In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-21-00034-CV
TIFFINE VANDERBILT, APPELLANT
V.
UNIVERSITY MEDICAL CENTER AND ICU NURSE DOE IN HIS/HER INDIVIDUALLY AND OFFICIAL CAPACITY, APPELLEES
On Appeal from the 237th District Court Lubbock County, Texas, Trial Court No. 2020-538,422, Honorable Les Hatch, Presiding
July 14, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
Appellant, Tiffine Vanderbilt, appeals from the district court’s order dismissing her
lawsuit against Appellees, University Medical Center and Nurse Doe, for failing to timely
serve an expert report as required by section 74.351(a) of the Texas Civil Practice and
Remedies Code.1 In three issues, Vanderbilt asserts the trial court abused its discretion
1 TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). Throughout the remainder of this opinion, we will cite provisions of the Texas Civil Practice and Remedies Code as “section ___,” “§___,” and “Chapter ___.” when it dismissed (1) her claims despite pleadings to the contrary, (2) her negligence
claim filed pursuant to section 101.021 of the Texas Tort Claims Act, and that (3)
application of the doctrine of res ipsa loquitur obviates the need for an expert report. We
affirm.
Background
In January 2020, Vanderbilt filed her original petition alleging that after giving birth
by Caesarian section at University Medical Center, she was transferred to its Intensive
Care Unit for recovery. While in the ICU, she requested pain relief for her lower back.
Nurse Doe allegedly “brought [her] heat pads, whose use has been discontinued because
of these [sic] pads caused severe burns when they were used on other patients, and
placed them [on Vanderbilt].” Appellant alleged that after the heating pads were applied
to her back, she suffered second degree burns and permanent disfigurement. Her
petition categorized her claims as (1) a negligence action against UMC “pursuant to
Texas Tort Claims Act § 101.021” and § 101.001, (2) a healthcare liability claim against
UMC pursuant to the Texas Medical Liability Act, and (3) a negligence claim against
Nurse Doe.
In August 2020, the trial court granted Vanderbilt’s motion to extend the statutory
deadline within which she was required to designate expert witnesses and serve expert
reports. Appellant’s motion characterized her lawsuit as a “healthcare liability case” and
sought an extension for serving expert reports until September 15, 2020, due to the
COVID-19 pandemic. On September 18, UMC filed a motion to dismiss Appellant’s suit
pursuant to Section 74.351(a) after she failed to meet the September 15 deadline.
2 Appellant responded that such deadline had been preempted by the trial court’s
scheduling order that required expert reports be served no later than September 29, 2020.
Per an agreed order negotiated by the parties and subsequent court order, a new deadline
for Appellant’s serving expert reports was set for October 20, 2020, and claims against
Nurse Doe were dismissed without prejudice.2 The agreed order expressly provided the
October 20 deadline would not be extended.
Nevertheless, on October 30, 2020, Appellant again moved to extend the deadline
to designate experts and serve expert reports, claiming her designated expert submitted
an unsatisfactory report. UMC filed a second motion to dismiss Vanderbilt’s claims for
failing to serve a timely expert report. On January 7, 2021, the trial court held a hearing
on UMC’s motion. Appellant, through her attorney, asserted that despite her failure to
meet the deadline, she should be allowed to proceed on a “simple negligence” claim
under sections 101.021 and 101.001 of the Texas Tort Claims Act.3 Appellant
acknowledged that whether to dismiss her healthcare liability claim was left to the trial
court’s discretion, but urged that her common law negligence claims should remain viable
2 Appellant does not challenge this order dismissing Nurse Doe from the suit. Accordingly, the
dismissal of claims against Nurse Doe is affirmed. See Harris v. Gen. Motors Corp., 924 S.W.2d 187, 188 (Tex. App.—San Antonio 1996, writ denied) (“Generally speaking, an appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment. If an appellant does not, then we must affirm the ruling or judgment.”) (citations omitted).
3 See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (waiving sovereign immunity for governmental units for personal injury claims “caused by the . . . negligence of an employee acting within his scope of employment if . . . personal injury . . . so caused by a condition or use of tangible personal . . . property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.”). Section 101.001 provides definitions of terms used in the Texas Tort Claims Act. We point out that the Texas Tort Claims Act is not a substantive right or cause of action; “it merely waives sovereign immunity as a bar to a suit that would not otherwise exist.” City of Tyler v. Likes, 962 S.W. 2d 489, 494 (Tex. 1997).
3 even without a report. On January 22, 2021, the trial court dismissed all of Appellant’s
claims with prejudice.
Analysis
Appellant argues that her claims brought under the Texas Tort Claims Act require
no expert report. “When a claimant asserts a healthcare-liability claim against a
governmental entity that is a healthcare provider, the claimant must comply with both the
Medical Liability Act and the Texas Tort Claims Act.” Univ. of Tex. Med. Branch at
Galveston v. Tatum, 389 S.W.3d 457, 461 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
See also Tinnard v. Dall. Cty. Hosp. Dist., No. 05-13-01161-CV, 2015 Tex. App. LEXIS
627, at *8 (Tex. App.—Dallas Jan. 22, 2015, no pet.). We therefore examine whether the
substance of Appellant’s claims assert healthcare liability under the TMLA.
