                                      NO. 12-13-00005-CV

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

THE GOOD SHEPHERD HOSPITAL,                           §      APPEAL FROM THE 188TH
INC.,
APPELLANT

V.                                                    §      JUDICIAL DISTRICT COURT

RONALD MASTEN, ET AL.,
APPELLEES                                             §      GREGG COUNTY, TEXAS

                                      MEMORANDUM OPINION
       The Good Shepherd Hospital, Inc. appeals the trial court‟s order denying its motion to
dismiss Ronald and Charlene Masten‟s lawsuit against it. In its sole issue, Good Shepherd
argues that the Mastens‟ suit is a healthcare liability claim (HCLC), that they failed to timely
serve an expert report as required for an HCLC, and that the trial court should have granted its
motion to dismiss the Mastens‟ suit. We affirm.


                                              BACKGROUND
       Ronald Masten, an emergency medical technician (EMT) for Good Shepherd, 1 was
working his shift at the White Oak, Texas station. Masten, along with two other employees,
were “response ready,” but resting at the time. Around midnight, Masten and one of the other
employees went to separate bedrooms to sleep. The third employee remained in the day room.
       Shortly after 1:00 a.m., Dolanda Harper and Larry Tidwell from the Ore City, Texas
station returned one of the White Oak station‟s ambulances. Harper and Tidwell borrowed the
ambulance to perform their duties because the Ore City ambulance was out of service for repairs.
Harper was unfamiliar with the White Oak ambulance and had no specific training on its


       1
           Good Shepherd provides emergency medical services under the trade name “Champion EMS.”
operation. She was unaware that the onboard generator that powered the ambulance‟s equipment
required manual shutdown, and that it would continue to operate after turning off the
ambulance‟s motor.
       The following morning, the assistant police chief and two day shift employees arrived at
the White Oak station, and noticed an odor in the building. They hurried to check on Ronald and
the other two employees, and discovered that all three were unconscious. One of the employees
was pronounced dead at the scene, while Ronald and the other employee were transported for
emergency treatment.     According to the Mastens‟ petition, Ronald sustained serious brain
damage and physical and cognitive injuries as a result of carbon monoxide poisoning.
       The ambulance was taken to a service center. According to the Mastens‟ petition,
inspectors determined that a wire to the generator‟s onboard safety alarm had been cut, rendering
the alarm inoperable. Also, the Mastens alleged that the White Oak station had no carbon
monoxide detector and alarm at the time.
       The Mastens initially intervened in a proceeding filed under Texas Rule of Civil
Procedure 202 in Gregg County, Texas. Based on the same facts alleged in that proceeding, they
filed suit in Harris County, Texas. The Mastens asserted premises liability and negligence
claims against Good Shepherd, alleging that it proximately caused Ronald‟s injuries when it
failed to maintain a carbon monoxide alert monitor at the station and failed to train Harper in the
operation of the generator. They also alleged that Good Shepherd or its agents knew that the
generator‟s safety alarm had been cut and failed to repair it. On Good Shepherd‟s motion, the
Harris County court transferred venue of the case to Gregg County.
       Good Shepherd subsequently moved to dismiss the Mastens‟ claims with prejudice,
claiming that their suit was an HCLC, and the Mastens failed to timely file the required expert
report. After a hearing, the trial court denied the motion. This interlocutory appeal followed.


                                HEALTHCARE LIABILITY CLAIM
       In its sole issue, Good Shepherd argues that the trial court erred when it failed to grant its
motion to dismiss because the Mastens‟ claim is an HCLC, and they failed to timely file an
expert report as required by Chapter 74 of the Texas Civil Practice and Remedies Code.




