diversicare-general-partner-inc-diversicare-leasing-corporation ( 2005 )

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IN THE SUPREME COURT OF TEXAS

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No. 02-0849

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Diversicare General Partner, Inc., Diversicare Leasing Corporation, Advocat, Inc., and Texas Diversicare Limited Partnership d/b/a Goliad Manor, Petitioners,

v.

Maria G. Rubio and Mary Holcomb as Next Friend of Maria G. Rubio, Respondents

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On Petition for Review from the

Court of Appeals for the Thirteenth District of Texas

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Argued September 24, 2003

            Chief Justice Jefferson, concurring in part, dissenting in part, and concurring in the judgment.

            I join in the Court’s holding that Rubio’s allegations based on the incidents of sexual assault constitute a “claimed departure from accepted standards of safety,” and are therefore barred by the MLIIA’s two-year statute of limitations. ___ S.W.3d ___, ___ (Tex. 2005). I do not, however, agree with the Court’s conclusion that Rubio has presented a cause of action for departures from accepted standards of health care. The principal allegation in Rubio’s complaint—that Diversicare failed to protect her from a known sexual predator—raises a premises liability claim which falls under the statute’s “safety” component.

I

Medical Malpractice versus Ordinary Negligence

            In a health care setting, the line between medical malpractice and ordinary negligence is easily blurred. As many courts have observed, “the distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and ‘no rigid analytical line separates the two.’” Weiner v. Lenox Hill Hosp., 673 N.E.2d 914, 916 (N.Y. 1996) (citation omitted), quoted in Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 639 (Tenn. 2003). Thus, determining the appropriate standard of care to apply to a patient’s claim against a health care provider is seldom an easy task. See Gold v. Greenwich Hosp. Ass’n, 811 A.2d 1266, 1270 (Conn. 2002).

            In this case, the Court parses medical malpractice from ordinary negligence in a claim involving the alleged sexual assault of a nursing home patient. See ___ S.W.3d at ___. Based on this analysis, the Court concludes that all of Rubio’s claims are health care liability claims under the MLIIA. Id. at ___. But every Texas court of appeals to consider the issue has held otherwise. In addition to the court of appeals in the present case, three other courts have determined that the MLIIA does not apply to claims arising out of a patient’s assault of another patient because such claims were not based on medical or health care services. See Healthcare Ctrs. of Tex., Inc. v. Rigby, 97 S.W.3d 610, 621-22 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); Zuniga v. Healthcare San Antonio, 94 S.W.3d 778, 782-83 (Tex. App.—San Antonio 2002, no pet.); Bush v. Green Oaks Operator, Inc., 39 S.W.3d 669, 673 (Tex. App.—Dallas 2001, no pet.).

            In Rigby, the court held that a claim against a nursing home arising out of a patient’s assault of another patient was not a health care liability claim. 97 S.W.3d at 622. In that case, a male nursing home resident, who had a known history of sexually violent behavior, attempted to sexually assault a female resident. Id. at 614-17. The court concluded that the claim involved “simple negligence in failing to take adequate safety measures to protect [the nursing home] residents from a known sexual deviant.” Id. at 622; see also id. at 628 (Brister, C.J., concurring).

            Likewise, the Zuniga court held that the MLIIA did not apply to a claim involving a psychiatric hospital patient’s allegations that she was sexually assaulted by another patient. 94 S.W.3d at 780, 783. The plaintiff in that case alleged that the hospital “was negligent in failing to: protect her from abuse, take [sic] reasonable efforts to prevent actions by another person that resulted in physical injury, make reasonable efforts to prevent sexual contact, and provide her a safe environment.” Id. at 782. The hospital argued that Zuniga’s claims asserted, in essence, a failure to “provide a therapeutic environment that would keep Zuniga safe from herself and others.” Id. The court rejected the hospital’s argument noting: “While we agree that preventing a patient from harming herself or others is part of the treatment provided to an involuntarily committed psychiatric patient, the allegation of injury here was not Zuniga’s harm to herself or to others. Instead, the allegation is another patient’s assault of her while on [the hospital’s] premises.” Id.

