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Hector v. Christus Health Gulf Coast8/18/2005
Appellant, Alzada Hector, was injured when she fell from an operating table during surgery to remove cancer from her ear. Ms. Hector brought suit against the hospital and the surgeon. The trial court dismissed Ms. Hector's case against each defendant for her failure to provide an expert report as required by the Texas Medical Liability and Insurance Improvement Act. Ms. Hector brings this appeal, claiming that the trial court abused its discretion in dismissing her suit. We affirm.
Background
Ms. Hector underwent surgery at St. Joseph's Hospital ("St. Joseph's") in June of 2001 to remove a cancerous tumor from her left ear. At the time, she was 71 years old. During the surgery, while appellant was under general anesthesia, she was rotated so that the physician, Dr. Canaan Harris ("Harris"), could better examine her. While she was being rotated, Ms. Hector fell off the table, suffering a cut to her right brow area that necessitated eight stitches. The operation was completed and Ms. Hector recovered from the surgery. Tests performed subsequent to the surgery showed no neurological or spinal damage resulting from her fall from the table.
Ms. Hector filed suit against Harris and St. Joseph's on October 24, 2002, but did not file an expert report within 180 days as required by section 13.01(d)(1) of former Texas Revised Civil Statutes article 4590i, also known as the Texas Medical Liability and Insurance Improvement Act ("4590i"). Pursuant to section 13.01(e)(3) of 4590i, the trial court dismissed her claims against Dr. Harris on October 14, 2003, and her claims against St. Joseph's on April 16, 2004. Ms. Hector brings this appeal, claiming that an expert report was not necessary.
Whether 4590i Applies
In her first issue, Ms. Hector claims that 4590i does not apply to her case because her case is one of ordinary negligence (as opposed to medical malpractice); therefore, an expert report was not necessary. As a result, she asserts, the trial court abused its discretion in dismissing her claim for her failure to file a 4590i-required expert report. We disagree.
We review a dismissal under 4590i under an abuse of discretion standard; however, to the extent the resolution of this issue requires interpretation of the statute, we review under a de novo standard. See Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App.--Houston [14th Dist.] 2004, no pet.). Section 1.03 of 4590i defines "health care liability claim" as follows:
"Health care liability claim" means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract.
In determining whether a particular case presents a health care liability claim, we must examine the underlying nature of the allegations; in doing so, we are not bound by the party's characterization of the claims. Buck, 130 S.W.3d at 290-91. A cause of action will generally be considered a health care liability claim if it is based on a breach of a standard of care applicable to health care providers. Id. The complained-of act or omission must have been an inseparable part of the rendition of medical services. Id.
Here, it is abundantly clear that 4590i applies to Ms. Hector's claims. Her claims against St. Joseph's, a health care provider, and Harris, a physician, were based on their alleged departure from accepted standards of safety, i.e., not letting a patient fall from an operating table. These alleged departures proxim
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