NUMBER 13-14-00030-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MARY MELINDA BARNES, Appellant,
v.
NAVARRO HOSPITAL, LP,
NAVARRO REGIONAL, LLC,
D/B/A NAVREG, LLC, Appellees.
On appeal from the 13th District Court
of Navarro County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza and Benavides
Memorandum Opinion by Justice Garza
In this case, appellant Mary Melinda Barnes failed to timely serve a medical
expert report and the trial court granted a motion to dismiss filed by appellees, Navarro
Hospital, LP, and Navarro Regional, LLC d/b/a Navreg, LLC (collectively “Navarro”).
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through 2013 3d C.S.).
Because we find that the claim raised by Barnes is a health care liability claim, we
affirm.1
I. BACKGROUND
Barnes was injured on April 4, 2010 while working as an employee of Navarro, a
non-subscriber under the Texas Workers’ Compensation Act. See TEX. LAB. CODE ANN.
§ 405.033(d) (West, Westlaw through 2013 3d C.S.) (providing that, in an action by an
employee against a non-subscriber employer, “the plaintiff must prove negligence of the
employer or of an agent or servant of the employer acting within the general scope of
the agent’s or servant’s employment”). In her original petition, filed on December 21,
2011, Barnes alleged that she “injured her back shortly after starting her shift, when she
was forced to care for a patient who had been unattended for several hours.” According
to the original petition,
[f]or several hours the patient had made repeated phone calls to patient
technicians seeking assistance that went unnoticed. In addition, patient
had not been checked on during the previous shift routine hourly checkup
rotation. As a result, when [Barnes] began her shift she entered the
patient’s room to find debris and other liquids scattered across the floor,
which created an unsafe working environment. [Barnes] attempted to
assist with [the] patient, who was obese, by cleaning and repositioning
her. [Barnes] was not provided proper equipment to move an obese
patient which led to her back injury. In addition, the debris and liquid
caused [Barnes] to slip and cause further injury to her back, which has
resulted in multiple procedures and surgeries. . . .
The petition alleged that Navarro was negligent and grossly negligent by: (1) failing to
warn her of “hazards in her work environment”; (2) failing to “maintain a safe working
environment”; (3) failing to provide her “with appropriate equipment required for the safe
1 This appeal was transferred from the Tenth Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2013 3d C.S.).
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performance of her job duties”; (4) failing to “to answer patients[’] repeated calls for
help”; (5) failing to “to properly monitor the patients”; (6) failing “to properly train its
employees”; and (7) failing “to provide adequate staffing.”
On July 13, 2012, Navarro moved to dismiss Barnes’s suit, asserting that the
claim raised therein is a health care liability claim (“HCLC”) and that Barnes was
therefore required, but failed, to timely file an expert medical report. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(b).2 After Navarro filed its motion to dismiss, but
before the motion was heard and decided, Barnes filed two amended petitions, the latter
of which omitted certain factual allegations. In particular, the second amended petition
alleged in its “Facts” section only that Barnes “was walking in a room when she fell” and
did not state where the accident occurred or that Barnes was in the process of treating a
patient at the time. The second amended petition contained a premises liability claim
alleging that Navarro “possessed actual knowledge of the slippery and unstable floor
and failed to remedy or warn [Barnes] of the slippery unstable condition” and, in the
alternative, that Navarro “possess[ed] constructive knowledge of the slippery and
unstable floor which it would have discovered upon reasonable inspection,” that the
“condition of the floor at the time of the fall was unreasonably dangerous” and that
Barnes did not know about the dangerous condition. In addition to the premises liability
claim, the second amended petition also asserted that Navarro was negligent and
grossly negligent by: (1) “[f]ailing to adequately and timely clean its floors”; (2) “[f]ailing
to cover or mat its floors to prevent incident[s] such as that made the basis of this suit”;
2 Navarro’s motion requested dismissal of Barnes’s suit as well as an award of reasonable
attorney’s fees. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West, Westlaw through 2013 3d
C.S.) (stating that, if an expert report has not been timely served, “the court, on the motion of the affected
physician or health care provider, shall” enter an order that (1) awards reasonable attorney’s fees and
costs of court to the defendant and (2) dismisses the claim with prejudice).
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(3) “[f]ailing to timely and appropriately remedy a slippery unstable condition on the
floor”; and (4) “[f]ailing to take steps necessary to make the floors stable and not
slippery.”
After a hearing on August 23, 2012, the trial court granted Navarro’s motion to
dismiss3 and this appeal followed.4
II. DISCUSSION
A. Applicable Law and Standard of Review
Under the Texas Medical Liability Act (“TMLA”), a plaintiff asserting an HCLC
must serve a medical expert report upon each party’s attorney no later than the 120th
day after the date the original petition was filed. Id. § 74.351(a). The statute defines
HCLC 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.
Id. § 74.001(a)(13) (West, Westlaw through 2013 3d C.S.).
Whether a claim is an HCLC under the TMLA is a matter of statutory
construction, which is a purely legal question that we review de novo. Tex. W. Oaks
3 The final judgment noted that Navarro abandoned its claim for attorney’s fees. See id. (noting
that fees must be awarded upon dismissal for failure to serve an expert report only “on the motion of the
affected physician or health care provider”); but see Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010)
(characterizing award of fees upon dismissal for failure to comply with expert report requirement as
“mandatory”). Navarro has not filed a cross-appeal challenging the trial court’s failure to award fees.
4 The Tenth Court of Appeals previously dismissed an appeal arising from the same trial court
proceedings. Barnes v. Navarro Hosp., LP, No. 10-12-00380-CV, 2013 WL 387880, at *1 (Tex. App.—
Waco Jan. 31, 2013, no pet.) (mem. op.) (dismissing appeal for want of jurisdiction because attorney’s
fees issue remained outstanding and judgment was therefore not final, but stating that dismissal was
“without prejudice to the filing of a timely notice of appeal when the trial court has signed a final
judgment”). The trial court subsequently rendered an agreed order dismissing Navarro’s attorney’s fees
claim and explicitly disposing of all claims and parties.
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Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012). To determine whether a
cause of action falls under the statute’s definition of an HCLC, we examine the claim’s
underlying nature. Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010). Artful
pleading does not alter that nature. Id. In making the determination, we consider the
entire court record, including the pleadings, motions and responses, and relevant
evidence properly admitted. Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012).
Claims “which require[] the use of expert health care testimony to support or
refute the allegations” are HCLCs. Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724,
727 (Tex. 2013); see Tex. W. Oaks, 371 S.W.3d at 182. However, the inverse is not
true: “[e]ven when expert medical testimony is not necessary, the claim may still be an
HCLC.” Tex. W. Oaks, 371 S.W.3d at 182 (citing Murphy v. Russell, 167 S.W.3d 835,
838 (Tex. 2005) (“The fact that in the final analysis, expert testimony may not be
necessary to support a verdict does not mean the claim is not [an HCLC].”)).
B. Analysis
In her original petition, Barnes stated that she slipped on “debris and other liquids
scattered across the floor” in a patient’s room as she was attempting to “clean[] and
reposition[]” the patient. She suggested that Navarro’s negligence stemmed from the
fact that the “patient had not been checked on during the previous shift” which “created
an unsafe working environment.” She alleged in particular that Navarro was negligent
by, among other things, failing to answer the patient’s calls for help, failing to properly
monitor patients, failing to properly train employees, and failing to provide adequate
staffing. This claim is an HCLC because it alleges a departure from accepted standards
of health care. See Tex. W. Oaks, 371 S.W.3d at 180 (noting that “a claim alleges a
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departure from accepted standards of health care if the act or omission complained of is
an inseparable or integral part of the rendition of health care” and that “training and
staffing policies and supervision and protection of [patients] . . . are integral components
of a [health care facility’s] rendition of health care services . . . .”) (citing Diversicare
Gen. Partner, Inc. v. Rubio, 185 S.W.3d 848, 850 (Tex. 2005)); see also TEX. CIV. PRAC.
& REM. CODE ANN. § 74.001(10) (defining “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”).
Barnes argues that we should disregard her original petition and instead review
the trial court’s ruling in light of her second amended petition, in which she alleged only
that she “was walking in a room” in the hospital “when she fell due to a slippery
substance and dangerous debris on the floor.” In response, Navarro argues that we
must consider the allegations in Barnes’s original petition because “a health care liability
claim cannot be recast as another cause of action to avoid the requirements of the
[TMLA].” Diversicare, 185 S.W.3d at 851.
We agree with Navarro that Barnes’s second amended petition is merely an
effort to “recast” the claims made in her original petition, and so we may not disregard
the original claims. “Contrary to statements in live pleadings, those contained in
superseded pleadings are not conclusive and indisputable judicial admissions.” Sosa v.
Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (citing Drake Ins. Co. v. King,
606 S.W.2d 812, 817 (Tex. 1980)). But superseded pleadings may be introduced as
probative evidence. See Drake Ins. Co., 606 S.W.2d at 817. Here, Navarro attached a
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copy of Barnes’s original petition to its reply to Barnes’s response to the motion to
dismiss. Moreover, the Texas Supreme Court has stated that appellate courts “should
consider the entire court record” in determining whether a claim is an HCLC. Loaisiga,
379 S.W.3d at 258. We therefore conclude that the factual allegations made by Barnes
in her original petition are properly considered in the analysis of whether Barnes’s claim
is an HCLC. And, considering those allegations, we find that the claim alleges a
departure from accepted standards of health care. See TEX. CIV. PRAC. & REM. CODE
ANN. § 74.001(13). Therefore, under the statute, Barnes’s claim is an HCLC and the
trial court did not err in granting Navarro’s motion to dismiss. Barnes’s issue on appeal
is overruled.
III. CONCLUSION
We affirm the trial court’s judgment granting Navarro’s motion to dismiss.
DORI CONTRERAS GARZA,
Justice
Delivered and filed the
29th day of August, 2014.
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