Full Opinion (html_with_citations)

                                  In The

                            Court of Appeals

                Ninth District of Texas at Beaumont

                           __________________

                          NO. 09-23-00359-CV
                          __________________


          IN RE SILSBEE OAKS HEALTH CARE, L.L.P.

__________________________________________________________________

                      Original Proceeding
         58th District Court of Jefferson County, Texas
                    Trial Cause No. A-209436
__________________________________________________________________

                      MEMORANDUM OPINION

     Silsbee Oaks Health Care, L.L.P. (“Silsbee Oaks”) filed a petition

seeking mandamus relief from an order denying its pre-trial motion to

dismiss a medical liability claim, which was filed in the trial court by five

individuals collectively referred to in this original proceeding as either

the Real Parties in Interest or as the Smarts. 1 In a motion for temporary


     1See Tex. R. App. P. 52. The Real Parties in Interest are: (1) Patricia

Smart, Individually and as Representative of the Estate of Bonnie Smart,
(2) Joe Smart, (3) Larry Dale Smart, (4) Otis Von Smart Sr., and (5) Roy
G. Smart
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relief, Silsbee Oaks asks that this Court stay all trial court proceedings,

including discovery, while this original proceeding is before this Court.2

After reviewing the mandamus petition and record, we deny the

mandamus petition and the motion for temporary relief. 3

      When the Smarts filed their original petition, they attached an

expert report to their petition to comply with the requirements of the

Texas Medical Liability Act (TMLA). 4 When Silsbee Oaks answered, it

filed a general denial and an affirmative defense, a defense that it based

on section 74.155 of the Civil Practice and Remedies Code. 5 Section

74.155 (“Liability of Physician, Health Care Providers, and First

Responders During Pandemic”) creates an affirmative defense from

liability “for injury arising from care, treatment, or failure to provide care




      2See id. 52.10(a).
      3See id. 52.7(a). At the Relator’s request, we take judicial notice of

the clerk’s record and reporter’s record filed for its attempted accelerated
appeal from the order denying Silsbee Oaks’ motion to dismiss. See
generally Silsbee Oaks Health Care, L.L.P. v. Smart, No. 09-23-00249-
CV,
2023 WL 6318051
 (Tex. App.—Beaumont Sept. 28, 2023, no pet. h.)
(mem. op.).
      4See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351
.
      5Id. § 74.155.

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or treatment relating to or impacted by a pandemic disease or a disaster

declaration related to a pandemic disease.” 6

     Around five weeks later, in a motion to dismiss, Silsbee Oaks

argued that because it had produced evidence supporting “immunity”

under CPRC section 74.155, it was entitled to recover attorneys’ fees and

to have the suit dismissed under CPRC section 74.351(c). According to

the motion, the Smarts had failed to meet their burden to produce

evidence in response to the evidence produced by Silsbee Oaks supporting

its pandemic defense under section 74.155 to show that Bonnie Smart’s

injuries and death were caused by Silsbee Oaks’ intentional, willful, or

wanton misconduct.

     Four months after that, Silsbee Oaks supplemented its motion,

arguing that an affirmative defense under CPRC section 74.155 is raised

and determined before any discovery is allowed in a case against a

healthcare provider like Silsbee Oaks. And eight months later, Silsbee

Oaks filed another supplemental motion in which it argued the case

against it should be dismissed because, based on the testimony of Bonnie

Smart’s medical providers, Bonnie was not suspected of having a COVID-


     6See id. § 74.155 (the Pandemic Liability Statute).

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19 infection and did not qualify for transfer to a hospital when Silsbee

Oaks discharged Bonnie to home care. That said, Silsbee Oaks’ motion

then states that “additional uncontroverted evidence demonstrates the

Covid-pandemic was the producing cause of her injury-Covid-19-death 16

days after discharge from Silsbee Oaks.”

