NOWZARADAN v. Ryans
347 S.W.3d 734
Tex. App.2011Background
- Ryans sued Nowzaradan for medical malpractice following a 2006 hip-replacement; Ryans served an expert report in 2008 and a supplemental report in 2008; those reports complied with Chapter 74.
- In August 2009 Ryans amended her petition to include a gross-negligence claim against Nowzaradan.
- Nowzaradan moved to dismiss the gross-negligence claim for failure to serve a Section 74.351 expert report; the trial court denied the motion.
- The defense appealed under Texas Civil Practice and Remedies Code § 51.014(a)(9) seeking dismissal for lack of a proper expert report under Chapter 74.
- The court held that ordinary and gross negligence are not separable causes of action and that gross negligence is not a distinct health care liability claim requiring its own § 74.351 report.
- The court concluded that an amended pleading alleging gross negligence does not create a separate health care liability action; gross negligence is a heightened degree of ordinary negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does gross negligence require a separate 74.351 expert report? | Ryans asserts gross negligence is a separate HCL requiring its own report. | Nowzaradan argues gross negligence is a separate claim necessitating a § 74.351 report. | Gross negligence is not a separate HCL; no separate report required. |
Key Cases Cited
- Olin Corp. v. Dyson, 678 S.W.2d 650 (Tex.App.-Houston [14th Dist.] 1984) (held negligence and gross negligence separable; later questioned)
- Moriel, 879 S.W.2d 10 (Tex. 1994) (bifurcation of punitive damages; influenced later interpretation)
- Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998) (concurring view that negligence and gross negligence are intertwined)
- Rose, 156 S.W.3d 541 (Tex. 2004) (malicious credentialing intertwined with treatment; notes treatment standard relevance)
- Bernal, 22 S.W.3d 425 (Tex. 2000) (punitive damages proportionality; liability phase considerations)
- Hogue, 271 S.W.3d 238 (Tex. 2008) (ordinary negligence prerequisite to gross negligence in medical context)
- Croix, 278 S.W.3d 395 (Tex.App.-Houston [14th Dist.] 2008) (causation standards comparable for ordinary and gross negligence)
- Palacios, 46 S.W.3d 873 (Tex.2001) (standard of care as an element in medical-malpractice; interplay with gross negligence)
- Wilson v. Korthauer, 21 S.W.3d 573 (Tex.App.-Houston [14th Dist.] 2000) (medical standard of care in evaluating negligence)