                           NUMBER 13-15-00118-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

BAY AREA HEALTHCARE GROUP, LTD.,                                         Appellant,
d/b/a CORPUS CHRISTI MEDICAL CENTER,


                                         v.

BRENDA MARTINEZ,                                                          Appellee.


                  On appeal from the 148th District Court
                        of Nueces County, Texas.


                        MEMORANDUM OPINION
             Before Justices Rodriguez, Garza and Longoria
                Memorandum Opinion by Justice Garza
      This is an appeal challenging a trial court’s ruling under the expert report

requirement of the Texas Medical Liability Act (“TMLA”). See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351 (West, Westlaw through 2015 R.S.). Appellant, Bay Area Healthcare

Group, Ltd., d/b/a Corpus Christi Medical Center (“BAHG”), argues by three issues that
the trial court erred in denying its motion to dismiss a suit filed by appellee, Brenda

Martinez. Because we find that Martinez’s claim is not a health care liability claim

(“HCLC”), we affirm.

                                             I. BACKGROUND

        On January 24, 2013, Martinez sued Corpus Christi Medical Center (“CCMC”)

alleging the following facts:

        On or about May 23, 2011, Brenda Martinez, an employee for Defendant,
        was assigned, by her supervisor, trash and linen duty, which is not her usual
        and customary duty. She held the position of housekeeper. Trash and linen
        duty requires heavy lifting of many times, wet linens and heavy and
        overhead lifting of large trash bags. On this day, Brenda Martinez worked
        a full shift lifting heavy loads, including overhead lifting of trash bags and
        wet linens. On this day, there was a housekeeping audit and no help was
        available. At the end of her shift in the afternoon, Ms. Martinez went home
        and that evening began to feel soreness in her shoulder with pain in her left
        arm later that evening. She reported the injury upon returning to work.

The petition alleged that CCMC was a non-subscriber under the Texas Workers’

Compensation Act and was liable for negligence.1 In particular, Martinez alleged that

CMCC was negligent by: (1) failing “to provide [her] with a safe work environment”; (2)

failing to “provide assistance” to her; (3) failing “to implement and enforce safety policies”;

(4) failing “to properly train”; (5) failing “to properly supervise”; and (6) failing “to provide

a safe place to work.”

        BAHG filed an answer which generally denied the allegations and included a

verified denial stating that there is a “defect in the parties.” In particular, BAHG asserted

that CCMC “is an improper party to this lawsuit as it was not Plaintiff’s employer at the



        1   The petition also stated: “In the event any parties are misnamed or not included herein, it is
Plaintiff’s contention that such was a ‘misnomer’ and/or such parties are/were ‘alter egos’ of parties named
herein. . . . In the event that the true parties are misidentified, Plaintiff hereby asserts reliance upon the
doctrine of misidentification.”

                                                      2
time of her alleged injuries and did not own or control the premises.” Instead, BAHG

asserted that “[Martinez]’s employer, and the entity that operates the business where

[Martinez] worked, was at the time in question (and still is) Bay Area Healthcare Group,

Ltd. d/b/a Corpus Christi Medical Center.” On February 25, 2013, Martinez filed an

amended petition naming the defendant as “Bay Area Healthcare Group, Ltd. d/b/a

Corpus Christi Medical Center” and making the same allegations as in her original

petition.

        On June 26, 2013, Martinez filed expert reports authored by Paul Genecin, M.D.,

and Gerardo Zavala, M.D., purportedly supporting her claims. Genecin stated in his

report, in part, as follows:

        It is my opinion that [BAHG] by and through its agents and
        employees . . . did breach the standard of care by not properly training
        Brenda Martinez in lifting techniques, not properly assessing her job task
        capabilities and not providing assistance to her when assigned a different
        job duty of the heavy lifting and transferring of trash and linens on May 23,
        2011, which produce[d] neck and shoulder injuries on this date. These
        administrators and supervisors did not provide Brenda Martinez with a safe
        work environment on a day when the CEO was touring the hospital. Upon
        reporting the injury, she was not immediately provided with medical care to
        reduce the worsening of her injuries and had to seek healthcare on her own.

