                                   In The
                             Court of Appeals
               Sixth Appellate District of Texas at Texarkana


                                      No. 06-14-00025-CV



                               CAROLYN WATSON, Appellant

                                               V.

                      GOOD SHEPHERD MEDICAL CENTER, Appellee



                          On Appeal from the County Court at Law #2
                                    Gregg County, Texas
                              Trial Court No. 2013-1958-CCL2




                         Before Morriss, C.J., Moseley and Carter*, JJ.
                               Opinion by Chief Justice Morriss
                            Concurring Opinion by Justice Moseley

_______________________________
*Jack Carter, Justice, Retired, Sitting by Assignment
                                         OPINION
       Once again, we find ourselves on the difficult terrain of trying to determine when, under

the Texas Medical Liability Act (TMLA or Act), a safety claim is a health care liability claim

(HCLC) for which an expert report must be served on the health care provider defendant. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 2014).

       Carolyn Watson accompanied her daughter and grandson to the emergency department of

Good Shepherd Medical Center in Longview (Good Shepherd) in 2012 because the grandson

required emergency medical care. On the trio’s arrival in the emergency department, they were

ushered into a recently mopped triage room where Watson allegedly slipped and fell on the wet

floor, “shattering her patella and necessitating her own emergency surgery.” Watson sued Good

Shepherd for her injuries, alleging that Good Shepherd failed to warn her of the wet floor.

Watson further alleged that “the activity of purposefully placing water onto the floor and leaving

it in a wet condition, coupled with the failure to put up any sign or warn [her] . . . proximately

caused [her] injuries.”

       Good Shepherd sought dismissal under Chapter 74 of the Texas Civil Practice and

Remedies Code on the basis that Watson’s claim was a HCLC and was unsupported by an expert

report served on Good Shepherd as required by the Act. See id. The trial court granted the

motion and dismissed Watson’s suit. Because we conclude that the claim here is not a HCLC,

we reverse the judgment of the trial court.




                                                2
       The determination of whether this claim falls within the purview of the Act is a question

of law and is thus reviewed de novo. Tex. W. Oaks Hosp., LP & Tex. Hosp. Holdings, LLC v.

Williams, 371 S.W.3d 171, 177 (Tex. 2012).

       A Section 74.351 expert report is required in all HCLCs. TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(a). A HCLC is

       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(13) (West Supp. 2014).

       The Texas Supreme Court has determined that the statutory phrase “directly related to

health care” does not refer to “safety.” Williams, 371 S.W.3d at 186. Consequently, “the safety

component of HCLCs need not be directly related to the provision of health care.” Id. Further,

“the lack of a health care relationship between the claimant and the health care provider is not a

barrier to the inclusion of a claim within the Legislature’s definition of health care liability

claims.” Good Shepherd Med. Ctr.–Linden v. Twilley, 422 S.W.3d 782, 785 (Tex. App.—

Texarkana 2013, pet. denied) (citing Williams, 371 S.W.3d at 179).

       In Twilley, this Court determined that a safety claim must have at least an indirect

relationship to health care in order for the claim to be one for health care liability. Id. at 785–86.

We contrasted the facts in Williams with those in Twilley, observing that the safety claims in

Williams “were more closely connected to health care than simply arising in a health care

context” because the claims there implicated safety standards required for working with

                                                  3
potentially violent schizophrenic patients at a mental health hospital. Id. at 786. In contrast,

Twilley was not a recipient of health care at the time of his injury, and his position with the

hospital as director of plant operations did not involve health-care-related judgments or require

him to report to a health care provider. Id. Instead, “[t]he gravamen of Twilley’s claims . . .

[was] unrelated to the provision of health care to the patient population or to anyone else.” Id.

