### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00313- CV

Appellan t, P M Managem ent-Trinity NC, LLC d/b/ a Trinity Care Ce nter// Cross-A ppellan ts, Michael K um ets, P avel K um ets, and Strul Kum ets, Individ ually an d as next friend f

or Ye vgeniya Kum ets

v. Appellees, Michael K um ets, P avel K um ets, and Strul Kum ets, Individ ually an d as n ext friend for Yevgeniya K um ets// Cross- Appellee, P M Managem ent-Trinity NC, LLC d/b/ a Trinity Care Ce nter

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368 TH JUDICI AL DISTRICT

NO. 10- 139- C368, HO NORAB LE B URT CARNES, JUDGE P RESIDING

O P I N I O N

I n this acc eler ated interlocutory appea l, appellant PM Manag ement-Tr inity NC, L L C d/b/a Trinity Care Center (“Tr inity ”) , a d efendant below, and cross-a ppellants Michae l Kumets, Pavel Kumets, and Strul Kumets, individually and as next friend for Yevg eniy a Kumets (collec tively “the Kumetses”) , plaintiffs below, challeng e the trial court’s order s g ranting in part and deny ing in
p ar t the defe ndants’ motions to dismiss the Kumetses’ claims pursuant to section 74.3 5 1 o f t h e Texas Medica l L iability Act (TML A). See Tex. Ci v. Prac. & Rem. Code Ann. § 74.351(b) (West 2011); see also id. § 51.014(a) (9) (West 2008) (per mitti ng interlocutory appea l from trial court’s ruling under se ction 74.351). We will affirm the tr ial court’s judg ment.F ACTUAL AND P ROCEDURAL BACK GR OUND
T h i s ap p eal arises from a suit betwee n the Kumetses as plaintiffs and a g roup of health-c are providers and phy sicians as d ef en d ants. Trinity is a nursing home wher e Yevg eniy a Kum ets was a resident from November 21, 2007 throug h J anuar y 20, 2009. Cross-appe llee Trisun Hea lthcare , L .L .C. (“Tr isun”) provided nursing home manag ement ser vices to Trinity , and

cross-a ppellee Br ian Threa dg ill was employ ed as Tri n it y ’ s li c e n s e d n

u r s in g - h o me a d

mi n is tr a to r . The
Kumetses alleg ed that Yevg eniy a was admitted to T rinity to r ecove r from a stroke. As pleade d by the Kumetses, Yevg eniy a suffe red a second debilitating stroke as a result of neg lige nt trea tment she

rec eived at Trinity

. I n their live pleading , the Kumetses asser ted cause s of action ag ainst Trinity for medical neg lige nce, n eglig ence per se, and g ross neg lige nce; neg lige nt hiring , supervision,
manag ement, and rete ntion; brea ch of fiduciar y duty ; brea ch of contra ct; violations of the Dec eptive Trade Practice s Act; and fra ud/neg lige nt misrepre sentation. I n a discre te sec tion of t heir petiti on, the Kumetses also ass er t ed against Trinity a claim for reta liation, alleg ing that Trinity illega lly discharg ed Yevg eniy a from the nursing home as a result of complaints made by the Kumetses. The
Ku m ets es also alleg ed cause s of action ag ainst Trisun and Threa dg ill for fra ud/neg lige n t misrepre sentation and violations of the De ceptive T rade Practice s Act, but not retaliation.

Pursuant to civil prac t i ce an d reme dies code section 74.351, the Kumetses serve d Trinity , Trisun, and Threa dg ill with an expert repor t addre ssing all but the reta liation claim. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (expert repor t require ment in health car e liability claims). The repor t did not mention Threa dg ill or Trisun. Trinity , Trisun, and Threa dg ill moved to dismiss the claims asser

ted ag ainst them on the g round that they wer e all health-c are -liability claims and that

2the Kumetses’ expert repor t was defic ient as to Trinity and was no repor t at all as to T ri s u n and Threa dg ill. The trial court found that the repor t was defic ient an d gav e t h e Ku metses a 30-day extension to cure the defic iencies. S ee i d

. § 7 4

. 351(c) (per

mitti ng court to g rant one 30-day extension to cure defic ient repor t). After the Kumetses filed an amende d repor t, Trinity , Trisun, and Threa dg ill ea ch filed a second motion to dismiss

. See id. § 74.351(b). After a second hear ing, the trial court signe d three order s: (1) an order stating that all the claims the Kumetses asser ted ag ainst Trinity wer e hea lth-car e-liability claims except for the reta liation c laim a nd, beca use the a mended expert repor

t was defic ie n t a s to a ll health-c are -liability claims, dismiss ing all claims asser ted ag ainst Trinity except for the reta liation claim; (2) a second order dismi s s i n g al l claims asser ted ag ainst Trisun; and (3) a third order dismiss ing all claims asser ted ag ainst Threa dg ill. Trinity has appea led the trial court’s order , ar gu i n g in three issues that the Kumetses’ reta liation claim is a health-c are -liability

claim and that the tr ial court erre d in deny ing its motion to dismi ss that claim pursuant to section 74.351. The Kumetses filed a cross-a ppeal, co n t en ding in one is sue t hat t heir claims ag ains t Trinity , Trisun, and Threa dg ill for fra udulent billing wer e not health-c are -liability cl ai m s an d that the trial court err ed in g ranting the motions to dismiss those claims pursuant t o section 74.351. The Kume tses do not complain i n their cross-appe al about the t rial court’s ruling that the amende d expert repor t was def icient as to their he alth-ca re- liability

claims.

DISCUSSIO N
We g ener ally revie w a trial court’s order g ranting or deny in g a motion to dismiss pursuant to section 74.351(b) under an abu s e- o f- d i scre tion standard. See Bowie Mem ’l Hosp.

v. W right , 79 S.W .3d 48, 52 (Tex. 2 002). Howeve r, when the issue prese nted involves the

3applicability of chapte r 74 to the plaintiff’s claims and require s interpre tation of the statute, we apply

a de novo standard of revie w. See Drewery v. Adve ntist Health Sys. / T ex
. , In c. , 344 S.W .3d 498,
501 -02 (Tex. App.—Austin 2011, pet. filed) (citing Marks v. St. Luke’s Episcopal Hosp. , 319 S.W .3d 658, 663 (Tex. 2010) (plura lity op.)). The Kumetses’ live pleading included claims for medical neg lige nce, neg lige nce per
se, and g ross neg lige nce; brea ch of fiduciar y duty ; brea ch of contra ct; neg lige nt hiring , supervision,
manag ement, and rete ntion; violations of the Dec eptive Trade Practice s Act; and fra ud/neg lige nt misrepre sentation. Eac h o f t h es e ca u s es of action arose out of the car e and trea tment Yevg eniy a

rec eived while a patient at Trinit y . For example, the alleg ations supporting the neg lige nce c laims included that Yevg eniy a was (1) dropped during a transfe r from the bathtub; (2) infec ted while being administered intravenous antibiotics, result i n g in infec tions and rashe s; (3) left unsupervised and allowed to incur substantial bruising; and (4) not proper ly hy dra t ed

. T h e Kumetses asser ted that
Y e v g e n iy a suffe red a stroke as the result of poor dietary routines and unmonitored medication le v e ls

. They alleg ed that the adver se results of the stroke wer e exacer bated by her being left unattended and
t h at , as a conseque nce, she is unable to speak, eat, or bathe without assistance

. The Kumetses alleg ed that these and other descr ibed neg lige nt acts cause d persona l and emotional injury , phy sical impairment, pecunia

ry loss, pa in a

nd suffe ring , mental ang uish, and loss of quality of life. I n their brea ch-of -fiducia ry -duty claim, the Kumetses alleg ed that Trinity , as Yevg eniy a’s “hea lth service s provider,” owed her a duty to trea t her in a ma

nner tha t encour ag ed and f ostered her best interests and well-be ing but instead failed to adequately car e for her. The Kumetses’ brea ch-of -contra ct claim

asser ted that Trinity failed to provide the service s an d q u ali fied staff require d by the contra ct

4betwee n the parties and wer e neg lige nt in perf orming their duties under the contra ct. The alleg ations supporting the fra

ud/neg lige nt-misrepre sentation c la im in c lu d e d th a t T r in it y , T r is u n , a n d T h r e adg ill: (1) misrepre sented the service s Trinity provides, including making incorre ct statements about the quality , quantity , and ratio of licensed nurses and profe ssionally trained personne l; and (2) submitt ed fra udulent claims for Medica id reimburse ment for service s they d i d n o t provide. The Kumetses alleg ed that “phy sical and mental injuries and anguish and associate d economic damag es” resulted from the fra

ud and neg lige nt misrepre sentations. The neg lige n t- hiring and supervision claim alleg ed that Trinity failed to proper ly supervise and train personne l or to implement adequate safe g uards to
preve nt the situations that resulted i n Yevg eniy a’s injuries and that Trinity failed to terminate employ ees when “it knew or rea sonably should have known the employ ees acte d in way s that
compro m i s ed the rig hts and safe ty of others.” Finally , the cause of action for DTPA violations alleg ed that Trinity , Trisun, and Threa dg ill made misrepre sentations reg arding the quality , quantity , and ratio of licensed nurses and profe ssionally trained personne l, failed to provide require d car e that
“re sulted in the deter ioration of [Yevg eniy a],” and bi l l ed t h e Kum etses and made claims for Medica id reimburse ment for services they did not provide. The Kumetses alleg ed that the DTP A violations caused them to suff er da mag es including mental ang uish. By contr ast , the alleg ations supporting the Kumetses’ reta liation claim did not implicate the car e or trea tment Yevg eniy a rec eived while a resident at Trinity

. Rather, the Kumetses alleg ed simply that Trinity reta liated ag ainst Yevg eniy a for complaints they made reg arding her car e, in violation of the health and safe ty code. They alleg ed that the reta liatory conduct was Yevg eniy a’s discharg e from the fac ility

