Friday, August 15, 2008

Is a hospital bed a medical device?

Broken-bed case taken up by the Texas Supreme Court for the second time. Oral argument to be heard September 11, 2008 in Marks v. St. Luke's Episcopal Hospital.

Appellate judges and advocates still disagree whether suit over injuries attributable to patient's fall from defective hospital bed is properly characterized as a medical negligence or a premises defect claim.

No. 07-0783
IRVING W. MARKS v. ST. LUKE'S EPISCOPAL HOSPITAL; from Harris County; 1st district (01-04-00228-CV, 229 SW3d 396, 05-03-07)

OPINION BELOW: Marks v. St. Luke's Episcopal Hospital
No. 01-04-00228-CV, 229 S.W.3d 396 (Tex.App.- Houston [1st Dist.] May 3, 2007)(Nuchia)(opinion on remand)(HCLC, standard of care, nature of claim, expert report)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Jennings and Alcala
Full case style: Irving W. Marks v. St. Luke's Episcopal Hospital
Appeal from 215th District Court of Harris County (Judge Levi J. Benton)


Appellant, Irving W. Marks, appeals from a final order dismissing his claims against appellee, St. Luke's Episcopal Hospital ("St. Luke's"), for failure to file expert reports as required by statute for health care liability claims. In our original opinion, we held that appellant's underlying complaint in his original petition related to premises liability, not medical liability, and that appellant's complaint was governed by an ordinary standard of care. We reversed the trial court's order dismissing appellant's claims and remanded the case to the trial court for further proceedings. (1)

Subsequent to our opinion, the Texas Supreme Court concluded that a patient's claims that a nursing home's negligence in failing to provide adequate supervision and nursing services proximately caused her injuries from a sexual assault by another patient could be characterized as a departure from accepted standards of safety and were therefore governed by the Medical Liability Insurance Improvement Act (the MLIIA). (2) See Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005). On St. Luke's petition for review of our opinion, the supreme court vacated our judgment and remanded the case for further consideration in light of that Court's decision in Diversicare. (3)

On remand, we must first consider whether, in light of Diversicare, appellant's complaint is governed by the MLIIA. Because we conclude that appellant's original petition asserted a departure from accepted safety standards and is therefore a health care liability claim, we must also consider whether the trial court abused its discretion in denying appellant's motion for a grace period in which to file his experts' reports to support his claim. We hold that the trial court did not abuse its discretion and affirm the trial court's judgment.
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Because we conclude that all the complaints in appellant's original petition relate to departures from accepted standards of medical care, health care, or safety, we further conclude that these claims are governed by the MLIIA.

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St. Luke's filed its motion to dismiss on January 23, 2004. The trial court conducted a hearing on that motion on February 3, 2004 and conducted an additional hearing on February 6 at appellant's request. Appellant filed his motion for a grace period on February 5 and presented it to the trial court on February 6. Appellant's motion was untimely because it was not filed before any hearing on St. Luke's motion, and the trial court was not required to grant appellant a 30-day extension to file his experts' reports. Therefore, the trial court did not abuse its discretion in denying appellant's motion. See Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 226 (Tex. App.--Houston [1st Dist.] 2003, pet. denied) (holding that denial of untimely request was not abuse of discretion); Jackson v. Reardon, 14 S.W.3d 816, 819 (Tex. App.--Houston [1st Dist.] 2000, no pet.) (same).

We overrule appellant's second issue.

Justice Jennings wrote separately in Marks v. St. Luke's

Here, Marks is actually complaining of the hospital bed's footboard that gave way under his weight. In this regard, he is not making a claim for "treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety." Unlike the claims made by Rubio in Diversicare, Marks's claim about the hospital bed implicates negligent maintenance, not health care. He is not fracturing or recasting a statutorily defined health care liability claim into a premises liability claim. Like an "unlocked window" or a "rickety staircase," the hospital bed in this case constituted "a dangerous condition," and Marks's premises liability claim is in fact separate from St. Luke's provision of health care. As such, Marks's allegations reveal a circumstance that gives rise to a premises liability claim in a healthcare setting that may not be properly classified as a health care liability claim. See id. at 854.
In concluding otherwise, the majority of this court errs. Accordingly, I would reverse the trial court's order in regard to Mark's premises liability claim. I would affirm the trial court's order only to the extent that it dismissed the actual health care liability claims of Marks.

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