’s hospital room for his guests to sit on, or a cot for them to rest on,
might be classified as a mere piece of furniture. A specialized hospital bed
that proof shows (1) has wheels and brakes so it can be used to transport
patients as well as to allow patients to rest and recuperate, (2) is built so it
can be raised and lowered to accommodate patients’ needs, and (3) has side rails
and other safety devices, cannot be so classified. The Legislature has
prescribed and the expert reports filed in this case recognize that disputes
such as the one before us involve standards of care owed by hospitals to
patients.
The Court, however, says that Marks’s hospital bed allegations can be
distinguished from a health care liability claim because the maintenance staff
“responsible for assembling Marks’s bed . . . would not have been considered
health care providers when doing so.” ___ S.W.3d at
___. The Court misses the mark in two ways. First, Marks’s Original
Petition states that the hospital bed was negligently assembled by St. Luke’s
“employees, agents, servants or nursing staff.” Nurses are specially-trained
health care providers that exercise professional judgment. But second, and more
importantly, the MLIIA does not limit “health care” to those actions taken by
nurses or doctors. Rather, the legislative definition of health care includes
“any act” which was or should have been performed or furnished “by any health
care provider for, to, or on behalf of a patient during the patient’s medical
care, treatment, or confinement.” Tex.
Rev. Civ. Stat.
art. 4590i, § 1.03(a)(2). And,
importantly, the Act defines “health care provider” as
any person, partnership, professional association,
corporation, facility, or institution duly licensed or chartered by the State of
Texas to provide health care as a registered nurse, hospital, dentist,
podiatrist, pharmacist, or nursing home, or an officer, employee, or agent
thereof acting in the course and scope of his employment.
Tex. Rev. Civ. Stat. art. 4590i, § 1.03(a)(3)(emphasis added).
The definition plainly includes, without qualification, employees of
health care providers so long as they are acting in the course and scope of
their employment. The definition’s course and scope language does not purport to
address the liability of health care employers such as hospitals for the
actions of their officers, employees, and agents, and it is not necessary to do
so; employers are liable under general principles of agency law for the actions
of their officers, agents, and employees acting in the course and scope of their
employment. So, unless the phrase “course and scope of his employment” is
construed to be what it must be—a description of which officers, employees, and
agents are health care providers—the phrase is surplusage. But we presume the Legislature intended an
entire statute to be effective, so we “try to give effect to all the words of a
statute, treating none of its language as surplusage
when reasonably possible.” Phillips v. Bramlett, ___ S.W.3d ___, ___ (Tex. 2009); see
Tex. Gov’t Code § 311.021(2). Properly
construing the “course and scope of employment” language to define the types of
employees who are health care providers avoids the type of strained analysis the
Court undertakes today by dissecting and inquiring into nuances of language used
to plead a cause of action; distinguishing between categories of health care
provider employees based on duties, types of actions performed, and the type of
judgment exercised; and speculating as to insurance coverages when there are no policies in the record. The
Court distinguishes acts or omissions of hospital workers with specialized
health care training from hospital workers that do not have specialized health
care training but are nevertheless necessary for a hospital to properly care for
patients. The statute does not do so; it does the very opposite. The Court’s
interpretation contradicts the literal and plain statutory language despite the
fact that the context of the language does not call for the Court’s
interpretation. Moreover, giving the language its literal meaning does not yield
absurd or nonsensical results. The Court’s “interpretation” violates
long-established tenets of statutory construction. See, e.g., In re
Jorden, 249 S.W.3d 416, 423 n.32 (Tex. 2008)
(“There are instances where the literal meaning of a statute may be disregarded.
But it is only where it is perfectly plain that the literal sense works an
absurdity or manifest injustice.”) (quoting Gilmore
v. Waples, 188 S.W. 1037, 1039 (Tex. 1916)).
The Court additionally states that Marks’s claim for negligent assembly
and maintenance of the bed is not a health care liability claim because expert
medical testimony would not be necessary to prove the claim.5 Yet, this Court has previously stated
that such a circumstance does not preclude a claim from being subject to the
MLIIA:
The fact
that in the final analysis, expert testimony may not be necessary to support a
verdict does not mean the claim is not a health care liability claim. A claim
may be a health care liability claim to which the damage caps and expert report
requirements are applicable and yet not require expert testimony to prevail at
trial.