            Finally, in Bush, the court held that a patient’s claim against a hospital arising from an alleged attack by a fellow patient with a known propensity for violent behavior was not a health care liability claim under the MLIIA. 39 S.W.3d at 670, 672. Bush, the plaintiff patient, claimed that the hospital “was negligent either in failing to warn her of the known danger or in failing to maintain the premises in a safe manner or both.” Id. at 670-71. The hospital argued that Bush’s claim was “fundamentally a claim for negligent diagnosis and lack of proper treatment with respect to her assailant” and thus was subject to the MLIIA. Id. at 672. The court disagreed, noting: “Although [the hospital’s] alleged failure to provide Bush with a reasonably safe environment may ultimately involve a determination of whether the hospital breached a standard of care with respect to [the assailant], Bush’s claim, as pleaded, is not for negligence in her medical treatment.” Id.

            Indeed, many courts analyzing similar claims under comparable statutes have held that claims involving inpatient assault sound in ordinary negligence rather than medical malpractice. See, e.g., Andrea N. v. Laurelwood Convalescent Hosp., 16 Cal. Rptr. 2d 894, 903 (Cal. Ct. App. 1993), review granted, 851 P.2d 801, 802 (Cal. 1993), and review dismissed, 865 P.2d 632 (Cal. 1994); Lauria v. W. Rock Health, Inc., No. CV03082278, 2004 WL 201939, at *2 (Conn. Super. Ct. Jan. 13, 2004); Delaney v. Newington Children’s Hosp., No. CV-93-0524063, 1994 WL 228322, at *2-3 (Conn. Super. Ct. May 9, 1994); Robinson v. W. Fla. Reg’l Med. Ctr., 675 So. 2d 226, 228 (Fla. Dist. Ct. App. 1996); Hicks v. Baptist Hosp., Inc., 676 So. 2d 1019, 1019 (Fla. Dist. Ct. App. 1996); Palm Springs Gen. Hosp., Inc. v. Perez, 661 So. 2d 1222, 1223 (Fla. Dist. Ct. App. 1995); Klingman v. Green, 616 So. 2d 762, 763-64 (La. Ct. App. 1993); Reaux v. Our Lady of Lourdes Hosp., 492 So. 2d 233, 234-35 (La. Ct. App. 1986); Afamefune v. Suburban Hosp., Inc., 870 A.2d 592, 602-03 (Md. 2005); Borrillo v. Beekman Downtown Hosp., 537 N.Y.S.2d 219, 220-21 (N.Y. App. Div. 1989); Sumblin v. Craven County Hosp. Corp., 357 S.E.2d 376, 377-79 (N.C. Ct. App. 1987); Burns v. Forsyth County Hosp. Auth., Inc., 344 S.E.2d 839, 846 (N.C. Ct. App. 1986). But see Dorris v. Detroit Osteopathic Hosp. Corp., 594 N.W.2d 455, 466-67 (Mich. 1999); Smith v. Four Corners Mental Health Ctr., Inc., 70 P.3d 904, 914 (Utah 2003).

A

Premises Liability

            In applying the MLIIA to this case, the Court characterizes Rubio’s claims as inseparable from the health care related issues of inadequate supervision and nursing services. __ S.W.3d at __. But Rubio’s complaint, at its core, is that the nursing home did not protect her from repeated acts of sexual abuse and assault committed by a known sexual predator.    Contrary to the Court’s interpretation, the sexual assault allegations are not connected to or dependent on the claims for inadequate monitoring and supervision. Rather, construed liberally, the sexual assault allegations are claims for “inadequate security, independent of any medical diagnosis, treatment, or care.” Robinson, 675 So.2d at 228. In other words, Rubio’s complaint, on its face, asserts a cause of action for ordinary premises liability.

            According to the Court, a nursing home’s duty to its patients cannot be compared to the duty a regular premises owner would owe to a resident because the residents of a nursing home are there “for care and treatment, not merely for shelter.” __ S.W.3d at ___. Rubio’s assault allegations, however, are not tied to the nursing home’s provision of care and treatment. Several courts have recognized that, in addition to the heightened standard of care that accompanies the rendering of professional services, health care facilities also owe their patients a duty to exercise ordinary care in the maintenance of their premises. See Charrin v. Methodist Hosp., 432 S.W.2d 572, 574-75 (Tex. Civ. App.—Houston [1st Dist.] 1968, no writ) (“A patient accepted by a hospital enjoys the status of an invitee or business visitor entitled to the exercise of ordinary care by the hospital to keep its premises in reasonably safe condition for the expected use. Thus, the hospital as occupier of the premises has a duty to keep them in a reasonably safe condition for its invitees, to warn or protect its invitees from any dangers of which it knows or should know in the exercise of ordinary care.”) (citation omitted); Burns, 344 S.E.2d at 846 (“[T]he hospital has a duty to exercise ordinary care to keep the premises in a reasonably safe condition so as not to expose the patient unnecessarily to danger.”).

