When I talk with personal injury lawyers who practice outside Texas, they sometimes think I’m exaggerating when I tell them how hard it is for injured claimants to win a case here. No, I’m not exaggerating. My evidence is a decision rendered today by the Court of Appeals, Fifth District of Texas at Dallas.
In a nutshell, a mentally retarded person was living in a nursing home, when he was scalded and beaten by an employee of the nursing home. The employee plead guilty to assault and admitted her actions. Suit was filed against the nursing home. The nursing home filed a motion to dismiss the case, based on two arguments.
First, this was not a simple negligence or premises liability claim, but was instead a medical malpractice claim. That would mean that an expert report would be necessary to prove the causation of the injuries. While the plaintiff denied this was a medical malpractice claim, he did file an expert report by a nurse practitioner, who testified as to standard of care, breach of that standard, and causation.
The trial judge denied the defendant’s motion, but the appellate court held that this was indeed a medical malpractice suit because it was against a provider of care. The court further held that a nurse could not offer testimony as to causation of the injury because the law requires such an expert to be a medical doctor. The case is now being sent back to the trial court for the judge to decide whether the plaintiff should be allowed an additional 30 days to offer testimony from a medical doctor.
So we have a situation where a severely retarded person is scalded and beaten by an employee who is not a nurse or doctor, the employee pleads guilty to a crime and admits scalding and beating the retarded plaintiff, but the court holds that a doctor’s testimony is still required to prove that nursing home employees should not in the normal course of business scald and beat residents, and that scalding and beating will indeed hurt. Incredible.
