Agbor v. St. Luke's Episcopal Hospital

EDELMAN, LEE, Before AMIDEI and JJ.

OPINION LEE, Justice. individually Kingsley Agbor,

Comfort and son, their Dikeh and as next friend of minor 355 (the Agbors), summary judg- reflecting a cause number Agbor appeal the severed was 26, signed granted Episcopal Hospi- January Agbors on 1994. The ment St. Luke’s (St. Luke’s), asserting trial court filed a motion for and new tal erro- reconsideration 16, 1994, neously interpreted February appeal on and an the Texas Medical Prac- trial (the Act)1 15, requiring April Act Texas on 1994. tice bond showing negligent malice a claim for argues that since the second St. Luke’s and, credentialing, alternatively, summary judgment beyond no granted relief Open Act violates Courts Provision of the first, summary granted in the second that Constitution.2 reverse and We re- judgment nullity. It further maintains mand. the trial use of the incorrect that court’s 19, 1990, On November Dikeh was deliv- error, merely a clerical cause number was by Dr. at ered Suzanne Rothchild St. Luke’s. by judgment and should have been corrected Agbors allege dislodging The that in Dikeh’s Thus, pro nunc tunc. Tex.R.Civ.P. 316. See canal, shoulder from the birth Dr. Rothchild that St. Luke’s contends the trial court’s injured permanently Dikeh’s plexus, brachial 1994, 16, power January on plenary expired disabling Agbors allege his arm. The thirty days summary judgment first after the negligent grossly that Luke’s was St. 329b; signed. order was See Tex.R.Civ.P. renewing Dr. Rothchild’s staff (Tex. Canales, 741, v. S.W.2d 744 Uvere privileges not because she was a Texas resi- App. 1992, orig. proceeding). Ac — Dallas dent, properly was not for insured cordingly, it the trial court had contends malpractice and was a defendant several power modify judgment, except its for malpractice actions. pro correction of clerical errors nunc tunc. argues Agbors See St. Luke’s since the trial

The sued Dr. for Rothchild medical plenary had power expired, entry court’s “negligent St. Luke’s 26, 1994, January summary judgment credentialing.” did summary In its motion Agbors perfect not extend the for the judgment, time urged St. Luke’s that the Texas appeal. Stephens Henry v. an See S. Miller provides immunity ac- Co., 250, (Tex.App. S.W.2d tions taken entities absent a — Dallas 1984, Thus, agr.). writ dism’d Luke’s showing of St. malice. See Tex.Rev.Civ.Stat. (m) (Vernon 5.06(Z) Agbors’ appeal not contends the bond was Ann. art. 4495b & timely disagree. filed. granted We Supp.1995). The trial the mo- court summary judgment tion for and severed the summary judgment The entered on De Agbors’ against action St. Luke’s from the 17, 1994, in cause number 92- cember was Agbors action Dr. Rothchild. 19823 rather than the severed cause number appeal. bring this Thus, summary judgment 92-19823-A. potentially dispositive

Because it is on 17 ordered that entered December initially appeal, Agbors nothing we will address St. take St. Luke’s cause reply point first Luke’s that this court lacks number 92-19823 St. Luke’s was no when jurisdiction longer appeal party hear this because the to that cause.

