Rogers v. Bagley

• Citation: 581 S.W.3d 362
• Decision Date: 13 June 2019
• Docket Number: NUMBER 13-18-00092-CV
• Parties: Ramona ROGERS, M.D., Modesto Zambrano, Stephanie Cumpian, Rolando Flores, Hector Ontiveros, Priscilla Nieto, Sonia Hernandez-Keeble, Blas Ortiz Jr., David Moron, M.D., Jaime Flores and Rio Grande State Center, Appellants, v. David Saxon BAGLEY, Individually and as Representative of the Estate of Jeremiah Ray Bagley, Appellee.
• Court: Court of Appeals of Texas

581 S.W.3d 362

Ramona ROGERS, M.D., Modesto Zambrano, Stephanie Cumpian, Rolando Flores, Hector Ontiveros, Priscilla Nieto, Sonia Hernandez-Keeble, Blas Ortiz Jr., David Moron, M.D., Jaime Flores and Rio Grande State Center, Appellants,

v.David Saxon BAGLEY, Individually and as Representative of the Estate of Jeremiah Ray Bagley, Appellee.

NUMBER 13-18-00092-CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed June 13, 2019

Chelsea Fullwood, Office of the Attorney General, Tort, Litigation Division, 300 W. 15th Street, Austin, TX 78701, Warren Kenneth Paxton, Jr., Texas Attorney General of Texas, Law Enforcement Defense Division, Jeffrey C. Mateer, Texas Attorney General's Office, P.O. Box 12548, Austin, TX 78711-2548, for Appellants.

Katie P. Klein, William D. Mount, Jr., Dale & Klein, L.L.P., 1100 E. Jasmine Ave., Suite 202, McAllen, TX 78501, Julian C. Gomez, The Gomez Law Firm, PLLC, 7824 N. 5^th Court, McAllen, TX 78504, for Appellee.

Before Chief Justice Contreras and Justices Rodriguez and Benavides¹

Opinion by Justice Benavides

The question before us is whether a civil rights claim brought under 42 U.S.C. § 1983 that alleges excessive force against health care providers and a state hospital is subject to the expert report requirement of § 74.351 of the civil practice and remedies code See 42 U.S.C. § 1983 ; TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. Appellee David Saxon Bagley, individually and as representative of the estate of Joshua Ray Bagley, sued the Rio Grande State Center (RGSC) and a number of its employees for the death of his son Joshua who died after he was physically restrained at RGSC by RGSC staff.

Appellants, Ramona Rogers, M.D., Modesto Zambrano, Stephanie Cumpian, Rolando Flores, Hector Ontiveros, Priscilla Nieto, Sonia Hernandez-Keeble, Blas Ortiz Jr., David Moron, M.D., Jaime Flores, and RGSC, argue that Bagley's claims are healthcare liability claims (HCLCs) that must be dismissed for Bagley's failure to file an expert report pursuant to § 74.351(b). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. By two issues, appellants appeal the trial court's denial of their motions to dismiss Bagley's claims Id. We affirm.

I. BACKGROUND

Joshua was a 37-year-old man with mental health issues who was involuntarily committed to RGSC for several months before he died. On February 7, 2015, Joshua allegedly struck a staff member who was assigned to monitor him. Immediately after, five other staff members forcibly restrained Joshua. In doing so, they tackled him and pinned him to the floor for approximately ten minutes. While he was restrained, a staff member forcibly administered an injection to calm Joshua. After Joshua was released from restraint, he returned to his room but was disoriented and unsteady. Joshua went into cardiac arrest

shortly thereafter. RGSC staff performed CPR and called EMS. Joshua was pronounced dead at the hospital shortly thereafter.

Joshua's autopsy reflected numerous injuries. He was bruised; his thoracic spinous processes at T-2 through T-7 were fractured; aspects of his right ribs 4 through 9 were fractured and displaced; aspects of his left ribs 8 through 10 were fractured and displaced, resulting in laceration of the parietal pleura; both lungs were lacerated

; his spleen was lacerated ; and he had blood in his pleural and peritoneal cavities. The medical examiner reported Joshua's cause of death to be "excited delirium due to psychosis with restraint-associated blunt force trauma."

Bagley's original petition asserted negligence under the Texas Tort Claims Act (TTCA), and civil rights claims pursuant to §§ 1983 and 1988. See 42 U.S.C. §§ 1983, 1988 ; TEX. CIV. PRAC. & REM. CODE ANN. ch. 101. Bagley filed a first amended petition before any of the defendants filed answers and again asserted negligence claims under the TTCA and civil rights claims. See 42 U.S.C. §§ 1983, 1988 ; TEX. CIV. PRAC. & REM. CODE ANN. ch. 101.

Appellants responded to the suit with general denials, asserted application of Texas civil practice and remedies code chapters 74 and 108, official immunity, and sought dismissal pursuant to § 101.106(e) of the civil practice and remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. chs. 74, 108, § 101.106(e).

