Terry L'Amber-Hope and American Medical Response, Inc. v. Tabitha Stewart ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00286-CV
___________________________
TERRY L’AMBER-HOPE AND AMERICAN MEDICAL RESPONSE, INC.,
Appellants
V.
TABITHA STEWART, Appellee
On Appeal from County Court at Law No. 3
Tarrant County, Texas
Trial Court No. 2020-005868-3
Before Kerr, Birdwell, and Walker, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Appellants Terry L’Amber-Hope and American Medical Response, Inc. (AMR)
moved to dismiss Appellee Tabitha Stewart’s negligence suit against them under the
Texas Medical Liability Act (TMLA), arguing that because Stewart’s claims are
healthcare-liability claims, she was statutorily required to serve them with an expert
report. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13), .351(a), (b). The trial
court denied the motion, and L’Amber-Hope and AMR (collectively, Appellants) have
appealed. In two issues, Appellants argue that the trial court abused its discretion by
denying their dismissal motion. We will affirm.
Background
In her original petition, Stewart alleged that on or about December 19, 2018,
she was a “passenger” in an AMR “van” driven by AMR employee L’Amber-Hope in
the course and scope of her employment. Stewart further alleged that L’Amber-Hope
“failed to drive in a single lane, lost control[,] and collided with the sidewall.” Stewart
claimed that the impact caused her bodily injuries and other damages.
Stewart sued Appellants for negligence, asserting that they were negligent by
failing to timely apply the vehicle’s brakes, failing to maintain a proper lookout, failing
to remain reasonably attentive to traffic and other roadway conditions, driving the
vehicle at an unsafe speed, failing to turn the vehicle to avoid the collision, and failing
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to drive in a single lane.1 Stewart alleged that Appellants’ negligence proximately
caused her bodily injuries, and she sought damages for past and future medical
expenses, past and future lost wages and lost earning capacity, past and future pain
and suffering, and past and future physical impairment.
Appellants answered, generally denying Stewart’s allegations. Appellants then
moved under the TMLA to dismiss Stewart’s negligence claims against them,
asserting—without any supporting evidence—that because Appellants are healthcare
providers and because Stewart’s claims allege safety-standard violations while Stewart
was their patient, Stewart’s claims were healthcare-liability claims. See id.§ 74.001(a)(12), (13). Appellants argued that Stewart was thus statutorily required to
serve them with an expert report, and because she had not, her claims must be
dismissed. See id. § 74.351(a), (b).
Stewart responded that her suit resulted from a motor-vehicle accident and that
the TMLA did not require her to serve an expert report because she was not
Appellants’ patient and because she had alleged a personal-injury claim, not a
healthcare-liability claim. In their reply, Appellants maintained that Stewart was their
patient because she had identified AMR as a medical provider in her disclosure
responses and because at the time of the accident, Stewart was strapped to a gurney in
the back of an AMR ambulance and Appellants were transporting her from her home
Stewart also alleged that AMR was vicariously liable for L’Amber-Hope’s
1
negligence.
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to a hospital after she had called 911. Within the reply’s body, Appellants quoted
some of L’Amber-Hope’s interrogatory responses and included screen-shot excerpts
from L’Amber-Hope’s interrogatory responses and from Stewart’s disclosure
responses and medical records. These excerpts and quotations appear to support
Appellants’ contentions, but neither the actual discovery responses nor the medical
records themselves were attached to the reply.
After a non-evidentiary hearing, the trial court denied the dismissal motion.
Appellants have appealed. See id. § 51.014(a)(9).
Standard of Review
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). But whether a claim constitutes a healthcare-liability
claim is a legal question that we review de novo. Baylor Scott & White, Hillcrest Med. Ctr.
v. Weems, 575 S.W.3d 357, 363 (Tex. 2019). In so determining, we consider the entire
record, including the pleadings, motions and responses, and relevant, properly
admitted evidence. See Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012). Our
consideration includes, but is not limited to, “medical records regarding examination
or treatment of the plaintiff, if any, and the defendant’s pleadings and explanation for
how the contact at issue was part of medical care, or health care, or safety or
professional or administrative services directly related to health care.” Id.4
Applicable Law
Under the TMLA, a plaintiff whose claim constitutes a healthcare-liability claim
must serve an expert report, along with a curriculum vitae for the expert whose
opinion is offered, on a defendant physician or healthcare provider within 120 days of
the defendant’s filing an answer. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a); see
Weems, 575 S.W.3d at 360–61. If the plaintiff fails to timely serve an expert report,
then on the motion of a defendant physician or healthcare provider, the trial court
must dismiss the plaintiff’s healthcare-liability claim with prejudice. Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(b); see Weems, 575 S.W.3d at 360–61.
