In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-13-00255-CV 

________________________

SAN JUANITA AND MAX GRIEGO, APPELLANTS 

 

V. 

 

BAPTIST SAINT ANTHONY’S HEALTH SYSTEM, A/K/A BAPTIST SAINT 

ANTHONY’S HOSPITAL CORPORATION, APPELLEE 

 

 

On Appeal from the 181st District Court 

Potter County, Texas 

Trial Court No. 97233-B; Honorable John B. Board, Presiding 

 

February 5, 2015 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

Pursuant to section 74.351 of the Texas Civil Practices and Remedies Code, the 

trial court dismissed the claims of Appellants, San Juanita (Janie) Griego and Max 

Griego, against Appellee, Baptist Saint Anthony’s Health System, a/k/a Baptist Saint 
2

Anthony’s Hospital Corporation, due to their failure to timely file an expert report.1 By 

three issues, Appellants assert (1) their negligence action does not raise a health care 

liability claim, (2) the trial court erred by retroactively applying the Texas Supreme 

Court’s holding in Texas West Oaks Hospital, LP v. Williams,

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and (3) the trial court 

erred by failing to grant them an extension of time within which to file an expert report.

By a supplemental, post-submission brief filed with leave of this Court, Appellants 

raise two additional issues which are essentially identical: (1) whether the trial court 

erred in granting Appellee’s motion to dismiss because that motion was not timely filed

and (2) whether Appellee waived the right to seek a dismissal under Chapter 74 by not 

filing its motion to dismiss until after the deadline for motions under the trial court’s 

scheduling order. 

With regard to the three issues originally raised, Appellees contend the trial court 

properly classified Appellants’ claims as health care liability claims, did not err in 

retroactively applying Texas West Oaks Hospital, and could not statutorily grant an 

extension of time to file a conforming expert report. Concerning the two issues raised 

by the supplemental briefing, Appellee contends Appellants did not properly preserve 

their arguments for appeal and the trial court implicitly modified its scheduling order by 

ruling on Appellee’s motion to dismiss. We affirm. 

 

1

 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(2) (West Supp. 2014). Section 74.351(b) 

provides, “[i]f, as to a defendant physician or health care provider, an expert report has not been served 

within the period specified by Subsection (a), the court, on the motion of the affected physician or health 

care provider, shall . . . enter an order that . . . (2) dismisses the claim with respect to the physician or 

health care provider, with prejudice to the refiling of the claim.”

2

Tex. West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012).
3

BACKGROUND

In January 2009, Appellants filed suit against Appellee alleging that on May 27, 

2007, while acting as Appellee’s employee, Janie sustained injuries when she was 

assaulted by a patient at the hospital. According to Appellants’ pleadings, in the course 

of her employment as a nurse technician, another nurse asked Janie to sit with a patient 

in the neurology unit. When she entered the patient’s room, the patient was 

sitting/standing on the edge of the bed and had pulled the “Call Button/Light” off the 

wall. His IV and catheter were entangled. 

Janie told the patient she was going to help him back into bed. He responded 

that he wanted to go home. As she was helping him into bed, he started assaulting her. 

She cried for help but the patient continued assaulting her until he knocked her down 

onto the floor. He then got on top of her and continued his assault. According to 

Appellants’ allegations, Janie continued to yell and scream for approximately fifteen to 

twenty minutes before hospital security arrived and restrained the patient. Janie was 

then taken to the emergency room of the hospital where she was treated for injuries to 

her neck, spine and back. As a result thereof, Appellants asserted Appellee was 

negligent in failing to (1) maintain a safe workplace, (2) adequately train Janie for the 

task assigned, (3) provide adequate assistance, (4) warn her of unreasonable dangers 

and risks of harm to which she was exposed while in the employment of Appellee, (5) 

warn her of the defects and safety hazards present in her work environment, and (6) 

warn her of the patient’s condition prior to her entering his room.3 

 

3

There was no patient’s chart outside the patient’s room. Among other things, the patient’s 

medical records indicated he had a possible psychiatric disorder, engaged in violent outbursts, was 

periodically disoriented, suffered from Alzheimer’s, was restless, cursed, was confused, was non-
4

On February 9, 2009, Appellee filed an answer generally denying those 

allegations and asserting both special exceptions and affirmative defenses. Thereafter, 

the parties engaged in general discovery. More than two years later, on May 16, 2011, 

the trial court signed an agreed scheduling order and discovery control plan that 

required “all motions” (other than motions in limine) be filed on or before August 12, 

