in the Interest of Dekota Podzemny, a Child ( 2001 )

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NO. 07-00-0567-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

NOVEMBER 28, 2001

______________________________

IN THE INTEREST OF D.P., A CHILD

_________________________________

FROM THE 320^TH DISTRICT COURT OF POTTER COUNTY;

NO. 60,452-D; HONORABLE DON EMERSON, JUDGE

_______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.

Alisha Cordell appeals from an order following a bench trial terminating her parental rights to her son, D.P., a minor child, where no findings of fact and conclusions of law were requested, and none were signed or filed. By two points of error, Cordell contends the evidence is legally and factually insufficient to terminate her parental rights. Based upon the rationale expressed herein, we reverse the judgment and remand the cause to the trial court.

Cordell is the natural mother of D.P., who was born on February 15, 1999. Because Cody Podzemny was originally thought to be the natural father of the child, he was joined as a party, but after tests showed that he was not the natural father, he was dismissed and Michael Jean Cates was made a party. Cates filed a voluntary affidavit of relinquishment of his parental rights.

During all relevant times, Podzemny and Cordell resided together. On May 22, 1999, when D.P. was about three months old, Cordell took him to the emergency room because he had been vomiting for several hours. At that time, no visible injuries or bruises on the infant were noted; however, x-rays indicated that D.P. had suffered several fractures of his ribs. The medical professionals concluded that the fractures had occurred at various times within the last 30 days and that they were not the result of an accident. One professional concluded that the child was a victim of abuse or neglect. Four days after D.P. was taken to the hospital, the Department of Protective and Regulatory Services (the Department) assumed custody of the child by emergency order signed May 26, 1999. Following a non-jury trial, the court terminated Cordell's parental rights concluding that she had (a) knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered the physical or emotional well-being of the child; (b) engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child; and (c) termination of Cordell's parental rights was in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(1) (D) and (E) and (2) (Vernon Pamph. Supp. 2002).⁽¹⁾

By two points of error, Cordell contends the evidence is legally and factually insufficient to terminate her parental rights. By her argument and briefing, she limits her challenges to the grounds designated under section 161.001(1) (D) and (E). Because both of these grounds implicate the term "knowingly," we first consider the definition of the term.

Knowingly
As material here, subsections (D) and (E) provide as follows:

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;

(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotion well-being of the child;

Although the term "knowingly" is defined in section 6.03(b) of the Texas Penal Code, it is not defined in chapter 161 of the Family Code. Because the parties have not presented any definition, statutory or otherwise, of the term for purposes of termination proceedings, the Code Construction Act directs that we read the term in context and construe it with the rules of grammar and common usage. Tex. Gov't Code Ann. § 311.011(a) (Vernon 1998).

Webster's Third New International Dictionary 1252 (1976) defines the adverb "knowingly" as follows:

in a knowing manner; with awareness, deliberateness or intention.

Black's Law Dictionary 872 (6th ed. 1990) defines the term as follows:

[w]ith knowledge; consciously; intelligently, wilfully; intentionally. An individual acts "knowingly" when he acts with awareness of the nature of his conduct.

Considering the constitutional implications of a proceeding to terminate parental rights and the above definitions, we will conduct our review to determine whether the evidence is legally and factually sufficient to support a finding that Cordell's conduct was committed "knowingly."

Standard of Review
The natural right existing between parents and their children is of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination proceedings must be strictly scrutinized. In Interest of G.M., 596 S.W.2d 846 (Tex. 1980). A termination decree is complete, final, irrevocable, and divests for all time that natural right as well as all legal rights, privileges, duties, and powers with respect to each other except for the child's right to inherit. Holick, 685 S.W.2d at 20. In proceedings to terminate the parent-child relationship brought under section 161.001 of the Family Code, the petitioner must establish one or more acts or omissions enumerated under subsection (1) of the statute, and must additionally prove that termination of the parent-child relationship is in the best interest of the child. Both elements must be established and proof of one element does not relieve the petitioner of the burden of proving the other. See Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).

