E&B Obtains Dismissal of a Health Care Liability Claim Asserted Against a Workers’ Compensation Non-Subscriber in Arbitration

On October 22, 2013, an arbitrator dismissed with prejudice all claims asserted by a nurse against her employer, a long term acute care hospital.  In 2012, the Texas Supreme Court interpreted the definition of a Health Care Liability Claim (“HCLC”) in the context of an employer-employee relationship and determined that an employee’s claim against her employer could constitute a HCLC if it alleged a departure from accepted standards of care.  E&B partner David Smith successfully asserted a Motion to Dismiss, arguing that the nurse’s contention that her employer was negligent for failing to provide the proper equipment and the necessary personnel for her to safely transfer a patient was a HCLC.  Because claimant failed to provide an expert report within 120 days of filing her original petition, the Texas Medical Liability Act required dismissal.  In addition to dismissal, the arbitrator awarded the employer attorney’s fees.

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