            A tenant’s claim against a landowner for failing to provide adequate security against foreseeable criminal conduct is typically a premises liability claim. See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998). I do not see why the same claim should be treated differently in this case simply because the landowner is a health care provider. See Sumblin, 357 S.E.2d at 378-79 (recognizing that “a hospital, much like the proprietor of any public facility, owes a duty to its invitees to protect the patient against foreseeable assaults by another patient”); Burns, 344 S.E.2d at 846-47 (“[T]he proprietor of a restaurant owes a duty to protect the invitee against the foreseeable assaults by another invitee. . . . We find the hospital similarly owes a duty to protect the patient against foreseeable assaults by another patient.”).

            Although providing care and treatment to patients may be a nursing home’s main function, not every duty owed to a nursing home resident stems from medical treatment or health care. A nursing home serves dual roles as both a health care provider and residential facility. See Richard v. La. Extended Care Ctrs., Inc., 835 So. 2d 460, 468 (La. 2003) (noting that “[i]n the case of a nursing home, the nursing home resident is not always receiving medical care or treatment” and thus not all claims against a nursing home will involve medical treatment). Here, Rubio alleges that Diversicare failed to furnish her with “a reasonably safe premises” and failed “to exercise ordinary care to protect her from a sexual predator.” These allegations stem from the nursing home’s duty as a premises owner rather than as a health care provider and thus are classic premises liability claims.

B

 Expert Testimony

            Furthermore, I do not agree that, as a matter of law, establishing the standard of care necessary to prevent inpatient assaults requires medical expertise.    Numerous courts, both in Texas and elsewhere, have determined that specialized medical knowledge is not necessary to establish a breach of duty for claims involving patient assault. See, e.g., Sisters of Charity of the Incarnate Word, Houston, Tex. v. Gobert, 992 S.W.2d 25, 30 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (considering patient’s allegation that she was sexually assaulted by another patient and concluding that “[a] determination that [the hospital] breached the standard of care by its negligent failure to monitor the patients’ rooms, and the comings and goings of patients into and out of each other’s rooms is not one requiring special training, insight, or proof”); Juhnke v. Evangelical Lutheran Good Samaritan Soc’y, 634 P.2d 1132, 1136 (Kan. Ct. App. 1981) (finding “that the trier of fact would have been fully capable of determining, without the aid of expert testimony, whether the defendant nursing home breached its duty to exercise reasonable care to avoid injury to [a] patient” assaulted by a fellow patient); Virginia S. v. Salt Lake Care Ctr., 741 P.2d 969, 972 (Utah Ct. App. 1987) (“In the present case, where a mentally and physically incapacitated seventeen-year-old girl was raped while under the care and custody of the defendant nursing home, there are no medical technicalities involved that call for expert testimony to determine whether the nursing home breached its standard of care.”); see also Rigby, 97 S.W.3d at 628 (Brister, C.J., concurring) (“I agree with the Court this is not a medical malpractice case, as the propriety of failing to supervise a sexual deviant in a nursing home is within the common knowledge of laymen.”).

            In a comparable case, the Michigan Supreme Court recently held that expert testimony was not required to bring a claim against a nursing home when the allegations involve a nursing home’s failure to protect a patient from a known danger, stating:

This claim sounds in ordinary negligence. No expert testimony is necessary to determine whether defendant’s employees should have taken some sort of corrective action to prevent future harm after learning of the hazard. The fact-finder can rely on common knowledge and experience in determining whether defendant ought to have made an attempt to reduce a known risk of imminent harm to one of its charges.

Bryant v. Oakpointe Villa Nursing Ctr., 684 N.W.2d 864, 875 (Mich. 2004) (emphasis in original). The same principle applies here. The Court posits that “[i]t is not within the common knowledge of the general public to determine the ability of patients in weakened conditions to protect themselves” or to determine the means used to restrain a “potential attacker.” ___ S.W.3d at ___. Those statements would be true if the jury were asked to assess the patient’s (or her attacker’s) mental or physical condition. But no such assessment is necessary under the facts alleged here. In her complaint, Rubio alleges that the sexual abuse she endured was “repetitious and recurring,” and that Diversicare was aware of the attacks and was therefore “in the unique position to predict a repeat of such behavior by the predator and to take preventative measures to avert any reoccurrence.” A nursing home’s obligation to secure its patients against multiple attacks by a known sexual predator is well within the purview of common knowledge.

