                                                                                                              ACCEPTED
                                                                                                         03-13-00817-CV
                                                                                                                  5417728
                                                                                         THIRD COURT OF APPEALS
                                                                                                         AUSTIN, TEXAS
                                                June 9, 2015                                       5/26/2015
                                                                                 5608 Parkcrest Drive,         2:14:36 PM
                                                                                                       Suite 200
                                                                                                      JEFFREY D. KYLE
                                                                                           Austin, Texas 78731
                                                                                                                   CLERK
                                                                                            512.660.5960 main
                                                                                              512.660.5979 fax
                                                                                            www.rcmhlaw.com

                                                                              RECEIVED IN
                                                                         3rd COURT OF APPEALS
Emily J. Davenport
                                                                             AUSTIN, TEXAS
512.660.5974 direct
edavenport@rcmhlaw.com                                                   5/26/2015 2:14:36 PM
                                                                           JEFFREY D. KYLE
        May 26, 2015                                                             Clerk


        Jeffrey D. Kyle, Clerk
        Court of Appeals, Third District of Texas
        P.O. Box 12547
        Austin, Texas 78711-2547

        Re:      Cause No. 03-13-00817-CV; Seton Family of Hospitals, d/b/a Seton Medical
                 Center v. Beverly J. Haywood; In the 3rd Court of Appeals

        Dear Mr. Kyle:

        Appellant files this letter brief pursuant to Texas Rule of Appellant Procedure 38.7,
        in response to Appellee’s letter dated May 11, 2015, discussing the Ross opinion.
        Ross v. St. Luke’s Hosp., No. 13-0439, 2015 WL 20009744 (Tex. May 1, 2015). A
        copy of the opinion is attached.

        In Ross, a hospital visitor sued the hospital and a maintenance services company
        over a slip-and-fall that occurred in the hospital lobby. Id., at 1. The claimant fell
        on an area of floor that was being cleaned and buffed as she was exiting the
        hospital. Id. The Court determined that the claim was not a health care liability
        claim because the record did not demonstrate a substantive relationship between
        the safety standards breached – maintenance of the floor inside the lobby exit doors
        – and the provision of health care. Id.

        In reaching its decision, the Court held that although safety claims need not be
        directly related to health care for the Texas Medical Liability Act (“TMLA”) to
        apply, there must be a “substantive nexus between the safety standards allegedly
        violated and the provision of health care.” Id. at 6; TEX. CIV. PRAC. & REM. CODE
        §74.001(a)(13) (defining “health care liability claim”). The Court identified seven
        non-exclusive considerations for analyzing whether a claim is substantively related
        to the defendant’s provision of health care: (1) Did the alleged negligence of the
        defendant occur in the course and scope 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
Jeffrey D. Kyle
May 26, 2015
Page 2

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; (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? Id. On balance those factors show a
substantial relationship between Haywood’s claim and the provision of health care.
Ross, 2015 WL 20009744, at *6.

Haywood’s claim satisfies the first, second and fifth factors in Ross. Haywood
asserts that the events – allegedly negligent operation of an automatic hospital unit
door – occurred while a Seton employee was acting in the course and scope of her
duties. (CR 4). The employee was a nurse, and the events occurred in hospital’s
emergency department, which is an area of the hospital where patients receive
treatment. (CR 4). (RR 7). The incident implicates professional duties of safety.

Hospital services include those services required to meet patients’ fundamental
needs, such as safety. Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527
(Tex. 2011) (finding that a patient’s slip and fall on a wet bathroom floor was a
health care liability claim and directly related to health care); St. David’s
Healthcare Partnership, L.P., LLP v. Esparza, 348 S.W.3d 904, 906 (Tex. 2011)
(finding that permitting lubricating gel to fall and remain on the floor is inseparable
from procedures for the disposition of gloves in a hospital and arises from accepted
standards that should have been performed by the hospital during the patient’s
care). A nurse’s safe operation of a hospital unit door in the hospital emergency
department implicates professional duties of safety owed to Seton’s patients. Ollie,
342 S.W.3d at 527 (relating to safety); see also CHCA Bayshore, LP v. Salazar,
2013 WL 1907888, at *5 (Tex.App.—Houston [14th Dist.] 2013, pet. denied)
(applying the TMLA to an employee injury claim involving a malfunctioning
automatic hospital door).

The third factor in Ross is not at issue. Haywood was not receiving health care
when the event allegedly occurred. Ross, 2015 WL 20009744, at *6. However,
Haywood’s status as a non-patient does not exclude application of the TMLA.
Texas West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012).
Jeffrey D. Kyle
May 26, 2015
Page 3


It is unknown whether the fourth factor is met. Ross, 2015 WL 20009744, at *6.
Haywood was not providing health care when the event occurred. Whether she was
assisting the providers by her presence as a visitor has not been addressed.

The sixth factor is satisfied. Ross, 2015 WL 20009744, at *6. The instrumentality,
an automatic hospital unit door, is subject to hospital licensing regulations to
facilitate safe transfer and movement of patients and nurses. See e.g., 25 TEX.
ADMIN. CODE §133.162(d)(2)(A)(v)-(ix) (regulating doors, including corridor
doors); id. at §133.163(f)(2) (requiring that details and finishes in emergency suites
comply with section 133.162(d)(2)); 25 TEX. ADMIN. CODE §133.162(d)(1)(E)
(requiring compliance with TEX. HEALTH & SAFETY CODE §256.002(b)(8)); TEX.
HEALTH & SAFETY CODE §256.002(b)(8) (requiring hospitals to adopt and ensure
implementation of policy to control risk of injury to patients and nurses associated
with the lifting, transferring, repositioning, or movement of patients, partly through
hospital architecture).

