In a medical negligence case of involving the scope of the statutory definition of a health care liability claim, the Dallas Court of Appeals has reversed a trial court order denying a hospice providers motion to dismiss negligence and wrongful death claims for failure to serve an expert report.
Peaceful Touch Hospice and Palliative Care, LLC, Pamela Ekor-Tarh Eyambe and Aisha Noble, M.D. v. Shannon Deann Houser, Individually and as Independent Administrator of the Estate of Charles Wesley Abbott (No. 05-24-01369-CV; August 25, 2025) arose from the death of Charles Abbott, who died as a result of fentanyl toxicity while his wife, Linda Abbott, was receiving in-home hospice care from Peaceful Touch. Shannon Houser, the deceased’s daughter, sued Peaceful Touch, its director Eyambe, and its medical director Noble, alleging negligence in supervising a controlled substance they had prescribed to the decedent’s wife and in failing to call 911 or get medical assistance for the decedent. Plaintiff further alleged that after decedent’s death, Peaceful Touch, Eyambe, and Dr. Noble, and a Peaceful Touch employee created false documents, including fabricating a DNR and Alzheimer’s diagnosis, lying on his death certificate, and reporting false information to the police. (A police investigation discovered the false documents and a grand jury indicted Eyambe and Dr. Noble for tampering/fabricating physical evidence.) Defendants Peaceful Touch and Dr. Noble filed a motion to dismiss on the basis that Plaintiff failed to serve an expert report in compliance with § 74.351, CPRC. The trial court denied the motion. Defendants sought interlocutory relief.
In an opinion by Justice Lee, the court of appeals affirmed in part and reversed and remanded in part. First, the court determined that Plaintiff’s negligence and wrongful death claims constituted Chapter 74 health care liability claims. Since Plaintiff sued a health care provider “based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement” (i.e., Abbott’s treatment after the overdose), it created a rebuttable presumption that those claims came within Chapter 74. Looking to Plaintiff’s pleadings, the court observed that her claims “center[ed] on Peaceful Touch and Eyambe’s provision of hospice services, during the course of which Linda was prescribed Fentanyl patches, which they were allegedly ‘negligent in supervising’ so that Charles was able to access and use the patches.” When Charles did so and suffered a fatal overdose, Peaceful Touch and Eyambe “failed to adequately respond …. Thus, even if Charles was not a hospice patient—which the parties dispute—[Plaintiff’s] claims at the very least allege conduct occurring during the course of the care and treatment of Linda.”
The burden then shifted to Plaintiff to rebut the presumption. Plaintiff argued that her claims did not concern “treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care,” whereas Defendants argued that they centered on alleged departures from health care standards. The court agreed with Defendants, holding that Plaintiff’s claims that Defendants failed to properly supervise a controlled substance and to adequately respond to Abbott’s overdose alleged “acts performed or that should have been performed for, to, or on behalf of a patient during the patient’s medical care of treatment” (citations omitted). Even though Charles was not the patient, Plaintiff’s claims “involve[d], at the very least, the patient-physician relationship between the defendants and Linda Abbott,” that is, “drugs prescribed for Linda and ‘acts performed or that should have been performed’ in relation to the drugs.” Because Plaintiff failed to submit the required expert report, the trial court erred in failing to dismiss with prejudice Plaintiff’s negligence and wrongful death claims.
The court then turned to whether Plaintiff’s fraud and civil conspiracy claims arising from the falsification of documents fell under Chapter 74 as well. Defendants argued that these claims constituted HCLCs because the allegedly fabricated records and documents were “professional or administrative services directly related to health care.” The court disagreed, reasoning that “we cannot conclude the alleged fabrication of medical records are directly related to health care of a patient because, for purposes of [Plaintiff’s] claims, Charles was not a patient. Nor can we conclude the alleged falsification of records was directly related to the health care of Linda….The alleged falsification of records related to Charles does not have an ‘uninterrupted’ relationship with Linda’s health care.” The court further determined that Plaintiff’s conspiracy and fraud claims did not allege a departure from accepted health care standards because they didn’t involve a patient-physician relationship in the first place. In other words, fabricating records after the fact to make it look like Charles was a patient with a certain diagnosis and a DNR had nothing to do with Linda’s care or treatment. The trial court thus did not err in denying Defendants’ motion to dismiss these claims.
As to Defendants’ claim for attorney’s fees, § 74.351 provides that a health care provider must be awarded reasonable attorney fees if Plaintiff fails to provide an expert report. As a result, Peaceful Touch and Eyambe were entitled to reimbursement for expenses incurred from the litigation of the negligence and wrongful death claims. The court remanded those claims to the trial court for further proceedings. (During the appeal, Dr. Noble settled with Plaintiff, so she was dismissed from the case.)
TCJL Research Intern Satchel Williams researched and prepared the first draft of this article.
