Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
RAMONA ROGERS, M.D., MODESTO ZAMBRANO, STEPHANIE CUMPIAN, ROLANDO FLORES, HECTOR ONTIVEROS, PRISCILLA NIETO, SONIA HERNANDEZ-KEEBLE, BLAS ORTIZ JR., DAVID MORON, M.D., JAIME FLORES AND RIO GRANDE STATE CENTER, Appellants,
DAVID SAXON BAGLEY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF JEREMIAH RAY BAGLEY, Appellee.
appeal from the 444th District Court of Cameron County,
Chief Justice Contreras and Justices Rodriguez and Benavides
M. BENAVIDES, JUSTICE
question before us is whether a civil rights claim brought
under 42 U.S.C. § 1983 that alleges excessive force
against health care providers and a state hospital is subject
to the expert report requirement of § 74.351 of the
civil practice and remedies code See 42 U.S.C.
§ 1983; Tex. Civ. Prac. & Rem. Code Ann. §
74.351. Appellee David Saxon Bagley, individually and as
representative of the estate of Joshua Ray Bagley, sued the
Rio Grande State Center (RGSC) and a number of its employees
for the death of his son Joshua who died after he was
physically restrained at RGSC by RGSC staff.
Ramona Rogers, M.D., Modesto Zambrano, Stephanie Cumpian,
Rolando Flores, Hector Ontiveros, Priscilla Nieto, Sonia
Hernandez-Keeble, Blas Ortiz Jr., David Moron, M.D., Jaime
Flores, and RGSC, argue that Bagley's claims are
healthcare liability claims (HCLCs) that must be dismissed
for Bagley's failure to file an expert report pursuant to
§ 74.351(b). See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351. By two issues, appellants appeal the
trial court's denial of their motions to dismiss
Bagley's claims Id. We affirm.
was a 37-year-old man with mental health issues who was
involuntarily committed to RGSC for several months before he
died. On February 7, 2015, Joshua allegedly struck a staff
member who was assigned to monitor him. Immediately after,
five other staff members forcibly restrained Joshua. In doing
so, they tackled him and pinned him to the floor for
approximately ten minutes. While he was restrained, a staff
member forcibly administered an injection to calm Joshua.
After Joshua was released from restraint, he returned to his
room but was disoriented and unsteady. Joshua went into
cardiac arrest shortly thereafter. RGSC staff performed CPR
and called EMS. Joshua was pronounced dead at the hospital
autopsy reflected numerous injuries. He was bruised; his
thoracic spinous processes at T-2 through T-7 were fractured;
aspects of his right ribs 4 through 9 were fractured and
displaced; aspects of his left ribs 8 through 10 were
fractured and displaced, resulting in laceration of the
parietal pleura; both lungs were lacerated; his spleen was
lacerated; and he had blood in his pleural and peritoneal
cavities. The medical examiner reported Joshua's cause of
death to be "excited delirium due to psychosis with
restraint-associated blunt force trauma."
original petition asserted negligence under the Texas Tort
Claims Act (TTCA), and civil rights claims pursuant to
§§ 1983 and 1988. See 42 U.S.C.
§§ 1983, 1988; Tex. Civ. Prac. & Rem. Code Ann.
ch. 101. Bagley filed a first amended petition before any of
the defendants filed answers and again asserted negligence
claims under the TTCA and civil rights claims. See
42 U.S.C. §§ 1983, 1988; Tex. Civ. Prac. & Rem.
Code Ann. ch. 101.
responded to the suit with general denials, asserted
application of Texas civil practice and remedies code
chapters 74 and 108, official immunity, and sought dismissal
pursuant to § 101.106(e) of the civil practice and
remedies code. See Tex. Civ. Prac. & Rem. Code
Ann. chs. 74, 108, § 101.106(e).
