                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-07-122-CV


HARRIS METHODIST FORT WORTH                                         APPELLANT

                                       V.

JO FAWN OLLIE                                                         APPELLEE

                                   ------------

        FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

      In this interlocutory appeal, Appellant Harris Methodist Fort Worth (Harris

Methodist) contends that the trial court erred by denying its motion to dismiss

Appellee Jo Fawn Ollie’s claim and by not awarding reasonable attorney’s fees

to Harris Methodist. We will affirm.
                   I. B ACKGROUND AND P ROCEDURAL H ISTORY

      On June 14, 2004, Ollie underwent a total knee arthroplasty (knee

replacement) at Harris Methodist. Ollie alleges that on June 17, 2004, while

still a patient at Harris Methodist, she attempted to get out of the bathtub when

she fell on the “slippery wet floor,” which had created a dangerous and

hazardous condition, injuring her right shoulder. On June 16, 2006, Ollie filed

suit against Harris Methodist, alleging causes of action under two theories of

liability. Ollie asserted under a “general negligence theory” the following:

      !     Defendant owed Plaintiff and others the duty to provide a
            safe environment maintained properly, so as to not cause
            harm and/or injury. Defendant breached said duty by failure
            to maintain and warn Plaintiff of the dangerous and
            hazardous condition.

Ollie asserted next under a “medical malpractice theory” the following:

      !     Defendant breached said duty of medical malpractice by
            failing to provide a safe environment, maintained properly, so
            as to not cause harm and/or injury. Defendant breached said
            duty of medical malpractice by failure to maintain and warn
            Plaintiff of the dangerous and hazardous condition.

      On the same date that she filed suit, Ollie sent Harris Methodist notice of

the health care liability claim as required by Chapter 74. See Tex. Civ. Prac. &

Rem. Code Ann. § 74.051 (Vernon 2005). However, on October 11, 2006,

Ollie amended her petition, deleting her medical malpractice claim but keeping

her general negligence claim as stated in her original petition.

                                       2
      Harris Methodist filed a motion to dismiss Ollie’s claim because Ollie failed

to comply with the requirements of section 74.351 of the Texas Civil Practice

and Remedies Code, stating that in a health care liability claim, the claimant

shall serve on each party an expert report within 120 days of filing the petition.

Id. § 74.351(a).    The trial court denied the motion to dismiss, and Harris

Methodist then filed this interlocutory appeal.

                        II. H EALTH C ARE L IABILITY C LAIM

      Ollie does not argue that she filed an expert report; therefore, in

addressing Harris Methodist’s first point that the trial court erred by denying its

motion to dismiss, our discussion is limited to the issue of whether Ollie’s claim

constitutes a “health care liability claim.”

      Generally, we review a denial of a motion to dismiss under an abuse of

discretion standard. Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770,

773 (Tex. App.—Corpus Christi 2006, pet. denied). However, we review de

novo the trial court’s denial of a motion to dismiss when it involves the

determination of whether the claim is a health care liability claim under Chapter

74. Id.

      To determine whether Ollie’s allegations constitute a health care liability

claim, we look to the underlying nature of the claim and are not bound by the

form of the pleading. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842,

                                        3
847 (Tex. 2005).      Artful pleading and recasting of claims to avoid the

requirements of Chapter 74 is not permitted. Id. at 854; Garland Comty. Hosp.

v. Rose, 156 S.W.3d 541, 543 (Tex. 2004). If the act or omission alleged in

the complaint is an inseparable part of the rendition of health care services,

then the claim is a health care liability claim. Rose, 156 S.W.3d at 544; Shults

v. Baptist St. Anthony’s Hosp. Corp., 166 S.W.3d 502, 505 (Tex.

App.—Amarillo 2005, pet. denied); see also Walden v. Jeffrey, 907 S.W.2d

446, 448 (Tex. 1995). To help us in that determination, we consider whether

testimony from a medical or health care professional is necessary to prove the

claim. Diversicare, 185 S.W.3d at 848, 851.

      Ollie maintains that her claim is merely a premises liability claim, whereas

Harris Methodist argues that because Ollie alleged that Harris Methodist failed

to provide a “safe environment,” her allegations constitute a health care liability

claim under Chapter 74. A health care liability claim is defined under section

74.001 as follows:

      [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) (emphasis added).

