In The 

Court of Appeals 

Seventh District of Texas at Amarillo 

 

No. 07-21-00034-CV 

 

TIFFINE VANDERBILT, APPELLANT 

V. 

UNIVERSITY MEDICAL CENTER AND ICU NURSE DOE IN HIS/HER 

INDIVIDUALLY AND OFFICIAL CAPACITY, APPELLEES 

On Appeal from the 237th District Court 

 Lubbock County, Texas, 

Trial Court No. 2020-538,422, Honorable Les Hatch, Presiding 

July 14, 2022 

MEMORANDUM OPINION 

Before QUINN, C.J., and PARKER and DOSS, JJ. 

Appellant, Tiffine Vanderbilt, appeals from the district court’s order dismissing her

lawsuit against Appellees, University Medical Center and Nurse Doe, for failing to timely 

serve an expert report as required by section 74.351(a) of the Texas Civil Practice and 

Remedies Code.1 In three issues, Vanderbilt asserts the trial court abused its discretion 

1 TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). Throughout the remainder of this opinion, we will 

cite provisions of the Texas Civil Practice and Remedies Code as “section ___,” “§___,” and “Chapter ___.”
2

when it dismissed (1) her claims despite pleadings to the contrary, (2) her negligence 

claim filed pursuant to section 101.021 of the Texas Tort Claims Act, and that (3)

application of the doctrine of res ipsa loquitur obviates the need for an expert report. We 

affirm. 

Background

In January 2020, Vanderbilt filed her original petition alleging that after giving birth 

by Caesarian section at University Medical Center, she was transferred to its Intensive 

Care Unit for recovery. While in the ICU, she requested pain relief for her lower back. 

Nurse Doe allegedly “brought [her] heat pads, whose use has been discontinued because 

of these [sic] pads caused severe burns when they were used on other patients, and

placed them [on Vanderbilt].” Appellant alleged that after the heating pads were applied 

to her back, she suffered second degree burns and permanent disfigurement. Her 

petition categorized her claims as (1) a negligence action against UMC “pursuant to 

Texas Tort Claims Act § 101.021” and § 101.001, (2) a healthcare liability claim against 

UMC pursuant to the Texas Medical Liability Act, and (3) a negligence claim against 

Nurse Doe. 

In August 2020, the trial court granted Vanderbilt’s motion to extend the statutory 

deadline within which she was required to designate expert witnesses and serve expert 

reports. Appellant’s motion characterized her lawsuit as a “healthcare liability case” and 

sought an extension for serving expert reports until September 15, 2020, due to the 

COVID-19 pandemic. On September 18, UMC filed a motion to dismiss Appellant’s suit 

pursuant to Section 74.351(a) after she failed to meet the September 15 deadline. 
3

Appellant responded that such deadline had been preempted by the trial court’s 

scheduling order that required expert reports be served no later than September 29, 2020. 

Per an agreed order negotiated by the parties and subsequent court order, a new deadline 

for Appellant’s serving expert reports was set for October 20, 2020, and claims against 

Nurse Doe were dismissed without prejudice.2 The agreed order expressly provided the 

October 20 deadline would not be extended.

Nevertheless, on October 30, 2020, Appellant again moved to extend the deadline 

to designate experts and serve expert reports, claiming her designated expert submitted

an unsatisfactory report. UMC filed a second motion to dismiss Vanderbilt’s claims for 

failing to serve a timely expert report. On January 7, 2021, the trial court held a hearing 

on UMC’s motion. Appellant, through her attorney, asserted that despite her failure to 

meet the deadline, she should be allowed to proceed on a “simple negligence” claim 

under sections 101.021 and 101.001 of the Texas Tort Claims Act.3 Appellant

acknowledged that whether to dismiss her healthcare liability claim was left to the trial 

court’s discretion, but urged that her common law negligence claims should remain viable

2 Appellant does not challenge this order dismissing Nurse Doe from the suit. Accordingly, the 

dismissal of claims against Nurse Doe is affirmed. See Harris v. Gen. Motors Corp., 924 S.W.2d 187, 188 

(Tex. App.—San Antonio 1996, writ denied) (“Generally speaking, an appellant must attack all independent 

bases or grounds that fully support a complained-of ruling or judgment. If an appellant does not, then we 

must affirm the ruling or judgment.”) (citations omitted).

3 See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (waiving sovereign immunity for governmental 

units for personal injury claims “caused by the . . . negligence of an employee acting within his scope of 

employment if . . . personal injury . . . so caused by a condition or use of tangible personal . . . property if 

the governmental unit would, were it a private person, be liable to the claimant according to Texas law.”). 

Section 101.001 provides definitions of terms used in the Texas Tort Claims Act. We point out that the 

Texas Tort Claims Act is not a substantive right or cause of action; “it merely waives sovereign immunity 

as a bar to a suit that would not otherwise exist.” City of Tyler v. Likes, 962 S.W. 2d 489, 494 (Tex. 1997).
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even without a report. On January 22, 2021, the trial court dismissed all of Appellant’s 

claims with prejudice.

