Today, the Texas Supreme Court handed down an opinion reversing a decision by the Dallas Court of Appeals which in turn had reversed a trial court’s dismissal of a nursing home resident’s claims on limitations grounds. In the underlying case, the resident alleged that she was sexually assaulted in a nursing home and asserted what she characterized as premises liability claims against the home. The claims were more than five years old when brought, but since all parties agreed that the plaintiff was mentally incapacitated, the plaintiff claimed that section 16.003 of the Texas Civil Practice & Remedies Code tolled limitations. The nursing home, on the other hand, asserted that the plaintiff’s claims were really medical malpractice claims, since the plaintiff’s allegations were allegations that the nursing home breached its standard of care by negligently supervising the plaintiff’s treatment. In a medical negligence case, there is no tolling provision in cases of mental incapacity, so the nursing home claimed that limitations barred the plaintiff’s claim. The trial court agreed with the home and granted its motion for summary judgment, but the Court of Appeals in Dallas reversed, stating that the claims were not medical but were instead plain-vanilla premises liability claims. The six-justice majority (actually five and a half, as Justice Jefferson only joined in part of the majority opinion) agreed with the trial court, and held that the allegations were essentially medical negligence allegations, so there was no tolling of limitations. Justice Jefferson disagreed with the majority in its characterization of the plaintiff’s claims as medical negligence claims, but he agreed with the result. According to Justice Jefferson, the plaintiff’s premises claims are barred by limitations as they were claims that the home departed from “accepted standards of safety” as contemplated by the former article 4590i (now CPRC Section 74.001(a)(13)). Accordingly, they are governed by the limitations rules of medical claims, and so there is no tolling in the case of incapacity. However, according to Justice Jefferson, they are still premises claims, so had they not been time-barred, the plaintiff should not have had to meet the heightened standard of proof demanded in medical cases. Finally, Justice O’Neill wrote a dissent on behalf of herself and two other Justices. She argued that some of the plaintiff’s claims had absolutely nothing to do with the nursing home’s medical treatment or judgment, so those claims ought to have sounded in ordinary negligence and not been governed by the rules which control medical claims. Cause No. 02-0849, Goliad Manor v. Rubio Technorati Tags: litigation, Texas Supreme Court, law

This morning, the Texas Supreme Court made vague reference to the possibility that the Federal Arbitration Act can be reverse pre-empted by the McCarran-Ferguson Act. Since this is the sort of thing we find fascinating, I poked around a bit. As readers of this blog know, certain language (in 10-point boldface type no less) must be present in any arbitration agreement that would require a patient or prospective patient to arbitrate a medical liability claim. See Tex. Civ. Prac. & Rem. Code Section 74.451. This requirement emphasizes the Texas General Arbitration Act’s requirement that a personal injury claim may only be subject to arbitration if each party and each party’s attorney signs the arbitration agreement. See Tex. Civ. Prac. & Rem. Code Section 171.002(a)(3) and (c). However, the Federal Arbitration Act has been held to preempt the Section 171.002(c) of the Texas Arbitration Act, so if the FAA governs, both parties’ attorneys do not need to sign an arbitration agreement for it to be valid in a personal injury claim. Given the breadth with which courts have found the FAA to apply, this preemption has served to markedly limit the protection the Texas Legislature tried to give Texans in both statutes referenced above. On July 28, 2005, however, the First Court of Appeals in Houston issued a fascinating opinion in a case involving a nursing home’s attempt to enforce an arbitration clause which did not contain the language required by the former Article 4590i (which is the same language currently required by Section 74.451 of the CPRC). Since the arbitration agreement in question specified that the FAA, and not the TAA, governed its application, the nursing home argued that the FAA preempted article 4590i and that the arbitration clause was valid and enforceable. Wait just a minute, said the plaintiff in that case. Another federal statute, the McCarran-Ferguson Act, provides that Federal statutes cannot preempt state laws enacted for the purpose of regulating the business of insurance, unless the federal statute in question specifically relates to the business of insurance. Since the FAA does not specifically relate to the business of insurance, and since 4590i states that it was passed in response to a “medical malpractice insurance crisis in the State of Texas,” the First Court of Appeals held that the McCarran-Ferguson Act reverse-preempts the Federal Arbitration Act. Put another way, it prevents the FAA from preempting the requirements Article 4590i places on arbitration clauses. What does all this mean? I do not know. The problem, of course, is that the recent re-codification of Texas medical liability law eliminated the language about the statute’s being enacted in response to a liability insurance crisis. While the Legislature certainly made reference to an insurance crisis when it passed the 2003 tort reform legislation, it did not keep the statutory language on which the Kepka court relies. It will be interesting to see if McCarran-Ferguson reverse preemption continues as a valid doctrine in Texas in a “new-law” medical malpractice case. Back on May 27, by the way, the Texas Supreme Court issued a mandamus opinion (in the same case linked-to above which started all this) requiring arbitration in a case where it held the FAA preempted the TAA’s attorney-signature requirement. It was a medical case in which the Supreme Court found that since the medical provider in question received federal funds, the FAA applied to a medical negligence case filed in Texas by Texans against Texans alleging Texas negligence. That mandamus opinion no longer seems available on the Court’s website or I’d link to it; its Westlaw citation is 2005 WL 1252271 for those so inclined. Technorati Tags: arbitration, ADR, Texas Supreme Court, law