. The Kumetses did not alleg e that the discharg e cause d her any phy sical,

5mental, or emotional injuries. I nstead, they soug ht to rec over only the statutory damag es authorized

by the health and safe ty code for reta liation. S ee Tex. Hea lth & Safety Code Ann. § 242.1335(b) (West 2 0 10) (dama g es for reta liation include g rea ter of $1,000 or actua l damag es; exemplary damag es; court c osts; and rea sonable a ttorney s’ fe es). 1
Denial of Trinit

y’s Motion to Dism iss th e Retaliation Claim
I n i ts appea l, Trinity contends that the trial court err ed by deny ing its motion to dismiss the Kumetses’ reta liation claim. We first consider whether the Kumetses’ reta liation claim is a health-c are -liability claim subject to section 74.351’s repor t require ment. Section 7 4

. 3 5 1 applies only to “hea lth car e liabil i t y cl ai m s.” See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)

. The
TML A def

ines a “ health ca

re liability

claim” a s

a caus e o f ac t i o n ag ainst a health car e provider or phy sician for trea tment, lack of t re at m ent, or other claimed depar ture from acc epted standards of medical car e, or health car e, or safe ty or profe ssional or administrative service s di re ct l y related to health car e, which proxi mately results in injury to or death of a claimant, whether the claimant’s c laim or ca

use of a ction sounds in tort or contrac t.

Id. § 74.001(a) (13) (West Supp. 2011). Whether a claim falls wi t h i n t h i s definition require s an examination of the g rava men of the plai n t i ff ’s cl aim, not the form of the pleading s. Marks , 3 1 9 S

. W

. 3 d at 665 (citing Diversicare Gen. Partner, Inc. v. Rubio , 185 S.W .3d 842, 847 (Tex

. 2005)). The Texas Supreme Court has instructed that the defin i t i o n consi sts of three component

Hea lth and safe ty code section 242.1335 was repe aled by Act of J une 28, 2011, 82d L eg ., 1 1st C.S ., ch.7, § 1.05(m), 2011 Tex. Gen. L aws 5390, 5407. Howeve r, the statute is applica ble to a cause of action that acc rued befor e September 28, 2011, and section 242.1335 is continued in eff ect for that pur

pose. See id. § 1.05(p), 2011 Te x . Gen. L aws 5390, 5407. 6parts: (1) a phy sician or health-c are provider must be named as the defe ndant; (2) the cause of action

must ref er to a patient’s trea tm en t, lack of trea tment, or some other depar ture from acc epted and specia liz ed standards of car e; and (3) the defe ndant’s act , o m i s s i on, or other depar ture must proxi mately cause the patient’s injury or death. See id. at 662. The parties do not dispute t h at Trinity , Trisun, and Threa dg ill qualify as health-c are provid er s, but they do dispute whether the

rema ining two components of the definition are met. Be cause it is dispositi ve, we focus on the third component, i.e., whether the act complained of in the Kumetses’ reta liation claim “proximately

cause [d] the patient’s injury or dea th.” The Kume tses’ cla im of retaliation conta ins the following a lleg ations:

A resident in a nursing home participa ting in the Medica id prog ram may be transf er re d or di schar g ed only under lim ited circ umstances, such as where transfer is neede d for his or her own welfa re or for the safe ty of others and, except in limit ed case s such as the need for urg ent medical trea tme n t

. Here, Ms. Kumets was disc h arged by [Trini ty]

. . . for reasons other than those prescribed by law ( i.e. retaliation for complaints by family membe rs) and in a ma n n er and timeframe in violation of the T

exas Health & Safety C ode. A nursing hom e may not reta liate or discriminate ag ainst a resident for [t he] making of a comp l ai n t or the filing of a g rieva nce or repor

t in acc ordanc e with Chapter 242 of the Hea lth and Safety Code. As indicat ed i n an order from Texas Hea lth and Human Service s Commi ssion hear ings Offic e[r] Ka

ra Wil loughby dated Aug ust 3, 2009, Def endants violated the Texas Administrative Code in [d] ischarg ing Ms. Kumets. Plaintiffs there fore , [si c] sue Def endant [Trinit y ] for actu al d amag es, exemplary damag es, court costs, and attorney ’s fe es pursua

nt to Tex as He alth and Safe ty Code Section 242.1335(b)( 5).
(Emphasis added.) Nowher e do the Kumetses alleg e that the act com p l ai n ed o f, i.e., the alleg ed
reta liatory discharg e of Yevg eniy a from the nursing home, cause d her any bodily harm or persona l injury , nor do they alleg e that her condition worsene d as the result of being discharg ed. They do not claim that she or they suffe red any mental ang uish or emotional distress resulting from the discharg e.
7Their pleading s seek to rec over “ac tual damag es,” which they contend consist only of their economic

losses cause d by the discharg e. The Kumetses also seek to rec over exemplary damag es, which the 2

statute expressly permits without requiring a showing of mental ang uish, emotional distress, or any other bodily harm or injury

