Ponce v. El Paso Healthcare Systems, CENTER-EAS

• Decision Date: 07 June 2001
• Docket Number: CENTER-EAS,A,No. 08-00-00227-CV,08-00-00227-CV
• Citation: 55 S.W.3d 34
• Parties: (Tex.App.-El Paso 2001) MARIA ELENA PONCE, Appellant, v. EL PASO HEALTHCARE SYSTEM, LTD. d/b/a COLUMBIA MEDICALppellee
• Court: Texas Court of Appeals

Page 34

55 S.W.3d 34 (Tex.App.-El Paso 2001)

MARIA ELENA PONCE, Appellant, v. EL PASO HEALTHCARE SYSTEM, LTD. d/b/a COLUMBIA MEDICAL CENTER-EAST, Appellee.

No. 08-00-00227-CV

Court of Appeals of Texas, El Paso

June 7, 2001

Appeal from 327th District Court of El Paso County, Texas (TC# 99-2806) Before Panel No. 1 Larsen, McClure, and Chew, JJ.

O P I N I O N

McCLURE, Justice

Maria Elena Ponce ("Ponce") appeals from an order dismissing her suit against El Paso Healthcare System, Ltd. d/b/a Columbia Medical Center-East ("Columbia"). We affirm.

FACTUAL SUMMARY

Following surgery to repair a left rotator cuff injury in late 1997, Ponce began physical therapy at Columbia. According to her pleadings, she suffered a re-injury of the rotator cuff during her first physical therapy session and subsequently had to undergo surgery to repair it. On August 18, 1999, Ponce filed suit against Columbia, alleging negligence on the part of the treating occupational therapist, a Columbia employee. She further alleged that Columbia was negligent in failing to properly supervise and train its employee in the proper treatment of patients with rotator cuff injuries.

On February 15, 2000, Columbia filed a motion to dismiss Ponce's suit because she had failed to file either a cost bond or expert report as required by Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(a) and (d)(Vernon Supp. 2001). At the conclusion of the hearing on the motion, the trial court granted Ponce a thirty-day extension of time in which to file the expert report while the trial court considered whether or not Article 4590i applied to the case. See Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(f)(authorizing trial court to extend time periods specified in Subsection (d) for an additional thirty days). A few days after the hearing, the trial judge notified the parties by letter that he had determined Article 4590i applied and Ponce would be required to meet its requirements. Despite the extension of time granted, Ponce did not file an expert report nor did she file a cost bond. Consequently, Columbia filed a second motion to dismiss with prejudice which the trial court granted by written order.

APPLICATION OF MEDICAL LIABILITY AND INSURANCE IMPROVEMENT ACT

In her sole issue presented for review, Ponce contends that the trial court erred in dismissing her suit because Article 4590i does not apply to her action against Columbia. She argues that an occupational therapist is not a "health care provider" within the meaning of the Medical Liability and Insurance Improvement Act (the MLIIA or the Act),¹ her suit is not a "health care liability claim," and further, the occupational therapist did not engage in "health care" as defined by the MLIIA.

Relevant Statutes

Columbia obtained dismissal of the suit based upon Ponce's failure to comply with the requirements of Article 4590i, section 13.01(d), which states:

Not later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period established under Subsection (f) or (h) of this section, the claimant shall, for each physician or health care provider against whom a claim is asserted:

(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or

(2) voluntarily nonsuit the action against the physician or health care provider.

Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(d).

Subsection 13.01(e) provides that if a claimant fails to comply with Subsection 13.01(d), upon motion of the "affected physician or health care provider," the court shall enter the following sanctions against the claimant:

(1) the reasonable attorney's fees and costs of court incurred by that defendant;

(2) the forfeiture of any cost bond respecting the claimant's claim against that defendant to the extent necessary to pay the award; and

(3) the dismissal of the action of the claimant against that defendant with prejudice to the claim's refiling.

Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(e).

