By: Miranda Roberts
The Texas Supreme Court recently considered whether the Texas Medical Liability Act (“TMLA) expert report requirement was applicable to certain types of claims made against a state mental health care facility and its employees. Rogers v. Bagley, 623 S.W.3d 343 (Tex. 2021), reh'g denied (June 18, 2021). Specifically, this case looked at two issues: (1) whether claims arising from a patient’s death brought under 42 U.S.C. § 1983 are considered health care liability claims under the TMLA, and if so, (2) whether § 1983 preempted the TMLA requirement to timely serve an expert report. The Court held that these types of claims are health care liability claims and that § 1983 does not preempt the state law’s expert report requirement.
In the 1970s, health care costs were rising at an alarming rate for throughout the industry – affecting patients, providers, and insurers. The Texas Legislature found that the number of health care liability claims being brought in the state had spiked, which negatively affected the ability of providers to obtain affordable and quality medical malpractice insurance and increased the costs of medical care for patients. 65th Leg., R.S., ch. 817, § 1.02(a)(1), (4), (8), 1977 Tex. Gen. Laws 2039. The Legislature sought to control the crisis by enacting the Medical Liability and Insurance Improvement Act (MLIIA), the stated intent of which was to decrease excessive claims without unduly restricting a claimant’s rights. MLIIA § 1.02(b)(1)–(3). In 2003, the MLIIA was replaced with the TMLA, a similar statute that shared its predecessor’s basic goals of controlling health care associated costs for providers and patients alike and deterring frivolous health care liability claims and lawsuits. Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 10.11, 2003 Tex. Gen. Laws 847, 864–82, 884–85 ; see Tex. Civ. Prac. & Rem. Code § 74.351(a).
The TMLA, found in Chapter 74 of the Texas Civil Practice and Remedies Code, is only applicable to health care liability claims, which are defined by the following three elements: (1) the defendant is a health care provider (a statutorily-defined term) or physician; (2) the claimant’s cause of action is for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s alleged departure from accepted standards proximately caused the claimant’s injury or death. Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). To more quickly identify and deter frivolous lawsuits and decrease expenditure of resources spent working up such claims, the plaintiff is required to serve an expert report within 120 days after the defendant files an original answer. Id. § 74.351(a). This report must address both liability and causation for each defendant to avoid dismissal. Id. . If a plaintiff fails to comply with this requirement, upon defendant’s motion, the court is required to dismiss the case with prejudice and award the affected health care provider or physician reasonable attorney’s fees and court costs incurred. Id. § 74.351(b).
The Rogers lawsuit stemmed from the death of thirty-seven-year-old Jeremiah Bagley, who was committed to state mental health facility Rio Grande State Center (“RGSC”) due to a history of mental illness. At the facility, Jeremiah was involved in a number of physically violent interactions with other patients, ultimately requiring he be assigned one-to-one supervision. The incident that would ultimately lead to his death began when Jeremiah struck his one-to-one monitor. In response, several staff members restrained Jeremiah and administered anti-psychotic and sedative drugs by injection, which successfully calmed his mood. Unfortunately, minutes after the incident, Jeremiah went into cardiac arrest. Facility staff members performed CPR and called Emergency Medical Services (“EMS”), who upon arrival administered CPR using an automated chest compression device. EMS transported Jeremiah to a local hospital where he was pronounced dead. Jeremiah’s father, David Bagley, sued individually and as the representative of Jeremiah’s estate, bringing claims against the RGSC facility as well as ten individual defendants: the five staff members involved in the incident, four RGSC supervisors, and Jeremiah’s treating physician.
Under Texas law, a rebuttable presumption exists that a patient’s claims brought against a physician and/or health care provider which are based on facts implicating the defendant’s conduct or actions taken during the patient’s care, treatment, or confinement are considered health care liability claims and are subject to the statutory scheme provided in Chapter 74. Loaisiga v. Cerda, 379 S.W.3d 248, 252 (Tex. 2012). However, Bagley alleged negligence against the facility under the Texas Tort Claims Act and alleged civil rights violations against the individual defendants under 42 U.S.C. § 1983, which provides a cause of action to individuals against state government employees and other persons acting under the color of state law to deprive a person of the rights and freedoms provided by the United States Constitution. Specifically, Bagley alleged 1) excessive force in violation of the Fourth Amendment against the psychiatric nursing assistants directly involved in the incident, (2) deliberate indifference by the supervisors in their training and supervision of the psychiatric nursing assistants and (3) deliberate indifference as to Jeremiah’s medical care against his treating physician.
