Nursing Home and Care Facility Injuries That May Not Be Medical Malpractice Claims in Texas

When a loved one is hurt in a nursing home or care facility, families often assume the case is “medical malpractice.” Many are. In Texas, those are called health care liability claims, and they come with strict procedural rules. But not every injury that happens to a resident is a health care liability claim. Injuries during transport or from dangerous building conditions may raise a different question. Here is how Texas law approaches it.

What is a health care liability claim?

Chapter 74 of the Texas Civil Practice and Remedies Code governs health care liability claims against physicians and health care providers, including nursing homes. These claims have special requirements, including:

• Pre-suit notice: written notice by certified mail to each defendant at least 60 days before filing suit, with a medical records authorization (§ 74.051)
• Expert report: an expert report and the expert’s curriculum vitae served on each defendant no later than 120 days after that defendant’s original answer is filed (§ 74.351(a)). Missing this deadline can lead to dismissal and an award of attorney’s fees against the claimant (§ 74.351(b)).
• Deadline: generally two years from the breach or the completion of the treatment at issue (§ 74.251(a))

Is every injury in a nursing home a health care liability claim?

No, but courts start from a broad view. The Supreme Court of Texas has said the statute essentially creates a presumption that a claim against a health care provider is a health care liability claim when it is based on the provider’s conduct during a patient’s care, treatment, or confinement. That presumption can be rebutted (Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012)).

In Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496 (Tex. 2015), the court explained that for a safety-related claim to be a health care liability claim, there must be a “substantive nexus” between the safety standards allegedly violated and the provision of health care, which must be more than a “but for” relationship. The mere location of an injury in a health care facility is not enough. The court listed factors to consider, including:

• Whether the alleged negligence occurred while the defendant was performing tasks meant to protect patients from harm
• Whether the injury occurred in a place where patients might be while receiving care
• Whether the claimant was seeking or receiving health care at the time
• Whether the alleged negligence was based on safety standards arising from professional duties owed by the health care provider
• Whether any instrumentality involved was the type used in providing health care

What kinds of resident injuries raise this question?

Transport injuries. Residents are often taken by facility vans or buses to appointments. Injuries can happen when a wheelchair is not properly secured, a wheelchair lift fails, or the vehicle is in a crash. Whether these are health care liability claims depends on the facts, such as who was transporting the resident, why, and what safety duty was involved.

Dangerous building and premises conditions. Examples include a broken sidewalk or parking lot, a wet floor in a lobby or common area, a faulty automatic door, or an elevator problem. Under Ross, the location alone does not decide the question. For more on building-condition claims, see our articles on the Texas Accessibility Standards and elevator and escalator injuries.

Courts decide these cases one at a time, and the line is not always clear. Some situations that might seem unrelated to medical care have been treated as health care liability claims. For example, the Supreme Court of Texas held that claims based on a nursing home’s failure to supervise and protect a resident who was assaulted by another resident were health care liability claims (Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005)). In the same opinion, the court contrasted those claims with complaints about inadequate security or negligent maintenance, giving as examples an unlocked window that let an intruder in and a staircase that gave way under a resident’s weight. Because the consequences of guessing wrong can be serious, these questions should be evaluated early.

What should families do after a resident is injured?

• Write down what happened as soon as possible: the date, time, place, and names of staff and witnesses.
• Take photos of the injury and the location, such as the vehicle, lift, floor, or doorway.
• Request records, including the resident’s chart, incident reports, and any transport logs.
• Report concerns to Texas Health and Human Services.
• Act quickly. Health care liability claims generally must be filed within two years (§ 74.251), and other injury claims generally within two years (§ 16.003). Pre-suit notice and expert report deadlines can add more time pressure.

Frequently Asked Questions

What if my loved one was hurt in a crash in the facility’s van?

It may be a health care liability claim or an ordinary negligence claim, depending on the facts. Because the answer affects which rules and deadlines apply, it is important to have the situation reviewed promptly.

Does a fall in a nursing home always fall under Chapter 74?

Not always. A fall during care, such as while staff are moving or assisting a resident, is very likely a health care liability claim. A fall caused by a building defect in an area unrelated to care may present a different question under the Ross factors.

Why does the type of claim matter so much?

A health care liability claim has pre-suit notice and expert report requirements that do not apply to other injury claims. Missing them can lead to dismissal. Understanding the claim type early helps protect the case.

Related reading

• Slip, Trip and Fall Injuries and the Texas Accessibility Standards
• Elevator and Escalator Injuries in Texas: Who Is Responsible?

Learn more on our Nursing Home Accident page.

Talk With Caquias Law Group, PLLC

If a loved one was hurt in a nursing home or care facility, Caquias Law Group, PLLC can review what happened in a free consultation and explain your options. We have offices in San Antonio and Harlingen and represent injured people across Texas. Se habla español.

Call (210) 996-2237 in San Antonio or (956) 435-7789 in Harlingen.

Every case is different, and no particular result is guaranteed. This article is general information, not legal advice.