Nolden v. Crescent Health & Rehab. Ctr.
| Decision Date | 01 September 2022 |
| Docket Number | 01-21-00132-CV |
| Parties | SHERION NOLDEN, Appellant v. CRESCENT HEALTH AND REHABILITATION CENTER, Appellee |
| Court | Texas Court of Appeals |
SHERION NOLDEN, Appellant
v.
CRESCENT HEALTH AND REHABILITATION CENTER, Appellee
No. 01-21-00132-CV
Court of Appeals of Texas, First District
September 1, 2022
On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 20-DCV-276315
Panel consists of Justices Hightower, Countiss, and Guerra.
MEMORANDUM OPINION
JULIE COUNTISS, JUSTICE
Appellant, Sherion Nolden, challenges the trial court's order granting the motion to dismiss the health care liability claims[1] against appellee, Crescent Health
and Rehabilitation Center ("Crescent"), in Nolden's suit against Crescent for "[m]edical [n]egligence," "[m]edical [b]attery," and "[b]reach of [c]ontract to [c]ure." In three issues, Nolden contends that the trial court erred in granting Crescent's motion to dismiss.
We modify the trial court's order and affirm as modified.
Background
In her original petition, filed on September 1, 2020, Nolden alleged that she "was admitted to [Crescent] for continued wound care and treatment after suffering a poisonous spider bite." While at Crescent, she was completely dependent "on the [Crescent] staff . . . for all required medical treatments" as well as "her basic needs." But Crescent did not follow her "treatment plan," and she was discharged from Crescent "without her consent" and "in violation of the Federal Patient Bill of Rights." Shortly before her discharge, "a [m]ale resident at [Crescent]" attacked Nolden with a knife. Crescent staff "had notice of" and witnessed the attack. But Crescent "failed to . . . provide adequate protection" for Nolden. And, according to Nolden, Crescent "expose[d] her to another incident of assault and battery" by the same "[m]ale resident" in "the [p]hysical [t]herapy room while she was taking treatment." After that second incident, Crescent, "protecting the male [resident] attacker," "immediately discharge[d] [Nolden] without her consent" and "withh[eld]
treatment of [Nolden's spider-bite] wounds," [p]hysical [t]herapy," and "other medical rehabilitation services."
Nolden further alleged that her condition deteriorated after Crescent discharged her. Her "spider bite wounds" became infected. Nolden was "forced to endure excruciating pain and needless suffering with no medical treat[ment]" until she was able to obtain at-home physical therapy, wound care and psychiatric treatment. By that time, her infected spider-bite wounds "required, among other things, several extensive and painful debridement[s]."
Nolden brought claims against Crescent for "[m]edical [n]egligence," "[m]edical [b]attery," and "[b]reach of [c]ontract to [c]ure." She asserted that Crescent was negligent in: (1) "failing to institute the appropriate interventions to prevent" her spider-bite wounds from becoming worse; (2) "failing to appropriately treat [her spider-bite] wounds according to the [p]hysician [t]reatment [p]lan"; and (3) "failing to provide a sufficiently trained and supervised staff" and to "have policies" in place to protect her from the male resident's attacks. Further, Nolden asserted that Crescent was liable, based on a theory of respondeat superior, for the actions of "the nurses and other healthcare providers at [Crescent]."
In her original petition, Nolden stated that she had provided Crescent with "written notice of [her] claims as required by Texas Civil Practice [and] Remedies
Code [section] []74.051."[2] Nolden sought damages for mental anguish, physical pain and suffering, physical impairment, emotional distress, and "reasonable and necessary medical, hospital, and nursing expenses." Nolden also, alleging that Crescent's conduct "constitute[d] malice and gross [n]egligence," sought exemplary damages.