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Standard of Review
       We review a trial court‟s ruling on a Section 74.351 motion to dismiss for an abuse of
discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.
2001). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner,
without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62
(Tex. 2003). A trial court acts arbitrarily and unreasonably if it could have reached only one
decision, but instead reached a different one. See Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex.
App.—Texarkana 2003, no pet.). To that end, a trial court abuses its discretion when it fails to
analyze or apply the law correctly. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007).
Because a trial court has no discretion to apply the law incorrectly, we review questions
concerning the proper construction of the law de novo. See Tex. W. Oaks Hosp., L.P. v.
Williams, 371 S.W.3d 171, 177 (Tex. 2012). Similarly, the nature of the claims the legislature
intended to include under the Texas Medical Liability Act‟s (TMLA) umbrella is a matter of
statutory construction, a legal question, which we review de novo. Id.
Applicable Law
1. Expert Report Requirement
       Under the TMLA, a claimant who asserts an HCLC must comply with the TMLA‟s
requirements, including serving an expert report upon the health care provider within 120 days of
filing suit. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West Supp. 2014); Psychiatric
Solutions, Inc. v. Palit, 414 S.W.3d 724, 725 (Tex. 2013). If the claimant fails to serve an
expert report on a health care provider, the trial court must award the health care provider
reasonable attorney‟s fees and costs of court and dismiss the claim or claims against the health
care provider with prejudice. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b).
2. Classification of Claims as HCLCs
       An HCLC includes a cause of action against a health care provider “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 . . . .”    Id.
§ 74.001(a)(13) (West Supp. 2014). To determine whether a claimant is making an ordinary
negligence claim as opposed to an HCLC, we examine the acts or omissions causing the
claimant‟s injuries and “whether the events are within the ambit of the legislated scope of the
TMLA.” Williams, 371 S.W.3d at 176. A claim based on facts that could support an HCLC is



                                               3
an HCLC regardless of whether the claimant alleges that the health care provider is liable for
breach of any of those standards. Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012). Even
when expert medical testimony is not necessary, the claim may still be an HCLC. Williams, 371
S.W.3d at 182. In making our determination of whether a claim is an HCLC, we consider the
entire record, including the pleadings, motions and responses, and any relevant evidence
properly admitted. Loaisiga, 379 S.W.3d at 258.
3. “Safety” Claims as HCLCs
       “Safety” is not defined by the TMLA, and thus, is given its ordinary, commonly
understood meaning. Williams, 371 S.W.3d at 184. Safety means “the condition of being
„untouched by danger; not exposed to danger; secure from danger, harm or loss.‟” Id. (citing
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex. 2005) (quoting Black‟s
Law Dictionary 1336 (6th ed. 1990))). The safety component of an HCLC need not be directly
related to the provision of health care. Williams, 371 S.W.3d at 186; see also Good Shepherd
Med. Center–Linden, Inc. v. Twilley, 422 S.W.3d 782, 785 (Tex. App.—Texarkana 2013, pet.
denied) (stating that “even if a claim is not directly related to health care, it may nevertheless be
classified as a claimed departure from accepted standards of safety by a health care provider”).
But the TMLA does not extend to a claim that is wholly and conclusively inconsistent with and
separable from the rendition of “medical care, or health care, or safety or professional or
administrative services directly related to health care” even though the conduct occurred in a
health care context. Loaisiga, 379 S.W.3d at 257 (holding claim was not HCLC when patient
alleged that doctor assaulted her).
       That a claimant is not a patient of the health care provider is of no consequence in
determining whether the claimant has brought an HCLC under the safety prong of the TMLA.
Williams, 371 S.W.3d at 174. With the exception of medical care, health care, and professional
or administrative services claims, we focus on the gravamen of the claim or claims against the
health care provider, not the status of the claimant. See id. at 178, 181.
4. Professional or Administrative Services Claims Directly Related to Health Care as
HCLCs
       As we have stated, an HCLC includes a cause of action against a health care provider for
professional or administrative services directly related to health care. TEX. CIV. PRAC. & REM.
CODE ANN. § 74.001(a)(13). “Professional or administrative services” means “those duties or
services that a physician or health care provider is required to provide as a condition of


