                   NUMBER 13-13-00104-CV

                   COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI – EDINBURG

COLUMBIA RIO GRANDE
HEALTH CARE, L.P., D/B/A
RIO GRANDE REGIONAL
HOSPITAL (MISNAMED AS
RIO GRANDE REGIONAL
HOSPITAL, INC.),                                       Appellant,

                               v.

LEE EDWARD OLDHAM,                                     Appellee.


             On appeal from the 139th District Court
                   of Hidalgo County, Texas.


                 MEMORANDUM OPINION
       Before Justices Rodriguez, Benavides, and Longoria
           Memorandum Opinion by Justice Longoria
         Appellant, Columbia Rio Grande Healthcare, L.P. d/b/a Rio Grande Regional

Hospital, Inc. (the “Hospital”), appeals the trial court’s denial of its motion to dismiss a

suit filed by appellee, Lee Edward Oldham. We reverse and remand.

                                     I. BACKGROUND

         Oldham sued the Hospital for injuries he sustained when he fell from a bed while

being treated as a patient of the Hospital. Oldham alleged that he “was injured while

exclusively in [the] Hospital’s care and while prescribed medication by agents of [the]

Hospital.” Oldham also alleged that the Hospital was negligent for, among other things,

“[f]ailing to give proper medical care to Plaintiff while in the safekeeping of [the]

Hospital” and failing to “provide proper and adequate warnings regarding the drug

Dilantin.”

         The Hospital answered the suit and filed a motion to dismiss, asserting that (1)

Oldham had filed a “health care liability claim” subject to the provisions of Chapter 74 of

the Texas Civil Practice and Remedies Code, known as the Texas Medical Liability Act

(“TMLA”), see TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West Supp. 2011);

(2) Oldham had failed to serve an expert report within 120 days of filing suit, as required

by section 74.351(a), see id. § 74.351(a) (West 2011); and (3) the trial court was

therefore required to dismiss Oldham’s suit with prejudice and award the Hospital

reasonable attorney’s fees and court costs. See id. § 74.351(b)(1). The trial court

denied the motion. This interlocutory appeal ensued. See id. § 51.014(a)(10) (West

2011).




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                                       II. ANALYSIS

       In one issue, the Hospital argues that the trial court erred in denying its motion to

dismiss.

A. Standard of Review

       “We generally review a trial court’s order granting or denying a motion to dismiss

filed under section 74.351 under an abuse of discretion standard.” Hendrick Med. Ctr.

v. Tex. Podiatric Med. Ass’n, 392 S.W.3d 294, 296–97 (Tex. App.—Eastland 2012, no

pet.). “However, when the issue, as in this case, involves the applicability of Chapter 74

to the plaintiff’s claims and requires an interpretation of the statute, we apply a de novo

standard of review.” Id. at 297.

B. Applicable Law

       The TMLA applies to suits involving a “heath care liability claim,” which consists

of three basic elements:

       (1) a physician or health care provider must be a defendant; (2) the claim
       or claims at issue must concern treatment, lack of treatment, or a
       departure from accepted standards of medical care, or health care, or
       safety or professional or administrative services directly related to health
       care; and (3) the defendant’s act or omission complained of must
       proximately cause the injury to the claimant.

Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 179–80 (Tex. 2012) (citing TEX.

CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13)).

C. Discussion

       In this case, all three elements are met. The first element is met because the

Hospital is a health care provider.       See TEX. CIV. PRAC. & REM. CODE ANN. §

74.001(a)(11)(G) & (12)(A)(vii).     The second element is met because Oldham’s

allegations that the Hospital was negligent in “[f]ailing to give proper medical care to

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Plaintiff while in the safekeeping of [the] Hospital” and failing to “provide proper and

adequate warnings regarding the drug Dilantin” concern claimed departures from

accepted standards of medical care and health care.             See id. § 74.001(a)(13);

Buchanan v. O’Donnell, 340 S.W.3d 805. 811 (Tex. App.—San Antonio 2001, no pet.)

(holding that allegations that health care provider was negligent in failing to warn patient

about dangers of prescription medication was “inseparable from . . . rendering of (or

failure to render) medical care”). Finally, the third element is met because Oldham has

alleged that the Hospital’s negligence proximately caused his injuries. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.001(a)(13). Therefore, Oldham has filed a health care

liability claim subject to the TMLA. See id.

       Oldham failed to serve an expert report as required by section 74.351(a). See id.

§ 74.351(a). Therefore, we reverse the trial court’s order denying the Hospital’s motion

to dismiss Oldham’s claims. Furthermore, because the Hospital requested its attorney’s

fees and costs pursuant to Texas Civil Practice and Remedies Code section

74.351(b)(1), we remand to the trial court with instructions to dismiss Oldham’s claims

against the Hospital and consider the Hospital’s request for attorney’s fees and costs.

See id. § 74.351(b)(1).

       The Hospital’s sole issue is sustained.




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                                     III. CONCLUSION

       The order of the trial court is reversed, and the case is remanded to the trial court

for further proceedings consistent with this opinion.




                                                 _______________________
                                                 NORA L. LONGORIA
                                                 Justice
Delivered and filed the
8th day of August, 2013.




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