                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00398-CV

COLLEGE STATION MEDICAL CENTER, LLC,
                                                             Appellant
v.

ALMA DOREEN TODD,
                                                             Appellee


                           From the 85th District Court
                               Brazos County, Texas
                         Trial Court No. 09-000300-CV-85


                          MEMORANDUM OPINION


       Alma Doreen Todd sued College Station Medical Center, LLC for injuries she

sustained from a fall while trying to make her way to the bathroom in her hospital

room. Because the trial court erred in failing to dismiss Todd’s vicarious liability claims

and her alleged premises liability claims, we reverse and remand the trial court’s order

which dismissed in part and denied in part CSMC’s motions to dismiss.

                                      BACKGROUND

       Todd was admitted to College Station Medical Center for corrective surgery.

After surgery, Todd allegedly called repeatedly for assistance to go to the restroom.
When no one responded, she attempted to get up and go on her own. She fell, suffering

cuts and broken bones. Todd filed her original petition against CSMC on February 3,

2009 alleging negligence of CSMC based on direct and vicarious liability claims. But in

her original petition, Todd did not identify any specific employee’s conduct as a basis of

her claims. On March 6, 2009, well within the 120-day deadline, CSMC was served with

a report and curriculum vitae from a nurse, S. Francis Scholl Foster. CSMC filed

objections to this report. No other reports were served on CSMC until June 8 and June

12, 2009, outside the 120-day deadline. CSMC filed two motions to dismiss pursuant to

section 74.351(b) of the Texas Civil Practice and Remedies Code contending that no

expert report was filed and a dismissal of Todd’s claims was required.

       At the conclusion of the first hearing, the trial court stated on the record that

CSMC’s motion was granted as to Todd’s direct liability claims but denied as to Todd’s

vicarious liability claims. No written order based on that hearing was ever signed.

After the hearing, rather than request an extension of time in which to file an expert

report, Todd amended her petition to delete her direct liability claims against CSMC

and added what she alleged to be a premises liability claim. CSMC filed another

motion to dismiss pursuant to section 74.351(b) again alleging that no expert report was

filed and that a dismissal of Todd’s claims, including the premises liability claims, was

required. Todd responded to the second motion but again did not request an extension

of time in which to file an expert report. After a second hearing, the trial court again

granted CSMC’s motion as to the formerly included direct liability claims, but denied

the motion as to the vicarious liability claims and premises liability claim. A written

College Station Medical Center v. Todd                                              Page 2
order was signed on November 19, 2009. CSMC appeals the trial court’s denial of its

motion to dismiss as to Todd’s vicarious liability claims and premises liability claim.

Todd, however, does not contest the validity of the trial court’s order dismissing her

direct liability claims.

                                         APPLICABLE LAW

       Section 74.351 of the Civil Practices and Remedies Code provides that within 120

days of filing a health care liability claim, a claimant must serve a curriculum vitae and

one or more expert reports regarding every defendant against whom a health care claim

is asserted.    TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp. 2009).

“Section 74.351 has numerous subparts, including:

       . subpart (b) requiring trial courts to dismiss a claim with prejudice and award

fees if ‘an expert report has not been served’ by the statutory deadline;

       . subpart (c) allowing a 30-day extension of the deadline if a report is found

inadequate; and

       . subpart (l) providing that a motion challenging a report's adequacy should be

granted only if the report does not represent a good-faith effort to comply with the

statute.” Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex. 2008) (footnotes omitted); TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(b), (c), (l) (Vernon Supp. 2009).

       We review a trial court's denial of a motion to dismiss under section 74.351 for

abuse of discretion. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); American

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).




College Station Medical Center v. Todd                                               Page 3
                                         NO REPORT

       In its first issue, CSMC argues that the trial court abused its discretion in denying

CSMC’s motion to dismiss when Todd failed to serve CSMC with an expert report.

CSMC contends that the only report served within 120 days after the filing of Todd’s

original petition was the report of a nurse who is statutorily disqualified from rendering

an opinion on causation. Thus, CSMC argues, the trial court should have dismissed

Todd’s vicarious liability claims.

       To the extent Todd alleges that CSMC is liable vicariously for its employees

actions, the expert report requirement is fulfilled as to CSMC if the report is adequate as

to its employees. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 672 (Tex. 2008). 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 the 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 that failure and the injury, harm, or damages claimed.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (Vernon Supp. 2009) (emphasis added).

The report must include the expert's opinion on each of the three elements that the

statute identifies: standard of care, breach, and causal relationship. Bowie, 79 S.W.3d at

52; Palacios, 46 S.W.3d at 878. An expert as to the causal relationship between the injury

claimed and the breach of the standard of care is statutorily defined as “a physician who

is otherwise qualified to render opinions on such causal relationship under the Texas

Rules of Evidence.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(D) (Vernon Supp.

