On Appeal from the 270th District Court Harris County, Texas Trial Court Cause No. 1106907
The opinion of the court was delivered by: Terry Jennings Justice
Appellant, Frank Chalfant, challenges the trial court's dismissal of his health care liability claim*fn1 against appellees, Brookdale Senior Living Communities, Inc. ("Brookdale") and ARC Post Oak, L.P., doing business as The Hampton at Post Oak ("ARC"), for negligence. In four issues, Chalfant contends that the trial court erred in granting Brookdale and ARC's motion to dismiss his claim.
In his original petition, filed on January 30, 2012, Chalfant alleged that on January 1, 2009, he fell and broke his ankle. He was transported to Memorial Hermann Hospital, where his right leg was fitted with a metal brace. On January 5, 2009, Chalfant visited ARC, where he complained that he could not put weight on either foot and eventually received "critical wound nursing care" from its staff, employed by Brookdale. After having surgery performed on his right leg at Memorial Hermann Hospital, Chalfant returned to ARC on January 30, 2009. Just prior to giving Chalfant a shower, the ARC nursing staff tied a plastic bag around his leg, causing water to leak onto his brace. He alleged that the nurses did not follow proper sterilization and bathing procedures, causing an infection. On February 10, 2009, the bandage on Chalfant's right leg had become "wet and bloody," but the nursing staff did not mention the condition when it changed the bandage. The following day, the bandage was still "wet and bloody" and had started "to smell terribly bad."
Chalfant insisted on seeing his surgeon, who immediately readmitted him to Memorial Hermann Hospital, where he had to undergo nine more surgeries on his leg and take antibiotics because his right foot had become infected with Methicillin Resistant Staphylococcus Aureus ("MRSA"). He alleged that the infection was a result of ARC and Brookdale's negligence. Specifically, Chalfant alleged that ARC and Brookdale were negligent in failing to:
A. [M]aintain a proper lookout for the cleanness of [Chalfant] and other employees as would have been kept by a person using ordinary care under the same or similar circumstances.
B. [E]xercise reasonable care to provide [Chalfant] with proper sanitation, clean showers and sanitary bathing and showering techniques.
C. [E]xercise reasonable care to provide [Chalfant] with properly trained manpower for cleaning [Chalfant] and his wounded right leg and right foot to avoid infecting them as would have been done by a person using ordinary prudence and care under the same or similar circumstances.
D. [Provide] its Health Care Administrator, Director of Nursing, Nursing Staff, and employees with proper supervision and training in the safe nursing care of patients while feeding, cleaning, bathing, showering, removing and replacing bandages and dressing as would have been done by a Defendant under the same or similar circumstances.
Chalfant sought $500,000 in damages from ARC and Brookdale.
In their answer, ARC and Brookdale generally denied Chalfant's allegations and pleaded the affirmative defense that Chalfant's suit was barred by the statute of limitations. On October 21, 2011, ARC and Brookdale then filed a motion to dismiss Chalfant's suit for failure to provide an expert report*fn2 within 120 days of him filing his suit.
In his response to the motion to dismiss, Chalfant stated that he filed his claim in "a good faith effort to receive relief from the infection that ravaged his body and almost cost him his life because of the negligent health care that he received under the care of [ARC and Brookdale]." Chalfant asserted that his expert report was sufficient or, alternatively, requested that the trial court grant him a thirty-day extension to cure any deficiencies in the report.* ...