P. Palivela Raju, M.D. v. Dianne Jackson ( 2015 )

ACCEPTED
13-15-00171-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
6/17/2015 1:02:13 PM
CECILE FOY GSANGER
CLERK
No. 13-15-00171-CV
______________________________________________________________________________
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
IN THE THIRTEENTH COURT OF APPEALS
6/17/2015 1:02:13 PM
CECILE FOY GSANGER
CORPUS CHRISTI, TEXAS Clerk
__________________________________________________________________
P. PALIVELA RAJU, M.D.
Appellant
v.
DIANE JACKSON
Appellee
__________________________________________________________________
APPELLEE'S BRIEF
__________________________________________________________________
On Appeal from Cause No. 14-E-0190
In the 23rd District Court of Matagorda County, Texas
__________________________________________________________________
Alexander Forrest Alan Kolodny
State Bar No. 24065241 State Bar No. 24056882
FORREST & KOLODNY, L.L.P. FORREST & KOLODNY, L.L.P.
1011 Augusta Drive, Suite 111 1011 Augusta Drive, Suite 111
Houston, Texas 77057-2035 Houston, Texas 77057-2035
(713) 532-4474 (713) 532-4474
(713) 785-0597 - Facsimile (713) 785-0597 - Facsimile
aforrest@fko-law.com akolodny@fko-law.com
IDENTITY OF PARTIES AND COUNSEL
In accordance with TEX. R. APP. P. 38.1(a), the following is a complete list
of all parties to this appeal:
Plaintiff / Appellee Counsel for Plaintiff/Appellee
Dianne Jackson Mr. Alexander Forrest
Mr. Alan Kolodny
FORREST & KOLODNY, L.L.P.
1011 Augusta Drive, Suite 111
Houston, Texas 77057-2035
(713) 532-4474 / (713) 785-0597 - Fax
aforrest@fko-law.com
Defendant / Appellant Counsel for Defendant / Appellant
P. Palivela Raju, M.D. Mr. Gary Sommer
Mr. James R. Boston, Jr.
Boston & Hughes, P.C.
8584 Katy Freeway, Suite 310
Houston, TX 77024
(713) 961-1122 / (713) 965-0883 – Fax
gsommer@bostonhughes.com
OTHER PARTIES
Co-Defendant Diagnostic Healthcare Services d/b/a Onsite Balance Solutions
Trial Counsel Appellate Counsel
Mr. Kevin O’Murphy Mr. David Lunningham
Law Office of Brian J. Judis Ms. Helena Venturini
9500 Arboretum Boulevard, Suite 145 Watson, Caraway, Midkipp &
Austin, Texas 78759 Lunningham, LLP
(512) 502-6431 1600 Oil & Gas Building
(866) 489-7657 – (fax) 309 W. 7th Street
Kevin.Murphy2@cna.com Fort Worth, Texas 76102
(817) 870-1717 / (817) 338-4852 - fax
dluningham@watsoncarraway.com
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL………………………………………ii
TABLE OF CONTENTS……………………………………………………….iii-iv
INDEX OF AUTHORITIES…………………………………………………….vi-v
STATEMENT OF THE CASE…………………………………………………….1
STATEMENT OF JURISDICTION……………………………………………….2
ISSUES PRESENTED……………………………………………………………..2
Is Appellee’s cause of action against Appellant a Healthcare Liability Claim
(HCLC) subject to Chapter 74 of the Texas Civil Practice and Remedy Code?
In the alternative that Appellee’s cause of action against Appellant is a
Healthcare Liability Claim (HCLC), did the trial court abuse its discretion by
denying Appellant’s motion to dismiss pursuant toTex. Civ. Prac. & Rem. Code
§74.351(b)?
 Whether Appellee’s orthopedic surgeon expert (Dr. Arnold Ravdel) was
qualified as an expert on the standard of care?
 Whether Appellee’s orthopedic surgeon expert’s (Dr. Arnold Ravdel) report
provided a fair summary of the standard of care to meet the “good faith
effort” statutory requirement for sufficiency of expert reports?
 Whether Appellee’s medical expert report relied on unsupported
assumptions?
 Whether Appellee’s expert conclusion that Plaintiff would not have fallen
and sustained injuries if the medical chair used for balance testing had been
properly maintained provides a fair summary of he causal relationship
between the injury and Appellant’s negligence?
STATEMENT OF THE FACTS…………………………………………………3-5
iii
SUMMARY OF ARGUMENT…………………………………………………6-7
STANDARD OF REVIEW………..……………………………………………7-8
ARGUMENT…………………………………………………………………..8-30
I. This Case Does Not Fall Under the Purview of the TMLA………..11-20
II. In the Alternative that Appellee’s Claim Against Appellant is a
Healthcare Liability Claim, Appellee’s Expert Report Nonetheless
Satisfies the §74.351 Statutory Requirements of the Texas Medical
Liability Act…………………………………………………………20-30
A. Plaintiff's expert is not testifying to the standard of care
relating to otolaryngology……………………………………20-25
B. Dr. Ravdel's Expert Report provides a fair summary of the
standard of care because it meets the "good faith effort" test for
satisfying the statutory requirement for expert reports based on the
facts of Appellee’s case………………………………………25-28
C. Dr. Ravdel's Expert Report is not based on unsupported
assumptions, but rather, on limited, yet obvious facts……….28-29
D. Dr. Ravdel's Expert Report clearly explains that Plaintiff
would not have fallen and sustained injuries if the medical
chair used for balance testing had been properly maintained.29-30
CONCLUSION………………………………………………………………..31-32
PRAYER………………………………………………………………………….32
CETFIFICATE OF COMPLIANCE……………………………………………...33
CERTIFICATE OF SERVICE……………………………………………………33
iv
INDEX OF AUTHORITIES
Cases
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873
(Tex.2001)………………………………………………………………………….8
Benish v. Grottie, 281 S.W.3d 184 (Tex. App. – Fort Worth 2009, pet
denied)………………………………………………………………………...10, 29
Carreras v. Travino, 298 S.W.3d 721 (Tex. App. – Corpus Christi 2009,
no pet.)…………………………………………………………………………….23
CHCA W. Houston, L.P. v. Shelley, 438 S.W.3d 149 (Tex. App. 2014)…………...8
Chu v. Fields, 2009 WL 40437……………………………………………………26
Chisholm v. Maron, 63 S.W.3d 903 (Tex. App. – Amarillo 2001, no pet.)………21
Clark v. HCA, Inc., 210 S.W.3d 1 (Tex. App. – El Paso 2005, no pet)…………..21
Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005)………18
Doctors Hosp. at Renaissance, Ltd. v. Meja, No. 13-12-00602-CV, 2014
