# Marks v. St. Luke's Episcopal Hospital

> Texas Supreme Court · August 27, 2010 · 319 S.W.3d 658

URL: https://www.frixlaw.com/law-library/cases/9513140

## Case

- **Full name:** Irving W. MARKS, Petitioner, v. ST. LUKE’S EPISCOPAL HOSPITAL, Respondent
- **Court:** Texas Supreme Court
- **Decided:** August 27, 2010
- **Citations:** 319 S.W.3d 658; 2010 WL 3373407
- **Precedential status:** Published
- **Opinion:** Concurrence by Wainwright
- **Judges:** Medina, Hecht, Wainwright, Johnson, Jefferson, Green, Guzman, Lehrmann
- **Cited by:** 254 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9513140

## How later opinions describe it (automated extraction)

- recognizing, in case in which plaintiff had divided petition 21 under headings “Negligence” and “Premises Liability,” that health-care liability claim cannot be recast as another cause of action to avoid statutory requirements governing those claims and that whether pleading s…
- holding that claim of recovering surgical patient injured when hospital bed footboard collapsed was a health care liability claim “[b]ecause the provision of a safe hospital bed was an inseparable part of the health care services provided during [the patient’s] convalescence f…
- holding that claim against hospital regarding patient’s fall caused by defective footboard on hospital bed constituted health care liability claim
- holding, in part of opinion that was majority opinion, that as to issue of mistake or accident, affidavit was legally insufficient because it did not show that the affiant had personal knowledge regarding this issue
- noting that article 4590i, the struck by a vehicle and required the driver to render aid to predecessor to the current chapter 74 of the civil practice and the person, including taking the victim to a hospital or doctor. remedies code, was enacted to “remedy a medical malpract…

## Opinion text

Justice WAINWRIGHT,
concurring.
I agree with the plurality’s opinion to the extent it concludes that a claim for injury arising from the alleged improper operation of a hospital bed provided for the care and recuperation of a back-surgery patient is a health care liability claim. Marks acknowledged this in his filings at the trial court, and the trial judge properly held that his claim was governed by the Medical Liability and Insurance Improve Act (MLIIA). 1 See Tex.Rev.Civ. Stat. art. 4590L 2 I therefore join parts I and IV of *667 the plurality’s opinion and the Court’s judgment. I agree with Justice Johnson’s concurring opinion addressing the “health care” prong of health care liability claims and our precedents, holding that “splicing health care liability claims into a multitude of other causes of action with standards of care, damages, and procedures contrary to the Legislature’s explicit requirements” is not permitted. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 854 (Tex.2005); see also, e.g., Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543, 545 (Tex.2004). I therefore join parts I, II, and III.A of Justice Johnson’s concurring opinion. I do not join part III of the plurality’s opinion, part III.B of Justice Johnson’s concurring opinion or address the dissenters’ arguments concerning the “safety” prong of health care liability claims 3 because it is not necessary in this case, as it was not in Diversicare, to define the precise scope of “safety” under the MLIIA. See Diversicare, 185 S.W.3d at 854-55 (explaining in part III.B.2 of the opinion that an injury to a patient from a rickety staircase or an unlocked window does not implicate the “health care” prong of health care liability claims).
. Marks’s retained physician concluded in his expert report that St. Luke’s Episcopal Hospital violated "accepted standards of good nursing care” specifically by failing “to ensure that the footboard was properly secured to the bed.”
. Medical Liability and Insurance Improvement Act of Texas, Act of May 30, 1977, 65th *667 Leg., R.S., ch. 817, 1977 Tex, Gen. Laws 2039, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847 , 884. The successor statute is applicable to actions filed on or after September 1, 2003. Tex Civ. Pkac. & Rem. Code ch. 74.
. See United States v. Travers, 514 F.2d 1171, 1174 (2d Cir.1974) (Friendly, J.) ("Cassandra-like predictions in dissent are not a sure guide to the breadth of the majority's ruling....”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9513140. Public record. Not legal advice.