Agbors’ appeal timely summary judgment notice of was filed. December 17 had no ef summary judgment Luke’s motion for fect on v. St. the severed cause. See Philbrook (Tex.1985) 20, orally 1993, granted Berry, (per on September was 683 S.W.2d 378 cu- riam) Agbors’ filing (holding and the action of an St. Luke’s answer original was severed on 1993. A writ motion for new trial under cause December take-nothing summary judgment ten was number rather than severed cause did power signed plenary on but court’s in severed December reflected extend action, cause); original San City number of the 92- see also Antonio v. Rod cause (Tex.1992) action, riguez, (per cu rather than that of the severed 828 S.W.2d 417 riam) summary judgment (reversing appeals A dismiss- 92-19823-A. second the court I, §§ § 13. 4495b 1.01-6.13 2. Tex. Const. art. Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1995). appeal greater notice efforts than be undertak- original al of a cause where could states; number); wrong by individual was docketed under the but en Instruments, see Texas Inc. Teletron En to restrict There was national need Inc., ergy Management, incompetent ability physicians of (Tex.1994) validity (questioning of Philbrook dis- move from state state without holding light Rodriguez of and that court discovery physician’s closure or filing for appeals time could extend per- damaging incompetent or previous facts). Thus, there is statement of one formance; granting summary judgment order to St. problem 8. This could be remedied cause, 92-19823-A, Luke’s in the severed through professional peer re- effective appeal upon which is on to this court. Based view; January judgment, this 1994 the motion liability, includ- damage 4. threat of The timely appeal new trial and bond were for damage ing liability under the treble Tex.R.App.P. Moreover, 31, 41. filed. See law, unreasonably antitrust dis- federal supreme we have been warned court physicians participating courages appeals of the courts of “decisions] review; professional peer in effective proce- turn on rather should substance than and Instruments, technicality.” dural Texas 877 overriding need to There is an national 278; Rodriguez, at 828 at S.W.2d S.W.2d protection for provide incentive and Terrill, 418; 898 see Silk v. S.W.2d engaging profes- physicians in effective (Tex.1995) curiam) (per (holding judicial peer review. sional economy ripe is not for served when case (West 1995). § Consis- U.S.C.A. procedural on a technicali- decision decided findings, Federal Act tent with these ty; cases be decided on the merits should grants immunity profes- from civil easily can procedural deficiencies be when persons participat- sional review bodies corrected). Therefore, Ag- we hold that the ing review the stan- with these bodies when timely perfected appeal bors their and we dards in the Act are met. set forth Federal reply point. overrule St. Luke’s not, § how- Id. 11111. The Federal Act does Agbors’ point of The sole error is ever, or immunities under change liabilities granting trial court Luke’s erred St. law, existing any or override state law which summary judgment. Initially, the motion for engaged provides those greater for summary judgment Agbors contend was professional pro- review action than that incorrectly improper the trial court because 11115(a). § vided the Federal Act. Id. require interpreted the Texas Act to a show any rights Nor the Federal Act affect does ing “negligent credentialing” of malice in ac recovery to seek remedies against brought by patients hospitals. tions under or state federal law health by any physician treatment or care after The Texas Act is modeled the Health 11115(d). § (the entity. care Id. Quality Improvement Act of 1986 Care Act). §§ Federal 42 U.S.C.A. 11101-62 See immunity to a provides 1996). (West following Congress issued statement, entity “any deter health-care conjunction findings in Act: with Federal in the made recommendation” mination or participating peer course increasing 1. The occurrence of medical activity.” Tex.Rev.Civ. improve peer review malpractice and the need to “medical 5.06(i) (m) (Vernon § & quality care Stat.Ann. art. 4495b of medical had become means: Supp.1995).3 peer review” “Medical problems national warranted malice, (l) (m) peer reported, entirety, pro- in the course their without In subsections defined Act. vide: review as entity; person, or medical health-care [a] (/ ) [a] cause of action does accrue committee, that, peer members, employees agents, or of a medi- activity participates in medical cal review committee information, records, act, statement, or assistance entity furnishes de- health-care made, or the board review committee or act termination or recommendation matters; particu- consequences and the of a evaluation medical health-care services, including qualifi- evaluation of the lar construction. Tex.Gov’t Code Ann. (Vernon 1988); professional practi- cations of health-care 311.023 Dallas Mkt. Ctr. Shelmire, tioners and of care rendered v. Beran Dev. Co. & S.W.2d practitioners. those The term includes 221 (Tex.App. writ de- —Dallas of complaints nied); evaluation of the merits re- Bridgestone/Firestone, see also lating (“in practitioners J., and de- (Hecht, concurring) at 135 regard- terminations or recommendations circumstances, words, no some matter how ing complaints. those plain, to cause a result will be construed Legislature certainly could not almost 1.03(a)(9). however, argues, St. Luke’s intended.”). principals have these are When provisions immunity that these also extend applied 5.06, to section we conclude that the liability from “negli- to suits hospital liability from is not immune as it gent credentialing” patient the unless shows asserts. disagree. malice. We statute, construing pri First,

