Opinion

NO. 12-09-00206-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER , TEXAS

RUSK STATE HOSPITAL, THE

STATE § APPEAL FROM THE 2ND

OF TEXAS AND THE TEXAS

DEPARTMENT OF STATE HEALTH

SERVICES,

APPELLANTS

V.

§ JUDICIAL DISTRICT COURT

DENNIS BLACK AND PAM BLACK,

INDIVIDUALLY AND AS

REPRESENTATIVES OF THE

ESTATE

OF TRAVIS BONHAM BLACK,

DECEASED,

APPELLEES

§ CHEROKEE COUNTY, TEXAS

MEMORANDUM

OPINION

Travis

Black, a patient at Rusk State Hospital (the “Hospital”), died from

asphyxiation caused by a plastic bag placed over his head and secured about his

neck. Travis’s parents brought a health care liability claim alleging the

Hospital negligently allowed Travis access to the plastic bag used in his suicide

or murder. The Hospital moved to dismiss contending that the Blacks’ expert

reports were deficient. The trial court overruled the Hospital’s motion, and the

Hospital brought this interlocutory appeal. In two issues, the Hospital

contends that the trial court abused its discretion in denying the motion to

dismiss and that the trial court lacked jurisdiction because the Blacks’

pleadings did not demonstrate a waiver of sovereign immunity. We dismiss in

part and reverse and remand in part. We do not determine the jurisdictional

issue.

Background

Travis

Black suffered from paranoid schizophrenia and was a patient at the Rusk State

Hospital. On December 20, 2006, a staff member found Travis lying face up on

his bed with a plastic bag over his head secured by a rubber band about his

neck. Resuscitative efforts were unsuccessful. His body bore no evidence of

significant trauma. One of several letters found in his pockets asked “that if

he should die” certain letters and electronic messages be sent to President

Bush. Delbert Van Dusen, M.D. performed an autopsy on the body and concluded

that Travis’s death resulted from asphyxia due to suffocation. The autopsy

report shows the manner of death to be suicide.

The

Blacks filed a health care liability suit against the Hospital. They alleged

Travis’s death resulted from the Hospital’s negligence in providing Travis a

plastic bag or allowing him access to one. This, they contended, was a

violation of the Hospital’s own policy defining a plastic bag as contraband

because plastic bags are inherently dangerous in an inpatient psychiatric

setting. The Blacks also alleged that the Hospital refused to allow Travis to

sleep during the daytime or to prescribe appropriate medication to help him

sleep at night. The Blacks claimed that the Hospital was deliberately

indifferent to Travis’s medical and psychiatric needs. The Blacks also alleged

that his death resulted from a condition, use, or misuse of personal property

by the Hospital. The filing of the health care liability claim required the

Blacks’ compliance with the expert report requirements of Texas Civil Practice

and Remedies Code section 74.351.

Within

120 days of filing suit, the Blacks served on the Hospital the report of Dennis

Combs, Ph.D., together with the relevant business records of Southeast Texas

Forensic Center, Inc. Those records included a copy of the autopsy report of Dr.

Van Dusen. The Hospital timely filed objections contending the reports filed

by the Blacks were inadequate to comply with section 74.351 and moved that the

claim be dismissed. The trial court overruled the Hospital’s motion, and the

Hospital filed this interlocutory appeal.

Jurisdiction

In

its second issue, raised for the first time in its reply brief, the Hospital

challenges the trial court’s jurisdiction. Although the Hospital did not raise

the issue in the trial court, it contends here that the Blacks have failed in

their burden of demonstrating the trial court’s jurisdiction because they have

not alleged a valid waiver of sovereign immunity. The Blacks counter that they

have alleged that Travis’s death arose from a condition or use of personal

property, the plastic bag that caused his suffocation. This, they argue, is a

sufficient allegation of the waiver of sovereign immunity. Therefore, the

Blacks insist, this court has no jurisdiction to review a claim not raised in

the Hospital’s motion to dismiss or ruled on by the trial court.

