Solomon v. Buckle

695 S.W.3d 664

Andria SOLOMON, Appellant

v.Rosemary BUCKLE, Nicole D. Ches, and HCA Health Services of Texas, Inc., Appellees

NO. 01-23-00349-CV

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

Opinion issued March 14, 2024

Rehearing Denied April 16, 2024

On Appeal from the 164th District Court, Harris County, Texas, Trial Court Case No. 2022-05959

Roberto Cantu, Houston, Rahfaan Markland, for Appellant.

Nicole G. Andrews, Benjamin Hamel, for Appellee.

Panel consists of Justices Goodman, Countiss, and Farris.

OPINION

Gordon Goodman, Justice

Andria Solomon appeals from the trial court’s order dismissing her suit for failing to file the expert report required by the Texas Medical Liability Act. Rosemary Buckle, Nicole D. Ches, and HCA Health Services of Texas, Inc. cross-appeal, contending that the trial court erred in not awarding them their attorney’s fees. As explained below, we affirm the trial court’s judgment in its entirety.

Buckle, Ches, and HCA Health Services have also moved to sanction Solomon or her counsel for misstatements made in her brief. We deny the motion.

BACKGROUND

Plaintiff's Lawsuit

Solomon sued Buckle and Ches for negligence. Solomon also sued HCA Health Services, alleging that it was liable for Buckle’s and Ches’s negligence because Buckle and Ches acted as agents or employees of HCA Health Services.

According to Solomon’s live pleading, she sought medical treatment from and was examined by Buckle regarding a knee injury Solomon sustained in a car accident. Solomon alleges that Buckle afterward submitted an attending physician’s statement to Solomon’s disability benefits insurer that falsely represented that Buckle had made certain exams, observations, and findings, and that Solomon’s insurer then terminated Solomon’s disability benefits based on this false attending physician’s statement. Ches, not Buckle, signed the attending physician’s statement.

Solomon alleged that Buckle had a duty to ensure that the attending physician’s statement was accurate and breached this duty because she knew the statement was false. Solomon further alleged that Ches likewise had a duty to ensure the accuracy of this statement and breached this duty by signing the statement based on the false information supplied by Buckle without verifying its truthfulness.

Defendants’ Motion to Dismiss

Buckle, Ches, and HCA Health Services moved to dismiss Solomon’s lawsuit under the Texas Medical Liability Act based on Solomon’s failure to serve an expert report supporting her negligence claim. See Tex Civ Prac & Rem. Code § 74.351(b)(2) (requiring dismissal if expert report not timely served as to health care liability claims). They also sought attorney’s fees in connection with the dismissal. See id. § 74.351(b)(1) (requiring award of fees in event of dismissal).

Plaintiff's Response to Motion to Dismiss

Solomon responded to the motion to dismiss. She argued that her negligence claim is not subject to the Texas Medical Liability Act because this claim does not fall within the definitions of "health care liability claim" or "professional or administrative services." See id. § 74.001(a)(13), (24) (defining these terms).

As an exhibit, Solomon attached the attending physician’s statement, which is an insurance-related form created by Solomon’s insurer. In the form, Buckle or Ches reported that Solomon was seen on April 15, 2021, for knee pain. The form recited the subjective symptoms and objective signs associated with her knee condition, stated the diagnostic tests performed, and identified a plan of treatment that involved a follow-up visit to obtain an MRI. The form also contained various representations about Solomon’s physical condition or physical abilities. Among other things, the form identified how long she could sit, stand, and walk; recorded how much weight she could carry and how often she could do so; documented her ability to use her hands to grasp, push, pull, and manipulate objects, as well as her ability to engage in repetitive movements with her feet; and quantified her ability to engage in various tasks by specifying whether and how often she could climb, balance, stoop, kneel, crouch, crawl, and reach above her shoulder. The form is dated June 25, 2021 (and appears to have been faxed to/from someone four days prior).

Solomon also attached as an exhibit a medical record documenting the April 15 visit with Buckle. This record also indicated an MRI was the plan of treatment.

Trial Court’s Ruling

The trial court granted the motion to dismiss and rendered a take-nothing judgment on Solomon’s claims. But the trial court did not award attorney’s fees.