     Asserting the evidence tying Bonnie’s death to the COVID-19

pandemic was uncontroverted, Silsbee Oaks concluded that the plaintiff’s

claims against Silsbee Oaks were “barred under § 74.155(b) subsection

(1) and (2).” The trial court disagreed with Silsbee Oaks and denied its

motion to dismiss. Silsbee Oaks responded by filing an interlocutory

accelerated appeal, and the Smarts challenged our jurisdiction to

consider the appeal.

     In resolving the jurisdictional challenge, we concluded that CPRC

section 74.155 operates as an affirmative defense rather than as part of

the sufficiency criteria that applies to evaluating expert reports under

CPRC section 74.351(b). 7 Since no statute expressly authorized an appeal




     7Silsbee Oaks Health Care, L.L.P.,
2023 WL 6318051
, at *3.

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from the interlocutory order, in September 2023, we dismissed Silsbee

Oaks’ accelerated appeal for lack of jurisdiction. 8

     Relying on its claim that section 74.155 required the plaintiff to

produce an expert report to rebut its pandemic defense before the

plaintiff could proceed with the suit, Silsbee Oaks argues in its petition

that the legislature intended to make the process that involves screening

lawsuits that don’t have merit against healthcare defendants—which

requires healthcare liability plaintiffs to file expert reports and is spelled

out in section 74.351—apply should a defendant assert a claim that the

patient was injured or died as a result of a pandemic disease based on

the defense the legislature created in section 74.155. According to Silsbee

Oaks, the trial court abused its discretion in failing to reconcile sections

74.155 and 74.351 properly to require the Smarts to produce a report

from an expert to negate Silsbee Oaks’ defense that Bonnie Smart died

of a pandemic disease, COVID-19. 9 Nonetheless, Silsbee Oaks claims

that section 74.155 (the section creating the pandemic defense that

applies to healthcare providers) and section 74.351 (which creates the




     8Id. at *4.
     9See
Tex. Civ. Prac. & Rem. Code Ann. § 74.155
(g).

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expert report requirements applicable to healthcare-liability claims)

should be interpreted as creating an additional reporting burden on the

plaintiff to produce a rebuttal expert report if the healthcare provider

asserts a “pandemic defense” under section 74.155. 10 Silsbee Oaks argues

that the trial court abused its discretion when it refused to accept Silsbee

Oaks’ novel interpretation of the healthcare liability statute.

     We may grant mandamus relief to correct a trial court’s abuse of

discretion when an appeal provides an inadequate remedy. 11 An abuse of

discretion occurs when a trial court’s ruling is arbitrary and

unreasonable or is made without regard for guiding legal principles or

supporting evidence. 12 We determine the adequacy of an appellate

remedy by balancing the benefits of mandamus review against the

detriments. 13




     10See
id.
 §§ 74.155(a)(3), 74.351.
     11In re   Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135-36
 (Tex.
2004) (orig. proceeding); Walker v. Packer,
827 S.W.2d 833, 839-40
 (Tex.
1992) (orig. proceeding).
       12In re Nationwide Ins. Co. of Am.,
494 S.W.3d 708, 712
 (Tex. 2016)

(orig. proceeding).
       13In re Essex Ins. Co.,
450 S.W.3d 524, 528
 (Tex. 2014) (orig.

proceeding); In re Prudential Ins. Co. of Am.,
148 S.W.3d at 136
.
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     We have reviewed the mandamus petition, the appendix submitted

with the petition, and the clerk’s and reporter’s records filed in the

accelerated appeal. After reviewing the records, and after considering the

arguments presented in the mandamus petition and the authorities cited

in the petition, we conclude Silsbee Oaks has failed to establish that an

abuse of discretion occurred.

     Balancing the benefits of mandamus review against the detriments

and considering Silsbee Oaks’ argument that the trial court’s ruling

deprives Silsbee Oaks and the healthcare providers it employs of their

rights under the TMLA, we conclude Silsbee Oaks has not established

that it lacks an adequate remedy by appeal. We deny the petition for

mandamus and the motion for temporary relief.

     PETITION DENIED.

                                                   PER CURIAM

Submitted on December 13, 2023
Opinion Delivered December 14, 2023

Before Golemon, C.J., Horton and Johnson, JJ.




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