Automatic hospital doors are hospital equipment, and alleged departures from
standards of safety in their use fall within the definition of health care liability
claim. TEX. CIV. PRAC. & REM. CODE §74.001(a)(13); CHCA Bayshore, LP v.
Salazar, 2013 WL 1907888, at *5 (Tex.App.—Houston [14th Dist.] 2013, pet.
denied) (finding an employee’s claim that she was injured by a malfunctioning
automatic door was a health care liability claim because it implicated standards of
safety, including proper training, equipment and supervision of hospital
employees).

The seventh consideration in Ross is met to the extent Haywood’s claim asserts
that Seton failed to institute policy or properly train the nurse who activated the
automatic door. Ross, 2015 WL 20009744, at *6. See 25 TEX. ADMIN. CODE
§133.142(a)(3)(B) and (C) (requiring hospitals to develop, implement and enforce
safety policies and procedures and establish safety training and continuing
education); Ollie, 342 S.W.3d at 527 (regarding patient safety); Diversicare
General Partner, Inc. v. Rubio, 185 S.W.3d 842, 850 (Tex. 2005). Although
Haywood pleads that Seton is vicariously liable for the nurse, Haywood did not sue
the nurse individually. (CR 3). The focus is on the essence of the claim and not the
artfulness of the claimant’s pleading. Diversicare, 185 S.W.3d at 851.
Jeffrey D. Kyle
May 26, 2015
Page 4

According to the analysis in Ross, there is a substantive nexus between the safety
standards that Haywood alleges were violated (operation of a hospital unit door by
a hospital employee acting in the course and scope of her duties) and the provision
of health care (providing for safety of patients on a hospital unit). The fact that an
incident could have occurred outside a hospital does not preclude it from being a
health care liability claim. Ross, 2015 WL 20009744, at *6; see also Diversicare
General Partner, Inc. v. Rubio, 185 S.W.3d 842, 850 (Tex. 2005) (“The obligation
of a health care facility to its patients is not the same as the general duty a premises
owner owes to invitees.”).

Based on the foregoing analysis, Appellee’s claims against Appellant alleging a
departure from accepted standards of safety by Appellant’s registered nurse
concerning the nurse’s use and operation of the hospital unit door in question are
safety standards-based claims that are substantively related to the provision of
health care. Accordingly, this is a health care liability claim subject to the
provisions of the TMLA. Appellee failed to satisfy the 120-day expert report
requirement. As such, dismissal of her claim is mandatory and the trial court erred
by denying Seton’s motion to dismiss.

Respectfully Submitted,


/s/ Emily J. Davenport
Emily J. Davenport
edavenport@rcmhlaw.com
State Bar No. 24012501


                       CERTIFICATE OF COMPLIANCE

       I hereby certify that the foregoing brief has been compiled using a computer
program in Word with 14-point font conventional typeface for the body of the
brief. Excluding the portions of the brief exempted pursuant to Rule 9.4 of the
Texas Rules of Appellate Procedure, this brief contains 1,283 words.


                                              /s/ Emily J. Davenport
                                        Emily J. Davenport
Jeffrey D. Kyle
May 26, 2015
Page 5


                         CERTIFICATE OF SERVICE

       Pursuant to Rule 9.5 of the Texas Rules of Appellate Procedure, I hereby
certify that a true and correct copy of the foregoing instrument has been sent by e-
mail to the following counsel of record on this 26th day of May, 2015:

Robert C. Alden
Byrd, Davis Furman & Alden, LLP
707 West 34th St.
Austin, TX 78705
ralden@byrddavis.com


                                            /s/ Emily J. Davenport
                                      Emily J. Davenport
Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)
58 Tex. Sup. Ct. J. 766



                                                                        Actions and Proceedings
                    2015 WL 2009744
                                                                      When a safety standards-based claim is made
NOTICE: THIS OPINION HAS NOT BEEN                                     against a health care provider, the Medical
RELEASED      FOR    PUBLICATION     IN THE                           Liability Act (TMLA) does not require the
PERMANENT LAW REPORTS. UNTIL RELEASED,                                safety standards to be directly related to the
IT IS SUBJECT TO REVISION OR WITHDRAWAL.                              provision of health care in order for the claim to
             Supreme Court of Texas.                                  be a health care liability claim (HCLC). Tex.
                                                                      Civ. Prac. & Rem. Code Ann. § 74.001(a)(13).
                 Lezlea Ross, Petitioner,
                            v.
       St. Luke’s Episcopal Hospital, Respondent                      2 Cases that cite this headnote

No. 13–0439 | Argued November 5, 2014 | OPINION
            DELIVERED: May 1, 2015
                                                                [2]
                                                                      Courts
                                                                        Appellate jurisdiction of Supreme Court in
Synopsis
                                                                      general
Background: Visitor brought action against hospital on
premises liability theory after she slipped and fell near
                                                                      Inconsistent appellate court interpretations of the
lobby exit doors. The 215th District Court, Harris County,
                                                                      Supreme Court case of Texas West Oaks Hosp.,
dismissed action, finding that visitor’s claim was a health
                                                                      LP v. Williams, concerning the degree to which
care liability claim (HCLC) requiring service of expert
                                                                      a safety standards-based claim must be related to
report. The Court of Appeals affirmed, 2013 WL
                                                                      health care in order to qualify as a health care
1136613. Visitor’s petition for review was granted.
                                                                      liability claim (HCLC) within ambit of the
                                                                      Medical Liability Act (TMLA), conferred
                                                                      jurisdiction on Supreme Court to address the
Holdings: The Supreme Court, Johnson, J., held that:                  issue in case in which hospital visitor’s
                                                                      slip-and-fall premises liability claim was
[1]
   inconsistent lower court interpretations of Supreme                dismissed upon finding that it was an HCLC
Court case conferred jurisdiction on Supreme Court to                 requiring service of a medical expert report.
address the issue;                                                    Tex. Civ. Prac. & Rem. Code Ann. §
                                                                      74.001(a)(13); Tex. Gov’t Code Ann. §
[2]
   visitor raised issue in her appellate brief before Court           22.225(c).
of Appeals to degree necessary to preserve it for review
before Supreme Court; and
                                                                      Cases that cite this headnote
[3]
   slip-and-fall claim was not an HCLC simply because
the fall occurred in a hospital.

