Silsbee Oaks Health Care, L.L.P. v. Patricia Smart, Individually and as Representative of the Estate of Bonnie Smart

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00249-CV
__________________

SILSBEE OAKS HEALTH CARE, L.L.P., Appellant

V.

PATRICIA SMART, INDIVIDUALLY AND AS
REPRESENTATIVE OF
THE ESTATE OF BONNIE SMART, ET AL, Appellees

__________________________________________________________________

On Appeal from the 58th District Court
Jefferson County, Texas
Trial Cause No. A-209436
__________________________________________________________________

MEMORANDUM OPINION

Silsbee Oaks Health Care, L.L.P. filed an interlocutory appeal from

the trial court’s denial of its combined motion to dismiss and motion for

summary judgment, a motion that relied on section 74.155 of the Texas

Civil Practice and Remedies Code (CPRC) to claim the plaintiffs’ suit

should be dismissed with prejudice. See Tex. Civ. Prac. & Rem. Code Ann.

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§ 74.155 (Supp.). CPRC section 74.155 provides physicians, health care

providers, and first responders with an affirmative defense if a patient’s

injury results from a “pandemic disease,” which is defined in section

71.155 as “an infectious disease that spreads to a significant portion of

the population of the United States that poses a substantial risk of a

significant number of human fatalities, illnesses, or permanent long-

term disabilities.” Id. For convenience, we will refer to section 74.155 as

the Pandemic Liability Statute.

The issue raised by the appellees’ motion to dismiss is whether the

legislature extended an appellate court’s jurisdiction to an interlocutory

order from a ruling denying a motion based on the affirmative defense

created by the Pandemic Liability Statute. We conclude the answer is no.

The order from which Silsbee Oaks appeals is an unappealable

interlocutory order because it is not one of the types of interlocutory

orders covered by the statute that gives appellate courts jurisdiction over

a trial court’s interlocutory ruling, CPRC section 51.014. Id. § 51.014

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(West & Supp.) (creating limited appellate jurisdiction over seventeen

categories of interlocutory orders). 1

Background

In September 2020, Bonnie Smart, who was 78 years old, died after

being hospitalized for twelve days and treated for pneumonia and a

respiratory infection. But before Bonnie was hospitalized, for about three

weeks, Bonnie was admitted to Silsbee Oaks to rehabilitate from a

surgery that she had undergone at Baptist Hospital to correct a fracture

she had suffered to her thigh.

On September 4, Bonnie left Silsbee Oaks in a private car,

apparently after her treating physician authorized Silsbee Oaks to

discharge Bonnie to her home. Two days later, Bonnie was taken to the

emergency room at Baptist Hospital, where she was diagnosed with an

infection and intubated. According to Bonnie’s death certificate, her

death was caused by COVID-19, pneumonia due to viral illness,

1See Act of May 28, 2021, 87th Leg., R.S., ch. 167, § 1, sec. 51.014(a),

and ch. 528, § 1, sec. 51.014(a), 2021 Tex. Sess. Law Serv. 355, 1051
(West) (to be codified at Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a))
(adding Tex. Civ. Prac. & Rem. Code Ann. §§ 74.155; 51.014(a)(15);
148.001-.005).

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Methicillin-resistant Staphylococcus aureus (MRSA), and atrial

fibrillation.

In March 2022, Patricia Smart, Individually and as representative

of the Estate of Bonnie Smart, Joe Smart, Larry Dale Smart, Otis Von

Smart Sr., and Roy Gene Smart (collectively, the Smarts) sued Silsbee

Oaks Health Care, L.L.P., alleging that the treatment Bonnie received

there fell below the standard of care that applies to a nursing facility. The

Smarts also sued Dr. Sama P. Quaraishi, M.D., alleging the medical

treatment Bonnie received from her was below the standard of care that

applies to family physicians. 2 In general, the Smarts’ petition alleges that

Bonnie’s healthcare providers negligently failed to recognize that Bonnie

was at an increased risk of developing pneumonia due to her preexisting

condition of chronic obstructive lung disease. That said, the petition

never mentions Covid, and it doesn’t expressly assert the defendants

were negligent in exposing, treating, or failing to treat Bonnie for

COVID-19. 3

2Dr. Quaraishi is not a party to this appeal.
3However, we note that the plaintiffs’ expert report, which is
attached to the Plaintiffs’ Original Petition, is critical of Silsbee Oaks for
its failure to “test a patient for COVID-19 upon discharge who is
4
In a pretrial motion invoking the Pandemic Liability Statute,

