Court of Appeals of Texas,
Houston (1st Dist.).
MARINE TRANSPORT CORPORATION, Appellant,
THE METHODIST HOSPITAL; The Institute for Preventative Medicine/Methodist Healthcare Systems, The Methodist Hospital/Institute for Preventative Medicine Management, Inc. and Rashid Khan, Appellees.
July 20, 2006.
Attorneys & Firms
*143 James T. Brown, Legge Farrow Kimmitt McGrath & Brown, Houston, TX, for Appellant.
T. Marc Calvert, Calvert & Associates, Houston, TX, for Appellees.
Panel consists of Chief Justice ALCALA.
ELSA ALCALA, Justice.
Appellant, Marine Transport Corporation (Marine), appeals from two motions to dismiss granted in favor of appellees, The Methodist Hospital, the Institute for Preventative Medicine/Methodist Health Care Systems, the Methodist Hospital/Institute for Preventative Medicine Management, Inc. (collectively, Methodist) and Rashid Khan, M.D. Marine contends in its first issue that the trial court erred in granting the motions to dismiss by treating its federal maritime law claims as health care liability claims and by applying former article 4590i to file its expert reports due to mistake or accident. We thus reverse the judgment of the trial court and remand this case to the trial court for proceedings consistent with this opinion.
Dr. Khan examined Richard Guillory, a member of the Seafarers International Union (SIU), at Methodist for determination of his fitness for duty as a merchant seaman on oceangoing vessels pursuant to a Health Facility Provider Agreement (the Agreement) entered between the Seafarers Welfare Union on behalf of SIU employees and Methodist. The examination revealed an elevated white blood cell count and positive testing for syphilis, but Guillory was pronounced fit for duty and referred to the City of Houston, Health and Human Services Department (HHS), for treatment. After receiving treatment at HHS, Guillory returned to Methodist for rescreening. Despite an elevated white blood cell count and other abnormalities, Dr. Khan pronounced Guillory fit for duty, and Guillory embarked aboard the ship M/V Patriot (Patriot ) for oceangoing sea duty as an employee of Marine.
While aboard Patriot, Guillory began experiencing severe pain, was evacuated, and subsequently was diagnosed with a massive chronic bacterial infection of the kidneys. Guillory eventually died as a result of the infection. Because Guillory’s illness manifested itself while on board Patriot, Marine was responsible for the costs of Guillory’s medical care under the maritime doctrine of maintenance and cure.
In its first amended petition, Marine sought damages resulting from Methodist’s and Dr. Khan’s alleged negligence in improperly pronouncing that Guillory was fit for duty from Methodist, Dr. Khan, and others or, alternatively, contribution for the sums expended by Marine pursuant to the doctrine of maintenance and cure. Methodist and Dr. Khan filed motions to dismiss Marine’s action because its underlying claims were health care liability claims and Marine did not file an expert report within 180 days of filing suit, as required by former article 4590i and motion to extend time to file the reports. The trial court denied Marine’s motion to extend time to file reports and granted the motions to dismiss.
Applicability of Former Article 4590i
In its first issue, Marine contends that because Guillory was injured while at sea, *145 (1) maritime law applies to this case, (2) federal law for indemnity and contribution applies in lieu of state law and former article 4590i is inapplicable because Methodist and Dr. Khan “did not treat the decedent, no physician-patient relationship existed between them, and [Marine’s] claim arises under the federal maritime law and not out of any treatment by [Methodist and Dr. Khan].” Methodist and Dr. Khan contend that Marine’s “claims arise from shore-based treatment and are state-law-governed claims.”
A. Applicability of State or Federal Law for Indemnity and Contribution
Methodist and Dr. Khan contend that because Guillory was examined ashore at Methodist Hospital, the alleged tort occurred ashore, and thus Marine’s claims are governed by state law. Marine contends that the tort was maritime because it resulted from land-based negligence that caused damage to be suffered at sea, and thus Marine’s claims are governed by federal maritime law.
To invoke federal admiralty jurisdiction over a tort claim, conditions of location and connection with maritime activity must be satisfied. Hails, 595 F.Supp. at 950. The fact that Guillory’s injury might have been caused by land-based medical negligence does not, therefore, change the maritime nature of Marine’s claim. Id. Although Guillory was declared fit for sea duty when he was on land, we conclude that the impact of this declaration produced injury on navigable water, i.e., Guillory fell ill while at sea, was unable to complete his duties, and his illness caused Marine to incur the expenses of Guillory’s medical treatment.
