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CAUSE NO. C-5257-17-D
ROSALINDA SOLIZ IN THE DISTRICT COURT
206™ JUDICIAL DISTRICT
MARIA RODRIGUEZ DE LIMA, M.D. AND
MCALLEN HOSPITALS, L.P. HIDALGO COUNTY, TEXAS
BRIEF TO THE COURT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, MCALLEN HOSPITALS, L.P. d/b/a EDINBURG REGIONAL MEDICAL CENTER,
Defendant herein and files this Brief to The Court and would respectfully show the following:
Plaintiffis new claims of Texas Common Law Fraud are subsumed in the negligent
credentialing and health care liability claims under the by Texas Civil Practice and Remedies
Code ("Chapter 74"). As a result, Plaintiff's cause of action must be dismissed in its entirety.
Plaintiff's characterization of her negligent credentialing cause of action as pending
Texas Common Law Fraud is an overt attempt to circumvent well established precedent that
a healthcare liability claimant early in litigation is required to produce a suitable expert opinion
that the healthcare claim has merit. While Plaintiff attempts to recast the act that allegedly
caused Mrs. Soliz’ damages from negligent credentialing to Texas Common Law Fraud,
Plaintiffs central thesis remains unchanged: On August 2, 2016, an act by a healthcare provider
was improperly performed or furnished, or should have been performed or furnished to Mrs.
Soliz during her treatment at the Hospital. As such, Plaintiff's fraud claim is a Health Care
Liability Claim. Christus v. Carswell, 505 S. W. 3d 528, (Tex. 2016).
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Assuming arguendo that Plaintiff's claims are in actuality Texas Common Law Fraud for
purposes of this motion, the following facts are material. On August 6, 2020, Plaintiff amended
her Petition to remove negligent credentialing claims and include Texas Common Law Fraud.
First, Plaintiff claims that patients undergoing surgery at ERMC will sustain injuries as a result
of surgeon negligence. Second, Plaintiff claims that ERMC does not require that surgeons
demonstrate
the abilityto compensate surgical injuries. Third, Plaintiff claims that ERMC failed
to disclose the information in (1) and (2) for the purpose of concealing ongoing surgical
negligence in an effort to induce patients to undergo surgical procedures at ERMC. Stated
otherwise, the basis of Plaintiff's fraud claim is that ERMC failed to inform the Plaintiff of the
information necessary to enable her to make treatment decisions that reflect her wishes.
SUMMARY OF ARGUMENT
Plaintiffs Claims Against Defendants Satisfy The Elements Of A Health Care Liability
Claim.
Chapter 74 of the Texas Civil Practice and Remedies Code, known as the Medical
Liability Act, defines a “health care liability claim” 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 or professional or administrative
The Act defines "medical care" as practicing medicine, including the diagnosis and treatment, or offer
to treat, by a licensed physician. Id. at § 74.001(a)(19); Marks v. St. Luke's Episcopal Hosp., 319
S.W.3d 658, 662 (Tex. 2010).
“Health care” means any act or treatment performed or furnished, or that should have been
performed or furnished, by any health care provider for, to, or on behalf of a patient during the
patient's medical care, treatment, or confinement. TEx. Civ. PRAC. & REM. CODE § 74.001(a)( ).
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services? directly related to health care which proximately results in injury to, or death of, a
claimant, whether the claimant's claim or cause of action sounds in tort or contract.” /d. at
§ 74.001(a)(13).*
When determining whether a claim is a health care liability claim, Courts “examine the
underlying nature of the claim and are not bound by the form of the pleading.” Diversicare Gen.
Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005). Importantly, “[a] health care liability
claim cannot be recast as another cause of action to avoid the requirements of Chapter 74.”
Heriberto Sedeno, P.A. v. Mijares, 333 S.W.3d 815, 819 (Tex. App.-Houston [1st Dist.] 2010,
no pet.). “The fact that the claim is cast as an intentional tort does not take the claim out of the
purview of the Act when the underlying nature of the claim is inseparable from a physician's [or
health care provider's] rendition of medical services and treatment involving a departure from
accepted standards of medical care, health care, or safety.” Swanner v. Bowman, 2002 WL
31478769 (Tex. App.-Dallas Nov. 7, 2002, pet. denied).
When a claim brought against a health care provider is “based on facts implicating
the
defendant’s conduct during the course of a patient’s care, treatment, or confinement,” a
rebuttable presumption arises that it is a health care liability claim. Scott v. Weems, 575 S.W.3d
“Professional or administrative services” means those duties or services that a physician or health
care provider is required to provide as a condition of maintaining the physician's or health care
provider's license, accreditation status, or certification to participate in state or federal health care
programs. Id. at § 74.001(a)(24).
“The Act does not limit its reach to persons receiving or having received health or medical care-it
applies to ‘claimants’.” Christus Health Gulf Coast v. Carswell, 505 S.W.3d 528, 537 (Tex. 2016).
Accordingly, “it applies when the claimed injury is directly related to health care of some patient.” See
id. (citing TeX. Civ. PRAC. & REM. CODE § 74.001(a)(10), (13)).
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357, 363 (Tex. 2019). The Texas Supreme Court has also held that “[i]f expert medical or
health care testimony is necessary
to prove or refute a claim againsta physician or health care
provider, then the claim is a health care liability claim.” Tex. W. Oaks Hosp. v. Williams, 371
S.W.3d 171, 182 (Tex. 2012). Moreover, when a plaintiff asserts numerous factually related
claims, a defendant health care provider need only show that one of the claims falls within the
statute. Thus, when a plaintiff asserts a claim based on the same underlying facts as a
separate health care liability claim that the plaintiff also asserts, all claims are treated as health
are liability claims. PM Mgmt.-Trinity NC, LLC v. Kumets, 404 S.W.3d 550, 552 (Tex. 2013).
Claims involving non-disclosure of the nature of the relationship between a physician and
a hospital in an effort to cover up deficient health care provided to patients is a health care
liability claim under Texas law as they implicate the health care provider's treatment, medical
care, and health care of the patient. Christus Health Gulf Coast v. Carswell, 505 S.W.3d 528
(Tex. 2016). In Christus, the court examined whether the hospital fraudulently obtained a
widow's consent for a private autopsy constituted a health care liability claim. Id. at 534. The
court found that the essence of the claim was that the hospital obtaining the widow’s consent
for the autopsy implicated a violation of duties imposed on it due to its status as a licensed
health care provider, and violation of these duties by the hospital could result in its licenses
being suspended or revoked. Id. at 536. The court observed that the required disclosures
brought into issue whether the hospital staff rightfully disclosed autopsy requirements to the
widow. Id. at 535. The court explained that improperly obtaining the Plaintiff widow's consent
for autopsy alleged departures from the hospital’s duty to comply with Texas Hospital Licensing
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requirements. Id. at 536. Hence the fraudulently obtained permission for a private autopsy
constituted a claim of departure of the “professional or administrative service” which was
directly related to the provision of health care. Id. at537. Therefore, the Plaintiff widow’s claim
was a health care liability claim.
In this case, the essence of Plaintiff's allegations is that ERMC failed to provide the
information necessary
to enable Mrs. Soliz to make treatment decisions. Plaintiff contends that
ERMC failed to disclose the nature of the relationship between the physician and hospital in an
effort to cover up deficient health care. (See Plaintiff's First Amended Petition.) Plaintiff claims
that if she had been fully informed she would not have undergone the surgical procedure at
ERMC.
