*1 PARTNER, DIVERSICARE GENERAL
INC., Leasing Corpora Diversicare
tion, Advocat, Inc., and Texas Diversi Partnership
care Limited Goliad d/b/a
Manor, Petitioners, Mary
Maria G. RUBIO and Holcomb
as Next Friend of Maria G.
Rubio, Respondents.
No. 02-0849.
Supreme Court of Texas.
Argued Sept. 2003.
Decided Oct. 2005.
Rehearing Denied Dec. *3 Siemon,
Dorothy for Amicus Curiae AARP and The National Citizens. Shults, A. Robert for Amicus Curiae Texas, Living Centers of Inc. Stephen Darling, R. Gonzales Hoblit LLP, Antonio, Ferguson Audrey San Mul- Vicknair, lert Audrey Law Office of Mul- Vicknair, Resendez, lert Joel Cruz Chaves Rivero, Christi, Resendez & Corpus Petitioners. Giessel,
Henry Marks, P. T. David Firm, Treeee, T. Marks and Gerald Hous- ton, Respondents.
Justice WAINWRIGHT delivered the Court, opinion of the in which Justice HECHT, MEDINA, Justice Justice JOHNSON, and joined, Justice WILLETT and which Chief Justice JEFFERSON joined 111(B)(3). toas Part We address for the first time whether Liability Improve- Medical Insurance Act) (MLIIA beneficiary a third-party she was governs cipient, or the ment Act and the Diversicare contract between neg- that a home’s patient’s claims un- of Human Services Department Texas provide adequate su- ligence failing to Pro- the Texas Medical Assistance der proximately services pervision gram. injuries from a her sexual assault caused patient. conclude that the another We 26, 2000, Rubio amended September On
nursing home resident’s claims this case arising damages to include petition departures of action for causes from the failure of Diversicare and accepted standards supervise and moni- adequately its staff to *4 Therefore, safety. and the causes of her from sexual abuse tor Rubio to action constitute health care by in violation and assault another resident governed the MLIIA and are claims under of the Texas 22.011 and 22.021 sections pre- two-year statute of limitations multiple incidents alleges Penal She Code. statute. scribed occurring between Octo- of sexual assault summary 1995. The April
ber 1994 and I. Factual and Procedural incident identifies one judgment evidence
Background A April that took on 1995. nurse place room and discovered a entered Rubio’s August January From 1994 to straddling male resident Rubio on the bed. 1999, Maria Rubio was resident of Goliad daughter physician Both Rubio’s and her Manor home. suffered from She shortly informed of after were the incident Type, Senile Dementia Alzheimer’s at it occurred. Rubio remained a resident mentally for rendering incapacitated Manor for another three and one- Goliad stay of her Goliad. duration years. half 14, 1999, July daughter, On peti- in her amended Rubio also added Holcomb, friend, Mary next brought as implied claim for of an cove- tion a breach suit on Rubio’s behalf Diversicare provide reasonably nant to safe Partner, Inc., Leasing General Diversicare third-party in which Rubio was a beneficia- Advocat, Inc., and Di- Corporation, Texas Diversicare and ry of the contract between doing Partnership versicare Limited busi- Department of Human Services. the Texas (collectively as ness Goliad Manor Diversi- fraudulent induce- Rubio further claimed care) injuries for Rubio sustained two ment, facility represented alleging that separate falls at the facili- while resident safety. provide it would for her ty. alleged She that Diversicare and its summary judg- Diversicare moved negligent failing provide staff were from supervision arising all of Rubio’s claims adequate services ment on assaults, needs; arguing that failing alleged to the sexual meet her fundamental for, hire, two-year of limita- the MLIIA’s statute budget and train sufficient recovery tions barred the claims. qualified number of direct staff; arising all claims faffing to district court severed develop implement granted Diversi- procedures for safe- from the assaults adequate policies and summary judgment. The ty, training, staffing at its care’s motion for homes; reversed, holding that Ru- appeals violations of section 22.04 court of and for arising as- “Injury alleged claims Penal entitled bio’s the Texas Code negli- law Child, claims for common Elderly, or Disabled Individual.” saults are the MLIIA. brought gence a claim and are covered Rubio also for breach that, The court conclud- asserting as a Medicaid re- 82 S.W.3d 788-84. contract ed that incapacity Rubio’s mental tolled the commencement date personal inju- the statute limitations for period the limitations for the arising claims, ry provided by section 16.003 of depends sexual assaults the Texas Civil Practice and Remedies upon whether the statute of limitations Code. Id. at 781-82. peti- Diversicare the MLIIA or the Texas Civil Practice and tioned this Court for review. applies. Remedies Code If the Texas Civil Practice and Remedies Code applies, the
II. Standard of Review
tolled,
period
limitations
and Rubio’s
Summary judgment
appropri
not barred.
If
sup-
the MLIIA
ate when
no genuine
there is
issue
toas
limitations,
plies the
statute
the limita-
any
judgment
material fact and
be
should
period
tions
is not
tolled and Rubio’s
granted in favor of the movant
aas matter
claims are barred. We note that for limi-
of law. KPMG
Marwick
Peat
v. Harrison
purposes
parties
tations
dispute
do not
County
Corp.,
Hous. Fin.
the assaults
occurred
later than
(Tex.1999).
A
moving
defendant
*5
summary judgment on the
de
affirmative
of
fense
limitations has the burden to con
III. Discussion
clusively
defense,
establish that
including
MLIIA,
In
Legislature
modified
the accrual date of the
cause
action.
liability
relating
laws
health care
Id.; see also Provident
& Accident
Life
claims
address
the Legislature
what
Knott,
211,
Ins. Co. v.
128 S.W.3d
220
described
aas medical “crisis [that] has
(Tex.2003). If the movant establishes that
had a material adverse effect on the deliv-
action,
the statute of limitations bars the
ery of medical
health
and
care in Texas.”
summary
nonmovant must then adduce
30, 1977,
R.S.,
May
Act of
Leg.,
65th
ch.
judgment proof raising a
fact
issue
817,
1.02(6),
2039,
§
1977 Tex. Gen. Laws
avoidance of the
statute
limitations.
(former
4590i,
2040
Tex.Rev.Civ. Stat. art.
