Jose Espinosa v. Baptist Health System d/b/a St. Luke's Baptist Hospital--Appeal from 131st Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00131-CV

Jose ESPINOSA,

Appellant

v.

BAPTIST HEALTH SYSTEM d/b/a St. Luke's Hospital ,

Appellee

From the 285th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CI-12297

Honorable Lori Massey , Judge Presiding (1)

Opinion by: Karen Angelini , Justice

Sitting: Sarah B. Duncan , Justice

Karen Angelini , Justice

Phylis J. Speedlin , Justice

Delivered and Filed: October 11, 2006

AFFIRMED

Jose Espinosa sued Baptist Health System d/b/a St. Luke's Baptist Hospital for injuries allegedly sustained while Espinosa was receiving post surgical medical care. Espinosa alleged that the "hospital bed trapeze-patient lift device" suddenly became detached as he was holding onto it, causing him to fall back on the bed. The trial court granted Baptist Health System's Motion to Dismiss With Prejudice for Espinosa's failure to produce an expert report pursuant to former article 4590i (2) of the Texas Revised Civil Statutes. Espinosa appeals. We affirm.

Discussion

Espinosa asserts on appeal that the mechanical failure of the trapeze bar, caused by the failure to properly install or maintain, "is a matter of negligence within the general experience and common sense of the finder of fact" rather than a health care claim; therefore, no expert medical report was required pursuant to article 4590i and the trial court wrongfully dismissed the case with prejudice. We disagree.

While a trial court's order to dismiss a health care liability claim is reviewed under an abuse of discretion standard, the determination of whether a claim falls within the purview of article 4590i necessarily requires an interpretation of the statute and is, therefore, reviewed under a de novo standard. Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App.--Houston [14th Dist.] 2004, no pet.);Ponce v. El Paso Healthcare Sys., Ltd., 55 S.W.3d 34, 36 (Tex. App.--El Paso 2001, pet. denied).

The Medical Liability and Insurance Improvement Act of Texas was enacted, in part, to "decrease the cost of [health care liability claims] and assure that awards are rationally related to actual damages." Act of May 26, 1989, 71st Leg., R.S., ch. 1027, 27, 1989 Tex. Gen. Laws 4128, 4145, amended by Act of May 5, 1995, 74th Leg., R.S., ch. 140, 2, 1995 Tex. Gen. Laws 985, 988 (former Tex. Rev. Civ. Stat. art. 4590i, 14.01(a)), amended by Act of May 13, 1999, 76th Leg., R.S., ch. 242, 1, 1999 Tex. Gen. Laws 1104, 1104-05, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, 10.09, 2003 Tex. Gen. Laws 847, 884. According to article 4590i, a "health care liability claim" is defined 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 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.

Id. (former Tex. Rev. Civ. Stat. Ann. art. 4590i, 1.03 (a)(4)). Further, "health care" is defined as "any act or treatment performed or furnished, or which 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." Id. at 1.03 (a)(3) (emphasis added).

To ascertain whether a claim falls within the purview of article 4590i, the underlying nature of the allegations should be examined. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004). 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 medical care, health care, or safety of the patient. Diversicare, 185 S.W.3d at 848; Drury v. Baptist Mem'l Hosp. Sys., 933 S.W.2d 668, 676 (Tex. App.--San Antonio 1996, writ denied). A cause of action alleges a departure from accepted standards of medical care or health care if the act or omission complained of is an inseparable part of the rendition of medical services. Diversicare, 185 S.W.3d at 848. A factor in considering whether a cause of action is an inseparable part of the rendition of medical or health care services is whether expert testimony from a medical or health care professional is necessary to prove a claim. Id.

