Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Taton v. Taylor

Court of Appeals of Texas, Second District, Fort Worth

June 27, 2019

Careflite and Nathan Taton, Appellants
v.
Jerold Taylor, Appellee

          On Appeal from the 236th District Court Tarrant County, Texas Trial Court No. 236-296553-17

          Before Sudderth, C.J.; Gabriel and Womack, JJ.

          MEMORANDUM OPINION

          Dana Womack, Justice.

         I. Introduction

         Appellants, Careflite and Nathan Taton, bring this interlocutory appeal from the trial court's order denying their motion to dismiss the claim Appellee Jerold Taylor has asserted against them. In a single issue, Careflite and Taton contend that Taylor's claims against them are health care liability claims governed by Texas Civil Practice and Remedies Code chapter 74 and that Taylor failed to comply with chapter 74's expert report requirements. We agree with Careflite and Taton and reverse the trial court's order denying their motion to dismiss and remand this case to the trial court for further proceedings in accordance with this opinion.

         II. Background

         A. Pleadings

         On November 28, 2017, Taylor filed his original petition against Careflite and Taton as well as Baylor Scott & White Health d/b/a The Heart Hospital Baylor Denton (Baylor).[1] In the petition, Taylor alleges that he underwent a coronary artery bypass graft at Baylor on December 1, 2015. Baylor arranged for Taylor to be transferred to Select Rehab on December 5, 2015, for additional physical therapy and recovery. Careflite was hired to transport Taylor, and Taton, [2] who was alleged to be an employee or agent of Careflite, was scheduled to pick up Taylor at Baylor on December 5, 2015.

         According to the petition, Taylor was discharged from Baylor in a wheelchair, with his personal belongings placed in a plastic bag and hung on the back of the wheelchair. Careflite dispatched Taton to transport Taylor with a handicap accessible van. After accepting him into his care, Taton placed Taylor in his wheelchair in the vehicle. Taylor asserts that Taton failed to remove the bag of personal possessions from the back of the wheelchair and failed to use straps to secure the wheelchair in place or to secure Taylor in the wheelchair prior to transport. When Taton drove onto the highway, Taylor's wheelchair tipped over backward. Taylor allegedly struck his head and slid backward on the floor of the van.

         In his petition, Taylor alleges that Taton:

negligently, carelessly, and recklessly disregarded and breached his legal duty to exercise ordinary care in one or more of the following ways: (1)Failing to properly secure [Taylor's] wheelchair in the vehicle; (2)Failing to properly secure [Taylor] in the wheelchair for transport; (3)Failing to remove the bag of personal possession[s] hung on the back of the chair to ensure that the [wheelchair] was properly balanced for transport; (4) Failing to use a vehicle adequate to the needs of [Taylor] given his current health condition; and (5) Failing to operate the vehicle at a reasonably safe speed to ensure the safety of [Taylor] as his passenger.

         With regard to Careflite, Taylor asserts that it "had a duty to hire, supervise, train, and retain competent employees [, ]. . . [and] a duty to ensure that [Taton] was instructed in how to secure a wheelchair for transport, and how to drive a vehicle with a wheelchair in it without the wheelchair tipping over backwards." In addition, Taylor alleged that Careflite "had a duty to ensure that [Taton] was securing wheelchairs and passengers appropriately for transport and following proper safety guidelines for the transport of patients in wheelchairs." In addition to stating that Careflite was vicariously liable for the actions of Taton "under the doctrine of Respondeat Superior'7 Taylor contended that the negligence of Careflite, Taton and Baylor "separately and/or collectively" constituted a direct and proximate cause of his injuries and damages.

         Careflite and Taton responded with their answer on January 8, 2018, which included a general denial and numerous affirmative defenses. They specifically "invoke[d] their right to rely on all defenses, protections, provisions, and limitations authorized by Texas Civil Practice & Remedies Code, Chapter 74, Subchapter G, in full."

