# Opinion

> Texas Supreme Court · October 14, 2005

URL: https://www.frixlaw.com/law-library/cases/2833452

## Case

- **Full name:** Diversicare General Partner, Inc., Diversicare Leasing Corporation, Advocat, Inc., and Texas Diversicare Limited Partnership D/B/A Goliad Manor v. Maria G. Rubio and Mary Holcomb as Next Friend of Maria G. Rubio
- **Court:** Texas Supreme Court
- **Decided:** October 14, 2005
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2833452

## How later opinions describe it (automated extraction)

- noting that it is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”
- holding that “[w]here determining the standard of care requires applying distinctively medical knowledge or principles, however basic, the plaintiff must comply with [Illinois’s malpractice statute]”
- noting that a consistent statutory interpretation should be given great weight when a legislative body has not merely silently acquiesced to that interpretation, but has actually “ratified it with positive legislation”

## Opinion text

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IN
THE SUPREME COURT OF TEXAS
════════════
No. 02-0849
════════════
Diversicare General Partner, Inc., Diversicare Leasing Corporation, Advocat , Inc., and Texas Diversicare Limited Partnership d/b/a Goliad Manor,
Petitioners,
v .
Maria G. Rubio and Mary
Holcomb as Next Friend of Maria G. Rubio, Respondents
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Thirteenth District of
Texas
════════════════════════════════════════════════════
Argued September 24, 2003
Justice O'Neill ,
joined by Justice Brister and Justice Green , dissenting.
The
facts of this case are not in dispute: in 1995, an elderly
Alzheimer’s patient was sexually assaulted by another patient while both
were under the full-time care of a nursing home. The only question before us is
whether the injured patient’s claim against the nursing home is more properly characterized as an ordinary negligence
claim or a health care liability claim. In this case, the pleadings themselves
did not allege facts establishing which standard should govern the case. During
trial court proceedings, plaintiff’s counsel suggested that the claim derived,
at least in part, from the nursing home’s alleged
failure to properly staff the facility. To the extent that it does, I agree that
the statute governing health care liability claims applies. I respectfully
dissent, however, because the petition, liberally construed, alleges a broader
claim for premises liability.
I
The
Legislature enacted the Medical Liability and Insurance Improvement Act (MLIIA)
in order to reduce the cost of medical malpractice insurance and thereby
increase patients’ access to health care. Act of May 30, 1977, 65th Leg., R.S.,
ch . 817, § 1.02(b )( 1)-(5),
1977 Tex. Gen. Laws 2039 , 2040 (former Tex. Rev. Civ . Stat. art. 4590i, §
1.02(b )( 1)-(5)), repealed by Act of June 2,
2003, 78th Leg., R.S., ch . 204, § 10.09, 2003 Tex.
Gen. Laws 847 , 884. To accomplish these goals, the MLIIA mandates that
plaintiffs follow certain procedures when bringing health care liability claims
against physicians or other health care providers — for example, claimants must
bring suit within two years, and they must file an
expert report substantiating their claims within 180 days of filing suit.
Id.
§§ 10.01, 13.01. The MLIIA also contains limitations on the amount of
damages recoverable. Id. §
11.02.
By
its terms, the MLIIA imposes these restrictions on any “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” that causes injury to a patient. Id. § 1.03(a )( 4). We have recognized that the heightened requirements
applied to health care liability claims may sometimes create an incentive for
litigants to re-cast a health care liability claim as another type of claim, and
we have therefore held that courts must look beyond the pleadings to examine the
nature of the underlying action. MacGregor Med. Ass’n v. Campbell , 985
S.W.2d 38, 40 (Tex. 1998).
Analyzing
the underlying action is not always an easy task, but it is
one that courts must undertake with great care ; the Legislature’s purpose
in enacting the MLIIA may be thwarted if courts construe the MLIIA’s definition of “health care liability claim” either
too broadly or too narrowly. An overly narrow interpretation would render the
statute ineffective because it would exclude too many suits from the statute’s
reach and thus hinder the Legislature’s goal of reducing malpractice insurance
rates.
Somewhat
counterintuitively , however, an overly broad
interpretation could have the same result. Health care providers, like other
insured professionals, generally carry two insurance policies: a general
liability policy that covers ordinary negligence, and a malpractice policy “to
cover obligations arising from the rendering of professional services.” Cochran v. B.J. Servs .
Co. USA , 302 F.3d 499, 502 ( 5th Cir. 2002); see
also Utica Nat’l Ins. Co. v. Am. Indem . Co. , 141 S.W.3d 198, 201
(Tex.
2004). If a court determines that a plaintiff’s pleadings
allege a breach of the applicable standard of care for health care providers,
then the defense and indemnification expenses will most likely fall under the
malpractice policy rather than the general insurance policy. See Tex. Ins. Code art. 21.49–3, §
2(1)(defining “medical liability insurance” as applying to claims “arising out
of the death or injury of any person as the result of negligence in rendering or
the failure to render professional service by a health care provider”). Insurers
therefore face their own litigation incentives: malpractice insurers benefit
when a claim is characterized as ordinary negligence,
and general-liability insurers benefit when a claim is characterized as a health
care liability claim. See Utica Nat’l Ins. Co. , 141 S.W.3d at 201
(addressing a claim in which the general-liability insurer asserted that a
patient’s injuries arose from the “rendering or failure to render [a]
professional service”; the patient contracted Hepatitis C from an injection of
contaminated drugs it failed to adequately secure); see also Harris v.
Sternberg , 819 So. 2d 1134, 1137 (La. Ct. App. 2002) (addressing a claim in
which the malpractice insurer asserted that the patient’s injuries arose from
ordinary negligence; the patient slipped and fell from the doctor’s scale).
Consequently, the adoption of an overly broad interpretation of “health care
liability claim” could also hinder the Legislature’s goal of ensuring that
medical malpractice insurance is available at a reasonable cost: if courts sweep
even ordinary negligence claims into the ambit of the MLIIA, then malpractice
insurers may end up covering more of those claims. Malpractice insurance rates
would then continue to rise as those insurance policies
are required to cover claims that were not contemplated under the insurance
contracts.
This
Court has recognized the importance of correctly classifying these claims and
has developed a framework for analysis in these cases. If a claim arises from an
action that is an “inseparable part of the rendition of medical services,” then
the MLIIA applies to the claim. Walden v. Jeffery , 907
S.W.2d 446, 448 (Tex. 1995). Thus, if a plaintiff, in
order to “successfully prove th [e] claim, . . . must prove a breach of the applicable standard
of care for health care providers,” then the action arises under the MLIIA —
regardless of how the litigants choose to characterize it. MacGregor Med. Ass’n , 985 S.W.2d at 40-41
(holding that a claim that a health care provider failed to properly diagnose
and treat a patient was a health care liability claim even though the plaintiff
attempted to characterize it as a DTPA claim arising from the provider’s alleged
misrepresentation that it would provide “qualified personnel and resources,” and
“the best health services possible”). However, if the claim is not based upon such a breach, then it is not a health care
liability claim. Sorokolit v. Rhodes ,
889 S.W.2d 239, 242 (Tex. 1994) (holding that a claim that a physician
“knowingly breached his express warranty of a particular result” was not a
health care liability claim because it did not require “a determination of
whether a physician failed to meet the standard of medical care”).
Courts
in other states have applied a similar framework. First, they have tended to
construe state malpractice statutes as applying only to breaches of the
professional standard of care. See , e.g. , Dorris v. Detroit Osteopathic Hosp. Corp. , 594
N.W.2d 455, 465 (Mich. 1999) (holding that Michigan’s medical malpractice
statute would apply to a claim raising “questions of professional medical
management”); Woodard v. Krans , 600 N.E.2d 477,
488 (Ill. App. Ct. 1992) (holding that “[w]here determining the standard of care
requires applying distinctively medical knowledge or principles, however basic,
the plaintiff must comply with [Illinois’s malpractice statute]”).
Second, they have held that claims not directly tied to the provision of health
care should be governed by an ordinary negligence
standard. See Cannon v. McKen , 459 A.2d 196, 201 (Md. 1983) (“Those claims for
damages arising from a professional’s failure to exercise due care in
non-professional situations such as premises liability, slander, assault, etc.,
were not intended to be covered under [Maryland’s malpractice act] and should
proceed in the usual tort claim manner.”); see also Dent v. Memorial
Hosp. , 509 S.E.2d 908, 910 (Ga. 1998) (holding that negligence in the
decision of “[w] hether to use certain equipment at
all, what type of equipment to use, and whether certain equipment should be
available in a specific case” would amount to malpractice, but that “the failure
to operate equipment correctly or in accordance with a doctor’s instructions or
to keep certain equipment on hand is only ordinary, not professional,
negligence”).
In
this case, Ms. Rubio’s pleadings do not clearly establish whether all of her
claims pertain to breach of the “applicable standard of care for health care
providers,” MacGregor Med. Ass’n , 985 S.W.2d at 41 , or whether some of the claims
assert a breach only of an ordinary standard of care. Several
of her allegations could pertain either to general negligence or to
professional malpractice; for example, she alleges that Diversicare failed to “protect Ms. Rubio from repeated acts
of sexual abuse and assault by others . . . .” Ms. Rubio’s pleadings do not
specify what particular acts or omissions led to the assaults. Sadly, it has been recognized that “nursing-home residents and hospital
patients have been the victims of assault not only by employees but also by
others, even persons wandering in off the street.” Regions
Bank & Trust v. Stone
County Skilled Nursing Facility,
Inc. , 49 S.W.3d 107, 113 (Ark. 2001). Consequently, an assault in
a residential care facility may arise from any number of negligent acts: failure
to secure the premises, failure to adequately screen
personnel, failure to adequately restrain mentally impaired patients, or failure
to provide adequate nursing services. See , e.g. , id. ;
see also Reaux v. Our Lady of Lourdes Hosp. , 492 So.
2d 233 (La. Ct. App. 1986), writ denied , 496 So. 2d 333 (La. 1986) (holding that allegations of assault, rape, and
battery by a hospital intruder did not fall within Louisiana’s Medical
Malpractice Act) ; Eric M. Carlson, Long-Term Care Advocacy
§ 10.09 (2002). Thus, an allegation that a nursing home failed to protect a
patient from assault can sound either in medical malpractice or in ordinary
negligence.
A
To
the extent that Ms. Rubio’s causes of action depend on an underlying claim of
understaffing, I agree that they are governed by the
MLIIA. Ms. Rubio’s attorneys suggested in the trial court that her claims
related to the nursing home’s staffing procedures, stating that the “underlying
cause” of the assault was that the nursing home was “dangerously understaffed.”
In this Court, the attorneys emphasized at oral argument that the sexual-assault
claim was “inextricably intertwined with what’s necessary for an Alzheimer
patient-to-staff ratio” and agreed that their legal argument was based on the premise that “there is no medical judgment
in determining how much staff is needed for those patients more in need of
supervision.”
This
premise, however, is incorrect; in fact, a nursing home is
required by law to use medical judgment in its staffing decisions. 40 Tex. Admin. Code § 19.1001. State
regulations require that a nursing home offer “sufficient staff to provide
nursing and related services to attain or maintain the highest practicable
physical, mental, and psychosocial well-being of each resident, as determined by
resident assessments and individual plans of care.” Id. The
“resident assessment” requires the facility to analyze, among other things, the
resident’s “physical functioning and structural problems,” “psychosocial
well-being,” and “disease diagnoses and health conditions.” Id. §
19.801. The “plan of care” must be prepared by “an interdisciplinary team
that includes the attending physician, a registered nurse with responsibility
for the resident, and other appropriate staff” and must include “measurable
short-term and long-term objectives and timetables to meet a resident’s medical,
nursing, and mental and psychosocial needs that are identified in the
comprehensive assessment.” Id. §
19.802. Because a nursing home is required to consider the physical and
mental-health conditions of each of its residents in determining its staffing
needs, these decisions simply cannot be made without
employing medical judgment.
B
Not
all of the claims pleaded by Ms. Rubio necessarily related to the allegations of
understaffing, however. Instead, her pleading also asserted that the facility
failed to use ordinary care to protect her from a known danger; specifically,
she pleaded that “[d] efendants were well aware” of the alleged assailant’s
sexual-assault history and that the facility failed “to take preventive measures
to avert any reoccurrence.” This allegation, broadly construed, asserts a
premises liability claim; it does not necessarily require the exercise of
medical judgment, but could instead be read to support
a claim that the facility failed to use ordinary care to secure the
premises.
Ms.
Rubio’s premises liability claim is similar to the claims in several other cases
decided by our courts of appeals. See Healthcare
Ctrs . of Tex., Inc. v. Rigby , 97 S.W.3d 610 ,
616–17 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); Zuniga v.
Healthcare San Antonio, Inc. , 94 S.W.3d 778, 780 (Tex. App.—San Antonio
2002, no pet.); Bush v. Green Oaks Operator, Inc. , 39 S.W.3d 669, 670
(Tex. App.—Dallas 2001, no pet.); Sisters of Charity of the Incarnate Word,
Houston, Tex. v. Gobert , 992 S.W.2d 25, 27 (Tex.
App.—Houston [1st Dist.] 1997, no pet.). The Court today overrules these
cases “to the extent they hold that the patients’ claims for assault by other
patients are not health care liability claims.” ___ S.W.3d
___, ___. I would not overrule these cases; each of the plaintiffs in
these cases assert claims that extend beyond claims for
“inadequate care and supervision,” just as Ms. Rubio did in this case. In
Rigby , for example, there was evidence that a nursing home administrator
induced a nursing home to accept a sexually violent patient by misrepresenting
the scope of the patient’s prior acts. Rigby , 97 S.W.3d
at 615 . Deliberate misrepresentation does not involve medical judgment.
Furthermore, there was evidence that the facility in that case
knew the attacker had a history of sexual violence and yet failed to take even
ordinary safety precautions; in that case, I believe the court of appeals
correctly concluded that the suit was based on “simple negligence in failing to
take adequate safety measures to protect its residents from a known sexual
deviant.” Id.
at 622.
Nor
would I overrule the other cases. In Bush , a patient was assaulted by another patient while under the care of a
hospital facility; the plaintiff claimed that the facility failed to warn her of
a known danger. Bush , 39 S.W.3d at 670 -71 . I
would not hold that a duty to warn of a known danger on the premises depends on
medical judgment or skill. In Zuniga , a case with similar facts, the
plaintiff also brought a premises liability claim that was not limited to
questions relating to proper treatment but instead asserted that the facility
“did not provide her a safe environment.” Zuniga , 94
S.W.3d at 782 . Finally, in Gobert , the
court neither mentioned the MLIIA nor considered whether it would apply to the
case. Gobert , 992 S.W.2d
25 .
Because
the pleadings in this case did not allege facts establishing whether Ms. Rubio’s
claims resulted from an alleged failure to provide adequate patient care or
resulted from an alleged failure to secure the premises, the pleadings did not
establish whether the claim was a health care liability claim or whether it
sounded in ordinary negligence. When a plaintiff’s
pleading does not give “fair and adequate notice of the facts upon which the
pleader bases his claim,” then the defendant may file special exceptions to
obtain a more definite statement of the plaintiff’s claim. Roark v. Allen , 633 S.W.2d 804, 810 (Tex. 1982). Here,
however, the nursing home did not file special exceptions. We have recognized
that in the absence of such special exceptions, the petition must be “construed
liberally in favor of the pleader” and that the court “should uphold the
petition as to a cause of action that may be reasonably inferred from what is
specifically stated . . . .” Boyles v. Kerr , 855 S.W.2d
593, 601 (Tex.
1993). Consequently, I would hold that the petition, construed liberally
in favor of Ms. Rubio, stated a cause of action for premises liability. See
Charrin v. Methodist Hospital , 432 S.W.2d 572, 574
(Tex. Civ . App.—Houston [1st Dist.] 1968, no writ) (“A
patient accepted by a hospital enjoys the status of an invitee or business
visitor entitled to the exercise of ordinary care by the hospital to keep its
premises in reasonably safe condition for the expected use.”).
II
I
also note my disagreement with the suggestion in Chief Justice Jefferson ’s concurrence
that a “safety” claim under the MLIIA need not be
related to the provision of health care. Instead, I agree with the Court
that the MLIIA encompasses claims for a “departure from an accepted standard of
. . . safety” when those claims are directly related to the provision of health
care, including claims based on “professional supervision, monitoring, and
protection of . . . patient[s].” ___ S.W.3d at ___.
The
statute in effect at the time this case arose provided that claims “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” would be governed by the MLIIA. Act of May 30, 1977, 65th Leg., R.S.,
ch . 817, § 1.03(a )( 4), 1977
Tex. Gen. Laws 2039 , 2041 (former Tex.
Rev. Civ . Stat. art. 4590i, §
1.03(a )( 4)) (repealed 2003). The Legislature did not
provide that the statute governs all claims against a
health care provider or physician; instead, it limited the statute’s scope to
claims “for treatment, lack of treatment, or other claimed departure from
accepted standards of medical care or health care or safety.” Id.
Chief Justice Jefferson suggests that
the term “safety” is broad enough to encompass a premises liability claim
unrelated to the provision of health care. ___ S.W.3d at
___. I disagree that the term can be read so
broadly; instead, it must be read in the context of the MLIIA, which was enacted
to address concerns about health care costs. Tex. Gov’t Code § 311.011 (providing that
“[w] ords and phrases shall be read in context ”
as well as “construed according to the rules of grammar and common usage”)
(emphasis added); see also Davis v. Michigan Dept. of Treasury , 489 U.S.
803, 809 (1989) (noting that it is a “fundamental canon of statutory
construction that the words of a statute must be read in their context and with
a view to their place in the overall statutory
scheme”).
If
we follow the dictates of the Code Construction Act and read the term “safety”
in the context of the statute as a whole, then the natural conclusion is that
“safety” in this statute means safety as it relates to health care . This
is the conclusion that has been reached by each of the
courts of appeals considering the issue; these courts have then analyzed whether
professional judgment is required to determine the proper standard of safety or
whether only a general duty of care is implicated. See
Marks v. St. Luke’s Episcopal Hosp. , No. 01-04-00228-CV, 2005 Tex. App.
LEXIS 1694 , at *8 (Tex. App. Houston [1st Dist.] 2005, pet. filed) (noting that,
in a case where a patient was injured by a broken hospital bed, “[t]he
underlying nature of his allegations is of an unsafe condition created by an
item of furniture,” and concluding that “[s] uch a
complaint relates to premises liability, not health care liability, and is
governed by the standard of ordinary negligence”); Bush , 39 S.W.3d at 673
(“Although the Act includes breaches of accepted standards of safety within the
definition of a health care liability claim, the term ‘safety’ cannot be read in
isolation. The breach must be of an accepted standard of safety within
the health care industry.”) ( citation omitted);
Rogers v. Crossroads Nursing Serv ., Inc. , 13
S.W.3d 417, 419 (Tex. App.—Corpus Christi 1999, no pet.) ( noting that “[o] ne of the rules of
statutory construction is to construe the entire Act, reading each part of it so
that one part does not conflict with another and to harmonize its various
provisions,” and concluding that “the only reasonable interpretation is that a
departure from accepted standards of safety means safety in the diagnosis, care
or treatment”).
The
Legislature itself has recently indicated that it agrees with our appellate
courts’ consistent judicial interpretation of the word “safety” in this statute.
When it recently amended the definition of “health care liability claim,” the
Legislature clarified that claims falling under the statute must relate to the
actual provision of health care. Tex.
Civ . Prac . & Rem . Code § 74.001(a )( 13). The statute now provides that all claims “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 ” are included in the definition
of health care liability claim. Id . (emphasis added). Although I
believe that the plain language of the former statute
makes it clear that “safety” was intended to be related to health care, this
amendment removes any doubt. See Alexander v.
Alexandria , 9 U.S. 1, 7-8 (1809) (concluding that the subsequent
amendments of a legislative body may “show the sense in which the legislature
employed doubtful phrases previously used,” and that courts should accept this
“legislative sense of its own language” as “a direction to courts in expounding
the provisions of the law”); see also Red Lion Broadcasting Co. v. FCC ,
395 U.S. 367, 381-82 (1969) (noting that a consistent statutory interpretation
should be given great weight when a legislative body has not merely silently
acquiesced to that interpretation, but has actually “ratified it with positive
legislation”). The Legislature has now enacted positive legislation
ratifying the courts of appeals’ construction of the term “safety,” and I
believe we should interpret the term in accordance with this construction.
III
I
agree that the MLIIA would govern a claim that the nursing home failed to properly staff the facility. Because a nursing home is
required to consider the physical and mental-health conditions of each of its
residents in determining its staffing needs, staffing decisions cannot be made without employing medical judgment. Similarly,
any safety claim arising from such staffing decisions would be “directly related
to health care” and therefore also covered under the
MLIIA. However, because the plaintiff’s petition also included an allegation
that the facility failed to use ordinary care to protect her from a known sexual
offender, it alleged a broader premises liability claim. I therefore
respectfully dissent.
__________________________________________
Harriet O’Neill
Justice
OPINION DELIVERED: October 14,
2005

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2833452. Public record. Not legal advice.