In Cook v. Neely, a woman sued a neurosurgeon for health care liability and fraud. The case arose when the plaintiff experienced pain in her hip, leg, and lower back. She sought care from the neurosurgeon, who performed surgery on her, removing her herniated disc and placing two medical devices known as bone plugs to stabilize her spine.
After surgery, the doctor continued to provide care to the woman. At every office visit, she was examined, and x-rays were taken of the area with the bone plugs. He told her that the bone plugs were in a good position. At her last visit, the doctor recommended she have another surgery to address other spinal problems. She was examined by a different surgeon, who told her that the bone plugs compressed her nerve roots. He recommended that the bone plugs be removed. The other doctor did remove the bone plugs in a second surgery.
She sued the neurosurgeon under the Texas Medical Liability Act (“TMLA”). She argued that the neurosurgeon was negligent in his administration of health care treatment and failed to offer treatment according to the standard of care. She also alleged he had failed to position the medical devices correctly. Later, she added a claim of fraud, alleging that the neurosurgeon had committed fraud by misrepresenting the position of the bone plugs as excellent. She argued she relied on these representations to her detriment and was stopped from seeking help for the badly positioned bone plugs.
At a jury trial, the doctor moved for a directed verdict on the fraud claim, arguing it was really a healthcare liability claim. The trial court denied the motion for a directed verdict at first, but it ultimately granted it. The jury found for the defendant on the health care liability claim. She appealed, arguing that the trial court had made a mistake in granting the directed verdict as to her fraud claim.
The defendant argued that the trial court had properly granted a directed verdict about the fraud claim because Texas law doesn’t recognize a separate fraud cause of action against a doctor when the basis of the claim has to do with how health care was rendered.
The TMLA defines a “health care liability claim” as a cause of action against a physician for inadequate treatment or another deviation from the standard of care, which proximately causes the injury or death of a patient. The plaintiff needs to prove: (1) the defendant is a health care provider; (2) the cause of action is for treatment, lack of treatment, or another deviation from the standard of care; and (3) the deviation is the proximate cause of injury or death. There is a rebuttable presumption that a patient’s cause of action against a doctor based on his actions during a patient’s treatment or care is a health care liability claim. The requirements of the TMLA can’t be avoided by claiming that a health care liability claim is another cause of action.
The appellate court explained that the plaintiff’s fraud claim arose during post-operative treatment. It was based on allegations that the plugs weren’t properly placed. The only way the plaintiff could establish this was through expert testimony. The appellate court concluded that the trial court had properly found the fraud claim was simply part of the health care liability claim regarding treatment or lack thereof by the neurosurgeon.
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