2009) (emphasis added). Further, only a physician who is otherwise qualified to render

College Station Medical Center v. Todd                                                Page 4
opinions on that causal relationship under the Texas Rules of Evidence may qualify as

an expert. TEX. CIV. PRAC. & REM. CODE ANN. § 74.403(a) (Vernon Supp. 2009). So,

before a document can be considered an expert report, it must be rendered by one who

fits the definition of an expert and who is qualified to testify as an expert on the

particular subject-matter.      See Chisholm v. Maron, 63 S.W.3d 903, 907 (Tex. App.—

Amarillo 2001, no pet.); Hopkins County Hosp. Dist. v. Ray, No. 06-08-00129-CV, 2009 Tex.

App. LEXIS 1269, *5 (Tex. App.—Texarkana Feb. 24, 2009, no pet.) (mem. op.). A nurse

is not a physician and therefore is neither an expert nor is qualified to render an expert

opinion regarding causation. TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.351(r)(5)(D);

74.403(a) (Vernon Supp. 2009).

       Accordingly, the nurse’s report, standing alone, is not an expert report. And

because there is no report as to the direct liability claims against CSMC, there is no

report as to the vicarious liability claims against CSMC. See Gardner v. U.S. Imaging,

Inc., 274 S.W.3d 669, 671-672 (Tex. 2008) (“When a party's alleged health care liability is

purely vicarious, a report that adequately implicates the actions of that party's agents or

employees is sufficient.”).

       But Todd counters that no report on causation is required because the link

between Todd’s self help to the restroom, her fall, and her injuries is a link that a

layperson can determine. The cases Todd relies on do not pertain to a Chapter 74

expert report in health care liability cases but pertain only to testimony regarding proof

of causation at a trial on the merits. See Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007);

State Office of Risk Mgmt. v. Larkins, 258 S.W.3d 686 (Tex. App.—Waco 2008, no pet.);

College Station Medical Center v. Todd                                               Page 5
Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408 (Tex. App.—Dallas 2006, pet.

denied); see also Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984) (default

judgment that was reversed by court of appeals for insufficient proof of causation;

Texas Supreme Court reversed).

       The issue at this point in the proceeding, though, is not a determination of the

merits of the claim. In submitting an expert report pursuant to Chapter 74, a plaintiff

need not marshal all of her proof. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 879 (Tex. 2001).         Further, the Texas Supreme Court has held that the

Legislature intended health care liability claims to be scrutinized by an expert or experts

before the suit can proceed. Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005). As the

Supreme Court has stated, the expert report requirement

              … establishes a threshold over which a claimant must proceed to
       continue a lawsuit. It does not establish a requirement for recovery. It
       may be that once discovery is complete and the case is tried, there is no
       need for expert testimony… But the Legislature envisioned that discovery
       and the ultimate determination of what issues are submitted to the
       factfinder should not go forward unless at least one expert has examined
       the case and opined as to the applicable standard of care, that it was
       breached, and that there is a causal relationship between the failure to
       meet the standard of care and the injury, harm, or damages claimed.

Id. Thus, Todd's statutory obligation to file a timely expert report remains even if

causation is commonly understood. See Hector v. Christus Health Gulf Coast, 175 S.W.3d

832, 838 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

       Therefore, because no timely report was filed, the trial court erred in failing to

dismiss Todd’s vicarious liability claims against CSMC. CSMC’s first issue is sustained.



College Station Medical Center v. Todd                                                Page 6
                                         ARTFUL PLEADING

       CSMC next contends that the trial court erred in denying CSMC’s motion to

dismiss Todd’s alleged premises liability claim because the claim is an improper

recasting of Todd’s health care liability claim.

       In determining whether a particular case presents a "health care liability claim,"

we examine the underlying nature of the allegations. Garland Cmty. Hosp. v. Rose, 156

S.W.3d 541, 543-44 (Tex. 2004). We focus on the essence of the claim and consider the

alleged wrongful conduct and the duties allegedly breached, rather than the injuries

suffered. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005).

Further we are not bound by the party's characterization of the claim. Id. A claimant

cannot escape the Legislature's statutory scheme by artful pleading. Murphy v. Russell,

167 S.W.3d 835, 838 (Tex. 2005).

       In her original petition, Todd stated, “This is a health care liability claim.” She

then alleged in paragraph VI that

               COLLEGE STATTION MEDICAL CENTER, LLC, its nurses and

       staff were negligent in at least the following particulars, to wit:

           A. Failure to adequately and timely assess, establish nursing
              diagnoses, plan, implement and evaluate  ALMA DOREEN
              TODD’S care and condition;

           B. Failure to hire and train appropriate personnel to monitor,
              supervise and/or treat ALMA DOREEN TODD;

           C. Failure to render timely and appropriate medical treatment and
              nursing intervention to ALMA DOREEN TODD;



College Station Medical Center v. Todd                                              Page 7
           D. Failure to provide ALMA DOREEN TODD with adequate
              supervision and assistive devices to prevent falls and injury;

           E. The retention of unfit, unqualified and incompetent staff;

           F. Failure to provide sufficient numbers of staff to meet said patient’s
              fundamental care needs;

           G. Failure to provide the patient with quality care, e.g., the necessary
              care and services to attain, or maintain, the highest practicable
              physical, mental and psychosocial well-being, in accordance with
              the assessment and care plan;