Marwick,
KPMG Peat
A cause action a plainly health care ture is within common knowl- provider is laymen, a health care edge leaving claim such as sponge patient under the MLIIA if it surgery). after based departure claimed from an accepted stan Walden, In this Court held that a claim care, care, dard of medical health or safety ill-fitting is a dentures health care lia- patient, of the whether the action sounds bility governed the MLIIA. 907 Id, 1.03(a)(4); § tort or contract. Jeffery S.W.2d at 448. Lena sued her MacGregor Campbell, Med. Assoc. v. Terry Dr. dentist Walden for breach 38, (Tex.1998); Gormley S.W.2d v. Sto contract, implied warranty, breach of ver, 448, (Tex.1995); 907 S.W.2d So provide DTPA violations for failure to den- rokolit, 242; Mulligan 889 S.W.2d at tures fit. Id. at 447. We held that Enters.-Tex., Inc., Beverly 954 S.W.2d providing inseparable dentures was from (Tex.App.-Houston [14th Dist.] provided part pet.); no Waters ex rel. v. Del-Ky, Walton provision dental ser- Inc., (Tex.App. 258-59 vices. at 448. writ). -Dallas A cause of action Shaw, the court appeals, following alleges departure accepted from stan Walden, our plain decision held that a dards of medical care if tiff bring could not a claim for intentional act or complained omission is an insepa elder abuse separate his MLIIA part rable of the rendition of medical ser claim for negligence because the vices. See former Tex.Rev.Civ. Stat. art. negligent administration of an overdose 4590i, 1.03(a)(2), (4); Jeffery, Walden v. sedatives con resident (Tex.1995); 907 S.W.2d Shaw v. stituted a breach of the standard of care Healthcare, Inc., BMW Shaw, for a provider. denied). (Tex.App.-Tyler pet. Shaw, at 15. patient, was admin pos istered him sedatives restrain necessity expert testimony *7 injury by wandering sible facil around the from a medical or health care ity. Id. hospitalized at 10. He was and a prove to a claim an important be developed very high month later blood factor in determining whether a cause of sugar levels and died. Id. at 10-11. inseparable part action is an of the rendi tion of medical or argued nursing health care services. Shaw that the home was Rose, Cmty. Hosp. Garland v. negligent allowing nursing S.W.3d to staff see, (Tex.2004); e.g., Bush v. administer restraints chemical to Shaw Inc., Operator, gave Green Oaks and that this conduct rise to two (Dod 674 (Tex.App.-Dallas pet.) independent neg- causes of action: one for son, (“Further, J. dissenting) in ligence governed by the MLIIA and one this case are of the that type require would for intentional elder abuse outside the expert testimony appropriate as to the scope the Act. Id. at 14. The court of patients standard in segregating appeals of care the claim held that for intentional hospital....”); psychiatric Rogers v. elder abuse was substance Serv., Inc., Nursing applicable Crossroads 13 S.W.3d breach of the standard of care 419 (Tex.App.-Corpus provider governed Christi no for a health care Therefore, pet.). Arnspiger, see MLIIA. Id. at But Haddock dismissal (Tex.1990) (noting proper that of the claim was because the plain- expert to testimony expert report not needed establish tiff did not file an as mandat- duty depar- breach of a medical where the ed the statute. Id. The court noted legal apply at 256. We these 10.01. Id. gave facts rise to Shaw’s that the which claims. tenets to Rubio’s as those claims were the same MLIIA for intentional upon relied for his claim B. Rubio’s Claims abuse, on and both were based elder of care accepted of the standard breaches 1. Health Care provider. Id. The court for a health care follow, that we For the reasons correctly recognized if the appeals of action are that Rubio’s causes conclude the claim gave act or omission that rise to of care of the standard for breaches so of medical integral to rendition because the provider for a health care insepara- to provider services be patient who of Rubio and supervision services, part of it constitutes a ble those of Rubio protection her and the assaulted applicable of the of care breach standard care and from the health inseparable governed providers to health care and is provided to nursing services her. by the MLIIA. See id. Rubio, petition, asserts in her amended itself out to the Goliad Manor held Waters, Walton, nursing home Will facility nursing compe- home public as attention, who constant nursing home qualified provide tent and second-story fell from a window. 844 necessary care and with all the services days at 252. He died later as four home precaution expected nursing of a injuries he sustained in the result facility. Rubio that Goliad failed contends Waters, sister, fall. Id. His Ruby Mae appropriate personnel to hire and train suit home un- brought nursing her, 24-hour provide failed monitor Survivorship der the Texas statute and the nursing sufficient number services from a Deceptive Texas Trade Practices Act for nursing personnel meet qualified injuries ground her brother’s Rubio, incom- nursing needs of hired total provide home failed to him unqualified to petent staff who were appropriate with and medical physical her, imple- and failed establish care. DTPA ac- Id. 252-53. Waters’s safety policies appropriate ment al- tion on the home’s was based its residents. leged express warranty pro- it that would to its provides services A alia, vide, adequate inter medical care clock, in- patients, often around the which person- qualified evaluation sufficient activities; daily provid- supervising clude supervise nel properly her brother. *8 with and visits ing routine examinations at 254. dietary, pharmaceu- physicians; providing appeals
The court of
held that the MLI-
services;
tical,
monitor-
and routine dental
negligent supervi-
IA
applied because
conditions of
physical
and mental
ing
a
a claim for
helpless
sion of
resident was
medications;
residents;
administering
its
applicable
from the
standard
deviations
care needs of
meeting the fundamental
and
nursing home
if the claim
care for the
even
Safety
See Tex. Health &
the residents.
misrepresentation
is framed as
failure
242.001;
see also
U.S.C.
§
Code
warranty.
Id.
comply
express
1396r(b)(4)(A).
with
§
These
fundamental
Waters,
appeals
court of
include,
necessary, feeding,
at 258-59.
where
needs
rejected
legal dis-
the contention that the
with walk-
assisting the resident
dressing,
sanitary
condi-
ability
providing
living
of unsound mind contained
ing, and
tolling
two-year
40 Tex. Admin.
general
statute tolls the
tions.
See
Code
19.901(1).
provided
§
These services
MLIIA’s section
statute
limitations
by professional
including
staff
physicians,
of Rubio and
patient population
Goliad’s
nurses,
aides,
nurse
and orderlies who care
to protect
patient
and
her and
popu-
for the residents.
themselves
harming
lation from
and each
other.
Contrary
argument,
Rubio’s
The
types
level and
of health care ser
this dispute
simply
concerns more than
provided vary
vices
with the needs and
determining
person
whether a
should be
mental,
capabilities, both physical and
protected from a “known” attacker. This
See Harris v. Harris Coun
patients.
is,
dispute
parties
core,
between the
at its
Dist.,
ty Hosp.
(Tex.
appropriate
over the
standard of care
writ).
Civ.App.-Houston
1977, no
[1st Dist.]
resident;
owed to this
home
what
Nursing
homes are
to assess each
services, supervision,
monitoring
and
were
capabilities,
resident’s needs and
including
necessary
satisfy
standard;
and
life functions and significant impairments.
whether such specialized standards were
19.101(23),
40 Tex. Admin.
§§
Code
breached.
training
Diversicare’s
and
requires
19.801. The law
these
facilities
staffing policies
pro-
supervision
and
and
prepare
comprehensive
plan
to ad
tection of Rubio and other residents are
medical,
dress the
nursing,
resident’s
men
integral components of
ren-
Diversicare’s
tal, psychosocial, and other needs.
Id.
dition of health care services to Rubio.
19.101(24),
§§
plan
19.802. This
must
“professional
meet
of quality.”
standards
Rubio
if
posits that
she had
been
19.802(d)(1).
patients
Some
need
visitor to
Manor
Goliad
when she was sex-
psychological
ually assaulted,
while
re
others
there
argu-
would be no
quire
require
none. Some
en
patients
ment
apply.
Act does
The
hanced supervision
claims,
and additional
staff
result in this
she
should be no
physical
restraints to
them from
simply
different
because the victim was a
injuring themselves and others or to pro
resident of a
and
home
the sexual
tect
patients,
them from other
while other
happened
assault
to occur in health care
patients
require
protections.
facility.
do not
such
hypothetical highlights
intensity
The nature and
care and treat
the distinction between health care
ment,
including professional supervision,
premises
claims and
claims.
assessment,
monitoring,
quantities and
important
There is an
distinction in the
medication,
types of
and other
relationship
premises
between
owners
judgments
treatment are
profes
made
invitees on one
facili-
hand and health care
experienced
sionals trained and
in treating
patients
ties and their
on the other. The
caring
patients
and the
latter involves health care.
populations in their health care facilities.
obligation
The
of health care
supervision
facility
monitoring
patients
is not the
same
Rubio and other nursing
general duty
residents
owner owes to
provided
services
to Rubio
judg
invitees. Health care staff make
*9
by
care, treatment,
part
pro
Diversicare’s staff were
of her ments about the
and
nursing
provided
pa
health care. The
patients
home
tection of individual
and the
including
for Rubio’s fundamental
populations
needs
tient
in their facilities based on
assuming
custody
elderly
care and
of this
physical
patients
the mental and
care the
patient.
supervision
require.
applies
Professional
and
care
health
standard
provided
services
ordinary
experi
were
to Rubio the
and
care
trained
other residents. The
at
professionals
staff
enced medical
to the treat
See
Goliad Manor
obligated
was
to take care
to
patients
ment
entrusted
them.
is
A
we consider whether
Sampson,
factor
Hasp. Sys.
Mem’l
Baptist
(Tex.1998).
necessary
prove
testimony is
to
expert
Premises
judg
to
similarly
duty
alleged lapses
professional
owe a
of care
in
owners
these
invitees,
duty is
expertise
their residents
but
treatment.
Is
ment and
general
care with no
to determine
required
care field
health
number,
their residents.
duty
diagnose
to
treat
training, and certifi
appropriate
(Tex.
Rosa,
Meeks v.
988 S.W.2d
necessary
See
professionals
of medical
cations
1999).
This distinction defeats
weak
patients in
protect
to care for and
are
a
analogy. Residents
injury by
pa
other
ened conditions
merely for
for care and
not
think
facility?
a
We
tients in
health
Safety
See,
e.g.,
shelter.
Tex. Health &
is
within the common knowl
so.