Like Christus, Texas law requires the hospital implement policies that ensure the
hospital discloses the information necessary
to enable patients make a fully informed treatment
decision.® This also includes disclosures of the nature of the relationship between the Hospital
and physicians.® Violations of the required disclosures by the Hospital may result in its license
being suspended or revoked,’ which brings into issue whether the Hospital staff rightfully
Texas 25 Tex. Admin. Code §§ 133.42(a)(1); 133.42(a)(1)(D);the right of the patient to the
information necessary to enable him or her to make treatment decisions that reflect his or her
wishes; a policy on informed decision making shall be adopted, implemented and enforced by the
medical staff and governing body and shall be consistent with any legal requirements;
Tex. Occ. Code § 102.006. FAILURE TO DISCLOSE: OFFENSE. Violation of Tex. Occ. Code §
102.001-102.054 by the hospital could result in its licenses being suspended or revoked if Hospital
has aided, abetted, or permitted the commission of an illegal act. Tex. Health & Safety Code §
241.053(a)(3); see also 25 Tex. Admin. Code §§ 133.121(6), 133.121(1).
Id.
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disclosed all the required information to Plaintiff. Whether ERMC’s non-disclosure of
Dr. Rodriguez’ professional liability insurance coverage runs afoul of the disclosure
requirements must be determined by an expert. Accordingly, Plaintiff's claims are based upon
the “professional or administrative” duty to disclose all the necessary information to enable the
Plaintiff to make treatment decisions.
Like Christus, Plaintiff claims the alleged departures from accepted standards of
“professional or administrative services” - that is the non-disclosure of all the information
necessary - is for the purpose of concealing health care provider malpractice that results in
patient injuries. (See Plaintiff's First Amended Petition 742.) As such, Plaintiff's non-disclosure
claims arise in connection
to acts or treatments that Plaintiff alleges were improperly performed
or furnished, or that should have been performed or furnished, to the patient during her
treatment. Accordingly, Plaintiff's fraud claims are health care liability claims.
In sum, Plaintiff's fraud claims are health care liability claims because they relate to the
patient’s treatment, lack of treatment, or other alleged departures from accepted standards of
medical care, health care, safety, and professional or administrative services directly related
to health care.
ARGUMENT & AUTHORITY
I
THE LEGISLATURE ENACTED CHAPTER 74 TO DETER FRIVOLOUS LAWSUITS
AGAINST PHYSICIANS AND HEALTH CARE PROVIDERS.
The Legislature enacted Article 4590i (now codified in Chapter 74) for the purpose of
deterring frivolous lawsuits against physicians and health care providers. TEX. REV. Clv. STAT. ANN.
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art. 4590i; American Transitional Care Ctrs. of Tex. Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.
2001) (citing House Comm. ON Clv. Prac., BILL ANALYSIS, Tex. H.B. 971 74th Leg., R.S. (1995)).
Filing a frivolous lawsuit is tantamount to litigation misconduct subject to sanction. See TEX. R.
Cw. P. 13. The Legislature expressed the following:
Texas faces a general environment of excessive litigation. This has
resulted in a crisis in access to healthcare as medical providers
leave the state or leave the profession altogether. It has also
resulted in higher costs to patients and consumers, caused
companies to locate outside of Texas, disproportionately
burdened Texas courts, and even forced some companies into
bankruptcy. C.S.H.B. 4 is a comprehensive civil justice bill
intended to address and correct problems that currently impair
the fairness and efficiency of our court system. C.S.H.B. 4
addresses many of the root causes of the current situation...[and]
provides corrective measures that will bring more balance to the
Texas civil justice system, reduce the costs of litigation, and help
restore litigation to its proper role in our society.
See House Comm. ON Civ. PRAC., BILL ANALYSIS, Tex. H.B. 4, 78th Leg., R.S. (2003).
I.
CHAPTER 74'S EXPERT REPORT REQUIREMENT
Chapter 74 mandates
that when a plaintiff asserts a health care liability claim, she must
serve each defendant physician and health care provider with an expert report along with the
expert's curriculum vitae within 120 days of filing her original petition. See TEX. Civ. PRAC. REM.
CobE § 74.351(a)-©. Chapter 74 further provides that a failure to serve a report within 120
days requires that the Court dismiss the case and award attorneys’ fees and costs. /d. at §
74.351(b). As established below, Plaintiff alleges a health care liability claim governed by
Chapter 74, yet Plaintiff failed to serve an expert report within 120 days from the date
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Defendant filed the Original Answer (the deadline was 9-4-2018). As a result, Plaintiff's claims
against Defendants must be dismissed with prejudice.
I.
CHAPTER 74 APPLIES TO PLAINTIFF'S CLAIMS AGAINST DEFENDANTS
A General Expanse of Chapter 74
Since Chapter 74 was enacted in 2003, the courts have consistently and broadly applied
Chapter 74 to a wide array of claims beyond normal medical malpractice claims, including
claims arising from the credentialing of physicians and claims by non-patients. See Garland
Cmty. Hosp. v. Rose, 156 S.W.3d 541, 544 (Tex. 2004) (negligent credentialing claim); Yamada
v. Friend, 335 S.W.3d 192 (Tex. 2010) (claim for death of child at water park); Buchanan v.
O'Donnell, 340 S.W.3d 805 (Tex. App.-San Antonio 2011, no pet.) (claim by motorists against
physician who prescribed medication to tortfeasor driver); Wilson N. Jones Mem'l Hosp. v.
Ammons, 266 S.W.3d 51 (Tex. App.-Dallas 2008, pet. denied) (claim by wife of patient resulting
from assault by psychiatric patient); see also Omaha Healthcare Ctr., LLC v. Johnson, 344
S.W.3d 392 (Tex. 2011) (claim related to spider bite).® Similar to those cases, Plaintiff's claims
against Defendants in this case are governed by Chapter 74.
See infra Section IIl(C) for a more thorough explanation of the application of Chapter 74 to
non-patients.
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Plaintiff's Claims Against Defendants Satisfy the Elements of a Health Care Liability
Claim.
1. The elements of a health care liability claim.
Chapter 74 applies to health care liability claims. See Tex. Civ. PRac. & REM. CODE. §§
74.001, et seq. Chapter 74 defines a health care liability claim 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 or
professional or administrative services directly related to health
care, which proximately results in injury to or death of a claimant,
whether the claimant's claim or cause of action sounds in tort or
contract.
Id. at § 74.001(a)(13). To determine whether a cause of action is a health care liability claim,
the courts ‘examine the underlying nature of the claim and are not bound by the form of the
pleading.” Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005).
Additionally, “[a] health care liability claim cannot be recast as another cause of action to avoid
the requirements of Chapter 74.” Heriberto Sedeno, P.A. v. Mijares, 333 S.W.3d 815, 819 (Tex.
App.-Houston [1st Dist.] 2010, no pet.).
Texas courts find that a claim constitutes a health care liability claim if the following
three elements are satisfied: (1) the defendant is a physician or a health care provider; (2) the
suit must relate to treatment, lack of treatment, or some other 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 act, omission, or other departure must
proximately cause the claimant's injury or death. See Marks v. St. Luke's Episcopal Hosp., 319
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S.W.3d 658, 662 (Tex. 2010); Saleh v. Hollinger, 335 S.W.3d 368, 374 (Tex. App.-Dallas 2011,
pet. denied). As explained herein, Plaintiff's lawsuit against Defendants satisfies all three
elements of a health care liability claim.
2. First element — Defendants is a physician and or health care providers.
In regard to the first element, Plaintiff asserts claims against physicians and health care
providers. There is no dispute that Dr. Rodriguez is an individual licensed to practice medicine
in Texas. (See Plaintiff's Original Petition at 78.) As such, she is a physician under the statute.
See TEx. Civ. PRAC. & REM. CODE § 74.001(a)(23).
