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## NO. 12

- 21

- 00025

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

EAST TEXAS SUPPORT SERVICES, INC. , APPELLANT

V.
JUNE BROWN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF JAMES BROWN, DECEASED , APPELLEE §

§

§ APPEAL FROM THE 4 TH

JUDICIAL DISTRICT COURT

RUSK COUNTY, TEXAS

MEMORANDUM OPINION East Texas Support Services, Inc. (ETSS) appeals the trial court’s order denying its motion to dismiss June Brown’s suit against it . We affirm.

B ACKGROUND ETSS is a company that contracts with M edical Transportation Management, Inc. (MTM)
to deliver non

- emergency medical transportation service s. Clients who need transportation

contact MTM to arrange a pickup or drop off. MTM then contacts a local company like ETSS, who provides a van to transpo rt the client. ETSS does not receive any medical information about
its clients. And in the case of an emergency, ETSS personnel are instructe d to call 911 rather
than render treatment. On June 21, 2018, ETSS assigned one of its drivers, Evelyn Jernigan, to pick up and drop off James and June Brown. Jernigan drove the Browns to a doctor’s appointment in Longview, Texas. After the appointment, the Browns contacted ETSS, and Jernigan returned to transport them back to their home in Overton, Texas.2 Duri ng the ride, James requested Jernigan stop at the Overton Pharmacy to pick up prescriptions. Jernig an agreed to take the Browns to the pharmac y; however, she stated that she could not wait for them to retrieve their prescriptions and they would need to fi nd another way
home. The Browns retrieved their prescriptions and proceeded home on their motorize d wheelchairs. To get home, the Browns had to cross railroad tracks. As the Browns were crossing the railroad tracks, James became stuck in the tracks whil e the crossing arms came
down. June was able to clear the tracks , but James was struck and killed by the oncoming train. On October 30, 2018, June filed a lawsuit against ETSS alleging that it was negligent in hiring, training, and supervising Jernigan. 1 She further alleges that ETSS was grossly negligent. On October 16, 2020, ETSS filed a motion t o dismiss June’s claims for failure to file a n expert report under the Texas Medical Liability Act (TMLA). ETSS asserted that it is a “health care provider” under the TMLA and that June’s claims constitute “health care liability claims.” In response, Jun e urged that neither ETSS nor MTM meet the de finition of “health care provider” under the TMLA. Following a hearing, the trial court denied ETSS’s motion to dismiss. This appeal followed.

H EALTH C ARE L IABILITY C LAIM In its sole issue, ETSS argues the tr ial court erred in denying its motion to dis miss because it is a health care provider and Brown’s claims are health care liability claims.
Standard of Review
W e review a trial court ’ s decision on a motion to dismiss a health care liability claim for

an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 875 (Tex. 2001); Cage v. Methodist Hosp. , 470 S.W.3d 596, 600 (T ex. App.

— Houston [1st Dist.] 2015, no pet.). That said, whether a claim constitutes a health care liability claim is a question of law that we review de novo. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems , 575 S.W.3d 357, 363 (Tex. 2019). In determ ining whether a claim constitutes a health care liability claim, we consider the entire record, incl uding the pleadings, motions, and responses , and relevant evidence properly admitted. Loaisiga v. Cerda , 379 S.W.3d 248, 258 (Tex. 2012).

1 June also sued Union Pacific Railroad Corporation and Uni on Pacifi c Railroad Company, and they are not parties to this appeal.3 Applicable Law
Un der the TMLA, a plaintiff whose claim constitutes a health care liability claim must serve an expert report, with a curriculum vitae for the e xpert whose opinion is offered, on a defendant physician or health care provider within 120 days of the filing of an answer by the
defendant. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 74.351(a) (West 2017 ) ; see also Weems , 575
S.W.3d at 360

– 61. If the plaintiff fails to timely serve an expert report, then on the motion of a defendant physician or health care provider, the trial court must dismiss the plaintiff ’ s health care liability claim with prejudice. T EX

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. & R EM

. C ODE A NN

. § 74.351(b); see also W eems , 575 S.W.3d at 360

– 61. The TMLA defines a “[h]ealth care liability claim” as:

a cause of action against a h ealth care provider or physician for treatment, lack of treatment, or other claimed departure from accept ed standards of medical care, or heal th care, or safety or professional or administrative services directly related to health care, which proximately r esults in injury to or death of a claimant, whether the claimant ’ s claim or cause of action sounds in tort or contract.

