Texas Laurel Ridge Hospital, L.P. D/B/A Laurel Ridge Treatment Center v. Dora Almazan , 2012 Tex. App. LEXIS 5303 ( 2012 )

OPINION
No. 04-11-00545-CV
TEXAS LAUREL RIDGE HOSPITAL, L.P. d/b/a Laurel Ridge Treatment Center,
Appellant
v.
Dora ALMAZAN,
Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2009-CI-10029
Honorable John D. Gabriel, Jr., Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: July 5, 2012
REVERSED AND REMANDED
The issue in this accelerated appeal is whether Dora Almazan’s cause of action against
Texas Laurel Ridge Hospital, L.P. d/b/a Laurel Ridge Treatment Center (“Laurel Ridge”) is a
health care liability claim subject to the expert report requirement in section 74.351 of the Texas
Civil Practice and Remedies Code. We hold the cause is a health care liability claim, and
because the trial court found Almazan’s expert report was fatally deficient after giving her an
opportunity to cure, the court erred in denying Laurel Ridge’s motion to dismiss.
04-11-00545-CV
BACKGROUND
Almazan sued Dr. Gundlapalli Surya and Laurel Ridge, alleging that when Almazan went
to Laurel Ridge in June 2007 for voluntary outpatient therapeutic counseling services, the staff
“closed the door behind her and did not permit her to leave.” Almazan alleged she was
diagnosed with mood disorder, depression, and having suicidal thoughts and plans, without
having been interviewed by her treating physician, Dr. Surya, and without anyone consulting her
family. She contended the admission staff prepared documents “with numerous fabrications,
alleging she was suicidal and dangerous to herself, purportedly requiring inpatient mental health
treatment.” According to Almazan, she was confined to a locked ward and refused food until she
signed a voluntary admission form. Almazan asserted she was not suicidal, and that the Laurel
Ridge staff and Dr. Surya repeatedly refused to reevaluate her. She alleged she was drugged
without her consent and that she was “given drugs against her will that rendered her comatose.”
According to Almazan, she was summarily discharged without a professionally developed
continuity of care treatment plan when the insurance company refused to pay for further inpatient
care. In addition, Almazan alleged that Laurel Ridge took blood samples from her that revealed
“extremely high concentration of lymphocytes, a clear indication of Leukemia,” and that she was
not told of these results. She contends she was not diagnosed with leukemia until a year later,
when she was hospitalized because of excessive bleeding. Almazan alleged that Laurel Ridge
and its medical and nursing staff, including Dr. Surya, “failed to satisfy the operative standards
of care for such professionals” and violated her “patient rights.”
Almazan sued Dr. Surya for medical negligence and “common law negligence.” She
sued Laurel Ridge for: (1) medical negligence; (2) “common law negligence;” (3) fraud; (4)
violations of the Texas Deceptive Trade Practices Act; (5) negligence per se, based on alleged
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violations of the Texas Mental Health Code, the Texas Health & Safety Code, and the Texas
Nurse Practices Act; and (6) violation of the “patient’s bill of rights” promulgated under to
section 321.002 of the Health and Safety Code.
Almazan attached to her petition the expert report of George S. Glass, M.D. “in
compliance with Texas Civil Practice and Remedies Code § 74.351.” The defendants objected to
Dr. Glass’s qualifications and to the sufficiency of his report. The trial court sustained the
objections and gave Almazan thirty days to cure the deficiencies. After Almazan served an
addendum to Dr. Glass’s report, the defendants filed further objections and motions to dismiss
pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code. Following a
hearing, the trial court issued an order finding the report “so deficient as to the statutory
requirements of § 74.351 that it constitutes no report at all.” The court dismissed with prejudice
all “causes of action pertaining to and involving medical malpractice claims,” and awarded
defendants costs and attorney’s fees. The court subsequently expressly denied Laurel Ridge’s
motion to dismiss the claim brought under chapter 321 of the Texas Health and Safety Code,
ruling the claim was not a health care liability claim subject to the expert report requirement of
section 74.351 of the Civil Practice and Remedies Code. All other claims against Laurel Ridge
and all Almazan’s claims against Dr. Surya were dismissed. 1
Laurel Ridge filed this interlocutory appeal, arguing the trial court abused its discretion in
denying the motion to dismiss because the court erroneously concluded Almazan’s Chapter 321
claim was not a health care liability claim. Almazan responds that a cause of action filed
pursuant to chapter 321 of the Texas Health and Safety Code is not a “health care liability claim”
and is not subject to the requirements of Chapter 74 of the Civil Practice and Remedies Code. In
1
The trial court later severed Almazan’s claims against Dr. Surya, and the judgment of dismissal in his favor has
since become final.