In response to Nolden's original petition, Crescent filed a combined answer, special exceptions, and motion to dismiss. Crescent generally denied the allegations in Nolden's petition and asserted certain affirmative defenses, including that Nolden's claims were barred by the applicable statute of limitations.[3] And Crescent specially excepted to, among other things, Nolden's failure to attach or incorporate into her original petition a showing that she satisfied the "condition precedent" of providing to Crescent a "statutorily mandated notice of claim."[4]
In its motion to dismiss, Crescent argued that Nolden's claims against it had no basis in law or fact because they were barred by the applicable statute of limitations.[5] According to Crescent, Nolden, in her original petition, alleged that she had sustained injuries during her stay as a patient at Crescent from February 6, 2018 through March 2, 2018. Yet Nolden did not file suit against Crescent until September 1, 2020. Texas Civil Practice and Remedies Code section 74.251(a) requires that a health care liability claim be brought "within two years from the occurrence of the breach or tort or from the date of the medical or health care treatment that is the subject of the claim." (Internal quotations omitted.) A health care liability claim is any cause of action against a health care provider "for treatment, lack of treatment, or other claimed departure from accepted standard of medical care, or healthcare, or safety or professional or administrative services directly related to healthcare, which proximately results in injury or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract."[6](Internal quotations omitted.) Because Nolden's claims constituted health care liability claims, they were subject to the two-year statute of limitations found in Texas Civil Practice and Remedies Code section 74.251(a).
Crescent further argued that because the "last possible day [Crescent] could have treated [Nolden]" was March 2, 2018-the date of Nolden's discharge from Crescent-the "last date" that Nolden could have timely filed her health care liability claims against Crescent was on March 2, 2020, six months before Nolden filed suit in this case. Thus, Nolden's claims against Crescent were barred by the statute of limitations. Anticipating that Nolden would "rely upon the exception to the two[-]year statute of limitations" contained in Texas Civil Practice & Remedies Code section 74.051(c) "to allege that the statute of limitations should have been tolled by [seventy-five] days," Crescent also asserted that Nolden had "failed to provide" the proper "notice of [her] claim[s] or [medical] authorization" and thus "was not entitled to the tolling exception" provided by section 74.051(c).[7]
Crescent attached to its combined answer, special exception, and motion to dismiss a "[f]ace [s]heet," which was a business record generated by Crescent. The "[f]ace [s]heet" showed that Nolden was admitted to Crescent on February 6, 2018 and discharged on March 2, 2018. The "[f]ace [s]heet" also contained general
information about Nolden's health and medical history. It identified her primary care physician, her health insurance coverage, and her medical diagnosis at the time she was a patient at Crescent.
Nolden did not file a written response to Crescent's motion to dismiss.[8]Instead, the day before the hearing on the motion to dismiss, Nolden filed an amended petition.[9] In her amended petition, Nolden stated that "[p]ursuant to Tex[as] Civ[il] Prac[tice] [and] Rem[edies] Code [s]ection 74.051 and 74.052, [Nolden had] served pre-suit notice before the filing of th[e] petition," which tolled the statute of limitations "for a period of seventy-five . . . days following the service of the described pre-suit notice." And, in addition to a medical negligence claim, Nolden brought claims against Crescent for negligent hiring and retention, premises liability, breach of contract, conspiracy to commit assault, and fraudulent misrepresentation. As evidence of notice, Nolden attached to her amended petition certain letters from her attorney, dated September 25, 2019, which were purportedly sent to Crescent's address.
At the hearing on its motion to dismiss, Crescent argued that the trial court should grant its motion to dismiss because the statute of limitations barred Nolden's
claims against Crescent. Crescent asserted that the limitations period had run on Nolden's health care liability claims on March 2, 2020, two years from the date that she was discharged from Crescent, but Nolden did not file her original petition until September 1, 2020. Crescent also objected to the untimely filing of Nolden's amended petition.
Crescent asserted that all the claims alleged by Nolden, whether in her original petition or in her amended petition, constituted health care liability claims. Crescent observed that Nolden had "attached" to the amended petition "what appear[ed] to be notices" to certain agents of Crescent dated September 25, 2019. But Crescent denied having received those notices and argued that even if the notices had been received, they were defective and did not toll the statute of limitations because "they [did] not include the required medical authorization."[10] And Crescent maintained that "[e]ven with the [seventy-five]-day tolling period, [Nolden] still filed [her original petition] four months" too late, so "there [was] no argument . . . that [her suit] was filed timely."
Nolden responded that the seventy-five-day tolling provision provided by Texas Civil Practice and Remedies Code section 74.051(c) applied to her claims, and the Texas Supreme Court's Emergency Orders Regarding the COVID-19 State of Disaster, the first of which was issued on March 13, 2020, further extended the limitations period applicable to her claims, making her suit timely.[11]
Following the parties' arguments, the trial court asked Nolden's trial counsel if she agreed that the required medical authorization "was not submitted" with the notices sent to Crescent. Nolden's trial counsel responded, "Your Honor, it does appear that the...
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