A hospital, like Edinburg Regional Medical Center, is a health care provider. A “health
care provider” means any person, partnership, professional association, corporation, facility,
or institution duly licensed, certified, registered, or chartered by the State of Texas to provide
health care, including... a healthcare institution 74.001(a)(12)(A). The term health care provider
includes:
(i) an officer, director, shareholder, member, partner, manager, owner or
affiliate of a health care provider or physician; and
(ii) an employee, independent contractor, or agent of a health care provider
or physician acting in the course and scope of the employment or
contractual relationship.
Id. at § 74.001(a)(12)(B). Plaintiff bases her lawsuit against McAllen Hospitals L.P. on the
allegation it is the operator of general hospital ERMC. (See Plaintiff's Original Petition at 14 and
45.) As such, these Defendants are included within the definition of a health care provider.
Hence, the first element is satisfied.
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3. Second element - Plaintiff's claims relate to alleged departures from accepted
standards of professional or administrative services and safety.
In regard to the second element, Plaintiff's suit relates to alleged departures from
accepted standards of professional or administrative services directly related to health care and
alleged departures from accepted standards of safety.
(a.) Professional Administrative Service
As addressed inthe Summary
of Argument, Chapter 74 also applies to this case because
Plaintiff's claims relate to “professional or administrative services.”
(b.) Safety
Plaintiff's claims are also based on alleged departures from accepted standards of
safety which also satisfies the second element of a health care liability claim. When a claim is
based on a defendant health care provider's duties to provide safe patient care, the claim
constitutes a health care liability claim. See Diversicare, 185 S.W.3d at 855; Oak Park, Inc. v.
Harrison, 206 S.W.3d 133, 138-39 (Tex. App.-Eastland 2006, no pet.); Dunn v. Clairmont Tyler,
LP, 271 S.W.3d 867, 871-72 (Tex. App.-Tyler 2008, no pet.). In fact, such a claim constitutes
a health care liability claim even when the claimant is not a patient of the health care provider.
See Dunn, 271 S.W.3d at 871-72.
In Dunn v. Clairmont Tyler, LP, a patient of Pinecrest Nursing Home was sexually
assaulted by an employee, Wheeler. Id. at 868-69. The patient’s mother filed suit against
Pinecrest. /d. at 869. She also filed suit against two other nursing home institutions, Clairmont
and Colonial, which never treated her mother. /d. Instead, these two institutions previously
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terminated Wheeler for inappropriate conduct and poor judgment, but they failed to report
these incidents of abuse and neglect as required by Texas statute. Id. As a result, Wheeler was
allowed to work at Pinecrest where he sexually assaulted the resident. /d. Clairmont and
Colonial alleged the plaintiff's claims were health care liability claims because the essence of
the plaintiff's claim was that these institutions breached the applicable standard of safety in
relation to patient care. Id. The trial court agreed even though the individual in question was
never a patient with Clairmont or Colonial. /d. The Tyler court of appeals agreed with the trial
court.
The Dunn court acknowledged that the legislature's inclusion of breaches of accepted
standards of safety within the scope of Chapter 74 expanded the scope of the statute beyond
what it would be if it covered only medical and health care. Id. at 871 (citing Diversicare, 185
S.W.3d at 855). As the Supreme Court recognized in Diversicare General Partner, Inc. v. Rubio,
professional supervision, monitoring, and protection of the patient population necessarily
implicates the accepted standards of safety under a health care liability claim. See id. Thus,
part of a health care provider's duty in providing care to its patients is to protect their right to
receive care in a safe setting. Id.
In order to ensure the safety of nursing home patients, a nursing home had an
administrative duty to report abuse or neglect by one of its employees. Id. at 872. The Dunn
court found that this duty to report was an administrative matter inseparable from a health care
provider's duty to ensure patient safety. Id. As a result, this duty was an inseparable part of the
rendition of health care services bringing the plaintiff's claim within the definition of a health
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care liability claim, despite plaintiff never receiving treatment from Clairmont or Colonial.
Dunn is applicable to this case. Similar to Dunn, Plaintiff alleges Defendants failed to
abide by administrative duties imposed by state statutes resulting in injury to Plaintiff.° Also,
like Dunn, the statutes pertaining to patient rights are inseparable from Defendant's duty to
ensure patient safety. As with Dunn, Plaintiffs claims against Defendants relate to
administrative matters pertaining to and directly affecting patient safety. Accordingly, Plaintiff's
claims are based on alleged departures of accepted standards of patient safety thereby
satisfying the second element of a health care liability claim.
Lastly, expert testimony is required to aid the jurors in understating the patient right
process. Hence, like the plaintiffs in Dunn Plaintiff asserts a health care liability claim governed
by Chapter 74 and its expert reporting requirement.
For these reasons, Plaintiff alleges departures from both accepted standards of
professional or administrative services and accepted standards of safety. Hence, Plaintiff's
claims satisfy the second element of a health care liability claim.
4 Third element — Plaintiff alleges injury.
The third requirement for a health care liability claim is that the defendant's act,
omission or other departure proximately caused the claimant's “injury.” In this case, Plaintiff
claims she suffered “pecuniary damages,” equal to the difference between any future award
for damages and Dr. Rodriguez’ available insurance coverage. Admittedly, these alleged
9 As noted above, Plaintiff's claims also relate to the Patient Rights standards.
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damages stem from an alleged “injury” thereby satisfying the third element of a health care
liability claim.
Chapter 74 does not require a personal injury. See TTHR, 338 S.W.3d at 109-11. In
TTHR, Coffman received treatment from Presbyterian Hospital, and during this treatment, she
submitted a urine sample. Id. at 106. Presbyterian submitted the results of the urine test to
Coffman's university, which then suspended Coffman and removed her from student housing.
Id. Coffman filed suit against Presbyterian and the university but failed to serve a Chapter 74
expert report. /d. Presbyterian moved to dismiss the lawsuit, but the trial court denied the
motion. /d.
On appeal, the Fort Worth court of appeals overruled the trial court's ruling. /d. It
determined that Coffman's claims related to “professional or administrative services.” Id. at
108-09. In particular, Coffman’s allegations related to a statute prohibiting a hospital from
disclosing confidential patient information, a violation of which could lead to the loss of the
hospital's license. Id. at 108. In response, Coffman argued her claim was not a health care
liability claim because she was not seeking personal injuries related to health care. Id. at
109-10. Rather, she was seeking damages unrelated to bodily injury. /d. Coffman argued the
definition ofa health care liability claim only applied to claims for personal injuries. Id. However,
the TTHR court refused to read "personal" into the definition of a health care liability claim,
especially considering the fact that the very definition of a health care liability claim states a
claim is considered a health care liability claim regardless of “whether the claimant's claim or
cause of action sounds in tort or contract.” /d. at 110 (citing Tex. Civ. PRAC. & REM. CODE §
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74.001(a)(13), emphasis added). Additionally, many courts in Texas have found that
nonphysical injuries constitute health care liability claims. Id. at 111.*° In conclusion, the court
found that a plaintiff need not assert a claim for bodily or physical injury in order for the claim
to qualify as a health care liability claim. See TTHR, 338 S.W.3d at 111. The court reversed the
trial court’s decision and rendered judgment in favor of Presbyterian due to the claimant's
failure to serve an expert report.
In this case, there is even more basis for finding an injury covered by Chapter 74 than
in TTHR. Here, Plaintiff alleges both physical and non-physical injuries. Therefore, even if the
Court were to read “physical” into the term injury (which is not supported by the explicit
language of Chapter 74 or the cases), this claim for physical injury is sufficient to invoke
Chapter 74 for all of Plaintiff's claims against Defendants. As the Texas Supreme Court recently
recognized in Yamada v. Friend, if any portion of a plaintiff's claim is governed by Chapter 74,
the entire claim is governed by Chapter 74. See 335 S.W.3d at 197-98. The Court will not allow
for piecemeal litigation of these types of claims. Id. Regardless, as the court recognized in
TTHR, a “physical” injury is not required. Plaintiff claims she suffered damages unrelated to
10
See Fudge, 308 S.W.3d at 460) (libel); Sloan v. Farmer, 217 S.W.3d 763, 768 (Tex. App.-Dallas
2007, pet. denied) (employment termination); Institute for Women's Health, P.L.L.C. v. Imad, No.