                                                                [3]
                                                                      Courts
Reversed and remanded.
                                                                        Appellate jurisdiction of Supreme Court in
                                                                      general
Lehrmann, J., issued concurring opinion in which Devine,
J., joined.
                                                                      For purposes of conferring jurisdiction upon
                                                                      Supreme Court, one lower court holds
                                                                      “differently” from another when there is
                                                                      inconsistency in their decisions that should be
  West Headnotes (17)                                                 clarified to remove unnecessary uncertainty in
                                                                      the law. Tex. Gov’t Code Ann. § 22.001(e).

 [1]
         Health
                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  1
Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)
58 Tex. Sup. Ct. J. 766


        Cases that cite this headnote


                                                                [7]
                                                                       Statutes
                                                                         Language and intent, will, purpose, or policy
[4]
        Appeal and Error
          Scope and effect                                             In determining legislative intent, courts look
                                                                       first and foremost to the language of the statute.
        In her appellate brief on appeal to Court of
        Appeals, visitor challenged trial court finding
        that her slip-and-fall premises liability claim                Cases that cite this headnote
        against hospital was in fact a health care liability
        claim (HCLC) requiring service of medical
        expert report to a degree necessary to preserve
        the issue for review before the Supreme Court;          [8]
        in her original appellate brief, visitor discussed             Statutes
        the purpose of the Medical Liability Act                         Plain Language; Plain, Ordinary, or Common
        (TMLA) and asserted that classifying her claim                 Meaning
        as an HCLC would conflict with the                             Statutes
        Government Code, and the Court of Appeals                        Defined terms; definitional provisions
        implicitly determined that visitor’s citations and             Statutes
        argument were enough to avoid waiver because                     Context
        it addressed the issue. Tex. Civ. Prac. & Rem.                 Statutes
        Code Ann. § 74.001(a)(13); Tex. R. App. P.                       Relation to plain, literal, or clear meaning;
        38.1(I).                                                       ambiguity

                                                                       Courts construe a statute’s words according to
        Cases that cite this headnote                                  their plain and common meaning unless they are
                                                                       statutorily defined otherwise, a different
                                                                       meaning is apparent from the context, or unless
                                                                       such a construction leads to absurd or
                                                                       nonsensical results.
[5]
        Appeal and Error
          Insufficient discussion of objections
                                                                       Cases that cite this headnote
        Failure to provide citations or argument and
        analysis as to an appellate issue may waive it.
        Tex. R. App. P. 38.1(I).
                                                                [9]
                                                                       Statutes
        Cases that cite this headnote                                    Context

                                                                       Determining legislative intent requires courts to
                                                                       consider the statute as a whole, reading all its
                                                                       language in context, and not reading individual
[6]
        Appeal and Error                                               provisions in isolation.
          Cases Triable in Appellate Court

        Review of lower court’s construction of statute                Cases that cite this headnote
        is de novo, and goal of appellate court is to give
        effect to legislative intent.

                                                                [10]
        Cases that cite this headnote                                  Health
                                                                         Affidavits of merit or meritorious defense;
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       2
Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)
58 Tex. Sup. Ct. J. 766

        expert affidavits

        That visitor happened to slip and fall inside a
        hospital, near the hospital’s lobby exit door, did
                                                                [13]
        not make her premises liability claim a health                 Statutes
        care liability claim (HCLC) requiring service of                  General and specific terms and provisions;
        medical expert report pursuant to Medical                      ejusdem generis
        Liability Act (TMLA); the cleaning and buffing
        of the floor near the exit doors was not for the               Where the more specific items of a statute, (a)
        purpose of protecting patients, the area where                 and (b), are followed by a catchall “other,” (c),
        visitor fell was not one where patients might be               the “ejusdem generis doctrine” teaches that the
        during their treatment so that the hospital’s                  latter must be limited to things like the former.
        obligation to protect patients was implicated by
        the condition of the floor at that location, and
        visitor was not seeking or receiving health care,              Cases that cite this headnote
        nor was she a health care provider or assisting in
        providing health care at the time she fell. Tex.
        Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13),
        74.351(a).                                              [14]
                                                                       Health
                                                                         Affidavits of merit or meritorious defense;
        Cases that cite this headnote                                  expert affidavits

                                                                       For a safety standards-based claim to be a health
                                                                       care liability claim (HCLC) requiring service of
                                                                       medical expert report, there must be a
[11]
        Health                                                         substantive nexus between the safety standards
          Affidavits of merit or meritorious defense;                  allegedly violated and the provision of health
        expert affidavits                                              care, and that nexus must be more than a “but
                                                                       for” relationship. Tex. Civ. Prac. & Rem. Code
        The purpose of the Medical Liability Act’s                     Ann. §§ 74.001(a)(13), 74.351(a).
        (TMLA) expert report requirement is not to have
        claims dismissed regardless of their merits, but
        rather it is to identify and deter frivolous claims            2 Cases that cite this headnote
        while not unduly restricting a claimant’s rights.
        Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).

                                                                [15]
        Cases that cite this headnote                                  Health
                                                                         Affidavits of merit or meritorious defense;
                                                                       expert affidavits

                                                                       Although the mere location of an injury in a
[12]
        Health                                                         health care facility or in a health care setting
          Actions and Proceedings                                      does not bring a claim based on that injury
                                                                       within the Medical Liability Act (TMLA) so that
        A safety standards-based claim does not come                   it is a health care liability claim (HCLC)
        within the Medical Liability Act’s (TMLA)                      requiring service of a medical expert report, the
        provisions just because the underlying                         fact that the incident could have occurred
        occurrence took place in a health care facility,               outside such a facility or setting does not
        the claim is against a health care provider, or                preclude the claim from being an HCLC. Tex.
        both. Tex. Civ. Prac. & Rem. Code Ann. §                       Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13),
        74.001(a)(13).                                                 74.351(a).


