                             NUMBER 13-07-00466-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


MCALLEN WORK REHABILITATION CENTER
D/B/A MCALLEN WELLNESS CENTER,                                                 Appellant,

                                             v.

RICARDO GOMEZ,                                                                  Appellee.


               On appeal from the County Court at Law No. 5
                        of Hidalgo County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Garza and Benavides
            Memorandum Opinion by Chief Justice Valdez

       Appellant, McAllen Work Rehabilitation Center, doing business as McAllen Wellness

Center (hereinafter referred to as “the Center”), appeals the trial court’s order denying its

motion to dismiss for Ricardo Gomez’s failure to file an expert medical report. See TEX .

CIV. PRAC . & REM . CODE ANN . § 51.014(a)(9) (Vernon Supp. 2007); Id. § 74.001(a)(13)
(Vernon 2005). By four issues, the Center contends that: (1) Gomez’s claims are health

care liability claims; (2) a “safety health care liability claim” does not have to be “directly

related to health care” to be subject to chapter 74 of the civil practice and remedies code;

(3) if Gomez’s claims are health care liability claims, he is not entitled to a new filing period;

and (4) a motion to dismiss is the appropriate procedure when a plaintiff has not filed an

expert report. We affirm.

                                             I. BACKGROUND

        In July 2002, Gomez was injured at work, and he was referred to the Center for a

“work hardening program,” which included Tai Chi classes. During one of the classes, the

instructor asked Gomez to hold a striking cushion while the instructor demonstrated an

offensive strike against Gomez. While standing, Gomez held the cushion in front of him

as the instructor kicked it. The kick knocked Gomez back, and he fell on his back and

injured his head on a window sill.

        On December 31, 2003, Gomez sued the Center for, among other things, premises

liability claims and respondeat superior claims regarding his “therapy and treatment.”1 In

his “therapy and treatment” claims, Gomez alleged that the Center was negligent by:

        Failing to ensure that its agents, servants, employees, subcontractors, and/or
        anyone whom Defendant allowed to train, assist, provide therapy or any type
        of treatment to those individuals who were referred to Defendant for work
        hardening, were properly trained to provide such therapy or treatment in a
        safe manner that would not injure the participants, such as Plaintiff,
        RICARDO GOMEZ;
                ....

        Creating an unreasonable risk of harm by failing to ensure that its agents,
        servants, employees, subcontractors, and/or anyone whom Defendant
        1
           Gom ez filed an am ended petition on April 3, 2006, which contains substantially sim ilar claim s as
the original petition.
                                                      2
       allowed to train, assist, provide therapy or any type of treatment to those
       individuals who were referred to Defedant for work hardening, were properly
       trained to provide such therapy or treatment in a safe manner that would not
       injure the participants, such as Plaintiff, RICARDO GOMEZ;
               ....

       Prescribing a treatment module that injured Plaintiff as part of the
       Chiropractic Rehabilitation Services.

       On April 25, 2007, the Center filed a motion to dismiss Gomez’s claims because it

believed that they were health care liability claims, which required an expert medical report.

See id. § 74.351(a) (Vernon Supp. 2007). In its motion, the Center argued that Gomez had

failed to timely file an expert medical report and that his claims should therefore be

dismissed. See id. § 74.351(b).

       Gomez responded by arguing that his suit contained only premises liability claims

and could not be characterized as a health care liability action. Gomez argued that the

expert report requirement therefore, did not apply. He posited that the Center’s motion

should be treated as a motion for summary judgment and should be denied because fact

issues remained. As a procedural alternative, Gomez moved to abate the case if the trial

court construed his suit as a health care liability action, so that he could send proper notice

and file an expert report. See id. § 74.051 (Vernon 2005) (providing that a health care

liability claimant must given written notice of his claims sixty days before filing suit).

