Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

The Dallas Court of Appeals recently joined with the Fort Worth Court of Appeals and theCorpus Christi Court of Appeals in holding that a claim arising from a laser hair removal procedure is not a Health Care Liability Claim subject to Chapter 74 of the Civil Practice and Remedies Code.  Two other appellate courts--theHouston Fourteenth Court of Appeals and the Amarillo Court of Appeals--have arrived at different holdings.

In Bioderm Skin Care, LLC v. Sok, the plaintiff suffered burns during a laser hair removal procedure and subsequently brought suit against the treating company and its supervising M.D.  The plaintiff did not file an expert report. After the trial court denied the defendants' motion to dismiss, they appealed.

The court of appeals held that the laser hair removal procedure was not a health care liability claim because the person who performed the procedure was not a licensed physician and the plaintiff was being treated only for unwanted body hair instead of a medical condition.  The only time the plaintiff received medical treatment was when the medical doctor examined her, diagnosed her burn, and prescribed a cream for the burn.

As a side-note, the court distinguished the Houston Fourteenth Court of Appeals' opinion by pointing out that the plaintiff herself in that case had affirmatively pleaded her claim as a health care liability claim.  This distinction is interesting since the courts have generally held that the underlying nature of the claim, rather than any characterization given the claim in the pleadings, is the controlling factor.

The court's opinion may be found here.  Given the conflict between the intermediate courts of appeals, this case would seem to be a likely candidate for review by the Texas Supreme Court.

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My insurance coverage friends will appreciate this one:  The Texas Supreme Court has held that there is "no significant distinction" between an automobile insurance policy that provide coverage for bodily injury "arising out of" ownership, maintenance or use of a covered auto and a policy that provides coverage for bodily injury "resulting from" ownership, maintenance or use of a covered auto.

Lancer Insurance Company v. Garcia Holiday Tours, is a case in which Lancer refused to provide a defense and indemnity to Garcia for an underlying lawusit involving the transmission of a communicable disease.   Garcia was sued after one of its bus drivers contracted tuberculosis and some of the passengers who rode with the driver tested positive for TB.  Lancer denied coverage and the underlying case went to trial.  A jury found the bus company liable and awarded over $5 million.

Garcia then sued Lancer for insurance coverage under its business auto policy that provided coverage for damages Garcia was obligated to pay because of bodily injury caused by an accident and resulting from ownership, maintenance or use of a covered auto.  In holding that there was no coverage, the supreme court distinguished between circumstances in which the vehicle is merely the situs of an incident that could have occured anywhere and those in which the vehicle plays a part in producing the injury.  Here, the court noted that the transmission of TB could have occurred in any closed environment and therefore the bus was not instrumental to producing the injuries.  The court's opinion may be found here.

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In prior posts, Byron Henry and I have opined on a split among the intermediate courts of appeals regarding whether 41.0105 of the Texas Civil Practice and Remedies Code abrogates the collateral source rule and whether evidence of medically expenses initially incurred but ultimately written off should be excluded from evidence at trial or applied post-verdict by the trial court.  The Texas Supreme Court resolved both issues today in an opinion affirming the Tyler court of appeals' judgment in Haygood v. Garza. 

The main take-away is that amounts written-off by providers must be excluded from evidence at trial.  In other words, the jury should only see evidence of medical expenses actually and ultimately charged to the claimant, not bills showing initial charges before required write-offs.  The majority opinion may be found here.  Justice Lehrmann's dissent, in which Justice Medina joined, may be found here.

 Additional take-aways you need to know before your next trial, however, are below:

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