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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 14-07-00925-CV
Regular Panel Decision
Feb 24, 2009

Latoya Basey v. Davita Inc., D/B/A Total Renal Care, Nelda Boatwright and Fresenius Medical Care Holding Inc., D/B/A Fresenius Medical Care North America D/B/A Northwest Houston Dialysis, and Biomedical Applications of Texas, Inc.

Latoya Basey appealed a take-nothing summary judgment in a disability discrimination and tort case against her former employer, DaVita, Inc., and potential employer, Fresenius Medical Care Holding, Inc. Basey claimed DaVita fired her after a work-related back injury and that Fresenius refused to hire her due to her injury and prior discrimination charge. The trial court granted summary judgment without specifying grounds. The appellate court affirmed, finding Basey failed to provide evidence of disability for her discrimination and failure-to-accommodate claims, and lacked evidence of causation for her retaliation claims.

Disability DiscriminationRetaliationSummary JudgmentWorkers' CompensationEmployment LawCausal LinkTexas Court of AppealsADAFailure to AccommodateEmployment Termination
References
11
Case No. 13-15-00024-CV
Regular Panel Decision
Jul 06, 2015

Maria Zamarripa, as Temporary Guardian of the Estates of R. F. R. and R. J. R., Minors, and Olga Flores, as Temporary Administrator of the Estate of Yolanda Iris Flores v. Bay Area Health Care Group, Ltd. D/B/A Corpus Christi Medical Center, Hidalgo County EMS, and Hidalgo County Emergency Medical Service Foundation

This case involves an appeal by Maria Zamarripa and Olga Flores (Appellants) against Bay Area Health Care Group, Hidalgo County EMS, and Hidalgo County Emergency Medical Service Foundation (Appellees). The Appellants are challenging the trial court's orders that granted the Appellees' motions to dismiss. The core of the appeal centers on the qualifications of Nurse Spears as an expert witness and the sufficiency of expert reports regarding the standard of care, its breach, and causation in a medical malpractice claim involving Yolanda Iris Flores's injuries and death from placenta accreta and pre-term labor. Appellants argue that Nurse Spears is qualified, the expert reports adequately connect CCMC's alleged breach of care to the injuries, and alternatively, they are entitled to amend the reports. They pray for the reversal of the trial court's dismissal orders and a remand for further proceedings.

Medical MalpracticePlacenta AccretaPre-term LaborMedical NegligenceStandard of CareCausationExpert Witness QualificationsHospital LiabilityEmergency Medical Services (EMS)Wrongful Death
References
16
Case No. 2016-02-0027
Regular Panel Decision
Mar 09, 2016

Gray, Kimberly v. Fresenius Medical Care

Kimberly Gray, an employee, sought an expedited hearing regarding her entitlement to medical treatment and a second opinion for her right elbow injury sustained while working for Fresenius Medical Care. She had been treating with Dr. Michael Bratton, who placed her at maximum medical improvement (MMI) on August 17, 2015, and determined a 1% permanent partial impairment. Ms. Gray requested a second opinion due to continued pain, but Fresenius Medical Care refused, stating there was no statutory basis requiring them to provide it without a physician's referral. The Court found that Ms. Gray was not entitled to the requested relief as she did not present sufficient evidence to likely prevail at a hearing on the merits, and her request for additional medical benefits was denied.

Workers' CompensationExpedited HearingMedical BenefitsSecond OpinionMMIPermanent Partial ImpairmentRight Elbow InjuryOrthopedic SurgeonStatutory InterpretationBurden of Proof
References
3
Case No. MISSING
Regular Panel Decision

East Texas Medical Center Regional Health Care System v. Reddic

Reddic, a non-patient, slipped on a wet rug at East Texas Medical Center's reception desk, leading to a lawsuit against ETMC. ETMC moved to dismiss, arguing the claim was a health care liability claim (HCLC) requiring an expert report under Chapter 74 of the Texas Civil Practice and Remedies Code, asserting a departure from accepted standards of safety. Reddic maintained it was a premises liability claim, not an HCLC, thus exempting her from filing an expert report. The dissenting judge contends that Reddic's status as a non-patient not involved in rendering medical care excludes her claim from the TMLA's ambit. The dissent advocates for affirming the trial court's denial of ETMC's motion to dismiss, emphasizing the distinction between patient and non-patient claims in healthcare facilities.

