Tort Reform: Chief Justice Jefferson rules against patient who ended up in coma as a result of botched surgery

Yancy v. United Surgical Partners International, Inc. No. 05-0925 (Tex. Oct. 19, 2007)(Jefferson) (health care liability claim, statute of limitation, state constitutional open courts challenge denied)

Although the Texas Supreme Court grants review in few cases, and carefully picks the one it decides on the merits, Justice Jefferson here avers that "we must decide" whether the two-year statute of limitations found in a statute that has since be amended - former article 4590i, section 10.01 of the Texas Revised Civil Statutes[1] - violates the Texas Constitution’s open courts guarantee as applied to an incapacitated plaintiff whose guardian timely filed suit against some defendants but not against others.

The Court concludes that the plaintiff presented competent summary judgment evidence of her continuous mental incapacity but nonetheless holds that claims against some defendants are time-barred and that the open courts guarantee has not been violated.

COMMENT: Thanks to court-enforced tort reform standards, personal injury and medical malpractice lawyers can't do right. If Plaintiffs and their lawyers name all possible defendants before all the facts are in as a result of discovery, they risk being sanctioned, even if they are willing to nonsuit the ones later shown to be free of blame. Low v. Henry (Tex. April 20, 2007)

If they wait, and expressly reserve the right to add additional defendants as a better understanding is developed as to why the patient ended up in a vegetative state, and who is responsible, they take nothing on a finding that their claim is time-barred, and that the negligence claims asserted against the additional defendants by way of amended pleadings don't relate back to the filing date of suit against the original defendant(s).

Full style for Tex. Sup. Ct. Appeal No. 05-0925: EULA YANCY, AS THE GUARDIAN OF THE PERSON AND THE ESTATE OF CARLETHA YATES, AN INCAPACITATED ADULT v. UNITED SURGICAL PARTNERS INTERNATIONAL, INC., VALLEY VIEW SURGICAL CENTER, INC., AND JUDITH SMITH, R.N.; from Dallas County; 5th district (05‑04‑00791‑CV, 170 SW3d 185, 07‑12‑05)

The Court affirms the court of appeals' judgment.

Chief Justice Wallace Jefferson delivered the opinion of the Court.

Supreme Court answers certified question from the Fifth Circuit in case involving dispute between insurers

October 12, 2007 - Texas Supreme Court issues four opinions

Insurers usually prevail in the Supreme Court, but what happens when two insurance companies do battle in that court?

Mid-Continent Ins. Co. v. Liberty Mutual Ins. Co., No. 05-0261 (Tex. Oct. 12, 2007)(Wainwright)(insurance law, subrogation, contribution, apportionment of settlement amount between insurers, - certified question from the Fifth Circuit)
05-0261 MID-CONTINENT INSURANCE COMPANY v. LIBERTY MUTUAL INSURANCE COMPANY. The Court answers the questions certified by the United States Court of Appeals for the Fifth Circuit in Mid-Century Insurance Company v. Liberty Mutual Insurance Company, No. 03-10705 (5th Cir 2005).
Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Brister, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined. Justice Willett delivered a concurring opinion.

Supreme Court compels consumers to arbitrate, as usual; rejects all theories advanced in bid to avoid arbitration

In Re U.S. Home Corp, Lennar Corp et al, No. 03-1080 (Tex. Oct. 12, 2007)(per curiam)(arbitration home owners, residential construction defect)03-1080 IN RE U.S. HOME CORPORATION, LENNAR CORPORATION, DAVID GARCIA, FABIAN DIAZ AND SHELDON MOORE; from Cameron County; 13th district (13-03-00598-CV, ___ S.W.3d ___, 11/10/03)Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamusPer Curiam Opinion

Class action certification undone - discovery orders vacated via mandamus

In Re Sci Texas Funeral Services, Inc. No. 06-0385 (Tex. Oct. 12, 2007)(per curiam)(class decertification, discovery orders and sanctions)
06-0385 IN RE SCI TEXAS FUNERAL SERVICES, INC., SCIT HOLDINGS, INC., SCI FUNERAL SERVICES, INC., AND SERVICE CORPORATION INTERNATIONAL; from El Paso County; 8th district (08-05-00335-CV, 198 S.W.3d 14, 01/31/06)real parties in interest's motion for leave to file response deniedPursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion

Who said footnotes are superfluous?

