                           NUMBER 13-11-00300-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

GRACE HOYT,                                                              Appellant,

                                          v.

TIMOTHY VAN FRANK, M.D., ET AL.,                                          Appellee.


                  On appeal from the 347th District Court
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
   Before Chief Justice Valdez and Justices Benavides and Perkes
            Memorandum Opinion by Justice Benavides
      This is an appeal of an order granting a motion to dismiss for failure to file an

expert report under Chapter 74 of the Texas Civil Practices and Remedies Code.     See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West 2011).         Appellant, Grace Hoyt,
asserts the trial court erred in three ways:        (1) in finding that Hoyt’s claim constituted a

health care liability claim; (2) in allowing Appellee Timothy Van Frank, M.D. to act as his

own expert witness; and (3) in denying Plaintiff’s motion for a new trial. We affirm.

                                          I. BACKGROUND

       Dr. Van Frank performed a colonoscopy, esophagogastroduodenoscopy, 1 and

biopsy on Hoyt at Corpus Christi Gastroenterology, PLLC. When Hoyt returned to Dr.

Van Frank’s medical office to pick up her test results to share with her primary care

physician, an employee asked to weigh Hoyt.              Hoyt reluctantly agreed to be weighed.

As Hoyt attempted to get on the medical scale, she fell and injured herself. These

injuries later formed the basis of a lawsuit Hoyt filed against Dr. Van Frank, Corpus

Christi Gastroenterology, and Dr. Van Frank’s employee.

       Hoyt believed her lawsuit was a premises liability lawsuit, not a health care liability

claim under chapter 74 of the civil practices and remedies code.             Her original petition, in

relevant part, asserted the following:

       When [Hoyt] stepped onto the sca[l]e provided by [Dr. Van Frank] with her
       left foot, the scale tilted back causing [Hoyt] to fall and land on her wrist and
       her tailbone. Plaintiff was an invitee at the time of her office visit to [Dr.
       Van Frank’s] office. [Dr. Van Frank] as the owner/possessor of the
       premises had a duty to [Hoyt], to keep the premises free from any
       unreasonable risk of harm. In the exercise of reasonableness, [Dr. Van
       Frank] should have known of [the] dangerous condition at his place of
       business. [Dr. Van Frank] breach[ed his] duty of ordinary care by both (1)




       1
          According to the Medline Plus online medical dictionary, an “esophagogastroduodenoscopy” is a
test to examine the lining of the esophagus, stomach, and first part of the small intestine. See MEDLINE
PLUS, available at http://www.nlm.nih.gov/medlineplus/mplusdictionary.html.




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       failing to adequately warn the Plaintiff of the condition, and (2) failing to
       make the condition reasonably safe.

       Hoyt did not timely file an expert report within 120 days of filing her suit.      See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). Dr. Van Frank therefore filed a motion

to dismiss on this basis.   See id. § 74.351(b). Both Hoyt and Dr. Van Frank testified at

the hearing on the motion to dismiss. Although Hoyt claimed she was solely at the

office to pick up her test results, Dr. Van Frank testified that Hoyt had made an

appointment, the purpose of which was “to go over the results of the operative findings,

to review the biopsy results with her, to assess the status of her symptoms at that point in

time, to formulate a treatment plan, [and] to decide if any additional testing would be

required to help her.” Dr. Van Frank also stated that Hoyt was being weighed as part of

an established medical protocol to take the patient’s blood pressure, pulse, weight, and

other vital signs whenever one comes in for an appointment.          Dr. Van Frank testified

that Hoyt’s weight measurement was especially important in light of the gastrointestinal

complaints for which she was seeking treatment, because any significant weight loss

would have been important to note.            Hoyt admitted that she had to make an

appointment to retrieve her results.

       The trial court granted Dr. Van Frank’s motion, and this interlocutory appeal

ensued.    See Badiga v. Lopez, 274 S.W.3d 681, 683 (Tex. 2009); see also TEX. CIV.

PRAC. & REM. CODE ANN. §51.014(a)(9) (West 2008) (providing that a person may bring

an interlocutory appeal of a trial court decision to deny all or part of the relief sought by a

motion under section 74.351(b)).




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                                        II. ANALYSIS

A.     Health Care Liability Claim

       1. Standard of Review and Applicable Law

       Under chapter 74, any person who has brought a suit asserting a health care

liability claim must provide an expert report for each physician or healthcare provider

against whom the claim is asserted within 120 days of filing the claim.       See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a). If an expert report is not filed, the trial court must,

upon motion of the defendant, dismiss the claim with prejudice and award the defendant

reasonable attorney’s fees and costs of court.         See id. § 74.351(b).    The statute

defines a health care liability claim as follows:

       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 actions
       sounds in tort or contract.
Id. § 74.001(a)(13) (West 2011).

