Bush v. Green Oaks Operator Inc., 05-98-00686-CV

• Decision Date: 25 January 2001
• Docket Number: No. 05-98-00686-CV,05-98-00686-CV
• Parties: (Tex.App.-Dallas 2001) RHONDA FAY BUSH, Appellant v. GREEN OAKS OPERATOR, INC., Appellee
• Court: Texas Court of Appeals

Page 669

39 S.W.3d 669 (Tex.App.-Dallas 2001)

RHONDA FAY BUSH, Appellant v. GREEN OAKS OPERATOR, INC., Appellee

No. 05-98-00686-CV

Court of Appeals of Texas, Dallas.

January 25, 2001

On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. 97-01844-I

Before Justices Morris, Richter¹ and Dodson.²

OPINION

Morris, Justice.

The central question in this appeal is whether the Medical Liability and Insurance Improvement Act applies to the lawsuit filed by Rhonda Fay Bush against Green Oaks Operator, Inc. The trial court dismissed Bush's case because she failed to comply with the Act's requirement that she file an expert report within 180 days after filing her suit. Bush appeals the dismissal contending in one of her five points of error that her claims are not governed by the Act. We agree with Bush, concluding she has not pleaded a "health care liability claim" and, therefore, her suit should not have been dismissed for failure to comply with the Act. We reverse the trial court's judgment and remand the cause for further proceedings.

I.

While an inpatient at Green Oaks Hospital in Dallas, Rhonda Fay Bush was allegedly attacked and severely injured by Jeffery Gouge, a fellow patient. Bush filed suit against Green Oaks Operator, Inc. alleging that Green Oaks knew Gouge had a propensity for violent behavior and wrongfully failed to place him in a segregated "acute unit." Bush claimed Green Oaks was negligent either in failing to warn her of the known danger or in failing to maintain the premises in a safe manner or both.³

Approximately seven months after Bush filed her first amended original petition, Green Oaks moved to dismiss her claims under article 4590i, section 13.01(e) of the Medical Liability and Insurance Improvement Act. Green Oaks argued Bush's "health care liability claim" must be dismissed because she failed to file an expert report within 180 days after filing suit as required by section 13.01(d) of the Act. Bush responded to the motion arguing, among other things, that her lawsuit was not based on a health care liability claim, but instead was founded on theories of common law negligence and premises liability. Because she was not asserting a health care liability claim, Bush contended it was not necessary for her to meet the statutory requirements and deadlines set forth in the Act.

The trial court granted Green Oaks's motion and dismissed Bush's claims with prejudice. Bush filed a motion for new trial that was overruled by operation of law. This appeal ensued.

II.

The Medical Liability and Insurance Improvement Act sets strict requirements for bringing health care liability claims against physicians or other health care providers. These requirements are in response to a perceived crisis in the area of medical malpractice insurance. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1.02 (Vernon Supp. 2001). To promote the detection and dismissal of frivolous health care claims early in the litigation process, the Act requires claimants either to file an expert report substantiating their claims within 180 days of filing suit or voluntarily dismiss their action. Id. § 13.01(d). Failure to comply can result in sanctions against the claimant, including involuntary dismissal of the suit and an award of attorney's fees to the defendant. Id. § 13.01(e).

The effectiveness of the Act depends upon its vigilant enforcement. For this reason, Texas courts have repeatedly thwarted plaintiffs' attempts to avoid the Act by recasting their causes of action as something other than health care liability claims. See MacGregor Med. Ass'n v. Campbell, 985 S.W.2d 38, 40 (Tex. 1998). Claimants cannot simply recharacterize a health care claim and thereby avoid the Act's standards and requirements. See Williams v. Walker, 995 S.W.2d 740, 741 (Tex. App.--Eastland 1999, no pet.); Walters ex rel. Walton v. Del-Ky, Inc., 844 S.W.2d 250, 258 (Tex. App.--Dallas 1992, no writ).

