College Station Medical Center, LLC v. Alma Doreen Todd ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00398-CV
COLLEGE STATION MEDICAL CENTER, LLC,
Appellant
v.
ALMA DOREEN TODD,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 09-000300-CV-85
MEMORANDUM OPINION
Alma Doreen Todd sued College Station Medical Center, LLC for injuries she
sustained from a fall while trying to make her way to the bathroom in her hospital
room. Because the trial court erred in failing to dismiss Todd’s vicarious liability claims
and her alleged premises liability claims, we reverse and remand the trial court’s order
which dismissed in part and denied in part CSMC’s motions to dismiss.
BACKGROUND
Todd was admitted to College Station Medical Center for corrective surgery.
After surgery, Todd allegedly called repeatedly for assistance to go to the restroom.
When no one responded, she attempted to get up and go on her own. She fell, suffering
cuts and broken bones. Todd filed her original petition against CSMC on February 3,
2009 alleging negligence of CSMC based on direct and vicarious liability claims. But in
her original petition, Todd did not identify any specific employee’s conduct as a basis of
her claims. On March 6, 2009, well within the 120-day deadline, CSMC was served with
a report and curriculum vitae from a nurse, S. Francis Scholl Foster. CSMC filed
objections to this report. No other reports were served on CSMC until June 8 and June
12, 2009, outside the 120-day deadline. CSMC filed two motions to dismiss pursuant to
section 74.351(b) of the Texas Civil Practice and Remedies Code contending that no
expert report was filed and a dismissal of Todd’s claims was required.
At the conclusion of the first hearing, the trial court stated on the record that
CSMC’s motion was granted as to Todd’s direct liability claims but denied as to Todd’s
vicarious liability claims. No written order based on that hearing was ever signed.
After the hearing, rather than request an extension of time in which to file an expert
report, Todd amended her petition to delete her direct liability claims against CSMC
and added what she alleged to be a premises liability claim. CSMC filed another
motion to dismiss pursuant to section 74.351(b) again alleging that no expert report was
filed and that a dismissal of Todd’s claims, including the premises liability claims, was
required. Todd responded to the second motion but again did not request an extension
of time in which to file an expert report. After a second hearing, the trial court again
granted CSMC’s motion as to the formerly included direct liability claims, but denied
the motion as to the vicarious liability claims and premises liability claim. A written
College Station Medical Center v. Todd Page 2
order was signed on November 19, 2009. CSMC appeals the trial court’s denial of its
motion to dismiss as to Todd’s vicarious liability claims and premises liability claim.
Todd, however, does not contest the validity of the trial court’s order dismissing her
direct liability claims.
APPLICABLE LAW
Section 74.351 of the Civil Practices and Remedies Code provides that within 120
days of filing a health care liability claim, a claimant must serve a curriculum vitae and
one or more expert reports regarding every defendant against whom a health care claim
is asserted. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp. 2009).
“Section 74.351 has numerous subparts, including:
. subpart (b) requiring trial courts to dismiss a claim with prejudice and award
fees if ‘an expert report has not been served’ by the statutory deadline;
. subpart (c) allowing a 30-day extension of the deadline if a report is found
inadequate; and
. subpart (l) providing that a motion challenging a report's adequacy should be
granted only if the report does not represent a good-faith effort to comply with the
statute.” Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex. 2008) (footnotes omitted); TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(b), (c), (l) (Vernon Supp. 2009).
We review a trial court's denial of a motion to dismiss under section 74.351 for
abuse of discretion. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); American
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).
College Station Medical Center v. Todd Page 3
NO REPORT
In its first issue, CSMC argues that the trial court abused its discretion in denying
CSMC’s motion to dismiss when Todd failed to serve CSMC with an expert report.
CSMC contends that the only report served within 120 days after the filing of Todd’s
original petition was the report of a nurse who is statutorily disqualified from rendering
an opinion on causation. Thus, CSMC argues, the trial court should have dismissed
Todd’s vicarious liability claims.
To the extent Todd alleges that CSMC is liable vicariously for its employees
actions, the expert report requirement is fulfilled as to CSMC if the report is adequate as
to its employees. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 672 (Tex. 2008). An
"expert report" means:
A written report by an expert that provides a fair summary of the expert's
opinions as of the date of the report regarding the 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.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (Vernon Supp. 2009) (emphasis added).
The report must include the expert's opinion on each of the three elements that the
statute identifies: standard of care, breach, and causal relationship. Bowie, 79 S.W.3d at
52; Palacios, 46 S.W.3d at 878. An expert as to the causal relationship between the injury
claimed and the breach of the standard of care is statutorily defined as “a physician who
is otherwise qualified to render opinions on such causal relationship under the Texas
Rules of Evidence.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(D) (Vernon Supp.
