Concurring opinion issued September 18, 2014




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                               NO. 01-14-00309-CV
                            ———————————
               DR. MALLADI SUDHAKAR REDDY, Appellant
                                         V.
      DIANNA LYNN VEEDELL AND MAURY VEEDELL, Appellees



                    On Appeal from the 157th District Court
                             Harris County, Texas
                       Trial Court Case No. 2013-23734



                           CONCURRING OPINION

      I agree that the recent caselaw controls the outcome of this case in this court,

and I also agree with the disposition of this appeal on the merits. “Whether a claim

is a health care liability claim depends on the underlying nature of the claim being
made.”1 Considering the entire text of the Texas Medical Liability Act (TMLA), I

conclude that the statute does not require an expert report in the circumstance of a

lawsuit alleging a doctor’s negligence in hitting a bicyclist with his car, even if the

doctor was distracted by a telephone call from a hospital.

      That said, I do not agree with the reasoning employed in our court’s recent

Williams v. Riverside decision,2 even though it leads to the correct outcome here.

The Texas Supreme Court has granted review in Ross v. St. Luke’s Episcopal

Hospital,3 which presents a substantially similar issue concerning the scope of the

“safety claim.”4 Because this case helpfully illuminates problematic facets of

applying the TMLA to safety claims against physician defendants, I offer the

following additional observations.

1
      Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010); see also Diversicare
      Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005) (“To
      determine whether a cause of action is a health care liability claim . . . we
      examine the underlying nature of the claim and are not bound by the form of
      the pleading.”).
2
      No. 01-13-00335-CV, 2014 WL 4259889 (Tex. App.—Houston [1st Dist.]
      Aug. 28, 2014, no pet. h.) (mem. op.).
3
      No. 14-12-00885-CV, 2013 WL 1136613 (Tex. App.—Houston [14th Dist.]
      Mar. 19, 2013, pet. granted) (mem. op.).
4
      But for the Supreme Court’s decision to review Ross, which gives cause for
      some hope of authoritative guidance concerning safety claims under the
      TMLA, I would recommend that this court grant a sua sponte en banc
      reconsideration of Williams v. Riverside. See TEX. R. APP. P. 49.7.


                                          2
      The TMLA’s fundamental purpose5 of reducing the costs associated with

“health care liability claims” (HCLCs)6 and the statute’s expansive definition of

“health care”7 have resulted in the application of an appropriately broad scope to

these statutorily defined terms.8 The broad application of the TMLA to claims

arising from claimed departures from “accepted standards of medical care, or

health care” thus effectively subsumes any claim arising from alleged departures

from accepted standards of “safety,” to the extent such “safety claims” are directly

related to health care. This feature of the HCLC definition has been noted as one


5
      See, e.g., Scoresby v. Santillan, 346 S.W.3d 546, 552 (Tex. 2011). The
      statute seeks to further this goal by deterring “frivolous lawsuits by requiring
      a claimant early in litigation to produce the opinion of suitable expert that
      his claim has merit.” Id.
6
      TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13) (“‘Health care liability claim’
      means 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.”).
7
      Id. § 74.001(a)(10) (“‘Health care’ means any act or treatment performed or
      furnished, or that should have been performed or furnished, by any health
      care provider for, to, or on behalf of a patient during the patient’s medical
      care, treatment, or confinement”).
8
      See, e.g., Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012) (“The broad
      language of the TMLA evidences legislative intent for the statute to have
      expansive application.”); Diversicare, 185 S.W.3d at 847.


                                          3
justification for concluding that the separate category of TMLA safety claims

cannot be limited to those “directly related to health care,” despite a strong textual

argument to that effect,9 because such an interpretation would run afoul of the

interpretive canon against surplusage.10 But the potential problem of surplusage

need not inexorably dictate the scope of the safety claim. “Sometimes drafters do

repeat themselves and do include words that add nothing of substance . . . .”11


9
      See, e.g., Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724, 729–30 (Tex.
      2013) (Boyd, J., concurring).
10
      See Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 192 (Tex. 2012)
      (citing TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10)). Notably, the West
      Oaks opinion states that “‘medical care’ and ‘health care’ HCLCs require
      that the claimant be a patient.” Id. at 178 (emphasis supplied). If that were
      the case, then it would be easy to avoid the surplusage problem because the
      other types of HCLCs can be brought by the full range of covered
      “claimants,” which is broader than just patients. See TEX. CIV. PRAC. & REM.
      CODE § 74.001(a)(2) (defining “claimant”); Tex. W. Oaks, 371 S.W.3d at
      178–79 (discussing “claimant” definition). However, the quoted language
      limiting certain types of HCLCs to patient-claimants appears to be an
      inadvertently narrow articulation of what is described elsewhere in the
      opinion as a requirement that there be some connection to “a patient-
      physician relationship,” without any requirement that the claimant be the
      patient. Tex. W. Oaks, 371 S.W.3d at 180. This understanding is evident
      from both West Oaks itself and from the later Psychiatric Solutions case.
      Neither of the claimants in those cases was a patient, yet the Court held that
      each claim qualified as a “health care” HCLC because a patient-physician
      relationship was involved. See id. at 181–83 (claimant assaulted by
      psychiatric patient who was being treated by the claimant’s employer);
      Psychiatric Solutions, 414 S.W.3d at 726 (same).
11
      ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
      INTERPRETATION OF LEGAL TEXTS 176 (2012). For example, the TMLA’s

