Ramona Rogers, M. D., Modesto Zambrano, Stephanie Cumpian, Rolando Flores, Hector Ontiveros, Priscilla Nieto, Sonia Hernandez-Keeble, Blas Ortiz, Jr., David Moron, M. D., Jaime Flores and Rio Grande State Center v. David Saxon Bagley, Individually and as Representative of the Estate of Jeremiah Ray Bagley ( 2019 )

NUMBER 13-18-00092-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RAMONA ROGERS, M.D., MODESTO ZAMBRANO,
STEPHANIE CUMPIAN, ROLANDO FLORES,
HECTOR ONTIVEROS, PRISCILLA NIETO,
SONIA HERNANDEZ-KEEBLE, BLAS ORTIZ JR.,
DAVID MORON, M.D., JAIME FLORES AND
RIO GRANDE STATE CENTER, Appellants,
v.
DAVID SAXON BAGLEY, INDIVIDUALLY
AND AS REPRESENTATIVE OF THE
ESTATE OF JEREMIAH RAY BAGLEY, Appellee.
On appeal from the 444th District Court
of Cameron County, Texas.
OPINION
Before Chief Justice Contreras and Justices Rodriguez and Benavides1
Opinion by Justice Benavides
1 The Honorable Nelda V. Rodriguez, former Justice of this Court, was a member of the panel
when this case was orally argued but did not participate in this decision because her term of office expired
on December 31, 2018.
The question before us is whether a civil rights claim brought under 42 U.S.C. §
1983 that alleges excessive force against health care providers and a state hospital is
subject to the expert report requirement of § 74.351 of the civil practice and remedies
code See 42 U.S.C. § 1983; TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. Appellee
David Saxon Bagley, individually and as representative of the estate of Joshua Ray
Bagley, sued the Rio Grande State Center (RGSC) and a number of its employees for
the death of his son Joshua who died after he was physically restrained at RGSC by
RGSC staff.
Appellants, Ramona Rogers, M.D., Modesto Zambrano, Stephanie Cumpian,
Rolando Flores, Hector Ontiveros, Priscilla Nieto, Sonia Hernandez-Keeble, Blas Ortiz
Jr., David Moron, M.D., Jaime Flores, and RGSC, argue that Bagley’s claims are
healthcare liability claims (HCLCs) that must be dismissed for Bagley’s failure to file an
expert report pursuant to § 74.351(b). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351.
By two issues, appellants appeal the trial court’s denial of their motions to dismiss
Bagley’s claims Id. We affirm.
I. BACKGROUND
Joshua was a 37-year-old man with mental health issues who was involuntarily
committed to RGSC for several months before he died. On February 7, 2015, Joshua
allegedly struck a staff member who was assigned to monitor him. Immediately after,
five other staff members forcibly restrained Joshua. In doing so, they tackled him and
pinned him to the floor for approximately ten minutes. While he was restrained, a staff
member forcibly administered an injection to calm Joshua. After Joshua was released
2
from restraint, he returned to his room but was disoriented and unsteady. Joshua went
into cardiac arrest shortly thereafter. RGSC staff performed CPR and called EMS.
Joshua was pronounced dead at the hospital shortly thereafter.
Joshua’s autopsy reflected numerous injuries. He was bruised; his thoracic
spinous processes at T-2 through T-7 were fractured; aspects of his right ribs 4 through
9 were fractured and displaced; aspects of his left ribs 8 through 10 were fractured and
displaced, resulting in laceration of the parietal pleura; both lungs were lacerated; his
spleen was lacerated; and he had blood in his pleural and peritoneal cavities. The
medical examiner reported Joshua’s cause of death to be “excited delirium due to
psychosis with restraint-associated blunt force trauma.”
Bagley’s original petition asserted negligence under the Texas Tort Claims Act
(TTCA), and civil rights claims pursuant to §§ 1983 and 1988. See 42 U.S.C. §§ 1983,
1988; TEX. CIV. PRAC. & REM. CODE ANN. ch. 101. Bagley filed a first amended petition
before any of the defendants filed answers and again asserted negligence claims under
the TTCA and civil rights claims. See 42 U.S.C. §§ 1983, 1988; TEX. CIV. PRAC. & REM.