We review de novo whether a particular cause of action constitutes a healthcare
liability claim. Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 757 (Tex. 2014). In
doing so, we consider the entire record, including the pleadings, motions, responses, and
relevant evidence properly admitted. See Loaisiga v. Cerda, 379 S.W.3d 248, 258–59
(Tex. 2012). The party moving for dismissal bears the burden to prove that the cause of
action is a healthcare liability claim. See Reddy v. Veedell, 509 S.W.3d 435, 438 (Tex.
App.—Houston [1st Dist.] 2014, pet. denied).
There is no dispute that UMC and Nurse Doe are “health care providers” under the
TMLA. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12). The TMLA defines the
phrase “health care liability claim” as follows:
Free access — add to your briefcase to read the full text and ask questions with AI
In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-21-00034-CV
TIFFINE VANDERBILT, APPELLANT
V.
UNIVERSITY MEDICAL CENTER AND ICU NURSE DOE IN HIS/HER INDIVIDUALLY AND OFFICIAL CAPACITY, APPELLEES
On Appeal from the 237th District Court Lubbock County, Texas, Trial Court No. 2020-538,422, Honorable Les Hatch, Presiding
July 14, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
Appellant, Tiffine Vanderbilt, appeals from the district court’s order dismissing her
lawsuit against Appellees, University Medical Center and Nurse Doe, for failing to timely
serve an expert report as required by section 74.351(a) of the Texas Civil Practice and
Remedies Code.1 In three issues, Vanderbilt asserts the trial court abused its discretion
1 TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). Throughout the remainder of this opinion, we will cite provisions of the Texas Civil Practice and Remedies Code as “section ___,” “§___,” and “Chapter ___.” when it dismissed (1) her claims despite pleadings to the contrary, (2) her negligence
claim filed pursuant to section 101.021 of the Texas Tort Claims Act, and that (3)
application of the doctrine of res ipsa loquitur obviates the need for an expert report. We
affirm.
Background
In January 2020, Vanderbilt filed her original petition alleging that after giving birth
by Caesarian section at University Medical Center, she was transferred to its Intensive
Care Unit for recovery. While in the ICU, she requested pain relief for her lower back.
Nurse Doe allegedly “brought [her] heat pads, whose use has been discontinued because
of these [sic] pads caused severe burns when they were used on other patients, and
placed them [on Vanderbilt].” Appellant alleged that after the heating pads were applied
to her back, she suffered second degree burns and permanent disfigurement. Her
petition categorized her claims as (1) a negligence action against UMC “pursuant to
Texas Tort Claims Act § 101.021” and § 101.001, (2) a healthcare liability claim against
UMC pursuant to the Texas Medical Liability Act, and (3) a negligence claim against
Nurse Doe.
In August 2020, the trial court granted Vanderbilt’s motion to extend the statutory
deadline within which she was required to designate expert witnesses and serve expert
reports. Appellant’s motion characterized her lawsuit as a “healthcare liability case” and
sought an extension for serving expert reports until September 15, 2020, due to the
COVID-19 pandemic. On September 18, UMC filed a motion to dismiss Appellant’s suit
pursuant to Section 74.351(a) after she failed to meet the September 15 deadline.
2 Appellant responded that such deadline had been preempted by the trial court’s
scheduling order that required expert reports be served no later than September 29, 2020.
Per an agreed order negotiated by the parties and subsequent court order, a new deadline
for Appellant’s serving expert reports was set for October 20, 2020, and claims against
Nurse Doe were dismissed without prejudice.2 The agreed order expressly provided the
October 20 deadline would not be extended.
Nevertheless, on October 30, 2020, Appellant again moved to extend the deadline
to designate experts and serve expert reports, claiming her designated expert submitted
an unsatisfactory report. UMC filed a second motion to dismiss Vanderbilt’s claims for
failing to serve a timely expert report. On January 7, 2021, the trial court held a hearing
on UMC’s motion. Appellant, through her attorney, asserted that despite her failure to
meet the deadline, she should be allowed to proceed on a “simple negligence” claim
under sections 101.021 and 101.001 of the Texas Tort Claims Act.3 Appellant
acknowledged that whether to dismiss her healthcare liability claim was left to the trial
court’s discretion, but urged that her common law negligence claims should remain viable
2 Appellant does not challenge this order dismissing Nurse Doe from the suit. Accordingly, the
dismissal of claims against Nurse Doe is affirmed. See Harris v. Gen. Motors Corp., 924 S.W.2d 187, 188 (Tex. App.—San Antonio 1996, writ denied) (“Generally speaking, an appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment. If an appellant does not, then we must affirm the ruling or judgment.”) (citations omitted).
3 See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (waiving sovereign immunity for governmental units for personal injury claims “caused by the . . . negligence of an employee acting within his scope of employment if . . . personal injury . . . so caused by a condition or use of tangible personal . . . property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.”). Section 101.001 provides definitions of terms used in the Texas Tort Claims Act. We point out that the Texas Tort Claims Act is not a substantive right or cause of action; “it merely waives sovereign immunity as a bar to a suit that would not otherwise exist.” City of Tyler v. Likes, 962 S.W. 2d 489, 494 (Tex. 1997).
