1 In The Court of Appeals Ninth District of Texas at Beaumont

__________________ NO . 09

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- 00359

- CV

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IN RE SILSBEE OAKS HEALTH CARE, L.L.P.

__________________________________________________________________ Original Proceeding 58th District Court of Jefferson County, Texas Trial Cause No. A- 209436

__________________________________________________________________ MEMORANDUM OPINION Silsbee Oaks Health Care, L.L.P. (“Silsbee Oaks”) filed a petition seeking mandamus relief from an order denying its pre - trial motion to d ismiss a medical liability cla im , which was filed in the trial court by five individuals collectively referred to in this original proceeding as either the Real Parties in Interest or as the Smarts. 1 In a motion for temporary

1 See Tex. R. App. P. 52. The Real Parties in Interest are: (1) Patricia Smart, Individually and as Representative of the Estate of Bonnie Smart, (2) Joe Smart, (3) Larry Dale Smart, (4) Otis Von Smart Sr., and (5) Roy G. Smart2 relief, Silsbee Oaks asks that this Court stay all trial court proceedings, including discovery , while this original proceeding is before this Court

. 2 Af t er reviewing the mandamus petition and record, w e deny the mandamus petition and the motion for temporary relief. 3 When the Smarts filed their original petition, they attached an expert report to their petition to comply with the requirements of the Texas Medical Liability Act (TMLA)

. 4 When Silsbee Oaks answered, it filed a general denial and an affirmative defense, a defense that it based

on section 74.155 of the Civil Practice and Remedies Code. 5 Section 74.155 (“Liability of Physician, Health Care Providers, and First Responders During Pandemic”) creates a n affirmative defense from liability “ for injury arising from care, treatment, or failure to provide care

2 See id . 52.10(a). 3 See id. 52. 7 (a) . At the Relator’s request, we take judicial notice of the clerk’s record and reporter’s record filed for its attempted accelerated appeal fr om the order denying Silsbee Oaks ’ motion to dismiss. See generally Silsbee Oaks Health Care, L.L.P . v. Smart , No. 09

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- 00249

- CV, 2023 WL 6318051 (Tex. App.

— Beaumont Sept. 28, 2023, no pet. h.) (mem. op.). 4 See Tex

. Civ

. Prac. & Rem. Code Ann. § 74

. 351

. 5 Id . § 74.155.3 or treatment relating to or impacted by a pandemic disease or a disaster declaration related to a pandemic disease. ” 6 Around five weeks later, in a motion to dismiss, S ilsbee Oaks
argu ed that because it had produced evidence supporting “immunity” under CPRC section 74.155, it was entitled to recover attorneys ’ fees and to have the suit dismissed under CPRC section 74.351(c) . According to the motion, the Smarts had failed to meet their burden to pr o duce evidence in response to the evidence produced by Silsbee Oaks supporting its pan demic defense under section 74.155 to show that Bonnie Smart ’s injuries and death were caused by Silsbee Oaks ’ intentional, willful , or wanton misconduct. Four months after that, Silsbee Oaks supplem e n t ed its motion , arguing that an affirmative defense under CPRC section 74.155 is raised and determined before any discovery is allowed in a case against a healthcare provider like Silsbee Oaks

. And eight months later, Silsbee Oaks filed another supplement al motion in which it arg ued the case against it should be dismissed because , based on the testimony of Bonnie Smart ’ s medical providers, Bonnie was not suspected of having a COVID

6 See id . § 74.155 ( the Pandemic Liability Statute).4 19 infection and did not qualify for transfer to a hospital when Silsbee Oaks discharged Bonnie to home care. That said, Silsbee Oaks’ motion the n states that “additional uncontroverted evidence demonstrates the Covid

- pand e mic was the producing cause of her injury

- C ovi d

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- death 16 days after discharge from Silsbee Oaks.” Asserting the evidence tying Bonnie’s death to the C OVID

- 19 pandemic was uncontroverted, Silsbee Oaks concluded that the plaintiff’s claims against Silsbee Oaks were “barred under § 74.155(b) subsectio n (1) and (2).” The trial court disagreed with Silsbee Oaks and denied its motion to dismiss. Silsbee Oaks responded by filing an interlocutory accelerated appeal , and the Smarts challenged our jurisdiction to consider the appeal. In resolving the jurisdi ctional challenge, w e concluded that CPRC section 74.155 operates as an affirmative defense rather than as part of the sufficiency criteria that applies to evaluating expert reports under CPRC section 74.351 (b)

. 7 Since no statute expressly authorized an appeal

7 Silsbee Oaks Health Care, L.L.P. , 2023 WL 6318051, at * 3

.5 from the interlocutory order, in September 2023, we dismissed Silsbee Oaks’ accelerated appeal for lack of jurisdiction. 8 Relying on its claim that section 74.155 required the plaintiff to produce an exper t report to rebut its pandemic defense before the plaintiff could proceed with the suit, Silsbee Oaks argues in its petition that the legislature intended to make the process that involves screening lawsuits that don’t have merit against healthcare defendants

— which requires healthcare liability plaintiffs to file expert reports and is spelled
out in section 74.351

— apply should a defendant assert a claim that the patient was injured or died as a result of a pandemic disease based on the def ense the legislature created in section 74.155. According to Silsbee Oaks , the trial court abused its discretion in failing to reconcile sections 74.155 and 74.351 properly to require the Smarts to produce a report from an expert to negate Silsbee Oaks’ de fense that Bonnie Smart died of a pandemic disease, COVID

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. 9 Nonetheless, Silsbee Oaks claims that section 74.155 (the section creating the pandemic defense that applies to healthcare providers) and section 74.351 (which creates the

8 Id . at *4. 9 See Tex. Civ. Prac. & Rem. Code Ann. § 74.155(g).6 expert report requir ements applicable to healthcare

- liability claims) should be interpreted as creating an additional reporting burden on the plaintiff to produce a rebuttal expert report if the healthcare provider
asserts a “pandemic defense ” under section 74.155. 10 Silsbee Oaks argues that the trial court abused its discretion when it refused to accept Silsbee Oaks’ novel interpretation of the healthcare liability statute. We may grant mandamus relief to correct a trial court’s abuse of discretion when an appeal pro vides an inadequate remedy. 11 An abuse of discretion occurs when a trial court’s ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. 12 We determine the adequacy of an appellate remedy by balan cing the benefits of mandamus review against the detriments. 13

10 See id. §§ 74.155(a)(3), 74.351. 11 In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135

- 36 (Tex. 2004) (orig. proceeding); Walker v. Packer , 827 S.W.2d 833, 839

- 40 (Tex. 1992) (orig. proceeding). 12 In re Nationwide Ins. Co. of Am ., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding). 13 In re Essex Ins. Co ., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am ., 148 S.W.3d at 136.7 We have review ed the mandamus petition , the appendix submitted with the petition, and the clerk’s and reporter’s records filed in the accelerated appeal. After reviewing the records, and after considering the
argu m ents presented in the mandamus petition and the aut h orit ies cited in the petition , we concl ude Silsbee Oaks has failed to establish that an abuse of discretion occurred. Balancing the benefits of mandamus review against the detriments and considering Silsbee Oaks ’ argument that the trial court’s ruling deprive s Silsbee Oaks and the healthcare providers it employs o f the ir rights under the TMLA , we conclude Silsbee Oaks has not established that it lacks an ade quate remedy by appeal. We deny the petition for mandamus and the motion for temporary relief. PETITION DENIED. PER CURIAM Submitted on D ecember 13, 2023 Opinion Delivered December 14, 2023 Before Golemon , C.J., Horton and Johnson , JJ.