A Switch in Time Saved...A Hospital
President Franklin D. Roosevelt brooked no dissent among his subordinates. He famously cashiered his Commander in Chief of the U.S. Fleet, Admiral James O. Richardson, soon after a meeting in October 1940 because the Admiral hurt his feelings. Richardson had complained to FDR at the meeting about the wisdom of leaving the Pacific fleet at Pearl Harbor instead of returning it to its customary home base of San Diego; he even suggested that fellow officers were losing confidence in the commander in chief. Sadly, Richardson was vindicated on December 7, 1941.
FDR had similarly felt insulted by the "Four Horsemen" of the Supreme Court who, with swing voter Justice Owen Josephus Roberts, kept killing off the New Deal. In 1937, FDR proposed to pack the court with six more hand-picked Justices to neutralize those devils but he couldn't convince a Democratic Congress, to its credit, to go along with such a naked power grab. Nevertheless, an ill-timed but coincidental swing to the left by Roberts and the retirement of one of the Horsemen allowed the leftist press of its day to proclaim with a cutesy phrase that "A Switch in Time Saved Nine," and gave FDR a patina of face saving.
Texas Supreme Court Justice David Medina may simply be a metaphorical descendant of Roberts. It has been ten years since Irving Marks underwent back surgery at St. Luke's Episcopal Hospital in Houston. A week later, the footboard on his hospital bed collapsed as he attempted to use it to push himself from the bed to a standing position. He was seriously injured and sued the hospital.
The issue, which has now twice reached the Texas Supreme Court, was whether Marks' lawsuit should be considered a premises liability lawsuit or whether it must be considered a health care lawsuit under a specific statute that has since been repealed. If you think, at first glance, that the issue seems hypertechnical, you're right. But it is a technicality with a big difference. A premises liability lawsuit has no expert affidavit requirement, but a health care lawsuit cannot be sustained without an expert to say that medical negligence was committed. Absent a conforming affidavit, the lawsuit gets thrown out of court. Most states have similar laws.
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