Lawyer James “Jim” Walker of Rockwall is confident that a jury would find that a large crack in a sidewalk outside of a North Texas assisted living facility contributed to an elderly woman’s devastating fall in 2014.
But Walker told the Texas Supreme Court Wednesday, for the family’s wrongful death case to reach a jury, it needs to be considered as one of premises liability rather than as a health care liability claim that required the filing of an expert witness report. The facility is seeking dismissal of the lawsuit due to the lack of a report from a medical expert.
Issues regarding whether a lawsuit falls under the Texas Medical Liability Act are a common subject for interlocutory appeal. During the argument, Justice Evan Young mulled whether the court should adopt a bright-line rule for cases brought by a resident of a nursing home or assisted living center who is injured on the premises so that litigants don’t have to spend years waiting for an answer.
In 2015 Carolyn Faber sued Collin Creek Assisted Living Center, the owner of Dayspring, a state-licensed assisted living center where her 88-year-old mother Carmelina “Millie” Smith had moved after a series of falls. Smith was seated in a walker facing a Dayspring attendant who was pushing the walker when the walker became caught in the crack and tipped over. Smith hit her head on the concrete and died eight days after the fall.
Faber’s lawsuit initially asserted that Dayspring failed to care for Smith and was negligent in hiring and supervising its employees. Dayspring answered that it was a health care provider and it moved to dismiss the case due to Faber’s failure to provide an expert report. Faber amended her petition to remove allegations related to the facility employee and Dayspring’s duty to provide safe transport, leaving only premises liability and bystander claims based on the condition of the sidewalk.
The trial court granted the facility’s motion to dismiss, and a panel of the Fifth Court of Appeals affirmed. The en banc court subsequently granted Faber’s motion for reconsideration. In a divided opinion, the court withdrew the panel ruling and concluded that Faber’s claim was not a health care liability claim but a “simple, run-of-the-mill premises liability case, where the instrumentality causing injury was broken concrete.” Five dissenting justices said they would have ruled that Faber’s claim is “inextricably intertwined with the conduct of, and duties owed by” Dayspring as a health care provider.
Wallace B. Jefferson of Alexander Dubose & Jefferson presented arguments for the facility.
“This court has been very careful in the last 20 years or longer to honor the health care liability act” and its requirement for an expert report, Jefferson said.
Justice Debra Lehrmann asked what would have happened if Smith was walking and not being pushed by an employee.
“I don’t think it makes a difference. The reason she was at the facility was because she was falling,” Jefferson said. He said it is undisputed that Dayspring as an assisted living center is a health care provider.
Asked by Justice Jane Bland whether a lay person could evaluate a crack in the sidewalk without the help of a medical expert, Jefferson said a doctor could talk about the special needs of an elderly woman with ambulatory trouble. He said that Smith’s doctor, who said right after the incident that the facility should not be transporting residents in a walker because they are not designed for that purpose, could have qualified as an expert.
“No one was hiding the ball here. The gateway was to provide the report,” said Jefferson.
Walker said the facility at trial likely would argue that the sidewalk condition was not the problem and point to responsibility of its employee.
“They are asking us to hire an expert witness to prove their case is right,” Walker said. “The reason we are focusing on premises and not the action of pushing the walker is because that is where we can offer proof.”
An amicus brief filed by the Texas Assisted Living Association and other industry groups accuses the court of appeals majority opinion of inviting artfully crafted premises liability claims against assisted living facilities and other housing for seniors and individuals with disabilities.
“These crucial facilities are already facing increased insurance premiums and possible closures due to the COVID pandemic. Exposure to liability without TMLA’s protections will create an unwelcoming environment for Texas operators,” said the author of the brief, Elizabeth G. “Heidi” Bloch of Greenberg Traurig.
The case is No. 21-0470.