WL 5859592 (Tex.App. – Corpus Christi Aug.1, 2013, pet. filed) (mem.op.)…...13
Good Shepherd Medical Center-Linden, Inc. v. Twilley, 422 S.W.3d 782
(Tex. App. – Texarkana, Mar. 1, 2013, pet. denied)……….…11, 12, 13, 16, 17, 31
Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (Tex. App. – Houston
[1st Dist.] 2006, no pet.)……………………………………………………………8
Guerrero v. Ruiz, 2008 WL 3984167……………………………………………..26
Hansen v. Starr, 123 S.W.3d 13 (Tex. App. 2003)……………………………….21
In re Samonte, 163 S.W.3d 229 (Tex. App. – El Paso 2005, orig. proceeding)…..21
In re Stacy K. Boone, 223 S.W.3d 398 (Tex. App. – Amarillo 2006,
orig. proceeding)…………………………………………………………………..27
Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012)……………………………...18, 19
vi
Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658 (Tex. 2010)……………..12
Methodist Healthcare Sys. Of San Antonio, Ltd., LLP v. Dewey, 423 S.W.3d 516,
516 (Tex. App – San Antonio 2014, pet. Filed)……………………………...13, 15
Memorial Hermann Hosp. System v. Galvan, 434 S.W.3d 176 (Tex. App. –
Houston [14th Dist.] 2014, no pet. h.)……………………………………………..7
Palafox v. Silvey, 247 S.W.3d 310 (Tex. App. – El Paso 2007, no pet.)…………25
Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011)…………………………....7, 8
Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8 (Tex. App. – Tyler 2002,
pet. denied)………………………………………………………………………..26
Strom v. Memorial Hospital System, 110 S.W.3d 216 (Tex. App. –
Houston [1st Dist.] 2003, pet. denied)…………………………………………26, 27
Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171
(Tex. 2012)………………………………………………………...12-14, 16, 17, 19
Weatherford Tex. Hosp. Co. v. Smart, 423 S.W.3d 462 (Tex. App. –
Fort Worth 2014, pet. filed). ……………………………………………………...14
Whitfield v. Henson, 385 S.W.3d 708 (Tex. App. – Dallas 2012, no pet.)……….27
Williams v. Riverside Gen. Hosp., Inc., No. 01-13-00335-CV, 2014 WL
4259889 (Tex. App. Aug. 28, 2014)………………………………………………..8
Statutes and Rules
Tex. Civ. Prac. & Rem Code, Chapter 74………………...2, 4, 6, 7, 8, 9, 11, 27, 31
vi
STATEMENT OF THE CASE
Nature of the Case: This case was initially in the 412th Judicial District Court
of Brazoria County, Texas under the Honorable W. Ed
Brennan. The case was transferred to the 130th Judicial
District Court of Matagorda County and then to the 23rd
Judicial District of Matagorda County under the
Honorable Ben Hardin.
Trial Court: The case was initially in the 412th Judicial Disctrict Court
of Brazoria County, Texas under the Honorable W. Ed
Brennan. The case was transferred to the 130th Judicial
District Court of Craig Estlinbaum. Judge Eslinbaum
then transferred the case to the 23rd Judicial District
Court of Matagorda County under the Honorable Ben
Hardin.
Trial Court’s
Disposition: Appellant timely filed his initial objections to Appellee’s
expert report. (CR 43-54) Judge Brennan overruled the
objections. (RR 19) After the 120-day period expired,
Appellant filed his Motion to dismiss pursuant to Tex.
Civ. Prac. & Rem. Code §74.351 (b). (CR 110-120)
Judge Hardin denied the motion to dismiss on March 2,
2015 (CR 144).
Court of Appeals: Appellant filed his Notice of Accelerated Appeal on
Monday, March 23, 2015, which was the first business
day after the 20-day period to challenge the March 2
order expired on Sunday, March 22, 2015 (CR 145-146).
The Court dismissed Appellant’s appeal on April 30,
2015 due to lack of jurisdiction because the trial court did
not receive and file the notice of appeal until March 25.
On May 11, 2015, the Court withdrew its order of April
30 and reinstated this appeal.
1
STATEMENT OF JURISDICTION
The 13th Court of Appeals has jurisdiction over this case under Government
Code §22.201(n) because this case arose in Matagorda County. The Court has
jurisdiction to hear this appeal of the trial court’s order denying Appellant’s motion
to dismiss under Tex. Civ. Prac. & Rem. Code §74.351(b) under Tex. Civ. Prac. &
Rem. Code §51.014(a)(9) (Vernon Supp. 2014).
ISSUES PRESENTED
1. Is Appellee’s cause of action against Appellant a Healthcare Liability Claim
(HCLC) subject to Chapter 74 of the Texas Civil Practice and Remedies Code?
2. In the alternative that Appellee’s cause of action against Appellant is a
Healthcare Liability Claim (HCLC), did the trial court abuse its discretion by
denying Appellant’s motion to dismiss pursuant to Tex. Civ. Prac. & Rem.
Code §74.351(b)?
a. Whether Appellee’s orthopedic surgeon expert was qualified as an expert on
the standard of care?
b. Whether Appellee’s expert report provided a fair summary of the standard of
care to meet the “good faith effort” statutory requirement for sufficiency of
expert reports?
c. Whether Appellee’s medical expert relied on unsupported assumptions?
d. Whether Appellee’s expert’s conclusion that Plaintiff would not have fallen
and sustained injuries if the medical testing chair had been properly
maintained provides a fair summary of the causal relationship between the
injury and Appellant’s negligence?
References to Clerk’s Original Record are shown as (CR ______)
References to Clerk’s 1st Supp. Record are shown as (CR 1st Supp.____)
References to Clerk’s 2nd Supp. Record are shown as (CR 2nd Supp.____)
References to Reporter’s Record are shown as (RR____)
2
STATEMENT OF THE FACTS
The following introductory facts are pertinent to the issues or points
presented. TEX. R. APP. P. 38.1(f).
On March 28, 2012, Appellee Dianne Jackson was at the medical office of
Appellant P. Palivela Raju, M.D, an otorhinolaryngologist, otherwise known as an
ear, nose and throat doctor (ENT). On that date, Appellee was on Appellant’s
medical practice premises not to visit with Appellant, but to perform balance
testing with a third party medical provider, Onsite Balance Solutions. Appellant
scheduled Appellee to undergo balance testing with Onsite Balance Solutions.
