Ronald J. Holleman v. Dr. Joseph Vadas, M.D., et al.--Appeal from 218th Judicial District Court of Karnes County

MEMORANDUM OPINION
No. 04-05-00875-CV
Ronald J. HOLLEMAN,
Appellant
v.

Dr. Joseph VADAS, M.D., D.A. Ruby, N.P.-P.A., UTMB CMHC,

TDCJ, Josephine Sessions, M.D., Debra Gloor, UHA

Appellees
From the 218th Judicial District Court, Karnes County, Texas
Trial Court No. 03-02-00028-CVK
Honorable Stella H. Saxon, Judge Presiding (1)

Opinion by: Rebecca Simmons, Justice

 

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: April 11, 2007

 

AFFIRMED While incarcerated in the Institutional Division of the Texas Department of Criminal Justice ("TDCJ"), Appellant Ronald J. Holleman was treated for an ongoing medical condition. Holleman alleges his condition worsened due to Appellees' failure to provide the prescribed treatment. Holleman asserts actions for negligence, malpractice, and Deceptive Trade Practices-Consumer Protection Act violations. Pursuant to a motion to dismiss, the trial court dismissed all claims and parties.

Background

As part of Appellant Ronald J. Holleman's treatment during his incarceration at the Connally Unit, Dr. Joseph Vadas, the unit's treating physician, prescribed an egg crate mattress, daily showers, and medicine. D.A. Ruby, a nurse practitioner at the unit, refused to provide the mattress, allow for the extra showers, or administer the prescribed medication, due to the Unit's new policies and security concerns. Holleman alleges this inaction resulted in his skin condition worsening. Holleman also asserts that Debra Gloor, the health care unit administrator, was negligent in her administrative oversight of the Unit's health care staff.

Holleman filed suit against Vadas, Ruby, Gloor, TDCJ, and the University of Texas Medical Branch - Correctional Managed Health Care ("UTMB"), alleging intentional misrepresentations, intentional mistreatment, negligence, and malpractice. On June 25, 2004, the trial court denied Holleman's motion for default judgment against Vadas, and on July 8, 2005, the trial court dismissed Holleman's suit against Ruby and Gloor. Almost four months later, on November 14, 2005, the trial court granted TDCJ and UTMB's plea to the jurisdiction and entered a final order dismissing all the claims and parties. Holleman brings four issues on appeal.

Jurisdiction Holleman argues the final order is void because the trial court did not have jurisdiction to hear his case at the Connally Unit because it is not the county seat where the action is pending. Tex. Const. art. V 7. Whether a court has subject matter jurisdiction is a question of law that we review de novo. Texas Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

The Texas Constitution dictates that court proceedings must occur "at the county seat of the county in which the case is pending, except as otherwise provided at law." Tex. Const. art. V 7 (emphasis added). In 2001, the Texas Legislature amended the Government Code to allow a district judge to "hear a nonjury matter relating to a civil or criminal case at a correctional facility in the county in which the case is filed or prosecuted if a party to the case or the criminal defendant is confined in the correctional facility." Tex. Gov't. Code 24.012(e) (Vernon 2006). (2) This statute conferred jurisdiction on the trial court to hear Holleman's civil claim in a correctional facility. Therefore, we overrule Holleman's first appellate issue.

Texas Tort Claims Act

Generally, governmental immunity defeats a trial court's subject matter jurisdiction over a cause of action. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999) (per curiam). It is the plaintiff's burden to demonstrate the court's jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). We look at the "facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties." Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001).

The Texas Tort Claims Act ("TTCA") provides a limited waiver of governmental immunity under certain circumstances. Tex. Civ. Prac. & Rem. Code Ann. 101.021 (Vernon 2005). "A governmental unit in the state is liable for . . . . personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code Ann. 101.021(2) (Vernon 2005).

TDCJ and UTMB filed a plea to the jurisdiction, asserting Holleman's cause of action did not demonstrate a clear waiver of immunity. (3) Holleman argues the wrongful administration or failure to administer medication or treatment waived TDCJ and UTMB's immunity under the TTCA. The TTCA requires that property be "used" for the waiver to apply; mere non-use of property cannot support a claim under the TTCA. Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996). Failing to provide medication or proper treatment is not considered a "use" of tangible personal property within the TTCA. Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587-88 (Tex. 2001); Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994) (failure to provide medication only states a claim for non-use of property that does not trigger waiver). Because Holleman's claims are not based upon the use of tangible, personal property, they do not fall within the TTCA's waiver of immunity. We therefore conclude the trial court did not err in granting TDCJ and UTMB's plea to the jurisdiction.DTPA and Medical Liability and Insurance Improvement Act Claim