CODE ANN. ch. 101.
Appellants responded to the suit with general denials, asserted application of
Texas civil practice and remedies code chapters 74 and 108, official immunity, and sought
dismissal pursuant to § 101.106(e) of the civil practice and remedies code. See TEX.
CIV. PRAC. & REM. CODE ANN. chs. 74, 108, § 101.106(e).
Appellants also filed a motion to dismiss for Bagley’s failure to serve expert reports
in August 2017. See id. § 74.351(b). Appellants argued that Bagley’s claims
constituted HCLCs. Bagley responded that § 74.351 did not apply because he sought
3
relief under the civil rights statute § 1983 for excessive force. In response, Bagley
attached the autopsy report, Joshua’s death certificate, and the report of the Office of
Inspector General from the Texas Health and Human Services which concluded that
RGSC employees used improper restraint techniques.
The trial court held a non-evidentiary hearing during which Bagley orally nonsuited
RGSC. On January 30, 2018, Bagley filed his fourth amended petition that nonsuited
RGSC and all non-constitutional claims from this action. The trial court denied the
motion to dismiss on January 30, 2018. Appellants filed this interlocutory appeal. See
id. § 51.014(a)(9).
II. RGSC
We must first determine whether RGSC is a proper party to the appeal. Bagley
non-suited his claims against RGSC which was no longer a party at the time the motion
to dismiss was denied or when the notice of interlocutory appeal was filed. RGSC argues
that its motion to dismiss sought dismissal with prejudice and an award of mandatory
reasonable attorneys’ fees and costs before the nonsuit, and therefore its claim for
dismissal, costs, and fees survived the nonsuit. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(b).
“Under the Texas Rules of Civil Procedure, [a]t any time before the plaintiff has
introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a
case, or take a non-suit, which shall be entered in the minutes.” Univ. of Tex. Med.
Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006)
(quoting TEX. R. CIV. P. 162). However, a nonsuit or dismissal “shall have no effect on
any motion for sanctions, attorney’s fees or other costs, pending at the time of dismissal
4
. . . .” TEX. R. CIV. P. 162; see Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008); Fulp
v. Miller, 286 S.W.3d 501, 509 (Tex. App.—Corpus Christi–Edinburg 2009, no pet.)
(holding that a motion to dismiss pursuant to § 74.351(b) constitutes a motion for
sanctions). Accordingly, we hold that RGSC may properly appeal the trial court’s failure
to grant its motion to dismiss with prejudice and failure to award attorneys’ fees and costs.
III. HEALTH CARE LIABILITY CLAIMS
By their first issue, appellants argue that Bagley’s claims are HCLCs. See TEX.
CIV. PRAC. & REM. CODE ANN. ch. 74. “Determining whether claims are HCLCs requires
courts to construe the TMLA [Chapter 74]. We review issues of statutory interpretation
de novo.” Loaisiga v. Cerda, 379 S.W.3d 248, 254–55 (Tex. 2012).
According to the statutory definition, a lawsuit is a HCLC if it has the following three
elements: (1) the defendant is a health care provider or physician; (2) the claimant’s cause
of action is for treatment, lack of treatment, or other claimed departure from accepted
standards of medical care, health care, or safety or professional or administrative services
directly related to health care; and (3) the defendant’s alleged departure from accepted
standards proximately caused the claimant’s injury or death. Tex. Civ. Prac. & Rem.
Code § 74.001(a)(13); see Loaisiga. 379 S.W.3d at 255.
RGSC is a state hospital that provides inpatient and outpatient mental health
services and is defined to be a health care institution. See TEX. CIV. PRAC. & REM. CODE
ANN. § 74.001(a)(11). A health care provider is defined as any employee of a health care
provider or health care institution. Id. § 74.001(a)(12)(B)(ii). Bagley’s claims meet the
first of the three-part test of a HCLC; they are against healthcare providers, a healthcare
institution, and physicians.
