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DEFENDANT HCA HOUSTON HEALTHCARE KINGWOOD’S MOTION TO DISMISS WITH PREJUDICE FOR PLAINTIFF’S FAILURE TO SERVE AN EXPERT REPORT

Pursuant to §74.351 of the Texas Civil Practice and Remedies Code, Defendant and Counter-Plaintiff HCA Houston Healthcare Kingwood (hereinafter referred to as “HCA” or “Defendant”) files this Motion to Dismiss and Request for Attorney’s Fees and Costs for Failure to Serve an Expert Report and would show the court as follows:

I.       BASIS FOR DISMISSAL

Plaintiff’s claims are health care liability claims subject to the requirements of Chapter 74 of the Texas Civil Practice and Remedies Code.1

Accordingly, under Chapter 74, Plaintiff was required to file an expert report by March 17, 2023.2

Plaintiff did not timely serve any report and, as a result, Defendant is entitled to dismissal of Plaintiff’s claims with prejudice and an award of costs and attorney’s fees.3

II.    FACTUAL BACKGROUND

1.      On October 18, 2022, Plaintiff filed this lawsuit which involves allegations of medical negligence.

2.      Plaintiff served Defendant on November 1, 2022.

1 See Plaintiff’s First Amended Petition (“Petition”), currently on file with the Court.

2 See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. see also Defendant’s November 17, 2022, Original Answer (“Answer”), currently on file with the Court.

3 Id.

3.      On November 17, 2022, Defendant filed its Answer. Therefore, as to Defendant an expert report was due on March 17, 2023.4

4.      On February 9, 2023, Plaintiff filed an Amended Petition (“Petition”), adding allegations of conspiracy and breach of fiduciary duty related to alleged withholding of evidence by Defendant’s attorneys.5

5.      On February 19, 2023, Plaintiff filed an Opposed First Motion for Extension of Time to Provide Plaintiff’s Expert Report.6

6.      On March 1, 2023, Defendant responded that an extension may be granted only by written agreement of the parties, or to allow a claimant to cure a report’s deficiencies and that Plaintiff had not shown that either circumstance was applicable to this case.7

7.      On March 15, 2023, the Court denied Plaintiff’s opposed First Motion for Extension of Time to Provide Plaintiff’s Expert Report.8

8.      On March 17, 2023, Plaintiff did not serve an expert report on Defendant and no report has been served as of the date of this Motion.

III.             ARGUMENTS AND AUTHORITIES

A.                 Plaintiff’s Claims Are Health Care Liability Claims, Governed by Chapter 74 of the Texas Civil Practice & Remedies Code.

Pursuant to the Texas Civil Practice and Remedies Code § 74.001, a cause of action against a health care provider for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care proximately resulting in injury or death of a claimant, whether the claimant’s cause of action sounds in tort or contract, is a health care liability claim.9

It is apparent from the face of Plaintiff’s Petition that his suit qualifies as a health care liability claim as it is a cause of action against a health care provider claiming a departure from accepted

standards of medical care, or health care, or safety or professional or administrative services directly related to health care.10

In determining whether a plaintiff’s claim is a health care liability claim courts are not bound by the plaintiff’s characterization of the claims asserted and instead looks at whether the facts underlying the claim could support a health care liability claim.11 “Claims premised on facts that could support claims against a physician or health care provider for departures from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care are HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach of any of those standards.”12

The Texas Supreme Court has also held that the TMLA’s scope is so broad that when, as here, a claim is brought against a health care provider based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement, a rebuttable presumption arises that it is a health care liability claim for purposes of the Medical Liability Act and the Plaintiff bears the burden of rebutting that presumption.13 In this context, it is apparent that Plaintiff’s claims are health care liability claims.

1.                  Plaintiff’s claim that HCA Nurses failed to provide the legal duty of care necessary is a health care liability claim.

Plaintiff expressly alleges in his Amended Petition that, “HCA’s nursing staff verbally and physically abused the Plaintiff and Affiant and his family visitors rather than provide the legal

duty of care necessary.”14

Defendant and its nurses are healthcare providers.15

A cause of action against a healthcare provider for a claimed departure from accepted standards of medical care or of healthcare is a health care liability claim.16

The Court need look no further to determine that Plaintiff has alleged a health care liability claim which requires him to furnish a statutorily compliant expert report.

