                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                            ________________________

                                 No. 07-13-00255-CV
                            ________________________

                 SAN JUANITA AND MAX GRIEGO, APPELLANTS

                                           V.

      BAPTIST SAINT ANTHONY’S HEALTH SYSTEM, A/K/A BAPTIST SAINT
              ANTHONY’S HOSPITAL CORPORATION, APPELLEE



                          On Appeal from the 181st District Court
                                   Potter County, Texas
               Trial Court No. 97233-B; Honorable John B. Board, Presiding


                                    February 5, 2015

                           MEMORANDUM OPINION
                 Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Pursuant to section 74.351 of the Texas Civil Practices and Remedies Code, the

trial court dismissed the claims of Appellants, San Juanita (Janie) Griego and Max

Griego, against Appellee, Baptist Saint Anthony’s Health System, a/k/a Baptist Saint
Anthony’s Hospital Corporation, due to their failure to timely file an expert report.1 By

three issues, Appellants assert (1) their negligence action does not raise a health care

liability claim, (2) the trial court erred by retroactively applying the Texas Supreme

Court’s holding in Texas West Oaks Hospital, LP v. Williams,2 and (3) the trial court

erred by failing to grant them an extension of time within which to file an expert report.


        By a supplemental, post-submission brief filed with leave of this Court, Appellants

raise two additional issues which are essentially identical: (1) whether the trial court

erred in granting Appellee’s motion to dismiss because that motion was not timely filed

and (2) whether Appellee waived the right to seek a dismissal under Chapter 74 by not

filing its motion to dismiss until after the deadline for motions under the trial court’s

scheduling order.


        With regard to the three issues originally raised, Appellees contend the trial court

properly classified Appellants’ claims as health care liability claims, did not err in

retroactively applying Texas West Oaks Hospital, and could not statutorily grant an

extension of time to file a conforming expert report. Concerning the two issues raised

by the supplemental briefing, Appellee contends Appellants did not properly preserve

their arguments for appeal and the trial court implicitly modified its scheduling order by

ruling on Appellee’s motion to dismiss. We affirm.




        1
           See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(2) (West Supp. 2014). Section 74.351(b)
provides, “[i]f, as to a defendant physician or health care provider, an expert report has not been served
within the period specified by Subsection (a), the court, on the motion of the affected physician or health
care provider, shall . . . enter an order that . . . (2) dismisses the claim with respect to the physician or
health care provider, with prejudice to the refiling of the claim.”
        2
            Tex. West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012).
                                                     2
                                          BACKGROUND


       In January 2009, Appellants filed suit against Appellee alleging that on May 27,

2007, while acting as Appellee’s employee, Janie sustained injuries when she was

assaulted by a patient at the hospital. According to Appellants’ pleadings, in the course

of her employment as a nurse technician, another nurse asked Janie to sit with a patient

in the neurology unit.        When she entered the patient’s room, the patient was

sitting/standing on the edge of the bed and had pulled the “Call Button/Light” off the

wall. His IV and catheter were entangled.


       Janie told the patient she was going to help him back into bed. He responded

that he wanted to go home. As she was helping him into bed, he started assaulting her.

She cried for help but the patient continued assaulting her until he knocked her down

onto the floor. He then got on top of her and continued his assault. According to

Appellants’ allegations, Janie continued to yell and scream for approximately fifteen to

twenty minutes before hospital security arrived and restrained the patient. Janie was

then taken to the emergency room of the hospital where she was treated for injuries to

her neck, spine and back.         As a result thereof, Appellants asserted Appellee was

negligent in failing to (1) maintain a safe workplace, (2) adequately train Janie for the

task assigned, (3) provide adequate assistance, (4) warn her of unreasonable dangers

and risks of harm to which she was exposed while in the employment of Appellee, (5)

warn her of the defects and safety hazards present in her work environment, and (6)

warn her of the patient’s condition prior to her entering his room.3



       3
           There was no patient’s chart outside the patient’s room. Among other things, the patient’s
medical records indicated he had a possible psychiatric disorder, engaged in violent outbursts, was
periodically disoriented, suffered from Alzheimer’s, was restless, cursed, was confused, was non-
                                                   3
        On February 9, 2009, Appellee filed an answer generally denying those

allegations and asserting both special exceptions and affirmative defenses. Thereafter,

the parties engaged in general discovery. More than two years later, on May 16, 2011,

the trial court signed an agreed scheduling order and discovery control plan that

required “all motions” (other than motions in limine) be filed on or before August 12,