Silsbee Oaks moved to dismiss the Smarts’ suit. See id. § 74.155. In its

motion, Silsbee Oaks didn’t specifically challenge the adequacy of the

“expert report” the Smarts filed with their Original Petition to show they

had complied with the Texas Medical Liability Act. See Tex. Civ. Prac. &

Rem. Code Ann. 74.351. Instead, Silsbee Oaks argued it had a right to

prevail on its motion because it was undisputed that Covid was a

producing cause of Bonnie’s injury and death based on the report of the

Smarts’ expert witness. Additionally, Silsbee Oaks argued that because

it was a nursing facility that was following the pandemic disaster

directives in complying with discharge orders that required a facility to

discharge a patient to the patient’s home, its summary-judgment

evidence established it was immune from liability for any failure to

transfer Bonnie to a hospital rather than discharging her to her home.

According to Silsbee Oaks, the directives it was following during the

pandemic required beds in hospitals “to be reserved for seriously ill

patients.” The directives, according to Silsbee Oaks, required it to

exhibiting wheezing and sudden oxygen desaturation.” The plaintiffs’
expert report also attributes Bonnie’s pneumonia to a COVID infection.
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discharge patients (like Bonnie) who needed long-term care to their

homes “to continue [their care] under home health care therapy.”

In July 2023, the trial court denied Silsbee Oaks’ “Motion to

Dismiss Pursuant to Section 74.155 To Pandemic Immunity (filed May

16, 2022), as supplemented by its Supplement to Its Section 74.155

Motion to Dismiss (filed September 6, 2022), and as supplemented by its

2d Supplement to its CPRC Section 74.155 Motion to Dismiss and/or

Motion for Summary Judgment (filed on June 29, 2023).” Two days later,

Silsbee Oaks filed its notice of accelerated appeal.

Analysis

After Silsbee Oaks appealed, the Smarts moved to dismiss the

appeal. In their motion, the Smarts argue the order that Silsbee Oaks

has appealed is an interlocutory order that is unappealable because it is

not among the interlocutory orders over which the appellate courts have

jurisdiction. That is, the order doesn’t fall within the seventeen categories

of interlocutory orders over which appellate courts have jurisdiction

under CPRC section 51.014.

To be sure, the Pandemic Liability Statute (CPRC section 74.155)

is not specifically mentioned anywhere in CPRC 51.014. Still, Silsbee

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Oaks argues the Court should imply that the legislature intended to

allow a healthcare provider to file an interlocutory appeal from a ruling

on motions denying a healthcare provider’s claim when the appeal is

based on a motion relying on the Pandemic Liability Statute. According

to Silsbee Oaks, it makes sense to infer a right to interlocutory appeal

was intended because the Pandemic Liability Statute creates a defense

that changes the causation standard when it applies, and the Smarts’

expert report shows it will apply to the trial of their claims. Based on that

argument, Silsbee Oaks concludes the legislature must have intended to

grant appellate courts jurisdiction over rulings on motions denying a

healthcare provider’s motion relying on an affirmative causation defense

when the patient’s injury or death was caused by a pandemic disease.

Stated another way, Silsbee Oaks suggests that its Pandemic Liability

Statute defense necessarily implicates the sufficiency of the report filed

by the Smarts’ expert as related to the explanation provided by the

Smarts’ expert about what caused Bonnie’s injury and her death. And

because CPRC 51.014(a)(9) allows appellate courts to exercise

jurisdiction over a trial court’s denial of motions claiming that an “expert

report” doesn’t comply with the requirements of the Texas Medical

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Liability Act under CPRC section 74.351, Silsbee Oaks concludes that

appellate jurisdiction must also exist to allow appellate courts to consider

challenges to interlocutory rulings on the denial of motions for summary

judgment that rely on CPRC 74.155, the Pandemic Liability Statute. See

id. § 51.014(a)(9) (providing that a person may appeal from an

interlocutory order that “denies all or part of the relief sought by a motion

under Section 74.351(b), except that an appeal may not be taken from an

order granting an extension under Section 74.351”).

