
                                          NO. 07-10-0228-CV

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL C

                                           NOVEMBER 23, 2010








                              ASSISTED LIVING CONCEPTS, INC., APPELLANT


                                                  v.


                        TERESA STARK, AS NEXT FRIEND OF FRED GRABEAL, APPELLEE





                            FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                          NO. 98,015-A; HONORABLE RICHARD DAMBOLD, JUDGE[1]





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


                                          MEMORANDUM OPINION

      Appellant, Assisted Living Concepts, Inc., ("ALC"), filed this  interlocutory  appeal  from  an
order denying its motion to  dismiss  the  premises  liability  and  breach  of  contract  claims  of
Appellee, Teresa Stark, as next friend of Fred Grabeal (Stark), for failing to file an expert  report
pursuant to section 74.351 of the Texas Civil Practice and Remedies Code.[2]  We affirm in part,  and
reverse and render in part.

                                              Background

      On October 13, 2009, Stark,  Fred  Grabeal's  stepdaughter,  filed  suit  on  Grabeal's  behalf
against "Potter House, Assisted Living Concepts, Inc.", alleging that he was injured as a  result  of
negligence and breach of contract.  Stark alleged Grabeal was diagnosed with  Alzheimers  disease  in
the spring of 2004 and became a patient at Potter House,[3] an  assisted  living  community,  in  May
2007.  Potter House is not a lock down facility, i.e.,  the  residents  are  not  confined  to  their
living quarters by locked doors and the doors to the outdoors are not locked so  as  to  prevent  the
residents from leaving the premises.[4]  Stark further alleged that Grabeal was injured as  a  result
of being allowed to wander off Potter House's premises on May 17 and 18,  2009.   Grabeal  was  later
found by Amarillo  Police  Department  officers.   On  November  9,  2009,  ALC  filed  its  original
answer.[5]

      For her premises liability  and  breach  of  contract  causes  of  action,  Stark  alleged  the
following, in pertinent part:

      FRED A. GRABEAL'S CLAIM FOR NEGLIGENCE

      14.  Defendant(s) had a duty to properly supervise Grabeal  due  to  his  known  propensity  to
      wander off since he suffered  from  Alzheimer's  disease  and  defendant(s)  duty  to  properly
      maintain locks on the premises to prevent Grabeal and others from wandering  off  the  premises
      and being unsupervised.

      15.  As a proximate result of the defendant(s) failure to properly  supervise  Grabeal  and  to
      properly maintain its premises, as represented to plaintiff as being secure,  Grabeal  suffered
      injuries and damages as a result of the defendant(s) negligence.


      FRED A. GRABEAL'S CLAIM FOR BREACH OF CONTRACT

      16.  Stark contracted on behalf of Grabeal for a (sic) supervision and care in a secure
      location at Potter House.


      On February 22, 2010, ALC filed a motion to dismiss alleging that Stark's  claims  were  health
care liability claims and subject to dismissal because Stark had failed to serve an expert report  as
required by section 74.351(a).  Stark responded, a hearing was held, and the trial  court  issued  an
order dismissing Stark's "health care liability claims" with prejudice but denying ALC's  motion  "as
to Plaintiff's claims for premises liability and breach of contract."  This appeal followed.

                                              Discussion

      ALC contends that Stark's premises liability and  breach  of  contract  claims  are,  in  fact,
health care liability claims because the claims allege  that  owner  and  operator  of  Potter  House
failed to properly supervise or protect Grabeal from  harm.   As  such,  ALC  contends  that  Stark's
claims may not be proven without expert testimony  regarding  Grabeal's  medical  condition  and  the
level of supervision he required, i.e., whether the owner and operator of Potter House  was  under  a
duty to secure Grabeal's presence at the assisted living facility.  Stark disagrees and asserts  that
her claims  also  include  the  failure  to  secure  the  exterior  doors  and/or  properly  maintain
functioning door locks at Potter House.

                                          Standard of Review

      Appellate courts review a trial court's order decision to either grant  or  deny  a  motion  to
dismiss for failure to timely file a section 74.351(a) expert report under  an  abuse  of  discretion
standard.  See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam); Jones  v.  King,  255
S.W.3d 156, 158 (Tex.App.--San Antonio  2008,  pet.  denied).   However,  when  the  issue  presented
requires statutory interpretation or a determination whether chapter  74  applies  to  a  claim,  the
issue presents a question of law which we review  de  novo.  Fudge  v.  Wall,  308  S.W.3d  458,  460
(Tex.App.--Dallas 2010, no pet.).  Whether Stark's  claims  for  premises  liability  and  breach  of
contract are health care liability claims is an issue presenting a  question  of  law.  See  Dual  D.
Healthcare Operations, Inc. v. Kenyon, 291 S.W.3d 486, 489-90 (Tex.App.--Dallas 2009, no  pet.);  Lee
v. Boothe, 235 S.W.3d 448, 451 (Tex.App.--Dallas 2007, pet. denied).