                                        4
            Ollie states that because this case is governed by the new

      definition 1 of health care liability claim, safety claims must now be

      directly related to health care. See id. We agree with Ollie’s reading of

      the statute and have recently held that safety claims under Chapter 74

      must be directly related to health care.    See Yamada v. Friend, No.

      02-07-00177-CV, 2008 WL 553690, at *3 (Tex. App.—Fort Worth Feb.

      28, 2008, no pet. h.) (mem. op.) (not designated for publication); See

      also Omaha Healthcare Ctr., L.L.C. v. Johnson, 246 S.W.3d 278, 284

      (Tex. App.—Texarkana 2008, pet. filed); Christus Health v. Beal, 240

      S.W.3d 282, 289 (Tex. App.—Houston [1st Dist.] 2007, no pet.);

      Stradley, 210 S.W.3d at 775. But see Holguin v. Laredo Reg’l Med. Ctr.,

      L.P., 256 S.W.3d 349, 354–55 (Tex. App.—San Antonio 2008, no pet.)

      (citing Emeritus Corp. v. Highsmith, 211 S.W.3d 321, 328 (Tex.

      App.—San Antonio 2006, pet. denied)) (rejecting the contention that

      safety claims must be directly related to health care).


      1
       … A “health care liability claim” was previously defined as “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 which proximately results in injury to or death of the
patient . . . .” See Act of May 30, 1977, 65th Leg., R.S., ch. 817,
§ 1.03(a)(4), 1977 Tex. Gen. Laws 2039, 2041, repealed and codified as
amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09,
2003 Tex. Gen. Laws 847, 865, 884.

                                       5
      Harris Methodist argues that a safety claim does not have to be directly

related to health care,2 but it contends that even if this court reads the statute

as requiring this direct relationship—and we do—Ollie’s claim still falls under

Chapter 74. The supreme court in Diversicare defined “safety” as the condition

of being “untouched by danger; not exposed to danger; secure from danger,

harm or loss.” 185 S.W.3d at 855. “Health care” is defined under section

74.001 as “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.” Tex.

Civ. Prac. & Rem. Code Ann. § 74.001(10).

      Harris Methodist relies heavily on the supreme court’s holding in

Diversicare to support its argument that Ollie’s claim is a health care liability

claim. See 185 S.W.3d 842. The appellant in Diversicare, a nursing home

resident who suffered from Senile Dementia of the Alzheimer’s Type, sustained


      2
       … Harris Methodist asserts that interpreting the statute as requiring
safety claims to be directly related to health care would “thwart” the intent of
the legislature and create a “patently absurd result.” Harris Methodist urges us
to interpret the statute in the same manner as Chief Justice Jefferson in
Diversicare. See 185 S.W.3d at 861 n.4 (Jefferson, J., concurring in part,
dissenting in part, and concurring in the judgment) (“[C]laims for ‘professional
or administrative services’ must be ‘directly related to health care’; however,
there is no indication that claims involving ‘safety’ must also relate to health
care. . . . I read the amended statute as requiring only that claims for
‘professional or administrative services’ be ‘directly related to health care.’”).

                                        6
injuries from two separate falls and was sexually assaulted at the nursing home

by another resident. Id. at 845. In connection with her injuries sustained from

the falls, the appellant alleged that the nursing home and its staff were

negligent in failing to provide adequate supervision and nursing services to meet

her fundamental needs; failing to budget for, hire, and train a sufficient number

of qualified direct health care staff; and failing to develop and implement

adequate policies and procedures for safety, training, and staffing at its nursing

homes. Id. She alleged further in an amended petition regarding the sexual

assault that the nursing home and its staff failed to adequately supervise and

monitor her to protect her from sexual abuse and assault by another resident.

Id.

      The supreme court ultimately held that the appellant’s claims, including

those concerning the sexual assault, were health care liability claims based on

the special relationship between a nursing home and its residents.          Id. at

850–55. Health care staff make judgments about the care, treatment, and

protection of individual patients and the patient populations in their facilities

based on the mental and physical care the patients require. Id. at 850. The

supreme court stated that expert testimony is required to determine the

appropriate number, training, and certifications of medical professionals




                                        7
necessary to care for and protect patients in weakened conditions from injury

by other patients in a health care facility. Id. at 851.

