Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 236th District Court Tarrant County, Texas
Trial Court No. 236-296553-17
Sudderth, C.J.; Gabriel and Womack, JJ.
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
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). 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,  who was alleged to be an
employee or agent of Careflite, was scheduled to pick up
Taylor at Baylor on December 5, 2015.
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.
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
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.
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."
April 17, 2018, Taylor filed his "Plaintiffs Amended
Notice of Filing Amended Expert Report Pursuant to Tex. Civ.
Prac. & Rem. Code 74.351(a)."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.
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).
Objections and Motion to Dismiss
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."
Response to Objections and Motion to Dismiss
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."
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
The Trial Court's Ruling
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. Thereafter, Careflite and Taton filed this
Law Governing ...