Opinion filed May 7, 2009




                                             In The


   Eleventh Court of Appeals
                                          ___________

                                    No. 11-08-00271-CV
                                        __________

                  HOUSE OF YAHWEH, YISRAYL HAWKINS,
                    AND SHANDRA HAWKINS, Appellants

                                                V.

MICHAEL WAYNE JOHNSON, JR., INDIVIDUALLY; AS NEXT FRIEND
  OF ALANNAH JOHNSON AND LISA JOHNSON, MINORS; AND AS
 REPRESENTATIVE OF THE ESTATE OF LISA JOHNSON, Appellee


                            On Appeal from the 259th District Court

                                      Jones County, Texas

                                 Trial Court Cause No. 21,576


                                          OPINION
       In this interlocutory appeal, appellants House of Yahweh, Yisrayl Hawkins, and Shandra
Hawkins challenge the trial court’s order denying their motion to dismiss that was filed pursuant to
Section 74.351(b) of the Texas Medical Liability Act. See TEX . CIV . PRAC. & REM . CODE ANN .
§ 51.014(9) (Vernon 2008) (permitting interlocutory appeals) and TEX . CIV . PRAC. & REM . CODE
ANN . ch. 74 (Vernon 2005 & Supp. 2008) (Texas Medical Liability Act). Because the trial court
abused its discretion in denying appellants’ motion for continuance of the hearing on their motion
to dismiss, we reverse the trial court’s order, and we remand for further proceedings consistent with
this opinion.
                                             Introduction
        Appellee, Michael Wayne Johnson, individually; as next friend of Alannah Johnson and Lisa
Johnson, minors; and as representative of the estate of Lisa Johnson, brought this wrongful death and
survival action against appellants, House of Yahweh, Yisrayl Hawkins, and Shandra Hawkins, and
two other defendants, Sherry Hawkins and Melody Boyd. Appellants contend that this cause is a
“health care liability claim” that is governed by the Texas Medical Liability Act. They also contend
that the trial court abused its discretion in denying their motion to dismiss because appellee failed
to comply with the expert report requirements set forth in Section 74.351. Appellee contends that
appellants had the burden to establish that they were “health care providers” as defined in the
Medical Liability Act; that appellants failed to meet their burden; and that, therefore, the trial court
did not abuse its discretion in denying appellants’ motion to dismiss.
                                         Factual Background
        Lisa Johnson died on August 13, 2006, after developing complications during the birth of her
child, also named Lisa. On February 15, 2008, appellee filed this suit. He made the following
allegations, among others, in his original petition: that Lisa Johnson had been a religious member
of House of Yahweh; that Yisrayl Hawkins was the founder, leader, and instructor of House of
Yahweh and its guidelines and rules; that, pursuant to the teachings and beliefs of House of Yahweh,
its members must use the services of midwives, who are also members of House of Yahweh, in
connection with childbirths; that, on or about August 13, 2006, Lisa Johnson went into labor and
sought treatment from defendants; that Shandra Hawkins, who was House of Yahweh’s lead
midwife, and Sherry Hawkins and Melody Boyd, who were also midwives, treated Lisa Johnson;
that, immediately after giving birth, Lisa Johnson began to experience medical complications and
severe bleeding; that defendants refused to provide Lisa Johnson with further treatment and
prevented the use of any outside medical treatment; that defendants deviated from the applicable




