Is It a Medical Malpractice Claim, or a Premises Liability Claim?

A patient slips in your office. Do you turn it over to your general liability insurance carrier or your professional liability carrier? Or both? 

Of course, the devil is in the details.  

Such cases will have different trajectories. 

If a professional liability claim, the plaintiff will generally need to secure an expert to prove you breached some standard of care. This is a heavier lift than just providing general liability. Often, there are more hoops to jump through. You may very well have a consent to settle policy, requiring your authorization to settle a case. And, if a case is settled, and payment is made by your carrier as a professional liability claim in your name, you will be reported to the National Practitioner Data Bank. Professional liability claims sometimes have shorter statute of limitations periods than general liability claims. 

Given that baggage, it’s easy to see why a seasoned plaintiff’s attorney might prefer to characterize such an injury as general liability, and not as a professional liability claim. 

Still, if a practice wants to stand firm and make no payment at all, it might do its best to characterize the claim as a healthcare liability claim.  

Once you report to both carriers, they will fight amongst themselves to determine who will pay, if anyone. 

A representative decision in Texas illustrates how to analyze the details. 

In this case, Lezlea Ross accompanied her friend who was visiting a patient in St. Luke’s Hospital.  As she was leaving the hospital through the lobby, Ross approached the exit doors and slipped and fell in an area where the floor was being cleaned and buffed.  Ross sued St. Luke’s asserting a premises liability theory.  The Hospital moved to dismiss based on the failure to serve an expert report, arguing that the case was an HCLC.  The trial court granted the motion to dismiss, and the court of appeals affirmed.  Ross v. St. Luke’s Episcopal Hospital, 2013 WL 1136613; ____ S.W.3d ____ (Tex. App.—Houston [14th Dist.] Mar. 19, 2013, pet. granted) (mem. op.).  

The Texas Supreme Court reversed and concluded that an expert report was not needed. This case was standard premises liability.  

The Hospital advanced two arguments.  First, it argued that every slip-and-fall event within a hospital is directly related to health care because it is necessarily related to the safety of the patients.  Second, the Hospital argued that Ross’s claim was related to health care because she alleged the hospital breached standards applicable to maintaining a safe environment for patients. 

The Texas Supreme Court provided seven non-exclusive considerations for analyzing whether such a claim is substantively related to the defendant’s provision of medical or health care and whether the claim is an HCLC.  These considerations include:
  

1. Did the alleged negligence of the defendant occur in the course of the defendant’s performing tasks with the purpose of protecting patients from harm? 
2. Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special, medical care was implicated? 
3. At the time of the injury was the claimant in the process of seeking or receiving health care? 
4. At the time of the injury was the claimant providing or assisting in providing health care? 
5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider? 
6. If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care? 
7. Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety-related requirements set for health care providers by governmental or accrediting agencies? 

Here, the Texas Supreme Court concluded there was not a substantive nexus between the safety standards and the providing of health care, such that the claim was not a health care liability claim. 

The following year, in 2015, a different Texas case resulted in a different outcome. The plaintiff was required to serve an expert report if it wanted to propel a claim, which the court characterized as a professional (health care) liability claim. In re Seton Northwest Hospital, Marissa Mercer filed a petition under Rule 202, seeking to obtain pre-suit discovery in order to “investigate a potential claim against Seton Northwest Hospital” stemming from an incident that occurred while Mercer was in the Hospital’s care. According to Mercer, she was in the midst of being transported from the intensive-care unit to her regular room, awaking from medication or anesthesia, when she observed a housekeeper expose himself and masturbate in front of her. 

Mercer argue[d] that her claim [wa]s not a health care liability claim because it “[wa]s based on safety standards that have no substantive relationship to the hospital’s providing of health care.” In support of this argument, Mercer relies on the Texas Supreme Court’s recent decision in Ross v. St. Luke’s Episcopal Hospital, No. 13–0439, 2015 WL 2009744 (Tex. May 1, 2015). In that case, the court considered whether a hospital visitor’s suit against the hospital, arising from the visitor’s slip and fall near lobby exit doors, was properly characterized as a health care liability claim based on the hospital’s alleged departure from safety standards. …The court concluded that the visitor’s claim was not a health care liability claim because it was based on safety standards that lacked any substantive nexus to the hospital’s providing of health care. 

