Summary
holding that patient's claim against hospital for injuries suffered when he slipped and fell on lubricating gel that had fallen on the floor during or immediately after his bladder scan was a health care liability claim because it stemmed from nurse's performance of doctor-ordered scan and her failure to properly dispose of gel used during procedure and the prescribed procedure and its performance were directly related to patient's treatment
Summary of this case from Weatherford Tex. Hosp. Co. v. SmartOpinion
No. 10–0524.
2011-10-21
ST. DAVID'S HEALTHCARE PARTNERSHIP, L.P., LLP d/b/a St. David's Hospital and St. David's Community Health Foundation, Petitioners,v.Genaro ESPARZA, Jr., Respondent.
J. Stephen Dillawn, Missy K. Atwood, Germer Gertz Beaman & Brown LLP, Austin, TX, for Petitioner.Aaron Felton Allison, Allison & Ward LLP, Austin, TX, for Respondent.
J. Stephen Dillawn, Missy K. Atwood, Germer Gertz Beaman & Brown LLP, Austin, TX, for Petitioner.Aaron Felton Allison, Allison & Ward LLP, Austin, TX, for Respondent.
In this case, we decide whether a patient's claim against a hospital for injuries suffered when he slipped and fell on a lubricating gel that fell to the floor of his hospital room during or immediately after a bladder scan is a health care liability claim. We hold that it is. Accordingly, we reverse the court of appeals' judgment and remand the case to the trial court with instructions to dismiss Esparza's claims and for further proceedings consistent with this opinion.
Genaro Esparza was admitted to St. David's Hospital for acute kidney failure and his doctor ordered bladder scans (ultrasounds of the bladder). On the day of the incident, the attending nurse allegedly used “copious amounts of lubricating gel” for the scan. After the nurse left, Esparza got up to use the bathroom in his hospital room and slipped on the gel that fell on the floor during or after the scan. He sued the hospital asserting negligence and premises liability. Esparza did not file an expert report, and the hospital filed a motion to dismiss under section 74.351 of the Code. See Tex. Civ. Prac. & Rem.Code § 74.351(a), (b) (requiring expert report within 120 days of filing suit and mandating dismissal if no report is served). The trial court denied the hospital's motion and the court of appeals affirmed. 315 S.W.3d 601, 606. The court of appeals relied on our now-withdrawn opinion in Marks v. St. Luke's Episcopal Hospital in holding that Esparza's claims were not health care liability claims. No. 07–0783, 2009 WL 2667801 (Tex. Aug. 28, 2009), withdrawn, 319 S.W.3d 658 (Tex.2010). The court also cited Harris Methodist Fort Worth v. Ollie for the same proposition. 270 S.W.3d 720, 726–27 (Tex.App.-Fort Worth 2008), vacated, 342 S.W.3d 525 (Tex.2011) (per curiam).
In this Court, the hospital argues that the court of appeals erred by holding litigation over a dangerous condition caused by a health care provider—a nurse —during the provision of health care—performance a bladder scan