Houston Court of Appeals rebuffs pharmacy chain's bid to have suit in which plaintiff alleged he was assaulted by store employee treated as a health care liability claim subject to the strictures of the the Texas Medical Liability Act, including the expert report requirement. Walgreen Company v Charles Stewart, No. 01-17-00080-CV (Tex.App. - Houston, Nov. 30, 2017)
WALGREEN COMPANY, Appellant,
v.
CHARLES STEWART, Appellee.
Court of Appeals of Texas, First District, Houston.
Phil Griffis, Jerry D. Mason, for Walgreen Co., Appellant.
Harry C. Arthur, Charles Stewart, for Charles Stewart, Appellee.
On Appeal from the 125th District Court, Harris County, Texas, Trial Court Case No. 2015-52136.
Panel consists of Justices Higley, Massengale, and Lloyd.
MEMORANDUM OPINION
RUSSELL LLOYD, Justice.
In this interlocutory appeal, Walgreen Company appeals the trial court's order denying its motion to dismiss Charles Stewart's suit alleging claims for assault and negligence. In its sole issue, Walgreen contends that the trial court erred in denying its motion to dismiss because Stewart's claims are health care liability claims, and Stewart failed to provide an expert report and curriculum vitae as required by Chapter 74 of the Civil Practice and Remedies Code.
We affirm.
Background
On October 18, 2013, Stewart went to the Walgreen store located at 105 West Road in Houston, Texas, to purchase prescription medication. According to Stewart's pleadings, he was engaged in an "animated discussion" with the pharmacist when a Walgreen employee physically attacked him, resulting in serious injury.
On September 3, 2015, Stewart sued Walgreen for assault[1] and negligent hiring, supervision, training, and retention. His petition alleges that the Walgreen employee "acted intentionally, knowingly, or recklessly when physically attacking and making contact with [Stewart] and that the "employee's contact caused substantial bodily injury to [Stewart]." He further alleges that Walgreen was negligent in its own right for failing to properly "hire, supervise, train or retain competent employees," which resulted in Stewart's assault and subsequent injuries.
On July 11, 2016, Walgreen filed a motion to dismiss Stewart's suit for failure to serve an expert report and curriculum vitae in accordance with the Texas Medical Liability Act ("TMLA"). On July 25, 2016, Stewart filed a response to Walgreen's motion to dismiss, arguing that his claims do not constitute health care liability claims and, therefore, he was not required to serve an expert report and curriculum vitae. On July 26, 2016, Walgreen filed a reply to Stewart's response.
On January 25, 2017, the trial court denied Walgreen's motion to dismiss. This interlocutory appeal followed.
Standard of Review
Generally, we review a district court's ruling on a motion to dismiss under Chapter 74 of the Texas Civil Practices and Remedies Code for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001). However, when the issue, as in this case, involves the applicability of Chapter 74 to the plaintiff's claims and requires an interpretation of the TMLA, i.e., a question of law, we apply a de novo standard of review. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012); Methodist Hosp. v. Halat, 415 S.W.3d 517, 520 (Tex. App.-Houston [1st Dist.] 2013, no pet.).
When interpreting a statute, our primary goal is to ascertain and give effect to the intent of the legislature. See F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). Where the statutory text is clear, we presume that the words chosen are the surest guide to legislative intent. Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010). We rely upon the definitions prescribed by the legislature and any technical or particular meaning the words have acquired. See TEX. GOV'T CODE ANN. § 311.011(b) (West 2013). Otherwise, we apply the words' plain and common meanings, unless the legislature's contrary intention is apparent from the context or such a construction would lead to absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008).
Discussion
The issue before us is whether the trial court properly determined that Stewart's claims are not health care liability claims. Only health care liability claims are subject to the expert report requirement in section 74.351 of the Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2013).[2]
Section 74.001(a)(13) of the Texas Civil Practices and Remedies Code states that a "health care liability claim" is
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.
Id. § 74.001(a)(13). This definition consists of three elements: (1) the defendant is a health care provider or physician; (2) the claimant's cause of action is for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's alleged departure from accepted standards proximately caused the claimant's injury or death. Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012). The party asserting application of the TMLA carries the burden to show the causes of action asserted are health care liability claims. Reddy v. Veedell, 509 S.W.3d 435, 438 (Tex. App.-Houston [1st Dist.] 2014, pet. denied); Brown v. Villegas, 202 S.W.3d 803, 806 (Tex. App.-San Antonio 2006, no pet.). Walgreen contends that Stewart's suit satisfies all three elements.
Walgreen argues that it qualifies as a health care provider under the TMLA. Specifically, it contends that "[its] activities involved in the dispensing of prescription medication to [Stewart] resulted in this claim and, therefore, [Walgreen] is a `health care provider' for purposes of the suit."