Because termination of parental rights is of such weight and gravity, due process requires the petitioner to justify termination by clear and convincing evidence. § 161.001. In Interest of G.M., 596 S.W.2d at 847. This standard is defined as "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Id. Although the clear and convincing burden of proof required at the trial level is well settled, appellate courts have struggled to reconcile this burden of proof with the standard for appellate review of challenges to the sufficiency of evidence. As this Court has previously noted, the clear and convincing standard does not alter the rules generally applicable when appellate courts review factual findings. In Interest of R.D.S., 902 S.W.2d 714, 716 (Tex.App.--Amarillo 1995, no writ).

That being said, we turn to the well settled standards of review for challenges to sufficiency of the evidence. When presented with a challenge to the legal sufficiency of the evidence, the reviewing court must consider all the evidence in a light most favorable to the party in whose favor the finding was rendered indulging every reasonable inference in that party's favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). If there is any evidence of probative force to support the finding, the finding must be upheld. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). In reviewing a challenge to the factual sufficiency of the evidence, the court must consider, weigh, and examine all the evidence of record. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). The court should set aside a finding only if the evidence which supports the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Analysis

Cordell testified that she took her son to the emergency room because he had been vomiting for several hours. Testimony of emergency room personnel and physicians established that (1) x-rays disclosed the child had suffered several broken ribs but, (2) there were no external or visible indications of injury to the ribs. Although Cordell acknowledged that she and Podzemny had engaged in some acts of domestic violence directed toward each other, she attributed D.P.'s injuries to the babysitter. Because there is some evidence of probative force to support the trial court's finding and considering the evidence in a light most favorable to the Department and indulging every reasonable inference in its favor, we conclude the evidence is legally sufficient to support the termination order. Point of error one is overruled.

We begin our factual sufficiency review by revisiting the article written by former Chief Justice Robert W. Calvert. He wrote:

"Insufficient evidence" points may, and should, be sustained when the record discloses either of the following situations: (a) the evidence is factually insufficient to support a finding of a vital fact, or (b) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 366 (1960). Because no eye-witnesses testified as to who injured D.P. or when and how the injuries occurred, there is little, if any direct evidence regarding these matters. However, even though causation can be established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved by direct evidence, a vital fact may not be established by "piling inference upon inference." See Schlumberger Well Sur. Corp. v. Nortex Oil & G. Corp., 435 S.W.2d 854, 858 (Tex. 1968); Roth v. FFP Operating Partners, 994 S.W.2d 190,197 (Tex.App.--Amarillo 1999, pet. denied).

We first address the contention that Cordell engaged in conduct that endangered D.P. which is part of the requirement under section 161.001(1)(E). Termination under this provision may not be based on a single act or omission, but a showing of a course of conduct is required. See In Re D.T., 34 S.W.3d 625, 634 (Tex.App.--Fort Worth 2000, no pet.) (reversing on grounds of factual insufficiency). Also, under this section, the cause of the danger to the child must be the parent's conduct alone as shown by actions or omissions or failure to act. See Doyle v. Texas Dept. of Pro. And Reg. Serv., 16 S.W.3d 390, 395 (Tex.App.--El Paso 2000, pet. denied) (reversing on grounds of factual insufficiency). Regarding this issue, the Department candidly acknowledges in its brief:

[w]hile it is impossible to avoid the suspicion that Appellant personally inflicted the child's injuries, there is no direct evidence of that fact in the record.

However, evidence raising a suspicion only is not clear and convincing evidence sufficient to support a finding that Cordell caused the injuries or engaged in conduct that endangered D.P.

We next consider the Department's remaining contentions that under section 161.001(1) (D) and (E), Cordell acted "knowingly," which resulted in endangerment to D.P. As noted above, Cordell testified that she took the child to the emergency room because of prolonged vomiting; however, according to the Department's evidence, no signs of violence or abuse were visible and the injuries were detected only after x-rays. Based on an emergency order obtained by the Department, D.P. was removed from his mother's care while in the hospital and since then D.P. has not been under Cordell's care or control, thereby precluding a determination of knowing endangerment after the child was taken to the hospital. Further, although maternal instincts are strong, without evidence of Cordell's level of medical and infant care training and no visible injuries, knowledge that D.P. had been injured before Cordell took him to the emergency room cannot be based on surmise.

