Medical Device Claims Not Barred by Texas Tort Reform Act Posted on December 29, 2015 by Larry Bodine In this case of first impression, a Texas appeals court decided that personal injury claims against a manufacturer were not health care liability claims under the Texas Medical Liability Act “TMLA.” The TMLA stated that claims brought against only health care providers and physicians qualified as health care liability claims. The plaintiff, Woods filed suit against Verticor and Dr. Hansen for off-label use of the Verticor Eclipse Sphere. The device was approved for use on spinal fusion surgeries but Hansen used the device for a non-fusion surgery treating Wood’s herniated disc. What is a health care provider? Verticor argued an evidentiary issue on appeal, stating the district court should have granted Verticor’s motion to dismiss because Wood failed to provide an expert report to support his claims. However, the court determined the real issue was whether Verticor was a health care provider and licensed by the state to provide health care as defined by the act. Another Interesting Read: Mass Tort Suits Proceed Against Syngenta for Genetically Modified Corn The court interpreting the statute and plain meaning of health care and health care provider narrowed the issue. Health care under the TMLA is “any treatment performed or furnished, or that should have been furnished, by any health care provider for, to, or on behalf of a patient during the patients care, treatment, or confinement.” Generally, a healthcare provider is a optometrist, physician, family doctor, or nurse. This does not include a manufacturer of medical products. As a device manufacturer, Verticor was not a health care provider; their only position was to provide a device that might be utilized in a patient’s treatment. The court concluded the Verticor without additional facts could not use the TMLA to be considered. Because Verticor did not establish it was a health care provider, the Woods claim could not be considered a health care liability claim under the TMLA. This case is Verticor, Ltd v. Michael Wood, Texas Court of Appeals Third District at Austin, Case No. 03-14-00277-CV.