DISMISSAL OF THE LAWSUIT

Solomon contends the trial court erred in dismissing her lawsuit under the Texas Medical Liability Act because her claim is not a "health care liability claim."

Standard of Review

In this ease, the dispositive issue concerning the dismissal of Solomon’s suit is whether her claims fall within the scope of the Texas Medical Liability Act. Under these circumstances, our review is de novo. See Methodist Hosp. v. Halat, 415 S.W.3d 517, 520 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (noting that district court’s ruling on motion to dismiss under Texas Medical Liability Act is generally reviewed for abuse of discretion, but that review is de novo when applicability of Act to plaintiff's claims is dispositive issue and appellate court must interpret Act).

Applicable Law

Statutory Interpretation in General

[1, 2] In interpreting a statute, we ascertain and give effect to the intent of the legislature, which we derive from the words of the statute absent ambiguity. See id. When statutory terms are defined in the statute itself, we rely on these definitions. See id. Otherwise, we interpret statutory terms in conformity with their plain and common meaning, unless the terms have acquired a technical meaning or a contrary meaning is apparent from the context. See id.; see also Taylor v. Taylor, 608 S.W.3d 265, 267 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (stating that we give statutory terms their common, ordinary meaning unless the legislature has defined them, they have technical meanings, or context shows they have other meanings). We cannot rewrite the statute. Taylor, 608 S.W.3d at 268. Accordingly, we cannot add terms the legislature omitted or subtract terms the legislature included. Id.

The Texas Medical Liability Act

When a plaintiff asserts a "health care liability claim," the Texas Medical Liability Act requires her to serve an expert report on any defendant physician or health care provider within 120 days after each defendant’s original answer. Tex Civ Prac & Rem Code § 74.351(a). The expert report must provide "a fair summary of the expert’s opinions as of the date of the report 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." Id. § 74.351(r)(6). If the Act applies and the plaintiff fails to timely serve the required expert report, the court must, on the motion of the affected defendant, dismiss the claim. Id. § 74.351(b).

The scope of the Texas Medical Liability Act is expansive. See Bioderm Skin Care v. Sok, 426 S.W.3d 753, 758 (Tex. 2014) (observing that "broad language of the Medical Liability Act evinces legislative intent for the statute to have expansive application"). The Act 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." Tex Civ Prac & Rem Code § 74.001(a)(13).

[3] To be a "health care liability claim" and thus be within the Texas Medical Liability Act’s scope, three basic elements must be satisfied. Lake Jackson Med. Spa v. Gaytan, 640 S.W.3d 830, 840 (Tex. 2022). First, the defendant must be a physician or health care provider. Id.; see Tex Civ Prac & Rem Code § 74.001(a)(12), (23) (defining terms "health care provider" and "physician" for purposes of Act). Second, the plaintiffs claim must concern 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. Gaytan, 640 S.W.3d at 840; see Tex Civ Prac & Rem Code § 74.001(a)(10), (13), (19), (24) (defining terms "health care," "health care liability claim," "medical care," and "professional or administrative services"); Rogers v. Bagley, 623 S.W.3d 343, 350 (Tex. 2021) (noting Act does not define "safety" but Court has defined it as "condition of being ‘untouched by danger; not exposed to danger; secure from danger, harm or loss’ "). Third, the defendant’s conduct must proximately cause the plaintiff's injury or death. Gaytan, 640 S.W.3d at 840; see Tex Civ Prac & Rem Code § 74.001(a)(13) (incorporating proximate cause and injury or death into "health care liability claim").

[4] When assessing whether the plaintiff asserts a "health care liability claim," we focus on the underlying nature of the claim, not its label. Gaytan, 640 S.W.3d at 836. To ascertain the claim’s underlying nature, we look to the entire record, including pleadings, motions and responses, and relevant evidence. Id. at 836, 839–40.

[5, 6] We are not bound by the way in which the plaintiff characterizes a claim in her pleadings if they do not accurately reflect the claim’s underlying nature. See Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012) (stating facts underlying claim are determinative of Act’s applicability, "not the form of, or artfully-phrased language in, the plaintiff's...