Irving W. Marks v. St. Luke's Episcopal Hospital

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 07-0783

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Irving W. Marks,

Petitioner,

v.

St. Luke’s Episcopal Hospital,

Respondent

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the First District of

Texas

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Argued September

11, 2008

Justice Medina delivered the opinion of

the Court, in which Chief Justice

Jefferson , Justice O’Neill ,

Justice Brister , and Justice Green joined.

Chief Justice Jefferson

filed a concurring opinion.

Justice Hecht filed a

dissenting opinion.

Justice Wainwright filed a

dissenting opinion.

Justice Johnson filed a

dissenting opinion, in which Justice

Hecht , Justice Wainwright ,

and Justice Willett joined.

In this case we must decide whether a hospital patient’s fall, allegedly

caused by a negligently maintained hospital bed, is a health care liability

claim under article 4590i of the Revised Civil Statutes. 1 Article 4590i, also known as the Medical

Liability and Insurance Improvement Act, provides that health care liability

claims, not accompanied by an expert report, may be dismissed with prejudice 180

days after filing, although a grace period is available under limited

circumstances. The trial court concluded that the hospital bed claim here was a

health care liability claim, which it then dismissed because of the patient’s

failure to file a timely expert report. The trial court also denied the

patient’s request for a grace period. The court of appeals initially disagreed

with the trial court, concluding that the patient’s claim was not a health care

liability claim. See Marks v. St. Luke’s Episcopal

Hosp. , 177 S.W.3d 255, 260 (Tex. App.–Houston [1st Dist.] 2005),

vacated , 193 S.W.3d 575 (Tex. 2006). Following our remand of the

case, however, the court affirmed the trial court’s judgment. 229 S.W.3d 396 . One justice dissented, arguing that the

hospital bed claim was in the nature of a premises liability claim rather than a

health care liability claim. Id . at 403 (Jennings, J.,

dissenting in part). We agree with the dissenting justice and accordingly

reverse the court of appeals’ judgment and remand the case to the trial

court.

I

Irving Marks fell and injured himself during his recuperation from back

surgery at St. Luke’s Hospital. The fall occurred when Marks, while sitting on

his hospital bed, attempted to use the bed’s footboard to push himself up to a

standing position. Unfortunately, the footboard came loose, causing Marks to

fall. Marks sued the Hospital, alleging several acts of negligence, including:

(1) failing to train and supervise the nursing staff properly, (2) failing to

provide him with the assistance he required for daily living activities, (3)

failing to provide him with a safe environment in which to recover, and (4)

providing a hospital bed that had been negligently assembled and maintained by

the hospital’s employees.

The trial court concluded that Marks’s petition asserted health care

liability claims as defined under the Medical Liability and Insurance

Improvement Act. See Tex. Rev. Civ. Stat. art. 4590i § 1.03(a )( 4) (defining health care liability claim). 2 This Act requires that health care

liability claims be substantiated by a timely filed expert report. Id . § 13.01(d). Because Marks failed to file a timely

expert report, the trial court granted the Hospital’s motion to dismiss.

The court of appeals initially reversed, concluding that Marks’s

allegations concerned “an unsafe condition created by an item of furniture” and

thus related to “premises liability, not health care liability[ .]” Marks , 177 S.W.3d at

259 . The Hospital appealed, filing its petition for review a few days

before we held, in Diversicare General

Partner, Inc. v. Rubio , 185 S.W.3d 842 (Tex. 2005), that a patient’s claims

against a nursing home for inadequate supervision and nursing services were

health care liability claims.

After full briefing, we granted the Hospital’s petition. Rather than

parse through Marks’s claims, however, we vacated the court of appeal’s judgment

without reference to the merits and remanded for the court of appeals to

consider the nature of these claims in light of Diversicare . St. Luke’s

Episcopal Hosp. v. Marks, 193 S.W.3d 575 (Tex. 2006) (per curiam ). Following our remand, a divided court of

appeals affirmed the trial court’s dismissal for want of a timely expert report,

concluding that Marks had asserted only health care liability claims. 229 S.W.3d at 402 . One justice dissented in part, urging that

Marks’s fourth claim concerning the defective footboard was a premises-liability

claim rather than a health care liability claim under the Medical Liability and

Insurance Improvement Act. Id . at 403 (Jennings, J.,

dissenting in part).

