Dr. Malladi Sudhakar REDDY, Appellant v. Dianna Lynn VEEDELL and Maury Veedell, Appellees.
A bicyclist was injured when she was struck by a car driven by a distracted doctor. Is her negligence claim against the doctor a “health care liability claim” under the Texas Medical Liability Act, requiring her to file an expert report to establish that her claim is not frivolous? We conclude that it is not, and accordingly we affirm the trial court's ruling denying the doctor's motion to dismiss this case.
Dianna and Maury Veedell sued Dr. Malladi Reddy for negligence and negligence per se arising from a collision between Reddy's car and Dianna's bicycle. The Veedells alleged that while looking at his mobile phone, Reddy backed his car into a road and collided with Dianna's oncoming bicycle, propelling her into and shattering the rear window of Reddy's car. Dianna sustained severe personal injuries. The Veedells' lawsuit alleged that Reddy failed to keep a proper lookout, backed unsafely and in a manner that interfered with other traffic, failed to yield the right of way, and violated section 545.415(a) of the Texas Transportation Code, which prohibits backing a vehicle “unless the movement can be made safely and without interference with other traffic.” Tex. Transp. Code Ann. § 545.415(a) (West 2011).
Reddy moved to dismiss the suit pursuant to the Texas Medical Liability Act (TMLA). See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b) (West Supp.2014). He argued that the Veedells' claims alleged “injuries as the result of an automobile accident” and that he, “a physician, acted unsafely in the operation of his motor vehicle.” Reddy relied on a memorandum opinion from the Fourteenth Court of Appeals to support his assertion that the Veedells' allegations constituted a health care liability claim subject to the TMLA, and that their failure to file an expert report warranted dismissal. The question presented in Ross v. St. Luke's Episcopal Hospital, No. 14–12–00885–CV, 2013 WL 1136613 (Tex.App.-Houston [14th Dist.] Mar. 19, 2013, pet. granted) (mem.op.), was whether a lawsuit brought by a hospital visitor who slipped and fell on a polished lobby floor qualified as a health care liability claim. Ross, 2013 WL 1136613, at *1. Relying on the construction of the “safety” prong of the statutory definition of “health care liability claim” announced by the Supreme Court of Texas in Texas West Oaks Hospital, L.P. v. Williams, 371 S.W.3d 171 (Tex.2012), the Fourteenth Court held that an “allegation pertaining to safety, standing alone and broadly defined,” was sufficient to invoke the statute, and that no actual connection to health care was required. Ross, 2013 WL 1136613, at *1.
In light of this holding and the applicable statute,1 Reddy argues that this case involves health care liability claims because (1) he, the defendant, is a physician, (2) the Veedells' claims pertained to “safety,” and (3) the Veedells alleged that they were damaged by his act or omission. Considering that some other courts of appeals, unlike the Fourteenth Court, have required that a claim be at least indirectly related to health care to qualify as a safety claim under the statute,2 Reddy also argued that the Veedells' claims met the indirect-relation standard because the phone call that distracted him “was from a hospital Dr. Reddy worked at.” The evidentiary support for this argument was limited to Reddy's own deposition testimony that the caller “was the hospital, I believe.” Accordingly, Reddy argued that the Veedells were required to file an expert report, and because they did not do so, he moved for dismissal of their claims with prejudice.
In response, the Veedells argued that whether a plaintiff's claim is a health care liability claim is a question of law that a court determines based on the underlying nature of the cause of action. Calling Reddy's arguments “patently absurd” and reasoning that the accident was completely unrelated to health care, the Veedells argued that theirs were not health care liability claims.
The trial court denied the motion to dismiss, and Reddy filed this interlocutory appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (West Supp.2014).
In his sole issue, Reddy argues that the acts of which the Veedells complain constitute a “safety” claim under the TMLA, the trial court erred in concluding otherwise, and the case should have been dismissed for failure to satisfy the statutory requirement of filing an expert report summarizing the applicable standards of care, the manner in which those standards were not met, and the causal relationship between that failure and the claimed injury. See Tex. Civ. Prac. & Rem.Code Ann. §§ 74.001(a)(13) & 74.351(b), (r)(6) (West Supp.2014). We review such a claim for abuse of discretion. See, e.g., Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001). To the extent the characterization of a claim as a health care liability claim hinges on an interpretation of a statute or its application to established facts, that is a question of law which we review de novo. See Tex. W. Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171, 177 (Tex.2012).
