PM Management-Trinity NC, LLC v. Kumets
2012 Tex. App. LEXIS 3197
| Tex. App. | 2012Background
- Trinity Management-Trinity NC, LLC runs Trinity Care Center, a nursing facility where Yevgeniya Kumets resided 2007–2009.
- Kumetses allege medical negligence, negligence per se, gross negligence, negligent hiring/supervision, breach of fiduciary duty, contract, DTPA, fraud/negligent misrepresentation; also retaliation claim under Health & Safety Code §242.1335.
- Expert reports under TX Civil Practice & Remedies Code §74.351 addressed all claims except retaliation; court extended 30 days to cure deficiencies.
- Trial court held amended expert report deficient as to health-care-liability claims and dismissed those claims; retained retaliation claim and dismissed Trisun/Threadgill separately.
- Trinity appeals seeking dismissal of retaliation claim as health-care-liability claim; Kumetses cross-appeal seeking to keep billing-related claims as non-HCLC; court affirms trial court.
- Concurring and dissenting opinions discuss whether retaliation and billing claims are HCLC and the effect of Yamada on severability of claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the retaliation claim a health-care-liability claim under TMLA? | Kumetses argue retaliation is not HCLC. | Trinity contends retaliation is HCLC. | No; retaliation not HCLC; denied dismissal appeal. |
| Are the billing-related claims HCLC and subject to §74.351? | Billing claims arise from care and billing for services; part of HCLC. | Billing fraud intermingled with HCLC facts; must be dismissed. | Yes; billing-based claims are HCLC and properly dismissed. |
Key Cases Cited
- Victoria Gardens v. Walrath, 257 S.W.3d 284 (Tex. App.-Dallas 2008) (timeliness of expert report; context for proximate causation of injury/death)
- Yamada v. Friend, 335 S.W.3d 192 (Tex. 2010) (essence/gravamen guide; same facts cannot support HCLC and non-HCLC without compliance)
- Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (focus on gravamen; underlying facts determine HCLC vs non-HCLC)
- Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658 (Tex. 2010) (definition of health care liability claim; three components)
- Cardwell v. McDonald, 356 S.W.3d 646 (Tex. App.-Austin 2011) (cause of action concept; factual basis controls HCLC analysis)