In Brenham Nursing and Rehabilitation Center and Regency IHS of Brenham, LLC v. the State of Texas

Petition for Writ of Mandamus Conditionally Granted; Memorandum
Opinion filed July 18, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00949-CV

IN RE BRENHAM NURSING AND REHABILITATION CENTER AND
REGENCY IHS OF BRENHAM, LLC., Relators

ORIGINAL PROCEEDING
WRIT OF MANDAMUS
21st District Court
Washington County, Texas
Trial Court Cause No. 37780

MEMORANDUM OPINION

On December 19, 2023, relators Brenham Nursing and Rehabilitation Center
and Regency IHS of Brenham LLC, filed a petition for writ of mandamus in this
court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the
petition, relators ask this Court to compel the Honorable Carson Campbell,
presiding judge of the 21st Judicial District Court of Washington County, to vacate
the Order on Plaintiff’s Motion for Court to Establish Plaintiffs’ Standard of Proof
signed October 19, 2023. We conditionally grant the petition.

BACKGROUND

This original proceeding arises from a health care liability lawsuit. James
Allen Pelkemeyer (“Pelkemeyer”), individually and on behalf of the estate of Fred
William Pelkemeyer, sued relators, asserting that relators’ failed to provide care to
Fred William Pelkemeyer that would have allegedly prevented him from being
exposed to, contracting, and ultimately dying of Covid-19 complications.

1. The Texas Pandemic Liability Protection Act

On June 14, 2021, Governor Abbot signed into law the Pandemic Liability
Protection Act (“PLPA”), which protects entities and health care providers from
liability for injuries or death related to pandemic diseases such as COVID-19. See
Tex. Civ. Prac. Rem. Code § 74.155. Section 74.155 states:

(b) Except in a case of reckless conduct or intentional, willful, or
wanton misconduct, a physician, health care provider, or first
responder is not liable for an injury, including economic and
noneconomic damages, or death arising from care, treatment, or
failure to provide care or treatment relating to or impacted by a
pandemic disease or a disaster declaration related to a pandemic
disease if the physician, health care provider, or first responder proves
by a preponderance of the evidence that:

(1) a pandemic disease or disaster declaration related to a pandemic
disease was a producing cause of the care, treatment, or failure
to provide care or treatment that allegedly caused the injury or
death; or

(2) the individual who suffered injury or death was diagnosed or
reasonably suspected to be infected with a pandemic disease at
the time of the care, treatment, or failure to provide care or
treatment.

TEX. CIV. PRAC. & REM. CODE § 74.155(b).

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(d) Care, treatment, or failure to provide care or treatment relating
to or impacted by a pandemic disease or a disaster declaration
related to a pandemic disease under Subsection (b) includes:

(1) screening, assessing, diagnosing, or treating an individual who
is infected or suspected of being infected with a pandemic
disease;

(2) prescribing, administering, or dispensing a drug or medicine for
off-label or investigational use to treat an individual who is
infected or suspected of being infected with a pandemic
disease;

(3) diagnosing or treating an individual who is infected or suspected
of being infected with a pandemic disease outside the normal
area of the physician’s or provider’s specialty, if any;

(4) delaying or canceling nonurgent or elective medical, surgical,
or dental procedures;

(5) delaying, canceling, or not accepting in-person appointments for
office or clinical visits, diagnostic tests, scheduled
treatment, physical or occupational therapy, or any other
diagnosis or treatment of an illness or condition not related to a
pandemic disease;

(6) using medical devices, equipment, or supplies outside of their
normal use, including using or modifying such devices,
equipment, or supplies for an unapproved use, to treat an
individual who is infected or suspected of being infected with
a pandemic disease;

(7) conducting tests on or providing treatment to an individual who
is infected or suspected of being infected with a pandemic
disease outside the premises of a health care facility;

(8) acts or omissions caused by a lack of personnel or staffing,
facilities, medical devices, supplies, or other resources
attributable to a pandemic disease that renders a physician,

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health care provider, or first responder unable to provide the
same level or manner of care to any individual that otherwise
would have been acquired in the absence of the disease; and

(9) acts or omissions arising from the use or nonuse of personal
protective equipment.