Appellant contracted with Onsite Balance Solutions to perform this medical testing
on Appellant’s premises. In anticipation of Appellee’s balance test, Danny
Hertzer, a balance tech employed by on Onsite Balance Solutions, seated Appellee
in Appellant’s balance chair (CR 2nd Supp. 75). After conducting a choloic
stimulation test not involving use of the balance chair, the Onsite Balance
Solutions tech noticed that the “chair was starting to tilt on its back, so [I] moved
to stand on the base to give the base more weight. Despite this the chair fell slowly
on its back and once it had reached the ground Appellee slid out of it” (CR 2nd
Supp. 75). The entire time during which these events transpired, Appellant neither
supervised the testing nor made available any of his nursing or administrative staff.
The only two people in the patient room were Onsite Balance Solutions tech and
3
Appellee. Appellee states very clearly in her in her affidavit that “neither Dr. Raju
nor anyone from his staff was in the room at the time of the accident.” (CR 2nd
Supp. 56). Furthermore, she states, “the accident occurred prior to the vertigo
test.” (CR. 2nd Supp. 56).
On January 24, 2014, Appellee filed this lawsuit against Appellant and
Onsite Balance Solutions alleging professional negligence in failing to ensure that
the chair was properly maintained and in working order, and in failing to have a
physician or qualified medical staff supervise the vertigo testing (CR7). In order to
comply with the expert report requirement for a healthcare liability claim under
Chapter 74 of the Texas Civil Practice and Remedies Code, Appellee attached to
her original petition a report from orthopedic surgeon Arnold Ravdel, M.D. (CR
31-33). On July 21, 2014, Appellee filed her Second Amended Petition and
Request for Disclosure to assert general negligence and premises liability claims in
addition to professional negligence, believing that the facts of Appellee’s claims
may not even implicate the Texas Medical Liability Act. Although Appellee
realizes that the factual backdrop of Appellee’s case is atypical of healthcare
liability claims, Appellee nonetheless asserts a healthcare liability cause of action
in order not to lose the right to sue for professional negligence in the event this
Court finds that Chapter 74 of the Texas Civil Practices and Remedies Code
applies.
4
Appellant objected to the sufficiency of Dr. Ravdel’s report, citing Section
74.351 (a) as authority. (CR 43-54) Appellee obtained a hearing on the objections
prior to expiration of the 120-day period in Section 74.351 (a). On April 11, 2014,
the Honorable W. Ed Brennan of the 412th District Court of Brazoria County
overruled Appellant’s objections. (RR 19). After the hearing, Appellant and
Appellee agreed to transfer the case to Matagorda County, the county of proper
venue. After the 120-day period expired on June 4, 2014, Appellant filed his
motion to dismiss pursuant to Section 74.351 (b). (CR 110-120).
Appellant’s motion to dismiss was first heard by the Honorable Craig
Estlinbaum of the 130th District Court of Matagorda County on June 11, 2014.
Judge Estlinbaum took the matter under advisement and later scheduled a second
hearing for August 11, 2014. (CR 133) By the time of the hearing, the case had
been transferred to the 23rd District of Matagorda County. The Honorable Ben
Hardin of the 23rd District Court took the matter under advisement and denied
Appellant’s motion to dismiss on March 2, 2015. Appellee now responds to
Appellant’s interlocutory appeal of Judge Ben Hardin’s denial of Appellant’s
Motion to Dismiss before this honorable Texas 13th Court of Appeals.
5
SUMMARY OF THE ARGUMENT
In responding to Appellant’s Motion to Dismiss in the lower court, Appellee
specifically informed the court that Appellee’s claims are not a healthcare liability
claims, and her filing an expert report under Chapter 74 of the Texas Civil and
Practice Remedies Code was purely done in an abundance of caution, and in
acknowledgement of the spit between appellate courts interpreting the Texas West
Oaks precedent. Appellee states as follows:
“The only reason a medical expert opinion is provided in this case is because
Texas law requires that any Plaintiff injured on the premises of a medical
establishment open to the public file their claim as a health care liability
claim, regardless of whether the injury was the result of a doctor performing
a medical procedure or not. See Texas West Oaks, 371 S.W.3d 171, 178
(Tex. 2012).
Simply put, different appellate courts are so split in their interpretations of the
Texas opinion, that Appellee did not feel comfortable taking the risk of the statute
of limitations expiring in the face of this split in authority between different
appellate courts. Therefore, Appellee timely filed a medical expert report.
However, the substance of the medical expert report does not address standards of
care relating to any particular or specialized area of medicine. Rather, the
substance of the report focuses on the condition of the medical chair, its
maintenance or lack thereof, and the duties owed by any medical provider to
deliver safe premises and medical equipment to patients. (CR 31-33).
6
In the alternative that this Court finds that Appellee’s claims are Healthcare
Liability Claims subject to Chapter 74 of the Texas Practice and Remedy Code,
Appellee contends that Dr. Ravdel’s expert report nonetheless satisfies the
statutory requirements. A brief analysis of the facts of the lower court quickly
reveals that the relevant subject area is not any specific area of medical practice,
but the general standard of care any medical physician owes his patients as a
premises owner, which is to ensure that all his medical equipment and chairs are
sufficiently maintained and in working order such that a medical chair used for
balance testing does not collapse when his patients are seated. Given the limited
discovery rights of Appellee coupled with a factual backdrop where Appellee was
injured after merely being seated in a chair that could not hold her weight, the
“good faith effort” standard for determining whether an expert report is statutorily
compliant with Chapter 74 of the Texas Medical Liability Act has clearly been
met. Tex. Civ. Prac. & Rem. Code 74.351(l).
STANDARD OF REVIEW
The standard of review for judging a trial court's decision with regard to
expert reports is the abuse of discretion. Generally, we review a trial court's order
granting or denying a section 74.351(b) motion under an abuse-of-discretion
standard. See Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011); Memorial
Hermann Hosp. System v. Galvan, 434 S.W.3d 176, 178 (Tex. App. – Houston
7
[14th Dist.] 2014, no pet. h.) But, when the issue presented requires statutory
interpretation or a determination of whether Chapter 74 applies to a claim, the
issue is a question of law to which we apply a de novo standard of review. See
Stockton, 336 S.W.3d at 615; Galvan, 434 S.W.3d at 179. CHCA W. Houston, L.P.
v. Shelley, 438 S.W.3d 149, 151 (Tex. App. 2014).
Generally, we review a trial court's decision on a motion to dismiss a
healthcare liability claim for an abuse of discretion. See Am. Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA
Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App. – Houston [1st Dist.] 2006, no
pet.). However, because this appeal poses a question of statutory construction (i.e.,
whether Williams' claims are HCLCs), we apply a de novo standard of review.