5
The second part is whether Bagley’s claims are for a departure from accepted
standards related to health care. See id. § 74.001(a)(13). Bagley asserts that the staff
used excessive force in restraining his son. Analysis of the cause of action “focuses on
the facts underlying the claim, not the form of, or artfully-phrased language in, the
plaintiff’s pleadings describing the facts or legal theories asserted.” Loaisiga, 379
S.W.3d at 255. Thus,
claims premised on facts that could support claims against a physician or
health care provider for departures from accepted standards of medical
care, health care, or safety . . . directly related to health care are HCLCs,
regardless of whether the plaintiff alleges the defendant is liable for breach
of any of those standards.
Id.; see TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). “The broad language of the
[Texas Medical Liability Act] TMLA evidences legislative intent for the statute to have
expansive application.” Loaisiga, 379 S.W.3d at 256. “The breadth of the statute’s text
essentially creates a presumption that a claim is an HCLC if it is against a physician or
health care provider and is based on facts implicating the defendant’s conduct during the
course of a patient’s care, treatment, or confinement.” Id. The presumption is
rebuttable. Id.
Texas courts have interpreted HCLCs broadly to include an employee who was
injured while employed by a health care facility or a person injured by a physician who
committed an assault. See Loaisiga, 379 S.W.3d at 258–59; Tex. W. Oaks Hosp., LP v.
Williams, 371 S.W.3d 171, 174–75 (Tex. 2012) (holding that claims for on-the-job injuries
against the hospital sustained by a psychiatric technician caused by a patient were
HCLCs); Morrison v. Whispering Pines Lodge I, L.L.P., 428 S.W.3d 327, 332 (Tex. App.—
Texarkana 2014, pet. denied) (holding nursing home employee’s claim for injury from slip
6
and fall on wet floor constituted a HCLC).
In Morrison, the court concluded “that, if there is at least an indirect connection
between Morrison’s claim and the provision of health care, we are bound to rule that the
claim is a HCLC.” 428 S.W.3d at 332; see also Oak Park, Inc. v. Harrison, 206 S.W.3d
133, 135 (Tex. App.—Eastland 2006, no pet.).
In Oak Park, a patient receiving treatment for addiction, Harrison, was injured in
the facility’s common area when another patient attempted to escape. 206 S.W.3d at
141 While the escaping patient was being restrained, Harrison was injured in the melee.
Harrison sued alleging negligence and premises liability causes of action. Id. He did
not file an expert medical report and the trial court declined to dismiss his claims. Id. at
136. The court of appeals reversed and rendered judgment dismissing Harrison’s claims
with prejudice after holding that his “claims are health care liability claims.” Id. at 141.
However, in Ross v. St. Luke’s Episcopal Hospital, the Texas Supreme Court held
that a premises liability case is not necessarily a HCLC unless there is a nexus between
the safety standards allegedly violated and the provision of health care. 462 S.W.3d
496, 504–05 (Tex. 2015) (holding that claim for injuries of a visitor who slipped and fell
near the hospital exit doors was not a HCLC). The pivotal issue is whether the safety
standards implicated the defendant’s duties as a health care provider. Id. at 505.
Although Bagley alleged excessive force, his claims are brought against health
care providers in a health care institution over the restraint of a patient. Restraint of
mental health patients implicates healthcare safety issues. See TEX. HEALTH & SAFETY
CODE ANN. § 552.052 (requiring training of state hospital employees on the “safe and
proper use of restraints,” “prevention and management of aggressive or violent behavior,”
7
and “emergency response,” among other subjects). Under Texas law, Bagley’s claims
are directly related to the safety of mental health patients, the second part of the test for
a HCLC.
The third and final portion of the test is whether Joshua’s death was caused by the
alleged departure from accepted standards. Bagley asserts that the providers used
excessive force in restraining Joshua which caused his death thus meeting the third part
of the test for a HCLC. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13);Oak Park,
206 S.W.3d at 141. We sustain appellants’ first issue.
IV. FEDERAL CIVIL RIGHTS CLAIMS
Bagley argued to the trial court that 42 U.S.C.§ 1983 preempted Chapter 74. See
42 U.S.C. § 1983; TEX. CIV. PRAC. & REM. CODE ANN. ch. 74. By appellants’ second
issue, they argue that § 1983 does not preempt the requirements of § 74.351 that a
person who asserts a HCLC is required to file and serve an adequate medical expert’s
report within 120 days after each defendant has answered the suit. See 42 U.S.C. §
1983; TEX. CIV. PRAC. & REM. CODE ANN. § 74.351.