Moreover, the Department also acknowledges in its brief that there is "little evidence that the Appellant placed the child in conditions endangering" the child's physical or emotional well-being. It is undisputed that D.P. sustained injuries to his ribs, but there is no evidence showing how, when, nor by whom the child was injured. Although the evidence suggests that the list of persons who could have caused the injuries can be narrowed to Cordell, Podzemny, or the babysitter, where, as here, circumstances are consistent with either of two or more facts and nothing shows that one is more probable than the other, none may be inferred. Roth, 994 S.W.2d at 197. Resultantly, absent knowledge of who injured D.P., a finding that Cordell knowingly placed or allowed him to be subject to an unsafe environment or circumstances is not supported by clear and convincing evidence. After reviewing all the evidence and applying the appropriate standard of review, we conclude the evidence supporting termination of Cordell's parental rights has not been demonstrated by clear and convincing evidence and is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Point of error two is sustained.

Accordingly, the judgment is reversed and the cause is remanded to the trial court for a new trial.

Don H. Reavis

Justice

Publish.

1. All references herein to section 161.001 are to the Texas Family Code Annotated (Vernon Pamph. Supp. 2002).

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NO. 07-10-00361-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MAY 13, 2011

COVENANT HEALTH SYSTEM, D/B/A COVENANT MEDICAL CENTER, AND D/B/A COVENANT HEART & VASCULAR INSTITUTE, AND D/B/A COVENANT HEART INSTITUTE, AND D/B/A COVENANT WELL HEART SERVICES, APPELLANT

v.

LINDA BARNETT AND ROBERT BARNETT, APPELLEES

FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2010-550,709; HONORABLE RUBEN GONZALES REYES, JUDGE

Before CAMPBELL and PIRTLE, JJ. and BOYD, S.J.[1]

OPINION

Appellant Covenant Health System[2] brings this interlocutory appeal[3] challenging the order of the trial court denying its motion to dismiss the claims of appellees Linda Barnett and Robert Barnett for their failure to serve an expert report. Finding the Barnetts claims are health care liability claims, we reverse the trial courts order and remand the case to the trial court.

Background

Covenant advertised its Fifth Annual Heart Symposium in the Lubbock newspaper. The event was held at a Lubbock hotel on a Saturday morning in February 2008. The newspaper ad, which indicated the symposium was sponsored by Covenant Well Heart Services, began this way:

All your life youve been told you have a Heart of Gold. Bring it in for an appraisal. Covenants Fifth Annual Heart Symposium. Holiday Inn Park Plaza . . . .

The schedule printed in the ad indicated that the symposiums activities would include brunch, a healthy heart cooking demonstration, and a presentation by the keynote speaker, a nurse practitioner considered one of the nations foremost thought leaders in heart attack prevention. In addition, the schedule advertised Free Heart Screenings available from 8:00 to 11:00 a.m. The ad instructed Water only for 12 hours prior to your free health screening. It gave a telephone number for registration.

Linda Barnett fasted as instructed and attended the heart symposium. She participated in the heart screening. According to allegations in the Barnetts petition:

During [the screening] Linda Barnett was told to step up and down on an aerobic step for three minutes. She was told that to achieve optimum results, she should try to keep time with the beat of a metronome that was set by a Covenant staff member.

The step, which was approximately 14 inches high, was placed close to a wall which forced Plaintiff Linda Barnett to lean back somewhat while stepping up on the step. In other words, she could not lean forward in a natural position when stepping up on the step without hitting her head on the wall.

After approximately two minutes into the three minute test, fatigued and already off balance stepping up and down, Plaintiff Linda Barnett lost her balance and fell as she came crashing down and shattered her left wrist as she attempted to catch herself.

There were numerous employees of [Covenant] milling about and visiting with each other . . . none of whom acted as a coach or a spotter, nor stood near to assist Plaintiff Linda Barnett and oversee her during this portion of the Fitness Screening, nor were close enough to Plaintiff Linda Barnett to catch her when she fell or to at least break her fall, nor did any of [Covenants] employees or agents even attempt to minimize the injuries of Plaintiff Linda Barnett when she fell.

