minnie-shelton-individually-and-as-representative-of-the-estate-of-annie ( 2009 )

Affirmed and Memorandum Opinion filed April 14, 2009

Affirmed and Memorandum Opinion filed April 14, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00994-CV

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MINNIE SHELTON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ANNIE MAE BROWN, Appellant

V.

THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON AND THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON D/B/A JOHN SEALY HOSPITAL, Appellees

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 07CV0106

M E M O R A N D U M   O P I N I O N

Appellant, Minnie Shelton, individually and as representative of the estate of Annie Mae Brown, filed suit against appellees, The University of Texas Medical Branch at Galveston and The University of Texas Medical Branch at Galveston d/b/a John Sealy Hospital ( collectively AUTMB@), ostensibly asserting causes of action for premises defect and negligent use of tangible personal property.  Arguing appellant actually was asserting a health care liability claim, UTMB moved to dismiss appellant=s lawsuit for failure to serve the required expert reports within 120 days of filing suit. The trial court granted UTMB=s motion and appellant appealed.  Finding no error, we affirm.

Factual and procedural background

On July 16, 2006, Annie Mae Brown, age 90, was admitted to UTMB=s John Sealy Hospital for medical care and treatment of a reoccurrence of vulvar cancer.  At the time she was admitted, Mrs. Brown was legally blind.  During her hospitalization, Mrs. Brown was assessed as a fall risk and assigned to a hospital bed equipped with side rails.  The side rails were for Mrs. Brown=s safety and part of her physician=s orders and hospital policy incorporated into her medical care and treatment while hospitalized.  On July 26, 2006, the side rails were down and Mrs. Brown allegedly attempted to get out of the bed and fell, injuring her femur.  Mrs. Brown died four months later, allegedly as a result of the injury  sustained in her fall. 

Appellant filed suit asserting UTMB is liable for Mrs. Brown=s injury and subsequent death.  Specifically, appellant alleges UTMB is liable because it failed to (1) follow Mrs. Brown=s physician=s orders regarding raising the bed rails on Mrs. Brown=s hospital bed, (2) provide a hospital bed with a bed alarm or bed pan, (3) provide adequate nursing staff, and (4) provide additional chemical or physical restraints to prevent Mrs. Brown from injuring herself.  Contending her claims concerned premises defect and negligent use of tangible personal property tort claims, appellant filed suit against UTMB pursuant to the common law and the Texas Tort Claims Act (ATTCA@) on April 5, 2007.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.001 et seq. (Vernon 2005).

After it answered appellant=s suit, UTMB filed a motion to dismiss pursuant to ' 74.351 of the Texas Civil Practice and Remedies Code.  In its motion to dismiss, UTMB asserted appellant=s suit must be dismissed with prejudice because appellant had not served the expert report and curriculum vitae required by ' 74.351 within the 120-day deadline.  Appellant filed multiple responses arguing the Medical Liability Act did not apply to her claims and, even if it did, the parties had agreed to extend the 120-day expert report deadline in an agreed docket control order.  Appellant also filed a motion seeking sanctions against UTMB for the filing of frivolous pleadings. Eventually, the trial court granted UTMB=s motion to dismiss and denied appellant=s motion for sanctions.  Appellant then filed a motion for new trial, which the trial court denied.  This appeal followed.

Discussion

In two issues appellant contends the trial court erred in (1) granting UTMB=s Motion to Dismiss, and (2) denying appellant=s motion for sanctions.  We address each issue in turn.

A.      Did the trial court err when it granted UTMB=s motion to dismiss?

In her first issue, appellant makes a two-pronged attack on the trial court=s granting of UTMB=s motion to dismiss.  First, appellant contends she did not plead a health care liability claim controlled by the Medical Liability Act, but instead alleged only a premises defect and negligent use of tangible personal property claim governed exclusively by the TTCA and the common law.  Next, she asserts even if the Medical Liability Act controls, the parties agreed to extend the 120-day expert report deadline through the agreed docket control order entered by the trial court.

1.       The standard of review.

Generally, we review a trial court=s order granting a motion to  dismiss for failure to timely file a ' 74.351(a) expert report under an abuse of discretion standard.  Holguin v. Laredo Regional Medical Center, L.P., 256 S.W.3d 349, 352 (Tex. App.CSan Antonio 2008, no pet.) (citing American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001)).  However, when the issue presented requires statutory interpretation or a determination of whether Chapter 74 applies to a claim, i.e. a question of law, we use a de novo standard or review.  Id. Whether a claim is a health care liability claim is a question of law.  Id.

