Reversed and Remanded and Opinion filed June 23, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00302-CV

                            OMEGA LOUT, Appellant

                                          V.

                   THE METHODIST HOSPITAL, Appellee

                    On Appeal from the 333rd District Court
                             Harris County, Texas
                       Trial Court Cause No. 2013-55155

                                  OPINION

      Appellant Omega Lout sued The Methodist Hospital for injuries she
allegedly sustained after slipping on water that had accumulated on the Hospital’s
floor. The Hospital successfully moved for dismissal of the case on the ground
that Lout failed to file an expert report as required in a health-care-liability claim.
In the sole issue presented for our review, Lout contends that the trial court erred in
dismissing her suit because this is not a health-care-liability claim, and thus, no
expert report is required. In light of the Texas Supreme Court’s opinion in Ross v.
St. Luke’s Episcopal Hospital, No. 13-0439, 2015 WL 2009744, at *6 (Tex. May
1, 2015), we reverse and remand the case for further proceedings.

                                  I. BACKGROUND

      Lout sued the Hospital, alleging that while she was an invitee on the
Hospital’s premises, she slipped on water that had accumulated on the floor,
causing her to fall. In her pleading, Lout alleged that the Hospital caused her
injuries through its negligence in failing to (a) inspect or maintain “the floor in
question” adequately to “protect members of the public from injury,” (b) warn
“members of the public of the dangers inherent on the premises,” and (c) properly
“supervise the usage of the premises in question.”

      Several months after filing its original answer, the Hospital moved to
dismiss Lout’s claims. The Hospital asserted that the claim was a health-care-
liability claim, and that Lout had failed to timely file an expert report as statutorily
required in such cases. Lout argued that the statute did not apply to her case,
because she had not alleged a health-care-liability claim. After an oral hearing, the
trial court granted the Hospital’s motion to dismiss, and this appeal ensued.

                                    II. ANALYSIS

      This appeal turns on the question of whether Lout has alleged a health-care-
liability claim governed by Chapter 74 of the Texas Civil Practice and Remedies
Code. Such a claim is statutorily defined as:

      a cause of action against a health care provider or physician for
      treatment, lack of treatment, or other claimed departure from accepted
      standards of medical care, or health care, or safety or professional or
      administrative services directly related to health care, which
      proximately results in injury 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) (West Supp. 2014). A

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“health care provider” includes a hospital. Id. § 74.001(a)(11)(G), (a)(12)(A)(vii).

      Not later than the 120th day after each defendant in a health-care-liability
claim files its original answer, the claimant must serve that defendant with one or
more expert reports summarizing the expert’s opinions regarding the applicable
standards of care, the manner in which the care rendered by the defendant failed to
meet the standards, and the causal relationship between that failure and the injury,
harm, or damages claimed. Id. § 74.351(a), (r)(6). If the claimant fails to serve the
defendant within this time, then on the defendant’s motion, the trial court must
dismiss the claim against the defendant with prejudice and award the defendant its
reasonable attorney’s fees and costs of court. Id. § 74.351(b).1

      A claim based on a health-care provider’s “departures from accepted
standards of safety” may or may not be a health-care-liability claim. See Tex. W.
Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171, 185–86 (Tex. 2012). To be a
health-care-liability claim, the claim “need not be directly related to the provision
of health care,” id. at 185 (emphasis added), but it must be “substantively related to
the defendant’s providing of medical or health care.” Ross v. St. Luke’s Episcopal
Hosp., No. 13-0439, 2015 WL 2009744, at *6 (Tex. May 1, 2015). “The 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.” Id.

      In making that determination, the Texas Supreme Court has measured the
plaintiff’s claim against the following “non-exclusive considerations”:

      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;

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          Here, the Hospital voluntarily waived recovery of attorney’s fees.

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      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?
Id.
      However, the Texas Supreme Court did not explain where this evidence
might come from—whether it was to be drawn only from the plaintiff’s pleadings
or from evidence provided in connection with the actual motion to dismiss or in an
evidentiary hearing. Nor did the Texas Supreme Court explain how a trial judge
might weigh conflicting evidence. Without deciding the issue, we will review all
of the evidence in the record.

      In her pleadings, Lout alleged that the Hospital allowed water to accumulate
on the floor, but she gave no details as to how or where this occurred. She did not
contend that she was injured while seeking, receiving, providing, or assisting in
providing health care. She did not mention any safety standards that arise from the
professional duties owed by a health-care provider or any safety-related
requirements set for health-care providers by governmental or accrediting
agencies.

