Dallas Cow Case – Medical Malpractice or Personal Injury?

Emily Tobolowsky, a Dallas judge recently denied a motion filed by the defendant attorney when he was trying to show how the Texas’ tort reform has been stretched far beyond its original intent. The defendant attorney in this case, tried to convert, what looked like an ordinary negligence case to that of a medical malpractice. He stated that case should be dismissed as it was improperly filed.

The judge ruled that a “health care liability claim” could not be made when a plaintiff hits a cow on the road that’s owned by a doctor.

The case started in 2012 when some cows belonging to Richard Archer, an 82 year old retired doctor were roaming on the rural road when plaintiff, Bobby Tunnel who was driving a truck ran in to them. The accident caused the death of a cow and Tunnel himself suffered serious injuries that cost him more than $700,000 in medical expenses.

The plaintiff filed a personal injury lawsuit and alleged negligence in the context of failure to maintain fencing, keeping a proper lookout for cows and to warn travelers.

But as bizarre as it sounds, the counsel for the defendant, Philip Russ, sought to have the suit dismissed by arguing that since the defendant is a retired doctor and the cattle was under his due care, a medical malpractice suit should be filed. The basic motive behind such an argument was to limit the amount of claims for damages.

To support the defense, attorney Russ laid down further argument mentioning about the other judicial decisions of Texas where medical malpractice law has been applied in situations involving practice of medicine, such as slip and fall accidents, patient bitten by spider, or a nursing home resident who was attacked by another resident of the facility.

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