TEX. CIV. PRAC. & REM. CODE § 74.155(d).

(g) A physician, health care provider, or first responder 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 the later of:

(1) the 60th day after the date the claimant serves an expert report
on the physician, health care provider, or first responder
under Section 74.351; or

(2) the 120th day after the date the physician, health care provider,
or first responder files an original answer in the suit.

TEX. CIV. PRAC. & REM. CODE § 74.155(g).

2. Pelkemeyer’s Motion for Court to Establish Plaintiff’s Standard of
Proof.
On April 1, 2022, relators filed their original answer stating “Defendants
assert any claims related to the alleged exposure and contraction of COVID-19 are
barred pursuant to Tex. Civ. Prac. & Rem. Code 74.155”. On May 15, 2023,
Pelkemeyer filed a motion to strike defendants’ affirmative defense. Relators filed
their first amended answer on May 25, 2023, asserting the following:

Defendants assert any claims related to the alleged exposure
and contraction of Covid-19 are barred pursuant to Tex. Civ. Prac. &
Rem. Code 74.155. Answering further and restating Plaintiff’s Petition
filed on March 3, 2022, “Mr. Pelkemeyer was admitted to Brenham
Nursing and Rehabilitation Center in 2019 for long-term care and
management of his chronic health conditions.” (Plaintiff’s Petition

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paragraph 70). On March 6, 2020, Mr. Pelkemeyer continued to have
poor intake and a cough. He was diagnosed with failure to thrive.”
(Plaintiff’s Petition paragraph 89). On April 4, 2020, Mr. Pelkemeyer
developed a fever and respiratory distress. He was transported to
Baylor Scott and White Medical Center of Brenham where he was
admitted with a productive cough, shortness of breath, rales, decreased
breath sounds, and fever.” (Plaintiff’s Petition paragraph 93). He was
diagnosed with COVID-19 on April 5, 2020. (Plaintiff’s Petition
paragraph 94). He died of COVID-19 on April 12, 2020. (Plaintiff’s
Petition paragraph 94). Mr. Pelkemeyer was diagnosed or reasonably
suspected of being infected with Covid-19. [Tex. Civ. Prac. & Rem.
Code 74.155(b)(1)]. Defendants would also Tex. Civ. Prac. & Rem.
Code 74.155(d) defines care, treatment, or failure to provide care
or treat to include the following:

(1) assessing, diagnosing, or treating an individual who is
infected or suspected of being infected with a pandemic
disease;

(2) prescribing, administering, or dispensing a drug or medicine for
off-label or investigational use to treat an individual who is
infected or suspected of being infected with a pandemic disease;

(3) diagnosing or treating an individual who is infected or
suspected of being infected with a pandemic disease outside
the normal area of the physician's or provider's specialty, if
any;

(4) delaying or canceling nonurgent or elective medical, surgical,
or dental procedures;

(5) delaying, canceling, or not accepting in-person appointments
for office or clinical visits, diagnostic tests, scheduled
treatment, physical or occupational therapy, or any other
diagnosis or treatment of an illness or condition not related to a
pandemic disease;

(6) using medical devices, equipment, or supplies outside of
their normal use, including using or modifying such devices,
equipment, or supplies for an unapproved use, to treat an

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individual who is infected or suspected of being infected with a
pandemic disease;

(7) conducting tests on or providing treatment to an individual who
is infected or suspected of being infected with a pandemic
disease outside the premises of a health care facility;

(8) acts or omissions caused by a lack of personnel or
staffing, facilities, medical devices, supplies, or other resources
attributable to a pandemic disease that renders a physician,
health care provider, or first responder unable to provide the
same level or manner of care to any individual that otherwise
would have been acquired in the absence of the disease; and

(9) acts or omissions arising from the use or nonuse of personal
protective equipment.