In a our we are not convinced the Texas mary objective legisla is to determine the unambiguously hospital that a Act states is ture’s intent. Bell Southwestern Tel. Co. v. “negligent immune from creden- Texas, Public (l) Util. Comm’n 888 S.W.2d tialing,” Subsections absent malice. and of 921, n.w.h.). 1994, (Tex.App. (m) 926 immunity provide peer can be read to — Austin Generally, unambiguous, when a statute is only, providing review in- activities such give according we effect to the statute to its immunity formation and records. This would Bridgestone/Firestone, terms. Glyn Inc. v. entity, peer a allow health-care review com- Jones, 132, (Tex.1994); 878 133 S.W.2d Ma mittee and make members to ley Inc., v. 7111 Freeway, Southwest 843 “retaliatory” without determinations suits 229, (Tex.App. S.W.2d 231 [14th disgruntled physicians, from but would not — Houston 1992, denied). limited, Dist.] writ We are not separate extend acts the however, reading unambiguous the lan entity. health-care guage City of a statute. Fort Worth v. Second, context, when read in subsections Harty, (Tex.App. S.W.2d — Fort (l) (m) and provide do not the denied). Worth writ We should: urged by hospital. the Because subsections 1. provision read the in context with the (l) immunity if provide the activities statute; Bridge- remainder of the malice,” hospital “without are the admits that stone/Firestone, 133; 878 S.W.2d at Agbors if they the would have a valid claim adopt a construction that would hospital proved that the acted with malice in provision render a law or absurd or credentialing” “negligently Dr. Rothchild. Bell, meaningless; Southwestern art. 4495b See Tex.Rev.Civ.Stat.Ann. 927; Maley, S.W.2d at 843 S.W.2d at 5.06(Z) (m) (Vernon Supp.1995). § & How 231; and ever, impossible this is an burden because of Legislature not “attribute an confidentially provisions of the Texas injustice.” an intention to work Meno records, (j) provides Act. Subsection that all Kitchens, (Tex. of a determinations communications denied). App. writ —Austin medical are not dis committee addition, In legislature expressly has coverable or admissible in a civil suit. Id. 5.06(j). Thus, construing hospital’s interpreta § stated that if when statute we may injured object sought patient an adopted, consider: to be at- tion the act is tained; position placed impossible proving under circumstances which the enacted; credentialing process legislative history; statute was malice in the statutory say legisla provisions, discovery. common law or cannot that the former We including other result.4 laws on same similar ture intended such an absurd See liability arising interpretation

