Month: November 2014

Texas Appellate Court Allows Defendants to Prevail in Using Heightened Emergency Care Negligence Standard

The Court of Appeals for the Sixth Appellate District of Texas at Texarkana held in Crocker v. Babcock, et al., that the defendants in a healthcare liability lawsuit were entitled to utilize the willful and wanton negligence standard to determine whether their conduct departed from the accepted standard of care for emergency medical care in a hospital emergency department. The court reached this conclusion because the plaintiff, Tammy Crocker, presented to the medical staff with an emergency condition – a suspected stroke – and the immediate action taken with the purpose of diagnosing and treating this condition amounted to “emergency services.”

Ms. Crocker began experiencing stroke-like symptoms after collapsing on the floor of her home. She was described as alert, but unable to speak, with facial droop and right side weakness. Ms. Crocker was airlifted to Good Shepherd Medical Center in Longview, during which time an in-flight crew member notified either the emergency department charge nurse or another emergency department nurse of an inbound possible stroke patient. Although required by hospital protocol, the emergency department nurse who received the notification did not activate Good Shepherd’s stroke code protocol. Initially, Ms. Crocker was unable to move, speak, or smile, but she improved on the helicopter flight and was able to assist in moving herself onto the hospital gurney upon her arrival to the hospital.

Ms. Crocker’s case was noted as “urgent” upon her arrival to the emergency department. Dr. Babcock, her treating physician, ordered a CT scan without contrast of her brain as well as additional tests including: a comprehensive metabolic panel, a chest x-ray, an ECG, and a complete urinalysis. Dr. Babcock’s differential diagnosis included (1) cardiovascular accident, (2) transient ischemic attack (TIA), (3) dementia, and (4) paralysis. However, Dr. Babcock later changed his diagnosis of Ms. Crocker’s condition to acute, non-hemorrhagic cardiovascular accident.

Ultimately, Ms. Crocker was diagnosed with having suffered an Ischemic stroke. She filed a medical negligence lawsuit alleging damages based on the missed diagnosis and failure to treat her stroke, to which Dr. Babcock and the other defendants claimed they were providing emergency medical care and their conduct should therefore be governed by the heightened negligence standard contained in Section 74.153 of the Texas Civil Practice and Remedies Code. The issue left for the appellate court to resolve was whether Section 74.153 applied to the facts of this case.

Even though the court found that the heightened willful and wanton negligence standard applied to the defendants’ conduct, the court declined to follow the Turner analysis set forth by the Dallas Court of Appeals in Turner v. Franklin. In that case, the Dallas appellate court used various components of statutory language to piece together a comprehensive definition of “emergency medical care.” Essentially, under the Turner analysis, “emergency medical care” was found to be “any actions or efforts undertaken in a good faith effort to diagnose or treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or attempt to effect cures to those conditions,” provided “during the time period and under the circumstances specified in [the statute].” Under Chapter 74, emergency medical care is defined as care provided after the sudden onset of a medical or traumatic condition sufficiently severe to place the patient’s health in serious jeopardy, but specifically excludes care or treatment that “occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or that is unrelated to the original medical emergency.”

The Texarkana appellate court did not explain why it declined to follow the Turner analysis and instead stated that it would focus its analysis on the context in which the emergency department care was provided to determine whether Ms. Crocker received actual emergency services. The court found that Ms. Crocker presented to the hospital for emergency medical evaluation and treatment following a sudden onset of measurable neurological deficits. The court went on to state that the absence of immediate medical attention for this condition “could reasonably be expected to result in placing the patient’s health in serious jeopardy.” Moreover, the court concluded that Ms. Crocker presented with the type of medical condition that Section 74.153 was designed to address.

The court added that the failure to initiate stroke code protocol did not change the fact that the hospital took immediate action to respond to Ms. Crocker’s condition and that Dr. Babcock also took immediate action intended to diagnose Ms. Crocker’s suspected stroke following the sudden onset of her acute symptoms. In light of the immediate actions taken, the Court concluded that the defendants’ conduct was governed by the heightened willful and wanton negligence standard contained in Section 74.153.