It
242.151-.157,
242.001,
§§
242.401-
Code
to
edge
general public
determine
.404;
§§
40 Tex. Admin. Code
19.801-
patients in
conditions
ability of
weakened
.1701.
themselves,
po
nor
a
whether
of an attack in a healthcare
target
tential
addition,
focus on the es
we
protected and
facility should be better
claim
sence of Rubio’s
and consider
general public is not
what means. The
duties
alleged wrongful conduct and the
potential
to evaluate whether
trained
breached,
allegedly
rather than the unfor
facility
admitted to a health care
attacker
Rose,
injuries she suffered.
tunate
chemically
or
re
physically
should be
(“Plaintiffs
at 548
cannot use artful
patients
harm to other
prevent
strained
require
MLIIA’s
pleading to avoid the
pro
better
other'patients
if
should be
or
the essence of the
ments when
suit is
through
supervision.
increased
tected
claim.”).
liability
is
It
well
public
not know
general
And the
does
that a health care
claim
settled
physical
restraint
whether
be recast as another cause of action
cannot
resident,
if certain
prevent assaults
requirements
to avoid the
of the MLIIA.
sufficient, or if a
types of
medication
Assoc.,
38;
at
MacGregor Med.
985 S.W.2d
required,
be
may
combination of the two
Sorokolit,
450;
Gormley,
907 S.W.2d
degree
and to what
these determinations
at 242.
We “are
bound
depend
physical
on the propensities
‘recast
pleadings,
niceties
and a mere
the resident.
and mental characteristics of
ing’
based
requires
law
note that
federal
We
negli
physician
provider
judgment
physician
and written order of
gence
garb
in the
other cause of
some
chemically
physically
po
restrain
preclude
ap
action
not sufficient
in a
home.
tential attacker
M. Wilk
plication Article 4590L” Glen
1396r(c)(1)(A)(n);
Torres v.
see
U.S.C.
erson,
Davis,
Cleveland, &
David M.
Wes
State, 49
373 N.Y.S.2d
A.D.2d
Analysis
Recent At
Young,
Michael P.
(“[T]he
decision
(N.Y.App.Div.1975)
Negligence
tempts
Assert Medical
only limited re
under
place decedent
U590Í,20
Article
Claims “Outside” Texas’s
judgment....”).
Litig.
a medical
straints was
(2001).
Rubio’s claim
Rev.
myr
know the
general public
Nor does
Diversicare,
employ
through its
is not that
to be
questions
iad of other
need
committed the sexual as
agents,
ees and
answered, making such
asked,
much less
through lapses
sault. Rubio claims
SunBridge
professional
judgments. See
Di
judgment and treatment
*10
v. Penny, 160 S.W.3d
Corp.
the sexual Healthcare
negligently
versicare
allowed
2005, no
230,
(Tex.App.-Texarkana
assault to occur.
pet.) (stating
that standards for
allegedly
whether the facts
raise issues
budgets
staffing
levels are “is-
that are within
knowledge
the common
sues
within
knowledge
or,
the common
or
experience
jury
alternatively,
of the
experience
jury”).
of the
questions involving
judg-
raise
medical
ment.”
Michigan
Id.
465. The
Su-
Two
supreme
other state
courts that
preme Court also determined that “[t]he
addressed this issue reached the same rea
ordinary layman
type
does not know the
soned conclusion that claims for assault
supervision or monitoring
required
that is
under
similar
implicate
circumstances
for psychiatric patients
psychiatric
in a
medical or health care under
applica
their
ward.” Id. at 466. It concluded that the
ble
malpractice
medical
statutes. Dorris
patient’s suit
malpractice
was a medical
v.
Detroit Osteopathic Hosp., 460 Mich.
action.
(1999);
that during hospital stay, a fellow directly mental health services to him.” pushed her to the floor and beat her. 594 Id. at 914. alleged N.W.2d at 458. The victim of the supreme Two other state courts have
battery hospital, alleging sued that the professional likewise reasoned that deci- hospital had inadequate staffing super- supervising restraining sions on pa- vise and pa- monitor the behavior of its tients at health require care facilities medi- tients psychiatric under care. Id. The judgment. cal See D.P. Wrangell v. Gen. Michigan Supreme Court considered (Alaska 2000) Hosp., 5 229 n. P.3d hospital’s whether failure to su- (“[I]n [plaintiff] so far as intends to argue pervise patients and monitor is a medical action, issues that involve medical malpractice specialized de- requiring thus the sat- appropriate cisions—such as level procedural, statutory isfaction of certain requirements.4 physical restraints Id. at 464-66. The medication”—she court requirements held that must fulfill the determination mal- “[t]he whether act.); practice Regions claim will be held Bank & proof standards Trust procedural requirements County Nursing Facility, of a medical Stone Skilled Inc., malpractice action opposed claim as 345 Ark. (2001) (“[A]
ordinary negligence depends is ] home[ notice, Michigan’s imposes statute certain a health or health facili- affidavit, procedural requirements and other ty." Comp. Mich. Laws 600.2912b. "alleging in actions
853 profession- tients, by care for are made health to care patient’s capacity consider and treatment protect pa part and to als as of the care himself or herself by her dangers created his or to their facilities. tient from patients admitted en Providing condition. a safe alleged weakened determined Legislature has scope patients for is within the vironment are health of these standards breaches hospital or services of a professional of Tex.Rev. liability claims. See former care home.”). of A number other state 1.03(a)(4). 4590i, § Civ. art. Stat. applied courts have the same appellate argument her support In Hosp., v. logic. Sharp Cabrillo See Bell her claims govern not MLIIA does 886, Cal.Rptr. Cal.App.3d 212 260 Diversicare, on cases Rubio relies several (1989) (“[T]he competent selection 896 holding that by appeals courts of decided precisely of medical staff is review care facilities sexual assaults hospital is professional service a type by patient against another one perpetrated expected for it provide, licensed and to ordinary negligence, are claims providing in the medical business MLI liability claims under the patients protecting them Tex., Inc. v. Ctrs. IA. See Healthcare receiving unreasonable risk of harm while (Tex.App. Rigby, S.W.3d 616-17 97 competent medical treatment.... [T]he denied); 2002, pet. [14th Dist.] -Houston responsibility of this ‘inex performance Antonio, Inc., Zuniga Healthcare San compe tricably delivering interwoven’ with Antonio (Tex.App.-San 780 S.W.3d hospital pa quality tent medical care 670; Bush, at 39 S.W.3d pet.); tients.”); Hickey Ogle v. John’s Mem’l St. Word, Charity the Incarnate Sisters Hosp., (Ind.Ct.App. N.E.2d Houston, Gobert, 25, 27 S.W.2d Tex. v. 1985) (holding that act 1997, no (Tex.App.-Houston Dist.] [1st governed alleged protect failure to appeals have pet.). Other Texas courts be from sexual assault psychiatric in analogous result opposite reached the integral cause her confinement was 8; See, Shaw, 100 e.g., situations. treatment); diagnosis and M.W. v. Jewish Waters, Louis, Hosp. Assoc. St. (Mo.Ct.App.1982) (holding that claim Rubio, by patients cases cited improper supervision allowing schizo conditions or suf- in weakened who were phrenia patient hospital neuro-psychi- capacities were fered from reduced mental in sexual relations engage atric ward to sexually patients other assaulted is a for medical patients
with other victims’ claims these facilities. The malpractice and for failure to use ordi inadequate on monitor- based cases were care). nary But Sumblin v. see Craven For the supervision, and health care. ing, County Hosp. Corp., N.C.App. of these disapprove explained, reasons we (1987) (holding that 378-79 S.E.2d that the they to the extent hold decisions hospital patient failure pa- for assault other patients’ claims patient does not from assaults another claims, not health tients are involve the failure render that term. Legislature as the defined services). nursing medical irony note the in Rubio’s Finally, we pro-