         B. Expert Report

         On April 17, 2018, Taylor filed his "Plaintiffs Amended Notice of Filing Amended Expert Report Pursuant to Tex. Civ. Prac. & Rem. Code 74.351(a)."[3]Attached to the filing were the report and credentials of Robert C. Krause, M.S., EMT-P. Krause is a licensed paramedic. Krause's report is four pages, and his credentials cover ten pages.

         After setting out his credentials and some background facts in the report, Krause states his "opinion" as follows:

The care and transport of a patient safely and securely is a fundamental function of a medical transport company. A fundamental standard of care in healthcare is to do no harm. The phrase is sometimes recorded as primum nil nocere. Non-maleficence, which is derived from the maxim, is one of the principal precepts of bioethics of all healthcare providers and is a fundamental principle throughout the world. Failing to properly secure both the patient and the conveyance device, in this case a wheelchair, is below the standard of care of ensuring safe transportation. The expectation is a patient such as Mr. Taylor |] is transported safely, without falling or being toppled out of their [wheelchair] while in a moving vehicle. Falling backwards in a wheelchair |] while in the wheelchair van is unacceptable and falls below the standard of care of ensuring safe transportation. Section 37.173 of the DOT ADA regulations requires operators to train their personnel to properly assist and treat individuals with disabilities with sensitivity[] and to operate vehicles and equipment safely. Failing to properly secure both the wheelchair and Mr. Taylor with the use of a lap belt and shoulder belt is below the standard of care of ensuring safe transportation. Section 38.23(d) of the DOT ADA regulations requires all ADA-compliant buses and vans to have a two-part securement system, one to secure the wheelchair, and a seat belt and shoulder harness for the wheelchair user. The Careflite driver, Nathan Taton, failed to ensure Mr. Taylor was safely secured to the wheelchair and the wheelchair van, and as a result of his failures, Mr. Taylor flipped over backwards while being transported. This carelessness and inattention to detail for the safety and security of Mr. Taylor, on the part of Nathan Taton [, ] resulted in an additional visit to an emergency department for Mr. Taylor. It is my opinion this fall was foreseeable (not securing a wheelchair could fall) and preventable (properly securing [wheelchair] would have prevented the flipping backwards).

         C. Objections and Motion to Dismiss

         In response, Careflite and Taton filed their objections to the amended report on May 8, 2018, and their motion to dismiss on May 10, 2018. In the motion, they argue that Taylor "wholly ignored the critical statutory requirement to serve a report that addressed the issue of causation." Careflite and Taton contend that "a licensed physician who is otherwise qualified under the rules of evidence must opine on the issue of causation." In addition, they urge that "[n]on-physician emergency medical technicians, paramedics, and registered nurses are statutorily disqualified from offering such opinions."[4]

         D. Response to Objections and Motion to Dismiss

         In his response to the objections, Taylor makes two arguments. First, Taylor contends that "this is a general negligence or safety standards based claim" and does not fall within the purview of section 74.351. Tex. Civ. Prac. & Rem. Code Ann. § 74.351. He argues that he should not be held to a higher burden to provide an expert report simply because Careflite and Taton are healthcare providers; the standard should be no higher than it would be if "the transportation was on a city bus, taxicab, or ride share operator, like Uber or Lyft."

         Second, he argues that the medical records should be considered in addition to the report by Krause. According to Taylor, his treating physician, Dr. James Guess, states multiple times in his records that the "[m]echanism of injury is as he was sitting in his wheelchair[, ] it turned over." Therefore, Taylor contends that, in determining whether he complied with the reporting requirements of section 74.351, the court can also consider Taylor's other medical records.

         E. The Trial Court's Ruling

         On September 7, 2018, the trial court held a hearing on the objections to Krause's report and motion to dismiss. At the conclusion of the hearing, the trial court stated that the expert report was "sufficient against Careflite." On November 2, 2018, the trial court signed an order denying the motion to dismiss and overruling the objections to the expert report of Krause as to Careflite and Taton.[5] Thereafter, Careflite and Taton filed this interlocutory appeal.

         III. Discussion

         A. Law Governing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.