Spence Kerrigan, Individually and as Attorney in Fact to Kathleen Kerrigan v. Memorial Hermann Memorial City Medical Center
2012 Tex. App. LEXIS 7219
Tex. App.2012Background
- Kerrigan sues Memorial Hermann for false imprisonment, assault, and negligence arising from hospital security handling of his daughter Kathleen in January 2010.
- Kathleen was an inpatient psychiatric patient with manic/psychotic symptoms; Kathleen was to be transferred to an inpatient facility the morning of January 2.
- The hospital relied on security to maintain safety and to preserve the attending physician’s medical-care plan after Kathleen’s destabilization.
- Trial court dismissed the negligence claim for failure to provide an expert report; false imprisonment and assault claims were not dismissed.
- On appeal, the issue is whether Kerrigan’s three claims are health-care-liability claims subject to expert-report requirements under Tex. Civ. Prac. & Rem. Code § 74.351.
- The court ultimately holds all three claims are health-care-liability claims and must satisfy § 74.351 expert-report requirements; the negligence dismissal is sustained while the false-imprisonment and assault dismissals are affirmed on that basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Kerrigan’s claims health-care-liability claims? | Kerrigan argues some claims fall outside health care scope as unrelated to medical care. | Memorial Hermann contends all claims are health-care-liability claims tied to safety/medical plan. | All three claims are health-care-liability claims. |
| If so, are expert reports required for each claim under § 74.351? | Kerrigan contends expert reports are not required for some claims. | Memorial Hermann asserts § 74.351 applies to all health-care-liability claims. | Expert reports required for all health-care-liability claims; negligence sustained for failure to produce report; false imprisonment and assault dismissed for lack of report. |
Key Cases Cited
- Diversicare Gen. Partners, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (defines distinguishing health care from non-health-care conduct; focus on essence of claim)
- Tex. Cypress Creek Hosp., L.P. v. Hickman, 329 S.W.3d 209 (Tex. App.—Houston [14th Dist.] 2010) (permits consideration of health-care-liability scope beyond direct medical care)
- Appell v. Muguerza, 329 S.W.3d 104 (Tex. App.—Houston [14th Dist.] 2010) (punching/throwing patients not part of medical services; guidepost for health-care claims)
- Smalling v. Gardner, 203 S.W.3d 354 (Tex. App.—Houston [14th Dist.] 2005) (treatment/standard-of-care considerations implicate health-care duties)