We do not declare that MLIIA position. She asserts duty prevent have no assaults viders claim, she to her which However, recog- apply should not we inpatients. between liability claim based is a health and contends judgments concerning nize that If were care, ordinary negligence. we including pa- protection *12 her, agree special, with our decision would have medical care. At 855. The dis- the effect lowering of the standard from justices senting and concurring contend care for residents alleged that Rubio a common law in health care cir- facilities under similar premises liability independent of her cumstances. general While we make no liability position claim. Their pronouncements in this case the stan- open would the door to splicing health care of applicable dard liability claims into a of multitude other residents, conduct toward their we decline care, causes of action with standards lower the standard Rubio’s circum- damages, procedures contrary and to the stances we find no indication that the Legislature’s explicit requirements. It is Legislature intended to it. lower well settled that such artful pleading and of claims recasting permitted. is not See Response 2. to Concurrence Assoc., MacGregor 40; Med. at S.W.2d and Dissent 450; Walden, Gormley, 907 at concurrence, In his Chief Justice Jef- Sorokolit, 448; S.W.2d at 889 S.W.2d at disagrees allegations that Rubio’s feeson 242. There may be circumstances that fall within the MLIIA’s definition of health give premises rise to liability claims in a care. At 857. Chief Justice JeffeRSon healthcare setting not be proper- would characterize some Rubio’s ly claims, classified as health care specifically, allegations Rubio’s claims— present but those are circumstances concerning protect Diversicare’s failure to here. assault, her from sexual imple- failure to adequate ment safety precautions, fail- and Chief Justice Jefferson takes issue ure to appropriate safety establish with the specialized Court’s conclusion that staffing procedures premises liability —as knowledge necessary health care is claims or ‘inadequate “claims for securi- physically and psychologically evaluate an ” “ ty’ ‘independent any that are medical inpatient population and determine the ” diagnosis, or care.’ Id. (quot- types precautions staffing levels Ctr., ing Robinson W. Fla. Reg’l Med. appropriate that are in particular for use 675 So.2d 228 (Fla.Dist.Ct.App.1996)). Instead, facility. at contrary, To the implicate Rubio’s claims conclude, Rubio, he would as does inadequate more than security or negligent occurrence of assault establishes maintenance. is Rubio not complaining facility’s duty the health care and breach an about unlocked gave window that duty any specialized of that without analy- facility rickety intruder access to the or a treatments, policies, proce- sis what staircase that gave way weight. under her dures appropriate are to the circumstances All arise acts omis- they and whether were breached. We sions that inseparable provi- from the length have at explained diag- Walden, sion of health care. See nosis, treatment, and care that 448. We do distinguish provide homes are law to Rubio’s health care claims from recognize their residents. We “simply because the land- vary physical, care will with the different is provider” owner a health care be- but mental, psychosocial pre- conditions gravamen complaint cause the inpatients. general sented to imple- failure Diversicare for, policies public medically adequate hardly equipped ment di- super- vise, require agnose inpatients residents who these and treat their *13 filed Rubio suit infirmities, Code. Because how Remedies and determine ailments in occurred in the sexual assault 1999 and patient population. the protect to are barred the Rubio’s Safety in the MLI- 3. of limitations two-year statute decision the court IA. reverse the We that Rubio’s We conclude judgment render Diver- appeals and departures may be characterized sicare. safety. For accepted standards of from 4590i, art. mer Tex.Rev.Civ. Stat. filed Chief Justice JEFFERSON 1.03(a)(4). § Because the statute does dissenting in concurring part, in opinion safety, meaning as apply we define judgment. in concurring part, and Id. at the common law. consistent with 1.03(b). dissenting filed a commonly § The understood Justice O’NEILL and in which Justice BRISTER safety being opinion, the condition of meaning of is joined. by danger; exposed Justice GREEN “untouched harm or danger; danger, secure from JEFFERSON, concurring Chief Justice (6th Dictionary 1336 loss.” Black’s Law part, concurring in and part, dissenting in ed.1990). of Ru- supervision Because the judgment. in the patient her are bio and who assaulted join holding that Rubio’s I the Court’s accepted inseparable from the standards of sexual allegations based on the incidents safety applicable departure a “claimed assault constitute claims MLIIA claims this safety,” and accepted standards of safety statute. under the element by the MLIIA’s two- are therefore barred Walden, Certainly, at 448. See At I do year statute of limitations. 847. Legislature’s scope inclusion within the not, however, with the Court’s con- agree of claims based on breaches of MLIIA presented has a cause clusion that Rubio “safety” expands accepted standards of departures accepted of action beyond of the it scope statute what principal of health care. The standards if and only would be it covered medical Di- complaint in Rubio’s allegation —that supervision, health care. Professional from a protect versicare failed monitoring, protection predator known sexual —raises necessarily implicate the ac population under the claim which falls stat- safety under the MLI- cepted standards “safety” component. ute’s IA, just as case are those duties term care. included I Conclusion Malpractice
IV.
versus
Medical
Ordinary Negligence
claims that Diversicare
Rubio
line be-
setting,
health care
provide adequate supervision
failed
malpractice and
tween medical
nursing services meet her fundamental
many
As
easily blurred.
Legislature
negligence
her. The
needs and
observed,
have
“the distinction be-
claim courts
broadly defined
negligence
MLIIA,
malpractice
in the
and the definition includes
tween
one,
for medical
is a subtle
former Tex.Rev.Civ. Stat.
her claims. See
1.03(a)(4).
rigid
‘no
4590i,
negligence
Accordingly,
species
but
art.
”
analytical
separates the two.’ Wein-
line
of limitations is not tolled
sec
statute
784, 650
16.001(b)
Hosp.,
Hill
88 N.Y.2d
and er v. Lenox
of Texas Civil Practice
tion
(1996)
Likewise,
N.Y.S.2d
Zuniga
N.E.2d
court held that the
(citation omitted), quoted in Gunter v. Lab.
apply
involving
MLIIA did not
to a claim
America,
Corp.
psychiatric
hospital patient’s allegations
(Tenn.2003). Thus, determining
ap
sexually
that she was
assaulted
another
propriate standard
apply
to a patient. 94
plain-
patient’s
against a
pro
tiff in that
hospital
case
that the
*14
easy
vider is seldom an
task. See Gold v.
negligent
“was
in failing
protect
to:
her
Ass’n,
248,
Hosp.
abuse,
Greenwich
262 Conn.
811 from
[sic]
take
reasonable efforts to
1266, 1270(2002).
A.2d
prevent
person
actions
another
that
physical
in
injury,
resulted
make reason-
case,
In
parses
the Court
medical
contact,
able efforts to prevent sexual
in
negligence
provide her a safe environment.” Id. at
involving
alleged
claim
the
sexual assault
782. The hospital argued
Zuniga’s
that
nursing
aof
home patient. See at 853.
asserted,
essence,
in
a failure to
analysis,
Based on this
the Court con
“provide
therapeutic
environment
that
cludes
all
that
of Rubio’s
keep Zuniga
would
safe from herself and
care liability claims under the MLIIA.
Id.
rejected
others.” Id. The court
hospi-
at 853.
every
But
Texas court of appeals
argument noting:
agree
tal’s
“While we
to consider the issue has held otherwise.
that
preventing
patient
harming
In
addition
the court of
appeals
or
is part
herself
others
of the treatment
case,
present
three other courts have de
provided
committed
involuntarily
to an
termined that the MLIIA
not apply
does
psychiatric patient,
allegation
injury
arising
of a patient’s
to claims
out
assault
Zuniga’s
here was not
harm herself
patient
of another
because such claims
Instead,
allegation
others.
is anoth-
on
were
based medical or health care
er patient’s assault of her while
[the
Tex.,
services. See Healthcare Ctrs. of
hospital’s] premises.” Id.
(Tex.
610,
Inc. v. Rigby, 97 S.W.3d
621-22
2002,
App.-Houston
pet.
[14th Dist.]
de
Bush,
Finally, in
the court held that a
nied);
Antonio,
Zuniga v. Healthcare San
patient’s
hospital
claim
against
arising
(Tex.App.-San
S.W.3d
782-83
Anto
alleged
from an
patient
attack
a fellow
nio
pet.);
no
Bush v. Green Oaks
propensity
with a known
for violent behav-
Inc.,
(Tex.
Operator,
ior
not a
claim
was
App.-Dallas
pet).
under
MLIIA. 39
at
672.
In
Bush,
Rigby,
plaintiff patient,
the court held
a claim
that
claimed that the
nursing
out
arising
hospital
negligent
failing
home
of a
“was
either in
patient’s
assault of
failing
another
was not warn her of the known
or in
danger
a health care
claim.
97 S.W.3d at
to maintain the
in a safe manner
case,
622.
In
a male
both.”
at 670-71. The hospital
resident,
history
who had a known
of sexu-
argued
Bush’s claim was “fundamen-
ally
behavior,
violent
attempted
sexually tally
a claim for negligent diagnosis and
assault a
proper
female resident.