Loaisiga v. Cerda, 379 S.W.3d 248, 254–55 (Tex.2012); Tex. W. Oaks, 371
S.W.3d at 177. When determining whether a claim is a healthcare liability claim,
we consider the entire record, including the pleadings, motions and responses, and
relevant evidence properly admitted. Loaisiga, 379 S.W.3d at 258. Williams v.
Riverside Gen. Hosp., Inc., No. 01-13-00335-CV, 2014 WL 4259889, at *2 (Tex.
App. Aug. 28, 2014)
ARGUMENT
In Appellant’s brief, Appellant presents the main issue as whether the trial
court abused its discretion in denying Appellant's motion to dismiss pursuant to
8
Tex. Civ. Prac. & Rem. Code §74.351(b). In framing the issue in this manner,
Appellant assumes that the lower court made a finding that Appellee’s claims are
Health Care Liability Claims pursuant to Tex. Civ. Prac. & Rem. Code §74.351(b).
However, nothing in the lower court’s record includes any order where the lower
court judge has made a ruling on whether Chapter 74 is controlling in this case, or
whether the claims asserted by Appellee are necessarily Health Care Liability
Claims. The pleadings in the lower court clearly show that Appellee has asserted
three claims against Appellant, only one of which is a Healthcare Liability Claim.
(CR 66-72). Appellant provides no argument as to how or why the lower court's
denial of his Motion to Dismiss pursuant to Tex. Civ. Prac. & Rem. Code
§74.351(b) makes Appellee’s claims healthcare in nature. There is not a single
order in the lower court whereby any lower court Judge concludes that Chapter 74
of the Texas Civil Practice and Remedies Code necessarily applies to the facts in
this case. Furthermore, Appellant never filed any motion for declaratory judgment
asking the trial court to make any such finding. By entirely avoiding the argument
and failing to explain to this Honorable Court why Appellant believes Appellee’s
claims are healthcare liability claims, Appellant improperly asks this Honorable
Court to assume a fact not in evidence.
After impliedly asking this Honorable Court to make the unwarranted
assumption that Appellee’s claims are healthcare liability claims, Appellant argues
9
that the trial court abused its discretion in finding Appellee's expert report provided
a fair summary of the standard of care and causal relationship. Appellant bases
this judgment on broad and sweeping conclusions rather than assertions of fact.
For example, Appellant contends that Appellee’s expert's opinions were based on
“unsupported assumptions.” However, it is clear from the report that the expert
made inferences based on the medical records, a practice that is accepted by the
courts. (CR 2nd Supp. 62-64). Benish v. Grottie, 281 S.W.3d 184, 195 (Tex. App.
- Fort Worth 2009, pet denied).
Appellant’s brief focuses on the quality of Appellee’s expert report without
providing the necessary factual analysis as to why Appellee’s expert report should
even be subject to a Section 74.351 analysis. Appellee’s pleadings assert general
negligence and premises liability claims, and Appellee relies on the same expert
report in asserting those claims as it would asserting a healthcare liability claim.
To the extent Appellee’s case against Appellant is not a healthcare liability claim,
Appellant makes no arguments as to why the expert report would otherwise not be
sufficient.
Appellee’s claims do not fall under the purview of the Texas Medical
Liability Act (TMLA) because the “setting” or “place” of injury is not the
controlling question for determining whether the TMLA applies. “The simple fact
that an injury occurred on a healthcare providers’ premises is not enough." Good
10
Shepherd Medical Center-Linden, Inc. v. Twilley, 422 S.W.3d 782, 788 (Tex. App. -
Texarkana, Mar. 1, 2013, pet. denied). There simply is no other factual basis for
Appellant’s assumption that Appellee’s claims fall under the purview of Chapter
74 of the Texas Practice and Remedies Code except the fact that the injury
occurred in a medical office. However, when this fact is weighed against other
facts provided hereto and discussed below, there is good reason to find that
Appellant’s case falls outside the purview of the Texas Medical Liability Act
(TMLA).
I. THIS CASE DOES NOT FALL UNDER THE PURVIEW OF THE TMLA
A contentious issue in any litigation involving a health care provider is
whether the Texas Medical Liability Act, Chapter 74 of the Civil Practice and
Remedies Code, applies. Although a contentious issue, it is an issue Appellant
entirely avoids in his brief.
The three basic elements of a healthcare liability claim are defined in the
TMLA: (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 injury to the claimant. Texas West
Oaks, 371 S.W.3d at 179-80. The determination of whether a claim is a HCLA
11
requires an examination of the underlying nature of the claim and the facts related
thereto. See Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 664 (Tex.
2010).
The facts surrounding Appellee’s case, for example, raise the question of
whether medical treatment was even being provided at the time of her injuries.
This is an important question that should have been addressed in Appellant’s brief.
If Appellant did not provide medical care at the time of Appellee’s injuries, and
Appellee was injured instead by faulty equipment rather than a doctor’s hand,
Appellee’s claims are safety-related rather than healthcare-related. In March 2013
the Texarkana court became the first appellate court to address the question of the
nexus between safety-related complaints and healthcare in light of the Supreme
Court’s decision in Texas West Oaks. In the case of Good Shepherd Medical
Center–Linden, Inc. v. Twilley, the hospital’s director of plant operations sued the
hospital for negligence after he fell from a ladder attached to the hospital building
and later tripped and fell over a mound of hardened cement on the hospital’s
premises. 422 S.W.3d at 783. The trial court denied the hospital’s motion to
dismiss the employee’s claims for failure to supply an expert report under the
TMLA. Id. at 784. On appeal, the Texarkana court affirmed the trial court’s ruling
and held that, while a safety claim need not be directly related to health care
pursuant to Texas West Oaks v. Williams, there must be some indirect link between
12
an employee’s safety claim and the provision of health care in order for the claim
to fall under the TMLA. Id. at 785.
Although safety claims do not need to be directly related to healthcare
pursuant to Texas West Oaks, there must, nevertheless, be some indirect,
reasonable relationship between claims and the provision of healthcare for such
claims to be healthcare liability claims. Doctors Hosp. at Renaissance, Ltd. v.
