                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-18-00438-CV
                             ____________________

      SOUTHEAST TEXAS CARDIOLOGY ASSOCIATES, Appellant

                                         V.

    DORIS SMITH, INDIVIDUALLY AND AS REPRESENTATIVE OF
              THE ESTATE OF GILL SMITH, Appellee

_______________________________________________________            ______________

                    On Appeal from the 60th District Court
                          Jefferson County, Texas
                         Trial Cause No. B-201,280
________________________________________________________             _____________

                                    OPINION

      In this interlocutory appeal, we are asked to decide whether the trial court

erred by denying a health care provider’s motion to dismiss the wrongful death and

survival claims of Doris Smith and the Estate of Gill Smith. Doris, individually, and

as representative of the Estate of Gill Smith, sued Southeast Texas Cardiology

Associates (S.E.T. Cardiology) after Gill tripped over a weight scale at S.E.T.

Cardiology’s offices, broke his hip, and, over one year later, died. In its appeal,


                                         1
S.E.T. Cardiology argues Doris failed to file an expert report to support her claims

as required by the Texas Medical Liability Act (“the Act”).1 Doris, however, argues

her claims are premises liability claims, not health care liability claims, and thus not

subject to the Act.

      We conclude Doris’s claims are health care liability claims. As such, they are

subject to the expert report requirements of the Act. Because the Act required that

Doris file an expert report, we reverse the order denying S.E.T. Cardiology’s motion

to dismiss. We remand the case to the trial court for an order dismissing the claims

against S.E.T. Cardiology with prejudice. 2 On remand, the trial court must conduct

a hearing and award S.E.T. Cardiology reasonable attorney’s fees and costs. 3

                                     Background

      In March 2016, Gill Smith saw his doctor for a checkup at S.E.T. Cardiology’s

office in Beaumont. Gill’s doctor saw him in one of the rooms S.E.T. Cardiology


      1
        See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2018)
(permitting interlocutory appeals from a trial court’s ruling under section 74.351);
id. § 74.351(a) (West 2017) (requiring plaintiffs who bring health care liability
claims to serve all parties with an expert report within 120 days after the health care
provider answers the plaintiff’s suit).
      2
          See id. § 74.351(b)(2) (West 2017) (requiring trial courts to dismiss
plaintiff’s health care liability claims if the plaintiff fails to file a report).
      3
        Id. § 74.351(b)(1) (West 2017) (requiring the trial court to award the health
care provider’s reasonable attorney’s fees and costs if the report is not timely filed).
                                           2
uses to examine their patients. After the examination, a nurse, employed by S.E.T.

Cardiology, escorted Gill from the room toward the door leading to the patient lobby.

Just after leaving the examination room, and before entering the patient lobby, Gill

tripped over a weight scale positioned just outside the room where he saw his doctor.

After Gill fell, Gill’s doctor called an ambulance. The ambulance took Gill to the

hospital where he underwent a hip surgery due to his fall. On May 12, 2017, Gill

died from complications that Doris’s petition claims are related to the injuries Gill

suffered in his fall.

       In February 2018, Doris sued S.E.T. Cardiology for claims arising under the

Texas wrongful death and survival statues. 4 In her petition, she alleged S.E.T.

Cardiology “negligently permitted the area in question to become hazardous and

dangerous, negligently or willfully allowed such condition to continue and

negligently or willfully failed to warn [Gill] of the condition of the area in question.”

In March 2018, S.E.T. Cardiology answered the suit. After S.E.T. Cardiology

answered, Doris did not file a report from an expert addressing how S.E.T.

Cardiology violated the standard of care that applied to its decision about where to

place the weight scale.



       4
           Id. §§ 71.002, 71.021 (West 2008).

                                           3
      In August 2018, and more than 120 days after filing its answer, S.E.T.

Cardiology moved to dismiss Doris’s suit based on her failure to comply with the

expert report requirements in the Act.5 In its motion, S.E.T. Cardiology argued that

while Doris characterized her claims as premises liability claims, they were instead

health care liability claims, making them subject to the expert report requirements

of the Act. 6 When Doris responded to S.E.T. Cardiology’s motion, she argued she

was not asserting health care liability claims because her claims implicated only

S.E.T. Cardiology’s duties as the owner of the premises where Gill fell. Doris claims

that Gill’s fall is unrelated to his medical treatment. After conducting a hearing on

S.E.T. Cardiology’s motion to dismiss, the trial court denied its motion.

