When it Comes to Service Animals and ESA’s, Did the Texas Court of Appeals Just Throw a Monkey Wrench into the HUD Circular and Title I of the ADA?

Before getting started on the blog entry of the day, I do want to wish everyone celebrating, a happy Passover and a happy Easter. Also, major league baseball has started, so good luck to any of your teams.

 

Turning to the blog entry of the day, one wonders why anyone in the state of Texas would now ever write a supporting letter saying that a person needed an animal for emotional support or needed a service animal. The case of the day is Liebman v. Waldroup, from the Texas Court of Appeals for the first District of Texas, which is Houston. The case can be found here. My thanks to Prof. Emeritus Michael Masinter of Nova Southeastern Law School for alerting me to this case on the AHEAD listserv. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that a healthcare liability claim was not involved; court’s reasoning that deviation from safety standards are not involved; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

The plaintiff sued Dr. Liebman and other defendants after a dog bit their three-year-old daughter in the Loose Caboose restaurant in Spring, Texas. The plaintiffs alleged that upon entering the restaurant a pit bull dog named Kingston wearing a “service dog,” vest attacked their child without provocation biting her cheek and severely injuring her. They also allege that the owner of the service dog and her friend, who later told police that he had been previously attacked by that service dog, did not offer to help and then fled the scene with the dog.

 

In the complaint, plaintiffs allege that the owner of the dog’s gynecologist, Dr. Liebman, provided the letter to her solely at her request for the purpose of avoiding eviction from her apartment stating that she required her service animal on the basis of generalized anxiety disorder. The obstetrician took no steps to ascertain whether the dog was actually a service animal, that is whether the dog performed specific works or tasks related to her disability. There were three subsequent letters too, including: 1) a letter from Dr. Liebman dated May 9, 2017 stating that the owner of the dog had depression/anxiety disorder requiring that she have four service animals all of which are certified to be with her to help her with the disorder; 2) a letter from Dr. Liebman dated August 3, 2017 stating that the owner of the dog had generalized anxiety disorder and having her service animals helps her with the disorder. That letter said that she was also taking medication for the disorder; and 3) a letter from December 17, 2019 stating: “Due to Jennifer Romano[’s] anxiety disorder she needs all her service animals. Kingston walks into every entrance before her, everywhere we go. Daisy licks her entire face, Molly brings her toys and sits in her lap, Maddie sits on her chest, Milly puts her paw on her face and Major si[ts] at her side and Lulu sits at her head. It appears as she needs these service animals to control her anxiety and perform her daily duties.”

 

Dr. Liebman filed a motion to dismiss arguing that the claim did not have an affidavit that is required under Texas law whenever healthcare liability claims are filed and because of the lack of that expert report the case had to be dismissed. In Texas, a healthcare liability claimant must serve within 120 days after defendant’s original answer is filed, the defendant healthcare provider with an expert report.

 

II

Court’s Reasoning That a Healthcare Liability Claim Is Not Involved

 