       Generally, we review a trial court’s order denying a motion to dismiss under an

abuse of discretion standard.    See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,

46 S.W.3d 873, 877 (Tex. 2001). Whether a cause of action is a health care liability

claim, however, is a question of law that an appellate court must review de novo. See

Boothe v. Dixon, 180 S.W.3d 915, 919 (Tex. App.—Dallas 2005, no pet.).

       “In determining whether a cause of action is a health care liability claim, we

examine the underlying nature of the claim and are not bound by the form of the

pleading.”   Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005).



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“A plaintiff cannot circumvent the expert report requirement by artfully pleading her

health care liability claim based upon the negligence of the health care provider as some

other cause of action . . . .”      Christus Spohn Health Sys. Corp. v. Sanchez, 299 S.W.3d

868, 873 (Tex. App.—Corpus Christi 2009, no pet.).                        The Texas Supreme Court

recently elaborated on this principle:

        In defining the types of claims against health care providers constituting
        [health care liability claims], the question we face is not whether it seems
        that a claimed injury really arose from treatment commonly understood to
        be some type of medical or health care; nor do we address whether the
        incident causing the injury would have been a common law negligence
        claim. Instead, the issue posed is whether the umbrella fashioned by the
        Legislature's promulgation of the [Texas Medical Liability Act] includes the
        cause of action brought by a claimant against physicians or health care
        providers.

        The foundations of our analysis are well established. As in Diversicare and
        Marks, we determine whether the relevant allegations are negligence
        claims or are properly characterized as [health care liability claims] under
        the Act.

Tex. West Oaks Hosp., LP. V. Williams, No. 10-0603, 2012 Tex. LEXIS 561, at ** 16–17

(Tex. June 29, 2012) (citing Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 662

(Tex. 2010) (construing the TMLIIA); Diversicare, 185 S.W.3d at 847 (same)).


        2. Discussion2

        Here, we look past the pleadings to determine the underlying nature of the claim.

Hoyt, by her own admission, made an appointment with Dr. Van Frank’s office to retrieve


        2
          Hoyt also complains that she was “ambushed” because Dr. Van Frank never argued that it was a
health care liability claim until after the 120 day deadline to file an expert report passed. We find evidence
to the contrary in the record. In a Notice of Appearance of Additional Counsel, Dr. Van Frank asserted, “By
way of further answer, Defendant Timothy Van Frank . . . pleads all of the relief, procedural and
substantiative [sic] requirements of Chapter 74 of the Civil Practice and Remedies Code.”



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her test results. Although there is a dispute as to whether Hoyt was going to just “pick

up” her results or actually meet with Dr. Van Frank, the record is clear that Hoyt was Dr.

Van Frank’s patient. Hoyt fell and injured herself in the process of a typical medical

protocol—that of being weighed.

         Importantly, in her petition, Hoyt claims that Dr. Van Frank had a faulty weight

scale and failed to properly maintain it. We find this claim similar to the Marks v. St.

Luke’s Episcopal Hospital case, in which the Texas Supreme Court held that providing

an unsafe or defective hospital bed constituted a health care liability claim under the

former medical malpractice statute.     See 319 S.W.3d 658, 664 (Tex. 2010). In Marks,

the high court concluded that “[m]edical equipment specific to a particular patient's care

or treatment is an integral and inseparable part of the health care services provided.

When the unsafe or defective condition of that equipment injures the patient, the

gravamen of the resulting cause of action is a health care liability claim.” Id.    Because

Hoyt was seeking professional services directly related to the health care treatment Dr.

Van Frank had previously provided, and fell off a medical apparatus related to her care

which proximately resulted in her injury, we hold that this lawsuit is a health care liability

claim.    See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). We overrule Hoyt’s

first issue.

B.       Expert Witness

         By her second issue, Hoyt argues that Dr. Van Frank should not have testified as

his own witness to help establish this claim as a health care liability claim.




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         1. Applicable Law

         To preserve a complaint for appellate review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds for the

desired ruling, if they are not apparent from the context of the request, objection, or

motion. TEX. R. APP. P. 33.1(a); see also TEX. R. EVID. 103(a)(1). “If a party fails to do

this, error is not preserved, and the complaint is waived.”   Bushell v. Dean, 803 S.W.2d

711, 712 (Tex. 1991) (op. on reh'g). The objecting party must get a ruling from the trial

court.    Id.   Further, the complaint on appeal must be the same as that presented in

the trial court. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997).           An appellate

court cannot reverse based on a complaint not raised in the trial court.   Id.