04-05-00555-CV, 2006 WL 334013, *2 (Tex. App.-San Antonio Feb. 15, 2006, no pet.) (mental
anguish); MacPete v. Bolomey, 185 S.W.3d 580, 582, (Tex. App.-Dallas 2006, no pet.) (CPS
investigations, criminal proceedings, and a child custody case); Groomes v. USH of Timberlawn, Inc.,
170 S.W.3d 802, 804 (Tex. App.-Dallas 2005, no pet.) (false imprisonment); Smalling v. Gardner,
203 S.W.3d 354, 365 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (kidnapping, false
imprisonment, child abduction, fraud, breach of contract, deceptive trade practices, and conspiracy);
see also Murphy v. Russell, 167 S.W.3d 835, 837 (Tex. 2005) (sedation contrary to instructions);
Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex. 1995) (ill-fitting dentures); Armstrong v. Robinsons,
No. 14-08-01077-CV, 2010 WL 4817100, at *2 (Tex. App.-Houston [14th Dist.] Nov. 23, 2010, no
pet.) (ill-fitting dentures).
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physical harm as a result of Defendants’ alleged acts and/or omissions. These types of
damages are similar to the type of damages alleged in TTHR, which the court held were within
the definition of a health care liability claim. Thus, Plaintiff alleges an injury covered by
Chapter 74.
Moreover, several courts outside the context of Chapter 74 have defined injury to include
the types of damages alleged by Plaintiff in this case. Injury is not defined by Chapter 74. When
a legal term ora term of artis not defined by Chapter 74, Chapter 74 states that the term “shall
have such meaning as is consistent with the common law.” See TEX. Civ. PRAC. & REM. CODE §
74.001(b). At common law, when aterm is not defined in a statute, the courts apply its ordinary
meaning. See TEX. Gov't CoDE § 312.002; City of San Antonio v. Hartman, 201 S.W.3d 667, 672
n.19 (Tex. 2006).
In regard to the term “injury,” the courts have defined injury as: “damage or hurt done
to or suffered by a person or thing,” Cavitt v. Jetton's Greenway Plaza Cafeteria, 563 S.W.2d
319, 322 (Tex. Civ. App.-Houston 1978, no writ) (citing Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d
770 (1945)); "hurt, damage, or loss sustained," C.H. v. Dep't of Family & Protective Servs.,
No. 01-11-00385-CV, 2012 WL 586972 (Tex. App.-Houston [1st Dist.] Feb. 23, 2012, no pet.
h.) (citing WeBsTER's NEW COLLEGIATE DICTIONARY (1981)); Samsung Elecs. Am., Inc. v. Fed. Ins. Co.,
202 S.W.3d 372, 379 (Tex. App.-Dallas 2006), aff'd sub nom. Fed. Ins. Co. v. Samsung Elecs.
Am., 268 S.W.3d 506 (Tex. 2008) (citing same); or "any wrong or damage done to another,
either in his person, rights, reputation or property," Chilton Corp. v. Moore, 508 S.W.2d 679,
682 (Tex. Civ. App.-Fort Worth 1974, no writ) (citing BLACK’s Law DICTIONARY (3d)); Hawkins v.
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Schroeter, 212 S.W.2d 843, 846 (Tex. Civ. App.-San Antonio 1948, no writ) (same). Plaintiff
claims she suffered damage and loss as a result of Defendant’s alleged acts and/or omissions.
Therefore, Plaintiff's claim for damages falls within the common law definition of injury.
Accordingly, Plaintiff's claim satisfies the third element of a health care liability claim.
As a result, Plaintiff's claims against Defendants satisfy all three elements of a health
care liability claim. Since Plaintiff asserts a health care liability claim, Chapter 74's expert
reporting requirement applies to Plaintiff. As indicated above, Plaintiff failed to serve any
Chapter 74 expert report, and thus, dismissal is mandatory.
WHEREFORE, PREMISES CONSIDERED, Defendant, McALLEN HOSPITALS, L.P. d/b/a
EDINBURG REGIONAL MEDICAL CENTER, respectfully requests that this Court find that
Plaintiff's Texas Common Law Fraud be dismissed as this claim falls squarely within the purview
of health care.
Respectfully submitted,
GONZALEZ CASTILLO MOYA, LLP
By: /s/Edward J. Castillo
Steven M. Gonzalez
SBN: 08131900
Edward J. Castillo
SBN: 24040658
Ezequiel “Zeke” Moya, Jr.
SBN: 24092865
Eduardo Moya
SBN: 24105674
1317 E. Quebec Ave.
McAllen, Texas 78503.
(956) 618-0115
-17-
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Hidalgo County District Clerks
Reviewed By: Elaine Solis
FAX: (956) 618-0445
Email: law@valleyfirm.com
ATTORNEYS FOR DEFENDANTS,
McALLEN HOSPITAL, L.P. D/B/A EDINBURG REGIONAL
MEDICAL CENTER, GLORIA V. RAMIREZ, R.N. and OLGA L.
RAMIREZ, C.N.A.
CERTIFICATE OF SERVICE
| hereby certify that a true and correct copy of the above and foregoing document has
been forwarded to all counsel of record via electronic filing service on this 11" day of
August, 2020.
/s/Edward J. Castillo
Edward J. Castillo
F:\data\WPDOCS\S\Soliz, R. v. ERMC 66.031\brief-08112020.km.wpd
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Reviewed By: Elaine Solis
25 TAC § 133.42
This document reflects all regulations in effect as of July 31, 2020
TX - Texas Administrative Code > TITLE 25, HEALTH SERVICES > PART I. DEPARTMENT OF STATE
HEALTH SERVICES > CHAPTER 133. HOSPITAL LICENSING > SUBCHAPTER C. OPERATIONAL
REQUIREMENTS
§ 133.42. Patient Rights
(a)Patient rights requirements for all hospitals.