CMS to Begin Covering Preventative CT Scans for Eligible Smokers

On November 10, 2014, The Centers for Medicare & Medicaid Services (CMS) issued a Proposed Decision Memo for Screening for Lung Cancer with Low Dose Computed Tomography (LDCT).[1]  Under the new, proposed framework, Medicare beneficiaries who have a qualifying tobacco history of smoking at least one pack of cigarettes per day for thirty years would be eligible to receive an annual, preventative lung cancer CT screening.  The CT scan would be provided free-of-charge to Medicare beneficiaries between the ages of 55 and 74 who are either current smokers or recent smokers, having met the above qualifying tobacco history within the past fifteen years.  Pursuant to the CMS proposal, all covered scans must be performed at eligible facilities which have participated in past lung cancer screening trials, or in accredited advanced diagnostic imaging centers with training and experience in LDCT lung cancer screening.

While the Affordable Care Act already requires private insurers to cover preventative CT scans for long-term smokers at heightened risk for lung cancer, this CMS proposal would extend that coverage to a heavily-hit, previously-uncovered market: Medicare beneficiaries.   The initial written order for a preventative CT screening must be made during a formalized lung cancer screening, counseling, and shared decision making visit, and must be documented in a form prescribed by CMS.  Subsequent annual screenings can be ordered in writing as part of a qualifying patient’s annual wellness exam, with certain documentation requirements.

This CMS decision, which will likely become effective in February, comes at the behest of industry trends recognizing the importance and feasibility of early lung cancer detection, treatment, and prevention, as well as formal requests from a number of national cancer specialists.

[1] A copy of the CMS Proposal, as well as a detailed criteria for applicability is available at:

Pre-filing of Legislation is Slow—and that is not a complaint

After the first day of pre-filing the pace of legislation filed in both the House and the Senate has slowed.  The first noteworthy health care bill would strike repayment of funds as a defense to criminal Medicaid Fraud.  HB 334 and SB 187 were both filed on November 17th and have identical language creating a new subsection to section 35A.02 of the Penal Code which, if adopted, would apparently prohibit a defendant provider from offering evidence that the government has recouped the alleged overpayments as a defense in a criminal Medicaid Fraud action.  We will keep an eye on these bills.  In what appears to be anti-lawsuit legislation filed to benefit the anti–anti-lawsuit legislation plaintiff’s bar, (yes,  irony is the word you are looking for) there is a bill filed which would prohibit lawsuits against plaintiff attorneys arising out of contingency fee agreements provided such agreements meet certain requirements. (HB 247).  While on the topic of irony, there has been a bill filed to prohibit discrimination against LGBT applicants for health insurance.  Meanwhile, a separate piece of legislation that clearly appears to be an anti-ObamaCare bill, provides that: “Each individual in this state has the right to choose or decline to choose to purchase health care coverage without penalty or sanction or threat of penalty or sanction.” This language, aside from it potential statement about ObamaCare, seems to extend non-discrimation protection to not only LGBT, but to non-citizen “individuals in this state.”  There are a few more proposed bills to wipe out most taxes in the state.  Finally, in legislation clearly intended to protect school children from teachers on the edge (and I am quick to add my firm belief that there is a special place in heaven for teachers) there is a bill that would extend the required duty free lunch break of classroom teachers and librarians from 30 to 45 minutes.   Stay tuned . . .

Off and Running with First Day of Pre-Filed Bills in Austin

We are off and running with the first day of legislative pre-filings down in Austin.  So far health care appears to be under the radar other than a bill to track how long med students doing their residency in Texas stay in the state after they finish.  A few old favorites are back like bills prohibiting texting while driving and doing away with the franchise tax.  There are a few bills to treat vapor cigarettes like the old-fashion light-up kind when it comes to advertising and use in public locations.  Another bill creates immunity for frat boys who themselves haze, but then rat out their brothers to college administration.  Based on the first day filings, it is clearly time for Texans to take matters into our own hands in the nation’s capital.  Specifically, bills were filed to create an offense if Washington tries to move prisoners here from Cuba; encouraging Washington to repeal Dodd-Frank; authorizing the comptroller to withhold moneys the state owes to the federal government until we get back every last cent we have spent to secure the boarder; and requiring all graduates of public school to have a course on the US Constitution.  The largest area of concern for first day legislations was weapons.  To quickly summarize: creating a pre-hunting season tax holiday for guns and hunting supplies similar to back to school tax-free weekend; allowing school board members and principals to carry  guns on campus; removing Bowie knifes from the list of knifes illegal to carry (a quick shout out to Remember the Alamo);  outlawing all federal limitations on what guns we good Texans can own (unrelated and oddly placed, if anyone has a M1 tank they are looking to sell please call me); and perhaps most importantly, a bill that prevents a school district from punishing a “student in kindergarten through grade 5 for brandishing a partially consumed pastry or other food item to simulate a firearm or weapon” (and yes that is a direct quote).  One last note, there is a proposed House Resolution Commemorating Christmas.  I won’t post every day, but I thought the first day deserved some attention.  If you would like follow my updates be sure to follow the Criss & Kraft blog  or my new twitter @jdcriss.