is immune This consistent with sec- civil from 4. is also 5.06(f) provides following tion that the which such an act. persons liability: are immune civil quently physician the defendant Bridgestone/Firestone, 878 at sued (Hecht, J., concurring). anguish with its attendant cost and mental loss, message the doc- and financial Third, the Fed incorporates get tors of Texas is loud clear: do Act. eral See Tex.Rev.Civ.Stat.Ann. legis- this type involved. must have We 5.06(a) (Vernon Supp.1995). § 4495b any action lation which will mandate that the liabilities Federal Act states physician group taken of his specifically provided for in and immunities county be staff peers, it a or a changed. subchapter All other liabil any type society, changed. are not See 42 ities immunities organization, if that action is taken on the 11115(a) (West 1995). The Fed U.S.C.A. incompetency, immedi- basis it be affect provides eral Act that it does not ately reported to the Board of Medical rights and remedies available to appropriate investigation Examiners for physician, negligence for the of a health-care action. entity. provider 11115(d). not in The Federal Act does Similarly, lia- Senator Brooks stated that “a “immunity” provisions to section clude similar necessary bility shield” to be “even was 06(l) (m). Therefore, if 5. and the physicians if and entities handed” Luke’s, urged by St. were construed required report improper to were to actions immuni portion provide one of the act would peer Board of and the Medical Examiners ty by patients por another from suits while Representative review committees. McKin- rights of and tion the act states that the ney, physician, required a act stated the a not affect remedies available to provided peer reporting review immuni- Thus, urged the St. ed. to construe act as a ty retaliatory from suits. He said that internally the Luke’s would make Texas Act survey physicians doc- of indicated that more contradictory. process in if retal- participate tors would the Fourth, legislative history does not the hand, iatory suits were barred. On the other “immunity” support conclusion that the the history in the that the there is indication by pa- provisions extend actions should to legislature being asked to make health- was clearly legislative history indi- tients. The by patients care entities immune from suit keep purpose of act was to cates the the Thus, because of its review activities. suing activi- physicians from clearly provi- purpose of the the announced Winn, past a example, ties. For Dr. James protect retaliatory to from suits sions was of Medical member of the Board There indica- disgruntled physicians. is no Association testified to the Senate: protect the to legislature tion that intended particularly protec- ask that We enhanced “negli- hospitals by patients from suits to tion civil lawsuits be extended goal as a gent credentialing.” Our ultimate courageous physicians do come those who apply law as court is to construe and the testify regarding forward unskill- and who interpreta- legislature. The intended the physi- ful and care that another urged by tion fails to meet upon patient. cian a When has bestowed goal. physicians both such act out of a sense of hospital’s interpre- pro- Finally, adopt if

professional responsibility civic we tation, may grave injustice a Dikeh viding to Board of result. information the State injured by negli- Agbor allegedly was Medical Examiners then are subse- board, committee, furnishing or person reporting infor- of the a to or functions member, a medical committee mation to or em- program, if such intervenor faith; good the board ployee, agent acts without malice in or (2) member, employee, agent a of or recom- that such action or reasonable belief member, board, agent employee, or facts known mendation is warranted member, committee, peer review medical employee, committee, her; him or to organization agent of a or (3)any employee or of the board member organization district or a medical carrying person any who assists board any who action or or local intervenor takes provided by law. its or functions out duties scope any within the makes recommendation gence Agbors pre- of Dr. Rothchild. The a court should not use rules of construction it, summary judgment that Dr. or extrinsic aids to construe but should sented evidence give meaning. the statute its common Rothchild had been sued several times for Glyn-Jones, Bridgestone/Firestone, Inc. v. malpractice hospital. in deliveries at the The (Tex.1994). 132, 133 A statute is Agbors presented summary judgment com presumed to have been enacted with evidence that Dr. Rothchild did not have plete knowledge existing with insurance, law and malpractice in violation of the hos- Acker v. reference it. Texas Water pital’s by-laws credentialing require- (Tex.1990). Comm’n, immunity ments. If the section 5.06 extends “negligent may credentialing,” Agbors Quality Improvement Act The Health Care meaningful remedy. be without or effective (the Act”) grants “Federal immuni- purpose of both the Texas and the Fed- ty professional from civil improve quality eral Acts is to care. persons participating bodies and with them Immunity “negligent credentialing,” where the standards set forth therein are proof circumvents this ob- However, met. U.S.C.A. jective. Hospitals discouraged would not be change Federal Act does not otherwise liabil- granting privileges physicians staff law, existing ities or immunities under who do not have insurance or provides great- override state law which any number of other unreasonable shortcom- engaged profession- er for those ings. hospitals Unless are held accountable provided by al review action than that failing to follow reasonable 11115(a). Federal Act. Nor does the requirements, purpose of the act will be any rights Federal Act affect and remedies thwarted. recovery seek under federal by negligent state law for treatment or care reasons, forgoing For the we do not be- any physician entity. or health care Id. entity lieve a health-care is immune from 11115(d). § by patients allegations suits “negligent credentialing,” Agbors’ absent malice. The expressly The Texas Medical Practice Act2 point summary of error is sustained. The incorporated provisions the of the Federal judgment pro- is reversed and remanded for Act and added several of its own. See art. ceedings consistent opinion.5 with this § provisions 5.06. The two such in 4495b (the question “immunity provisions”) here