      In its motion to dismiss, the Hospital maintained that a suit against a hospital

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for injuries the claimant allegedly sustained in a slip-and-fall accident on the
hospital’s premises is necessarily a health-care-liability claim to which the expert-
report requirement applies. The Hospital asserted that Lout was not a patient, and
argued that her claim was identical to the claims of visitors in three other slip-and-
fall suits against hospitals, each of which was dismissed for failure to file an expert
report. See Mem’l Hermann Hosp. Sys. v. Galvan, 434 S.W.3d 176, 178 (Tex.
App.—Houston [14th Dist.] 2014, pet. pending) (visitor allegedly slipped on water
in a hospital hallway); E. Tex. Med. Ctr. Regional Health Care Sys. v. Reddic, No.
12-13-00107-CV, 2013 WL 6252702 (Tex. App.—Tyler Dec. 4, 2013) (visitor
slipped and fell in hospital lobby), op. withdrawn and superseded, 426 S.W.3d 343
(Tex. App.—Tyler 2014, pet. pending) (op. on reh’g); Ross v. St. Luke’s Episcopal
Hosp., No. 14-12-00885-CV, 2013 WL 1136613, at *1 (Tex. App.—Houston [14th
Dist.] Mar. 19, 2013) (mem. op.) (hospital visitor slipped and fell in hospital
lobby), rev’d, No. 13-0439, 2015 WL 2009744 (Tex. May 1, 2015). The Hospital
incorporated the plaintiff’s pleading into its motion but provided no additional
evidence with its motion, other than an attorney-fee affidavit.

      Lout responded that she was a visitor when she slipped and fell in water on
the Hospital’s floor, but she asserted that the only nexus between her claimed
injury and the provision of health care is that the Hospital was the site of the
accident. She attached no evidence to her response.

      The Hospital filed a reply to which it attached Lout’s answers to
interrogatories. In response to a request that Lout identify where she had been
prior to entering the Hospital, Lout stated that she “had been at the hospital with
her mother who was a patient.” The Hospital also asked how many times Lout had
“been to the premises where the incident occurred” before the date of the incident,
and Lout answered that she “had been to the hospital on numerous occasions with

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her mother as the patient” but “had only been to the heart failure unit, where this
incident occurred, a few times.”

      The hearing on the motion was not an evidentiary hearing; no witnesses
were called or exhibits admitted. At the hearing, Lout’s attorney stated that Lout
“slipped and fell on the water on the floor on the Fondren, the 11th floor of the
hospital.” The attorney further represented that in the records of Lout’s medical
treatment after her fall, it is stated that she “fell from the upright position while
walking and struck the tile surface.”

      The Hospital filed a post-submission brief in this court arguing that the facts
in this case were different from those in Ross. The Hospital claimed that two of
the Ross factors are present in this case. It argued that unlike the plaintiff in Ross
who fell in a lobby, Lout fell in the “heart failure unit . . . which is undoubtedly a
place within the hospital where patients might be during the time they were
receiving care.” The Hospital then argued that the safety standards for this area
implicated the professional duties owed by the health care provider.

      However, on this record, we do not know if the incident occurred in the
unit’s lobby, a visitor’s restroom, a vending area, a patient’s room, an examination
room, etc. There is no evidence that Lout slipped in an area “where patients might
be during their treatment so that the hospital’s obligation to protect patients was
implicated by the condition of the floor at that location.” See Ross, 2015 WL
2009744, at *6. There also is no evidence that the entirety of the “heart failure
unit” is such a place, and no evidence implicating the safety standards that are
substantively related to the Hospital’s professional duties as a health-care provider.

      Because the record does not show that Lout’s claim is based on safety
standards that have a substantive relationship to the Hospital’s provision of health
care, the trial court erred in concluding that this is a health-care-liability claim in
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which Lout was required to file an expert report to avoid dismissal. See id. We
accordingly sustain the sole issue presented for our review

                                 III. CONCLUSION

      Because there is no support in the record for the conclusion that this is a
health-care-liability claim, we reverse the trial court’s judgment and remand the
case for further proceedings consistent with this opinion.



                                       /s/       Tracy Christopher
                                                 Justice



Panel consists of Justices Christopher, Donovan, and Wise.




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