Andrea SHERMAN, Appellant v. HEALTHSOUTH SPECIALTY HOSPITAL, INC. d/b/a Healthsouth Dallas Rehab Hospital, Appellee.
No. 05-11-01039-CV
Court of Appeals of Texas, Dallas.
April 2, 2013
397 S.W.3d 869
III. CONCLUSION
Finding no error, we overrule the sole issue presented for our review and sustain the trial court‘s judgment.
Steven L. Eason, Fuller & Eason, Dallas, TX, for Appellant.
David Michael Walsh IV, Chamblee, Ryan, Kershaw & Anderson, P.C., Jared Kent, Dallas, TX, for Appellee.
Before Justices FRANCIS, MURPHY, and EVANS.1
Opinion by Justice MURPHY.
Andrea Sherman appeals the trial court‘s dismissal of her negligence claims against HealthSouth Specialty Hospital, Inc. d/b/a HealthSouth Dallas Rehab Hospital because of her failure to serve a chapter 74 expert report. See
BACKGROUND
Our factual recitation is based on Sherman‘s pleadings, in which she alleged she was a passenger in a van being transported back to her home from HealthSouth, a clinic. The driver of the van was a HealthSouth employee. When the driver suddenly applied the brakes, Sherman was thrown from her wheelchair onto the floorboard of the van because she “was not properly secured.” Specifically, the driver did not anchor Sherman‘s wheelchair to the van floor or place a seat belt across her shoulder and strap it across her waist. Sherman landed on her right shoulder and bruised her face and nose. She also sustained injuries to her forehead and neck and suffered mid-back pain.
Sherman filed suit against HealthSouth, alleging the driver was negligent in “not securing [her] before traveling” and HealthSouth was negligent in entrusting the vehicle to the driver in “assuming his ability to operate a vehicle including the securing [of] invalid passengers on the bus.” Sherman later amended her petition to invoke the doctrine of res ipsa loquitur. She alleged “the instrumentalities that caused [her] injuries were under the exclusive management and control” of HealthSouth and but for HealthSouth‘s negligence, she would not have been injured.
HealthSouth generally denied Sherman‘s allegations and subsequently moved to dismiss her claims, arguing Sherman had alleged health care liability claims under chapter 74 but had not served an expert report within 120 days of filing her original petition. See
DISCUSSION
Sherman raises two issues on appeal regarding the trial court‘s dismissal of her claims for failure to serve an expert report. She first contends the trial court erred because her “complaint[s] for injury damages suffered in a motor vehicle accident” are not health care liability claims. She asserts in her second issue that even if her claims are health care liability claims, the trial court erred in granting the motion and dismissing her claims because no ex-
Issue One: Whether Sherman Alleged Health Care Liability Claims
Our analysis of Sherman‘s first issue involves determining whether Sherman‘s allegations are negligence claims or are properly characterized as health care liability claims under chapter 74. See Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 179 (Tex.2012). The question of whether a cause of action is a health care liability claim is one of law, which we review de novo. See Saleh v. Hollinger, 335 S.W.3d 368, 372 (Tex.App.-Dallas 2011, pet. denied); Lee v. Boothe, 235 S.W.3d 448, 451 (Tex.App.-Dallas 2007, pet. denied).
Section 74.351 mandates that any person who asserts a health care liability claim against a health care provider must, within 120 days of filing the original petition, provide an expert report relating to each health care provider against whom a claim is asserted.
The expert-report requirements of section 74.351 apply to all claims that fall within the following statutory definition of a “health care liability claim“:
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant‘s claim or cause of action sounds in tort or contract.
The Texas Supreme Court instructs that to be a health care liability claim under the definition, the claim must have three component parts: (1) a physician or a health care provider must be the defendant; (2) the suit must relate to the patient‘s treatment, lack of treatment, or some other 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 act or omission or other departure must proximately cause the claimant‘s injury. Marks, 319 S.W.3d at 662. The parties agree for purposes of the issues on appeal that HealthSouth is a “health care provider” under chapter 74 and its alleged acts or omissions caused Sherman‘s injuries. See
A cause of action against a health care provider based upon an alleged departure from accepted standards of safety constitutes a health care liability claim.
Until its decision in Texas West Oaks Hospital, LP v. Williams, the Texas Supreme Court had not defined the “precise boundaries of the safety prong” in the definition of a health care liability claim. Williams, 371 S.W.3d at 184; see also Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527 n. 2 (Tex.2011) (per curiam). Previous instruction from the court on this issue was that standards of safety “must be construed in light of the other standards of medical and health care, standards that are directly related to the patient‘s care and treatment.” Marks, 319 S.W.3d at 664. In other words, accepted standards of safety are implicated when the unsafe condition or thing causing injury to the patient is an inseparable or integral part of the patient‘s care or treatment. See id.; Diversicare, 185 S.W.3d at 854 (suggesting unsafe conditions unrelated to provision of health care may not be properly classified as health care liability claim). The court also has instructed that departures from accepted standards of safety concern those claims directly related to acts that should have been performed or furnished for, to, or on behalf of the patient during the patient‘s care, treatment, or confinement, such as services provided by a hospital that meet a patient‘s fundamental needs of cleanliness and safety. See Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 395 (Tex.2011); Ollie, 342 S.W.3d at 527.
