A Switch in Time Saved…A Hospital

President Franklin D. Roosevelt brooked no dissent among his subordinates. He famously cashiered his Commander in Chief of the U.S. Fleet, Admiral James O. Richardson, soon after a meeting in October 1940 because the Admiral hurt his feelings. Richardson had complained to FDR at the meeting about the wisdom of leaving the Pacific fleet at Pearl Harbor instead of returning it to its customary home base of San Diego; he even suggested that fellow officers were losing confidence in the commander in chief. Sadly, Richardson was vindicated on December 7, 1941.

FDR had similarly felt insulted by the “Four Horsemen” of the Supreme Court who, with swing voter Justice Owen Josephus Roberts, kept killing off the New Deal. In 1937, FDR proposed to pack the court with six more hand-picked Justices to neutralize those devils but he couldn’t convince a Democratic Congress, to its credit, to go along with such a naked power grab. Nevertheless, an ill-timed but coincidental swing to the left by Roberts and the retirement of one of the Horsemen allowed the leftist press of its day to proclaim with a cutesy phrase that “A Switch in Time Saved Nine,” and gave FDR a patina of face saving.

Texas Supreme Court Justice David Medina may simply be a metaphorical descendant of Roberts. It has been ten years since Irving Marks underwent back surgery at St. Luke’s Episcopal Hospital in Houston. A week later, the footboard on his hospital bed collapsed as he attempted to use it to push himself from the bed to a standing position. He was seriously injured and sued the hospital.

The issue, which has now twice reached the Texas Supreme Court, was whether Marks’ lawsuit should be considered a premises liability lawsuit or whether it must be considered a health-care lawsuit under a specific statute that has since been repealed. If at first glance the issue seems hypertechnical, you’re right. But, it is a technicality with a big difference. A premises liability lawsuit has no expert affidavit requirement, but a health-care lawsuit cannot be sustained without an expert to say that medical negligence was committed. Absent a conforming affidavit, the lawsuit gets thrown out of court.  Most states have similar laws.

The first time at the Supreme Court Medina reasoned for a split court that because no question of medical judgment was involved in the failure of the bed’s footboard, the jury had no need of an physician expert to assure that professional negligence caused Marks’ injury. Now, a year later, Justice Medina has changed his mind and written for the majority, “Medical equipment specific to a particular patient’s care or treatment is an integral and inseparable part of the health care services provided. When the unsafe or defective condition of that equipment injures the patient, the gravamen of the resulting cause of action is a health care liability claim.” A bed footboard is “medical equipment” and the jury needs a physician to tell them someone should have kept it in good repair? The result is the hospital will not compensate Marks because he hadn’t filed an affidavit by the deadline.

Well, it all makes sense now. You see, in 2005, in Diversicare General Partner Inc. v. Rubio,  Justice Medina voted with the majority in kicking Ms. Rubio out of court on a similar technicality. She had been sexually assaulted by another patient and the court likewise ruled that the lawsuit had to be handled as a health-care claim! Folks in Texas beware when you go to the hospital. Watch out for collapsing beds and sexual predators. If you happen to run into either make sure you hire a lawyer with a crystal ball.

Article first published as A Switch in Time Saved…A Hospital on Technorati.

Glenn L. Goodhart, M.D., J.D.

6065 Roswell Rd.

Northside Tower
Suite 410

Sandy Springs, GA 30328

Phone: (404) 255-3282

Toll Free: 866-959-2148
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