Opinion issued June 14, 2016.




                                      In The

                              Court of Appeals
                                     For The

                         First District of Texas
                            ————————————
                              NO. 01-16-00106-CV
                           ———————————
                      PATRICK CHARLES, Appellant
                                        V.
   METHODIST HEALTH CENTERS D/B/A HOUSTON METHODIST
              SUGAR LAND HOSPITAL, Appellee


                  On Appeal from the 240th District Court
                         Fort Bend County, Texas
                   Trial Court Case No. 15-DCV-221990


                       MEMORANDUM OPINION

     Appellant, Patrick Charles, is appealing the trial court’s dismissal of his suit

against appellee, Methodist Health Centers D/B/A Houston Methodist Sugar Land
Hospital, pursuant to section 74.351 of the Texas Civil Practices and Remedies

Code. We affirm the trial court’s judgment.

                                    Background

       On March 17, 2015, appellant, proceeding pro se, filed suit against Methodist

alleging multiple claims, including negligence, neglect, elder abuse, and violations

of the Texas Human Resources Code. Specifically, appellant alleged that he was

admitted to Methodist on April 26, 2013 for prostate cancer surgery, and that while

he was recuperating after surgery, the hospital’s nursing staff ignored his repeated

pleas for assistance, denied him food and nourishment until appellant’s treating

physician intervened, and failed to render adequate care, in part, because they did

not promptly clean appellant.

       Appellant further contends that he was admitted to Methodist on March 7,

2014 for treatment of complications from his 2013 prostate surgery. During that

hospital stay, appellant alleges that he soiled himself and was forced to remain in his

own waste and blood for an extended, and unacceptable, length of time because the

hospital’s nursing staff abandoned him with no bed pan or urinal and ignored his

repeated pleas for assistance. Appellant further contends that he developed a urinary

tract infection as a result of the nursing staff’s neglect and abuse, and that he is

suffering from depression as a result of the mistreatment he suffered at the hands of

the hospital’s staff.



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      On April 10, 2015, Methodist timely filed its original answer denying all of

appellant’s claims. After appellant failed to serve Methodist with an expert report

within 120 days of Methodist filing its answer in this case, Methodist moved to

dismiss appellant’s claims pursuant to Texas Civil Practice and Remedies Code

section 74.351. On September 9, 2015, the trial court held a hearing on Methodist’s

motion to dismiss and took the matter under advisement.

      On January 21, 2015, the trial court held another hearing on Methodist’s

motion to dismiss for failure to file an expert report. Appellant acknowledges that

he attended the hearing and the record reflects that appellant subpoenaed two of

Methodist’s employees to testify at the hearing.1 No record was made of the hearing.

      The following day, the trial court signed an order granting Methodist’s motion

to dismiss for failure to file an expert report and the trial court dismissed appellant’s

claims with prejudice on this basis. This appeal followed.

             Dismissal for Failure to File Chapter 74 Expert Report

      On appeal, appellant argues, among other things, that the trial court erred by

dismissing his suit without first addressing the merits of his claims and that the trial

court was biased against him, as reflected by the court’s refusal to allow two of




1
      On January 19, 2015, Methodist filed a motion to quash the subpoenas, a motion for
      protection, and an objection to the subpoenas. The record does not reflect that the
      trial court ruled on Methodist’s motion.


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appellant’s fact witnesses and a potential expert witness to testify at the January 21,

2015 hearing on Methodist’s motion to dismiss.2

A.    Standard of Review

      Generally, we review a trial court’s decision on a motion to dismiss a health

care liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of

Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). Whether a cause of action is

a health care liability claim, however, is a legal question that we review de novo.

Loaisiga v. Cerda, 379 S.W.3d 248, 254–55 (Tex. 2012). When determining whether

a claim is a health care liability claim, we focus on the facts underlying the claim

and not the language used in the plaintiff’s pleadings or the legal theories asserted.

Id. at 255.

