Sea World of Texas, LLC v. Renada Mathis, Perreal Woods and Joe Boston ( 2023 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00687-CV
SEA WORLD OF TEXAS, LLC,
Appellant
v.
Renada MATHIS, Perreal Woods, and Joe Boston,
Appellees
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2019-CI-17204
Honorable Rosie Alvarado, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Beth Watkins, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: May 3, 2023
AFFIRMED
Sea World of Texas, LLC challenges the trial court’s order denying its motion to dismiss
under Chapter 74 of the Texas Civil Practice and Remedies Code. We affirm the trial court’s order.
BACKGROUND
In August of 2019, Joe Boston died after swimming in the wave pool at Sea World’s water
park. Although there are few details in the record on this point, it appears that Sea World’s
lifeguards engaged in unsuccessful rescue efforts before Boston died. Appellees, who are Boston’s
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mother, brother, and father, subsequently sued Sea World. Appellees allege that Sea World’s
negligence proximately caused Boston’s death.
On July 27, 2022, Sea World filed a motion arguing that appellees’ claims are health care
liability claims that are subject to the expert report requirement of Chapter 74 of the Texas Civil
Practice and Remedies Code. Because appellees did not serve Sea World with an expert report,
Sea World argued the trial court was required to dismiss their lawsuit.
After a hearing, the trial court denied Sea World’s motion to dismiss. Sea World now
appeals.
ANALYSIS
Standard of Review and Applicable Law
Under Chapter 74 of the Texas Civil Practice and Remedies Code, a claimant who asserts
a “health care liability claim” against a “physician or health care provider” is required to “serve on
each defendant one or more expert reports describing the expert’s opinions addressing the
applicable standards of care, how the defendant’s conduct failed to meet those standards, and how
those failures caused the claimant’s injury, harm, or damages.” Lake Jackson Med. Spa, Ltd. v.
Gaytan, 640 S.W.3d 830, 836 (Tex. 2022) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a),
(r)(6)). If the claimant does not timely file the expert report, “the trial court must dismiss the claim
with prejudice[.]” Id.
For purposes of Chapter 74, “‘[h]ealth 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). A “[h]ealth care provider” is “any person, partnership,
professional association, corporation, facility, or institution duly licensed, certified, registered, or
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chartered by the State of Texas to provide health care[.]” Id. § 74.001(a)(12)(A). A “[h]ealth care
liability claim” is:
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[.]
Id. § 74.001(a)(13).
We generally review a trial court’s ruling on a Chapter 74 motion to dismiss for abuse of
discretion. Complex Rehab Techs., LLC v. Molina, 660 S.W.3d 535, 537 (Tex. App.—San Antonio
2022, no pet.). “However, when we are required to determine whether Chapter 74’s statutory
scheme applies to a defendant or to a plaintiff’s claims, we perform a de novo review” of the entire
record. Id.Application
While Sea World does not contend that it is a “health care provider,” it argues its lifeguards
“are licensed to and were providing health care [to Boston] as that term is broadly defined in the
statute.” To be entitled to dismissal under Chapter 74, Sea World bears the burden to establish: (1)
its lifeguards fall within the statutory definition of “health care provider”; (2) appellees’ claims are
health care liability claims; and (3) “the acts or omissions complained of” proximately caused
injury to appellees. Id. at 538; Brown v. Villegas, 202 S.W.3d 803, 806 (Tex. App.—San Antonio
2006, no pet.).
In support of its motion to dismiss, Sea World presented evidence that the lifeguards
assigned to the wave pool on the day Boston died were certified by the American Red Cross. It
also noted that at that time, the Texas Administrative Code required lifeguards at certain types of
public pools to “hold a current ARC ‘Lifeguard Training’ certificate or the equivalent certification
from an aquatic safety organization, which also includes training in ARC ‘Adult, Infant, and Child
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CPR’ and ‘Community First Aid’ or their equivalent[.]” 25 TEX. ADMIN CODE § 265.199(g)(1)
(2005), repealed by 45 Tex. Reg. 5088, 5090 (2020). Based on these facts, Sea World argues the
American Red Cross was administratively “chartered” to certify lifeguards to provide health care
and, as a result, Sea World’s lifeguards were “certified as required by the State of Texas[.]”
We note as a threshold matter that the now-repealed regulation upon which Sea World
relies used the term “ARC” and did not specify that “ARC” was an abbreviation for “American
Red Cross.” See id. But even if we assume that “ARC” meant “American Red Cross,” the trial
court did not err by rejecting Sea World’s argument. Chapter 74 does not require a health care
provider to be “certified as required by” the state; its plain language requires a health care provider
to be “licensed, certified, registered, or chartered by the State of Texas[.]” See TEX. CIV. PRAC. &
REM. CODE § 74.001(a)(12)(A) (emphasis added); Complex Rehab Techs., 660 S.W.3d at 540;
Brown, 202 S.W.3d at 806. We see nothing in the regulation upon which Sea World relies that
deputized non-state organizations like the American Red Cross to act as licensing bodies of the
State of Texas. See 25 TEX. ADMIN CODE § 265.199(g)(1) (2005), repealed by 45 Tex. Reg. 5088,
5090 (2020); Brown, 202 S.W.3d at 806. Accordingly, Sea World presented no evidence below
that its lifeguards are certified, licensed, registered, or chartered directly by the state. See TEX. CIV.
PRAC. & REM. CODE § 74.001(a)(12)(A).
In its reply brief, Sea World argues, “It is not unusual for Texas to require an individual to
hold a certification from an outside organization in order [to] comply with a statute.” As support
for this assertion, Sea World cites a portion of the Texas Administrative Code that provides, “A
candidate for emergency medical services (EMS) certification shall . . . provide evidence of
current active or inactive National Registry [of Emergency Medical Technicians] certification at
the appropriate level[.]” 25 TEX. ADMIN. CODE § 157.33(a)(6). However, the outside certification
required by section 157.33(a)(6) is one of several prerequisites an applicant must satisfy to obtain
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a certification that is ultimately issued by a state agency: the Texas Department of State Health
Services. See generally 25 TEX. ADMIN. CODE § 157.33(a); 25 TEX. ADMIN. CODE § 157.3
(establishing procedures for TDSHS issuance of EMS certifications); see also Tex. Dep’t of State
Health Servs. v. Kerr, 643 S.W.3d 719, 729 (Tex. App.—Amarillo 2022, no pet.) (identifying
TDSHS as “a state entity”). Section 157.33(a)(6) does not equate “certification . . . through the
National Registry of Emergency Medical Technicians” to a certification by the State of Texas. See
25 TEX. ADMIN. CODE § 157.33(a)(6). Nor does Sea World cite any other authority establishing
that certification by a non-state actor like the American Red Cross satisfies Chapter 74’s definition
of “health care provider.” See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(12)(A).
Because Sea World presented no evidence that its lifeguards were “duly licensed, certified,
registered, or chartered by the State of Texas to provide health care,” it did not carry its burden to
show the lifeguards were health care providers for the purposes of Chapter 74. See id.; Complex
Rehab Techs., 660 S.W.3d at 540. As a result, the trial court did not abuse its discretion in denying
Sea World’s motion to dismiss. See Complex Rehab Techs., 660 S.W.3d at 540; Brown, 202
S.W.3d at 806. Because this issue is dispositive, we need not address Sea World’s additional
contention that appellees asserted a health care liability claim. See Complex Rehab Techs., 660
S.W.3d at 540–41; TEX. R. APP. P. 47.1.
CONCLUSION
We affirm the trial court’s order.
Beth Watkins, Justice
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