           This Court further observed that, “if every safety claim against a health care provider

were considered a health care liability claim, there would be no need to analyze the nature of the

acts or omissions which caused the alleged injuries” as directed by Williams. Id. at 788; see

Williams, 371 S.W.3d at 176 (“In seeking to distinguish ordinary negligence claims from

HCLCs, the heart of these cases lies in the nature of the acts or omissions causing claimants’

injuries and whether the events are within the ambit of the legislated scope of the TMLA.”).

           In accordance with Twilley, for the claim to be a HCLC, there must be some connection,

even if indirect, between Watson’s safety claim and the provision of health care. Our task,

therefore, is to determine whether Watson’s claim is at least indirectly related to health care, or

whether it is merely a claim of ordinary negligence, essentially untethered from health care.

Because (1) the facts presented here are not governed by Morrison 1 and (2) the gravamen of

Watson’s claim is untethered from health care, the TMLA does not require an expert report.

(1)        Morrison Does Not Apply to the Facts Presented Here

           Morrison involved a nursing home employee who brought a premises liability action

against a nursing home, seeking to recover for her injuries after she slipped and fell in the


1
    Morrison v. Whispering Pines Lodge I, L.L.P., 428 S.W.3d 327, 329 (Tex. App.—Texarkana 2014, pet. filed).
                                                          4
resident shower area, which had recently been mopped by another employee. Morrison, 428

S.W.3d at 329. The primary issue in Morrison was whether the employee’s claim was one for

ordinary negligence, or whether her claim was one for health care, thus necessitating the

production of an expert report in accordance with Section 74.351. Id. at 329–30; see TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a). Citing Williams, we stated that, “in distinguishing

ordinary negligence claims from HCLCs, the court must look to ‘the nature of the acts or

omissions causing claimant’s injuries and whether the events are within the ambit of the

legislated scope of the TMLA.” Morrison, 428 S.W.3d at 330 (quoting Williams, 371 S.W.3d at

176).

        In our analysis of these issues, we analogized the facts of Morrison to those presented in

Omaha Healthcare Center, LLC v. Johnson, 344 S.W.3d 392 (Tex. 2011), in which a nursing-

home resident was bitten by a brown recluse spider and died. Johnson alleged that Omaha

“failed to maintain the premises in a safe condition by failing to inspect the premises, failing to

properly clean the premises, failing to institute proper pest control policies, and failing to prevent

insect and spider infestations.” Id. at 395. The court concluded that Johnson’s claim was a

safety claim directly related to health care and was therefore a health care liability claim. In

arriving at this conclusion, the court recognized that nursing homes “are required to take actions

to provide ‘quality care’ which includes things such as safety of the environment.” Id. (citing

TEX. HEALTH & SAFETY CODE ANN. § 242.001(a)(1), (8) (West 2010)). Moreover, services

provided to nursing home residents include meeting the residents’ fundamental needs. Meeting

residents’ fundamental needs necessarily includes the protection of their health and safety. Id. at

                                                  5
394–95 (citing 40 TEX. ADMIN. CODE ANN. § 19.1701) (West, Westlaw current through 2013);

40 TEX. ADMIN. CODE ANN. § 19.401(b) (West, Westlaw current through 2013)).

       Because Morrison involved a claim against a nursing home, as in Johnson, we reasoned

that Whispering Pines was subject to similar regulation as in that case. Morrison, 428 S.W.3d at

334. “As in Johnson, Whispering Pines was required by Texas law to provide a safe and clean

environment for its residents.” See TEX. HEALTH & SAFETY CODE ANN. § 242.001(a)(1), (8); 40

TEX. ADMIN. CODE ANN. §§ 19.1701, 19.401(b). Id. The nursing home “was attempting to carry

out its legal duty to provide a sanitary environment for its residents” in accordance with state

law. Id. at 334–35. Accordingly, we determined that, “[b]ecause Morrison’s safety claim was at

least indirectly connected to what can be classified as actions involving health care,” her claim

was a HCLC. Id. at 334.

