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Texas Supreme Court Rules That Allegations of Fraudulent Medical Records Are Health Care Liability Claims Subject to Expert Report Requirement

By: Kyle Burke

In most cases, there is little dispute whether claims against a physician or other health care provider are health care liability claims, for example, when a physician is alleged to have performed surgery negligently, or where a nurse administered the wrong medication.  Other cases are less clear, e.g., when a patient visitor slips and falls in a hospital, when a spider bites a nursing home resident, or when a person receives laser hair removal treatment.

Another less-clear case is where the plaintiff has alleged that medical records are fraudulent or have been altered. Texas courts of appeals had disagreed on this issue.  Recently, in Baylor Scott & White v. Weems, No. 17-0563, 2019 WL 1867916 (Tex. Apr. 26, 2019) the Texas Supreme Court clarified that such claims are health care liability claims subject to Chapter 74 of the Texas Civil Practice and Remedies Code and its expert report requirements.

Weems was indicted for aggravated assault by shooting or striking Ernest Bradshaw and using or exhibiting a deadly weapon—a firearm—during the crime. Weems later sued Baylor Scott and White (the hospital) for intentional infliction of emotional distress, alleging he was indicted only because the nurse who examined Bradshaw after the incident had falsified Bradshaw’s medical record by fraudulently describing Bradshaw’s injury as a “point-blank” “gunshot wound” to the head.  Weems further alleged that the nurse was aware that the information in the medical record would be used negatively in a criminal investigation against Weems.

After Weems did not serve a Chapter 74 expert report, the trial court dismissed Weems’s suit against the hospital with prejudice.  But, the court of appeals reversed, holding that claims involving alteration and fabrication of medical records are not health care liability claims and, therefore, do not trigger the expert report requirement of section 74.351 of the statute.

The supreme court disagreed.  The court concluded that Weems’s claims were premised on claimed departures from accepted standards of professional or administrative services directly related to health care.  The court held that maintenance of accurate medical records falls within the definition of “professional or administrative services” in the statute because under state regulations, accurately recording diagnoses is a service health care providers and physicians must provide as a condition of maintaining their respective licenses.  Furthermore, the creation and maintenance of health records has a manifestly close relationship with the treatment of a patient, and is thus directly related to health care.  The court also remarked that expert testimony would be required to establish Weems’s allegation that the nurse should have known Bradshaw had not been shot.  Accordingly, Weems’s claims were health care liability claims subject to Chapter 74 and its expert report requirement. 

In its discussion, the supreme court noted several additional key points: (1) bodily injury is not required to meet the statutory definition of a health care liability claim; (2) if a person is asserting a health care liability claim, he is a “claimant” even though he was not the patient or the patient’s representative; (3) the statutory definition of a health care liability claim does not distinguish between departures that are intentional or merely negligent.

Because the issue was not before it, the court left open the question of whether allegations of fraudulent billing or medical records fabricated without an actual nexus between a patient and the provision of health or medical care would constitute health care liability claims under Chapter 74. 

The supreme court’s opinion should provide much-needed guidance to litigants and courts encountering allegations of fraudulent or altered medical records.  Plaintiffs and defendants should be alert that there is a good chance such claims are health care liability claims subject to Chapter 74.