Opinion issued May 3,=20 2007
For=20
The
Appellant,=20
Irving W. Marks, appeals from a final order dismissing his claims =
against=20
appellee, St. Luke's Episcopal Hospital ("St. Luke's"), for =
failure to=20
file expert reports as required by statute for health care =
liability=20
claims. In our original opinion, we held that appellant's =
underlying=20
complaint in his original petition related to premises liability, =
not=20
medical liability, and that appellant's complaint was governed by =
an=20
ordinary standard of care. We reversed the trial court's order =
dismissing=20
appellant's claims and remanded the case to the trial court for =
further=20
proceedings. Subsequent to our =
opinion,=20
the Texas Supreme Court concluded that a patient's claims that a =
nursing=20
home's negligence in failing to provide adequate supervision and =
nursing=20
services proximately caused her injuries from a sexual assault by =
another=20
patient could be characterized as a departure from accepted =
standards of=20
safety and were therefore governed by the Medical Liability =
Insurance=20
Improvement Act (the MLIIA). On remand, we must =
first=20
consider whether, in light of Diversicare, appellant's =
complaint=20
is governed by the MLIIA. Because we conclude that appellant's =
original=20
petition asserted a departure from accepted safety standards and =
is=20
therefore a health care liability claim, we must also consider =
whether the=20
trial court abused its discretion in denying appellant's motion =
for a=20
grace period in which to file his experts' reports to support his =
claim.=20
We hold that the trial court did not abuse its discretion and =
affirm the=20
trial court's judgment. In his original =
petition,=20
appellant alleged the following facts: 5. On or about =
March 24,=20
2000, Irving Marks, a 66-year old man, suffered severe injuries =
after a=20
fall from his hospital bed at St. Luke's. 6. Mr. Marks was =
admitted to=20
St. Luke's on March 17, 2000, to undergo treatment for chronic =
intractable=20
failed back symptomatology and intractable radiculopathy after =
five lumbar=20
operations failed to cure Mr. Marks' severe back problems. =
7. On March 17, =
2000, Mr.=20
Marks underwent surgery to implant an intrathecal morphine pump =
catheter.=20
Immediately following his surgery, Mr. Marks began his morphine =
treatment=20
with an initial dose of .25 milligrams, and Mr. Marks' morphine =
doses were=20
raised incrementally up to four milligrams on the ninth =
day. 8. After his =
surgery and his=20
morphine treatment, Mr. Marks' condition improved drastically =
until Mr.=20
Marks fell the night of March 24, 2000. 9. At the time of =
his fall,=20
Mr. Marks was getting up from his hospital bed in the middle of =
the night,=20
and Mr. Marks was in an upright position sitting at or near the =
foot of=20
his hospital bed. Mr. Marks placed his hand on the hospital bed's=20
footboard to push himself up to a standing position. As he was =
pushing=20
himself up, the hospital bed's footboard fell off causing Mr. =
Marks to=20
fall to the floor. 10. Mr. Marks =
suffered=20
severe personal injuries as a result of the fall. Appellant asserted =
that St.=20
Luke's "breached the duty of ordinary care owed to Mr. Marks" in =
the=20
following ways: a. By failing to =
properly=20
train and supervise any and all agents, employees, servants, and =
nursing=20
staff when caring for Mr. Marks to prevent and protect him from =
falls and=20
injuries; b. By failing to =
provide Mr.=20
Marks with the assistance he required for daily living=20
activities; c. By failing to =
provide Mr.=20
Marks with a safe environment in which to receive treatment and =
recover;=20
and d. By providing =
Mr. Marks=20
with a hospital bed that had been negligently attached and =
assembled by=20
[St. Luke's] employees, agents, servants or nursing =
staff. Appellant did not =
file any=20
expert's report within 180 days of filing his original petition.=20
Appellant's second amended petition alleged additional acts of =
negligence,=20
including the following: d. Failing to =
properly=20
monitor Mr. Marks; . . . . =
h. Failing to =
ensure that=20
adequate policies and procedures were in place for the hiring, =
training=20