       We do not believe, however, that the nature of Watson’s claim resulting from a fall in the

triage room of the hospital’s emergency department should be controlled by Morrison. Morrison

was a nursing home case focusing on Whispering Pine’s compliance with regulations governing

nursing homes, as these regulations brought Morrison’s claims within the ambit of the TMLA.

“Unlike Twilley, we cannot say Morrison’s safety claim is totally untethered from health care,

since the State of Texas requires Whispering Pines to provide housekeeping services and a safe,

clean, and sanitary environment to its residents.” Id. Nursing home residents, unlike hospital

patients, are generally long-term residents of the facility. As such, the nursing home setting is

fundamentally distinct from that of a hospital. In recognition of this reality, the Legislature—as

recognized in Johnson and in Morrison—has taken steps to ensure that the living environment

                                                6
for such residents meets certain required, minimum standards in order to protect the health,

safety, welfare, dignity, and rights of each resident. Due to the unique status of nursing homes as

residential facilities, we limit the holding of Morrison to the facts presented in that case and

decline to apply it to the current case.

(2)      The Gravamen of Watson’s Claim Is Untethered from Healthcare

         Good Shepherd does not contend that any particular hospital regulations provide a

sufficient nexus to health care to render Watson’s claim one for health care liability. 2 Instead,

Good Shepherd contends that the location of the fall is the key factor in determining whether

Watson’s claim is for health care liability.

         Good Shepherd reasons that its decision to clean the triage room floor is not a simple

decision, because it is one that implicates the discretion of a health care provider. That is,

patients require a clean, infection-free room in which to undergo the triage process. When the

triage room floor is mopped, however, that triage room is taken out of service for a period of

time, due to the wet floor. Or, as in this case, the decision is made to bring the patient into triage

while the floor is still wet. Good Shepherd contends that “the decision to clean the triage room

not only implicates health care because the room is out of service while it is cleaned but also

because it implicates potential medical exposure to patients.” Accordingly, a proper evaluation


2
 Good Shepherd has not suggested any specific regulatory provisions relating to how or when a hospital must mop
its floors. In a case involving state regulations governing the construction and operation of hospitals, the Eighth
Court of Appeals recently rejected the contention that such regulations transformed a visitor’s slip-and-fall claim
into one for health care liability. E. El Paso Physicians Med. Ctr., L.L.C. v. Vargas, No. 08-13-00358-CV, 2014
WL 5794622, at *1 (Tex. App.—El Paso Nov. 7, 2014, pet. filed). In Vargas, the court acknowledged that, even
though the claims may touch upon or implicate hospital licensure regulations . . . Twilley makes clear that the
existence of an on-point safety regulation does not automatically convert a claim into a safety HCLC, nor should it.”
Id. at *5.
                                                         7
of the hospital’s responsibility for a wet floor in the triage area is, according to Good Shepherd,

inseparable from health care.

       In support of this proposition, Good Shepherd argues that similar conduct was sufficient

in Williams to fall within the statutory definition: a hospital physician made a decision regarding

the level of supervision for a psychiatric patient, and the injury to a non-patient implicated the

standards of health care. Williams, 371 S.W.3d at 181–82. We disagree. Williams involved the

medical judgment of a physician. Here, nothing suggests a medical decision was involved in

when or how to mop the floor of the triage room. We reject Good Shepherd’s contention that

Watson’s claim is directly related to health care.

       Alternatively, Good Shepherd takes the position that Watson’s claim is at least indirectly

related to health care. This contention is based on the premise that the decision to remove a

triage room from service for mopping exposes the hospital to health care liability claims in the

circumstance a patient is not quickly triaged. Conversely, the typical slip-and-fall case involves

businesses that do not risk claims for taking a portion of the business out of service for cleaning.

Good Shepherd thus contends this is not a “garden-variety” slip-and-fall case. We also disagree

with this argument. Triage room floors, like all hospital floors, must be regularly mopped; we

see nothing unique about that process. Moreover, Good Shepherd has not cited any instances in

which a hospital has been sued because a triage room was temporarily taken out of service for

the purpose of mopping.

