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Healthcare Centers of Texas12/12/2002
Mrs. Rigby's recovery for bystander injuries is precluded by the Medical Liability Insurance Act. See Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp. 2002). The MLIA was enacted to alleviate a perceived medical malpractice insurance crisis by reforming health care liability laws to ensure affordable health care by reducing medical malpractice insurance rates. See id. § 1.02(a)(5), (b). The act applies only to a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety that proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract. Id. § 1.03(a)(4). The definition of health care provider includes a nursing home. Id. § 1.03(a)(3).
In holding that a bystander could not recover in a medical malpractice case, the Supreme Court stated:
The very nature of medical treatment is often traumatic to the layperson. Even when a medical procedure proves to be beneficial to the patient, it may shock the senses of the ordinary bystander who witnesses it. A bystander may not be able to distinguish between medical treatment that helps the patient and conduct that is harmful. A physician's primary duty is to the patient, not to the patient's relatives. Guided by these policy concerns, we hold that Texas' bystander cause of action precludes bystander recovery in medical malpractice cases.
Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997). The event that Mrs. Rigby witnessed was not a medical procedure being administered by a member of LaPorte's staff. Therefore, this is not the type of case the court contemplated when it precluded bystander recovery under the MLIA. See generally art. 4590i.
Healthcare contends the plaintiff's suit for LaPorte's failure to protect Mrs. Underwood from Mr. Jones amounts to a "claimed departure from accepted standards of . . . safety," and is within the definition of medical malpractice. The word "safety," however, cannot be read in isolation, and the phrase "accepted standard of . . . safety" must be read in context to mean "accepted standard of safety within the health care industry." See Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d 417, 418–19 (Tex. App.—Corpus Christi 1999, no pet.). Because the issue of protecting Mrs. Underwood from Mr. Jones is not governed by an accepted standard of safety within the health care industry, but rather is governed by the standard of ordinary care, the plaintiff's cause of action is one of simple negligence not governed by article 4590i. In this case, Mrs. Rigby sued Healthcare and others for simple negligence in failing to take adequate safety measures to protect its residents from a known sexual deviant. Therefore, article 4590i does not preclude Mrs. Rigby's bystander damages. See Sisters of Charity of Incarnate Word v. Gobert, 992 S.W.2d 25, 28 (Tex. App.—Houston [1st Dist.] 1997, no pet) (holding that cause of action was one of ordinary negligence rather than malpractice where plaintiff was sexually assaulted by another patient).
Healthcare next contends that Mrs. Rigby cannot recover bystander damages because Mrs. Underwood did not suffer "serious bodily injury." A bystander who witnesses a negligently inflicted serious or fatal injury may recover for mental anguish if (1) the bystander was located near the scene of the accident as contrasted with one who was a distance away from it; (2) the shock resulted from a direct emotional impact upon the bystander from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its
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