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In a case of first impression, the Texas Supreme Court denied the plaintiffs’ request to sue a state-operated mental health facility in a negligence case filed under a 1993 state statute intended to protect a patient’s rights. The court ruled on March 6 that because the language in the Patient’s Bill of Rights — Texas Health & Safety Code � 321.002 — did not contain a definition of “mental health facility” the plaintiffs did not have the right to sue the state-funded facility. The Patient’s Bill of Rights allows a person harmed by a mental health facility to sue for injunctive relief, damages or both. But one of the key issues in the case was whether the law applies to public mental hospitals or only private mental hospitals. Lawyers on both sides of the case believe the decision will stop the litigation of pending negligence cases filed against numerous state mental hospitals. A total of 23 such cases are pending against state mental hospitals, according to the Texas Office of the Attorney General. According to the opinion in Wichita Falls State Hospital v. Taylor, Terry Lynn Taylor was involuntarily committed to a state mental hospital and discharged four days later. Taylor committed suicide the same day as his release, the court wrote. Taylor’s family sued the hospital, alleging that the cause of his death was proximately caused by the hospital’s failure to diagnose and treat his mental illness. Representatives from the attorney general’s office, who represent the hospital, denied the family’s allegations and moved to dismiss the suit based on sovereign immunity. The trial court denied the hospital’s motion; a divided panel of Waco, Texas’ 10th Court of Appeals later affirmed the trial court’s ruling, finding that the Legislature had waived the state’s immunity from suit for violations of the Patient’s Bill of Rights. But Texas Supreme Court Justice Wallace Jefferson, writing for a unanimous court, said in Taylor that while there is a definition of “mental health facility” in � 571.003 of the Texas Mental Health Code that includes state mental hospitals, the Patient’s Bill of Rights “does not contain the sort of explicit language the Legislature generally uses to confirm its intent to waive sovereign immunity.” The Texas Mental Health Code defines a mental health facility as “an inpatient or outpatient mental health facility operated by the department, a federal agency, a political subdivision, or any person.” Yet it is not clear whether the Patient’s Bill of Rights applies to private or public mental health facilities, and there is no “clear and unambiguous” statement by the Legislature in the law that waives immunity of public mental health institutions, Jefferson wrote. “The statute’s ambiguity precludes our finding an unmistakable legislative intent to waive sovereign immunity,” Jefferson wrote. State Rep. Elliott Naishtat, D-Austin, who carried the Patient’s Bill of Rights legislation in the House, says the law was intended to include public and private mental hospitals. “There’s no question about that,” Naishtat says. “To me it doesn’t even make sense if we’re interested in focusing and providing increased protection for people who seek mental health services, why would we only want to hold a private facility liable?” In the early 1990s, Texas lawmakers were concerned with alleged abuses in private psychiatric and drug treatment facilities that were accused of abusing patients by holding them against their will until their insurance money ran out, Naishtat says. Jim Barlow, a partner in Fort Worth, Texas’ Barlow & Garsek who represents the plaintiffs in Taylor, says the Texas Supreme Court’s reading of the statute renders the Legislature’s Patient’s Bill of Rights meaningless. “You don’t need to waive private immunity,” Barlow says. “You only need to waive government immunity.” The ruling is a disappointment and proof that, in close calls, the Texas Supreme Court is likely to side against a plaintiff, he says. “I don’t see the problem that the court had in finding that a plaintiff may sue. This dancing to try and say ‘we don’t find clear language’ is puzzling to me,” Barlow says, adding that he has not yet decided whether to ask the court for a rehearing of the case. “The questions during oral arguments were superior. They knew every weakness in either side’s case,” Barlow says. “Yet none of the weaknesses on the state’s side are probed in the court’s opinion.” Lisa Eskow, a deputy solicitor general who represents the hospital, says the Texas Supreme Court followed decades’ worth of case law that says if there is a question regarding waiver of sovereign immunity, the court is not to assume a waiver. “I think the supreme court recognized that [it] will not read waiver of sovereign immunity unless the Legislature makes that clear,” Eskow says. Eskow says the law was intended to apply to private mental health facilities. Before the law was passed, an interim committee of the Legislature was assigned to study abuses in private mental health facilities, and the 1993 Patient’s Bill of Rights was a product of that study, Eskow says. Bill Helfand, an attorney who represents the Texas Municipal League and who filed an amicus brief in the case, praises the Texas Supreme Court’s decision in Taylor. “I think [the opinion has] got to come as a huge relief to the … providers of governmental mental health services that are already financially strapped that can barely afford to pay for services,” says Helfand, a partner in Houston’s Magenheim Bateman & Helfand. “This is exactly what governmental immunity is for. These lawsuits had the potential of wiping out governmental mental health services.”

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