Wilson N. Jones Memorial Hosp. v. Ammons

• Decision Date: 21 August 2008
• Docket Number: No. 05-07-01430-CV.,05-07-01430-CV.
• Citation: 266 S.W.3d 51
• Parties: The WILSON N. JONES MEMORIAL HOSPITAL d/b/a The Wilson N. Jones Medical Center, Appellant, v. Rose Marie AMMONS, Appellee.
• Court: Texas Court of Appeals

266 S.W.3d 51

The WILSON N. JONES MEMORIAL HOSPITAL d/b/a The Wilson N. Jones Medical Center, Appellant, v. Rose Marie AMMONS, Appellee.

No. 05-07-01430-CV.

Court of Appeals of Texas, Dallas.

August 21, 2008.

Dena L. Mathis, Kyle, Campbell, Mathis and Lucas L.L.P., Charles T. Frazier, Jr.,

Alexander Dubose Jones & Townsend LLP, Dallas, TX, for Appellant.

Dee Kelly, Jr., Kelly, Hart & Hallman, P.C., Shauna J. Wright, Kelly, Hart & Hallman, LLP, Fort Worth, TX, for Appellee.

Before Justices MORRIS, FITZGERALD, and LANG.

OPINION

Opinion by Justice LANG.

In this appeal, we consider whether a non-patient's claim, pleaded as a negligence claim for injuries against a hospital, constitutes a "health care liability claim" pursuant to section 74.001(a)(13) of the Texas Civil Practice and Remedies Code, requiring the plaintiff to file an expert report pursuant to section 74.351(a) of the Texas Civil Practice and Remedies Code. We conclude the claim is a "health care liability claim" and an expert report is required. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 74.001(a)(13), 74.351(a) (Vernon 2005 & Supp.2008).

The Wilson N. Jones Memorial Hospital d/b/a The Wilson N. Jones Medical Center ("WNJ") brings this interlocutory appeal, pursuant to section 51.014(a)(9) of the Texas Civil Practice and Remedies Code, from the trial court's partial denial of WNJ's motion to dismiss with prejudice the claims of Rose Marie Ammons. The trial court granted WNJ's motion to dismiss "as to any health care liability claims asserted by Plaintiff," but denied the motion to dismiss "as to Plaintiff's claims for negligence."

WNJ contends the trial court abused its discretion by (1) denying, in part, the motion to dismiss because all of Ammons's claims are health care liability claims governed by chapter 74; and (2) failing to grant the motion to dismiss "with prejudice," because dismissal with prejudice is the only remedy afforded by chapter 74. Ammons asserts two "appellee's issues," contending the trial court's order denying, in part, WNJ's motion to dismiss can be affirmed on either of the two other grounds presented to the lower court for consideration: (1) waiver, or (2) untimeliness of WNJ's third amended original answer.

We conclude the trial court abused its discretion by denying WNJ's motion to dismiss all of Ammons's claims because Ammons's "claims for negligence" are health care liability claims governed by chapter 74. In addition, we conclude such a dismissal must be with prejudice. Both of WNJ's issues are decided in its favor. We affirm the part of the trial court's order dismissing "any health care liability claims," reverse the part of the trial court's order denying dismissal of Ammons's "claims for negligence," render judgment dismissing with prejudice all of Ammons's claims, and remand for further proceedings consistent with this opinion as to WNJ's claim for attorney's fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 3, 2005, sixty-six-year-old Ammons accompanied her husband to WNJ's emergency department, where he sought medical treatment for a throat condition. On that same date, a male psychiatric patient, referred to herein as "M.M.," presented to WNJ's emergency department seeking transfer to a mental health facility. At the time of M.M.'s admission, a nurse practitioner medically evaluated M.M. and found him to be a potential threat to himself, but not to others. WNJ placed M.M. in a room in the emergency department to await medical clearance for transfer. In addition, WNJ arranged for a security guard to be stationed at the door of M.M.'s room.

At some point during his wait, M.M., who was six feet tall and weighed 220 pounds, suddenly charged the security guard on duty outside his room, Matt Whitworth. As Whitworth attempted to subdue M.M. in the hallway outside M.M.'s room, Ammons and her daughter turned a corner toward the exit of the hospital and came upon the two men. M.M. "donkey-kicked" Ammons in the stomach, knocking her to the floor.

Ammons filed this suit against WNJ on March 15, 2006, asserting a cause of action for negligence. WNJ filed a timely general denial answer. On May 11, 2007, Ammons filed a first amended petition alleging M.M. was a "mental patient" who had been admitted to WNJ "some fifteen times in the previous five years and had a documented history of violent and irrational behavior." Ammons asserted that on a previous visit to WNJ, M.M. had become so "unruly" that he was "restrained with leather straps and sedated." On the occasion at issue, according to Ammons's allegations, "the medical staff decided to move the unrestrained patient to a different room near the waiting area for the ER," a room immediately adjacent to the doorway previously used by Ammons to exit the hospital.