                                 Standard of Review

      Here, the question we must decide is whether Doris’s wrongful death and

survival claims are subject to the expert report requirements of the Act. Because the

claims the Legislature intended to include within the reach of the Act raise questions

of statutory construction, the issue is a legal question subject to a de novo standard




      5
          See id. § 74.351(a).
      6
          See id.
                                          4
of review. 7 When determining whether a plaintiff’s claim is a health care liability

claim subject to the Act, we must “consider the entire record before the trial court

and the overall context of the plaintiffs’ suit, including the nature of the factual

allegations in their pleadings, [the health care provider’s] contentions, and the

motions to dismiss and responses.”8

                                       Analysis

      Section 74.351 of the Act requires a plaintiff pursuing health care liability

claims to serve a timely report from an expert on each of the health care providers

the plaintiff sued.9 The report must contain the expert’s opinions “regarding

applicable standards of care, the manner in which the care rendered by the . . . health

care provider failed to meet the standards, and the causal relationship between that

failure and the injury, harm, or damages claimed.” 10 The report must be filed within

a 120-day deadline; if no report is filed within that period, the Act requires the trial

court to grant the health care provider’s motion and dismiss the health care provider


      7
         Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012)
(explaining that a de novo standard applies to the reviewing court’s review of the
trial court’s ruling about whether a claim falls within the umbrella of the Act).
      8
          Loaisiga v. Cerda, 379 S.W.3d 248, 258-59 (Tex. 2012).
      9
          See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)
      10
           Id. § 74.351(r)(6) (West 2017).
                                             5
from the suit. 11 That said, a plaintiff need not serve the health care provider with an

expert report if the claims are not health care liability claims under the Act.12

      We consider three basic elements in determining whether a plaintiff’s claims

are health care liability claims:

      (1) a physician or health care provider must be a defendant; (2) the
      claim or claims at issue must concern treatment, lack of treatment, or a
      departure from accepted standards of medical care, or health care, or
      safety or professional or administrative services directly related to
      health care; and (3) the defendant’s act or omission complained of must
      proximately cause the injury to the claimant.13

      Doris argues she did not file claims falling within the purview of the Act

because no substantive nexus exists between the safety standards S.E.T. Cardiology

violated and the care that S.E.T. Cardiology provided Gill. Doris suggests that when

her case goes to trial, the testimony she plans to elicit from S.E.T. Cardiology’s

employees and agents “will primarily fall on their general knowledge and

observations when monitoring a common pathway used by many persons when



      11
           See id. § 74.351(a), (b).
      12
         See Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 502 (Tex. 2015)
(explaining that “the Legislature did not intend for the expert report requirement to
apply to every claim for conduct that occurs in a health care context”).
      13
        Rio Grande Valley Vein Clinic, P.A. v. Guerrero, 431 S.W.3d 64, 65 (Tex.
2014) (quoting Tex. W. Oaks Hosp., LP, 371 S.W.3d at 179-80). See also Tex. Civ.
Prac. & Rem. Code Ann. § 74.001(a)(13) (West 2017).
                                           6
entering and exiting their office” since S.E.T. Cardiology did not restrict the area

solely to its patients. Doris notes that a patient’s family members are sometimes

allowed to accompany a patient to the room where the examination occurs. She

concludes that “[j]ust because [Gill] tripped over a piece of equipment owned by

[S.E.T. Cardiology,”] that fact does not make her wrongful death and survival claims

health care liability claims.

      Claims alleging that a health care provider violated a safety standard are not

health care liability claims unless a “substantive nexus [exists] between the safety

standards allegedly violated and the provision of health care.” 14 To determine

whether Doris sued S.E.T. Cardiology on claims classified as health care liability

claims, we apply the framework established by the Texas Supreme Court in Ross v.

