In Fischman v. Epic Systems Corporation, No. 3:26-CV-0770-D (USDC ND TX, June 8, 2026), the District Court sitting in Dallas declined to dismiss the pro se plaintiff’s wrongful death, negligence, and products liability claims, and granted her leave to replead. Here, plaintiff Gallit Fischman (pro se daughter of deceased heart-transplant patient Dov Fischman), sued Epic for wrongful death. She alleged that Epic’s EHR computer system had design defects and incomplete medication records, preventing doctors from seeing the accurate data needed to adjust her father’s medication, ultimately causing his death. Epic argued that it was a software company, not a healthcare provider, and sought to dismiss the claims.
In declining to dismiss the product claims, the Court predicted that Texas would treat an EHR as a “product” and hold its vendor to a duty of care it owes patients directly.
The District Court noted that, in at least one case, a Texas court of appeals recognized that software was a “product” where that software was “a highly technical tool used to create a graphic representation from technical data.” Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 107 n.2 (Tex. App. 2000, no pet.) (citing Winter v. G.P. Putnam’s Sons, 938 F.2d 1033 (9th Cir. 1991)). And although in Estate of AlexJudge Lynn did not expressly grapple with the question whether software can constitute a “product” for purposes of a products liability claim, she permitted a Texas law design defect claim to proceed where the alleged defective product was “software installed on mobile devices.” Est. of Alex, 313 F.Supp.3d at 732.
Because of this analysis, the Court felt persuaded that the Supreme Court of Texas would hold—at least based on the pleadings—that the EHR platform is a “product” for purposes of a design defect claim.
Note well that this pro se plaintiff previously filed a medical malpractice claim in state court, but took a non-suit when faced with the expert witness disclosure. She shifted gears and then went with negligence, assisted by AI, in Federal Court.