Waiver of

Sovereign Immunity

In a

suit against a governmental unit, the plaintiff bears the burden of

demonstrating the court’s jurisdiction by alleging a valid waiver of sovereign

immunity. Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 540,

542 (Tex. 2003).

The

Tort Claims Act does not provide a waiver of sovereign immunity for claims

“arising out of assault, battery, false imprisonment, or any other intentional

tort. . . .” Tex. Civ. Prac. & Rem.

Code Ann. § 101.057(2) (Vernon 2005). Nor is immunity waived when a

governmental unit “allows someone else to use the property and nothing more[,]”

even if suicide is the result. Dallas County v. Posey , 290

S.W.3d 869, 871-72 (Tex. 2009). In the Dallas County case, the

officers placed Posey in a holding cell where there was an inoperable corded

telephone. Posey used the telephone cord to hang himself. The Texas Supreme

Court held that the incident did not arise from the county’s use of property. Id .

Similarly, in San Antonio State Hospital v. Cowan , 128 S.W.3d 244

(Tex. 2004), the supreme court held that the hospital’s immunity was not waived

by its providing suspenders and a walker to a patient who later used them to

hang himself, because it was the patient, not the hospital, who used the

property. Id. at 246 .

Jurisdiction

on Interlocutory Appeal

Unless

there is a statute specifically authorizing an interlocutory appeal, Texas

appellate courts have jurisdiction only over final judgments. Cherokee

Water Co. v. Ross , 698 S.W.2d 363, 365 (Tex. 1985).

Texas

Civil Practice and Remedies Code section 51.014 lists certain types of orders

that are immediately appealable. See Tex.

Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon 2008). Among

those are an order of the trial court that “grants or denies a plea to the

jurisdiction by a governmental unit” and an order that “denies all or part of

the relief sought by a motion under Section 74.351(b) . . . .” Id .

§ 51.014(a)(8), (9). Section 74.351(b) provides for dismissal on motion of

the defendant for failure to serve an expert report required for each health

care provider. See id . § 74.351( b) (Vernon Supp. 2009). Section 51.014 is a narrow

exception to the general rule that only final judgments and orders are

appealable; therefore we must strictly construe what can be considered in an

interlocutory appeal. Bally Total Fitness Corp. v. Jackson , 53

S.W.3d 352, 355 (Tex. 2001); City of Dallas v. First Trade Union Sav.

Bank , 133 S.W.3d 680, 686-87 (Tex. App.–Dallas 2003, pet. denied).

Discussion

It

is axiomatic that subject matter jurisdiction may not be waived and may be

raised for the first time on appeal from a final judgment. Tex.

Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 443 (Tex. 1993) (direct

appeal of judgment in administrative matter to supreme court following bench

trial). It is the Hospital’s position that it may raise the trial court’s

jurisdiction in this interlocutory appeal, even though jurisdiction was

not raised or ruled upon in the trial court, and despite the specific statutory

language of subsection (a)(8).

Section

51.014(a)(8) authorizes an appeal from an interlocutory order that “grants or

denies a plea to the jurisdiction by a governmental unit . . . .” Several

courts interpreting this subsection have held that the courts of appeals have

no jurisdiction to review any such claims not raised or ruled upon in the trial

court. See, e.g., Austin Indep. Sch. Dist. v. Lowery , 212

S.W.3d 827, 834 (Tex. App.—Austin 2006, pet denied). The court in Lowery

explained as follows:

Because our jurisdiction in the interlocutory appeal

is limited, we confine our review to the ruling on the plea to the jurisdiction

that was actually filed and do not address whether the district court erred in

denying the plea on a ground that was not argued below. Although subject matter

jurisdiction cannot be waived and may be raised for the first time in an appeal

from a final judgment, section 51.014(a)(8) of the civil practice and remedies

code does not grant this Court jurisdiction to review claims that were neither

included in the plea to the jurisdiction nor considered by the district court.

Id .