There is no dispute that Reddy is a physician or that the Veedells claim to have been injured as a result of his negligent acts. See Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13), (23)(A). Therefore we need only determine whether the claims at issue implicate a claimed “departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care.” See id . § 74.001(a)(13). Reddy argues that the claims allege personal injury proximately caused by a departure from standards of safety, and as such they are controlled by the Supreme Court's holding in West Oaks, which stated that a “safety claim” need not be directly related to health care in order to qualify as a health care liability claim under the TMLA. Tex. W. Oaks Hosp., 371 S.W.3d at 186.
A similar issue involving safety claims and the application of Texas West Oaks was very recently decided by another panel of this court. In Williams v. Riverside General Hospital, Inc., No. 01–13–00335–CV, 2014 WL 4259889 (Tex.App.-Houston [1st Dist.] Aug. 28, 2014, no pet. h.) (memo.op.), the plaintiff was a nursing assistant who sued her hospital employer for personal injuries arising from two on-the-job incidents: tripping over an extension cord left out by a coworker, and slipping on a hospital floor due to a substance emitted by “a leaky piece of lab equipment.” Williams, 2014 WL 4259889, at *1. The Williams v. Riverside panel distinguished West Oaks and held that “there must ․ be some indirect, reasonable relationship between claims and the provision of health care” for such claims to be health care liability claims. Id. at *7. The panel further reasoned that a personal-injury claim arising from tripping on an extension cord “is a garden-variety slip-and-fall claim that is completely untethered from the provision of health care,” and that “[t]he same holds true” for the claim based on slipping on the hospital floor. Id.
In this case, the Veedells alleged that Reddy was negligent by looking at his mobile phone while backing into a public street, failing to keep a proper lookout, backing unsafely and in a manner that interfered with other traffic, failing to yield the right of way, and violating the Texas Transportation Code.
Reddy contends that the Veedells' claims have an indirect relationship to health care. Reddy testified that he had backed halfway into the street when he stopped to answer a phone call. He said he was unable to obtain the phone records from his service provider due to the passage of time, but when asked if he recalled who called him, he testified, “It was the hospital, I believe.” He did not remember which hospital. Reddy brought forth no other evidence pertaining to the nature or purpose of the phone call, yet he argues in his brief that “the nexus of Veedell's safety claim” was that he was “attending to health care issues when it was not safe to do so.”
Reddy produced no conclusive evidence that he was attending to health-care issues when he stopped his car in the street. The evidence shows only that he answered a phone call, of unspecified nature, from an unknown caller that could have been an unidentified hospital. The trial court would have been entirely within its discretion to conclude that this evidence failed to prove facts establishing an indirect relationship between the Veedells' claims and the provision of health care. See Williams, 2014 WL 4259889, at *7; see also DHS Mgmt. Servs., Inc. v. Castro, 435 S .W.3d 919, 922 (Tex.App.-Dallas 2014, no pet.) (holding that cause of action arising out of three-car collision involving a van containing medical imaging equipment was not a health care liability claim because services to be provided by medical-imagining defendant did not “bear even indirectly on the claims being made”).
The Veedells' claims involve a motorist's liability for causing a collision with a bicyclist. As such, this case is essentially indistinguishable from Williams v. Riverside insofar as the claims may be characterized as “garden-variety” personal-injury claims that are “completely untethered from the provision of health care.” Williams, 2014 WL 4259889, at *7. Accordingly, they do not qualify for the “safety” category of health care liability claims.
Having considered the gravamen of the Veedells' claims as well as the evidence brought forth by Reddy to support his contention that their claims were indirectly related to health care, we conclude that Reddy has not carried his burden to prove that the Veedells' causes of action are health care liability claims for which an expert report was required. Cf. Brown v. Villegas, 202 S.W.3d 803, 806 (Tex.App.-San Antonio 2006, no pet.) (putative health care provider, as the movant, bore the burden to present evidence to establish applicability of TMLA); Obstetrical & Gynecological Associates, P.A. v. Hardin, No. 01–13–00236–CV, 2013 WL 6047595, at *2 (Tex.App.-Houston [1st Dist.] Nov. 14, 2013, no pet.) (memo.op.) (same).
A bicyclist's negligence claim against a distracted doctor driver who caused a vehicular collision is not a “health care liability claim” subject to Texas Medical Liability Act. We therefore hold that the trial court correctly denied Reddy's motion to dismiss, and we overrule his sole issue. We affirm the interlocutory order of the trial court.
I agree that the recent caselaw controls the outcome of this case in this court, and I also agree with the disposition of this appeal on the merits. “Whether a claim is a health care liability claim depends on the underlying nature of the claim being made.”1 Considering the entire text of the Texas Medical Liability Act (TMLA), I conclude that the statute does not require an expert report in the circumstance of a lawsuit alleging a doctor's negligence in hitting a bicyclist with his car, even if the doctor was distracted by a telephone call from a hospital.
