We use cookies to better understand how you use our site and to improve your experience by personalizing content. Please review our updated Privacy Policy and Terms of Use. If you accept the use of cookies, please click the "I accept" button.I acceptI declineX
Skip navigational links

Texas Appeals Court Affirms Dismissal Of Healthcare Liability Claim Against Nursing Center


HLD, v. 30, n. 12 (December 2002)

Texas Appeals Court Affirms Dismissal Of Healthcare Liability Claim Against Nursing Center

Margaret Torres Wilson was a resident of the Austin Nursing Center, Inc. (Center). In 1998, her leg was broken while she was in a wheelchair at the Center, and Wilson and her son (collectively Wilsons) filed a negligence suit against the Center. They also notified the Center of a potential healthcare liability claim pursuant to the Medical Liability and Insurance Improvement Act (MLIIA). However, the Wilsons did not file an expert's report, which was required by the MLIIA. The Center moved to dismiss the 1998 lawsuit, but before the motion was heard, the Wilsons filed a notice of non-suit. Without hearing the Center's motion, the trial court ordered that the case be dismissed without prejudice. Margaret Wilson died later that year and, in May 2000, her estate filed a lawsuit against the Center alleging that various acts of medical negligence were significant contributing factors to her death. The allegations in the 1998 lawsuit were not included in the 2000 lawsuit. The Center moved to dismiss the 2000 lawsuit under � 13.01(e) of the MLIIA. The trial court determined that the non-suit in the 1998 lawsuit was "ineffective against the Center's first dismissal motion" because � 13.01(e)(3) "provides for a dismissal with prejudice as a sanction for failure to file an expert's report." Thus, the trial court determined that the prior order acknowledging the non-suit was interlocutory and the motion to dismiss the 1998 lawsuit was still pending. The trial court dismissed the 1998 lawsuit with prejudice and denied the motion to dismiss for the 2000 lawsuit. The Wilsons appealed the dismissal of the 1998 lawsuit.

The Texas Court of Appeals affirmed the ruling of the trial court. First, the appeals court held that, because the non-suit was ineffective, the 1998 lawsuit was still pending and that the trial court had jurisdiction to rule on the motion to dismiss. The court noted that Rule 162 of the Texas R. Civ. Proc. "expressly limits the right to non-suit an entire cause when the defendant has pending a claim for affirmative relief or sanctions." The court also noted that both � 13.01(e) and Rule 162 require that the adverse party affirmatively request sanctions, and that the Center did not expressly seek a dismissal with prejudice. However, the court determined that the Center's motion was sufficient because it quoted the language of � 13.01(e) in the body of the motion and requested dismissal "in its entirety." The court concluded that the wording in the Center's motion was sufficient to give notice to the Wilsons that the Center was seeking a dismissal with prejudice.

Second, the court held that the Wilsons' claims in the 1998 lawsuit constituted a "health care liability claim" within the MLIIA. The court noted that a "health care liability claim" is defined as "a cause of action against a heath care provider or physician for treatment, lack of treatment or other claimed departure from the accepted standards of medical care or health care or safety." The court looked to the underlying nature of the acts or omissions alleged and determined that the claims in the 1998 lawsuit were within the MLIIA because "Mrs. Wilson's presence in the wheelchair while at the Center . . . was an inseparable part of the health care services provided by the Center." The court further determined that a patient's safety while in a wheelchair was "central to the professional services which the Center rendered to Mrs. Wilson." Thus, the court concluded the Wilsons were required to file an expert's report within 180 days of filing the 1998 lawsuit, and the failure to do so subjected them to sanctions under the MLIIA.

Wilson v. Austin Nursing Ctr., No. 03-00-00800-CV, 2002 WL 31118311 (Tex. Ct. App. Sept. 26, 2002) (13 pages).

© 2018 American Health Lawyers Association. All rights reserved. 1620 Eye Street NW, 6th Floor, Washington, DC 20006-4010 P. 202-833-1100 F. 202-833-1105