                               NO. 12-07-00287-CV

                      IN THE COURT OF APPEALS

         TWELFTH COURT OF APPEALS DISTRICT

                                  TYLER, TEXAS

D’JUANA DUNN, INDIVIDUALLY
AND AS NEXT FRIEND FOR                         §    APPEAL FROM THE 7TH
J. D.,
APPELLANT

V.                                             §    JUDICIAL DISTRICT COURT OF

CLAIRMONT TYLER, LP AND
COLONIAL TYLER                                 §    SMITH COUNTY, TEXAS
CARE CENTER, LP,
APPELLEES

                                           OPINION
        D’Juana Dunn, individually and as next friend for J.D., appeals the trial court’s order
 granting summary judgment in favor of Clairmont Tyler, LP and Colonial Tyler Care Center, LP.
 In two issues, Dunn contends that the trial court erred in granting Clairmont and Colonial’s
 motions for summary judgment and motion to dismiss. We affirm.

                                         BACKGROUND
        Dunn is the mother of J.D., a brain injured convalescent woman. On August 2, 2001,
 when she was a resident of Pinecrest Nursing Home, J.D. was sexually assaulted by Thomas
 Wheeler, a nurse aide employed by Pinecrest. Wheeler had previously been terminated from his
 employment as a nurse aide with Clairmont for alleged behavior that had the potential to
 jeopardize residents’ quality of care and for poor judgment, but no misconduct. He also had been
 terminated as a nurse aide from Colonial for alleged inappropriate behavior. On September 24,
 2004, Dunn filed suit against Clairmont and Colonial alleging negligence and negligence per se.
She alleged that neither Clairmont or Colonial filed a report regarding Wheeler’s alleged behavior
and/or misconduct as required by law.1 Clairmont and Colonial filed a traditional motion for
summary judgment alleging that Dunn’s claims against them were health care liability claims and,
thus, her suit was barred by the applicable statute of limitations governing such claims.2 They
also filed a no evidence motion for summary judgment alleging, in part, that there was no
evidence that they owed Dunn any duty, that they breached any duty to Dunn, or that anything
they did or failed to do proximately caused the occurrence in question. Finally, they filed a
motion to dismiss alleging that Dunn failed to submit an expert report within 120 days of filing
her original petition as required by statute.3 The trial court granted the motion to dismiss and both
the traditional and no evidence motions for summary judgment. This appeal followed.

                                                STANDARD OF REVIEW
          The propriety of summary judgment is a question of law, which we review de novo.
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The movant for
traditional summary judgment must show that there is no genuine issue of material fact and that
it is entitled to judgment as a matter of law. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d
842, 846 (Tex. 2005); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-50 (Tex. 1985). A
defendant moving for summary judgment on the affirmative defense of limitations has the burden
to conclusively establish that defense. Cooper v. D & D G.C. of Gilmer, Inc., 187 S.W.3d 717,
719 (Tex. App.–Tyler 2006, no pet.) (citing Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529,
530 (Tex. 1997)). If the movant establishes that the statute of limitations bars the action, the
nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the
statute of limitations. Id.
          In reviewing a summary judgment, we take as true all evidence favorable to the
nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s



      1
          See T EX . H EALTH & S AFETY C O D E § 242.122(a) (Vernon 2001).

      2
          See T EX . C IV . P RAC . & R EM . C O D E A N N . § 74.251(a) (Vernon 2005).

      3
          See T EX . C IV . P RAC . & R EM . C O D E A N N . § 74.351(a) (Vernon Supp. 2008).

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favor. Diversicare, 185 S.W.3d at 846. When, as here, a summary judgment does not specify the
grounds on which it was granted, we will affirm the judgment if any one of the theories advanced
are meritorious. Western Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Generally, when
a party seeks both a traditional and a no evidence summary judgment, we first review the trial
court’s summary judgment under the no evidence standards of Texas Rule of Civil Procedure
166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the nonmovant failed
to produce more than a scintilla of evidence raising a genuine fact issue on the challenged
elements of his claims, there is no need to analyze whether the movant’s summary judgment proof
satisfied the traditional summary judgment burden of proof under rule 166a(c). Id. It logically
follows, however, that this rule cannot be applied unless the same issue was raised in both
motions. In this case, the limitations issue is dispositive but was raised only in the traditional
motion. Therefore, we need not address the no evidence summary judgment.

