The Injustice of Texas Medical Malpractice Law

   On November 1, 2015, the Houston Chronicle’s Lisa Falkenberg reported on a case in Houston involving the rape of a patient by a doctor at Ben Taub hospital. The facts of the case are, to say the least, very troubling from the victims standpoint. But, also troubling are the legal defenses being raised in the civil suit filed by the victim against the doctor and the hospital where the assault occurred.

    The defense in the civil case is asserting that since the victim was raped by the doctor, the victim must file and “export report” written by a doctor condemning the rapist’s conduct just as if she was complaining the rapist had injured her through medical malpractice (negligence). This seems absurd, but if the victim’s lawyer has carefully followed the decisions of the Texas Supreme “Court, he or she would be wise to file an expert report because the Supreme Court has held time and time again that any claim against a healthcare provider that even remotely involves the provision of healthcare is a “health care liability claim” and, therefore, requires an export report. Many examples of this ridiculous rule could be given, but one example is that an injury case filed by a patient’s visitor to a hospital which was caused by a dangerous condition on the hospital’s hallway floor was dismissed because no expert report was filed. Yes, you read it right,- a visitor slipped and fell in a hospital. According to the Supreme Court, this was a healthcare liability claim.
    
    The second line of defense is that of governmental immunity and the limitation of damages that applies to governmental entities.

    The rapist is employed by Baylor College of Medicine. Baylor doctors staff Ben Taub, which is a public hospital owned by Harris County. The liability of a governmental entity is strictly limited to very narrow circumstances involving their motor vehicles or unreasonably dangerous premises. And, even if a governmental entity is held liable under the Texas Tort Claims for an accident not involving a motor vehicle, the limit of liability is $100,000.

The rapist’s lawyer is contending the rapist is entitled to governmental immunity the same as Ben Taub hospital because he was acting as a public servant, i.e., he was on duty and acting for Ben Taub when the rape occured.

    Here is Falkenberg’s conclusion (with which I whole-heartedly agree):

    “Here’s the sad truth, though: In Texas, right now, we have laws designated to protect doctors, to protect hospitals, to protect counties. In this case, those laws may end up protecting a rapist”.

    “And what of the victim? Apparently she’s irrelevant”.