Mejia, No. 13–12–00602–CV, 2013 WL 4859592, at *2 (Tex. App.- Corpus
Christi Aug.1, 2013, pet. filed) (mem.op.) (interpreting Texas West Oaks “narrowly
to govern cases that involve safety claims that are indirectly related to health
care”); Twilley, 422 S.W.3d at 788 (Tex. App. - Texarkana, Mar. 1, 2013, pet.
denied) (interpreting Texas West Oaks narrowly and holding that safety claim must
have at least indirect relationship to health care to be considered HCLC);
Methodist Healthcare Sys. Of San Antonio, Ltd., LLP v. Dewey, 423 S.W.3d 516,
519 (Tex. App. – San Antionio, 2014, pet. filed)(holding that safety claims must
have at least indirect relationship to health care to be considered healthcare liability
claim). As the Twilley court correctly noted:
[I]f every safety claim against a health care provider were considered a
health care liability claim, there would be no need to analyze the nature of
the acts or omissions which caused the alleged injuries. Twilley, 422 S.W.3d
at 788 (emphasis in original).
13
See also Texas West Oaks Hosp., 371 S.W.3d 171, 176 (Tex. 2012) (directing
lower courts to distinguish ordinary negligence claims from HCLCs by focusing on
“nature of the acts or omissions” causing alleged injuries).
Most courts weigh facts showing the degree to which the harm resulted from
medical treatment to determine if there is at least an indirect nexus between the
medical provider’s act or omission and the injury. For example, in Weatherford
Tex. Hosp. Co. v. Smart, the Fort Worth Court of Appeals held that a visitor falling
on puddle of water in hospital was not indirectly related to healthcare or safety, did
not require an expert report, and was not, therefore, a healthcare liability claim.
Weatherford Tex. Hosp. Co. v. Smart, 423 S.W.3d 462, 463, 467–68 (Tex.App.-
Fort Worth 2014, pet. filed). In Weatherford Tex. Hosp. the facts made it more
obvious that there was no indirect nexus, since the visitor was not on the medical
premises for treatment.
Appellee agrees that her claims are rooted in facts that are distinguishable
from the Weatherford Tex. Hosp. opinion. Unlike that Plaintiff, Appellee was on
Appellant’s premises for medical treatment at the time of her injury. She was
visiting Appellant’s medical office so that a balance test could be performed on her
to assess her treatment for vertigo. However, Appellee’s injuries were not the
result of any balance test. In fact, at the time of her injury, no medical treatment
was performed on Appellee, no medical doctor was in her medical exam room, and
14
no balance test was performed on her. (CR 75). In fact neither Appellant nor his
medical staff was present at the time Appellee was seated in the medical chair used
to test for vertigo. (CR 75). The only other person present in the room at the time
of Appellee’s injury was an employee non-physician tech of Onsite Balance
Solutions, a third party company contracted by Appellant to perform the balance
testing. Like the Plaintiff in Dewey who had entered hospital grounds for purposes
of medical treatment (i.e., crutches) at the time of injury, Appellee had entered
Appellant’s medical office to undergo medical treatment at the time of her injury.
423 S.W.3d 516, 519–20 (Tex. App.- San Antonio 2014, pet. filed). Yet, even in
Dewey the San Antonio Court of Appeals held that the claim of a hospital visitor
on crutches who fell when the automatic entrance door to the hospital closed on
him was not a healthcare liability claim. Id. The San Antonio Court of Appeals
agreed “with the Mejia court that the supreme court recognized a new type of
healthcare liability claim, one involving safety that is indirectly related to health
care.” Id. However, even where the Plaintiff is on hospital grounds for purposes of
medical treatment at the time of injury, this fact alone is not controlling. The
Dewey decision stands for the proposition that even if the patient entered the
medical premises for treatment (i.e., on crutches), absent other, specific and
articulable defendant conduct showing the injury was born from negligent medical
treatment, no sufficient nexus exists, even indirectly, to qualify the injury as a
15
healthcare liability claim. Id. This is consistent with past precedent in Texas West
Oak, where the court held that “the heart of these cases lies in the nature of the acts
or omissions causing claimants’ injuries and whether the events are within the
ambit of the legislated scope of the TMLA.” Texas West Oak, 371 S.W.3d at 178.
The decision is also consistent with the Texarcana Court of Appeals decision in
Twilley, which held that "a safety claim must involve a more logical, coherent
nexus to health care. The simple fact that an injury occurred on a healthcare
providers premises is not enough." Twilley, 422 S.W.3d at 788.
The Texas West Oaks court further observed that expert testimony is a factor
in assessing the nature of a claim against a healthcare provider. That court found
that where such testimony is necessary to prove or refute the merits of the
employee’s claims, such claims fall under the ambit of the Texas Medical Liability
Act. Texas West Oaks, 371 S.W.3d at 182 (“[W]e now hold that if expert medical
or health care testimony is necessary to prove or refute the merits of the claim
against a physician or health care provider, the claim is a health care liability
claim.”). In the Twilley case, it would be terribly difficult, if not impossible, to
find a qualified expert under the statute who was also competent to opine on the
relevant accepted standards of care—OSHA ladder construction and installation
and walking surface standards. A medical report would not shed any light on
16
whether the ladder violated OSHA standards or whether the concrete mound
constituted an unreasonable risk of harm. Twilley at 788.
Similarly, in Appellee’s case, one would be hard pressed to locate a
qualified expert under the statute who was also competent to opine on the relevant
accepted standards of care on the proper installation and maintenance of a medical
chair used for balance testing. A medical expert report would not shed any light on
whether the chair was properly maintained and inspected or if it constituted an
unreasonable risk of harm. In fact, this was one of Appellant's arguments during
the hearing on his Objections to the Plaintiff’s Expert Report:
Whether defendant breached a standard of care can't be determined
unless you have specific information about what the defendant should
have done different. Now his (referring to Dr. Ravdel) standard of
care opinions were that you have to have -- make sure the medical
equipment is properly maintained and in working order. But there is
no description of how do you properly maintain a balance testing
chair…Do you have to inspect it, you know, on a regular basis, have
an inspection log? Do you have to, you know, check the bolts every
now and then? …There is no indication at all of what specific acts Dr.
Raju supposedly would have had to do to properly maintain a balance
chair. (RR07)
Appellant's own argument demonstrates that this is not a medical liability case.
We learn from the Texas West Oaks, Dewy, and Twilley line of cases that the
mere fact of being on the premises of a medical provider, even for the purposes of
medical treatment, is not singularly sufficient to determine whether a plaintiff’s
claim against the medical provider is a health care liability claim. These line of
17
cases are directing courts to look at the totality of the circumstances, with
particular attention to the nature of the act or omission on the part of the medical
provider. In Diversicare, the Texas Supreme Court used the language “underlying
nature of the claim” to describe the examination required to determine if a cause of
action is a healthcare liability claim. Diversicare General Partner, Inc. v. Rubio,
185 S.W.3d 842, 848 (Tex. 2005). The court held that one must examine the
underlying nature of the claim when determining whether the claim is in fact a
healthcare liability claim. Id. When conducting this analysis, the court provided
guidance, finding that a cause of action implicates the departure from acceptable
standards of medical care if the act complained of is an “inseparable part of the
rendition of medical service.” Id.
