Vill. Green Alzheimer's Care Home, LLC v. Graves

650 S.W.3d 608

VILLAGE GREEN ALZHEIMER'S CARE HOME, LLC, Appellant

v.Norma GRAVES BY AND THROUGH James GRAVES Pursuant to a General Power of Attorney, Appellee

NO. 01-21-00131-CV

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

Opinion issued December 23, 2021

Chastiti N. Horne, Houston, Joshua C. Anderson, for Appellant.

Michael Kerensky, for Appellee.

Panel consists of Justice Goodman, Landau and Countiss.

Sarah Beth Landau, Justice

Norma Graves was mauled by a dog in the lobby of an assisted living facility. Her son sued the facility, Village Green Alzheimer's Care Home, LLC, on her behalf, asserting claims for premises liability and gross negligence. Village Green moved to dismiss the suit, arguing that (1) the claims against it are health care liability claims and (2) Graves failed to satisfy the statutory requirement of an adequate expert report. The trial court denied the motion to dismiss, and Village Green appealed.

We conclude that this is not a health care liability claim and thus affirm the trial court's order denying Village Green's motion to dismiss.

Background

Motions to dismiss for failure to file a preliminary expert report, by their nature, come early in the litigation.¹ As we have noted many times, at this early stage, the parties do not have the benefit of full discovery, leaving the pleadings and the contents of the expert reports (if any) as the main sources of information about the claim's underlying facts.² For this reason, the below background recitations come mainly from Graves's petition.³ What is eventually revealed through discovery and later trial testimony may support or refute these pleading assertions.

According to Graves, Village Green has a history of having unsupervised, aggressive dogs on its premises that goes back to a period before this dog and this plaintiff.

Marley

In early 2019, a Village Green employee, A. Asgar,⁴ found a stray dog and brought it to Village Green to live. The dog was given the name Marley. Village Green management allowed Marley to freely roam the lobby area of its premises.

One day, a visiting hospice nurse entered the lobby, and Marley lunged at her face. The nurse managed to shield her face, but Marley bit her on her arm and leg. The nurse required medical treatment for her injuries. The next time she visited Village Green, the nurse saw that Marley was still on the premises. Graves's pleadings do not say what ultimately happened to Marley. For their part, Village Green's pleadings do not mention Marley or that dog-attack.

Charlie

Less than a year later, Asgar found another stray dog and brought it to Village Green to live. They named this dog Charlie. Like Marley, Charlie was allowed to roam the lobby. She would often lie on the couches in the common area.

In early February 2020, L. Carlen began working at Village Green. On Carlen's first day of work, Charlie ran and jumped on Carlen. Carlen told management that Charlie's behaviors were concerning: Village Green is a residential facility that provides Alzheimer's care to mostly elderly people, and Charlie could knock a frail person down and injure them. Village Green allowed Charlie to continue freely roaming the lobby and common areas despite Carlen's objection.

Later that month, on February 20, Charlie was in the lobby when a resident named Anne approached the dog. Charlie lunged at the woman and bit her on the nose. Village Green staff and management learned of the attack that same day. Charlie continued to have full access to the lobby and other common areas of the premises.

Two days later, another resident, Norma Graves, walked through the same common area and saw Charlie lying on a lobby couch. Graves reached out to pet Charlie. Charlie lunged at her and knocked her to the ground. Charlie did not stop. The dog mauled Graves's face.

Graves was taken to the emergency room where she received many stitches to close more than one gash on her face. She also suffered a large puncture wound that could not be closed because it was too close to her eye.

According to Graves's family members, Village Green was less than forthcoming about what had occurred. At first, Graves's family was told that she had simply fallen. Next, they were told that Charlie had knocked her down. Finally, when the family members were with Graves and could see the wounds on her face, Village Green admitted that Charlie had attacked and bitten her.

Graves's family had not known that a stray dog was living on the Village Green premises. They began looking into the history of the dog and found out about the previous attack on Anne. They also found out that Charlie had injured Graves once before. On February 12—ten days before the mauling—Charlie caused Graves's face to bleed. Village Green had prepared an incident report that referred to Graves's injury as a "skin tear" of unknown origin, but it did not tell Graves's family about the injury or that Charlie caused it. Graves's family only learned of the "skin tear" incident after the mauling incident.

In sum, Graves's family learned that there had been at least two previous incidents of Charlie harming residents, yet Village Green continued to allow Charlie to roam freely on the premises.