***

[Covenant] negligently failed to have anyone available to observe [Linda Barnett] as she performed the test. Had [Covenant] done so, [Covenant] would have been able to either observe that [Linda Barnett] needed to stop and get off the step or would have been close enough to have prevented [Linda Barnett] from falling or to have broken her fall, thus avoiding the serious injuries she sustained.

            The Barnetts filed suit against Covenant but did not serve the expert report required by Texas Civil Practice & Remedies Code § 74.351. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a),(b) (West 2011). Covenant filed a motion to dismiss on the ground that the Barnetts alleged a health care liability claim, requiring an expert report, but no report was served. The Barnetts responded that the screening did not constitute medical treatment, hence no expert report was required. After hearing the arguments of the parties, the trial court denied Covenants motion to dismiss.[4] This appeal followed.

Analysis

            Through a single issue, Covenant asserts the trial court abused its discretion by denying the motion to dismiss. It argues the Barnetts claim is a health care liability claim for which Chapter 74 requires an expert report and, because the Barnetts did not furnish an expert report, the trial court had no discretion to refuse dismissal of the case.

We review a trial courts decision to grant or deny a motion to dismiss for failure to timely serve the expert report required by § 74.351(a) under an abuse of discretion standard. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam) (former statute); Jones v. King, 255 S.W.3d 156, 158 (Tex.App.--San Antonio 2008, pet. denied). However, when the issue presented requires statutory interpretation or a determination whether Chapter 74 applies to a claim, the issue presents a question of law which we review de novo. Holguin v. Laredo Regl Med. Ctr., L.P., 256 S.W.3d 349, 352 (Tex.App.--San Antonio 2008, no pet.). Whether a claim constitutes a health care liability claim is a question of law. Id.

A plaintiff who files a health care liability claim must serve an expert report within 120 days of filing suit. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2011). Subject to an exception not relevant here, if an expert report has not been served within that period, on the motion of the affected health care provider a trial court must enter an order that (1) awards to the affected health care provider reasonable attorneys fees and costs of court incurred by the provider, and (2) dismisses the health care liability claim with prejudice, as to that provider. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (West 2011).

A health care liability claim is:

[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 claimants claim or cause of action sounds in tort or contract.

Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (West 2011). Health care means 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 patients medical care, treatment, or confinement. Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(10) (West 2011). A hospital is a health care provider, as is its employee or agent acting in the course and scope of the employment or contractual relationship. Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(11)(G), (12)(A)(vii),(B)(ii) (West 2011).

The statute does not include a definition of treatment, so its meaning in this context is one consistent with the common law. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(b) (West 2011) (Any legal term or word of art used in this chapter, not otherwise defined in this chapter, shall have such meaning as is consistent with the common law); cf. Kendrick v. Garcia, 171 S.W.3d 698, 704 (Tex.App.--Eastland 2005, pet. denied) ([Section 74.001(b)] essentially restates the rule of statutory construction that terms in a statute are to be given their plain meaning). The court in Rowntree v. Hunsucker, 815 S.W.2d 779 (Tex.App.--Texarkana 1991), revd on other grounds, 833 S.W.2d 103 (Tex. 1992), cited the 1990 edition of Blacks Law Dictionary definition of treatment as [a] broad term covering all the steps taken to effect a cure of an injury or disease; including examination and diagnosis as well as application of remedies. 815 S.W.2d at 783 (citing Blacks Law Dictionary 1502 (6th ed. 1990));[5] see Doe v. Univ. of Cincinnati (1988), 42 Ohio App. 3d 227, 230, 538 N.E.2d 419, 423 (quoting same definition from 1979 fifth edition of Blacks Law Dictionary). Other courts of appeals have made use of the definition of treatment from Mosbys Medical Dictionary, i.e., the care and management of a patient to combat, ameliorate, or prevent a disease, disorder, or injury. Nexus Recovery Ctr., Inc. v. Mathis, No. 05-09-0273-CV, 2011 Tex. App. Lexis 974, at *7 n.3 (Tex.App.--Dallas Feb. 10, 2011, n.p.h.); Ghazali v. Brown, 307 S.W.3d 499, 503 (Tex.App.--Fort Worth 2010, pet. granted); Tesoro v. Alvarez, 281 S.W.3d 654, 659 (Tex.App.Corpus Christi 2009, no pet.) (each quoting Mosbys Medical Dictionary 1880 (8th ed. 2009)). The Consent to Medical Treatment Act defines medical treatment as a health care treatment, service, or procedure designed to maintain or treat a patients physical or mental condition, as well as preventative care. Tex. Health & Safety Code Ann. § 313.002(6) (West 2010).