                                     Health Care Liability Claim

      The statute defines "health care liability claim" 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.


Section 74.001(a)(13).[6]


      To determine whether a cause of action falls under the definition of a  health  care  liability
claim, we examine the underlying nature of the claim.  Garland Cmty. Hosp. v. Rose, 156  S.W.3d  541,
543 (Tex. 2004).  "[I]t is the gravamen of the claim, not the form of the  pleadings,  that  controls
this determination."  Marks v. St. Luke's Episcopal  Hospital,  319  S.W.3d  658,  664  (Tex.  2010).
Although we are not bound by the form of the plaintiff's pleading; Diversicare General Partner,  Inc.
v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005), a review of Stark's allegations is helpful  in  evaluating
whether her claims against ALC are health care liability claims  recast  as  premises  liability  and
breach of contract claims.  Fudge, 308 S.W.3d at 462.  We consider the alleged  wrongful  conduct  as
well as the duties allegedly breached.  Wilson N. Jones Mem'l Hosp. v.  Ammons,  266  S.W.3d  51,  57
(Tex.App.--Dallas 2008, pet. filed).

      If the factual allegations are related to medical  treatment  provided  by  the  defendant  and
constitute  an  inseparable  part  of  the  defendant's  rendition  of  medical  services,  then  the
plaintiff's claim is a health care liability  claim  subject  to  the  requirements  of  chapter  74.
Marks, 319 S.W.3d at 664; Lee, 235 S.W.3d at 451.  Whether the testimony of a medical or health  care
professional is necessary may be an important factor in determining whether a cause of action is  "an
inseparable part of the rendition of medical or health care services."  Diversicare,  185  S.W.3d  at
848.  Other factors include whether a specialized standard in the health care  community  applies  to
the alleged circumstances, and whether the negligent act  involves  medical  judgment  related  to  a
patient's care or treatment.  Marks, 319 S.W.3d at 676.

      The gravamen of Stark’s claim is that the owners  and  operators  of  Potter  House  failed  to
supervise Grabeal and permitted him to wander off the premises.  Her complaint  specifically  alleges
that ALC "had a duty to properly supervise Grabeal" and "a duty to properly  maintain  the  locks  on
the premises to prevent Grabeal . . . from wandering off the premises .  .  .  unsupervised."   Stark
further contends that she contracted for "supervision and care in  a  secure  location."   Thus,  the
primary focus of Stark's claim is not, as she suggests, whether the locks  on  Potter  House's  doors
were properly maintained or defective; but is, instead, whether Grabeal was appropriately  supervised
and whether he should have been confined to Potter House's premises or had his  mobility  restrained.


      In the absence of any duty to keep Grabeal's mobility restrained, ALC could not be held  liable
for failing to maintain locks on its outside doors in order to keep Grabeal inside  the  institution.
Where the patient's known mental and physical condition gives no indication that he or she is  likely
to wander, the health care provider has no reason or duty to  restrain  him  or  her.   Golden  Villa
Nursing Home, Inc. v. Smith, 674 S.W.2d 343, 347 (Tex.App.--Houston [14th  Dist.]  1984,  writ  ref'd
n.r.e.).

      Stark's alleged negligence and breach of contract claims also require expert medical  testimony
to determine whether  Potter  House  breached  a  specialized  standard  of  care  involving  medical
judgment, i.e., whether to restrain Grabeal's mobility or not.     See  Diversicare,  185  S.W.3d  at
849.  Prior to a determination whether a patient should be restrained, what restraint is  appropriate
and/or what degree of restraint to  apply,  the  health  care  provider  must  consider  a  patient's
physical and mental condition to formulate a standard of care for that individual patient  and  abide
by that standard.  Diversicare, 185 S.W.3d at 850; Golden Villa Nursing Home,  Inc.,  674  S.W.2d  at
347.  Such a determination is not within the common knowledge of  the  general  public;  Diversicare,
185 S.W.3d at 850; NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 34 (Tex..App.--El Paso  2006,  no
pet.), and no general rule  can  be  articulated  for  this  standard  because  it  requires  that  a
"determination of what constitutes 'reasonable care' be made in each  individual  case,  taking  into
consideration the individual patient's known mental and physical condition."   Golden  Villa  Nursing
Home, Inc., 674 S.W.2d at 348.  Whether Potter House, an open  facility,  breached  a  duty  owed  to
Grabeal requires expert testimony because that determination involves a medical judgment  related  to
his then existing mental and physical condition and the appropriateness of his  medical  care  and/or
treatment.