Her specific allegation as to the legal duty of WNJ was the following:

The Hospital, as the occupier of the premises, had a duty to keep the common areas of the Hospital in a reasonably safe condition for its invitees and to warn or protect such invitees from any dangers which it knew or should have known in the exercise of ordinary care presented an unsafe condition on the premises.

In addition, Ammons asserted Whitworth "understood his responsibilities as a security guard at the Hospital were to `protect' the general public, `keep them safe,' and `make it a good environment for them to be in.'" Ammons contended both Whitworth and WNJ failed in their duties by not securing M.M. in a place where he could not harm or threaten harm to visitors. Further, Ammons asserted that "the Hospital failed to equip its security officer, Whitworth, with the appropriate tools and authority to control his violent patient and failed to train him properly in how to respond to situations such as that he faced on July 3, 2005."

On August 9, 2007, WNJ filed a no-evidence motion for summary judgment, requesting "summary judgment on Plaintiff's negligence claim." That motion was denied after a hearing on September 4, 2007. On September 10, 2007, WNJ filed a "Motion to Dismiss for Failure to File Expert Report" pursuant to section 74.351(b) of chapter 74.

In its motion to dismiss, WNJ contended, "The gravamen of Plaintiff's complaints is that WNJ failed to control and restrain the mental health patient. These claims are inseparable from the health care provided to the patient and are thus health care liability claims for which expert-testimony is required." WNJ explained that, pursuant to chapter 74, in a suit involving a health care liability claim, if an expert report has not been served within the statutorily specified time period,¹ the court, on the motion of the affected physician or health care provider, shall enter an order that "dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim." WNJ requested dismissal of Ammons's action with prejudice, attorney's fees, and costs of court. On September 11, 2007, WNJ filed a "Third Amended Original Answer and Affirmative Defenses," in which it asserted for the first time an "affirmative defense" that Ammons's claims are health care liability claims governed by chapter 74.

Ammons filed a "Request to Strike Defendant's Third Amended Answer and Response to Defendant's Motion to Dismiss" on September 18, 2007. In her request to strike, Ammons asserted (1) WNJ's late filing of its third amended original answer violated the trial court's scheduling order, and (2) WNJ "waived its right to the statutory defense" relating to Ammons's case being a health care liability claim. In addition, in her response to WNJ's motion to dismiss, Ammons asserted in part that WNJ's motion should be denied because "an expert report is only required when Plaintiff's claims are properly considered health care liability claims" and "[t]hat is not the case herein."

After hearing WNJ's motion to dismiss, the trial court signed an order that granted WNJ's motion to dismiss "as to any health care liability claims asserted by Plaintiff," but denied WNJ's motion "as to Plaintiff's claims for negligence." WNJ timely filed this appeal from the trial court's order under section 51.014(a)(9) of the Texas Civil Practice and Remedies Code, which provides in relevant part that a person may appeal from an interlocutory order of a district court that "denies all or part of the relief sought by a motion under Section 74.351(b)." See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (Vernon 2008).

II. WNJ'S MOTION TO DISMISS

A. Standard of Review

Generally, an appellate court reviews a trial judge's decision on a motion to dismiss a claim under section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of discretion. See, e.g., Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 569 (Tex.App.-Dallas 2007, pet. denied); Cayton v. Moore, 224 S.W.3d 440, 444 (Tex.App.-Dallas 2007, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Cayton, 224 S.W.3d at 444. A trial court has no discretion in determining what the law is or in applying the law to the facts. Id. at 445. A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.

However, when the resolution of an issue on appeal requires the interpretation of a statute, the reviewing court applies a de novo standard of review. Vanderwerff v. Beathard, 239 S.W.3d 406, 408 (Tex.App.-Dallas 2007, no pet.). Therefore, we review de novo the determination of whether a claim is a health care liability claim for the purpose of applying chapter 74 of the Texas Civil Practice and Remedies Code. Id.; Boothe v. Dixon, 180 S.W.3d 915, 919 (Tex.App.-Dallas 2005, no pet.); Omaha Healthcare Ctr., L.L.C. v. Johnson, 246 S.W.3d 278, 281 (Tex.App.-Texarkana 2008, pet. filed); Christus Health v. Beal, 240 S.W.3d 282, 284-85 (Tex.App.-Houston [1st Dist.] 2007, no pet.); see...