       The Center’s motion to dismiss was heard on June 11, 2007. On June 26, the trial

court signed an order denying the Center’s dismissal motion and abating the case for sixty

days. Gomez filed a second amended petition on June 27. In his second amended

petition, Gomez asserted premises liability and respondeat superior claims, without

mentioning any sort of treatment or therapy. This interlocutory appeal ensued. See id. §


                                               3
51.014(a)(9).

                                        II. DISCUSSION

       By its first issue, the Center contends that Gomez’s claims include health care

liability claims, which are subject to the expert medical report requirement. Gomez

contends that his claims are not health care liability claims, and even if they were, he

“dropped” any claims that could arguably be considered medical liability claims in his

second amended petition.

A.     Standard of Review

       Generally, we review a district court's ruling on a motion to dismiss under section

74.351 for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001). However, when the issue, as in this case,

involves the applicability of chapter 74 to the plaintiff's claims and requires an interpretation

of the statute, we apply a de novo standard of review. Buck v. Blum, 130 S.W.3d 285, 290

(Tex. App.–Houston [14th Dist.] 2004, no pet.); Ponce v. El Paso Healthcare Sys., Ltd., 55

S.W.3d 34, 36 (Tex. App.–El Paso 2001, pet. denied).

B.     Applicable Law

       A health care liability claim is statutorily defined 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 claims or cause of action
       sounds in tort or contract.

TEX . CIV. PRAC . & REM . CODE ANN . § 74.001(a)(13). To constitute a health care liability



                                               4
claim, the plaintiff's cause of action must be based on a claimed departure from an

accepted standard of medical care, health care, or safety or professional administrative

services directly related to healthcare. See id. “A cause of action alleges a departure from

accepted standards of safety if the act or omission complained of is an inseparable part

of the rendition of medical services.” Valley Baptist Med. Ctr. v. Azua, 198 S.W.3d 810,

814 (Tex. App.–Corpus Christi 2006, no pet.). If the essence of the suit is a health care

liability claim, a party cannot avoid the requirements of section 74.351 through artful

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

Therefore, in determining whether the claim is governed by section 74.351, we review the

underlying nature of the claim and not the labels used by claimants. Azua, 198 S.W.3d at

814.

       This case is analogous to Stradley. See Valley Baptist Med. Ctr. v. Stradley, 210

S.W.3d 770 (Tex. App.–Corpus Christi 2006, pet. denied). In that case, the plaintiff’s

doctor “prescribed” exercise to help her deal with weight, hypertension, and mobility issues,

and he referred her to a wellness center. Id. at 772. While at the wellness center, Stradley

exercised on a treadmill, and she was injured when the treadmill allegedly malfunctioned.

Id. The wellness center moved to dismiss because Stradley did not file an expert medical

report. Id. The wellness center contended that Stradley’s claims were “safety” claims

lodged against a health care provider, and it argued that an expert report was necessary.

Id. We disagreed and held that “a safety claim can be categorized as a health care liability

claim only when it is against a health care provider or physician for a claimed departure for

accepted standards of safety directly related to health care.” Id. at 775.




                                             5
        We conclude that the underlying nature of Gomez’s suit is a premises liability action.

See Azua, 198 S.W.3d at 814. Gomez’s allegations are that he was kicked by a Tai Chi

instructor, fell on his back, and injured his head on an unsafe window sill. These

allegations do not constitute a safety claim that is directly related to health care. Make no

mistake, we have a healthy respect for exercise and Tai Chi because of the benefits that

they bring to individuals’ lives. But we cannot say that Gomez’s claims are safety claims

under chapter 74 of the civil practice and remedies code. The Center’s first issue is

overruled.2

                                            III. CONCLUSION

        The trial court’s order denying the Center’s motion to dismiss is affirmed.




                                                          ________________________
                                                          ROGELIO VALDEZ
                                                          Chief Justice

Memorandum Opinion delivered and
filed this the 31st day of July, 2008.




        2
         Because of our resolution of the Center’s first issue, we need not address the rem aining issues
because their resolution would not further affect the outcom e of this appeal. See T EX . R. A PP . P. 47.1.



                                                     6
