Artful Pleading No Cure For Tort Reform
The Texas Supreme Court just withdrew its previous opinion in Marks v. St Luke's and substituted a new one - or rather several new ones. At issue was the question of whether an improperly assembled hospital bed that caused an injury was a premises defect or an integral part of the patient's care and treatment such that the claim necessarily falls under the Medical Liability and Insurance Improvement Act (MLIIA). The second opinion, a plurality, determined that the claim, however pled, is really a health care claim subject to tort reform.
What has caused all the consternation, as far as I can discern, is that the court previously held in Diversicare v. Rubio that premises liability claims that don't have something to do with the provision of health care may still be pursued against health care providers. The problem is that no one seems to be able to figure out what set of facts could constitute such a claim. If a bed is an inextricable part of the health care provided by a hospital what isn't? Apparently something in a hospital isn't inextricably tied to the provision of care as otherwise the simpler rule would be to say that since a hospital is built from the ground up with provision of medical services in mind then everything in it is subject to to the MLIIA.
Until something's found in a hospital that has no connection to health care it's best to plead your claim as a health care claim and timely file your expert report.
