In addition to the damage caps, our medical malpractice laws have numerous other restrictions that would encourage one to want to argue that the suit isn't a medical malpractice suit. Most important is probably the expert report requirements that can make a case so costly.

Whether a claim is a "health care liability claim," as the Texas statute defines it, is a hotly litigated area.

The seminal case, that seemed to doom plaintiffs, was a 2005 Texas Supreme Court case holding that a claim against a nursing home when a resident was found sexually assaulting another resident was a health care liability claim.

Since then, the statute has been amended and the definition has arguably been narrowed. So far in 2008 there have been three cases on what is a claim.

From the Laredo court, a claim was made against a nurse and the hospital when the nurse sexually assaulted the patient. The court held that the claims against the nurse were not health care claims but that the negligent hiring, training and supervising claims against the hospital were health care claims.

The Dallas court held that a claim against a nursing home after an employee intentionally burned and beat a mentally retarded patient was a health care liability claim.

The Texarkana court held that a claim against a hospital after a patient was bitten by a brown recluse spider in the ER was not a health care liability claim. That case has been appealed to the Supreme Court (our highest appellate court) and may provide more clarity.

In short, the plaintiff can argue that not losing the skull piece is separate and apart from the actual medical care, and he has a shot. But if I was a betting man.....
 

I can't see how this can withstand summary judgment. After all, is it even possible for a Texas to suffer compensable injury to a brain?

It's like me suffering loss of consortium.
 

Tort reform in Texas, as you note, creates peculiar situations. Medical malpractice suits are virtually negated, and big business is held accountable for injuring the little guy far less often and to a far lesser degree. If anything, it is tort "reform" which needs to be reformed, with the pendulum swinging back toward accountability, rather than giving wealthy interests a free pass.