                            NUMBER 13-14-00030-CV

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

MARY MELINDA BARNES,                                                        Appellant,

                                           v.

NAVARRO HOSPITAL, LP,
NAVARRO REGIONAL, LLC,
D/B/A NAVREG, LLC,                                                         Appellees.


                    On appeal from the 13th District Court
                         of Navarro County, Texas.


                         MEMORANDUM OPINION
             Before Justices Rodriguez, Garza and Benavides
                 Memorandum Opinion by Justice Garza
      In this case, appellant Mary Melinda Barnes failed to timely serve a medical

expert report and the trial court granted a motion to dismiss filed by appellees, Navarro

Hospital, LP, and Navarro Regional, LLC d/b/a Navreg, LLC (collectively “Navarro”).
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through 2013 3d C.S.).

Because we find that the claim raised by Barnes is a health care liability claim, we

affirm.1

                                          I. BACKGROUND

       Barnes was injured on April 4, 2010 while working as an employee of Navarro, a

non-subscriber under the Texas Workers’ Compensation Act. See TEX. LAB. CODE ANN.

§ 405.033(d) (West, Westlaw through 2013 3d C.S.) (providing that, in an action by an

employee against a non-subscriber employer, “the plaintiff must prove negligence of the

employer or of an agent or servant of the employer acting within the general scope of

the agent’s or servant’s employment”). In her original petition, filed on December 21,

2011, Barnes alleged that she “injured her back shortly after starting her shift, when she

was forced to care for a patient who had been unattended for several hours.” According

to the original petition,

       [f]or several hours the patient had made repeated phone calls to patient
       technicians seeking assistance that went unnoticed. In addition, patient
       had not been checked on during the previous shift routine hourly checkup
       rotation. As a result, when [Barnes] began her shift she entered the
       patient’s room to find debris and other liquids scattered across the floor,
       which created an unsafe working environment. [Barnes] attempted to
       assist with [the] patient, who was obese, by cleaning and repositioning
       her. [Barnes] was not provided proper equipment to move an obese
       patient which led to her back injury. In addition, the debris and liquid
       caused [Barnes] to slip and cause further injury to her back, which has
       resulted in multiple procedures and surgeries. . . .

The petition alleged that Navarro was negligent and grossly negligent by: (1) failing to

warn her of “hazards in her work environment”; (2) failing to “maintain a safe working

environment”; (3) failing to provide her “with appropriate equipment required for the safe
       1  This appeal was transferred from the Tenth Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2013 3d C.S.).

                                                  2
performance of her job duties”; (4) failing to “to answer patients[’] repeated calls for

help”; (5) failing to “to properly monitor the patients”; (6) failing “to properly train its

employees”; and (7) failing “to provide adequate staffing.”

        On July 13, 2012, Navarro moved to dismiss Barnes’s suit, asserting that the

claim raised therein is a health care liability claim (“HCLC”) and that Barnes was

therefore required, but failed, to timely file an expert medical report. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(b).2 After Navarro filed its motion to dismiss, but

before the motion was heard and decided, Barnes filed two amended petitions, the latter

of which omitted certain factual allegations. In particular, the second amended petition

alleged in its “Facts” section only that Barnes “was walking in a room when she fell” and

did not state where the accident occurred or that Barnes was in the process of treating a

patient at the time. The second amended petition contained a premises liability claim

alleging that Navarro “possessed actual knowledge of the slippery and unstable floor

and failed to remedy or warn [Barnes] of the slippery unstable condition” and, in the

alternative, that Navarro “possess[ed] constructive knowledge of the slippery and

unstable floor which it would have discovered upon reasonable inspection,” that the

“condition of the floor at the time of the fall was unreasonably dangerous” and that

Barnes did not know about the dangerous condition. In addition to the premises liability

claim, the second amended petition also asserted that Navarro was negligent and

grossly negligent by: (1) “[f]ailing to adequately and timely clean its floors”; (2) “[f]ailing

to cover or mat its floors to prevent incident[s] such as that made the basis of this suit”;

        2  Navarro’s motion requested dismissal of Barnes’s suit as well as an award of reasonable
attorney’s fees. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West, Westlaw through 2013 3d
C.S.) (stating that, if an expert report has not been timely served, “the court, on the motion of the affected
physician or health care provider, shall” enter an order that (1) awards reasonable attorney’s fees and
costs of court to the defendant and (2) dismisses the claim with prejudice).

                                                      3
(3) “[f]ailing to timely and appropriately remedy a slippery unstable condition on the

floor”; and (4) “[f]ailing to take steps necessary to make the floors stable and not

slippery.”

        After a hearing on August 23, 2012, the trial court granted Navarro’s motion to

dismiss3 and this appeal followed.4

                                           II. DISCUSSION

A.      Applicable Law and Standard of Review

        Under the Texas Medical Liability Act (“TMLA”), a plaintiff asserting an HCLC

must serve a medical expert report upon each party’s attorney no later than the 120th

day after the date the original petition was filed. Id. § 74.351(a). The statute defines

HCLC 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 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.

Id. § 74.001(a)(13) (West, Westlaw through 2013 3d C.S.).