Id. at 614-17.
lack of
treatment
respect
with
The
subject
court concluded
in- her assailant”
thus
was
failing
“simple negligence
disagreed,
volved
to take MLIIA.
Id. at
672.
court
adequate safety
noting:
measures to
“Although
hospital’s]
[the
[the
provide
reasonably
from a
home] residents
known failure to
Bush with
622;
may ultimately
sexual deviant.” Id. at
see
id. at
safe environment
involve a
(Brister, G.J., concurring).
determination
hospital
of whether
Inc.,
Ctr.,
70 P.3d
respect
Mental Health
a standard
care with
breached
2003).
(Utah
claim,
assailant],
pleaded,
Bush’s
to [the
medical treat-
negligence
not for
ment.” Id.
A
Indeed, many
similar
analyzing
courts
Liability
Premises
comparable
claims under
statutes have
to this
applying MLIIA
involving inpatient
held that claims
assault
in-
Rubio’s claims as
Court characterizes
than
ordinary negligence
rather
sound
care related is-
from the health
separable
See,
N.
malpractice.
e.g., Andrea
supervision and
inadequate
sues
Hosp.,
Laurelwood Convalescent
Cal.
complaint,
But
At
services.
1698, 16
Cal.App.4th
Cal.
App.4th
core,
nursing home did
is that
*15
894,
Rptr.2d
(Cal.Ct.App.1993),
903
review
repeated
acts
sexu-
protect
519,
801,
Cal.Rptr.2d
19
851 P.2d
granted,
al abuse and assault committed
dismissed,
(Cal.1993),
27
and review
802
Contrary
the
predator.1
known
sexual
(Cal.1994);
1,
Cal.Rptr.2d
P.2d
865
632
sexual assault
interpretation,
Court’s
Health, Inc., No.
Lauria v.
Rock
West
depen-
not connected to or
allegations are
CV03082278,
201939, at *2
2004 WL
inadequate
for
monitor-
dent on
claims
Jan.13, 2004);
(Conn.Super.Ct.
Delaney v.
Rather, construed lib-
ing
supervision.
Newington
Hosp., No. CV-93-
Children’s
are
erally,
allegations
assault
sexual
0524063,
228322, at *2-3
1994 WL
“inadequate security, indepen-
1994);
9,
(Conn.Super.Ct. May
Robinson
any
diagnosis,
medical
dent of
Ctr.,
226,
Reg’l
Fla.
675
v. West
Med.
So.2d
Robinson,
at 228. In
675
or care.”
So.2d
(Fla.Dist.Ct.App.1996);
Bap
228
Hicks v.
face,
words,
its
complaint,
other
Inc.,
(Fla.
1019,
Hosp.,
tist
676 So.2d
ordinary
action for
asserts a cause of
Dist.Ct.App.1996);
Springs
Palm
Gen.
liability.
premises
Perez,
1222,
Hosp., Inc. v.
661 So.2d
Court,
nursing
According
v.
to the
(Fla.Dist.Ct.App.1995); Klingman
Green,
762,
duty
its
cannot be com-
patients
(La.Ct.App.
So.2d
763-64
home’s
1993);
duty regular premises own-
Lady
pared
v.
Lourdes
to the
Ream
Our
233,
Hosp.,
(La.Ct.App.
would
to a resident because
So.2d
234-35
er
owe
1986);
“for
nursing
home are there
Hosp.,
v.
residents
Suburban
Afamefune
Inc.,
592,
treatment, not
677,
merely
shel-
385 Md.
870 A.2d
602-03 care and
allegations,
(2005);
At 851. Rubio’s assault
Borrillo v. Beekman Downtown ter.”
734,
219, however,
are not
tied to the
Hosp., 146 A.D.2d
537 N.Y.S.2d
and treatment.
provision
v.
of care
(N.Y.App.Div.1989);
220-21
Sumblin
home’s
that,
recognized
County
N.C.App.
courts have
Hosp. Corp.,
Craven
Several
376,
(1987);
care
heightened
Burns
addition to the
standard
357 S.E.2d
377-79
Auth., Inc.,
profes-
accompanies
rendering
Forsyth County Hosp.
81 that
(1986).
services,
care facilities
sional
health
N.C.App.
344 S.E.2d
duty
ordi-
Osteopathic
patients a
to exercise
But
v. Detroit
owe their
see Dorris
nary
maintenance of their
care in the
Hosp. Corp., 460 Mich.
594 N.W.2d
(1999);
v. Methodist
See Charrin
premises.
Smith v. Four Corners
466-67
including
other
Specifically,
alleges
abuse and assault
others
Rubio
that Diversicare
(1)
safety
residents”; and(3)
"implement
precautions
appropriate
failed to:
cor-
"establish
residents”;
(2)
protect
safety
of its
policies.”
training
staffing
porate safety,
"repeated
protect
acts of sexual
her from
(Tex.Civ.
Hosp.,
574-75
home resident stems from medical treat-
(“A
1968, writ)
App.-Houston[1st
Dist.]
ment or health care. A nursing home
accepted
by a hospital enjoys the
serves dual roles as both a health care
status of
an invitee
business
provider
visitor
facility.
residential
See
entitled
ordinary
Ctrs., Inc.,
to the exercise of
Richard v. La. Extended Care
(La.2003)
hospital
premises
its
keep
reason
835 So.2d
(noting
ably
expected
safe condition for
home,
use.
the case of a nursing
“[i]n
the nurs-
Thus,
hospital
occupier
prem
ing
always receiving
resident
duty
keep
ises has a
them a reason medical care or treatment” and thus not all
invitees,
ably safe condition for its
to warn
home will involve
any
treatment).
dangers
invitees from
Here,
alleges
Rubio
it
which
knows or should know in the
that Diversicare failed to furnish her with
omitted);
care.”) (citation
ordinary
exercise of
reasonably
“a
premises”
safe
and failed “to
ns,
(“[T]he
A claim against tenant’s a landowner failing provide adequate security to against typically
foreseeable criminal conduct is a B premises liability claim. See Timberwalk Expert Testimony Partners, Cain, Apartments, v. Inc. 972 (Tex.1998). I 753 do not see Furthermore, that, I do not as agree a why the same claim should be treated law, matter of establishing the standard of differently this case simply because the necessary prevent care to inpatient as a landowner is provider. See requires saults Nu expertise.2 Sumblin, at (recogniz 357 S.E.2d 378-79 courts, merous both in else Texas and that ing hospital, “a much like propri the where, specialized have determined any public facility, duty etor a to owes medical knowledge necessary is not to es protect its patient against invitees to the duty tablish a involv breach of for claims by patient”); foreseeable assaults another See, patient e.g., ing. assault. Sisters of Burns, (“[T]he 344 S.E.2d pro at 846-47 Word, Houston, Charity the Incarnate prietor of a restaurant a to duty owes (Tex. Gobert, Tex. v. 992 S.W.2d protect the invitee the foreseeable App.-Houston pet.) no [1st Dist.] by assaults another find invitee.... We (considering patient’s allegation that she hospital similarly duty the owes a pro to sexually by patient was assaulted another tect the as against foreseeable concluding and determination “[a] by saults patient.”). another hospital] that [the breached the standard Although providing by negligent care and treatment of care its failure to monitor may patients nursing patients’ rooms, to be a main comings home’s and the and function, every duty nursing to goings patients owed into out each and requirement expert report caps report require- 2. damage expert The MLIIA’s and Russell, procedural. Murphy v. 167 S.W.3d applicable yet require ments are ex- curiam) ("A (Tex.2005)(per trial.''). testimony pert prevail to at be a health care claim to which principle The same special (emphasis original). requiring is not one other’s rooms posits “[i]t The Court proof’); applies v. here. training, insight, or Juhnke knowledge of the common Samaritan not within Evangelical Lutheran Good ability of public P.2d to determine general Soc’y, Kan.App.2d (1981) of fact conditions (finding “that the trier weakened patients the means or to fully capable of determin- determine would have been themselves” At testimony, “potential attacker.” expert aid of used restrain ing, without the if be true would the defendant Those statements whether patient’s jury reasonable asked to assess duty exercise were breached attacker’s) (or con- physical mental or assault- injury patient” to avoid [a] is neces- But such assessment patient); Virginia S. Salt dition. ed fellow (Utah Ctr., In her sary the facts here. Care 741 P.2d under Lake (“In case, alleges that the sexual present complaint, where Rubio Ct.App.1987) “repetitious mentally physically incapacitated abuse she endured was was girl raped recurring,” while and that Diversicare seventeen-year-old was “in was therefore custody of the defen- the attacks and under the care and aware of home, repeat position predict unique there are no medical dant take expert predator call for involved that such behavior technicalities any reoc- nurs- to avert testimony preventative to determine whether the measures care.”); obligation to A home’s ing home breached its standard currence.” (Brister, against multiple attacks Rigby, patients secure its see (“I C.J., concurring) predator sexual is well within agree with Court a known knowledge. purview is not a medical common propriety failing supervise sexu- *17 II in a within the al deviant home is laymen”). of knowledge common MLIIA The case, Michigan comparable In a Su- prem- involve Although Rubio’s claims preme recently expert tes- Court held that mal- liability rather than medical ises a claim timony bring was is not outcome practice, distinction against allega- home when the has Legislature here. The determinative tions involve home’s failure concepts under broad captured both claim,” danger, from known as “health care rubric of stating: by the MLIIA: defined ordinary negli- in claim” means