Graves's family sought a temporary injunction to preserve video of the dog attack captured by a surveillance video camera mounted in the lobby. The video is not part of the appellate record, but the parties’ pleadings describe it as depicting Graves reaching out to pet Charlie on the lobby couch, Charlie lunging at Graves and knocking her down, Charlie attacking Graves's face, and no Village Green staff member being present until after Graves was injured.

Because Village Green immediately argued that this is a health care liability claim, Graves moved for the trial court to rule whether Chapter 74 applies to the facts underlying the claims. After first indicating that Chapter 74's expert-report requirements would apply, the trial court ultimately held that Graves's claims were not health care liability claims, having concluded that caring for people on the premises was independent of housing stray dogs on the same premises.

Village Green appealed.

Texas Medical Liability Act, Chapter 74

Before TMLA, we had TMLIIA, which was enacted in 1977 to reduce the cost of medical insurance. Aviles v. Aguirre , 292 S.W.3d 648, 649 (Tex. 2009) (per curiam). The TMLA replaced TMLIIA in 2003 and was also focused on medical malpractice insurance. The legislative goal was to "broaden[ ] access to health care by lowering malpractice insurance premiums." Tenet Hosps. Ltd. v. Rivera , 445 S.W.3d 698, 707 (Tex. 2014). It sought to achieve lower malpractice insurance premiums by requiring claimants to produce an opinion of a suitable expert early in the litigation, saying that their claims have merit. Columbia Valley Healthcare Sys., L.P. v. Zamarripa , 526 S.W.3d 453, 460 (Tex. 2017). The expected consequences of the preliminary-report requirement were two-fold: first, it would deter frivolous medical-malpractice suits and, second, for those frivolous suits that were filed, it would allow expeditious dismissal before the health care providers incurred discovery and other litigation costs. See id. ; see also Loaisiga v. Cerda , 379 S.W.3d 248, 263 (Tex. 2012) ( Section 74.351 ’s expert-report requirement allows for "a preliminary determination designed to expeditiously weed out claims that have no merit"). This, in turn, was supposed to lower medical-malpractice insurance premiums to make health care more available. See Fredericksburg Care Co., L.P. v. Perez , 461 S.W.3d 513, 523 (Tex. 2015).

To show that a claim has merit and should not be dismissed, a claimant must, at the outset, produce an opinion from a physician on what the applicable standard of care is, that the health care provider breached that standard of care, and that the alleged negligence of the health care provider proximately caused the plaintiff's injury. Zamarripa , 526 S.W.3d at 460. If no medical doctor can be found to opine that the health care provider's breach proximately caused the claimant's injuries, the case is dismissed. See Kelly v. Rendon , 255 S.W.3d 665, 679 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (stating that the expert report is "simply a preliminary method to show a plaintiff has a viable cause of action that is not frivolous or without expert support").

Notably, an expert's report is not subject to attack for stating the wrong standard of care. See Robles v. Pinnacle Health Facilities XV, LP , No. 14-18-00135-CV 2020 WL 746720, at *6 (Tex. App.—Houston [14th Dist.] Feb. 13, 2020, no pet.) (mem. op.). That a jury might ultimately reject the standard of care suggested by the expert as being too onerous is not a basis for a trial court to reject a Section 74.351 expert report and dismiss a suit.

See Methodist Hosp. v. Shepherd-Sherman , 296 S.W.3d 193, 200 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

The focus is not on the correctness of the articulated standard but, instead, on whether the claimant was able to secure a qualified physician who would opine, based on her training and experience, that a particular course of action is the standard of care, that the defendant breached the standard of care, and that the breach proximately caused the claimant's injuries. See Zamarripa , 526 S.W.3d at 459–60 (noting that expert report must explain "how and why" physician's breach of standard of care proximately caused plaintiff's injury); see also Kuhn v. Sam , No. 01-20-00260-CV, 2021 WL 3359171, at *6–9 (Tex. App.—Houston [1st Dist.] Aug. 3, 2021, no pet.) (mem. op.). This is generally stated in terms of "reasonable medical probability." Acharya v. Gomez , No. 05-18-00833-CV, 2019 WL 1923213, at *5 (Tex. App.—Dallas Apr. 30, 2019, pet. denied) (mem. op.).

Whether This is a Health Care Liability Claim

Chapter 74 defines a "health care liability claim." TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13). It has three statutory elements:

(1) the claim must be

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