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Southeast Texas Cardiology Associates v. Smith

Court of Appeals of Texas, Ninth District, Beaumont

July 11, 2019


          Submitted on March 1, 2019

          On Appeal from the 60th District Court Jefferson County, Texas Trial Cause No. B-201, 280

          Before McKeithen, C.J., Horton and Johnson, JJ.



         In this interlocutory appeal, we are asked to decide whether the trial court erred by denying a health care provider's motion to dismiss the wrongful death and survival claims of Doris Smith and the Estate of Gill Smith. Doris, individually, and as representative of the Estate of Gill Smith, sued Southeast Texas Cardiology Associates (S.E.T. Cardiology) after Gill tripped over a weight scale at S.E.T. Cardiology's offices, broke his hip, and, over one year later, died. In its appeal, S.E.T. Cardiology argues Doris failed to file an expert report to support her claims as required by the Texas Medical Liability Act ("the Act").[1] Doris, however, argues her claims are premises liability claims, not health care liability claims, and thus not subject to the Act.

         We conclude Doris's claims are health care liability claims. As such, they are subject to the expert report requirements of the Act. Because the Act required that Doris file an expert report, we reverse the order denying S.E.T. Cardiology's motion to dismiss. We remand the case to the trial court for an order dismissing the claims against S.E.T. Cardiology with prejudice.[2] On remand, the trial court must conduct a hearing and award S.E.T. Cardiology reasonable attorney's fees and costs.[3]


         In March 2016, Gill Smith saw his doctor for a checkup at S.E.T. Cardiology's office in Beaumont. Gill's doctor saw him in one of the rooms S.E.T. Cardiology uses to examine their patients. After the examination, a nurse, employed by S.E.T. Cardiology, escorted Gill from the room toward the door leading to the patient lobby. Just after leaving the examination room, and before entering the patient lobby, Gill tripped over a weight scale positioned just outside the room where he saw his doctor. After Gill fell, Gill's doctor called an ambulance. The ambulance took Gill to the hospital where he underwent a hip surgery due to his fall. On May 12, 2017, Gill died from complications that Doris's petition claims are related to the injuries Gill suffered in his fall.

         In February 2018, Doris sued S.E.T. Cardiology for claims arising under the Texas wrongful death and survival statues.[4] In her petition, she alleged S.E.T. Cardiology "negligently permitted the area in question to become hazardous and dangerous, negligently or willfully allowed such condition to continue and negligently or willfully failed to warn [Gill] of the condition of the area in question." In March 2018, S.E.T. Cardiology answered the suit. After S.E.T. Cardiology answered, Doris did not file a report from an expert addressing how S.E.T. Cardiology violated the standard of care that applied to its decision about where to place the weight scale.

         In August 2018, and more than 120 days after filing its answer, S.E.T. Cardiology moved to dismiss Doris's suit based on her failure to comply with the expert report requirements in the Act.[5] In its motion, S.E.T. Cardiology argued that while Doris characterized her claims as premises liability claims, they were instead health care liability claims, making them subject to the expert report requirements of the Act.[6] When Doris responded to S.E.T. Cardiology's motion, she argued she was not asserting health care liability claims because her claims implicated only S.E.T. Cardiology's duties as the owner of the premises where Gill fell. Doris claims that Gill's fall is unrelated to his medical treatment. After conducting a hearing on S.E.T. Cardiology's motion to dismiss, the trial court denied its motion.

         Standard of Review

         Here, the question we must decide is whether Doris's wrongful death and survival claims are subject to the expert report requirements of the Act. Because the claims the Legislature intended to include within the reach of the Act raise questions of statutory construction, the issue is a legal question subject to a de novo standard of review.[7] When determining whether a plaintiff's claim is a health care liability claim subject to the Act, we must "consider the entire record before the trial court and the overall context of the plaintiffs' suit, including the nature of the factual allegations in their pleadings, [the health care provider's] contentions, and the motions to dismiss and responses."[8]


         Section 74.351 of the Act requires a plaintiff pursuing health care liability claims to serve a timely report from an expert on each of the health care providers the plaintiff sued.[9] The report must contain the expert's opinions "regarding applicable standards of care, the manner in which the care rendered by the . . . health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed."[10] The report must be filed within a 120-day deadline; if no report is filed within that period, the Act requires the trial court to grant the health care provider's motion and dismiss the health care provider from the suit.[11] That said, a plaintiff need not serve the health care provider with an expert report if the claims are not health care liability claims under the Act.[12]

         We consider three basic elements in determining whether a plaintiff's claims are health care liability claims:

(1) a physician or health care provider must be a defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's act or omission complained of must proximately cause the injury to the claimant.[13]

         Doris argues she did not file claims falling within the purview of the Act because no substantive nexus exists between the safety standards S.E.T. Cardiology violated and the care that S.E.T. Cardiology provided Gill. Doris suggests that when her case goes to trial, the testimony she plans to elicit from S.E.T. Cardiology's employees and agents "will primarily fall on their general knowledge and observations when monitoring a common pathway used by many persons when entering and exiting their office" since S.E.T. Cardiology did not restrict the area solely to its patients. Doris notes that a patient's family members are sometimes allowed to accompany a patient to the room where the examination occurs. She concludes that "[j]ust because [Gill] tripped over a piece of equipment owned by [S.E.T. Cardiology, "] that fact does not make her wrongful death and survival claims health care liability claims.

         Claims alleging that a health care provider violated a safety standard are not health care liability claims unless a "substantive nexus [exists] between the safety standards allegedly violated and the provision of health care."[14] To determine whether Doris sued S.E.T. Cardiology on claims classified as health care liability claims, we apply the framework established by the Texas Supreme Court in Ross v. St. Luke's Episcopal Hospital.[15] We rely on the definition the Legislature gave to the term "health care" in the Act, which defines "[h]ealth care" as "any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement."[16] The Act, however, does not define the word "safety." The Texas Supreme Court has applied "safety's" commonly understood meaning, which the Court stated is "the condition of being 'untouched by danger; not exposed to danger; secure from danger, harm or loss.'"[17] The Ross Court explained that while the line between what does and does not fall within the coverage of the Act is not always clear when the injury is one that could have occurred outside a health facility, "[t]he pivotal issue in a safety standards-based claim is whether the standards on which the claim is based implicate the defendant's duties as a health care provider, including its duties to provide for patient safety."[18] In Ross, the court held the case fell outside the coverage of the Act because (1) the plaintiff did not fall in an ...

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