        Over eighteen months later, BAHG moved to dismiss Martinez’s suit for failing to

comply with the TMLA’s expert report requirement. See id. In particular, the motion to

dismiss alleged that the expert reports were untimely filed. The motion sought dismissal

as well as the award of attorney’s fees. See id. § 74.351(b)(1). Martinez filed a response

arguing that: (1) the expert reports were, in fact, timely filed; and (2) even if they were

not timely filed, BAHG’s motion should be denied because Martinez’s claim is not an

HCLC.

        After a hearing, the trial court denied BAHG’s motion to dismiss. This interlocutory


                                             3
appeal followed. See id. § 51.014(a)(9) (West, Westlaw through 2015 R.S.) (authorizing

immediate appeal from interlocutory order that “denies all or part of the relief sought by a

motion under Section 74.351(b)”).

                                             II. DISCUSSION

        BAHG contends by its first issue that Martinez’s claim is an HCLC; by its second

issue that Martinez failed to timely file an expert report; and by its third issue that the trial

court erred in denying its motion to dismiss and for attorney’s fees.

A.      Applicable Law and Standard of Review

        Under the version of the TMLA applicable to this case, a plaintiff seeking damages

in an HCLC was required to serve a medical expert report upon each party’s attorney no

later than the 120th day after the date the original petition was filed. See Act of May 18,

2005, 79th Leg., R.S., ch. 635, 2005 Tex. Gen. Laws 1590 (amended 2013) (current

version at TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)).2 The statute defines an HCLC

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). If a plaintiff asserting an HCLC fails

to timely file a compliant expert report and the defendant files a motion to dismiss, the




        2 The statute has since been amended to provide that the 120-day period begins on “the date each
defendant's original answer is filed.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West, Westlaw through
2015 R.S.). The prior version of the statute is applicable to Martinez’s suit. See Act of June 14, 2013, 83rd
Leg., R.S., ch. 870, 2013 Tex. Sess. Law Serv. ch. 870, § 3(b) (providing that amendments apply only to
actions commenced on or after September 1, 2013).

                                                     4
trial court must grant the motion and award reasonable attorney’s fees to the defendant.

Id. § 74.351(b).

       Whether a claim is an HCLC is a matter of statutory construction, which is a purely

legal question that we review de novo. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d

171, 177 (Tex. 2012). To determine whether a cause of action falls under the statute’s

definition of an HCLC, we examine the claim’s underlying nature. Yamada v. Friend, 335

S.W.3d 192, 196 (Tex. 2010). Artful pleading does not alter that nature. Id. In making

the determination, we consider the entire court record, including the pleadings, motions

and responses, and relevant evidence properly admitted. Loaisiga v. Cerda, 379 S.W.3d

248, 258 (Tex. 2012).

       BAHG alleged in its motion to dismiss that Martinez’s claim is an HCLC under the

“safety prong” of the statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13)

(providing that a cause of action against a health care provider for “departure from

accepted standards of . . . safety” is an HCLC). “Safety” is not defined in the statute but

is commonly defined as “the condition of being untouched by danger; not exposed to

danger; secure from danger, harm or loss.” Diversicare Gen. Partner, Inc. v. Rubio, 185

S.W.3d 842, 855 (Tex. 2005).

       In Ross v. St. Luke’s Episcopal Hospital, the Texas Supreme Court held that, to

qualify as an HCLC, a claim alleging departure from safety standards need not be “directly

related” to health care, but it must have a “substantive relationship with the providing of

medical or health care.” 462 S.W.3d 496, 504 (Tex. 2015). That is, there must be a




                                            5
“substantive nexus between the safety standards allegedly violated and the provision of

health care.” Id.3

       [A]lthough the mere location of an injury in a health care facility or in a health
       care setting does not bring a claim based on that injury within the TMLA so
       that it is an HCLC, the fact that the incident could have occurred outside
       such a facility or setting does not preclude the claim from being an HCLC.
       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.

