In yet another case of murky dealings in the Dallas Court of Appeals, SCOTX has accepted review of split en bancdecision involving whether a plaintiff’s wrongful death claim comes under Chapter 74 and thus requires an expert report.
Collin Creek Assisted Living Center, Inc. d/b/a Dayspring Assisted Living Community v. Christine Faber and as Heir at Law of Carolina “Millie” Smith, Deceased (No. 21-0470) arose from an accident in which the deceased, a resident at Dayspring assisted living facility, was injured when she fell from a wheeled walker that had caught in a seam in a concrete sidewalk outside the facility. The deceased’s daughter, the plaintiff, requested a facility employee to assist her in getting her 88-year-old mother into her vehicle. As the employee pushed the walker between the facility and the parking lot, the walker’s wheel hit the seam, throwing the deceased to the ground. She died a week later. Plaintiff sued Dayspring asserting negligence, negligent hiring, premises liability, and bystander claims. She alleged that Dayspring failed to care for the deceased’s safety, to adequately supervise and/or train its employees, and to enact rules and regulations promoting the safety of transporting residents. Dayspring responded that the plaintiff’s claims constituted health care liability claims under Chapter 74 and moved to dismiss for failure to file an expert report. Plaintiff amended her pleadings to remove the negligence causes of action and all references to Dayspring’s duty to provide safe transport, leaving only the premises liability and bystander claims.
The trial court dismissed the plaintiff’s claims, and in a per curiam opinion, a three-judge panel of the court of appeals affirmed. Justice Carlyle wrote a concurring opinion urging the Legislature to “rethink” the scope of Chapter 74, but otherwise agreed that the plaintiff’s underlying claims invoked Chapter 74 under SCOTX precedent. Acting en banc, the court of appeals granted rehearing and in a divided opinion reversed the panel decision. The majority, over five dissents, held that the plaintiff’s claim was “a simple, run-of-the-mill premises liability case, where the instrumentality causing the injury was broken concrete.” Justice Reichek’s dissent reminded the majority that SCOTX has repeatedly admonished courts not to allow the plaintiff to evade Chapter 74 by “artful pleading.” As Justice Reichek wrote, “long-standing case law does not permit [a court to] completely ignore the critical role of the health care provider and the provision of health care in the events giving rise to Smith’s fatal injuries.” Yet ignore it the majority did.
This case just doesn’t look close to us. Six years ago the same court of appeals held that an employee of an assisted living facility who failed to secure a wheelchair-bound patient’s lap belt arose from the facility’s duty to provide safe transport and its failure to protect its residents and properly train its employees. Consequently, the plaintiff’s claim was a health care liability claim and required an expert report. Here the majority attempted to distinguish that case by saying that it involved an “active negligence claim(s) based on failure of medical personnel to secure individuals.” But, as Dayspring’s petition for review points, characterizing a negligence claim as “active” or not has nothing to do with Chapter 74. The appropriate standard, as established by SCOTX, is whether “[C]laims premised on facts that couldsupport claims against a physician or health care provider for departures from accepted standards of medical care, health care, or safety . . . are HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach of . . . those standards.” [See Rogers v. Bagley, 623 S.W.3d 343 (Tex. 2021)]
Here the plaintiff originally asserted claims based on Dayspring’s departure from standard safety practices, training, and supervision. The accident occurred when a Dayspring employee was assisting in the transport of a resident, one the services provided to residents under the facility’s care. The underlying claim is not based on the condition of the public sidewalk, but on the facility’s adherence to a standard of care for patient safety. We applaud the Court for accepting review to correct an egregious case of a court of appeals simply not following the law. We can only wonder by the en banc court thought it necessary to intervene and reverse the panel decision. But this is not the first time it has happened. It appears to us that this case is part of a disturbing pattern, and we hope somebody with the appropriate authority looks into. We can understand the occasional deviation from the norm, but something more is going on in this court.