Whether a tort occurred on navigable waters, however, does not end our inquiry. We must further determine “whether the tort has ‘a potentially disruptive impact on maritime commerce’ ” and “whether ‘the general character’ of the ‘activity giving rise to the incident’ shows a ‘substantial relationship to the traditional maritime activity.’ ” Seven Seas Fish Mkt., Inc. v. Koch Gathering Sys., Inc., 36 S.W.3d 683, 687 (Tex.App.-Corpus Christi 2001, pet. denied) *146 (holding that transportation of oil across land and non-navigable waters in pipeline that ruptured and caused oil to spill into navigable waters did not “bear a substantial relationship to traditional maritime activity”).
The Fifth Circuit has held that “[a] ship is unseaworthy unless it and all of its appurtenances and crew are reasonably fit and safe for their intended purpose.” Id.
In this case, Marine alleges that Methodist and Dr. Khan negligently declared an unfit seaman as fit for duty, thus causing Marine to incur expenses for the seaman’s maintenance and cure, a purely maritime law claim.2 As set forth above, Guillory’s injury manifested itself while he was at sea, when he fell ill. Further, the functions and roles of the parties are “inextricably tied to the maritime industry”: Guillory was a seaman employed on a vessel; Marine is the vessel owner; and Methodist and Dr. Khan were medical health care professionals hired pursuant to a contract with the seaman’s union, SIU, to certify seamen as fit for duty on seagoing vessels. See Sisson, 497 U.S. at 364–65 & n. 2, 110 S.Ct. at 2896–97 & n. 2). Therefore, Marine’s claims are governed by federal maritime law.
Marine contends that a claim for reimbursement for maintenance and cure is a separate and distinct cause of action from the employee’s claim against the third-party tortfeasor and that as a result, federal law alone governs Marine’s claims, despite any state law claims that Guillory’s estate or family may have against Methodist and Dr. Khan for medical negligence. Marine further contends that “the substantive and legal rights asserted in this action are governed by the maritime doctrine of cure, federal case law governing comparative fault, contribution and indemnity, and the Jones Act.” Methodist and Dr. Khan contend that “admiralty law supplants state law only if there is a direct conflict between the two” and that because “both health care and medical negligence are defined and interpreted under state law,” former article 4590i governs Marine’s claims.
*147 We first consider whether, as Marine contends, its claims are governed by the Jones Act, which provides a cause of action for maritime workers injured by an employer’s negligence. See 46 U.S.C.S. § 688 (1987); Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 657 (Tex.App.-Houston [1st Dist.] 1998, no pet.). The Jones Act applies to employees seeking damages from their maritime employers, not to maritime employers seeking damages from third-party tortfeasors. See 46 U.S.C.S. § 688. We conclude that because Marine, as Guillory’s employer, is bringing a claim against Methodist and Dr. Khan, as third-party tortfeasors, the Jones Act does not apply in this case.
We next consider whether maintenance and cure and federal case law governing comparative fault, contribution and indemnity apply to this case. “Maintenance and cure entitles a seaman who is injured or becomes ill while in the service of a ship to food, lodging, and necessary medical services.”3 Liberty Seafood, Inc. v. Herndon Marine Prods., Inc., 38 F.3d 755, 757 (5th Cir.1994). We thus conclude that federal law governing maintenance and cure and contribution and indemnity does apply in this case.
Federal law provides that a party asserting an admiralty action may bring the action in state court. See Texaco Ref. & Mkt, Inc. v. Estate of Dau Van Tran, 808 S.W.2d 61, 64 (Tex.1991)).
State law may supplement federal maritime policies, unless a state law “deprive[s] a person of any substantial admiralty rights as defined in controlling acts of Congress or by interpretive decisions of [the United States Supreme] Court.” Pope & Talbot, 346 U.S. at 409–10, 74 S.Ct. at 205.