Standard of Review

Ordinarily, we apply an abuse of discretion standard when reviewing a dismissal under Section 13.01. Tibbetts v. Gagliardi, 2 S.W.3d 659, 663 (Tex.App.--Houston [14th Dist.] 1999, writ denied). In this case, however, the issues involve statutory construction and the applicability of Article 4590i to Ponce's claim, which we review de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989)(holding statutory construction is question of law); Neasbitt v. Warren, 22 S.W.3d 107, 109 (Tex.App.--Fort Worth 2000, no pet.)(holding applicability of Article 4590i to veterinarian is pure question of law).

Health Care Provider

We will first address Ponce's contention that the MLIIA is inapplicable because the occupational therapist who caused her injury is not a "health care provider" as defined by Section 1.03(a)(3). According to Ponce, the MLIIA does not govern those claims based upon the conduct of an employee who is not a health care provider. In other words, Section 1.03(a)(3) requires that both the employer and employee be a health care provider in order for the Act to apply to a suit. We disagree.

The Act provides the following definition of "health care provider":

'Health care provider' means any person, partnership, professional association, corporation, facility, or institution duly licensed or chartered by the State of Texas to provide health care as a registered nurse, hospital, dentist, podiatrist, pharmacist, or nursing home, or an officer, employee, or agent thereof acting in the course and scope of his employment.

Tex.Rev.Civ.Stat.Ann. art. 4590i, § 1.03(a)(3).

Ponce is correct that Section 1.03(a)(3)'s definition does not include physical therapists or occupational therapists, and therefore, they are not health care providers under the MLIIA. See Henry v. Premier Healthstaff, 22 S.W.3d 124, 127 (Tex.App.--Fort Worth 2000, no pet.)(holding that physical therapists are not included in the specific itemized definition of "health care provider" under the MLIIA); Terry v. Barrinuevo, 961 S.W.2d 528, 530 (Tex.App.--Houston [1st Dist.] 1997, no pet.)(holding that physical therapists are not health care providers, and therefore, plaintiff's notice of claim letter sent to physical therapist did not toll statute of limitations).² Unlike the factual situation in Terry, however, Ponce has not sued an individual occupational therapist; rather, she has asserted a health care liability claim against an employee of a health care provider. Contrary to Ponce's reading of Section 1.03(a)(3), nothing in the plain language of this definition suggests that the officer, employee, or agent must also be a health care provider.

Our holding in this regard is supported by the Second Court of Appeals' decision in Henry v. Premier Healthstaff. Henry was admitted to Fort Worth Osteopathic Hospital and underwent physical therapy administered by employees of Premier. Henry sent notice to Premier, alleging that physical therapy was improperly administered, causing her condition to worsen and ultimately resulted in permanent disability. She filed suit more than two years after the claimed injury. Like the instant case, Henry asserted not only that Premier was vicariously liable for the physical therapist's negligent acts, but also that Premier was directly liable for its own negligence in failing to properly train, instruct, and supervise its physical therapists. Henry, 22 S.W.3d at 128. Premier subsequently filed a motion for summary judgment on limitations grounds. The trial court granted summary judgment and Henry appealed. The Court of Appeals agreed that physical therapists are not included in the definition of health care providers, but found that summary judgment was improperly granted because Premier had failed to conclusively negate Henry's allegation that Premier was an agent of the hospital. Id. at 127-28. Because Premier failed to show that it was not an agent of a health care provider, it failed to negate the application of the MLIIA's tolling provision. Id. at 128. Thus, the Henry case demonstrates that the provisions of the MLIIA apply to an agent of a health care provider regardless of whether the agent independently meets Section 1.03(a)(3)'s definition of health care provider.

Health Care Liability Claim

Ponce next argues that her claim is not a "health care liability claim" within the meaning of the Act because she has alleged a common law negligence claim against Columbia's employee rather than a medical malpractice claim. She further contends that her claim does not involve breach of an accepted standard of medical care, and consequently, expert testimony is not required to prove the standard of care to be used by an occupational therapist.

The Act defines a "health care liability claim" to mean:

[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(a)(4).

Rather than being bound by a party's characterization of her cause of action, we examine the underlying nature of the claim to determine...