Whether Appellee’s injuries are an inseparable part of the rendition of
medical service is best determined by first asking what medical service was
provided. The lower court judge was privy to evidence in this case, such as
Exhibit B to Appellee’s Response to Appellant’s Motion to Dismiss, where the
Onsite Balance Tech present in the room at the time of Plaintiff’s injury informs
Appellant how the injury occurred (CR 75). At no time in the statement does the
tech refer to any medical procedure being conducted at the time Plaintiff’s “chair
was starting to tilt.” (CR 75). Assuming that no medical procedure was performed,
this is the type of medical chair that could tilt anytime a patient is seated in it,
18
regardless of whether medical treatment is being provided or whether the chair is
being used for medical purposes. The Texas Supreme Court has stated that a claim
is not necessarily a health care liability claim merely because a patient is injured by
a physician or health care provider. See Loaisiga v. Cerda, 379 S.W.3d 248, 256–
57 (Tex. 2012). “In some instances, the only possible relationship between the
conduct underlying a claim and the rendition of medical services or healthcare will
be the healthcare setting (i.e. the physical location of the conduct in a health care
facility), [or] the defendant’s status as a doctor or health care provider, or both.” Id.
In Appellee’s case, the injury occurred when neither Appellant nor his staff was in
the medical exam room, and during a time when the tech present in the room had
not started any balance test or any other medical procedure on Appellant’s body.
Appellee provided an expert physician report not to demonstrate that this
court is a healthcare liability claim, but to show the court that it is precisely the
opposite. The Texas Supreme Court has held “that if expert medical or health care
testimony is necessary to prove or refute the merits of a claim against a physician
or health care provider, the claim is a health care liability claim.” Texas West Oak,
371 S.W.3d at 182. Given that Plaintiff’s expert report adds very little to the
factual analysis of what exactly happened on the day Appellant’s medical chair
failed to hold the weight of Appellee is evidence that medical physician expert
testimony adds nothing to the merits of Appellee’s claim against Appellant.
19
Simply put, the factual backdrop of this case is so simplistic that with limited
discovery and the onsite tech admitting that Appellee was injured by a chair that
could not hold the weight of a patient as opposed to injured by a person operating
the chair, there is simply nothing from which any expert can rely to add greater
detail or explanation to the merits of Appellee’s claims against Appellant. To the
extent Appellant argues that an ear, nose, and throat (ENT) specialist would be
able to provide testimony that adds to the merits of Appellee’s claims in the face of
an injury that was not born from any ENT procedure and in the absence of any
ENT present at the time of the injury flies in the face of the facts and is arguably an
argument made in bad faith.
II. IN THE ALTERNATIVE THAT APPELLEE’S CLAIM AGAINST
APPELLANT IS A HEALTHCARE LIABILITY CLAIM, APPELLEE’S
EXPERT REPORT NONETHELESS SATISFIES THE STATUTORY
REQUIREMENTS OF THE §74.351 TEXAS MEDICAL LIABILITY ACT.
A. Plaintiff's expert is not testifying to the standard of care relating to
otolaryngology.
Appellant contends that Dr. Ravdel's opinions regarding the standard of
care: (1) ensure that the equipment used is properly maintained and in working
order, and (2) ensure the balance testing is supervised by Appellant or qualified
medical or nursing staff, are defective because he has not shown that he is qualified
as an expert on these medical procedures.
20
Appellant cites Hansen v. Starr and Chisholm v. Maron for the contention
that to comply with the expert report requirement, the expert report must establish
that the purported expert is qualified. Hansen specified, "For a document to be
considered an 'expert report' for the purposes of section 13.01, it must be rendered
by someone qualified to testify as an expert on the relevant medical subject area."
Hansen v. Starr, 123 S.W.3d 13, 19 (Tex. App. 2003) citing Chisholm v. Maron,
63 S.W.3d 903, 907 (Tex. App.- Amarillo 2001, no pet.). Clark v. HCA, Inc., and
In re Samonte are easily distinguished as they are medical malpractice cases where
the physician who authored the expert report was a different specialty than the
subject of the malpractice action (i.e. a cardiologist authoring an expert report on a
radiology case). Clark v. HCA, Inc., 210 S.W.3d 1, 6 (Tex. App.- El Paso 2005, no
pet); and In re Samonte, 163 S.W.3d 229 (Tex. App.- El Paso 2005, orig.
proceeding).
The case at hand is easily distinguished from those cited by Appellant as
Appellee's injuries in this case did not result from the failure of any medical doctor
practicing any standard of care specific to a particular specialized field of
medicine. By Appellant’s own admission, Appellant was not even in the room at
the time the alleged medical balance testing was taking place (CR 2 nd Supp. 75).
In fact, Appellant admits to outsourcing the procedure to a non-physician third
party contractor, Onsite Balance Solutions. Furthermore, Appellant was so
21
comfortable delegating the testing to a non-physician third party that Appellant
didn’t even require any member of his own staff to be in the room at the time of
the testing. (CR 2nd Supp. 75). The relevant subject area is not any specific area of
the practice of medicine, but the general standard of care any medical physician
premises owner owes his patients, which is to ensure that all his medical chairs and
medical office equipment are sufficiently maintained such that the medical chair
does not collapse when his or her patients are seated.
The medical chair at issue in this case was neither owned by or in the control
of the Onsite Balance Solutions employee who seated Appellant in the chair. He
could not be in control of the chair, for the Onsite Balance Solutions employee had
no history of purchasing the chair, using the chair, maintaining the chair, or any
responsibility as to the upkeep of the medical chair in any manner. The condition
of the chair was the exclusive duty of the owner of the medical establishment, in
this case Appellant. Appellant’s duty to maintain the medical chair is not a duty
born by his role as an ENT, but rather from his role as a healthcare premises owner
providing medical services to patients. This duty extends to any doctor who is
running any private practice, regardless of the specialty. Therefore, any medical
doctor familiar with running a private medical practice (i.e., like Dr. Ravdel)
suffices at providing an opinion as to Appellant's failure to keep office space and
22
patient areas in such operating order to ensure patient safety. As such, Dr. Ravdel
is more than qualified to testify in this subject area.