The TMLA defines a healthcare-liability claim as
a cause of action against a health care provider or physician for
treatment, lack of treatment, or other claimed departure from accepted
standards of medical care, or health care, or safety or professional or
administrative services directly related to health care, which proximately
results in injury to or death of a claimant, whether the claimant’s claim or
cause of action sounds in tort or contract.
Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13); see Ross v. St. Luke’s Episcopal Hosp.,
462 S.W.3d 496, 501 (Tex. 2015). We thus consider three basic elements in
determining whether a plaintiff’s claim constitutes a healthcare-liability claim:
(1) whether the defendant is a physician or healthcare provider; (2) whether the claim
at issue concerns treatment, lack of treatment, or a departure from accepted standards
of medical care, or healthcare, or safety, or professional or administrative services
directly related to healthcare; and (3) whether the defendant’s act or omission
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complained of proximately caused the injury to the plaintiff. Rio Grande Valley Vein
Clinic, P.A. v. Guerrero, 431 S.W.3d 64, 65 (Tex. 2014); see Tex. Civ. Prac. & Rem. Code
Ann. § 74.001(a)(13). The TMLA creates a rebuttable presumption that a plaintiff’s
claim is a healthcare-liability claim if it is brought against a physician or healthcare
provider and “is based on facts implicating the defendant’s conduct during the course
of a patient’s care, treatment, or confinement.” Loaisiga, 379 S.W.3d at 256.
Here, Stewart did not serve an expert report on Appellants at any time, so if
her claims against Appellants are healthcare-liability claims, her suit must be
dismissed. See Weems, 575 S.W.3d at 360–61, 363 (stating that when a plaintiff asserts a
healthcare-liability claim, suit must be dismissed with prejudice if the plaintiff does not
serve an expert report).
Analysis
In two issues, Appellants complain that the trial court abused its discretion by
denying their TMLA dismissal motion because (1) Stewart failed to present sufficient
evidence to overcome the rebuttable presumption that a patient’s claims against a
healthcare provider for alleged injuries sustained during the provision of healthcare
are healthcare-liability claims and (2) a suit brought by a patient against an emergency-
medical technician and an emergency-medical-services provider for injuries allegedly
sustained from a motor-vehicle accident that occurred during medical transport is a
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healthcare-liability claim. 2 In support of both issues, Appellants assert that they are
both healthcare providers—AMR because it is a licensed emergency-medical-services
provider, and L’Amber-Hope because she is employed by AMR and because she is
also a licensed emergency-medical-services provider. Stewart disputes Appellants’
healthcare-provider statuses under the TMLA.
Relevant here, the TMLA defines healthcare provider as “any person,
partnership, professional association, corporation, facility, or institution duly licensed,
certified, registered, or chartered by the State of Texas to provide health care,[3]
including . . . a health care institution.”4 Tex. Civ. Prac. & Rem. Code Ann.
§ 74.001(a)(12)(A)(vii). The term “health care institution” includes “an emergency
medical services provider,” id. § 74.001(a)(11)(C), which “means a licensed public or
private provider to which Chapter 773, Health and Safety Code applies,” id.
2
We note that Appellants have included over 400 pages of discovery responses
and medical records in the appendix to their brief and reference these documents
throughout. Stewart similarly references medical records attached to her brief as an
exhibit. But because none of these documents are included in the appellate record, we
cannot consider them. See Ahmed v. Sosa, 514 S.W.3d 894, 896 (Tex. App.—Fort
Worth 2017, no pet.); see also Tex. R. App. P. 34.1 (providing that the appellate record
consists of the clerk’s record and, when necessary, the reporter’s record).
3
“Health care” is “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).
4
The term healthcare provider also “includes . . . an employee . . . acting in the
course and scope of the employment . . . relationship.” Id. § 74.001(a)(12)(B)(ii).
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§ 74.001(a)(8). As the moving parties, Appellants had the burden to present evidence
that they are “duly licensed, certified, registered, or chartered by the State of Texas to
provide health care.” E. Tex. Support Servs., Inc. v. Brown, No. 12-21-00025-CV,
2021 WL 3671208, at *3 (Tex. App.—Tyler Aug. 18, 2021, pet. denied) (mem. op.)
(quoting Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(12)(A)); see also Obstetrical &
Gynecological Assocs., P.A. v. Hardin, No. 01-13-00236-CV, 2013 WL 6047595, at *2–
3 (Tex. App.—Houston [1st Dist.] Nov. 14, 2013, no pet.) (mem. op.); Brown v.
Villegas, 202 S.W.3d 803, 806 (Tex. App.—San Antonio 2006, no pet.).
