### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00473
- CV

Katrina J. (“Nina”) Morris, Appellant

v. Maansi Piparia, M.D.; April Schiemenz, M.D.; and Christina Sebestyen, M.D., P.A. d/b/a ObGyn North, Appellee s

FROM THE 353RD DISTRICT COU R T OF TRAVIS COUNTY NO. D
- 1
- GN
- 17
- 000374, THE HONORABLE TIM SULAK, JUDGE PRESIDING

O P I N I O N

In this permissive interlocutory appeal , Katrina J. ( “ Nina ” ) Morris appeals from
the trial court ’ s partial summary judgment in favor of M aansi Piparia, M

. D., April Schiemenz, M.D., and Christina Sebestyen, M.D., P.A. d/b/a ObGyn North, on Morris ’ s claim s brought under
the T e xas Medical Liability Act ( TMLA)

. S ee Tex. Civ. Prac. & R e m. Code § § 51.014(d)

– (f) (authorizing permissive ap peals) , 74. 15 3 1 ( outli ni ng standard of proof governin g cases involving emergency medical care )

. Morris contends that the trial court erred in determining that the medical care appellees provided to treat her post

- C

- section hemorrhagin g constitute d “ emergency

me dical care ” as d ef

ined in the TMLA , triggering th e “ willful a nd w anton standard of proof ” for

1 Section 74.153 of the TMLA was amende d effectiv e Septemb e r 1, 2019, but those amendments do not apply to this lawsuit , which was filed before the amendments ’ effective date

. See Act of May 22, 2019, 86th Leg. , R. S. , ch. 1364, § § 1, 2 , 2019 Tex. Se ss . L aw Serv. 5126 , 5126

. T herefore, references to S ect ion 74.15 3 are to the version that was in effect when Morris fi led her lawsuit.2

Mo rris to prevail

. See id. § 74.153

. For the reasons ex plained below , we will aff irm the tria l

court ’ s partial summary judgment.

BA CKGROUND

Morris seeks to r ecover damages f or personal injuries she allegedl y sustained as a
result of appellees ’ medical malpractice and negligence. She allege s in her petition that she presented to St. D a v id ’ s Nor t h Austin Medical Center on January 2 9, 2015, for induction of
l abo r for her fi rst chi ld. “ After a trial of labor, ” she allege s , “ the decision was made to proceed
with a cesarean se ction due to arrest of descent. ” The C

- section was completed in t he early morning hours of January 31, 201 5, but t hereafter Morris “ experien ced signif icant po s t

- partum hemorrhaging ” beginni ng at 3:34 a.m. She alleges that hypotension and tachycardia accompanied her hemorrhaging but that appellees “ spent three hours ineffect i vely attemptin g to stop the bleeding rather than proceeding to def initi ve tr eatment ( i.e ., hysterect omy). ” D ue to appelle es ’ alleged failure s to follow the hospital ’ s “ Perinatal Hemorrhage Protoc ol ” ; to adequat e ly monitor
her ; and to administer s ufficien t plasma , platelets, and blood

- c lotting medicine, Morris ’ s “ pu lse

w as lost ” an d she “ c ode d ” t wice. Although she was “ ultim ately resuscitated, ” Morris alleges that
she suffered “ an anoxic brain injury and other sequ elae as a result of the [heart] a rrests. ”

A fter discovery, a ppellees moved for traditional and no

- evidence summary judgment , con te nding that the care they prov ided Morris beginning at 3:34 a.m. constituted

“ emergency medical care ” under S ection 74.001(a)(7) of the TMLA, re quiring Morr i s to prove willful and wanton negligence as provided by S ecti on 74.153 , of which she could pr oduce no evidence

. See id. §§ 74.00 1(a)(7) , . 153. A f ter a hearing, the trial cou rt granted appellees partial summary j udgment for the care they prov ided Morris b etw een 3:34 a.m. and 6: 20 a .m
. but3

dete rmined that “ a fact is sue exis ts as to whether the car e at issue in this case provided to
Plaintiff from [ 6:20 a.m. ] until [7:18 a.m.] consti tuted ‘ emergency medical care ’ as defined by ”

s ection 74.001(a)(7) and that Morris ’ s claims as to the latter period “ may proceed to trial

. ” 2

Ho wever, finding that “ an i mmedia te interl ocutory appeal from t he portion of ” the order granting

summary judgment “ may materially advance the ultimate termination of the litigation , ” the tr i al

court granted Morri s ’ s motion to pursue an interloc utory a ppeal and stayed all further

pro ceedin gs pen ding resolution of the i nterl ocutory appeal

.