      Harris Methodist contends that because Ollie’s specific allegation of

negligence derives from the relationship between a hospital and its patient,

Ollie’s claim “in that regard” is a claim that Harris Methodist was negligent in

failing to properly supervise her, failing to properly maintain a safe environment,

and in allowing her to be placed in a situation where she could suffer this fall.

We disagree.

      While the supreme court in Diversicare held that the appellant’s claims

were health care liability claims, it noted that while not present in that case,

“[t]here may be circumstances that give rise to premises liability claims in a

healthcare setting that may not be properly classified as health care liability

claims.” Id. at 854.    The supreme court stated that the appellant was not

complaining about an unlocked window that gave an intruder access to the

facility or a rickety staircase that gave way under her weight; her allegations

implicated more than inadequate security and “negligent maintenance.” Id.

(emphasis added).

      Like the appellant in Diversicare, Ollie was in a weakened condition at the

time of the injury.    She was bathing in the hospital bathroom three days

removed from a total knee replacement when she fell and injured her shoulder.

                                        8
Unlike the appellant in Diversicare, however, Ollie alleged that Harris Methodist

failed       to   maintain   and   warn   Ollie   of   the   dangerous   and   hazardous

condition—i.e., the slippery, wet bathroom floor—not that Harris Methodist

failed to properly supervise her or provide care for her while taking a bath. Ollie

was a patient in a weakened condition complaining of the rickety staircase or

the unlocked window.3 Her pleading does not state that special precautions

should have been taken for her as a post-knee replacement patient.                  Her

allegations assert a breach of ordinary care.

         Harris Methodist argues next that if safety claims must be directly related

to health care, the broad definition of health care encompasses Ollie’s claim on

its face. Harris Methodist states that the term health care, defined as “an 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,” is so broad as to “cover

virtually anything that could befall a patient during a patient’s confinement at




         3
       … Based on this reasoning, we agree with the dissent in Marks v. St.
Luke’s Episcopal Hospital—a case in which Harris Methodist cites for the
majority’s holding—stating that allegations that a patient’s bed had been
negligently attached and assembled, creating a dangerous condition, were
premises liability claims akin to claims involving a rickety staircase. See 229
S.W .3d 396, 403–05 (Tex. App.—Houston [1st Dist.] 2007, pet. granted)
(Jennings, J., concurring in part and dissenting in part).

                                              9
the hospital.”   Tex. Civ. Prac. & Rem. Code Ann. § 74.001(10).           Thus, it

argues that safe maintenance of the patient’s bathroom and warning a patient

of a dangerous and hazardous condition during the patient’s convalescence in

the hospital following a knee replacement are acts that should have been

performed during the patient’s confinement. See id.

      We find this argument incongruent, however, with Harris Methodist’s

earlier position regarding the interpretation of the newly revised definition of

health care liability claim. Harris Methodist previously argued that reading the

statute in a manner that modified safety with the “restrictive phrase” directly

related to health care would “thwart” the legislature’s intent. It went on to

state in its argument against reading the statute as requiring that safety be

directly related to health care that “there is nothing to indicate that the

Legislature . . . intended to narrow the breadth of a significant portion of [tort-

reform legislation] and exempt claims that had previously been considered

‘health care liability claims’ from the newly revised definition.” [Emphasis

added]. Thus, Harris Methodist argues, without explanation, that the addition

of “directly related to health care” both broadens and narrows the definition of

health care liability claim.

      In addressing this argument, we look to a case in which the supreme

court denied petition for discretionary review on the same day it delivered the

                                        10
opinion in Diversicare. See Shults, 166 S.W.3d at 502. In Shults, the hospital

instructed the appellant, who suffered from diabetes, to take a shower in

preparation for surgery on his leg. Id. at 503. After showering, the appellant

injured his foot when he allegedly stepped on a sharp paint chip on the

bathroom floor. Id. Among other claims, the appellant alleged that the hospital

had been negligent by failing to provide a reasonably safe shower, inspect the

shower, and adequately supervise the renovation of the shower. Id.