(citations omitted); see also Scott v. Alphonso Crutch Life Support Ctr. ,

No. 03-06-00003-CV, 2009 Tex. App. LEXIS 5111, at *20-21 (Tex. App.–Austin July

2, 2009, no pet.) (mem. op.); Clear Lake City Water Auth. v. Friendswood

Dev. Co ., 256 S.W.3d 735, 747 (Tex. App.–Houston [14th Dist.] 2008,

pet. dism’d); City of Celina v. Dynavest Joint Venture , 253

S.W.3d 399, 404 (Tex. App.–Austin 2008, no pet.); Univ. of Tex. v. Estate

of Arancibia , 244 S.W.3d 455, 461-62 (Tex. App.–Dallas 2007, no pet.); Kinney

County Groundwater Conserv. Dist. v. Boulware , 238 S.W.3d 452, 461

(Tex. App.–San Antonio 2007, no pet.); Brenham Hous. Auth. v. Davies ,

158 S.W.3d 53, 61 (Tex. App.–Houston [14th Dist.] 2005, no pet); City of

Dallas , 133 S.W.3d at 686-87 .

In

this appeal, the Hospital cites section 51.014(9) as the source of this court’s

jurisdiction. It also urges that jurisdiction may be considered by the

reviewing court if an interlocutory appeal is taken on any other ground

authorized by statute. The cases cited by the Hospital do not support its

argument. Unlike the case here, the cases cited by the Hospital are appeals from

final judgments or interlocutory appeals wherein the trial court had granted or

denied a plea to the jurisdiction raised by the governmental unit. In University

of Texas Southwestern Medical Center at Dallas v. Loutzenhiser , 140

S.W.3d 351 (Tex. 2004), cited extensively by the Hospital, the trial court had

two opportunities to confront the question of jurisdiction. First, the trial

court denied the University Medical Center’s motion for summary judgment, which

raised the issue of jurisdiction. Id . at 354. While the case

was still pending, the legislature added subsection (8) to section 51.014(a)

allowing interlocutory appeals from orders granting or denying a plea to the

jurisdiction by a governmental unit. The University then reurged the point to

the trial court as a plea to jurisdiction. Id . at 355. In our

case, the trial court had no chance to rule on the issue of jurisdiction.

In Thomas

v. Long , 207 S.W.3d 334 (Tex. 2006), Long filed suit against Sheriff

Thomas seeking a declaratory judgment that she was entitled to return to work

immediately with no loss of seniority or benefits and without taking a test for

physical ability. Long moved for partial summary judgment on her declaratory

judgment action. Sheriff Thomas filed a cross-motion for summary judgment

arguing the trial court’s lack of subject matter jurisdiction over Long’s

claims. The trial court rendered partial summary judgment in favor of Long. Id .

at 336-37. The supreme court held that interlocutory appeal was proper despite

the absence in the record of an order explicitly denying a plea to

jurisdiction. “Thomas’s summary judgment motion clearly challenged the trial

court’s subject matter jurisdiction.” Id . at 339. “The Legislature

provided for an interlocutory appeal when a trial court denies a governmental

unit’s challenge to subject matter jurisdiction, “ irrespective of the

procedural vehicle used. ” Id. (emphasis added). When the

trial court ruled on the merits of Long’s claims by granting partial summary

judgment, it implicitly rejected Sheriff Thomas’s jurisdictional challenge. Id.

at 341 . In our case, as opposed to Thomas , the Hospital did not

raise the issue of jurisdiction by motion for summary judgment or any other

procedural vehicle. Therefore, the trial court ruled only on the adequacy of

the expert reports, not on the merits.

In Duncan

v. Texas Department of Public Safety , 6 S.W.3d 756 (Tex. App.–Tyler

1999, no pet.), a motorist attempted to appeal the administrative suspension of

his license based on his Van Zandt County arrest to the County Court at Law of

Smith County. The trial court granted the Department’s motion to dismiss for

lack of jurisdiction. Id . at 757. Duncan is

similarly distinguishable from the case at bar. The trial court in Duncan

ruled on the jurisdictional challenge. Moreover, Duncan was not

an interlocutory appeal. See id .