II

The MLIIA

            Although Rubio’s claims involve premises liability rather than medical malpractice, the distinction is not outcome determinative here. The Legislature has captured both concepts under the broad rubric of “health care liability claim,” as defined by the MLIIA:

“Health care liability claim” means 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 which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.

Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(a)(4), 1977 Tex. Gen. Laws 2039, 2041 (former Tex. Rev. Civ. Stat. art. 4590i, § 1.03(a)(4)), repealed and codified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 2003 Tex. Gen. Laws 847, 864, 884 (current version at Tex. Civ. Prac. & Rem. Code § 74.001(a)(13)). Here, there can be little doubt that Rubio’s complaint involves a “claimed departure from accepted standards of safety.”    Id. Thus, I agree that Rubio’s claims fall within the statute.  

            Both Justice O’Neill and Rubio favor a narrower interpretation of safety advanced by several of the courts of appeals under which “safety” is read to mean safety as it relates to the provision of health care. ___ S.W.3d at ___ (O’Neill, J., dissenting); see Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d 417, 418-19 (Tex. App.—Corpus Christi 1999, no pet.) (opining that “[t]he word ‘safety’ cannot be read in isolation, and the phrase ‘accepted standard of . . . safety’ must be read in context to mean ‘accepted standard of safety within the health care industry.’”) (italics in original), cited with approval in Bush, 39 S.W.3d at 673, and Rigby, 97 S.W.3d at 621; see also Zuniga, 94 S.W.3d at 783 (quoting Rigby, 97 S.W.3d at 620-21). While this construction of “safety” is defensible as a matter of policy, it is not faithful to the statute’s plain text.

            As we have often explained:

Courts must take statutes as they find them. More than that, they should be willing to take them as they find them. They should search out carefully the intendment of a statute, giving full effect to all of its terms. But they must find its intent in its language, and not elsewhere. They are not the law-making body. They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of the written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.

Simmons v. Arnim, 220 S.W. 66, 70 (Tex. 1920), quoted in St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997), RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985), and Tex. Highway Comm’n v. El Paso Bldg. & Constr. Trades Council, 234 S.W.2d 857, 863 (Tex. 1950). Straightforward statutory construction ensures that ordinary citizens are able “to rely on the plain language of a statute to mean what it says.” Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex. 1999). But when courts “abandon the plain meaning of words, statutory construction rests upon insecure and obscure foundations at best.” State v. Jackson, 376 S.W.2d 341, 346 (Tex. 1964) (quoting State Bd. of Ins. v. Betts, 315 S.W.2d 279, 281(Tex.1958)).
            The MLIIA explicitly provides that “any legal term or word of art used in this part, not otherwise defined in this part, shall have such meaning as is consistent with the common law.” Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(b), 1977 Tex. Gen. Laws 2039, 2041 (former Tex. Rev. Civ. Stat. art. 4590i, § 1.03(b)), repealed and codified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 2003 Tex. Gen. Laws 847, 866, 884 (current version at Tex. Civ. Prac. & Rem. Code § 74.001(b)). Because the statute does not define “safety,” we must assign it its common meaning. Id. Safety is commonly understood to mean protection from danger. See Black’s Law Dictionary 1362 (8th ed. 2004) (defining “safe” as “[n]ot exposed to danger; not causing danger”). The specific source of that danger, be it a structural defect, criminal assault, or careless act, is without limitation. While it may be logical to read into the statute a requirement that a safety related claim also involve health care, there is nothing implicit in safety’s plain meaning nor explicit in the MLIIA’s language that allows us to impose such a restriction.    Accordingly, to give full effect to the MLIIA’s language, we must recognize that a health care liability claim includes a complaint that a patient was inadequately protected from the danger of sexual assault.

III

Conclusion

            In defining health care liability claims as it did, the Legislature created a statute with a broad scope. Complaints about the breadth of this statute should be directed to the Legislature, not to this Court, for the courts must “take statutes as they find them.” Simmons, 220 S.W. at 70. Accordingly, I concur in part III(B)(3) of the Court’s opinion and concur in the judgment. 

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Wallace B. Jefferson

Chief Justice

OPINION DELIVERED: October 14, 2005