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addition, Almazan argues that the limitation on discovery in section 74.35(s) of the Civil Practice
and Remedies Code violates the separation of powers clause of the Texas Constitution. We
conclude that because all Almazan’s claims against Laurel Ridge were based on the same
underlying facts, they must be dismissed because Almazan did not file a timely, sufficient expert
report. See Yamada v. Friend, 335 S.W.3d 192, 193-94 (Tex. 2010) (“When the underling facts
are encompassed by provisions of [Chapter 74] in regard to a defendant, then all claims against
that defendant based on those facts must be brought as health care liability claims.”). The
constitutional issue raised in Almazan’s appellee’s brief was not presented to or ruled on by the
trial court. Nor does the question bear on the resolution of the issue Laurel Ridge presents on
appeal. Accordingly, we do not address that issue.
STANDARD OF REVIEW
We generally review a trial court’s ruling on a motion to dismiss a claim pursuant to
section 74.351 for abuse of discretion. See Am. Transitional Care Ctrs. Of Tex., Inc. v. Palacios,
46 S.W.3d 873, 875 (Tex. 2001). However, when resolution of the issue requires the
interpretation of a statute, we apply a de novo standard. Buchanan v. O’Donnell, 340 S.W.3d
805, 810 (Tex. App.—San Antonio 2011, no pet.).
APPLICABLE LAW AND CONTEXT
Chapter 74 Texas Civil Practice and Remedies Code
Section 74.351(a) of the Civil Practice and Remedies Code requires a claimant in a health
care liability claim, not later than the 120th day after the petition was filed, to serve on all parties
one or more expert reports for each physician or health care provider against whom a liability
claim is asserted. TEX. CIV. PRAC. & REM. CODE ANN. § 74.3511(a) (West 2011). The report
must “provide[] a fair summary of the expert’s opinions as of the date of the report regarding
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applicable standards of care, the manner in which the care rendered by the physician or health
care provider failed to meet the standards, and the causal relationship between that failure and
the injury, harm, or damages claimed.” Id. §74.351(r)(6). On timely objection that the report is
insufficient, the trial court may grant one 30-day extension of time to cure the deficiency. Id.
§ 74.351(a),(c). If the trial court concludes the report does not represent an objective good faith
effort to comply with the report requirement, the court must grant a motion to dismiss the claim.
Id. § 74.351(b),(l).
Chapter 74 of the Civil Practice and Remedies Code is a recodification of former article
4590i of the Texas Revised Civil Statutes. Article 4590i, enacted in 1977, represented the Texas
Legislature’s efforts to modify the liability laws relating to health care claims in order to address
a “crisis [that] has had a material adverse effect on the delivery of medical and health care in
Texas.” Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02(6), 1977 Gen. Laws 2039, 2040
(former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1.02(6)), repealed by Act of June 2, 2003, 78th
Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. In article 4590i and subsequent
amendments to the statute, “[t]he Legislature instituted heightened requirements for filing and
maintaining lawsuits that assert professional liability claims against health care providers,
shortened the statute of limitations and restricted tolling for such claims, and capped certain
types of damages recoverable from these lawsuits.” Diversicare Gen. Partner, Inc. v. Rubio, 185
S.W.3d 842, 846-47 (Tex. 2005).
In 1995, the Legislature amended article 4590i to add a requirement that an expert report
be served on each physician or health care provider sued within 180 days after a health care
liability claim was filed. Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws
985, 986 (former art. 4590i, § 13.01(d)(repealed 2003)). Failure to comply with the expert
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requirement could result in dismissal of the suit. Id. 1995 Tex. Gen. Laws at 986 (former art.
