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

__________________ NO . 09

- 23

- 00249

- CV

__________________ SILSBEE OAKS HEALTH CARE, L.L.P., Appellant V. PATRICIA SMART, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF BONNIE SMART, ET AL , Appellee s

__________________________________________________________________ On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A- 209436

__________________________________________________________________ MEMORANDUM OPINION Silsbee Oaks Health Care, L.L.P. filed an interlocutory appeal from the trial court’s denial of its combined motion to dismiss and motion for summary judgment , a motion that relied on section 74.155 of the Texas Civil Practice and Remedies Code (CPRC) to claim the plaintiffs’ suit should be dismissed with prejudice. See Tex. Civ. Prac. & Rem. Code Ann.2 § 74.155 (Supp.). CPRC section 74.1 55 provides physicians, health care providers , and first responders with an affirmative defense if a patient’s injury results from a “pandemic disease,” which is defined in section 71.155 as “an infecti ous disease that spreads to a significant portion of the p o p ulatio n of the United States that poses a substantial risk of a significant number of human fatalities, il l n e sses, or permanent long

term disabilities.” Id. For convenience, we will refer to section 74.155 as the Pandemic Liability Statute

. The issue raised by the appellees’ motion to dismiss is whether the legislature extended an appellate court ’ s jurisdiction to an interlocutory order from a ruling denying a motion based on the affirmative defense created by the Pandemic Liability Statute

. We conclude the answer is no. The order from which Silsbee Oaks appeals is an unappealable interlocutory order because it is not one of the types of interlocutory orders covered by the statute that gives appellate courts jurisdiction over a trial court’s interlocutory rul ing, CPRC section 51.014

. Id. § 51.0143 (West & Supp.) (creating limited appellate jurisdiction over seventeen categories of interlocutory orders)

. 1 Background In September 2020, Bonnie Smart , who was 78 years old, died after being hospitalized for twelve days and treated for pneumonia and a respiratory infection. But before Bonnie was hospitalized , for about three weeks, Bonnie was admitted to Silsbee Oaks to rehabilitate from a
surgery that she had undergone at Baptist Hospital to correct a fracture she had suffered to her thigh

. On September 4, Bonnie left Silsbee Oaks in a private car, apparently after her treating physician authorized Silsbee Oaks to discharge Bonnie to her home. Two d ays later, Bonnie was taken to the emergency room at Baptist Hospital , where she was diagnosed with an infection and intubated. A ccording to Bonnie’s death certificate, her death was caused by COVID

- 19 , pneumonia due to viral illness,

1 See Act of May 28, 2021, 87th Leg., R.S., ch. 167, § 1, sec. 51.014(a), and ch. 528, § 1, sec. 51.014(a), 2021 Tex. Sess. Law Serv. 355 , 10 51 (West) (to be codified at Tex. Civ. Prac. & Rem. Cod e Ann. § 51.014(a)) (adding Tex

. Civ

. Prac

. & Rem

. Code Ann. § § 74.155; 51.014(a) (15); 148.001

- .005)

.4 Methicillin

- resistant Staphylococcus aureus (MRSA), and atrial fibrillation. In March 2022, Patricia Smart, Individually and as representative of the Estate of Bonnie Smart, Joe Smart, Larry Dale Smart, Otis Von Smart Sr

. , and Roy Gene Smart (collectively, the Smarts) sued Silsbee Oaks Health Care, L.L.P. , alleging that the treatment Bonnie received there fell below the standard of care that applies to a nursing facility . The Smarts also sued Dr. Sama P. Quaraishi, M.D., alleging the medical treatment Bonnie received from her was below the standard of care that applies to family physician s . 2 In general, t he Smarts’ petition alleges that Bonnie’s healthcare providers negligent ly failed to recognize that Bonnie was at an increased risk of developing pneumonia due to her preexisting condition of chronic obstructive lung disease . That said, the petition never mentions Covid , and it doesn’t expressly assert the defendants were negligen t in exposing, treating, or failing to treat Bonnie for COVID

- 19

. 3

2 Dr. Quaraishi is not a party to this appeal. 3 However, we note that the plaintiffs’ expert report, which is attached to the Plaintiffs’ Original Petition, is critical of Silsbee Oaks for its failure to “test a patient for COVID

- 19 upon discharge who is5 In a pretrial motion invoking the Pandemic Lia bility Statute , Silsbee Oaks moved to dismiss the Smarts ’ suit. See id . § 74.155. I n its motion, Silsbee Oaks didn’t specifically challenge the adequacy of the