. See Tex. Hea lth & Safety Code An n . § 2 4 2.1335(b)( 3) (re sident

or family member who is reta liated ag ainst in violation of statute is entit l ed t o s u e for exemplary

damag es).
I n light of the facts alleg ed in the Kumetses’ reta liation claim, t he trial co u rt could

rea sonably have ruled that the only adver se conseque nce—i.e ., the only “injury ”—ar ising from the discharg e was economic loss to the Kumetses and/or Yevg eniy a. We must decide , then, whether the third component of a health-c are -liability claim is met when the claimant alleg es that the brea ch of the re levant standa

rd of c are resulted solely

in economic or

pecunia ry harm.
We rec og nize that when a p l ai n tiff alleg es that a health car e provider brea ched an applicable standard of health car e and also alleg es that the brea ch proxi mately cause d both injury to

or the death of a claimant and economic ha

rm, the cla im may

be a he alth-ca

re- liability

claim eve n if the plaintiff opts to fore g o rec overing damag es for the bodily or persona l injury and instead seeks
to rec over only for the economic losses resulting from the brea ch. See Victoria Gardens v. W alrath , 257 S.W .3d 284, 288 (Tex. App.—Dallas 2007, pet. denied)

. The definition of “hea lth car e liability claim” itself c ontains no limit ations based on the nature of the damag es being soug ht. Id. I t doe s, howeve r, require that the claimant have suffe red injury or death. The question prese nted is whether

The Kumetses state in their brief to this Court that they “ar e seeking compensa tion by and 2 throug h Ms. Yevg eniy a Kumets for damag es unrelated to phy sical injury or death, but rathe r economic da

mag es re lating to the retaliation claim.” ( Emphasis in origina l.) 8the phrase “injury to or death of the claimant,” as used in the TML A, includes pure economic loss,

with no acc ompany ing bodily injury or other pe rsonal injury . We conclude tha t it does not. Our primary objective in s t at u tory construction is to g ive effec t to the l eg islature’s intent. See State v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006). W e seek that intent “first and fore most” in the s tatutory text

. Lexi n g t on Ins. C o. v. Str ayhorn , 209 S.W .3d 83, 85 (Tex. 2006). “Where the text is clea

r, text is deter

minative of that intent.” Entergy Gulf States, Inc. v. Summers , 282 S.W .3d 433, 437 (Tex. 2009) (op. on reh’ g ) (citing Shumake , 199 S.W .3d at 2 8 4 ; A l ex Sheshunoff

Mgmt. Servs. v. Johnson , 209 S.W .3d 644, 651-52 (Tex. 2006)). We consider the words
in context, not in isolation. State v. Gonzalez , 82 S.W .3d 322, 327 (Tex. 2002). We rely on the plain meaning of t he tex t, unless a differe nt meaning is supplied by leg isl at i v e d ef i nition or i s appar ent from the context, or unless such a construction leads to absurd results. See Entergy Gulf States, Inc. , 282 S.W .3d at 437. When the statutory text is ambig uous, we may “‘r esort to’ rules of construction or extrinsic aids.” Id. (quoting In re Estate of Nash , 220 S.W .3d 914, 917 (Tex. 2007)).

I n the prese nt case , we must deter m i n e whether the term “injury ” in chapte r 74’s d ef i n i t i on of a “hea lth car e liability claim” includes claims in which the only resulting harm i s pecunia ry . The term is not otherwise define d in chapte r 74 and there fore must be assig ned “such meaning as is consistent with the common law.” See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(b). Bla ck’s L aw Dictionary define s the term as “the violation of another ’s leg al rig ht, for which the law provides a reme dy .” Bla ck’s L aw Dictionary 856 (9th ed. 2009). Webster’s define s “injury ” as “ an ac t that damag es, har ms or hurts: a

n unjust or undeser

ved infliction of suffe ring or harm.” Webster’s Third New I nt’l Dictionary 1164 (2002). Viewe d in isolation, the term “injury ”

9could, under these definitions, encompa ss a wide varie ty of harm or damag e done to another , either

in his person, rig hts, reputa tion, or proper

ty

. But in the context of a medical- neg lige nce claim, and particula rly the lang uag e of section 74.351(a) of the TML A (“injury to or death of a claimant”) , the
term “injury ” would seem to car ry with it the implication that the alleg ed deviation from an acc epted standard of car e mus t cause the plaintiff to suffe r som e personal i njury , whether phy sical, m ental,

or emotional. I n short, the leg islature’s intent is not clea r from the statutory lang uag e. Acc ording ly ,

we a re g uided by

the following aids to statutory construction:

I n construing a statute, whether or not the statute is considere d ambig uous on its fac e, a court may consider among other m at t ers the: (1) object soug ht to be attained; (2) circ umstances under which the stat u t e wa s enac ted; (3) leg islative history ; (4 ) co m m o n law or former statutory provisions, including laws on the same o r s i m i l ar s u b

j ec t s ; (5 ) co n s eq u en c e s o f a p a r t i c u l a r c o n s t r u ct i o n ; (6) a dminist rative construction of t he st atute; and (7) tit le (caption), pre amble, and emer g ency

provision.