2009) (emphasis added). Further, only a physician who is otherwise qualified to render
College Station Medical Center v. Todd Page 4
opinions on that causal relationship under the Texas Rules of Evidence may qualify as
an expert. TEX. CIV. PRAC. & REM. CODE ANN. § 74.403(a) (Vernon Supp. 2009). So,
before a document can be considered an expert report, it must be rendered by one who
fits the definition of an expert and who is qualified to testify as an expert on the
particular subject-matter. See Chisholm v. Maron, 63 S.W.3d 903, 907 (Tex. App.—
Amarillo 2001, no pet.); Hopkins County Hosp. Dist. v. Ray, No. 06-08-00129-CV, 2009 Tex.
App. LEXIS 1269, *5 (Tex. App.—Texarkana Feb. 24, 2009, no pet.) (mem. op.). A nurse
is not a physician and therefore is neither an expert nor is qualified to render an expert
opinion regarding causation. TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.351(r)(5)(D);
74.403(a) (Vernon Supp. 2009).
Accordingly, the nurse’s report, standing alone, is not an expert report. And
because there is no report as to the direct liability claims against CSMC, there is no
report as to the vicarious liability claims against CSMC. See Gardner v. U.S. Imaging,
Inc., 274 S.W.3d 669, 671-672 (Tex. 2008) (“When a party's alleged health care liability is
purely vicarious, a report that adequately implicates the actions of that party's agents or
employees is sufficient.”).
But Todd counters that no report on causation is required because the link
between Todd’s self help to the restroom, her fall, and her injuries is a link that a
layperson can determine. The cases Todd relies on do not pertain to a Chapter 74
expert report in health care liability cases but pertain only to testimony regarding proof
of causation at a trial on the merits. See Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007);
State Office of Risk Mgmt. v. Larkins, 258 S.W.3d 686 (Tex. App.—Waco 2008, no pet.);
College Station Medical Center v. Todd Page 5
Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408 (Tex. App.—Dallas 2006, pet.
denied); see also Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984) (default
judgment that was reversed by court of appeals for insufficient proof of causation;
Texas Supreme Court reversed).
The issue at this point in the proceeding, though, is not a determination of the
merits of the claim. In submitting an expert report pursuant to Chapter 74, a plaintiff
need not marshal all of her proof. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 879 (Tex. 2001). Further, the Texas Supreme Court has held that the
Legislature intended health care liability claims to be scrutinized by an expert or experts
before the suit can proceed. Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005). As the
Supreme Court has stated, the expert report requirement
… establishes a threshold over which a claimant must proceed to
continue a lawsuit. It does not establish a requirement for recovery. It
may be that once discovery is complete and the case is tried, there is no
need for expert testimony… But the Legislature envisioned that discovery
and the ultimate determination of what issues are submitted to the
factfinder should not go forward unless at least one expert has examined
the case and opined as to the applicable standard of care, that it was
breached, and that there is a causal relationship between the failure to
meet the standard of care and the injury, harm, or damages claimed.
Id. Thus, Todd's statutory obligation to file a timely expert report remains even if
causation is commonly understood. See Hector v. Christus Health Gulf Coast, 175 S.W.3d
832, 838 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
Therefore, because no timely report was filed, the trial court erred in failing to
dismiss Todd’s vicarious liability claims against CSMC. CSMC’s first issue is sustained.
College Station Medical Center v. Todd Page 6
ARTFUL PLEADING
CSMC next contends that the trial court erred in denying CSMC’s motion to
dismiss Todd’s alleged premises liability claim because the claim is an improper
recasting of Todd’s health care liability claim.
In determining whether a particular case presents a "health care liability claim,"
we examine the underlying nature of the allegations. Garland Cmty. Hosp. v. Rose, 156
S.W.3d 541, 543-44 (Tex. 2004). We focus on the essence of the claim and consider the
alleged wrongful conduct and the duties allegedly breached, rather than the injuries
suffered. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005).
Further we are not bound by the party's characterization of the claim. Id. A claimant
cannot escape the Legislature's statutory scheme by artful pleading. Murphy v. Russell,
167 S.W.3d 835, 838 (Tex. 2005).
In her original petition, Todd stated, “This is a health care liability claim.” She
then alleged in paragraph VI that
COLLEGE STATTION MEDICAL CENTER, LLC, its nurses and
staff were negligent in at least the following particulars, to wit:
A. Failure to adequately and timely assess, establish nursing
diagnoses, plan, implement and evaluate ALMA DOREEN
TODD’S care and condition;
B. Failure to hire and train appropriate personnel to monitor,
supervise and/or treat ALMA DOREEN TODD;
C. Failure to render timely and appropriate medical treatment and
nursing intervention to ALMA DOREEN TODD;
College Station Medical Center v. Todd Page 7
D. Failure to provide ALMA DOREEN TODD with adequate
supervision and assistive devices to prevent falls and injury;
E. The retention of unfit, unqualified and incompetent staff;
F. Failure to provide sufficient numbers of staff to meet said patient’s
fundamental care needs;
G. Failure to provide the patient with quality care, e.g., the necessary
care and services to attain, or maintain, the highest practicable
physical, mental and psychosocial well-being, in accordance with
the assessment and care plan;
H. In failing to provide adequate nursing care considering the
medication schedule, physical and metal condition, health and
body size of ALMA DOREEN TODD;
I. Failure to formulate and implement a sufficient care plan
regarding the fundamental care needs of ALMA DOREEN TODD;
J. Failure to report and document ALMA DOREEN TODD’S
condition, treatment and response in accordance with accepted
nursing standards and practices that are completely and accurately
documented; and,
K. Failure to provide ALMA DOREEN TODD with quality of life,
dignity and respect with all care necessary to achieve the highest
possible level of health.
Following the initial hearing on CSMC’s two motions to dismiss where the trial
court orally granted the motions as to these claims, Todd dropped these allegations. In
her second amended petition, Todd deleted her statement that “[t]his is a health care
liability claim.” She then deleted her previous allegations in paragraph VI and instead,
alleged the following.
As alleged hereinbefore, Plaintiff was a patient at COLLEGE
STATION MEDICAL CENTER, LLC and was an invitee upon the
premises owned, occupied and controlled by COLLEGE STATION
MEDICAL CENTER, LLC. Plaintiff because a patient at COLLEGE
College Station Medical Center v. Todd Page 8
STATION MEDICAL CENTER, LLC by virtue of agreeing to pay
COLLEGE STATION MEDICAL CENTER, LLC for room, board, basic
household services, personal assistance when needed, nursing services,
medication and use of the facilities, particularly the use of a hospital
room, the room’s bed and the room’s restroom facility. The Plaintiff’s
room contained a bed which was equipped with bedrails. The room was
also equipped with a call button which allowed Plaintiff to electronically
summon hospital personnel to her room. On the occasion of the accident
in question, Plaintiff attempted to summon hospital personnel to her
room by use of the electronic call button mechanism so that she could
receive assistance to go to the room’s restroom facility. However, no one
responded. Failing to receive assistance, Plaintiff then got out of her bed
and attempted to walk to the restroom without assistance. Because
Plaintiff was elderly, recovering from surgery, wearing a sequential
pressure device, and had been given a sedative, Plaintiff fell and was
thereby severely injured. Had COLLEGE STATION MEDICAL CENTER,
LLC’S employees responded to the Plaintiff’s electronic call for assistance
in a timely manner and/or had the bedrails on Plaintiff’s bed been put in
the raised position, Plaintiff’s fall would not have occurred.
Todd further alleged
Answering a patient’s electronic call for assistance does not
implicate professional health care expertise judgment or discretion.
Rather, answering the Plaintiff’s call was mandatory and
nondiscretionary inasmuch as it was one of the bundle of services that
Plaintiff was paying for and that COLLEGE STATION MEDICAL
CENTER, LLC had agreed to provide. Furthermore, the failure to raise
the bedrails on Plaintiff’s bed under the circumstances created an
unreasonably dangerous physical condition (premises defect) of which
COLLEGE STATION MEDICAL CENTER, LLC’S employee(s) had actual
notice which, in turn, proximately caused Plaintiff’s injuries and damages.
The creation of or failure to cure this unreasonably dangerous condition
does not implicate health care expertise or professional judgment. Rather,
it is (was) a negligent failure to utilize or engage the safety features of the
Plaintiff’s hospital bed in the manner which was intended by the
manufacturer and in the manner required by COLLEGE STATION
MEDICAL CENTER, LLC’S own policies, practices, procedures and rules.
The obligation of a health care facility to its patients is not the same as the
general duty a premises owner owes to invitees. Diversicare, 185 S.W.3d at 851; NCED
Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 37 (Tex. App.—El Paso 2006, no pet.). Health
College Station Medical Center v. Todd Page 9
care staff make judgments about the care, treatment, and protection of individual
patients and the patient populations in their facilities based on the mental and physical
care the patients require. Id. This is distinct from the duty of ordinary care owed by
premises owners to their residents and invitees. See id. Focusing on the essence of the
claims, Todd’s “new” allegation constitutes a health care liability claim because it is
based on a claimed departure from the standards of care related to health care, safety,
and professional and administrative services directly related to health care. In this
regard, it is nothing more than an improper effort to recast the prior pleading, which is
clearly a health care liability claim, as only a premises defect when the substance of the
claim remains unchanged.
Accordingly, the trial court erred in failing to dismiss this claim as well because
no report was timely filed. CSMC’s second issue is sustained.
CONCLUSION
Having sustained both of CSMC’s issues on appeal, we reverse the trial court’s
order and remand this case for further proceedings consistent with this opinion.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Reversed and remanded
Opinion delivered and filed September 1, 2010
[CV06]
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