                                HEALTH CARE LIABILITY CLAIM
       In her first issue, Dunn argues that the trial court erred in finding that no genuine issue of
material fact exists regarding Clairmont’s and Colonial’s negligence and negligence per se.
Specifically, she contends that her claims against Clairmont and Colonial are personal injury
claims, not health care liability claims. As such, she argues that the statute of limitations for
personal injury claims governs this suit. Because J.D. was mentally incapacitated on the date of
occurrence, Dunn contends that the statute of limitations was tolled. Clairmont and Colonial
disagree.
Applicable Law
       Chapter 74 of the Civil Practices and Remedies Code governs health care liability claims
in Texas. See TEX . CIV . PRAC. & REM . CODE ANN . §§ 74.001-.507 (Vernon 2005 & Supp. 2008).
A “health care liability claim” is 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. TEX . CIV . PRAC. & REM . CODE ANN . § 74.001(13)


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(Vernon 2005). A “health care provider” is any person, partnership, professional association,
corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of
Texas to provide health care, including a health care institution. TEX . CIV . PRAC. & REM . CODE
ANN . § 74.001(12)(A) (Vernon 2005). A “health care institution” includes an assisted living
facility and a nursing home. TEX . CIV . PRAC. & REM . CODE ANN . § 74.001(11)(B), (J).
        To determine whether a cause of action falls under Chapter 74’s definition of a “health
care liability claim,” we examine the claim’s underlying nature. Garland Cmty. Hosp. v. Rose,
156 S.W.3d 541, 543 (Tex. 2004). If the act or omission alleged in the complaint is an
inseparable part of the rendition of health care services, then the claim is a health care liability
claim. Id. at 544; see also Smalling v. Gardner, 203 S.W.3d 354, 363 (Tex. App.–Houston [14th
Dist.] 2005, pet. denied) (“[T]he court’s focus is whether the essence of the claim asserted by the
plaintiff involves departures from accepted standards of medical care.”).
        Under Chapter 74, the statute of limitations for a health care liability claim is two years
from the occurrence of the breach or tort or from the date the medical or health care treatment that
is the subject of the claim or the hospitalization for which the claim is made is completed. TEX .
CIV . PRAC. & REM . CODE ANN . § 74.251(a) (Vernon 2005). The only exception is for minors
under twelve years of age. Id. Further, the limitation period applies to all persons regardless of
minority or other legal disability. Id.; Yancy v. United Surgical Partners Int’l, Inc., 170 S.W.3d
185, 189 (Tex. App.–Dallas 2005), aff’d, 236 S.W.3d 778 (Tex. 2007). General tolling statutes
tolling limitations periods due to unsound mind or mental incompetence of the plaintiff are
inapplicable to health care liability claims. See Yancy, 170 S.W.3d at 189.
Analysis
        In her brief, Dunn argues that J.D. was never a patient or resident at either Clairmont or
Colonial and that no health care provider relationship existed between them. Therefore, she
contends, her claims are not health care liability claims, but instead are personal injury claims
based on Clairmont’s and Colonial’s negligence and negligence per se. Therefore, Dunn argues,
the applicable statute of limitations is found in section 16.003 of the Texas Practice and Remedies