Tex. Gov’t Code Ann. § 311.023 (West 2005); see also id. § 312.005 (West 2005) (“I n interpre ting

a statute, a court shall diligently attempt to asce rtain leg islative intent and shall consider at all times the old law, the e vil, and the re medy .”). 3

As the supreme court observe d in W ortham v. W

alker , 128 S.W .2d 1138, 1150 (Tex. 1939): 3
A statute should not be construed in a spirit of detac hment as if it wer e a protoplasm floating around in space . The historical trea tment to whi ch a s t at ute may be subjected is aptly set forth in Travelers’ Insurance Co. v. Marshall , 76 S.W .2d 1007, 1012 (Tex. 1939), wher e it is said: “Ge nera lly it may be said that in deter mining the meaning , intent, a

nd purpose of a law or constitutional provision, t he history of the times out of which it g rew , and to which it may be rationally supposed to bear some direc t rela tionship, the evils intended to be reme died, and t h e go od to be acc omplished, are pr oper subjec ts of inquiry .”

10The TML A’s prede cessor statute, the Texas Medica l L iabilit y and I nsuranc e

I mprovement Act (“TML I I A”) , was enac ted in 1 9 7 7

. S ee Ac t of May 30, 1977, 65th L eg ., R.S., ch. 817, 1977 Tex. Gen L aws 2039, former ly Tex. Rev. Civ. Stat. Ann. art. 4590i. The leg islature’s stated purpose in enac ting the TML I I A was to re medy “a me dical malpractice insurance crisis” in
Texas and its “mater ial adver se eff ect on the delivery of medical an d h ealth car e service s in Texas, including signific ant reduc tions of availability of medical and health care service s to the people of Texas and a likelihood of further reduc t i o n s i n t h e future.” Id. § 1.02(a) (5)- (6). I n 2003 the leg islature repla ced the TML I I A with the TM L A, re p eating its 1977 finding s and

s t at em en t s o f p urpose. See Act of J une 2, 2003, 78th L eg ., R.S., ch. 204, §§ 10.01, 10.09, 10.11,
2003 Tex. Gen. L aws 847, 864-82, 884- 85.

C o n s i stent with the statute’s purpose of reduc ing the cost of medical- malprac ti ce insurance , the leg islature place d limit s on phy sicians’ and health-c are providers’ liability , but only

as to noneconom ic damag es. See Tex. Civ. Prac. & Rem

. C ode Ann. § 74.301 (limitation on noneconomic damag es). The “objec t soug ht to be obtained” by chapte r 74 was to rein in what was
perc eived to be excessive awa rds for noneconomic damag es that wer e driving up the cost of medical malprac tice insurance , which in turn reduc ed the number of health-c are providers willing to provide service s in Texas and the availability of medical and health-c are service s to the people of Texas. See Aviles v. Aguirre , 292 S.W .3d 648, 649 (Tex. 2009) (per curia m) (noting that virtually all leg islative finding s expressed in statute rela te to cost of malprac tice insurance ). Given the object of the statute and the leg islature’s express conce rn, it is appar ent that, in adopting chapte r 74, the leg islature was
not conce rned with claims in which the sole “injury ” to the claimant was pecunia ry . See id.

11§ 1.02(b)( 3) (re citing leg islature’s intent that statute opera te to control medi c a l ma lp r a c ti c e in suranc e

costs without unduly

restric ting a

patient’s rig hts).
We believe that interpre ting the TML A to require an injury that involves more than

mere out-of-poc ket economic harm a ccur ately ref lects the “ old law, the evil, and the remedy ” and

more closely serve s the leg islature’s purpose in enac ting chapte r 74. Thus, in our view, for a cause of action to be a health-c are -liability claim within the purv i ew o f t h e T ML A, the “injury ” that proxi matel y re sults from the alleg ed wrong ful conduct must involve more that simply economic harm. Rather, it must also involve some ty pe of persona l injury , including that which would entitle the plaintiff to seek to rec over noneconomic damag es. See T ex . C i v . Prac. & Rem. Code Ann. § § 41.001 (West 2008) (def ining noneconomic damag es as damag es awa rded for purpose o f
compensa ting claimant for phy sical pain and suffe ring , mental o r emotional pain or ang uish, loss

o f c o n s o r ti u m, d is f ig u r e me n t, phy sical impairment, loss of companionship or socie ty , in c o n v e n ie n c e , loss of enjoy

ment of life, injury to reputa tion , an d al l o ther nonpecunia ry losses of any kind other than exemplary damag es); 74.001(a) (20) (term “nonec onomic damag es” for purposes of chapte r 74 has mea

ning a ssigne d by

section 41.001). The context in which the term appea rs in the statute also supports the notion that the
term “injury ” in the TML A does not re fer to economic harm alone but rathe r connotes a
p er s o n al injury suffe red by a rec ipient of medical or health-c are service s. Chapter 74 wa s desig ned to eliminate frivolous medical- neg lige nce claims deeme d responsible for incre asing medical- malprac tice insurance premiums to unacc eptable levels, and this provision define s the class of claims falling within the scope of the leg islation. The definition includes deviat i ons from

