Can a medical technology company benefit from the protections of the Texas Medical Liability Act?

By Brandon Winchester and Andy Hicks

As healthcare becomes more technology-driven, the traditional understanding of what constitutes a “heathcare provider” has been blurred. Computers and related electronic equipment, supported by legions of technicians and trainers, are now an integral component of modern medicine.^[1] Artificial intelligence, including algorithms and software, is used every day to analyze medical information and suggest data-driven diagnoses and personalized treatments.^[2] In the years to come, machine learning is expected to play an even larger role in answering medicine’s primary questions: why is a patient sick, and how can they get better?^[3]

The way in which the law views companies that provide medical technology can carry significant consequences. While much has been written about the impact tort reform has had in Texas,^[4] this commentary is almost exclusive to the traditional fact pattern: a patient alleges a doctor, nurse, or hospital negligently caused the patient to suffer injury or death. Under such circumstances, Texas law affords the doctor or hospital several liability protections as a matter of public policy, including a cap on monetary damages. But what happens in the new world of technology-driven medicine? Can a medical software provider that is sued following an adverse outcome benefit from the same legal protections afforded doctors and hospitals? What about a contractor that provides training or support as to how doctors or nurses should effectively use medical robotics or artificial intelligence? Are these defendants a way to evade the traditional medical malpractice caps? The answers rest with the Texas Medical Liability Act (TMLA).

I. Overview: The Texas Medical Liability Act

TMLA applies to all healthcare liability claims.^[5] A “healthcare liability claim” is a claim (either in tort or contract) against a “healthcare provider” for treatment or departure from accepted standards of medical care, healthcare, safety, professional, or administrative services related to healthcare that results in injury to or death of the claimant.

Under TMLA, a “healthcare provider” is any person or entity licensed, certified, registered, or chartered by the state of Texas to provide healthcare. The definition also specifically includes “an employee, independent contractor, or agent of a healthcare provider or physician acting in the course and scope of the employment or contractual relationship.”

TMLA affords qualifying defendants three main protections, including a pre-suit notice requirement and provisions related to expert reports and discovery procedures. But the most important of TMLA’s protections is the limitation on damages.

Overall Damage Limitation

In a qualifying wrongful death or survival action, the limit of liability for all damages, including exemplary damages (any damages awarded as a penalty or by way of punishment but not for compensatory purposes), is $500,000 for each claimant, regardless of the number of defendants against whom the claim is asserted or the number of separate causes of action on which the claim is based.

Non-Economic Damages

The limit of civil liability for noneconomic damages (damages compensating for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, and all other nonpecuniary losses) in qualifying cases is limited to $250,000 for each claimant, regardless of the number of defendants against whom the claim is asserted or the number of separate causes of action on which the claim is based.

II. Who is a Qualifying Healthcare Provider?

While “healthcare providers” typically are understood to be individuals and entities directly providing healthcare, such as hospitals, nurses, and doctors, TMLA defines the term in a much more expansive way. Specifically, TMLA defines “healthcare provider” to also include any employee or contractor of a healthcare provider that is acting within the scope of employment or the contractual relationship.

Notably, Texas courts have evaluated this independent contractor-healthcare provider relationship:

• MacPete v. Bolomey, 185 S.W.3d 580, 583 (Tex. App. – Dallas 2006, no pet.): A psychologist under contract with a hospital was covered under TMLA simply by being under contract with the hospital.
• Barrows v. Carnes, 434 S.W.3d 836, 839 (Tex. App. – Dallas 2014, no pet.): Aesthetician who was an employee of a physician was a “healthcare provider” under TMLA as an employee despite the lack of evidence to show aesthetician held any medical licenses; had any medical training; or otherwise possessed any specialized knowledge, skill, or training in any field related to healthcare.
• Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 759 (Tex. 2014): Laser hair removal facility was an affiliate of its physician-owner, and thus laser hair removal facility constituted a “healthcare provider” within the meaning of TMLA. Physician was responsible for operations at laser hair removal clinic and supervised patient evaluations and treatment, and physician implemented training procedures for new employees, including clinical practice and examinations.
• Pro Path Servs., L.L.P. v. Koch, 192 S.W.3d 667, 672 (Tex. App. – Dallas 2006, pet. denied): Lab technicians, who were employees of physician, were agents of healthcare provider.
• Ponce v. El Paso Healthcare Sys., 55 S.W.3d 34, 37 (Tex. App. – El Paso 2001, pet. denied): Occupational therapist, an employee of occupational therapy clinic, was an agent of healthcare provider and fell under TMLA.
• Wilson N. Jones Memorial Hospital v. Ammons, 266 S.W.3d 51, 62 (Tex. App. – Dallas 2008, pet. denied): Security officer and administrators of hospital were healthcare providers under TMLA. Where allegations were that “medical staff” made the decision to move patient to a different room and people involved in moving were clearly either employees or independent contractors of the hospital, those persons are healthcare providers under TMLA.

Taken together, these cases indicate the breadth of who can constitute a “healthcare provider” under TMLA. Even if the defendant is not a “traditional” provider (e.g. a medical technology company), if the individual or company is performing work for a “traditional” provider as an agent or independent contractor, the defendant should be afforded the protections of TMLA.