2011. On that deadline, Appellants filed their First Amended Petition and Appellee filed 

its Traditional and No-Evidence Motions for Final Summary Judgment. After a flurry of 

discovery, including the filing by both parties of motions pertaining to the summary 

judgment motions and related discovery, on January 22, 2013, more than four years 

after the original petition was filed and over seventeen months after the motions 

deadline, Appellee filed, for the first time, its Motion to Dismiss for Failure to Serve 

Section 74.351 Expert Report on the basis that Appellants never filed an expert report 

pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code.

4

 In filing its 

motion to dismiss, Appellee never filed a motion to modify the scheduling order or 

otherwise seek leave of the trial court to file that motion.

Appellee’s motion to dismiss relied heavily on the then recent opinion of the 

Texas Supreme Court in Texas West Oaks Hospital v. Williams, wherein it held that it 

was the gravamen of the claim and not the status of the claimant that determines 

 

compliant, complained about wanting more drugs (his toxicology screen showed positive for a variety of 

illegal substances), had a history of drug and alcohol abuse, engaged in inappropriate behavior, was 

hostile and suffered from dizziness. 

4

An “expert report” means a “written report by an expert that provides a fair summary of the 

expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which 

the care rendered by the physician or health care provider failed to meet the standards, and the causal 

relationship between the failure and the injury, harm, or damages claimed.” TEX. CIV. PRAC. & REM. CODE 

ANN. § 74.351(r)(6) (West Supp. 2014). 
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whether a particular claim falls within the provisions of the Texas Medical Liability Act.

5

 

See Tex. West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012). 

Appellants responded by contending their claim was not a health care liability claim and 

that, if it was, they should have the opportunity to file an expert report because the 

Texas West Oaks Hospital case marked a dramatic change in the law concerning 

whether claims similar to those being asserted by Appellants were, in fact, health care 

liability claims. In responding to Appellee’s motion to dismiss, Appellants never 

challenged the filing of the motion on the basis that it was untimely. Having considered 

the motion to dismiss, as well as Appellants’ response, and all other briefing, the trial 

court issued its order dismissing Appellants’ claims with prejudice. This appeal 

followed. 

For purposes of logical analysis, before addressing Appellants’ original issues, 

we must first address the two issues raised by their post-submission supplemental 

briefing. 

SUPPLEMENTAL ISSUES ONE AND TWO—TIMELINESS OF MOTION TO DISMISS

Appellants contend the trial court should not have considered Appellee’s motion 

to dismiss because that motion was not timely filed in accordance with the trial court’s 

scheduling order. Effectively, Appellants contend Appellee waived its right to present a 

section 74.351(b) motion to dismiss because it delayed the filing of that motion until 

 

5

TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.001-.507 (West 2011 and Supp. 2014). The current 

version of the Texas Medical Liability Act applies to suits filed on or after September 1, 2013. Act of May 

24, 2013, 83rd Leg., R.S., ch. 870, § 3(b), 2013 Tex. Gen. Laws 2217. Because this suit was filed before 

September 1, 2013, the former version of the Act applies to the instant appeal. See Act of May 18, 2005, 

79th Leg., R.S., ch. 635, § 2, 2005 Tex. Gen. Laws 1590. Accordingly, all references to “§” or “section” 

are references to the Code prior to the 2013 amendment. 
6

after the deadline for filing motions and almost four years after their original 

appearance. 

In general, as a prerequisite to presenting a complaint for appellate review, the 

record must show that the complaint was made to the trial court by a timely request, 

objection, or motion that stated the grounds for the ruling that the complaining party 

sought from the trial court with sufficient specificity to make the trial court aware of the 

complaint, unless the specific grounds were apparent from the context. TEX. R. APP. P.

33.1(a). Here, Appellants did not present to the trial court any arguments concerning 

the timeliness of the motion to dismiss. They did not argue procedural bar, waiver, 

estoppel, or laches. Accordingly, the trial court was never afforded the opportunity to 

consider their complaints before ruling on the motion to dismiss. Because Appellants 

failed to raise this matter below, they waived any complaint concerning the timeliness of 

Appellee’s motion to dismiss. Supplemental issues one and two are overruled.