(1)A hospital shall adopt, implement, and enforce a policy to ensure patients' rights, The
written policy shall include:
(A)the right of the patient to the hospital's reasonable response to his or her requests and
needs for treatment or service, within the hospital's capacity, its stated mission, and
applicable law and regulation;
(B)the right of the patient to considerate and respectful care:
(ithe care of the patient includes consideration of the psychosocial, spiritual, and
cultural variables that influence the perceptions of illness;
(ii)the care of the dying patient optimizes the comfort and dignity of the patient
through:
(Dtreating primary and secondary symptoms that respond to treatment as desired by
the patient or surrogate decision maker;
(effectively managing pain; and
(Dacknowledging the psychosocial and spiritual concerns of the patient and the
family regarding dying and the expression of grief by the patient and family;
(C)the right of the patient, in collaboration with his or her physician, to make decisions
involving his or her health care, to include the following:
(ithe right of the patient to accept medical care or to refuse treatment to the extent
permitted by law and to be informed of the medical consequences of such refusal; and
(ii)the right of the patient to formulate advance directives and to appoint a surrogate to
make health care decisions on his or her behalf to the extent permitted by law. Advance
directives are written instructions recognized under state law relating to the provision
of health care when individuals are unable to communicate their wishes regarding
medical treatment. The advance directive may be a written document authorizing an
agent or surrogate to make decisions on an individual's behalf (a medical power of
attorney for health care), a written or verbal statement (a living will), or some other
form of instruction recognized under state law specifically addressing the provisions of
health care;
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25 TAC § 133.42
Hidalgo C
Reviewer dae y
Dijain’ ictSolisClerks
(Da hospital shall have in place a mechanism to ascertain the existence of, and, as
appropriate, assist in the development of advance directives at the time of the
patient's admission;
(UD the provision of care shall not be conditioned on the existence of an advance
directive; and
(Dan advance directive(s) shall be in the patient's medical record and shall be
reviewed periodically with the patient or surrogate decision maker if the patient has
executed an advance directive;
(D)the right of the patient to the information necessary to enable him or her to make
treatment decisions that reflect his or her wishes; a policy on informed decision making
shall be adopted, implemented and enforced by th
Preview
Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis CAUSE NO. C-5257-17-D ROSALINDA SOLIZ IN THE DISTRICT COURT 206™ JUDICIAL DISTRICT MARIA RODRIGUEZ DE LIMA, M.D. AND MCALLEN HOSPITALS, L.P. HIDALGO COUNTY, TEXAS BRIEF TO THE COURT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, MCALLEN HOSPITALS, L.P. d/b/a EDINBURG REGIONAL MEDICAL CENTER, Defendant herein and files this Brief to The Court and would respectfully show the following: Plaintiffis new claims of Texas Common Law Fraud are subsumed in the negligent credentialing and health care liability claims under the by Texas Civil Practice and Remedies Code ("Chapter 74"). As a result, Plaintiff's cause of action must be dismissed in its entirety. Plaintiff's characterization of her negligent credentialing cause of action as pending Texas Common Law Fraud is an overt attempt to circumvent well established precedent that a healthcare liability claimant early in litigation is required to produce a suitable expert opinion that the healthcare claim has merit. While Plaintiff attempts to recast the act that allegedly caused Mrs. Soliz’ damages from negligent credentialing to Texas Common Law Fraud, Plaintiffs central thesis remains unchanged: On August 2, 2016, an act by a healthcare provider was improperly performed or furnished, or should have been performed or furnished to Mrs. Soliz during her treatment at the Hospital. As such, Plaintiff's fraud claim is a Health Care Liability Claim. Christus v. Carswell, 505 S. W. 3d 528, (Tex. 2016). Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis Assuming arguendo that Plaintiff's claims are in actuality Texas Common Law Fraud for purposes of this motion, the following facts are material. On August 6, 2020, Plaintiff amended her Petition to remove negligent credentialing claims and include Texas Common Law Fraud. First, Plaintiff claims that patients undergoing surgery at ERMC will sustain injuries as a result of surgeon negligence. Second, Plaintiff claims that ERMC does not require that surgeons demonstrate the abilityto compensate surgical injuries. Third, Plaintiff claims that ERMC failed to disclose the information in (1) and (2) for the purpose of concealing ongoing surgical negligence in an effort to induce patients to undergo surgical procedures at ERMC. Stated otherwise, the basis of Plaintiff's fraud claim is that ERMC failed to inform the Plaintiff of the information necessary to enable her to make treatment decisions that reflect her wishes. SUMMARY OF ARGUMENT Plaintiffs Claims Against Defendants Satisfy The Elements Of A Health Care Liability Claim. Chapter 74 of the Texas Civil Practice and Remedies Code, known as the Medical Liability Act, defines a “health care liability claim” 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 or professional or administrative The Act defines "medical care" as practicing medicine, including the diagnosis and treatment, or offer to treat, by a licensed physician. Id. at § 74.001(a)(19); Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 662 (Tex. 2010). “Health care” means any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement. TEx. Civ. PRAC. & REM. CODE § 74.001(a)( ). -2- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis services? directly related to health care which proximately results in injury to, or death of, a claimant, whether the claimant's claim or cause of action sounds in tort or contract.” /d. at § 74.001(a)(13).* When determining whether a claim is a health care liability claim, Courts “examine the underlying nature of the claim and are not bound by the form of the pleading.” Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005). Importantly, “[a] health care liability claim cannot be recast as another cause of action to avoid the requirements of Chapter 74.” Heriberto Sedeno, P.A. v. Mijares, 333 S.W.3d 815, 819 (Tex. App.-Houston [1st Dist.] 2010, no pet.). “The fact that the claim is cast as an intentional tort does not take the claim out of the purview of the Act when the underlying nature of the claim is inseparable from a physician's [or health care provider's] rendition of medical services and treatment involving a departure from accepted standards of medical care, health care, or safety.” Swanner v. Bowman, 2002 WL 31478769 (Tex. App.-Dallas Nov. 7, 2002, pet. denied). When a claim brought against a health care provider is “based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement,” a rebuttable presumption arises that it is a health care liability claim. Scott v. Weems, 575 S.W.3d “Professional or administrative services” means those duties or services that a physician or health care provider is required to provide as a condition of maintaining the physician's or health care provider's license, accreditation status, or certification to participate in state or federal health care programs. Id. at § 74.001(a)(24). “The Act does not limit its reach to persons receiving or having received health or medical care-it applies to ‘claimants’.” Christus Health Gulf Coast v. Carswell, 505 S.W.3d 528, 537 (Tex. 2016). Accordingly, “it applies when the claimed injury is directly related to health care of some patient.” See id. (citing TeX. Civ. PRAC. & REM. CODE § 74.001(a)(10), (13)). -3- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis 357, 363 (Tex. 2019). The Texas Supreme Court has also held that “[i]f expert medical or health care testimony is necessary to prove or refute a claim againsta physician or health care provider, then the claim is a health care liability claim.” Tex. W. Oaks Hosp. v. Williams, 371 S.W.3d 171, 182 (Tex. 2012). Moreover, when a plaintiff asserts numerous factually related claims, a defendant health care provider need only show that one of the claims falls within the statute. Thus, when a plaintiff asserts a claim based on the same underlying facts as a separate health care liability claim that the plaintiff also asserts, all claims are treated as health are liability claims. PM Mgmt.