Cow Owner Gets Sued by Driver Who Hit Cows, Claims Plaintiff Must Abide by Medical Malpractice Rules Because He’s Suing a Doctor

A retired doctor was sanctioned by a Texas appellate court Tuesday for filing a frivolous appeal. Dr. Richard Archer was sued by plaintiff Bobby Tunnell after Tunnell’s vehicle struck Archer’s cows in the road. In what’s now being referred to as the infamous “cow in the road” case, Archer claimed that the plaintiff should have been required to abide by all of the medical malpractice lawsuit requirements, such as filing an expert witness’s report before the lawsuit is even filed, simply because the defendant was a doctor. During Archer’s appeal of the trial court’s refusal to force the plaintiff to follow med-mal rules, Archer’s lawyers pressured Archer to drop the appeal because, while the case was being appealed, the Texas Supreme Court had handed down an opinion in a separate case holding that when a hospital is sued for a slip-and-fall injury, it is not a medical malpractice claim because “there must be a substantive nexus between the safety standards allegedly violated and the provision of health care.” The defense lawyers had also plead that the Employee Retirement Income Security Act preempted the claim in the first place; however, the appeals court said that “no reasonable counsel could believe the ERISA-preemption argument was a reasonable ground for reversal in this case.”

Calling Archer’s appeal “truly egregious,” the appellate court sanctioned Archer $2,205 in order to pay opposing counsel for their time in defending the appeal. The case is Archer et al. v. Tunnell, case number 05-15-00459-CV, in the Fifth Court of Appeals of the State of Texas.