      The court stated that personal injury claims resulting from departures

from accepted standards of safety may be health care liability claims but that

such departures must be “inseparable parts of the rendition of medical services

and the standards of safety within the health care industry to be covered by the

Act.” Id. at 505. The court of appeals held that the appellant’s claims were

not health care liability claims because the presence of a sharp paint chip in the

shower of the appellant’s hospital room could not be considered in any way an

inseparable part of the medical services rendered to the appellant. Id.

      Likewise, we cannot say that cleaning the bathroom floor and warning

Ollie of its condition is inseparable from the medical or health care services

rendered to Ollie. Id.; see also Stradley, 210 S.W.3d at 776 (stating that in

most situations a doctor’s recommendation to exercise is not related to the

rendition of health care).    Indeed, medical testimony is not necessary to

                                       11
understand Ollie’s claim that Harris Methodist failed to use ordinary care as

alleged in her petition.4

      Further, the supreme court in Diversicare interpreted the effect of the

term “safety” as included in the previous definition of health care liability claim,

stating that “the Legislature’s inclusion within the scope of the MLIIA of claims

based on breaches of accepted standards of ‘safety’ expands the scope of the

statute beyond what it would be if it only covered medical and health care.”

185 S.W.3d at 855 (emphasis added). The Court went on to note, however,

that while the term safety expanded the scope of the previous statute,

“[p]rofessional supervision, monitoring, and protection of the patient population

necessarily implicate the accepted standards of safety under the MLIIA, just as

those duties in this case are included in the term health care.” Id. Under this

construct, the Court stated that some circumstances might give rise to

premises liability claims in a health care setting that may not be properly

classified as health care liability claims like a rickety staircase or an unlocked


      4
       … This is not a case involving a health care liability claim that may be
easy for the jury to understand as Harris Methodist asserts, but rather a claim
for breach of ordinary care in which no expert testimony is needed. See
Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (stating that even
though the jury might not need the aid of expert testimony to determine the
issues of the case involving lack of consent and battery during the treatment
of a patient, the expert report is still a necessary requirement in pleading a
health care liability claim under the statute).

                                        12
window, which as we stated above are similar to Ollie’s claim regarding the

slippery, wet floor. Thus, we cannot conclude, as Harris Methodist urges, that

this category of negligent maintenance claims that were apparently not

considered health care liability claims under Diversicare are somehow now

transformed to health care liability claims because the new definition modifies

“safety” with the phrase “directly related to health care.”

      Lastly, we note one case that discusses health care liability claims in the

context of a patient that suffered an injury while in a post-operative condition

like Ollie’s. See Torres v. Mem’l Hermann Hosp. Sys., 186 S.W.3d 43, 44

(Tex. App.—Houston [1st Dist.] 2005, no pet.).          The appellant in Torres

underwent knee replacement surgery at the hospital, and the hospital

transferred her to the rehabilitation unit three days after her surgery. Id. While

at the rehabilitation unit, the appellant felt weak and could not walk without

assistance.   Id. The appellant needed to use the restroom, but 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.

Id. The appellant claims that she asked for help but that the nurses never came

to assist her. Id. The appellant’s daughter attempted to help the appellant

walk to the restroom, but the appellant fell and fractured the femur bone of her

surgically-repaired leg. Id.

                                       13
      In her petition, the appellant alleged that because she was a patient at the

hospital, the hospital owed her a duty to supply the required equipment and

instrumentalities for the care of its patients, including furnishing a bedpan and

other similar devices and furnishing adequate care to assist her in her

rehabilitation period. Id. at 45. The court of appeals held that the underlying

nature of the appellant’s allegations was that the hospital and the nurses did

not provide her with proper treatment and facilities during her post-operative

inpatient rehabilitation. Id. at 48 Thus, the court held that her claims were

health care liability claims. Id.

      Torres differs from the present case because Ollie did not allege a failure

to care for her as a post-operative patient or a failure to provide certain

instrumentalities to help her take a shower or bath. In Torres, the appellant’s

allegations were inseparable from the medical services— or lack of medical

services—that she received while in the rehabilitation unit. We cannot say,

however, that Ollie’s claim that the hospital failed to properly clean the

bathroom floor and warn her about the hazardous condition is the same as a

claim regarding the failure to provide a bedpan or the failure to help a post-

operative patient walk to the restroom after that patient had requested such

assistance. See id. at 44.




