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Click here for the full text of this decision FACTS:Arminda and Richard Torres, appealed an order dismissing their suit against appellee, Memorial Hermann Hospital System (d/b/a Memorial Hermann Southwest Hospital (the hospital). Arminda underwent knee replacement surgery at the hospital. Three days after the surgery, Arminda was transferred to the rehabilitation unit at the hospital. She purportedly asked the nurses on her floor for a bedpan. The nurses allegedly told her that because there were neither bedpans nor bedside commodes on the rehabilitation floor, she would have to walk to the restroom. Arminda stated that she then asked for assistance from the nurses, but a nurse never came to help. At some point, Arminda’s daughter attempted to help her to the restroom. Arminda fell and fractured her femur bone on the same leg that had undergone surgery. Appellants filed suit, arguing that the hospital breached its duty to Arminda and that the breach was the proximate cause of their injuries and damages. The hospital filed a motion to dismiss on grounds that appellants’ suit was a health-care liability claim subject to the mandatory requirements of the Medical Liability and Insurance Improvement Act. The hospital argued that appellants failed to file the required expert report within 180 days of filing suit, and that, therefore, the trial court must dismiss appellants’ suit. The trial court granted the motion to dismiss and appellants sought review. HOLDING:Affirmed. Appellants argue that the trial court erred in dismissing their suit with prejudice because they did not file an expert report pursuant to 13.01(e) of the MLIIA. Appellants contend that because their cause of action lies in common law negligence and not medical malpractice, the trial court erred in granting the hospital’s motion to dismiss. The court notes that if the cause of action is based on a health-care facility’s breach of the standard of medical care, then the claim is a health care liability claim, no matter how it is labeled. Appellants contend that “the simple act of assisting [a]ppellant to the restroom or furnishing her a bedpan is something that could have been done by anyone.” Therefore, appellants contend that their suit is for common law negligence and is not subject to the MLIIA. But the court disagrees and finds that the underlying nature of appellants’ allegations is that the hospital and the nurses did not provide Arminda with proper treatment and facilities during her post-operative inpatient rehabilitation. The court notes that appellants brought suit against the hospital and the nurses who provided Arminda’s care, and that those parties are health-care providers. The court finds that the nurses and the hospital were providing Arminda with health care because they were performing and furnishing treatment to Arminda while she was recovering as a patient at the hospital. Therefore, the court concludes that appellants’ suit is a health-care liability claim and subject to the provisions and requirements of the MLIIA. OPINION:Keyes, J.; Taft, Keyes, and Hanks, JJ.

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