1. Whether a healthcare liability claim is involved is a question of law that appellate courts get to review with a fresh eye, i.e. de novo.
2. To answer the question of whether a healthcare liability claim is involved, the court looks at the claim’s underlying nature rather than its label. That means considering the entire court record, including the pleading, motions and responses, and relevant evidence properly admitted. The focus is on the essence of the claim, the alleged wrongful conduct, and the duties allegedly breached.
3. Where the essence of the suit is a healthcare liability claim, a party does not avoid the requirements of the statute through artful pleading.
4. Under Texas law, a healthcare liability claim is a cause of action against a healthcare provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or healthcare, or safety or professional or administrative services directly related to healthcare resulting in injury to the claimant regardless of whether that injury sounds in contract or tort law.
5. Healthcare is any act or treatment performed or furnished, or that should have been performed or furnished, by any healthcare provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.
6. A healthcare liability claim has three elements: 1) the defendant is a physician or healthcare provider; 2) the claim or claims at issue concerning the treatment, lack of treatment, or a departure from accepted standards of medical care, or healthcare, or safety or professional or administrative services directly related to healthcare; and 3) the defendant’s conduct proximately caused the injury.
7. If expert medical or healthcare testimony is necessary to prove or refute the merits of the claim against a physician or healthcare provider, the claimant has a healthcare liability claim.
8. Plaintiffs allege that this claim is based on Dr. Liebman’s statements in his letters about the dog. More specifically, his statement that the dog was a service animal and was certified and his description of the dog’s behavior. They argue that those letters assisted the owner of the dog in obtaining a service vest for the dog and aided and abetted that owner in deceiving the public that the dog was a service dog when in fact it was not.
9. Plaintiffs do not take issue with Dr. Liebman’s diagnosis of the dog’s owner as a person with generalized anxiety disorder or with his medical judgment that she may benefit from a service animal to help with her disorder. Instead, the claims are based upon his statement that the dog was a service animal and was certified.
10. Liebman’s statements that the dog was a service animal who was certified and his comments about the dog’s behavior was not an inseparable or integral part of the rendition of healthcare to the dog’s owner.
11. There is no accepted standard related to when a medical doctor for humans can offer his opinion about the qualifications and behaviors of animals.
12. Liebman had no basis or qualification for making the statements about the dog for the purpose of helping the dog’s owner avoid eviction which also assisted her in obtaining a service vest for the dog and deceiving the public that the dog was a service dog. Such allegations do not give rise to a cause of action for healthcare liability in Texas. That is, the act giving rise to plaintiff claims are not inseparable from the rendition of healthcare and are not based upon a breach of the standard of care applicable to Dr. Liebman.

III

Court’s Reasoning That Deviation from Safety Standards Are Not Involved

 

1. In a footnote, the court said that the ADA prohibits employment discrimination against qualified individuals with a disability because of their disability.
2. In another footnote, the court noted that the Texas Fair Housing Act provides rights and remedies substantially equivalent to those granted under the federal Fair Housing Act.
3. Liebman did not argue in the lower court that claims against him alleged departure from safety standards pursuant to the ADA and the federal Fair Housing Act, so those arguments are waived.
4. Despite the argument being waived, the court went ahead and addressed the question of whether the safety standard based claim implicates the defendant’s duties as a healthcare provider, including a duty to provide for patient safety. To answer that question, seven factors are involved: 1. Did the alleged negligence of the defendant occur in the course of the defendant’s performing tasks with the purpose of protecting patients from harm; 2. Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special medical care was implicated; 3. At the time of the injury was the claimant in the process of seeking or receiving health care; 4. At the time of the injury was the claimant providing or assisting in providing health care; 5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider; 6. If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; or 7. Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety related requirements set for health care providers by governmental or accrediting agencies?
5. To answer the questions above, the court said: 1) the primary purpose of the letter was to help the dog’s owner avoid eviction; 2) Dr. Liebman did not articulate what safety standards, if any, arising from his professional duties as a healthcare provider applied to the statements in his letters that the dog was certified as a service animal; 3) that the letters he provided may have been physician letters of a type that physicians issue on behalf of their patients is a conclusory argument unsupported by the evidence in the record; 4) the record does not support the argument that the letters were supplied to comply with federal safety related requirements and no such evidence was presented to the trial court; and 5) since there was no evidence pertaining to any applicable safety related standard, it cannot be concluded that Dr. Liebman’s provision of letters opining on the qualifications of the dog as a service animal was integral to his treatment of her.

 

IV

Thoughts/Takeaways

 

