Aquatic Care Programs, Inc. v. Cooper

616 S.W.3d 615

AQUATIC CARE PROGRAMS, INC., Appellant

v.Kathleen Denise COOPER, Appellee

NO. 14-18-01108-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed December 29, 2020

David Luningham, Fort Worth, for Appellant.

Gary M. Cooper, Lennon C. Wright, Houston, for Appellee.

Panel consists of Chief Justice Frost and Justices Christopher and Bourliot

OPINION¹

Kem Thompson Frost, Chief Justice

Appellant/defendant Aquatic Care Programs, Inc. asserts that the trial court abused its discretion in overruling objections to appellee/plaintiff Kathleen Denise Cooper's expert reports and in denying Aquatic Care's motions to dismiss based on alleged violations of the Texas Medical Liability Act's² expert-report requirements. We reverse and remand to the trial court for rendition of a judgment of dismissal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Cooper sought treatment for pain and numbness in her legs. Her doctor prescribed a course of aquatic therapy and referred her to Aquatic Care. In early 2016, Cooper began a regular program of pool exercise in Aquatic Care's facility.

Cooper alleges that in late May 2016, she contracted a waterborne bacterial infection after exercising in Aquatic Care's pool. According to Cooper's doctor, cultures confirmed that her infection was pseudomonas—a bacteria known to be found in health care settings, and "in the environment, specifically in water." The bacteria is resistant to antibiotics. Doctors admitted Cooper to the hospital, where she stayed for two weeks. Upon her discharge, doctors prescribed medications for treatment at home. Because of a worsening medical condition, in mid-October 2016, Cooper returned to the hospital for further care. A week later she received a discharge and transfer to another hospital that could better accommodate her special needs. Cooper received treatment from Dr. Jason R. Bailey, who performed a lolipoma excision of her left lower extremity abscess. Cooper then moved to another hospital to continue management of an infection of the left lower-extremity wound and cellulitis of bilateral lower extremities.

Cooper's Pleaded Allegations

Cooper filed this lawsuit against Aquatic Care asserting various negligence theories and alleging that Aquatic Care (1) negligently permitted a dangerous condition to exist in its pool that caused her to get a water-borne bacterial pseudomonas infection ; (2) negligently failed to warn her of the dangerous condition before she entered the pool to exercise; (2) failed to inspect by testing the pool water to determine its bacteria level; (3) failed to correct the pool water's dangerous bacterial level by adding additional chemicals to kill the bacteria in the pool water; (4) failed to warn invitees, including Cooper, that a dangerous bacterial condition existed before they entered the pool water; (5) failed to test Cooper to see whether she had contacted any virulent bacteria in Aquatic Care's facility; and (6) engaged in a dangerous activity by promoting the growth of allegedly flesh-eating bacteria in the pool as opposed to stopping the growth of the organism.

Cooper's Expert Reports and Aquatic Care's Objections

Cooper served Aquatic Care with (1) a report from her internist, Danny D. Cheng, M.D., with a printout from Cheng's professional website containing his biographical information, and (2) a report from Laraine Enderle, P.T., a California-board certified physical therapist, with Enderle's curriculum vitae. Aquatic Care filed objections to the expert reports and a motion to dismiss Cooper's lawsuit.

Aquatic Care complained that both of Cooper's expert reports failed to meet the requirements of Chapter 74 of the Texas Medical Liability Act. As to Cheng's report, Aquatic Care asserted (1) Cheng's curriculum vitae was insufficient, (2) Cheng failed to address any of the required elements under Chapter 74, and (3) the opinions expressed in Cheng's report were conclusory. As to Enderle's report, Aquatic Care complained that (1) Enderle lacked the qualifications to render opinions on the standard of care, (2) Enderle did not address required elements under Chapter 74 as to how Aquatic Care allegedly breached the standard of care, and (3) Enderle made conclusory statements in saying that it would be "unlikely" for someone to contract "flesh-eating bacteria" if various safeguards were followed.

Despite Cooper's serving of expert reports on Aquatic Care, Cooper viewed her claims as not being health care liability claims, and she moved for summary judgment to bar application of Chapter 74 to her claims. Aquatic Care filed supplemental objections to Cooper's Chapter 74 expert reports and addressed in more detail whether Cooper's claims fell within the scope of the statute.