In Waco

Independent School District v. Gibson , 22 S.W.3d 849 (Tex. 2000), the

trial court, after a hearing, granted WISD’s plea to the jurisdiction as to all

but one of the plaintiff’s claims. The supreme court held that on

interlocutory appeal, WISD could add standing and ripeness challenges to its

original assertion that the trial court lacked jurisdiction because the Gibsons

had failed to exhaust their administrative remedies before bringing suit. The

supreme court noted, however, that “the trial court record is replete with the

district’s assertions that the Gibsons’ claim was not ripe.” Id .

In the case at bar, the Hospital urged no jurisdictional challenge of any kind

in the trial court. Two additional cases cited by the Hospital, Harris

County Municipal District No. 156 v. United Somerset Corp. , 274 S.W.3d

133 (Tex. App.–Houston [1st Dist.] 2008, no pet.), and City of Houston v.

Northwood Municipal District No. 1 , 73 S.W.3d 304 (Tex. App.–Houston [1st

Dist.] 2001, pet. denied), are similarly distinguishable. In both, the trial

court rejected a plea to the jurisdiction. On appeal, the governmental entity

was allowed to raise an additional jurisdictional challenge. Harris

County , 274 S.W.3d at 135, 137 ; City of Houston , 73

S.W.3d at 307, 313 .

The

cases cited by the Hospital do not address whether a governmental entity can

raise a jurisdictional challenge for the first time in an interlocutory

appeal. The cases we have cited above support a contrary conclusion in an

interlocutory appeal challenging the denial of a plea to the jurisdiction. See,

e.g., Lowery , 212 S.W.3d at 834 ; see also Tex. Civ. Prac. & Rem. Code Ann. §

51.014 ( a)(8). We are not

persuaded that a different rule applies when an interlocutory appeal is brought

under subsection (a)(9). Consequently, we hold that the weight of authority

precludes our consideration on interlocutory appeal of jurisdictional

challenges not presented to or ruled on by the trial court. We decline to

address the Hospital’s second issue.

Sufficiency of Expert Reports

The

Hospital maintains that the expert reports served by the Blacks, even when read

together, fail to comply with section 74.351 in the following respects:

(1)

The report by Dr. Combs, a psychologist, cannot serve to show (a) how it

failed to meet the applicable standard of care and (b) the causal relationship

between that failure and Travis’s death because Dr. Combs is not a physician

“qualified to render opinions on such causal relationship under the Texas Rules

of Evidence.” See § 74.351(r)(5)(C).

(2)

The business records of the Southeast Texas Forensic Center, Inc.

containing the autopsy signed by Dr. Van Dusen, although establishing the cause

of death as asphyxiation, also fails to show how the Hospital breached the

applicable standard of care. Nor do they explain the causal relationship

between that failure and Travis’s death. Moreover, there is no showing that

Dr. Van Dusen is a physician licensed to practice medicine in Texas.

(3) The

reports do not attempt to address three of the five claims stated in the Blacks’

petition.

The

Blacks contend that the expert reports, taken together, satisfy the statutory

requirements.

Standard of Review and

Applicable Law

Appellate courts review a

trial court’s determination of the adequacy of an expert report for an abuse of

discretion. Am. Transitional Care Ctrs. of Tex. v. Palacios , 46

S.W.3d 873, 877 (Tex. 2001); Shaw v. BMW Healthcare, Inc., 100 S.W.3d

8, 12 (Tex. App.–Tyler 2002, pet. denied). Under an abuse of

discretion standard, appellate courts defer to a trial court’s factual

determinations, but review questions of law de novo. Shaw , 100

S.W.3d at 12 .

In

a health care liability claim, the claimant “shall . . . serve on each party,

or the party’s attorney, one or more expert reports with a curriculum vitae of

each expert listed in the report for each physician or health care provider

against whom a liability claim is asserted.” Tex.

Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2009). The

statute defines an “expert report” as

a written report by an expert that provides a fair

summary of the expert’s opinions as of the date of the report regarding

applicable standards of care, the manner in which the care rendered by the

physician or health care provider failed to meet the standards, and the causal

relationship between that failure and the injury, harm, or damages claimed.