This claim sounds “Health care testimony is neces- action gence. expert No cause of treatment, lack sary 'defendant’s or provider physician to determine whether departure taken some sort or other claimed employees should have of of medical care prevent accepted action to future standards of corrective safety proxi- or which learning harm of the hazard. or after health of injury knowl- in to or death rely mately can on common results fact-finder determining patient’s whether edge experience patient, in tort have made of action sounds ought defendant or cause whether attempt to reduce a known risk of contract. charges. harm to one of its imminent 1977, R.S., ch. 30, Leg., 65th May Act of 1.03(a)(4), Laws Ctr., 817, § Tex. Gen. 1977 Nursing Bryant Oakpointe v. Villa (former (2004) art. 2039, 411, 864, 2041 875 471 Mich. 684 N.W.2d Stat. Tex.Rev.Civ. 860 1.03(a)(4)),
4590i, § repealed and tion of the written law. It must be an codified 2, 2003, as amended Act of 78th interpretation expresses only June which R.S., 204, 10.01, Leg., 10.09, law, §§ ch. 2003 will of the makers of the not forced 864, (current 847, strained, Tex. Gen. Laws 884 simply nor but as such version at Tex. Civ. Prac. plain words of the in their law sense Rem.Code & 74.001(a)(13)). Here, there can be little fairly clearly and will sanction sustain. that complaint doubt involves a Arnim, 309, Simmons v. 110 Tex. 220 S.W. departure accepted “claimed stan- 66, (Tex.1920), 70 quoted in Luke’s St. Thus, safety.”3 I agree dards Hosp. 503, Episcopal Agbor, v. 952 S.W.2d Rubio’s claims fall within the statute. (Tex.1997), Dallas, RepublicBank 505 N.A. Both Justice O’Neill and Rubio favor a Inc., (Tex. Interkal, 605, v. 691 S.W.2d 607 interpretation safety narrower advanced 1985), Tex. Highway Comm’n v. El appeals several the courts under Council, Bldg. Paso & Constr. Trades “safety” which read to mean as it safety 857, (1950). Tex. S.W.2d provision relates to the At care. Straightforward statutory construction en (O’Neill, J., see v. dissenting); Rogers sures that citizens are able “to Inc., Serv., Nursing Crossroads 13 S.W.3d rely on plain language of a statute to (Tex.App.-Corpus 418-19 Christi says.” Fitzgerald mean what it v. Ad ‘safety’ pet.) (opining word “[t]he Spine Sys., vanced Fixation 996 S.W.2d isolation, be phrase cannot read in (Tex.1999). 864, 866 But when courts ‘accepted safety’ standard of ... must be words, plain meaning “abandon the stat read in context ‘accepted to mean standard utory upon construction rests insecure and safety within health care indus- State obscure foundations at best.” ”) (italics try.’ original), ap- cited with (Tex.1964) Jackson, 376 S.W.2d proval Bush, 39 S.W.3d at Betts, Bd. Ins. v. (quoting State 158 Tex. 621; Rigby, Zuniga, at see 281(1958)). (quoting Rigby, S.W.3d at 783 provides The MLIIA explicitly “any 620-21). this While construc- part, term word of in this legal art used “safety” tion of as a is defensible matter part, shall not otherwise defined policy, it is not faithful to the statute’s meaning such with have consistent *18 plain text. 30, 1977, May common law.” Act of explained: we have
As often R.S., 1.03(b), § Leg., 65th ch. (former must take as find they Courts statutes Tex. Gen. Laws Tex. 4590i, that, they 1.03(b)), § them. More than should be Rev.Civ. art. re- Stat. willing they them Act pealed take as find them. as amended codified 2, 2003, R.S., They Leg., should search out ch. carefully June 78th 10.09, statute, 10.01, §§ Tex. Laws giving intendment of a full effect Gen. (current they at Tex. to all its terms. But must find version Civ. Prac. 74.001(b)). language, intent in else- Because the its its and not & Rem.Code law-making “safety,” are not we They where. not the statute does define must body. They responsible assign meaning. Safety are not for it common its legislation. They commonly protec- in re- understood to mean omissions are is sponsible danger. for a true fair interpreta- tion See Black’s Law Dictio- Though many regulating states have statutes kind that definition extends claims claims, the MLIIA is involving ''safety.” only unique apparently in that it statute (8th ed.2004) O’NEILL, joined by Justice as Justice (defining NARY “safe” GREEN, causing and Justice exposed danger; dan- BRISTER “[n]ot dissenting. danger, The of that ger”). specific source assault, defect, it criminal be a structural dispute: case not in The of this facts act, limitation. or careless without patient Alzheimer’s was elderly in an logical to read into the
While it be while sexually patient another assaulted safety requirement that related statute care of a under the full-time both were care, there is claim involve question before only home. The implicit safety’s plain meaning nothing claim injured patient’s is whether us language in the MLIIA’s explicit nor properly is more against the impose us to such a restriction.4 allows ordinary negligence characterized as Accordingly, give full effect to MLI- liability In claim. claim a health that a language, recognize IA’s we must pleadings themselves did not this liability a com- claim includes allege establishing which standard facts pro- plaint inadequately was During court govern the case. trial should danger tected from the sexual assault. plaintiffs suggested counsel proceedings, derived, part, least claim Ill alleged failure to home’s from the To facility. the extent properly staff the Conclusion does, gov- I agree that it that the statute defining liability as claims applies. erning health care did, Legislature it created statute dissent, however, because respectfully I scope. Complaints with a about the broad construed, liberally alleges a petition, breadth of this statute should be directed premises liability. for broader Court, Legislature, they courts must “take statutes as find I Simmons, at 70. Ac- them.” 220 S.W. 111(B)(3) I the Medical Li- cordingly, Legislature enacted part concur Improvement Act opinion judg- ability Court’s and concur in the and Insurance (MLIIA) the cost of ment. in order reduce dissent, It under care.” Id. is clear *19 care, accepted or health standards of medical intimates, phrase "directly related the O’Neill care, safety professional administra- or or or care,” preced- applies the entire to health care, directly tive services related to health (i.e., passage "accepted med- ing standards of injury proximately to or which results care, care, safety”), or or then ical health claimant, of a whether the claimant’s death care amended statute "health under the or or cause of action sounds tort departure liability "claimed claim” includes a contract. accepted of ... health care from standards 74.001(a)(13) (em- § Tex Civ. Prac. & Rem.Code directly Id. To ... related health care.” added). Thus, phasis in addition claims redundancy, read the amended avoid this I involving "accepted of medical standards only "pro- requiring that claims statute as care, care, safety,” or the statute or health be "di- services” fessional or administrative arising "pro- applies now also to claims from rectly care.” related health directly or fessional administrative services malpractice medical and thereby insurance the statute’s reach and hinder thus the patients’ Legislature’s goal malpractice reducing increase access to care. of May 30, R.S., insurance rates. Leg., Act of 65th ch. 1.02(b)(l)-(5), 817, § Gen. Tex. Laws however, intuitively, Somewhat counter (former