In Williams, however, the court expanded the scope of health care liability claims beyond claims for medical and health care. See Williams, 371 S.W.3d at 184-86. Specifically, the court concluded that the safety component of a health care liability claim “need not be directly related” to the provision of the patient‘s care or treatment. Id. at 186. In reaching this conclusion, the court construed the word “safety” contained in the definition of a health care liability claim as not being constricted by the phrase “directly related to health care,” which was added to the definition as part of the statute‘s 2003 amendment. Id. at 184-85 (disagreeing with proposition that legislature‘s addition of phrase “directly related to health care” in definition was intended to narrow existing scope of the safety prong); see also
The court‘s interpretation of the “safety” prong of the definition to exclude any direct connection to health care necessarily applies to the source of the “danger.” See Williams, 371 S.W.3d at 184, 186; see also Marks, 319 S.W.3d at 675 (Jefferson, C.J., concurring and dissenting) (noting that “Diversicare holds that premises liability claims are viable against health care providers“); Diversicare, 185 S.W.3d at 855, 860-61 (Jefferson, C.J., concurring). The breadth of this holding, which we are required to follow, encompasses the safety claims at issue here. See, e.g., Ross v. St. Luke‘s Episcopal Hosp., No. 14-12-00885-CV, 2013 WL 1136613, at *2 (Tex.App.-Houston [14th Dist.] Mar. 19, 2013) (mem. op.) (concluding court was without authority to disregard Texas Supreme Court decision in Williams interpreting the safety prong to include a hospital visitor‘s slip and fall case).
Sherman alleged HealthSouth‘s employee negligently failed to act with the proper degree of care and caution to secure her in the van before traveling from HealthSouth‘s clinic to her home. Her negligent entrustment claim relates to that same failure because she claims HealthSouth negligently entrusted its van to that employee when it assumed the employee had the ability to secure invalid passengers before travel. Although not admitted in her pleadings, Sherman does not dispute she had been at the HealthSouth clinic for the purpose of receiving medical care. HealthSouth undertook to transport Sherman from its clinic to her home, and the alleged failure to secure her properly before traveling occurred as part of her departure from the clinic.
Sherman argues that her “medical dealings” with HealthSouth had been completed and therefore her claims do not meet the definition of a health care liability claim because any association between the transportation provided to her by HealthSouth and the treatment she had received had ended. She maintains this tangential relationship “does not somehow transform a mere van ride into an integral part of health care services.” But under Williams, a direct connection between the act or omission causing injury and the provision of health care is not necessary for purposes of determining whether a claim is a health care liability claim. See Williams, 371 S.W.3d at 186. While HealthSouth was not providing Sherman with medical care or treatment at the time its driver “suddenly had to apply his brakes” and Sherman was not at the HealthSouth clinic at the time of her injuries, HealthSouth still was responsible for Sherman‘s safety during the transport from the clinic to her home; that is, HealthSouth must ensure she was “untouched by danger” or “secure from danger, harm, or loss.” Id. at 184.
Finally, Sherman argues that her claims “should be removed from the purview” of the health care liability act be-
When a plaintiff claims a health care provider was negligent in failing to properly care for her safety, those claims are health care liability claims even if the alleged act or omission is not directly related to the provision of health care. See id. at 186. Here, the essence of Sherman‘s claims is that HealthSouth was negligent for failing to provide for her safety when its employee did not secure her before traveling and for failing to ensure its employee could provide for her safety before travel. Consequently, we conclude Sherman‘s claims constitute health care liability claims for which an expert report is required. We overrule Sherman‘s first issue.
Issue Two: Application of the Doctrine of Res Ipsa Loquitur
Sherman‘s alternative contention is that even if her claims are health care liability claims, the trial court abused its discretion in requiring an expert report and dismissing her case because her claims are based on the doctrine of res ipsa loquitur. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001) (trial court‘s decision on motion to dismiss health care liability claim reviewed for abuse of discretion). Sherman contends the doctrine of res ipsa loquitur eliminates the need for an expert report under section 74.351 because the act of placing a seatbelt across a wheelchair to prevent it from movement is within the common knowledge of a layperson.
Res ipsa loquitur is not a separate cause of action from negligence; it is a rule of evidence by which the jury may infer negligence. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex.1990); Broxterman v. Carson, 309 S.W.3d 154, 158 (Tex.App.-Dallas 2010, pet. denied). It applies to situations in which (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence, and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Haddock, 793 S.W.2d at 951. Further, it applies only when “the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, requiring no expert testimony.” Id.
The legislature specifically limited the applicability of the doctrine in health care claims only to those cases in which the doctrine had been applied by Texas appellate courts as of August 29, 1977. See
We express no opinion on whether the use or non-use of a seatbelt for pur-
CONCLUSION
We conclude Sherman‘s petition alleges health care liability claims under chapter 74 and she therefore was required to serve an expert report. We also conclude the requirement that she file an expert report at the commencement of her suit is a procedural requirement that is not eliminated by pleading the doctrine of res ipsa loquitur. Because Sherman did not file an expert report within 120 days of filing suit, the trial court did not err in granting HealthSouth‘s motion to dismiss. Accordingly, we affirm the trial court‘s order.