2.       Appellant=s lawsuit asserts a health care liability claim.

In her brief, appellant asserts Aa medical malpractice or medical negligence cause of action based on Chapter 74 of the Tex. Civ. Prac. & Rem. Code and a Texas Tort Claim Act  cause of action based on Chapter 101 of the Tex. Civ. Prac. & Rem. Code are two separate and distinct cause [sic] of actions [sic].@  Based on this fundamental misunderstanding of how different statutes can interact to impact a party=s legal claim, appellant then argues UTMB=s motion to dismiss based on ' 74.351 not only has no merit, it constitutes a sanctionable frivolous pleading.  Because a claimant suing a governmental entity that is a health care provider for a health care liability claim must comply with both the TTCA and the Medical Liability Act (AMLA@) to maintain her suit, we disagree.  See University of Texas Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 874 (Tex. App.CHouston [1st Dist.] 2007, pet. denied).

In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit. Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The TTCA provides a limited waiver of sovereign immunity, allowing suits to be brought against governmental units only in certain, narrowly defined circumstances. Tex. Civ. Prac. & Rem. Code Ann. '' 101.021; Tex. Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2000).  The TTCA does not create new duties, but simply waives immunity for the instances specified in the statute.  City of Denton v. Van Page, 701 S.W.2d 831, 834 (Tex. 1986).  It is undisputed UTMB is a hospital and a hospital system chartered by the State of Texas.  Therefore, UTMB is immune from suit unless appellant establishes UTMB owed Mrs. Brown a legal duty and breached that duty under circumstances falling within the TTCA waiver of immunity.  Id.

The specific TTCA provision under which appellant alleges waiver provides that a Agovernmental unit in the state is liable for . . . personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.@ Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(2).  For purposes of this appeal, UTMB does not dispute this case involves the use of tangible personal property and therefore falls within this limited waiver of UTMB=s immunity. However, UTMB contends appellant seeks relief for claims arising out of an alleged breach of duties UTMB owed as a result of UTMB=s care and treatment of  Mrs. Brown while she was hospitalized at UTMB, therefore making appellant=s suit a health care liability claim governed by the MLA.  Tex. Civ. Prac. & Rem. Code Ann. ' 74.001 et seq. (Vernon 2005). 

In Texas, to bring a medical negligence or health care liability claim against a physician or health care provider, a claimant must comply with the provisions of the MLA.  Id.  This particular statute is superior to all other laws, regulations, and rules of civil procedure.  Id. at ' 74.002.

Under the MLA, a Ahealth care provider@ is defined as Aany person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including . . . a health care institution.@  Id. at ' 74.001(a)(12)(A)(vii).  A health care institution includes a hospital or hospital system.  Id. at ' 74.001(a)(11)(G) & (H).  UTMB is a hospital and hospital system chartered by the State of Texas.  Tex. Educ. Code Ann. ' 74.001 et seq. (Vernon 2002).  Therefore, UTMB is a Ahealth care provider@ as defined by the MLA.

The MLA defines a Ahealth 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 claimant, whether the claimant=s claim or cause of action sounds in tort or contract.

Tex. Civ. Prac. & Rem. Code Ann. ' 74.001(a)(13). Whether a claim falls within the definition of Ahealth care liability claim@ requires an examination of the essence or underlying nature of the plaintiff=s claim.   Diversicare Gen. Partners, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005).  A health care liability claim is based on a breach of a standard of care applicable to health care providers.  Marks v. St. Luke=s Episcopal Hosp., 229 S.W.3d 396, 400 (Tex. App.CHouston [1st Dist.] 2007, pet. granted).  To state a health care liability cause of action, the act or omission complained of must be an inseparable part of the rendition of medical services.  Id.  When the essence of a suit is a health care liability claim, a claimant cannot avoid the requirements of the MLA through artful pleading.  Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004).

We turn now to appellant=s allegations against UTMB.  Appellant=s factual allegations against UTMB can be summarized as follows: (1) Mrs. Brown was hospitalized at UTMB for the rendition of medical care and treatment for a reoccurrence of vulvar cancer; (2) Mrs. Brown was 90 years old, legally blind, and had difficulty walking; (3) Mrs. Brown was a known fall risk; (4) Mrs. Brown=s treating physician had ordered that she be kept in a hospital bed equipped with bed rails and that the bed rails be kept raised at all times; (5) hospital policy dictated that Mrs. Brown have a hospital bed equipped with bed rails and that the bed rails be kept raised at all times; (6) that on July 26, 2006, the bed rails were not raised, and when Mrs. Brown attempted to get out bed on her own, she fell, sustaining a broken leg which ultimately resulted in her death. Appellant then concluded that UTMB=s negligent failure to keep Mrs. Brown=s bed rails up in violation of hospital policy and Mrs. Brown=s doctor=s orders proximately caused Mrs. Brown=s injury and ultimate death.  Because appellant=s allegations state claims for departures from accepted standards of medical care, health care, and safety directly related to health care, we hold they constitute a health care liability claim subject to the MLA.  Marks, 229 S.W.3d at 402.