12acc epted standards of car e that result in “injury to or death of” the claimant. When rea d in context,

the term “ injury ” log ically means more than pec uniary harm a lone. This interpreta tion also comports with our obliga tion to conside r the c onsequenc es of a particula

r construction and construe the statute in a manner that does not lead to absurd results. See City of Rock

wall v. Hughes , 246 S.W .3d 621, 625-26 (Te x . 2008). Chapter 74’s def inition of “cla imant” states that “[a]ll persons claiming to ha ve sustained damag es as the result of the bodily injury or death of a single person are considere d a single claimant.” Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a )(2) (empha sis added). Thus, the definition of “c laimant” uses the phr ase “ bodily injury ,” whe rea s the definition of “health car e li ability claim” uses the word “injury .” The phrase “bodil y i n j u ry ” clea

rly excludes pure economic harm. I f the definition of a “hea lth car e liability claim” wer e held to inclu de claims in which only economic harm was suffe red, two differ ent
proce dures would exis t for deriva tive claimants. Multipl e parties who alleg ed only economic harm would not, under sec tion 74.001(a)( 2), be c onsidered “a single claimant,” and eac h would have to file his or her own expert repor t. By contra st, multipl e parties who alleg ed more than mere economic
h ar m would be trea ted as “a single claimant” under the statute. We can think of no principled o r logic al re ason for

trea ting suc h claimants diffe rently

. Fur ther support for our concl u s io n th a t a “ h e alth car e liability claim” must entail more than pure economic loss is found in section 74.451, a provision gover ning ag ree ments to arbitra te health-c are -liability

claims. That sec tion provides:

No phy sician, profe ssional association of phy sicians, or other health ca re p ro v ider s h al l reque st or require a patient or prospec tive patient to execute an ag ree ment t o arbitra te a health care liability claim u n l es s t h e form of agr eeme nt delivere d to the

13patient contains a written notice in 10-point boldfac e ty pe clea rly and conspicuously stating: UNDER TEXAS L AW, TH I S AG REEMENT I S I NVAL I D AND OF NO L EGAL EFF ECT UNL E S S I T I S AL SO SI GNED BY AN ATTORNEY OF YOUR OWN CHOOSI NG. THI S AGREEMENT CONTAI NS A WAI VER OF I MPORTANT L EGAL RI GHTS, I

NC L U D I N G Y O U R RI GHT TO A J URY. YOU SHOUL D NOT SI GN THI S AGREEMENT WI THOUT FI RST CONSUL TI NG WI TH AN ATTORNEY.

Id

. § 74.451 (West 2011). By enac ting this provision, the l egi s l at u re ensure d that individuals bring ing “hea lth car e liability claims” could not ag ree to arbitra tion and there by waive their rig ht to

a jury trial unless they had first confe rre d with counsel. A simil ar require ment exis ts in the n o n health car e liability context, but only with respe ct to personal i n j u r y cl aims. See id. § 171.001, .002(a) (3), .002(c) (1) (West 2011). Chap t er 1 71 provides that a written ag ree ment to arbitra te is valid and enforce able if an arbitration ag re em en t exis ts and the claim asserted i s within the s cope of the a g ree ment unless it is a personal i njury claim , in w hich case eac h party must, on the advice of counsel, ag ree in writing to arbitra tion. Id. Such an ag ree ment must not only be in writing , it
must a lso be signe d by eac h party and eac h party ’s attorney

. Id. § 170.002(c) (2). The fac t tha t the leg islature has imposed simil ar arbitra tion safe g uards with respe ct to a “hea lth car e liability claim”
sug g ests that the leg islature views “hea lth car e liabilit y cl aim s”—cla ims subject to the “advic e-of

-counse l” protec tions—as ak i n to persona l injury claims involving more than
pure economic harm. Otherw ise, it would be unlikely that the l egi slature would insist on the safe g uards of attorney revie w and consultation that it deeme d unnece ssary in the context of non-hea lth-car e-liability

claims not involving per sonal injury

.