Here, In re Seton Northwest Hospital, the Texas Appellate Court concluded: 

We disagree that Ross is controlling in this case. As the supreme court pointed out in Ross, a complaint such as that presented in Diversicare—that a health care provider has failed to implement adequate policies to protect patients—is a claim that is directly related to the provision of health care.  The essence of Mercer’s potential complaint against the Hospital is that it was negligent in failing to provide for her protection as a patient in its care. Mercer’s claim is wholly different from the visitor’s slip-and-fall claim presented in Ross, and under the supreme court’s holding in Diversicare, Mercer’s claim is sufficiently related to the provision of health care. 

On the surface, it’s hard to see how being exposed to a masturbating housekeeper is a healthcare liability claim. Still, the plaintiff was a patient in the middle of receiving care. Had the person exposed to the masturbating housekeeper been a visitor, the legal outcome may have been different. 

OK, now let’s move from Texas to California. California’s statute of limitations for medical malpractice is one year (under MICRA). 

In Flores v. Presbyterian Intercommunity Hosp. the plaintiff [wa]s a hospital patient who was injured when one of the rails on her hospital bed collapsed. The rail had been raised according to doctor’s orders following a medical assessment of her condition. Plaintiff sued the hospital, claiming that it negligently failed to inspect and maintain the equipment. The question presented [wa]s whether her claim [wa]s governed by the special limitations period in section 340.5 [one year statute of limitations for medical malpractice claim] or instead by the usual two-year statute of limitations for personal injury actions. Because plaintiff’s injury resulted from alleged negligence in the use and maintenance of equipment needed to implement the doctor’s order concerning her medical treatment, we conclude that plaintiff’s claim sounds in professional, rather than ordinary, negligence. Therefore, as the trial court correctly ruled, the action is governed by the special limitations period (one year to file a claim) in section 340.5 rather than the two-year statute of limitations under section 335.1. 

And, for contrast, a California ruling which triggered general premises liability and not professional liability. Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th 153. 

A pivotal case to consider in a premises-negligence case against a medical facility is Johnson v. Open Door Community Health Centers. Unlike plaintiff Flores [in the above referenced  California case], who was injured during the provision of medical care, through the breach of a duty owed only to patients, Johnson was injured after her care was completed when she tripped on a scale coincidentally used as part of her earlier medical treatment. The Johnson court pointed out that the plaintiff did not allege that failure to properly maintain the scale she was weighed on affected the quality of her medical treatment. In fact, the plaintiff in Johnson was weighed without incident. The Johnson court did state that “had she alleged the improper placement of the scale caused her to fall off the scale and injure herself, MICRA might apply.” And that “had she alleged that the medical facility’s failure to properly calibrate the scale resulted in inaccurate information and inappropriate medical care, any resulting claim would almost certainly be subject to MICRA.” 

It was important in Johnson that the pleading by Johnson’s attorneys alleged that placement of the scale “posed a tripping hazard,” implicating a duty to all users of its facility, including patients, employees, and other invitees, to maintain safe premises. (Flores, supra, 63 Cal.4th at pp. 87-88.) Under the circumstances, the nature of the object did not matter, because the scale could just as easily have been a broom or a box or medical supplies; what is material is that the duty owed by the healthcare provider was not exclusively owed to patients. (Flores, supra, 63 Cal.4th at p. 86). The Johnson trip-and-fall case set precedent as being closely analogous to the Flores case, which dealt with a “collapsing chair,” because the failure to maintain a waiting-room chair threatens harm to all visitors, not just patients, and therefore constitutes ordinary, not professional negligence. (Id. at p. 89). 

In Johnson, the California Court of Appeals, held that general two-year statute of limitations for personal injury actions applied, rather than Medical Injury Compensation Reform Act’s (MICRA) one-year statute of limitations for professional negligence actions. 

Lots of moving parts.  

What to do? Notify both general commercial liability and professional liability carriers any time a patient or visitor slips and falls, or any analogous matter. Your defense is generally stronger if characterized as a professional liability claim. But if there’s a payout under a professional liability claim, you will likely be reported to the National Practitioner Data Bank. And the two carriers might need to fight their own battle as to who will cover the claim.  

What do you think?