II

The Medical Liability and Insurance Improvement Act of 1977 was the

Legislature’s response to a crisis in the cost and availability of medical

malpractice insurance in Texas. The Legislature perceived that an inordinate

increase in the frequency and severity of health care liability claims had

caused the crisis. Tex. Rev. Civ. Stat. art. 4590i § 1.02(a )( 1)-(5). The Legislature also found that this insurance

crisis had adversely affected the cost and delivery of medical and health care

in Texas. Id . § 1.02(a )( 6)-(9). To address the

problem, the Legislature sought to reduce the “frequency and severity of health

care liability claims through reasonable improvements and modifications in the

Texas insurance, tort, and medical practice systems[ .]”

Id . § 1.02(b )( 1). The Legislature’s

modifications included a damages cap, a shortened limitations period, and

heightened filing requirements for health care liability claims. See Diversicare , 185 S.W.3d at

846 -47 .

The 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” proximately resulting in a patient’s injury or death. Tex. Rev. Civ. Stat. art . 4590i § 1.03(a )( 4). The Act does not define safety, although it does define

other terms, including “health care provider,” “physician,” “medical care,” and “health care.” Id . § 1.03(a )( 2)-(4), (8).

These definitions indicate that physicians provide medical care, and

health care providers furnish other health care services. “Medical care” is

defined as the practice of medicine, including the diagnosis and treatment by a

licensed physician. Id . § 1.03(a )( 6). “Health

care” is defined more broadly to include “any act or treatment performed or

furnished, or which 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.” See id. § 1.03(a )( 3). Hospitals are expressly included in the definition of

“health care provider.” Id. § 1.03(a )( 3).

Although Diversicare primarily concerned

a claimed departure from accepted standards of health care, we mentioned safety

and the absence of any statutory definition for the term. Diversicare , 185 S.W.3d at

855 . We observed that the inclusion of accepted standards of safety

expanded the statute’s scope beyond what it would have been had the statute only

covered medical care and health care. Because the statute offered no definition

of safety, we suggested its commonly understood meaning, that is, “‘untouched by

danger; not exposed to danger; secure from danger, harm or loss.’” Id.

(quoting Black’s Law Dictionary

1336 (6th ed. 1990)). The term’s meaning, however, was ultimately unnecessary to

our decision, and so we left unresolved its contextual meaning, as well as its

relationship to the other defined terms of medical care and health care. See

id. The meaning of this term is squarely presented here as the parties

dispute what the Legislature intended to include as a health care liability

claim involving a “departure from accepted standards of . . . safety[ .]” Tex. Rev.

Civ. Stat . art 4590i § 1.03(a )( 4).

Marks contends that safety must be read narrowly to include only safety

concerns directly related to the patient’s care or treatment. The Hospital, on

the other hand, argues that the term should be read broadly to include any

patient injury negligently caused by an unsafe condition at a health care

facility. Even if the definition is not this broad, the Hospital alternatively

argues, it should include equipment used in the patient’s care, such as the

hospital bed here.

III

To determine the meaning of safety in the context of this Act, we begin

with established principles of statutory construction. The first and overarching

principle is that we give effect to legislative intent. See Tex. Gov’t Code § 312.005; see

also Crown Life Ins. Co. v. Casteel , 22 S.W.3d 378, 383 (Tex.

2000). When interpreting a statute, we read words and phrases in context and

construe them according to the rules of grammar and common usage. Tex. Gov’t Code § 311.011(a). Words that are

not defined are given their ordinary meaning. Fitzgerald v. Advanced Spine

Fixation Sys., Inc. , 996 S.W.2d 864, 865 (Tex.