      We conclude Stark's tort and breach of contract claims are based on  an  alleged  breach  of  a
standard of care applicable to health care providers and inseparable from the  rendition  of  medical
services because they may  not  be  proven  without  expert  testimony  regarding  Grabeal's  medical
condition and the level of supervision required.[7] See Shaw v. BMW Healthcare, Inc., 100  S.W.3d  8,
15 (Tex.App.--Tyler 2002, pet. denied) (citing Gormley v. Stover, 907 S.W.2d 448, 450  (Tex.  1995)).
Appellant's sole issue is sustained.

      Attorney's Fees

      By its prayer, contained within both its original and reply briefs, ALC requests this Court  to
remand this cause to the trial court for a determination of attorney's fees to  be  awarded  pursuant
to § 74.351(b)(1).  The body of both briefs, however, fails to contain any discussion of this  issue.
 Rule 38.1(h) of the Texas Rules of Appellate Procedure requires that the body of  Appellant's  brief
contain a succinct, clear, and accurate statement of the arguments made  in  support  of  any  relief
requested.  Failure to advance an argument, cite authority,  make  record  references,  or  otherwise
brief an issue effects a waiver of that issue on appeal.  Sunnyside  Feedyard  v.  Metro.  Life  Ins.
Co., 106 S.W.3d 169, 173 (Tex.App.--Amarillo 2003, no pet.).

                                              Conclusion

      Accordingly, we affirm that portion of the trial court's order dismissing Stark's "health  care
liability claims," we reverse the trial court's prior  order  as  to  Stark's  remaining  claims  for
premises liability and breach of contract, we render judgment  dismissing  all  claims  against  ALC,
with prejudice pursuant to section 74.351(a), (b)(2), and we deny Appellant's request to remand  this
cause to the trial court for a  determination  of  attorney's  fees  to  be  awarded  pursuant  to  §
74.351(b)(1).  All legislatively mandated costs of court are assessed against Appellant.



                                        Patrick A. Pirtle
                                              Justice
-----------------------
[1]Sitting by assignment.  Tex. Gov't Code Ann. § 75.002(a)(3) (Vernon 2005).

[2]Under Chapter 74 of the Texas Civil Practice and Remedies Code, a health care  liability  claimant
must serve an expert report on a defendant physician or health care provider within  120  days  after
the date the original petition was filed.  Tex. Civ. Prac. &  Rem.  Code  Ann.  §  74.351(a)  (Vernon
Supp. 2010).  If such a report is not served, a defendant physician or health care provider may  file
a motion to dismiss the claim with prejudice to its refiling.  Id.  §  74.351(b)(2).   If  the  trial
court's order on the motion to dismiss "denies all or part of the relief sought by the  motion,"  the
movant may file an interlocutory appeal of  the  trial  court's  order.   Id.  §  51.014(a)(9).   For
convenience, future citations to the provisions  of  the  Texas  Civil  Practice  and  Remedies  Code
throughout the remainder of this opinion will be simply as "section ____" or "§ ____."

[3]As used herein, "Potter House" refers to the physical facility where Grabeal resided on May 17,
2009.

[4]Affidavit of Tina Burnworth, Regional Director of Quality and Care Management  for  Potter  House,
attached to Defendant's Reply To Plaintiff's Response To  And  Brief  In  Opposition  To  Defendant's
Motion To Dismiss For Failure To Serve Expert Report.

[5]In part, ALC's original answer contained a verified denial contending that ALC was not  liable  in
the capacity sued.  Although ALC's answer does not aver who or what entity owns and  operates  Potter
House, later pleadings indicate that Texas ALC Partners II, L.P.  both  owns  and  does  business  as
Potter House.  See Brief for Appellant Texas ALC Partners II, L.P. D/B/A Potter House, Cause No.  07-
10-0360-CV.

[6]"Health care" is defined 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."  Section 74.001(a)(10).



[7]Regarding the  use  of  restraints  and  supervision  in  nursing  homes,  the  Supreme  Court  in
Diversicare stated as follows:

   [s]ome patients require enhanced supervision  and  additional  staff  or  physical  restraints  to
   protect them from injuring themselves and others . . ., while other patients do not  require  such
   protections.  The nature and intensity of care and treatment, including professional  supervision,
   monitoring, assessment, quantities and types  of  medication,  and  other  medical  treatment  are
   judgments made by professionals trained and experienced in treating and caring  for  patients  and
   the patient populations in their health care facilities.

Diversicare, 185 S.W.3d 849.