4590i, § 13.01(e) (repealed 2003)). The new expert report requirement in article 4590i also
included a conflict of laws provision, which stated, “In the event of a conflict between this
section and another law, including a rule of procedure or court rule, this section controls to the
extent of the conflict.” Id. 1995 Tex. Gen. Laws at 987 (former art. 4590i, § 13.01(p)) (repealed
2003).
In 2003, the Legislature amended parts of article 4590i, repealed it, and recodified it as
chapter 74 of the Texas Civil Practice and Remedies Code. Act of June 2, 2003, 78th Leg., R.S.,
ch. 204, §§ 10.01, 10.09, 2003 Tex. Gen. Laws 847 (amended 2005, 2007, 2011) (current version
at TEX. CIV. PRAC. & REM. CODE ANN. § 74.001 et seq.(West 2011)). In so doing, the
Legislature found that the number of health care liability claims and the amounts being paid in
judgments and settlements had “increased inordinately” since 1995 and “created a medical
malpractice insurance crisis in Texas” that “has had a material adverse effect on the delivery of
medical and health care in Texas.” Id. § 10.11(a). Chapter 74 applies to all “health care liability
claims,” and section 74.002(a) provides that “[i]n the event of a conflict between this chapter and
another law, including a rule of procedure or evidence or court rule, this chapter controls to the
extent of the conflict.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.002(a) (West 2011). The newly
codified law maintained the expert report requirement, but reduced the time for serving the
report. See id. § 74.351.
Chapter 321 Texas Health and Safety Code
Chapter 321 of the Texas Health and Safety Code was enacted in 1993 as part of a
comprehensive legislative response to abuses in private psychiatric and substance abuse facilities
in Texas. See Act of May 25, 1993, 73rd Leg., R.S., ch. 705, § 1.01, 1993 Tex. Gen. Laws 2743,
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2743 (current version at TEX. HEALTH & SAFETY CODE § 321.001 et seq. (West 2010)); Gregg
Timmons, Crisis In the Mental Health Care Industry: An Analysis of the Practices of Private,
For-Profit Psychiatric Hospitals and the Governmental Response, 31 HOUSTON L.R. 323, 343-
350 (1994). In 1991, widespread media coverage of a case involving a teenager taken from his
family over their objections and committed to a private psychiatric institution led to the
formation of a Senate subcommittee. See House Public Health Comm., Bill Analysis, Tex. SB
205, 101-102, 73rd Leg., R.S. (May 20, 1993); Timmons, 31 HOUSTON L.R. at 343-44. The
subcommittee conducted hearings around the state and made proposals that formed the basis for
a number of legislative initiatives in 1993, including the enactment of chapter 321 of the Health
and Safety Code. Timmons, 31 HOUSTON L.R. at 344.
In the newly enacted Chapter 321, the Legislature directed the Texas Board of Mental
Health and Mental Retardation, Texas Board of Health, and Texas Commission on Alcohol and
Drug Abuse to each adopt a “patient’s bill of rights” addressing the basic rights of patients
receiving mental health and chemical dependency services in an inpatient facility. TEX. HEALTH
& SAFETY CODE ANN. § 321.002(a) (West 2010); Bill Analysis SB 205, at 102-103; Timmons,
31 HOUSTON L.R. at 344-46. The Legislature gave enforcement authority to agencies and the
Attorney General and provided penalties for facilities that engaged in illegal or abusive practices.
See Timmons, 31 Houston L.R. at 346. In addition, the Legislature authorized a private cause of
action in favor of a person harmed by a mental health facility’s violation of the patient’s bill of
rights. TEX. HEALTH & SAFETY CODE ANN. § 321.003(a), (b) (West 2010). A person so harmed
may sue the facility for injunctive relief, damages, or both. Id. Chapter 321 authorizes an award
of mental anguish damages, even in the absence of other injury, and awards of exemplary
damages and attorney’s fees to prevailing plaintiffs. Id. § 321.003(c), (d). The only procedural
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provisions regarding such suits found in Chapter 321 are venue and statute of limitations
provisions. See id. § 321.003(e), (f).
Neither Chapter 321 of the Health and Safety Code nor Chapter 74 of the Civil Practice
and Remedies Code refers explicitly to the other statute.