T EX

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. & R E M

. C ODE A NN

. § 74.001(a)(13) ( West 2017) ; see also Ross v. St. Luke ’ s Episcopal Hosp. , 462 S.W.3d 496, 501 (Tex. 2 015). Thus, we consider three basic elements in determining whether a plaintiff ’ s claim constitutes a he alth care liability claim: (1) whethe r the defendant is a physician or health care provider; (2) whether the claim at issue concerns treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety, or profess ional or administrative services dire ctly related to health care; and (3)
whether the defendant ’ s act or omission complained of proximately caused the injury to the plaintiff. Rio Grande Valley Vein Clinic, P.A. v. Guerrero , 431 S.W.3d 64, 65 (Tex. 2014); see T EX

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. & R EM

. C ODE A NN

. § 74.001(a)(13). The TMLA creates a rebuttable presumption that a plaintiff ’ s claim is a health care liability claim if it is brought against a physician or health care provider and “is based on facts implicating the de fendant ’ s conduct during the cours e of a patient ’ s care, treatment, or confinement.” Loaisiga , 379 S.W.3d at 256. Here, June did not serve an exper t report on ETSS at any time, so if Brown’s claim s against ETSS constitute health care liability claim s , her suit must be dismissed. See Weem s , 575
S.W.3d at 360

– 61, 363 (because plaintiff did not serve expert report, if plaintiff asserted health
care lia bility claim, suit must be dismissed with prejudice).4 Health Care Provider ETSS argues that it constitutes a health care provider under the T MLA because its services are necessary for its customers’ medical treatment. Additionally, it argues that it is a n agent or independent contractor for a health care provider, MTM

. In respon se, June urges that neither ETSS nor MTM are licensed by the State of Texas to provide healthcare.
The TMLA states in pertinent part :

(A) “Health care provider” means 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: (i) a registered nurse; (ii) a dentist; (iii) a podiatrist; (iv) a pharmacist; (v) a chiropractor; (vi) an optometrist; (vii) a health care institution; or (viii) a health care collaborative certified und er Chapter 848, Insurance Code.
(B) The term includes: (i) an officer, director, shareholder, member, partner, ma nager, owner, or affiliate of a health care provider or physician; and (ii) an employee, independent contractor, or agent of a health care p rovider or physician acting in the course and scope of the employment or contractual relationship.

T EX

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. & R EM

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. § 74.001(a)(12)

. The list of people and entities in the
TMLA ’ s definition of a “health care provider” is not exclusive, a nd a person or entity not specifically enumerated may still constitute a health care provider under the TMLA. See Skloss v. Perez , No. 01

- 08

- 00484

- CV, 2009 WL 40438, at *3

– 6 (Tex. App.

— Housto n [1st Dist.] Jan. 8, 2009, no pet.) (mem. op.) (“The list of he alth care providers in section 74.001(a)(12) does not specifically include a[ ] [licensed professional counselor]; however, the list is non

- exhaustive.”);
Christus Health v. Beal , 240 S.W.3d 2 82, 286

– 87 (Tex. App.

— Houston [1st Dist.] 2007, no pet.), abroga ted on other grounds by Tex. W. Oaks Hosp., LP v. Williams , 371 S.W.3d 171 (Tex. 2012); see also Strobel v. Marlow , 341 S.W.3d 470, 474

– 75 (Tex. App.

— Dallas 2011, no pet.); House of Yahweh v. Johnson , 289 S.W.3d 345, 351 (Tex. App.

— Eastland 2009, no pet.). The moving party has the burden of presenting evidence that the State of Texas has certified it as a healthcare p rovider. See Beal , 240 S.W.3d at 286

- 87; Brown v. Villegas , 202 S.W.3d 803, 8 06 (Tex. App.

