OPINION In this interlocutory appeal, defendant health care providers Boon-Chapman, Soluta Heath, Inc., and Kathy White appeal the trial court’s denial of their motion to dismiss appellant Shirley Patterson’s claims for failure to file an expert report in support of her claims for denial of medical care. Because Patterson’s claims against these defendants are health care liability claims, they are subject to the expert-report requirement of the Texas Medical Liability Act (“the Act”).[1] We accordingly reverse the trial court’s order and remand the case to the trial court with instructions to award these defendants their reasonable attorney’s fees and costs of court and dismiss the claims against them with prejudice. BACKGROUND Patterson alleges that after she was in a single-vehicle accident in which she broke her arm, she was arrested for driving while intoxicated and taken into the custody of the Galveston County jail. According to Patterson, she immediately requested help from the jail’s medical department but was denied medical assistance during the two days she remained in custody. Patterson sued Galveston County, the sheriff, and the arresting officer for civil-rights violations under § 1983. Against defendants Boon-Chapman, Soluta Health, Inc., and the jail’s health-services administrator Kathy White, R.N. (collectively, “the Health Care Providers”), Patterson asserted claims under the Fourth and Fourteenth Amendments for denying or delaying her medical care.[2] Six months after Patterson filed the case, the Health Care Providers moved to dismiss the claims against them on the ground that they are health care providers and Patterson failed to serve them with an expert report as required by statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. Patterson initially responded that she intended to bring only civil-rights claims against these defendants. At the hearing on the motion, Patterson argued that her claims were brought under § 1983, not under the Act. The trial court denied the motion to dismiss. In the sole issue presented in this interlocutory appeal, the Health Care Providers argue that the trial court erred in denying their motion to dismiss because Patterson failed to serve an expert report as required. ANALYSIS A claimant asserting a health care liability claim is required to serve on each defendant physician or health care provider an expert report providing a fair summary of the expert’s opinion regarding the applicable standard of care, the manner in which the defendant breached the standard of care, and the causal relationship between that failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (r)(6). If the claimant fails to serve the expert report by the 120th day after the defendant answers the suit, the trial court must, on the defendant’s motion, dismiss the claim with prejudice and award the defendant reasonable attorney’s fees and costs of court. Id. § 74.351(a), (b). Patterson argues that she was not required to serve the Health Care Providers with an expert report because (a) her claims against these defendants are not health care liability claims subject to the Act, and (b) federal civil-rights law preempts the Act’s expert-report requirement. Patterson’s Claims Are Health Care Liability Claims. Whether a claim is a “health care liability claim” is a question of law we review de novo. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019). To determine if Patterson’s claims are “health care liability claims” as defined by the Act, we review the trial court’s construction of the Act under the de novo standard of review. See Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 501 (Tex. 2015). We construe the Act’s “words according to their plain and common meaning unless they are statutorily defined otherwise, a different meaning is apparent from the context, or unless such a construction leads to absurd or nonsensical results.” Id. The Act defines “health care liability claim” as follows: “Health care liability claim” means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract. TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). “‘Medical care’ means any act defined as practicing medicine . . . performed or furnished, or which should have been performed, by one licensed to practice medicine in this state for, to, or on behalf of a patient during the patient’s care, treatment, or confinement.” Id. § 74.001 (a)(19). Because “confinement” is not statutorily defined, we construe it using its common meaning, which is “the state of being confined.” NEW OXFORD AMERICAN DICTIONARY 364 (Angus Stevenson & Christine Lindberg eds., 3d ed. 2010). The term “confinement” includes the state of being incarcerated after being arrested. See State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (the term “confinement” encompasses incarceration); Neuenschwander v. State, 784 S.W.2d 418, 420 (Tex. Crim. App. 1990 (“incarceration” includes detainment following the detainee’s initial arrest); see also Confinement, Black’s Law Dictionary (11th ed. 2019) (defining “confinement” as “[t]he act of imprisoning or restraining someone; the quality, state, or condition of being imprisoned or restrained.”). Thus, Patterson’s claims against the Health Care Providers are “health care liability claims” encompassed by the Act if the gravamen of her complaint is that these defendants denied her medical treatment that should have been rendered to her during her confinement, proximately causing her injury. If the essence of her complaint is that the Health Care Providers departed “from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care,” then artful pleading will not prevent the classification of her claim as a health care liability claim. See Weems, 575 S.W.3d at 364. Patterson has unambiguously alleged a health care liability claim. Patterson pleaded that she was in a single-vehicle accident because she suffered a seizure while driving. She alleged that although her arm was broken in the crash and she was “in need of medical attention,” she was arrested for driving while intoxicated and detained for two days at the Galveston County Jail, where her requests for medical assistance were denied. Based on these factual allegations, she pleaded the following cause of action against the Health Care Providers: Count 2 – 4th Amendment, and 14th Amendment Claims for Denial and Delay in Medical Care against Boon-Chapman, Soluta Health, and Kathy White. Plaintiff incorporates herein the facts in the preceding numbered- paragraph. Plaintiff brings this claim that involv[es] the medical malpractice of defendant[s], when each was deliberately indifferent to the serious medical needs of Shirley Patterson, by failing to provide timely medical care after she broke her arm in a motor vehicle accident, in violation of her 4th and 14th amendment rights, since she was a pre- trial detainee. Defendants, Boon-[C]hapman, Soluta Health, and Kathy White, have been delegated the duty to provide medical care to the inmates of the Galveston County Jail from the Galveston County Sheriff. Kathy White is a registered nurse and the policymaker for the Jail’s medical department . . . . Patterson’s claim is that the defendant Health Care Providers had a duty “to provide medical care” to those confined in the Galveston County but failed to treat her “serious medical needs.” By alleging that the Health Care Providers breached a duty to render needed medical treatment, she has alleged a health care liability claim. Moreover, a claim against a health care provider “based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement” is presumed to be a health care liability claim. Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012). Patterson’s only argument to rebut that presumption is that the Act’s expert-report requirement is preempted by federal law, an argument to which we now turn. Patterson Failed to Preserve Her Preemption Argument. Patterson asserts that she pleaded only a civil-rights action under 42 U.S.C. § 1983 against the Health Care Providers, and she argues for the first time on appeal that the federal statute preempts the Act’s expert-report requirement.[3] See Rogers v. Bagley, 581 S.W.3d 362 (Tex. App.—Corpus Christi 2019, pet. granted). She does not argue, however, that federal law preempts state law regarding preservation of error, and under state law, a federal preemption argument that affects only the choice of law and not jurisdiction must be raised in the trial court or it is waived.[4] Because Patterson did not preserve her preemption argument in the trial court, we do not consider it on appeal. We instead hold that Patterson has failed to rebut the presumption that her claims against the Health Care Providers are health care liability claims subject to the Act. We sustain the sole issue presented. CONCLUSION Patterson’s claims against the Health Care Providers are health care liability claims; thus, the Act’s expert-report requirement applies. Because she did not file an expert report on any of the Health Care Providers, the trial court erred in denying their motion to dismiss. We accordingly reverse the trial court’s order and remand the case with instructions to award to the Health Care Providers their reasonable attorney’s fees and costs of court and dismiss the claims against them with prejudice. /s/ Tracy Christopher Chief Justice Panel consists of Chief Justice Christopher and Justices Wise and Zimmerer.
