Medical Malpractice

Lawyer argues tort case over cow injury is governed by med-mal law

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A Texas solo says his unusual argument in a personal injury case is governed by a state supreme court decision on the reach of the state’s medical-malpractice protections for doctors.

Lawyer Philip Russ of Amarillo represents the 82-year-old retired doctor who owns cows alleged to be responsible for the tort plaintiff’s injury in Tunell v. Andrew, Texas Lawyer reports. The plaintiff says he was injured when his car collided with the loose cows.

Russ says the plaintiff was required to file expert reports showing the doctor’s expected standard of care as required by the state’s 2003 medical-malpractice reform law. Russ tells Texas Lawyer that his argument may sound ridiculous, but so is the state supreme court case requiring the expert reports, even when the plaintiff’s claim isn’t directly related to health care.

“I’ve got a terrible problem with it,” he said of the 2012 decision, Texas West Oaks Hospital v. Williams. “They’ve got to back off that opinion.”

Russ filed a motion to dismiss in the cow case based on the plaintiff’s failure to comply with the expert report requirement. When the trial judge didn’t rule, Russ filed a writ of mandamus with the appeals court. The court rejected Russ’ petition on Jan. 9, finding nothing in the record suggesting an abuse of discretion by the trial judge.

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