The San Antonio Court of Appeals has ruled that a claim arising from injuries sustained when an ophthalmology practice’s phoropter fell off the exam room wall onto the patient is a health care liability claim under Chapter 74, CPRC.
Sharyn Dacbert v. Medical Center Ophthalmology Associates, L.L.P. and Michael Singer (No. 04-22-00097-CV; delivered November 22, 2023) arose from a 2018 incident in which, during plaintiff’s routine eye exam, the phoropter fell and injured her while the technician was moving it into place. She brought suit for premises liability and gross negligence but did not file the § 74.351 expert report required for a health care liability claim. After waiting nearly six months, defendants moved to dismiss and sought their attorney’s fees. Plaintiff responded that her claim was not a health care liability claim, and that even if it was, defendants waived their right to dismissal by not objecting to her failure to serve the report or asserting § 74.351 as an affirmative defense. A Bexar County district court split the baby, dismissing the case with prejudice but refusing to award attorney’s fees. Plaintiff appealed.
In an opinion by Justice Chapa, the court of appeals affirmed the trial court’s dismissal of the case but remanded for a determination of defendants’ attorney’s fees. The sole issue before the court was whether plaintiff’s claim constitutes a “health care liability claim” under § 74.001(a)(13). Plaintiff argued that her claim involved the condition of the wall to which the phoropter was attached, not the equipment or treatment itself. Defendants countered that, in accordance with SCOTX precedent, a claim is a health care liability claim “if it is against a physician or health care provider and is based on facts implicating the defendant’s conduct during the course of a patient’s [medical] care, treatment, or confinement” (citing Collin Creek Assisted Living Ctr., Inc. v. Faber, 671 S.W.3d 879 (Tex. 2023)). Defendants argued further that plaintiff failed to overcome the presumption because, applying the factors laid out by SCOTX for determining whether there is a “substantive nexus between the safety standards allegedly violated and the provision of health” care in Ross v. St. Luke’s Episcopal Hospital, 496 S.W.3d 496 (Tex. 2015), plaintiff’s claims clearly implicated a health care provider’s duty to ensure patient safety when providing health care. Here the injury occurred when plaintiff was receiving care as a patient in an exam room with equipment typically used in providing health care. These facts invoked the provider’s duty to adhere to standards for safe exam rooms and eye exam equipment. Finally, the gravamen of plaintiff’s claim is that the defendants “failed to take the action necessary to comply with safety-related requirements concerning the exam room and eye exam equipment.”
The court then determined that defendants had not waived their § 74.351 motion to dismiss, nor were they required to plead it as an affirmative defense. Nothing in the statute establishes a deadline by which a defendant may make the motion, and here defendant did nothing to indicate “an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right” (citation omitted). As SCOTX held in Jernigan v. Langley, 111 S.W.3d 153 (Tex. 2003)(per curiam), “[t]he mere fact that a defendant waits to file a motion for dismissal under section [74.351] is insufficient to establish waiver unless the defendant’s silence or inaction shows an intent to yield the right to dismissal.” Finally, noting that § 74.351(b) requires a court that dismisses a health care liability claim under that section to award attorney’s fees and costs of court incurred by the provider, the court remanded for a determination of defendants’ fees and costs.
Again, as we always like to point out in cases such as this one, so-called tort reform is an ongoing process that is only as effective as the courts that are called upon to apply it to specific fact situations. Here the court of appeals applied the statute and SCOTX precedent to the letter and reached the right result.