Tex. Civ. Prac. & Rem. Code 74.155(d)(1), (2), (3), (8), and (9)
are applicable areas of care and treatment of Mr. Pelkemeyer which
are included as an Affirmative Defense as indicated in the medical
records, and as stated in Plaintiff’s Original Petition. Defendants
also request that the Court take judicial notice of Plaintiffs
Petition and the admissions therein, which are properly used
against Plaintiff. See Fisher v. First Chapel Dev. LLC, No. 14-19-
00111-CV, 2021 Tex. App. LEXIS 4187, at *13 (Tex. App.-
Houston [14th Dist.] May 27, 2021, no pet. h.) ("When clear and
unequivocal, admissions in live pleadings are regarded as judicial
admissions in the case in which the pleadings are filed; accordingly,
the facts judicially admitted require no proof and preclude the
introduction of evidence to the contrary in that case."). Defendants
assert the application of section 74.155 of the Texas Civil Practice and
Remedies Code, which provides that a health care provider is not
liable for any claims where “a pandemic disease or disaster
declaration related to a pandemic disease was a producing cause of the
care, treatment, or failure to provide care or treatment that
allegedly caused the injury or death” or (2) “the individual who suffered
injury or death was diagnosed or reasonably suspected to be infected
with a pandemic disease at the time of the care, treatment, or failure to
provide care or treatment.” Defendant’s Original Answer, at p. 2; Tex.
Civ. Prac. & Rem. Code § 74.155(b). COVID-19 was a direct cause of
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Mr. Pelkemeyer’s death. This is undisputed. All Plaintiff’s claims in
her medical malpractice case arise from allegations that Defendants
failed to provide care to Mr. Pelkemeyer that would have allegedly
prevented him from being exposed to, contracting, and ultimately dying
from COVID-19.

Pelkemeyer filed a motion for the court to establish plaintiff’s standard of
proof, and on October 19, 2023, the court held a hearing on the Pelkemeyer’s
motion. During the hearing, Pelkemeyer argued that relators failed to provide the
necessary “specific facts” by the deadline set forth in Section 74.155(g), and as a
result they are entitled to sue relators under the ordinary negligence standard. In
response, relators argued: (1) that the original answer was sufficient, (2) subsection
(g)’s deadline was directory and does not support striking relators’ defense, and (3)
the requested relief mixes the burden of proof with Pelkemeyer’s causes of action.
The trial court heard both arguments and granted Pelkemeyer’s motion. The order
specifically stated “the burden of proof applicable to Plaintiff’s claims throughout
this case will be preponderance of the evidence”.

MANDAMUS STANDARD OF REVIEW

To obtain mandamus relief, a relator generally must show both that the trial
court clearly abused its discretion and that the relator has no adequate remedy by
appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (orig. proceeding) (per
curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004)
(orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision
so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or
if it clearly fails to analyze the law correctly or apply the law correctly to the facts.
In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302-03 (Tex. 2016) (orig.
proceeding) (per curiam); In re Cerberus Cap. Mgmt. L.P., 164 S.W.3d 379, 382
(Tex. 2005) (orig. proceeding) (per curiam). The appellate court reviews the trial

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court’s application of the law de novo. See Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992) (orig. proceeding). The relator must establish that the trial court
could reasonably have reached only one decision. Id.

Relator also must demonstrate that it does not have an adequate remedy at
law, such as a remedy by an appeal. See In re J.B. Hunt Transp., 492 S.W.3d 287,
299 (Tex. 2016) (orig. proceeding). The adequacy of appeal as a remedy for an
alleged clear abuse of discretion in an interlocutory ruling involves a balance of
jurisprudential considerations that “implicate both public and private interests.” In
re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding) (per
curiam) (internal quotations omitted); see also In re Prudential Ins. Co., 148
S.W.3d at 136. We determine the adequacy of an appellate remedy by balancing
the benefits of mandamus review against the detriments. See In re Essex Ins. Co.,
450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per curiam); In re Prudential
Ins. Co., 148 S.W.3d at 136.

