No. 19-0634
IN THE SUPREME COURT OF TEXAS
April 16, 2021
Argued February 2, 2021
ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS
JUSTICE HUDDLE delivered the opinion of the Court.
The questions before us are (1) whether claims asserted against a state mental health facility and its employees arising from the death of a patient, pleaded as claims under
I. Background
David Bagley sued Rio Grande State Center (RGSC) and several of its employees after the death of his thirty-seven-year-old son, Jeremiah Bagley. Jeremiah, who had a history of mental illness, was committed to RGSC, a state mental health facility. While there, Jeremiah was involved in multiple altercations with other patients. After one such altercation, Jeremiah was assigned one-to-one supervision. The incident that led to Jeremiah‘s death began when Jeremiah physically struck his one-to-one monitor. Five psychiatric nurse assistants (PNAs) intervened to restrain him and administer injectable anti-psychotic and sedative drugs, Olanzapine and Diphenhydramine.
After Jeremiah calmed, he walked to his room, but he soon became agitated, disoriented, pale, and incoherent. Minutes later, Jeremiah went into cardiac arrest. RGSC staff performed CPR and called EMS. When EMS arrived, they administered CPR using an automated chest compression device. EMS transported Jeremiah to a hospital, where he was pronounced dead.
An autopsy revealed Jeremiah had several fractured vertebrae, cracked ribs, a lacerated spleen, and contusions on his head, shoulders, back, and chest. The stated cause of death was “excited delirium due to psychosis with restraint-associated blunt force trauma.”
David Bagley sued individually and as the representative of Jeremiah‘s estate. He named RGSC itself, along with ten individual defendants: the five PNAs involved in the incident, four RGSC supervisors, and Jeremiah‘s treating doctor.1 As to RGSC,
In their respective original answers, the defendants all referenced “the provisions of Chapter 74 of the Texas Civil Practice and Remedies Code.” Chapter 74 is the Texas Medical Liability Act, which governs health care liability claims (HCLCs) and requires that the plaintiff, to avoid dismissal, serve an expert report addressing liability and causation as to each defendant within 120 days after the defendant files an original answer.
After the 120-day deadline passed, RGSC amended its answer to state: “Plaintiff‘s claims against Defendant RGSC are health care liability claims subject to the substantive and procedural requirements of the Texas Medical Liability Act (‘TMLA‘), set forth in Chapter 74 Texas Civil Practice and Remedies Code.” The individual defendants made analogous amendments.
All defendants jointly moved to dismiss Bagley‘s claims for failure to serve an expert report under section 74.351(b).2 In response, Bagley argued that his claims are not HCLCs and, even if they were, the TMLA‘s expert-report requirement is preempted by section 1983. Bagley later supplemented his response with a copy of the autopsy and the Inspector General‘s report of the incident, arguing the defendants “wholly failed to show that TMLA has any application to Plaintiff‘s case.”
At the hearing on the motion to dismiss, Bagley announced his nonsuit of the negligence claim against RGSC. The trial court denied the motion to dismiss, and all defendants (including nonsuited RGSC) filed an interlocutory appeal. See
The court of appeals first held that RGSC was a proper party to the appeal despite being nonsuited because its motion to dismiss with prejudice and for attorney‘s fees and costs was pending at the time of the nonsuit. 581 S.W.3d 362, 367 (Tex. App.—Corpus Christi–Edinburg 2019). The court concluded that all of Bagley‘s claims were HCLCs, but it held that the expert-report requirement of the TMLA was preempted by section 1983. Id. at 369, 374. Both Bagley and the defendants petitioned for review.
II. Analysis
In the 1970s, the Texas Legislature found that health care liability claims were increasing “inordinately,” adversely affecting the availability and affordability of adequate medical malpractice insurance and driving up the costs of medical care for patients. See Medical Liability and Insurance
In this case, Bagley argues that his claims are outside the scope of the TMLA—and he was thus not required to serve an expert report—because he pleaded them under
A. Bagley‘s claims are health care liability claims.
Our threshold question is whether Bagley‘s claims are HCLCs subject to the TMLA, including the expert-report requirement in section 74.351. HCLCs have three elements: (1) the defendant is a health care provider5 or physician; (2) the claimant‘s cause of action is for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant‘s alleged departure from accepted standards proximately caused the claimant‘s injury or death. Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012) (citing
Loaisiga also teaches that when considering whether claims are HCLCs, we focus not on how the plaintiff pleaded or labeled his claims but, rather, on whether the facts underlying the claim could support an HCLC. Id. at 255. “[C]laims premised on facts that could support claims against a physician or health care provider for departures from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care are HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach of any of those standards.” Id. (emphasis in original).