Section 74.001(12)(A) defines "health care provider" as "any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including: . . . (iv) a pharmacist[.]" TEX. CIV. PRAC. & REM. CODE § 74.001(12)(A)(iv) (West 2015). "Pharmacist" is narrowly defined for the purposes of Chapter 74 as "one licensed under Chapter 551, Occupations Code, who, for the purposes of this chapter, performs those activities limited to the dispensing of prescription medicines which result in health care liability claims and does not include any other cause of action that may exist at common law against them, including but not limited to causes of action for the sale of mishandled or defective products." Id. § 74.001(22). Therefore, a pharmacist can be sued pursuant to Chapter 74 only for "the dispensing of prescription medicines that result in health care liability claims." Randol Mill Pharmacy v. Miller, 465 S.W.3d 612, 617 (Tex. 2015).
In this case, Stewart has sued a pharmacy, Walgreen, not the individual pharmacist employed by Walgreen. Walgreen argues that this distinction is irrelevant for purposes of the TMLA. In support of its argument, Walgreen relies on Rendon v. Walgreen, 144 F. Supp.3d 894 (N.D. Tex. 2015). There, the plaintiff sued Walgreen alleging that its pharmacist filled his prescription with the wrong medication, causing him to fall and injure himself after ingesting the medicine. See id. at 895. The court stated that the fact that the plaintiff sued a pharmacy rather than a pharmacist was immaterial because claims against both pharmacists and pharmacies are subject to the TMLA "with respect to `those activities limited to the dispensing of prescription medicines which result in health care liability claims.'" Id. at 898 (quoting Randol Mill Pharmacy, 465 S.W.3d at 619).[3] The court concluded that "[t]he only action Walgreen is alleged to have taken—through its employee, the pharmacist—is that it gave Rendon the wrong medicine. Therefore, because Rendon's claims are solely premised on Walgreen's `dispensing of prescription medicines,' Walgreen is a `health care provider' for TMLA purposes in this case." Id.
"[L]icensed pharmacists and pharmacies are health care providers for purposes of the Medical Liability Act with respect to `those activities limited to the dispensing of prescription medicines which result in health care liability claims.'" Randol Mill Pharmacy,465 S.W.3d at 619 (citing TEX. CIV. PRAC. & REM. CODE § 74.001(22)). "They are not considered health care providers with respect to `any other cause of action that may exist at common law against them, including but not limited to causes of action for the sale of mishandled or defective products.'" Randol Mill Pharmacy, 465 S.W.3d at 619. Here, Stewart's claims are not premised on the dispensing of prescription medicines. Rather, Stewart alleges that a Walgreen employee, not its pharmacist, physically assaulted Stewart while he was arguing about a prescription with the pharmacist, and that Walgreen negligently hired, supervised, trained, and retained the non-pharmacist employee who he alleges assaulted him. Stewart's claims are not based on any effect arising from Walgreen's dispensing of prescription medicines, and therefore, Walgreen is not a health care provider for TMLA purposes in this case. See id.[4]
We hold that Stewart's claims are not health care liability claims, and the trial court properly denied Walgreen's motion to dismiss Stewart's suit. Accordingly, we overrule Walgreen's issue.[5]
Conclusion
We affirm the trial court's order denying Walgreen's motion to dismiss.
[1] Stewart alleges that Walgreen is liable for its employee's conduct under the doctrine of respondeat superior.
[2] Section 74.351(a) requires a plaintiff, in cases involving a health care liability claim, to serve on the defendant one or more expert reports, on or before the 120th day after the defendant's original answer is filed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2013).
[3] In Randol Mill Pharmacy v. Miller, the Texas Supreme Court held that the pharmacy and its employees were engaged in "the dispensing of prescription medicines" when they compounded the injectable drug administered to the plaintiff by her physician which caused the plaintiff to have an adverse reaction. 465 S.W.3d 612, 621 (Tex. 2015).
[4] In Randol Mill Pharmacy, the Texas Supreme Court noted that in the typical case against a pharmacy involving claims of incorrectly filled prescriptions, courts generally agree that the TMLA applies. 465 S.W.3d at 617 (citing Walgreen Co. v. Hieger, 243 S.W.3d 183, 185-86 (Tex. App.-Houston [14th Dist.] 2007, pet. denied)(analyzing sufficiency of expert report in claim alleging pharmacy incorrectly filled prescription with wrong medication); HEB Grocery Co. v. Farenik, 243 S.W.3d 171, 173 (Tex. App.-San Antonio 2007, no pet.) (same); see also Gingrich v. Scarborough, No. 09-09-00211-CV, 2010 WL 1711067, at *5 (Tex. App.-Beaumont Apr. 29, 2010, no pet.) (mem. op.) (holding that plaintiff's expert report was insufficient as to claim that pharmacy negligently filled prescription for "excessive" medications that led to drug toxicity).
[5] Because Stewart's suit does not satisfy the first element of a health care liability claim, we need not consider the second and third elements. See Rio Grande Valley Vein Clinic, P.A. v. Guerrero, 431 S.W.3d 64, 65 (Tex. 2014) ("Under the Medical Liability Act, a health care liability claim must satisfy three elements[.]").
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| Walgreens' Notice of Interlocutory Appeal from denial by the 125th District Court |
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| Appealed Order Denying Dismissal |
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