Opinion issued March = 22,=20 2007
For=20 The
ORA =
DEVEREAUX,=20
Appellant HARRIS =
COUNTY=20
HOSPITAL DISTRICT, Appellees
On =
Appeal from the=20
334th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2004-52444
Appellant, Ora Devereaux, =
appeals the=20
trial court's dismissal with prejudice of her causes of action for =
breach=20
of contract and negligence against appellee, Harris County =
Hospital=20
District. After determining that Devereaux's claims were for =
health care=20
liability as defined by the Medical Liability and Insurance =
Improvement=20
Act (the Medical Liability Act), the trial court dismissed =
Devereaux's=20
lawsuit due to her failure to file the required expert report. =
See=20
Tex. Civ. Prac. & Rem. Code Ann. =A7=A7 74.001(13) =
(Vernon=20
2005), 74.351 (Vernon Supp. 2006). In two issues, Devereaux =
contends that=20
the trial court erred by denying her motion for continuance and by =
applying the Medical Liability Act to her claims. We conclude that =
the=20
trial court properly dismissed the lawsuit pursuant to the Medical =
Liability Act because Devereaux's claims are health care liability =
claims=20
that required her to file an expert report, which she did not =
file. We=20
affirm. On September 23, 2004, =
Devereaux, a=20
paraplegic, filed an original petition asserting claims of breach =
of=20
contract and negligence against Harris County Hospital District =
"and=20
Several employees of Ben Taub Hospital's Nuclear Medicine =
Facility." The=20
petition alleged that after the completion of a medical =
examination at Ben=20
Taub Hospital, Devereaux "was not assisted properly" into her =
wheelchair=20
by hospital employees, who "tried to lift her down from the bed =
with the=20
help of a stool." Devereaux asserts that she was injured when she =
fell off=20
the stool and that the injury was the result of the hospital =
"recklessly=20
ignor[ing]" her need for a "stretcher and additional attendants."=20
Devereaux alleged claims for breach of contract against the =
"defendant";=20
for negligence against the hospital employees, which she extends =
to the=20
Hospital District under a respondeat superior theory; and for =
negligent=20
hiring against the Hospital District. In March 2005, the Hospital =
District=20
moved under the Medical Liability Act to dismiss Devereaux's =
claims with=20
prejudice by asserting that the claims were health care liability =
claims=20
that "directly relate[d] to the provision of medical treatment and =
whether=20
appropriate care was rendered by Defendant or its employees." The =
Hospital=20
District contended that the Medical Liability Act required the =
trial court=20
to dismiss Devereaux's lawsuit due to her failure to file the =
expert=20
report required by statute. On April 15, 2005, Devereaux =
responded,=20
stating that "the cause of action filed was not a Health care =
liability=20
claim as the medical care was not in question; however the =
employees=20
negligent use of the Defendant's personal property caused and =
contributed=20
to Plaintiff's injuries." That same day, Devereaux filed =
an=20
"Emergency Motion for Continuance" that stated that her attorney =
was ill=20
due to a "medical emergency and surgery she had on March 30, =
2005," and=20
that her attorney could "not properly respond to Defendant's =
Motion to=20
Dismiss hearing on this date." Attached to the motion were an =
affidavit=20
from Devereaux's attorney, Boma Allison, and a note from a =
physician which=20
stated, "To whom it may Concern, Please excuse Mrs. Boma Allison =
from work=20
on days 3/15/05 to 4/30/05 due to medical reasons." The trial court denied the =
Hospital=20
District's motion to dismiss on April 15, and ten days later, on =
April 25,=20
the Hospital District filed a motion for the trial court to =
reconsider the=20
denial of the motion to dismiss. The trial court, on May 6, ruled =
in favor=20
of the Hospital District. The trial court's ruling that granted =
the=20
Hospital District's motion included a handwritten notation on the =
judgment=20
that stated that "[u]pon review of [Devereaux's] pleadings, in =
light most=20
favorable to [Devereaux], the claims are not for negligence =
arising from=20
the 'stool' but from failure of [the Hospital District] to select =
an=20
appropriate method of transfer--this is a healthcare liability =
claim."=20
Devereaux, who had not =
responded to the=20