As noted, Chapter 74s definition of health care includes any act performed, or that should have been performed, by a health care provider for a patient during the patients treatment. All of the definitions of treatment we have cited include disease diagnosis or prevention. Covenants heart screening had as its purpose the diagnosis or prevention of heart disease or disorder in the screening participants.[6] Although the record does not fully describe the screening, it is clear it included timed exercise with some monitoring by Covenant. It is fair to infer that Linda Barnett registered before the test, as instructed by Covenants advertisement. As also instructed, she fasted for twelve hours before the test.[7] We have no occasion here to characterize all the events that formed part of the heart symposium, but we believe the heart screening, though performed at no cost, must be held to be within the definition of treatment. Acts performed, or that should have been performed, during the heart screening Linda Barnett sought from Covenant therefore are within Chapter 74s definition of health care.

It is the underlying nature of a claim that determines whether it is a health care liability claim. Yamada v. Friend, No. 08-0262, 2010 Tex. Lexis 1012, at *8 (Tex. Dec. 17, 2010) (citing Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004)). That nature is not shaped by artful pleading. Id. at *9. A cause of action against a health care provider is a health care liability claim if it is based on a claimed departure from an accepted standard of health care. A claim alleges a departure from accepted standards of health care if the act or omission alleged in the complaint is an inseparable part of the rendition of health care services. Diversicare General Partner, Inc., v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005); Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.--Houston [14th Dist.] 2004, no pet.) (generally cause of action is considered health care liability claim when based on breach of a standard of care applicable to health care providers). Whether the expert testimony of a medical or health care professional is necessary may be an important factor in determining whether a claim arises from an inseparable part of the rendition of health care services. Saleh v. Hollinger, No. 05-10-0339-CV, 2011 Tex. App. Lexis 11, at *13 (Tex.App.--Dallas Jan. 4, 2011, pet filed) (citing Diversicare, 185 S.W.3d at 848). However, the fact that expert testimony may not ultimately be necessary to support a verdict at trial does not necessarily mean the claim is not a health care liability claim. Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005). The expert report requirement is a threshold requirement for the continuation of the lawsuit, not a requirement for recovery. See id.

On appeal, the Barnetts primarily emphasize their assertion Covenants employees were negligent through their failure to properly supervise Linda Barnetts performance of the cardio-vascular step test. That omission was an inseparable part of Covenants heart screening. See Valley Baptist Med. Ctr. v. Azua, 198 S.W.3d 810, 814 (Tex.App.--Corpus Christi 2006, no pet.) (act of hospital employee assisting patient into wheelchair was inseparable part of rendition of medical services). If the Barnetts claims are based on asserted departures from accepted standards of health care, they are health care liability claims. Diversicare, 185 S.W.3d at 848.

The record contains evidence of guidelines adopted by the health care community for exercise testing like that conducted by Covenant. Attached in part as an exhibit to the Barnetts original petition, and attached also to a pleading filed by Covenant in support of its motion to dismiss was the step test protocol from the American College of Sports Medicines Guidelines for Exercise Testing and Prescription. The protocol calls for evaluation of the participant for risk factors commonly associated with coronary artery disease. According to the protocol, clearance for participation in the exercise testing rests largely in the evaluators discretion. For example, the guidelines require the evaluator to determine the presence of absolute and relative contraindications to exercise testing, some of which are specified in two lists of medical terms. The guidelines also call for termination of the step test if the participant asks to stop, or on the occurrence of such events as angina or angina-like symptoms; a significant drop or an excessive rise in blood pressure; light-headedness, confusion, ataxia, pallor, cyanosis, nausea, or cold and clammy skin; failure of heart rate to increase with increased exercise intensity; physical or verbal manifestations of severe fatigue; and unusual or severe shortness of breath.