The defendants’ respective original answers each referenced the TMLA as set forth in Chapter 74 of the Texas Civil Practice and Remedies Code, including its expert report requirement. § 74.351. Bagley never served any of the defendants with the requisite expert report, and after the 120-day deadline, all defendants jointly moved to dismiss the claims against them under § 74.351(b). In response to the motion to dismiss, Bagley argued that his asserted claims were not health care liability claims and thus were not subject to the requirements of Chapter 74, and even if they were, the expert report provision was preempted by § 1983. At the hearing on defendants’ motion to dismiss, Bagley nonsuited its claim against the RGSC facility. The trial court denied the motion, to which the defendants, including RGSC, responded by filing an interlocutory appeal. The court of appeals concluded that while all of Bagley’s claims constituted health care liability claims under Chapter 74, the expert report requirement therein was preempted by section 1983. 581 S.W.3d 362, 369, 374 (Tex. App.—Corpus Christi–Edinburg 2019).
Granting the petition for review, the Texas Supreme Court affirmed the lower court’s conclusion that Bagley’s claims were health care liability claims but disagreed that 42 U.S.C. § 1983 preempted the TMLA’s expert report requirement, and therefore reversed that part of the judgment.
The Court first assessed whether Bagley’s claims met the criteria as to be considered health care liability claims subject to the TMLA. There was no dispute between the Parties as to the first element, each defendant met the statutory definition of a health care provider or physician. See Tex.. Civ. Prac. & Rem. Code § 74.001(a)(12). The third element was also not in dispute as Bagley’s claims asserted that each of the defendant’s alleged actions and/or conduct were a proximate cause of Jeremiah’s death. As such, the analysis turned on the second element, whether Bagley’s § 1983 claims alleged a cause of action “for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care.” Id. § 74.001(a)(13). The court of appeals, based on its statutory interpretation of training requirements provided for state facility employees, concluded that restraint of mental health patients in a health care institution implicated health care safety issues such that Bagley’s claims satisfied the second element of a health care liability claim as the allegations made directly related to the safety of mental health patients. 581 S.W.3d at 369; see Tex. Health & Safety Code Ann. § 552.052.
In contrast, the Texas Supreme Court approached the issue more broadly by analyzing the stated legislative goals to defer frivolous claims and prevent crisis recurrence, the broad language found in the statute, and the Court’s own precedents to demonstrate the widespread understanding and intent that the TMLA have expansive application to claims involving provision of health care. But the Court ultimately agreed with the court of appeals, concluding that Bagley’s § 1983 claims were health care liability claims, holding that (1) each of the defendants met the statutory definition of a health care provider or physician; (2) plaintiff alleged that actions taken by each of the defendants proximately caused Jeremiah’s death; and (3) plaintiff’s claims asserted conduct by the defendants which allegedly departed from accepted standards of health care.
Next, the Court reviewed whether 42 U.S.C. § 1983 preempted the TMLA’s expert report requirement. Where state and federal law are inconsistent, the federal law preempts the state law if it is an “obstacle” such that its enforcement “will frequently and predictably produce different outcomes based solely on whether the claim is asserted in state or federal court.” See Felder v. Casey, 487 U.S. 131, 138 (1988). The Court’s analysis, guided by its prior decision, In re GlobalSanteFe Corp., 275 S.W.3d 477 (Tex. 2008) (interpreting a similar report requirement under the Jones Act), concluded that Bagley would have the same burden of proof as to the substantive elements of his § 1983 claims regardless of filing the action in state or federal court.
Based on this conclusion that the TMLA’s requirement of an expert report providing opinions on the relevant standard of care, its breach, and causation during the preliminary stages of litigation would not cause reliably different outcomes between these types of claims brought in state and federal court, the Court reversed the court of appeals’ decision in part, holding that 42 U.S.C. § 1983 did not preempt the expert report requirement found in the TMLA because the state law did not create an additional substantive hurdle or otherwise conflict or interfere with federal law.