                                       14
         In sum, we must look to the underlying nature of Ollie’s claim in her

petition, not at the underlying nature of all the potential claims that Ollie could

have pled. Ollie’s claim in her petition states that Harris Methodist failed to use

ordinary care, which does not require the aid of expert testimony to

comprehend. The acts or omissions complained of are not inseparable from the

rendition of medical services and the accepted standards of safety within the

health care industry. Ollie’s allegations do not constitute a health care liability

claim. Accordingly, we overrule Harris Methodist’s first point.

                                III. A TTORNEY’S F EES

         Harris Methodist argues in its second point that the trial court erred by

failing to award attorney’s fees to Harris Methodist. If the plaintiff fails to file

an expert report, the trial court must order the plaintiff to pay reasonable

attorney’s fees and court costs incurred by the affected health care provider.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(1). However, because we

overruled Harris Methodist’s first point, we accordingly overrule its second

point.




                                         15
                              IV. C ONCLUSION

     Having overruled both of Harris Methodist’s points, we affirm the trial

court’s judgment.




                                         DIXON W. HOLMAN
                                         JUSTICE

PANEL: DAUPHINOT, HOLMAN, and WALKER, JJ.

WALKER, J. filed a dissenting opinion.

DELIVERED: October 30, 2008




                                    16
                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-07-122-CV


HARRIS METHODIST FORT WORTH                                       APPELLANT

                                       V.

JO FAWN OLLIE                                                       APPELLEE

                                   ------------

        FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                         DISSENTING OPINION

                                   ------------

                               I. INTRODUCTION

      I respectfully dissent. The direct liability negligence claim Appellee Jo

Fawn Ollie asserts against Appellant Harris Methodist Fort Worth falls squarely

within the statutory definition of a “health care liability claim” as a claimed

departure from safety directly related to an act furnished by Harris Methodist

to Ollie during her confinement in the hospital.     Consequently, Ollie was
required to file an expert report; she did not, and the trial court erred by

refusing to dismiss Ollie’s claims and by refusing to award attorney’s fees to

Harris Methodist.

              II. O LLIE’S P LEADINGS AND P ROCEDURAL B ACKGROUND

      Ollie brought suit against Harris Methodist for injuries that she sustained

when, as she exited the bathtub, she slipped on the wet floor, fell, and hurt

herself. Ollie alleged that

             [o]n or about June 17, 2004, JO FAWN OLLIE was a patient
      on property controlled by the Defendant, and was injured under the
      following circumstances: Plaintiff had a total knee arthroplasty on
      June 14, 2004 and on the date of the accident June 17, 2004,
      Plaintiff had got into the bathtub and as she was getting out,
      Plaintiff slipped on the slippery wet floor which created “a
      dangerous and hazardous condition” and that the Plaintiff fell victim
      to the hazards and injured her right shoulder.

            ....

             Defendant owed Plaintiff and others the duty to provide a
      safe environment, maintained properly, so as not to cause harm
      and/or injury.
             Defendant breached said duty by failure to maintain and warn
      Plaintiff of the dangerous and hazardous condition.

Ollie did not file any expert report; Harris Methodist subsequently filed a motion

to dismiss Ollie’s claims with prejudice and for attorney’s fees.5 The trial court


      5
         … See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (Vernon Supp.
2008) (requiring trial court to grant defendant’s motion to dismiss health care
liability claim with prejudice and to award defendant attorney’s fees if health

                                       18
conducted a hearing on Harris Methodist’s motion to dismiss. Ollie argued that

her claim was not a health care liability claim subject to chapter 74 of the civil

practice and remedies code; Harris Methodist argued that Ollie’s claim did fall

within that statute. At the conclusion of the hearing, the trial court denied

Harris Methodist’s motion to dismiss.