14Finally , our interpre tation is consistent with a holding of the Dallas Court of Appea ls

in Victoria Gardens

. See 257 S.W .3d at 288-89. The issue in Victoria Gardens was the timeliness of service of an expert repor t. The plaintiff, Ann Walrath, serve d the repor t only afte r filing her third amende d petition, in which she alleg ed what she ag ree d was a h ea l t h -care- liability claim—an

asser tion that the complained- of conduct cause d persona l injury to, and ultimately the death of, her mother Glady s Weidel. Victoria Gar dens contende d that the repor t was untimely beca

use, i n its view, an ear lier-f

iled second amended petition alre ady contained a health-car e-liability cl ai m t h at trig g ere d the cha

pter 74 re port requir ement. The Dallas c ourt fra med the issue as f

ollows:

The rema ining question is w hether Walrath avoided trig g ering Chapter 74 with he r s econd amende d petition by expressly stating that “she does not now m ak e an y alleg ation that the brea ch of the parties’ contra ct proxi mately resulted in injury to or the death of Glady s Weidel.” Elsewher e in the petition, Walrath alleg ed that Victoria Gar dens’ brea ches of contra ct wer e “a direc t and proxi mate cause of damag es,” but she immediately qualified that all eg ation by adding , “whi ch damages Plaintif f alleges are equal t o the amount Defendant charged and which amounts we r e p a i d on behalf of W

eidel for each day she was a resident at Defendant’ s facility

. ” Thus, on its face, W

alrath’s second ame nded petition did not affi rmatively state the third eleme nt of a health care l i a b ility claim, that Victoria Gardens’ breache s of applicable standards of care “proximately result[ed] in injury to or death of a claimant.”

Id. (empha sis added)

. The court ultimately co n cl u ded that the expert-re port require ment was trig g ere d by Walrath’s third amende d pe ti ti o n , w h ic h c o n ta in ed an alleg ation “that Victoria Gar dens’
neg lige nce proxi mately cause d injuries to Weidel and ultimately her death.” Id. at 286. The court held that Victoria Gar dens “wa s entitled to use Walrath’s asser tions in later filings to supply the allegation of

proximate causation of injury or death ” that it conclude d she had artfully omitted from her second amende d petition. Id. at 289 (em p h as i s added)

. The court held that, standing alone,

15Walrath’s second amende d petition alleg ing only economic loss did not state the third element of a

health-c are -liability

claim, but that the “pr eviously missing alleg ation” wa s supplied by Walrath’s later f ilings. Id

. I n the prese nt case , the trial court could rea sonably have conclu d e d th a t th e K u me ts e s’
reta liation claim alleg ed only economic loss, not “injury to or death of” Yevg eniy a, and thus did not include alleg ations sufficie nt to meet the third element of a health-c are -liability claim. Unlike
Victoria Gardens , here there are no later filings to supply the missing alleg ation of persona l injury

. We c onclude that the trial court did not err or abuse its discr etion in c oncluding that the reta liation claim was not a

health-c are -liability

claim and ther efor e deny ing T rinity ’s motion to dis miss. W e

overr ule Trinity ’s three appellate issues.

Did the Trial C

ourt E rr in Dis m issin g the Ku m etses’ “Billing C laim s”?
I n their cross-appe al, t he Kumetses cont en d in one is sue t hat t he trial court abused its discretion by dismiss ing what they char acte rize as their claims for “imprope r m ed i ca l billing, whether under fra

ud or neg lige nce theory .” Unlike the reta liation claim, the alleg ations of improper medical billing wer e subsumed within the cause s of action for fra ud and neg lige nt misrepre sentation and for DTP A violations that arose out of and rela ted to events that occur red during Yevg eniy a’s residenc y at the nursing home. The live pleading did n o t i nclude a separ ate cause of action for fra udulent billing for any conduct unrela ted to Yevg eniy a’s car e. And, in contra st to their reta liation claim, the Kumetses alleg ed mental and emotional injury , not pure economic harm, resulting from the alleg edly

fra udulent conduct.

16Under the second element of a health-c are -liability claim, we examine the alleg ations

that form the “ca

use of action,” a term not expressly define d under the TML A. The supreme court has observe d that a “ca

use of action” may be reg arde d “as a fac t or fac ts entitling one to instit ute and maintain an action, which must be alleg ed and proved in order t o o btain relief ,” or a “g roup of
opera tive fac ts g iving rise to one or more bases for suing.” In re Jorden , 249 S.W .3d 416, 421 (Tex. 2008) (orig

. proce eding ) (quoting A.H. Belo Corp. v. Blanton , 129 S.W .2d 619, 621 (Tex. 1939), and Bla ck’s L aw Dictionary 235 (8th ed. 2004)). I nformed by this understanding , when deter mining whether a cause of action constitutes a health-c are -liability claim, we look to the fac ts upon which relief is soug ht, rathe r than the manner in which the cause of action is pleade d. See
Y amada v. Friend , 335 S.W .3d 192, 196-97 (Tex. 20 10). When the essenc e of the suit is a health-c are -liability claim, a party cannot avoid the requirem en t s o f the statute throug h artful pleading

. Id. I f the fac ts complain of an act or omission that is an “insepa rable part of the rendition of medical service s,” then the cause of action is a health-c are-l iability claim. Diversicare Gen. Partner, Inc. , 185 S.W .3d at 848. I n deter mining whether a claim is insepara ble from the rendition of m edica l service s, we may consider suc h fac tors as (1) whether a spec ialized standard of car e in the health-c are community applies to the circ umstances in question; (2) whether the alleg ed fac ts or omissions involve medical judgme nt rela ted to the p ati ent’s car e or trea tment; and (3) whether medical- expert testimony would be neede d t o p ro v e t h e cause of action. Id. at 851-52; Drewery , 344 S.W .3d at 502.