-Trinity NC, LLC v. Kumets, 404 S.W.3d 550, 552 (Tex. 2013). Claims involving non-disclosure of the nature of the relationship between a physician and a hospital in an effort to cover up deficient health care provided to patients is a health care liability claim under Texas law as they implicate the health care provider's treatment, medical care, and health care of the patient. Christus Health Gulf Coast v. Carswell, 505 S.W.3d 528 (Tex. 2016). In Christus, the court examined whether the hospital fraudulently obtained a widow's consent for a private autopsy constituted a health care liability claim. Id. at 534. The court found that the essence of the claim was that the hospital obtaining the widow’s consent for the autopsy implicated a violation of duties imposed on it due to its status as a licensed health care provider, and violation of these duties by the hospital could result in its licenses being suspended or revoked. Id. at 536. The court observed that the required disclosures brought into issue whether the hospital staff rightfully disclosed autopsy requirements to the widow. Id. at 535. The court explained that improperly obtaining the Plaintiff widow's consent for autopsy alleged departures from the hospital’s duty to comply with Texas Hospital Licensing -4- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis requirements. Id. at 536. Hence the fraudulently obtained permission for a private autopsy constituted a claim of departure of the “professional or administrative service” which was directly related to the provision of health care. Id. at537. Therefore, the Plaintiff widow’s claim was a health care liability claim. In this case, the essence of Plaintiff's allegations is that ERMC failed to provide the information necessary to enable Mrs. Soliz to make treatment decisions. Plaintiff contends that ERMC failed to disclose the nature of the relationship between the physician and hospital in an effort to cover up deficient health care. (See Plaintiff's First Amended Petition.) Plaintiff claims that if she had been fully informed she would not have undergone the surgical procedure at ERMC. Like Christus, Texas law requires the hospital implement policies that ensure the hospital discloses the information necessary to enable patients make a fully informed treatment decision.® This also includes disclosures of the nature of the relationship between the Hospital and physicians.® Violations of the required disclosures by the Hospital may result in its license being suspended or revoked,’ which brings into issue whether the Hospital staff rightfully Texas 25 Tex. Admin. Code §§ 133.42(a)(1); 133.42(a)(1)(D);the right of the patient to the information necessary to enable him or her to make treatment decisions that reflect his or her wishes; a policy on informed decision making shall be adopted, implemented and enforced by the medical staff and governing body and shall be consistent with any legal requirements; Tex. Occ. Code § 102.006. FAILURE TO DISCLOSE: OFFENSE. Violation of Tex. Occ. Code § 102.001-102.054 by the hospital could result in its licenses being suspended or revoked if Hospital has aided, abetted, or permitted the commission of an illegal act. Tex. Health & Safety Code § 241.053(a)(3); see also 25 Tex. Admin. Code §§ 133.121(6), 133.121(1). Id. -5- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis disclosed all the required information to Plaintiff. Whether ERMC’s non-disclosure of Dr. Rodriguez’ professional liability insurance coverage runs afoul of the disclosure requirements must be determined by an expert. Accordingly, Plaintiff's claims are based upon the “professional or administrative” duty to disclose all the necessary information to enable the Plaintiff to make treatment decisions. Like Christus, Plaintiff claims the alleged departures from accepted standards of “professional or administrative services” - that is the non-disclosure of all the information necessary - is for the purpose of concealing health care provider malpractice that results in patient injuries. (See Plaintiff's First Amended Petition 742.) As such, Plaintiff's non-disclosure claims arise in connection to acts or treatments that Plaintiff alleges were improperly performed or furnished, or that should have been performed or furnished, to the patient during her treatment. Accordingly, Plaintiff's fraud claims are health care liability claims. In sum, Plaintiff's fraud claims are health care liability claims because they relate to the patient’s treatment, lack of treatment, or other alleged departures from accepted standards of medical care, health care, safety, and professional or administrative services directly related to health care. ARGUMENT & AUTHORITY I THE LEGISLATURE ENACTED CHAPTER 74 TO DETER FRIVOLOUS LAWSUITS AGAINST PHYSICIANS AND HEALTH CARE PROVIDERS. The Legislature enacted Article 4590i (now codified in Chapter 74) for the purpose of deterring frivolous lawsuits against physicians and health care providers. TEX. REV. Clv. STAT. ANN. -6- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis art. 4590i; American Transitional Care Ctrs. of Tex. Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001) (citing House Comm. ON Clv. Prac., BILL ANALYSIS, Tex. H.B. 971 74th Leg., R.S. (1995)). Filing a frivolous lawsuit is tantamount to litigation misconduct subject to sanction. See TEX. R. Cw. P. 13. The Legislature expressed the following: Texas faces a general environment of excessive litigation. This has resulted in a crisis in access to healthcare as medical providers leave the state or leave the profession altogether. It has also resulted in higher costs to patients and consumers, caused companies to locate outside of Texas, disproportionately burdened Texas courts, and even forced some companies into bankruptcy. C.S.H.B. 4 is a comprehensive civil justice bill intended to address and correct problems that currently impair the fairness and efficiency of our court system. C.S.H.B. 4 addresses many of the root causes of the current situation...[and] provides corrective measures that will bring more balance to the Texas civil justice system, reduce the costs of litigation, and help restore litigation to its proper role in our society. See House Comm. ON Civ. PRAC., BILL ANALYSIS, Tex. H.B. 4, 78th Leg., R.S. (2003). I. CHAPTER 74'S EXPERT REPORT REQUIREMENT Chapter 74 mandates that when a plaintiff asserts a health care liability claim, she must serve each defendant physician and health care provider with an expert report along with the expert's curriculum vitae within 120 days of filing her original petition. See TEX. Civ. PRAC. REM. CobE § 74.351(a)-©. Chapter 74 further provides that a failure to serve a report within 120 days requires that the Court dismiss the case and award attorneys’ fees and costs. /d. at § 74.351(b). As established below, Plaintiff alleges a health care liability claim governed by Chapter 74, yet Plaintiff failed to serve an expert report within 120 days from the date -7- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis Defendant filed the Original Answer (the deadline was 9-4-2018). As a result, Plaintiff's claims against Defendants must be dismissed with prejudice. I. CHAPTER 74 APPLIES TO PLAINTIFF'S CLAIMS AGAINST DEFENDANTS A General Expanse of Chapter 74 Since Chapter 74 was enacted in 2003, the courts have consistently and broadly applied Chapter 74 to a wide array of claims beyond normal medical malpractice claims, including claims arising from the credentialing of physicians and claims by non-patients. See Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 544 (Tex. 2004) (negligent credentialing claim); Yamada v. Friend, 335 S.W.3d 192 (Tex. 2010) (claim for death of child at water park); Buchanan v. O'Donnell, 340 S.W.3d 805 (Tex. App.-San Antonio 2011, no pet.) (claim by motorists against physician who prescribed medication to tortfeasor driver); Wilson N. Jones Mem'l Hosp. v. Ammons, 266 S.W.3d 51 (Tex. App.-Dallas 2008, pet. denied) (claim by wife of patient resulting from assault by psychiatric patient); see also Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392 (Tex. 2011) (claim related to spider bite).® Similar to those cases, Plaintiff's claims against Defendants in this case are governed by Chapter 74. See infra Section IIl(C) for a more thorough explanation of the application of Chapter 74 to non-patients. -8- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis Plaintiff's Claims Against Defendants Satisfy the Elements of a Health Care Liability Claim. 1. The elements of a health care liability claim. Chapter 74 applies to health care liability claims. See Tex. Civ. PRac. & REM. CODE. §§ 74.001, et seq. Chapter 74 defines a health care liability claim 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 or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract. Id. at § 74.001(a)(13). To determine whether a cause of action is a health care liability claim, the courts ‘examine the underlying nature of the claim and are not bound by the form of the pleading.” Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005). Additionally, “[a] health care liability claim cannot be recast as another cause of action to avoid the requirements of Chapter 74.” Heriberto Sedeno, P.A. v. Mijares, 333 S.W.3d 815, 819 (Tex. App.