2011. On that deadline, Appellants filed their First Amended Petition and Appellee filed

its Traditional and No-Evidence Motions for Final Summary Judgment. After a flurry of

discovery, including the filing by both parties of motions pertaining to the summary

judgment motions and related discovery, on January 22, 2013, more than four years

after the original petition was filed and over seventeen months after the motions

deadline, Appellee filed, for the first time, its Motion to Dismiss for Failure to Serve

Section 74.351 Expert Report on the basis that Appellants never filed an expert report

pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code.4 In filing its

motion to dismiss, Appellee never filed a motion to modify the scheduling order or

otherwise seek leave of the trial court to file that motion.


        Appellee’s motion to dismiss relied heavily on the then recent opinion of the

Texas Supreme Court in Texas West Oaks Hospital v. Williams, wherein it held that it

was the gravamen of the claim and not the status of the claimant that determines



compliant, complained about wanting more drugs (his toxicology screen showed positive for a variety of
illegal substances), had a history of drug and alcohol abuse, engaged in inappropriate behavior, was
hostile and suffered from dizziness.
        4
          An “expert report” means 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 the failure and the injury, harm, or damages claimed.” TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(r)(6) (West Supp. 2014).


                                                    4
whether a particular claim falls within the provisions of the Texas Medical Liability Act.5

See Tex. West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012).

Appellants responded by contending their claim was not a health care liability claim and

that, if it was, they should have the opportunity to file an expert report because the

Texas West Oaks Hospital case marked a dramatic change in the law concerning

whether claims similar to those being asserted by Appellants were, in fact, health care

liability claims.     In responding to Appellee’s motion to dismiss, Appellants never

challenged the filing of the motion on the basis that it was untimely. Having considered

the motion to dismiss, as well as Appellants’ response, and all other briefing, the trial

court issued its order dismissing Appellants’ claims with prejudice.                       This appeal

followed.


        For purposes of logical analysis, before addressing Appellants’ original issues,

we must first address the two issues raised by their post-submission supplemental

briefing.


            SUPPLEMENTAL ISSUES ONE AND TWO—TIMELINESS OF MOTION TO DISMISS


        Appellants contend the trial court should not have considered Appellee’s motion

to dismiss because that motion was not timely filed in accordance with the trial court’s

scheduling order. Effectively, Appellants contend Appellee waived its right to present a

section 74.351(b) motion to dismiss because it delayed the filing of that motion until



        5
          TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.001-.507 (West 2011 and Supp. 2014). The current
version of the Texas Medical Liability Act applies to suits filed on or after September 1, 2013. Act of May
24, 2013, 83rd Leg., R.S., ch. 870, § 3(b), 2013 Tex. Gen. Laws 2217. Because this suit was filed before
September 1, 2013, the former version of the Act applies to the instant appeal. See Act of May 18, 2005,
79th Leg., R.S., ch. 635, § 2, 2005 Tex. Gen. Laws 1590. Accordingly, all references to “§” or “section”
are references to the Code prior to the 2013 amendment.

                                                    5
after the deadline for filing motions and almost four years after their original

appearance.


       In general, as a prerequisite to presenting a complaint for appellate review, the

record must show that the complaint was made to the trial court by a timely request,

objection, or motion that stated the grounds for the ruling that the complaining party

sought from the trial court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context. TEX. R. APP. P.

33.1(a). Here, Appellants did not present to the trial court any arguments concerning

the timeliness of the motion to dismiss. They did not argue procedural bar, waiver,

estoppel, or laches. Accordingly, the trial court was never afforded the opportunity to

consider their complaints before ruling on the motion to dismiss. Because Appellants

failed to raise this matter below, they waived any complaint concerning the timeliness of

Appellee’s motion to dismiss. Supplemental issues one and two are overruled.