3.       The parties did not agree to extend the 120-day deadline to serve the ' 74.351(a) expert report.

Because appellant=s cause of action is a health care liability claim subject to the MLA, appellant was required to comply with ' 74.351(a) of the MLA.  Section 74.351(a) provides:

a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party=s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.

Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(a).  An Aexpert report@ is defined as:

a written report by an expert that provides a fair summary of the expert=s opinions as of the date of the report regarding applicable standards of care; the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm or damages claimed.

Id. at 74.351(r)(6). If the required expert report is not served by the statutory deadline, the trial court must dismiss the case with prejudice.  Id. at 74.351(b).

It is undisputed appellant did not serve the required expert report on UTMB by the 120-day deadline.  However, appellant contends the parties agreed to extend the 120-day deadline through an agreed ADiscovery and Docket Control Order@ signed by the trial court on May 17, 2007.  We apply contract principles in determining whether the parties entered into an agreement to extend the 120-day report deadline.  McDaniel v. Spectrum Healthcare Res., Inc., 238 S.W.3d 788, 791 (Tex. App.CSan Antonio 2007, pet. granted).  In construing a written agreement, we must ascertain and give effect to the parties= intentions as expressed in the agreement. King v. Cirillo, 233 S.W.3d 437, 440 (Tex. App.CDallas 2007, pet. filed).  We consider the entire writing and attempt to harmonize and give effect to all the provisions of the contract by analyzing the provisions with reference to the whole agreement.  Id.   If the agreement is susceptible to more than one reasonable interpretation, it is ambiguous.  Id. Whether an agreement is ambiguous is a question of law.  Id.  The ambiguity must be evident by examining the document itself, it cannot be created by considering parol evidence of the parties= intent.  Id. If the agreement is not ambiguous, courts do not consider extrinsic evidence when interpreting the agreement.  Id.

In the ADiscovery and Docket Control Order,@  the parties agreed appellant was to designate her experts by December 3, 2007.  The parties further agreed Aany party designating a testifying expert witness is ORDERED to provide, no later than the dates set for such designation, the information set forth in Rule 194.2(f) and a written report prepared by the expert setting the substance of the experts [sic] opinions, unless a deposition is taken of the expert.@  Finally, the parties agreed Aan expert not designated prior to the ordered deadlines shall not be permitted to testify absent a showing of good cause.@  The docket control order does not mention the MLA, Chapter 74 of the Civil Practice and Remedies Code, or ' 74.351.

A ' 74.351 expert report is a threshold requirement to pursue a health care liability claim.  Rugama v. Escobar, No. 04-05-00764-CV, 2006 WL 923701, at *2 (Tex. App.CSan Antonio April 5, 2006, no pet.)(mem. op.).  In a ' 74.351 expert report, the expert is only required to address liability and causation.  Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(r)(6).  In enacting this requirement, the Texas Legislature decided discovery should not proceed until at least one expert has examined the claimant=s case and determined it has merit and is not frivolous.  Rugama, 2006 WL 923701, at *2.  As a result, until a claimant has served the expert report and curriculum vitae required by ' 74.351(a), most forms of discovery are stayed.  Id. (citing Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(s) & (u)).  On the other hand, the purpose of designating testifying experts and producing expert reports during discovery is to prevent trial by ambush and to allow the parties to obtain full knowledge of the expert opinions before trial.  Gutierrez v. Dallas Indep. Sch. Dist., 729 S.W.2d 691, 693 (Tex. 1987).  Therefore, the expert report required by ' 74.351 is separate and distinct from the designation of experts contemplated by the rules of discovery.  Rugama, 2006 WL 923701, at *2.  The validity of this distinction is demonstrated where a claimant chooses not to use the ' 74.351 report in any other manner, no mention of the report or its author can be made in the case.  Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(k). 