DISCUSSION
Is Almazan’s Chapter 321 claim a “health care liability claim”?
Chapter 74 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 2011). A health care liability claim
thus “consists of three elements. First, a physician or a health care provider must be the
defendant. Second, the suit must be about the patient’s treatment, lack of treatment, or some
other departure from accepted standards of medical care or health care or safety. And, third, the
defendant’s act, omission, or other departure must proximately cause the patient’s injury or
death.” Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 662 (Tex. 2010). A private
mental hospital such as Laurel Ridge is a “health care provider” within the meaning of Chapter
74. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(11), (12)(A), & (14).
To determine whether the second element is met, we examine the nature of the
underlying claim and are not bound by the form of the pleading or the plaintiff’s characterization
of her claims. See Marks, 319 S.W.3d at 664; Diversicare, 185 S.W.3d at 847; Buchanan, 340
S.W.3d at 811. If the alleged acts or omissions are an inseparable or integral part of the rendition
of medical services or health care, then the claim is a health care liability claim. Marks, 319
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S.W.3d at 664; Diversicare, 185 S.W.3d at 848-49; Buchanan, 340 S.W.3d at 810. Chapter 74
defines “health care” as “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
patient’s medical care, treatment, or confinement.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.001(a)(10). Another consideration in determining whether a cause of action is a health care
liability claim is whether proving the claim would require specialized knowledge of a medical
expert. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004).
Almazan’s petition alleged a laundry list of conduct she contended constituted
negligence, medical negligence, and negligence per se 2, including failing to provide mental
health services in the least restrictive environment, involuntarily committing her, coercing her
into submitting to hospitalization and treatment, failing to conduct a proper mental health
evaluation, medicating her excessively and against her will, failing to provide a safe
environment, failing to treat or refer her for proper treatment relating to her abnormal lab results,
and failing to establish a discharge plan.
In the section of her petition that alleged a private cause of action under chapter 321 of
the Health and Safety Code, Almazan referred to the “various statutory and regulatory
violations” already pleaded, and alleged:
50. Defendant Laurel Ridge Hospital, owed Plaintiff the duty to provide proper
mental health care commensurate with the licensing laws and rules promulgated
thereunder, and relative to her mental health condition, and in the exercise of that
duty the Defendant Laurel Ridge was required to provide such reasonable care as
Almazan’s condition which was known, or should have been known, and
required, as stated in such state licensing laws and rules promulgated thereunder.
This includes, but is not limited to, the duty to guard against the foreseeable
2
Almazan’s negligence per se claims were based on allegations Laurel Ridge violated the Texas Mental Health
Code, the Texas Health and Safety Code, the Nurse Practices Act, and regulations regarding patients’ rights,
hospital licensing, consent to treatment with psychoactive medication, and patient abuse and neglect in private
psychiatric hospitals.
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consequences of the patient’s injury, medical condition, lab work or treatments
that brought her to the facility in the first instance.
51. The Defendant Laurel Ridge Hospital, by and through its agents, contractors
and employees, violated these statutory and regulatory duties owing to the
Plaintiff and was liable to her, as has been more fully described herein.
52. Each and every act of negligence per se, as listed above, was a proximate
cause of Plaintiff’s damages.
The essence of Almazan’s Chapter 321 cause of action is that Laurel Ridge departed from the
applicable standards of medical and health care, those standards being the patient bill of rights
and the rules and regulations promulgated pursuant to section 321.002(a) of the Health and
Safety Code. The alleged wrongful acts and omissions were inseparable from Laurel Ridge’s
rendition of mental health care services to Almazan. Almazan concedes the facts upon which
she bases her Chapter 321 cause of action are the same as those underlying her medical
malpractice and negligence per se claims, and that in order to prevail on the claims she would be
required to provide expert testimony. Almazan also does not dispute the third element — that
the injuries she alleges were proximately caused by the claimed departures from the applicable
standards of medical and health care.