2039, 2040 art. Stat. Tex.Rev.Civ. interpretation an overly broad could have 4590i, 1.02(b)(l)-(5)), § repealed Act of the same result. Health providers, care 2, 2003, R.S., Leg., June ch. 78th like other insured professionals, generally 10.09, § 2003 Tex. Gen. Laws To carry policies: general two insurance accomplish goals, these the MLIIA man- liability ordinary that covers policy negli plaintiffs proce- dates that follow certain gence, a malpractice policy “to cover when health care bringing liability dures obligations arising from of rendering the against physicians claims or other health professional services.” Cochran v. B.J. providers example, (5th care USA, claimants 499, 502 Servs. Co. 302 F.3d —for bring years, must suit two and they Cir.2002); within see also Utica Nat’l Ins. Co. v. report Co., must file an expert substantiating Am. Indem. (Tex.2004). filing If days
their within 180 of suit. a court determines that a 10.01, plaintiffs allege pleadings §§ Id. 13.01. The MLIIA also con- breach applicable standard care for health care damages tains limitations on amount providers, then the defense and indemnifi § recoverable. Id. 11.02. expenses likely cation will most fall under By terms, imposes the MLIIA these policy gen rather malpractice than on any restrictions “cause of action policy. eral insurance See Tex. Ins.Code a health care provider physician for 21.49-3, § art. 2(l)(defining “medical liabil treatment, lack or other ity applying insurance” as to claims “aris accepted departure claimed stan- ing injury any out the death or care or dards health care or person negligence result of ren safety” injury patient. to a causes dering or the failure to render professional 1.03(a)(4). recognized have that the We aby provider”). service Insur heightened requirements applied to health in litigation ers therefore face own their may sometimes create centives: benefit insurers litigants an incentive for to re-cast a health when a claim is characterized as type claim as another negligence, general-liability insurers claim, and held we have therefore as a benefit when a claim is characterized beyond must pleadings courts look See Utica Nat’l liability claim. underlying examine the nature ac- Co., (addressing Ins. 141 S.W.3d at tion. Med. MacGregor Campbell, Ass’n v. general-liability claim in insurer which (Tex.1998). injuries patient’s asserted that a arose Analyzing underlying action render “rendering failure to task, always easy an but it is one that service”; con [a] great care; courts must undertake with Hepatitis injection tracted C from Legislature’s purpose enacting drugs adequately contaminated it failed to if MLIIA be thwarted courts construe secure); v. Sternberg, see also Harris *20 (ad 1134, the MLIIA’s definition of care lia- “health (La.Ct.App.2002) So.2d 1137 bility broadly claim” too or too nar- dressing malpractice either a claim in the which rowly. interpretation patient’s injuries An overly narrow insurer asserted that the ordinary negligence; pa render statute be- the would the ineffective arose from from doctor’s many slipped it would too suits from tient and fell the cause exclude
863
scale).
to
of
physician
of
faded
meet the standard
Consequently,
adoption
an
care”).
overly
interpretation
broad
of “health care medical
Legis-
liability
also hinder the
claim” could
have applied
in other states
Courts
mal-
goal
ensuring
that medical
lature’s
First,
tend-
they have
similar framework.
at
reason-
practice
is available
insurance
malpractice
state
statutes
ed to construe
sweep
able cost:
if courts
even
only
profes-
to
applying
as
breaches
claims into
ambit of the
negligence
See, e.g.,
v.
sional standard of care.
Dorris
MLIIA,
malpractice
then
insurers
Hosp. Corp., 460 Mich.
Osteopathic
Detroit
covering
up
more of those claims.
end
(1999)
26,
455,
(holding
465
594 N.W.2d
insurance rates would then
Malpractice
malpractice stat-
Michigan’s
that
medical
policies
rise
those insurance
continue to
as
raising “ques-
to
apply
ute
a claim
would
not
cover claims
were
manage-
professional medical
tions of
con-
contemplated under
insurance
ment”);
Krans,
Ill.App.3d
Woodard v.
tracts.
477,
175 Ill.Dec.
N.E.2d
(1992)
determining
(holding
“[w]here
impor-
recognized
This
Court has
applying dis-
requires
of care
standard
correctly classifying
claims
tance
these
tinctively
knowledge
principles,
developed
analy-
and has
a framework for
basic,
comply
must
plaintiff
however
If a claim
sis
these cases.
arises
statute]”).
malpractice
Sec-
with [Illinois’s
an
“inseparable part
action that
an
ond, they have held that claims not direct-
services,”
the rendition of medical
then the
ly
provision
to the
of health care
tied
MLIIA
to the claim.
v.
applies
Walden
ordinary negli-
governed
should be
(Tex.1995).
Jeffery, 907 S.W.2d
McKen,
Cannon v.
gence standard. See
Thus, if a plaintiff,
“successfully
in order to
(1983)
27, 459 A.2d
296 Md.
claim,
prove
...
prove
must
a breach
th[e]
(“Those
damages arising
applicable
standard
care for
due
professional’s failure
exercise
providers,”
action
then the
non-professional
situations
such
regardless
arises under
MLIIA —
etc.,
slander, assault,
liability,
litigants
choose
characterize it.
how
under
not intended to be covered
were
Ass’n,
MacGregor Med.
at 40-
985 S.W.2d
and should
[Maryland’s
act]
(holding
that a claim that a health care
manner.”);
tort claim
proceed
the usual
diagnose
provider
properly
failed to
Hosp., 270 Ga.
see also Dent v. Memorial
was a health care
treat
(1998)
(holding
509 S.E.2d
though
plaintiff attempted
even
claim
negligence
“[wheth-
the decision
arising
it as a DTPA claim
characterize
all,
what
equipment
er
use certain
provider’s
misrepresenta-
from the
use, and
type of
whether
equipment
“qualified per-
provide
tion that it would
in a
should be available
equipment
certain
resources,” and “the
sonnel and
best
malprac-
amount to
specific case” would
However, if
possible”).
health sendees
tice,
operate equip-
“the failure
but that
breach,
upon
is not based
such a
correctly or in
with a
ment
accordance
claim.
then it is not
keep certain
or to
doctor’s instructions
Rhodes,
Sorokolit
ordinary, not
only
hand is
equipment on
(Tex.1994)
that a claim that a
(holding
negligence”).
professional,
express
physician “knowingly breached his
do
pleadings
warranty
not a
Ms.
particular
of a
result” was
all of her
clearly
it
establish whether
liability claim
did
because
“applicable
pertain to breach of the
require “a determination whether
*21
standard of care
provid
procedures,
for
ing
stating that
“underly-
ers,”
Ass’n,
MacGregor Med.
985 S.W.2d ing cause” of the assault
that
was
or whether
some
the claims assert
nursing
“dangerously
home was
under-
only
breach
an
standard of
Court,
attorneys
staffed.”
em-
allegations
per
care. Several of her
could
phasized
argument
at oral
the sexual-
that
general
tain either to
or
negligence
“inextricably
assault
was
intertwined
professional malpractice; for
she
example,
necessary
with what’s
for an Alzheimer
that
alleges
“protect
Diversicare failed to
patient-to-staff
ratio”
agreed
and
that
Ms. Rubio from repeated acts of sexual
legal argument
their
was
based
”
abuse and assault by others.... Ms. Ru- premise
judg-
that “there is no medical
pleadings
specify
bio’s
do not
particu
what
in determining
ment
how much staff is
lar
led to
acts
omissions
the assaults.
patients
needed
those
more in need of
Sadly,
recognized
it has been
that “nurs
supervision.”
ing-home
hospital patients
residents and
have
only
been the victims
assault not
however,
incorrect;
premise,
This
in
others,
by
by
employees but also
even fact,
a nursing
required
home is
law to
persons
off
wandering in
Re
street.”
medical
judgment
staffing
use
its
deci-
gions
County
Bank & Trust v. Stone
§
sions. 40
19.1001.
Admin.
Tex.
Code
Inc.,
Nursing Facility,
Skilled
345 Ark.
regulations require
State
that
(2001).
107, 113
Conse
provide
home offer “sufficient staff to
an
quently,
assault
in a residential care
nursing and related services to attain or
facility
any
arise from
number of
highest practicable physical,
maintain the
negligent
prem
acts: failure
secure the
mental,
psychosocial well-being
and
ises,
adequately
failure to
person
screen
resident,
each
resident
determined
nel,
adequately
mentally
failure to
restrain
individual
plans
assessments and
care.”
patients,
impaired
or failure
provide
requires
The
“resident assessment”
See,
id.;
adequate nursing
e.g.,
services.
facility to analyze, among
things, the
other
see also Reaux v.