St. Luke’s Episcopal Hospital.15 We rely on the definition the Legislature gave to

the term “health care” in the Act, which defines “[h]ealth care” 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.”16 The Act, however, does not define the


      14
           Ross, 462 S.W.3d at 504.
      15
           Id. at 505.
      16
           See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(10) (West 2017).
                                         7
word “safety.” The Texas Supreme Court has applied “safety’s” commonly

understood meaning, which the Court stated is “the condition of being ‘untouched

by danger; not exposed to danger; secure from danger, harm or loss.’” 17 The Ross

Court explained that while the line between what does and does not fall within the

coverage of the Act is not always clear when the injury is one that could have

occurred outside a health facility, “[t]he pivotal issue in a safety standards-based

claim is whether the standards on which the claim is based implicate the defendant’s

duties as a health care provider, including its duties to provide for patient safety.” 18

In Ross, the court held the case fell outside the coverage of the Act because (1) the

plaintiff did not fall in an area that was used to treat patients, (2) the hospital’s

purpose in cleaning and buffing the floor near the exit where the plaintiff fell was

not to protect the hospital’s patients, (3) the plaintiff did not come to the hospital for

medical care, and (4) the plaintiff was not being assisted by any health care providers

when she fell.19




      17
        Williams, 371 S.W.3d at 184 (quoting Diversicare Gen. Partner, Inc. v.
Rubio, 185 S.W.3d 842, 855 (Tex. 2005).
      18
           Ross, 462 S.W.3d at 505.
      19
           Id.

                                            8
      To decide whether a plaintiff’s personal injury claim that arose from a fall

asserted a health care liability claim subject to the Act, the Ross Court used these

seven factors:

      1. Did the alleged negligence of the defendant occur in the course of
      the defendant’s performing tasks with the purpose of protecting patients
      from harm;

      2. Did the injuries occur in a place where patients might be during the
      time they were receiving care, so that the obligation of the provider to
      protect persons who require special, medical care was implicated;

      3. At the time of the injury was the claimant in the process of seeking
      or receiving health care;

      4. At the time of the injury was the claimant providing or assisting in
      providing health care;

      5. Is the alleged negligence based on safety standards arising from
      professional duties owed by the health care provider;

      6. If an instrumentality was involved in the defendant’s alleged
      negligence, was it a type used in providing health care; or

      7. Did the alleged negligence occur in the course of the defendant’s
      taking action or failing to take action necessary to comply with safety-
      related requirements set for health care providers by governmental or
      accrediting agencies? 20

      Here, the facts before the trial court established that Gill was a patient at S.E.T.

Cardiology when, while accompanied by a nurse, he tripped on a scale placed just



      20
           Id.
                                           9
outside the room where he saw his doctor. The record includes an affidavit from

S.E.T. Cardiology’s office manager, which states that S.E.T. Cardiology uses a scale

to weigh patients. Doris does not dispute that the scale was in the hallway just outside

the room where the doctor examined Gill. She also does not dispute that S.E.T.

Cardiology uses its scale in its business of caring for patients. Here, Gill fell in a

location in S.E.T. Cardiology’s office generally unavailable to the public.21 The

record also shows a nurse was with Gill when he left the examination room, and he

fell before he reached the lobby.

        Because Gill was one of S.E.T. Cardiology’s patients, and because one of its

doctors had just seen Gill, the duties S.E.T. Cardiology owed him are based both on

his status as a business invitee and his status as a patient. Here, the evidence in the

case, if tried, would focus on S.E.T. Cardiology’s knowledge about its patients

generally as related to the choice it made when it decided where to locate the scale.

The evidence likely will also address whether S.E.T. Cardiology’s nurses or doctors

were aware of any condition that might have impaired a patient’s ability to see or

walk.

        The facts before the trial court also show that the nurses and doctors employed

by S.E.T. Cardiology were the individuals who decided where to locate the scale.