In its order, the trial court made the following substa ntive rulings on the legal questions pr esented in ap p ellees ’ motion for summary judgment:

1. Se ction 74.001(a)( 7) doe s not require the patient to prese nt to the hospital obstetric al unit with an “ original ” medi cal e mer gency to trigger the application of section 74.153 ’ s willful and wanton neglige nce standard o f proof. Rathe r, th e post

- partum hemorrhage discovered after the cesarean

section deliv ery was the “ original ” medical emerg ency , requiring the Plaintiff t o present legally sufficien t e vidence fro m a qu alified expert that Defendants, with willful and w anto n negligence, deviated fro m the degree of care and skill that is reasonably expected of an or din arily prudent physician or h ealth care provide[r] in the sa me or similar circumstances.
2. Sec tion 74.001(a)(7) does not exclude bona fide emergency services provi d ed to a patient who initially pr esents to the hospital obstet ric al unit as stable and c apable a t that time of being treated as a non
- emergency patient, bu t who later develops the sudden onset of a medical or tr aumatic condition as de scribed in that provis i on. Appl ied here, Plaintiff did not have to in itia lly presen t to the hosp ital obstetri cal unit with an emergency for the D efe ndants ’ care from 0334 until 0620 to fall within the definition of “ emergency medical care ” found in section 74.001 ( a)(7) , and to trigger the applicati on of the willful and wanton negli ge nce standard of proof required by sect ion 74.153 for Defendant s ’ t reatment during that time period

.

2 In her r esponse to appellees ’ su mmary
- judgment motion, M o rris argued that ev en if the trial co urt agreed with appellees that porti ons of the care they provi ded her constitut ed

“ emerg ency medical care ” under the TMLA, the care they provided her a fter 6 : 20 a.m. did not meet the statutory defin ition as a matter o f law b ecause there was a g enu ine iss ue of material fact as t o whether sh e was “ stab le ” after 6: 20 a

. m
. , when appellee s complet ed a uterine artery ligation and stopped the bleeding.4 DISCUSSION
This a ppeal presents issues of statutory construction , which we review d e novo
. Greater Hous

. P ’ship v. Paxton , 468 S.W.3d 51, 58 (Tex. 201 5)

. W hen construing a statute, ou r primary objective is to ascertai n and give effect to the l egislature ’ s intent without unduly restricting or expanding the act ’ s scope. City of Lorena v. BMTP Holdings, L.P. , 409 S.W.3d 634, 641 (Tex. 2013)

. We seek tha t inte nt first and foremost in the plain me aning of the text. Id

. “Undefined terms in a s tatute are typically given their ordinary meaning, but if a different or

more p recise definition is apparent from the term ’ s use in the context of the statute, we ap ply
th at meaning.” TGS

– NOPEC Geop hysical Co . v. Combs , 340 S.W.3d 4 32, 439 (Tex. 2011)

.

“ However, we will not give an undefined term a meaning that is out of harmony or in consistent
with other terms in the statute.” State v. $1,760.00 in U.S. Currency , 406 S. W.3d 177, 180 (Tex. 2013)

. We resort t o rules of construction or extrinsic aids only when a statute ’ s words are ambiguous. Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 437 (Tex. 2009)

.

Morris contends that TMLA S ection 74.001(a)(7 ) ’ s def initio n of “ emergency medical care ” does not apply to her claims and that she is not theref ore required to prove that appellees acted with willful and wanton negligence 3 under S ection 74.153 , which provides :
In a suit involving a health care liability cla im aga inst a physician or health c are provide r for injury to or deat h of a patien t arising out of the provis ion of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatm ent of a patient in a hospit al emergenc y department, the claim an t bringing the suit may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted stand ards of medical care or health care only if the

3 Morris does not c hallenge t he trial court ’ s imp lied ruling that , if the willful

- and

- wanto n standar d applies, she d id not prese nt a ny evidence creating a genuine issue of ma terial fact on wh e ther app e l lees acted with willful and w anton negligence.5

claim ant shows by a preponderance of the ev idence that the physicia n or health c are provider, with wil [l] fu l and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an or dinarily prudent physician or health care pr ovider in the same or similar circ umstances.

Tex . Civ. Prac. & Rem. Code § 74.15 3 (emphasis ad ded)

. The TMLA , in turn, defi nes “ emergency medical car e ” as

[B]o na fide emergency services provided after the su dden onset of a medical or traumatic condition manifesting itself by acu te sym pt om s of suffi cien t sever ity , including sever e pain, such that th e absence o f immediate medical attention coul d reasonab ly be expe cted to result in placing the patient ’ s health i n serious jeopardy, serious impairment to bodily functions, or serious d ysfunc tion of any bo dily organ or p art. The term does not include m edi cal care or treat ment tha t occurs after the patient is stabilized and is capable of receiving med ical treat ment a s a nonemergency patient or that is unrelated to the original medical em ergenc y.

I d. § 74.00 1(a)(7) (emphasis added )

.

