Creative Defense or Delay Tactic in Cow /Car Collision?
In a quirky case currently before the Texas courts, a doctor has filed a motion to dismiss based upon medical malpractice laws. What is so odd about that? This case involves a car accident and has nothing to do with medical treatment.
The plaintiff, Bobby Tunell, filed a lawsuit against Dr. Richard K. Archer, claiming the 82 year-old retired doctor’s cow became loose and wandered into the highway, which resulted in a collision between Mr. Tunell and the cow. Dr. Archer’s lawyer has filed a very typical motion to dismiss — for a medical malpractice claim, that is. He claims that the case should be dismissed based upon the plaintiff’s failure to first file an expert report about the doctor’s duty of care.
Expert Report Requirement
Chapter 74 of the Texas Civil Practice & Remedies Code requires a patient to submit an expert report before she or he can file a medical malpractice lawsuit against a doctor. To comply with the Texas statute, the expert report must demonstrate the standard of care the doctor was expected to provide to the patient. This statute arose from tort reform laws passed by Texas lawmakers with the intention of protecting medical professionals from frivolous lawsuits. Clearly, the legislature meant for the law to apply to medical malpractice claims, not to any possible civil case against a medical professional.
However, in its 2012 decision in Texas West Oaks Hospital v. Williams, the Texas Supreme Court interpreted the rule as applying to cases in which the plaintiff’s claim was not directly related to his medical care. Dr. Archer’s attorney says the Texas West Oaks Hospital v. Williams ruling is “ridiculous,” but that he has a duty to his client to pursue dismissal based upon that ruling.
Delay Tactic?
When the trial court issued no ruling on the petition, the
defendant filed a writ of mandamus with the Texas Fifth Court of Appeals in Dallas. The appellate court ruled in In Re: Richard K. Archer Sr.
that the trial judge did not abuse her discretion by refusing to rule
on the matter because the allegations did not “in any way suggest
relator provided any health care service to the real party in interest.”
Dr. Archer’s lawyer has indicated his intention to continue
pursuing dismissal of his client’s case based upon the expert report
argument. Unfortunately, the plaintiff must wait for his day in court
while this frivolous claim makes its way through the judicial process.
Sadly, a law created to avoid frivolous lawsuits against doctors is thus being employed to produce frivolous delays against legitimate
plaintiffs. And you never hear the term “frivolous defenses,” do you?
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