April 25 motion and who did not appear on May 6, filed a motion =
for new=20
trial on May 23. Devereaux's motion for new trial complained that =
the May=20
6 setting (1) "did not give plaintiff appropriate time for a valid =
response," (2) violated the Texas Rules of Civil Procedure as well =
as the=20
local rules of court, and (3) "did not allow sufficient time to =
respond=20
. . . [because] Plaintiff's counsel was still ill and =
under=20
medical care due to surgery and complications from surgery as of =
May 06,=20
2005 as evidenced by the attached medical work excuse from the =
treating=20
doctor." Attached to the motion for new trial was an affidavit =
from=20
Allison that averred that "Plaintiff's attorney was still ill due =
to=20
serious medical problems and surgery,"an excuse from a physician =
for=20
Allison stating that she should be excused from work May 1 to 25, =
and an=20
excuse from the same physician for the prior dates of March 15 to =
April=20
30. The trial court denied Devereaux's motion for new trial on =
June 3,=20
2005. Health =
Care=20
Liability Claim In Devereaux's second issue, =
she contends=20
that the trial court erred by dismissing her cause of action for =
failure=20
to file an expert report because she does not assert a health care =
liability claim. Devereaux does not dispute that she failed to =
file the=20
expert report. Her challenge asserts only that at the time of her =
injury=20
the hospital's medical treatment was already completed and that =
her claims=20
do not require specialized medical knowledge because her claims =
merely=20
involve the "lifting of a patient safely into her =
wheelchair." We review a trial court's =
decision to=20
dismiss a suit under the Medical Liability Act for an abuse of =
discretion.=20
Am. Transitional Care v. Palacios, 46 S.W.3d 873, 875 =
(Tex.=20
2001). However, to the extent resolution of this issue requires=20
interpretation of the statute itself, we review under a de novo =
standard.=20
Ponce v. El Paso Healthcare Sys., Ltd., 55 S.W.3d 34, 36 =
(Tex.=20
App.--El Paso 2001, pet. denied) (citing Johnson v. City of =
Fort=20
Worth, 774 S.W.2d 653, 656 (Tex. 1989)). Health care =
liability claims=20
are governed by the Medical Liability Act. Tex. Civ. Prac. & =
Rem. Code=20
Ann. =A7 74.001-.507 (Vernon 2005 & Supp. 2006). The =
legislature has=20
provided the following definitions pertinent to our case: =
"Health care liability claim" =
means a=20
cause of action against a health care provider or physician for =
treatment,=20
lack of treatment, or other claimed departure from accepted =
standards of=20
medical care, or health care, or safety or professional or =
administrative=20
services directly related to health care, which proximately =
results in=20
injury to or death of a claimant, whether the claimant's claim or =
cause of=20
action sounds in tort or contract. "Health care" means any act or =
treatment=20
performed or furnished, or that should have been performed or =
furnished,=20
by any health care provider for, to, or on behalf of a patient =
during the=20
patient's medical care, treatment, or confinement. "Health care provider" means =
any person,=20
partnership, professional association, corporation, facility, or=20
institution duly licensed, certified, registered, or chartered by =
the=20
State of Texas to provide health care, including: . . . (vii) a health care=20
institution. The term =
includes: (i) an officer, director, =
shareholder,=20
member, partner, manager, owner, or affiliate of a health care =
provider or=20
physician; and (ii) an employee, independent =
contractor,=20
or agent of a health care provider or physician acting in the =
course and=20
scope of the employment or contractual relationship. Tex. Civ. Prac. & Rem. Code =
Ann. =A7=A7=20
74.001(a)(13), (a)(10), (a)(12) (Vernon 2005). A plaintiff asserting a health =
care=20
liability claim must, within 120 days of filing an original =
petition,=20
provide an expert's report to the health care providers against =
whom=20
liability is asserted. Id. =A7 74.351(a). A cause of action alleges a =
departure=20
from accepted standards of medical or health care if the act or =
omission=20
complained of is an inseparable part of the rendition of medical =
services.=20
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, =
848=20
(Tex. 2005). "To determine whether a cause of action is a health =
care=20
