Fatal spider bite at nursing home covered by malpractice law

By Steve Korris | Jul 7, 2011


AUSTIN, Texas (Legal Newsline) - Medical malpractice law covers a fatal bite from a brown recluse spider in a nursing home, the Supreme Court of Texas decided on July 1.

The Justices stopped a suit Wilma Johnson filed against Omaha Health Care Center for the estate of Classie Reed, finding she didn't provide an expert report as the law requires for medical malpractice claims.

They rejected Johnson's argument that the law didn't apply because she alleged ordinary negligence rather than health care liability.

They overturned Sixth District appellate judges in Texarkana, who affirmed Morris County District Judge William Porter in denying a motion to dismiss the suit.

Sixth District judges found Wilma Johnson's claims neither integral to nor inseparable from the services Omaha provided, but the Supreme Court disagreed.

Justice Phil Johnson wrote, "In order to determine whether a claim is a health care liability claim, we consider the underlying nature of the claim."

He wrote, "Artful pleading cannot alter that nature."

He wrote that Texas law requires nursing homes to provide a safe, functional, sanitary and comfortable environment, and requires more than physical care and treatment.

It requires pest control using the least toxic effective insecticides, he wrote.

He wrote that Johnson alleged Omaha failed to inspect for pests or clean the premises.

He wrote that her underlying claim was that Omaha should have exercised the care required of an ordinarily prudent nursing home.

"That is, she alleged that Omaha failed to take appropriate actions to protect Reed from danger or harm while caring for her," he wrote.

"Those claims fell within the statutory definition of a health care liability claim," he wrote.

Chief Justice Wallace Jefferson agreed, along with Justices Nathan Hecht, Dale Wainwright, Paul Green, Don Willett and Eva Guzman.

Dissenting Justices Debra Lehrmann and David Medina urged the Legislature to clarify whether safety violations relate to health care.

"The Court has not, at least so far, expressly held that all injuries in a health care setting, regardless of any relationship to medical care, must be filed as health care liability claims," Lehrmann wrote.

"But today's opinion does as much implicitly. In my view, a spider, in any setting, is more akin to a rickety staircase than a condition resulting from medical negligence or defective medical equipment."

She wrote that expert medical opinion wouldn't help a jury, and she found it hard to imagine how the expert could be anyone but a professional exterminator.

"I cannot imagine how the exterminator could be qualified to testify that the nursing home's practices breached a medical standard of care," she wrote.

Bryan Rutherford, Gregory Ziegler and Jennifer Leblanc represented Omaha.

Thomas Corea, Kenneth Trosclair, Ryan McFarlin and Jeremy Wilson represented Johnson.

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