In enforcing the Act, however, we must be equally careful not to extend the Act's reach beyond its stated bounds. Clearly, not every action taken by a health care provider or every injury suffered by a patient falls within the ambit of the Act. See Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d 417, 420 (Tex. App.-- Corpus Christi 1999, no pet. h.)(patient's claim that he was injured when nursing service employee negligently allowed a heavy bag to fall on him was not covered by the Act). The Act specifically applies only to "health care liability claims." A health care liability claim is defined 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 which proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract.

Tex. Rev. Civ. Stat. Ann. art. 4590i, §1.03(4). To determine whether a cause of action fits this definition, we look at the underlying nature of the claim. See Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994).

In general, a cause of action will be considered a health care liability claim if it is based on a breach of a standard of care applicable to health care providers. See Campbell, 985 S.W.2d at 41. The act or omission complained of must also be an inseparable part of the rendition of medical services. See Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex. 1995). After examining the allegations stated in her amended petition, we conclude Bush has not alleged a "health care liability claim." Bush was not obligated, therefore, to submit an expert report pursuant to the Act.

Green Oaks argues that Bush's suit is covered by the Act because it is fundamentally a claim for negligent diagnosis and lack of proper treatment with respect to her assailant, Gouge. We cannot draw such a conclusion from Bush's pleading.⁴ Although Green Oaks's alleged failure to provide Bush with a reasonably safe environment may ultimately involve a determination of whether the hospital breached a standard of care with respect to Gouge, Bush's claim, as pleaded, is not for negligence in her medical treatment. Moreover, any duty owed by Green Oaks to diagnose and treat Gouge properly ran to Gouge alone. See Thapar v. Zezulka, 994 S.W.2d 635, 637-38 (Tex. 1999); Van Horn v. Chambers, 970 S.W.2d 542, 545 (Tex. 1998). The duty that Bush alleged Green Oaks owed to her was the duty to provide her with a reasonably safe environment or to warn her of a known danger. This duty is owed by a premises owner to an invitee; it is not a duty owed by a health care provider to a patient. See Charrin v. Methodist Hosp., 432 S.W.2d 572, 574 (Tex. Civ. App.--Houston [1st Dist.] 1968, no writ).

Although Bush's amended petition is not a model of clarity, Green Oaks never filed special exceptions seeking clarification of the claims being made. Green Oaks urges us to read Bush's petition in the light most favorable to it by construing her claims to be within the scope of the Act and subject to dismissal with prejudice. To do so without Bush's petition being tested by special exceptions would be contrary to long-standing precedent that we should view pleadings liberally in favor of the pleader. See Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982).

Under a liberal reading of Bush's amended petition, her status as a patient at Green Oaks is not a controlling factor in her causes of action. Indeed, by her pleadings, Bush's status as a patient is irrelevant, which clearly indicates that Bush's suit is not based on a health care liability claim. None of the wrongful actions alleged by Bush involve the medical treatment she received. A health care liability claim must not only be based on the rendition of medical services, it must be based on the rendition of medical services to the injured party. In this case, Bush is not contending Green Oaks breached a standard of care owed to her as a patient. Rather, she is claiming she was harmed by an unsafe condition created by Green Oaks at the hospital.

Green Oaks also attempts to bring Bush's claim within the reach of the Act by arguing her suit alleges a breach of an "accepted standard of . . . safety." Although the Act includes breaches of accepted standards of safety within the definition of a health care liability claim, the term "safety" cannot be read in isolation. Rogers, 13 S.W.3d at 418-19. The breach must be of an accepted standard of safety within the health care industry. Id. Furthermore, the breach must occur as part of the rendition of medical services to the injured party. The breach alleged by Bush did not occur as part of the medical services rendered to her. And the standard of safety to be applied to her claims as presently pleaded is the one governing claims for premises liability and common law negligence.

Based on the foregoing, we conclude Bush's amended petition does not state a health care liability claim subject to the Act. Accordingly, Bush's suit should not have been dismissed for failure to comply with the Act's requirement to submit an expert report. Because we have concluded Bush's suit was improperly dismissed, it is unnecessary for us to address her remaining points of error.

We reverse the trial court's judgment and remand the cause for further proceedings.

Dodson, J.(Retired) dissenting.

1. Justice John Ovard participated in the...