3 even without a report. On January 22, 2021, the trial court dismissed all of Appellant’s
claims with prejudice.
Analysis
Appellant argues that her claims brought under the Texas Tort Claims Act require
no expert report. “When a claimant asserts a healthcare-liability claim against a
governmental entity that is a healthcare provider, the claimant must comply with both the
Medical Liability Act and the Texas Tort Claims Act.” Univ. of Tex. Med. Branch at
Galveston v. Tatum, 389 S.W.3d 457, 461 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
See also Tinnard v. Dall. Cty. Hosp. Dist., No. 05-13-01161-CV, 2015 Tex. App. LEXIS
627, at *8 (Tex. App.—Dallas Jan. 22, 2015, no pet.). We therefore examine whether the
substance of Appellant’s claims assert healthcare liability under the TMLA.
We review de novo whether a particular cause of action constitutes a healthcare
liability claim. Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 757 (Tex. 2014). In
doing so, we consider the entire record, including the pleadings, motions, responses, and
relevant evidence properly admitted. See Loaisiga v. Cerda, 379 S.W.3d 248, 258–59
(Tex. 2012). The party moving for dismissal bears the burden to prove that the cause of
action is a healthcare liability claim. See Reddy v. Veedell, 509 S.W.3d 435, 438 (Tex.
App.—Houston [1st Dist.] 2014, pet. denied).
There is no dispute that UMC and Nurse Doe are “health care providers” under the
TMLA. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12). The TMLA defines the
phrase “health care liability claim” as follows:
4 “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 or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract. The term does not include a cause of action described by Section 406.033(a) or 408.001(b), Labor Code, against an employer by an employee or the employee’s surviving spouse or heir.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). Per the TMLA’s definition, the
Legislature has made clear that “health care liability claim” expressly includes those
causes of action against health care providers for “other claimed departure from accepted
standards of medical care, or health care, . . . which proximately results in injury to or
death of a claimant . . . .” Id.
The factual substance underlying all of her causes of action is this: following
Appellant’s transfer to the ICU after surgery, she requested relief from back pain due to
an epidural. Whereupon Nurse Doe allegedly applied heating pads owned by UMC,
causing burns and disfigurement. The act of applying the allegedly defective heating pads
to Appellant’s back was an inseparable part of the rendition of medical services. See
Turtle Healthcare Group v. Linan, 337 S.W.3d 865, 868 (Tex. 2011) (per curiam) (holding
allegation that health care provider failed to provide patient with properly functioning
equipment, namely, a ventilator, constitutes a health care liability claim under the TMLA).
Appellant conceded as much in her original petition, motions for extension of time to
provide expert reports, and counsel’s representations at the hearing on UMC’s motion
that this case “is a healthcare liability case.”
5 Despite framing her claims under alternative theories, these claims necessarily fall
under the TMLA’s scope because they are based on the same facts. Yamada v. Friend,
335 S.W.3d 192, 193 (Tex. 2010). “[P]ermitting a claimant to maintain both health care
liability claims and different types of claims based on the same underlying factual scenario
‘would open the door to splicing health care liability claims into a multitude of other causes
of action with standards of care, damages, and procedures contrary to the Legislature’s
explicit requirements.’” Linan, 337 S.W.3d at 868 (quoting Diversicare Gen. Partner, Inc.
v. Rubio, 185 S.W.3d 842, 854 (Tex. 2005)). “When the underlying facts [of a tort claim]
are encompassed by provisions of the TMLA in regard to a defendant, then all claims
against that defendant based on those facts must be brought as healthcare liability
claims.” Yamada, 335 S.W.3d at 193–94. We hold that all of Appellant’s claims constitute
healthcare liability claims and are subject to the expert report requirements of section
74.351(a).4
Appellant received two extensions for serving her expert report. The second
extension was premised on an order agreed to by the parties that Appellant would be
granted no further extensions beyond October 20, 2020, for complying with the TMLA’s
report requirements. An agreed order is contractual in nature; in effect, it is both a written
agreement between the parties and an adjudication. See Patel v. City of Everman, 179
S.W.3d 1, 8 (Tex. App.—Tyler 2004, pet. denied). When Appellant failed to serve an
expert report by the agreed upon deadline, the trial court granted UMC’s subsequent
4 Contrary to Vanderbilt’s contention that an expert report is not required because res ipsa loquitur
is applicable in this case, “res ipsa loquitur [is] not an exception to the expert report requirement under TEX. CIV. PRAC. & REM. CODE ANN. § 74.351.” Merry v. Wilson, 498 S.W.3d 270, 273, 275–77 (Tex. App.—Fort Worth 2016, no pet.) (collected cases cited therein).
6 motion to dismiss. Under the circumstances, we cannot say the trial court abused its
discretion by dismissing Vanderbilt’s TMLA claims.
Conclusion
We affirm the district court’s order of dismissal.
Lawrence M. Doss Justice