                        FIRST ISSUE—HEALTH CARE LIABILITY CLAIM


       Appellants contend their pleadings do not state a health care liability claim

because their action is premised on Appellee’s failure to warn Janie about the patient’s

mental and physical condition. As such, they assert their claim is a garden-variety

negligence claim and exempt from the strictures of Chapter 74 of the Texas Civil

Practice and Remedies Code. We disagree.


       A “health care liability claim” is a cause of action (1) against a health care

provider or physician (2) for treatment, lack of treatment, or other claimed departure

from accepted standards of medical care, or health care, or safety or professional or


                                             6
administrative services directly related to health care, (3) 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. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West Supp.

2014). No one disputes whether Appellants’ claims meet the first and third elements of

a health care liability claim; instead, their appeal centers on the second element, i.e.,

whether their cause of action is premised on “a departure from accepted standards

of . . . safety or professional or administrative services directly related to health care.”

Thus, we are left to determine whether Appellants are asserting a health care liability

claim when they contend that Appellee failed to maintain a safe workplace by failing to

(1) adequately train Janie for the task assigned, (2) provide adequate assistance, (3)

warn her of unreasonable dangers and risks of harm to which she was exposed while in

the employment of Appellee, (4) warn her of the defects and safety hazards present in

her work environment, and (5) warn her of the patient’s condition prior to her entering

his room.


       In Texas West Oaks Hospital, a psychiatric technician and caregiver, Frederick

Williams, was asked to perform a one-on-one observation of a patient with a history of

paranoid schizophrenia including manic outbursts and violent behavior.          Tex. West

Oaks Hosp., LP, 371 S.W.3d at 174-75. While he was engaged in that observation, a

physical altercation occurred resulting in the patient’s death and injuries to Williams. He

brought suit against his employer, the mental health hospital, alleging injuries arising out

of inadequate training, supervision, risk-mitigation and safety in a mental health facility.

The Supreme Court held that Williams’s claim against his employer was a health care

liability claim because he sought damages for injuries caused by “departures from

accepted standards of safety.” Id. at 186 (“the safety component of health care liability
                                             7
claims need not be directly related to the provision of health care”). Equally applicable

to Appellants’ arguments in this case, the Supreme Court further stated, “[a]n expert

report detailing the departure from standards would still be relevant in a case, such as

this, where a non-patient alleges that the health care provider’s deviations from

accepted standards led to his injury. As explained, expert testimony is necessary to

specify the departure from accepted standards leading to the injury.” Id. at 190.


      More recently, in Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (Tex. 2013),

a treatment facility mental health professional/psychiatric nurse was injured at work

while physically restraining a psychiatric patient during a behavioral emergency and, as

a result of those injuries, asserted an action for negligence against the facility. Id. at

726. Palit asserted “he was injured ‘as a result of improper security of a dangerous

psychiatric patient’ because the treatment facility ‘failed to provide a safe working

environment and failed to make sufficient precautions for [his] safety.’”       Id.   The

Supreme Court held Palit’s claim was a health care liability claim because he alleged

the treatment facility departed from the accepted standards of safety and expert health

care testimony was necessary to support or refute his allegations. Id.


      Because Appellants’ claims, like those in Texas West Oaks Hospital and

Psychiatric Solutions, Inc., are claims that Appellee failed to provide a safe working

environment and failed to take the proper precautions for an employee’s safety, we see

no basis for distinguishing those cases from the case at bar. As such, we conclude that

Appellants’ claims are health care liability claims subject to the requirement of a timely

filed expert report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp.




                                            8
2014). See also Psychiatric Solutions, Inc., 414 S.W.3d at 726; Tex. West Oaks Hosp.,

LP, 371 S.W.3d at 186. Appellants’ first issue is overruled.


    SECOND ISSUE—RETROACTIVE APPLICATION OF TEXAS WEST OAKS HOSPITAL, LP V.
                WILLIAMS AND PSYCHIATRIC SOLUTIONS, INC. V. PALIT

       Appellants next contend that we should only apply the Supreme Court’s holdings

in Texas West Oaks Hospital and Psychiatric Solutions, Inc. prospectively because the

rule espoused by the two cases was not clearly foreshadowed in 2009 when Appellants’

claims were filed and the parties had already engaged in discovery without expert

reports.   While we are not entirely unsympathetic to Appellants’ predicament, we

conclude the holdings therein should be applied retrospectively.