         2. Discussion

         Hoyt complains that the trial court erred in allowing Dr. Van Frank to act as his

own expert witness. However, Hoyt lodged no objection when Dr. Van Frank testified at

the hearing on the motion to dismiss. In fact, Hoyt’s counsel questioned Dr. Van Frank

at length without lodging an objection about his ability to testify or his qualifications.

Because the issue raised on appeal does not comport with an objection made before the

trial court, we overrule this issue.   See id.

C.       Motion for New Trial

         1. Applicable Standard

         Texas Rule of Civil Procedure 320 sets forth the procedure for motions for new

trial. The rule provides, in relevant part, that, “New trials may be granted and judgment

set aside for good cause, on motion or on the court's own motion on such terms as the




                                                 7
court shall direct.”   TEX. R. CIV. P. 320. When a motion for new trial is filed by a party,

the motion must clearly set forth the bases for the motion:

         Each point relied upon in a motion for new trial or in arrest of judgment
         shall briefly refer to that part of the ruling of the court, charge given to the
         jury, or charge refused, admission or rejection of evidence, or other
         proceedings which are designated to be complained of, in such a way that
         the objection can be clearly identified and understood by the court.

TEX. R. CIV. P. 321.

         “Texas trial courts have historically been afforded broad discretion in granting new

trials.” See In Re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 210 (Tex. 2007)

(citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)).               A trial

court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to

guiding rules or principles.    See Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996).

         2. Discussion

         Hoyt argued that her motion for a new trial should have been granted on several

bases.     First, she advanced that Dr. Van Frank should not have been allowed to testify

as his own witness. As we discussed in the previous section of this opinion, though,

Hoyt waived this complaint when her attorney cross-examined Dr. Van Frank at length at

the motion to dismiss hearing and failed to lodge this specific objection.         See Banda,

955 S.W.2d at 272; TEX. R. APP. P. 33.1(a).

         Second, Hoyt argues that Dr. Frank “was not qualified to testify as an expert” and

that his testimony was “biased, self-serving, and unreliable.” Again, however, Hoyt

made none of these objections during Dr. Van Frank’s testimony during the hearing on

the motion to dismiss, so this argument is also waived.       TEX. R. APP. P. 33.1(a).



                                                8
       Third, Hoyt asserts that Dr. Van Frank was not listed as an expert witness in

appellees’ responses to requests for disclosure.   See TEX. R. CIV. P. 166.   Hoyt argues

that “[Dr.] Van Frank was required to be listed as an expert in order to testify at the

hearing on Defendant’s Motion to Dismiss.” The hearing on the motion to dismiss,

however, was not a trial on the merits. The rules of civil procedure regarding expert

disclosure, such as Rule 190.4 that a plaintiff's expert must be designated either 90

days before the end of the discovery period or as otherwise ordered by the court, apply

to actual trial settings.   See TEX. R. CIV. P. 190.4. They do not apply to preliminary

hearings in a chapter 74 setting.   See Spectrum Healthcare Res., Inc. v. McDaniel, 306

S.W.3d 249, 253 (Tex. 2010). “A section 74.351 threshold expert report has a unique

purpose separate and apart from the procedural rules relating to discovery and typical

expert reports.     The Legislature created the threshold report requirement as a

substantive hurdle for frivolous medical liability suits before litigation gets underway.”

Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351). “In recognition of their distinct

role, threshold medical reports are treated differently from ordinary expert reports.” Id.

       Finally, Hoyt contends that she should have been granted “a new trial in order to

conduct discovery on the issue of whether the facts alleged constituted a health care

liability claim.” Based on the record, though, which included evidence that Hoyt was a

patient of Dr. Van Frank’s, that Dr. Van Frank performed several outpatient tests and

procedures on her, that Hoyt made an appointment to retrieve her test results, that she

fell while being weighed as part of a general medical protocol, and that she alleged her

injuries were the result of a faulty piece of medical equipment which aided in her care




                                             9
and treatment, we cannot say the trial court abused its discretion when it failed to grant a

motion for new trial.   See Broders, 924 S.W.2d at 151. We overrule Hoyt’s third issue.

                                      III. CONCLUSION

       Having overruled all of Hoyt’s issues, we affirm the order of the trial court.




                                                         __________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


Delivered and filed the
9th day of August, 2012.




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