Murphy,
167 S.W.3d at 838; see also Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990) (noting that
expert testimony is not needed to establish breach of a medical duty where the
departure is plainly within the common knowledge of laymen). The
legislatively-mandated expert report requirement merely establishes a procedural
threshold over which a claimant must pass to continue the lawsuit.
Murphy, 167 S.W.3d at 838.
A patient’s medically necessary, specialized hospital bed is different
from other property or parts of a premises not designed
and intended primarily for use by and in the care of patients, such as a rickety
staircase, a defective waiting room chair, or an unlocked window. The hospital’s
actions in providing Marks with a hospital bed are inseparable from the other
medical and health care services it provided to Marks; a staircase, waiting room
chair, an open window are not necessarily so. See Diversicare, 185 S.W.3d at
855.
I would hold that Marks’s claim that the hospital provided a negligently
assembled and maintained hospital bed alleges a breach of accepted standards of
health care. For this second reason, I would hold that Marks’s suit is a health
care liability claim subject to the MLIIA.
Finally, I would hold that accepted standards of hospital safety include
providing reasonably safe hospital beds to patients, and Marks’s claim is for a
violation of that standard. For this third reason, I would hold that his claim
comes under the MLIIA.
The MLIIA defines a health care liability claim to include “a cause of
action against a health care provider or physician for . . . [a] claimed
departure from accepted standards of . . . safety which proximately results in
injury to or death of the patient.” Tex.
Rev. Civ. Stat.
art. 4590i, § 1.03(a)(4).
Thus, a safety-related cause of action is a health care liability claim if it
(1) is against a health care provider or physician; (2) is for a departure from
accepted standards of safety; and (3) the alleged departure proximately results
in injury to or death of the patient. Id.
Although the foregoing are the only elements required by the text of the
statute, the Court adds a fourth element: a cause of action alleges a departure
from accepted safety standards when the unsafe condition is an inseparable or
integral part of the patient’s care or treatment. The Court effectively adds
language to the statute to justify its conclusion as to safety. Even so, there
is no question the bed was an inseparable and integral part of Marks’s care and
treatment and meets even the narrowed safety standard erroneously adopted by the
Court. Although analysis of the statute’s language yields that conclusion, the
nurses’ notes in Marks’s hospital chart referencing the implementation of
Safety/Fall Precautions, which incorporated the hospital bed as part of the
precautions, do not just yield the conclusion, they compel it.
Although the MLIIA does not define “safety,” the statute specifies that
legal terms or words of art used but not otherwise defined in the statute “shall
have such meaning as is consistent with the common law.” Tex. Rev. Civ. Stat. art. 4590i,
§ 1.03(b). Thus, in interpreting the MLIIA, the Court has previously
construed “safety” according to its common law definition as the condition of
being “untouched by danger; not exposed to danger; secure from danger, harm or
loss.” Diversicare, 185 S.W.3d at 855 (quoting
Black’s Law Dictionary 1336 (6th
ed. 1990)).
Our prior construction is consistent with the plain language of the
statute, does not offend the purpose of the statute, is not inconsistent with
its contextual meaning, and does not yield an absurd or nonsensical result.
Because the Court does not determine otherwise, that should settle the question.
Unfortunately, it does not. Instead, the Court justifies effectively adding
language to the statute by concluding that a “broad” interpretation is at odds
with the legislative purpose. ___ S.W.3d at ___ (citing
Tex. Rev. Civ. Stat. art. 4590i, § 1.02(b)(1),(3)). The Court reasons that because a broad
interpretation is not warranted, the statute’s safety standard is implicated
only when the unsafe condition or thing “is an inseparable or integral part of
the patient’s care or treatment.” Id. at ___.
This is in direct contravention of the MLIIA’s
explicit mandate that terms not defined by the statute be given their common law
meaning, see Tex. Rev. Civ. Stat.
art. 4590i, § 1.03(b), and our previous
interpretation of the MLIIA. See Diversicare, 185 S.W.3d at 847 (describing health care
as “broadly defined” under the MLIIA). The statute quite clearly does not
say what the Court interprets it to say, and I agree with Chief Justice
Jefferson’s choice of words in Diversicare:
Because
the statute does not define “safety,” we must assign its common meaning . . . [of] protection from
danger. . . . The specific source of that danger, be it
a structural defect, criminal assault, or careless act, is without limitation.