BFI Waste Systems of North America, Inc. v. North Alamo Water Supply Corp., No. 06-0602 (Tex, Oct. 12, 2007)(per curiam)(excuse breach, prior breach by other party to contract)
06-0602 BFI WASTE SYSTEMS OF NORTH AMERICA, INC. AND BROWNING-FERRIS INDUSTRIES, INC. v. NORTH ALAMO WATER SUPPLY CORPORATION, JIMMY STEIDINGER, ENGELMAN IRRIGATION DISTRICT AND HIDALGO COUNTY DRAINAGE DISTRICT NO. 1; from Hidalgo County; 13th district (13-04-00069-CV, ___ S.W.3.d ___, 04-13-06) 2 petitions
Per Curiam Opinion

Oct 2007 Supreme Court Decisions on Petitions for Review

Orders Published October 5, 2007 (no opinions released)

PETITIONS FOR REVIEW DENIED BY THE TEXAS SUPREME COURT TODAY

No. 07‑0392
LEONARD JETER v. BILL MCGRAW, ET AL.; from Jasper County; 9th district (09‑05‑00319‑CV, 218 SW3d 850, 03‑22‑07)

No. 07‑0604
RALPH O. DOUGLAS v. ELISE SELMA DOUGLAS INGERSOLL; from Harris County; 14th district (14‑07‑00041‑CV, ___ SW3d ___, 03‑15‑07)
Opinion below: Douglas v. Ingersoll (Tex.App.- Houston [14th Dist.] March 15, 2007)(dismissal)
No. 07‑0606
EX REL TIM NEAL, COMMISSIONER, PRECINCT 1, MCMULLEN COUNTY, TEXAS v. THE STATE OF TEXAS; from McMullen County; 4th district (04‑07‑00057‑CV, ___ SW3d ___, 06‑27‑07)

No. 07‑0632
JERRY RICKY HANNAH v. THE STATE OF TEXAS; from Montgomery County; 9th district (09‑06‑00314‑CV, ___ SW3d ___, 04‑12‑07) motion requesting appointment of counsel denied, motion to amend petitioner's complaint denied

No. 07‑0649
ROBERT MCLENDON v. RICHARD GREGORY "RICK" DETOTO; from Harris County; 14th district (14‑06‑00658‑CV, ___ SW3d ___, 07‑03‑07)
Opinion below: McLendon v. Detoto (Tex.App.- Houston [14th Dist.] Jul. 3, 2007)(Hudson)(malpractice legal) Opinion by Justice Hudson. Before Chief Justice Hedges, Justices Hudson and Guzman
Appeal from 334th District Court of Harris County (no judge shown on docket);
Disposition: Affirmed
("Appellant, Robert McLendon, appeals the judgment entered in favor of appellee, Richard Gregory Detoto, on appellant's claims for legal malpractice, professional negligence, breach of legal duty, breach of contract, and Deceptive Trade Practices Act violations, which arose out of appellee's representation of appellant in the underlying criminal prosecution. We affirm.")

MANDAMUS PETITIONS DENIED BY THE TEXAS SUPREME COURT TODAY

No. 07‑0580
IN RE HIGHLAND CAPITAL MANAGEMENT, L.P., DAVIS DEADMAN, JAMES DONDERO, AND NEXBANK SECURITIES, INC.; from Dallas County; 5th district (05‑07‑00655‑CV, ___ SW3d ___, 06‑06‑07)relators' motion to stay deniedemergency motion to stay the underlying proceedings dismissed as moot

No. 07‑0687
IN RE ERIC VON DRAKE; from Dallas County; 5th district (05‑07‑00778‑CV, ___ SW3d ___, 08‑09‑07) motion for leave of court to file petition for writ of mandamus dismissed as moot