Nydia De La Garza v. the Home Care Team Inc., and Maria Patricia Solis ( 2016 )

NUMBER 13-15-00571-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
NYDIA DE LA GARZA, Appellant,
v.
THE HOME CARE TEAM INC., AND
MARIA PATRICIA SOLIS, Appellees.
On appeal from the 357th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Justice Garza
This is an appeal challenging the trial court’s ruling under the expert report
requirement of the Texas Medical Liability Act (“TMLA”). See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(a) (West, Westlaw through 2015 R.S.). By a single issue, appellant
Nydia De La Garza contends the trial court erred in dismissing her suit with prejudice
against appellee Maria Patricia Solis because of appellant’s failure to timely serve Solis
with an expert report as required by section 74.351(a). Because we hold that appellant
had no duty to produce an expert report to Solis, we reverse the trial court’s order
dismissing appellant’s claims against Solis and remand for further proceedings.
I. BACKGROUND1
Appellant alleges that she was hired by The Home Care Team, Inc. (“THCT”) as a
home health care services provider. On November 10, 2013, appellant sustained injuries
while providing home health care services at the Brownsville, Texas home of Joaquina
Garcia and Luciano Palafox. Garcia and Palafox were renting the home, which was
owned by Solis. Appellant was allegedly injured while walking up and down an outside
ramp to deposit trash in a trash container. Appellant alleged claims of negligence and
gross negligence against Solis for various omissions, including failure to inspect the
condition of the premises, failure to make the premises reasonably safe, and failure to
install handrails or other safety devices.2
II. STANDARD OF REVIEW AND APPLICABLE LAW
A trial court's ruling on a motion to dismiss a health care liability claim is reviewed
for a clear abuse of discretion. Marino v. Wilkins, 393 S.W.3d 318, 325 (Tex. App.—
Houston [1st Dist.] 2012, pet. denied) (citations omitted). A trial court abuses its discretion
1 Solis has not filed a brief to assist us in our disposition of this appeal. The background facts are
taken from appellant’s brief, her live petition, Solis’s motion to dismiss, appellant’s response to the motion
to dismiss, and the trial court’s order of dismissal.
2 We view appellant’s claims as alleging a premises-liability cause of action against Solis. See
Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010) (“[G]enerally, a property owner owes
invitees a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a
premises condition about which the property owner knew or should have known.”).
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if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or
principles. Id.
Under the TMLA, a “health care liability claim” (“HCLC”) is defined, in pertinent
part, as “a cause of action against a health care provider or physician . . . .” See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.001(a)(13) (West, Westlaw through 2015 R.S.). Under the
expert report requirement of section 74.351(a), a claimant is required to serve each
defendant physician or other health care provider with an expert report within 120 days
after each defendant’s original answer is filed. See id. § 74.351(a);3 Samlowski v.
Wooten, 332 S.W.3d 404, 411 (Tex. 2011). A “physician” is defined as: (A) an individual
licensed to practice medicine in this state; (B) a professional association organized under
the Texas Professional Association Act (Article 1528f, Vernon's Texas Civil Statutes) by
an individual physician or group of physicians; (C) a partnership or limited liability
partnership formed by a group of physicians; (D) a nonprofit health corporation certified
under Section 162.001, Occupations Code; or (E) a company formed by a group of
physicians under the Texas Limited Liability Company Act (Article 1528n, Vernon's Texas
Civil Statutes). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(23) (West, Westlaw
through 2015 R.S.). A “health care provider” means 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;
3 Section 74.351(a) provides, in relevant part:
In a health care liability claim, a claimant shall, not later than the 120th day after the date
each defendant's original answer is filed, serve on that 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.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West, Westlaw through 2015 R.S.) (emphasis added).
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(ii) a dentist; (iii) a podiatrist; (iv) a pharmacist; (v) a chiropractor; (vi) an optometrist; (vii)
a health care institution; or (viii) a health care collaborative certified under Chapter 848,
Insurance Code. The term 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. See id. §
74.001(a)(12) (West, Westlaw through 2015 R.S.)
III. DISCUSSION
In her motion to dismiss, Solis argued that she was entitled to dismissal of
appellant’s suit against her because appellant failed to provide her with an expert report
as required by section 74.351(a). See id. §74.351(a). Citing Ross v. St. Luke’s Episcopal
Hospital, Solis argued that, at the time appellant was injured, she was “providing health
care,” and therefore, appellant’s claim is a “health care liability claim.” 462 S.W.3d 496,
505 (Tex. 2015) (listing factors to determine if a claim is an HCLC, including “[a]t the time
of the injury[,] was the claimant providing or assisting in providing health care”). We
conclude that Solis’s reliance on Ross is misplaced.
In her response to the motion to dismiss and on appeal, appellant argued that
because Solis is neither a “physician” nor a “health care provider” as defined by section
74.001, her claims against Solis are not HCLCs. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.001(a)(12), (23).
Following a hearing on November 12, 2015, the trial court found that, because
appellant was “providing health care” at the time she was injured, her claim is a HCLC.
See Ross, 462 S.W.3d at 505. The trial court further found that appellant is a home health
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care service provider. Finally, the trial court found that appellant failed to serve Solis with
an expert report as required by section 74.351(a), and granted Solis’s motion to dismiss.
We disagree. Regardless of whether appellant was “providing health care” when
she was injured, her claim against Solis cannot be a HCLC because Solis is neither a
physician nor a health care provider. See id. § 74.001(a)(13). As noted, appellant’s
petition alleges negligence and gross negligence claims against Solis for alleged
premises defects. There is no allegation that Solis is a “health care provider or physician,”
see id.; therefore, appellant’s claim against Solis is not a HCLC, and she was not required
to serve Solis with an expert report pursuant to section 74.351(a). See id. § 74.351(a).
We sustain appellant’s sole issue.
IV. CONCLUSION
We reverse the trial court’s order and remand for further proceedings consistent
with this opinion.
DORI CONTRERAS GARZA
Justice
Delivered and filed the
1st day of September, 2016.
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