We see the Barnetts claims that Covenants personnel at the symposium failed to watch and attend Linda Barnetts performance of the step test as asserting a breach of the standard of care applicable to health care providers conducting such exercise testing. See Buck, 130 S.W.3d at 291 (allegation defendants failed to properly supervise employee physician essentially was allegation of violation of standard of care). And we see such a claim as one requiring expert testimony of the particulars of the standard applicable to a step test and the manner in which Covenants supervision of Linda Barnett failed the standard. The Barnetts contend otherwise, arguing no medical expert is needed to explain how Linda Barnetts injury could have been prevented by simply offering her a steady hand. They also argue, A medical school education is not required to realize a middle aged woman who has not eaten for 12 hours may stumble while performing a step test.

We disagree that the decision when and under what circumstances a participant in a cardio-vascular step test should have the kind of close supervision the Barnetts posit is the substance of common knowledge. See Diversicare, 185 S.W.3d at 851 (similar analysis). The American College of Sports Medicines guidelines anticipate that the person conducting the test will possess sufficient medical competence to evaluate the test participant and make the medical judgments inherent in the decision whether to continue the test. The existence and nature of such guidelines established by the health care community indicate that a judgment concerning Covenants conduct of Linda Barnetts step test requires specialized knowledge, and ultimately support a conclusion the Barnetts claims are based on a claimed departure from accepted standards of health care. See Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 546 (Tex. 2004) (citing promulgation of guidelines governing hospital credentialing process to support similar conclusion).

To agree with the Barnetts would effectively reduce the standard of care of a heart screening from health care professional to ordinary care. As did the court in Diversicare, 185 S.W.3d at 853-54, we find such a result was not intended by the Legislature. Because the Barnetts claim that Linda Barnett was injured as a result of poor supervision of the step test is one based on a claimed departure from an accepted standard of health care, it is a health care liability claim. Diversicare at 848.

The Barnetts contend on appeal that none of the Covenant employees conducting Linda Barnetts heart screening were doctors or nurses; they were not medical care professionals. Because the employees could exercise no medical judgment, they argue, the claim may not be classified a health care liability claim. As Covenant pointed out at oral argument, the record does not disclose the qualifications of those conducting Linda Barnetts screening. But for a more fundamental reason, we find no merit to the argument. Under Chapter 74, health care is not limited to the actions of doctors and nurses. See Marks v. St. Lukes Episcopal Hosp., 319 S.W.3d 658, 671-72 (Tex. 2010) (plurality op.) (Johnson, J., concurring) (discussing predecessor act). We have already noted that health care includes 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 patients medical care, treatment, or confinement. Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(10) (West 2011) (emphasis supplied). And a health care provider includes a hospital as well as its employee or agent acting in the course and scope of the employment or contractual relationship. Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(11)(G), (12)(A)(vii),(B)(ii) (West 2011). The Barnetts do not dispute that Covenant is a health care provider nor is it argued the Covenant employees conducting the test acted outside the course and scope of their employment. Thus from a plain reading of the statute, and solely for the purpose of determining whether the Barnetts claims are or are not health care liability claims, the qualifications of the employees Covenant selected to conduct the heart screening matter not.

The Barnetts also argue on appeal Covenant negligently placed the test step too close to the wall, and such negligence was a proximate cause of Linda Barnetts injury. According to the Barnetts, placement of the step at an unsafe distance is contrary to common sense, and is not akin to medical expertise. Components of this, or just about any healthcare procedure, may be highlighted and particularized as involving conduct measured by ordinary standards of care. Yamada, 2010 Tex. Lexis 1012, at *13. But when, as here, the case presents a health care liability claim, a plaintiff may not split the claim and on a divided portion recast the case as one in ordinary negligence. See Turtle Healthcare Group, L.L.C. v. Linan, No. 09-0613, 2011 Tex. Lexis 323, at *6-*7 (Tex. April 29, 2011) (per curiam); Yamada at *13 (citing Diversicare, 185 S.W.3d at 854); Marks, 319 S.W.3d at 669 (Johnson, J., concurring) (when the substance of a patients claim for damages comes within the statutory definition of a health care liability claim, then [Chapter 74] applies to all the plaintiffs claims against the health care provider based on that injury). Moreover, a health care liability claim may arise also from a claimed departure from accepted standards of safety. Tex. Civ. Prac. & Rem. Code Ann. § 71.001(a)(13) (West 2011). The placement of the aerobic step, for the purpose of conducting the heart screening, was an integral and inseparable part of the health care services provided. If the unsafe condition of the step caused Linda Barnetts injury, the gravamen of the resulting cause of action is a health care liability claim. Marks, 319 S.W.3d at 664.

