Pm Management-Trinity Nc, LLC D/B/A Trinity Care Center v. Michael Kumets, Pavel Kumets, and Strul Kumets, Individually and as Next Friend for Yevgeniya Kumets

IN THE SUPREME COURT OF TEXAS
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NO . 12-0451
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PM MANAGEMENT-TRINITY NC, LLC D/B/A TRINITY CARE CENTER, PETITIONER,
v.

MICHAEL KUMETS, PAVEL KUMETS, AND STRUL KUMETS, INDIVIDUALLY AND AS
NEXT FRIEND FOR YEVGENIYA KUMETS, RESPONDENTS

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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
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PER CURIAM

In this dispute, the trial court refused to dismiss a claim that a nursing home unlawfully

discharged a resident in retaliation for complaints made by the resident’s family. The court

concluded that the claim was not a “health care liability claim” (HCLC) for which the Texas Medical

Liability Act (TMLA) requires a supporting expert report. The court of appeals affirmed, with one

justice dissenting in part. Because this retaliation claim was based on the same factual allegations

on which one of the plaintiffs’ HCLCs was based, we reverse the judgment of the court of appeals

in part and affirm in part, and we remand the case to the trial court for dismissal and a determination

of attorney’s fees and costs of court pursuant to section 74.351(b) of the TMLA.

Yevgeniya Kumets was admitted to the Trinity Care Center nursing home to recover from

a stroke. Yevgeniya’s family members allege that the inadequate care she received at Trinity caused
her to suffer a second stroke. They also allege that Trinity discharged Yevgeniya from the home in

retaliation for complaints that the family made about her care. The Kumetses sued Trinity, asserting

claims for medical negligence; negligence per se; gross negligence; negligent hiring, supervision,

management, and retention of employees; breach of fiduciary duty; breach of contract; violations of

the Deceptive Trade Practices Act; fraudulent/negligent misrepresentation and billing; and

retaliation.1 The Kumetses asserted the retaliation claim under the Texas Health & Safety Code,

which creates a statutory cause of action against a nursing facility that retaliates or discriminates

against a resident or family member who makes a complaint or files a grievance concerning the

facility. See TEX . HEALTH & SAFETY CODE § 260A.015(a).2 A plaintiff who prevails on a statutory

retaliation claim may recover injunctive relief, the greater of statutory or actual damages, exemplary

damages, court costs, and attorney’s fees. Id. § 260A.015(b).

After the Kumetses filed an expert report, Trinity argued that the expert report was deficient

and asked the trial court to dismiss all of the claims pursuant to section 74.351(b) of the TMLA. See

TEX . CIV . PRAC. & REM . CODE § 74.351(b). The trial court agreed that the report was deficient and

granted a thirty-day extension to cure the deficiencies. See id. § 74.351(c). The court later found

the Kumetses’ amended expert report deficient and signed an order dismissing all of their claims

except for the retaliation claim. Trinity appealed the court’s order, arguing that the retaliation claim

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The Kumetses also sued other defendants, but those claims are not before us.

2
The Kumetses actually asserted the retaliation claim under section 242.1335 of the Texas Health & Safety
Code, which was repealed in 2011 but remains applicable to claims, like the Kumetses’, that accrued before September
28, 2011. See Act of June 28, 2011, 82d Leg., 1st C.S., ch.7, §§ 1.05(m), 1.05(p), 2011 Tex. Gen. Laws 5390, 5407.
Because the Legislature re-enacted the statute without substantive changes as section 260A.015, we will cite to the
current provision.

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was also an HCLC that must be dismissed. The Kumetses cross-appealed, contending that their

fraudulent billing claim was not an HCLC and therefore should not have been dismissed. The

Kumetses did not challenge the trial court’s finding that their remaining claims were HCLCs or the

court’s dismissal of those claims.

A divided panel of the court of appeals affirmed. 368 S.W.3d 711, 723. The court noted that

under the TMLA, an HCLC must involve “injury to or death of the claimant[.]” TEX . CIV . PRAC.

& REM . CODE § 74.001(a)(13). According to the majority, claims asserting pure economic loss do

not meet this element of the definition. The court of appeals explained that the trial court reasonably

could have concluded that the only “injury” arising from Yevgeniya’s discharge was economic loss,

and the court therefore affirmed the trial court’s decision not to dismiss the retaliation claim. In

addition, the court concluded that the trial court did not abuse its discretion by dismissing the

fraudulent billing claim, because that claim was based on the same facts as the Kumetses’ HCLCs.

The dissent agreed with the majority that the trial court properly dismissed the fraudulent

billing claim but disagreed with the court’s decision to affirm the trial court’s denial of Trinity’s

motion to dismiss the retaliation claim. Like the majority, the dissent noted that, under our

precedents, claims that are based on the same facts as HCLCs are themselves HCLCs and must be

dismissed absent a sufficient expert report. Yamada v. Friend, 335 S.W.3d 192, 196–97 (Tex.

2010); accord Turtle Healthcare Grp., L.L.C. v. Linan, 337 S.W.3d 865, 868–69 (Tex. 2011) (per

curiam). Unlike the majority, however, the dissent would have held that the Kumetses’ retaliation

claim was based on the same facts as one of the Kumetses’ HCLCs and therefore should have been

dismissed.

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 We agree with the dissent. Like the plaintiffs in Yamada, the Kumetses have not challenged

the trial court’s finding that their other claims were HCLCs or the court’s dismissal of those claims.

In support of their claim for breach of fiduciary duty, the Kumetses asserted that Trinity “retaliated

against [Yevgeniya] once complaints were made about her poor treatment in violation of Texas law.”

For purposes of this case, this claim has been established to be an HCLC, and the Kumetses’ claim

for retaliatory discharge under the Health & Safety Code is based on the same factual allegations.

As we explained in Yamada, the TMLA does not allow parties to circumvent its procedural

requirements by claim-splitting or by any form of artful pleading. 335 S.W.3d at 196. When a

plaintiff asserts a claim that is based on the same underlying facts as an HCLC that the plaintiff also

asserts, both claims are HCLCs and must be dismissed if the plaintiff fails to produce a sufficient

expert report. Id.

We do not decide in this case that a claim for retaliation or discrimination under the Health

& Safety Code is always an HCLC, or even that the Kumetses’ claim for breach of fiduciary duty

was an HCLC. Because the Kumetses did not appeal the trial court’s determination that their breach

of fiduciary duty claim was an HCLC, we must accept for purposes of this case that it was. And

because their retaliation claim was based on the same underlying facts, the trial court should have

dismissed that claim as an HCLC as well.

Accordingly, without hearing oral argument, TEX . R. APP . P. 59.1, we grant the petition for

review and reverse the court of appeals’ judgment respecting the retaliation claim. We affirm the

remainder of the court of appeals’ judgment. We also remand to the trial court with orders to dismiss

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the case and award appropriate attorney’s fees and costs of court to Trinity. See TEX . CIV . PRAC. &

REM . CODE § 74.351(b).

OPINION DELIVERED: June 28, 2013

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