       Although the Supreme Court can determine whether to apply a particular holding

prospectively, the general rule is that its decisions apply retroactively. See Texas Boll

Weevil Eradication Foundation, Inc. v. Lewellen, 952 S.W.2d 454, 454 (Tex. 1996).

Whether a Supreme Court decision applies retroactively or prospectively only is a

matter within the discretion of that Court, and we must apply a Supreme Court decision

retroactively unless that Court exercises its discretion to modify the application of that

general principle. Jackson v. Williams Brothers Construction Co., 364 S.W.3d 317, 323-

24 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). Thus, when the applicable law

changes during the pendency of an appeal because of an opinion by the Supreme

Court, we must render our decision in light of the change in the law.         Continental

Casualty Company v. Baker, 355 S.W.3d 375, 386 (Tex. App.—Houston [1st Dist.]

2011, no pet.).




                                            9
       Because neither Texas West Oaks Hospital nor Psychiatric Solutions, Inc.

contain language evidencing the intent of the Supreme Court to apply its holdings

prospectively only, we conclude the Court intended the opinions to apply

retrospectively.    Picket v. Texas Mutual Insurance Co., 239 S.W.3d 826, 833 (Tex.

App.—Austin 2007, no pet.). Furthermore, both cases merely interpret the provisions of

the Medical Liability Act as enacted. They do not adopt a new statement of the law or

overrule a previous interpretation of the statute. Accordingly, Appellants’ second issue

is overruled.


                          THIRD ISSUE—EQUITABLE EXTENSION OF TIME

       Finally, Appellants alternatively assert the trial court erred by denying their

motion for an extension of time to file an expert report. They contend that because an

expert report was not required when the suit was filed and only became a requirement

after the Supreme Court rendered its decision in Texas West Oaks Hospital, then the

trial court should have granted them an extension of time within which to file an expert

report. Appellee contends Appellants are not entitled to an extension because no report

was timely filed and a party may obtain an extension only if a timely filed report has

been found to be deficient.


       Although section 74.351(c) authorizes a court to grant a thirty-day extension to

the deadline for filing an expert report, such an extension is only available to allow a

claimant to cure deficiencies in a report that has been timely served.6 See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a), (c) (West Supp. 2014); Badiga v. Lopez, 274
       6
          Section 74.351(c) states that “[i]f an expert report has not been served within the period
specified by Subsection (a) [i.e., not later than the 120th day after the date each defendant’s original
answer is filed] because elements of the report are found deficient, the court may grant one 30-day
extension to the claimant in order to cure the deficiency.” See TEX. CIV. PRAC. & REM. CODE ANN. §
74.351(a), (c) (West Supp. 2014) (emphasis added).
                                                    10
S.W.3d 681, 684-85 (Tex. 2009) (holding that “in the absence of a timely report, the trial

court cannot properly grant an extension under section 74.351”); Leland v. Brandal, 257

S.W.3d 204, 207 (Tex. 2009) (holding that statute permits a thirty-day extension when

an intermediate appellate court finds a report to be deficient that the trial court

considered adequate); Ogletree v. Matthews, 262 S.W.3d 316, 320 (Tex. 2007) (holding

that statute allows trial court to grant one thirty-day extension to cure a deficient report).

The thirty-day extension rule is not applicable when no report has been filed. Id. at 320

n.2 (stating that “[i]n this important respect, a deficient report differs from an absent

report”).


       We review a trial court’s ruling on a motion for extension of time to file an expert

report under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62

(Tex. 2003); Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 336 (Tex. App.—Texarkana

2004, pet. denied). The trial court commits an abuse of discretion by acting without

reference to any guiding rules and principles. Downer v. Aquarmarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985).


       Here, Appellants filed no report. Because there was neither an expert report

served within the statutory deadline nor a report where the elements of that report were

found to be deficient, the trial court had no discretion to grant a thirty-day extension.

Under these circumstances, the trial court did not abuse its discretion by denying

Appellants’ motion for an extension of time within which to file an expert report.

Appellants’ third issue is overruled.




                                             11
                                 CONCLUSION


The trial court’s order is affirmed.




                                            Patrick A. Pirtle
                                                Justice




                                       12