       Good Shepherd next contends that Watson’s claim is at least indirectly related to health

care because patients in a triage room should be protected from harm. That is, an injury could

                                                 8
befall a patient if the triage room has a wet floor. In support of this contention, Good Shepherd

relies on Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527 (Tex. 2011). In Ollie, a

hospital patient slipped and fell on a wet bathroom floor during post-operative confinement. Id.

at 525. The court characterized Ollie’s claim as one that “centers on the failure of [the hospital]

to act with a proper degree of care to furnish a dry floor, warn her of the hazards of a wet

bathroom floor, or some similar failure to act.” Id. at 527. Because Ollie’s action was “a safety

claim directly related to services meeting her fundamental needs [as a patient],” it was a health

care liability claim. Id.

        Because Watson’s claim has nothing to do with having her fundamental needs met by the

hospital, Ollie does not support Good Shepherd’s “locale” argument.                  Good Shepherd

nevertheless contends that (1) the triage room is for patient care, (2) if the triage room is unsafe,

the patient could be injured, (3) if the patient could be injured in the triage room due to a wet

floor, the hospital has failed to meet the patient’s fundamental need for safety, therefore, (4) if a

visitor is injured in an area intended for patient care, the breach of safety standards is sufficiently

related to the provision of health care to render the claim one for health care liability.

        This analysis—premised almost entirely on the location within the hospital where a

patient is expected to receive diagnosis or treatment—is, in our opinion, unworkable and would

lead to inconsistent and illogical results. Under Good Shepherd’s reasoning, a visitor’s injury

claim resulting from a fall in the triage room is one for health care liability, as this is an area

intended for patient care. A visitor who slips and falls on a wet floor in the waiting room just

outside of the triage room would not, however, present a health care liability claim because

                                                  9
patient care does not take place in the waiting room. This type of analysis would result in

procedural difficulties as well, because it potentially calls for the resolution of fact questions in

close cases. The determination of whether a claim is one for health care liability, though, is a

legal question. Perhaps more importantly, this type of analysis tends to blur, rather than clarify,

the distinction between safety claims that are unrelated to health care and those that are indirectly

related to health care. See Twilley, 422 S.W.3d at 785–86.

        Instead of drawing geographical lines within the hospital to determine whether a claim is

one for health care liability, we look to the gravamen of the claim presented as directed by our

high court. Williams, 371 S.W.3d at 178; see Diversicare Gen. Partner, Inc. v. Rubio, 185

S.W.3d 842, 854 (Tex. 2005). That is, we examine the “nature of the acts or omissions causing

claimants’ injuries and whether the events are within the legislated scope of the TMLA.”

Williams, 371 S.W.3d at 176. Here, Watson was injured because the triage room floor was

recently mopped and she was not warned of the floor’s wet condition. As in Twilley, this claim’s

only relation to health care is that “it arose on the premises of a health care provider.” Twilley,

422 S.W.3d at 784. Watson’s allegations present nothing more than an ordinary premises

liability claim.

        Indeed, the majority of our sister courts have, in reliance on Twilley, concluded that

hospital visitor slip-and-fall claims due to wet floors and other obstacles are not health care

liability claims because such safety claims are not even indirectly related to health care. See E.