        21
             Id. at 499.
                                           10
For example, S.E.T. Cardiology’s witness would likely be questioned concerning

whether nurses and doctors evaluate a patient’s balance when the patient is shown

to the room where the patient’s examination will occur. Its nurses and doctors would

likely be asked whether S.E.T. Cardiology takes any special precautions given that

the scale is in an area that is used by patients. For these reasons, we conclude the

evidence a jury will be asked to consider will include whether the scale presented an

unreasonable risk of harm to S.E.T. Cardiology’s patients. Stated another way, the

evidence in the trial will require the jury to consider more than just whether the scale

presented an ordinary tripping hazard to those invited into its offices.

      While most of the factors in Ross strongly favor finding that Doris’s claims

are health care liability claims, not all of them do. For instance, the record contains

no evidence showing that government regulations or accrediting agency standards

exist to guide a doctor’s office about where to locate its scale. And the affidavit of

S.E.T. Cardiology’s office manager reveals the business has no written standards or

formal policies about whether a patient is to be assisted when walking to or from the

rooms where patient examinations occur. Nonetheless, the cases Doris relies on in

her brief are all distinguishable on their facts, either because of the plaintiff’s




                                          11
relationship to the health care provider, or the location where the plaintiff was

injured. 22

       Having considered the record, we conclude the trial court erred when it ruled

that Doris’s wrongful death and survival claims were not health care liability claims.

Here, the record shows a substantive nexus exists between the standards at issue and

Gill’s fall. Since Doris’s claims are health care liability claims, Doris needed to file

an expert report within 120 days of S.E.T. Cardiology’s answer. 23 Because Doris

failed to file an expert report when her claims are health care liability claims and



       22
          Doris relies on the following cases in her brief. Galvan v. Mem’l Hermann
Hosp. Sys., 476 S.W.3d 429, 431 (Tex. 2015) (rejecting the hospital’s argument that
a hospital visitor’s claim was subject to the Act when “nothing in the record supports
the hospital’s contention that patients regularly—or even occasionally—traversed
the area where [the hospital visitor] fell”); Houston Methodist Willowbrook Hosp. v.
Ramirez, 539 S.W.3d 495 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (rejecting
the hospital’s argument that a patient’s claim was subject to the Act where the patient
fell on a buffed floor as she walked through a pavilion on her way to be x-rayed);
Lout v. The Methodist Hosp., 469 S.W.3d 615 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (reversing and remanding a slip and fall case for further proceedings
when the evidence before the trial court failed to show whether the location of the
fall was in an area used to treat patients); Williams v. Riverside Gen. Hosp., Inc., No.
01-13-00335-CV, 2014 Tex. App. LEXIS 9681, at *21 (Tex. App.—Houston [1st
Dist.] Aug, 28, 2014, no pet.) (mem. op.) (reversing the trial court’s ruling
dismissing the plaintiff’s claim when the circumstances showed the plaintiff, an
employee of the health care facility and not a patient, tripped and fell over an
extension cord, which the court concluded made her claim a “garden-variety slip-
and-fall claim that is completely untethered from the provision of health care”).
       23
            See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).
                                          12
subject to the Act, we hold the trial court should have granted S.E.T. Cardiology’s

motion to dismiss.24

                                      Conclusion

      On this record, the wrongful death and survival claims that Doris filed have a

substantive relationship with the duties S.E.T. Cardiology owed Gill. We conclude

her claims are subject to the Act. We reverse the trial court’s order denying S.E.T.

Cardiology’s motion to dismiss. We remand the case to the trial court, with

instructions that the trial court dismiss the claims against S.E.T. Cardiology with

prejudice.25 Finally, we instruct the trial court to consider S.E.T. Cardiology’s

requests for attorney’s fees and costs, as required by the Act. 26

      REVERSED AND REMANDED.


                                                      _________________________
                                                           HOLLIS HORTON
                                                                Justice


Submitted on March 1, 2019
Opinion Delivered July 11, 2019

Before McKeithen, C.J., Horton and Johnson, JJ.

      24
           See id. § 74.351(b).
      25
           See id. § 74.351(b)(2).
      26
           See id. § 74.351(b)(1); Williams, 371 S.W.3d at 193.
                                          13