In the present case, Espinosa's First Amended Original Petition (3) alleged the following:

The Defendant hospital violated the duty of care of Plaintiff to exercise the ordinary care and diligence exercised by other premises owners in the same or similar circumstances and was negligent in one or more of the following particulars:

a. The Defendant failed to inspect the subject overhead bed frame device prior to the Plaintiff's use;

b. The Defendant failed to supervise the proper assembly of the overhead bed frame device;

c. The Defendant failed to warn the Plaintiff of the danger posed by the defective overhead bed frame device and/or failed to correct the danger that it represented;

d. The Defendant allowed the Plaintiff to use defective overhead bed frame equipment;

e. The Defendant hired and retained in employment incompetent central supply personnel;

f. The Defendant failed to maintain and/or enforce existing policy in the proper assembly, maintenance and training necessary for the subject overhead bed frame device;

g. The Defendant failed to train or properly train its supply technician employees in the inspection, assembly and maintenance of the overhead bed frame device; and

h. The Defendant failed to properly maintain the overhead bed frame device.

In examining the underlying nature of the claim, Espinosa alleged a failure to properly assemble and install, as well as a failure to inspect, supervise and maintain, a device ordered by his physician for his continued medical care, and assembled and utilized by hospital staff in accordance with the physician's orders. These allegations, notwithstanding the use of premises liability language, amount to a claimed departure from the accepted standards of medical or health care. See formerTex. Rev. Civ. Stat. Ann. art. 4590i, 1.03 (a)(4); Diversicare 185 S.W.3d at 848; Garland, 156 S.W.3d at 543. Further, Espinosa's allegations relating to the failure to train, supervise or hire competent personnel, charged with his continued medical care in the assembly or use of the trapeze, also amount to a departure from accepted standards of medical care. See Diversicare, 185 S.W.3d at 853 (relying on language in Bell v. Sharp Cabrillo Hosp., 212 Cal. App. 3d 1034, 260 Cal. Rptr. 886, 896 (1989) that "[t]he competent selection and review of medical staff is precisely the type of professional service a hospital is licensed and expected to provide...").

Espinosa also contends that the trapeze's failure was not an inseparable part of the rendition of medical services. According to Espinosa, any expert he hired in this case would not even be

a health care provider, but instead would be a person who "could recognize, identify, and correct a mechanical defect that failed." Espinosa argues that such limited testimony shows that the acts or omissions complained of are not an inseparable part of the rendition of medical services. In support of his position, he cites to two cases: Marks v. St. Luke's Episcopal Hosp., 177 S.W.3d 255 (Tex. App.--Houston [1st Dist. ], vacated, 193 S.W.3d 575 (Tex. 2006) (per curiam) (remanding in light of Diversicare, 185 S.W.3d 840), and Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d 417 (Tex. App.--Corpus Christi 1999, no pet.).

In Marks, the patient was injured when the footboard of his hospital bed fell off, causing him to fall to the floor. Marks,177 S.W.3d at 255. The plaintiff sued, alleging premises liability, and did not file an expert report as required by article 4590i. Id. The trial court dismissed the case, and the plaintiff appealed. Id. The appellate court reversed and remanded, holding that because the cause of action alleged did not involve a health care liability claim, no expert report was required pursuant to article 4590i. Id. at 260. However, several months after the appellate court's decision in Marks, the Supreme Court issued its opinion in Diversicare, 185 S.W.3d 840. And, in a subsequent per curiam opinion, the Supreme Court vacated the court of appeal's decision in Marks and remanded the case back to the court of appeals for further consideration in light of its decision in Diversicare. Marks, 193 S.W.3d at 575 (citing Diversicare, 185 S.W.3d at 840).

Diversicare involved a nursing home patient who sustained injures in two separate falls. Id.at 845. The patient's daughter brought suit on behalf of the patient under these facts initially but, after learning that her mother had also been sexually assaulted by another patient while in residence at the nursing home, amended her petition. Id. Various theories of recovery were alleged, including: premises liability, negligent supervision and fraudulent inducement. Id. The Texas Supreme Court held that the plaintiff's claims were governed by article 4590i because the acts or omissions complained of, that the nursing home failed to properly supervise the patient and keep her free from harm, amounted to a departure from accepted standards of medical care or health care or safety. Id. 855. The court noted the relationship between premises owners and invitees on the one hand and health care facilities and their patients on the other and declined to apply the diminished standard of ordinary care with no general medical duty to treat in the plaintiff's case. Id. at 850-51, 854. In view of Diversicare, we find Espinosa's reliance upon Marks misplaced. See id.