           H. In failing to provide adequate nursing care considering the
              medication schedule, physical and metal condition, health and
              body size of ALMA DOREEN TODD;

           I. Failure to formulate and implement a sufficient care plan
              regarding the fundamental care needs of ALMA DOREEN TODD;

           J. Failure to report and document ALMA DOREEN TODD’S
              condition, treatment and response in accordance with accepted
              nursing standards and practices that are completely and accurately
              documented; and,

           K. Failure to provide ALMA DOREEN TODD with quality of life,
              dignity and respect with all care necessary to achieve the highest
              possible level of health.

       Following the initial hearing on CSMC’s two motions to dismiss where the trial

court orally granted the motions as to these claims, Todd dropped these allegations. In

her second amended petition, Todd deleted her statement that “[t]his is a health care

liability claim.” She then deleted her previous allegations in paragraph VI and instead,

alleged the following.

             As alleged hereinbefore, Plaintiff was a       patient at   COLLEGE
       STATION MEDICAL CENTER, LLC and was                  an invitee   upon the
       premises owned, occupied and controlled by           COLLEGE      STATION
       MEDICAL CENTER, LLC. Plaintiff because a             patient at   COLLEGE

College Station Medical Center v. Todd                                                Page 8
       STATION MEDICAL CENTER, LLC by virtue of agreeing to pay
       COLLEGE STATION MEDICAL CENTER, LLC for room, board, basic
       household services, personal assistance when needed, nursing services,
       medication and use of the facilities, particularly the use of a hospital
       room, the room’s bed and the room’s restroom facility. The Plaintiff’s
       room contained a bed which was equipped with bedrails. The room was
       also equipped with a call button which allowed Plaintiff to electronically
       summon hospital personnel to her room. On the occasion of the accident
       in question, Plaintiff attempted to summon hospital personnel to her
       room by use of the electronic call button mechanism so that she could
       receive assistance to go to the room’s restroom facility. However, no one
       responded. Failing to receive assistance, Plaintiff then got out of her bed
       and attempted to walk to the restroom without assistance. Because
       Plaintiff was elderly, recovering from surgery, wearing a sequential
       pressure device, and had been given a sedative, Plaintiff fell and was
       thereby severely injured. Had COLLEGE STATION MEDICAL CENTER,
       LLC’S employees responded to the Plaintiff’s electronic call for assistance
       in a timely manner and/or had the bedrails on Plaintiff’s bed been put in
       the raised position, Plaintiff’s fall would not have occurred.
       Todd further alleged

               Answering a patient’s electronic call for assistance does not
       implicate professional health care expertise judgment or discretion.
       Rather, answering the Plaintiff’s call was mandatory and
       nondiscretionary inasmuch as it was one of the bundle of services that
       Plaintiff was paying for and that COLLEGE STATION MEDICAL
       CENTER, LLC had agreed to provide. Furthermore, the failure to raise
       the bedrails on Plaintiff’s bed under the circumstances created an
       unreasonably dangerous physical condition (premises defect) of which
       COLLEGE STATION MEDICAL CENTER, LLC’S employee(s) had actual
       notice which, in turn, proximately caused Plaintiff’s injuries and damages.
       The creation of or failure to cure this unreasonably dangerous condition
       does not implicate health care expertise or professional judgment. Rather,
       it is (was) a negligent failure to utilize or engage the safety features of the
       Plaintiff’s hospital bed in the manner which was intended by the
       manufacturer and in the manner required by COLLEGE STATION
       MEDICAL CENTER, LLC’S own policies, practices, procedures and rules.

       The obligation of a health care facility to its patients is not the same as the

general duty a premises owner owes to invitees. Diversicare, 185 S.W.3d at 851; NCED

Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 37 (Tex. App.—El Paso 2006, no pet.). Health

College Station Medical Center v. Todd                                                   Page 9
care staff make judgments about the care, treatment, and protection of individual

patients and the patient populations in their facilities based on the mental and physical

care the patients require. Id. This is distinct from the duty of ordinary care owed by

premises owners to their residents and invitees. See id. Focusing on the essence of the

claims, Todd’s “new” allegation constitutes a health care liability claim because it is

based on a claimed departure from the standards of care related to health care, safety,

and professional and administrative services directly related to health care. In this

regard, it is nothing more than an improper effort to recast the prior pleading, which is

clearly a health care liability claim, as only a premises defect when the substance of the

claim remains unchanged.

       Accordingly, the trial court erred in failing to dismiss this claim as well because

no report was timely filed. CSMC’s second issue is sustained.

                                         CONCLUSION

       Having sustained both of CSMC’s issues on appeal, we reverse the trial court’s

order and remand this case for further proceedings consistent with this opinion.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and remanded
Opinion delivered and filed September 1, 2010
[CV06]




College Station Medical Center v. Todd                                             Page 10
