HEALTH INDUSTRY ONLINE - ALL HAT AND NO CATTLE: Texas Supreme Court Addresses Lawsuits Against Health Care Providers Which Lack Evidentiary Support

In a reversal of a decision from the Thirteenth Court of Appeals, the Texas Supreme Court held on April 20, 2007, that an attorney was subject to sanctions related to unfounded allegations against health care providers in a wrongful death suit. According to the Texas Supreme Court's opinion in Low v. Henry, a petition filed by an attorney in 2002 on behalf of a widow alleged that two physicians prescribed the drug at issue, Propulsid, to the woman's husband prior to his death. However, the husband's medical records, which the attorney obtained months before he filed suit, indicated that neither physician had prescribed or administered the drug to him. The Texas Supreme Court ruled that the attorney's certification that all of the allegations in the petition had evidentiary support or were likely to have evidentiary support, when some allegations did not, made him subject to sanctions under Chapter 10 of the Texas Civil Practice & Remedies Code. Low v. Henry, 2007 WL 1162600, at *10 (Tex. 2007).

Texas follows a "fair notice" standard for pleading, in which courts assess the sufficiency of pleadings by determining whether an opposing party can ascertain from the pleadings the nature, basic issues, and the type of evidence that might be relevant to the controversy. See Tex Dep't Parks & Wildlife v. Miranda, 133 S.W.3d 217, 230 (Tex. 2004); Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-97 (Tex. 2000); see also Tex. R. Civ. P. 47(a). However, Chapter 10 of the Texas Civil Practice & Remedies Code requires a pleading's signatory to certify that he or she conducted a reasonable inquiry into the allegations and concluded that each allegation or other factual contention in the pleading has or is likely to have evidentiary support. Because the attorney who filed the petition in the case at issue obtained and directed the review of evidence that disproved some of the allegations pled against the physician defendants at issue, the Texas Supreme Court ruled that the trial court correctly found that the attorney violated Chapter 10 and was subject to sanctions. See Low, 2007 WL 1162600, at *1.

Under § 10.001 of the Texas Civil Practice & Remedies Code, the signer of a pleading or motion certifies that each claim, each allegation, and each denial is based on the signatory's best knowledge, information and belief, formed after reasonable inquiry. (emphasis added). The statute dictates that each claim and each allegation be individually evaluated for support. The fact that an allegation or claim is alleged against several defendants - a so called "group pleading" - does not relieve the party from meeting the express requirements of Chapter 10. Each claim against each defendant must satisfy Chapter 10. Likewise, alternative pleading under Texas Civil Procedure Rule 48 does not excuse non compliance with Chapter 10. Pleading in the alternative allows multiple allegations, which may even conflict, to be alleged against a defendant, but there still must be a reasonable basis for each alternative allegation. Id. at *6. However, broad brush pleadings in the alternative do not permit alleging a claim with no reasonable basis in fact or law "in the alternative" of the claim that does have support.

The Texas Supreme Court's ruling in Low underscores the importance that attorneys verify that all of their allegations have evidentiary support. The Court's ruling certainly will create further scrutiny as to what allegations are set forth in future pleadings against health care providers and will likely limit situations, such as the case at issue, where the allegations were asserted without proper investigation for verification of accuracy. The ruling can also be used for legal support for sanctions in cases in which health care providers have been alleged to have committed negligent acts for which they were clearly not responsible.