Morris doe s not co nte nd that the me dical care she received between 3:34 a.m. and
6:20 a.m. doe s n ot meet the first senten ce of the above defin ition. Rather, in two iss ues she
contends that one or both of t he exc lusi ons in the l atter sentence apply

. See i d. Common to both
issues is Morris ’ s ar gument that the exclusion s “ unambigu o usly require that a patient initially present [ to the hospital emergency department or obstetrical unit] with a medical emergency for

t he h eightened st andard of care [i.e., willful and wa nton ne gli gence] ” to app ly. We disagree

.

N oth ing in S ection 74.001(a)(7) ’ s first sentence indicate s where or when the

“ su dden onset of a medical or traumatic condition ” m ust occ u r for the car e rendered in response

to consti tute “ emergency medical ca re
. ” Morris ’ s proposed construction

— that s uch “ onset ”

must occur before a patient presents to a ho spital emergency department or ob stetrical unit

— would require us to engraft an ex tra

- statutor y requirement onto t he statute ’ s text , w hich we may

not do

. See PHI, I

nc. v. Texas Juv

. Just

. Dep ’ t , 593 S.W .3d 296, 30 5 (Tex. 2019) ( “ [N]o court6

has the authority, under the guise of interpreting a statu te, to engraft extra

- statutory require m ents
not fou nd in a statu te ’ s te xt. ” )

. P ati ents f requently pre sent to hospital emergency dep artments

an d obstetrical u nits for care other than “ bon a fide emergency services , ” as Morris herself did

. In light of that reality, w e co nclude th at i f the legislature had intended for t he defin ition to appl y onl y to p atient s who initially present to a hospital e mergency department or obstetrical unit with

a medical eme rgency , rather than also to patients who devel op medical emergencies while being
treated for non

- eme rg encies , it could and would have s ai d so in a straightforward fashion rathe r than in t he strained way that M o rris proposes

— via the exc lusions limiting the general definition
in the first se ntence

.

Specifically a s to the latter ex clusion

— whether the me di cal serv ices at issue were

“ un related to t he o riginal medic al emergency ”

— Morris relies en tire ly on the word “ ori ginal

. ” She urges that because the phrase reads “ the orig inal medical e mergency ” rather than sim ply

“ th e med ical emergency, ” th e word “ original ” must mean that the patient ’ s presence in the hospital emerge ncy department or ob stetri cal u nit , in the first i nstance, is the result of an

emergency ; otherwise , she contends , the word would be superfluous

. However , as already
discussed , the statute cannot reasonably be construed t o include s uch a requireme n t without adding requ irements to the first sentenc e of S ection 74.001(a) (7) that do not appear in the plain

text

. Instead, the only reasonable construction of the phrase “ original medical emer gency , ” when
read in context of the whole parag ra ph , is that it serves merely as a short hand refer ence to
the earlier len gthy descri ption of a n emergency condition requiring “ bona fide emergency
servic es ”

— i.e.,

the su dden ons et of a medical or traumatic conditi on manifesting itself by acute sympt oms of su fficien t sever ity , including sever e pain, such that the absence of7

immediate medical at tention coul d reasonab ly be expected to result in placing the patient ’ s health i n seriou s jeopardy, serious impairment to bo dily functions, or serious dys function of a ny bodily organ or p art

.

See Tex. Civ. Prac. & Rem. Code § 74.001(a) (7)

. T he common , ordinary meaning of the
word “ ori ginal ” is “ of, relating to, or constituting an or igin or beginning : i nitial. ” See Or igina l , Merriam

- We bster .c om Dictionar y , htt ps://www.me rriam

- webster.com/dictionary/original (l ast
visited February 8, 2021 ) ; see also Texas State Bd. of Exam ’ rs of Marriage & Fam. Therapists v.
Texas Med. Ass ’ n , 511 S.W.3d 28, 34

– 35 (Tex. 2017) ( noting that when stat ute does not define
term, courts ap ply it s common, o rdinary meaning unless different meaning is implied from

statute ’ s language and “ look first ” to term ’ s dictionary defini tion ). Therefore, the phra se

“ ori ginal medica l emergency ” simply refer s to the initial “ sud den onset of a medical or t r aumat ic
condi tio n ” requiring “ bona fide emergency servi ces ” so as to distinguish such services from
later

- rendered services “ unrelated ” to that initial condition. I t dictates nothin g about when or where the me dical emergency must occur.

