Dallas Court of Appeals, No. 05-12-01399-CV (July 10, 2014)
Justices FitzGerald, Fillmore, and Evans (Opinion)
On its own motion, the Dallas Court of Appeals withdrew its original decision from June 11, 2014 (reported here) and substituted this new opinion. Ferguson attempted to pursue a breach-of-contract counterclaim against the Edgemere nursing facility because staff there had placed his mother in restraints, which Ferguson alleged was contrary to the parties’ “Skilled Nursing Resident Agreement.” The trial court sustained Edgemere’s motion in limine, precluding Ferguson from raising the issue that his mother had been placed in restraints. In its original opinion, the Court held that Ferguson had not preserved error regarding exclusion of that evidence by merely opposing the motion in limine and proffering the evidence prior to trial, because he had not formally offered the evidence at trial or obtained a ruling excluding it. In its revised opinion, the Court reiterated and bolstered that holding, but added an alternative basis for its judgment, finding that even if the issue had been preserved, the trial court had not abused its discretion in excluding the evidence. The use of restraints, the Court held, was a “medical issue” that fell within the ambit of a “health care liability claim,” and all such claims had been dismissed because Ferguson had not filed an expert report as required by Chapter 74 of the Civil Practice and Remedies Code. The fact that Ferguson had sought to raise the issue in the context of a breach-of-contract counterclaim was immaterial, because “[a] plaintiff cannot avoid the requirements of chapter 74 by attempting to recast a health care liability claim as a different cause of action through artful pleading.”