and supervision of the nursing staff at the hospital; and =
i. Failing to =
ensure that=20
the person(s) hired to work at the hospital had a sufficient =
understanding=20
of safety concerns for the patients and was competent to formulate =
policies and procedures for patient safety and quality=20
assurance. Believing that =
these=20
additional claims might have asserted health care liability claims =
under=20
Texas law, appellant filed two experts' reports within 180 days of =
filing=20
his second amended petition. St. Luke's filed a motion to dismiss, =
arguing=20
that the claims asserted by appellant in his original petition =
also=20
constituted health care liability claims as defined in the MLIIA, =
and that=20
appellant had failed to provide expert reports within 180 days of =
the=20
original filing, as required by that statute. After the hearing on =
St.=20
Luke's motion, appellant filed a motion to extend the time for =
filing the=20
reports, arguing that he did not intend the original petition to =
assert a=20
heath care liability claim and therefore believed that expert =
reports were=20
not required. The trial court found that the original petition did =
assert=20
health care liability claims, denied appellant's motion to extend =
the time=20
to file expert reports, and granted St. Luke's motion to=20
dismiss. A dismissal under =
the MLIIA=20
is generally reviewed under an abuse of discretion standard. =
Jackson=20
v. Reardon, 14 S.W.3d 816, 818 (Tex. App.--Houston [1st =
Dist.] 2000,=20
no pet.). However, to the extent resolution of this issue requires =
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)). The MLIIA provides =
the=20
following definitions pertinent to our case: "Health care" =
means any act=20
or treatment performed or furnished, or which should have been =
performed=20
or furnished, by any health care provider for, to, or on behalf of =
a=20
patient during the patient's medical care, treatment, or =
confinement.=20
"Health care =
provider" means=20
any person, partnership, professional association, corporation, =
facility,=20
or institution duly licensed or chartered by the State of Texas to =
provide=20
health care as a registered nurse, hospital, dentist, podiatrist,=20
pharmacist, or nursing home, or an officer, employee, or agent =
thereof=20
acting in the course and scope of his employment. "Health care =
liability=20
claim" means a cause of action against a health care provider or =
physician=20
for treatment, lack of treatment, or other claimed departure from =
accepted=20
standards of medical care or health care or safety which =
proximately=20
results in injury to or death of the patient, whether the =
patient's claim=20
or cause of action sounds in tort or contract. Medical Liability =
and=20
Insurance Improvement Act of Texas, 65th Leg., R.S., ch. 817, =A7=20
1.03(a)(2), (3), (4), 1977 Tex. Gen. Laws 2039, 2041, repealed =
by=20
Act of June 2, 2003, 78th Leg., R.S., ch. 204, =A7 10.09, =
2003 Tex.=20
Gen. Laws 847, 884 (current version at Tex. Civ. Prac. & Rem. =
Code=20
Ann. =A7=A7 74.001-.507 (Vernon Supp. 2006)) (the Act referenced =
hereinafter=20
as the MLIIA or former article 4590i). Thus, a health care =
liability claim=20
is based on a breach of a standard of care applicable to health =
care=20
providers. Bush v. Green Oaks Operator, Inc., 39 S.W.3d =
669, 672=20
(Tex. App.--Dallas 2001, no pet.). The MLIIA requires that a =
qualified=20
physician or health care expert make a written report, to be filed =
by the=20
plaintiff, regarding the applicable standard of care, the breach =
of that=20
standard, and causation of the plaintiff's damages. Former art. =
4590i,=20
=A7=A7 13.01, 14.01; Rogers v. Crossroads Nursing Serv., =
Inc.,=20
13 S.W.3d 417, 419 (Tex. App.--Corpus Christi 1999, no pet.). To =
state a=20
health care liability cause of action, the act or omission =
complained of=20
must be an inseparable part of the rendition of medical services.=20
Diversicare, 185 S.W.3d at 848. In determining whether a=20
particular case presents a health care liability claim, we must =
examine=20
the underlying nature of the claim and are not bound by the form =
of the=20
plaintiff's pleading. Id. at 847 (citing Sorokolit v. =
Rhodes, 889 S.W.2d 239, 242 (Tex. 1994).
