Is a spider bite like a rickety staircase or botched surgery?

If the ceiling leaked at Grandma's nursing home, dripping corrosive acid that burned her, would that be negligence for not fixing the building -- or more like giving her an overdose of medicine?

If a nursing home staffer slashed Grandma with a knife, would that be negligence for not keeping her safe -- or more like leaving a sponge inside her during surgery?

If a brown recluse spider bit Grandma while she was in her bed and she died, would that be negligence for not keeping the place bug-free -- or more like a fatal infection from a botched IV?

In Texas, a lethal spider bite in a nursing home isn't a matter of defective housekeeping, it's akin to medical malpractice. As a result, the home gets added legal protection against paying for harm to its residents.

That doesn't feel quite right.

But it's how the Texas Supreme Court recently interpreted a law that was designed to reduce frivolous medical malpractice suits.

And it means that a woman named Wilma Johnson won't get before a jury to argue that her sister Classie Mae Reed died from a brown recluse spider bite because the Omaha Healthcare Center in East Texas wasn't properly fumigated.

Reed died in March 2005, and courts at both the trial and appellate levels refused to throw out Johnson's negligence suit.

But the Supreme Court, after having the case for three years and not even holding oral arguments, ruled for the nursing home.

Omaha argued that the case falls under the law covering healthcare liability claims. In 2003, the Legislature overhauled the rules governing suits against healthcare providers to tackle what was described as a medical malpractice insurance crisis.

Anyone who sues a physician, nurse, hospital or other healthcare professional has 120 days to also file a credentialed expert's report that explains how the provider being sued breached the accepted standard of medical care. That seems like a reasonable requirement: If you can't find a qualified expert, you probably don't have a strong enough case.

Johnson didn't file an expert's report -- because she wasn't complaining about anyone's medical judgment. She claimed the home was unclean and that led to her sister's death. After all, Texas law requires nursing homes to have adequate pest control programs.

The 6th Court of Appeals in Texarkana said Johnson's claim was about living conditions, and an expert's report would be required only if it were about safety "directly related to healthcare."

But a 7-2 majority of Supreme Court justices read the law otherwise.

Healthcare "involves more than acts of physical care and medical diagnosis and treatment" and includes "any act performed or furnished" during a patient's confinement, Justice Phil Johnson wrote.

"Consistently interpreting statutory language according to its plain meaning and context, unless that interpretation yields an absurd or nonsensical result, honors the Legislature's intent and reduces confusion," he said.

But it sounded as though Justice Debra Lehrmann, a former Tarrant County family court judge, found the result absurd and nonsensical.

She wrote in dissent that the court reached "a result that is contrary to the Legislature's intent, belies common sense and contorts the role of experts in healthcare litigation."

She said a spider-bite claim was more like injury stemming from an unlocked window or a rickety staircase than from medical negligence or defective medical equipment.

Maybe Wilma Johnson wouldn't have persuaded a jury that Classie Mae Reed died from a spider bite that was preventable. The Supreme Court sent the case back for the trial judge to dismiss it and decide whether Johnson should pay the nursing home's legal fees.

But if everything that happens in nursing homes can be considered related to healthcare, then the homes always can hide behind high hurdles of the law, even if they're serving tainted meat, using cleaning solvents with poisonous fumes or leaving staircases dangerously in disrepair.

That's increasingly relevant as the population ages. Not that everyone wants to or should go around suing nursing homes, but without teeth to force improvements at slipshod facilities, the law is impotent to protect residents' safety.

It that's not what the Legislature intended, then lawmakers know how to correct it. But they don't meet for another two years.


source: Star Telegram (Campbell, 7/27)

Hot Coffee, a must-see documentary about the untruths of Tort Reform

HOT COFFEE examines the dangers of so-called “tort reform” and its threat to our civil justice system. Using the now-infamous legal battle over a spilled cup of McDonald’s coffee as a springboard, the film follows four families, including McDonald’s plaintiff Stella Liebeck and KBR/Halliburton plaintiff Jaime Leigh Jones, whose lives have been profoundly affected by their inability to access the courts, and examines the role of corporations and a complicit media in promoting “tort reform.”

HOT COFFEE is available on HBO’s On-Demand service. And, DVDs will be available in the fall. You can sign up to pre-order DVDs here.

Watch the HBO Promo:

Watch the trailer: