San Antonio Extended Care v. Ruben Vasquez ( 2010 )


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    OPINION
    No. 04-09-00546-CV
    SAN ANTONIO EXTENDED MEDICAL CARE, INC. D/B/A Med Mart,
    Appellant
    v.
    Ruben VASQUEZ, Individually, and as Administrator of the Estate of Ruben Vasquez, Jr.,
    Deceased, and Oralia Vasquez, Joe Jimenez, and Rosa Ward,
    Appellees
    From the 150th Judicial District Court, Bexar County, Texas
    Trial Court No. 2008-CI-20411
    Honorable Andy Mireles, Judge Presiding
    OPINION ON APPELLEES’ MOTION FOR REHEARING
    Opinion by:       Phylis J. Speedlin, Justice
    Sitting:          Catherine Stone, Chief Justice
    Karen Angelini, Justice
    Phylis J. Speedlin, Justice
    Delivered and Filed: May 26, 2010
    REVERSED AND REMANDED
    The motion for rehearing filed by appellees, Ruben Vasquez, individually and as
    administrator of the Estate of Ruben Vasquez, Jr., deceased, and Oralia Vasquez, Joe Jimenez, and
    Rosa Ward, is granted. This court’s opinion and judgment dated February 3, 2010, are withdrawn,
    and this opinion and judgment are substituted.
    04-09-00546-CV
    In this interlocutory appeal, San Antonio Extended Medical Care, Inc. d/b/a Med Mart (“Med
    Mart”) challenges the trial court’s order denying its motion to dismiss filed pursuant to section
    74.351(a) of the Texas Civil Practice and Remedies Code. TEX . CIV . PRAC. & REM . CODE ANN .
    § 74.351(a) (Vernon Supp. 2009). Because we conclude the trial court erred in finding that Med
    Mart did not meet the definition of a health care provider, we reverse the judgment of the trial court
    and remand the cause to the trial court for further proceedings.
    BACKGROUND
    On April 7, 2008, Ruben Vasquez, Jr. (“Mr. Vasquez”) underwent a tracheostomy. Ten days
    after the surgery, he was discharged from the hospital under doctor’s orders to receive home oxygen
    therapy and trachea care. Med Mart delivered two oxygen tanks to Mr. Vasquez’s home on April
    17, 2008. The following day, Mr. Vasquez’s wife called Med Mart and informed them that her
    husband was running low on oxygen. She again informed Med Mart that the oxygen supply was low
    on April 19, but another delivery was not made. Later that day, Mr. Vasquez became unconscious
    and was transported to the hospital by EMS. He died the next day.
    Thereafter, on December 9, 2008, Ruben Vasquez, individually, and as administrator of the
    Estate of Ruben Vasquez, Jr., deceased, and Oralia Vasquez, Joe Jimenez, and Rosa Ward
    (collectively, “Vasquez”) sued Med Mart alleging, among other claims, that Mr. Vasquez’s death
    was proximately caused by the negligent acts and/or omissions of Med Mart, including: failing to
    provide adequate oxygen tanks as ordered; failing to respond to requests by Mr. Vasquez’s family
    for an adequate oxygen supply; failing to institute safeguards to insure that patients such as Mr.
    Vasquez would always have an adequate supply of medical supplies, including oxygen; and failing
    to provide an adequate oxygen supply as ordered by his treating doctors.
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    On May 14, 2009, Med Mart filed a motion to dismiss claiming Vasquez failed to serve his
    120-day expert report as required by section 74.351(a) of the Texas Civil Practice and Remedies
    Code. See TEX . CIV . PRAC. & REM . CODE ANN . § 74.351(a). Vasquez filed a motion to strike the
    motion to dismiss and a response to the motion to dismiss claiming that he is not subject to the
    requirements of section 74.351 because he did not assert a health care liability claim against Med
    Mart and because Med Mart is not a health care provider. Alternatively, Vasquez argued in the
    motions that he complied with section 74.351 by filing an autopsy report attached to a Stowers
    demand letter within the 120-day expert report deadline and that the report was not objected to by
    Med Mart. The trial court denied the motion to dismiss for failure to file an expert report without
    making findings of fact or conclusions of law, but orally stated that the evidence did not demonstrate
    Med Mart to be a health care provider. The trial court’s order specifically stated that “[t]he Court
    makes no ruling on Plaintiff’s Motion to Strike Defendant’s Motion to Dismiss.”
    STANDARD OF REVIEW AND APPLICABLE LAW
    We generally review a trial court’s order granting a motion to dismiss for failure to timely
    file a section 74.351(a) expert report under an abuse of discretion standard. Pedroza v. Toscano, 
    293 S.W.3d 665
    , 666 (Tex. App.—San Antonio 2009, no pet.); Holguin v. Laredo Reg’l Med. Centr.,
    L.P., 
    256 S.W.3d 349
    , 352 (Tex. App.—San Antonio 2008, no pet.). However, when the issue
    presented requires a statutory interpretation or a determination of whether Chapter 74 applies to a
    claim, i.e., questions of law, we use a de novo standard of review. Brown v. Villegas, 
    202 S.W.3d 803
    , 805 (Tex. App.—San Antonio 2006, no pet.). Whether a claim is a health care liability claim
    is a question of law. Inst. for Women’s Health, P.L.L.C. v. Imad, No. 04-05-00555-CV, 2006 WL
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    04-09-00546-CV
    334013, *1 (Tex. App.—San Antonio Feb.15, 2006, no pet.) (mem. op.); Lee v. Boothe, 
    235 S.W.3d 448
    , 451 (Tex. App.—Dallas 2007, pet. denied).
    Section 74.351(a) provides that a health care liability claimant must file an expert report for
    each physician or health care provider defendant within 120 days after filing the claim. TEX . CIV .
    PRAC. & REM . CODE ANN . § 74.351(a). If the required report has not been served by the 120-day
    deadline, on proper motion by a defendant, the trial court must dismiss the action with prejudice and
    award reasonable attorney’s fees and court costs incurred by the defendant. 
    Id. § 74.351(b)
    (Vernon
    Supp. 2009).
    A “health care liability claim” is defined as:
    [A] cause of action against a health care provider or physician for treatment, lack of
    treatment, or other claimed departure from accepted standards of medical care, or
    health care, or safety or professional or administrative services directly related to
    health care, which proximately results in injury to or death of a claimant, whether the
    claimant’s claim or cause of action sounds in tort or contract.
    TEX . CIV . PRAC. & REM . CODE ANN . § 74.001(a)(13) (Vernon 2005). Whether a claim falls within
    the definition of a health care liability claim requires an examination of the “essence” or “underlying
    nature” of the claim. Diversicare Gen. Partner, Inc. v. Rubio, 
    185 S.W.3d 842
    , 851 (Tex. 2005);
    
    Holguin, 256 S.W.3d at 352
    . “A cause of action against a health care provider is a health care
    liability claim . . . if it is based on a claimed departure from an accepted standard of medical care,
    health care, or safety of the patient, whether the action sounds in tort or contract.” 
    Diversicare, 185 S.W.3d at 848
    . “A cause of action alleges a departure from accepted standards of medical care or
    health care if the act or omission complained of is an inseparable part of the rendition of medical
    services.” 
    Id. The necessity
    of expert testimony from a medical or health care professional may be
    a factor in determining whether a claim is an inseparable part of the rendition of medical or health
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    04-09-00546-CV
    care services. 
    Id. However, the
    fact that expert testimony may not ultimately be necessary to
    support a verdict at trial does not necessarily mean the claim is not a health care liability claim.
    Murphy v. Russell, 
    167 S.W.3d 835
    , 838 (Tex. 2005) (per curiam).
    DISCUSSION
    On appeal, Med Mart argues the trial court abused its discretion in denying its motion to
    dismiss because Vasquez asserted a health care liability claim and was therefore required to serve
    an expert report. In support, Med Mart asserts that Vasquez’s claims for negligence based on Med
    Mart’s alleged failure to furnish adequate oxygen to Mr. Vasquez meet all three prongs of a health
    care liability claim. It is undisputed that Vasquez alleged that Med Mart caused Mr. Vasquez’s death
    by failing to deliver oxygen; thus, the third element necessary to establish a health care liability
    claim—that the plaintiff must allege that the defendant’s action proximately caused injury to or death
    of a claimant—has been satisfied.        TEX . CIV . PRAC. & REM . CODE ANN . § 74.001(a)(13).
    Accordingly, we must determine whether Med Mart is a health care provider, and, if so, whether the
    claims asserted by Vasquez claimed a departure from the accepted standards of health care. See 
    id. 1. Health
    Care Provider
    A health care liability claim is a cause of action against a health care provider or physician.
    
    Id. A “health
    care provider” is defined as:
    [A]ny person, partnership, professional association, corporation, facility, or
    institution duly licensed, certified, registered, or chartered by the State of Texas to
    provide health care, including: (i) a registered nurse; (ii) a dentist; (iii) a podiatrist;
    (iv) a pharmacist; (v) a chiropractor; (vi) an optometrist; or (vii) a health care
    institution.
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    04-09-00546-CV
    TEX . CIV . PRAC. & REM . CODE ANN . § 74.001(a)(12)(A) (Vernon 2005).1 The list is not exclusive.
    See Christus Health v. Beal, 
    240 S.W.3d 282
    , 286 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
    (citing TEX . GOV ’T CODE ANN . § 311.005(13) (Vernon 2005), which provides that “including” is
    a term of enlargement and not of limitation). The statute defines “health care” as “any act or
    treatment performed or furnished, or that should have been performed or furnished, by any health
    care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or
    confinement.” TEX . CIV . PRAC. & REM . CODE ANN . § 74.001(a)(10) (Vernon 2005).
    At the hearing on the motion to dismiss, Carlos Barrera, Med Mart’s vice president, testified
    that Med Mart is a company licensed by the Texas Department of Health and licensed as a
    prescription drug firm. Barrera further stated that oxygen is a drug which requires a doctor’s
    prescription. It is undisputed that Mr. Vasquez was prescribed oxygen by his treating physician, Dr.
    Mark W. Hatch, who ordered that he be released from the hospital and treated at home with oxygen
    therapy. It is likewise undisputed that Med Mart was the entity selected to provide home health care
    services for Mr. Vasquez. Physicians’ orders were faxed to Med Mart by the hospital. Med Mart
    contends that these attributes make it a health care provider. Vasquez counters that Med Mart cannot
    be a health care provider because it is not specifically listed as such in the statute and because it is
    merely licensed by the State as a distributor or manufacturer, not as a health care provider.
    We agree that Med Mart qualifies as a health care provider. The record here contains
    evidence that Med Mart is licensed by the Texas Department of State Health Services as a
    1
    … The term “health care provider” also includes: “(i) an officer, director, shareholder, member, partner,
    manager, owner, or affiliate of a health care provider or physician; and (ii) an employee, independent contractor, or agent
    of a health care provider or physician acting in the course and scope of the employment or contractual relationship.”
    T EX . C IV . P RAC . & R EM . C O D E A N N . § 74.001(a)(12)(B) (Vernon 2005).
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    04-09-00546-CV
    prescription drug firm (manufacturer) and as a licensed device firm (distributor and manufacturer).
    Further, the record contains testimony from Med Mart’s vice president, who stated that a prescription
    drug firm license is the same license held by pharmacies. Unlike in Brown v. Villegas, where we
    held that the alleged health care provider failed to prove its status as such by not including proof that
    it was “licensed, certified, registered, or chartered by the State of Texas to provide health care,” Med
    Mart met its burden of establishing licensure by the State. See 
    Brown, 202 S.W.3d at 806
    . Vasquez
    contends that the evidence here merely demonstrates Med Mart held a license to distribute and
    manufacture drugs—not to provide health care—our reading of the statute leads us to conclude that
    such licenses meet the definition of a health care provider. See 
    Pedroza, 293 S.W.3d at 668
    (noting
    that to ascertain the legislative intent of a statute, we begin with its plain language); Marks v. St.
    Luke’s Episcopal Hosp., No. 07-0783, 
    2009 WL 2667801
    , at *3 (Tex. Aug. 28, 2009) (“When
    interpreting a statute, we read words and phrases in context and construe them according to the rules
    of grammar and common usage.”). The statute merely requires that the provider be licensed to
    “provide health care.” TEX . CIV . PRAC. & REM . CODE ANN . § 74.001(a)(12)(A). “Health care means
    any act or treatment performed or furnished, or that should have been performed or furnished, by any
    health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or
    confinement.” TEX . CIV . PRAC. & REM . CODE ANN . § 74.001(a)(10). As will be discussed below,
    Med Mart supplied prescription-ordered oxygen therapy to Mr. Vasquez. At a minimum, the
    delivery of the oxygen constituted an “act” performed by Med Mart for Mr. Vasquez during his
    treatment. See 
    id. Even though
    the oxygen was delivered to Mr. Vasquez’s home, he was released
    from the hospital under doctor’s orders to receive home oxygen therapy, without which he was
    incapable of breathing. See, e.g., Tesoro v. Alvarez, 
    281 S.W.3d 654
    , 660 (Tex. App.—Corpus
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    04-09-00546-CV
    Christi 2009, no pet.) (location at which health care is performed or furnished is not determinative
    of whether claim constitutes a health care liability claim). Accordingly, we hold that on this record
    there was sufficient evidence to prove Med Mart’s status as a health care provider. We next examine
    whether Vasquez’s claims alleged a claimed departure from the accepted standards of health care.
    2.     Claimed Departure from Accepted Standards of Health Care
    To establish a health care liability claim, the act or omission complained of must be an
    inseparable part of the rendition of health care services. See 
    Diversicare, 185 S.W.3d at 848
    ;
    Garland Cmty. Hosp. v. Rose, 
    156 S.W.3d 541
    , 544 (Tex. 2004). A factor in considering whether
    a cause of action is an inseparable part of the rendition of health care services is whether expert
    testimony from a medical or health care professional is necessary to prove a claim. 
    Diversicare, 185 S.W.3d at 848
    ; Espinosa v. Baptist Health Sys., No. 04-05-00131-CV, 
    2006 WL 2871262
    , at *1
    (Tex. App.—San Antonio Oct. 11, 2006, pet. denied) (mem. op.). Here, Vasquez alleged that Mr.
    Vasquez’s death was proximately caused by the negligent acts and/or omissions of Med Mart,
    including: failing to provide adequate oxygen tanks as ordered; failing to respond to requests by Mr.
    Vasquez’s family for an adequate oxygen supply; failing to institute safeguards to insure that patients
    such as Mr. Vasquez would always have an adequate supply of medical supplies, including oxygen;
    and failing to provide an adequate oxygen supply as ordered by his treating doctors. On appeal, Med
    Mart contends that Vasquez’s claims are inseparably and inextricably linked to the rendition of Mr.
    Vasquez’s health care because his death is alleged to have been caused, at least in part, by Med
    Mart’s failure to provide him with oxygen which was prescribed by his doctor as post-operative
    treatment. In response, Vasquez maintains that Med Mart was merely delivering oxygen to Mr.
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    Vasquez and was not required to remain at his bedside as the oxygen was used; therefore, the
    delivery of oxygen tanks cannot be an inseparable part of the rendition of medical or health care
    services.
    The facts of this case are similar to those in Valdez v. Lopez Health Systems, where the
    plaintiff’s daughter died after a home health care service worker removed the portable suction
    machine required for her survival. Valdez v. Lopez Health Sys., Inc., No. 04-04-00023-CV, 
    2005 WL 1629803
    , at *1 (Tex. App.—San Antonio July 13, 2005, no pet.) (mem. op.). The plaintiff
    alleged that the home health service was negligent in failing to provide necessary medical equipment.
    
    Id. This court
    held that the plaintiff’s claims were governed by section 74.351 because in order to
    establish liability, the plaintiff would have to prove the standard of care applicable to home health
    care providers and then show that the standard was breached. 
    Id. at *2.
    Similarly, in order to
    establish that Med Mart was negligent in failing to provide necessary medical equipment to Mr.
    Vasquez, Vasquez would have to prove that the standard of care applicable to a health care provider
    required Med Mart to deliver oxygen and that Med Mart breached that standard. Thus, Vasquez has
    complained of acts or omissions that occurred during Mr. Vasquez’s treatment by Med Mart. See
    
    Rose, 156 S.W.3d at 544
    . Accordingly, we conclude Vasquez’s claims against Med Mart asserted
    an alleged departure from the accepted standards of health care.
    This conclusion is further bolstered by the fact that expert testimony will be required to prove
    Vasquez’s claims. See 
    id. (noting that
    one consideration in determining whether alleged act or
    omission is inseparable part of health care is proving claim would require specialized knowledge of
    an expert). As Med Mart notes, Vasquez alleged more than a mere failure to deliver oxygen. It is
    undisputed that Med Mart delivered two oxygen tanks to Mr. Vasquez. One was half full and the
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    other was a quarter full. The Med Mart technician set the flow rate of the tanks at two liters per
    minute. The question, therefore, is whether an adequate supply of oxygen was delivered. Med Mart
    argues that it is not within the common knowledge of the general public to know whether the correct
    flow rate was set or whether there was an adequate supply of oxygen delivered in the first instance.
    See 
    Diversicare, 185 S.W.3d at 848
    , 851. We agree. Expert testimony is required to establish
    whether the oxygen tanks were set at the correct flow level or whether an adequate supply of oxygen
    was delivered to Mr. Vasquez. Such information is not within the common knowledge of the general
    public. See 
    Rose, 156 S.W.3d at 544
    ; Imad, 
    2006 WL 334013
    , at *3.
    CONCLUSION
    Based on the reasons stated above, we conclude Vasquez was subject to the requirements of
    section 74.351 because Vasquez’s suit asserts a health care liability claim against Med Mart, a health
    care provider. See 
    Rose, 156 S.W.3d at 546
    ; Holguin, 256 S.W.32d at 353. The trial court erred
    when it denied Med Mart’s Motion to Dismiss on the basis that Med Mart did not meet the statutory
    definition of a health care provider. Because of the trial court’s erroneous conclusion on this issue,
    it never considered Med Mart’s Motion to Dismiss or Vasquez’s responsive Motion to Strike Med
    Mart’s Motion to Dismiss. Accordingly, we reverse the trial court’s order denying Med Mart’s
    motion to dismiss, and remand the cause to the trial court for further proceedings.
    Phylis J. Speedlin, Justice
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