Medical malpractice law is ordinarily a way in which medical professionals can get into trouble for making negligent mistakes. And in the vast majority of cases, this is the angle that courts and juries consider. But what happens if a doctor can use the Texas medical malpractice law defensively, as a way to avoid liability? This is the theory being tested in a case involving an accident between a car, and a cow owned by a retired doctor.
The facts of the case suggest an ordinary negligence case: cows owned by the retired doctor were on a public road when a pickup truck being driven by the plaintiff ran into them. The plaintiff suffered injuries that allegedly cost more than $700,000 in medical expenses. The plaintiff's lawsuit against the retired alleges negligence in the form of failure to inspect or maintain fencing, to keep watch over the cows, and to warn travelers.
But the defense attorney is hoping to persuade the court that the retired doctor, because of his at status as at least a former medical professional, should be entitled to defend the case as a medical malpractice action. If that is the case, then the plaintiff's failure to provide a health care expert report required by the medical malpractice statute invalidates his lawsuit.
There may be some legal support for this interpretation of the law; in a prior case, the Texas Supreme Court ruled that when doctors are sued, even if the lawsuit is not a direct medical malpractice claim, the expert medical report still needs to be filed.
To bolster his reasoning, the defense attorney is arguing that other Texas judicial decisions have applied the state's medical malpractice law to situations that were only tangentially related to the practice of medicine, such as patient slip-and-fall accidents, a patient bitten by a spider, or a nursing home resident who was attacked by another resident of the facility.
What is also interesting in this case is that the defense attorney is actually more of a plaintiff's attorney, and is admittedly seeking to "guinea pig" this case to bring attention to what he believes has been an over-extension of medical malpractice law as a defensive technique in the hope that courts or the state legislature will restrict the practice in the future.
Source: Houston Chronicle, "How a wayward cow could change Texas’ tort reform law," Brian M. Rosenthal, March 9, 2015