Health Law Daily Wrap Up, ELECTRONIC HEALTH RECORDS—N.D. Tex.: Medical records software company faces discovery on wrongful death, negligence, and products liability claims, (Jun 12, 2026)

By Justin Marcus Smith, J.D.

The court predicted the Texas Supreme Court would hold the software in question was a “product” for purposes of the Texas Products Liability Act, but the court dismissed the negligent misrepresentation and gross negligence claims.

The pro se daughter of a deceased patient pleaded plausible wrongful death, negligence, and products liability claims against a medical records software company in connection with an allegedly defective electronic health record system, held the federal district court in Dallas. The court declined to dismiss the daughter’s claim for wrongful death damages because it was derivative of other claims the court found plausible. As for the negligence claims, the court predicted the Texas Supreme Court would impose a duty of care in light of the alleged circumstances implicating exclusive and ongoing control over the software. The court found facial proximate causation insofar as the daughter plausibly pleaded it was foreseeable to the software company that the alleged deficiencies in the software would cause the general kind of injury the father suffered. As for the products liability claim, the daughter specified defects in the EHR platform, she pleaded causation, and the allegations supported a plausible inference that a platform without the alleged defects would have been a safer alternative design. The court predicted the Supreme Court of Texas would hold that the EHR platform was a “product” within the ambit of the Texas Products Liability Act. The court dismissed the negligent misrepresentation claim without prejudice because the daughter and her father were not known to the software company. The court dismissed the gross negligence claim because there was no indication of agency or ratification pertinent to any executive conduct (Fischman v. Epic Systems Corp., No. 3:26-cv-00770-D (N.D. Tex. Jun. 8, 2026)).

Background. The pro se daughter of a deceased patient sued Epic Systems Corp. She alleged deficiencies in the Epic electronic health record (EHR) system caused her father’s death by preventing the display of accurate medical information needed to identify and treat his condition. The daughter asserted wrongful death, negligence, products liability, negligent misrepresentation, and gross negligence claims under Texas law. Epic moved to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The court decided the motion on-the-papers.

Wrongful death. The court declined to dismiss the wrongful death counts. The daughter sought damages for wrongful death, including loss of companionship, mental anguish, loss of inheritance, and pecuniary loss. Epic contended the court should dismiss the wrongful death counts because the daughter sought damages recoverable only by the personal representative of the father’s estate.

The court said the controlling question under Texas Wrongful Death Act was whether the daughter plausibly pleaded that Epic would have been liable to her father, as the decedent, had he lived and brought the lawsuit. Because the daughter’s wrongful death cause of action was derivative of her other claims, two of which were plausible, the court concluded her claim for wrongful death damages should not be dismissed.

Negligence. The court held the daughter’s allegations were sufficient to plead a negligence claim. The court predicted the Supreme Court of Texas would impose a duty of care where, as here, the daughter plausibly pleaded Epic could have foreseen that the alleged deficiencies in its EHR system would cause harm and potentially fatal injuries to patients whose care depended on the accuracy of information the system produced.

The daughter alleged Epic retained exclusive and ongoing control over the EHR software used by the medical professionals who treated her father. She alleged deficiencies in the EHR software caused incomplete and unreliable medication records that affected her father’s care, including alleged software failure to enforce medication timelines; to require prescriber attribution; to reconcile active and discontinued medications; and to produce reports distinguishing current from historical information. She alleged hospitals could not correct these deficiencies; they were inherent to the Epic EHR system in a way that constrained all medical judgment.

Epic maintained it was a third-party vendor with no duty to patients. The court acknowledged it was not aware of any Texas court opinion that specifically recognized a duty, but it did find a case involving a technology support contractor found liable for installation and programming of a computer system at the Dallas County Jail. The court in that matter found a plausible pleading of a duty of care to prisoners, drawn from Texas’ courts general imposition of a duty of care on contractors to prevent injury to third parties resulting from the performance of contractual duties. That court found foreseeability, caused by alleged technological deficiencies, outweighed the burden of imposing a duty of care on the defendant technology provider and other public policy concerns.

