Texas Supreme Court Tightens Screws on Malpractice Plaintiffs (and their lawyers)

JUDICIAL TORT REFORM - SUPREME COURT EXPANDS MEDICAL MALPRACTICE DEFENDANTS' ABILITY TO GO AFTER PATIENTS FOR ATTORNEYS' FEES

Texas High Court, in opinion written by Justice Dale Wainwright, who is facing the voters this year, gives doctors a second chance to pursue retaliatory sanctions claim against patients who sued them for medical malpractice. Courts of Appeals had thrown out doctors' interlocutory appeals after the plaintiffs had nonsuited their claims.

In all three cases decided by the Supreme Court last week, the trial court judges had denied the health care providers' motions for sanctions and the court of appeals had dismissed the doctors' appeal for want of jurisdiction because the plaintiffs had nonsuited their claims. Treating the doctor's sanctions demands as counterclaims for affirmative relief even though the claims could not exist and could not be brought independently of the plaintiff's suit, the supreme court holds that the doctors' sanctions motion survive nonsuit by the plaintiffs, and orders the courts of appeals to determine whether the judges in the courts below erred when they refused to make the plaintiffs pay the defendants' attorneys fees and costs as a sanction. The ruling put plaintiffs' lawyers at considerable risk of legal malpractice liability if they fail to timely obtain an expert report that satisfies the requirements of the statute as interpreted by the Supreme Court and is likely to discourage attorneys from accepting representation in medical malpractice cases.

Villafani v. Trejo, MD, No. 06-0501 (Tex. Apr. 18, 2008) (Wainwright) (HCLC, ILA, denial of sanctions, effect of non-suit on defendant's right to appeal denial of motion for sanctions)
JUAN MARIO VILLAFANI, M.D. v. ADELA TREJO; from Cameron County; 13th district (13-04-00449-CV, ___ S.W.3d ___, 10-06-05) The Court reverses the court of appeals' judgment and remands the case to that court. Justice Dale Wainwright delivered the opinion of the Court.

THE COMPANION CASES (decided in per curiam opinions)

Barrera, MD v. Rico, No. 05-0928 (Tex. Apr. 18, 2008)(per curiam) (appealability of order denying doctor's motion for sanctions after plaintiff nonsuited medical malpractice suit and court dismissed without prejudice)
RICARDO BARRERA, M.D. v. ISELA RICO AND MANUEL RICO, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF GLORIA RICO, A MINOR; from Hidalgo County; 13th district (13-04-00480-CV, ___ S.W.3d ___, 07-21-05) Respondent's motion to supplement response brief on the merits granted. Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.

Regent Care Center of San Antonio II, LP v. Hargrave, No. 06-0717 (Tex. Apr. 18, 2008)(per curiam) (HCLC, medical malpractice, effect on nonsuit on health care provider's pending appeal of order denying sanctions)
REGENT CARE CENTER OF SAN ANTONIO II, LIMITED PARTNERSHIP D/B/A REGENT CARE CENTER OF OAKWELL FARMS AND RCCSA II, INC. v. BARBARA HARGRAVE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF DOROTHY MONTGOMERY, AND VERNON LLOYD PIERCE, INDIVIDUALLY; from Bexar County; 4th district (04-05-00274-CV, 202 S.W.3d 807, 06-28-06) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.