City of Hous. v. Houston

608 S.W.3d 519

CITY OF HOUSTON, Appellant

v.Shirley HOUSTON, Appellee

NO. 01-19-00255-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued August 25, 2020

Christy L. Martin, 900 Bagby, 4^th Floor, Houston, Texas 77002, for Appellant.

Ikaha M. Sparrow, Michael Johnson, 4606 FM 1960 West, Ste. 400, Houston, Texas 77069, for Appellee.

Panel consists of Justices Kelly, Hightower, and Countiss.

Julie Countiss, Justice

In this interlocutory appeal,¹ appellant, City of Houston (the "City"), challenges the trial court's order denying its motion to dismiss the negligence suit against it by appellee, Shirley Houston. In its sole issue, the City contends that the trial court erred in denying its motion to dismiss because Houston's claim constitutes a health care liability claim² and she failed to serve it with a statutorily-required expert report.³

We reverse and render.

Background

In her first amended petition, Houston alleges that on or about March 12, 2017, Houston, while in her home, "pressed her emergency Life Alert button after experiencing difficulty breathing." In response, two Houston Fire Department ("HFD") emergency medical technicians ("EMTs") arrived at her home. The EMTs then "used a motor-operated gurney owned by" the City to transport Houston to an ambulance. According to Houston, the EMTs lowered the gurney and placed Houston on the gurney "in a laying position." As Houston lay on the gurney, the EMTs raised it "to its highest height[,] without properly securing" Houston. While the EMTs transported Houston from her home to the ambulance outside, "the gurney suddenly gave way, tilted, and caused [Houston] to [be] drop[ped] on the ground." Houston lay on the ground in pain for over twenty minutes before additional HFD personnel arrived. Houston alleges that, as a result of her fall, she "suffer[ed] severe, painful, and permanent injuries that require[d] [her] to undergo surgery."

Houston brings a negligence claim against the City, asserting that at all material times the HFD EMTs were acting within the course and scope of their employment or official duties and to advance the duties of their office or employment with the City. And the EMTs were negligent in failing to operate the gurney in a safe manner, failing to maintain a proper lookout, failing to secure Houston properly to the gurney, failing properly to secure the gurney, failing to monitor "the patient" while operating the gurney, and failing to use established protocols. According to Houston, each of those acts or omissions by the EMTs proximately caused Houston's injuries and damages.

The City answered, generally denying the allegations in Houston's petition. The City then moved to dismiss Houston's negligence claim against it, asserting that Houston had alleged a health care liability claim, she had failed to serve the statutorily-required expert report, and the trial court had to dismiss Houston's claim.⁴

In response, Houston argued that she was not required to serve an expert report because she had not alleged a health care liability claim and the City was not a health care provider. Houston attached to her supplemental response to the City's motion to dismiss the HFD's "EMS Patient Care Report," which detailed the EMTs treatment of Houston on March 12, 2017.

The trial court denied the City's motion.

Standard of Review

We review a trial court's decision on a motion to dismiss a health care liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 875 (Tex. 2001) ; Cage v. Methodist Hosp. , 470 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2015, no pet.). That said, whether a claim constitutes a health care liability claim is a question of law that we review de novo. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems , 575 S.W.3d 357, 363 (Tex. 2019). In determining whether a claim constitutes a health care liability claim, we consider the entire record, including the pleadings, motions, and responses, and relevant evidence properly admitted. Loaisiga v. Cerda , 379 S.W.3d 248, 258 (Tex. 2012).

Health Care Liability Claim

In its sole issue, the City argues that the trial court erred in denying its motion to dismiss because Houston's claim against it constitutes a health care liability claim and Houston failed to serve it with a statutorily-required expert report.

