Court Holds Estate Had Standing To Bring Malpractice Action: Celia Ontiveros was a patient at a nursing care facility run by Nexion from September of 2014 through early March of 2015. Ontiveros experienced several issues at the facility such as weight loss and falls, and it was alleged that she had been slapped by a nurse. She also developed a pressure ulcer on her foot and toe that were neglected and became infected resulting in the amputation of some of her toes. Ontiveros was transferred to another facility where she later died, due to unrelated circumstances, in July of 2015.
Pena sued Nexion in December of 2016 “on behalf of” Ontiveros for medical negligence, requesting past damages for the injuries to Ontiveros while residing in Nexion’s facility. Pena’s petition did not allege that Ontiveros had died. After the statute of limitations had run, Nexion discovered at Pena’s deposition that Ontiveros had died five months before the original petition was filed.
Ultimately, almost two years after the petition was filed, and after Pena became the administrator of Ontiveros’ estate, the trial court granted summary judgment for Nexion and dismissed the claims raised by Pena with prejudice.
The Texas Tenth Court of Appeals (“Texas Appellate Court”) stated in its August 31, 2022 Memorandum Opinion: “Had Ontiveros been alive when the action was initiated, she would have been the actual party to the suit regardless of whether Pena had the capacity to represent her. A medical liability action, such as this case, is brought by a “claimant”—a person, including a decedent’s estate—seeking recovery of damages in a health care liability claim. TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2). Thus, when Pena asserted claims “on behalf of” Ontiveros as a living person—whether mistakenly or not—Ontiveros was the real party plaintiff, the true “claimant” … When Ontiveros died before the lawsuit was filed, her estate became the real party plaintiff and had a justiciable interest in the controversy sufficient to confer standing. See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2) … And because the pleadings in this case, construed in favor of Pena, alleged that Nexion’s negligent conduct injured Ontiveros, her estate had standing to pursue a claim. Simply because Ontiveros did not style the petition as a representative of the estate of Ontiveros does not mean the estate lacked standing to bring the suit.”
“Although Ontiveros was deceased at the time the lawsuit was filed, the suit was not brought in her name, individually. Further, no future damages were requested, which, in Armes was used as support for a determination that the suit was brought by the deceased. Thus, the reason asserted for lack of standing in Armes, that a deceased person has no standing to bring a claim, is not present here.”
Source Pena v. Nexion Health at Waxahachie Inc., No. 10-19-00044-CV.
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