1. Nowhere in the opinion is the HUD circular on animals ever mentioned. You can find our discussion about the circular here.
2. As readers of the blog know, the ADA is much more than just an employment statute. It also deals with accessing nonfederal governmental entities and accessing places of public accommodations. The court only mentions explicitly the employment provisions even though the statutory site it gives goes across the titles. Also, technically speaking, ADA causation is not because of but on the basis of or by reason of depending upon the title. See also this blog entry.
3. The court’s discussion about safety standards is arguably dicta because the court said that the argument was waived by Dr. Liebman because of his failure to raise it at the lower court. The appellate court nevertheless went ahead and discussed the question anyway.
4. A bit strange that the court talks about how the letter assisted the dog’s owner in obtaining a service vest because such vests can easily be obtained without any such letters over the Internet.
5. No certification of service animals exists in this country.
6. This case raises the importance of just who should be writing letters saying that a person needs an emotional support animal or a service animal. If the healthcare provider is not someone with training concerning the disability and also has knowledge of the person’s disability, this case has one wondering whether a Texas healthcare liability claim could ever be involved.
7. This case also raises the question of what should be said in such letters. Assuming you have a person with expertise in mental health conditions, the next question becomes under this decision what should the letter say. It would seem that if the letter goes into any specifics at all about what the dog does, the argument gets created under this decision that a Texas healthcare liability claim would not be involved. One also wonders whether a statement in the letter to the effect that the provider is making no representations about whether the dog is a direct threat or the specifics of what the dog actually does is not also needed. Of course, inserting such a statement would help with respect to preserving a healthcare liability claim argument, but it would make carrying out the HUD circular very difficult as well as very difficult to carry out requests for accommodations under title I of the ADA.
8. The case goes too far in some ways. In that you almost have to wonder whether you don’t need a person that evaluates the mental state of the person requesting the service animal or emotional support animal plus a person that can assess whether the dog is behaving as a service animal or an emotional support animal.
9. Service animals are not trained to attack others. In fact, the ADA final regulations are clear that a dog constituting a direct threat to others is not a qualified service animal.
10. Whether this decision blows up the HUD circular in Texas remain to be seen.
11. Jurisdictions will certainly vary in their rules that are attached to healthcare liability claims as well as how they decide when a healthcare liability claim exists. So, make sure you consult a licensed attorney in your jurisdiction to handle that question.
12. The case also raises the question of whether it is not medical malpractice for a physician not specializing in mental health to recommend an emotional support animal or a service animal. Of course, service animals can perform other duties besides those related to mental health. One also wonders whether under this decision, the healthcare expertise must be related in some way to the work or tasks performed by the service animal in order to preserve the argument that a healthcare liability claim is involved.
13. The case also raises the question of whether expert testimony would be needed to determine whether the animal was a service animal (in the interest of full disclosure, I was once certified as an expert by a court to opine on exactly that in a case, but that case settled shortly before trial). An open question exists as to whether that kind of testimony would be medical or healthcare testimony. Arguably, the answer to that question would be no. How the answer being probably no effects whether the claim would be a healthcare liability claim is not exactly clear to me.
14. If a provider does write a letter saying that a person needs an emotional support animal or a service animal, the provider most certainly should not say that the dog has been certified because no such thing exists in this country.
15. In Texas, a claim against a healthcare provider may be a healthcare liability claim if it implicates a healthcare related safety standard even if the standard is not directly related to the provision of healthcare. So, any healthcare provider faced with a suit like this will certainly want to argue at the lower court level, which Dr. Liebman did not do, that a plaintiff making a similar claim as to this case is alleging departures from safety standards pursuant to the ADA and the Fair Housing Act.
16. I don’t think of the service animal regulations in title II and title III of the ADA as being safety standards, but that argument is possible under this decision. Same answer for the HUD circular.
17. I once ate barbecue at a restaurant in Spring, Texas.
18. Pit bulls are not a breed per se. They are also not inherently dangerous. Many pit bulls make excellent service animals, pets, and emotional support animals. The key is training.
19. As we discussed here, breed restrictions are not kosher.
20. One of the letters written by Dr. Liebman mentioned four service animals. If that were really the case, I would want to know what worker task each of those animals performed and how that related to the person’s disability. In fact, Dr. Liebman tried to do exactly that in one of his letters.
21. It is not unusual for a State to impose civil and/or criminal penalties for misrepresenting a dog as a service animal when it isn’t.
22. Is the circular such that it is a right of persons with disabilities so that Texas has to respect what is in the HUD circular? The answer to that question depends upon this blog entry, here.
23. It will be interesting to see if this case is appealed to the highest court in Texas. I don’t view the appellate court decision as being without question with respect to its reasoning.

from Texas Bar Today https://ift.tt/PGiNLnF
via Abogado Aly Website