Court of Appeals of Texas, Second District, Fort Worth
D.A. AND M.A., INDIVIDUALLY AND AS NEXT FRIENDS OF A.A., A MINOR APPELLANTS
TEXAS HEALTH PRESBYTERIAN HOSPITAL OF DENTON, MARC WILSON, M.D., AND ALLIANCE OB/GYN SPECIALISTS, PLLC D/B/A/ OB/GYN SPECIALISTS, PLLC APPELLEES
THE 442ND DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO.
MEIER, GABRIEL, and SUDDERTH, JJ.
D.A. and M.A. bring this interlocutory appeal challenging the
trial court's grant of summary judgment in favor of
Appellees Texas Health Presbyterian Hospital of Denton (THP),
Marc Wilson, M.D., and Alliance OB/GYN Specialists, PLLC
d/b/a OB/GYN Specialists, PLLC. We granted permission to
appeal on a single issue-whether civil practice and remedies
code section 74.153 applies to medical care provided in an
obstetrical unit without the patient having first been
evaluated in a hospital emergency department. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.153 (West
2011). In reversing the judgment below, we hold that it does
child, A.A., suffered a brachial plexus injury during labor
and delivery when the infant's shoulder became lodged
against M.A.'s pubic symphysis bone, resulting in a
condition known as "shoulder dystocia." The night
before A.A. was born, M.A. checked into THP for an elective
induction of labor. The next morning, Wilson prescribed the
administration of Pitocin to begin M.A.'s contractions,
and he monitored her labor progression throughout the
remainder of the day. Nothing occurred that caused Wilson to
believe that either M.A. or A.A. was facing an emergency
situation until later that evening when A.A.'s progress
in descending from M.A.'s pelvis ceased. Although Wilson
applied forceps to deliver A.A.'s head, the rest of the
infant's body did not follow.
point Wilson recognized the shoulder dystocia and began
maneuvers to release the shoulder and deliver the infant.
Both sides agree that A.A.'s shoulder dystocia presented
an emergent situation that placed both M.A. and A.A. at risk
for injury or death if the infant could not be quickly
extricated from that position. And while neither side
disputes that A.A. suffered a brachial plexus injury, the
parties disagree as to whether Appellees' conduct caused
the injury or whether A.A.'s injury would have occurred
despite the medical care provided during delivery.
the ordinary negligence claims filed against them in the
medical malpractice lawsuit that ensued, Appellees sought
summary judgment, arguing that since the allegations levied
against them are governed by civil practice and remedies code
section 74.153, Appellants must prove negligence by a willful
and wanton standard. See id. That statute provides,
In a suit involving a health care liability claim against a
physician or health care provider for injury to or death of a
patient arising out of the provision of emergency medical
care in a hospital emergency department or obstetrical unit
or in a surgical suite immediately following the evaluation
or treatment of a patient in a hospital emergency
department, the claimant bringing the suit may prove
that the treatment or lack of treatment by the physician or
health care provider departed from the accepted standards of
medical care or health care only if the claimant shows by a
preponderance of the evidence that the physician or health
care provider, with wilful and wanton negligence, deviated
from the degree of care and skill that is reasonably expected
of an ordinarily prudent physician or health care provider in
the same or similar circumstances.
Id. (emphases added).
trial court agreed with Appellees and granted summary
judgment on Appellants' claims of ordinary negligence,
ruling that section 74.153 applies to medical care performed
in an obstetrical unit and that Appellants must prove their
claims against Appellees under a "wilful and wanton
negligence" standard. Appellants filed a petition for
permission to appeal this interlocutory judgment,
we granted permission to appeal on the question of whether
section 74.153 applies to medical care provided in an
obstetrical unit without the patient's first having been
evaluated in a hospital emergency department. See
Tex. R. App. P. 28.3.
Standard of Review
review matters of statutory interpretation de novo. Tex.
W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex.
2012). And while the primary objective of statutory
interpretation is to "ascertain and effectuate the
Legislature's intent, " the supreme court instructs
us that the source for legislative intent is found, whenever
possible, in the plain language of the statute itself.
Janvey v. Golf Channel, Inc., 487 S.W.3d 560, 572
(Tex. 2016). As the supreme court has further instructed us,
when a statute's words "yield a single inescapable
interpretation, " our inquiry ends. Alex Sheshunoff
Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651-52
(Tex. 2006). That is, we do not resort to extrinsic aids to
interpret a statute that is clear and unambiguous.
Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex.
2016). But when a statute is ambiguous, we must resort to
rules of construction or extrinsic aids. Greater Houston
P'ship v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015).
Is the Statute Ambiguous?
Identifying the Relationship Between the Statute's
appeal we are asked to consider the relationship between the
phrase "immediately following the evaluation or
treatment of a patient in a hospital emergency
department" (hereinafter "Evaluation or Treatment
Phrase") and two other phrases, "in a hospital
emergency department or obstetrical unit" and "in a
surgical suite" that appear in section 74.153.
See Tex. Civ. Prac. & Rem. Code Ann. §
74.153. As presented and briefed by the parties, the question
before us is: To which location (or locations) does the
Evaluation or Treatment Phrase apply? Surgical suites?