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standard of care in the care and treatment of Lisa Johnson; and that Lisa Johnson died as a result of
the defendants’ negligence and gross negligence.
       Appellee also alleged that “[d]efendants’ techniques, procedures and medical judgment fell
below the standard of care owed by [d]efendants and to be expected by their patients, including [Lisa
Johnson].” He alleged that House of Yahweh “failed to use the standard of care that a reasonably
prudent medical provider would have under the same or similar circumstances” and “deviated from
the applicable standard of care by failing to institute a policy which would have prevented the
negligent conduct alleged herein and by prohibiting and preventing the intervention of outside,
lifesaving medical treatment.” He also alleged that Yisrayl Hawkins undertook a duty “to ensure that
the medical services available and which [House of Yahweh’s] members were required to use did
not deviate from the acceptable standard of care.” He further alleged that Shandra Hawkins, Sherry
Hawkins, and Melody Boyd “failed to use the standard of care that a reasonably prudent midwife
would have [used] under the same or similar circumstances” and that their actions “deviated from
the acceptable standard of care of medical professionals under the same or similar circumstances.”
       On June 16, 2008, appellee filed the expert report of Charles Anderson, M.D. In the report,
Dr. Anderson stated that he had been board certified in Obstetrics and Gynecology since 1987.
Dr. Anderson also made the following statements, among others, in his report: (1) that the standard
of care had been breached in this case; (2) that “[t]he midwife delivering this baby did not deliver
the placenta, which allowed the uterus to continue to bleed resulting in massive blood loss and death
of this patient”; (3) that “[i]t is common practice to deliver the placenta manually, if it does not
deliver spontaneously”; (4) that, “[o]n autopsy, the placenta was still present with the umbilical cord
in the uterus”; (5) that “[i]t was partially separated, leading to massive blood loss and death of Lisa
Johnson”; (6) that “[t]he medical care providers . . . fell far below the standard of care by not
removing the placenta”; (7) that “[t]he medical providers failed to deliver the placenta and failed to
treat the resulting uterine atony and blood loss[, which] directly led to the death of Lisa Johnson”;
and (8) that “[t]he placenta should have been manually removed and patient transported to a
hospital.”
       On July 11, 2008, appellants filed their motion to dismiss. In the motion, appellants
contended that “[t]his is a health care liability claim” governed by Chapter 74. Appellants also


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contended that Dr. Anderson’s report failed to comply with the requirements of Section 74.351 and
did not constitute a good faith effort to comply with the requirements. Therefore, appellants moved
the trial court to dismiss appellee’s claims against them.
       The trial court scheduled appellants’ motion to dismiss for hearing on September 12, 2008.
On the morning of the hearing, appellee filed his first amended original petition and a response to
appellants’ motion to dismiss. Unlike the allegations in his original petition, appellee did not use
phrases such as “medical judgment,” “patients,” “reasonably prudent medical provider,” “medical
services,” and “medical professionals” in the allegations in his amended petition. For example,
appellee alleged in his original petition that House of Yahweh “failed to use the standard of care that
a reasonably prudent medical provider would have [used] under the same or similar circumstances.”
However, in his amended petition, he alleged that House of Yahweh “failed to use the standard of
care that a reasonably prudent entity would have under the same or similar circumstances.” Appellee
contended in his response to appellants’ motion to dismiss that this suit is not a health care liability
claim. He also contended that, in order for appellants to establish that Chapter 74 applied to his
claims against them, they had the burden to bring forth evidence establishing that they met the
statutory definition of “physician,” “health care provider,” or “health care institution.”
       The trial court proceeded with the hearing on September 12, 2008. The following exchange
took place at the beginning of the hearing:
               [APPELLANTS’ COUNSEL]: Thank you, Your Honor. The first comment
       I would like to make is just simply that just this morning before this hearing started
       about 20 or 30 minutes ago, I received Plaintiff’s First Amended Original Petition as
       well as Plaintiff’s response to our objections and motion to dismiss, and, quite
       honestly, I’m a little frustrated by the fact that I’m just receiving this today being that
       this hearing was set over two months ago and we filed our brief and motion on July
       11th.

               THE COURT: Hold on.

               Did you provide a copy to the Court, [Appellee’s Counsel]?

               [APPELLEE’S COUNSEL]: Your Honor, I have not. But I do have an extra
       for the Court if you’d like it, Your Honor.

               THE COURT: All right. Did you file that with the clerk this morning?


                                                   4
               [APPELLEE’S COUNSEL]: I did, Your Honor, and they’re both file stamped
       at 8:40 this morning.

Appellee’s counsel provided the trial court a copy of appellee’s response to the motion to dismiss,
and then the following exchange took place:
              [APPELLANTS’ COUNSEL]: Thank you. Your Honor, after having a
       chance to briefly review their amended petition it does somewhat impact and affect
       my arguments today. They have changed the language in their petition I believe as
       a result of my brief, and my initial inclination is to request that we have a
       continuance of this hearing so that I have an opportunity to respond and draft an
       additional brief – an amended brief in response to the amended – amendments they
       have made to their petition.