As set forth above, to recover damages for maintenance and cure from a third-party tortfeasor, the shipowner must show that the third party caused injury to the seaman. Liberty Seafood, 38 F.3d at 757. To do so in this case, Marine must thus prove that Methodist and Dr. Khan caused Guillory’s injury. Marine’s first amended petition, the live pleading in this case, asserts that Methodist and Dr. Khan violated duties of care owed to Guillory “by failing to exercise ordinary care and diligence exercised by other physicians and health care providers in the same or similar circumstances and were negligent specifically in permitting Guillory to work aboard an oceangoing vessel in a medically remote environment while suffering from a massive and chronic kidney infection.” Marine further alleged in its petition that Methodist and Dr. Khan
were negligent jointly and severally in one or more of the following nonexclusive particulars which are pled in the alternative:
a. Failure to properly compile and assess a medical history pertaining to Guillory so as to properly ascertain an appropriate treatment protocol;
b. Failure to properly treat Guillory’s infections;
c. Failure to properly re-screen [sic] and further and properly assess Guillory’s fitness for duty at sea and in a medically remote environment;
d. Failure to adequately assess Guillory’s job description and work demands before authorizing his attendance to that work environment. [sic]
e. Failure to deny fit for duty status to Guillory when he was medically unfit for sea duty.
We conclude that because Marine must show that Methodist and Dr. Khan caused Guillory’s injury, Marine must prove up the underlying health care liability claim to recover damages for maintenance and cure through indemnity or contribution. Because the underlying health care liability claim is not governed by federal maritime law or statute, we further conclude that former article 4590i governs to supplement the federal maritime law.
Marine contends that former article 4590i.
Marine correctly asserts that former article 4590i applies only when a contractual physician-patient relationship exists between the parties. Almaguer v. Jenkins, 9 S.W.3d 835, 838 (Tex.App.-San Antonio 1999, no pet.); Wilson v. Winsett, 828 S.W.2d 231, 232 (Tex.App.-Amarillo 1992, writ denied). Texas courts have recognized the existence of a duty only when the physician was party to a contract for the benefit of the patient or had taken an active step in treating the patient. Wax v. Johnson, 42 S.W.3d 168, 172 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (emphasis added). A third party may contract with a physician for a patient’s benefit; thus, when “healthcare services are rendered on behalf of the patient and are done for the patient’s benefit, a consensual *149 physician-patient relationship exists for the purpose of medical malpractice.” Dougherty v. Gifford, 826 S.W.2d 668, 675 (Tex.App.-Texarkana 1992, no writ). Specifically, when a physician has an agreement with a patient’s health care plan to provide medical care to the plan’s patients, a physician-patient relationship exists between the physician and the patient. Hand v. Tavera, M.D., 864 S.W.2d 678, 679 (Tex.App.-San Antonio 1993, no writ).
Here, the Agreement was entered between the Seafarers Welfare Plan, on behalf of SIU employees, and Methodist. Methodist subsequently contracted with Dr. Khan to provide medical care to the patients covered by the Agreement. The Agreement provides, as follows:
This Health Facility Provider Agreement ... is entered into between the Seafarers Welfare Plan (hereinafter Payor) and ... [Methodist] (hereinafter Provider).
In consideration of the mutual promises, covenants and the respective representations of the parties noted below, [Methodist] and the Seafarers Welfare Plan as purchaser of such services on behalf of [SIU’s] covered employees, their dependents and retirees, (eligible individuals), agree to the following:
SECTION 1: Description of Parties
1.01 Payor is a multi-employer trust fund.... Payor maintains for the benefit of its covered employees, their dependents and retirees a self-insured health care plan which is an “employee welfare benefit plan” as that term is defined by the Employment Retirement Income Security Act of 1974.
As set forth above, a contract for health care services clearly existed between Methodist and Guillory, as an employee covered by SIU, which, by the express terms of the Agreement was entered on behalf of and for the benefit of Guillory. We thus conclude that a physician-patient relationship existed between Dr. Khan and Guillory because Dr. Khan had an agreement with Methodist, a party to the Agreement, to provide health care services on behalf of employees covered under the Agreement. See Wax, 42 S.W.3d at 172; Hand, 864 S.W.2d at 679.
Former article 4590i defined a health care liability claim as
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 which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.
TEX.REV.CIV. STAT. ANN.. art. 4590i, § 1.03(a)(6) (current version at TEX. CIV. PRAC. & REM.CODE ANN. § 74.001(a)(19) (Vernon 2005)).