Almazan contends a “health care liability claim” has an additional element: the cause of
action alleged must “sound in tort or contract.” See TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.001(a)(13). She argues her Chapter 321 cause of action does not sound in tort, but rather
“sound[s] in a constitutional deprivation, further supported by the statutory and regulatory
standards found in the mental health code, and the regulations promulgated thereunder.” We
disagree. A “tort” is “[a] civil wrong, other than breach of contract, for which a remedy may be
obtained, usually in the form of damages; a breach of a duty that the law imposes on persons
who stand in a particular relation to one another.” BLACK’S LAW DICTIONARY 1526 (8th ed.
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2004). Almazan’s claim that she suffered personal injury as a result of a mental health
provider’s breach of its duties to her clearly alleges a tort. That the duty is imposed by statute or
the remedy is authorized by statute does not mean the alleged wrong is not a tort. See JCW
Electronics, Inc. v. Garza, 257 S.W.3d 701, 702 (Tex. 2008) (holding that party seeking damages
for death or personal injury pursuant to a claim for breach of an implied warranty under article 2
of the Uniform Commercial Code is seeking damages in tort and therefore is subject to the
proportionate responsibility scheme in chapter 33 of the Civil Practice and Remedies Code.). In
her petition, Almazan herself characterized the Chapter 321 claim as a claim of “negligence per
se.” Moreover, the broad definition of “health care liability claim” in Chapter 74 evidences an
intent by the Legislature to broadly include all causes of action for injury or death caused by a
departure from the applicable standards of medical or health care.
We conclude the cause of action Almazan alleged under Chapter 321 falls squarely
within Chapter 74’s definition of health care liability claim. See Broxterman v. Carson, 309
S.W.3d 154, 158 (Tex. App.—Dallas 2010, pet. denied) (plaintiff’s claims of fraud, intentional
infliction of emotional distress, violations of Texas Health and Safety Code, assault, battery, and
civil rights violations, including claims of involuntary medication, all arose from the rendition of
mental health care services and were health care liability claims requiring expert report); Tex.
Cypress Creek Hosp., L.P. v. Hickman, 329 S.W.3d 209, 217 (Tex. App.—Houston [14th Dist.]
2010, pet. denied) (plaintiff’s cause of action under chapter 321 of the Texas Health and Safety
Code, alleging medication errors, unsafe conditions, and inadequate staff supervision by mental
health facility was health care liability claim); Groomes v. USH of Timerlawn, Inc., 170 S.W.3d
802, 806-07 (Tex. App.—Dallas 2005, no pet.) (various causes of action of parent and her minor
son arising out of hospital’s failure to discharge child on parent’s request and administration of
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medication without consent, were all health care liability claims because they were integrally
related to the provision of mental health care services); Parker v. CCS/Meadow Pines, Inc., 166
S.W.3d 509, 513 (Tex. App.—Texarkana 1995, no pet.) (claims that private mental hospital
improperly restrained patient, had insufficient and improperly trained staff, violated patient’s
rights as set out in Patient’s Bill of rights, and failed to properly treat his injuries, all required
reference to standards by which mental health institutions restrain and otherwise care for patients
and are all health care liability claims requiring expert report).
Having concluded that Almazan’s Chapter 321 cause of action against Laurel Ridge is a
health care liability claim, we turn to Almazan’s arguments that the expert report requirement in
Chapter 74 of the Civil Practice and Remedies Code does not apply to the claim.
Do Chapter 321 claims proceed independently of Chapter 74?
Almazan contends that a cause of action filed pursuant to Chapter 321 is a “civil rights
claim” that “stands separate and apart from any health care liability claim.” She argues that even
if a cause of action asserted under Chapter 321 technically comes within the definition of a
health care liability claim, Chapter 321 claims are outside the ambit of Chapter 74 and are not
subject to its requirements.
The only direct authority Almazan cites for the proposition that a Chapter 321 claim for
violation of the patient bill of rights may proceed independently of Chapter 74 is this court’s
2002 opinion in Zuniga v. Healthcare San Antonio, Inc., 94 S.W.3d 778 (Tex. App.—San
Antonio 2002, no pet.). Zuniga was an involuntary in-patient at Laurel Ridge who was sexually
assaulted by another patient. She sued, alleging causes of action for medical negligence,
common law negligence, and breach of the patient bill of rights under Chapter 321. This court
held that Zuniga’s common law negligence and premises liability claims were not based on the
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rendition of medical treatment and did not implicate a breach of an accepted standard of safety,
and therefore were not health care liability claims. Id. at 783. Having found Zuniga’s claims
were not health care liability claims, we also concluded that Zuniga’s Chapter 321 claims could
proceed because Chapter 321 does not contain an expert report requirement and does not
expressly require compliance with article 4590i (the predecessor to Chapter 74). Id.
