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Turtle Healthcare Group, L.L.C. v. Yolanda higuera linan individually and As the Natural Parent of

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We issued an opinion in this case on February 25, 2011. We deny the motion for rehearing filed by respondents, the Linans, withdraw our prior opinion and issue this opinion in its place.

At issue in this appeal is whether claims based on the failure of a ventilator can be brought both as claims subject to the Texas Medical Liability Act (TMLA) and claims not subject to the TMLA. We hold that under the record presented, they cannot; all the claims are subject to the TMLA and must be dismissed because no expert report was served.

Turtle Healthcare Group supplied a ventilator to Maria Linan. A respiratory therapist from Turtle made regular visits to ensure the ventilator was operating properly. In July 2005, Maria’s mother and caretaker, Yolanda Linan, contacted Turtle and requested an oxygen tank and two additional external ventilator batteries because of an impending hurricane. Turtle delivered the oxygen tank and one battery. The next day the hurricane arrived and the Linans’ power went out around 7:00 a.m. The ventilator continued to function after the electricity went out, but around 9:30 a.m. Maria’s family found that the ventilator was not operating and Maria had died.

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