Summary
holding that father's claims against mental health center for negligence and assault arising from an employee's allegedly inappropriate contact with the father's child who had been admitted to and was staying at the center were health care liability claims within the scope of the MLIIA
Summary of this case from Heart Ctr. of N. Tex. v. S.W.Opinion
No. 04-06-00256-CV
Delivered and Filed: September 20, 2006.
Appeal from the 37th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CI-05336, Honorable Barbara H. Nellermoe, Judge Presiding.
The Honorable David Berchelmann is the presiding judge of the 37th Judicial District Court. However, the Honorable Barbara Nellermoe, presiding judge of the 45th Judicial District Court, signed the order denying appellant's motion to dismiss that is at issue in this appeal.
Reversed and Rendered; Remanded.
Sitting: Catherine STONE, Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
This is an appeal from the trial court's order denying appellant's motion to dismiss appellees' claims on the grounds that appellees failed to file an expert report as required under the Medical Liability Insurance Improvement Act ("MLIIA"). We reverse and render judgment dismissing appellees' claims, and remand for further proceedings.
In June 2004, J.O. was admitted into the protective custody of Southwest Mental Center ("Southwest") pursuant to a probate court order. J.O. was nine years old. At some point during her stay, J.O. was transferred from one room to another room at the facility. A Southwest employee, Joe Martinez, assisted J.O. with the transfer. He was not accompanied by another Southwest employee. Allegedly, while J.O. was putting her personal belongings into a closet, Martinez touched her in an inappropriate manner. J.O.'s father Pablo Olivo filed suit against Martinez and Southwest in his individual capacity and as next friend of J.O. Southwest moved to dismiss the suit on the grounds that appellees did not file an expert report under MLIIA. The trial court denied the motion.
Martinez has not been served with citation.
On appeal, appellees argue the trial court properly denied the motion to dismiss because their claims were not brought pursuant to MLIIA and expert testimony is not required to establish their claims. In light of the Texas Supreme Court's recent conclusion in Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005), we disagree.
A cause of action is a health care liability claim under MLIIA "if it is based on a claimed departure from an accepted standard of medical care, health care, or safety of the patient, whether the action sounds in tort or contract." Diversicare, 185 S.W.3d at 848. "A cause of action alleges a departure from accepted standards of medical care or health care if the act or omission complained of is an inseparable part of the rendition of medical services." Id. To determine whether a cause of action is a health care liability claim that falls within the scope of MLIIA, "we examine the underlying nature of the claim and are not bound by the form of the pleading." Id. at 847.
In their petition, appellees alleged Southwest was negligent "in failing to keep and maintain a proper procedure to prevent [Martinez] from being alone with the minor Plaintiff"; and "in failing to provide a female employee to assist minor Plaintiff in her relocation within [Southwest's] premises." In the alternative, appellees pled that J.O. was physically assaulted and physically abused while a resident at Southwest's facility.
We conclude that "the gravamen of [appellees'] complaint is the alleged failure of [Southwest] to implement adequate policies to care for, supervise, and protect its residents. . . ." See id. at 854. Appellees' factual allegations involve "[p]rofessional supervision, monitoring, and protection of the patient population." See id. at 855. Accordingly, these allegations are based on a claimed departure from an accepted standard of professional or administrative services, as well as "necessarily implicate the accepted standards of safety under the MLIIA." See id. at 854-55. Therefore, appellees' claims are encompassed within the scope of MLIIA, and appellees were required to timely serve an expert report.
CONCLUSION
We sustain Southwest's issue on appeal and reverse the trial court's order. We render judgment dismissing appellees' claims with prejudice. The cause is remanded for consideration of Southwest's request for attorney's fees.