A hospital is a health care provider. Diversicare, 185 S.W.3d at 847. “A cause of action alleges a departure from accepted standards of medical care or health care if the act or omission complained of is an inseparable part of the rendition of medical services.” Id.
Marine expressly alleged in its first amended petition that Methodist and Dr. Khan “fail[ed] to exercise ordinary care and diligence exercised by other physicians and health care providers in the same or similar circumstances.” Marine further alleged five grounds of negligence that directly related to health care and medical care, i.e., an “act ... performed or furnished, by [Methodist and Dr. Khan] ... on behalf of [Guillory] during [his] medical care.” See Liberty Seafood, 38 F.3d at 757.
Because this dispute concerns the appropriate standard of care owed to Guillory regarding whether he should have been certified as fit for duty and sent out on an oceangoing vessel, Marine’s claims are based on claimed departures from an accepted standard of medical care, health care, or safety of the patient. Although Marine contends that its “claims do not assert causes of action claiming that [Methodist and Dr. Khan] departed from accepted standards of health or medical care,” Dr. Khan not only examined Guillory on behalf of Marine but also on behalf of Guillory himself. Guillory suffered personally the effects of his sickness; thus, a proper certification regarding fitness for duty was for his benefit as well as Marine’s. Further, as set forth above, the Agreement, which established a physician-patient relationship among the parties, was entered on behalf of Guillory as an employee covered by the Agreement. Thus, the health care services provided by Methodist and Dr. Khan were for Guillory’s benefit. We conclude that Methodist and Dr. Khan had a duty to provide Guillory with the appropriate standard of care in conducting his examination.
Although we are not bound by the language of the pleading, Hector v. Christus Health Gulf Coast, 175 S.W.3d 832, 835 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).4
Because this dispute concerns the appropriate standard of care that Methodist and Dr. Khan owed to Guillory, the act or omission complained of, i.e., certification as fit for duty, is an inseparable part of the rendition of medical services. Accordingly, we hold that the trial court did not err in treating Marine’s underlying claims as health care liability claims and in applying the expert report filing requirements of former article 4590i in this case.
We overrule Marine’s first issue.
Motion to Extend Time to File Expert Reports
In its second issue, Marine contends that the trial court abused its discretion by not granting a 30–day extension from the date it filed its motion for an extension of time to file its expert report required by article 4590i. Specifically, Marine contends that the trial court should have granted a 30–day extension of time to file its report under section 13.019(g).5
On review of a dismissal of a medical malpractice claim with prejudice for noncompliance with the expert-report filing provision of Williams, 111 S.W.3d at 814.
An abuse of discretion occurs when a trial court acts arbitrarily or unreasonably and without reference to any guiding rules or principles. See Williams, 111 S.W.3d at 815.
Former (c) (Vernon Supp.2005)).
In this case, it is undisputed that Marine’s 180–day deadline to file an expert report expired on January 13, 2003. It is further undisputed that Marine waited until April 13, 2004, to file its motion to extend the expert report deadline.6
section 13.01(d), states as follows:
Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant’s attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant the grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section.
Williams, 111 S.W.3d at 814.
Williams, 111 S.W.3d at 815.
*153 In assessing whether failure to file a report was “due not to intentional disregard or conscious indifference but to accident or mistake,” we examine the knowledge and acts of the claimant or the attorney. Landry v. Ringer, 44 S.W.3d 271, 275 (Tex.App.-Houston [14th Dist.] 2001, no pet.).
“Some excuse, but not necessarily a good excuse, is enough to warrant an extension of time to file the expert report, so long as the act or omission causing the failure to file the report was, in fact, accidental.” Pfeiffer, 29 S.W.3d at 198.
“Texas courts have struggled to define the parameters of ‘accident or mistake’ in the context of State Farm Life Ins. Co. v. Mosharaf, 794 S.W.2d 578, 584 (Tex.App.-Houston [1st Dist.] 1990, writ denied) (holding that misplacement of original petition and subsequent failure to answer suit was result of accident or mistake and not of conscious indifference).
*154 By contrast, “conscious indifference means ‘failing to take some action which would seem indicated to a person of reasonable sensibilities under similar circumstances.’ ” Nguyen, 3 S.W.3d at 153–54.
