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Ortiz v. St. Teresa Nursing And Rehabilitation Center, LLC

Court of Appeals of Texas, Eighth District, El Paso

May 31, 2019


          Appeal from 384th District Court of El Paso County, Texas (TC # 2015DCV0662)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.



         A nursing home filed suit to collect an unpaid bill from a former resident. The resident counterclaimed, asserting that the nursing home's substandard care resulted in her falling several times with resultant injury. The nursing home responded that the counterclaim was a "healthcare liability claim" which procedurally required the resident to file a timely expert report. The trial court agreed and based on the resident's failure to file an expert report, dismissed the counterclaim. The trial court also awarded attorney's fees against the resident's attorneys as a sanction for filing groundless pleadings. We affirm those rulings.


         On December 13, 2013, Mary Lou Ortiz was admitted to St. Teresa Nursing and Rehabilitation Center (St. Teresa). Prior to admission, she had signed an admission agreement that required her to pay any charges that were not reimbursed through any government assistance program available to her. Joanne Ortiz, Mary Lou's daughter, guaranteed the payment of those same charges. During the six-months that she resided at St. Teresa, Mary Lou incurred $7, 450.00 in unreimbursed nursing care and supply charges. When she did not pay for those charges, St. Teresa sued both Mary Lou and Joanne Ortiz under breach of contract and quantum meruit theories.

         Mary Lou, along with Joanne and Jesus Ortiz (identified as next of kin) answered and filed a counterclaim on April 20, 2015. The counterclaim alleged that St. Teresa allowed Mary Lou to "fall multiple times, because she was unattended and unsupervised" by the staff, resulting in "severe physical injuries and emotional, mental anguish to herself and her family." The counterclaim alleged St. Teresa breached the duty of care that a nursing home or long-term care facility would have owed under the same or similar circumstances. Specific acts of negligence included the failure to maintain a proper staff to resident ratio, failure to train the staff, and neglecting Mary Lou's care while it knew of "her medical need[s.]" Almost a year later, the Ortizes filed an amended counterclaim that added John and Jane Doe doctors, nurses, technicians, CNAs, and paramedic employees. The amended petition also fleshed out the factual allegations and the claims being asserted. The pleading asserts that Mary Lou, aged 72 on the date of her admission, had a medical history of Parkinson's, cognitive decline, and osteoporosis. On admission she also had stage three pressure sores. St. Teresa was to provide her appropriate physical and occupational therapy, as well as wound care, and monitor her for Parkinson's related behavioral issues. The amended petition details three separate falls while she was at the facility. The counterclaim alleges that St. Teresa owed several duties, including the duty to evaluate Mary Lou's risk for falling and implement a plan to prevent falls. The counterclaim further alleges that in contravention of the treatment plan, St. Teresa staff left Mary Lou unattended for "extended periods of time while she was under their care." The counterclaim also asserted a negligence per se count premised on the violation of several administrative requirements applicable to nursing homes that accept Medicare or Medicaid eligible patients.

         On June 15, 2016, St. Teresa filed a motion to dismiss the counterclaim, alleging in part that it was a health care provider, that the counterclaim raised a health care liability claim, and that the Ortizes had never filed an expert report as required by Tex.Civ.Prac.&Rem.Code Ann. § 74.351(a)(requirement that an "expert report" must be served by the plaintiff within 120 days of when each defendant health care provider files an answer). The same day, St. Teresa filed a motion for summary judgment. That motion claimed that St. Teresa fully performed its obligations under the contract and that Mary Lou Ortiz failed to pay $7, 450 in charges, which Joanne Ortiz guaranteed. The motion also challenged the negligence and negligence per se counterclaim asserting there was no evidence of a legal duty owed, or breach of any such duty that proximately caused injury. The gist of that argument is that only an expert witness could create a fact issue on those elements and no expert report was ever filed in this case.

         St. Teresa's efforts to set its motion for summary judgment during the Fall of 2016 were met with several motions for continuance, all granted by the trial court. One basis for the continuances was an on-going discovery dispute. The Ortizes claimed they served discovery on St. Teresa that was not timely answered. St. Teresa contended it never received the discovery requests that were served via email. When it did respond to the discovery, St. Teresa answered only the questions germane to the breach of contract claim and it refused to answer those questions directed at the counterclaim. St. Teresa urged that absent a predicate expert report, it had no obligation to respond to discovery germane to a health care liability claim.

         The discovery issue was formally raised in a motion to compel. The trial court heard that motion on December 14, 2016 and concluded that the counterclaim was in fact a "health care liability claim" as defined by Section 74.001(a)(13). Because the Ortizes had failed to serve a medical authorization as required by Section 74.052(a), or an expert report as required by Section 74.351(a), it denied the motion to compel discovery.