While it may be logical to read into the statute a requirement that a safety
related claim also involve health care, there is nothing
implicit in safety’s plain meaning nor explicit in the MLIIA’s language that allows us to impose such a
restriction.
See id.
at 860-61 (Jefferson, C.J., concurring in part, and
dissenting in part) (citations omitted).
Further, en route to its unfortunate conclusion, the Court speculates
about coverages of medical malpractice insurance
policies and commercial general liability insurance policies that are not before
us. It concludes the Legislature intended to exclude claims against health care
providers that are covered by general liability insurance policies from the
MLIIA. ___ S.W.3d at ___. Aside from the constitutional
problem posed if the Legislature effectively delegated authority to insurance
companies to determine operative statutory language by their contracts, see
Proctor v. Andrews, 972 S.W.2d 729, 735 (Tex. 1998), and although the
Legislature intended to relieve the malpractice insurance crisis by enacting the
MLIIA, I simply do not agree that the MLIIA reflects intent by the Legislature
to abdicate its legislative function by allowing claims against health care
providers to be excluded from the Act’s provisions based on coverages provided by particular types of insurance
policies.
What the MLIIA does reflect is legislative intent to broadly, not
narrowly, include within the statute’s coverage claims made by patients against
their health care providers. If policy considerations support excluding
subcategories of claims from the MLIIA when the unambiguous statutory language
includes the overall category, as it does here, then incorporating those
exclusions into the statute is a Legislative prerogative, not a judicial one.
See Tex. Const. art.
II, § 1; Lee v. City of Houston, 807 S.W.2d 290, 294-95
(Tex. 1991) (“A court may not judicially amend a statute and add words that are
not implicitly contained in the language of the statute.”); Smith v.
Davis, 426 S.W.2d 827, 831 (Tex. 1968). It is our duty as judges to
ascertain the Legislature’s intent from the specific language it used, if
possible, and to refrain from looking for extraneous reasons to read into laws
unexpressed intentions. Gov’t Pers. Mut. Life
Ins. Co. v. Wear, 251 S.W.2d 525, 529 (Tex.
1952).
Additionally, by conflating standards of safety with standards of health
care, the Court negates the Legislature’s intent to include within the MLIIA’s coverage a separate category of claims based on
safety. If a health care provider furnishes unsafe materials or creates an
unsafe condition as an integral and inseparable part of a patient’s health care
or treatment, the health care provider’s acts or omissions would already fall
within the category of claims based on departures from accepted standards of
medical care or health care and there would be no need for the Act to include
the word “safety.” See Diversicare, 185 S.W.3d
at 848 (“A cause of action alleges a departure from accepted standards of
medical care or health care if the act or omission complained of is an
inseparable part of the rendition of medical services.”). Applying the Court’s
“inseparable or integral part of the patient’s care or treatment” standard to
“safety” effectively reads safety out of the statute instead of properly giving
it meaning as adding a category of claims. Id. at 855 (“Certainly, the
Legislature’s inclusion within the scope of the MLIIA of claims based on
breaches of accepted standards of ‘safety’ expands the scope of the statute
beyond what it would be if it only covered medical and health care.”). As noted
previously, this Court has consistently construed statutes based on the
presumption that the Legislature intended an entire statute to be effective, so
we “try to give effect to all the words of a statute, treating none of its
language as surplusage when reasonably possible.”
Phillips, ___ S.W.3d at ___; e.g., Tex. Gov’t Code § 311.021(2); Sultan v.
Mathew, 178 S.W.3d 747, 751 (Tex. 2005) (“We must avoid, when possible,
treating statutory language as surplusage.”); City
of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex.
1995) (“We will not read statutory language to be pointless if it is reasonably
susceptible of another construction.”); Perkins v. State, 367 S.W.2d 140,
146 (Tex. 1963) (“[E]ach sentence, clause and word is to be given effect if
reasonable and possible.”). Accordingly, the Court should construe the
Legislature’s inclusion of “safety” claims in the MLIIA as expanding the scope
of health care liability claims beyond what it would be if the statute only
covered medical and health care claims. Diversicare, 185 S.W.3d at 855 (“Certainly, the
Legislature’s inclusion within the scope of the MLIIA of claims based on
breaches of accepted standards of ‘safety’ expands the scope of the statute
beyond what it would be if it only covered medical and health care.”). Instead,
the Court cites case law from other jurisdictions to support the proposition
that claims arising from negligent assembly or maintenance of hospital equipment
generally sound in ordinary negligence and are not health care liability claims.