El Paso Physicians Med. Ctr., L.L.C. v. Vargas, No. 08-13-00358-CV, 2014 WL 5794622, at *6

(Tex. App.—El Paso Nov. 7, 2014, no pet. h.) (because non-patient who was knocked to floor by

                                                 10
hospital’s automatic entrance doors presented personal injury claim in context divorced from

rendition of health care, TMLA did not apply); Williams v. Riverside Gen. Hosp., Inc., No. 01-

13-00335-CV, 2014 WL 4259889, at *7 (Tex. App.—Houston [1st Dist.] Aug. 28, 2014, no pet.

h.) (mem. op.) (following Twilley, holding gravamen of Williams’ claims that she tripped over

extension cord on one occasion and slipped and fell on wet floor on another occasion were

“completely untethered from the provision of health care” and that provision of expert report

would “amount to an exercise in futility”); Rio Grande Reg’l Hosp. v. Salinas, No. 13-13-00557-

CV, 2014 WL 3805141, at *4 (Tex. App.—Corpus Christi, July 31, 2014, pet. filed) (mem. op.)

(following Twilley, holding visitor’s slip-and-fall claim on hospital’s wet floor was not HCLC

because such claim was ‘“completely untethered from health care’” (quoting Twilley, 422

S.W.3d at 788)); Columbia Med. Ctr. of Denton Subsidiary, L.P. v. Braudrick, No. 02-13-

00399-CV, 2014 WL 2144877, at *2 (Tex. App.—Fort Worth May 22, 2014, pet. filed) (mem.

op.) (following Smart and majority of sister courts that have addressed this issue, holding that

hospital visitor who stepped in hole while walking on median in hospital parking lot and fell did

not assert health care liability claim); Weatherford Tex. Hosp. Co., LLC v. Smart, 423 S.W.3d

462 (Tex. App.—Fort Worth 2014, pet. filed) (following Twilley, holding gravamen of hospital

visitor’s claim who slipped on puddle of water in hospital lobby was slip and fall, implicating

“question of whether there should be a difference between a safety claim occurring in the lobby

of a department store, bakery, or lawyer’s office and a safety claim occurring in the lobby of a

health care provider when health care services are not involved”); Methodist Healthcare Sys. of

San Antonio, Ltd., LLP v. Dewey, 423 S.W.3d 516, 519–20 (Tex. App.—San Antonio 2014, pet.

                                               11
filed) (following Mejia and Twilley, holding gravamen of Dewey’s claim, resulting from being

knocked to ground when electronic door closed on him while visiting patient, was not HCLC);

Baylor Univ. Med. Ctr. v. Lawton, 442 S.W.3d 483, 486–87 (Tex. App.—Dallas 2013, pet. filed)

(following Twilley, holding employee’s claim against hospital for injuries sustained when raw

sewage backed up into hospital’s showers and sinks was not HCLC because gravamen of claim

was unrelated to provision of health care; as in Twilley, “it would be difficult, if not impossible,

to find a qualified expert under the statute who was also competent to opine on the relevant

accepted standards of care for plumbing”); Christus St. Elizabeth Hosp. v. Guillory, 415 S.W.3d

900, 902–03 (Tex. App.—Beaumont 2013, pet. filed) (holding that gravamen of Guillory’s claim

for injuries sustained from fall on liquid on floor in hospital hallway “is that the hospital

breached standards of ordinary care to a visitor present in a common area of the hospital, a duty

that is no different than the duties imposed on other businesses that permit visitors to be present

on their premises”); Doctors Hosp. at Renaissance, Ltd. v. Mejia, No. 13-12-00602-CV, 2013

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

claim must ‘“involve a more logical coherent nexus to health care’” than the ‘“simple fact that an

injury occurred on a health care provider’s premises’”) (quoting Twilley, 422 S.W.3d at 788).

       Our conclusion that Watson has not presented a health care liability claim is buttressed by

our holding in Twilley and the holdings of the majority of our sister courts. This conclusion is

also consistent with the rationale underlying the requirement of an expert report in health care

liability cases. The Texas Supreme Court has stated that the purpose of the expert-report

requirement is to “identify frivolous claims and reduce the expense and time to dispose of any

                                                12
that are filed.” Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012).                       The expert-report

requirement is not intended to dispose of claims regardless of their merits. Scoresby v. Santillan,

346 S.W.3d 546, 554 (Tex. 2011). In requiring expert reports, the “Legislature’s goal was to

deter baseless claims, not to block earnest ones.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625,

631 (Tex. 2013). The legislative intent underlying the expert-report requirement is not advanced

by requiring an expert report in simple slip-and-fall cases occurring on hospital premises. See

Salinas, 2014 WL 3805141, at *3 (expert report in premises liability case does not deter

frivolous claims or provide basis to conclude claim has merit) (citing Potts, 392 S.W.3d at 631).