Holleman asserted a cause of action against D.A. Ruby, the nurse practitioner, and Debra Gloor, the Unit health care supervisor, for violating the Deceptive Trade Practices-Consumer Protection Act ("DTPA") through intentional misrepresentations. Tex. Bus. & Com. Code Ann. 17.41 (Vernon 2005). Holleman complains the trial court abused its discretion by recharacterizing his DTPA suit as a Medical Liability and Insurance Improvement Act ("MLIIA"), and allowing dismissal of his claims against Ruby and Gloor for his failure to file an expert medical report. Act of May 30, 1977, 65th Leg., R.S., ch. 817 1, sec. 13.01, 1977 Tex. Gen. Laws 2039, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, 10.09, 2003 Tex. Gen. Laws 847, 884. Additionally, Holleman claims the trial court violated his right to open courts by requiring the expert medical report.

A. Standard of review

We review the trial court's decision to dismiss a medical negligence action for failure to file an expert report as required by the MLIIA under an abuse of discretion standard. Castellano v. Garza, 110 S.W.3d 70, 72-73 (Tex. App.--San Antonio 2003, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Id. at 73.

B. Analysis

An appellate court looks to the underlying nature of the claim to determine whether the trial court erred in characterizing a claim under the MLIIA. Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994). The MLIIA defines a health care liability claim as one "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 which proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract." Act of May 30, 1977, 65th Leg., R.S., ch. 817 1, sec. 1.03(a)(4) 1977 Tex. Gen. Laws 2039 (repealed 2003). The MLIIA further specifies that no provisions of the DTPA "shall apply to physicians or health care providers as defined . . . with respect to claims . . . resulting, or alleged to have resulted, from negligence on the part of any physician or health care provider." Id. at sec. 12.01(a).

Holleman argues Ruby's statements to him were "false, misleading [and] deceptive," thus falling within the DTPA and not the MLIIA. (4) But, merely alleging that a defendant made knowing misrepresentations "is not determinative when analyzing the underlying nature of a claim." See Smalling v. Gardner, 203 S.W.3d 354, 366 (Tex. App.--Houston [14th Dist.] 2005, pet. denied). In determining whether the claim falls under the MLIIA, we do not focus on the mental state of the health care provider. Gomez v. Matey, 55 S.W.3d 732, 735 (Tex. App.--Corpus Christi 2001, no pet.). "Rather, the type of proof is to be looked to; whether the plaintiff must prove a breach of the applicable standard of medical care." Id. (citing MacGregor Med. Ass'n v. Campbell, 985 S.W.2d 38, 41 (Tex. 1998) (per curiam)).

In other words, if Holleman's claim depends on medical expertise to demonstrate Ruby's actions deviated from the accepted standard of medical care, it falls within the MLIIA. Intentional misrepresentations regarding treatment fall under the MLIIA. See Savage v. Psychiatric Institute of Bedford, Inc., 965 S.W.2d 745, 752-53 (Tex. App.--Fort Worth 1998, pet. denied). In Savage, the plaintiff claimed the defendants "knew that their 'treatment' . . . was not medically necessary or justified and knew the 'treatment' provided was not in [the plaintiff's] best interests, yet nonetheless misrepresented to Plaintiff and others that the treatment was medically necessary." Id. As in this case, Holleman alleges Ruby knowingly misrepresented facts relating to his treatment. Holleman "cannot use artful pleading to avoid the MLIIA's requirements when the essence of the suit is a health care liability claim." Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005) (citing Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004)). Holleman's claims against Ruby arise out of the health care liability claim or failure to follow a doctor's order, and he was, therefore, required to comply with the expert requirement report.

Holleman alleges Gloor was negligent in her supervisory duties by refusing "to intervene through the position and authority she possesses as Unit Health Administrator." Holleman argues no expert report was required for his claim against Gloor, as it did not fall under the MLIIA. We disagree. Holleman's complaint against Gloor is an inseparable part of the rendition of medical services. See Diversicare, 185 S.W.3d at 854 (Tex. 2005). In Diversicare, a nursing home resident asserted a claim against the nursing home for failing to supervise its patients. The nursing home defendant argued the claim did not fall within the MLIIA's definition of health care services. Noting that the Legislature broadly defined "health care liability claim," the Texas Supreme Court concluded the claim at issue was "over the appropriate standard of care owed . . . what services, supervision, and monitoring were necessary to satisfy the standard; and whether such specialized standards were breached. Diversicare's training and staffing policies and supervision and protection" of the residents are integral components of the nursing home's health care services. Id. at 850, 855. Similarly, Gloor's supervision of her staff is an integral component of the Unit's health care services. We conclude the trial court did not abuse its discretion in evaluating Holleman's claim under the MLIIA. We overrule this appellate point.