This morning, the Third Court of Appeals affirmed a Travis County Trial Court’s granting of a no-evidence motion for summary judgment in favor of a hospital in a medical malpractice case. According to the Court, where a medical malpractice plaintiff filed a proper expert report under the former article 4590i but failed to designate any expert in response to a Request for Disclosure by the Level 3 Discovery Plan designation deadline, the Defendant Hospital was entitled to no-evidence summary judgment, as without expert testimony the plaintiff could not prevail. Even though the Plaintiff here had offered an adequate report, the failure to designate shifted the burden to the Plaintiff to establish good cause for the failure or lack of unfair surprise or prejudice to the Defendant. Cause No. 03-04-00711-CV, Cunningham v. South Austin Hospital The Court also issued memorandum opinions in a juvenile case and a case involving termination of parental rights.

This morning, the Third Court of Appeals issued three memorandum opinions. The first concerns a juvenile adjudication for the offense of assault, and the second affirms a decision by the Texas State Board of Medical Examiners to revoke a physician’s license to practice medicine in Texas. Cause Nos. 03-04-00001-CV and 03-04-00612-CV, respectively. The Court’s third memorandum opinion, in an interlocutory appeal, reverses a Trial Court’s decision to deny a non-Texan defendant’s special appearance, holding that the Defendant in question, a Kansas corporation, did not have adequate contacts with the State of Texas to establish specific personal jurisdiction, even though the corporation in question contributed $25,000.00 to the Texans for a Republican Majority Political Action committee (“TRMPAC”). According to the Court, the contribution was made so the Defendant could lobby Tom DeLay, a U.S. Congressman, to influence the outcome of a federal energy bill pending before the U.S. Congress: By all accounts, Westar’s only motivation in writing the $25,000 check to TRMPAC was to influence federal legislation by meeting with a federal congressman, who is afforded no vote in the Texas legislature. Even considering that DeLay may have a voice in Texas politics, the appellees did not allege or offer any evidence to show that Westar sought to influence the outcome of any Texas election or Texas legislation. For the purpose that Westar sought DeLay’s audience – to gain support for Westar’s position on federal legislation – DeLay could have represented any of the fifty states. And DeLay’s Texas residency is not dispositive of the issue because a nonresident defendant does not establish minimum contacts with Texas simply by interacting with one of its residents outside of Texas, in a manner that is unrelated to any activities within the state. Instead, the jurisdictional inquiry focuses on what contacts the defendant has purposefully established with the forum, so as to enjoy the benefits and protections of its laws. (emphasis in original) Cause No. 03-05-00276-CV, Westar Energy, Inc. v. James Sylvester, Ken Yarborough and Josephine Miller