Medical MalpracticePremises LiabilityHealth Care Liability ClaimExpert ReportTexas Civil Practice and Remedies CodeChapter 74TMLASlip and FallHospital LiabilityNon-patient
References
7
Case No. 02A01-9505-CV-00118
Regular Panel Decision
Aug 08, 1996

Cassandra Hughlett v. Shelby County Health Care Corporation, Regional Medical Center at Memphis A/K/A The Med

Plaintiff Cassandra Hughlett underwent a cesarean section in 1991, during which a surgical sponge was allegedly left in her abdomen by the defendants, Shelby County Health Care Corporation, Regional Medical Center at Memphis, a/k/a "The Med," and the University of Tennessee Medical Group, Inc. She subsequently experienced severe pain and required readmission to remove the foreign body, leading her to file a medical malpractice suit alleging negligence. The parties reached a settlement, but a dispute remained regarding whether the plaintiff could recover $6,777.17 in medical expenses paid by the Tennessee Medicaid program from the defendants. The trial court ruled in favor of Hughlett, holding that Medicaid payments were recoverable. "The Med" appealed, arguing that social security benefits (which they claimed Medicaid payments were part of) are collateral sources under T.C.A. § 29-26-119 and thus not recoverable. The Court of Appeals affirmed the trial court's decision, citing Nance by Nance v. Westside Hosp. and federal law (42 U.S.C. § 1396a (a) 25(A)), which mandates states to pursue recovery from legally liable third parties. The court concluded that the plaintiff's losses were not "replaced or indemnified" due to the state's right of subrogation for Medicaid payments, making the benefits recoverable.

Medical MalpracticeMedicaid PaymentsCollateral Source RuleSubrogation RightsSocial Security BenefitsHealth Care Provider NegligenceSurgical ErrorForeign Body RetentionCesarean Section ComplicationsDamages Recovery
References
4
Case No. MISSING
Regular Panel Decision
Oct 17, 2012

Douyon v. NY Medical Health Care, P.C.

Plaintiff Gabrielle Douyon sued Seymour Schneider, N.Y. Medical Health Care, P.C., Faraidoon Daniel Golyan, M.D., and Kourosh Golyan, alleging unfair debt collection practices under the FDCPA and NY GBL § 349, along with intentional infliction of emotional distress and negligence. The lawsuit stemmed from attempts to collect an alleged medical debt following Douyon's emergency heart surgery performed by Dr. Golyan. Both parties sought summary judgment. The court granted Plaintiff partial summary judgment on FDCPA violations related to statutory disclosures and a threatening voicemail. However, many other FDCPA and NY GBL claims were denied due to factual disputes, and the intentional infliction of emotional distress claim was dismissed for lack of medical evidence, with negligence claims partially allowed to proceed on the basis of fear for physical safety.

Fair Debt Collections Practices ActNew York General Business Law § 349Debt CollectionSummary JudgmentEmotional DistressNegligenceAgency RelationshipVicarious LiabilityFreelance Debt CollectorUnfair and Deceptive Practices
References
105
Case No. 03-19-00484-CV
Regular Panel Decision
Jun 04, 2021

Dr. Lawrence Broder, M.D. and Round Rock Medical Aesthetics & Urgent Care PLLC D/B/A Beleza Medspa v. Nexstar Broadcast Group, Inc. KXAN-TV And Jody Barr

This case involves an appeal by Dr. Lawrence Broder, M.D. and Round Rock Medical Aesthetics & Urgent Care PLLC d/b/a Beleza Medspa against Nexstar Broadcast Group, Inc., KXAN-TV, and Jody Barr. The appellants sued for defamation, business disparagement, and tortious interference after KXAN-TV aired a news report by Jody Barr regarding complaints filed against Dr. Broder with the Texas Medical Board (TMB) and the death of a patient following plastic surgery. The appellees filed a motion to dismiss under the Texas Citizens Participation Act (TCPA), which the trial court granted. The Court of Appeals affirmed the trial court's dismissal, finding that the TCPA applied, the appellants failed to establish a prima facie case for their claims, and the attorney's fee award to the appellees was reasonable. The court specifically noted that the news report was substantially true and concerned matters of public interest, thus protected under free speech.