                            III. S TANDARD OF R EVIEW

      Whether a claim is a health care liability claim under section 74.351 of

the Texas Civil Practice and Remedies Code is a question of law and is

reviewed de novo. Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770, 773

(Tex. App.—Corpus Christi 2006, pet. denied); Buck v. Blum, 130 S.W.3d 285,

290 (Tex. App.—Houston [14th Dist.] 2004, no pet.). In order to determine

whether the plaintiff asserted a health care liability claim, we must examine the

underlying nature of the allegations. See Murphy v. Russell, 167 S.W.3d 835,

838 (Tex. 2005). Claimants may not recast a health care liability claim as

some other type of claim in an attempt to avoid the application of chapter 74.

See id.   The necessity of expert testimony from a medical or health care

professional to prove a claim may also be an important factor in determining

whether a cause of action is an inseparable part of the rendition of medical or



care liability claimant fails to file an expert report concerning the conduct of the
moving defendant).

                                        19
health care services. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842,

847 (Tex. 2005).

      IV. R ELEVANT P ROVISIONS OF C HAPTER 74 AND ITS A PPLICATION H ERE;
                O LLIE’S C LAIM IS A H EALTH C ARE L IABILITY C LAIM

      A “health care liability claim” is statutorily defined as

      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 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(13) (Vernon 2005). A hospital is

a “health care provider.” Id. § 74.001 (11)(G). And for purposes of the above

definition of a health care liability claim, breach of the accepted standards must

be directly related to “health care,” which is defined as “any act . . . furnished

. . . by any health care provider for, to, or on behalf of a patient during the

patient’s . . . confinement.” Id. § 74.001(10); Valley Baptist Med. Ctr., 210

S.W.3d at 774–75 (holding rules of grammar mandated application of “directly

related” language in definition of health care liability claim to each of the

categories of departures from accepted standards identified in definition);

Omaha Healthcare Ctr., L.L.C. v. Johnson, 246 S.W.3d 278, 284 (Tex.

App.—Texarkana 2008, pet. filed) (same). In every claim that falls within the


                                       20
above definition of a health care liability claim, a claimant shall, not later than

the 120th day after the date the claim was filed, serve on each party or the

party’s attorney one or more expert reports. Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(a).

      Simply applying the above statutory language to the present facts, Ollie’s

claim is a health care liability claim because she is asserting a cause of action

against a health care provider (Harris Methodist) for a claimed departure from

accepted standards of safety (Harris Methodist’s alleged creation of “a

dangerous and hazardous condition” on the bathroom floor) that is directly

related to “health care,” (that is, directly related to the bath furnished by Harris

Methodist to Ollie during her confinement). See Tex. Civ. Prac. & Rem. Code

Ann. § 74.001(10), (11)(G), (13); see also Tex. Gov’t Code Ann. § 311.011

(Vernon 2005) (stating that words in statute are to be given common meaning).

                        V. O RDINARY C ARE IS INAPPLICABLE;
                 O LLIE’S C LAIM IS A H EALTH C ARE L IABILITY C LAIM

      The majority, nonetheless, characterizes Ollie’s claim as a premises

liability claim asserting ordinary negligence. The majority cites Valley Baptist

Medical Center, 210 S.W.3d at 776, Shults v. Baptist St. Anthony’s Hospital,

166 S.W.3d 502, 503 (Tex. App.—Amarillo 2005, pet. denied), and dicta in




                                         21
Diversicare, 185 S.W.3d at 847.6 While the distinction between these ordinary

negligence cases cited by the majority and the present case is hard to

articulate, the difference becomes obvious upon an examination of the

underlying nature of the claim pleaded by Ollie. See Diversicare, 185 S.W.3d

at 847 (instructing us to examine the underlying nature of the claim to

determine whether a claim is a health care liability claim).

      That Ollie’s claim is in the underlying nature of a health care liability claim

becomes obvious when an effort is made to conceptualize submission of Ollie’s

claim against Harris Methodist as a premises liability claim for breach of

ordinary negligence as contemplated by the majority. The standard premises

liability, plaintiff-is-invitee question asks,

      Did the negligence, if any, of those named below proximately cause
      the [occurrence or injury] in question?

      With respect to the condition of the premises, Don Davis was
      negligent if---
            a.     the condition posed an unreasonable risk of harm, and
            b.     Don Davis knew or reasonably should have known of
                   the danger, and
            c.     Don Davis failed to exercise ordinary care to protect
                   Paul Payne from the danger, by both failing to


      6
       … The majority also discusses—in an effort to distinguish—Torres v.
Memorial Hermann Hospital System, 186 S.W.3d 43, 47–48 (Tex.
App.—Houston [1st Dist.] 2005, no pet.). In Torres, the Houston First Court
held that the plaintiff’s claim for injuries when she fell while attempting to walk
to the bathroom three days postoperatively was a health care liability claim. Id.