EDELMAN, Justice, dissenting. provide that cause of action does not “[a] against entity accrue ... the health-care OVERVIEW any from ... determination ... made ... I respectfully Legisla- malice, peer dissent. When the without in the course of spoken subject, Act;” ture has on its determina- ... “[a] defined health- binding that, upon malice, tion is entity partici- the courts unless it has care ... without authority. pates peer activity exceeded its constitutional Public ... medical is 121, Cofer, any liability arising Util. Comm’n v. immune from civil from (Tex.1988). (m).3 5.06(1), unambiguous, When a statute is such an act.” Id. (Z) (m) disposition Agbors’ provide: 5. Because of our initial 3. Subsections contention, (Z) we do not reach their second conten- cause of action does not accrue [a] members, immunity agents, employees "negligent tion that the of a medi- from credential- peer malice, cal review committee or ing,” pro- open absent violates the court act, statement, entity any health-care from de- Reaching question vision. this constitutional is made, or act termination recommendation "absolutely necessary." See Texas State Bd. malice, reported, peer without the course of College, Barber Examiners v. Beaumont Barber review as defined this Act. Inc., (Tex.1970). person, entity, or medical [a] committee, that, peer review (West Supp. §§ 1. 42 U.S.C.A. 11101-52 1995 & participates peer activity 1995). records, information, furnishes or assistance to a medical review committee or the board §§ liability arising 4495b 1.01-6.13 is immune from civil Tex.Rev.Civ.Stat.Ann. (Vernon 1995). Supp. such an act. ever, giv jurisdictions, that rule has is some “medical review” purpose,

For this way hospitals that are liable to qualifi- en to a view “evaluation of the defined to include failing properly credential practition- patients for professional health-care cations of ers_” See, 1.08(a)(9). Thus, Darling v. e.g., Charleston read to- doctors. Community Hosp., 33 Ill.2d immunity Memorial plain meaning of the gether, denied, (1965), hospi- 211 N.E.2d 253 cert. U.S. immunity to a provisions provide is to (1966). L.Ed.2d 209 regard 86 S.Ct. liability with tal4 from civil review, patients’ for including Prior to the 1987 amendment of decisions, i.e., par- “credentialing” whether immunity provisions, ap- it adding the practice at the qualified ticular doctor appeals only Texas court to pears hospital, where the decisions of action was implemented that cause have are made without malice. Appeals.6 Our Antonio Court San adopt it declined to majority opinion, court had said in the