        Cases that cite this headnote                                  Cases that cite this headnote
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     3
Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)
58 Tex. Sup. Ct. J. 766

                                                                APPEALS FOR THE FOURTEENTH DISTRICT OF
                                                                TEXAS

                                                                Opinion
[16]
        Health
          Affidavits of merit or meritorious defense;           Justice Johnson delivered the opinion of the Court.
        expert affidavits

        The pivotal issue in a safety standards-based           *1 In this case a visitor to St. Luke’s Episcopal Hospital
        claim, for purposes of determining whether the          sued the hospital on a premises liability theory after she
        claim is a health care liability claim (HCLC)           slipped and fell near the lobby exit doors. The issue is
        requiring service of medical expert report, is          whether her suit is a health care liability claim under the
        whether the standards on which the claim is             Texas Medical Liability Act. See TEX. CIV. PRAC. &
        based implicate the defendant’s duties as a             REM. CODEE ch. 74. The trial court and court of appeals
        health care provider, including its duties to           concluded that it is. We hold that it is not, because the
        provide for patient safety. Tex. Civ. Prac. &           record does not demonstrate a relationship between the
        Rem. Code Ann. §§ 74.001(a)(13), 74.351(a).             safety     standards      she     alleged    the   hospital
                                                                breached—standards for maintaining the floor inside the
                                                                lobby exit doors—and the provision of health care, other
        Cases that cite this headnote                           than the location of the occurrence and the hospital’s
                                                                status as a health care provider.

                                                                We reverse and remand to the trial court for further
                                                                proceedings.
[17]
        Health
          Affidavits of merit or meritorious defense;
        expert affidavits

        Non-exclusive considerations used to determine                               I. Background
        whether safety standards-based claim is
        substantively related to defendant’s providing of       Lezlea Ross accompanied a friend who was visiting a
        health care and is therefore a health care liability    patient in St. Luke’s Episcopal Hospital. Ross was leaving
        claim (HCLC) requiring service of medical               the hospital through the lobby when, as she approached
        expert report include: whether alleged                  the exit doors, she slipped and fell in an area where the
        negligence occurred in course of defendant’s            floor was being cleaned and buffed. She sued St. Luke’s
        performing tasks with purpose of protecting             and Aramark Management Services, a company that
        patients from harm; whether injuries occurred in        contracted with the hospital to perform maintenance
        place where patients might be during time they          services, on a premises liability theory. Aramark is not a
        were receiving care, so that obligation of              party to this appeal.
        provider to protect persons who require medical         [1]
        care was implicated; whether, at the time of the          After Ross filed suit we decided Texas West Oaks
        injury, the claimant was in the process of              Hospital, L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012).
        seeking or receiving health care; and whether, at       There we held, in part, that when a safety standards-based
        time of the injury, the claimant was providing or       claim is made against a health care provider, the Texas
        assisting in providing health care. Tex. Civ.           Medical Liability Act (TMLA), TEX. CIV. PRAC. &
        Prac. & Rem. Code Ann. §§ 74.001(a)(13),                REM. CODEE ch. 74, does not require the safety
        74.351(a).                                              standards to be directly related to the provision of health
                                                                care in order for the claim to be a health care liability
                                                                claim (HCLC). Williams, 371 S.W.3d at 186. Relying on
        2 Cases that cite this headnote                         Williams, the hospital asserted that Ross’s claim was an
                                                                HCLC and moved for dismissal of her suit because she
                                                                failed to serve an expert report. See TEX. CIV. PRAC. &
                                                                REM. CODEE § 74.351(a), (b) (requiring dismissal of an
                                                                HCLC if a claimant fails to timely serve an expert report);
                                                                Williams, 371 S.W.3d at 186.
ON PETITION FOR REVIEW FROM THE COURT OF
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      4
Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)
58 Tex. Sup. Ct. J. 766