In Rugama, the San Antonio Court of Appeals addressed a case with remarkably similar facts.  As in this case, the docket control order in Rugama scheduled Apre-trial conferences, jury selection, and trial, and coordinate[d] these settings with key litigation deadlines, such as amending pleadings and completing discovery.@  Rugama, 2006 WL 923701, at *2.  Just like in the current case, the Rugama docket control order bore the signatures of counsel for both parties and the trial court judge.  Id.  Finally, the Rugama docket control order also did not mention the ' 74.351 expert report, ' 74.351 in general, or even generally reference statutory deadlines for expert reports.  Id. The San Antonio court went on to conclude:

Aviewed in context, the . . . deadline refers to Escobar=s deadline for designating expert witnesses expected to testify at trial.  Nothing in the order either directly or by implication suggests that the parties had a written agreement to extend the deadline for serving the '74.351(a) expert report.  With no written agreement by the parties to extend the time for filing expert reports, Escobar=s expert report was untimely.@

Rugama, 2006 WL 923701, at *2 (internal citations omitted).  We agree with the San Antonio court=s reasoning and hold the docket control order at issue here is not ambiguous, is nothing more than a discovery and docket control order contemplated by the Rules of Civil Procedure, and did not extend the deadline to serve the ' 74.351(a) expert report.

Appellant cites the McDaniel case in support of her contention the agreed discovery and docket control order at issue here contained a written agreement to extend the ' 74.351(a) expert report.  McDaniel, 238 S.W.3d at 795. The McDaniel docket control order contained the following language:

It is further ORDERED to the extent these deadlines may be in conflict with deadlines set by rule or statute, the deadlines established by this Docket Control Order shall take precedence . . .  It is further ORDERED that the parties shall conduct discovery as soon as practicable, notwithstanding the limiting provisions found in Chapter 74 of the Texas Civil Practice and Remedies Code.

Id. at 792.  The cited language led the San Antonio court to conclude the parties had agreed to extend the ' 74.351 expert report deadline beyond the 120-day deadline.  Because the agreed docket control order at issue here does not contain any similar language referencing the ' 74.351 expert report, ' 74.351 in general, or even generally referencing statutory deadlines for expert reports, we find McDaniel distinguishable and choose not to accept appellant=s invitation to apply it to this case.

Because appellant failed   to serve  UTMB with the required expert report by the 120-day deadline, and the parties had not agreed in writing to extend the 120-day deadline as required by the MLA we hold the trial court properly dismissed appellant=s cause of action.  Id., Brock v. Sutker, 215 S.W.3d 927, 929 (Tex. App.CDallas 2007, no pet.).  We overrule appellant=s first issue.

B.      Did the trial court abuse its discretion when it denied appellant=s motion for sanctions?

Alleging UTMB=s motion to dismiss pursuant to ' 74.351 had no basis in law or fact, appellant filed a motion seeking sanctions against UTMB pursuant to Chapter 10 of the Civil Practice and Remedies Code.  Tex. Civ. Prac. & Rem. Code Ann. '' 10.001, 10.004(a) & (b) (Vernon 2002).  The trial court denied appellant=s motion.  In her second issue, appellant contends the trial court erred when it denied appellant=s motion.  We disagree.

1.       The standard of review.

The standard of review for an order denying a motion for sanctions is abuse of discretion.  Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004).  The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court=s action, but whether the court acted without reference to any guiding rules and principles.  Id.  The trial court=s ruling should be reversed only if it was arbitrary or unreasonable.  Id. at 839.

2.       The trial court did not abuse its discretion when it denied appellant=s motion for sanctions.

Section 10 of the Civil Practice and Remedies Code provides in part: A[a] court that determines that a person has signed a pleading or motion in violation of [s]ection 10.001 may impose a sanction on the person, a party represented by the person, or both.@  Tex. Civ. Prac. & Rem. Code Ann. ' 10.004.  Courts must presume that pleadings are filed in good faith.  Thottumkal v. McDougal, 251 S.W.3d 715, 718 (Tex. App.CHouston [14th Dist.] 2008,  pet. denied). The party seeking sanctions bears the burden of overcoming the presumption of good faith in the filing of pleadings.  Id.  

As we have already determined, in our resolution of appellant=s first issue on appeal, that the trial court properly granted UTMB=s motion to dismiss, and appellant has not presented any new arguments to meet her burden to overcome the presumption of good faith in her second issue on appeal but merely repeated prior arguments that UTMB=s motion to dismiss was groundless and frivolous.  Accordingly we hold the trial court did not abuse its discretion when it denied appellant=s motion for sanctions.  We overrule appellant=s second issue.

Conclusion

Having addressed and overruled both issues raised by appellant in this appeal, we affirm the trial court=s orders granting UTMB=s motion to dismiss and denying appellant=s motion for sanctions.

/s/      John S. Anderson

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.