Id .

§ 74.351(r)(6) (Vernon Supp. 2009). If no report is served within 120

days after the original petition was filed, the trial court, on the defendant’s

motion, must dismiss the claim with prejudice to its refiling. Id .

§ 74.351(b)(2). The trial court’s order should also award the defendant

reasonable attorney’s fees and costs. Id . § 74.351(b)(1). However,

even if the claimant files an expert report within 120 day period, it cannot be

considered “served” if it is inadequate because elements of the report are

found deficient. Id . § 74.351(c) (Vernon Supp. 2009); Lewis

v. Funderburk , 253 S.W.3d 204, 207 (Tex. 2008).

The

defendant may challenge the report as being so insufficient that it represents

no report at all, and move to dismiss. The statute allows three possible

resolutions of the defendant’s motion. First, if the trial court determines

that elements of the report are deficient, it may grant the claimant one thirty

day extension in which to cure the deficiency. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c). An interlocutory

appeal may not be taken from an order granting a thirty day extension. Id .

§ 51.014(a)(9). Second, the trial court may, after hearing, grant the

defendant’s motion and dismiss the case and assess attorney’s fees and costs

against the claimant. However, the trial court shall grant the motion only if

it determines “that the report does not represent an objective good faith

effort to comply with the definition of an expert report in subsection

(r)(6).” Id . § 74.351( l ) (Vernon Supp. 2009). The

claimant has the right to an interlocutory appeal of the adverse order. Id .

§ 51.014(a)(10). The trial court’s third option is to deny the

defendant’s motion. Section 51.014(a)(9) provides for an interlocutory appeal

from an order denying a defendant relief under section 74.351(b).

In

assessing the report’s sufficiency, a trial court may not draw any inferences;

the only information relevant to the inquiry is within the four corners of the

document. Palacios , 46 S.W.3d at 878-79 . Although the report

need not marshal all of a plaintiff’s proof, it must include the expert’s

opinions on the three statutory elements: standard of care, breach of the

standard, and the causal relationship between the breach and the harm. Id .

at 878; see also Tex. Civ. Prac.

& Rem. Code Ann. § 74.351 ( r)(6). In detailing these elements, the

report must provide enough information to fulfill two purposes if it is to

constitute a “good faith effort.” Id . at 878-79. First, the

report must inform the defendant of the specific conduct that the plaintiff has

called into question. Id . Second, the report must provide a

basis for the trial court to conclude that the claims have merit. Id .

A report that merely states the expert’s conclusions as to the standard of

care, breach, and causal relationship does not fulfill these two purposes. Id .

Rather, the expert must explain the basis of his statements and link his

conclusions to the facts. Id . The report, however, can be

informal, and information does not have to meet the same requirements as

evidence offered in a summary judgment proceeding or at trial. Id .

One who seeks to offer an “expert” opinion about the causal relationship

between the injury, harm, or damages claimed and the alleged departure from the

standard of care must be “a physician who is otherwise qualified to render

opinions on such causal relationship under the Texas Rules of Evidence[.]” Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(r)(5)(C). “Physician” means a person licensed to practice

medicine in this state. Id . § 74.001(a)(23)(A) (Vernon

2005).

The

reports of multiple experts may be read together, if possible, to satisfy the

expert report requirement. Lewis , 253 S.W.3d at 208 . A report

by an unqualified expert will sometimes reflect a good faith effort sufficient

to justify a thirty day extension. See In re Buster , 275

S.W.3d 475, 477 (Tex. 2009) (nurse’s report expressing opinion on causation

constituted good faith effort); Leland v. Brandal , 257 S.W.3d

204, 208 (Tex. 2008) (remanding to trial court to determine whether claimant

was entitled to thirty day extension to cure defective expert report). A

claimant may cure a deficiency by serving a report from a new expert. In

re Buster , 275 S.W.3d at 477 .