FIRST ISSUE—HEALTH CARE LIABILITY CLAIM

Appellants contend their pleadings do not state a health care liability claim 

because their action is premised on Appellee’s failure to warn Janie about the patient’s 

mental and physical condition. As such, they assert their claim is a garden-variety 

negligence claim and exempt from the strictures of Chapter 74 of the Texas Civil

Practice and Remedies Code. We disagree.

A “health care liability claim” is a cause of action (1) against a health care 

provider or physician (2) for treatment, lack of treatment, or other claimed departure 

from accepted standards of medical care, or health care, or safety or professional or 
7

administrative services directly related to health care, (3) 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. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West Supp. 

2014). No one disputes whether Appellants’ claims meet the first and third elements of 

a health care liability claim; instead, their appeal centers on the second element, i.e., 

whether their cause of action is premised on “a departure from accepted standards 

of . . . safety or professional or administrative services directly related to health care.” 

Thus, we are left to determine whether Appellants are asserting a health care liability 

claim when they contend that Appellee failed to maintain a safe workplace by failing to 

(1) adequately train Janie for the task assigned, (2) provide adequate assistance, (3) 

warn her of unreasonable dangers and risks of harm to which she was exposed while in 

the employment of Appellee, (4) warn her of the defects and safety hazards present in 

her work environment, and (5) warn her of the patient’s condition prior to her entering 

his room.

In Texas West Oaks Hospital, a psychiatric technician and caregiver, Frederick 

Williams, was asked to perform a one-on-one observation of a patient with a history of 

paranoid schizophrenia including manic outbursts and violent behavior. Tex. West 

Oaks Hosp., LP, 371 S.W.3d at 174-75. While he was engaged in that observation, a 

physical altercation occurred resulting in the patient’s death and injuries to Williams. He 

brought suit against his employer, the mental health hospital, alleging injuries arising out 

of inadequate training, supervision, risk-mitigation and safety in a mental health facility. 

The Supreme Court held that Williams’s claim against his employer was a health care 

liability claim because he sought damages for injuries caused by “departures from 

accepted standards of safety.” Id. at 186 (“the safety component of health care liability 
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claims need not be directly related to the provision of health care”). Equally applicable 

to Appellants’ arguments in this case, the Supreme Court further stated, “[a]n expert 

report detailing the departure from standards would still be relevant in a case, such as 

this, where a non-patient alleges that the health care provider’s deviations from 

accepted standards led to his injury. As explained, expert testimony is necessary to 

specify the departure from accepted standards leading to the injury.” Id. at 190. 

More recently, in Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (Tex. 2013), 

a treatment facility mental health professional/psychiatric nurse was injured at work 

while physically restraining a psychiatric patient during a behavioral emergency and, as 

a result of those injuries, asserted an action for negligence against the facility. Id. at 

726. Palit asserted “he was injured ‘as a result of improper security of a dangerous 

psychiatric patient’ because the treatment facility ‘failed to provide a safe working 

environment and failed to make sufficient precautions for [his] safety.’” Id. The 

Supreme Court held Palit’s claim was a health care liability claim because he alleged 

the treatment facility departed from the accepted standards of safety and expert health 

care testimony was necessary to support or refute his allegations. Id.

Because Appellants’ claims, like those in Texas West Oaks Hospital and 

Psychiatric Solutions, Inc., are claims that Appellee failed to provide a safe working 

environment and failed to take the proper precautions for an employee’s safety, we see 

no basis for distinguishing those cases from the case at bar. As such, we conclude that 

Appellants’ claims are health care liability claims subject to the requirement of a timely 

filed expert report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 
9

2014). See also Psychiatric Solutions, Inc., 414 S.W.3d at 726; Tex. West Oaks Hosp.,

LP, 371 S.W.3d at 186. Appellants’ first issue is overruled. 

SECOND ISSUE—RETROACTIVE APPLICATION OF TEXAS WEST OAKS HOSPITAL, LP V.

WILLIAMS AND PSYCHIATRIC SOLUTIONS, INC. V. PALIT

Appellants next contend that we should only apply the Supreme Court’s holdings 

in Texas West Oaks Hospital and Psychiatric Solutions, Inc. prospectively because the 

rule espoused by the two cases was not clearly foreshadowed in 2009 when Appellants’

claims were filed and the parties had already engaged in discovery without expert 

reports. While we are not entirely unsympathetic to Appellants’ predicament, we

conclude the holdings therein should be applied retrospectively.