              THE COURT: Specifically what about the new language is going to prevent
       you from being able to argue today?

              [APPELLANTS’ COUNSEL]: They have changed language and removed
       language related to words such as “medical professionals[,]” “health care[,]”
       “medical provider” “reasonably prudent medical standard.”

              THE COURT: And how does that affect your argument on your motion to
       dismiss?

                [APPELLANTS’ COUNSEL]: Well, part of my argument, Your Honor, is
       that, which I thought was evident based on their pleadings, that is a medical liability
       claim, which is governed by Chapter 74 or the Texas Civil Practice and Remedies
       Code. However, after having a moment this morning to briefly review their response
       to my motion, it seems to be that their primary argument is that this is not a medical
       liability claim and that they have thus amended their petition in order to fit into –
       better fit into what they believe would be a nonhealth care liability claim.

                   [APPELLEE’S COUNSEL]: May I respond to that, Your Honor?

                   THE COURT: Yes.

               [APPELLEE’S COUNSEL]: Your Honor, it’s well established in the case law
       particularly the progeny cases that followed Diversicare versus Rubio1 talking about
       pleadings don’t matter. It’s a matter that’s based on facts. The facts of the
       underlying case. The reality of what’s going on here is that they’re not ready today.



       1
           See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005).

                                                              5
       I’ve cited for the case – the Court in Tab No. 5 – Brown versus Villegas.2 It talks
       about their burden in coming forth with some evidence today that they are health care
       providers. They asked me for a copy of that case before this hearing got started. I
       provided them a copy. I assume they are in agreement with that copy that they don’t
       have any evidence of care health providers to provide to the Court today and now
       they’re requesting a continuance. That’s the true motives behind this. I’m ready to
       proceed, Your Honor. And I would respectfully request that the Court deny their
       request for a continuance of this matter.

                [APPELLANTS’ COUNSEL]: Your Honor, I guess my only response would
       be, if pleadings don’t matter I don’t quite understand why they amended their petition
       to alter the language.

                   THE COURT: All right. Give me one second please.

                   (Brief pause.)

               THE COURT: All right. The oral motion for continuance is denied, and we
       will proceed forward on the motion as it is presented to the Court.

       Following arguments from counsel, the trial court denied appellants’ motion to dismiss. On
October 14, 2008, the trial court entered a written order denying the motion. The trial court made
the following findings in its order:
              (1) The Defendant’s oral Motion for Continuance made by House of Yahweh,
       Yisrayl Hawkins and Shandra Hawkins after the Court called this matter for hearing
       is DENIED.

               (2) The record in this case contains no evidence that House of Yahweh,
       Yisrayl Hawkins or Shandra Hawkins are “duly licensed, certified, registered or
       chartered by the State of Texas to provide health care.” Without such evidence, the
       Court cannot determine whether House of Yahweh, Yisrayl Hawkins or Shandra
       Hawkins are health care providers so as to determine that Tex. Civ. Prac. & Rem.
       Code Chapter 74 applies to Plaintiff’s claims against them.

              (3) While the record in this matter does not contain such evidence, if House
       of Yahweh, Yisrayl Hawkins or Shandra Hawkins were health care providers, the
       Court finds that the report of Charles Anderson, M.D. served by Plaintiff upon
       Defendants 118 days after Plaintiff’s Original Petition was filed, represents an



       2
           See Brown v. Villegas, 202 S.W.3d 803 (Tex. App.—San Antonio 2006, no pet.).

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        objective good faith effort to comply with the definition of “expert report” as defined
        by Tex. Civ. Prac. & Rem. Code § 74.351(r)(6).

               (4) If any appellate court reviewing this matter determines for whatever
        reason that the report of Charles Anderson, M.D. does not represent an objective
        good faith effort to comply with the definition of “expert report” as defined by Tex.
        Civ. Prac. & Rem. Code § 74.351(r)(6), this Court grants Plaintiff’s alternative
        request under Tex. Civ. Prac. & Rem. Code § 74.351(c), for a thirty (30) day
        extension to cure any deficiency.