Analysis

Appellant argues that her claims brought under the Texas Tort Claims Act require 

no expert report. “When a claimant asserts a healthcare-liability claim against a 

governmental entity that is a healthcare provider, the claimant must comply with both the 

Medical Liability Act and the Texas Tort Claims Act.” Univ. of Tex. Med. Branch at 

Galveston v. Tatum, 389 S.W.3d 457, 461 (Tex. App.—Houston [1st Dist.] 2012, no pet.). 

See also Tinnard v. Dall. Cty. Hosp. Dist., No. 05-13-01161-CV, 2015 Tex. App. LEXIS 

627, at *8 (Tex. App.—Dallas Jan. 22, 2015, no pet.). We therefore examine whether the 

substance of Appellant’s claims assert healthcare liability under the TMLA.

We review de novo whether a particular cause of action constitutes a healthcare 

liability claim. Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 757 (Tex. 2014). In 

doing so, we consider the entire record, including the pleadings, motions, responses, and 

relevant evidence properly admitted. See Loaisiga v. Cerda, 379 S.W.3d 248, 258–59 

(Tex. 2012). The party moving for dismissal bears the burden to prove that the cause of 

action is a healthcare liability claim. See Reddy v. Veedell, 509 S.W.3d 435, 438 (Tex. 

App.—Houston [1st Dist.] 2014, pet. denied).

There is no dispute that UMC and Nurse Doe are “health care providers” under the 

TMLA. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12). The TMLA defines the 

phrase “health care liability claim” as follows:
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“Health care liability claim” means 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. The 

term does not include a cause of action described by Section 406.033(a) 

or 408.001(b), Labor Code, against an employer by an employee or the 

employee’s surviving spouse or heir.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). Per the TMLA’s definition, the 

Legislature has made clear that “health care liability claim” expressly includes those 

causes of action against health care providers for “other claimed departure from accepted 

standards of medical care, or health care, . . . which proximately results in injury to or 

death of a claimant . . . .” Id. 

The factual substance underlying all of her causes of action is this: following 

Appellant’s transfer to the ICU after surgery, she requested relief from back pain due to 

an epidural. Whereupon Nurse Doe allegedly applied heating pads owned by UMC, 

causing burns and disfigurement. The act of applying the allegedly defective heating pads 

to Appellant’s back was an inseparable part of the rendition of medical services. See

Turtle Healthcare Group v. Linan, 337 S.W.3d 865, 868 (Tex. 2011) (per curiam) (holding 

allegation that health care provider failed to provide patient with properly functioning 

equipment, namely, a ventilator, constitutes a health care liability claim under the TMLA). 

Appellant conceded as much in her original petition, motions for extension of time to 

provide expert reports, and counsel’s representations at the hearing on UMC’s motion 

that this case “is a healthcare liability case.” 
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Despite framing her claims under alternative theories, these claims necessarily fall 

under the TMLA’s scope because they are based on the same facts. Yamada v. Friend, 

335 S.W.3d 192, 193 (Tex. 2010). “[P]ermitting a claimant to maintain both health care 

liability claims and different types of claims based on the same underlying factual scenario 

‘would open the door to splicing health care liability claims into a multitude of other causes 

of action with standards of care, damages, and procedures contrary to the Legislature’s 

explicit requirements.’” Linan, 337 S.W.3d at 868 (quoting Diversicare Gen. Partner, Inc. 

v. Rubio, 185 S.W.3d 842, 854 (Tex. 2005)). “When the underlying facts [of a tort claim]

are encompassed by provisions of the TMLA in regard to a defendant, then all claims 

against that defendant based on those facts must be brought as healthcare liability 

claims.” Yamada, 335 S.W.3d at 193–94. We hold that all of Appellant’s claims constitute

healthcare liability claims and are subject to the expert report requirements of section 

74.351(a).4 

Appellant received two extensions for serving her expert report. The second 

extension was premised on an order agreed to by the parties that Appellant would be 

granted no further extensions beyond October 20, 2020, for complying with the TMLA’s 

report requirements. An agreed order is contractual in nature; in effect, it is both a written 

agreement between the parties and an adjudication. See Patel v. City of Everman, 179 

S.W.3d 1, 8 (Tex. App.—Tyler 2004, pet. denied). When Appellant failed to serve an 

expert report by the agreed upon deadline, the trial court granted UMC’s subsequent 

4 Contrary to Vanderbilt’s contention that an expert report is not required because res ipsa loquitur

is applicable in this case, “res ipsa loquitur [is] not an exception to the expert report requirement under TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351.” Merry v. Wilson, 498 S.W.3d 270, 273, 275–77 (Tex. App.—Fort 

Worth 2016, no pet.) (collected cases cited therein). 
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motion to dismiss. Under the circumstances, we cannot say the trial court abused its 

discretion by dismissing Vanderbilt’s TMLA claims. 

Conclusion

We affirm the district court’s order of dismissal. 

Lawrence M. Doss

 Justice