                                                                Shepherd Medical Center–Linden, Inc. v. Twilley, 422
The trial court granted the motion to dismiss. The court of     S.W.3d 782 (Tex.App.–Texarkana 2013, pet. denied). In
appeals affirmed. Ross v. St. Luke’s Episcopal Hosp., –––       that case, Bobby Twilley, the director of plant operations
S.W.3d –––– (Tex.App.–Houston [14th Dist.] 2013). The           for a medical center, asserted premises liability claims
appeals court concluded that under Williams it is not           against his employer after he fell from a ladder and also
necessary for any connection to exist between health care       tripped over a mound of hardened cement. Id. at 783. The
and the safety standard on which a claim is based in order      medical center moved for dismissal under the TMLA
for the claim to come within the TMLA. Id. at ––––.             because Twilley failed to file an expert report. Id. at
                                                                783–84. The trial court denied the motion and the medical
Ross asserts that the lower courts erred because claims         center appealed, arguing that even though Twilley’s
based on departures from “accepted standards of safety”         claims were unrelated to the provision of health care,
do not come within the provisions of the TMLA unless            under Williams they still fell within the ambit of the
there is at least some connection between the standards         TMLA. The court of appeals interpreted Williams as
underlying the allegedly negligent actions and the              holding that a safety standards-based claim need not be
provision of health care, even if they are not directly         directly related to the provision of health care to be an
related. She then argues that her claims are not HCLCs          HCLC. Id. at 789. The court stated, however, that it did
because the hospital’s alleged negligence is completely         not understand Williams to hold that a safety standards
unrelated to the provision of health care.                      claim falls under the TMLA when the claim is completely
                                                                untethered from health care. Id. The appeals court
The hospital responds with three arguments. It first urges      concluded that at least an indirect relationship between
that we lack jurisdiction. See TEX. GOV’T CODE §                the claim and health care is required and, because
22.001(a)(2), (3), (6). It next asserts that even if we have    Twilley’s claims did not have such a relationship, an
jurisdiction, Ross waived the issue of whether her claim is     expert report was not required. Id. at 785.
an HCLC because she failed to properly brief and urge it
                                                                [3]
in the court of appeals. Third, the hospital addresses the        In this case the court of appeals held that under
merits by asserting that the court of appeals correctly held    Williams “a connection between the act or omission and
that a safety standards-based claim need not be related to      health care is unnecessary for purposes of determining
health care to fall within the TMLA’s provisions, but in        whether Ross brings an HCLC.” Ross, ––– S.W.3d at
any event Ross’s claims are related to accepted standards       ––––. The hospital asserts that the decision of the court of
of patient safety because she fell inside the hospital.         appeals and Twilley do not conflict. But, for purposes of
                                                                our jurisdiction, one court holds differently from another
*2 We first address our jurisdiction. See Rusk State Hosp.      when there is inconsistency in their decisions that should
v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (noting that if a       be clarified to remove unnecessary uncertainty in the law.
court does not have jurisdiction, its opinion addressing        TEX. GOV’T CODE § 22.001(e). As other courts of
any issues other than its jurisdiction is advisory).            appeals have noted, Ross and Twilley are inconsistent in
                                                                their interpretations of Williams and the TMLA, leaving
                                                                uncertainty in the law regarding whether a safety
                                                                standards-based claim must be related to health care. See,
                                                                e.g., Weatherford Tex. Hosp. Co. v. Smart, 423 S.W.3d
                      II. Jurisdiction                          462, 467–68 (Tex.App.–Fort Worth 2014, pet. filed);
[2]                                                             DHS Mgmt. Servs., Inc. v. Castro, 435 S.W.3d 919, 922
  Texas Civil Practice and Remedies Code §                      & n.3 (Tex.App.–Dallas 2014, no pet.). That being so, we
51.014(a)(10) permits an appeal from an interlocutory           have jurisdiction and move to the hospital’s waiver claim.
order granting relief sought by a motion to dismiss an
HCLC for failure to file an expert report. Generally, the
court of appeals’ judgment is final on interlocutory
appeals. See TEX. GOV’T CODE § 22.225(b)(3).
However, we have jurisdiction if the justices of the court                                 III. Waiver
of appeals disagree on a question of law material to the
decision, or if a court of appeals holds differently from a     *3 [4]The hospital argues that Ross waived any challenge
prior decision of another court of appeals or this Court. Id.   to her claim being classified as an HCLC by failing to
§ 22.225(c).                                                    argue the point or cite relevant authority in the court of
                                                                appeals. We disagree.
Ross asserts that this Court has jurisdiction because the
                                                                [5]
court of appeals’ opinion in this case conflicts with Good            A brief in the court of appeals “must contain a clear and
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         5
Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)
58 Tex. Sup. Ct. J. 766

concise argument for the contentions made, with                                 treatment, lack of treatment, or
appropriate citations to authorities and to the record.”                        other claimed departure from
TEX. R. APP. P. 38.1(I). Failure to provide citations or                        accepted standards of medical care,
argument and analysis as to an appellate issue may waive                        or health care, or safety or
it. See ERI Consulting Eng’rs, Inc. v. Swinnea, 318                             professional or administrative
S.W.3d 867, 880 (Tex. 2010).                                                    services directly related to health
                                                                                care, which proximately results in
In her court of appeals brief, Ross discussed the purpose                       injury to or death of a claimant,
of the TMLA and asserted that classifying her claim as an                       whether the claimant’s claim or
HCLC would conflict with the Government Code. See                               cause of action sounds in tort or
TEX. GOV’T CODE § 311.021(3) (providing that when a                             contract.
statute is enacted, there is a presumption that “a just and
reasonable result is intended”). The court of appeals             TEX. CIV. PRAC. & REM. CODEE § 74.001(a)(13).
implicitly determined that Ross’s citations and argument          This Court construed “safety” under the prior statute
were enough to avoid waiver because it addressed the              according to its common meaning as “the condition of
issue. See Republic Underwriters Ins. Co. v. Mex–Tex,             being ‘untouched by danger; not exposed to danger;
Inc., 150 S.W.3d 423, 427 (Tex. 2004) (concluding that            secure from danger, harm or loss.’ ” Diversicare Gen.
an argument in the court of appeals was not waived and            Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex. 2005)
noting that “we have instructed the courts of appeals to          (quoting BLACK’S LAW DICTIONARY 1336 (6th ed.
construe the Rules of Appellate Procedure reasonably, yet         1990)). We also recognized that the Legislature’s
liberally, so that the right to appeal is not lost by imposing    inclusion of the word “safety” in the statute expanded the
requirements not absolutely necessary to effect the               statute’s scope beyond what it would be if the statute only
purpose of a rule” (quoting Verburgt v. Dorner, 959               included the terms medical care and health care. Id. The
S.W.2d 615, 616–17 (Tex. 1997))). We agree with the               Court explained its disagreement with the position of
court of appeals that Ross did not waive the issue.               Chief Justice Jefferson who, in a concurring opinion,
                                                                  argued that some of the patient’s claims arising from an
                                                                  assault by another patient were premises liability claims:

                                                                    *4 Rubio is not complaining about an unlocked
                 IV. Health Care Liability Claims                   window that gave an intruder access to the facility or a
[6] [7] [8] [9] [10]                                                rickety staircase that gave way under her weight. All of
              The merits of the appeal require us to review         her claims arise from acts or omissions that are
the lower courts’ construction of the TMLA. Under such              inseparable from the provision of health care. We do
circumstances our review is de novo, Williams, 371                  not distinguish Rubio’s health care claims from
S.W.3d at 177, and our goal is to give effect to legislative        premises liability claims “simply because the
intent. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631           landowner is a health care provider” but because the
(Tex. 2013). In determining that intent we look first and           gravamen of Rubio’s complaint is the alleged failure of
foremost to the language of the statute. City of Rockwall           Diversicare to implement adequate policies to care for,
v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). We                      supervise, and protect its residents who require special,
construe a statute’s words according to their plain and             medical care.
common meaning unless they are statutorily defined
otherwise, a different meaning is apparent from the               Id. at 854.
context, or unless such a construction leads to absurd or
nonsensical results. See Tex. Lottery Comm’n v. First             The Legislature added the phrase “or professional or
State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.                  administrative services directly related to health care” to
2010). Determining legislative intent requires that we            the definition of health care liability claim in 2003.
consider the statute as a whole, reading all its language in      Compare Act of May 30, 1977, 65th Leg., R.S., ch. 817, §
context, and not reading individual provisions in isolation.      1.03(a)(4), 1977 Tex. Gen. Laws 2039, 2041, repealed by
See Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 51           Act of June 2, 2003, 78th Leg., ch. 204, § 10.09, 2003
(Tex. 2014).                                                      Tex. Gen. Laws 847, 884 (absence of language), with
                                                                  TEX. CIV. PRAC. & REM. CODEE § 74.001(a)(13)
The TMLA defines a health care liability claim as:                (language added). After that statutory amendment we
                                                                  addressed the “safety” part of the definition in Omaha
                   a cause of action against a health             Healthcare Ctr., L.L.C. v. Johnson, 344 S.W.3d 392 (Tex.
                   care provider or physician for                 2011), and Harris Methodist Fort Worth v. Ollie, 342
                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                6
Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)
58 Tex. Sup. Ct. J. 766

S.W.3d 525 (Tex. 2011). Although the claims in both             touched them during the course of medical exams and
cases alleged general negligence, they were HCLCs               thereby assaulted them. 379 S.W.3d at 253. The trial court
because the underlying nature of the claims involved            concluded that the claim was not an HCLC and the court
violations of safety standards directly related to the          of appeals affirmed. Id. at 254. We pointed out that the
provision of health care, including protecting patients.        statutory definition of “health care” is broad (“any act or
Johnson, 344 S.W.3d at 394–95 (nursing home patient’s           treatment performed or furnished, or that should have
death caused by a brown recluse spider); Ollie, 342             been performed or furnished, by any health care provider
S.W.3d at 527 (post-operative patient’s slip and fall on a      for, to, or on behalf of a patient during the patient’s
wet bathroom floor). But given that the claims were based       medical care, treatment, or confinement” TEX. CIV.
on injuries to patients and were directly related to the        PRAC. & REM. CODEE § 74.001(10)), and that if the
provision of health care, we did not address the issue of       facts underlying a claim could support claims against a
whether safety standard-based claims must be directly           physician or health care provider for departures from
related to health care in order for them to be HCLCs.           accepted standards of medical care, health care, or safety
Johnson, 344 S.W.3d at 394 n.2; Ollie, 342 S.W.3d at 527        or professional or administrative services directly related
n.2.                                                            to health care, the claims were HCLCs regardless of
                                                                whether the plaintiff alleged the defendants were liable
The next year we considered whether a psychiatric               for breach of the standards. See Loaisiga, 379 S.W.3d at
technician’s claims for injuries in an altercation with a       255. But that being so, we further explained:
patient were HCLCs. Williams, 371 S.W.3d at 181. In
reaching our decision we specifically and separately               *5 we fail to see how the Legislature could have
analyzed both whether the claims were based on the                 intended the requirement of an expert report to apply
health care provider’s allegedly departing from standards          under circumstances where the conduct of which a
for health care, and whether they were also based on its           plaintiff complains is wholly and conclusively
allegedly departing from standards for safety. Id. at              inconsistent with, and thus separable from, the
180–86. Regarding the safety standards issue, we                   rendition of “medical care, or health care, or safety or
reviewed the definition of HCLC and determined that the            professional or administrative services directly related
phrase “directly related to health care” modified the terms        to health care” even though the conduct occurred in a
immediately before it—professional or administrative               health care context. See TEX. CIV. PRAC. & REM.
services—but not the word safety. Id. at 185. We said that         CODEE § 74.001(a)(13); see also TEX. GOV’T CODE
“Williams’[s] claims are indeed for departures from                § 311.021 (“In enacting a statute, it is presumed that ...
accepted standards of safety. We conclude that the safety          a just and reasonable result is intended....”).
component of HCLCs need not be directly related to the
provision of health care and that Williams’[s] claims           Id. at 257. Our reasoning led to the conclusion that a
against West Oaks implicate this prong of HCLCs.” Id. at        patient’s claim against a medical provider for assault
186. Because we also concluded that Williams’s claims           during a medical examination is not an HCLC if the only
were HCLCs because they were for departures from                possible relationship between the alleged improper
health care standards, our decision that his claims were        conduct and the rendition of medical services or health
HCLCs rested on alternative holdings that are both              care was the setting in which the conduct took place. Id.
entitled to stare decisis treatment: the claims were for
departures from health care standards and they were for         In this case, the hospital advances two positions in
departures from safety standards. Id.; see State Farm Mut.      support of the lower courts’ rulings and its assertion that
Auto. Ins. Co. v. Lopez, 156 S.W.3d 550, 554 (Tex. 2004)        Ross’s claim is an HCLC. First, it addresses slip and fall
(distinguishing alternative holdings from dictum).              claims generally, and says that any slip and fall event
                                                                within a hospital is directly related to health care because
[11]
   The purpose of the TMLA’s expert report requirement          it necessarily is related to the safety of patients. Second, it
is not to have claims dismissed regardless of their merits,     focuses on Ross’s claim specifically and argues that her
but rather it is to identify and deter frivolous claims while   claim is related to health care because she alleges the
not unduly restricting a claimant’s rights. Scoresby v.         hospital breached standards applicable to maintaining a
Santillan, 346 S.W.3d 546, 554 (Tex. 2011). And the             safe environment for patients. We disagree with both
Legislature did not intend for the expert report                positions.
requirement to apply to every claim for conduct that            [12]
occurs in a health care context. See Loaisiga v. Cerda,            As to the hospital’s first contention, even though the
379 S.W.3d 248, 258 (Tex. 2012). For example, in                claims in Loaisiga were by a patient and the nature of the
Loaisiga patients claimed that a doctor improperly              claims differ from Ross’s safety standards-based claim,
                                                                the principle we explicated there applies here. A safety
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         7
Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)
58 Tex. Sup. Ct. J. 766