Three years later, the Texas Supreme Court in Diversicare held that when the underlying
nature of the claim alleged is one for breach of the standard of care for a health care provider, the
claim is a health care liability claim, without regard to the form of the pleading. 185 S.W.3d at
847-49. The court expressly disapproved of several appellate court decisions, including Zuniga,
which had held that patient’s claims for assault based on allegations of inadequate monitoring,
supervision, and health care, were premises liability claims and not health care liability claims.
Id. at 853. The court rejected the argument that a plaintiff could allege a claim for premises
liability based on inadequate health care independently of a health care liability claim because
that “would open the door to splicing health care liability claims into a multitude of other causes
of action with standards of care, damages, and procedures contrary to the Legislature’s explicit
requirements.” Id. at 854. The Supreme Court has since held that “[w]hen the underlying facts
are encompassed by provisions of [Chapter 74] in regard to a defendant, then all claims against
that defendant based on those facts must be brought as health care liability claims. Application
of [Chapter 74] cannot be avoided by artfully pleading around it or splitting claims into both
health care liability claims and other types of claims.” Yamada, 335 S.W.3d at 193-94. In light
of these decisions, the Zuniga opinion is no longer authoritative support for appellant’s position.
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Almazan next asserts that people with mental illness are entitled to some constitutional
protections not afforded persons receiving general medical care. 3 She argues that because the
patient bill of rights in Chapter 321 addresses some of these constitutional issues “Chapter 74
must fall to the wayside” in the face of a cause of action brought under Chapter 321. She
contends that the differences in the remedies authorized by Chapter 321 evidences legislative
intent that it control over Chapter 74. However, Almazan does not point to any language in
Chapter 321 that supports her argument about the legislative intent. See Molinet v. Kimbrell, 356
S.W.3d 407, 414 (Tex. 2011) (“the Legislature expresses its intent by the words it enacts and
declares to be the law”). Moreover, although Almazan repeatedly asserts in her brief that her
claim is a “civil rights claim” for “constitutional deprivation,” this case does not involve any
claimed constitutional violations — Almazan has not alleged any state action, nor has she
expressly alleged that Laurel Ridge, a private entity that did not invoke civil commitment
procedures, has violated her constitutional rights. Finally, Almazan’s argument that the
constitutional underpinnings of Chapter 321 precludes claims brought under that chapter from
being treated the same as other health care liability claims was expressly rejected by our sister
court in Texas Cypress Creek Hospital, L.P. v. Hickman, 329 S.W.3d 209, 216 (Tex. App.—
Houston [14th Dist.] 2010, pet. denied). Likewise, the El Paso court of appeals held a cause of
action for sexual exploitation by a mental health services provider brought under chapter 81 of
the Civil Practice and Remedies Code was a health care liability claim subject to the
requirements of Chapter 74. NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 35-36 (Tex.
3
See, e.g., TEX. CONST. art. I, § 15-a (providing that “[n]o person shall be committed as a person of unsound mind
except on competent medical or psychiatric testimony” and that Legislature may provide procedures for waiver of
trial by jury in civil commitment proceedings); O’Connor v. Donaldson, 422 U.S. 563, (1975)(holding State’s
involuntary civil commitment of individual who is not danger to himself or others unconstitutionally violates liberty
interest); Wyatt v. Aderholt, 503 F.2d 1305, 1313-14 (5th Cir. 1974)(holding “the provision of treatment to those the
state has involuntarily confined in mental hospitals is necessary to make the state’s actions in confining and
continuing to confine those individuals constitutional”).