Here, Bagley‘s section 1983 claims are based on the following allegations: (1) the PNAs improperly restrained Jeremiah for ten minutes with force that was objectively unreasonable and excessive to the need and forcibly injected him with medications to calm him; (2) the RGSC administrators were deliberately indifferent for failing to train and supervise the PNAs to use proper restraint techniques; and (3) Dr. Rogers, Jeremiah‘s treating physician, was deliberately indifferent for ignoring Jeremiah‘s “serious medical needs.”
We agree with the court of appeals that these allegations constitute claims based on the departure from accepted standards of health care and therefore fall within the TMLA‘s scope. With respect to the PNAs, Bagley alleges that the PNAs “went far beyond any form of acceptable restraint.” He claims that the Inspector General‘s report “determined the restraint administered was not proper in any way.” He alleges that “[f]ive nurses never should have been involved in the restraint, nor should a nurse attempt a restraint from the side.” Finally, he alleges the PNAs “improperly restrained” Jeremiah‘s legs and held him down by the waist while an injection was administered. Thus, the gravamen of Bagley‘s claims against the PNAs is that they improperly restrained him while administering an injection.
With respect to the four supervisors, Bagley alleges they each “either failed to supervise or train” the PNAs. He alleges that the supervisors “were responsible to
“[A] claim alleges a departure from accepted standards of health care if the act or omission complained of is an inseparable or integral part of the rendition of health care.” Tex. W. Oaks Hosp., 371 S.W.3d at 180 (citing Diversicare, 185 S.W.3d at 850). Regardless of how Bagley characterizes them, at their core, his claims turn on whether the defendants adhered to the appropriate standards of care for restraining a psychiatric patient, supervising and training those who would restrain a psychiatric patient, and properly treating and administering medication to a psychiatric patient. As we have previously recognized, physical restraint, training and staffing policies, and supervision behind the use of restraint are integral components of the rendition of health care services to potentially violent psychiatric patients. See Psychiatric Sols., Inc. v. Palit, 414 S.W.3d 724, 725–26 (Tex. 2013) (holding that an employee‘s claim for injuries received while physically restraining a psychiatric patient involved acts or omissions that constitute “health care” under the TMLA); Tex. W. Oaks Hosp., 371 S.W.3d at 175, 180–82 (holding that a hospital employee‘s claim for injuries arising from a physical altercation with a violent psychiatric patient involved acts or treatment that were integral to a patient‘s medical care, treatment, or confinement, and therefore constitute “health care” under the TMLA); see also Diversicare, 185 S.W.3d at 845, 850 (holding that a nursing home resident‘s claim for sexual assault by another patient was an HCLC because the facility‘s “training and staffing policies and supervision and protection of [the patient] and other residents are integral components of [the facility]‘s rendition of health care services“).
Bagley‘s allegations regarding Jeremiah‘s restraint also constitute complaints that the defendants departed from safety standards and should be classified as HCLCs for that independent reason. See
Bagley‘s claims are HCLCs for a third reason: their proof requires expert testimony. We held in Texas West Oaks Hospital that a claim is an HCLC “if expert medical or health care testimony is necessary to prove or refute the merits of the claim against a physician or health care provider.” Id. at 182. There, we held that a hospital employee‘s claim against the hospital for injuries arising from a physical altercation with a patient necessarily required expert testimony. Id. at 175, 182. We reasoned that the claims would “require evidence on proper training, supervision, and protocols to prevent, control, and defuse aggressive behavior and altercations in a mental hospital between psychiatric patients and employed professional counselors who treat and supervise them.” Id. at 182. We further stated that “[i]t would blink reality to conclude that no professional mental health judgment [was] required to decide what those should be, and whether they were in place at the time” of the injury. Id. Bagley‘s claims
Bagley asserts that expert testimony “may not be necessary” to prove a claim for excessive force because “[t]he jury can rely on their common sense based on the evidence.” But the excessive-force claims in this case arise in the specific context of the method used to restrain a potentially violent psychiatric patient in a mental health care facility. The Fifth Circuit has expressly recognized that in cases under section 1983, expert testimony regarding use of force and proper arrest techniques and training is not within the common knowledge of jurors. See Johnson v. Thibodaux City, 887 F.3d 726, 737 (5th Cir. 2018) (affirming trial court‘s admission of expert opinions regarding arrest techniques and use of force over objection that testimony was within jury‘s province). Here, like in Texas West Oaks Hospital, the need for expert testimony independently supports our conclusion that Bagley‘s claims are HCLCs.