Although the Supreme Court can determine whether to apply a particular holding 

prospectively, the general rule is that its decisions apply retroactively. See Texas Boll 

Weevil Eradication Foundation, Inc. v. Lewellen, 952 S.W.2d 454, 454 (Tex. 1996). 

Whether a Supreme Court decision applies retroactively or prospectively only is a 

matter within the discretion of that Court, and we must apply a Supreme Court decision 

retroactively unless that Court exercises its discretion to modify the application of that 

general principle. Jackson v. Williams Brothers Construction Co., 364 S.W.3d 317, 323-

24 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). Thus, when the applicable law 

changes during the pendency of an appeal because of an opinion by the Supreme 

Court, we must render our decision in light of the change in the law. Continental 

Casualty Company v. Baker, 355 S.W.3d 375, 386 (Tex. App.—Houston [1st Dist.] 

2011, no pet.). 
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Because neither Texas West Oaks Hospital nor Psychiatric Solutions, Inc. 

contain language evidencing the intent of the Supreme Court to apply its holdings 

prospectively only, we conclude the Court intended the opinions to apply 

retrospectively. Picket v. Texas Mutual Insurance Co., 239 S.W.3d 826, 833 (Tex. 

App.—Austin 2007, no pet.). Furthermore, both cases merely interpret the provisions of 

the Medical Liability Act as enacted. They do not adopt a new statement of the law or 

overrule a previous interpretation of the statute. Accordingly, Appellants’ second issue 

is overruled.

THIRD ISSUE—EQUITABLE EXTENSION OF TIME

Finally, Appellants alternatively assert the trial court erred by denying their

motion for an extension of time to file an expert report. They contend that because an 

expert report was not required when the suit was filed and only became a requirement

after the Supreme Court rendered its decision in Texas West Oaks Hospital, then the 

trial court should have granted them an extension of time within which to file an expert 

report. Appellee contends Appellants are not entitled to an extension because no report 

was timely filed and a party may obtain an extension only if a timely filed report has 

been found to be deficient.

Although section 74.351(c) authorizes a court to grant a thirty-day extension to 

the deadline for filing an expert report, such an extension is only available to allow a 

claimant to cure deficiencies in a report that has been timely served.6 See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a), (c) (West Supp. 2014); Badiga v. Lopez, 274 

 

6

Section 74.351(c) states that “[i]f an expert report has not been served within the period 

specified by Subsection (a) [i.e., not later than the 120th day after the date each defendant’s original 

answer is filed] because elements of the report are found deficient, the court may grant one 30-day 

extension to the claimant in order to cure the deficiency.” See TEX. CIV. PRAC. & REM. CODE ANN. §

74.351(a), (c) (West Supp. 2014) (emphasis added).
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S.W.3d 681, 684-85 (Tex. 2009) (holding that “in the absence of a timely report, the trial 

court cannot properly grant an extension under section 74.351”); Leland v. Brandal, 257 

S.W.3d 204, 207 (Tex. 2009) (holding that statute permits a thirty-day extension when 

an intermediate appellate court finds a report to be deficient that the trial court 

considered adequate); Ogletree v. Matthews, 262 S.W.3d 316, 320 (Tex. 2007) (holding 

that statute allows trial court to grant one thirty-day extension to cure a deficient report). 

The thirty-day extension rule is not applicable when no report has been filed. Id. at 320

n.2 (stating that “[i]n this important respect, a deficient report differs from an absent 

report”). 

We review a trial court’s ruling on a motion for extension of time to file an expert 

report under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 

(Tex. 2003); Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 336 (Tex. App.—Texarkana 

2004, pet. denied). The trial court commits an abuse of discretion by acting without 

reference to any guiding rules and principles. Downer v. Aquarmarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985).

Here, Appellants filed no report. Because there was neither an expert report 

served within the statutory deadline nor a report where the elements of that report were 

found to be deficient, the trial court had no discretion to grant a thirty-day extension. 

Under these circumstances, the trial court did not abuse its discretion by denying 

Appellants’ motion for an extension of time within which to file an expert report. 

Appellants’ third issue is overruled.
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CONCLUSION

The trial court’s order is affirmed. 

Patrick A. Pirtle

 Justice