In Re 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. 14-23-00950-CV

IN RE REGENCY IHS OF BRENHAM, LLC, Relator

ORIGINAL PROCEEDING
WRIT OF MANDAMUS
335th District Court
Washington County, Texas
Trial Court Cause No. 37765

MEMORANDUM OPINION

On December 19, 2023, Relator 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, Relator ask this Court to compel the
Honorable Carson Campbell, presiding judge of the 21st Judicial District Court of
Washington County 1, to vacate the Order on Plaintiff’s Motion for Court to

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Honorable Carson Campbell was the sitting judge for this proceeding.
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. Glenn
Earl Kokemor (“Kokemor”), individually and on behalf of the estate of Dolores
Fay Kokemor, sued relator, asserting that relator failed to provide care to Dolores
Fay Kokemor, that would have allegedly prevented her 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 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

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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).

(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

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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).

(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).

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2. Kokemor’s Motion for Court to Establish Plaintiff’s Standard of
Proof.

On March 11, 2022, relator 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,
Kokemor filed a motion to strike defendants’ affirmative defense. Relator filed
their first amended answer on May 25, 2023, asserting the following:

Defendant asserts that 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 February 8, 2022, “Mrs. Kokemor was
87-years-old when she was admitted to Brenham
Nursing and Rehab on December 19, 2016. She was
admitted for long-term care and management of her
chronic health conditions. Her diagnosis included
Congestive Heart Failure, Chronic Respiratory Failure
with Hypoxia, Chronic Kidney Disease, Vascular
Dementia, Hypertension, Anemia, Anxiety, Arthritis,
Restless Leg Syndrome, Major Depressive Disorder,
Gastro-Esophageal Reflux Disease and Chronic Back
Pain.” (Plaintiff’s Petition Paragraph 63). “On April 8,
2020, Mrs. Kokemor's care plan was updated. It stated
she was at risk for deterioration of her medical
condition due to positive results of COVID-19.”
(Plaintiff’s Petition Paragraph 86). On April 13, 2020,
Mrs. Kokemor was lying in bed with her head slumped
forward and was difficult to arouse.” “The Nurse
Practitioner documented that Mrs. Kokemor had a
lower respiratory infection due to COVID - 19 and a
worsening oxygen saturation level.” (Plaintiff’s Petition
Paragraph 90). “On April 25, 2020, Mrs. Kokemor
was unresponsive to verbal stimuli and chest rub.” “She
died the next day, April 26, 2020.” (Plaintiff’s Petition
Paragraph 92). Mrs. Kokemor was diagnosed or
reasonably suspected of being infected with COVID-
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19. [Tex. Civ. Prac. & Rem. Code 74.155(b)(1)].
Defendant would also show that 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 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;

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(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. Kokemor which are included as an Affirmative
Defense as indicated in the medical records, and as
stated in Plaintiff’s Original Petition. Defendant 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."). Defendant asserts 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 §
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74.155(b). COVID-19 was a direct cause of Mr.
Kokemor’s death. This is undisputed. All Plaintiff’s
claims in her medical malpractice case arise from
allegations that Defendant failed to provide care to Ms.
Kokemor that would have allegedly prevented her from
being exposed to, contracting, and ultimately dying
from COVID-19.

Kokemor filed a motion for the court to establish plaintiff’s standard of

proof, and on October 17, 2023, the court held a hearing on the Kokemor’s motion.

During the hearing, Kokemor argued that relator 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 relator under the ordinary negligence standard. In response,

relator argued: (1) that the original answer was sufficient, (2) subsection (g)’s

deadline was directory and does not support striking relator’s defense, and (3) the

requested relief mixes the burden of proof with Kokemor’s causes of action. The

trial court heard both arguments and granted Kokemor’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

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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

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

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Ins. Co., 148 S.W.3d at 136.

1. 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

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

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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

statute’s language is unambiguous, its plain meaning will prevail. McIntyre v.

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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.

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.

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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

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. Relator advised Kokemor that they intended to rely on section 74.155’s

defense, which provided Kokemor with “sufficient facts” of Relator’s intent to

pursue this defense. Kokemor received fair notice when Relator included Section

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74.155(b) in their original answer and then their later amended answer. Kokemor

cannot claim to be surprised by relator’s section 74.155 defense; it was Kokemor

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 relator’s affirmative defense did not provide enough

“specific facts” to Kokemor. Because, relator provided specific facts within the

statutory deadline, the trial court abused its discretion when it struck relator’s gross

negligence defense.

2. Relator does 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

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

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S.W.3d 257, 262 (Tex. 2008).

Requiring Relator 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 Relator do not have an adequate appellate

remedy for the trial court’s order establishing Kokemor’s claims to procced under

preponderance of the evidence.

CONCLUSION

We conclude that the trial court abused its discretion by granting Kokemor’s

motion and establishing the burden of proof as preponderance of the evidence and

relator does not have an adequate remedy by appeal. Accordingly, we conditionally

grant relator’s 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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