also filed a motion to dismiss for Bagley's failure to
serve expert reports in August 2017. See id. §
74.351(b). Appellants argued that Bagley's claims
constituted HCLCs. Bagley responded that § 74.351 did
not apply because he sought relief under the civil rights
statute § 1983 for excessive force. In response, Bagley
attached the autopsy report, Joshua's death certificate,
and the report of the Office of Inspector General from the
Texas Health and Human Services which concluded that RGSC
employees used improper restraint techniques.
trial court held a non-evidentiary hearing during which
Bagley orally nonsuited RGSC. On January 30, 2018, Bagley
filed his fourth amended petition that nonsuited RGSC and all
non-constitutional claims from this action. The trial court
denied the motion to dismiss on January 30, 2018. Appellants
filed this interlocutory appeal. See id. §
first determine whether RGSC is a proper party to the appeal.
Bagley non-suited his claims against RGSC which was no longer
a party at the time the motion to dismiss was denied or when
the notice of interlocutory appeal was filed. RGSC argues
that its motion to dismiss sought dismissal with prejudice
and an award of mandatory reasonable attorneys' fees and
costs before the nonsuit, and therefore its claim for
dismissal, costs, and fees survived the nonsuit. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b).
the Texas Rules of Civil Procedure, [a]t any time before the
plaintiff has introduced all of his evidence other than
rebuttal evidence, the plaintiff may dismiss a case, or take
a non-suit, which shall be entered in the minutes."
Univ. of Tex. Med. Branch at Galveston v. Estate of
Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006)
(quoting Tex.R.Civ.P. 162). However, a nonsuit or dismissal
"shall have no effect on any motion for sanctions,
attorney's fees or other costs, pending at the time of
dismissal . . . ." Tex.R.Civ.P. 162; see Villafani
v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008); Fulp v.
Miller, 286 S.W.3d 501, 509 (Tex. App.-Corpus
Christi-Edinburg 2009, no pet.) (holding that a motion to
dismiss pursuant to § 74.351(b) constitutes a motion for
sanctions). Accordingly, we hold that RGSC may properly
appeal the trial court's failure to grant its motion to
dismiss with prejudice and failure to award attorneys'
fees and costs.
Health Care Liability Claims
their first issue, appellants argue that Bagley's claims
are HCLCs. See Tex. Civ. Prac. & Rem. Code Ann.
ch. 74. "Determining whether claims are HCLCs requires
courts to construe the TMLA [Chapter 74]. We review issues of
statutory interpretation de novo." Loaisiga v.
Cerda, 379 S.W.3d 248, 254-55 (Tex. 2012).
to the statutory definition, a lawsuit is a HCLC if it has
the following three elements: (1) the defendant is a health
care provider or physician; (2) the claimant's cause of
action is for treatment, lack of treatment, or other claimed
departure from accepted standards of medical care, health
care, or safety or professional or administrative services
directly related to health care; and (3) the defendant's
alleged departure from accepted standards proximately caused
the claimant's injury or death. Tex. Civ. Prac. &
Rem. Code § 74.001(a)(13); see Loaisiga. 379
S.W.3d at 255.
a state hospital that provides inpatient and outpatient
mental health services and is defined to be a health care
institution. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.001(a)(11). A health care provider is defined
as any employee of a health care provider or health care
institution. Id. § 74.001(a)(12)(B)(ii).
Bagley's claims meet the first of the three-part test of
a HCLC; they are against healthcare providers, a healthcare
institution, and physicians.
second part is whether Bagley's claims are for a
departure from accepted standards related to health care.
See id. § 74.001(a)(13). Bagley asserts that
the staff used excessive force in restraining his son.
Analysis of the cause of action "focuses on the facts
underlying the claim, not the form of, or artfully-phrased
language in, the plaintiff's pleadings describing the
facts or legal theories asserted." Loaisiga,
379 S.W.3d at 255. Thus,
claims premised on facts that could support claims against a
physician or health care provider for departures from
accepted standards of medical care, health care, or safety .
. . directly related to health care are HCLCs, regardless of
whether the plaintiff ...