2.                  Plaintiff’s Claim that Defendant failed to protect his safety is a health care liability claim.

Plaintiff further alleges that Defendant “failed to protect the safety of its Patient and confidentiality of Plaintiff Mark Burke’s medical records,” because the hospital “either knowingly allowed an ‘Imposter Doctor’ to access the Plaintiff and Affiant’s medical records…or there was a major security and confidentiality of records breach within HCA Kingwood Hospital.”17

Claims that a hospital facility failed to protect the safety of a patient are health care liability claims.18

Even if Plaintiff’s claims were solely related to the alleged improper access of his medical records, those claims would still be health care liability claims as the Texas Supreme Court has expressly held that the creation and maintenance of accurate health records is a professional or administrative service directly related to health care and the Texas Administrative Code provides that sufficient “maintenance” requires that records be kept confidential.19

3. Plaintiff’s Claim that the alleged “imposter Doctor,” is not an HCA employee, is irrelevant in determining whether his claim is a health care liability claim because he has only asserted claims against HCA.

Plaintiff has pled in the alternative that his claims regarding an alleged “imposter doctor” are not subject to Chapter 74’s expert reporting requirement because his pleadings identify this unknown individual as a “non-employee.”20

First, as stated above, the Court is not bound by Plaintiff’s categorization of his claims and instead looks to the underlying facts to determine if a claim is a health care liability claim.

However, even assuming arguendo that Plaintiff’s claims regarding an imposter physician and his employment status, or lack thereof, were true, his claim regarding that individual would still be a health care liability claim because it was asserted against HCA.

Stated differently, because Plaintiff alleges that HCA breached the standard of care and compromised his safety by allegedly allowing an imposter to treat him and access his medical records, his claim is related to patient safety and, as stated above, patient safety claims are health care liability claims which require an expert report.21

Accordingly, because Plaintiff’s claims are all health care liability claims, he was obligated to meet the requirements of Chapter 74 of the Texas Civil Practice and Remedies Code, specifically the requirement to serve an expert report and curriculum vitae in support of his claims within 120 days of the Defendant’s Answer.22

B. Chapter 74 Mandates that Plaintiffs in Health Care Liability Suits Serve a Chapter 74 Expert Report within 120 Days of Defendant’s Answer.

Pursuant to Texas Civil Practice and Remedies Code § 74.351(a), “in a health care liability claim, a claimant shall, not later than the 120th day after the date of each defendant’s original

answer is filed, serve on that party or the party’s attorney one or more expert reports, with curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.”23

Compliance with this subsection of Chapter 74 is mandatory, not discretionary.24

C. Plaintiff Failed to Timely Serve an Expert Report, Necessitating Dismissal of His Claims with Prejudice.

Where no expert report is served within 120 days of a health care defendant filing an original answer, the Legislature has refused trial courts the discretion to deny motions to dismiss or grant extensions of time.25

Furthermore, where a trial court refuses to grant dismissal on the basis that a health care claimant has not filed the required report, the failure of the trial court may be “immediately appealed.”26

Defendant filed its Original Answer on November 17, 2022.27 Plaintiff’s statutory Chapter 74 expert report was due on March 17, 2023.28

Plaintiff failed to serve a required expert report by this deadline.

Accordingly, Plaintiff’s suit and all corresponding causes of action should be dismissed with prejudice to refiling.

D. Defendant is Entitled to Mandatory Attorney’s Fees and Court Costs Under Chapter 74.

When a case is dismissed for a plaintiff’s failure to serve proper expert reports, the court’s order shall award reasonable attorney’s fees and court costs to the affected health care provider.29

Defendant attaches hereto an affidavit of defense counsel in support of Defendant’s reasonable attorney’s fees and court costs.30

IV.             CONCLUSION

For the reasons set forth herein, Defendant respectfully requests this Court grant its Motion to Dismiss and Request for Attorney’s Fees and Costs for Failure to Serve an Expert Report, dismiss Plaintiff’s claims with prejudice to refiling, and award Defendant its attorney’s fees and costs. Defendant further requests all other relief, both at law and in equity, to which it may be justly entitled.

Respectfully submitted,

SERPE ANDREWS, PLLC

By: /s/ Ben E. Hamel
Nicole Andrews
Texas Bar No. 00792335
nandrews@serpeandrews.com

Benjamin E. Hamel
Texas Bar No. 24103198
bhamel@serpeandrews.com

Madison J. Addicks
Texas Bar No. 24132017
maddicks@serpeandrews.com

America Tower
2929 Allen Parkway, Suite 1600
Houston, TX 77019
(713) 452-4400 – Telephone
(713) 452-4499 – Facsimile

ATTORNEYS FOR DEFENDANT/COUNTER- PLAINTIFF, HCA HOUSTON HEALTHCARE KINGWOOD