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).