In March we noted an unusual case involving a pretrial motion by a Texas attorney to have an accident involving a car striking a cow owned by his retired doctor client be treated as a medical malpractice action instead of one for personal injury. The “Cow Case” was potentially significant if the judge ruled in favor of the defense attorney, because it would have bolstered the attorney’s argument that the application of Texas medical malpractice law has been stretched by other court decisions to include cases having little to do with the practice of medicine.
The judge in the case has at length ruled on the attorney’s motion, and has decided that the case is not one of medical malpractice, after all.
The seeming frivolity of the defense attorney’s attempt to have the case treated as a medical malpractice action instead of a personal injury tort matter has aroused the ire of the plaintiff’s attorney and his client who feel, perhaps understandably, that their injury claims (which amount to a claimed $700,000 in medical costs) are being toyed with to prove an esoteric point.
But the defense attorney is adamant in his effort to garner awareness of his claim that the stretching of the definition of “medical malpractice” beyond cases dealing with injury-causing mistakes by health care practitioners must be resolved. He has appealed the ruling of the trial court judge, and expresses confidence that ultimately the Texas Supreme Court will need to finally decide the question.
Nor is the defense attorney in this case alone in raising the question of what may, and may not be considered a medical malpractice cause of action in Texas. The Cow Case has drawn the attention of at least one representative in the Texas state Legislature, who has drafted a bill that if passed into law would formally restrict medical malpractice lawsuits to those situations in which the plaintiff was a patient of the defendant. It would seem that one way or another – by judicial decision or possibly legislation – the issue of what does, and does not constitute a medical malpractice cause of action in Texas will be ultimately put to rest.
Source: The Houston Chronicle, "Cow in the road was not medical malpractice, judge rules", Brian M. Rosenthal, April 13, 2015