Despite the broad scope of the TMLA, Bagley argues it was not intended to apply to constitutional civil rights claims. In support of this argument, Bagley points out that the TMLA states that a cause of action is an HCLC “whether the claimant‘s claim or cause of action sounds in tort or contract.”
Bagley advances the following additional arguments for why he contends the TMLA was not intended to apply to section 1983 claims: (1) the objective of the TMLA was to overhaul Texas malpractice law, not to regulate section 1983 claims; (2) nothing in the TMLA‘s legislative history indicates an intent to curtail a federal remedy under section 1983; and (3) the elements of a federal civil rights claim do not overlap with the elements of an HCLC. None of these arguments has merit. Bagley‘s reliance on legislative history to establish the Legislature‘s supposed intent is misplaced. To determine
All of Bagley‘s claims allege a departure from accepted standards of health care or safety. Therefore, we hold they are all “health care liability claims” under the TMLA. See
B. Section 1983 does not preempt section 74.351 of the TMLA.
The Supremacy Clause of the United States Constitution dictates that the “Constitution, and the Laws of the United States” are “the supreme Law of the Land.”
Bagley relies primarily on Felder to support his preemption argument. Felder involved a Wisconsin statute that required written notice of a claim against a state governmental subdivision, agency, or officer to be provided to the government within 120 days of the alleged injury. Id. at 136. The statute further required the claimant to submit an itemized statement of the relief sought. Id. at 136–37. The governmental subdivision, agency, or officer then had 120 days to either grant or deny the requested relief. Id. at 137. If the claim was denied, the claimant was required to bring suit within six months of receiving notice of the denial. Id.
The Supreme Court held the Wisconsin statute was preempted because it undermined the “uniquely federal remedy” provided under section 1983. Id. at 141. The Court reasoned that the
While Bagley argues Felder is controlling, RGSC and the individual defendants argue this case is more like In re GlobalSanteFe Corp., 275 S.W.3d 477 (Tex. 2008). In that case, the plaintiff sued in state court under the Jones Act7 for alleged injuries from exposure to silica while working aboard a maritime vessel. Like the expert-report requirement here, Chapter 90 of the Civil Practice and Remedies Code requires a claimant alleging silica-related injuries to serve an expert report in the early stages of the litigation.
We concluded that the expert-report requirement was procedural—and therefore not preempted—because it did not require anything different from plaintiffs than what would have been required of them in federal court.8 Id. at 486–87. In so holding, we noted that “[n]othing in the Jones Act exempts a seaman claiming a silica-related disease from establishing, through reliable medical proof, that he in fact suffers from such a disease.” Id. at 486. We reasoned that because reliable expert testimony would be required in both state and federal court, the state expert-report requirement was not an extra substantive burden on plaintiffs in state courts. Id. at 486–87. We said that “[w]e see no basis for holding that Texas law generally governing the admission of expert testimony, which draws so heavily from federal law, is preempted by the Jones Act.” Id. at 487. And we concluded that “Texas courts are not expected to abandon all their regular rules of practice and procedure and to adopt federal rules in a case simply because a Jones Act claim is alleged.” Id. at 489.