                                                  4
maintaining the physician‟s or health care provider‟s license, accreditation status, or certification
to participate in state or federal health care programs.” Id. § 74.001(a)(24). “Health care” means
“any act or treatment performed or furnished, or that should have been performed or furnished,
by any health care provider for, to, or on behalf of a patient during the patient‟s medical care,
treatment, or confinement.” Id. § 74.001(a)(10).
         Unlike safety claims, a professional or administrative services claim must be asserted by
a patient. See Williams, 371 S.W.3d at 181. In Williams, the supreme court stated that “the
specific wording of the „health care‟ definition, that health care be an act involving treatment
rendered for, to or on behalf of a patient, acts as a limitation on the general provision that an
HCLC need only be pursued by a „claimant.‟” Id. The court went on to conclude that, “[w]hile
other categories of HCLCs need only be pursued by claimants, by specific statutory directive
health care claims must involve a patient-physician relationship.” Id.
Discussion
         Good Shepherd does not argue that this is “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.” Rather, it argues that this claim is a “safety” claim or,
alternatively, a claim based on “professional or administrative services directly related to health
care.”
         As to the latter argument, there is no dispute in the development of the law that “directly
related to health care” modifies “professional or administrative services.” See Williams, 371
S.W.3d at 184. As we explained earlier, these types of claims must be directly related to
treatment performed or furnished, or that should have been performed or furnished, by a health
care provider for, to, or on behalf of a patient during the patient‟s medical care, treatment, or
confinement. See id. at 181; Lowry v. Tarbox, No. 04-11-00394-CV, 2011 WL 5080306, at *2
(Tex. App.—San Antonio Oct. 26, 2011, pet. denied) (mem. op., not designated for publication)
(holding claim relating to contractual and business relationships between healthcare providers
was not HCLC for professional or administrative services because claim did not directly relate to
treatment that was or should have been furnished for, to, or on behalf of a patient). Based on the
court‟s reasoning in Williams, since administrative or professional services claims must be
directly related to “health care,” we conclude that the “health care” definition likewise limits the
application of administrative or professional services claims as HCLCs to patients. See id.



                                                  5
       It is undisputed that Ronald Masten was not a patient. Good Shepherd nevertheless
argues that Harper and Tidwell provided professional or administrative services directly related
to health care when they performed their EMT duties on a patient while using the White Oak
ambulance. However, even if that is true, Harper and Tidwell had ceased providing those
services when they returned the ambulance to the White Oak station. Consequently, this claim
does not relate to treatment that should have been performed on that patient during his care,
treatment, or confinement. Therefore, the Mastens‟ claim is not properly characterized as an
HCLC based on professional or administrative services directly related to health care.
       We likewise conclude, contrary to Good Shepherd‟s contention, that the claim is not
properly characterized as a safety claim, and therefore is not an HCLC. In a safety claim, the
claimant need not necessarily be a patient. Williams, 371 S.W.3d at 174. Consequently, in this
type of claim, we focus on the gravamen of the claim or claims against the health care provider,
not the status of the claimant. See id. at 178. As we stated previously, the safety component of
an HCLC need not be directly related to the provision of health care. Williams, 371 S.W.3d at
186; Twilley, 422 S.W.3d at 785. But the TMLA does not extend to a claim that is wholly and
conclusively inconsistent with and separable from the rendition of “medical care, or health care,
or safety or professional or administrative services directly related to health care” even though
the conduct occurred in a health care context. See Loaisiga, 379 S.W.3d at 257. In some
instances, the only possible relationship between the conduct underlying a claim and the
rendition of medical services or healthcare will be the healthcare setting (i.e., the physical
location of the conduct in a health care facility), the defendant‟s status as a doctor or health care
provider, or both. Id. at 256.
       In Reddic, we recognized that a hospital has duties to keep the floor around the front desk
free of hazards and to take reasonable steps to prevent patient falls. E. Tex. Med. Ctr. Reg’l
Health Care Sys. v. Reddic, 426 S.W.3d 343, 348 (Tex. App.—Tyler 2014, pet. filed).
Therefore, we held that a slip and fall claim occurring in that area, even by a nonpatient, is an
HCLC under the safety prong, because the care of the floor around an area frequented by
numerous patients throughout the day has an indirect relationship to the provision of health care.
Id.
       The facts of this case are distinguishable from those in Reddic and are more like the facts
in Twilley. There, the hospital‟s director of plant operations sued the hospital for negligence