Players in Place for the 84th Texas Legislative Session

Written by: David Criss

It has long been speculated that there is a typo in the Texas Constitution and the forefathers intended for the Texas Legislature to meet for two days every 140 years.  However, as it stands, the Texas Legislature meets for 140 days every two years, barring special sessions.  Thus, the 84th Session will be “gaveled-in” this January and now we know who the players will be.

First, as most of you know, Greg Abbot was elected Governor and Dan Patrick was elected as the new Lieutenant Governor.  While both are experienced in government operations, they are still rookies to these new positions.  Joe Straus, who was elected Speaker of the House in 2009, will be the principal veteran returning to the leadership lineup.

The Texas Senate will have 20 Republicans and 11 Democrats, including 7 freshmen and another rookie to be named later who will fill the seat of current Senator Glenn Hegar who was elected  Comptroller, and thus will be resigning his Senate seat.  The 7 elected new members are:

 SD 2: Bob Hall-R (Canton)

SD 4: Brandon Creighton-R (Conroe)

SD 7: Paul Bettencourt-R (Houston)

SD 8: Van Taylor-R (Plano)

SD 10: Konni Burton-R (Fort Worth)

SD 16: Don Huffines-R (Dallas)

SD 28: Charles Perry-R (Lubbock)

Over in the House, there will be 98 Republicans and 52 Democrats as the Speaker sounds the starting gavel.  Joining the 36 rookies from last biennial, the 83rd session, will be 25 new House members.  That’s right, 61 members with one session or less worth of experience.  The new faces this year are:

HD 1: Gary VanDeaver-R (New Boston)

HD 4: Stuart Spitzer-R (Kaufman)

HD 10: John Wray-R (Waxahachie)

HD 15: Mark Keough-R (Spring)

HD 16: Will Metcalf-R (Conroe)

HD 21: Dade Phelan-R (Port Arthur)

HD 23: Wayne Faircloth-R (Galveston)

HD 50: Celia Israel-D (Austin)

HD 53: Andrew Murr-R (Junction)

HD 55: Molly White-R (Temple)

HD 58: DeWayne Burns-R (Cleburne)

HD 66: Matt Shaheen-R (Plano)

HD 76: Cesar Blanco-D (El Paso)

HD 81: Brooks Landgraf-R (Odessa)

HD 83: Dustin Burrows-R (Lubbock)

HD 90: Ramon Romero-D (Fort Worth)

HD 94: Tony Tinderholt-R (Arlington)

HD 102: Linda Koop-R (Dallas)

HD 105: Rodney Anderson-R (Grand Prairie)

HD 108: Morgan Meyer-R (Dallas)

HD 115: Matt Rinaldi-R (Irving)

HD 117: Rick Galindo-R (San Antonio)

HD 129: Dennis Paul-R (Houston)

HD 132: Mike Schofield-R (Katy)

HD 144: Gilbert Pena-R (Pasadena)

In a Senate with a rookie quarterback as Lieutenant Governor and 8 of 31 (slightly over 25%) players being new to this game and a House team of limited experience in most positions, we could see some interesting early headlines.  It also creates a challenge for those participating in this year’s Texas Monthly Best and Worst Legislatures fantasy draft.  I will be following the play-by-play on my new twitter @jdcriss as legislation is pre-filed and later as the session gets underway. For more information on the legislation you can also refer to the Criss & Kraft blog.  Although my primary focus will be health care legislation, having spent a few sessions close to the action, I can’t resist mixing in a few other highlights, as well as, the occasional best and worst plays.