liability claim . . . , we examine the underlying =
nature of=20
the claim and are not bound by the form of the pleading." =
Id. at=20
847. In other words, a claimant cannot escape the Legislature's =
statutory=20
scheme by artful pleading. Murphy v. Russell, 167 S.W.3d =
835, 838=20
(Tex. 2005). The necessity of expert testimony from a medical or =
health=20
care professional to prove a claim may also be an important factor =
in=20
determining whether a cause of action is an inseparable part of =
the=20
rendition of medical or health care services. =
Diversicare, 185=20
S.W.3d at 848. Devereaux's causes of action =
are, in=20
their underlying nature, health care liability claims. In her =
original=20
petition, Devereaux alleges in her statement of facts =
that she was transferred from her =
wheelchair,=20
with the aid of a stretcher and the assistance of several =
attendants onto=20
a bed, where her examination was concluded. However, upon conclusion, she =
was not=20
assisted properly back in to her wheelchair. Instead of seeking =
assistance=20
and using a stretcher or pulley system for the transfer, employees =
in the=20
facility tried to lift her down from the bed with the help of a =
stool.=20
However, Ms. Devereaux fell off the stool, as she has no real use =
of her=20
legs. Mrs. Devereaux's pleas that an alternative equipment, namely =
the=20
stretcher and additional attendants be provided were recklessly=20
ignored. Devereaux's pleadings for =
breach of=20
contract, =95 failed to=20
provide a reasonably safe environment, =95 failed to=20
properly hire and train employees to conduct her medical =
examination and=20
proper procedure, =95 failed to=20
provide adequate equipment, =95 failed to=20
use proper procedure for transferring her from the bed to the =
wheelchair,=20
and =95 knew or=20
should have known that their use of the stool to transfer a =
paraplegic was=20
careless, unreasonable and reckless. These=20
claims are for breaches of the standard of care for a health care=20
provider. See Diversicare, 185 S.W.3d at 849. =
The=20
essence of Devereaux's claim is that the Hospital District and its =
employees failed to move her safely from the examining table into =
her=20
wheelchair after the medical examination was complete, which is=20
inseparable from the health care provided to her. See id. =
The=20
duties that Devereaux claims were breached were by the hospital =
employees=20
who move paraplegic patients from examining tables. We also=20
note that expert testimony is necessary to prove the alleged =
lapses in=20
professional judgment and treatment. See id. at 851. "It =
is not=20
within the common knowledge of the general public to determine the =
ability=20
of patients in weakened conditions to protect themselves." =
Id.=20
(construing need for expert testimony to establish standard of =
care for=20
patient sexually assaulted by another patient). We conclude that =
it is not=20
within the common knowledge of the general public to determine the =
appropriate procedures for moving a paraplegic patient from an =
examining=20
table to a wheelchair, and that expert testimony is necessary to =
establish=20
the standard of care. We note=20
further that the definition of "health care liability claim" =
includes=20
"departure from accepted standards of . . . safety." =
Tex. Civ.=20
Prac. & Rem. Code Ann. =A7 74.001(a)(13). The supreme court =
has found=20
that the legislature's inclusion of "claims based on breaches of =
accepted=20
standards of 'safety' expands the scope of the statute beyond what =
it=20
would be if it only covered medical and health care."=20
Diversicare, 185 S.W.3d at 855. Devereaux's claims =
include=20
allegations that the Hospital District and its employees provided =
an=20
unsafe environment, which is specifically included in the =
definition of=20
health care liability claim. See id. We conclude=20
that Devereaux's claims that the Hospital District failed to =
provide=20
proper procedures for transferring her from the examining table to =
her=20
wheelchair are covered by the broad definition of health care =
liability=20
claims in the Medical Liability Act. See id. Devereaux =
was=20
therefore obligated to serve an expert report on the Hospital =
District.=20
See Tex. Civ. Prac. & Rem. Code Ann. =A7 74.351(a). =
We hold=20
that because Devereaux failed to file the required expert report, =
the=20