“ expert report ” the Smarts filed with their Original Petition to show they had compl ied with the Texas Medical Liability Act. See Tex. Civ. Prac. & Rem. Code Ann. 74.351. Instead, Silsbee Oaks argued it had a right to prevail on its motion because it was undisputed that Covid was a producing cause of Bonnie’s injury and death based on the report of the Smarts’ expert witness. Additionally, Silsbee Oaks argued that because it was a nursing facility that was following the pandemic disaster directives in complying with disc harg e orders that required a facility to discharge a patient to the patient’s home, its summary

- judgment evidence established it was immune from liability for any failure to transfer Bonnie to a hospital rather than discharging her to her home

. According t o Silsbee Oaks, th e directives it was following during the pandemic required beds in hospitals “to be reserved for seriously ill patients

. ” The directives, according to Silsbee Oaks, required it to

exhibiting wheezing and sudden oxygen desaturatio n.” The plaintiffs’ expert report also attribute s Bonnie’s pneumonia to a COVID infection.6 discharge patients (like Bonnie) who need ed long

- term care to their homes “to continue [their care] under home health care therapy.” In July 2023 , the trial court denied Silsbee Oaks’ “Motion to Dismiss Pursuant to Section 74.155 To Pandemic Immunity (filed May 16, 2022), as supplemented by its Supplement to Its Section 74.155 Motion to Dismiss (filed September 6, 2022), and as supplemented by its 2d Supplement to its CPRC Section 74.15 5 Motion to Dismiss and/or Motion for Summary Judgment (filed on June 29, 2023). ” Two days later, Silsbee Oaks filed its notice of accelerated appeal

. Analysis After Silsbee Oaks appealed, the Smarts moved to dismiss the appeal . In their motion, the Smar ts argue the order that Silsbee Oaks has appealed is an interlocutory order that is unappealable because it is not among the interlocutory orders over which the appellate courts have jurisdiction. That is, the order doesn’t fall within the seventeen catego ries of interlocutory orders over which appellate courts have jurisdiction under CPRC section 5 1 .0 1 4. To be sure, the Pandemic Liability Statute ( CPRC section 74.155 ) is not specifically mentioned anywhere in CPRC 5 1 .0 1 4. Still, Silsbee7 Oaks argues the Court should imply that the legislature intended to allow a healthcare provider to file an interlocutory appeal from a ruling on motions denying a healthcare provider’s claim when the appeal is based on a motion relying on the Pandemic Liab ility Statute . According
to Silsbee Oaks, it makes sense to infer a right to interlocutory appeal was intended because the Pandemic Liability Statute creates a defense that changes the causation standard when it applies, and the Smarts’ expert report shows it will apply to the trial of the ir claims . Based on that argument, Silsbee Oaks concludes the legislature must have intended to grant appellate courts jurisdiction over ruling s on motions denying a healthcare provider’s motion relying on an affirmative c ausation defense when the patient’s injury or death was caused by a pandemic disease

. Stated another way, Si l sbee Oaks suggest s that its Pandemic Liability Statute defense necessarily implicate s the sufficiency of the report filed by the Smarts’ expert as relate d to the explanation provided by the Smarts’ expert about what caused Bonnie’s injury and her death. And because CPRC 51.014(a)(9) allows appellate courts to exercise jurisdiction over a tr ial court’s denial of motion s claiming that an “expert report” doesn’t comply with the requirements of the Texas Medical8 Liability Act under CP R C section 74.351, Silsbee Oaks concludes that appellate jurisdiction must also exist to allow appellate courts t o consider challenges to interlocutory rulings on the denial of motions for summary judgment that rely on CPRC 74.155, the Pandemic Liability Statute. See i d

. § 51.014 (a) (9) (providing that a person may appeal from an interlocutory order that “denies all o r part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken f rom an order granting an ex tension under Section 74.351”). Turning to the text of the Pandemic Liability Statute, when the legislature created the affirmative defense that applies to injuries or deaths resulting from pandemic diseases, it knew that issues surrounding the causation of a patient’s injury or death might often pose question s that hinge d on what the healthcare prov ider knew or suspected about whether the patient had incurred a pandemic disease when the healthcare provider was treating the patient

. See id . § 74.351(c) (“A physician, health care provider, or first responder may not use the showing under Subsection (b) (2) as a defense to liability under Subsection (b) for negligent care, treatment, or failure to provide care or treatment if a claimant proves by a pre ponderance of the evidence tha t the9 respective diagnosis, treatment, or reasonable suspicion of infection with a pand emic disease at the time of the care, treatm ent , or failure to
prov ide care or treatment was not a producing cause of the individual’s injury or death