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  Code.4
             Clairmont and Colonial contend that the essence of Dunn’s action involves J.D.’s safety
 while under the care of a health care provider. They argue that they are health care providers as
 that term is defined by section 74.001 of the Texas Civil Practice and Remedies Code, and that
 safety is part of a health care liability claim. See TEX . CIV . PRAC. & REM . CODE ANN .
 § 74.001(12)(A), (13).
             As explained above, to determine whether Dunn’s suit falls within Chapter 74’s definition
 of a “health care liability claim,” we examine the underlying nature of Dunn’s claims against
 Clairmont and Colonial. See Garland Cmty. Hosp., 156 S.W.3d at 543; Smalling, 203 S.W.3d
 at 362-63. In doing so, we are not bound by Dunn’s own characterization of her claims. See
 Smalling, 203 S.W.3d at 363. Dunn cannot use artful pleading to avoid the requirements of
 Chapter 74 if the essence of her suit is a health care liability claim. See Garland Cmty. Hosp.,
 156 S.W.3d at 543; Smalling, 203 S.W.3d at 363.
             We note that Chapter 74 does not define “safety.” See Diversicare, 185 S.W.3d at 855.
 The commonly understood meaning of safety is the condition of being “untouched by danger; not
 exposed to danger; secure from danger, harm or loss.” See id. (citing BLACK’S LAW DICTIONARY
 1336 (6th ed. 1990)). The legislature’s inclusion within the scope of Chapter 74 of claims based
 on breaches of accepted standards of “safety” expands the scope of the statute beyond what it
 would be if it covered only medical and health care. See id. Professional supervision, monitoring,
 and protection of the patient population necessarily implicate the accepted standards of safety
 under a health care liability claim. See id. Thus, part of a nursing home’s duty in providing care
 to its patients is to protect their right to receive care in a safe setting free from all forms of abuse
 or harassment. See NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 36 (Tex. App.–El Paso
 2006, no pet.).
             In order to ensure the safety of nursing home patients, the federal government ordered that


         4
             The statute of limitations for a personal injury claim is two years after the date the cause of action accrues
unless the person entitled to bring a personal action is under a legal disability. See T EX . C IV . P RAC . & R EM . C O D E
A N N . § 16.001(b), 16.003(a) (Vernon 2002).

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each state must establish and maintain a registry of all nurse aides, which shall provide for the
inclusion of specific documented findings of resident neglect or abuse or misappropriation of
resident property involving an individual listed in the registry. See Social Security Act, 42
U.S.C.A. § 1395i-3(e)(2)(A), (B)(West 1992). Before employing Wheeler, Pinecrest had an
administrative duty created by statute to verify that he was not designated as having a finding
entered into the registry concerning abuse, neglect, or mistreatment of a consumer of a facility, or
misappropriation of a consumer’s property. See TEX . HEALTH & SAFETY CODE ANN . § 250.003(a)
(Vernon Supp. 2008). Pinecrest’s administrative duty to check the nurse aide registry before
employing Wheeler related to its duty as a health care provider.
         Further, any person, including an owner or employee of an institution, who had cause to
believe that the physical or mental health or welfare of a resident had been or may be adversely
affected by abuse or neglect caused by another person must report the abuse or neglect to the Texas
Department of Human Services or a local or state law enforcement agency. See TEX . HEALTH &
SAFETY CODE ANN . §§ 242.122(a), 242.125(a) (Vernon 2001 & Supp. 2008). Similar to Pinecrest,
therefore, Clairmont and Colonial had an administrative duty, also created by statute, to report any
abuse or neglect by Wheeler. See TEX . HEALTH & SAFETY CODE ANN . § 242.122(a). This
administrative duty to report also implicates their duty as health care providers. See TEX . HEALTH
& SAFETY CODE ANN . § 242.122(a). Because this duty to report an administrative matter cannot
be separated from a health care provider’s responsibility to ensure resident safety, Clairmont’s and
Colonial’s statutory duty to report abuse or neglect by a terminated employee, Wheeler, is an
inseparable part of the rendition of health care services. See Garland Cmty. Hosp., 156 S.W.3d
at 544; Smalling, 203 S.W.3d at 363. Thus, we conclude that Dunn’s suit is a health care liability
claim.
         Having determined that Dunn’s suit is a health care liability claim, the applicable statute
of limitations is two years from Wheeler’s sexual assault of J.D. See TEX . CIV . PRAC. & REM .
CODE ANN . § 74.251. Here, it is undisputed that Dunn filed her suit against Clairmont and
Colonial three years after the sexual assault. Because Dunn’s suit was filed outside the applicable


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limitations period, the trial court did not abuse its discretion in granting summary judgment for
Clairmont and Colonial. Accordingly, Dunn’s first issue is overruled. Because Dunn’s first issue
is dispositive, we do not consider her second issue. See TEX . R. APP . P. 47.1.


                                                  DISPOSITION
         Having overruled Dunn’s first issue, the judgment of the trial court is affirmed.




                                                                 JAMES T. WORTHEN
                                                                     Chief Justice


Opinion delivered November 26, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                   (PUBLISH)

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