A. Standard of Review and Applicable Law
Whether § 1983 preempts § 74.351 is a question of law that we review de novo.
See In re GlobalSantaFe Corp., 275 S.W.3d 477, 489 (Tex. 2008) (orig. proceeding); DHL
Express (USA) Inc. v. Falcon Express Int’l, Inc., 408 S.W.3d 406, 410 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied); see also Baker v. Farmers Elec. Coop., Inc., 34
F.3d 274, 278 (5th Cir. 1994).
The United States Constitution provides that the laws of the United States are “the
supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the
8
Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2. Thus, when a state law conflicts
with federal law, it is preempted and has no effect. Williamson v. Mazda Motor of Am.,
Inc., 562 U.S. 323, 330 (2011); Maryland v. Louisiana, 451 U.S. 725, 747 (1981); BIC
Pen Corp. v. Carter, 251 S.W.3d 500, 504 (Tex. 2008); Kan. City S. Ry. Co. v. Oney, 380
S.W.3d 795, 799 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“Whether substantive
or procedural, state law is preempted when it interferes with or restricts remedies under
a federal statute.”) (citing Felder v. Casey, 487 U.S. 131, 138 (1988)). However, the
Supreme Court “limits the preemption doctrine by presuming that Congress did not intend
to displace state law.” Great Dane Trailers v. Estate of Wells, 52 S.W.3d 737, 743 (Tex.
2001) (citing Maryland, 451 U.S. at 748).
In resolving questions of inconsistency between state and federal law, courts must
look not only at the particular federal statutes and constitutional provisions, but also at
“the policies expressed in [them].” Moore v. Brunswick Bowling & Billiards Corp., 889
S.W.2d 246, 248 (Tex. 1994). Of particular importance is whether application of state
law “would be inconsistent with the federal policy underlying the cause of action under
consideration.” Johnson v. Ry Express Agency, Inc., 421 U.S. 454, 465 (1975).
Section 1983 is “one of the ‘Reconstruction civil rights statutes’ that this Court has
accorded a sweep as broad as [their] language.” Griffin v. Breckenridge, 403 U.S. 88,
97 (1971) (quoting United States v. Price, 383 U.S. 787, 801 (1966)). When the federal
statute does not directly speak to preemption, the court “must be guided by the goals and
policies of the Act” in determining preemption. Int’l Paper Co. v. Oulette, 479 U.S. 481,
493 (1987); Slade v. City of Marshall, Tex., 814 F.3d 263, 267 (5th Cir. 2016).
9
B. Preemption Analysis
1. Federal Causes of Action Brought in State Court
Federal and state courts have concurrent jurisdiction over several federal causes
of action including those brought pursuant to § 1983). See 42 U.S.C. § 1983; see also
Garrett v. Moore-McCormack Co., 317 U.S. 239, 245 (1942) (holding concurrent
jurisdiction over Jones Act cases); Scott v. Atchison, Topeka & Santa Fe Ry Co., 572
S.W.2d 273, 281 (Tex. 1978) (recognizing that federal law controls substantive rights in
FELA claims brought in state court).
When a litigant files suit in state court to recover under a federal statute, he is
entitled to the full benefit of federal law. See Garrett, 317 U.S. at 244 (holding that state
rules regarding construction of a release had to give way to admiralty rules relating to
seamen); Scott v. Godwin, 147 S.W.3d 609, 615 (Tex. App.—Corpus Christi–Edinburg
2004, pet. dism’d). State courts therefore apply federal substantive law and state rules
of procedure. See Scott, 572 S.W.2d 273, 276; Mo. Pac. R.R. Co. v. Cross, 501 S.W.2d
868, 870 (Tex. 1973) (discussing FELA claims). “[W]here state courts entertain a
federally created cause of action, the ‘federal right cannot be defeated by the forms of
local practice.’” Felder, 487 U.S. at 138 (quoting Brown v. W. Ry. of Ala., 338 U.S. 294,
296 (1949)).
2. Purpose and Scope of § 1983
We must determine whether the state procedural law stands in the way of
accomplishing the goal of the federal statute. “[T]he central purpose [of § 1983] is to
provide compensatory relief to those deprived of their federal rights by state actors.”