       The Ross Court provided the following non-exclusive list of seven factors to

consider when determining whether a safety claim “is substantively related to the

defendant’s providing of medical or health care and is therefore an HCLC”:

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

       2.        Whether the injury occurred 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.        Whether the claimant was in the process of seeking or receiving
                 health care at the time of the injury;

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

       5.        Whether the alleged negligence was 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, whether it was a type used in providing health care; and

       7.        Whether the alleged negligence occurred in the course of the
                 defendant’s taking action or failing to take action necessary to



       3   Ross was handed down after BAHG’s motion to dismiss was filed and heard in the trial court.

                                                    6
              comply with safety-related requirements set for health care providers
              by governmental or accrediting agencies.

Id. at 505.

B.     Analysis

       Referencing the seven Ross factors, BAHG argues on appeal that Martinez’s claim

is an HCLC because:

       [Martinez] was, at the time of her alleged injury, “performing tasks with the
       purpose of protecting patients from harm” (removing unsanitary trash and
       dirty linens from patient areas and rooms); the “injuries occur[red] in a place
       where patients might be during the time they were receiving care” (patient
       units); the “obligation of the provider to protect persons who require special
       care” (the Hospital's patients) was implicated; Martinez was “assisting in
       providing health care” (by keeping the patient areas in a sanitary condition);
       “the alleged negligence [was] based on safety standards arising from
       professional duties owed by the health care provider” (the duty to provide a
       healthy environment for inpatients); and [“]the alleged negligence occur[red]
       in the course of defendant’s taking action . . . to comply with [governmental]
       safety-related requirements.” (Texas Health & Safety Code Sections
       241.026(a) and 241.029(a)(1) and Texas Administrative Code Section
       1331(b)). This accounts for five (5) of the seven (7) considerations listed in
       the Ross case (and one of the seven—whether Martinez was a patient—
       does not even apply to this case).

We will address each of the factors in turn.

       As to the first two factors, BAHG contends that Martinez was injured while

“removing unsanitary trash and dirty linens from patient areas and rooms” and that her

injuries therefore were sustained while “performing tasks with the purpose of protecting

patients from harm” and “in a place where patients might be during the time they were

receiving care.” See id. We disagree. Martinez’s petition did not allege that her injuries

occurred in “patient areas or rooms.” According to Genecin’s expert report, Martinez was

injured while “lifting several heaps of pounds of trash and linen and pushing the linen cart

down the halls.” There is no dispute that Martinez’s injuries were sustained at the

hospital, but the record does not support a finding that the injuries were sustained “in a

                                               7
place where patients might be during the time they were receiving care.”4 See id.

Moreover, while the removal of trash and dirty linens is certainly done at least in part for

the benefit of patients, it is not done to protect patients from harm. See id. Consideration

of the first two factors therefore weighs against a finding that the claim is an HCLC.

        Next, BAHG argues that the third Ross factor “does not even apply to this case.”

But it is undisputed that Martinez was not, in fact, “in the process of seeking or receiving

health care” at the time of her injury. See id. Accordingly, consideration of this factor

weighs against a finding that the claim is an HCLC.

        As to the fourth factor, BAHG contends that Martinez was “assisting in providing

health care” by “keeping the patient areas in a sanitary condition.” We disagree. Even

under the extremely expansive definition of “health care” provided in the TMLA, it is

doubtful that the removal and transportation of trash and laundry can be considered

“assisting in providing health care.”              See TEX. CIV. PRAC. & REM. CODE ANN.

§ 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.”). Essentially,

BAHG’s argument is that Martinez’s activities—the removal and transportation of trash

and laundry—ought to be considered “assisting in providing health care” because they

took place in “patient areas.” But that is precisely what the supreme court warned against

in Ross. See 462 S.W.3d at 504–05 (stating that “the mere location of an injury in a health




        4 In a deposition excerpt attached to BAHG’s motion to dismiss, Martinez stated that, on the day in
question, she started her trash collection in the intensive care unit of the hospital. However, she did not
state that she suffered her injuries there.

                                                    8
care facility or in a health care setting” does not make a claim an HCLC). Consideration

of this factor weighs against a finding that the claim is an HCLC.

