Ordinarily we would not report on a case that appears to be a straightforward application of Chapter 74’s definition of a health care liability claim, but a recent Tyler Court of Appeals opinion caught our attention because it appears to have involved, whether deliberate or not, some artful pleading on the part of the plaintiff. The facts of South Place SNF, LP v. Hudson (No. 12-21-00150-CV) appear simple. Plaintiff’s former girlfriend worked at South Place, a skilled nursing facility. She arranged for her former boyfriend to meet her in the facility’s cafeteria for a child exchange. When exiting the room, plaintiff (the boyfriend) slipped on a puddle (which turned out to be urine that leaked from a catheter bag), fell, and was injured. Plaintiff sued the facility alleging premises liability. The facility moved to dismiss the suit under Chapter 74 for failure to serve an expert report, arguing that plaintiff’s claim was based substantially related to the provision of health care by the facility. The trial court denied the motion, and the Tyler Court of Appeals affirmed based on Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496 (Tex. 2015). SCOTX denied the facility’s petition for review.
On remand the case continued into the discovery phase. In response to the facility’s argument that it did not create and had no actual or constructive knowledge of the alleged dangerous condition, plaintiff produced an expert who detailed the facility’s alleged violations of the medical standard of care and safety standards, including “those related to nursing care, infection control, catheter use and care, and maintenance of a safe environment for facility residents.” The facility then filed a second motion to dismiss, alleging that the expert report recharacterized the plaintiff’s claim as a health care liability claim and that plaintiff had failed to timely serve the required report. The trial court again denied the motion, and the facility appealed.
The court of appeals affirmed on the basis of the law-of-the-case doctrine. Although the doctrine does not absolutely bar reconsideration of the same issue in second appeal, the court of appeals found that none of the exceptions to the doctrine applied here. The court determined that the underlying facts were precisely the same as in the first appeal, the only difference being that the parties agree that the substance on the floor was urine. This fact did not change the court’s Ross analysis, which was at any rate assumed in the first opinion. The facility moreover made the same arguments in the second appeal as it did in the first. This prompted the court of appeals to express a concern that allowing a second bite at the apple in this case would open the door to relitigating Chapter 74 dismissal issues every time new facts emerged that suggested a recharacterization of the claim. Such an outcome would violate the policy of judicial efficiency embedded in both Chapter 74 and the law-of-the-case doctrine.
In our view, the court of appeals probably got it right, but we wonder if the case opens any room for artful pleading of a premises claim in an effort to avoid the expert report requirement of Chapter 74. This case does seem to turn at least as much on whether the facility’s negligent provision of nursing care caused the plaintiff’s injury as it does the conventional premises liability claim. In any event, the opinion offers another good example of an intermediate appellate court minding the details of Chapter 74. You would think after about 20 years, there wouldn’t be any more litigation on the definition of a “health care liability claim.” But perhaps it’s just getting started.