                                Fourth Court of Appeals
                                       San Antonio, Texas
                                               OPINION
                                          No. 04-13-00277-CV

            METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., LLP
                         d/b/a Northeast Methodist Hospital,
                                     Appellant

                                                  v.
                                               Thomas
                                           Thomas DEWEY,
                                              Appellee

                      From the 408th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-CI-12676
                           Honorable Solomon Casseb, III, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: February 5, 2014

AFFIRMED

           This is an interlocutory appeal from an order denying a motion to dismiss for failure to file

an expert report pursuant to the Texas Medical Liability Act. On appeal, appellant Methodist

Healthcare System of San Antonio, Ltd., LLP d/b/a Northeast Methodist Hospital claims appellee

Thomas Dewey was required to file an expert report pursuant to section 74.351(a) of the Texas

Civil Practice and Remedies Code, and therefore the trial court erred in denying its motion to

dismiss. We affirm the trial court’s order.
                                          BACKGROUND

        According to his petition, Dewey, who walks with the aid of crutches, went to Northeast

Methodist to visit his mother, who was a patient at the hospital. As Dewey was entering the

hospital, an electronic door closed on him, knocking him to the ground and fracturing his hip.

Dewey required immediate surgery after the fall. Based on the incident, Dewey filed a premises

liability cause of action. He did not file an expert report pursuant to section 74.351(a).

        Northeast Methodist filed a motion to dismiss, asserting Dewey’s claim was a health care

liability claim (HCLC), and therefore Dewey was required to file an expert report pursuant to

section 74.351(a). Dewey claims no expert report is required because his claim is a premises

liability claim as opposed to a HCLC. The trial court agreed with Dewey and denied Northeast

Methodist’s motion to dismiss. Thereafter, Northeast Methodist perfected this interlocutory

appeal, see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2012), challenging

the trial court’s order.

                                             ANALYSIS

        In this appeal, we are asked to determine whether Dewey’s premises liability claim falls

under the expert reporting requirements of section 74.351 of the Texas Medical Liability Act.

                                        Standard of Review

        The arguments presented in this appeal implicate the scope of claims covered under the

Texas Medical Liability Act. See Tex. W. Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171, 177

(Tex. 2012). Whether the Texas Legislature intended claims such as Dewey’s to fall within the

mandates of the expert reporting requirements is “a matter of statutory construction, a legal

question we review de novo.” Id.; Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011); see

Carpinteyro v. Gomez, 403 S.W.3d 508, 510 (Tex. App.—San Antonio 2013, pet. denied).

        In construing a statute, the reviewing court must “‘determine and give effect to the

Legislature’s intent.’” West Oaks, 371 S.W.3d at 177 (citing McIntyre v. Ramirez, 109 S.W.3d
741, 745 (Tex. 2003) (quoting Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)).

In making this determination, we must begin by looking at the “‘plain and common meaning of

the statute’s words.’” Id.

                                            Application

       Chapter 74 defines a HCLC 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 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).

Thus, a HCLC has three elements: (1) the defendant is a health care provider or physician; (2) the

claim at issue concerns treatment, lack of treatment, or other claimed departure from accepted

standards of medical care, or healthcare, or safety or professional or administrative services

directly related to health care; and (3) the defendant’s alleged act or omission proximately caused

the injury. Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012); see TEX. CIV. PRAC. & REM.

CODE ANN. § 74.001(a)(13). Here, it is undisputed that Northeast Methodist is a healthcare

provider and that Dewey contends his injuries resulted from acts or omissions by Northeast

Methodist. Thus, in this appeal, we need only determine the second element, i.e., whether Dewey’s

cause of action “is for treatment, lack of treatment, or other claimed departure from accepted

standards of medical care, health care, or safety or professional or administrative services directly

related to health care.” See Loaisiga, 379 S.W.3d at 255.

       In support of its contention that Dewey’s claim is a HCLC, Northeast Methodist relies

primarily on the supreme court’s recent decision in Tex. W. Oaks Hosp., LP v. Williams and the

decision from the 14th Court of Appeals in Ross v. St. Luke’s Episcopal Hospital, No. 14-12-

00885-CV, 2013 WL 1136613 (Tex. App.—Houston [14th Dist.] Mar. 19, 2013, pet. filed) (mem.

op.). In West Oaks, the plaintiff, a hospital employee, was injured by a mentally ill patient. 371
S.W.3d at 175. The employee was injured when he took the patient to a smoking area in violation

of the unit restriction policy in place with regard to the patient. Id. The patient died. Id. After

the patient’s estate sued the hospital and the employee, the employee filed a cross claim for

negligence against the hospital under the provisions for claims against employers not subscribed

to worker’s compensation. Id. The employee did not file an expert report pursuant to section

74.351(a).