Under the Texas Medical Liability Act ("TMLA"), a plaintiff whose claim constitutes a health care liability claim must serve an expert report, with a curriculum vitae for the expert whose opinion is offered, on a defendant physician or health care provider within 120 days of the filing of an answer by the defendant. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) ; see also Weems , 575 S.W.3d at 360–61. If the plaintiff fails to timely serve an expert report, then on the motion of a defendant physician or health care provider, the trial court must dismiss the plaintiff's health care liability claim with prejudice. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) ; see also Weems , 575 S.W.3d at 360–61. Here, Houston did not serve an expert report on the City at any time, so if Houston's negligence claim against the City constitutes a health care liability claim, her suit must be dismissed. See Weems , 575 S.W.3d at 360–61, 363 (because plaintiff did not serve expert report, if plaintiff asserted health care liability claim, suit must be dismissed with prejudice).

The TMLA defines a "[h]ealth 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.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (internal quotations omitted); see also Ross v. St. Luke's Episcopal Hosp. , 462 S.W.3d 496, 501 (Tex. 2015). Thus, we consider three basic elements in determining whether a plaintiff's claim constitutes a health care liability claim: (1) whether the defendant is a physician or health care provider; (2) whether the claim at issue concerns treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety, or professional or administrative services directly related to health care; and (3) whether the defendant's act or omission complained of proximately caused the injury to the plaintiff.⁵ Rio Grande Valley Vein Clinic, P.A. v. Guerrero , 431 S.W.3d 64, 65 (Tex. 2014) ; see TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). The TMLA creates a rebuttable presumption that a plaintiff's claim is a health care liability claim if it is brought against a physician or health care provider and "is based on facts implicating the defendant's conduct during the course of a patient's care, treatment, or confinement." Loaisiga , 379 S.W.3d at 256.

A. Health Care Provider

The City argues that it constitutes a health care provider under the TMLA because the HFD, and its EMTs, which Houston alleges "were acting within the course and scope of their employment and in furtherance of their employment with" the City, constitute emergency medical services providers. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(11), (a)(12)(A).

The TMLA defines a "[h]ealth care provider" as:

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: ... (vii) a health care institution ....

Id. § 74.001(a)(12)(A) (emphasis added) (internal quotations omitted). A "[h]ealth care institution" includes "an emergency medical services provider." Id. § 74.001(a)(11)(C) (internal quotations omitted); see also id. § 74.001(a)(8) (defining "[e]mergency medical services provider" (internal quotations omitted)). "Health care" is "any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." Id. § 74.001(a)(10) (internal quotations omitted).

Houston argues that the City cannot constitute a health care provider under the TMLA because the City is a political subdivision of the State and a "political subdivision of the [S]tate" is not one of the enumerated entities in the TMLA's definition of a "[h]ealth care provider." See id. § 74.001(a)(12)(A) (internal quotations omitted).

The list of people and entities in the TMLA's definition of a "health care provider" is not exclusive, and a person or entity not specifically enumerated may still constitute a health care provider under the TMLA. See Skloss v. Perez , No. 01-08-00484-CV, 2009 WL 40438, at *3–6 (Tex. App.—Houston [1st Dist.] Jan. 8, 2009, no pet.) (mem. op.) ("The list of health care providers in section 74.001(a)(12) does not specifically include a[ ] [licensed professional counselor]; however, the list is non-exhaustive."); Christus Health v. Beal , 240 S.W.3d 282, 286–87 (Tex. App.—Houston [1st Dist.] 2007, no pet.), abrogated on other grounds by Tex. W. Oaks Hosp., LP v. Williams , 371 S.W.3d 171 (Tex. 2012) ; see also Strobel v. Marlow , 341 S.W.3d 470, 474–75 (Tex. App.—Dallas 2011, no pet.) ; House of Yahweh v. Johnson , 289 S.W.3d 345, 351 (Tex. App.—Eastland 2009, no pet.). And plaintiffs will sometimes assert health care liability claims against political subdivisions of the State. See, e.g., Tinnard v. Dallas Cty. Hosp. Dist. , No. 05-13-01161-CV, 2015 WL 273123, at *1 (Tex. App.—Dallas Jan. 22, 2015, no pet.) (mem. op.) ; Cervantes v. McKellar , 424 S.W.3d 226, 229 (Tex. App.—Texarkana 2014, no pet.) ; Harris Cty. Hosp. Dist. v. Garrett , 232 S.W.3d 170, 173 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ; Devereaux v. Harris...