Appellant further contends that medical services relevant to Plaintiff's claims
of negligence are the services relating to balance testing on a patient with
complaints of dizziness and vertigo. Appellant completely misses the mark, as the
testing services are not at issue in Appellee's claims against Appellant. Appellee is
not complaining about the quality of medical care provided to her relating to the
practice of otorhinolaryngology; the functionality and maintenance of the chair is
at issue in this case rather than the application of any medical procedure.
Appellant argues that Dr. Ravdel's report is "similar to the type of report
rejected by this Court in Carreras v. Travino." The allegations at issue in Carreras
v. Travino involved claims of negligent performance of a total knee replacement.
298 S.W.3d 721 (Tex. App.- Corpus Christi 2009, no pet.). Appellant alleges that
like the report in Carreras, Dr. Ravdel’s report and curriculum vitae give no
information that he has any training or experience in the medical care at issue.
However, this assumes that the medical care at issue is otorhinolaryngology. This
is factually incorrect. Not only was Appellant absent from the patient room at the
time of Appellee’s injuries, but none of his office medical staff were present. In
fact, no medical doctor was present, with the sole witness being a tech from a third
party medical service provider known as Onsite Balance Solutions. Appellee's
23
claim has nothing to do with the practice of otorhinolaryngology and to the extent
that it is a health care liability claim, it is such because it relates to the
administrative functions necessarily related to operating a medical practice rather
than the performance of any otorhinolaryngological (ENT) procedure.
Dr. Ravdel is not testifying as to the standard of care relating to
otolaryngology because this is not a health care liability claim and otolaryngology
was not being practiced by anyone at the time of Plaintiff's injury. Plaintiff
selected an orthopedic surgeon to provide the expert report because the injuries at
issue resulted in orthopedic injuries to Plaintiff. (CR 31-33)
Appellant argues that without information in the expert report showing that
the author is qualified to testify on the subject matter, the report fails; however, Dr.
Ravdel is qualified to testify as to the subject matter of this case. As the owner and
manager of a medical practice, Dr. Ravdel is familiar with the duties related to
keeping the premises of a medical practice safe, including the maintenance of
medical office and patient room equipment, such as medical chairs used for
balance testing.
Appellant cites the requirements of Tex. Civ. Prac. & Rem. Code
§74.351(r)(5)(A) and states that Dr. Ravdel is not qualified because he is not an
ENT engaged in the practice of otorhinolaryngology. However, courts have
permitted experts from different fields to provide expert opinions. A physician
24
expert need not be a specialist in the defendant's particular area of practice if the
subject matter of the claim is common to and equally recognized in more than one
field of practice. Christus Health Se. Tex. v. Broussard, 267 S.W.3d 531, 534
(Tex. App. - Beaumont 2008, no pet.); Grindstaff v. Michie, 242 S.W.3d 536 (Tex.
App. - El Paso 2007, no pet.). Similarly, in Palafox v. Silvey, a patient choked on
food as a result of a negligent physician's order to be given a regular diet. While
the plaintiff's expert was from a different specialty, the Court accepted his
explanation that the understanding of swallowing was not unique to any specialty
and was within his purview of expertise. Palafox v. Silvey, 247 S.W.3d 310 (Tex.
App. - El Paso 2007, no pet.). It is clear that the general principle of maintaining
and making sure a medical chair is properly grounded, balanced, and maintained so
that it does not tip over, causing the claimant to fall would apply to any furniture in
a physician's office.
B. Dr. Ravdel's Expert Report provides a fair summary of the standard
of care because it meets the "good faith effort" test for satisfying the
statutory requirement for expert reports based on the facts of
Appellee’s case.
Appellee’s expert report provided by Dr. Ravdel meets the “good faith
effort” test for satisfying the statutory requirement for sufficiency of an export
report base on the limited discovery rights available to Appellee and the factual
backdrop where Appellee was injured by a medical chair that did not hold her
weight. Appellant contends that Dr. Ravdel’s expert report is so "vague” and
25
“general” that it fails to provide a fair summary of the standard of care.
Specifically, Appellant claims that a proper summary as to the standard of care
requires that the report provide specific information about what the defendant
could have done differently. He further argues that because Dr. Ravdel does not
provide proper this specific information, his standard of care opinion is deficient.
The problem with Appellant’s argument is that it completely ignores the
“good faith effort” test provided by the Texas Medical Liability Act on whether an
expert report sufficiently satisfies the statutory requirements. Appellant cites
several cases where the expert report was found to be insufficient: Guerrero v.
Ruiz, 2008 WL 3984167, involving a medical malpractice case against a surgeon;
Chu v. Fields, 2009 WL 40437 involving a medical malpractice against a doctor
for failure to timely diagnose plaintiff's intracranial aneurysm; Shaw v. BMW
Healthcare, Inc., 100 S.W.3d 8, 14, a wrongful death case involving an overdose
of sedatives at a nursing home. All of these cases cited by Appellant have one
thing in common: they are all medical malpractice causes of action involving
specialized fields of medicine and cases where the negligent act or omission was
directly related to the performance of a specific medical procedure as opposed to
the maintenance of a medical practice’s premises and office equipment.
Appellant cites Strom v. Memorial Hospital System, a medical malpractice
case involving knee replacement surgery which alleged the plaintiff's injury was
26
caused by nurses' negligent placement of plaintiff on the operating room table.
The expert report in Strom was found to be insufficient without statements as to
how to properly place a patient on the operating table. Strom v. Memorial Hospital
System, 110 S.W.3d, 216, 244 (Tex. App. - Houston [1st Dist.] 2003, pet. Denied).
However, Strom is distinguishable from Appellee’s claim against Appellant.
Unlike the Plaintiff in Strom, Appellee was not injured during the performance of
any medical procedure, but due to faulty medical equipment that failed to hold her
weight. Appellee is not alleging that she was improperly placed in the chair, or
any standard of care relating to a failure on the part of the nursing staff to treat her.
Rather the standard of care breached speaks to the condition of the balance chair
which collapsed merely upon Appellee being seated on it, and at a time when no
medical testing was being performed on Appellee.
To meet the statutory requirements under Chapter 74 of the Texas Practice
and Remedies Code, an expert report must provide a fair summary of the expert's
opinions and adequately inform the defendant of the specific conduct called into
question. In re Stacy K. Boone, 223 S.W.3d 398, 406 (Tex. App. - Amarillo 2006,
orig. proceeding). If a court can determine the basis of a plaintiff's complaint, the
report is adequate. Id. An expert report which "adequately demonstrates the
expert's opinion that the claim has merit, implicates appellant's conduct, and
constitutes a fair summary of his report on causation is adequate." Whitfield v.