1999). When possible, all words are given effect and none of the statute’s

language is treated as surplusage . Cont’l Cas . Ins. Co. v. Functional Restoration Assocs. , 19

S.W.3d 393, 402 (Tex. 2000). Thus, the terms medical care, health care, and

safety should add meaning to the statute; none of the terms should be

disregarded, discounted, or dismissed. See Meritor

Auto., Inc. v. Ruan Leasing Co. , 44 S.W.3d 86,

89-90 (Tex. 2001).

The Legislature’s purpose in article 4590i is clearly stated, to remedy

“a medical malpractice insurance crisis” in Texas and its “material adverse

effect on the delivery of medical and health care services in Texas[ .]” Tex. Rev. Civ. Stat.

art. 4590i § 1.02(a )( 5)-(6). This

concern pervades the statute, which is replete with references to medical

liability, health care, and malpractice, all of which implicate medical or

health care judgments made by professionals. See ,

e.g. , id. § 13.01(r )( 5)-(6)

(requiring expert to have knowledge of medical diagnosis, care, and

treatment).

By comparison, neither the statute nor the historical background suggests

that physicians or health care providers were similarly challenged when

obtaining commercial general liability insurance coverage for ordinary,

non-medical accidents on their premises. The Legislature was responding only to

a medical-malpractice insurance crisis, and medical malpractice insurance

generally does not cover premises liability claims. See , e.g. ,

N. Am. Speciality Ins. Co. v. Royal Surplus Lines Ins.

Co., 541 F.3d 552, 561 (5th Cir. 2008) (recognizing that commercial

general liability insurance policies generally exclude professional breaches

from coverage).

All patient injuries in a health care setting, regardless of cause, may

be said to implicate patient safety in the broader sense, but not all patient

injuries involve malpractice. Given the statute’s objective and the

Legislature’s express concern, the Legislature evidently did not intend to

define safety as broadly as the Hospital proposes. Moreover, such an expansive

interpretation conflicts with the Legislature’s express intent that the statute operate to control medical-malpractice insurance

costs without unduly restricting a patient’s rights. See Tex. Rev. Civ. Stat. art. 4590i § 1.02(b )( 3); see also O’Reilly v. Wiseman , 107 S.W.3d 699 ,

707 n.12 (Tex. App.—Austin 2003, pet. denied). We accordingly reject the

Hospital’s contention that a health care liability claim includes any patient

injury negligently caused by an unsafe condition at a health care facility.

We said as much in Diversicare , noting

that there could “be circumstances that give rise to premises liability claims

in a healthcare setting” and that not every accidental injury to a patient in a

health care setting would constitute a health care liability claim under article

4590i. Diversicare , 185 S.W.3d at 854

(indicating that a health care claim is determined by the nature of the claim,

not the nature of the defendant). As noted, a health care liability claim is

defined to include a “claimed departure from accepted standards of medical care

or health care or safety.” Tex. Rev. Civ. Stat .

art. 4590i § 1.03(a )( 4). Standards

of medical care or health care are implicated when the negligent act or omission

is an inseparable or integral part of the rendition of medical services. Diversicare , 185 S.W.3d at

848 -49 . Similarly, an accepted standard of safety is implicated under the

Act when the unsafe condition or thing is an inseparable or integral part of the

patient’s care or treatment. See id. at 855 .

In determining whether the plaintiff’s claim is inseparable from the

rendition of medical services, and thus a health care liability claim, we are

guided by several overlapping factors. They include (1) whether the specialized

knowledge of a medical expert may be necessary to prove the claim, (2) whether a

specialized standard in the health care community applies to the alleged

circumstances, and (3) whether the negligent act involves medical judgment

related to the patient’s care or treatment. See Diversicare , 185 S.W.3d at

847 -52 . Not surprisingly, these factors confirm the significance that

medical or professional judgment plays in classifying the claim as one involving

health care liability.

IV

Marks’s original petition asserted four negligence claims against the

Hospital. The first three—failing to properly train and

supervise its agents, employees, servants and nursing staff when caring for him;

failing to provide him with the assistance he required for daily living

activities; and failing to provide him a safe environment in which to receive

treatment and recover—are similar to those in Diversicare .

In that case, a nursing home resident’s daughter sued on her mother’s

behalf, alleging the nursing home had been negligent in failing to provide

enough staff and supervision to prevent her mother from falling on two occasions

and from being sexually assaulted by another nursing home resident. Id. at 845 . The trial court concluded that the

allegations constituted health care liability claims, dismissing the case

because the plaintiff had not filed the requisite expert report. See Tex. Rev. Civ. Stat . art. 4590i

§ 13.01(d), (e). The court of appeals reversed, concluding that the

sexual-assault claim did not fit the definition of a health care liability

claim. Rubio v. Diversicare Gen. Partner, Inc. ,

82 S.W.3d 778, 783-84 (Tex. App.—Corpus Christi 2002), rev’d , 185 S.W.3d 842 (Tex. 2005). We disagreed,

however, concluding that all the plaintiff’s claims were based on an alleged

departure from accepted standards of health care. Diversicare , 185 S.W.3d at

849 . We noted that nursing homes provide services to their residents that

include supervision of daily activities, routine examinations, monitoring of the

residents’ physical and mental condition, administering medication, “and meeting

the fundamental care needs of the residents.” Id. We further noted that

these services are provided by professional staff, and “[t]he level and types of

health care services provided vary with the needs and capabilities, both

physical and mental, of the patients.” Id. at 849-50 (citing Harris v.

Harris County Hosp. Dist. , 557 S.W.2d 353, 355 (Tex. Civ . App.—Houston [1st Dist.] 1977, no writ)). We then

concluded that those services, including the monitoring and protection of the

patient, as well as training and staffing policies, were “integral components of

Diversicare’s rendition of health care services[.]”

Id. at 850. Similarly, Marks’s first three

claims here, involving patient supervision and staff training, are claims

implicating professional expertise and the departure from the accepted standard

of health care. Such claims are health care liability claims subject to the Act.

Tex. Rev. Civ. Stat.

art. 4590i § 1.03(a )( 4).

Marks’s hospital bed claim is different, however, because it does not

assert a departure from the accepted standards of medical care or health care.

Instead, Marks alleges that the Hospital was negligent in the bed’s assembly or

maintenance, or both, and that a defectively attached footboard presented an

unsafe condition. At its core, Marks’s hospital bed claim involves the failure

of a piece of equipment. Whether the failure of that equipment qualifies as a

health care liability claim depends on whether that failure constitutes a

departure from accepted standards of safety under article 4590i. Id . To

assist us in answering that question, we consider the various factors indicative

of professional judgment, that being the equipment’s use and importance in the

patient’s care or treatment.

No evidence shows that the assembly of Marks’s hospital bed involved any

medical or professional judgment, or that the bed’s footboard or its assembly were related to, or affected by, Marks’s care or

treatment. To the contrary, Marks presented some evidence that the assembly of

the hospital bed was solely the responsibility of the Hospital’s maintenance

staff. Presumably, tasks performed by the maintenance staff do not require any

specialized health care knowledge, and evaluation of whether those tasks were

performed negligently would not require expert medical testimony. Other

jurisdictions have, for the most part, found claims based on injuries incurred

when a hospital fixture or piece of equipment breaks due to negligent assembly,

maintenance, or repair to sound in ordinary, rather than medical, negligence. 3

A cause of action alleges a departure from accepted standards of safety

within the Act’s meaning when the unsafe condition is an inseparable or integral

part of the patient’s care or treatment. An unsafe condition, like a negligent

act or omission, is inseparable from the rendition of medical or health care

services when the relationship between the two is significant and direct, and

thus involves professional judgment. The following cases illustrate this

point.

In Hector v. Christus Health Gulf

Coast , the court of appeals held that a patient’s action for injuries in a

fall from an operating table during surgery was based on “an alleged departure

from accepted standards of safety” under article 4590i. 175

S.W.3d 832, 835-36 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

The patient argued that the operating table was under the hospital’s control and

that the accident involved an administrative or routine use rather than medical

care. Id. at 836 . The court of appeals agreed in

theory with the “distinction between hospital workers that were health care

providers, such as nurses and doctors, and hospital workers that were not, such

as cooks or electricians.” Id. But the court concluded the distinction

was irrelevant because “any person in the operating room at the time of Hector’s accident would necessarily have been considered a

health care provider.” Id. The distinction is relevant in this case,

however, because the hospital workers responsible for assembling Marks’s bed,

identified by the hospital nurses as the maintenance team, would not have been

considered health care providers when doing so.

In another case, a patient sued a hospital for a foot injury caused by

stepping on a sharp paint chip while showering in preparation for surgery. Shults v. Baptist St. Anthony’s Hosp. Corp. ,

166 S.W.3d 502, 503 (Tex. App.—Amarillo 2005, pet. denied). The patient alleged

negligence based both on the hospital’s failure to maintain and keep safe its

shower as well as on the hospital’s treatment of his foot injury. The court

rejected the argument that the negligence claims based on the condition of the

hospital shower constituted claims resulting from departures from accepted

standards of safety under article 4590i:

We agree

with [hospital’s] characterization of [patient’s] claims as involving two

distinct theories of recovery, one based upon premises liability and the other

on medical negligence. Personal injury claims resulting from departures from

accepted standards of safety may be included within the scope of article 4590i,

but such departures must be inseparable parts of the rendition of medical

services and the standards of safety within the health care industry to be

covered by the Act. We do not believe that the presence of a sharp paint chip in

the shower of [patient’s] hospital room could be considered in any way an

inseparable part of the medical services rendered to [patient].

Id. at 505 .

The shower was, however, taken in preparation for surgery at a

physician’s instruction. Id. at 503 . In that

sense, it was a functional part of the surgical services provided by the

hospital, just as the footboard attached to the hospital bed here was a

functional part of the morphine-treatment and recovery services provided to

Marks. The source of the negligence in both cases, however, is not directly

related to the rendition of any medical or health care services, but instead is

incidental, occurring in the course of the Hospital’s general maintenance duties

which do not involve health care professionals or the exercise of any medical or

professional judgment.

There are certainly circumstances in which the assembly or use of a

hospital bed might involve professional judgment, the evaluation of which would

likely require expert testimony. For instance, a health care provider might

determine that a patient’s condition called for restraints and that side rails

attached to the bed would suffice. 4 Thus, the failure of a part of a hospital

bed specifically ordered by a physician or health care provider and integral to

the patient’s care or treatment might implicate article 4590i. See, e.g.,

Espinosa v. Baptist Health System , No. 04-05-00131-CV, 2006 WL 2871262 (Tex.

App.–San Antonio Oct. 11, 2006, pet. denied) ( mem .

op.) ( holding that patient injured while using an

overhead bed-frame device or trapeze authorized as part of patient’s medical

care and installed by a nurse and orthopedic technician was a health care

liability claim). But when a piece of hospital equipment is unrelated to any

professional judgment and is merely incidental to the patient’s care, its

alleged unsafe condition does not implicate article 4590i. We conclude that the

negligence claim based on the defectively assembled or maintained hospital bed

in this case is not a health care liability claim to which article 4590i

applies.

Justice Johnson ’s

dissent, however, questions that conclusion as permitting Marks to convert a

health care liability claim into an ordinary negligence claim by mere pleading.

The dissent submits that “no matter how Marks pleads his case, the substantive

facts implicate questions about whether St. Luke’s met accepted standards of

health care and safety [as to its patient].” ___ S.W.3d at ___

(Johnson, J. dissenting). We disagree, and our disagreement concerns the

essence of a health care liability claim.

Justice Johnson ’s

dissent assumes that a patient’s claim against a hospital must implicate

accepted standards of health care and safety by definition. But it is not the

identities of the parties or the place of injury that defines the claim. See

Diversicare , 185 S.W.3d at 854 (refusing to

distinguish patient claims “‘simply because the landowner is a health care

provider’”). Rather, it is the cause of the injury and its relationship to

medical or professional judgment that determines the claim’s nature and the

application of the Medical Liability and Insurance Improvement Act. See

Tex. Rev. Civ. Stat . art

4590i § 1.03 (a)(2), (4) (defining “health care” and “health care liability

claim” as act or omission during patient’s medical care, treatment or

confinement that departs from accepted standards). Thus, injury caused by a

failure to train and supervise the hospital’s nursing staff or by a failure to

supervise and assist the patient implicates the Act; that is, it involves a

departure from accepted standards during a patient’s medical care, treatment, or

confinement. A claim involving a defective footboard, on the other hand, does

not appear to implicate any medical or professional judgment 5 and was not in this case directly related

to the patient’s care, treatment, or confinement. Hence, we conclude in this

case that the injury allegedly caused by the defective footboard was not a

health care liability claim under the Act.

Justice Johnson ’s

dissent also accuses the Court of “conflating standards of safety with standards

of health care,” but our intention is just the opposite. ___

S.W.3d at ___ (Johnson, J. dissenting). “Standards of medical care or

health care or safety” should each add something to the definition of “health

care liability claim.” None of these standards should be read so broadly as to

subsume the others. Thus, standards of medical care and health care implicate

the acts or omissions of physicians and other health care providers,

respectively, while standards of safety concern a patient’s exposure to

unreasonably dangerous or defective conditions or things in the course of

treatment. The dissent, however, reads safety so broadly as to subsume all

duties—not only standards of medical care and health care, but also the breach

of any other duty regardless of its connection to patient care or treatment.

See ___ S.W.3d at ___ (Johnson, J. dissenting) (noting that “a

safety-related cause of action is a health care liability claim” whenever a

patient sues a health care provider or physician for a breach of duty involving

safety). As we indicated in Diversicare , the

focus must be on the gravamen of the claim, which is

not determined merely by the defendant’s status as a health care professional or

the place of injury. See Diversicare , 185 S.W.3d at 854 . We accordingly disagree that article 4590i

makes every patient’s claim against a health care professional a health care

liability claim.

V

Although we have concluded that Marks’s other negligence claims involving

patient supervision and staff training are health care liability claims, a

question remains concerning their dismissal. Marks

argues that these claims should not have been dismissed because he was

entitled to additional time to provide an expert report. Article 4590i generally

requires a claimant to furnish an expert report within 180 days after the filing

of a health care liability claim. Tex.

Rev. Civ. Stat .

art. 4590i, § l3.0l (d). If a

claimant fails to comply with this requirement, the court is directed, on

motion, to award appropriate costs and fees and to dismiss the health care

liability claim with prejudice. Id. § 13.01(e).

The 180-day period can be extended, however, for good cause and enlarged for

accidents and mistakes. Id . § 13.01(f), (g). The

latter enlargement is referenced in the statute as a grace period. Id. § 13.01(g).

Marks contends that he was entitled to this

grace period because his failure to file the expert report on time was an

accident or mistake within section 13.01(g)’s meaning. That

section provides for a thirty-day grace period if, after a hearing, the court

finds that the claimant’s failure to file a timely expert report was a mistake

or accident rather than intentional or the result of conscious

indifference. 6 After hearing the Hospital’s motion to

dismiss and Marks’s motion for a grace period, the trial court found that

Marks’s failure was not an accident or mistake and dismissed the suit. We review

that dismissal under an abuse of discretion standard. Am.

Transitional Care Ctrs . of Tex., Inc. v. Palacios ,

46 S.W.3d 873, 875 (Tex. 2001).

In support of Marks’s motion for a grace period, Marks’s attorney, James

E. Doyle, provided his affidavit. Doyle averred that he was Marks’s second

attorney, becoming lead counsel about seven months after the first attorney

filed the case. Doyle further averred that he and Marks’s first attorney

“understood the case to be an ordinary negligence case, not a health care

liability claim” at that time. According to Doyle’s affidavit, it was only after

discovery that he determined that Marks also had a potential health care

liability claim, causing him to amend the pleadings and provide an expert

report. This report was provided more than 500 days after the filing of Marks’s

original petition.

The amended petition divided Marks’s claims under headings of

“Negligence” and “Premises Liability.” The original petition had lumped all claims under a single negligence heading. In the

amended pleading, Marks included complaints about his bed, his care, and his

supervision under the “Negligence” heading. Under the “Premises Liability”

heading, Marks complained about the condition of the hospital bed. Doyle avers

that he “believed that the case presented claims sounding only in ordinary

negligence” until the time he filed the amended pleading.

In our view, no significant difference exists between the original and

the amended pleading. The underlying factual complaint in both concern the same

set of circumstances: inadequate care and supervision by the Hospital’s

professional staff and a dangerous hospital bed. “It is well settled that a

health care liability claim cannot be recast as another cause of action to avoid

the requirements of [article 4590i].” Diversicare , 185 S.W.3d at

851 . Determining whether a pleading states a health care liability claim

thus depends on its underlying substance, not its form. Doyle’s affidavit does

not clearly indicate what caused him to recognize for the first time that his

client had a health care liability claim.

Equally significant, however, is the absence of any evidence explaining

the first attorney’s failure to furnish an expert report during the first seven

months he represented Marks. Doyle’s affidavit suggests that the first attorney

also mistakenly believed that the original petition did not implicate article

4590i. According to the affidavit, Doyle’s belief is based on his review of the

case file he inherited. Affidavits, however, must be based on personal

knowledge, not supposition. See Tex. R. Evid. 602 (“A witness may not

testify to a matter unless . . . the witness has personal knowledge of the

matter.”). An affidavit not based on personal knowledge is legally insufficient.

Kerlin v. Arias , 274 S.W.3d 666, 668 (Tex. 2008) (per curiam ). Because Doyle had no personal knowledge of

the first lawyer’s intent, and the first lawyer did not provide his own

affidavit explaining his failure, there is no evidence of mistake or accident

and thus no basis for the requested grace period. Accordingly, the trial court

did not abuse its discretion in denying Marks’s motion for a grace period under

section 13.01(g) and did not err in dismissing Marks’s health care liability

claims. See Tex. Rev. Civ. Stat.

art. 4590i, § 13.01(e )( 3) (stating

that dismissal is “with prejudice to the claims refiling ”).

*

* *

To summarize, article 4590i does not apply to Marks’s claim concerning

the defective hospital bed footboard because that claim concerns ordinary, not

medical, negligence and thus is not a health care liability claim. Marks’s other claims alleging negligent care and supervision

are health care liability claims to which article 4590i does apply. Finally,

Marks is not entitled to have the period for filing an expert report enlarged

under the grace period provision of article 4590i because he has not established

that the failure to comply with the statute was a mistake or accident.

The judgment of the court of appeals is affirmed in part and reversed in

part, and the cause is remanded to the trial court for further proceedings

consistent with our opinion.

_____________________________

David

Medina

Justice

OPINION DELIVERED: August 28,

2009

1

See

Medical Liability and Insurance Improvement Act of Texas, Act of May 30, 1977,

65th Leg., R.S., ch . 817, 1977 Tex. Gen. Laws 2039 ,

2041, repealed by Act of June 2, 2003, 78th Leg., R.S., ch . 204, § 10.09, 2003 Tex. Gen. Laws 847 ,

884.

2

Article 4590i was repealed after the filing of

this case. See n.1 supra . Similar

medical liability legislation is now codified in Chapter 74 of the Texas Civil

Practice and Remedies Code, affecting actions filed on or after September 1,

2003. See Tex. Civ. Prac. & Rem. Code §§

74.301-.303.

3

See, e.g., Williamson v. Hosp. Serv . Dist. No. 1 of Jefferson , 888 So.2d 782, 789-90 (La. 2004) (holding that

hospital’s negligence in failing to repair and inspect wheelchair prior to

returning it to service was ordinary not medical negligence to which state’s

medical malpractice statute did not apply); Pluard v. Patients Compensation Fund , 705

N.E.2d 1035, 1037-38 (Ind. App. 1999) (holding that injuries incurred when

surgical lamp inadequately attached to the wall fell on patient not covered by

Indiana’s Medical Malpractice Act); Harts v. Caylor -Nickel Hosp., Inc. , 553 N.E.2d 874, 879 (Ind.

App. 1990) (concluding that injury incurred when bed rail collapsed, causing

patient to fall, were premises liability claims not covered by Medical

Malpractice Act); but see Prater v. Smyth County Cmty . Hosp. , No. 93-4050, 1995 WL 1055761 , at *2-3 (Va.

Cir. Ct. Jan. 30, 1995) (not designated for publication) (holding that a bed

rail collapse while taking patient’s medical history was an integral part of the

health care treatment and covered by Virginia’s Medical Malpractice

Act).

4

See, e.g., Bryant v. Oakpointe Villa

Nursing Centre, Inc. , 684 N.W.2d 864, 867 (Mich. 2004) (determining that

claims based on nursing home’s failure to recognize the risk posed by the

configuration of bed rails on a hospital bed sounded in medical malpractice);

Bell v. West Harrison County Dist. , 523 So.2d 1031, 1033 (Miss. 1988)

(determining that a patient’s claims arising from a nurse’s failure to raise

side rails on a hospital bed constituted medical malpractice, rather than

ordinary negligence, claims because “[a] nurse’s decision as to whether or not

bed rails should be utilized entails a degree of knowledge concerning the

subject patient’s condition, medication, history, etc.”); Lenny v. Loehmann , 433 N.Y.S.2d 135 (N.Y. App. Div. 1980)

(concluding that a physician’s alleged negligence in failing to instruct that

bed’s side rails be raised, or in failing to check condition of the side rails

after they had been put up, or in failing to supervise patient’s movements to

and from bed sounded in medical malpractice rather than ordinary negligence);

cf. Gould v. N.Y. Cty . Health and Hosp. Corp. ,

490 N.Y.S.2d 87, 88-89 (N.Y. Sup. Ct. 1985) (concluding

that a plaintiff’s claim that hospital bed side railings “were defective and not

properly raised” constituted an ordinary negligence claim).

5

Justice Wainwright ’s dissent agrees that Diversicare did not define safety and that the proper

focus when addressing standards of safety should be on “whether medical judgment

was employed in the equipment’s use and its importance to the patient’s care.”

___ S.W.3d at ___ (Wainwright, J. dissenting). His

apparent disagreement with the Court concerns the defective footboard’s

significance in the patient’s care and treatment and its relationship to the

medical or professional judgments made in the case. Justice Hecht ’s dissent similarly views the

defective footboard as an inseparable part of the professional negligence

claim.

6

Section 13.01(g) of article 4590i

provides:

Notwithstanding any other provision of this section, if

a claimant has failed to comply with a deadline [for filing the expert report]

established by Subsection (d) of this section and after hearing the court finds

that the failure of the claimant or the claimant's attorney was not intentional

or the result of conscious indifference but was the result of an accident or

mistake, the court shall grant a grace period of 30 days to permit the claimant

to comply with that subsection. A motion by a claimant for relief under this

subsection shall be considered timely if it is filed before any hearing on a

motion by a defendant under Subsection (e) of this

section.