When is a cause of action a health care liability claim?

Tuesday, September 5, 2006
Contributed by: Charles A. Mallard

In Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005), the Texas Supreme Court held that the underlying nature of the claim, not the form of the pleadings, establishes the basis from which to determine whether a cause of action is a health care liability claim governed by Chapter 74 of the Civil Practice & Remedies Code.

Building on that analysis, the El Paso Court of Appeals, in NCED Mental Health, Inc. v. Kidd, --- S.W.3d ---, 2006 WL 2080674, (Tex.App. - El Paso, July 27, 2006), dismissed all of the plaintiff's claims arising from a sexual assault by a health care employee (including pleaded causes of action for negligent hiring, vicarious liability, sexual exploitation, and premises liability) due to the failure of the plaintiff to file a Chapter 74 expert report. Acknowledging that expert testimony may not always be necessary to support a verdict at trial, the court nonetheless held that the failure to file an expert report pursuant to Chapter 74 was fatal because Chapter 74 governs all claims, whether tort or contract, that arise out of a claimed departure from an accepted standard of medical care, health care, safety, or professional and administrative services.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.