                                   NUMBER 13-08-00320-CV

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

FRESENIUS MEDICAL CARE
OF BROWNSVILLE AND
FRESENIUS MEDICAL CARE, N.A.,                                                               Appellants,

                                                      v.

MARTINIANO GARCIA
AND RAQUEL GARCIA,                                                                             Appellees.


                        On appeal from the 103rd District Court
                             of Cameron County, Texas.


                               MEMORANDUM OPINION
                   Before Justices Yañez, Rodriguez, and Garza
                     Memorandum Opinion by Justice Yañez
        Appellants, Fresenius Medical Care of Brownsville and Fresenius Medical Care,

N.A., appeal from the trial court's denial of their motion to dismiss a suit filed by appellees,

Martiniano Garcia and Raquel Garcia. By one issue, appellants challenge the trial court's

denial of their motion to dismiss alleging that appellees' causes of action were health care

liability claims and that appellees did not file the required expert report.1 We reverse and

remand.

                                              I. BACKGROUND

        1
          No appellees' brief has been filed to assist us in the resolution of this case. Accordingly, we decide
this appeal based on the brief filed by appellants and the record before us.
       On June 26, 2007, appellees filed their original petition alleging that Martiniano had

been injured while receiving dialysis treatment on appellants' premises. Appellees claimed

that "clinic personnel dropped [Martiniano] to the floor while moving him from his

wheelchair," thus causing his injury.

       On March 17, 2008, appellants filed a motion to dismiss appellees' suit for failure

to file an expert report as required by section 74.351 of the Texas Civil Practices and

Remedies Code.2 Appellees filed a response asserting that no expert report was required

because their causes of action were not health care liability claims. Appellees argued that

the "matter involved a deviation from a standard of ordinary care" and that "a statute-

specific requirement of an expert report [was] inapposite."
       The trial court heard and considered appellants' motion to dismiss on May 7, 2008.

After concluding that appellees' suit was not a health care liability claim but merely an

ordinary negligence case, the trial court denied appellants' motion to dismiss. Appellants

then filed this interlocutory appeal pursuant to section 51.014(a)(9) of the Texas Civil

Practices and Remedies Code.3

                                      II. HEALTH CARE LIABILITY CLAIM

       By their sole issue, appellants contend that the trial court abused its discretion by

denying their motion to dismiss because the appellees' causes of action were health care

liability claims requiring an expert report. Specifically, appellants argue: (1) appellees'

claims of "negligent patient transfer are based on patient medical care or based on patient

safety directly related to medical care, and thus are 'health care liability claims' governed

by Ch. 74"; (2) appellees' claims will require an expert report; and (3) appellees' claims do

not involve general negligence.

A. Standard of Review

       We review a trial court's denial of a motion to dismiss under an abuse of discretion



       2
           See T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.351 (Vernon Supp. 2009).
       3
           See id. § 51.014(a)(9) (Vernon 2008).

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standard.4 A trial court abuses its discretion when it acts without reference to any guiding

rules or principles or acts in an arbitrary or unreasonable manner.5 Whether a cause of

action is a health care liability claim is a question of law we review de novo.6

B. Applicable Law

        In a health care liability claim, a claimant shall, not later than the 120th day
        after the date the original petition was filed, serve on each party or the party's
        attorney one or more expert reports, with a curriculum vitae of each expert
        listed in the report for each physician or health care provider against whom
        a liability claim is asserted.[7]

A cause of action is a health care liability claim and subject to the expert report requirement

if it is against a "health care provider or physician" and is based on "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."8

A cause of action alleges a departure from accepted standards of safety if the complained-

of act or omission is an inseparable part of the rendition of medical services.9

         When determining whether a cause of action is a health care liability claim, we look

to the underlying nature of the claim and not the labels used by the claimants.10 A party

cannot avoid the requirements of section 74.351 through artful pleading if the essence of

the suit is a health care liability claim.11

        4
         Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W .3d 873, 875 (Tex. 2001); Christus
Spohn Health Sys. Corp. v. Sanchez, 299 S.W .3d 868, 876 (Tex. App.–Corpus Christi 2009, pet. denied);
Kendrick v. Garcia, 171 S.W .3d 698, 703 (Tex. App.–Eastland 2005, pet. denied).
        5
          Kendrick, 171 S.W .3d at 703 (citing Downer v. Aquamarine Operators, Inc., 701 S.W .2d 238, 241-42
(Tex. 1985)).
       6
         Tesoro v. Alvarez, 281 S.W .3d 654, 656 (Tex. App.–Corpus Christi 2008, no pet.); Lee v. Boothe,
235 S.W .3d 448, 451 (Tex. App.–Dallas 2005, no pet.).
        7
         T   EX .   C IV . P RAC . & R EM . C OD E A N N . § 74.351(a).
        8
          Id. § 74.001(a)(13) (Vernon 2005) (defining a "health care liability claim " as a cause of action against
"a health care provider or physician for treatm ent, lack of treatm ent or other claim ed departure from accepted
standards of m edical care, or health care, or safety or professional or adm inistrative services directly related
to health care, which proxim ately results in injury to or death of a claim ant, whether the claim ant's claim or
cause of action sounds in tort or contract").
        9
            Valley Baptist Med. Ctr. v. Azua, 198 S.W .3d 810, 814 (Tex. App.–Corpus Christi 2006, no pet.).
        10
             Id.
        11
             Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W .3d 842, 851 (Tex. 2005).