        Whether a claim is an HCLC under the TMLA is a matter of statutory

construction, which is a purely legal question that we review de novo. Tex. W. Oaks


        3 The final judgment noted that Navarro abandoned its claim for attorney’s fees. See id. (noting

that fees must be awarded upon dismissal for failure to serve an expert report only “on the motion of the
affected physician or health care provider”); but see Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010)
(characterizing award of fees upon dismissal for failure to comply with expert report requirement as
“mandatory”). Navarro has not filed a cross-appeal challenging the trial court’s failure to award fees.
        4 The Tenth Court of Appeals previously dismissed an appeal arising from the same trial court
proceedings. Barnes v. Navarro Hosp., LP, No. 10-12-00380-CV, 2013 WL 387880, at *1 (Tex. App.—
Waco Jan. 31, 2013, no pet.) (mem. op.) (dismissing appeal for want of jurisdiction because attorney’s
fees issue remained outstanding and judgment was therefore not final, but stating that dismissal was
“without prejudice to the filing of a timely notice of appeal when the trial court has signed a final
judgment”). The trial court subsequently rendered an agreed order dismissing Navarro’s attorney’s fees
claim and explicitly disposing of all claims and parties.

                                                   4
Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012). To determine whether a

cause of action falls under the statute’s definition of an HCLC, we examine the claim’s

underlying nature.    Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010).              Artful

pleading does not alter that nature. Id. In making the determination, we consider the

entire court record, including the pleadings, motions and responses, and relevant

evidence properly admitted. Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012).

       Claims “which require[] the use of expert health care testimony to support or

refute the allegations” are HCLCs. Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724,

727 (Tex. 2013); see Tex. W. Oaks, 371 S.W.3d at 182. However, the inverse is not

true: “[e]ven when expert medical testimony is not necessary, the claim may still be an

HCLC.” Tex. W. Oaks, 371 S.W.3d at 182 (citing Murphy v. Russell, 167 S.W.3d 835,

838 (Tex. 2005) (“The fact that in the final analysis, expert testimony may not be

necessary to support a verdict does not mean the claim is not [an HCLC].”)).

B.     Analysis

       In her original petition, Barnes stated that she slipped on “debris and other liquids

scattered across the floor” in a patient’s room as she was attempting to “clean[] and

reposition[]” the patient. She suggested that Navarro’s negligence stemmed from the

fact that the “patient had not been checked on during the previous shift” which “created

an unsafe working environment.” She alleged in particular that Navarro was negligent

by, among other things, failing to answer the patient’s calls for help, failing to properly

monitor patients, failing to properly train employees, and failing to provide adequate

staffing. This claim is an HCLC because it alleges a departure from accepted standards

of health care. See Tex. W. Oaks, 371 S.W.3d at 180 (noting that “a claim alleges a



                                             5
departure from accepted standards of health care if the act or omission complained of is

an inseparable or integral part of the rendition of health care” and that “training and

staffing policies and supervision and protection of [patients] . . . are integral components

of a [health care facility’s] rendition of health care services . . . .”) (citing Diversicare

Gen. Partner, Inc. v. Rubio, 185 S.W.3d 848, 850 (Tex. 2005)); see also TEX. CIV. PRAC.

& REM. CODE ANN. § 74.001(10) (defining “health care” as “any act or treatment

performed or furnished, or that 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”).

       Barnes argues that we should disregard her original petition and instead review

the trial court’s ruling in light of her second amended petition, in which she alleged only

that she “was walking in a room” in the hospital “when she fell due to a slippery

substance and dangerous debris on the floor.” In response, Navarro argues that we

must consider the allegations in Barnes’s original petition because “a health care liability

claim cannot be recast as another cause of action to avoid the requirements of the

[TMLA].” Diversicare, 185 S.W.3d at 851.

       We agree with Navarro that Barnes’s second amended petition is merely an

effort to “recast” the claims made in her original petition, and so we may not disregard

the original claims.   “Contrary to statements in live pleadings, those contained in

superseded pleadings are not conclusive and indisputable judicial admissions.” Sosa v.

Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (citing Drake Ins. Co. v. King,

606 S.W.2d 812, 817 (Tex. 1980)). But superseded pleadings may be introduced as

probative evidence. See Drake Ins. Co., 606 S.W.2d at 817. Here, Navarro attached a



                                             6
copy of Barnes’s original petition to its reply to Barnes’s response to the motion to

dismiss. Moreover, the Texas Supreme Court has stated that appellate courts “should

consider the entire court record” in determining whether a claim is an HCLC. Loaisiga,

379 S.W.3d at 258. We therefore conclude that the factual allegations made by Barnes

in her original petition are properly considered in the analysis of whether Barnes’s claim

is an HCLC.     And, considering those allegations, we find that the claim alleges a

departure from accepted standards of health care. See TEX. CIV. PRAC. & REM. CODE

ANN. § 74.001(13). Therefore, under the statute, Barnes’s claim is an HCLC and the

trial court did not err in granting Navarro’s motion to dismiss. Barnes’s issue on appeal

is overruled.

                                    III. CONCLUSION

       We affirm the trial court’s judgment granting Navarro’s motion to dismiss.



                                                DORI CONTRERAS GARZA,
                                                Justice


Delivered and filed the
29th day of August, 2014.




                                            7