standards-based claim does not come within the TMLA’s            meaning of “safety” would afford defendant health care
provisions just because the underlying occurrence took           providers a special procedural advantage in the guise of
place in a health care facility, the claim is against a health   requiring plaintiffs to file expert reports in their suits
care provider, or both. See Loaisiga, 379 S.W.3d at 257.         regardless of whether their cause of action implicated the
                                                                 provision of medical or health care. We do not believe the
As to its second contention, Ross alleged that the hospital      Legislature intended the statute to have such arbitrary
failed to exercise reasonable care in making the floor safe.     results. See TEX. GOV’T CODE § 311.021 (“In enacting
The standards Ross says the hospital breached regarding          a statute, it is presumed that ... a just and reasonable result
maintenance of its floor may be the same as the hospital’s       is intended....”); Synatzske, 438 S.W.3d at 54 (declining to
standards for maintaining a safe environment in patient          attribute to the Legislature an intent to require a
care areas—but those may also be the same standards              meaningless, arbitrary procedural hurdle for injured
many businesses generally have for maintaining their             persons to bring suit).
floors. And the hospital does not claim, nor does the
record show, that the area where Ross fell was a patient         *6 [14] [15] [16]Thus, we conclude that for a safety
care area or an area where patients possibly would be in         standards-based claim to be an HCLC there must be a
the course of the hospital’s providing health care services      substantive nexus between the safety standards allegedly
to them. Nor does the hospital reference support in the          violated and the provision of health care. And that nexus
record for the position that the area had to meet particular     must be more than a “but for” relationship. That is, the
cleanliness or maintenance standards related to the              fact that Ross, a visitor and not a patient, would not have
provision of health care or patient safety. See Ollie, 342       been injured but for her falling inside the hospital is not a
S.W.3d at 527 (“[S]ervices a hospital provides its patients      sufficient relationship between the standards Ross alleges
necessarily include those services required to meet              the hospital violated and the hospital’s health care
patients’ fundamental needs such as cleanliness ... and          activities for the claim to be an HCLC. As we recognized
safety.”). Which leads to the question of whether Ross’s         in Loaisiga, “[i]n some instances the only possible
claims are nevertheless HCLCs, as the hospital would             relationship between the conduct underlying a claim and
have us hold.                                                    the rendition of medical services or healthcare will be the
                                                                 healthcare setting (i.e., the physical location of the
[13]
   The TMLA does not specifically state that a safety            conduct in a health care facility), the defendant’s status as
standards-based claim falls within its provisions only if        a doctor or health care provider, or both.” 379 S.W.3d at
the claim has some relationship to the provision of health       256. But although the mere location of an injury in a
care other than the location of the occurrence, the status       health care facility or in a health care setting does not
of the defendant, or both. But the Legislature must have         bring a claim based on that injury within the TMLA so
intended such a relationship to be necessary, given the          that it is an HCLC, the fact that the incident could have
legislative intent explicitly set out in the TMLA and the        occurred outside such a facility or setting does not
context in which “safety” is used in the statute. We said as     preclude the claim from being an HCLC. The pivotal
much in Loaisiga. 379 S.W.3d at 257. Even though the             issue in a safety standards-based claim is whether the
statute’s phrase “directly related to health care” does not      standards on which the claim is based implicate the
modify its reference to safety standards, that reference         defendant’s duties as a health care provider, including its
occurs within a specific context, which defines an HCLC          duties to provide for patient safety.
to be “a cause of action against a health care provider or
                                                                 [17]
physician for [a] treatment, [b] lack of treatment, [c] or          As this case demonstrates, the line between a safety
other claimed departure from accepted standards of               standards-based claim that is not an HCLC and one that is
medical care, or health care, or safety.” TEX. CIV.              an HCLC may not always be clear. But certain
PRAC. & REM. CODEE § 74.001(a)(13). Where the                    non-exclusive considerations lend themselves to
more specific items, [a] and [b], are followed by a catchall     analyzing whether such a claim is substantively related to
“other,” [c], the doctrine of ejusdem generis teaches that       the defendant’s providing of medical or health care and is
the latter must be limited to things like the former.1 And       therefore an HCLC:
here, the catchall “other” itself refers to standards of
“medical care” or “health care” or “safety.” Considering                1. Did the alleged negligence of the defendant occur
the purpose of the statute, the context of the language at              in the course of the defendant’s performing tasks
issue, and the rule of ejusdem generis, we conclude that                with the purpose of protecting patients from harm;
the safety standards referred to in the definition are those
that have a substantive relationship with the providing of              2. Did the injuries occur in a place where patients
medical or health care. And if it were not so, the broad                might be during the time they were receiving care, so
                                                                        that the obligation of the provider to protect persons
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Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)
58 Tex. Sup. Ct. J. 766

     who require special, medical care was implicated;          Justice Lehrmann filed a concurring opinion, in which
                                                                Justice Devine joined.
     3. At the time of the injury was the claimant in the
     process of seeking or receiving health care;               Justice Brown did not participate in the decision.

     4. At the time of the injury was the claimant              JUSTICE LEHRMANN, joined by JUSTICE DEVINE,
     providing or assisting in providing health care;           concurring.