                                             Issues on Appeal
        Appellants present four issues for review. In their first issue, they contend that the trial court
erred in concluding that there was no evidence that they were health care providers because
appellee’s allegations in his pleadings constituted judicial admissions of their status as health care
providers. In their second issue, they contend that the trial court erred in concluding that appellee
was not required to file an expert report with respect to his claims against House of Yahweh and
Yisrayl Hawkins because appellee sought to hold them vicariously liable for the alleged negligent
conduct of the midwives, who were health care providers. In their third issue, they assert that the
trial court erred in denying their motion to dismiss because Dr. Anderson’s report failed to comply
with the requirements for an expert report. In their fourth issue, they assert that the trial court erred
in denying their motion for continuance.
                                      Health Care Liability Claims
        Chapter 74 of the Texas Civil Practice and Remedies Code governs health care liability
claims. Chapter 74 defines a health care liability claim as follows:
                “Health care liability claim” means 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).       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: (i) a registered nurse; (ii) a dentist; (iii) a podiatrist;


                                                     7
(iv) a pharmacist; (v) a chiropractor; (vi) an optometrist; or (vii) a health care institution.”
Section 74.001(a)(12)(A); see also Section 74.001(a)(11) (definition of “health care institution”).
The use of the word “including” makes the provider list in Section 74.001(a)(12)(A) nonexclusive;
the word “including” is a term of enlargement and not of limitation or exclusive enumeration.
Christus Health v. Beal, 240 S.W.3d 282, 286 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Pro
Path Servs., L.L.P. v. Koch, 192 S.W.3d 667, 671 (Tex. App.—Dallas 2006, pet. denied); see TEX .
GOV ’T CODE ANN . § 311.005(13) (Vernon 2005). In addition, the term “health care provider” also
includes: “(i) an officer, director, shareholder, member, partner, manager, owner, or affiliate of a
health care provider or physician; and (ii) an employee, independent contractor, or agent of a health
care provider or physician acting in the course and scope of the employment or contractual
relationship.” Section 74.001(a)(12)(B). “Health care” is “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).
          Title 3 of the Texas Occupations Code contains provisions applying to health professions.
See TEX . OCC. CODE ANN . §§ 101.001-112.051 (Vernon 2004 & Supp. 2008). Subtitle C of Title 3
is entitled “Other Professions Performing Medical Procedures.” Chapter 203 of subtitle C regulates
midwives, and it is entitled the “Texas Midwifery Act.” TEX . OCC. CODE ANN . §§ 203.001-.505
(Vernon 2004 & Supp. 2008). The Midwifery Act defines a “midwife” as “a person who practices
midwifery and has met the licensing requirements established by this chapter and midwifery board
rules.”    Section 203.002(6).    “Midwifery” is “the practice of: (A) providing the necessary
supervision, care, and advice to a woman during normal pregnancy, labor, and the postpartum
period; (B) conducting a normal delivery of a child; and (C) providing normal newborn care.”
Section 203.002(7). The Act defines “normal” as “circumstances under which a midwife has
determined that a client is at a low risk of developing complications.” Section 203.002(9). “A
person may not practice midwifery unless the person holds a license issued under this chapter.”
Section 203.251.
          Under Section 74.001(a)(12)(A), the term “health care provider” includes “any person...duly
licensed, certified, registered, or chartered by the State of Texas to provide health care.” The State