       Because the employee did not file an expert report, the hospital moved to dismiss his claim,

asserting the claim was a HCLC and the employee had not served the expert report as required by

the statute. Id. at 175. The trial court denied the hospital’s motion, and the court of appeals

affirmed the decision. Id. at 176. The hospital filed a petition for review in the supreme court.

       Upon review, the court noted the Legislature, in “changing the term ‘patient’ to ‘claimant’

and defining ‘claimant’ as a ‘person’ expand[ed] the breadth of the HCLC’s beyond the patient

population.” Id. at 178. The court further explained, “[t]his in turn necessarily widened the reach

of the expert report requirement, unless otherwise limited by other statutory provisions.” Id. In

“widening the reach” of the requirement, however, the court did not go so far as to say all cases

involving a health care facility are now considered HCLC for purposes of requiring an expert

report. Rather, when determining whether a particular cause of action comes under the Texas

Medical Liability Act, the court held that “[w]ith the exception of medical care and health care

claims, our focus in determining whether claims come under the TMLA is not the status of the

claimant, but the gravamen of the claim or claims against the health care provider.” Id.; see

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 854 (Tex. 2005).

       The supreme court concluded that because the hospital’s relationship with the patient was

material and significant to the employee’s claim against the hospital, the expert report requirement

applied. Id. at 181. Specifically, the court held that claims based on departures from accepted

standards of health care involve a nexus between the standard departed from and the alleged injury
and that such a nexus existed in the case – the employee was a health care provider who was

assaulted by a hospital patient. Id.

       In Ross, the court of appeals relied upon West Oaks to affirm the dismissal of a hospital

visitor’s slip-and-fall claim for failure to submit expert report. Ross, 2013 WL 1136613, at *1–2.

The Ross court interpreted the supreme court’s decision to mean that the fact the plaintiff was a

mere visitor in the hospital was irrelevant for determining whether the claim was a health care

liability claim. Id. at *1. Rather, because the visitor was a “claimant,” as defined by the statute as

interpreted by the supreme court in West Oaks, her “garden-variety slip and fall case” fell under

the auspices of the Texas Medical Liability Act. Id. According to the court of appeals, the supreme

court instructs “that a connection between the act or omission and health care is unnecessary for

purposes of determining whether” the plaintiff’s claim is a HCLC. Id. Rather, “[a]n allegation

pertaining to safety, standing alone and broadly defined, is sufficient.” Id. We disagree with the

Ross court’s interpretation of West Oaks.

       As noted by the Beaumont Court of Appeals in Christus St. Elizabeth Hosp. v. Guillory,

the Texas Supreme Court has yet to address whether a visitor, who slips and falls in a health care

facility, has brought a HCLC when the visitor sues the health care facility. No. 09-12-00490-CV,

2013 WL 6019523, at *2 (Tex. App.—Beaumont Nov. 14, 2013, pet. filed). However, three of

our sister courts have addressed this issue, two holding such claims are not HCLCs, one holding

such claims are HCLCs. See Guillory, 2013 WL 6019523, at *2–3; (affirming trial court’s denial

of hospital’s motion to dismiss hospital visitor’s slip and fall claim, where visitor failed to file

section 74.351 expert report); Doctors Hosp. at Renaissance, Ltd. v. Mejia, No. 13-12-00602-CV,

2013 WL 4859592, at *1–3 (Tex. App.—Corpus Christi Aug. 1, 2013, pet. filed) (mem. op.)

(affirming trial court’s denial of hospital’s motion to dismiss where hospital visitor fell on waxed

floor of walkway and visitor failed to file expert report); Ross, 2013 WL 1136613, at *2 (affirming
trial court’s order dismissing plaintiff’s case where visitor who fell in hospital lobby failed to file

expert report).

         We find the analysis by the Beaumont and Corpus Christi courts, as well as that by the

Texarkana and Dallas courts in two other cases, 1 compelling. As noted in Mejia, the supreme

court stopped short of concluding that all premises liability claims involving a health care facility

are HCLCs. 2013 WL 4859592, at *2. Rather, we agree with the Mejia court that the supreme

court recognized a new type of healthcare liability claim, one involving safety that is indirectly

related to health care. Id.; see Good Shepherd Med. Ctr.-Linden, Inc. v. Twilley, No. 06-12-00098-

CV, 2013 WL 772136, at *5 (Tex. App.—Texarkana Mar. 1, 2013, pet. denied) (holding in case

involving employee that West Oaks does not encompass safety claims that “are completely

untethered from health care.”). Accordingly, as did the Mejia court, we interpret the West Oaks

decision “narrowly to govern cases that involve safety claims that are indirectly related to

healthcare.” Id. Dewey’s claim does not fall into this category.