                                                 6
after he fell from a ladder attached to the hospital building and later tripped and fell over a
mound of hardened cement on the hospital‟s premises. Twilley, 422 S.W.3d at 783. The
Texarkana court of appeals held that while a safety claim need not be directly related to health
care pursuant to Williams, there must be some indirect link between an employee‟s safety claim
and the provision of health care in order for the claim to fall under the TMLA. See id. at 785.
Because the employee was injured while performing his duties that were “completely
untethered” from health care, the Texarkana court concluded that his claim was not an HCLC.
See id. at 785.
       Here, Ronald was injured when an employee failed to shut off the generator and closed
the garage door at the station after concluding her EMT duties. He was injured while he slept at
the station, a place where no health care services are provided. The purpose of the relevant
safety standards is to protect persons from exposure to carbon monoxide in places with low or no
ventilation, such as the enclosed garage adjacent to the living quarters at the station. Those
safety standards are unrelated to the duties of Good Shepherd and its employees in providing
health care. Thus, the conduct forming the basis of the claim is conclusively inconsistent with
and separable from the rendition of “medical care, or health care, or safety or professional or
administrative services directly related to health care.” See Loaisiga, 379 S.W.3d at 257. The
only relationship between the conduct underlying the claim and the rendition of medical services
or healthcare is the defendant‟s status as a health care provider. Id. at 256. We conclude that the
alleged breach of safety standards is not even indirectly related to health care. See Twilley, 422
S.W.3d at 785.
       Good Shepherd contends, however, that this claim is an HCLC because statutory and
administrative provisions regulate the station‟s minimum staffing requirement, Good Shepherd‟s
training programs in the use of ambulance equipment such as onboard generators, and its
maintenance of the generator. One of our sister courts recently addressed this issue and stated as
follows:

       We find no authority indicating that we must resort to administrative regulations in determining
       whether the gravamen of the plaintiff‟s claim is a safety claim. Further, the plain text of the
       statute does not make reference to hospital licensing regulations as a component of safety claims.
       As such, Twilley’s ultimate holding is instructive and properly frames the inquiry. The question
       here is not whether the licensing board or some other governmental body has regulated that
       particular aspect of a hospital‟s construction or operation. The question is whether the plaintiff
       alleged that the health care provider defendant breached safety standards indirectly related to
       health care.



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E. El Paso Physicians Med. Ctr., L.L.C. v. Vargas, No. 08-13-00358-CV, 2014 WL 5794622, at
*6 (Tex. App.—El Paso Nov. 7, 2014, no pet. h.) (op., not yet released for publication) (internal
citation omitted).       We agree with the court‟s reasoning in Vargas. And we have already
explained that Good Shepherd‟s alleged breach of safety standards forming the basis of this
claim is not indirectly related to health care. Therefore, we hold that the Mastens‟ claim is not an
HCLC, and the trial court did not abuse its discretion in denying its motion to dismiss.
         Good Shepherd‟s sole issue is overruled.2


                                                    DISPOSITION
         Having overruled Good Shepherd‟s sole issue, we affirm the order of the trial court
denying its motion to dismiss.

                                                                         BRIAN HOYLE
                                                                            Justice

Opinion delivered December 3, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)


         2
          The Mastens make several counterarguments to Good Shepherd‟s contention that they failed to timely
serve an expert report. Since we have overruled Good Shepherd‟s sole issue, we need not address these arguments.
TEX. R. APP. P. 47.1.


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                          DECEMBER 3, 2014


                                          NO. 12-13-00005-CV


                          THE GOOD SHEPHERD HOSPITAL, INC.,
                                      Appellant
                                         V.
                               RONALD MASTEN, ET AL,
                                      Appellee


                                 Appeal from the 188th District Court
                         of Gregg County, Texas (Tr.Ct.No. 2012-876-A)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court‟s order denying Appellant‟s motion to dismiss.
                       It is therefore ORDERED, ADJUDGED and DECREED that the trial
court‟s order denying Appellant‟s motion to dismiss below be in all things affirmed, and that all
costs of this appeal are hereby adjudged against the Appellant, THE GOOD SHEPHERD
HOSPITAL, INC., for which execution may issue, and that this decision be certified to the
court below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