In support of its motion for an extension of time, Marine produced an affidavit of its attorney, Jerry R. McKenney. The affidavit states the following:
I am the attorney responsible for litigation of the above-styled case. During the initiation of litigation in this matter, I undertook an analysis of the various claims available to [Marine]. Part of this analysis included reviewing the reports of Fred Pasternak, M.D. which set out his review of the medical facts and his opinion that the pre-employment screening and follow up procedures in Richard Guillory’s case were carried out in a manner that departed from the applicable standard of care. In drafting the notice of claim letters and the pleadings on behalf of [Marine], I was guided by Dr. Pasternak’s analysis and intended to use his reports to fulfill the requirements of [former article 4590i] with regard to production of an expert report that demonstrated the viability of the claims being asserted against the various defendants.
As the initial litigation proceeded, due to my own error, I did not file the reports within the time prescribed by the statute. The simple reason for this is that I inadvertently thought that I had produced them during the time that I was processing the initial disclosures, requests for disclosures and other discovery. This was a mistake or accident on my part. At no time did I intentionally decline to file the reports in the face of the requirement to do so nor did I simply ignore the requirement to do so; which would have made no sense with the reports already prepared. Rather, I mistakenly thought that I had done so and did not realize this error until I received a service copy of The Methodist Hospital’s motion to dismiss. Shortly thereafter I filed the reports with a motion for extension of time to file them as provided for in ... 13.01(g).
Along with its motion, Marine also produced copies of the reports purportedly intended to be filed within the 180–day period. The reports are dated January 1, 2001, and May 22, 2001, well before the filing deadline of January 13, 2003. Further, McKenney presented the following testimony at the hearing on the motions to dismiss:
Part of my evaluation of the case was the review of reports that had been obtained from a Dr. Fred Pasternak analyzing this—the case and the liability issues before the case was filed. My *155 intention at that point was to use those reports and file them early on in the case to satisfy the statutory requirements of Article 4590i for the expert reports to the extent that that applied to any of the defendants in this case, which again at that point was somewhat unclear.
In any case, as the case developed and as I worked on the case, I inadvertently did not file those reports. I thought that I had. I just simply got confused with what I was doing and didn’t do that. That was my mistake. This was not a situation where I told somebody to do it and they didn’t do it. I’m not going to stand here and blame it on a secretary or anybody else. It was purely my fault.
On the other hand, this is not a situation where I knew that they hadn’t been filed and thought that there was some reason not to or that there was some other insidious basis here. Basically, it was just a screw-up on my part. It’s entirely my responsibility. And it was an error.
Thus, McKenney presented specific evidence at the hearing that, but for his mistake, he would have filed the expert reports on time “to satisfy the statutory requirements of Strackbein, 671 S.W.2d at 39.
We further conclude that this case is distinguishable from Kidd v. Brenham State School Texas Department of Mental Health and Mental Retardation, cited by Methodist and Dr. Khan as dispositive. Id. at 207–08. In this case, by contrast, McKenney gave a specific reason why he had not timely filed the reports, which was because he thought that he had already done so.
Because the uncontroverted evidence shows that McKinney did not file the reports due to accident or mistake, we hold that the trial court abused its discretion by not granting Marine’s motion for the 30– *156 day extension of time prescribed in article 4590i.
We sustain Marine’s second issue.
We reverse the orders of dismissal signed by the trial court on June 22, 2004, and remand this case to the trial court for further proceedings consistent with this opinion.
See generally TEX. CIV. PRAC. & REM.CODE ANN. §§ 74.001–.507).
See infra, page 147.
Except for willful misconduct, the employee’s negligence has no effect on his entitlement to maintenance and cure. Tex.R.App. P. 33.1(a).
Marine’s contention that Methodist and Dr. Khan did not “treat” Guillory is inapplicable because, as set forth above, former TEX.REV.CIV. STAT. ANN.. art. 4590i, § 1.03(a)(4) (current version at TEX. CIV. PRAC. & REM.CODE ANN. § 74.001(a)(13) (Vernon 2005)).
Marine appears at one point in its brief to contend also that the trial court should have granted a 30–day extension of time under Pfeiffer v. Jacobs, 29 S.W.3d 193, 197 (Tex.App.-Houston [14th Dist.] 2000, pet. denied).