___ S.W.3d at ___ & n.3. But the MLIIA is different
from most, if not all, statutes in other states that regulate medical
malpractice claims: it specifies that it extends to claims involving breaches of
accepted standards of safety. See Diversicare, 185 S.W.3d at 860 n.3 (Jefferson, C.J.,
concurring in part, and dissenting in part) (“Though many states have statutes
regulating medical malpractice claims, the MLIIA is unique in that it apparently
is the only statute of its kind that by definition extends to claims involving
safety.”). Examination of the statutes underlying the cases cited by the Court
reveal their differences from the MLIIA. See La. Rev. Stat. Ann. § 40:1299.41
(providing statutory protections for “malpractice” claims based on “health care
or professional services rendered”); Ind. Code 34-18-2-18 (providing
statutory protections for “malpractice” claims based on “health care or
professional services” provided). Because the MLIIA extends to claims for
injuries to patients based on breaches of accepted standards of safety, many
claims by patients that might be considered claims for ordinary negligence or
premises liability in other states are health care liability claims in Texas.
Marks’s claim is one of them.
In sum, I would affirm the trial court’s dismissal of Marks’s claims for
failure to file an expert report in accordance with requirements of the MLIIA. I
would hold that Marks’s suit falls within the MLIIA for three separate reasons:
(1) the entire claim is based on alleged violations of accepted standards of
health care and safety and cannot be recast by artful pleading into both health
care and non-health care claims; (2) the claim for negligently assembling,
providing, and maintaining a hospital bed is a health care liability claim
because it alleges a breach of accepted standards of health care; and (3) the
claim for negligently assembling, providing, and maintaining a hospital bed is a
health care liability claim because it alleges a breach of accepted standards of
safety.
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: August
28, 2009
1
Medical Liability and Insurance Improvement Act of
Texas, 65th Leg., R.S., ch. 817, § 1.02, 1977 Tex.
Gen. Laws 2039, 2040, repealed by Act of June 2, 2003, 78th Leg., R.S.,
ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. While
this case was pending, the Legislature repealed the MLIIA, amended parts of the
previous article 4590i, and recodified it in 2003 as
chapter 74 of the Texas Civil Practice and Remedies Code. Because article 4590i
continues to govern this case, citations are to the former article rather than
the Civil Practice and Remedies Code.
2
Medical Liability and Insurance Improvement Act of
Texas, 65th Leg., R.S., ch. 817, § 1.03, 1977 Tex.
Gen. Laws 2039, 2041, repealed by Act of June 2, 2003, 78th Leg., R.S.,
ch. 204, § 10.09, 2003 Tex. Gen. Laws 847,
884.
3
As the Court did in Diversicare, I “note the irony” of this position.
Diversicare, 185 S.W.3d at
853. In his brief, Marks asserts that the MLIIA should not apply to his
claim because it is a premises liability claim based on ordinary negligence. But
“[i]f we were to agree with [him], our decision would
have the effect of lowering the standard from professional to ordinary care for
[patients] in health care facilities under similar circumstances.” Id. at 853-54.
4
Marks asserts the Court should not consider the
expert reports because the “experts were retained to opine as to the standards
involved in the health care liability claims that were added in [Marks’s] Second
Amended Petition. They do not address the ordinary standards of care involved in
Marks’s other claims.” But as the Court acknowledges, “there
is no significant difference” between Marks’s original and amended
petitions. ___ S.W.3d at ___. Both petitions
included claims based on the hospital bed, and both experts concluded St. Luke’s
violated the accepted standard of care for health care providers by providing
Marks with an improperly assembled hospital bed.
5
Marks, however, was not so sure. In the trial
court he designated Dr. Reuben as an expert witness who “is expected to testify
that St. Luke’s violated the accepted standard of care of good nursing and
hospital practice on March 25, 2000, by failing to provide the plaintiff with a
reasonably safe hospital bed in which to receive and recover from medical
treatment . . . [or] by providing the plaintiff with a hospital bed with a
footboard that was not properly secured or attached to the hospital
bed.”