Here, Stewart pleaded in her original petition that she was injured while riding
as a passenger in an AMR van5 driven by L’Amber-Hope in the course and scope of
her employment with AMR. Stewart’s pleadings alleged nothing to support an
inference that either AMR or L’Amber-Hope was a TMLA-defined healthcare
provider. But cf. Weems, 575 S.W.3d at 363 (noting that a plaintiff’s pleadings could
suffice to trigger the rebuttable presumption that a claim is a healthcare-liability claim
under the TMLA).
Appellants asserted in their TMLA dismissal motion that they were healthcare
providers as defined by Section 74.001(a)(11)(C). See Tex. Civ. Prac. & Rem. Code
Ann. § 74.001(a)(11)(C) (providing that the term “health care institution” includes
emergency-medical-services providers). They explained that
5
We note that Stewart referred to the vehicle as a van, not an ambulance.
8
On December 19, 2018[,] Plaintiff was a patient being transported
to the emergency department via one of AMR’s ambulances. The
ambulance was being driven by [L’Amber-Hope] who was working for
AMR as an emergency medical technician at the time. Plaintiff was EMT
[L’Amber-Hope’s] patient. En route to the hospital[,] the ambulance
struck a curb. At the time of the collision, the patient (Plaintiff) was
secured to the ambulance stretcher in the patient treatment area of the
ambulance. After the incident, the patient claimed she was suffering
chest pain. A second AMR ambulance responded to the scene. The
patient (Plaintiff) was transferred to the new ambulance and was
transported on to the hospital emergency department. At all relevant
times of the incident in question, Plaintiff was a patient of Defendants.
As noted, Appellants provided no evidence to support these factual assertions, and
unsupported statements in motions are not evidence.6 See, e.g., ODIN Demolition &
Asset Recovery, LLC v. Marathon Petroleum Co., No. 01-17-00438-CV, 2018 WL 4131038,
at *5 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op.)
(“Unsupported arguments in briefs or motions are not evidence.”); Jaimes v. Fed. Nat’l
Mortg. Ass’n, No. 03-13-00290-CV, 2013 WL 7809741, at *5 (Tex. App.—Austin Dec.
4, 2013, no pet.) (mem. op.) (noting that statements made in dismissal motion are not
evidence).
6
AMR cannot rely on its name as evidence that it is a healthcare provider. See
Obstetrical & Gynecological Assocs., 2013 WL 6047595, at *3 (concluding that appellant’s
name—Obstetrical & Gynecological Associates, P.A.—did not “evidence the tasks it
performed or its status with the State” and rejecting argument that appellant’s name
was “self-explanatory evidence that it [was] licensed to provide healthcare”).
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Nor did Appellants file any evidence in support of their reply. 7 Instead, they
included quotations from L’Amber-Hope’s interrogatory responses and screen-shot
excerpts from L’Amber-Hope’s interrogatory responses and from Stewart’s disclosure
responses and medical records rather than attaching the documents themselves.
Appellants’ failing to attach the document themselves essentially reduces these
discovery-response quotations to unsupported factual statements; thus, they are not
evidence.8 See, e.g., Cleveland v. Taylor, 397 S.W.3d 683, 693 (Tex. App.—Houston [1st
Dist.] 2012, pet. denied) (“Neither an attorney’s arguments nor the pleadings or
motions of a party constitute evidence.”).
Without evidence to support Appellants’ contentions that they are emergency-
medical-services providers—specifically evidence that either AMR or L’Amber-Hope
is licensed, certified, registered, or chartered by the State of Texas to provide
healthcare—Appellants failed to prove that they are healthcare providers for which a
report is required. See, e.g., E. Tex. Support Servs., 2021 WL 3671208, at *3–4; Obstetrical
& Gynecological Assocs., 2013 WL 6047595, at *2–3; Doctors Data, Inc. v. Stemp, No. 03-
12-00079-CV, 2014 WL 3809742, at *3 (Tex. App.—Austin July 31, 2014, pet. denied)
7
We express no opinion about whether evidence presented for the first time in
support of a reply can be considered in determining whether a claim is a healthcare-
liability claim.
8
Moreover, L’Amber-Hope could not rely on her own interrogatory responses.
See Tex. R. Civ. P. 197.3 (“Answers to interrogatories may be used only against the
responding party.” (emphasis added)).
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(mem. op.). We thus do not need to address whether Stewart’s claims are healthcare-
liability claims. See Tex. R. App. P. 47.1; E. Tex. Support Servs., 2021 WL 3671208, at
*4. Accordingly, we hold that based on the record before it, the trial court did not
abuse its discretion by denying Appellants’ dismissal motion, and we overrule
Appellants’ two issues.
Conclusion
Having overruled Appellants’ two issues, we affirm the trial court’s order
denying Appellants’ motion to dismiss.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: June 2, 2022
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