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Memorial Hermann Hosp. Sys. v. Galvan

Court of Appeals of Texas, Fourteenth District, Houston

January 28, 2014

MEMORIAL HERMANN HOSPITAL SYSTEM D/B/A MEMORIAL HERMANN SOUTHWEST HOSPITAL, Appellant
v.
SYLVIA GALVAN, Appellee

Petition for review filed by, 07/30/2014

Page 177

On Appeal from the 61st District Court, Harris County, Texas. Trial Court Cause No. 2012-52629.

For APPELLANT: Frank N. Luccia, Mary M. Wagner, HOUSTON, TX.

For APPELLEE: Ryan Blake Gross, HOUSTON, TX.

Panel consists of Chief Justice Frost and Justices Boyce and Busby. (Boyce, J., concurring).

OPINION

Kem Thompson Frost Chief Justice.

Page 178

The main issue in this appeal is whether a non-patient slip-and-fall claim against a hospital is a health care liability claim under the Texas Medical Liability Act. The appellant, a hospital, asserts it is. The appellee, a person allegedly injured while visiting a hospital patient, asserts it is not. When no expert report was timely served, the hospital moved the trial court to dismiss the claim with prejudice and to award the hospital reasonable attorney's fees and court costs. On interlocutory appeal from the trial court's denial of this motion, we hold that, under binding precedent from the Supreme Court of Texas and from this court, the plaintiff's silp-and-fall claim is a health care liability claim. Therefore, we reverse and remand with instructions that the trial court dismiss the claim with prejudice and award the hospital reasonable attorney's fees and court costs.

I. Factual and Procedural Background

According to her petition, appellee/plaintiff Sylvia Galvan sustained personal injuries as a result of a fall that occurred in a hallway at Memorial Hermann Southwest Hospital. Galvan alleges that, while visiting a relative who was a patient at the hospital, she slipped and fell on water in a hospital hallway. According to Galvan, the water was coming from a men's restroom. Galvan, who claims to have sustained injuries as a result of her slip and fall, filed suit against appellant/defendant Memorial Hermann Hospital System d/b/a Memorial Hermann Southwest Hospital (hereinafter the " Hospital" ) asserting a slip-and-fall negligence claim against it as owner of the premises where the slip and fall occurred. In its original answer, the Hospital invoked the protections of subchapter G of chapter 74 of the Texas Civil Practice and Remedies Code, which applies to health care liability claims. Galvan did not serve any document on the Hospital to satisfy the expert-report requirements of Texas Civil Practice and Remedies Code section 74.351.[1]

The Hospital then filed a motion to dismiss under section 74.351(b), asserting that Galvan's claim is a health care liability claim, and that she failed to timely serve any export report in an attempt to comply with section 74.351(a). Therefore, the Hospital asked the trial court to dismiss Galvan's claim with prejudice and to award the hospital reasonable attorney's fees and court costs, as provided under section 74.351(b).

In response, Galvan pointed out that at the time of the occurrence made the basis of her claim, she was not a patient of the Hospital or on its premises seeking to become a patient; rather, she was visiting a relative who was a hospital patient. Galvan argued that she was not required to file an expert report under section 74.351(a) because her slip-and-fall claim is not a heath care liability claim. In the alternative, Galvan argued that, even if she is asserting a heath care liability claim, Chapter 74 should be interpreted so as not to impose any obligation on her to file an expert report under section 74.351(a).

Page 179

The trial court denied the Hospital's motion to dismiss, and the Hospital timely perfected this interlocutory appeal from the trial court's order.[2]

II. Issues and Analysis

In its first issue, the Hospital asserts that the trial court erred by denying its motion to dismiss because Galvan is asserting a heath care liability claim and she failed to timely serve an expert report as required by section 74.351(a). In its second issue, the Hospital asserts that every claimant asserting a heath care liability claim must serve an expert report under section 74.351(a) and that the trial court erred to the extent it held that Galvan need not serve an export report even if her claim is a heath care liability claim. Under its third issue, the Hospital asserts that the trial court erred by failing to award the Hospital reasonable attorney's fees and court costs.

Generally, we review a trial court's order granting or denying a section 74.351(b) motion under an abuse-of-discretion standard. See Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011); Wasserman v. Gugel, No. 14-09-00450-CV, 2010 Tex.App. LEXIS 3749, 2010 WL 1992622, at *2 (Tex.App.--Houston [14th Dist.] May 20, 2010, pet. denied) (mem. op.). But, when the issue presented requires statutory interpretation or a determination of whether Chapter 74 applies to a claim, that is a question of law to which we apply a de novo standard of review. See Stockton, 336 S.W.3d at 615; Wasserman, 2010 Tex.App. LEXIS 3749, 2010 WL 1992622, at *2.

A. Is the plaintiff asserting a health care liability claim?

To be subject to section 74.351, a claim must be a health care liability claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2014). This term has the following statutory definition:

" Health care liability claim" means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.

Id. § 74.001(a)(13) (West 2014).

There are three basic elements of a health care liability claim: (1) a physician or health care provider must be a defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's act or omission of which the claimant complains allegedly must have been the proximate cause of injury to the claimant. See Psychiatric Solutions, Inc. v. Palit, No. 12-0388, 414 S.W.3d 724, 726, 2013 Tex. LEXIS 598, *4, 2013 WL 4493118, at *2 (Tex. Aug. 23, 2013). The Hospital is the defendant and a health care provider. See id . ยง 74.001(a)(11), (12). Galvan alleges that the Hospital's acts or omissions proximately caused her injury. Thus, only the second element is at issue. Furthermore, the Hospital does not contend that Galvan's claim concerns ...


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