      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00817-CV



               Seton Family of Hospitals, d/b/a Seton Medical Center, Appellant

                                                    v.

                                   Beverly J. Haywood, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
        NO. D-1-GN-13-001183, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                              MEMORANDUM OPINION


                This appeal arises from a personal-injury suit against a hospital. In her live pleadings,

the plaintiff, Beverly J. Haywood, alleged that while she was “visiting a patient at Seton Medical

Center,” a Seton employee, acting within the course and scope of employment, “activated an

automatic door, which hit [Haywood] knocking her to the floor, causing personal injuries.”

Haywood further alleged that “[a]t the time of the incident, [she] was not a patient of Seton Medical

Center, and was not receiving medical care from [Seton]” and that the employee’s “act of negligence

was not committed while rendering any medical services.” Haywood sought damages from Seton

under a general negligence theory. Contending that Haywood’s suit was “a cause of action against

a health care provider . . . for . . . other claimed departure from accepted standards of . . . safety” so

as to constitute a “health care liability claim” (HCLC) under the Texas Medical Liability Act

(TMLA), Seton moved to dismiss the suit based on Haywood’s failure to serve the expert report that
the TMLA requires of an HCLC claimant.1 The district court denied the motion, and Seton appeals

that order.2 We will affirm.

                  Both Seton’s motion and its appeal predate the Texas Supreme Court’s recent

decision in Ross v. St. Luke’s Episcopal Hospital.3 In that case, the plaintiff, Lezlea Ross, had

visited a hospital and, while departing the facility through its lobby, slipped and fell in an area near

the exit doors where the floor was being cleaned and buffed.4 Ross subsequently sued the hospital,

seeking personal-injury damages under a premises-liability negligence theory.5 The hospital moved

to dismiss Ross’s suit for failure to serve a TMLA expert report, arguing (like Seton here) that

Ross’s claims were “for . . . other claimed departure from accepted standards of . . . safety.”

Availing itself of the opportunity to resolve confusion among lower courts, the supreme court

clarified that “for a safety standards-based claim to be an HCLC there must be a substantive nexus

between the safety standards allegedly violated and the provision of health care.”6 “The pivotal

issue,” the court explained, “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.”7



        1
            See Tex. Civ. Prac. & Rem. Code §§ 74.001(a)(13), .351.
        2
            See id. § 51.014(a)(9).
       3
            No. 13-0439, 2015 Tex. LEXIS 361 (Tex. May 1, 2015).
       4
            Id. at *2.
       5
            Id.
       6
            Id. at *17–18.
       7
            Id. at * 18–19.

                                                   2
It is not enough, in other words, merely that the defendant is a health care provider or that the alleged

injury-producing conduct occurred in a health care setting.8

                  The supreme court also provided the following “non-exclusive considerations” to help

guide the inquiry:


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

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

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

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

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

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

        7.        Did the alleged negligence occur in the course of the defendant’s taking
                  action or failing to take action necessary to comply with safety-related
                  requirements set for health care providers by governmental or accrediting
                  agencies?9




        8
             See id. at *18 (citing Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012)).
        9
             Id. at *19–20.

                                                    3
Applying this analysis to the record in Ross, the supreme court deemed it “clear that the answer to

each [consideration] is ‘no.’”10 It explained:


        The record does not show that the cleaning and buffing of the floor near the exit
        doors was for the purpose of protecting patients. Nor does the record reflect that the
        area where Ross fell was one 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. Ross was not seeking or receiving health care, nor was she a
        health care provider or assisting in providing health care at the time she fell. There
        is no evidence the negligence alleged by Ross was based on safety standards arising
        from professional duties owed by the hospital as a health care provider. There is also
        no evidence that the equipment or materials used to clean and buff the floor were
        particularly suited to providing for the safety of patients, nor does the record
        demonstrate that the cleaning and buffing of the floor near the exit doors was to
        comply with a safety-related requirement set for health care providers by a
        governmental or accrediting authority.11


“Under this record,” the court concluded, “Ross’s claim is based on safety standards that have no

substantive relationship to the hospital’s providing of health care, so it is not an HCLC [and] . . . she

was not required to serve an expert report to avoid dismissal of her suit.”12

                  Ross compels the same conclusion here. The record before the district court—which

consisted only of Haywood’s live pleadings, the material portions of which we have already

quoted—does not reflect that the Seton employee opened the automatic door in the course of

performing tasks for the purpose of protecting patients from harm; that the location of the incident

was a place where Seton’s duties to protect patients would have been implicated; that Haywood was



        10
             Id. at *20.
        11
             Id. at *20–21.
        12
             Id. at *21.

                                                   4
in the process of seeking or receiving health care or providing or assisting in its provision (to the

contrary, it is undisputed that she was merely visiting the facility at the time); that Seton’s alleged

negligence was based on safety standards arising from professional duties it owed as a health care

provider; that the automatic doors were a type used in providing health care; or that the automatic

door was opened in the course of Seton taking action or failing to take action necessary to comply

with safety-related requirements set for health care providers by governmental or accrediting

agencies.13 On this record, Haywood’s claim “is based on safety standards that have no substantive

relationship to the hospital’s providing of health care.”14 The district court did not err or abuse its

discretion in denying Seton’s dismissal motion.

                We affirm the district court’s order.



                                               __________________________________________

                                               Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: July 29, 2015




       13
           Although the fact does not appear in the record, Seton asserts that the incident occurred
near the entrance to an emergency room. Even if we were to consider that assertion in the analysis,
that circumstance, in itself, would not change our result.
       14
            Ross, 2015 Tex. LEXIS 361, at *21.

                                                  5