III. Is the Claim a Qualifying Healthcare Liability Claim?

Whether a cause of action qualifies as a healthcare liability claim requires an examination of the claim’s underlying nature. While a plaintiff seeking to avoid TMLA’s protections may argue that their claims do not constitute typical medical malpractice tort claims, it is the gravamen of the claim, not the form of the pleadings, that controls. Where the underlying nature of a claim is so “inextricably interwoven with the rendition of healthcare services,” the claim qualifies as a healthcare liability claim. The relationship between the injury-causing event and the patient’s care or treatment must be substantial and direct.

Marks v. St. Luke’s Episcopal Hospital is illustrative. Plaintiff brought a claim alleging that a hospital was negligent either in the assembly or maintenance of his hospital bed and that it presented an unsafe condition. To avoid application of TMLA, plaintiff argued that this was a premises liability claim rather than a healthcare liability claim. The Texas Supreme Court rejected the argument and found that a claim alleging the failure of a piece of equipment provided during inpatient care—where the equipment is an “integral and inseparable part of the healthcare services provided”—sounds in healthcare liability regardless of how plaintiff frames the claim.

Additionally, plaintiff attempted to skirt TMLA by asserting claims that addressed conduct outside of the provider-patient relationship, including claims alleging failure to train and supervise the hospital’s agents, employees, servants, and nursing staff; failure to provide the assistance required for daily living activities; and failure to provide a safe environment in which to recover. Again, notwithstanding the various labels, the Texas Supreme Court held this type of claim sounds in healthcare liability and falls under TMLA.^[6]

Even though TMLA broadly applies, a claim will not be deemed a healthcare liability claim just because the event giving rise to the claim occurred in a medical facility. This issue arises most often in the context of a so-called “safety ambiguity.”

For example, in Loaisiga v. Cerda, the Texas Supreme Court found that a claim against a medical or healthcare provider for assault is not a healthcare liability claim when the record conclusively shows that (1) there is no complaint about any act of the provider related to medical or healthcare services other than the alleged offensive contact, (2) the alleged offensive contact was not pursuant to actual or implied consent by the plaintiff, and (3) the only possible relationship between the alleged offensive contact and the rendition of medical services or healthcare was the setting in which the act took place.

In comparison, the Texas Supreme Court held in Harris Methodist Fort Worth v. Ollie that a patient’s claim against a hospital for injuries she suffered when she slipped and fell on a wet bathroom floor during her postoperative confinement was a “healthcare liability claim” within the scope of TMLA when the essence of the patient’s claim centered on the hospital’s failure to act with a proper degree of care to furnish a dry floor, warn her of hazards of a wet bathroom floor, or some similar failure to act, such that her claim was a safety claim directly related to services meeting her fundamental needs.

Similarly, claims by a patient’s father against a hospital for false imprisonment, assault, and negligence—based on allegations that the hospital’s security officer “unnecessarily and abusively knocked [patient] to the ground” while attempting to take her back to her room—was a healthcare liability claim where all actions were taken to ensure the patient’s safety and the safety of hospital personnel after the patient was medically determined to be a danger to herself and others, and were taken to preserve the attending physician’s plan to have her transferred to an inpatient psychiatric facility for her own safety until her mental status stabilized.

Taken together, this authority is clear: TMLA has broad application to a variety of claims regardless of how they are cast or labeled. If there is any factual nexus between the conduct at issue in the suit and patient care, defendant will, at worst, have a colorable argument for applicability.

IV. Conclusion

With time, Texas law will likely adapt to the new world of technology-driven medicine. New legislation will eventually be passed, and the factual realities of the present will be addressed through the laws of tomorrow. But in the interim, medical technology companies facing suit in the wake of an adverse patient outcome must be mindful of the protections afforded under TMLA. Although the law’s caps and liability protections were written with doctors, nurses, and hospitals in mind, the plain letter of the law has a much broader reach. Whether the defendant is a medical software provider, an artificial intelligence trainer, or anything in between, TMLA can be used as an important tool for any defendant facing possible liability related to the provision of medical care.

[1] The Unprecedented Role of Computers in Improvement and Transformation of Public Health, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4317987/.

[2] Artificial Intelligence in Medicine: Applications, Implications, and Limitations, http://sitn.hms.harvard.edu/flash/2019/artificial-intelligence-in-medicine-applications-implications-and-limitations/; AI Revolution in Medicine, http://news.harvard.edu/gazette/story/2020/11/risks-and-benefits-of-an-ai-revolution-in-medicine/.

[3] See The Future of Artificial Intelligence in Medicine and Imaging, http://hai.stanford.edu/blog/future-artificial-intelligence-medicine-and-imaging.

[4] See, e.g. 10 Years of Tort Reform in Texas Bring Fewer Suits, Lower Payouts, https://www.insurancejournal.com/news/southcentral/2013/09/03/303718.htm.

[5] Tex. Civ. Prac. & Rem. Code § 74.001.

[6] The Texas Supreme Court has also held, in Yamada v. Friend, that a plaintiff may not split his claims into (1) healthcare liability claims and (2) non-healthcare liability claims when all of his claims are based on the same set of operative facts.