       Regarding the fifth factor, BAHG argues that Martinez’s claim is based on the

hospital’s “duty to provide a healthy environment for inpatients.” But BAHG does not

establish that such duty—i.e., the duty to remove and transport trash and dirty linens—is

a “professional dut[y]” owed by BAHG by virtue of its status as a health care provider.

See id. at 505 (finding that there was no evidence that the hospital’s alleged negligence

“was based on safety standards arising from professional duties owed by the hospital as

a health care provider” (emphasis added)). Instead, as Martinez notes on appeal, she

was not hurt by anything that could have posed a risk of harm to a patient, because

patients are never put in the position of having to lift and transport trash and dirty linens.

As to the sixth factor, the only “instrumentality” involved in Martinez’s injuries, if any, was

the cart she used to transport dirty linens. This is not the type of instrumentality used in

providing health care. Our consideration of these factors weighs against a finding that

the claim is an HCLC.

       Finally, we consider the seventh Ross factor. BAHG alleges that Martinez’s claim

was based on its alleged failure to “take action necessary to comply with [governmental]

safety-related requirements.” See id. It cites the following provisions of the Texas

Hospital Licensing Law (“THLL”):

       Sec. 241.026. RULES AND MINIMUM STANDARDS.

       (a)    The [Texas Board of Health] shall adopt and enforce rules to further
              the purposes of this chapter. The rules at a minimum shall address:

              (1)    minimum requirements for staffing by physicians and nurses;

              (2)    hospital services relating to patient care;


                                              9
             (3)    fire prevention, safety, and sanitation requirements in
                    hospitals;

             (4)    patient care and a patient bill of rights;

             (5)    compliance with other state and federal laws affecting the
                    health, safety, and rights of hospital patients; and

             (6)    compliance with nursing peer review under Subchapter I,
                    Chapter 301, and Chapter 303, Occupations Code, and the
                    rules of the Texas Board of Nursing relating to peer review.

TEX. HEALTH & SAFETY CODE ANN. § 241.026 (West, Westlaw through 2015 R.S.).

      Sec. 241.029. POLICIES AND PROCEDURES                       RELATING TO
      WORKPLACE SAFETY.

      (a)    The governing body of a hospital shall adopt policies and procedures
             related to the work environment for nurses to:

             (1)    improve workplace safety and reduce the risk of injury,
                    occupational illness, and violence . . . .

Id. § 241.029 (West, Westlaw through 2015 R.S.). BAHG also cites “Texas Administrative

Code Section 1331(b),” possibly referring to section 133.142 of title 25 of the

administrative code, regulating hospital licensing, which provides:

      (a)    Safety committee. Each hospital shall have a multidisciplinary safety
             committee. The hospital chief executive officer (CEO) shall appoint
             the chairman and members of the safety committee.

             (1)    Safety officer. The CEO shall appoint a safety officer who is
                    knowledgeable in safety practices in health care facilities.
                    The safety officer shall be a member of the safety committee,
                    and shall carry out the functions of the safety program.

             (2)    Safety committee meetings. The safety committee shall meet
                    as required by the chairman, but not less than quarterly.
                    Written minutes of each meeting shall be retained for at least
                    one year.

             (3)    Safety activities.

                    (A)    Incident reports. The safety committee shall establish
                           an incident reporting system which includes a
                           mechanism to ensure that all incidents recorded in

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                           safety committee minutes are evaluated, and
                           documentation is provided to show follow-up and
                           corrective actions.

                    (B)    Safety policies and procedures. Safety policies and
                           procedures for each department or service shall be
                           developed, implemented and enforced.

                    (C)    Safety training and continuing education. Safety
                           training shall be established as part of new employee
                           orientation and in the continuing education of all
                           employees.

             (4)    Written authority. The authority of the safety committee to
                    take action when conditions exist that are a possible threat to
                    life, health, or building damage, shall be defined in writing and
                    approved by the governing body.

      (b)    Safety manual. Each department or service shall have a safety
             policy and procedure manual within their own area that becomes a
             part of the overall facility safety manual.

      (c)    Emergency communication system. An emergency communication
             system shall be provided in each facility. The system shall be self-
             sufficient and capable of operating without reliance on the building's
             service or emergency power supply. Such system shall have the
             capability of communicating with the available community or state
             emergency networks, including police and fire departments.