27
Henson, 385 S.W.3d 708 (Tex. App. - Dallas 2012, no pet.). This holds true
regardless of whether or not the report addresses every causation issue that a
defendant may raise in a challenge. Id.
Plaintiff's expert gives a fair summary of the standard of care given what is
known about Plaintiff's injury and the simplistic facts and circumstances leading to
Plaintiff's injury. The facts of each individual case control the detail required in
the expert report, as the standard is whether the plaintiff has made a "good faith
effort" to meet the statutory requirement. See Tex. Civ. Prac. & Rem. Code
§74.351(1). This analysis necessarily varies depending on the facts of each
particular case. The qualifications of the medical staff supervising Plaintiff and the
maintenance history of the chair are not known at this time. Nothing is known
about the design or condition of the chair except for facts and inferences drawn
from medical records, and given Appellee’s limited discovery rights at this early
stage in the litigation, Appellee has limited tools available to acquire greater
information. Therefore, Appellee has used its best efforts and acted in good faith
to comply with the statutory requirements of the Texas Medical Liability Act
C. Dr. Ravdel's Expert Report is not based on unsupported
assumptions, but rather, on limited, yet obvious facts.
While simplistic, Dr. Ravdel's causation opinion is not conclusory or based
on assumptions. His expert opinion is simple only because the facts surrounding
Plaintiff's injuries are equally simple, making the doctrine of res ipsa loquitur
28
applicable in this case. Given the common sense facts and inferences underlying
Plaintiff's claim, there is simply no way for Dr. Ravdel to reach any other
conclusion except that the medical chair used for balance testing would not have
rolled and fallen over if it had been properly maintained and grounded.
Dr. Ravdel's opinions were not based on unsupported assumptions as alleged
by Appellant, but were in fact inferences drawn from Appellee's medical records.
In Benish v. Grottie, Appellant argued the trial court abused its discretion in
finding Appellee's expert report provided a fair summary of the standard of care
and causal relationship when the expert's opinions were based on unsupported
assumptions. However, the appellate court found it was clear from the report, that
the expert made inferences based on the medical records, a practice that is accepted
by the courts. Benish v. Grottie, 281 S.W.3d 184, 195 (Tex. App. - Fort Worth
2009, pet denied).
D. Dr. Ravdel's Expert Report clearly explains that Plaintiff would not
have fallen and sustained injuries if the medical chair used for
balance testing had been properly maintained.
Appellant alleges Dr. Ravdel's causation opinions are lacking explanation of
how different care would have prevented Appellee's injuries. As previously stated,
Dr. Ravdel's expert opinion is simple because the facts surrounding Plaintiff's
injuries are equally simple, making the doctrine of res ipsa loquitur applicable in
this case. Upon Plaintiff being seated in the chair, the chair did not hold Plaintiff’s
29
weight. There is no reason to believe medical treatment outside of proper
maintenance to the balancing chair, either direct or indirect, had anything to do
with the injuries sustained by Appellee. At the time of the Appellee’s injury, no
medical doctor or any member of Appellant’s staff was present in the patient room.
The only person in the patient room other than Appellee was a non-physician
Onsite Balance Solutions tech. The tech describes the incident in an email to
Appellant, where he clearly implies that whatever caused the chair to fall had
nothing to do with the practice of any medical procedure. (CR 2nd Supp. 75). He
states that after moving his medial equipment, he noticed that the “chair was
starting to tilt on its back, so [I] moved to stand on the base to give the base more
weight. Despite this the chair fell slowly on its back” (CR 2nd Supp. 75). Within
this factual backdrop, Appellee’s medical expert was able to fairly conclude that
the chair began to roll, ultimately falling to the ground and taking Plaintiff down
with it. He further concluded that Appellee fell to the floor with the chair, falling
on the left side of her body when the chair flipped on its side (CR 67). Given the
common sense facts and inferences underlying Appellee's claim, there is simply no
way for Dr. Ravdel to reach any other conclusion except that the medical chair
used for balancing testing would not have rolled and fallen over if it had been
properly maintained.
30
CONCLUSION
The Texas Supreme Court requires an analysis into the gravamen of the
claim in order to determine if the claim is a health care liability claim subject to the
Texas Medical Liability Act, Chapter 74 of the Civil Practice and Remedies Code.
In this case, the gravamen of the claim is the proper maintenance and repair of a
chair. The simple fact that an injury occurred on a healthcare providers premises is
not enough to make it subject to the Texas medical Liability Act.
In this case, the underlying nature or gravamen of the claim is the proper
maintenance and repair of a chair. A safety claim must "involve a more logical
coherent nexus to health care." Twilley at 6-7. The simple fact that the injury
occurred on a healthcare provider’s premises is not enough to make it subject to
the Texas medical Liability Act. Id. In this case, Appellee does not need expert
medical testimony to prove the merits of her claim, as it is unrelated to healthcare.
One would be hard pressed to locate a qualified expert under the statute who was
also competent to opine on the relevant accepted standards of care on the proper
installation and maintenance of a vertigo / balancing chair. A medical report
would not shed any light on whether the chair was properly maintained and
inspected or if it constituted an unreasonable risk of harm.
Appellee maintains that her claim is not a health care liability claim and
therefore not subject to the Chapter 74 expert report requirement. However, in the
31
alternative, if the claim is found subject to Chapter 74 of the Tex. Civ. Prac. &
Rem. Code, Appellee's expert is qualified to provide expert testimony and has
given a fair summary of the standard of care and causal relationship given what is
known about Plaintiff's injury and the simplistic facts and circumstances leading to
said injury.
PRAYER
For the above reasons, this Court should affirm the trial court's order
denying Appellant's motion to dismiss.
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CERTIFICATE OF COMPLIANCE
I certify that this brief was prepared with Microsoft Word 2010, and that,
according to that program’s word-count function, the sections covered by Texas
Rule of Appellate Procedure 9.4(i)(1) contain 8,958 words.
/s/ Alexander Forrest
_________________________
ALEXANDER FORREST
CERTIFICATE OF SERVICE
In accordance with Rule 9.5(e) of the Texas Rules of Appellate Procedure, I
certify that a copy of Appellant’s Brief was served on Plaintiff’s counsel by
certified mail, return receipt requested and e-filing on this 17th of June, 2015.
Garry Sommer
James R. Boston, Jr.
Boston & Hughes, P.C.
8584 Katy Freeway, Suite 310
Houston, Texas 77057
Telephone: (713) 961-1122
gsommer@bostonhughes.com
jboston@bostonhughes.com
/s/ Alexander Forrest
_________________________
ALEXANDER FORREST
33