The Texas S upreme Court has rece ntly recognized that a patient can present to an obstetrical un it for routine labo r and delivery and then, during that medical care or treatment, develop an obste trical emergency that trig gers S ection 74.153 ’ s heightened st andard

. Se e Glenn
v. Le al , 596 S .W.3d 769, 77 1

– 72 (T ex. 2020) (per curiam) ( ho lding that p atient need not be
treated in emer gency department before receiving emergency care in obstetrical unit t o trigger
S ection 74.153 standard of willful and wanton negligence ) ; T e xa s Heal th Pre sbyterian Hosp. of
Denton v. D.A. , 569 S.W.3d 126 , 137 (Tex. 2018) ( same ). While the supreme court in Glenn and
Texas Health did not expressly address the exc lusion s at i ssue in th i s case, we believe that th ose8

opinions provide guidance for ap plicat ion of the stat ute in this case and support our

construct ion

. 4
As to the other exc lusio n , Morri s argues in her b rief that she

was stable and capable of receiving medical treatment as a nonemergency patient when she presented to hospital ’ s obste tri cal unit o n January 2 9, 2015 ; therefore , hospital care that occurred thi rty

- tw o hours later on Januar y 31, 2015 is care that occurred after she w as st able and capable of receiving medical treatment as a non

em ergency patient.

B esides being c onclusory, howev er, Morris ’ s argume nt does not follow the statute , which refers
to a pa tient being “ stabilized, ” not “ stabl e. ” See Te x. Civ. Prac. & Rem. Code § 74.001(a)(7)

. In
th e co ntext of S ection 74.001(a) (7) , par ticularly considering that the exc lusion follow s the

s cenario outlined in th e first sentence ( i.e., that a patie nt first has a medical emer gency ), the word

“ s tabilize” f

unctions as a transitive verb , requiring an object ( i .e., a pati ent ) upon whom a sub ject ( i .e., a medical pr ovider ) acts

. S ee Stabili ze , Merriam

- Web ster .com Dict i onary, www. merriam

webster.com/dictionary/stabilize (last visited Febr uary 8 , 2021 ) (d e noting “ sta bilize ” as transitive verb meaning “ to make stab le, steadfast, o r firm ” ) ; see also Great er Hous

. P ’ ship , 468 S.W.3d

at 5 9 (noting that because c ommon wor ds often have multiple dicti onary definitions, courts look

to context ual clues in statute to determine which definition is “ most apposite” )

. In othe r words,
the exc lusion unambiguously refers to care that is provided to a patient w ho ha d at some point bec ome unst able ( i.e., by the “ sudden onset of a m e dical or trauma tic conditi on . . . ” ) but
who has since been sta bilized ( i.e., by medical provider s ) s o as to no longer require care as

4 We also de c line Morris ’ s invitation to consider as legislative intent the remarks of individua l legislat ors discussing the TMLA

. S e e T e xas Health Presbyterian Hosp. of Denton v. D.A. , 569 S.W.3d 126, 136

– 37 (Tex. 2018) (noting that courts do not rely on ex trin sic construction aids when stat u te is unambiguous and t hat in div idual legislato r ’ s intent does not represent legislature ’ s intent)

.9

an emerg ency pa tient

. Morris ’ s proposed co nstruc tion of the sta tute woul d r ender the ex clusio n meaningless, because the e ssence of an emergen cy is that a p erson sudden ly progresses from

a “ stable ” condition to a se verely threate n e d one ; if the patient presented to the ho spital o r obstetrical unit in a s table condition , there w oul d be no need for an exclusion for that person ’ s

care provide d after a dmission to the facility because there would be no medical emergency in the
f irst place

. We therefore overrule Morris ’ s second issue. 5

CONCLUSION
Havin g de termine d that the trial co u rt properly cons trued and applied S ection s 74.001(a)(7) and 74.15 3 of the TMLA, w e affirm its par tial summary j ud gment.

______________ ___________________ _________ Thomas J. B aker , Justice
Before Justices Goodwin, Ba ker, and Ke lly
Affirmed
Filed: February 10, 2021

5 In the argument section of her brief, Morris additionally conte nds that “ some ” of the care at issue was rendered in a “ surgical suite ” and therefore

— because it is und isputed that she had no t first been eval uated or treated in the hosp ita l ’ s emergency depart ment

— that the medical care is not su bject to the h eight e ned stand ard of ca re
. See Tex. Civ. Prac. & Rem. Code § 74.153 ( re quiring claimant to prove h eightened negligence standard in su it arising out of provision of emergency medical care “ in a surgical suite immediately following the eva lua tion or treatment of a pa tien t in a hospi tal emergency depa rtment ” ) . However, Morris has waived this issue because she did not raise i t in oppositio n to appell ee s ’ summary
- judgmen t mo tion , and we may not consider as grounds for reversal of a summary judgm ent any issue not ex pressly p resented to the trial court

. See Tex. R. Civ. P. 166a(c) ; State Bd. of Ins. v. Westland Film Indus. , 70 5 S.W.2d 695, 69 6 (Tex. 198 6) (per c uriam); Texas Dep ’ t of I n s. v. Ins urance Co. of Pa. , 306 S.W.3d 897, 903 (Tex. App.

— Aus tin 201 0, no pet.)

.