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App.—El Paso 2006, no pet.). Chapter 81 was enacted in 1993, by the same Legislature that
enacted Chapter 321 of the Health and Safety Code, and creates a private cause of action for
sexual exploitation by a mental health service provider. Act of May 29, 1993, 73rd Leg., R.S.,
ch. 573, § 2.01, 1993 Tex. Gen. Laws 2155, 2159 (amended 1997, 1999, 2001, 2011) (current
version at TEX. CIV. PRAC. & REM CODE § 81.001 et seq. (West 2011)). Like Chapter 321,
Chapter 81 authorizes an award of uncapped actual damages, exemplary damages, and attorney’s
fees. TEX. CIV. PRAC. & REM. CODE ANN. § 81.004 (West 2011). When a claim for sexual
exploitation under Chapter 81 otherwise meets the definition of a health care liability claim, it
must be dismissed if the expert report required by section 74.351 is not filed. NCED, 214
S.W.3d at 37.
Lastly, Almazan argues that to the extent there is a conflict between Chapter 74 and
Chapter 321, Chapter 321 prevails because it was enacted after the Legislature began to regulate
health care liability claims and is the more specific statute. Initially, we agree with Almazan
that, as relevant to this appeal, there is no conflict between the statutes. The only provisions of
Chapter 74 at issue in this appeal are the requirement in section 74.351 that an expert report be
filed and the mandate that the trial court dismiss a health care liability claim if a complying
report is not timely filed. Although Chapter 321 does not contain its own expert report
requirement, imposing the requirement on a Chapter 321 claim does not conflict with a provision
of that statute.
If, as Almazan sometimes asserts, applying the expert report requirement is
fundamentally inconsistent with Chapter 321, then we agree with Laurel Ridge that general
principles of statutory construction compel the conclusion that Chapter 74 prevails. The
requirement in former article 4590i, § 13.01(d) that an expert report be filed in all health care
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liability claims and the enactment of Chapter 74 both occurred after Chapter 321 was enacted.
See Act of May 25, 1993, 73rd Leg., R.S., ch. 705, § 1.01, 1993 Tex. Gen. Laws 2743, 2743
(current version at TEX. HEALTH & SAFETY CODE § 321.001 et seq. (West 2010)); Act of May 5,
1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986 (former art. 4590i,
§ 13.01(d),(e) (repealed 2003)); Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09,
2003 Tex. Gen. Laws 847 (amended 2005, 2007, 2011) (current version at TEX. CIV. PRAC. &
REM. CODE ANN. § 74.001 et seq.(West 2011)). In its 2003 recodification, the Legislature
expressly declared that Chapter 74 prevails to the extent of any conflict with another law. TEX.
CIV. PRAC. & REM. CODE ANN. § 74.002(a). By this “express, unambiguous conflicts-of-law
provision,” “the Legislature explicitly provided that this statute overrides any conflicting law or
rules of procedure.” Molinet, 356 S.W.3d at 414; In re Jorden, 249 S.W.3d 416, 420 (Tex.
2008); see TEX. GOV’T CODE ANN. § 311.026(b) (West 2005) (where there is conflict between
general provision and special or local provision, general provision prevails if it is the later
enactment and Legislature manifests intent that general provision prevail). We therefore reject
Almazan’s contention that a cause of action under Chapter 321 proceeds independently of
Chapter 74 when the claim asserted is a health care liability claim within the meaning of Chapter
74.
CONCLUSION
The trial court found Almazan’s expert report inadequate and gave her an opportunity to
cure the deficiencies. The court subsequently found the supplemental expert report so deficient
that it constituted no report at all, and dismissed all Almazan’s claims except her Chapter 321
cause of action. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b),(c) (West 2011). The
factual complaints underlying all of Almazan’s causes of action concern the same set of
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circumstances and are all health care liability claims. We therefore hold Almazan failed to file
an expert report as required by section 74.351, and the trial court should have dismissed all her
claims. See Yamada, 335 S.W.3d at 197-98; Hickman, 329 S.W.3d at 218.
We reverse the part of the trial court’s order that denied Laurel Ridge’s motion to dismiss
Almazan’s Chapter 321 cause of action. We remand the case to the trial court with instructions
to dismiss Almazan’s claims with prejudice and to consider Laurel Ridge’s request for attorney’s
fees and costs relative to the Chapter 321 cause of action.
Steven C. Hilbig, Justice
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