Felder, 487 U.S. at 141; see Farrar v. Hobby, 506 U.S. 103, 112 (1992); Lynch v.
10
Household Fin. Corp., 405 U.S. 538, 543 (1972) (tracing history of § 1983 back to the
Civil Rights Act of 1866 which guaranteed broad and sweeping protection of basic civil
rights). “Since the purposes and objectives of § 1983 are themselves broad—
compensation of persons injured by deprivation of federal rights and prevention of abuses
of power by those acting under color of state law—the preemptive sweep of § 1983 is
obviously considerable.” Beeks v. Hundley, 34 F.3d 658, 661 (8th Cir. 1994) (citing
Robertson v. Wegmann, 436 U.S. 584, 590–91 (1978)).
The broad scope of § 1983 provides a remedy for claims of excessive force by
state actors against persons involuntarily committed for mental health reasons. See
Davis v. Rennie, 264 F.3d 86, 117 (1st Cir. 2001) (affirming judgment in favor of
involuntarily committed mental patient against mental hospital personnel who allegedly
used excessive force during restraint); Andrews v. Neer, 253 F.3d 1052, 1060 (8th Cir.
2001) (reviewing § 1983 claims made by the family of a mental patient who died after
alleged excessive force during take down); see also Rushing v. Simpson, No.
4:08CV1338, 2009 WL 4825196, *9 (E.D. Mo. Dec. 11, 2009) (dismissing excessive force
claims on summary judgment after finding force used was reasonable); Nicolaison v.
Brown, No. Civ. 05-1255, 2007 WL 851616, *11 (D. Mn. Feb. 6, 2007) (Mag. op.) (denying
summary judgment on excessive force claim against officers without expert testimony).
The standard used for violations of the Fourteenth Amendment by use of excessive force
was set by Kingsley v. Hendrickson: whether “the force purposely or knowingly used
against [the plaintiff] was objectively unreasonable” under the existing facts and
circumstances. ___ U.S. ___, 135 S. Ct. 2466, 2473 (2015).
11
3. Purpose and Scope of TMLA
In contrast to the broad remedial aim of § 1983 for violations of constitutional
requirements by state actors, the TMLA was enacted in 1977 to combat a medical
malpractice crisis in Texas. See Scoresby v. Santillan, 346 S.W.3d 546, 552 (Tex.
2011); State v. Emeritus Corp., 466 S.W.3d 233, 243 (Tex. App.—Corpus Christi–
Edinburg 2015, pet. denied). The current expert report requirement became part of the
revised framework of the TMLA after 2005. Section 74.351(b) requires a trial court to
dismiss a plaintiff’s claims with prejudice and to award the defendant’s attorneys’ fees
and costs if a plaintiff fails to file a timely and adequate medical expert report. See TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(b). Thus, the expert report requirement is more
than a procedural rule; it “‘is a threshold requirement for the continuation of a lawsuit.’”
Med. Hosp. of Buna Tex., Inc. v. Wheatley, 287 S.W.3d 286, 294 (Tex. App.—Beaumont
2009, pet. denied). Section 74.351 further provides limitations on discovery and requires
dismissal of a plaintiff’s claims with prejudice early in the litigation if the plaintiff fails to
timely file a compliant report. See Passmore v. Baylor Health Care Sys., 823 F.3d 292,
298 (5th Cir. 2016) (declining to apply § 74.351(b) in cases brought in federal court
because it is inconsistent with the federal rules of procedure); see also Med. Hosp. of
Buna Tex., Inc., 287 S.W.3d at 294.
As discussed, the TMLA has been interpreted broadly. As an example, persons
who allege intentional assault against a health care provider are required to file expert
reports even if the conduct alleged constitutes a criminal act. See Loaisiga, 379 S.W.3d
at 256 (holding that allegations of assault by patient against physician who fondled her
breast during a medical exam for flu symptoms required an expert report pursuant to §
12
74.351(b) because she failed to conclusively negate that her claim was a HCLC). 2
Excessive force claims, like assault claims, do not ordinarily arise in the provision of health
care.