C. Dismissal

Because his claims against Ruby and Gloor fall under the MLIIA, Holleman was required to file an expert report, cost bond, cash deposit, or an affidavit of inability to pay costs in lieu of security for costs. Medical Liability and Insurance Improvement Act, 65th Leg., R.S., ch. 817 1, 1977 Tex. Gen. Laws 2039 (repealed 2003). Contrary to Holleman's assertions, the expert report requirement does not violate his right to open courts. Gill v. Russo, 39 S.W.3d 717, 718-19 (Tex. App.--Houston [1st Dist.] 2001, pet. denied) (holding constitutional the expert report requirement as applied to inmate who could not afford an expert). Holleman did not provide a report or proper substitute; instead, he asked the trial court either to waive the requirement or appoint him an expert. The court was not required to do either. Medical Liability and Insurance Improvement Act, 65th Leg., R.S., ch. 817 1, 1977 Tex. Gen. Laws 2039 (repealed 2003). Accordingly, the trial court's dismissal with prejudice was appropriate in light of Holleman's failure to comply with the MLIIA. See Thomas v. Ben Taub Gen. Hosp., 63 S.W.3d 908, 911 (Tex. App.--Houston [14th Dist.] 2002, no pet.); Medical Liability and Insurance Improvement Act, 65th Leg., R.S., ch. 817 1, 1977 Tex. Gen. Laws 2039 (repealed 2003) (if the claimant fails to file the expert report or proper substitute, the court shall grant the motion to dismiss with prejudice). Holleman failed to show the trial court abused its discretion in dismissing his MLIIA claims.

The "Law of the Case"

In his final issue on appeal, Holleman charges the trial court violated his right to due process and equal protection by not following the "law of the case" and granting Vadas' motion for default judgment. "The 'law of the case' doctrine is defined as that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages." Lifshutz v. Lifshutz, 199 S.W.3d 9, 20 (Tex. App.--San Antonio 2006, pet. denied) (citing Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)). This doctrine only applies to questions of law, not to questions of fact. Id. "When [an appellate court] remands a case and limits a subsequent trial to a particular issue, the trial court is restricted to a determination of that particular issue." Id. (citing Hudson, 711 S.W.2d at 630). "Thus, in a subsequent appeal, instructions given to a trial court in the former appeal will be adhered to and enforced." Id.

In this case, the only question of law decided by a court of last resort was whether the trial court failed to timely rule on appellant's motion for default judgment. After two writs of mandamus, the trial court finally ruled on, and denied, the motion. Holleman reasons the conditional issuance of the mandamus is proof of his case against Vadas. The fact that mandamus was conditionally issued is not a judicial finding with regard to Holleman's right to default judgment against Vadas. See Siemens AG v. Houston Cas. Co., 127 S.W.3d 436, 442 (Tex. App.--Dallas 2004, pet. dism'd) (rejecting assertion that prior mandamus stating defendant "failed to show itself entitled to the relief requested" was the law of the case with respect to general jurisdiction). Because there is no "law of the case" issue as described by Holleman, this appellate point is overruled. Conclusion

The trial court had jurisdiction to hold proceedings at the Connally Unit in Kenedy, Texas. Furthermore, because Holleman failed to prove a waiver of governmental immunity by any of the parties, the trial court did not err in denying Holleman's TTCA claims. Finally, the trial court did not abuse its discretion in dismissing Holleman's MLIIA claims for failing to file an expert medical report. We therefore affirm the judgment of the trial court.

 

Rebecca Simmons, Justice

 

1. The Honorable Stella Saxon presided over the dismissal of Appellant Vadas and the Honorable Ron Carr presided over the remainder of the claims and parties.

2. The Connally Unit is in Karnes County, where the case is pending.

3. Holleman first argues appellees waived their sovereign immunity by accepting federal monies. Sovereign immunity under the Eleventh Amendment refers to immunity from federal claims. See Alden v. Maine, 527 U.S. 706, 754 (1999); Sherwinski v. Peterson, 98 F.3d 849 (5th Cir. 1996). Because Holleman has only asserted state claims against TDCJ and UTMB, we need not discuss whether appellees waived their federal immunity.

4. If Holleman's claims fall under the DTPA, no expert report is required.