1. Health =
Care=20
Liability Claim In his first =
issue,=20
appellant contends that the trial court erred in finding that his =
original=20
petition stated a health care liability claim under the meaning of =
the=20
MLIIA. Appellant argues that his original petition asserted claims =
based=20
on St. Luke's breach of an ordinary standard of care, not a =
medical=20
standard of care. On remand, appellant contends that =
Diversicare=20
confirms this Court's original opinion by clarifying the =
distinction=20
between health care liability claims and ordinary negligence =
claims.=20
Appellant cites Cobb v. Dallas Fort Worth Medical =
Center--Grand=20
Prairie, 48 S.W.3d 820 (Tex. App.--Waco 2001, no pet.), to =
support=20
his argument that the standard of care relating to the assembly =
and=20
maintenance of a bed in a hospital is no different from that in a =
hotel,=20
department store, or private home. Appellant's =
reliance on=20
Cobb is misplaced. In Cobb, the hospital's =
central=20
supply delivered an incomplete set of screws to be used in surgery =
to=20
correct Cobb's damaged disc. Id. at 823. The surgeon =
performed=20
the operation, using the screws that were provided. Id. =
The=20
surgeon later discovered that the screws were too small, and =
further=20
surgery was required. Id. The majority opinion analyzed =
the=20
negligence issue in terms of a standard of care for "non-medical,=20
administrative, ministerial, or routine care at a hospital" and =
concluded=20
that the plaintiff made a prima facie case for recovery for =
negligence=20
against the hospital. Id. at 825-26. The opinion does not =
mention=20
the MLIIA. The concurring justice addressed the claim in light of =
the=20
MLIIA, but concluded that the legislature did not intend the MLIIA =
to=20
cover such a claim. Id. at 828-29. The dissenting justice =
would=20
have held that the plaintiff's claim was for "medical care," that =
only a=20
person can practice medicine, and therefore the claim should have =
been=20
against the physician, not the hospital. Id. at 831. =
Because=20
Cobb was decided before Diversicare, =
Cobb is=20
not helpful in applying Diversicare to the facts of the =
present=20
case. In =
Diversicare, the=20
Court broadly interpreted the statutory definition of "health care =
liability claim" and concluded that Rubio's claims were causes of =
action=20
for departures from accepted standards of professional health care =
and=20
safety and were therefore claims under the MLIIA. =
Diversicare,=20
185 S.W.3d at 845. Those claims included failing to provide =
adequate=20
supervision and nursing services to meet her fundamental needs; =
failing to=20
budget for, hire, and train sufficient qualified health care =
staff;=20
failing to develop and implement policies and procedures for =
safety,=20
training, and staffing; and failing to supervise and monitor Rubio =
to=20
protect her from sexual abuse and assault. Id. The Court =
noted=20
"that judgments concerning health and medical care, including =
protection=20
of patients, are made by health care professionals as part of the =
care and=20
treatment of the patients admitted to their facilities." =
Id. at=20
853. In discussing departures from accepted standards of safety, =
the Court=20
stated, [T]he =
Legislature's=20
inclusion within the scope of the MLIIA of claims based on =
breaches of=20
accepted standards of 'safety' expands the scope of the statute =
beyond=20
what it would be if it only covered medical and health care. =
Professional=20
supervision, monitoring, and protection of the patient population=20
necessarily implicate the accepted standards of safety under the =
MLIIA,=20
just as those duties in this case are included in the term of =
health=20
care." Id. at =
855.=20
Appellant argues =
that his=20
complaint concerns the assembly and maintenance of the bed, and =
that those=20
responsible for such assembly and maintenance are not exercising=20
professional medical judgment and do not provide health care and =
that a=20
hospital bed is not an integral part of the treatment provided by =
the=20
health care provider. We reject these arguments. A hospital bed is =
not an=20
ordinary bed. It is specially constructed to enable health care =
personnel=20