                                          4
Accordingly, “[p]ut to a choice . . . a court may well prefer ordinary meaning to an

unusual meaning that will avoid surplusage . . . .”12

      The fact pattern of this case suggests other problems with broadly construing

the category of “safety” claims without the limiting qualification that such claims

must be directly related to health care. When the defendant is a “health care

provider,” as it was in West Oaks,13 Psychiatric Solutions,14 and Ross,15 it stands to

reason that the potential for a connection to health care should be evident to the

claimant. The non-patient plaintiff advancing a garden-variety negligence claim

against a health care provider should confront “no major obstacle” in satisfying the

TMLA’s requirement of an expert report, and prudently should file one to avoid

the risk of dismissal.16 But the potential classification of a claim as an HCLC may



      broad definition of “health care” appears to entirely subsume the definition
      of “medical care,” yet the HCLC definition references both in a fashion that
      adds no apparent substance by including “medical care.” See TEX. CIV.
      PRAC. & REM. CODE § 74.001(a)(10), (13), (19).
12
      SCALIA & GARNER, supra note 11, at 176.
13
      Tex. W. Oaks, 371 S.W.3d at 174 (private mental health hospital).
14
      Psychiatric Solutions, 414 S.W.3d at 724-25 (psychiatric facility).
15
      Ross, 2013 WL 1136613, at *1 (hospital).
16
      See Loaisiga, 379 S.W.3d at 264 (Hecht, J., concurring and dissenting)
      (observing that “[o]ne need not turn to the Mayo Clinic” for an opinion
      establishing that “sexual assault is not a part of health care”). The Williams

                                          5
not be evident when the defendant is a physician and the claim does not arise from

a health-care setting, such as the accident in this case. The original petition in this

case identified Reddy as a doctor, but it is entirely conceivable that a similar

accident could occur involving a physician-defendant, and that fact of a

physician’s involvement may not be known until a motion to dismiss is filed,

faulting the claimant for failing to file an expert report. Unlike the circumstance in

which an actually filed report is found to be deficient,17 the Act includes no

procedural mechanism to protect the claimant who lacks notice of circumstances

causing her claim to be classified as an HCLC.

      Many courts of appeals have resisted the West Oaks interpretation of the

safety claim by applying a different, atextual requirement of an indirect relation to

      v. Riverside panel expressed its skepticism, speculating that it is
      “improbable” that the claimant “could locate a premises liability expert who
      also practiced ‘health care in a field of practice that involves the same type
      of care or treatment as that delivered by’ the defendant hospital.” Williams,
      2014 WL 4259889, at *8. However, since the claim in Williams v. Riverside
      did not implicate any alleged departure “from accepted standards of health
      care,” the TMLA’s special statutory qualifications for an expert witness in a
      suit against a health care provider would not apply to the expert report
      required by section 74.351. See TEX. CIV. PRAC. & REM. CODE
      §§ 74.351(r)(5)(B) & 74.402. Instead, the expert would only have to be “a
      physician who is otherwise qualified to render opinions . . . under the Texas
      Rules of Evidence” on the “causal relationship between the injury, harm, or
      damages claimed and the alleged departure from the applicable standard of
      care.” Id. § 74.351(r)(5)(C).
17
      TEX. CIV. PRAC. & REM. CODE § 74.351(c).


                                          6
health care. In my view, even though this construct may lead to the correct result in

some cases, such as this case, requiring an indirect relationship to health care has

no footing in the statute and causes greater violence to a textual reading of the

TMLA than would result from limiting safety claims to those directly related to

health care.

      I would not have resorted to such an atextual construction of the statute if a

panel of our court had not already joined the other courts of appeals that have done

so. Instead, I would begin with the recognition that the explication of the scope of

the safety claim was not necessary to the result in either West Oaks or Psychiatric

Solutions.18 Both of those cases involved circumstances that the Supreme Court

found to be directly related to health care,19 and that fact already has been


18
      See Mem’l Hermann Hosp. Sys. v. Galvan, 434 S.W.3d 176, 180 (Tex.
      App.—Houston [14th Dist.] 2014, pet. filed) (“Even though it was not
      necessary to the determination of the case, the [Texas West Oaks v.]
      Williams court then addressed whether the plaintiff’s negligence claims were
      health care liability claims because the plaintiff alleged departures from
      accepted safety standards.”); see also Williams, 2014 WL 4259889, at *6
      (“We agree with Galvan that this portion of the opinion is judicial dicta.”).
19
      See Psychiatric Solutions, 414 S.W.3d at 726 (claim alleged that “Palit’s
      health care provider employer violated the standard of health care owed to
      its psychiatric patients”); Tex. W. Oaks, 371 S.W.3d at 182 (“It would blink
      reality to conclude that no professional mental health judgment is required to
      decide” what “protocols and standards” apply to treating and supervising “a
      mental patient in a mental hospital,” and “whether they were in place at the
      time of Williams’ injury.”).