trial court did not err by dismissing Devereaux's claims. We =
overrule=20
Devereaux's second point of error. Devereaux=20
contends in her first issue that the trial court improperly denied =
her=20
motion for continuance, thus denying her the representation of =
counsel at=20
a hearing on the Hospital District's motion to reconsider and =
motion to=20
dismiss. In civil=20
cases in which the absence of counsel has been urged as grounds =
for a=20
continuance or new trial, courts have required a showing that the =
failure=20
to be represented at trial was not due to the party's own fault or =
negligence. State v. Crank, 666 S.W.2d 91, 94 (Tex. =
1984).=20
Further, "[t]his Court will not disturb a trial court's order =
denying a=20
motion for continuance unless the trial court has committed a =
clear abuse=20
of discretion." BMC Software Belgium, N.V. v. Marchand, =
83 S.W.3d=20
789, 800 (Tex. 2002). A trial court "abuses its discretion when it =
reaches=20
a decision so arbitrary and unreasonable as to amount to a clear =
and=20
prejudicial error of law." Id. (quoting Johnson v. =
Fourth Ct.=20
App., 700 S.W.2d 916, 917 (Tex. 1985)). 1.=20
April 15 Devereaux's=20
motion for continuance, which she filed on April 15, refers only =
to a=20
purported hearing on that same day on the Hospital District's =
first motion=20
to dismiss. Specifically, the motion states, This case=20
is set for Defendant's Motion to Dismiss hearing on April 15, =
2005. This=20
is the first hearing on Defendant's Motion to Dismiss, and the =
first=20
request for continuance. Plaintiff=20
requests for additional time because BOMA O. ALLISON, ESQ., =
Plaintiff's=20
attorney is still ill and delicate, as a consequence of the =
medical=20
emergency and surgery she had on March 30, 2005 and can not =
properly=20
respond to Defendant's Motion to Dismiss hearing on this date. =
Counsel=20
attaches her doctor's work excuse. I =
am=20
unavailable for Defendant's Motion to Dismiss hearing on April 15, =
2005=20
because BOMA ALLISON, ESQ. attorney is still ill and delicate, as =
a=20
consequence of the medical emergency and surgery on March 30,=20
2005. According=20
to Devereaux's appellate brief, "there was a hearing on April 15, =
2005,=20
which Appellant;s [sic] attorney managed to attend." Assuming that =
the=20
trial court denied the motion for continuance for April 15, the =
trial=20
court ruled in favor of Devereaux on that date by denying the =
Hospital=20
District's motion to dismiss, 2.=20
April 25 On April=20
25, the Hospital District filed a motion for reconsideration of =
the trial=20
court's refusal to dismiss Devereaux's lawsuit. The motion did not =
include=20
a request for a hearing. In the statement of facts in her brief, =
Devereaux=20
contends that her motion for continuance pertained to the Hospital =
District's April 25 motion. However, the only motion for =
continuance in=20
the appellate record is stamped by the Harris County clerk as =
filed on=20
April 15. But on April 15, the Hospital District's motion for=20
reconsideration did not exist; it was filed 10 days later on April =
25.=20
Neither Devereaux nor her attorney appeared on April 25, nor did =
they file=20
a motion for continuance of any hearing that might relate to the =
April 25=20
motion for reconsideration filed by the Hospital District, nor did =
they at=20
any time file any response to the Hospital District's April 25=20
motion. 3.=20
May 6 The final=20
judgment, which Devereaux now appeals, was rendered by the trial =
court on=20
May 6. Devereaux did not file any motion for continuance for any =
date=20
other than April 15. No motion for continance was filed that =
related to=20
the motion to dismiss that was granted by the trial court on May =
6. An=20
appellant must request a continuance in the manner described in =
the Rules=20
of Civil Procedure. See, e.g., Ellason v. Ellason, 162 =
S.W.3d=20
883, 886-87 (Tex. App.--Dallas 2005, no pet.) (oral request for=20
continuance insufficient); In re Estate of Diggs, 733 =
S.W.2d 681,=20
685 (Tex. App.--Amarillo 1987, writ denied) (when appellants fail =
to file=20
continuance, court of appeals presumes no abuse of discretion); =
see=20
also Tex. R. Civ. P. 251-53. By failing to even request a =
motion for=20
continuance for April 25 or May 6, Devereaux cannot now complain =
about the=20
trial court's failure to reset the case from those dates. We =
overrule=20
Devereaux's first issue.
