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, Appellees 

__________________________________________________________________

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.SeeTex. Civ. Prac. & Rem. Code Ann. 
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§ 74.155 (Supp.). CPRC section 74.155 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 infectious disease that spreads to a significant portion of 

the population of the United States that poses a substantial risk of a 

significant number of human fatalities, illnesses, or permanent longterm 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 ruling, CPRC section 51.014. Id. § 51.014 
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(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 days later, Bonnie was taken to the 

emergency room at Baptist Hospital, where she was diagnosed with an 

infection and intubated. According to Bonnie’s death certificate, her 

death was caused by COVID-19, pneumonia due to viral illness, 

1See 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, 1051

(West) (to be codified at Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a))

(adding Tex. Civ. Prac. & Rem. Code Ann. §§ 74.155; 51.014(a)(15); 

148.001-.005).
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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 physicians.2 In general, the Smarts’ petition alleges that 

Bonnie’s healthcare providers negligently 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 negligent in exposing, treating, or failing to treat Bonnie for 

COVID-19.3

2Dr. Quaraishi is not a party to this appeal. 

3However, 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 is
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In a pretrial motion invoking the Pandemic Liability Statute, 

Silsbee Oaks moved to dismiss the Smarts’ suit. See id. § 74.155. In 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 complied 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 discharge 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 to Silsbee Oaks, the 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 desaturation.” The plaintiffs’ 

expert report also attributes Bonnie’s pneumonia to a COVID infection.
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discharge patients (like Bonnie) who needed 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 74.155 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 Smarts 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 categories 

of interlocutory orders over which appellate courts have jurisdiction 

under CPRC section 51.014. 

To be sure, the Pandemic Liability Statute (CPRC section 74.155)

is not specifically mentioned anywhere in CPRC 51.014. Still, Silsbee 
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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 Liability 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 their claims. Based on that 

argument, Silsbee Oaks concludes the legislature must have intended to 

grant appellate courts jurisdiction over rulings on motions denying a 

healthcare provider’s motion relying on an affirmative causation defense 

when the patient’s injury or death was caused by a pandemic disease.

Stated another way, Silsbee Oaks suggests that its Pandemic Liability 

Statute defense necessarily implicates the sufficiency of the report filed 

by the Smarts’ expert as related 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 trial court’s denial of motions claiming that an “expert 

report” doesn’t comply with the requirements of the Texas Medical 
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Liability Act under CPRC section 74.351, Silsbee Oaks concludes that 

appellate jurisdiction must also exist to allow appellate courts to consider 

challenges to interlocutory rulings on the denial of motions for summary 

judgment that rely on CPRC 74.155, the Pandemic Liability Statute. See

id. § 51.014(a)(9) (providing that a person may appeal from an 

interlocutory order that “denies all or part of the relief sought by a motion 

under Section 74.351(b), except that an appeal may not be taken from an 

order granting an extension 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 

questions that hinged on what the healthcare providerknew 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 preponderance of the evidence that the 
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respective diagnosis, treatment, or reasonable suspicion of infection with 

a pandemic disease at the time of the care, treatment, or failure to 

provide care or treatment was not a producing cause of the individual’s 

injury or death.”). Generally, questions about what a healthcare provider

knew and when it knew it are fact-driven. 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 suspected, 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 

them an affirmative defense rather than part of the criteria 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 operates as an affirmative

defense rather than as part of the sufficiency criteria that applies to 

evaluating expert reports is reinforced by the text of subsections 

74.155(e), (f), and (g). Subsection (e) provides “[t]his section does not alter 
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the scope of practice of a physician, 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 changed. Subsection (f) provides that “[a] defense 

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 liability 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 support 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 requirements of the Texas Medical Liability Act, 
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section 74.351, or to supplement the expert’s report with another report 

to address the defendant’s affirmative defense under the Pandemic 

Liability Statute. 

Here for example, even 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, although it does show Bonnie had wheezing and 

oxygen desaturation. The 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’ 

Pandemic 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 order and not from a final 

judgment. 

“An appellate court lacks 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 Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000). 
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Silsbee Oaks points to no specific legislative authorization allowing it to 

appeal from a ruling denying a motion for summary judgment based on 

an affirmative defense raised under CPRC section 74.155. We will not 

imply that a right to interlocutory appeal exists in CPRC 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. 

§ 51.014. 

Conclusion

We conclude section 51.014(a)(9), which allows a party to appeal an 

interlocutory order,doesn’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), 

74.155, 74.351(b). Accordingly, we grant the appellees’ motion to dismiss. 

The accelerated interlocutory appeal is dismissed for lack of 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.