. ”). Generally, q uestions about what a healthcare provider knew and when it knew it are fact

- d riven. And even though we acknowledge that expert testimony might be relevant to what a healthcare provider knew or should have reasonably suspected, the provider and its employees generally have direct knowledge of what was known, what was reasonably suspect ed , and when. Given the questions the legislature tied to a court’s resolving motions asserting claims under the Pandemic Liability Statute, it appears the legislature chose to make the m an affirmative defense rather than part of the crit eria by which courts are to measure the sufficiency of an “expert report” the legislature requires healthcare liability claimants to file to comply with the requirements of CPRC section 74.351. Our conclusion that section 74.155 operate s as an affirmative defense rather than as part of the sufficiency criteria that applies to evaluating expert report s is reinforced by the text of sub sections 74.155(e), (f), and (g). Subsection (e) provides “[t]his section does not alter10 the scope of practice of a physicia n, health care provider or first responder under the laws of this state.” In other words, even if conditions involving a pandemic disease exist in much of the population , a nursing home’s scope of practice isn’t change d . Subsection (f) provides that “[a] d efense under this section is in addition to any other defense, immunity, or limitation of liability provided by law.” And subsection (g) requires the defendant when sued on a healthcare liability claim to take affirmative steps to place the healthcare lia bility the plaintiff on notice that the provider intends to rely on the defense, since subsection (g) provides that “[a] . . . health care provider . . . who intends to raise a defense under Subsection (b) must provide to a claimant specific facts that sup port an assertion under Subsection (b)(1) or (2) not later than” 60 days after the health care provider serves the claimant with the claimant’s expert report or 120 days after the health care provider filed its answer. Thus, the legislature gave healthcare providers the duty to raise the defense after the healthcare provider had received a report from the claimant’s expert report. See id

. § 74.155(g). Yet the legislature did not require that a healthcare liability claimant supplement the expert report previously filed to comply with the requirement s of the Texas Medical Liability Act,11 section 74.351 , or to supplement the expert’s report with another report to address the defendant’s affirmative defense under the Pandemic Li ability Statute

. Here for example, e ven if Bonnie’s death is proven in the trial to have been caused in part by COVID

- 19 , nothing in this record shows that she was diagnosed with COVID

- 19 or being treated for COVID

- 19 when she was at Silsbee Oaks , althou gh it does show Bonnie had wheezing and oxygen desaturation

. T he parties may (or may not) develop facts in discovery that provide the trial court on further motions with a stronger factual basis to rule on a dispositive motion based on Silsbee Oaks’ Pandem ic Liability Statute defense. But the question before us is not whether Silsbee Oaks is or isn’t entitled to a summary judgment; instead, it’s whether we have jurisdiction over the appeal because Silsbee Oaks is seeking to appeal from an interlocutory orde r and not from a final judgment. “An appellate court lack s jurisdiction to review an interlocutory order unless a statute specifically authorizes an exception to the general rule, which is that appeals may only be taken from final judgments.” Qwest Comm c’ns Corp. v. AT&T Corp ., 24 S.W.3d 334, 336 (Tex. 2000).12 Silsbee Oaks points to no specific legislative authorizat ion allowing it to appeal from a ruling denying a motion for summary judgment based on

a n affirmative defense raised under CPRC section 74.155

. We will not imply that a right to interlocutory appeal exists in CP R C section 54.014(9) when the legislature has not expressly granted litigants an interlocutory appeal but otherwise knows how to do so when it wants to, as it has done so seventeen times. See Tex. Civ. Prac. & Rem. Code Ann. § 5 1.014. Conclusion We conclude section 51.014(a)(9), which allows a party to appeal an interlocutory order , does n’t authorize an accelerated interlocutory appeal from an order denying a combined motion for summary judgment and motion to dismiss under CPRC section 74.155. See id

. §§ 51.014(a)(9), 74.1 55, 74.351(b). Accordingly, we grant the appellees’ motion to dismiss

. The accelerated interlocutory appeal is dismissed for lack o f jurisdiction. See Tex. R. App. P. 42.3(a), 43 .2(f). APPEAL DISMISSED. PER CURIAM Submitted on September 27, 2023 Opinion Delivered September 28, 2023 Before Golemon, C.J., Horton and Johnson, JJ.