Obstetrical units? Hospital emergency departments? Or all
Evaluation or Treatment Phrase applies only to surgical
suites, as Appellees argue, then the emergency medical care
provided to A.A. is subject to section 74.153 because
emergency care provided in an obstetrical unit-where A.A.
received emergency care-need not immediately follow
evaluation or treatment in the hospital emergency department
to trigger the statute. If, however, the phrase applies to
obstetrical units, as Appellants argue, then the emergency
medical care provided to A.A. does not invoke section 74.153
because it was not provided immediately following evaluation
or treatment in the hospital emergency department.
Grammar and Usage
examining statutory text, the Code Construction Act mandates
that we read words and phrases in context and construe them
according to the rules of grammar and usage. Tex. Gov't
Code Ann. § 311.011(a) (West 2013) (providing that
"[w]ords and phrases shall be read in context and
construed according to the rules of grammar . . . .");
see Entergy Gulf States, Inc. v. Summers, 282 S.W.3d
433, 437 (Tex. 2009) (op. on reh'g) ("Only when
those words are ambiguous do we 'resort to rules of
construction or extrinsic aids.'" (quoting In re
Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007))).
is an intrinsic aid, not an extrinsic aid. See Larry
M. Eig, Congressional Research Service, 97-589, Statutory
Interpretation: General Principles and Recent Trends 4-5, 12
(2011) (defining "language" canons of construction
as "neutral, analytical guides for discerning the
meaning of particular text, " including the rules of
grammar among the "language" canons, and stating
that "the language canons are intrinsic aids
only"), https://fas.org/sgp/crs/misc/97-589.pdf. And
while the supreme court directs us not to resort to the use
of extrinsic aids when construing an unambiguous statute, we
have been instructed that grammar should be used,
because an interpretation that "turns grammar on its
head" will not support a claim of ambiguity since it is
not a reasonable interpretation. Wellington Underwriting
Agencies Ltd. v. Houston Expl. Co., 267 S.W.3d 277, 288
(Tex. App.-Houston [14th Dist.] 2008), aff'd,
352 S.W.3d 462 (Tex. 2011). Therefore, when considering
whether this statute is subject to more than one reasonable
interpretation, we first apply the rules of grammar to see if
more than one reasonable interpretation would comport with
the rules of language that govern us. If the statute is ambiguous
under the rules of grammar, then we turn to the extrinsic
tools created to assist in construing ambiguous language.
See Entergy Gulf States, Inc., 282 S.W.3d at
Grammatical Rules Applicable to Words and Phrases
analyze the statute before us, we must consider the roles of
the various phrases in use; specifically, participial phrases
and prepositional phrases. A brief primer on the pertinent parts
of speech is helpful in this pursuit.
are words that name persons, places, and things.
Webster's New World, supra note 3, at
7. Verbs are words that express an act, an occurrence, or a
state of being-that is, one cannot do or be anything without
them. Id. at 45.
becomes more complex when modifiers are added. A modifier is
"a word that describes or limits another word, "
and, depending upon what kind of word it modifies, it can be
either an adjective or an adverb. Id. at 85. An
adjective "describes or limits a noun or pronoun, "
placing restrictions on any noun with which it associates.
Id. Adjectives usually answer which,
what kind, or how many. Id. An
adverb, on the other hand, generally modifies a verb, an
adjective, or another adverb, but may also modify other
words, including prepositions. Id. at 95. Adverbs
most often describe when, where,
why, and how. Id.
of words-may also act as modifiers. For purposes of our
analysis here, we must examine two types of phrases.
participial phrase is a phrase that is introduced with a
participle. Id. at 86, 213. A participle is a word
that "combines characteristics of a verb with those of
an adjective" by taking the base form of a verb, such as
"arise, " and adding -ing to the end. Id. at
32, 213, 368. Participial phrases function exactly as
adjectives function-they describe or limit a noun or pronoun,
often answering which, what kind, or
how many. Id. at 86, 213.
prepositional phrase combines a preposition and its object
and may include other words that pattern with the object.
Id. at 109, 369. Prepositions may appear as a single
word-in, to, from, with,
for example-or a collection of words- such as by way
of, with regard to, in comparison
with, and in case of. To complicate matters,
certain participles-assuming, including,
regarding, and following, for example-also
function as prepositions. Id. at 112. When
participles function as prepositions, they are referred to as
participial prepositions. Id.
prepositional phrase as a whole may function as an adjective
or an adverb, depending upon how the phrase modifies a
particular word. If the prepositional phrase describes or
limits a noun, it serves as an adjective and is categorized
as an adjectival prepositional phrase. Id. at 200.
If, on the other hand, the prepositional phrase modifies a
verb, adjective, adverb, or another prepositional phrase, it
functions as an adverb and is referred to as an adverbial
prepositional phrase. Id.
statutory language in dispute begins with the phrase
"arising out of the provision of emergency medical
In a suit . . . arising out of the provision of
emergency medical care in a hospital emergency
department or obstetrical unit or in a surgical suite
immediately following the evaluation or treatment of a
patient in a hospital emergency department . . . .
Civ. Prac. & Rem. Code Ann. § 74.153 (emphasis
added). The bold-face phrase is a participial phrase whose
function is to act as an ...