First Court of Appeals in Houston
HOUSTON - The First Court of Appeals has deemed a lawsuit alleging a woman fell out of her wheelchair while being loaded into her vehicle qualifies as a health care liability claim and requires an expert report.
The litigation was brought by Sheila Foster, who sued Spring Hospital, Heights Hospital and Surgical Hospital for negligence.
A day after knee surgery, Foster was injured in a fall outside Spring Hospital’s front entrance as staff assisted her in transferring from a wheelchair to a car, according to the First Court’s Aug. 21 opinion.
During the transfer, a staff member lifted Foster’s left leg up into a SUV vehicle, leading her to shift her weight to her right leg. Foster’s right knee, which was numb and immobilized from surgery, buckled and she fell to the ground.
Foster’s knee bent backwards under her body, and she twisted her back, causing her to scream in pain. She contacted her physician, who sent her to the emergency room and later underwent back surgery.
Court records show the hospital filed a motion to dismiss Foster’s suit, arguing that her claim constitutes a health care liability claim and that she failed to serve an expert report, a requirement under the Texas Medical Liability Act.
In turn, Foster had argued that the incident occurred after she was released from medical care and during assistance by non–medical staff, whose role was to assist discharged patients to vehicles, the opinion states.
The trial court granted the hospital’s motion and Foster appealed. The Fifth Court held that the trial court did not err in dismissing Foster’s claim for failing to serve an expert report.
“Because Foster’s claim against the hospital is a HCLC controlled by Chapter 74 of the Texas Civil Practice & Remedies Code, she was required to serve the hospital with an expert report and curriculum vitae within 120 days after the hospital filed its answer,” the opinion states.
“It is undisputed that Foster did not do so. Therefore, the trial court was statutorily required to grant the hospital’s motion to dismiss her claim.”
Appeals case No. 01-24-00296-CV
