Expanding TMLA to Cover Additional Employee Injuries
By: Chris Lindstrom
In Tillman v. Memorial Hermann Hosp. Sys., No. 14-12-01169-CV, 2013 WL 5470064 (Tex. App.—Houston [14th] Oct. 1, 2013), the Houston Fourteenth Court of Appeals expanded the reach of the Texas Medical Liability Act (“TMLA”) to cover injuries sustained by an employee health care provider caused by a coworker’s negligence.
Tillman, a radiology technician at Hermann Hospital was injured on the job while attempting to perform a portable x-ray on an obese intubated patient. With the assistance of a nurse, Tillman attempted to lift the patient in order to remove an x-ray cassette that had been placed underneath him. However, the nurse released the patient too soon, causing the patient's weight to shift quickly onto Tillman. As a result, Tillman injured her back. She filed suit against Hermann Hospital for failing to provide a safe workplace. At the time, the hospital did not carry workers' compensation insurance.
The trial court dismissed Tillman's cause of action because she failed to serve Hermann Hospital with an expert report within 120 days of filing suit. The Fourteenth Court of Appeals affirmed, holding that Tillman’s claims were health care liability claims. The decision was based on the Texas Supreme Court’s holding in Texas West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012), in which an employee technician was injured by a psychiatric patient with a history of manic outburst and violent behavior towards staff. In Texas West Oaks Hosp., the Supreme Court held the nurse’s claim was a “safety claim” under the TMLA, which did require a breach of a safety standard be directly related to health care in order to be considered a health care liability claim.
Tillman argued that her case should not be classified as a health care liability claim because expert testimony would not be needed to establish the nurse was negligent in abruptly letting go of an obese patient they were attempting to move. The Fourteenth Court of Appeals disagreed, holding that "proper techniques health care providers are to use for lifting a heavy, intubated patient confined to a bed in a hospital intensive-care unit" are not within the knowledge of the layman.
Tillman attempted to distinguish her case against Herman Hospital from Texas West Oaks Hospital by arguing that her case was based solely on vicarious liability, not any direct negligence by the hospital. In Texas West Oaks Hosp, the plaintiff alleged inadequate warnings and supervision of a patient by the hospital were the cause of his injuries. However, her pleadings stated Hermann Hospital had a duty to provide her a safe place to work. Additionally, Tillman's position was hurt by her own deposition testimony in which she testified nurses are required to receive training on how to properly lift patients and Hermann Hospital should have known whether the nurse in this case had been properly trained.
Tillman also argued that she was required to allege that, in addition to the nurse, Hermann Hospital was also negligent in order to properly plead a claim for an unsafe workplace against a workers' compensation non-subscriber. The Court disagreed, explaining that Tillman was not just complaining that one nurse acted negligently. Rather, the crux of her claim was that, the hospital had a duty to ensure a safe work place for its employees. Given the broad interpretation of the TMLA by the Supreme Court, the claim that Hermann Hospital was vicariously liable for the actions of the nurse was held to be an allegation the hospital departed from accepted standards of safety under the TMLA.
Finally, Tillman argued that applying the TMLA against workers in the health care industry when it did not apply to workers in all industries violated the equal protection clauses of the United States and Texas constitutions because it was not reasonably related to curbing medical malpractice cases. The Court overruled that argument, holding that it was "reasonably conceivable" that the Texas legislature intended to extend the TMLA to cover non-patients in order to lower medical costs for all Texans.
Despite her attempts to argue otherwise, Tillman's pleadings clearly stated acts of direct negligence against her employer Hermann Hospital. Whether a Court will find that an employee claim against a health care provider employer based solely on vicarious liability is a matter left for another day. Of note, the Fourteenth Court of Appeal’s decision in Tillman was authored by Justice Jeff Brown, who is now on the Texas Supreme Court.