Lady
Our
Lourdes
“physical functioning
resident’s
and struc-
Hosp.,
So.2d
(La.Ct.App.1986),
problems,”
well-being,”
tural
“psychosocial
denied,
(La.1986) (hold
writ
mental needs are A identified in comprehensive assess- ment.” Id. 19.802. Because To extent Rubio’s causes of Ms. physical to consider depend action underlying on an claim of mental-health conditions of each of its understaffing, gov- I agree they needs, staffing determining residents erned the MLIIA. Ms. Rubio’s attor- simply be made neys trial these decisions cannot suggested court that claims related to the staff- employing judgment. home’s without
865 more, facility the was evidence that B there a the attacker had histo- in that case knew by pleaded Ms. Not all of the claims to take yet of sexual violence and failed ry necessarily allegations to the Rubio related ordinary safety in that precautions; even Instead, understaffing, her however. correct- appeals I the court of believe facility pleading also asserted that the on the suit was based ordinary ly concluded protect failed to use her danger; specifically, failing a in ade- “simple negligence from known she to take pleaded that were well “[d]efendants safety measures to resi- quate alleged of the sexual- aware” assailant’s a known deviant.” dents from sexual history facility the assault and that failed at 622. any take to avert preventive “to measures the other cases. Nor would I overrule allegation, broadly This
reoccurrence.” Bush, a assaulted anoth- patient In was construed, premises asserts a hospi- a under the care of er while claim; necessarily require it the does not facility; plaintiff claimed that tal judgment, but could exercise of of known dan- facility failed to warn her support a claim instead be read to Bush, I at 670-71. would ger. S.W.3d facility failed use se- duty to warn of a known not hold that a the premises. cure on medi- danger premises depends premises liability Ms. claim is Zuniga, skill. In a case judgment cal similar the claims several other eases facts, plaintiff with similar appeals. decided our courts of See liability claim that was brought Tex., Rigby, Inc. Healthcare Ctrs. v. relating proper questions not limited to (Tex.App.-Houston S.W.3d 616-17 but instead asserted that treatment denied); Zuniga pet. v. [14th Dist.] facility provide “did not safe environ- Antonio, Inc., Healthcare San S.W.3d Zuniga, at 782. Final- ment.” 94 S.W.3d no (Tex.App.-San Antonio Gobert, mentioned ly, in the court neither Inc., pet.); Operator, v. Bush Green Oaks it MLIIA whether nor considered (Tex.App.-Dallas 39 S.W.3d Gobert, the case. apply would pet.); Charity Sisters the Incar Houston, Word, Gobert, nate Tex. 25. 25, 27 (Tex.App.-Houston [1st in this case did pleadings Because 1997, no pet.). today Dist.] Court establishing whether Ms. allege not facts they overrules these cases “to the extent alleged from an Rubio’s claims resulted patients’ hold that the claims for assault patient care or provide adequate failure to patients other resulted from an failure secure At I overrule claims.” would not premises, pleadings did estab cases; plaintiffs these each of the these claim was a health care lish whether the beyond cases assert claims that extend liability claim or it sounded whether supervi “inadequate claims for care and plaintiffs ordinary negligence. When sion,” just did as Ms. Rubio case. adequate “fair give does not pleading Rigby, example, there was evidence pleader upon notice the facts which the that a home administrator induced claim,” then the defendant his bases accept sexually home to violent a more special exceptions to obtain file scope of patient by misrepresenting the plaintiffs claim. definite statement Rigby, patient’s prior acts. 97 S.W.3d (Tex. Allen, 804, 810 Roark v. misrepresentation at 615. Deliberate does 1982). Here, however, judgment. Further- not involve medical *23 special exceptions. did not file have ture did provide We that the statute gov- recognized that in the such absence of erns all a pro- special instead, exceptions, petition the must be or physician; vider it limited the liberally plead- treatment, “construed in favor of statute’s to scope the claims “for treatment, er” and that the of uphold depar- court “should the lack or other claimed petition may as to a of cause action that be ture from accepted standards of medical reasonably specifi- from safety.” inferred what is care or health care or ” Kerr, Boyles cally stated.... 855 suggests Chief Justice Jefferson that the 593, (Tex.1993). Consequent- S.W.2d 601 “safety” enough term is broad to encom ly, I petition, would hold that the con- a pass premises liability claim unrelated to Rubio, liberally in strued favor Ms. stat- provision the of health care. At 867. I premises liability. ed a cause of action for disagree that term be the can read so Hospital, See Charrin v. Methodist instead, broadly; it must read in be the 574 (Tex.Civ.App.-Houston MLIIA, context which was enacted writ) (“A patient [1st Dist.] ac- to address concerns about health care cepted enjoys aby hospital the status of an § (provid costs. 311.011 Tex. Code Gov’t invitee or to business visitor entitled that ing phrases shall be “[w]ords by hospital exercise in read context” as well as “construed keep premises reasonably in condi- safe according grammar rules of use.”). expected tion for the added); usage”) (emphasis common see Michigan Dept. Treasury, also Davis v.
II
803, 809,
489 U.S.
S.Ct.
I
my disagreement
(1989)
note
with the L.Ed.2d
it is a
(noting
that
in
suggestion
statutory
construc
“fundamental canon
Chief
Justice
JeffeRSon’s
“safety”
concurrence that a
claim under
that
tion
the words of a statute must be
the MLIIA
be
need not
related
read
their context and
a
with
view
Instead,
provision
agree
health care.
I
place in
statutory
their
the overall
scheme”).
with
Court
MLIIA encom-
passes claims for
“departure
a
If we follow the dictates of the Code
...
accepted
safety”
standard of
when Construction Act and read the term “safe-
directly
those claims are
related
whole,
ty” in the context of the
as a
statute
care,
provision of
including
“safety”
then the natural
conclusion is
“professional supervision, moni-
based on
safety
this statute
it relates
means
as
of ...
toring,
protection
patient[s].”
health care. This is the conclusion that
At 855.
by
has been
each
reached
of the courts of
considering
issue;
The
at
time this
these
appeals
statute
effect
courts
provided
analyzed
case arose
that claims
then
“against
have
whether
provider
physician
judgment
for treat-
to determine the
ment,
safety
only
lack of
proper
other claimed
standard of
or whether
departure
accepted
general duty
implicated.
standards of
of care is
See
safety”
Hosp.,
medical care or health care or
Marks v. St. Luke’s
Episcopal
governed
Act
(Tex.App.
would be
the MLIIA.
Houston [1st
filed)
that,
30, 1977,
R.S.,
May
Leg.,
pet.
(noting
65th
ch.
Dist.]
1.03(a)(4),
§
injured by
Gen.
where a
1977 Tex.
Laws
case
was
(former
bed,
4590i,
hospital
underlying
na-
“[t]he
Stat. art.
broken
Tex.Rev.Civ.
2003).
1.03(a)(4))
Legisla-
(repealed
allegations
ture
his
is of an unsafe con-
body
amendments
furniture,”
legislative
quent
created
an item of
dition
legisla-
sense in which
complaint
relates
“show the
concluding
“[s]uch
phrases previously
liabili-
liability,
employed
not health care
ture
doubtful
ty,
standard of
governed
used,”
accept
and is
should
and that courts
Bush,
ordinary negligence”);
language”
of its own
“legislative sense
*24
Act includes
(“Although
breaches
expounding
“a
courts
direction to
safety
accepted
standards
within
law”);
Lion
see also Red
provisions of
claim,
liability
care
definition of
health
FCC,
Co. v.
395 U.S.
Broadcasting
‘safety’ cannot
read in iso-
the term
be
381-82,
it clear that was intended be care,
related to health this amendment any See Alexander v. Al-
removes doubt. 7-8,
exandria, 5 Cranch 9 U.S. (1809) (concluding
L.Ed. 19 that the subse- 4. As Justice O’Neill notes related to health recently Legislature "profession- definition of amended the statute that claims for the revised claim” follows: "health care must be "direct- al or administrative services” care”; however, ly a cause of action a health care there is related to health provider treatment, physician lack of involving "safety" no indication that departure from or other claimed If, as relate to health care. must also Justice