3. Discussion
After considering the purpose and scope of both § 1983 and the TMLA, the Court
must determine whether the expert report requirement in § 74.351 is “consistent with the
goals of the federal civil rights laws, or does the enforcement of such a requirement
instead stan[d] as an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress?” Felder, 487 U.S. at 138; see Haywood v. Drown, 556 U.S.
729, 735 (2009).
The Felder Court held that a Wisconsin notice statute was preempted by § 1983
because it
conflicts in both its purpose and effects with the remedial objectives of §
1983, and because its enforcement in such actions will frequently and
predictably produce different outcomes in § 1983 litigation based solely on
whether the claim is asserted in state or federal court, we conclude that the
state law is pre-empted when the § 1983 action is brought in a state court.
487 U.S. at 138. The Felder Court further explained,
[A]pplication of the notice requirement burdens the exercise of the federal
right by forcing civil rights victims who seek redress in state courts to comply
2 When suing a healthcare provider, a plaintiff may avoid the expert report requirement only
under the circumstances outlined below:
[A] claim against a medical or health care provider for assault is not an
HCLC if the record conclusively shows that (1) there is no complaint about
any act of the provider related to medical or health care services other
than the alleged offensive contact, (2) the alleged offensive contact was
not pursuant to actual or implied consent by the plaintiff, and (3) the only
possible relationship between the alleged offensive contact and the
rendition of medical services or healthcare was the setting in which the act
took place.
Loasiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012).
13
with a requirement that is entirely absent from civil rights litigation in federal
courts. This burden, as we explain below, is inconsistent in both design
and effect with the compensatory aims of the federal civil rights laws.
Second, it reveals that the enforcement of such statutes in § 1983 actions
brought in state court will frequently and predictably produce different
outcomes in federal civil rights litigation based solely on whether that
litigation takes place in state or federal court. States may not apply such
an outcome-determinative law when entertaining substantive federal rights
in their courts.
Id. at 141.
In Haywood, the Court held that a New York statute that limited § 1983 claims
against correctional officers to a single court with no right to a jury trial, no attorneys’ fees,
and strict notice provisions was preempted by federal law. 566 U.S. at 737, 742; see
also Godwin v. Mem’l Med. Ctr, 130 N.M. 434, 443–44, 25 P.3d 273, 282 (N.M. Ct. App.
2001, no. cert.) (holding that tort claims notice requirement was preempted by the
Emergency Medical Treatment and Active Labor Act).
Section 74.351 operates differently than the notice requirements at issue in Felder
and in Godwin. Section 74.351’s expert report requirement serves two purposes: (1) to
inform the defendant of the specific conduct the plaintiff has called into question; and (2)
to provide a basis for the trial court to conclude the plaintiff’s claims have merit. See Am.
Transitional Care Ctrs of Tex. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001) (considering
a previous version of TMLA); McAllen Hosps., L.P. v. Gonzalez, 566 S.W.3d 451, 456
(Tex. App.—Corpus Christi–Edinburg 2018, no pet.); see also Thilo Burzlaff, M.D., P.A.
v. Weber, No. 04-17-00520-CV, 2018 WL 1176378, at *6 (Tex. App.—San Antonio Mar.
7, 2018, no pet.).
As in Hayward which involved a statute designed to protect correctional officers
from perceived frivolous claims for damages, the TMLA, including § 74.351, provides
protection to health care providers, physicians, and institutions from perceived frivolous
14
claims and pretrial discovery. See TEX. CIV. PRAC. & REM. CODE ANN. ch. 74; Am.
Transitional Care Ctrs of Tex., 46 S.W.3d at 877.3 Similarly to Felder and Godwin, the
expert report requirement provides the state actors with early notice of the details of the
claims against them and a means of early dismissal of those claims when the requirement
is not met. See Felder, 487 U.S. at 144; Godwin, 130 N.M. at 443–44, 25 P.3d at 282.
In no other § 1983 action is a state plaintiff required to establish the merits of his or her
claim against a state actor so quickly; instead, the ordinary rules of civil procedure apply.
