Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Johnette Russell sued an anesthesiologist, Mark Murphy, after he allegedly administered a general anesthetic without her consent during a biopsy. Russell asserted battery, breach of contract and violations of the Deceptive Trade Practices Act, seeking actual, exemplary and additional DTPA damages. The trial court dismissed Russell’s suit because she failed to provide an expert report in accordance with 13.01 of former Texas Revised Civil Statutes article 4590i. The court of appeals reversed, holding that Russell’s claims are not “health care liability claims.” HOLDING:The court reverses the court of appeals’ judgment without hearing oral argument and dismisses Russell’s suit. Russell cannot circumvent Article 4590i’s requirement of expert examination of her claims simply by asserting that she did not consent to a general anesthetic and that the physician admitted he failed to follow her wishes regarding anesthesia, because there may be reasons why the administration of a general anesthetic did not breach any applicable standard of care. It might be that there were emergency circumstances that arguably warranted general anesthesia without Russell’s consent, or that a general anesthetic was administered without Murphy’s actual knowledge at the time it was done. With regard to Russell’s DTPA claims, she alleges that Murphy sedated her after he expressly represented and warranted that he would not. The court holds that representations like those Russell has alleged “are nothing more than an attempt to recast [a] malpractice claim as a DTPA action.” Gormley v. Stover, 907 S.W.2d 448 (Tex. 1995) (per curiam). In Gormley v. Stover, the claimant alleged that a dentist represented he could perform a bone graft with no problems, represented that a skin graft would work as well as a bone graft, and made other representations regarding her prognosis. The court in that case held that these allegations “all have to do with whether [the dentist's] selection of the surgical procedure and performance of it met the standard of care for dentists in such circumstances.” Similarly, Russell’s allegations “all have to do with” whether the administration of a general anesthetic under all the circumstances met the standard of care for anesthesiologists. Accordingly, all of her claims, including her DTPA claims, are “health care liability claims,” the court holds. Because Russell’s suit asserted health care liability claims, she was required to provide Murphy with an expert report in order to proceed with those claims. OPINION:Per curiam.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.