Espinosa also relies upon Rogers, 13 S.W.3d at 418, which involved a plaintiff who was recuperating from back surgery at his home when a supply bag, that had been placed on a nearby table by the home health care provider, fell and reinjured him. The court held that "the question of how to place a heavy supply bag in a patient's home so as not to injure the patient is not governed by an accepted standard of safety within the health care industry but rather, is governed by the standard of ordinary care." Id. at 419. In examining the underlying nature of Rogers's claim, the court reasoned that the specific act complained of was the placement of a heavy supply bag on a table in Rogers's home and, as such, it did not meet the definition of a health care liability claim. Id. Further, the court emphasized article 4590i's definition of an expert as one "who has knowledge of accepted standards of care for the diagnosis, care, treatment of the illness, injury, or condition involved in the claim" and noted that requiring expert testimony for claims caused by negligence other than those involving the diagnosis, care or treatment, would result in the plaintiff's failure to go forward with the claim. Id.(citing former Tex. Rev. Civ. Stat. Ann. art. 4590i 13.01(5)(B)).

In the present case, the record reflects that the "overhead bed frame device" referred to by Espinosa in his pleadings, also known as a trapeze bar or trapeze, was authorized as part of Espinosa's medical care by his physician in both the physician's written order and the Orthopedic Surgery Initial Evaluation. Evidently, Espinosa's physician was of the professional medical opinion that the trapeze was necessary to Espinosa's continued medical care to the extent that he ordered the trapeze as part of Espinosa's medical treatment and had a plan in place for Espinosa to use the trapeze whenever he moved in and out of his hospital bed. Also, the trapeze was assembled and attached by a nurse and an orthopedic technician, both of whom were employees of the hospital and were relying on the doctor's orders in the use of this device for Espinosa's continued medical care. (4)

These facts, evidencing that the acts or omissions complained of were an inseparable part of the rendition ofmedical services to Espinosa, were not present in Rogers, which involved an alleged injury by a random object unrelated to Rogers's diagnosis, care and treatment. See Rogers, 13 S.W.3d at 419. As a result, an expert could have been procured in the present case to testify whether or not the hospital and staff departed from the accepted standards of care for the care or treatment of Espinosa in the assembly, maintenance and use of the trapeze in question. See former Tex. Rev. Civ. Stat. Ann. art. 4590i 13.01(5)(B); Rogers, 13 S.W.3d at 419.

Conclusion

Accordingly, we overrule Espinosa's issues on appeal and affirm the trial court's judgment.

Karen Angelini, Justice

1. The Honorable Michael Peden is the presiding judge of the 285th Judicial District Court, Bexar County, Texas. The Honorable Lori Massey presided over the hearing on Defendant's Motion to Dismiss and signed the order dismissing the case.

2. Article 4590i was repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, 10.09, 2003 Tex. Gen. Laws 847, 884, and has been re-codified at Tex. Civ. Prac. & Rem. Code Ann. 74.351 (Vernon Supp. 2005) (effective Sept. 1, 2003). Because the underlying lawsuit was filed on August 23, 2002, all references in this opinion will be to former article 4590i.

3. Espinosa's Original Petition asserted that he had satisfied the notice requirements of article 4590i. His First Amended Original Petition, however, omits any mention of this article or its requirements.

4. Moreover, Espinosa's reliance upon the trapeze in his post surgical state, albeit to his alleged detriment, would seem to lend further credence to the device's importance to the rendition of his medical care.