                                          22
                  adequately warn Paul Payne of the condition and failing
                  to make that condition reasonably safe.

            “Ordinary care,” when used with respect to the conduct of
      Don Davis as an owner or occupier of a premises, means that
      degree of care that would be used by an owner or occupier of
      ordinary prudence under the same or similar circumstances.

Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury

Charges: Malpractice, Premises & Products PJC 66.4 (2006). Any attempt to

apply the definition of “ordinary care” to the present facts demonstrates that

Ollie’s claim is not one for breach of ordinary care.

      For example, superimposing the above definition of ordinary care on the

present facts, ordinary care when used with respect to the conduct of Harris

Methodist means that degree of care that would be used by an owner or

occupier of ordinary prudence under the same or similar circumstances, i.e.,

where the owner or occupier is a hospital, the plaintiff is a patient confined at

the hospital, the hospital furnishes a bath for the patient during her

confinement, and the patient is three days post a total knee arthroscopy. “The

same or similar circumstances” as those here exist only when the owner or

occupier is a hospital, the plaintiff is a post-surgery, limited-mobility patient

confined at the hospital, and the danger is a “slippery, wet floor” encountered

by the patient when she exits the bath furnished by the hospital to her during




                                       23
her confinement.7 That is, application of the ordinary care, same-or-similar-

circumstances standard to the present facts necessarily inserts a standard of

care applicable only to hospitals, not to hotels, bed and breakfasts, or to other

owners and occupiers of a premises. Applying the ordinary care definition, a

jury could not determine what degree of care should be utilized by Harris

Methodist to, as alleged by Ollie, “provide a safe environment, maintained

properly, so as not to cause harm and/or injury” or to warn Ollie of “the

dangerous and hazardous condition” in the absence of expert testimony—that

is, testimony about that standard of care required of a hospital in furnishing a

bath for a post-surgery, limited-mobility patient confined at the hospital. See,

e.g., Torres, 186 S.W.3d at 47–48 (holding plaintiff’s claims for injuries when

she fell while attempting to walk to the bathroom three days postoperatively

was a health care liability claim requiring expert testimony); Schneider v. Haws,

118 S.W.3d 886, 891 (Tex. App.—Amarillo 2003, no pet.) (recognizing

expert’s testimony explained standard of care for doctor in providing escort to

return patient to waiting room). In short, an attempted application of the “same


      7
       … The majority notes that Ollie’s pleading “does not state that special
precautions should have been taken for her as a post-knee replacement
patient.” Maj. op. at 9. But the content of Ollie’s pleading is not controlling;
we are to examine the underlying nature of her claim, and she is not permitted
to recast a health care liability claim as a premises liability claim. See
Diversicare, 185 S.W.3d at 847.

                                       24
or similar circumstances” language demonstrates that Ollie’s claim is in fact a

health care liability claim against a health care provider for a “departure from

accepted standards of . . . safety . . . directly related to health care.” See Tex.

Civ. Prac. & Rem. Code Ann. § 74.001(13) (defining “health care liability

claim”).

      Conversely, in the cases relied upon by the majority, the health care

provider—like any other owner or occupier of a premises—did owe only ordinary

care to its invitee, and application of the “same or similar circumstances”

language to the facts of those cases demonstrates this. For example, in Shults,

the Amarillo Court of Appeals held that a sharp paint chip on the bathroom floor

of a patient’s hospital room could give rise to a premises liability claim. 166

S.W.3d at 503. A hotel or a bed and breakfast would have the same duty to

remove sharp paint chips from an invitee’s bathroom floor as a hospital. In

other words, application of the ordinary care standard to this claim would not

automatically bootstrap the factfinder into a health care provider standard of

care. Likewise, in Stradley, the Corpus Christi Court of Appeals held that a

claim for injuries based on the failure of a treadmill’s emergency stop feature

was not a health care liability claim. 210 S.W.3d at 771–72. Again, any gym

or fitness facility would have the same duty to ensure the proper functioning

of the emergency stop features of its equipment as a medical center fitness

                                        25
facility. And again, application of the ordinary care standard to this claim would

not automatically bootstrap the factfinder into a health care provider standard

of care.