25 TEX. ADMIN. CODE § 133.142 (West, Westlaw through 40 Tex. Reg. 6792).

      Martinez’s petition alleges in part that BAHG was negligent by failing “to implement

and enforce safety policies.” Section 241.029(a) of the THLL requires hospitals to, among

other things, “adopt policies and procedures related to the work environment for nurses

to . . . improve workplace safety.” TEX. HEALTH & SAFETY CODE ANN. § 241.029(a)(1).

Further, the cited regulation requires a hospital’s safety committee to develop, implement

and enforce safety policies and procedures. 25 TEX. ADMIN. CODE § 133.142(A)(3)(B).

Therefore, in this regard, BAHG is correct that “the alleged negligence occurred in the




                                           11
course of [its] taking action or failing to take action necessary to comply with

[governmental] safety-related requirements.” See Ross, 462 S.W.3d at 505.

        However, the gravamen of Martinez’s claim is BAHG’s alleged failure to provide a

safe work environment.            More specifically, her principal allegation is that BAHG

negligently instructed her to perform specific tasks—“lifting heavy loads, including

overhead lifting of trash bags and wet linens”—which were not part of her “usual and

customary” duties as BAHG’s employee. BAHG directs us to no statute or regulation,

and we find none, requiring a hospital to direct an employee to perform unusual, physically

demanding tasks over the employee’s objection.5 Further, section 241.029(a) of the

THLL concerns safety of the “work environment for nurses,” and Martinez is not a nurse.

See TEX. HEALTH & SAFETY CODE ANN. § 241.029(a)(1). We conclude that consideration

of the seventh Ross factor weighs against a finding that the claim is an HCLC.

        BAHG argues that Genecin’s expert report shows that Martinez’s claim had a

substantive nexus to health care, because the report repeatedly referred to medical

standards of care and standards of care applicable to hospitals. Further, Genecin’s report

stated that, “[u]pon reporting the injury, [Martinez] was not immediately provided with

medical care to reduce the worsening of her injuries and had to seek healthcare on her

own.” Genecin concluded that this “denial of medical care” constituted a breach of the

standard of care applicable to BAHG. BAHG argues that this is “a classic[] straight-up

medical malpractice allegation.” We disagree. Martinez claimed in her petition that

BAHG was negligent in part by “failing to provide assistance” after she was injured, but




        5 According to Martinez’s deposition testimony, she told her supervisor that she “didn’t want to do”

the assigned tasks “because it was too heavy for me to do it.”

                                                    12
that claim does not necessarily implicate BAHG’s duties as a health care provider.

Rather, as Martinez notes on appeal, “any employer who refused Martinez the opportunity

to see a doctor would be in breach, not just employers who happen to have doctors in the

building.” In any event, to the extent that Martinez asserts that BAHG failed to provide

her with medical care after her injury, that is not the gravamen of her claim; indeed, she

sets forth no facts in her petition that would substantiate such an assertion. We do not

believe that the content of Genecin’s report renders Martinez’s claim an HCLC.

        Considering all seven factors set forth in Ross, and in light of the entire record, we

conclude that Martinez’s claim does not “implicate [BAHG]’s duties as a health care

provider, including its duties to provide for patient safety.” See id. Instead, the claim

alleges a departure from standards of safety that do not have a “substantive relationship

with the providing of medical or health care.” See id. Accordingly, the claim is not an

HCLC and the trial court did not err in denying BAHG’s motion to dismiss. We overrule

BAHG’s first and third issues.6

                                              III. CONCLUSION

        The judgment of the trial court is affirmed.



                                                             DORI CONTRERAS GARZA,
                                                             Justice

Delivered and filed the
19th day of November, 2015.




        6  BAHG contends by its second issue that Martinez’s expert reports were untimely because the
120-day period for filing an expert report should have started with the date Martinez filed her original petition,
notwithstanding the apparent misnomer. In light of our conclusion that Martinez’s claim is not an HCLC,
this issue is moot; accordingly, we do not address it. See TEX. R. APP. P. 47.1.

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