That said, I do not agree with the reasoning employed in our court's recent Williams v. Riverside decision,2 even though it leads to the correct outcome here. The Texas Supreme Court has granted review in Ross v. St. Luke's Episcopal Hospital,3 which presents a substantially similar issue concerning the scope of the “safety claim.”4 Because this case helpfully illuminates problematic facets of applying the TMLA to safety claims against physician defendants, I offer the following additional observations.
The TMLA's fundamental purpose5 of reducing the costs associated with “health care liability claims” (HCLCs)6 and the statute's expansive definition of “health care”7 have resulted in the application of an appropriately broad scope to these statutorily defined terms.8 The broad application of the TMLA to claims arising from claimed departures from “accepted standards of medical care, or health care” thus effectively subsumes any claim arising from alleged departures from accepted standards of “safety,” to the extent such “safety claims” are directly related to health care. This feature of the HCLC definition has been noted as one justification for concluding that the separate category of TMLA safety claims cannot be limited to those “directly related to health care,” despite a strong textual argument to that effect,9 because such an interpretation would run afoul of the interpretive canon against surplusage.10 But the potential problem of surplusage need not inexorably dictate the scope of the safety claim. “Sometimes drafters do repeat themselves and do include words that add nothing of substance․”11 Accordingly, “[p]ut to a choice ․ a court may well prefer ordinary meaning to an unusual meaning that will avoid surplusage․”12
The fact pattern of this case suggests other problems with broadly construing the category of “safety” claims without the limiting qualification that such claims must be directly related to health care. When the defendant is a “health care provider,” as it was in West Oaks,13 Psychiatric Solutions,14 and Ross,15 it stands to reason that the potential for a connection to health care should be evident to the claimant. The non-patient plaintiff advancing a garden-variety negligence claim against a health care provider should confront “no major obstacle” in satisfying the TMLA's requirement of an expert report, and prudently should file one to avoid the risk of dismissal.16 But the potential classification of a claim as an HCLC may not be evident when the defendant is a physician and the claim does not arise from a health-care setting, such as the accident in this case. The original petition in this case identified Reddy as a doctor, but it is entirely conceivable that a similar accident could occur involving a physician-defendant, and that fact of a physician's involvement may not be known until a motion to dismiss is filed, faulting the claimant for failing to file an expert report. Unlike the circumstance in which an actually filed report is found to be deficient,17 the Act includes no procedural mechanism to protect the claimant who lacks notice of circumstances causing her claim to be classified as an HCLC.
Many courts of appeals have resisted the West Oaks interpretation of the safety claim by applying a different, atextual requirement of an indirect relation to health care. In my view, even though this construct may lead to the correct result in some cases, such as this case, requiring an indirect relationship to health care has no footing in the statute and causes greater violence to a textual reading of the TMLA than would result from limiting safety claims to those directly related to health care.
I would not have resorted to such an atextual construction of the statute if a panel of our court had not already joined the other courts of appeals that have done so. Instead, I would begin with the recognition that the explication of the scope of the safety claim was not necessary to the result in either West Oaks or Psychiatric Solutions,18 Both of those cases involved circumstances that the Supreme Court found to be directly related to health care,19 and that fact already has been expressly invoked by a majority of the Court in Psychiatric Solutions to dismiss further inquiry into the applicability of the “safety” aspect of the HCLC definition as “advisory at best.”20
Moreover, the facts of this case are readily distinguishable from West Oaks and Psychiatric Solutions. Unlike those precedents, in this case of a distracted doctor striking a bicyclist with his car, there is no connection to health care or any claim that implicates a standard of care that requires expert testimony to prove or refute it.21 For that reason, I would conclude that the facts presented by this case likely were not anticipated by the Court when it discussed the scope of the safety claim in West Oaks . As such, and in light of the peculiarity of requiring an expert report in this case and the plausibility of the alternative interpretation limiting safety claims to those directly related to health care, I would treat the dicta in West Oaks as “inapplicable and not binding on our facts”22 rather than as a definitive and indistinguishable statement of “precedential judicial dicta.”23
Regardless of how the Supreme Court ultimately resolves this challenge of statutory interpretation, there is a possibility of a better path forward. Even though the Legislature does not write statutes for the courts' approval,24 it still could clarify the TMLA in response to manifest interpretive difficulties. Not only could this relieve the courts and litigants from the continuing burdens of litigation over the procedural standards,25 it could also better ensure that the standards applied are those actually approved by the Legislature, as opposed to a standard reflecting the courts' best good-faith effort to implement an opaque statute. Legislatures have the right to expect courts to faithfully implement laws as enacted. When the words fail, the Legislature has a corresponding responsibility to provide clarity where it is wanting.26 Rather than leaving the difficult work of clarification to the courts, which have confessed their struggle with the task of reaching consensus about the meaning of the Act,27 the Legislature could-and, I respectfully suggest, shouldstudy the historical record of how the Texas Medical Liability Act is being applied in the courts, evaluate which outcomes do and do not reflect a desirable application of the statutory scheme, and then amend the statute to more clearly indicate what kinds of claims are intended to be subject to these special procedures.
1. Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13) (West Supp.2014):“Health care liability claim” means 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.
2. See, e.g., Methodist Healthcare Sys. of San Antonio, Ltd., LLP v. Dewey, 423 S.W.3d 516, 519 (Tex.App.-San Antonio 2014, pet. filed); Weatherford Tex. Hosp. Co., LLC v. Smart, 423 S.W.3d 462 (Tex.App.-Fort Worth 2014, pet. filed) (“[T]here must be some connection, even indirect at best, between the safety claim and the provision of health care for the claim to fall under the TMLA's health care liability claim definition.”); Doctors Hosp. at Renaissance, Ltd. v. Mejia, No. 13–12–00602–CV, 2013 WL 4859592 (Tex.App.-Corpus Christi Aug. 1, 2013, pet. filed) (mem.op.) (“[T]he [West Oaks ] court recognized a new type of healthcare liability claim—that is, one involving safety which is indirectly related to health care.”).
1. Yamada v. Friend, 335 S.W.3d 192, 196 (Tex.2010); see also Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex.2005) (“To determine whether a cause of action is a health care liability claim ․ we examine the underlying nature of the claim and are not bound by the form of the pleading.”).
2. No. 01–13–00335–CV, 2014 WL 4259889 (Tex.App.-Houston [1st Dist.] Aug. 28, 2014, no pet. h.) (mem.op.).
3. No. 14–12–00885–CV, 2013 WL 1136613 (Tex.App.-Houston [14th Dist.] Mar. 19, 2013, pet. granted) (mem.op.).
4. But for the Supreme Court's decision to review Ross, which gives cause for some hope of authoritative guidance concerning safety claims under the TMLA, I would recommend that this court grant a sua sponte en banc reconsideration of Williams v. Riverside. See Tex.R.App. P. 49.7.
5. See, e.g., Scoresby v. Santillan, 346 S.W.3d 546, 552 (Tex.2011). The statute seeks to further this goal by deterring “frivolous lawsuits by requiring a claimant early in litigation to produce the opinion of suitable expert that his claim has merit.” Id.
6. Tex. Civ. Prac. & Rem.Code § 74.001(a)(13) (“ ‘Health care liability claim’ means 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.”).
7. Id. § 74.001(a)(10) (“ ‘Health care’ means 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”).
8. See, e.g., Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex.2012) (“The broad language of the TMLA evidences legislative intent for the statute to have expansive application.”); Diversicare, 185 S.W.3d at 847.
9. See, e.g., Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724, 729–30 (Tex.2013) (Boyd, J., concurring).
10. See Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 192 (Tex.2012) (citing Tex. Civ. Prac. & Rem.Code § 74.001(a)(10)). Notably, the West Oaks opinion states that “ ‘medical care’ and ‘health care’ HCLCs require that the claimant be a patient.” Id. at 178 (emphasis supplied). If that were the case, then it would be easy to avoid the surplusage problem because the other types of HCLCs can be brought by the full range of covered “claimants,” which is broader than just patients. See Tex. Civ. Prac. & Rem.Code § 74.001(a)(2) (defining “claimant”); Tex. W. Oaks, 371 S.W.3d at 178–79 (discussing “claimant” definition). However, the quoted language limiting certain types of HCLCs to patient-claimants appears to be an inadvertently narrow articulation of what is described elsewhere in the opinion as a requirement that there be some connection to “a patient-physician relationship,” without any requirement that the claimant be the patient. Tex. W. Oaks, 371 S.W.3d at 180. This understanding is evident from both West Oaks itself and from the later Psychiatric Solutions case. Neither of the claimants in those cases was a patient, yet the Court held that each claim qualified as a “health care” HCLC because a patient-physician relationship was involved. See id. at 181–83 (claimant assaulted by psychiatric patient who was being treated by the claimant's employer); Psychiatric Solutions, 414 S.W.3d at 726 (same).
11. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 176 (2012). For example, the TMLA's broad definition of “health care” appears to entirely subsume the definition of “medical care,” yet the HCLC definition references both in a fashion that adds no apparent substance by including “medical care.” See Tex. Civ. Prac. & Rem.Code § 74.00l(a)(10), (13), (19).
12. Scalia & Garner, supra note 11, at 176.
13. Tex. W. Oaks, 371 S.W.3d at 174 (private mental health hospital).
14. Psychiatric Solutions, 414 S.W.3d at 724–25 (psychiatric facility).
15. Ross, 2013 WL 1136613, at *1 (hospital).
16. See Loaisiga, 379 S.W.3d at 264 (Hecht, J., concurring and dissenting) (observing that “[o]ne need not turn to the Mayo Clinic” for an opinion establishing that “sexual assault is not a part of health care”). The Williams v. Riverside panel expressed its skepticism, speculating that it is “improbable” that the claimant “could locate a premises liability expert who also practiced ‘health care in a field of practice that involves the same type of care or treatment as that delivered by’ the defendant hospital.” Williams, 2014 WL 4259889, at *8. However, since the claim in Williams v. Riverside did not implicate any alleged departure “from accepted standards of health care,” the TMLA's special statutory qualifications for an expert witness in a suit against a health care provider would not apply to the expert report required by section 74.351. See Tex. Civ. Prac. & Rem.Code §§ 74.351(r)(5)(B) & 74.402. Instead, the expert would only have to be “a physician who is otherwise qualified to render opinions ․ under the Texas Rules of Evidence” on the “causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care.” Id. § 74.351(r)(5)(C).
17. Tex. Civ. Prac. & Rem.Code § 74.351(c).
18. See Mem'l Hermann Hosp. Sys. v. Galvan, 434 S.W.3d 176, 180 (Tex.App.-Houston [14th Dist.] 2014, pet. filed) (“Even though it was not necessary to the determination of the case, the [ Texas West Oaks v. ] Williams court then addressed whether the plaintiff's negligence claims were health care liability claims because the plaintiff alleged departures from accepted safety standards.”); see also Williams, 2014 WL 4259889, at *6 (“We agree with Galvan that this portion of the opinion is judicial dicta.”).
19. See Psychiatric Solutions, 414 S.W.3d at 726 (claim alleged that “Palit's health care provider employer violated the standard of health care owed to its psychiatric patients”); Tex. W. Oaks, 371 S.W.3d at 182 (“It would blink reality to conclude that no professional mental health judgment is required to decide” what “protocols and standards” apply to treating and supervising “a mental patient in a mental hospital,” and “whether they were in place at the time of Williams' injury.”).
20. See Psychiatric Solutions, 414 S. W.3d at 726 & n. 2.
21. See id. at 726 (“because Palit's allegations implicate a standard of care that requires expert testimony to prove or refute it, his claim is an HCLC”); Tex. W. Oaks, 371 S.W.3d at 182 (“Expert testimony in the health care field is necessary to support Williams' claims.”).
22. Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).
23. Galvan, 2014 WL 295166, at *3; Williams, 2014 WL 4259889, at *6.
24. See Jaster v. Comet II Const., Inc., No. 12–0804, 2014 WL 2994503, at *20 (Tex. July 3, 2014) (Hecht, C.J., dissenting).
25. See, e.g., Loaisiga, 379 S.W.3d at 263–64 (Hecht, J., concurring and dissenting) (“disagreements over the Act's expert report requirement, which is merely intended to weed out frivolous claims early on, have resulted in protracted pretrial proceedings and multiple interlocutory appeals, threatening to defeat the Act's purpose by increasing costs and delay that do nothing to advance claim resolution”).
26. See, e.g., Henry J. Friendly, The Gap in Lawmaking–Judges Who Can't and Legislators Who Won't, 63 Colum. L.Rev. 787, 792 (1963) (observing the dilemma created by a legislature that gives judges “guidance that is defective in one way or another, and then does nothing by way of remedy when the problem comes to light”). Cf. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 565, 125 S.Ct. 2611, 2624 (2005) (in the event of an unintended legislative drafting gap, “it is up to Congress rather than the courts to fix it”); Reyes v. Ernst & Young, 494 U.S. 56, 63, 110 S.Ct. 945, 950 (1990) (“If Congress erred ․ it is for that body, and not this Court, to correct its mistake.”).
27. See, e.g., Psychiatric Solutions, 414 S.W.3d at 727–31 (Boyd, J., concurring).
Justice MASSENGALE, concurring.