      Under this same analysis, Ollie’s claim is not, as posited by the majority,

akin to a plaintiff-invitee’s premises liability complaint about an unlocked

window permitting access to an intruder or to a rickety staircase that gave way

under an invitee’s weight, hypothetical claims mentioned by the supreme court

in Diversicare. See Maj. op. at 9 (citing Diversicare, 185 S.W.3d at 854).

Application of the ordinary care, same-or-similar circumstances standard to the

hypothetical premises liability claims mentioned in Diversicare would not

automatically bootstrap the factfinder into a health care provider standard of

care; all owners and occupiers have the same duty to all invitees to lock

windows and to ensure that staircases are not rickety.

      The underlying nature of Ollie’s claim as a health care liability claim

becomes even more apparent upon examining other elements she would be

required to prove to establish a traditional premises liability claim.         In a

traditional premises liability claim, as set forth in the above jury question, Ollie

would be required to prove as one element of her claim that the owner (Harris

Methodist) had actual or constructive knowledge of some condition on the

premises (water on the bathroom floor after a bath). See Keetch v. Kroger Co.,

                                        26
845 S.W.2d 262, 264 (Tex. 1992) (citing Corbin v. Safeway Stores, Inc., 648

S.W.2d 292, 296 (Tex. 1983)). A slip-and-fall plaintiff satisfies this notice

element by establishing one of three things: (1) that the defendant placed a

substance on the floor; (2) that the defendant actually knew that a substance

was on the floor; or (3) that it is more likely than not that the dangerous

condition existed long enough to give the premises owner a reasonable

opportunity to discover it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812,

814 (Tex. 2002) (citing Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934,

936 (Tex. 1998) and Keetch, 845 S.W.2d at 265).

      Thus, Ollie’s claim—if treated as a premises liability claim—will require her

to prove that Harris Methodist had actual or constructive knowledge that water

was on the floor in her bathroom while she was taking a bath. Because a

hospital can act only through its employees, this will require Ollie to show that

someone, most likely a nurse, knew or should have known of the water on the

floor. Under the facts pleaded by Ollie, the issue of whether a nurse knew or

should have known of the water on the floor in Ollie’s bathroom likewise

requires expert testimony. For example, how frequently should a nurse check

the bathroom floor of a patient’s room?      Should a nurse instruct a limited-

mobility patient to request assistance in entering or exiting the bathtub? These

are questions of the nursing standard of care owed to an in-hospital, limited-

                                       27
mobility patient. Accord Torres, 186 S.W.3d at 47–48; Devereaux v. Harris

County Hosp. Dist., No. 01-05-00706-CV, 2007 WL 852618, at *4 (Tex.

App.—Houston [1st Dist.] Mar. 22, 2007, no pet.) (mem. op.) (holding

plaintiff’s claim for injuries when she was not properly assisted into wheel chair

was health care liability claim). And they are inescapably intertwined with

Ollie’s claim that Harris Methodist “created ‘a dangerous and hazardous

condition’” and breached “the duty to provide a safe environment.”

      Many, if not most, slip-and-fall cases occurring at a hospital will be

actionable premises liability claims, not health care liability claims. But this is

not one of them. The underlying nature of Ollie’s claim establishes that this is

a health care liability claim. Consequently, I would sustain Harris Methodist’s

first issue.

                                 VI. C ONCLUSION

      Because the plain language of Chapter 74 of the civil practice and

remedies code and the underlying nature of Ollie’s claim both establish that her

claim is a health care liability claim, I would reverse the trial court’s order

denying Harris Methodist’s motion to dismiss. I would render a judgment of

dismissal and remand Harris Methodist’s claim for attorneys’ fees to the trial

court pursuant to section 74.351(b). See Jernigan v. Langley, 195 S.W.3d 91,

94 (Tex. 2006). Because the majority does not, I respectfully dissent.

                                        28
                                   SUE WALKER
                                   JUSTICE

DELIVERED: October 30, 2008




                              29