The instant court found that case persuasive in this context, even though the daughter did not allege that Epic acted as a contractor. The point was that the daughter similarly alleged injury stemming from deficiencies in a software system traceable to ongoing control by Epic. Likewise, Texas courts have recognized product manufacturers owe a duty of care to those in the foreseeable zone of danger.

Even accepting Epic assertions that its software has important social utility, the court said it was not persuaded that imposing a duty here would be any more burdensome, or contrary to public policy, than the duties of care already recognized under Texas law, like those imposed on product manufacturers. The court further analyzed that a case Epic cited relied on guideposts not present here: Texas precedent establishing that employers owed no duty to employees; applicable existing protections and regulations; and the employment at-will doctrine. The court hedged it might revise its conclusion later if the record develops so as to persuade that a duty of care does not exist.

Epic also questioned the pleading of proximate cause, but the court found the daughter plausibly pleaded it was foreseeable to Epic that the alleged deficiencies in the EHR software would cause the general kind of injury the father suffered. Even assuming the treating physicians’ independent judgment was in the chain of causation, the daughter’s allegations supported a reasonable inference that the alleged EHR system deficiencies were a but-for cause of death. The court also said it was not persuaded that the learned intermediary doctrine applied because the claim here was based on more than just inadequate warnings.

Products liability. The court concluded the daughter plausibly pleaded a design defect claim. The daughter alleged the EHR software was defective insofar as it lacked enforced medication-timeline documentation, required no prescriber attribution across care transitions, permitted inconsistent medication information to be displayed without reconciliation, and did not support reliable reconstruction of medication status over time. She alleged these deficiencies were the proximate cause of her father’s injuries. She also alleged there were safer alternative designs.

The court saw that the daughter specified defects in the EHR platform, pleaded causation, and that her allegations supported a plausible inference that a platform without the alleged defects would be a safer alternative design.

Epic urged that its EHR platform was not a “product” for purposes of the Texas Products Liability Act, but the court predicted the Supreme Court of Texas would hold that the EHR platform was within the ambit of the Act. The court cited that the Supreme Court of Texas has looked to the Third Restatement of Torts (Restatement) for how to define a product; the Texas court of appeals has recognized that software is a product in at least one instance; and a federal court in the district permitted a design defect claim to proceed where the defective product was mobile device software.

The court said the daughter’s allegations enabled an inference that the EHR platform is a “highly technical tool” marketed and licensed to hospitals in a manner similar to how tangible products are distributed. The court said it was persuaded that the Supreme Court of Texas would hold that the EHR platform is a “product” for purposes of a design defect claim.

The court disagreed with Epic’s contention that the daughter failed to plead the alleged defects in the EHR platform were a “producing cause” of death. For the same reasons the court found a plausible pleading of proximate cause, the court likewise concluded the daughter plausibly pleaded “substantial factor” or “producing cause” causation for her design defect claim. The court accordingly declined to dismiss her products liability claim.

Negligent misrepresentation. The court held the daughter failed to plead a plausible negligent misrepresentation claim. The Supreme Court of Texas has limited liability for a negligent misrepresentation cause of action to situations in which the plaintiff is a “known party.” The court explained it could not reasonably infer that Epic supplied information about the suitability of the EHR system for the daughter or the father’s benefit and guidance in transacting business. The court dismissed the negligent misrepresentation claim without prejudice.

Gross negligence. The court held the daughter failed to plead a plausible gross negligence claim because she failed to identify any agents or vice presidents whose authorized or ratified actions would have perfected enterprise liability. The court dismissed the gross negligence claim without prejudice.

Amendment. The court granted the daughter explicit leave to replead the dismissed claims. The daughter asked for leave to amend, and the court did not find any indication of futility.

The case is No. 3:26-cv-00770-D.

Judge: Fitzwater, S.

Attorneys: Gallit Fischman, pro se. Christopher J Schwegmann (Lynn Pinker Hurst & Schwegmann LLP) for Epic Systems Corp.

Companies: Epic Systems Corp.

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