B.    Applicable Law

      Pursuant to the Texas Medical Liability Act (TMLA), a claimant asserting a

health care liability claim must serve an expert report on the defendant within a

specified deadline and until that time, discovery is limited. TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(a),(c), & (s) (West Supp. 2015). If the claimant fails to serve

an expert report, the trial court must, on the defendant’s motion, dismiss the claims


2
      Appellant also complains about alleged errors in the clerk’s record, including the
      district clerk’s classification of the disposition of his suit, and failure to give notice
      of Methodist’s motion to quash before the January 21, 2015 hearing. None of these
      alleged errors, however, impact the resolution of this appeal or the propriety of the
      trial court’s judgment.


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with prejudice and award the defendant reasonable attorney’s fees and costs. Id.

§ 74.351(b) (West Supp. 2014). The TMLA defines a “health care liability claim”

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 claim or cause of action sounds in tort or contract.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West Supp. 2015).

      Under the TMLA, there is “‘a rebuttable presumption that a patient’s claims

against a physician or health care provider based on facts implicating the defendant’s

conduct during the course of a patient’s care, treatment, or confinement’ are health

care liability claims.” Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 758 (Tex.

2014) (quoting Loaisiga, 379 S.W.3d at 252). Furthermore, when multiple claims

against the same defendant are based on the same underlying facts encompassed by

provisions of the TMLA, all claims brought against that defendant based on those

facts must be brought as health care liability claims. Yamada v. Friend, 335 S.W.3d

192, 193–94 (Tex. 2010).

C.    Analysis

      We begin by noting that, although we construe pro se pleadings and briefs

liberally, we hold pro se litigants, such as appellant, to the same standards as licensed

attorneys and require them to comply with all applicable laws and rules of procedure.


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See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978); Cooper v.

Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 (Tex. App.—Dallas

2008, no pet.). An indigent, pro se claimant who asserts a health care liability claim

is required to comply with the TMLA’s expert report requirement. See generally

Bankhead v. Spence, 314 S.W.3d 464, 467–69 (Tex. App.—Waco 2010, pet. denied)

(affirming dismissal of indigent pro se plaintiff’s health care liability claim for

failure to file expert report).

       Appellant alleged that Methodist’s nursing staff abused, abandoned, and

neglected him, and violated his rights when he was Methodist’s patient by failing to

adequately provide for his basic health and safety needs, such as food and proper

hygiene. These allegations that Methodist departed from accepted standards of

health care and patient safety implicate Methodist’s conduct during the course of

appellant’s care and treatment when he was a patient, and, therefore, meet the

statutory definition of a health care liability claim. See TEX. CIV. PRAC. & REM. CODE

ANN. § 74.001(a)(13); see also Bioderm Skin Care, LLC, 426 S.W.3d at 758;

Loaisiga, 379 S.W.3d at 252.

       Because all of appellant’s claims, including his elder abuse and statutory

violation claims, stem from the same set of facts relating to the post-surgical care

and treatment he received at Methodist while he was a patient, all the claims must

be brought as health care liability claims. See Yamada, 335 S.W.3d at 193–94; see



                                          6
generally Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8, 15 (Tex. App.—Tyler

2002, pet. denied) (holding patient could not bring claim for elder abuse separate

from his health care liability claim because claims arose from same set of facts).

Therefore, the TMLA required appellant to serve Methodist with a written expert

report within 120 days of Methodist filing its answer. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(a),(c),(r). It is undisputed that appellant never served Methodist

with an expert report. Because Methodist moved for dismissal based on appellant’s

failure to serve a timely expert report, the trial court was required to dismiss

appellant’s claims with prejudice. See id. § 74.351(b).

      The trial court did not err or abuse its discretion by refusing to address the

merits of appellant’s complaints against Methodist or by refusing to allow

appellant’s witnesses to testify at the hearings on the motion because dismissal with

prejudice was required in this case. See Obstetrical & Gynecological Assocs., P.A.

v. McCoy, 283 S.W.3d 96, 101 (Tex. App.—Houston [14th Dist.] 2009, pet. denied)

(stating when plaintiff fails to comply with expert report requirement and defendant

moves to dismiss on that basis, “the trial court has no discretion to do anything other

than dismiss the case with prejudice”).




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                                   Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice


Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.




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