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C. Discussion

        The issue in this case is whether appellees' causes of action were health care

liability claims.12 Therefore, we must examine the underlying nature of appellees' claims.13

In their original petition, appellees stated the following facts:

        8.         On or about July 19, 2007, [Martiniano] entered upon [the appellants']
                   premises for the purpose of medical care. He entered on the said
                   property . . . to engage in the act of undergoing dialysis.

        9.         During the time that [Martiniano] was upon . . . [the] property, [he] was
                   seriously injured as a result of a dangerous condition in that clinic
                   personnel dropped him to the floor while moving him from his
                   wheelchair.

Appellees claimed that appellants were liable for Martiniano's injury because appellants'
"agents, servants, and employees negligently permitted personnel to handle patients in a

careless manner." Furthermore, appellants and any of their "agents, who were acting in

the scope of their employment, were guilty of negligent conduct toward [appellees] in

carelessly and recklessly dropping [Martiniano]."

        In Valley Baptist Medical Center v. Azua, this Court concluded that a plaintiff's cause

of action was a health care liability claim under similar facts.14 In that case, the plaintiff

asserted that while being assisted into a wheelchair by the defendant's employee, the

employee failed to block the wheels of the wheelchair, causing the plaintiff to fall and injure

herself.15 On appeal, the plaintiff did not dispute that she was a patient at the clinic

receiving dialysis treatment.16 We concluded that the plaintiff's claim was "clearly an

inseparable part of the rendition of medical services."17

        Here, appellees alleged in their petition that, while Martiniano was a patient seeking


        12
          In their response to appellants' m otion to dism iss, appellees conceded that appellants are health
care providers. See T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.001(a)(13).
        13
             Azua, 198 S.W .3d at 814.
        14
             Id.
        15
             Id.
        16
             Id.
        17
             Id. (citing Diversicare, 185 S.W .3d at 848).

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dialysis treatment from appellants, an employee negligently assisted him from his

wheelchair causing him to fall.18 The activity of transferring patients from a wheelchair

while receiving treatment is an inseparable part of the rendition of medical services.19

Therefore, appellees' causes of action are health care liability claims.

        Because appellees' lawsuit is a health care liability claim and appellees failed to file

an expert report, upon appellants' motion to dismiss, the trial court was statutorily required

to dismiss appellees' lawsuit with prejudice.20 Therefore, we conclude that the trial court

abused its discretion by denying appellants' motion to dismiss and sustain appellants' sole

issue on appeal.21

                                                     III. CONCLUSION
        We reverse the trial court's order denying appellants' motion to dismiss and remand

to the trial court to (1) dismiss appellees' lawsuit against appellants with prejudice, and (2)

award reasonable attorney's fees and costs of court to appellants, as required by statute.22




                                                                     LINDA REYNA YAÑEZ,
                                                                     Justice

Delivered and filed the
6th day of May, 2010.



        18
          In their brief, appellants assert that Martiniano fell when the nurses were assisting him from his
wheelchair to the dialysis chair during his treatm ent. Appellees have not contradicted the facts as stated by
appellants. Therefore, we "accept as true" the facts stated in appellants' brief. See T EX . R. A PP . P. 38.1(f).
        19
           See Azua,198 S.W .3d at 814; see also Outpatient Ctr. for Interventional Pain Mgmt., P.A. v. Garza,
Nos. 13-07-00411-CV & 13-07-00762-CV, 2008 Tex. App. LEXIS 4801, at *9-10 (Tex. App.–Corpus Christi
June 26, 2008, no pet.) (m em . op.) (concluding that plaintiff's claim that hospital personnel failed to properly
lock and secure the wheelchair when transporting her from her wheelchair was a health care liability claim );
Devereaux v. Harris C ounty Hosp. Dist., No. 01-05-00706-CV, 2007 Tex. App. LEXIS 2224 at *13 (Tex.
App.–Houston [1st Dist.] Mar. 22, 2007, no pet.) (m em . op.) (holding that plaintiff's claim for injuries when she
was not properly assisted into wheelchair was a health care liability claim ); W ilson v. Austin Nursing Ctr., No.
03-00-00800-CV, 2002 Tex. App. LEXIS 6886, at *19 (Tex. App.–Austin Sept. 26, 2002, pet. denied) (not
designated for publication) (determ ining that the plaintiff's presence in the wheelchair while at a m edical center
was an inseparable part of the health care services provided by the m edical center).
        20
             See T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.351(b).
        21
             See Palacios, 46 S.W .3d at 875; Sanchez, 299 S.W .3d at 876; Kendrick, 171 S.W .3d at 703.
        22
             See T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.351(b).

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