17A revie w of the alleg ations that include the Kumetses’ asser tion of fra udulent billing

reve als that they include numerous complaints reg arding the quality , quantity , and ratio of licensed

nurses and trained personne l who provided car e to Yevg eniy a. For example, the Kumetses alleg ed:

• defe ndants made misrepre sentations including statements reg ardin g the quality , quantity , and ratio o f l icense d nurses and profe ssionally trained p er s onnel in the fac ility and advised them that trained personne l would b e providing service s to Yevg eniy a;

• as a result of the misrepre sentations, Yevg eniy a s uffe red injuries such as being dropped dur ing a

transfe r;

• defe ndants continued to r epre sent to the Kumetses that they wer e providing service s that they wer e not provi d i n g and that the Kumetses relied to their detriment on the false statements reg arding service s provided and quality and quantity of license d and prof

essionally trained pe rsonnel;

• defe ndants submitt ed claims to the g overnme nt for Medica id reimburse ment of service s to Yevg eniy a that did not take place and that such mistakes in the trea tment of and billing we re neg lige nt and constituted neg lige nt misrepre sentations.

The es s en ce of the Kumetses’ claims cente r around whether Yevg eniy a rec eived the appropr iate
restora tive thera

py and nursing home service s — clea rly health-c are -liability claims. The same fac ts that the Kumetses rely on to support their alleg ations of neg lige nce, fra ud, and neg lige nt misrepre sentation are the basis for the alleg ation of billing fra ud. For example, the Kumetses alleg e:
By the actions and omissions complained of here in, [Trin it y ], T r isun and Threa dg ill 4 [ ] willfully failed to p ro v i d e require d car e that resulted in the deter ioration of Ms.

I ncluding , for example, failing to preve nt the deter ioration of the resident’ s ability to bathe, 4 dress, and ambulate; failing to insure that the resident maintains acc eptable para meters of nutritional status; and failing to provide phar mace utical servic es.

18Kumets and are suspected to have billed Plaintiffs and wer e reimburse d by Medica id,

for service s NOT provid ed , there by submitt ing false claims to the g overnme nt for service s not provided.
Although the Kumetses asser ted that the billing was fra udulent, the trial court could rea sonably have conclude d that it was alleg ed to be fra udulent both with reg ard to whether the se rvice s Yevg eniy a

rec eived while in the facility were carrie d out in an appropriate manner by qualified personnel, as
repr esente d they would be, as well as whether all the billed service s wer e in fac t provided. A claim 5
based on the same fac ts that are as s er t ed i n support of a health-c are -liability claim cannot be

s ep ar at ed from the health-c are -liability claim. See Y amada , 335 S.W .3d at 192-94 (“When t h e underly ing fa ct s are encompa ssed by provisions of the TML A in reg ard to a defe ndant, then all claims ag ainst that defe ndant based on those fac ts must be broug ht as health car e liability claims.”).
We conclude that the trial court did not err or abuse its discretion in deter mining that the alleg ations of billing fra

ud interming led within, and rely ing on the same fac ts as, other cause s of action that both parties conce de are health-c are -liability claims, wer e s u b j ec t to the require ments of chapte r 74. 6 Consequently , we ove rrule the Kumetses’ c ross-appe al issue.

The expert repor

t provided by the Kumetses, as it perta ins to the fra udulent billing claim, 5 observe s both that service s char g ed by phy sicians for medical car e betwee n the dates of November 6, 2007 an d Ap ri l 6, 2008 wer e denied based on questions reg arding the number of claimed phy sician visits and that “a signific ant amount of the onsite car e at Trinity Hea lth Care was provided by a nurse prac titioner.” We do not hold that a fra udulent-billing claim i s al wa y s a health-c are -liability claim. 6 Whil e a fra

udulent-billing claim alleg ing only that service s for which the patient was billed wer e not provided may well not be a health- car e-liability claim subject to the chapte r 74 require ments, we need not a ddress that que stion. 19CONCLUSION
Be cause the Kumetses did not alleg e in their reta liation claim that they or Yevg eniy a suffe red any harm other than pure economic injury as a result of the alleg ed reta liation, and beca use the fac ts underlying their reta liation cla i m ar e wh olly distinct from the fac ts underly ing their health-c are -liability claims, we conclude that that claim does n o t satisfy the third element of a health-c are -liability claim—“injury to or death of the claima nt” proxi mately resulting from the alleg edly wrong ful conduct. Acc ording ly , the trial court did not err or abuse its discretion in deny ing Trinity ’s motion to dismiss that claim. We also conclude that the trial court did not err or abuse its discretion in g ranting Trinity ’s, Trisun’s, and Threa dg ill’s motions to dismiss the Kumetses’ claims rela ted to alleg ed fr audulent billing. We ther efor e af firm the trial c ourt’s judg ment.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Concurring and Dissenting Opinion by J ustice Pemberton
Affir med Filed: Apr il 20, 2012

20