The Dallas Court of Appeals has reversed and remanded a trial court order dismissing Plaintiff’s claims against a physician and awarding the physician attorney’s fees under Rule 91a.
Brandon Dodd v. Vishal Patel, M.D., (No. 05-23-00835-CV; July 16, 2024) stemmed from the treatment of Plaintiff, an 18 year-old patient at University Behavioral Health of Denton (UBH) with signs of confusion and psychosis. A day after being admitted, he informed nurses he felt nauseous before falling and hitting his head. Despite nurses ordering several “neuro-checks,” none were conducted. Instead, UBH transferred him to another hospital’s emergency room for “dehydration, fever, starvation, and altered mental status,” not disclosing his traumatic head injury or fall. Plaintiff sued the UBH physician for negligence, arguing Defendant’s failure to timely and competently diagnose, transfer, and inform the receiving ER of Plaintiff’s head injury left him with “life-altering and lifelong injuries.” Defendant first moved to dismiss Plaintiff’s claims under Rule 91a, citing his own affidavit which showed he had not been working the week of the incident, and thus, never saw or treated Plaintiff. He further requested $12,062.10 in attorney’s fees, to which Rule 91a entitles a prevailing party. The trial court granted both motions. Plaintiff appealed.
In an opinion by Justice Goldstein, the court of appeals reversed and remanded. The court concluded that the trial court misunderstood Rule 91a by erroneously considering Defendant’s affidavit as a basis for dismissal, since Rule 91a.6 expressly states: “the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action” (Tex. R. Civ. P. 91a.6). To determine the legal and factual sufficiency of Plaintiff’s claims, the Court applied the fair-notice pleading standard of review. Defendant asserted that the claim had (1) “no basis in fact” (Tex. R. Civ. P. 91a.1) since Plaintiff’s factual pleadings never mentioned his name, and thus, (2) “no basis in law” because he “cannot owe a physician/patient duty when it is not even alleged that [he] cared for the patient.” As to the first prong of Defendant’s argument, the court ruled that he erroneously committed “special exception practice” by denying the fact that his name was mentioned in the claim. Because Defendant conflated special exception practice with a claim warranting Rule 91a dismissal, dismissal under Rule 91a was never the correct course of action. Consequently, the court rejected his reasoning. Since his second prong (“no basis in law”) derived from the first, it too was precluded. Because Rule 91a was misapplied to this case, the Court reversed and remanded.
This case begs a lot of questions. Why, for example, was it not treated as a health care liability claim under Chapter 74? If Defendant had never treated the patient, the case presumably would have gone away by virtue of the expert report requirement (hard to get an expert to say what the doctor should have done differently if he wasn’t even there). Was it about the attorney’s fees? Those would be available to Defendant under Chapter 74 as well. In any event, we think the court of appeals got it right in that Rule 91a was designed to be the rough equivalent of Federal Rule of Civil Procedure 12(b)(6), which permits early dismissal of claims with no basis in law or fact. Here Plaintiff pleaded a negligence claim based on hospital treatment, but it looks as though he might have sued the wrong party. Rule 91a isn’t designed for that, as the court of appeals pointed out.