1. The trial court abused its discretion when it established the burden
of proof applicable to plaintiff’s claims as preponderance of the
evidence.
Section 74.155(b) states a healthcare provider is not liable for injury or death
in cases where a pandemic disease was a producing cause of the care, treatment, or
failure to provide care or treatment that allegedly caused the injury or death. See
Tex. Civ. Prac. & Rem. Code § 74.155(b). This protection requires the healthcare
provider to allege facts by the later of the 60th day after the date the claimant
serves an expert report under Section 74.351, or the 120th day after the date the
healthcare provider files an original answer. See id. at § 74.155(g).

An expert report required by section 74.351(a) is meant to serve two
purposes: (1) to inform the defendant of the specific conduct the claimant is

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questioning and (2) to provide a basis for the trial court to conclude that the claim
has merit. Leland v. Brandal, 257 S.W.3d 204, 206–07 (Tex.2008). In this way,
section 74.351 permits the trial court to serve as a “gatekeeper” by determining
whether the expert report represents a good faith effort to inform of the conduct
called into question and permit the court to conclude whether the claim has merit.
Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); Mettauer v. Noble,
326 S.W.3d 685, 691 (Tex.App.—Houston [1st Dist.] 2010, no pet.). The expert
report requirement “establishes a threshold over which a claimant must proceed to
continue a lawsuit.” Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005). A
Chapter 74 expert report is intended to separate potentially meritorious health-care
liability claims from frivolous ones. In re LCS SP, LLC, 640 S.W.3d 848, 851
(Tex. 2022). The failure to serve a defendant with an expert report within 120 days
of the date the defendant files its answer entitles the health-care provider to seek
dismissal of the claim and an award of attorney's fees and costs. Id.

The legislature made it clear that the failure to provide a compliant expert
report under Section 74.351, allows a defendant to seek a dismissal with prejudice.
See Tex. Civ. Prac. & Rem. Code § 74.351(b). Section 74.155 does not provide a
similar consequence for the failure to provide “specific facts” entitling a defendant
to the gross negligence affirmative defense. In construing a statute, our primary
goal is to ascertain and effectuate the legislature's intent. Nat’l Liab. & Fire Ins.
Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). To ascertain the legislature’s intent,
we must consider the statute as a whole, and not isolated provisions. Helena Chem.
Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). In doing so, we begin with the
statute’s plain language because we assume that the legislature tried to say what it
meant and, thus, that its words are the surest guide to its intent. Fitzgerald v.
Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865–66 (Tex. 1999). If the

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statute’s language is unambiguous, its plain meaning will prevail. McIntyre v.
Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). We may also consider the statute’s
objectives, the circumstances under which the statute was enacted, legislative
history, common law, former law, similar provisions, and the consequences of the
statutory construction. See Tex. Gov't Code § 311.023(1)-(5). It is a well-settled
rule of statutory construction that we must presume that every word of a statute has
been used for a purpose. Laidlaw Waste Sys., Inc. v. Wilmer, 904 S.W.2d 656, 659
(Tex. 1995). Likewise, we must presume that every word excluded from a statute
has been excluded for a purpose. Id. This rule complements another general
statutory construction principle that courts should not insert words into a statute
except to give effect to clear legislative intent. Id. We presume the legislature
intentionally excluded a penalizing provision under Section 74.155, therefore
establishing the incorrect burden of proof is outside the intention of the statute and
was an abuse of discretion.