Appellants also filed a motion to dismiss for Bagley's failure to serve expert reports in August 2017. See id. § 74.351(b). Appellants argued that Bagley's claims constituted HCLCs. Bagley responded that § 74.351 did not apply because he sought relief under the civil rights statute § 1983 for excessive force. In response, Bagley attached the autopsy report, Joshua's death certificate, and the report of the Office of Inspector General from the Texas Health and Human Services which concluded that RGSC employees used improper restraint techniques.

The trial court held a non-evidentiary hearing during which Bagley orally nonsuited RGSC. On January 30, 2018, Bagley filed his fourth amended petition that nonsuited RGSC and all non-constitutional claims from this action. The trial court denied the motion to dismiss on January 30, 2018. Appellants filed this interlocutory appeal. See id. § 51.014(a)(9).

II. RGSC

We must first determine whether RGSC is a proper party to the appeal. Bagley non-suited his claims against RGSC which was no longer a party at the time the motion to dismiss was denied or when the notice of interlocutory appeal was filed. RGSC argues that its motion to dismiss sought dismissal with prejudice and an award of mandatory reasonable attorneys' fees and costs before the nonsuit, and therefore its claim for dismissal, costs, and fees survived the nonsuit. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b).

"Under the Texas Rules of Civil Procedure, [a]t any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes." Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz , 195 S.W.3d 98, 100 (Tex. 2006) (quoting TEX. R. CIV. P. 162 ). However, a nonsuit or dismissal "shall have no effect on any motion for sanctions, attorney's fees or other costs, pending at the time of dismissal...." TEX. R. CIV. P. 162 ; see Villafani v. Trejo , 251 S.W.3d 466, 469 (Tex. 2008) ; Fulp v. Miller , 286 S.W.3d 501, 509 (Tex. App.—Corpus Christi–Edinburg 2009, no pet.) (holding that a motion to dismiss pursuant to § 74.351(b) constitutes a motion for sanctions). Accordingly, we hold that RGSC may properly appeal the trial court's failure to grant its motion to dismiss with prejudice and failure to award attorneys' fees and costs.

III. HEALTH CARE LIABILITY CLAIMS

By their first issue, appellants argue that Bagley's claims are HCLCs. See TEX. CIV. PRAC. & REM. CODE ANN. ch. 74. "Determining whether claims are HCLCs requires courts to construe the TMLA [Chapter 74]. We review issues of statutory interpretation de novo." Loaisiga v. Cerda , 379 S.W.3d 248, 254–55 (Tex. 2012).

According to the statutory definition, a lawsuit is a HCLC if it has the following three elements: (1) the defendant is a health care provider or physician; (2) the claimant's cause of action is for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's alleged departure from accepted standards proximately caused the claimant's injury or death. Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) ; see Loaisiga , 379 S.W.3d at 255.

RGSC is a state hospital that provides inpatient and outpatient mental health services and is defined to be a health care institution. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(11). A health care provider is defined as any employee of a health care provider or health care institution. Id. § 74.001(a)(12)(B)(ii). Bagley's claims meet the first of the three-part test of a HCLC; they are against healthcare providers, a healthcare institution, and physicians.

The second part is whether Bagley's claims are for a departure from accepted standards related to health care. See id. § 74.001(a)(13). Bagley asserts that the staff used excessive force in restraining his son. Analysis of the cause of action "focuses on the facts underlying the claim, not the form of, or artfully-phrased language in, the plaintiff's pleadings describing the facts or legal theories asserted." Loaisiga , 379 S.W.3d at 255. Thus,

claims premised on facts that could support claims against a physician or health care provider for departures from accepted standards of medical care, health care, or safety ... directly related to health care are HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach of any of those standards.

Id. ; see TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). "The broad language of the [Texas Medical Liability Act] TMLA evidences legislative intent for the statute to have expansive application." Loaisiga , 379 S.W.3d at 256. "The breadth of the statute's text essentially creates a presumption that a claim is an HCLC if it is against a physician or health care provider and is based on facts implicating the defendant's conduct during the course of a patient's care, treatment, or confinement." Id. The presumption is rebuttable. Id.

Texas courts have interpreted HCLCs broadly to include an employee who was injured while employed by a health care facility or a person injured by a physician who committed an assault. See Loaisiga , 379 S.W.3d at 258–59 ; Tex. W. Oaks Hosp., LP v. Williams , 371 S.W.3d 171, 174–75 (Tex. 2012) (holding that claims for on-the-job injuries against the hospital sustained by a psychiatric technician caused by a patient were HCLCs); Morrison v. Whispering Pines Lodge I, L.L.P. , 428 S.W.3d 327, 332 (Tex. App.—Texarkana 2014, pet. denied) (holding nursing home employee's claim for injury from slip and fall on wet floor...