Turning to the text of the Pandemic Liability Statute, when the

legislature created the affirmative defense that applies to injuries or

deaths resulting from pandemic diseases, it knew that issues

surrounding the causation of a patient’s injury or death might often pose

questions that hinged on what the healthcare provider knew or suspected

about whether the patient had incurred a pandemic disease when the

healthcare provider was treating the patient. See id. § 74.351(c) (“A

physician, health care provider, or first responder may not use the

showing under Subsection (b)(2) as a defense to liability under Subsection

(b) for negligent care, treatment, or failure to provide care or treatment

if a claimant proves by a preponderance of the evidence that the

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respective diagnosis, treatment, or reasonable suspicion of infection with

a pandemic disease at the time of the care, treatment, or failure to

provide care or treatment was not a producing cause of the individual’s

injury or death.”). Generally, questions about what a healthcare provider

knew and when it knew it are fact-driven. And even though we

acknowledge that expert testimony might be relevant to what a

healthcare provider knew or should have reasonably suspected, the

provider and its employees generally have direct knowledge of what was

known, what was reasonably suspected, and when. Given the questions

the legislature tied to a court’s resolving motions asserting claims under

the Pandemic Liability Statute, it appears the legislature chose to make

them an affirmative defense rather than part of the criteria by which

courts are to measure the sufficiency of an “expert report” the legislature

requires healthcare liability claimants to file to comply with the

requirements of CPRC section 74.351.

Our conclusion that section 74.155 operates as an affirmative

defense rather than as part of the sufficiency criteria that applies to

evaluating expert reports is reinforced by the text of subsections

74.155(e), (f), and (g). Subsection (e) provides “[t]his section does not alter

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the scope of practice of a physician, health care provider or first responder

under the laws of this state.” In other words, even if conditions involving

a pandemic disease exist in much of the population, a nursing home’s

scope of practice isn’t changed. Subsection (f) provides that “[a] defense

under this section is in addition to any other defense, immunity, or

limitation of liability provided by law.” And subsection (g) requires the

defendant when sued on a healthcare liability claim to take affirmative

steps to place the healthcare liability the plaintiff on notice that the

provider intends to rely on the defense, since subsection (g) provides that

“[a] . . . health care provider . . . who intends to raise a defense under

Subsection (b) must provide to a claimant specific facts that support an

assertion under Subsection (b)(1) or (2) not later than” 60 days after the

health care provider serves the claimant with the claimant’s expert

report or 120 days after the health care provider filed its answer. Thus,

the legislature gave healthcare providers the duty to raise the defense

after the healthcare provider had received a report from the claimant’s

expert report. See id. § 74.155(g). Yet the legislature did not require that

a healthcare liability claimant supplement the expert report previously

filed to comply with the requirements of the Texas Medical Liability Act,

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section 74.351, or to supplement the expert’s report with another report

to address the defendant’s affirmative defense under the Pandemic

Liability Statute.

Here for example, even if Bonnie’s death is proven in the trial to

have been caused in part by COVID-19, nothing in this record shows that

she was diagnosed with COVID-19 or being treated for COVID-19 when

she was at Silsbee Oaks, although it does show Bonnie had wheezing and

oxygen desaturation. The parties may (or may not) develop facts in

discovery that provide the trial court on further motions with a stronger

factual basis to rule on a dispositive motion based on Silsbee Oaks’

Pandemic Liability Statute defense. But the question before us is not

whether Silsbee Oaks is or isn’t entitled to a summary judgment; instead,

it’s whether we have jurisdiction over the appeal because Silsbee Oaks is

seeking to appeal from an interlocutory order and not from a final

judgment.

“An appellate court lacks jurisdiction to review an interlocutory

order unless a statute specifically authorizes an exception to the general

rule, which is that appeals may only be taken from final judgments.”

Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex. 2000).

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Silsbee Oaks points to no specific legislative authorization allowing it to

appeal from a ruling denying a motion for summary judgment based on

an affirmative defense raised under CPRC section 74.155. We will not

imply that a right to interlocutory appeal exists in CPRC section

54.014(9) when the legislature has not expressly granted litigants an

interlocutory appeal but otherwise knows how to do so when it wants to,

as it has done so seventeen times. See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014.

Conclusion

We conclude section 51.014(a)(9), which allows a party to appeal an

interlocutory order, doesn’t authorize an accelerated interlocutory appeal

from an order denying a combined motion for summary judgment and

motion to dismiss under CPRC section 74.155. See id. §§ 51.014(a)(9),

74.155, 74.351(b). Accordingly, we grant the appellees’ motion to dismiss.

The accelerated interlocutory appeal is dismissed for lack of jurisdiction.

See Tex. R. App. P. 42.3(a), 43.2(f).

APPEAL DISMISSED.
PER CURIAM

Submitted on September 27, 2023
Opinion Delivered September 28, 2023
Before Golemon, C.J., Horton and Johnson, JJ.
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