         Soon after, St. Teresa filed a second motion to dismiss the counterclaim and a first amended motion for summary judgment. The motion to dismiss also included a claim for sanctions against the Ortizes' attorneys based on several pleadings they had filed.[1] After hearing those motions, the trial court disposed of the case in two orders. The first order granted St. Teresa's motion for summary judgment on its breach of contract and quantum meruit claims, awarding St Teresa $7, 450 in actual damages and $7, 500 in attorney's fees against the Ortizes. The second order dismissed the counterclaim because it alleged a health care liability claim and the Ortizes had failed to file an expert report. This order does not tax any attorney's fees against the Ortizes. Rather, it taxes $10, 000 in attorney's fees as sanctions against the Ortizes' attorneys under Tex.R.Civ.P. 13 and Tex.Civ.Prac.&Rem.Code Ann. § 10.001.[2] The order specifically recites that the Ortizes' motion to compel discovery responses, a June 28, 2016 motion for continuance of St. Teresa's motion for summary judgment, and a November 2, 2016 objection to the same motion were "groundless, brought in bad faith, and/or presented to the Court negligently or for an improper purpose." The Ortizes noticed an appeal only from this second order.


         The Ortizes bring three issues on appeal. In their first issue, they claim that trial court erred in granting summary judgment against their counterclaim, citing genuine issues of material fact and claimed deficiencies in St. Teresa's motion for summary judgment. Their second issue contends the trial court erred in concluding the counterclaim was a health care liability claim. In their third issue, they claim the trial erred in granting sanctions without an evidentiary hearing. For its part, St. Teresa claims this appeal is frivolous and that we should award "just sanctions."


         The Summary Judgment

         As we understand the Ortizes' first issue, they claim that St. Teresa's motion for summary judgment as to their counterclaim was deficient. St. Teresa filed an affirmative Rule 166a(a) motion in support of its own claim for relief, but also included a "no evidence" section attacking the counterclaim. That section generally alleged that the Ortizes had no evidence of duty, or breach of any duty, as those elements would need to be proven through expert testimony, for which the Ortizes had none. On appeal, the Ortizes contend that St. Teresa failed to identify each of their distinct claims and then allege which element lacked evidentiary support. See Tex.R.Civ.P. 166a(i)(permitting party to move for a no-evidence summary judgment "without presenting summary judgment evidence," but requiring the moving party to "state the elements as to which there is no evidence."). They also claim to have raised a genuine issue of material fact on any challenged element of their counterclaim.

         Whether St. Teresa's motion as to the counterclaim was sufficient or not is a moot point for two reasons. First and foremost, the trial court did not grant St. Teresa's motion for summary judgment as to the counterclaim. The order granting the motion for summary judgment only did so as to St. Teresa's affirmative claim for relief--the suit on the debt--and not on the counterclaim. Second, the Ortizes have not appealed the trial court's order on the summary judgment. The trial court entered two distinct orders--one granting the 166a(a) summary judgment and one order granting St. Teresa's "Motion to Dismiss Defendants'/Counter Plaintiffs' Counterclaims and Motion for Sanctions." The Ortizes' notice of appeal, and later filed amended notice of appeal, specifically named the second order as the one they are appealing. Absent some effort to further amend their notice of appeal, we are precluded from considering an appeal from an order never identified in the notice of appeal. See Tex.R.App.P. 25.1(b)("The filing of a notice of appeal by any party invokes the appellate court's jurisdiction over all parties to the trial court's judgment or order appealed from."). [Emphasis added]. See also Fain v. Georgen, No. 03-17-00313-CV, 2017 WL 4766654, at *3 (Tex.App.--Austin Oct. 19, 2017, no pet.) (mem. op.) (collecting cases for the proposition that a notice of appeal cannot be amended to challenge an "entirely different order than the one named in the notice").[3] Issue one is overruled.

         The Counterclaim

         The trial court did, however, dispose of the counterclaim based on the motion to dismiss, and the Ortizes did name that order in their notice of appeal. The sole basis for the trial court's dismissal is that the counterclaim asserts a health care liability claim under the Texas Medical Liability Act (TMLA) and the Ortizes failed to comply with the statutory predicates for such claims, including the filing a complaint expert report. In their second issue, the Ortizes challenge the trial court's characterization of all the counterclaims as health care liability claims. The scope of the TMLA is fundamentally a question of statutory construction, which as a legal question that we review de novo. Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012).[4]

         In general, the TMLA reflects "a careful balance between eradicating frivolous claims and preserving meritorious ones." Leland v. Brandal, 257 S.W.3d 204, 208 (Tex. 2008). As a part of that balance, the statute requires that a plaintiff asserting a "health care liability claim" must serve a compliant expert report within 120 days of when each defendant health care provider files an answer. Tex.Civ.Prac.&Rem.Code Ann. § 74.351(a). The report must distinctly address each health care defendant's breach of the standard of care and how that breach caused injury. Clapp v. Perez, 394 S.W.3d 254, 259 (Tex.App.--El Paso 2012, no pet.). The expert report requirement was intended as a "substantive hurdle for frivolous medical liability suits before litigation gets underway." Spectrum Healthcare Resources, Inc. v. McDaniel, 306 S.W.3d 249, 253 (Tex. 2010). Failure to file the report leaves the trial court no discretion--it must dismiss the claim with prejudice and award fees and costs. Tex.Civ.Prac.&Rem.Code Ann. § 74.351(b)(1)(2).

         The statute defines a "health care liability claim" as:

[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 ...

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