Ineffective Pest Control as to Poisonous Spiders
as Medical Malpractice?
Omaha Healthcare Center, LLC v. Johnson,
No. 08-0231 (Tex. Jul. 1, 2011)(Opinion by Justice Phil Johnson)
(HCLC, med-mal suit, characterization of claim, expert report requirement)
THE GIST: In this case we consider whether claims against a nursing home regarding a
patient’s death alleged to have been caused by a brown recluse spider bite are health
care liability claims (HCLCs) that required an expert report to be served. The trial court
and court of appeals held that they were not. We disagree.
Conclusion. Johnson’s claim is an HCLC and should have been dismissed. Because
Omaha requested its attorney’s fees and costs in the trial court pursuant to Civil Practice
and Remedies Code section 74.351(b)(1), the case must be remanded.
We grant Omaha’s petition for review. Without hearing oral argument we reverse the
court of appeals’ judgment and remand the case to the trial court with instructions to
dismiss Johnson’s claims and consider Omaha’s request for attorney’s fees and costs.
CASE DETAILS: OMAHA HEALTHCARE CENTER, LLC v. WILMA JOHNSON, ON BEHALF OF THE ESTATE OF
CLASSIE MAE REED, DECEASED; from Morris County; 6th district (06-07-00089-CV, 246 SW3d 278, 02-08-
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Phil Johnson delivered the opinion of the Court, in which Chief Justice Wallace B. Jefferson, Justice
Nathan L. Hecht, Justice Dale Wainwright, Justice Paul W. Green, Justice Don R. Willett, and Justice Eva M.
Guzman joined. [pdf]
Justice Debra Lehrmann delivered a dissenting opinion, in which Justice David Medina joined. [pdf]
Here is the link to e-briefs in case no. 08-0231 OMAHA HEALTHCARE CENTER, LLC v. JOHNSON
CASE INFO FROM DOCKET DB: Case 08-0231
COMMENTARY ON THIS SUPREME COURT MED-MAL DECISION:
This is getting ridiculous by Simpson PC a Texas Law Firm (7/1/11)
The definition of what constitutes “health care” for purposes of the Texas Medical Liability law just keeps on
growing. When you go to the doctor, and he makes a decision on how to treat you, there’s not anyone who can
argue with a straight face that that’s not health care. When you’re a patient at a hospital, and the nursing staff
puts an IV in your arm and gives you medicine, same thing. But now, any stay in a hospital, any visit to a doctor’
s office, would appear to be “health care” by virtue of the latest opinion out of the Texas Supreme Court, Omaha
Healthcare Center LLC v. Wilma Johnson.
In a dissent, Hon. Debra Lehrmann, joined by Hon. David Medina, called out the majority. Noting that the Court
has not—at least, not explicitly—stated that all injuries occurring in a health care setting are necessarily subject
to the Medical Liability law, Justice Lehrmann suggested the Court’s decision does just that. By bringing pest
control—yes, pest control—within the ambit of “health care,” the Court changed the focus of the statute from the
activity of the actor to the status of the actor. As Justice Lehrmann noted, under the majority’s holding, a
medical expert—someone with appropriate experience working in nursing homes—would need to testify
concerning the proper standards of pest control for nursing homes as it relates to providing a safe environment.
Omaha Healthcare Center, LLC v. Johnson (Tex. 2011)(Johnson)
[opinion text coming soon - or click on case style to retrieve pdf opinion from court's website]
Also see: Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams