Opinion

Opinion issued March 15, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00652-CV

WALTER M. CLARK, AUDRA M. CLARK AND ANGELA MIRANDA-CLARK, INDIVIDUALLY AND AS REPRESENTATIVES OF THE

ESTATE OF ANITA M. CLARK, DECEASED, Appellants

V.

TIRR REHABILITATION CENTER, Appellee

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2005-37856

O P I N I O N

Appellants, Walter M. Clark, Audra Clark, and Angela Miranda-Clark, in their

individual capacities and on behalf of the estate of Anita M. Clark, deceased, appeal

an order dismissing their suit against appellee, TIRR Rehabilitation Center ("TIRR").

In one issue, appellants contend that the trial court erred by dismissing their suit with

prejudice for failure to file an expert report as required by section 74.351 of the Texas

Civil Practice and Remedies Code. (1)

We affirm.

Background

In 2003, Anita Clark, a 64-year-old woman with osteoporosis, was undergoing

physical therapy at TIRR under the direction of Susan Lilly, a licensed physical

therapist and employee of TIRR. On June 12, 2003, Anita was standing on an

apparatus known as a "balance board," as directed by Lilly. At some point, Lilly

turned away from Anita, leaving her physically unsupported. Anita fell from the

balance board and fractured her pelvis in four places. On March 27, 2004, Anita

died, allegedly from complications stemming from the fall.

Appellants sued TIRR for negligence. Appellants filed their original petition

on June 10, 2005, an amended petition on November 3, 2005, and a second amended

petition on March 3, 2006. In their second amended petition, appellants alleged that

TIRR, "by and through the acts of its employee," Lilly, left Anita unattended on the

balance board; failed to provide adequate support to Anita to prevent her from falling

from a balance board; failed to keep watch over Anita while she was standing on the

balance board; failed to properly secure Anita against falling from the balance board;

and created a dangerous condition by leaving Anita standing alone on an unstable

balance board with no means of support. Appellants argued that TIRR's negligence

proximately caused serious and permanent injuries to Anita, which ultimately resulted

in her premature death. Appellants did not file an expert report.

On December 21, 2005, TIRR moved to dismiss appellants' suit on the basis

that it was a healthcare liability claim and therefore subject to the requirements of

Chapter 74 of the Civil Practice and Remedies Code ("Chapter 74"). (2) TIRR argued

that section 74.351 requires a plaintiff in a health care liability suit to file an expert

report within 120 days of filing a claim and that, because appellants failed to file an

expert report by October 8, 2005, the trial court was required to dismiss the suit. (3)

In their response to TIRR's motion to dismiss, appellants argued that an expert

report is not required in this case because Chapter 74 does not apply to physical

therapists and because appellants have not alleged a health care liability claim.

Appellants argued that their suit was for ordinary negligence and that medical

expertise was not required to establish a breach of the standard of care. The trial

court granted TIRR's motion and dismissed the suit with prejudice. Appellants

moved for a new trial, which the trial court denied. This appeal followed.

Analysis

In one issue, appellants contend that the trial court erred in dismissing their suit

with prejudice for failure to file an expert report . Specifically, appellants contend that

they alleged facts that amount to ordinary negligence and that do not rise to the level

of a health care liability claim , thus Chapter 74 does not apply and no expert report

was required under section 74.351.

A. Standard of Review and Applicable Law

We review a trial court's decision on a motion to dismiss a case under section

74.351 for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc., v.

Palacios , 46 S.W.3d 873, 875 (Tex. 2001) (applying abuse of discretion standard in

review of trial court's decision to dismiss under predecessor statute, section 13(e) of

article 4590i); Torres v. Mem'l Hermann Hosp. Sys. , 186 S.W.3d 43, 45 (Tex.

App.--Houston [1st Dist.] 2005, no pet.). A trial court abuses its discretion if it acts

arbitrarily, unreasonably, or without reference to guiding rules or principles when it

dismisses a claim. Torres , 186 S.W.3d at 45 . However, if resolution of the issue

requires us to construe statutory language, we review under a de novo standard. Id.

Pursuant to Chapter 74, a "health care liability claim" is

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.

Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) (Vernon 2005). A "health care

provider" is "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 registered nurse, a dentist, a podiatrist, a pharmacist,

a chiropractor, an optometrist, or a health care institution." Id. § 74.001(a)(12). The

term includes "an employee, independent contractor, or agent of a health care

provider . . . acting in the course and scope of the employment or contractual

relationship." Id. "Health care" is "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."

Id. § 74.001(a)(10). "Medical care" is defined as "practicing medicine." Id.

§ 74.001(a)(19). "Safety" is the condition of being secure from danger, harm, or loss.

Diversicare Gen. Partner, Inc. v. Rubio , 185 S.W.3d 842, 855 (Tex. 2005).

To determine whether a cause of action is a "health care liability claim," we

consider the underlying nature of the claim. Garland Cmty. Hosp. v. Rose , 156

S.W.3d 541, 543-44 (Tex. 2004). If the act or omission alleged is an inseparable part

of the rendition of health care services, then the claim is a health care liability claim.

Id. at 544 . One consideration is whether the specialized knowledge of an expert is

required to prove the claim. Id. A plaintiff cannot artfully plead around the

requirements of Chapter 74. See id. at 543 . If the cause of action is based on a

breach of the standard of care by a healthcare provider, then the claim is a health care

liability claim, without regard to how it is labeled. Torres , 186 S.W.3d at 47 .

Chapter 74 requires a plaintiff in a health care liability suit to file an expert

report (4) within 120 days of filing the claim. (5) If the plaintiff does not timely serve an

expert report, the trial court must, on the motion of the affected health care provider,

enter an order dismissing the claim with prejudice. (6)

B. Nature of Appellants' Claim

Here, applying Chapter 74, we determine whether appellants' claim is a "health

care liability claim" by determining whether their cause of action (1) is against a

health care provider and (2) "for treatment, lack of treatment or claimed departure

from accepted standards of medical care, health care, or safety." See Tex. Civ. Prac.

& Rem. Code Ann. § 74.001 (a)(13).

Appellants' claim is against TIRR, and the parties do not dispute that TIRR is

a health care provider. See id. § 74.001(a)(12). Neither do the parties dispute that

Lilly was acting within the course and scope of her employment at TIRR during the

relevant period. Thus, Lilly is also a health care provider. See id. (including within

definition of "health care provider," an employee, independent contractor, or agent

of health care provider acting within course and scope of employment or contractual

relationship).

We next consider whether appellants' claim is for "treatment, lack of treatment,

or other claimed departure from accepted standards of medical care, health care, or

safety." See id. § 74.001(a)(13). We consider whether the act or omission alleged is

an inseparable part of the rendition of health care services and whether the specialized

knowledge of an expert is required to prove the claim. Rose , 156 S.W.3d at 544 .

A ppellants contend that Anita went to TIRR only for general conditioning and

strength training, and that she fell from a common exercise device known as a balance

board, which is "not a medical device, but rather an ordinary piece of athletic

equipment commonly found in homes, gyms, training facilities, and rehabilitation

facilities, where balance and strengthening exercises are performed." Appellants

contend that Lilly, who happened to be a licensed physical therapist, but could have

been anybody, left Anita, a "frail, elderly woman," standing on an unstable balance

board without any means of support and that this created a dangerous condition which

led to Anita's injuries. Appellants argue that the ordinary negligence of Lilly did not

involve medical care or treatment and that Lilly was simply there to "hold [Anita's]

hand to keep her from falling."

Specifically, in their second amended petition, appellants alleged that TIRR,

"by and through the acts of its employee" Lilly, left Anita unattended on the balance

board; failed to provide adequate support to Anita to prevent her from falling from

a balance board; failed to keep watch over Anita while she was standing on the

balance board; failed to properly secure Anita against falling from the balance board;

and created a dangerous condition by leaving Anita standing alone on an unstable

balance board with no means of support. Appellants contend that the allegations of

negligence in this case "are so common, ordinary and understandable by the common

man that no expert testimony is necessary to establish a standard of care, its breach,

or the causal connection with the injuries sustained."

Appellants assert that this case is analogous to the facts in Rogers v.

Crossroads Nursing Servs., Inc. , 13 S.W.3d 417 (Tex. App.--Corpus Christi 1999,

no pet.). In Rogers , the plaintiff was injured when a bag of medical supplies that a

nurse had placed on a table near the plaintiff's bed fell on the plaintiff. Id. at 418 .

The plaintiff sued under a theory of common law negligence. Id. The defendant

argued that a claim based on the negligent placement of a supply bag was a health

care liability claim because it amounted to a claimed departure from accepted

standards of "safety." Id. (construing art. 4590i, § 1.02 (a)(4), the predecessor to

§ 74.001(a)(13)). The trial court agreed and dismissed the plaintiff's claim for failure

to file an expert report. Id. On appeal, the court reversed, concluding that the claim

was not a health care liability claim because the term "safety" must be read in context

to mean "accepted standard of safety within the health care industry " and, because

the placement of a heavy supply bag is not governed by a standard of safety in the

health care industry, but rather by standards of ordinary care, the claim was not a

health care liability claim that required expert testimony Id. at 418-19.

In the instant case, appellants contend that, like Rogers , Lilly's failure to

supervise Anita while she stood on an unstable balance board violated standards of

ordinary care. (7) However, Rogers is distinguishable from the instant case because

Rogers involves placement of a random item near a person, whereas here, appellants

allege that Anita was negligently supervised by a health care provider while Anita

was engaged in a therapy-exercise that was directed by the health care provider.

As TIRR points out, the Supreme Court of Texas has considered the necessity

of expert testimony in a claim of negligent supervision by a physical therapist.

Rehabilitative Care Sys. of Am. v. Davis , 73 S.W.3d 233, 234 (Tex. 2002). In Davis ,

Davis was attending physical therapy after having surgery on his shoulder.

Rehabilitative Care Sys. of Am. v. Davis, 43 S.W.3d 649, 652 (Tex. App.--Texarkana

2001, pet. denied). During a session in which Davis was working on a weight

machine at the direction of his physical therapist, the therapist left the room. Id. at

653 . While Davis was unsupervised, he tore his rotator cuff. Id . At trial, Davis

prevailed on his medical malpractice claim against the rehabilitation center. Id. at

652 . On appeal, the rehabilitation center contended that the trial court erred in

denying its motion for an instructed verdict because Davis failed to produce expert

testimony. Id. at 656 . The court held that Davis was not required to produce expert

testimony regarding the standard of care required of a physical therapist when the

claim was that of negligent supervision. Id. at 657 . The court concluded that the

standard of care was within the comprehension of lay persons. Id . The Supreme

Court of Texas denied the petition for review, but wrote to express its disapproval of

the lower court's conclusion that expert testimony was not required to establish the

appropriate standard of care. Davis , 73 S.W.3d at 234 . The court held that "physical-therapist malpractice suits are no different from any other medical-malpractice suit

in that the applicable standard of care must generally be established by expert

testimony." Id.

Appellants argue that Davis is distinguishable from the instant case because,

there, the weight machine was complicated and the facts were disputed. We conclude

that Davis is not only persuasive in this case, but that we are bound by the holding of

the Supreme Court that, in a claim of negligent supervision by a physical therapist,

an expert report is required. Id . However, Davis does not address whether a claim

of negligent supervision by a physical therapist is a health care liability claim as

defined in Chapter 74, such that Chapter 74 applies and dismissal of the claim is

appropriate for failure to file an expert report.

In Diversicare , which TIRR also relies on, plaintiff Rubio, a resident at a

nursing home, brought claims against the nursing home after she suffered falls and

then was sexually assaulted by another resident. 185 S.W.3d at 845 . The suit was

brought on various theories, including negligence in failing to provide adequate

supervision of Rubio. Id. The Supreme Court of Texas held that Rubio's claims were

health care liability claims because the acts or omissions complained of, namely, that

the nursing home failed to properly supervise her and keep her free from harm,

amounted to a claimed departure from accepted standards of health care and safety .

Id.

First, the court explained that the supervision of Rubio was inseparable from

the health care and services provided to her. Id. at 849 . An integral part of the

services that a nursing home provides is the supervision and monitoring of patient

activities. Id. at 849-50 . Health care staff make judgments about the care, treatment,

and protection of individual patients based on the care that a patient requires. Id. at

850 . The essence of Rubio's claim was that lapses in professional judgment allowed

her to be injured. Id. at 851 . The court then considered whether expert testimony was

required to prove the alleged lapses therein. Id.

The court also explained that Rubio's claims could also be characterized as

departures from accepted standards of "safety"-- within the context of the Medical

Liability and Insurance Improvement Act ("MLIIA") (8) -- because the supervision of

Rubio was inseparable from "the accepted standards of safety applicable to the

nursing home." Id. at 855 . The court stated that, "Certainly, the Legislature's

inclusion within the scope of the MLIIA of claims based on breaches of accepted

standards of 'safety' expands the scope of the statute beyond what it would be if it

only covered medical and health care." Id. The court concluded that "[p]rofessional

supervision, monitoring, and protection of [a patient] necessarily implicate[s] the

accepted standards of safety under the MLIIA." Id.

In the instant case, appellants contend that Anita was not using a medical

device; rather, she just as easily could have been using the balance board at a local

gym. TIRR counters that physical therapy services are not permitted at their facility

without a prescription from a physician and that Anita was undergoing treatment at

TIRR under the direction of a physician. The record does not contain a prescription

covering the period during which Anita fell from the balance board. (9) However,

appended to appellants' response to TIRR's motion to dismiss is the affidavit of Dr.

Sandra Sessoms, Anita's physician of 15 years, who attests that she "asked" Anita to

attend "supervised therapy" at TIRR. It follows that Anita went to TIRR, a

rehabilitation facility, as opposed to a local gym, because she needed the supervision

of a health care provider, at her physician's recommendation. Indeed, an integral part

of the services rendered by TIRR is the supervision of patients during therapy-exercises. See Diversicare , 185 S.W.3d at 849-50. As such, the omission, or failure

to supervise Anita, was an inseparable part of the service being rendered by TIRR,

the health care provider. See id. at 849. In addition, as in Diversicare , because the

"professional supervision" of Anita during treatment is inseparable from the accepted

standards of safety applicable to TIRR, as a rehabilitative health care facility, Anita's

claims are health care liability claims under the safety element of the statute. See

Diversicare , 185 S.W.3d at 855 (discussing former § 1.03(a)(4) of the MLIIA, the

predecessor to Tex. Civ. Prac. & Rem. Code § 74.001(a)(13)).

Appellants also assert that Lilly could have been "any lay person." However,

as the court explained in Diversicare , health care staff make judgments about the

care, treatment, and protection of individual patients based on the care that a patient

requires. See id. at 850. Lilly is a licensed physical therapist employed by TIRR to

supervise patients during therapy, such as Anita, whom appellants characterize as a

"frail, elderly woman" or a person with special needs. Proper supervision and

protection of a patient in a weakened condition during physical therapy exercises is

not within the common knowledge of the general public. See id. at 851. Hence, as

the court explained in Diversicare , expert testimony is required to prove the alleged

lapses in professional judgment. See id. ; see also Torres , 186 S.W.3d at 48 (rejecting

patient-plaintiff's argument that "the simple act of assisting [her] to the restroom

[while in hospital] . . . is something that could have been done by anyone" and

"would not have required any expertise on the nurse's part that would require expert

testimony in the medical or health field").

Furthermore, in their petition, appellants seek to recover damages from TIRR

based on Anita's death . TIRR contends, and we agree, that only a medical expert can

testify that a breach of the applicable standard of care in this case proximately caused

Anita's death. See Windsor v. Maxwell , 121 S.W.3d 42, 47-48 (Tex. App.--Fort

Worth 2003, pet. denied).

We conclude that appellants' suit is a health care liability claim. As such,

appellants' suit is subject to the requirements of Chapter 74. (10) Appellants filed suit

on June 10, 2005. Pursuant to section 74.351, (11) appellants were required to file an

expert report by October 8, 2005. Appellants do not dispute that they did not file an

expert report. We hold that the trial court did not abuse its discretion by dismissing

appellants' case.

Accordingly, appellant's sole issue is overruled. Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Nuchia, Keyes, and Higley.

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