As indicated plaintiff had clearly cause of action where the legislative history indicates such a applicable Moreover, although his own doctor.7 immunity provisions of both the chosen refused writ in primarily Supreme Court had Act were Federal Act and Texas recognized negligent creden- cases that retaliatory lawsuits intended to foreclose cause tialing, it not itself addressed that privileges not re- had staff doctors whose has not. However, opinion, in an and still apart that and the of action newed. itself, we have no language of the statute whether it is clear immunity provisions indication whether the “well-recognized” cause of action for had a apply also intended to of the Texas Act were credentialing in Texas before against hospitals. patients’ actions added to the Texas provisions were upon Legisla- Depending in 1987. Historically, although hospitals have al- Act time, of perception of that issue at the employ- ture’s ways liable for the acts of their been indication, equally it is we have no agents, they not been accounta- which have ees (1) perceived arguable that there was physicians were inde- for the acts of who ble and, thus, immunity provi- of action hospitals cause pendent contractors because it, apply to not intended to of the methods sions were could not control the details of action and the perceived cause practiced.5 How- there was physicians those which However, discussion, case whether the it is unclear in that purposes the term "hos- of this For agent hospital broadly employee of the pital” refer to all "health was an or is intended to doctor entities,” 1.03(a)(5) supervision of of its care as defined in Section was under the direct in that he Act. Texas administrator. amendment, negligent credential Since the 1987 Parker, recognized by and El ing & Jordan M. the Amarillo 5. See Richard L. Griffith has been Metamorphosis Appeals, Toward None: The based on Park With Malice Courts of both Paso Physi Statutory Regional and Common Law Protections Lopez Plains North. See v. Central for Credentialing Negligent 600, Hospitals (Tex.App.— in cians and Hosp., 602 n. 2 (1991). Litigation, 1993, writ); Deerings Nursing West 161 157, 22 Tex.Tech L.Rev. Amarillo Scott, (Tex.App. Paso v. 787 S.W.2d 494 Ctr. — El Hosp. Sys., 1990, denied). provisions Baptist immunity 720 in v. Memorial 6. See Smith writ The 618, (Tex.App. Antonio apparently 626 n. 2 in S.W.2d not asserted Act were — San 1986, n.r.e.) hospital may (noting ref'd that writ cases. those duty prevent physician’s to have to procedures granting (Tex. for and extent it establishes Phillips, S.W.2d 173 7.Jeffcoat reviewing privileges); North Gen. Park staff Civ.App. writ ref'd [14th Dist.] — Houston (Tex. Hickman, Hosp. v. n.r.e.) employer-employ (holding that where no n.r.e.) (hold App. Antonio writ ref’d ee, joint partnership venture principal-agent, or — San duty plaintiff to ing had to that Park North physi hospital relationship between exists of and care in selection exercise reasonable cian, granting or con hospital for is not liable staff, privileges and to granting to its medical patient tinuing surgical privileges has cho where compe periodically and review staff's monitor hospital lia physician is not otherwise sen ble). tency). case, wheth do not reflect In this the briefs Agbors or States, was selected Dr. Rothchild F.Supp. er v. United In Penn Tanker Co. the time of deliv simply at St. Luke’s at (S.D.Tex.1970), on call public hospital was held ery. negligence. patient for a doctor’s liable to a immunity provisions greater immunity might provided by apply were intended to that be it, perceived to or there was a cause state law. it is not a conflict that were immunity provisions action and the in Texas differs from the Federal Act ex- it, apply to to tending partial peer immunity pa- intended but the statute was to inartfully against hospitals. nevertheless drafted to have that tients’ suits matter, practical effect. As a however to Nor does a conflict arise from the fact that whatever extent there had been an actionable 5.06(i) (m) immunity subsections extend right recoveiy negligent credentialing (t) entities, to health care whereas subsection Texas, immunity provisions did not key does not.9 The issue in this case is not claim, destroy simply but raised the whether health care entities were intended to culpability negligence standard of from to immunity provisions be included since sense, immunity provi- malice. In this they it is clear that were intended to at least only partial immunity pa- sions afford immunity be afforded claims doctors. tients’ suits. Instead, key issue here is whether the immunity provisions apply patient NO CONFLICT WITH FEDERAL ACT claims. Since the differences between sub- immunity provisions The of the Act (t) (l), sections do not relate to that do not provision conflict with the of the Fed- question, they meaning do not affect the patient malpractice eral Act which states that validity immunity provisions pur- of the claims are not affected. This is because the poses of this lawsuit. immunity provisions apply of the Texas Act review activities and not to patients’ negligent claims for NO ABSURD RESULT treatment or is, care. That the extent that a Unquestionably, primary justifi- policy prevailing has a direct claim under law for granting immunity cation for treatment or care a doctor encourage professionals is to (such hospital employee an where participate process entities to agent negligent), of the the immu- privi- fear of to those whose clinical nity provisions of apply the Texas Act do not leges adversely affected their deci- to that claim. arguable extending partial sions. It is Moreover, although immunity patients’ the Federal Act clear- hospitals claims ly does not extend poli- to suits would not further this 11115(a) patients against hospitals,8 cy review, encouraging Section effective but specifically contemplates accountability Federal hospitals would lessen the states, 5.06(t) legislative history provides: 8. The Federal Act 9. Section part: following persons are immune from civil professional liability: The fact that a