         The gravamen of Dewey’s claim is straightforward and simple: a premises-liability claim

or, as our sister court in Ross described, a “garden-variety slip and fall case.” Ross, 2013 WL

1136613, at *1. As alleged, this “safety” claim is in no way “tethered” to any form of healthcare.

See Twilley, 2013 WL 772136, at *5. In his petition, Dewey alleges that when he entered Northeast

Methodist to visit his mother, a patient at the hospital, he was struck from behind by a

malfunctioning electronic double door, knocked to the ground, and suffered a hip fracture.

Dewey’s safety contention did not involve healthcare, directly or indirectly. Dewey was not a

patient, was not seeking medical or health care, was not assisted by healthcare personnel (at least



1
 Although the cases we reference from the Texarkana and Dallas courts did not involve visitors to a healthcare facility,
but rather employees of such facilities, the analysis is comparable under the circumstances of those cases. See Good
Shepherd Med. Ctr.-Linden, Inc. v. Twilley, No. 06-12-00098-CV, 2013 WL 772136, at *1–5 (Tex. App.—Texarkana
Mar. 1, 2013, pet. denied) (involving hospital employee who fell from ladder); Baylor University Medical Center v.
Lawton, No. 05-13-00188-CV, 2013 WL 6163859, at *1–4 (Tex. App.—Dallas Nov. 25, 2013, pet. filed) (involving
nurse who sustained injuries from irritants in fumes from raw sewage and chemicals on floor).
not until after the incident), and he was not an employee of the hospital. Dewey was merely a

visitor to an establishment that happened to be a hospital, no different from any other visitor that

might be injured on the premises of any other business. 2 As stated in Guillory, Dewey alleged

breaches of standards of ordinary care applicable to a visitor present in a common area of the

hospital, a duty that is no different from the duties imposed on other businesses that allow visitors

to be present on their premises. 2013 WL 6019523, at *2. Dewey’s claim does not implicate a

standard of care that requires medical or medical safety expert testimony to prove or refute its

merits, and therefore, it is not a HCLC. See Psychiatric Solutions, Inc. v. Palit, No. 12-0388, 2013

WL 4493118, at * 3 (Tex. Aug. 23, 2013) (holding that because employee’s claim required expert

medical or health care testimony to prove or refute its merits, claim was HCLC). In other words,

it would not “blink reality” to conclude that no professional medical judgment is required to

determine what the standard of care is and whether such standards were breached. Id.

        This case is obviously distinguishable from West Oaks where the plaintiff was a hospital

employee who brought a negligence cross action against his employer in a HCLC brought by the

estate of a psychiatric patient. See West Oaks, 371 S.W.3d at 171. The court in finding that the

employee’s claim was a HCLC, reasoned that the employee was a health care provider with

“[c]laims based on departures from accepted standard of health care,” and “therefore involve[d] a

nexus between the standard departed from and the alleged injury.” Id. at 181. That is, the

employee was a health care provider for the patient whose estate brought the original HCLC action

against the hospital, and the employee was assaulted by that patient for whom the employee was

providing health care. Thus, the employee’s claim was tethered, whether directly or indirectly, to

healthcare. Id. The employee’s claim in West Oaks was not a claim “completely untethered from

health care,” as is Dewey’s claim. See Twilley, 2013 WL 772136, at *5.



2
 Evidently, as a result of his injury, Dewey subsequently became a patient at Northeast Methodist. However, it is
undisputed that at the time of his injury, he was a mere visitor.
       Here, Dewey was a visitor, and the gravamen of his cause of action was a “garden-variety

slip and fall case.” We agree with the court in Lawton, that “[a]lthough a safety claim under

Chapter 74 need not be ‘directly related to health care,’ the converse—that a safety claim falls

within the ambit of Chapter 74 even when it is completely untethered from health care—is not the

way we” understand the West Oaks holding. 2013 WL 6163859, at *3 (agreeing with holding and

analysis in Twilley).

       Based on the foregoing, we conclude Dewey’s premises liability cause of action against

Northeast Methodist is not a HCLC within the ambit of Chapter 74 of the Texas Medical Liability

Act. Accordingly, Dewey was not required to serve Northeast Methodist with a section 74.351(a)

expert report. We affirm the trial court’s judgment.


                                                 Marialyn Barnard, Justice