Section 74.155 is a relatively new statute, and its limitations have not been
fully litigated. The United States District Court for the Northern Division of Texas
in Dallas recently analyzed the sufficiency of a defendant’s pleading in relation to
Section 74.155. See Norman v. Dallas Tex. Healthcare LLC, No. 3:20-CV-03022-
L, 2023 WL 4157485, (N.D. Tex. June 7, 2023), report and recommendation
adopted, No. 3:20-CV-3022-L, 2023 WL 8791183 (N.D. Tex. Dec. 19, 2023). In
Norman, plaintiff filed a lawsuit against the defendant on August 14, 2020. Id. at 2.
On October 1, 2020, defendants filed their answer denying all claims and removed
the case to federal court on the basis of diversity jurisdiction. Id. Approximately
ten months later, on June 14, 2021, the Texas Legislature enacted the PLPA. As a
result of the new legislation, the defendants sought leave to amend their answer to
assert the new defenses under Section 74.155 of the PLPA. Id. After leave was

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granted, defendants filed a motion for judgment on the pleadings under Federal
Rule of Civil Procedure 12(c). Id.

The Court found that Texas law and Federal Rules of Civil Procedure do not
conflict in relation to affirmative defenses, stating that Federal Rule of Civil
Procedure 8 requires a party to affirmatively state any avoidance or affirmative
defense. Id. at 3. The Court reasoned that a defendant must plead an affirmative
defense with “enough specificity or factual particularity to give the plaintiff ‘fair
notice’ of the defense that is being advanced to prevent unfair surprise.” Id.
Further, the Court held that the “Defendants’ amended answer includes sufficient
specific facts to support their assertion of the affirmative defense.” Id at 4.

The Court in Norman provided sound logic and reasoning. Requiring the
healthcare provider to allege facts by a specific deadline is to provide notice to the
plaintiff. Relators advised Pelkemeyer that they intended to rely on section
74.155’s defense, which provided Pelkemeyer with “sufficient facts” of Relators’
intent to pursue this defense. Pelkemeyer received fair notice when Relators
included Section 74.155(b) in their original answer and then their later amended
answer. Pelkemeyer cannot claim to be surprised by relators’ section 74.155
defense; it was Pelkemeyer who filed the motion to establish the plaintiff’s
standard of proof. The hearing to establish the burden of proof was done well in
advance of trial. The record does not support a finding that relators’ affirmative
defense did not provide enough “specific facts” to Pelkemeyer. Because relators
provided specific facts within the statutory deadline, the trial court abused its
discretion when it struck relators’ gross negligence defense.

2. Relators do not have an adequate remedy on appeal.

The operative word, “adequate”, has no comprehensive definition; it is
simply a proxy for the careful balance of jurisprudential considerations that
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determine when appellate courts will use original mandamus proceedings to review
the actions of lower courts. In re Prudential Ins. Co. of Am., 148 S.W.3d at 36.
Mandamus review of significant rulings in exceptional cases may be essential to
spare private parties and the public the time and money utterly wasted enduring
eventual reversal of improperly conducted proceedings. See id. “[A]n appellate
remedy is not inadequate merely because it may involve more expense or delay
than obtaining an extraordinary writ, but extraordinary relief can be warranted
when a trial court subjects taxpayers, defendants, and all of the state's district
courts to meaningless proceedings and trials. See In re Team Rocket, L.P., 256
S.W.3d 257, 262 (Tex. 2008).

Requiring Relators to proceed under a different standard of proof that is
allowed under Section 74.155(b) would subject the court to meaningless
proceedings and trials. We conclude that Relators do not have an adequate
appellate remedy for the trial court’s order establishing Pelkemeyer’s claims to
procced under preponderance of the evidence.

CONCLUSION

We conclude that the trial court abused its discretion by granting
Pelkemeyer’s motion and establishing the burden of proof as preponderance of the
evidence and relators do not have an adequate remedy by appeal. Accordingly, we
conditionally grant relators’ petition for writ of mandamus and direct the trial court
to vacate its October 19th, 2023 order on plaintiff’s motion for court to establish
plaintiff’s standard of proof. We are confident the trial court will act in accordance
with this opinion and the writ will issue only if the trial court fails to comply.

PER CURIAM

Panel consists of Chief Justice Christopher, and Justices Wise and Jewell.

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