-Houston [1st Dist.] 2010, no pet.). Texas courts find that a claim constitutes a health care liability claim if the following three elements are satisfied: (1) the defendant is a physician or a health care provider; (2) the suit must relate to treatment, lack of treatment, or some other 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 act, omission, or other departure must proximately cause the claimant's injury or death. See Marks v. St. Luke's Episcopal Hosp., 319 -9- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis S.W.3d 658, 662 (Tex. 2010); Saleh v. Hollinger, 335 S.W.3d 368, 374 (Tex. App.-Dallas 2011, pet. denied). As explained herein, Plaintiff's lawsuit against Defendants satisfies all three elements of a health care liability claim. 2. First element — Defendants is a physician and or health care providers. In regard to the first element, Plaintiff asserts claims against physicians and health care providers. There is no dispute that Dr. Rodriguez is an individual licensed to practice medicine in Texas. (See Plaintiff's Original Petition at 78.) As such, she is a physician under the statute. See TEx. Civ. PRAC. & REM. CODE § 74.001(a)(23). A hospital, like Edinburg Regional Medical Center, is a health care provider. A “health care provider” means any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including... a healthcare institution 74.001(a)(12)(A). The term health care provider includes: (i) an officer, director, shareholder, member, partner, manager, owner or affiliate of a health care provider or physician; and (ii) an employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship. Id. at § 74.001(a)(12)(B). Plaintiff bases her lawsuit against McAllen Hospitals L.P. on the allegation it is the operator of general hospital ERMC. (See Plaintiff's Original Petition at 14 and 45.) As such, these Defendants are included within the definition of a health care provider. Hence, the first element is satisfied. -10- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis 3. Second element - Plaintiff's claims relate to alleged departures from accepted standards of professional or administrative services and safety. In regard to the second element, Plaintiff's suit relates to alleged departures from accepted standards of professional or administrative services directly related to health care and alleged departures from accepted standards of safety. (a.) Professional Administrative Service As addressed inthe Summary of Argument, Chapter 74 also applies to this case because Plaintiff's claims relate to “professional or administrative services.” (b.) Safety Plaintiff's claims are also based on alleged departures from accepted standards of safety which also satisfies the second element of a health care liability claim. When a claim is based on a defendant health care provider's duties to provide safe patient care, the claim constitutes a health care liability claim. See Diversicare, 185 S.W.3d at 855; Oak Park, Inc. v. Harrison, 206 S.W.3d 133, 138-39 (Tex. App.-Eastland 2006, no pet.); Dunn v. Clairmont Tyler, LP, 271 S.W.3d 867, 871-72 (Tex. App.-Tyler 2008, no pet.). In fact, such a claim constitutes a health care liability claim even when the claimant is not a patient of the health care provider. See Dunn, 271 S.W.3d at 871-72. In Dunn v. Clairmont Tyler, LP, a patient of Pinecrest Nursing Home was sexually assaulted by an employee, Wheeler. Id. at 868-69. The patient’s mother filed suit against Pinecrest. /d. at 869. She also filed suit against two other nursing home institutions, Clairmont and Colonial, which never treated her mother. /d. Instead, these two institutions previously -ll- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis terminated Wheeler for inappropriate conduct and poor judgment, but they failed to report these incidents of abuse and neglect as required by Texas statute. Id. As a result, Wheeler was allowed to work at Pinecrest where he sexually assaulted the resident. /d. Clairmont and Colonial alleged the plaintiff's claims were health care liability claims because the essence of the plaintiff's claim was that these institutions breached the applicable standard of safety in relation to patient care. Id. The trial court agreed even though the individual in question was never a patient with Clairmont or Colonial. /d. The Tyler court of appeals agreed with the trial court. The Dunn court acknowledged that the legislature's inclusion of breaches of accepted standards of safety within the scope of Chapter 74 expanded the scope of the statute beyond what it would be if it covered only medical and health care. Id. at 871 (citing Diversicare, 185 S.W.3d at 855). As the Supreme Court recognized in Diversicare General Partner, Inc. v. Rubio, professional supervision, monitoring, and protection of the patient population necessarily implicates the accepted standards of safety under a health care liability claim. See id. Thus, part of a health care provider's duty in providing care to its patients is to protect their right to receive care in a safe setting. Id. In order to ensure the safety of nursing home patients, a nursing home had an administrative duty to report abuse or neglect by one of its employees. Id. at 872. The Dunn court found that this duty to report was an administrative matter inseparable from a health care provider's duty to ensure patient safety. Id. As a result, this duty was an inseparable part of the rendition of health care services bringing the plaintiff's claim within the definition of a health -12- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis care liability claim, despite plaintiff never receiving treatment from Clairmont or Colonial. Dunn is applicable to this case. Similar to Dunn, Plaintiff alleges Defendants failed to abide by administrative duties imposed by state statutes resulting in injury to Plaintiff.° Also, like Dunn, the statutes pertaining to patient rights are inseparable from Defendant's duty to ensure patient safety. As with Dunn, Plaintiffs claims against Defendants relate to administrative matters pertaining to and directly affecting patient safety. Accordingly, Plaintiff's claims are based on alleged departures of accepted standards of patient safety thereby satisfying the second element of a health care liability claim. Lastly, expert testimony is required to aid the jurors in understating the patient right process. Hence, like the plaintiffs in Dunn Plaintiff asserts a health care liability claim governed by Chapter 74 and its expert reporting requirement. For these reasons, Plaintiff alleges departures from both accepted standards of professional or administrative services and accepted standards of safety. Hence, Plaintiff's claims satisfy the second element of a health care liability claim. 4 Third element — Plaintiff alleges injury. The third requirement for a health care liability claim is that the defendant's act, omission or other departure proximately caused the claimant's “injury.” In this case, Plaintiff claims she suffered “pecuniary damages,” equal to the difference between any future award for damages and Dr. Rodriguez’ available insurance coverage. Admittedly, these alleged 9 As noted above, Plaintiff's claims also relate to the Patient Rights standards. -13- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis damages stem from an alleged “injury” thereby satisfying the third element of a health care liability claim. Chapter 74 does not require a personal injury. See TTHR, 338 S.W.3d at 109-11. In TTHR, Coffman received treatment from Presbyterian Hospital, and during this treatment, she submitted a urine sample. Id. at 106. Presbyterian submitted the results of the urine test to Coffman's university, which then suspended Coffman and removed her from student housing. Id. Coffman filed suit against Presbyterian and the university but failed to serve a Chapter 74 expert report. /d. Presbyterian moved to dismiss the lawsuit, but the trial court denied the motion. /d. On appeal, the Fort Worth court of appeals overruled the trial court's ruling. /d. It determined that Coffman's claims related to “professional or administrative services.” Id. at 108-09. In particular, Coffman’s allegations related to a statute prohibiting a hospital from disclosing confidential patient information, a violation of which could lead to the loss of the hospital's license. Id. at 108. In response, Coffman argued her claim was not a health care liability claim because she was not seeking personal injuries related to health care. Id. at 109-10. Rather, she was seeking damages unrelated to bodily injury. /d. Coffman argued the definition ofa health care liability claim only applied to claims for personal injuries. Id. However, the TTHR court refused to read "personal" into the definition of a health care liability claim, especially considering the fact that the very definition of a health care liability claim states a claim is considered a health care liability claim regardless of “whether the claimant's claim or cause of action sounds in tort or contract.” /d. at 110 (citing Tex. Civ. PRAC. & REM. CODE § -14- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis 74.001(a)(13), emphasis added). Additionally, many courts in Texas have found that nonphysical injuries constitute health care liability claims. Id. at 111.*° In conclusion, the court found that a plaintiff need not assert a claim for bodily or physical injury in order for the claim to qualify as a health care liability claim. See TTHR, 338 S.W.3d at 111. The court reversed the trial court’s decision and rendered judgment in favor of Presbyterian due to the claimant's failure to serve an expert report. In this case, there is even more basis for finding an injury covered by Chapter 74 than in TTHR. Here, Plaintiff alleges both physical and non-physical injuries. Therefore, even if the Court were to read “physical” into the term injury (which is not supported by the explicit language of Chapter 74 or the cases), this claim for physical injury is sufficient to invoke Chapter 74 for all of Plaintiff's claims against Defendants. As the Texas Supreme Court recently recognized in Yamada v. Friend, if any portion of a plaintiff's claim is governed by Chapter 74, the entire claim is governed by Chapter 74. See 335 S.W.3d at 197-98. The Court will not allow for piecemeal litigation of these types of claims. Id. Regardless, as the court recognized in TTHR, a “physical” injury is not required. Plaintiff claims she suffered damages unrelated to 10 See Fudge, 308 S.W.3d at 460) (libel); Sloan v. Farmer, 217 S.W.3d 763, 768 (Tex. App.-Dallas 2007, pet. denied) (employment termination); Institute for Women's Health, P.L.L.C. v. Imad, No. 04-05-00555-CV, 2006 WL 334013, *2 (Tex. App.-San Antonio Feb. 15, 2006, no pet.) (mental anguish); MacPete v. Bolomey, 185 S.W.3d 580, 582, (Tex. App.-Dallas 2006, no pet.) (CPS investigations, criminal proceedings, and a child custody case); Groomes v. USH of Timberlawn, Inc., 170 S.W.3d 802, 804 (Tex. App.-Dallas 2005, no pet.) (false imprisonment); Smalling v. Gardner, 203 S.W.3d 354, 365 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (kidnapping, false imprisonment, child abduction, fraud, breach of contract, deceptive trade practices, and conspiracy); see also Murphy v. Russell, 167 S.W.3d 835, 837 (Tex. 2005) (sedation contrary to instructions); Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex. 1995) (ill-fitting dentures); Armstrong v. Robinsons, No. 14-08-01077-CV, 2010 WL 4817100, at *2 (Tex. App.-Houston [14th Dist.] Nov. 23, 2010, no pet.) (ill-fitting dentures). -15- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis physical harm as a result of Defendants’ alleged acts and/or omissions. These types of damages are similar to the type of damages alleged in TTHR, which the court held were within the definition of a health care liability claim. Thus, Plaintiff alleges an injury covered by Chapter 74. Moreover, several courts outside the context of Chapter 74 have defined injury to include the types of damages alleged by Plaintiff in this case. Injury is not defined by Chapter 74. When a legal term ora term of artis not defined by Chapter 74, Chapter 74 states that the term “shall have such meaning as is consistent with the common law.” See TEX. Civ. PRAC. & REM. CODE § 74.001(b). At common law, when aterm is not defined in a statute, the courts apply its ordinary meaning. See TEX. Gov't CoDE § 312.002; City of San Antonio v. Hartman, 201 S.W.3d 667, 672 n.19 (Tex. 2006). In regard to the term “injury,” the courts have defined injury as: “damage or hurt done to or suffered by a person or thing,” Cavitt v. Jetton's Greenway Plaza Cafeteria, 563 S.W.2d 319, 322 (Tex. Civ. App.-Houston 1978, no writ) (citing Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770 (1945)); "hurt, damage, or loss sustained," C.H. v. Dep't of Family & Protective Servs., No. 01-11-00385-CV, 2012 WL 586972 (Tex. App.-Houston [1st Dist.] Feb. 23, 2012, no pet. h.) (citing WeBsTER's NEW COLLEGIATE DICTIONARY (1981)); Samsung Elecs. Am., Inc. v. Fed. Ins. Co., 202 S.W.3d 372, 379 (Tex. App.-Dallas 2006), aff'd sub nom. Fed. Ins. Co. v. Samsung Elecs. Am., 268 S.W.3d 506 (Tex. 2008) (citing same); or "any wrong or damage done to another, either in his person, rights, reputation or property," Chilton Corp. v. Moore, 508 S.W.2d 679, 682 (Tex. Civ. App.-Fort Worth 1974, no writ) (citing BLACK’s Law DICTIONARY (3d)); Hawkins v. -16- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis Schroeter, 212 S.W.2d 843, 846 (Tex. Civ. App.-San Antonio 1948, no writ) (same). Plaintiff claims she suffered damage and loss as a result of Defendant’s alleged acts and/or omissions. Therefore, Plaintiff's claim for damages falls within the common law definition of injury. Accordingly, Plaintiff's claim satisfies the third element of a health care liability claim. As a result, Plaintiff's claims against Defendants satisfy all three elements of a health care liability claim. Since Plaintiff asserts a health care liability claim, Chapter 74's expert reporting requirement applies to Plaintiff. As indicated above, Plaintiff failed to serve any Chapter 74 expert report, and thus, dismissal is mandatory. WHEREFORE, PREMISES CONSIDERED, Defendant, McALLEN HOSPITALS, L.P. d/b/a EDINBURG REGIONAL MEDICAL CENTER, respectfully requests that this Court find that Plaintiff's Texas Common Law Fraud be dismissed as this claim falls squarely within the purview of health care. Respectfully submitted, GONZALEZ CASTILLO MOYA, LLP By: /s/Edward J. Castillo Steven M. Gonzalez SBN: 08131900 Edward J. Castillo SBN: 24040658 Ezequiel “Zeke” Moya, Jr. SBN: 24092865 Eduardo Moya SBN: 24105674 1317 E. Quebec Ave. McAllen, Texas 78503. (956) 618-0115 -17- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis FAX: (956) 618-0445 Email: law@valleyfirm.com ATTORNEYS FOR DEFENDANTS, McALLEN HOSPITAL, L.P. D/B/A EDINBURG REGIONAL MEDICAL CENTER, GLORIA V. RAMIREZ, R.N. and OLGA L. RAMIREZ, C.N.A. CERTIFICATE OF SERVICE | hereby certify that a true and correct copy of the above and foregoing document has been forwarded to all counsel of record via electronic filing service on this 11" day of August, 2020. /s/Edward J. Castillo Edward J. Castillo F:\data\WPDOCS\S\Soliz, R. v. ERMC 66.031\brief-08112020.km.wpd -18- Electronically Filed 8/11/2020 5:00 PM Hidalgo County District Clerks Reviewed By: Elaine Solis 25 TAC § 133.42 This document reflects all regulations in effect as of July 31, 2020 TX - Texas Administrative Code > TITLE 25, HEALTH SERVICES > PART I. DEPARTMENT OF STATE HEALTH SERVICES > CHAPTER 133. HOSPITAL LICENSING > SUBCHAPTER C. OPERATIONAL REQUIREMENTS § 133.42. Patient Rights (a)Patient rights requirements for all hospitals. (1)A hospital shall adopt, implement, and enforce a policy to ensure patients' rights, The written policy shall include: (A)the right of the patient to the hospital's reasonable response to his or her requests and needs for treatment or service, within the hospital's capacity, its stated mission, and applicable law and regulation; (B)the right of the patient to considerate and respectful care: (ithe care of the patient includes consideration of the psychosocial, spiritual, and cultural variables that influence the perceptions of illness; (ii)the care of the dying patient optimizes the comfort and dignity of the patient through: (Dtreating primary and secondary symptoms that respond to treatment as desired by the patient or surrogate decision maker; (effectively managing pain; and (Dacknowledging the psychosocial and spiritual concerns of the patient and the family regarding dying and the expression of grief by the patient and family; (C)the right of the patient, in collaboration with his or her physician, to make decisions involving his or her health care, to include the following: (ithe right of the patient to accept medical care or to refuse treatment to the extent permitted by law and to be informed of the medical consequences of such refusal; and (ii)the right of the patient to formulate advance directives and to appoint a surrogate to make health care decisions on his or her behalf to the extent permitted by law. Advance directives are written instructions recognized under state law relating to the provision of health care when individuals are unable to communicate their wishes regarding medical treatment. The advance directive may be a written document authorizing an agent or surrogate to make decisions on an individual's behalf (a medical power of attorney for health care), a written or verbal statement (a living will), or some other form of instruction recognized under state law specifically addressing the provisions of health care; Electronically Filed 8/11/2020 5:00 PM 25 TAC § 133.42 Hidalgo C Reviewer dae y Dijain’ ictSolisClerks (Da hospital shall have in place a mechanism to ascertain the existence of, and, as appropriate, assist in the development of advance directives at the time of the patient's admission; (UD the provision of care shall not be conditioned on the existence of an advance directive; and (Dan advance directive(s) shall be in the patient's medical record and shall be reviewed periodically with the patient or surrogate decision maker if the patient has executed an advance directive; (D)the right of the patient to the information necessary to enable him or her to make treatment decisions that reflect his or her wishes; a policy on informed decision making shall be adopted, implemented and enforced by th