to tend to the needs of patients. Use of the bed was an =
inseparable part=20
of the services rendered to appellant during his recovery from =
back=20
surgery. In this case, =
appellant's=20
claims in his original petition are similar to Rubio's. Appellant =
alleged=20
that St. Luke's breached the duty of ordinary care by failing to =
train and=20
supervise staff properly, failing to provide required assistance =
for daily=20
living activities, failing to provide a safe environment in which=20
appellant could receive treatment and recover, and providing a =
hospital=20
bed that had been negligently attached and assembled. These =
claims, like=20
Rubio's, state causes of action for departures from accepted =
standards of=20
medical care, health care, and safety. Specifically, the =
underlying nature=20
of the complaints regarding the failure to provide a safe =
environment and=20
the negligent assembly of the bed are complaints of a breach of =
the=20
accepted standards of safety. Artful pleading to divide a health =
care=20
claim into multiple causes of action is not permitted. =
Id. at=20
854. Because we =
conclude that all=20
the complaints in appellant's original petition relate to =
departures from=20
accepted standards of medical care, health care, or safety, we =
further=20
conclude that these claims are governed by the MLIIA. We overrule =
appellant's=20
first issue. 2. Grace =
Period to=20
File Experts' Reports In his second =
issue,=20
appellant contends that he was entitled to a grace period in which =
to file=20
his experts' reports. Appellant argues that his motion for a grace =
period=20
was timely filed because it was filed before the trial court ruled =
on St.=20
Luke's motion to dismiss. To support this argument, appellant =
cites cases=20
in which the motion for a grace period was filed after the trial =
court=20
ruled on the motion to dismiss. He interprets the statutory =
language that=20
a motion "shall be considered timely if it is filed before any =
hearing on=20
a motion [to dismiss] by a defendant" not to "require that the =
motion be=20
filed before the hearing is begun." Section 13.01(g) =
of former=20
article 4590i provides for a 30-day grace period for filing the =
required=20
expert report if the court finds that the failure to timely file =
the=20
report is the result of an accident or mistake. The statute then =
states,=20
"A motion by a claimant for relief under this subsection shall be=20
considered timely if it is filed before any hearing on a =
motion=20
by a defendant under Subsection (e) of this section." (Emphasis =
added.)=20
The only possible interpretation of "before any hearing" is =
"before any=20
hearing is begun." If the motion is filed after the hearing is =
begun, it=20
is filed during the hearing, and if it is filed after the =
hearing=20
is completed, it is filed after the hearing. The fact =
that some=20
plaintiffs waited until after the court signed an order dismissing =
their=20
claims does not alter the meaning of the statute. In this case, St. =
Luke's=20
filed its motion to dismiss on January 23, 2004. The trial court =
conducted=20
a hearing on that motion on February 3, 2004 and conducted an =
additional=20
hearing on February 6 at appellant's request. Appellant filed his =
motion=20
for a grace period on February 5 and presented it to the trial =
court on=20
February 6. Appellant's motion was untimely because it was not =
filed=20
before any hearing on St. Luke's motion, and the trial =
court was=20
not required to grant appellant a 30-day extension to file his =
experts'=20
reports. Therefore, the trial court did not abuse its discretion =
in=20
denying appellant's motion. See Strom v. Mem'l Hermann Hosp.=20
Sys., 110 S.W.3d 216, 226 (Tex. App.--Houston [1st Dist.] =
2003, pet.=20
denied) (holding that denial of untimely request was not abuse of=20
discretion); Jackson v. Reardon, 14 S.W.3d 816, 819 (Tex. =
App.--Houston [1st Dist.] 2000, no pet.) (same). We overrule =
appellant's=20
second issue.
We affirm the =
trial court's=20
order. Sam =
Nuchia Justice Panel consists of =
Justices=20
Nuchia, Jennings, and Alcala. Justice Jennings, =
concurring=20
in part and dissenting in part.=20
2. 3. St. Luke's Episcopal Hosp. v. =
Marks, 193=20
S.W.3d 575 (Tex. 2006).