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of Texas recognizes “midwifery” as a health profession. Based on the above definition of
“midwifery,” midwives perform and furnish “health care” as that term is defined in Chapter 74 of
the Civil Practice and Remedies Code. Therefore, if a person performing midwifery is “duly
licensed” as a midwife, the person would fall within the definition of “health care provider” in
Chapter 74, and Chapter 74 would govern a claimant’s claims against the person.
                          Trial Court’s Denial of Motion for Continuance
        We review a trial court’s denial of a motion for continuance under an abuse of discretion
standard. BMC Software, Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). A trial
court abuses its discretion when it acts in an arbitrary and unreasonable manner. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
        The trial court stated that it could not determine whether appellants were health care
providers because there was no evidence that they were “duly licensed, certified, registered or
chartered by the State of Texas to provide health care.” In their first issue, appellants contend that
appellee’s allegations constituted judicial admissions of their status as health care providers. A
judicial admission must be a clear, deliberate, and unequivocal statement. Horizon/CMS Healthcare
Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000). A judicial admission occurs when an assertion of
fact is conclusively established in live pleadings. Id.
        In many health care liability cases, a party’s status as a health care provider can be
determined from the plaintiff’s allegations. Chapter 74 provides that a party asserting a health care
liability claim must give written notice of the claim “to each physician or health care provider against
whom such claim is being made at least 60 days before the filing of a suit” and must plead that he
or she complied with the notice requirement. Section 74.051. A plaintiff’s pleadings that he or she
has complied with the notice requirement of Chapter 74 or that a defendant is a health care provider
may constitute a judicial admission that the opposing party is a health care provider. See Auld, 34
S.W.3d at 904-05.
        In this case, appellee did not provide written notice of his claims to appellants or the other
defendants before filing suit, and appellee did not allege that he had complied with the notice
provision in Chapter 74. Appellee also did not allege that he was asserting a “health care liability
claim” against appellants or that appellants were “health care providers.” In the absence of such


                                                   9
allegations, appellee’s allegations do not contain clear, deliberate, and unequivocal statements of
appellants’ status as health care providers and, therefore, do not constitute judicial admissions of that
status. Auld, 34 S.W.3d at 905. We overrule appellants’ first issue.
        Although appellee’s allegations did not rise to the level of judicial admissions of appellants’
status as health care providers, appellee alleged claims in the nature of health care liability claims
against appellants. Appellee’s primary allegations relate to alleged care and treatment, and lack
thereof provided by the midwives to Lisa Johnson. The midwives’ care and treatment of Lisa
Johnson fell within the definition of “health care” under Chapter 74. In his original petition, appellee
alleged that House of Yahweh failed to comply with the standard of care owed by a “reasonably
prudent medical provider” and that “[d]efendants’ techniques, procedures and medical judgment fell
below the standard of care.” Based on appellee’s allegations in his original petition and the fact that
appellee filed Dr. Anderson’s expert report, it was reasonable for appellants to conclude that appellee
was asserting health care liability claims against them.
        Appellants filed their motion to dismiss on July 11, 2008. Appellee had about two months
notice of the motion before the September 12, 2008 hearing. Based on appellants’ motion, appellee
knew that appellants contended he was asserting health care liability claims against them. However,
appellee did not file a response to the motion until the morning of the hearing. In the motion,
appellee asserted that his claims against appellants were not health care liability claims and that
appellants had an evidentiary burden of establishing their status as health care providers. The record
does not show that appellee made these positions known to appellants before the morning of the
hearing. Appellee also filed his amended petition on the morning of the hearing. He removed
medical terminology from the allegations in his amended petition. The trial court agreed with
appellee’s position that appellants had an evidentiary burden of establishing their status as health
care providers and concluded that appellants had failed to meet their burden. The timing of
appellee’s response to appellants’ motion to dismiss prevented appellants from being able to present
evidence in response to appellee’s assertions.
        Under the circumstances in this case, we hold that the trial court abused its discretion in
denying appellants’ motion to continue the hearing on their motion to dismiss. We sustain
appellants’ fourth issue. The new hearing will provide appellants an opportunity to present evidence


                                                   10
on the issue of whether they are health care providers. Based on our ruling on appellants’ fourth
issue, we need not address appellants’ second and third issues. TEX . R. APP . P. 47.1. Therefore, we
do not address whether Dr. Anderson’s report complied with the requirements of Section 74.351.


                                        This Court’s Ruling
       We reverse the trial court’s order denying appellants’ motion to dismiss, and we remand this
cause to the trial court for further proceedings consistent with this opinion.




                                                              TERRY McCALL
                                                              JUSTICE


May 7, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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