                                         7
expressly invoked by a majority of the Court in Psychiatric Solutions to dismiss

further inquiry into the applicability of the “safety” aspect of the HCLC definition

as “advisory at best.”20

      Moreover, the facts of this case are readily distinguishable from West Oaks

and Psychiatric Solutions. Unlike those precedents, in this case of a distracted

doctor striking a bicyclist with his car, there is no connection to health care or any

claim that implicates a standard of care that requires expert testimony to prove or

refute it.21 For that reason, I would conclude that the facts presented by this case

likely were not anticipated by the Court when it discussed the scope of the safety

claim in West Oaks. As such, and in light of the peculiarity of requiring an expert

report in this case and the plausibility of the alternative interpretation limiting

safety claims to those directly related to health care, I would treat the dicta in West




20
      See Psychiatric Solutions, 414 S.W.3d at 726 & n.2.
21
      See id. at 726 (“because Palit’s allegations implicate a standard of care that
      requires expert testimony to prove or refute it, his claim is an HCLC”); Tex.
      W. Oaks, 371 S.W.3d at 182 (“Expert testimony in the health care field is
      necessary to support Williams’ claims.”).


                                          8
Oaks as “inapplicable and not binding on our facts”22 rather than as a definitive and

indistinguishable statement of “precedential judicial dicta.”23

      Regardless of how the Supreme Court ultimately resolves this challenge of

statutory interpretation, there is a possibility of a better path forward. Even though

the Legislature does not write statutes for the courts’ approval,24 it still could

clarify the TMLA in response to manifest interpretive difficulties. Not only could

this relieve the courts and litigants from the continuing burdens of litigation over

the procedural standards,25 it could also better ensure that the standards applied are

those actually approved by the Legislature, as opposed to a standard reflecting the

courts’ best good-faith effort to implement an opaque statute. Legislatures have the

right to expect courts to faithfully implement laws as enacted. When the words fail,

the Legislature has a corresponding responsibility to provide clarity where it is

22
      Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex. App.—Houston [14th Dist.]
      1999, pet. denied).
23
      Galvan, 2014 WL 295166, at *3; Williams, 2014 WL 4259889, at *6.
24
      See Jaster v. Comet II Const., Inc., No. 12-0804, 2014 WL 2994503, at *20
      (Tex. July 3, 2014) (Hecht, C.J., dissenting).
25
      See, e.g., Loaisiga, 379 S.W.3d at 263–64 (Hecht, J., concurring and
      dissenting) (“disagreements over the Act’s expert report requirement, which
      is merely intended to weed out frivolous claims early on, have resulted in
      protracted pretrial proceedings and multiple interlocutory appeals,
      threatening to defeat the Act’s purpose by increasing costs and delay that do
      nothing to advance claim resolution”).


                                          9
wanting.26 Rather than leaving the difficult work of clarification to the courts,

which have confessed their struggle with the task of reaching consensus about the

meaning of the Act,27 the Legislature could—and, I respectfully suggest, should—

study the historical record of how the Texas Medical Liability Act is being applied

in the courts, evaluate which outcomes do and do not reflect a desirable application

of the statutory scheme, and then amend the statute to more clearly indicate what

kinds of claims are intended to be subject to these special procedures.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Massengale, Brown, and Huddle.




26
      See, e.g., Henry J. Friendly, The Gap in Lawmaking—Judges Who Can’t and
      Legislators Who Won’t, 63 COLUM. L. REV. 787, 792 (1963) (observing the
      dilemma created by a legislature that gives judges “guidance that is defective
      in one way or another, and then does nothing by way of remedy when the
      problem comes to light”). Cf. Exxon Mobil Corp. v. Allapattah Servs., Inc.,
      545 U.S. 546, 565, 125 S. Ct. 2611, 2624 (2005) (in the event of an
      unintended legislative drafting gap, “it is up to Congress rather than the
      courts to fix it”); Reves v. Ernst & Young, 494 U.S. 56, 63, 110 S. Ct. 945,
      950 (1990) (“If Congress erred . . . it is for that body, and not this Court, to
      correct its mistake.”).
27
      See, e.g., Psychiatric Solutions, 414 S.W.3d at 727–31 (Boyd, J.,
      concurring).


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