Although the expert report requirement does not uniquely discriminate against the federal
right, it uniquely burdens the state court plaintiff under § 1983 differently than a similar
plaintiff who sues in federal court. That difference can be dispositive. Compare Bogart,
257 S.W.3d 354, 373 (Tex. App.—Austin 2008, no pet.) (reversing trial court’s finding that
expert report was adequate and rendering judgment against plaintiff) with Passmore, 823
F.3d at 299 (reversing dismissal for failure to provide expert reports and allowing medical
malpractice claim to proceed).
The Texas Supreme Court recognizes that state procedural rules must give way
to federal preemption when they conflict with the goals of the federal statute. See In re
GlobalSantaFe Corp., 275 S.W.3d at 489. In GlobalSantaFe Corp., the court found that
a portion of civil practice and remedies code chapter 90 addressing asbestos and silicosis
3 As the Texas Supreme Court explained:
Because expert testimony is crucial to a medical-malpractice case, knowing what specific
conduct the plaintiff’s experts have called into question is critical to both the defendant’s
ability to prepare for trial and the trial court’s ability to evaluate the viability of the plaintiff’s
claims. This makes eliciting an expert’s opinions early in the litigation an obvious place to
start in attempting to reduce frivolous lawsuits.
Am. Transitional Care Ctrs of Tex. v. Palacios, 46 S.W.3d 873, 876–77 (Tex. 2001).
15
injuries was inconsistent with the federal Jones Act. Id. It held that § 90.004(b) which
imposed a threshold impairment requirement could not be applied in those cases. Id.
(“We further conclude that Chapter 90 must not be interpreted to impose a higher
standard of proof for causation than the federal standard applicable to Jones Act cases.”).
The GlobalSantaFe Court also held that other portions of Chapter 90, including the expert
report component, were not preempted. Id. Unlike the expert report requirement in §
74.351(b) though, the chapter 90 requirement in the pre-2003 statute did not require
dismissal of a plaintiff’s claim or that discovery be stayed until a compliant report was
filed. See Oney, 380 S.W.3d at 801 (discussing preceding version of §§ 90.003, 90.004,
and 90.007); TEX. CIV. PRAC. & REM. CODE ANN. § 90.07(d).
In Oney, a FELA suit for a railroad worker’s death from lung cancer arising out of
his asbestos and silica exposure, the court of appeals held that portions of the 2005
version of Chapter 90 were preempted. Oney, 380 S.W.3d at 799. The goal of the
FELA was to compensate railroad workers who were being injured and killed in their
employment and for whom common law remedies had proved to be inadequate. Id.
After considering the goals of FELA, the Oney court held that §§ 90.003, 90.004, and
90.007 were preempted because they interfered with FELA’s goal of providing a broad
remedy to injured railroad workers.4 Id. at 808.
Appellants seek dismissal with prejudice, along with attorneys’ fees and costs for
Bagley’s failure to file an expert medical report. See TEX. CIV. PRAC. & REM. CODE ANN.
4 The current version of § 90.003 provides detailed requirements for expert medical reports for
persons asserting an asbestos related injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 90.03. Section
90.004 provides similar requirements for persons asserting a silica-related injury. Id. § 90.04. Section
90.007 provides for dismissal of any suit in which a claimant fails to comply with the requirements of §§
90.003 and 90.004. Id. § 90.007.
16
§ 74.351(b); see also Med. Hosp. of Buna Tex., 287 S.W.3d at 294 (“Like dismissal under
§ 74.351, an award of costs and attorney’s fees under § 74.351 is not discretionary.”).
After considering the goals of § 1983 to provide a broad remedy for redress of
unconstitutional actions by state actors, and the different focus of Chapter 74, we hold
that the expert report requirement of § 74.351 conflicts with the purpose of § 1983 and its
application unfairly burdens a state court § 1983 claimant in a manner that can be
dispositive. Accordingly, in this narrow class of cases, we hold that § 1983 preempts §
74.351 when claims for excessive force occur within a healthcare institution or against a
healthcare provider or physician. See Oney, 380 S.W.3d at 808.
We overrule appellants’ second issue.
IV. CONCLUSION
Although we sustained appellants’ first issue, because we hold that § 1983
preempts § 74.351, we affirm the trial court’s order.
GINA M. BENAVIDES,
Justice
Delivered and filed the
13th day of June, 2019.
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