We affirm=20
the judgment of the trial court. Elsa=20
Alcala Panel consists of Justices =
Taft, Alcala,=20
and Hanks.=20
1. The statute states, In a health care liability =
claim, a=20
claimant shall, not later than the 120th day after the date the =
original=20
petition was filed, serve on each party or the party's attorney =
one or=20
more expert reports, with a curriculum vitae of each expert listed =
in the=20
report for each physician or health care provider against whom a =
liability=20
claim is asserted. The date for serving the report may be extended =
by=20
written agreement of the affected parties. Each defendant =
physician or=20
health care provider whose conduct is implicated in a report must =
file and=20
serve any objection to the sufficiency of the report not later =
than the=20
21st day after the date it was served, failing which all =
objections are=20
waived.
Tex. Civ. Prac. & Rem. Code =
Ann. =A7=20
74.351(a) (Vernon Supp. 2006). The statute further defines an =
"expert=20
report" as a written report by an expert =
that=20
provides a fair summary of the expert's opinions as of the date of =
the=20
report regarding applicable standards of care, the manner in which =
the=20
care rendered by the physician or health care provider failed to =
meet the=20
standards, and the causal relationship between that failure and =
the=20
injury, harm, or damages claimed. Id. =A7 74.351(r)(6).=20
2. Devereaux's claim for breach of contract =
contends=20
that the Hospital District "contracted to provide [her] with a =
reasonably=20
safe environment and properly trained employees to conduct her =
medical=20
examination in the hospital . . . . [T]he Defendant =
breached the contract by not providing a safe place and properly =
trained=20
employees to conduct her medical examination."=20
3. Devereaux alleges that the Hospital =
District's=20
employees were negligent, A. In that=20
Defendant employees failed to utilize proper equipment to provide =
a=20
reasonably safe environment for Plaintiff to complete her medical=20
examination; B. In that=20
Defendants failed to ensure Plaintiff's safety by utilizing the =
same=20
procedure implemented to transfer Plaintiff to the bed, when the =
reverse=20
was necessary; C. In that=20
Defendants knew or should have known that their use of the stool =
to=20
transfer a paraplegic was essentially careless, unreasonable and=20
reckless[; and] D. In that=20
Defendants were aware of the recklessness of their actions and =
proceeded=20
to do same. She alleges=20
that the Hospital District should be held liable for the conduct =
of its=20
employees under respondeat superior.=20
Devereaux=20
alleges that the Hospital District was negligent, in =
that A. Defendant failed to provide =
proper=20
training to the employees in the Nuclear Medicine =
Facility; B. Defendant failed to provide =
necessary=20
and proper procedures; C. Defendant failed to provide =
adequate=20
equipment to effect a reasonable and safe transfer of =
patients; D. Defendant failed to hire =
competent=20
employees to provide Plaintiff with a safe environment for her =
medical=20
examination.=20
5. Although the medical excuse filed with =
the motion=20
to continue asked that Devereaux's attorney be excused "on days =
3/15/05 to=20
4/30/05 due to medical reasons," the motion and affidavit on their =
faces=20
apply only to the April 15 hearing.=20