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Firm without comp coverage fails to get injured worker's lawsuit dismissed


Though she was injured in a “health care setting,” a housekeeper's negligence suit against a Texas workers compensation nonsubscriber is not a health care liability claim, a Texas appellate court has ruled.

Brenda Martinez worked for Corpus Christi Medical Center as a housekeeper, court records show.

With no help available due to a housekeeping audit around May 23, 2011, Ms. Martinez's supervisor assigned her to trash and linen duty, according to records. The role was more strenuous than her usual job, requiring her to lift heavy wet linens and large trash bags overhead.

Ms. Martinez began feeling soreness in her shoulder and pain in her left arm after her shift, records show. She reported the injury upon returning to work.

According to records, she then filed a petition against Bay Area Healthcare Group Ltd. d.b.a. Corpus Christi Medical Center, which is a Texas nonsubscriber and does not purchase workers comp insurance, alleging it was negligent for failing to provide her with a safe work environment and not properly training her, among other things.

In June 2013, Ms. Martinez filed expert reports by two physicians who said the medical center “did breach the standard of care by not properly training Brenda Martinez in lifting techniques, not properly assessing her job task capabilities and not providing assistance to her when assigned a different job duty of the heavy lifting and transferring of trash and linens,” records show.

More than a year later, Bay Area Healthcare Group sought an award for attorney's fees and moved to dismiss Ms. Martinez's suit, alleging that the expert reports were untimely filed, according to records.

Under the Texas Medical Liability Act, a plaintiff seeking damages in a health care liability claim is “required to serve a medical expert report upon each party's attorney no later than the 120th day after the date the original petition was filed.”

In her response, Ms. Martinez argued that the expert reports were timely filed and that the group's motion should be denied regardless, as her claim isn't a health care liability claim, records show.

According to the Texas Medical Liability Act, a health care liability claim is “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.”

The 148th District Court of Nueces County, Texas, denied Bay Area Healthcare Group's motion to dismiss and an interlocutory appeal followed. The group again argued that Ms. Martinez failed to timely file an expert report and that her claim is a health care liability claim, records show.

Factors to consider when determining if a claim is a health care liability claim include whether the injured worker was in the process of seeking or receiving health care at the time of the injury and whether he or she was providing or assisting in providing health care at the time of the injury, according to records.

Texas' 13th District Court of Appeals on Thursday affirmed the district court's decision to deny Bay Area Healthcare Group's motion to dismiss.

“Even under the extremely expansive definition of 'health care' provided in the (Texas Medical Liability Act), it is doubtful that the removal and transportation of trash and laundry can be considered 'assisting in providing health care,'” according to the appellate court's ruling.

The appellate court also referenced the Texas Supreme Court's May 2015 decision in Ross v. St. Luke's Episcopal Hospital.

In the similar case, the state Supreme Court found that “the mere location of an injury in a health care facility or in a health care setting” doesn't automatically make a claim a health care liability claim.

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