review action was (1) against physician person reporting furnishing or was not taken a under this a to or infor- way right patient bill shall in affect the of a mation to a medical review committee or faith; malpractice good to file a claim or action for dam- the board in (2) member, ages. any employee, agent Nor shall such failure affect defens- a or of the board, member, malpractice example, employee, agent es to a such action. For a or of a committee, member, patient might hospital a seek to include a in a malpractice hospital agent employee, committee, organization action where the has in- or of a medical professional organization formation related to the conduct or a medical district competence physician, profes- any or of a takes a or local intervenor who takes action or any scope sional review action that meets the standards makes recommendation within the bill, board, committee, physician, this exonerates the and the of the functions of the or member, patient subsequently injured by physi- program, employ- is the if intervenor ee, such Although professional agents cian. the or acts without malice in the reason- body subject damages would not be to able belief that such action or recommendation her; by physician, by him in a suit this would is warranted to or facts known apply any by patient. suit H.R.Rep. Cong., employee No. 99th 2d Sess. 9-10 member or of the board or (1986), reprinted any person carrying in 1986 U.S.C.C.A.N. who assists the board in added). (emphasis provided by out its duties or functions law. clearly legiti- staffing “impossible patients for is burden” than for decisions. This an for immunity provisions doctors to whom mate concern. clearly intended apply. are However, argued can it also be that even patient been argued It has also that a procedures proper medical are sometimes prove unable to him would be malice toward produce unsuccessful unfavorable re- credentialing because are not made decisions performs enough proce- sults. If a doctor regard particular with to be treat- dures, particularly those are intricate which by ined the future the doctor under review. complex, arguably it that some follows will However, although in malice is defined inevitably unsuccessful, prove and even re- Act, it that the cannot be assumed so, in If sult medical lawsuits. Legislature intended malice to exist hospitals negligence then to hold liable specifically where a defendant intends to in- arguably their would decisions jure In claimant. of malice the definition discourage experi- rehiring them from more in the Texas enacted Civil Practice and Rem- enced doctors favor of those who have legislative edies Code session as same experience. “cleaner” records due to less immunity provisions, example, “mal- arguably Such a result could do more to (a) in- specifically ice” is defined as conduct care, improve lessen than health overall by tended the defendant to cause substantial justified arguably not is to the extent claimant, (b) injury to the “an act that is legal patients have for medical mal- remedies by flagrant carried out defendant with a practice against their doctors. rights disregard for the of others and with is, course, It not the role of this court to part actual on defen- awareness of the competing policy choose between con- these will, probabili dant that the act in reasonable However, recognize siderations. we should death, ty, great bodily result in human harm they in this case that are not so one-sided as damage.” property Tex.Civ.Prac. & Rem. providing hospitals par- to demonstrate 41.001(6) (Vernon Supp.1995). Ann. Code immunity against patients’ tial claims for cre- Moreover, may malice established di be dentialing decisions was so absurd result rect or circumstantial Missouri evidence. Legislature that the not have intended could Lemon, Pac. R.R. Co. v. it. (Tex.App. [14th writ Dist.] — Houston agr.). proof dism’d of malice Similarly, the majority opinion concludes patient particular required toward a is not requirement “im- that the malice creates an immunity provisions. possible burden” a claimant because rec- proceed- ords and discussions majority opinion similarly rejects ap ings privileged. See pa Tex.Rev.Civ.Stat. plication immunity provisions (Vernon § 5.06(g) (j) Supp. art. 4495b & Bridge- Bridgestone. claims based on Ann. tient 1995). however, Importantly, priv- this same products was a crashworthi stone ilege only negligence, if and not exists even At ness case based on seat belts. defective required 6701d, in order for 107C(j) of the issue was article Section liability against hospital.10 More- Statutes, provides establish Revised Civil which over, privilege equally applies safety to claims or nonuse belt is not that the use of a privileges have doctors whose clinical trial. Tex.Rev. admissible evidence a civil (Vernon adversely by peer 107C(j) review. been affected 6701d Civ.Stat.Ann. evidentiary discovery Despite language, Supp.1995). statute’s Supreme pur- that its standpoint, privilege creates no more Court held case, facts, despite privi- supported example, insurance. if In this Such summary lege, plaintiffs allegedly by proper judgment proof, could raise been able to had “many” concerning especially Dr. mal- a fact issue in con- determine that Rothchild had brought prior practice junction presumption the Federal cases her to the with under request Agbor, delivery these cases Act that a fails to such of Dikeh that most of which Luke’s, reported pursuant to the Federal Act deliveries that several of information involved at St. presumed knowledge of it. been of thou- is nevertheless to have the cases had settled for hundreds dollars, 11135(b). fact issue Rothchild had See 42 U.S.C.A. No such sands of and that Dr. practiced years over without was asserted in this two at St. Luke’s case. pose preclude was to from intro- construed the trial court and do not vio- defendant ducing plaintiffs failure to use a seat belt Open late the Courts Provision of the Texas thus, contributory negligence; Constitution, as evidence judgment I would affirm the plaintiffs it did not bar a use of such evi- trial court.

dence a seat belt crashworthiness case.

Bridgestone, 878 S.W.2d at 134. In his con- opinion,

currence to that stat- Justice Hecht principle “[t]he

ed real at work here is this: circumstances, words,

in some no matter how

plain, will not be construed to cause a result Legislature certainly almost could not case,

have intended.” Id. at 135. In this however, above, as discussed it is not clear Nancy ZEMEN, Appellant, requiring patients prove malice in against hospitals order to recover creden-

tialing Legislature decisions is a result the Texas, Appellee. The STATE of could have intended. No. 14-93-0879-CR. NO OPEN COURTS VIOLATION Texas, Appeals Court of Although applicable point of error is (14 Dist.). Houston majority opinion, not reached in the I do not 5.06(i) Nov. believe that subsections Open the Texas Act violate the Courts Provi Open

sion of the Texas Constitution. The

Courts Provision states that courts “[a]ll open, every person injury

shall be for an him, lands, goods, person

done his

reputation, remedy by shall have a due I, §

course of law.” Tex. Const. 13. A

litigant challenging a statute as unconstitu

tionally restricting a common law cause of (1)

action must demonstrate that the statute well-recognized

restricts a common law cause action, the restriction is unreason purpose

able when balanced Oldham,

basis of the statute. Thomas v. (Tex.1995). Since it was not

demonstrated, above, as discussed either that

negligent credentialing “well-recog was a

nized” common law cause of action immunity provisions

when the were added Act,11 any resulting or that restric unreasonable,

tion is there is no violation of Open Courts Provision. conclusion,

In clear indication of

legislative contrary, intent to the we must immunity provisions,

construe the like other

statutes, according plain meaning. to their immunity provisions

Because the were so that, commentary "well-recog- 11. A 1991 observed based on believe that "viable” amounts to North, negligent credentialing Park was a “via- purposes Open nized” for Courts Provi- Parker, ble” cause of action in Texas. Griffith & sion. true, supra note at 169. Even if I do not

Case Details

Case Name: Agbor v. St. Luke's Episcopal Hospital

Court Name: Court of Appeals of Texas

Date Published: Jan 4, 1996

Citation: 912 S.W.2d 354

Docket Number: 14-94-00410-CV

Court Abbreviation: Tex. App.