Discussion

In

this case, neither the Combs report nor the autopsy report attempts to address

three of the Blacks’ claims. They contain no reference to the claim that (1)

the Hospital refused to allow Travis to sleep during the daytime, (2) that it

refused to prescribe appropriate medication, and (3) that it was indifferent to

Travis’s medical needs. No report addresses the Blacks’ claims against the

Texas Department of Health Services or the State of Texas. The total absence

of a report cannot be cured by filing a new report, and the trial court had no

discretion but to dismiss the unaddressed claims. See Jernigan v.

Langley , 195 S.W.3d 91, 93 (Tex. 2006). We agree with the Hospital

that these claims must be dismissed, and sustain this portion of the Hospital’s

first issue.

The

two claims in which the Blacks allege the Hospital negligently allowed Travis

access to a plastic bag were addressed in the timely filed report of Dennis

Combs. The report details the appropriate standard of care and the Hospital’s

conduct that breached that standard. Combs explains the causal relationship

between that breach, allowing Travis access to a plastic bag, and his

suffocation death caused by a plastic bag.

Combs

has extensive training and experience in the diagnosis and treatment of mental

disorders. He is a licensed psychologist in the State of Texas, and a member

of the National Register of Health Care Providers in Psychology. His clinical

specialty is the diagnosis and treatment of schizophrenia and other psychotic

disorders. He has served as supervising or consulting psychologist at numerous

mental health facilities. Combs’s credentials entitle him to express his

opinion on the appropriate care standard and how the Hospital transgressed that

standard. See Tex. Civ. Prac.

& Rem. Code Ann. § 74.402 (Vernon 2005).

Combs,

however, is not a physician. The Hospital correctly asserts that he is not

qualified under section 74.351(r)(5)(C) to offer an opinion on the causal

relation between the Hospital’s breach and Travis Black’s death. The autopsy

report does not remedy the deficiency. Although it clearly states the manner

of death, it does not address the causal relationship between the Hospital’s

conduct and Travis’s death.

The

causal connection between allowing a mental patient access to a plastic bag and

his suffocation death from s uch a bag placed over his head seems too

obvious to require explanation. But case law firmly admonishes the courts

that, in assessing the sufficiency of expert reports, their inquiry is limited

to information in the document. The trial court is to draw no inferences, no

matter how unassailable. Therefore, without a physician’s explicit relation of

the Hospital’s alleged violation of the standard of care to Travis Black’s

death, the reports are insufficient. The trial court abused its discretion in

holding otherwise.

The

Hospital contends that the Blacks’ claims must be dismissed. We disagree. The

Blacks’ reports, though deficient, were timely filed. Although Combs was not

qualified to offer an opinion on the causation question, his report addressed

the three statutory concerns. The report also fulfilled the two purposes of

the statute. It (1) informed the Hospital of the specific conduct complained

of and (2) provided a basis for the trial court to conclude the Blacks’ claim

has merit. “A report by an unqualified expert will sometimes (though not

always) reflect a good- faith effort to justify a 30-day extension.” In

re Buster , 275 S.W.3d at 477 ; Leland , 257 S.W.3d at 208 .

Here, the Combs report represents a good faith effort. Accordingly, we

overrule this portion of the Hospital’s first issue.

Conclusion

We

have declined to address the Hospital’s second issue in which it challenges the

trial court’s jurisdiction. Because we have sustained the Hospital’s first

issue in part, we reverse the order of the trial court and dismiss

with prejudice the claims against the Texas Department of State Health

Services and the State of Texas. We also dismiss with prejudice

the Blacks’ claims that the Hospital (1) refused to allow Travis to sleep in

the daytime, (2) refused to prescribe appropriate medication, and (3) was

indifferent to Travis’s medical needs. Because we have overruled the

Hospital’s first issue in part, we remand the claims to the trial

court so that it may consider granting the Blacks a thirty day extension to

cure the deficiencies noted.

Bill Bass

Justice

Opinion delivered June 23, 2010.

Panel consisted of

Worthen, C.J., Griffith, J., and Bass, Retired J., Twelfth Court of Appeals,

sitting by assignment.

(PUBLISH )