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The Texas Medical Liability Act, along with numerous other Tort Reform measures, were enacted in 2003, now eighteen years ago. This law was meant to protect physicians and health care entities from “frivolous lawsuits.” The statute, among other things, limits non-economic damages to $250,000 per plaintiff (has not been adjusted for inflation in eighteen years), and requires the plaintiff to search for and pay for a medical expert from whom to submit an expert report within 120 days of filing suit. While some of the measures under the law appear reasonable, the application of the TMLA acts as a barrier to plaintiffs with low economic damages or unique case fact patterns from filing suit.

First, many practitioners will avoid taking a case, even one with favorable facts for the plaintiff, if the plaintiff has not suffered significant economic damages as a result of the malpractice. Of course if the CEO of a major corporation, and high income earner, is brain damaged as a result of a botched tumor extraction, there will be major economic damages in play. This is a case a practitioner working on contingency fee will likely be willing to gamble six-figure expert fees on. The future economic damages from CEO being unable to work are significant here. However, if a low income earner, or indigent person, falls victim to the same malpractice, the most that patient will ever likely get is $250,000. Does it make sense for a contingency fee lawyer to gamble $100,000 in costs on this case, regardless of the lawyer’s sympathy to the plaintiff and appreciation for the favorable facts? No. The legislature knows this, defense lawyers know this, insurance carriers know this, the defendants know this, and the court know this.

Furthermore, for most of the last nearly two decades now, the appellate courts along with the Texas Supreme Court has applied the TMLA to every kind of case that touches a doctor or hospital. Yes, someone who slips and falls delivering sodas to a hospital was once made to file an expert report from a medical expert to explain that slippery substances should not be left on a storeroom floor. This reasoning led to absurd results and countless victims of negligence being turned away by gun-shy lawyers despite the victims having meritorious cases. Recently, however, the courts at the appellate level seem to be swinging back the other way. Just recently, the lawyers at Ellzey & Associates, PLLC were able to convince the Thirteenth Court of Appeals that Chapter 74, The TMLA, does not apply to a case involving a physician employer assaulting an employee. It has taken about two years to reach this point, but it was worth the wait.

Texas Doc Must Face Suit Over Alleged Assault Of Employee

By Y. Peter Kang

Law360 (August 31, 2021, 6:00 PM EDT) — A Texas appeals court on Tuesday gave the green light to a suit accusing a pain clinic doctor of assaulting an employee shortly after firing her and preventing her from leaving the clinic, saying the allegations can’t be considered health care liability claims that require a medical expert’s report.

A three-judge Thirteenth Court of Appeals panel upheld a Hidalgo County court’s denial of a dismissal bid in a suit accusing Rafath Quraishi of terminating San Juanita Ochoa’s employment in June 2018 “in a fit of rage” and shortly thereafter grabbing her by the shoulder and “viciously shaking her” before telling another employee to lock the door to prevent her from leaving. The suit brings claims of assault and false imprisonment, according to the opinion.

The trial court had rejected Quraishi’s argument that the suit should be dismissed because it failed to provide a medical expert’s report as required by Chapter 74 of the Texas Medical Liability Act, finding that the claims did not allege medical malpractice.

On appeal, Quraishi said Chapter 74 should apply because he fired Ochoa six days before she claims she was terminated and she was attempting to steal patient medical records under the guise of retrieving personal belongings when the physician confronted her days later.

The panel on Tuesday found that Ochoa’s claims did not arise out of medical treatment by a health care professional. Although a police report mentioned the patient records and affidavits submitted by clinic employees stated that Ochoa was indeed attempting to take patient files, the panel said Ochoa’s allegations had nothing to do with any medical treatment rendered by Quraishi.

In addition, Ochoa established that she did not give her consent to the alleged offensive contact and showed that the only possible connection to medical treatment was the fact that the contact took place at a health clinic.

“We hold this is not a health care liability claim. This is an employment dispute with allegations of a physical altercation and a possible theft,” the panel said. “Because this was not a health care liability suit, Ochoa was not required to file an expert report.”

Jarrett L. Ellzey of Ellzey & Associates PLLC, attorney for Ochoa, told Law360 on Tuesday that he was satisfied with the decision.

“The 13th Court of Appeals delivered the message that we have been waiting for, and a ruling consistent with the reasoning of the honorable district court,” he said via email. “The message is that proponents of Chapter 74 who have criticized the plaintiffs’ bar for decades over filing frivolous medical malpractice lawsuits cannot be heard to whine when they attempt to misapply their own defense-friendly tool to claims that cannot possibly fall under the preview of the Texas Medical Liability Act — this is a frivolous defense.”

He added, “The plaintiff’s claims in this case — false imprisonment and assault by an employer who happens to be a doctor — are clearly not health care liability claims under the statute.”

An attorney for Quraishi did not immediately respond to a request for comment Tuesday.

Justices Nora Longoria, Leticia Hinojosa and Jaime E. Tijerina sat on the panel for the Thirteenth Court of Appeals.

Ochoa is represented by Jarrett Ellzey of Ellzey & Associates PLLC.

Quraishi is represented by Jeremy M. Masten of The Masten Law Firm PLLC and M. Sameer Ahmed of The Ahmed Firm PLLC.

The case is Rafath Quraishi M.D. v. San Juanita Ochoa, case number 13-20-00405-CV, in the Thirteenth Court of Appeals of Texas.

–Editing by Stephen Berg.