At a hearing on September 10, 2018, the trial court ruled that Cooper's claims fell under the Texas Medical Liability Act and granted Cooper's oral request for a thirty-day extension to satisfy the expert-report requirements. The trial court reduced its ruling to a written order signed on October 8, 2018, reciting an effective date of September 10, 2018, the date of the hearing. A few months later, on December 4, 2018, Cooper filed and served documents purporting to be Jason R. Bailey, M.D.'s expert report. Cooper did not file or serve a curriculum vitae for Dr. Bailey. Days later Aquatic Care objected that Cooper had not filed Bailey's report on time or included the requisite curriculum vitae. The next week the trial court signed an order, dated December 10, 2018, overruling Aquatic Care's objections and denying its motion to dismiss. From that order, Aquatic Care timely filed this interlocutory appeal.

II. ISSUES AND ANALYSIS

Aquatic Care presents a single issue: Did the trial court err in denying the motion to dismiss based on Cooper's failure to satisfy Chapter 74's expert-report requirements? Cooper urges on appeal, as she did in the trial court, that her claims do not fall within the scope of the Texas Medical Liability Act. Specifically, she asserts that Aquatic Care is not a "health care institution" under the statute. In its reply brief, Aquatic Care argues that Cooper's scope argument is not properly before this court because Cooper failed to raise it in the trial court, and alternatively, that Cooper's claims do fall within the scope of the statute because apart from whether Aquatic Care falls within the statutory definition of a "health care institution," Aquatic Care is a "health care provider" under the statute. See Rehab. Care Sys. of Am. v. Davis , 73 S.W.3d 233, 234 (Tex. 2002) ; Skloss v. Perez , 01-08-00484-CV, 2009 WL 40438, at *6 (Tex. App.—Houston [1st Dist.] Jan. 8, 2009, no pet.) (mem. op.). The applicability of the Texas Medical Liability Act to Cooper's claims is a threshold issue this court must address in disposing of this interlocutory appeal.

Applicability of the Texas Medical Liability Act

Whether Cooper's claim amounts to a health care liability claim is a question of law we review de novo. Bioderm Skin Care, LLC v. Sok , 426 S.W.3d 753, 757 (Tex. 2014) ; see Johnson v. City of Fort Worth , 774 S.W.2d 653, 655–56 (Tex. 1989). In construing a statute, our objective is to determine and give effect to the Legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen , 15 S.W.3d 525, 527 (Tex. 2000). If possible, we must ascertain that intent from the Legislature's words in the statute and not look to extraneous matters for an intent the statute does not state. Id. Where the statutory language is unambiguous, we give the statute the interpretation supported by the plain meaning of the provision's words. St. Luke's Episcopal Hosp. v. Agbor , 952 S.W.2d 503, 505 (Tex. 1997). We must not engage in forced or strained construction; instead, we must yield to the plain sense of the words the Legislature chose. See id.

Chapter 74 defines a "health care liability claim" as

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 term does not include a cause of action described by Section 406.033(a) or 408.001(b), Labor Code, against an employer by an employee or the employee's surviving spouse or heir.

Tex. Civ. Prac. & Rem. Code Ann. 74.001(a)(13) (emphasis added).

Under the statute's plain meaning, to be protected by Chapter 74's procedures a defendant must be a health care provider or a physician, both of which are defined terms. The statute defines a health care provider as follows:

(A) "Health care provider" means any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including:

(i) a registered nurse;

(ii) a dentist;

(iii) a podiatrist;

(iv) a pharmacist;

(v) a chiropractor;

(vi) an optometrist;

(vii) a health care institution; or

(viii) a health care collaborative certified under Chapter 848, Insurance Code.

(B) The term includes:

(i) an officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician; and

(ii) an employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship.

Tex. Civ. Prac. & Rem. Code Ann. 74.001(a)(12) (emphasis added).

The term "health care institution," incorporated within the definition of "health care provider," expressly includes the following:

(A) an ambulatory surgical center;

(B) an assisted living facility licensed under Chapter 247, Health and Safety Code;

(C) an emergency medical services provider;

(D) a health services district created under Chapter 287, Health and Safety Code;

(E) a home and community

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