     5. Is the alleged negligence based on safety standards     I join the Court’s opinion and agree that the claims
     arising from professional duties owed by the health        asserted in this case have no connection to the provision
     care provider;                                             of health care. I write separately, however, to emphasize
                                                                my concern that a statute intended to address the
     6. If an instrumentality was involved in the               insurance crisis stemming from the volume of frivolous
     defendant’s alleged negligence, was it a type used in      medical-malpractice lawsuits has become a nebulous
     providing health care; or                                  barrier to what were once ordinary negligence suits
                                                                brought by plaintiffs alleging no breach of any
     7. Did the alleged negligence occur in the course of       professional duty of care.
     the defendant’s taking action or failing to take action
     necessary to comply with safety-related requirements       In Texas West Oaks Hospital, LP v. Williams, the Court
     set for health care providers by governmental or           held that a plaintiff’s claim against a physician or health
     accrediting agencies?                                      care provider may constitute a health care liability claim
                                                                subject to the Texas Medical Liability Act even where no
Measuring Ross’s claim by the foregoing considerations,         patient–physician       or     patient-health-care-provider
it is clear that the answer to each is “no.” The record does    relationship exists between the parties. 371 S.W.3d 171,
not show that the cleaning and buffing of the floor near        177–78 (Tex. 2012). In my dissent in that case, I
the exit doors was for the purpose of protecting patients.      disagreed with the Court’s holding “that the mere
Nor does the record reflect that the area where Ross fell       peripheral involvement of a patient transforms an
was one where patients might be during their treatment so       ordinary negligence claim into a health care claim.” Id. at
that the hospital’s obligation to protect patients was          194–95 (Lehrmann, J., dissenting). I lamented what I
implicated by the condition of the floor at that location.      viewed as the Court’s departure from the importance we
Ross was not seeking or receiving health care, nor was          had previously placed on the relationship between health
she a health care provider or assisting in providing health     care providers and their patients in concluding that a
care at the time she fell. There is no evidence the             patient’s claims were covered by the Act. Id. at 196–97
negligence alleged by Ross was based on safety standards        (citing Diversicare Gen. Partner, Inc. v. Rubio, 185
arising from professional duties owed by the hospital as a      S.W.3d 842 (Tex. 2005)). The consequences of that
health care provider. There is also no evidence that the        departure are evident in cases like this, in which
equipment or materials used to clean and buff the floor         defendants who happen to be health care providers seek
were particularly suited to providing for the safety of         the protections of the Medical Liability Act with respect
patients, nor does the record demonstrate that the cleaning     to claims that have nothing to do with medical liability.
and buffing of the floor near the exit doors was to comply
with a safety-related requirement set for health care           The Court holds, and I agree, that a cause of action
providers by a governmental or accrediting authority.           against a health care provider for a departure from safety
                                                                standards is a health care liability claim only if it has a
                                                                “substantive relationship” with the provision of medical
                                                                or health care.1 ––– S.W.3d at ––––. I write separately to
                      V. Conclusion                             emphasize the significance of the third and fifth factors,
                                                                which consider whether the claimant was in the process of
Under this record Ross’s claim is based on safety               seeking or receiving health care at the time of the injury
standards that have no substantive relationship to the          and whether the alleged negligence was based on safety
hospital’s providing of health care, so it is not an HCLC.      standards arising from professional duties owed by the
Because her claim is not an HCLC, she was not required          health care provider.
to serve an expert report to avoid dismissal of her suit. We
reverse the judgment of the court of appeals and remand         As we recognized in Diversicare, the duty of care that
the case to the trial court for further proceedings.            health care providers owe to their patients is
                                                                fundamentally different from the duty of care owed to,
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Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)
58 Tex. Sup. Ct. J. 766

say, employees or visitors. 185 S.W.3d at 850–51 (“The                  profession ... under the same or similar circumstances”
obligation of a health care facility to its patients is not the         (quoting Hood v. Phillips, 554 S.W.2d 160, 165 (Tex.
same as the general duty a premises owner owes to                       1977))).
invitees.”). To that end, when we held in Diversicare that
a nursing home resident’s claim that she was sexually                   In my view, focusing a safety-standards claim on the duty
assaulted by another resident was a health care liability               health care providers owe to their patients ensures that
claim, we rejected the argument that the claim should be                Diversicare     ‘s    hypothetical visitor-assault and
treated the same as that of a visitor who had been                      rickety-staircase claims do not fall under the Medical
assaulted at the facility precisely because of the distinct             Liability Act’s umbrella. It also ensures that a covered
nature of those duties. Id. We also distinguished the                   cause of action will “implicate[ ] the provision of medical
circumstances at issue in that case from hypothetical                   or health care” in accordance with the Court’s holding in
claims involving an “unlocked window that gave an                       this case. ––– S.W.3d at ––––. With these considerations
intruder access to the facility” and a “rickety staircase that          in mind, I respectfully join the Court’s opinion and
gave way,” which we implied would not constitute health                 judgment.
care liability claims. Id. at 854. These statements are
consistent with our recognition that health care liability
claims involve a “specialized standard of care” that is
established by expert testimony. Garland Cmty. Hosp. v.                 Parallel Citations
Rose, 156 S.W.3d 541, 546 (Tex. 2004); see also Jackson
v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2007) (explaining                 58 Tex. Sup. Ct. J. 766
that a physician’s duty of care owed to a patient is that of
“a reasonable and prudent member of the medical

    Footnotes
1        Hilco Elec. Co–op. v. Midlothian Butane Gas Co., 111 S.W.3d 75, 81 (Tex. 2003) (“[T]he rule of ejusdem generis ...
         provides that when words of a general nature are used in connection with the designation of particular objects or
         classes of persons or things, the meaning of the general words will be restricted to the particular designation.”); see
         also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 199
         (2012) (“Where general words follow an enumeration of two or more things, they apply only to persons or things of the
         same general kind or class specifically mentioned.”).
1        “Substantive” is defined as “considerable in amount or numbers: substantial.” WEBSTER’S THIRD NEW INT’L
         DICTIONARY 2280 (2002).




    End of Document                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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