May 16, 2008 Texas Supreme Court Activism

Man-Bites-Dog News From the Tort-Reform Front Rehashed

Attention! Attention! Texas Supreme Court Rules Against Doctor for the Second Time - No dissent by justices running for re-election. No dissent - or even concurrence - by high court judges not facing the voters this year either.

In an apparent effort to prove that it does not rule for the defendants in medical malpractice appeals 100% of the time, the Texas Supreme Court reissues its decision in the recently decided botched-intubation case from Houston. The remarkable holding in that case was that the anesthesiologist who pumped oxygen into the stomach of a newborn in respiratory distress - rather than into the baby's lungs - was not a Good Samaritan after all, even though the doctor insisted he was not going to charge the parents for this "service".

Lest the Supremes be accused of undue sympathy for the parents of the brain-damaged victim of the intubation-gone-awry, they again instruct the court of appeals to look for other reasons why the doctor should not be held liable.

Chau v. Riddle, MD, No. 07-0035 (Tex. May 16, 2008)(substituted per curiam opinion on motion for rehearing) (summary judgment for defendant based on Good Samaritan defense reversed)
THAO CHAU AND HA DIEN DO, INDIVIDUALLY, AND ON BEHALF OF THEIR MINOR CHILD, S.D.D. v. JEFFERSON RIDDLE, M.D. AND GREATER HOUSTON ANESTHESIOLOGY, P.A.; from Harris County; 1st district (01-04-00551-CV, 212 S.W.3d 699, 09-28-06) The Court's opinion of February 15, 2008 is withdrawn and the opinion of this date is substituted.

In other news on the judicial tort reform front, the Court grants health care providers a new tool to have malpractice suits dismissed when the trial court refused to do so - instant appellate relief via mandamus if interlocutory appeal won't do. How many possible bites at the apple does that add up to, keeping in mind that the denial of mandamus does not preclude subsequent appeal on the same issue from the final judgment? Probably enough to leave no piece of the apple to the plaintiffs.

In Re McAllen Medical Center, Inc., No. 05-0892 (Tex. May 16, 2008) (Majority Opinion by Scott Brister)(mandamus relief available to compel dismissal of med-mal suits)
IN RE MCALLEN MEDICAL CENTER, INC., D/B/A MCALLEN MEDICAL CENTER AND UNIVERSAL HEALTH SERVICES, INC.; from Hidalgo County; 13th district (13-05-00441-CV, ___ S.W.3d ___, 10-05-05)real parties in interest's motion to abate dismissed as mootrelators' unopposed motion for partial dismissal grantedreal parties in interest's motion to seal document grantedrelators' motion to seal motion exhibits and restrict review to in camera inspection only granted. The Court conditionally grants the petition for writ of mandamus. Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice Medina, Justice Green, Justice Johnson and Justice Willett joined.
Justice Wainwright delivered a dissenting opinion, in which Chief Justice Jefferson and Justice O'Neill joined.

In all, the Supreme Court issued opinions in seven cases (without subtracting 1 for the Riddle sequel). Three of the court's opinions drew dissents. Three were issued as per curiams. Here are the cases not yet mentioned above:

Economic Patriotism and Protectionism: How to fleece (or not) out-of-state insurers

First American Title Ins. Co. v. Susan Combs, Comptroller, No. 05-0541 (Tex. May 16, 2008)(Majority Opinion by Don Willett) (taxation of out-of-state insurers, retaliatory tax)
FIRST AMERICAN TITLE INSURANCE COMPANY AND OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY v. SUSAN COMBS, COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF TEXAS, AND GREGG ABBOTT, ATTORNEY GENERAL OF TEXAS; from Travis County; 3rd district (03-04-00342-CV, 169 S.W.3d 298, 06-03-05) The Court affirms the court of appeals' judgment.Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Green, and Justice Johnson joined.
Justice Hecht delivered a dissenting opinion, in which Justice Wainwright, Justice Brister, and Justice Medina joined.

Sub-governments and sub-government lawyers face off against each other over lake-water rights

Canyon Regional Water Authority v. Guadalupe-Blanco River Authority, No. 06-0873 (Tex. May 16, 2008)(Opinion by Paul Green) (intergovernmental dispute over easement for water extraction from lake, condemnation power)
CANYON REGIONAL WATER AUTHORITY v. GUADALUPE-BLANCO RIVER AUTHORITY; from Guadalupe County; 4th district (04-05-00943-CV, 211 S.W.3d 351, 06-21-06) The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Justice Green delivered the opinion of the Court.

Back to Business as Usual on the ADR front: Big Corporate Defendant Couldn't Possibly Have Waived Right to Arbitrate (That's something to be ascribed only to consumers when they insist on arbitration and the defendant would rather not. See Bob-Perry-The-Judicial-Campaign-Financier Homes vs. The Culls, Lemon Home Owners, two weeks ago)

In Re CitiGroup Global Markets, Inc., No. 06-0886 (Tex. May 16, 200)(per curiam)(arbitration compelled, no express or implied waiver of right to arbitrate found)
IN RE CITIGROUP GLOBAL MARKETS, INC. (F/K/A SALOMON SMITH BARNEY, INC.), CITIGROUP, INC., AND STACY OELSEN; from Dallas County; 5th district (05-05-01430-CV, 200 S.W.3d 742, 06-28-06)stay order issued November 21, 2006, lifted Pursuant 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

Let Inmate Appeal For Free - He Is Not Gonna Win Anyhow. Makes us look good if we cut some underdog loser some slack and show that the courts are open for civil suits even by prisoners. (Let's deny the right to litigate and to appeal when it really matters)

Higgings v. Randall County Sheriff's Office (Higgins II), No. 06-0917 (Tex. May 16, 2008)(Opinion by Harriet O'Neill) LAWRENCE HIGGINS v. RANDALL COUNTY SHERIFF'S OFFICE; from Randall County; 7th district (07-05-00004-CV, ___ S.W.3d ___, 08-22-06) 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.Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Brister, and Justice Medina joined.
Justice Green delivered a dissenting opinion, in which Justice Wainwright and Justice Willett joined. (Justice Johnson not sitting)

Supreme Court Business as Usual: Governmental defendant prevails in case brought under Tort Claims Act - Gee....How could City know that uneven road (2 inch difference between lanes) would cause motorcyclyst to crash? After all, City inspector had given the road a passing grade of "C".

City of Dallas v. Reed, No. 07-0469 (Tex. May 16, 2008)(per curiam) (TTCA, premises liability, unsafe road condition, special defect, plea to the jurisdiction, no knowledge of accident hazard)
CITY OF DALLAS v. KENNETH REED; from Dallas County; 5th district (05-06-01652-CV, 222 S.W.3d 903, 04-25-07) 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 renders judgment. Per Curiam Opinion