DefamationBusiness DisparagementTortious InterferenceTexas Citizens Participation ActTCPAFree SpeechMedical MalpracticeTexas Medical BoardTMBMedia Privilege
References
30
Case No. 13-09-00350-CV
Regular Panel Decision
Jan 21, 2010

Gulf Coast Medical Center, LLC, Tony Todd, Crna, Dan Madsen, M.D. and South Texas Medical Clinics, P.A. v. Jacqueline Temple and Marcus Banks, Individually and as Representatives of the Estate of Markasia Banks, a Minor Child

Appellants, Gulf Coast Medical Center, LLC, Tony Todd, CRNA, Dan Madsen, M.D., and South Texas Medical Clinics, P.A., appealed the trial court's denial of their motions to dismiss. The underlying suit was filed by appellees Jacqueline Temple and Marcus Banks, alleging negligence in the care and treatment of their deceased minor child, Markasia Banks. The core issue on appeal was the appellees' failure to timely serve an expert medical report as required by the Texas Civil Practice and Remedies Code. The Court of Appeals determined that the appellees' claims were 'health care liability claims' and that the expert report was indeed untimely, and that an abatement due to a failure to provide medical authorization did not extend the deadline. The court also affirmed the constitutionality of the expert report requirement. Consequently, the appellate court reversed the trial court's judgment, granted the appellants' motions to dismiss, and remanded the case for the award of attorney's fees and costs to the appellants.

Health Care Liability ClaimExpert Medical ReportMotion to DismissTimeliness of ReportAbatementMedical MalpracticeNegligenceDue ProcessTexas ConstitutionAppellate Review
References
32
Case No. MISSING
Regular Panel Decision

McKelvy v. Columbia Medical Center of McKinney Subsidiary, L.P.

Jeannie McKelvy, an employee of Columbia Medical Center of McKinney Subsidiary, L.P., d/b/a McKinney Medical Center (the Hospital), sustained injuries from a slip and fall at work due to leaking lab equipment. She filed a negligence claim against the Hospital, which is a non-subscriber to workers' compensation insurance. The Hospital moved to dismiss her claims under the Texas Medical Liability Act (Chapter 74) for failure to file an expert report, arguing her claims were health care liability claims. The trial court granted the Hospital's motion. On appeal, McKelvy argued her claims were ordinary negligence claims, not subject to Chapter 74. The appellate court reviewed the definition of a 'health care liability claim' under section 74.001(a)(13) of the Texas Civil Practices and Remedies Code. The court concluded that McKelvy's claims, stemming from a hazardous floor caused by leaking lab equipment, did not have an indirect relationship to the provision of health care and did not involve a patient-physician relationship. Therefore, her claims were not health care liability claims, and the trial court erred in dismissing her case. The appellate court reversed the trial court's order and remanded the case for further proceedings.

References
5
Case No. 2019 NY Slip Op 06054
Regular Panel Decision
Aug 06, 2019

Wilder v. Fresenius Med. Care Holdings, Inc.

Plaintiff Nicholas Wilder, suffering from end-stage renal disorder, sued Fresenius Medical Care Holdings, Inc. and its subsidiary, Avantus Renal Therapy New York LLC, after they notified him that his dialysis care would be terminated due to disruptive behavior. Wilder sought an injunction to prevent the termination of his life-sustaining dialysis treatment. The Supreme Court, New York County, denied his request for an injunction and vacated a previously granted temporary restraining order (TRO). The Appellate Division, First Department, modified the lower court's order, reversing the denial of the injunction and vacating of the TRO, reinstating the TRO pending a hearing on Wilder's injunction request. The appellate court found that the motion court abused its discretion by vacating the TRO and not holding a hearing on the preliminary injunction, given the substantial factual disputes regarding Wilder's behavior and the defendants' compliance with federal regulations for patient discharge. However, the Appellate Division affirmed the denial of Wilder's request to proceed anonymously and seal records.

Dialysis TreatmentPatient DischargeTemporary Restraining OrderPreliminary InjunctionIrreparable HarmDisruptive Patient BehaviorFederal RegulationsRight to CareAppellate ReviewSealing Records
References
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