For these reasons, we sustain Covenants sole issue.

Conclusion

While the Barnetts pursued the case as one for ordinary negligence, we conclude it constitutes a health care liability claim. It is undisputed the Barnetts did not serve the required expert report. The trial court abused its discretion by denying Covenants motion to dismiss. Covenant asked for its attorneys fees in its motion to dismiss, but did not offer evidence of its incurred attorneys fees at the hearing on its motion. Cf. Victoria Gardens of Frisco v. Walrath, 257 S.W.3d 284, 291 (Tex.App.Dallas 2008, pet. denied) (health care provider prevailing on appeal but not pleading for attorneys fees not entitled to remand). We reverse the trial courts order and remand the cause to the trial court for the limited purposes of determining Covenants reasonable incurred attorneys fees and costs and entry of an order dismissing with prejudice the Barnetts claims against Covenant. See Gingrich v. Scarborough, No. 09-09-0211-CV, 2010 Tex. App. Lexis 3139, at *14-*15 (Tex.App.--Beaumont Apr. 29, 2010, no pet.) (mem. op.) (after reversing trial courts denial of motion to dismiss claims against pharmacy defendants for failure to serve adequate expert report, court remanded for determination of attorneys fees despite absence of proof of fees at hearing); Thoyakulathu v. Brennan, 192 S.W.3d 849, 856 (Tex.App.--Texarkana 2006, no pet.) (remanding after reversing trial courts denial of motion to dismiss for failure to serve expert report). Cf. Garcia v. Gomez, 319 S.W.3d 638 (Tex. 2010) (remanding physicians attorneys fees claim to the trial court for further proceedings, id. at 643-44, over dissent objecting to giving physician a second chance to satisfy his burden of proof, id. at 645).[8]

                                                                                                James T. Campbell

                                                                                                            Justice

Pirtle, J., concurring and dissenting.

[1] John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

[2] The plaintiffs pleadings named as defendant Covenant Health System d/b/a Covenant Medical Center and d/b/a Covenant Heart & Vascular Institute and d/b/a Covenant Heart Institute and d/b/a Covenant Well Heart Services.

[3] See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West 2008).

[4] Based on argument at the hearing on Covenants motion, it appears the Barnetts pursuit of the case as one for ordinary negligence may have been influenced by the first opinion in Marks v. St. Lukes Episcopal Hosp., which was subsequently withdrawn. No. 07-0783, 2009 Tex. Lexis 636, at *20 (Tex. Aug. 28, 2009) (negligence claim based on defectively assembled or maintained hospital bed was not health care liability claim).

[5] Later editions of Blacks do not include the term.

[6] The term screening is defined as [t]he examination of a group of usually asymptomatic individuals to detect those with a high probability of having or developing a given disease. The American Heritage Stedmans Medical Dictionary 745 (2002).

[7] So far as we are able to tell, the record does not explain what aspects of the heart screening required participants to fast.

[8] In his dissenting opinion, Chief Justice Jefferson cited, among other cases, cases under former article 4590i in which courts of appeals held that nothing in that statute modified the general rule that a party seeking attorneys fees must present evidence of attorneys fees. 319 S.W.3d at 646, citing, inter alia, Estrello v. Elboar, 965 S.W.2d. 754, 759 (Tex.App.--Fort Worth 1998, no pet.). See also Tibbetts v. Gagliardi, 2 S.W.3d 659, 665 (Tex.App.--Houston [14th Dist.] 1999, pet. denied) (holding trial court erred in awarding attorneys fees to physicians in absence of any evidence of attorneys fees).