January 13, 2015
By John Council
Friends thought it was a joke when Amarillo solo Philip Russ filed a motion to dismiss a personal injury case for the most Texas of reasons.
Russ is arguing that when a plaintiff hit several loose cows while traveling on a high plains road, it was a health care liability claim. Why? Because Russ’ defendant cattle-owning client is a retired doctor.
“I said, ‘No. It’s not a joke,'” said Russ, who represents Richard K. Archer, an 82-year-old retired doctor in the case Tunell v. Andrew.
Archer’s unusual motion to dismiss is the subject of a Jan. 9 decision by Dallas’ Fifth Court of Appeals—which denied Archer relief.
Archer claims he should be afforded the broad protections given to physicians as part of medical malpractice tort reform measures enacted by the Texas Legislature. Those 2003 reforms were intended to protect doctors from frivolous lawsuits.
In his motion, Archer argued that Bobby Tunell’s case should be dismissed because Tunell allegedly failed to comply with Chapter 74 of the Texas Civil Practice & Remedies Code, which requires plaintiffs to first file “expert reports” detailing the expected standard of care of doctors before they can sue them.
While the argument may sound ridiculous, so is the Texas Supreme Court precedent that allows it, Russ said. The basis of Archer’s motion to dismiss is Texas West Oaks Hospital v. Williams, a 2012 decision from the Texas Supreme Court that requires plaintiffs to file expert reports when they sue doctors—even if the plaintiff’s claim has no direct relation to health care.
“That result is the most ridiculous thing I’ve ever heard,” Russ said. “I’ve got a terrible problem with it. One, I’ve got a duty to pursue this motion to dismiss. But they’ve got to back off that opinion.”
Russ filed the motion to dismiss in October, and filed a writ of mandamus with the Fifth Court after a Dallas trial court judge did not rule on it.
In its Jan. 9 decision in In Re: Richard K. Archer Sr., the Fifth Court denied Archer’s petition because nothing in the record indicated that the trial judge abused her discretion by failing to rule on Archer’s motion to dismiss.
The Fifth Court did not make any substantive rulings on that motion. The court noted in its decision that “there are no allegations in the pleadings that in any way suggest relator provided any health care service to the real party in interest.”
While the case has been set for trial this month before 298th District Court Judge Emily Tobolowsky, Russ said he will again ask her to rule on Archer’s motion to dismiss.
“This fits the Texas West Oaks Hospital case,” Russ said, who expects that Texas appellate courts will soon have to address the merits of Archer’s motion to dismiss. “I think they need to either dismiss my case and have the other side take it up and have [Texas Supreme Court Chief Justice] Nathan Hecht explain that opinion, or they need to deny my motion and let me take it up.
“I’ve got to represent the doctor in getting him dismissed,” Russ said. “But geez.”
Leighton Durham, a partner in Dallas’ Kelly, Durham & Pittard who represents Tunnell, said Russ is doing his client no favors by forcing appellate courts to rule on the unusual motion to dismiss.
“What is it that he wants Nathan Hecht to rule on—that a cow in the road is not med mal?” said Durham.
Another appeal by Archer will further delay the trial his client wants, Durham said.
“If he’s trying to do the plaintiffs a favor, tell him we said: ‘No thanks,'” Durham said.