         Because Watson did not present a health care liability claim, dismissing her claims was

error.

         We reverse the judgment and remand this case to the trial court for further proceedings

consistent with this opinion. 3



                                                    Josh R. Morriss, III
                                                    Chief Justice




3
 Because we conclude that Watson’s claim is not a HCLC, we need not address her contention that the expert report
requirement, as applied to her, violates the Texas Open Courts provision of the Texas Constitution.
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                                   CONCURRING OPINION

       One of the great values found in the rule of stare decisis is that people can look to

decisions arising from past situations in order to guide their footsteps in the future. The majority

opinion here is a very scholarly and able attempt to draw a bright distinctive line between a

health care liability claim and a simple “garden-variety” slip and fall case. Unfortunately, the

ambiguity of the legislative acts being construed and the uncertainty of the decisions issued by

the Texas Supreme Court on the particular cases involving the legislation leaves the attorneys

who handle these kind of cases, the trial judges, the appellate courts, the health care providers,

and the populace as a whole scratching their collective heads when attempting to discern the

difference.

       One can hardly deny that if the person who fell in the triage room was the patient (and

not the patient’s grandmother), the claim would almost certainly fall within the category of a

health care liability claim. Thinking that way, the ordinary man might deduce that the bright red

line would surely be the identity of the person who suffers the injury. However, the Legislature

plainly rejected that solution by changing the wording in the statute to “claimant” as opposed to

the word “patient” as had previously been in the law. See TEX. CIV. PRAC. & REM. CODE

§ 74.001(a)(13) (West Supp. 2014); Tex. W. Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171, 179

(Tex. 2012)

       On the other hand, a layman might believe that the existence of a health care liability

claim may hinge on the identity of a person making the decision that resulted in damage. In

other words, if a health care provider made a decision that resulted in damage to a person, then

                                                14
the damage would fall within the category of a health care liability claim. But that would not

really apply because what health care provider makes the decision as to the appropriate time to

call an exterminator to eradicate brown recluse spiders?        Omaha Healthcare Ctr., LLC v.

Johnson, 344 S.W.3d 392, 395 (Tex. 2011).

       One might logically think that geography would have some importance in making such a

decision (This seems to be the position most strongly espoused by Good Shepherd, which also

points out that the decision when to mop the floor of a triage room and when to return that room

to service involves some measure of a decision by a health care provider.). But what about the

hall leading to the triage room? What would be the result if the claimant tripped on bandages

which were carelessly strewn on the floor of the hall by health care providers and not promptly

removed? If the fall takes place precisely in the doorway between the hall and the triage room,

which geographical determination applies? Does it make a difference if the person who tripped

was the person seeking the provision of health care or the care seeker’s grandmother, who

brought the patient there for service?

       This concurring opinion commences with my observation that the majority opinion is

both scholarly and able. It is truly as workmanlike and as precise as the law which it construes

will permit. I can think of no better way—given the status of the legislation and the opinions of

the Texas Supreme Court—to define the issue and to settle the question. However, just about as

good a case can be justified for the opposite result as the outcome set out in the majority opinion.

For the sake of the general public, I would call upon those who have more power than the




                                                15
intermediate appellate courts possess to somehow resolve this question in some way that is easily

discernable. There is a need for a “bright red line” for the public and the profession to employ.



                                                     Bailey C. Moseley
                                                     Justice

Date Submitted:       November 10, 2014
Date Decided:         January 15, 2015




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