— San Antonio 2006, no pet.).5 ETSS urges that it meets the definition of “healthcare provider” because its transportation services are essential or necessary for t he provision of healthcare. Specifically, it contends that it is a “501(c)(3) tax

- exempt charitable organization that provides non

- emergency medical transportation to patients to and from their medical appointments.” However, ETSS has not provided any li cense, certification, registration, or charter establishing its status as a he alth care provider. Therefore, the record is devoid of evidence that ETSS is “duly licensed, certified or registered or chartered by the State of Texas to provide healthcare.” See T EX

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. § 74.001(a)(12)(A). Furthermore, ETSS’ s argument might find stronger support if the TMLA ’ s “health car e provider” definition had referred to a person “licensed

. . . by the State of Texas to provide products or servi ces that have some relationship to health care. ” See Verticor, Ltd. v. Wood , 509 S.W.3d 488, 494 (Tex. App.

— Austin 2015, pet. denied). But t he Legislature did not write the statute that way

— instead, it required that a “health care provider” be “licensed

. . . by the
State of Texas to provide health care. ” Id .; T EX

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. § 74.001(a)(12) (emphasis added)

. Th is phrasing i ndicates that ETSS’s license , which the record contains no
evidence of , must authorize it “to provide” something t hat is in itself “health care.” See id. ; see also Brown , 202 S.W.3d at 8 06 (defendant laboratory and pathologist provided no evidence they

we re licensed healthcare provider s) ; Doctors Data, Inc. v. Stemp , No. 03

- 12

- 00079

- CV, 2014
WL 38 0 9742, at *3 (Tex. A pp.

— Austin July 31, 2014, pet. denied) (mem. op.) (defendant laboratory w as not licensed to provide health care); Obstetrical & Gynecological Assocs., P.A. v.
Hardin , No. 01

- 13

- 00236

- CV, 2013 WL 6047595, at *3 (Tex. App.

— Houston [1st Dist.] Nov. 14, 2013, no pet.) (mem. op.) ( defendant provided no evidence i t was licensed to pr ovide health care). Alternatively, ETSS urges that it is an agent of MTM, which i t argues i s a health care provider . The only evidence to support this assertion is the “Medical Tr ansportation Services Agreement,” which lists MTM as “a Missouri corporat ion.” ETSS provided no evidence that MTM is licensed, registered, ce rtified, or chartered by the State of Texas to provide health care.
See T EX

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. § 74.001(a) (12). Because ETSS failed to prove that it is a health care provider for which an expert report is required, we do not address whether J une ’s claims are health care liability claims. See T EX

. R.
A PP

. P. 47.1. No expert report was required because ther e is no e vidence that ETSS is a licensed6 health care provider. Accordingly, we hold that the trial court did not abuse its discretion by
d enying ETSS’s motion to dismiss. We overrule ETSS’s sole issue.

D ISPOSITION Having overruled ETSS’s sole issue, w e affirm the trial court’s judgment.

J AMES T. W ORTHEN Chief Justice

Opinion delivered August 18 , 2021. Panel consisted of Worthen, C.J. , Hoyle, J., and Neeley, J.7 

## COURT OF APPEALS

TWEL FTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 18 , 20 21

NO. 12

- 21

- 00025

- CV

EAST TEXAS SUPPORT SERVICES, IN C. , Appellant V. JUNE BROWN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF JAMES BROWN, DECEASED , Appellee

Appeal from the 4th Dis trict Court
of Rusk County, Texas (Tr.Ct.No. 2018

- 267 ) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore O RDERED, ADJUDGED and DECREED that the judgment
of the cou rt below be in all things affirmed ; all costs of this appeal a re assessed against Appellant, EAST TEXAS SUP PORT SERVICES, INC. , and that this decision be certified to
the court below for observance.
James T. Worthen , Chief Justice

. Panel consisted of Worthen, C.J., Hoyle, J. , and Neeley, J.