We find the TMLA‘s expert-report requirement more similar to the expert-report requirement in GlobalSanteFe than the statutory exhaustion procedure in Felder. Here, as in GlobalSanteFe, Texas
The TMLA‘s expert-report requirement is also different from the Wisconsin scheme at issue in Felder in important respects. Unlike the Wisconsin statute, which burdened only individuals seeking redress from governmental defendants, section 74.351 applies generally to all health care liability claims, regardless of whether the defendant is a government actor. Compare
The court of appeals held that the TMLA‘s expert-report requirement is preempted because it “burdens a state court § 1983 claimant in a manner that can be dispositive.” 581 S.W.3d at 374. But asking whether a state-court procedure that is inapplicable in federal court may in some circumstances be dispositive is not the right inquiry. See Robertson v. Wegmann, 436 U.S. 584, 593 (1978) (“A state statute cannot be considered ‘inconsistent’ with federal law merely because the statute causes the plaintiff to lose the litigation.“). The inquiry, instead, is whether the state statute would “frequently and predictably produce different outcomes in § 1983 litigation based solely on whether the claim is asserted in state or federal court.” Felder, 487 U.S. at 138. The expert-report requirement in section 74.351 would not.
Bagley argues that section 74.351, like the statute in Felder, would limit claimants’ recoveries against the government. Section 1983 provides a cause of action for the deprivation of federal civil rights by those wielding state authority. Felder, 487 U.S. at 139. Section 74.351—the purpose of which is to deter frivolous claims—does not prevent claimants from asserting that cause of action. See Scoresby, 346 S.W.3d at 554; see also Loaisiga, 379 S.W.3d at 263 (noting that review of the claimant‘s expert report for adequacy is “a preliminary determination designed to expeditiously weed out claims that have no merit“). It merely provides that, if the claim falls within the statutory definition of an HCLC, after the claim is filed, and without regard to whether the claim is against a government defendant, the plaintiff must serve an expert report to demonstrate in the early stages
We also conclude that enforcement of section 74.351 will not “frequently and predictably” produce a different outcome depending on whether a section 1983 claim is brought in state or federal court. See Felder, 487 U.S. at 138. Section 74.351 defines the required expert report as a written report that “provides a fair summary of the expert‘s opinions . . . regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.”
Because the TMLA‘s expert-report requirement is procedural in nature and would not cause reliably different outcomes in section 1983 cases brought in state and federal court, we hold that section 74.351 is not preempted by section 1983.9
C. RGSC is a proper party to the appeal.
Bagley contends RGSC is not a proper party to this appeal because Bagley nonsuited his claims against RGSC before the trial court ruled on its motion to dismiss. Bagley‘s petition asserted a negligence claim against RGSC under the Texas Tort Claims Act, and RGSC joined the individual defendants in filing a motion to dismiss Bagley‘s claims for failure to serve an expert report. Section 74.351(b) provides that, in the absence of a timely served expert report, and on the defendant‘s motion, the court “shall” enter an order that (1) “awards to the affected physician or health care provider reasonable attorney‘s fees and costs of court incurred by the physician or health care provider,” and (2) dismisses the claim “with prejudice to the refiling of the claim.”
Texas Rule of Civil Procedure 162 provides that a plaintiff may take a nonsuit at any time before introducing all of plaintiff‘s evidence.
At the time Bagley nonsuited his claims against RGSC, RGSC had a pending motion to dismiss Bagley‘s claims for failure to serve an expert report under section 74.351. Section 74.351(b) mandates that, when a plaintiff fails to timely serve an expert report, the court shall dismiss the claim “with prejudice” and shall award reasonable attorney‘s fees and costs.
Bagley also argues that RGSC‘s motion did not expressly request costs or attorney‘s fees. But RGSC‘s motion to dismiss was premised on Bagley‘s failure to comply with section 74.351(b), which requires the trial court to award costs and attorney‘s fees when a plaintiff fails to comply with the expert-report requirement.
D. We remand claims against the individual defendants in the interest of justice.
Because section 74.351 mandates dismissal with prejudice, a determination
In this case, Bagley‘s failure to serve the requisite expert reports was not a mere error in interpreting section 74.351. Rather, our conclusion that an expert report was required in this case turns on a previously unaddressed preemption question. Because our decision today substantially clarifies that novel issue, we will remand Bagley‘s claims against the individual defendants to the trial court and direct the trial court to provide Bagley an additional sixty days to comply with section 74.351.
III. Conclusion
We agree with the court of appeals that all of the causes of action Bagley asserted in the trial court are health care liability claims under the TMLA. But the court of appeals erred in concluding that
OPINION DELIVERED: April 16, 2021
Rebeca A. Huddle
Justice