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McLeanLaw PC and The Meyerson Law Firm won a huge appellate victory in the Third Court of Appeals this morning.

When I was working with Jeff Meyerson’s firm, Jeff and I represented a very nice man who suffered significant injuries following a neurosurgeon’s implantation of an “Eclipse Sphere” manufactured by Verticor, Ltd. The FDA cleared the device only for “fusion” procedures. The surgeon performed the procedure without “fusing” the vertebrae, which led to disastrous results. Jeff and I sued both the surgeon and Verticor.

Verticor asserted that it was a “healthcare provider” subject to Texas’ stringent medical malpractice laws (and liability caps). We argued that it was not. I blogged about it here.

Travis County District Court Judge Amy Meachum (who-like the vast majority of Travis County Judges-is excellent) agreed with us. Verticor appealed. This morning, the Austin Court of Appeals agreed with us and Judge Meachum. You can read the Court of Appeals’ opinion here.

The Court held:

[Verticor] fall[s] far short of demonstrating that the mere manufacture and sale of a medical device ipso facto constitutes the provision of ‘health care’ under the TMLA, as Verticor argues. Without more, Verticor has not raised a fact issue, let alone demonstrated conclusively, that it is a ‘health care provider’ under the TMLA. Consequently, Wood’s claims against it cannot be HCLCs [health care liability claims], and the district court did not err in denying Verticor’s motion to dismiss. We overrule Verticor’s issue on appeal.

We think this is a huge victory for injured Texans. We’re elated the Court got it right.

The case style is Verticor, Ltd. v. Wood, Cause No. 03-14-00277, In Texas’ Third Court of Appeals at Austin. The Lexis cite is Verticor, Ltd. v. Wood, 2015 Tex.App. LEXIS 11722 (Tex.App.-Austin Nov. 13, 2015, no pet. hist.).

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