Affirmed and Opinion filed May 28, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00479-CV

    BRAZOS PRESBYTERIAN HOMES, INC. D/B/A BAYOU MANOR
      HEALTH-CARE CENTER D/B/A BAYOU MANOR, Appellant
                                       V.

                      VANESSA RODRIGUEZ, Appellee

                   On Appeal from the 133rd District Court
                            Harris County, Texas
                      Trial Court Cause No. 2013-38394

                                OPINION

      A custodian employed by a cleaning company was injured when an elevator
malfunctioned in a nursing home facility where she was working. The custodian
sued the nursing home facility for negligence on a premises liability theory. The
nursing home facility moved to dismiss the custodian’s suit, arguing that it
involved a health care liability claim governed by the Texas Medical Liability Act
and that no expert report had been filed as required. The trial court denied the
motion. Guided by the Supreme Court of Texas’s recent decision in Ross v. St.
Luke’s Episcopal Hospital, No. 13-0439, 2015 WL 2009744 (Tex. May 1, 2015),
we affirm.

                                  BACKGROUND

       Appellant Brazos Presbyterian Homes, Inc. d/b/a Bayou Manor Health-Care
Center d/b/a Bayou Manor (“Bayou Manor”) is a nursing home facility in Harris
County. Appellee Vanessa Rodriguez was an employee of Sodexo, a cleaning and
custodial company that is not a party to this suit. Rodriguez alleges that she was
working for Sodexo as a custodian at Bayou Manor when she stepped into an
elevator on Bayou Manor’s premises. While Rodriguez was in the elevator in
furtherance of her job duties with Sodexo, the elevator dropped suddenly and
without warning from the third floor to the first floor, causing her serious bodily
injuries.

       In June 2013, Rodriguez brought suit against Swettcorp d/b/a/ Elevator
Technical Services and Elevator Transportation Services, Inc., both of whom she
alleged were “common carriers who serviced, inspected, repaired and/or
maintained the elevator at issue.” Several months later, Rodriguez amended her
petition to add Brazos Manor. Rodriguez alleged that she was an invitee at the time
of her injury and that Brazos Manor owed her a duty of care to protect her from
dangerous conditions that were known or that were reasonably discoverable.
Rodriguez claimed that Brazos Manor was negligent in: (1) failing to inspect,
maintain, or service the elevator; (2) failing to properly supervise employees,
agents, or representatives in reference to the elevator; (3) failing to implement
and/or follow proper elevator maintenance and repair policies and procedures; (4)
providing an elevator in an unreasonably dangerous condition; and (5) failing to
remedy and/or warn of the defects which caused the elevator to malfunction.

                                         2
Rodriguez also alleged that Brazos Manor failed to properly inspect its elevators
and invoked the doctrine of res ipsa loquitur.

      Brazos Manor answered and filed a motion to dismiss. In the motion to
dismiss, Brazos Manor asserted that it was a health care institution, Rodriguez had
alleged a health care liability claim, and Rodriguez had failed to produce an expert
report as required under the Texas Medical Liability Act. See generally Tex. Civ.
Prac. & Rem. Code §§ 74.001–.507 (the TMLA). After an oral hearing, the trial
court signed an order denying Brazos Manor’s motion to dismiss on June 2, 2014.
This interlocutory appeal followed.

                     ANALYSIS OF BRAZOS MANOR’S ISSUES

      Brazos Manor contends that the trial court erred by denying its motion to
dismiss because Rodriguez’s claim, at its core, is based on an allegation that
Brazos Manor, a health care provider, failed to ensure her safety on its premises,
and this allegation is sufficient to trigger the TMLA. Because Rodriguez failed to
provide a compliant expert report as required under section 74.351(a) of the
TMLA, Brazos Manor argues that dismissal of her suit was mandatory. In
response, Rodriguez contends that her claims are completely unrelated to the
provision of health care, and the mere fact that they arose on a health care
provider’s premises is insufficient to trigger the TMLA.

                               Standard of Review

      The TMLA defines a “health care liability claim” 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.

                                         3
Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) (emphasis added). At the time
Rodriguez filed suit, the TMLA provided that if a claim fell within this definition,
“a claimant shall, not later than the 120th day after the original petition was filed,
serve on each party or the party’s attorney one or more expert reports . . . .” 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 § 74.351(a)).1 If an expert
report has not been served within the 120-day deadline and the “affected physician
or health care provider” files a motion to dismiss, the trial court must “dismiss[]
the claim with respect to the physician or health care provider, with prejudice to
the refiling of the claim” and award the physician or health care provider
reasonable attorney’s fees and costs of court. Id. § 74.351(b). It is undisputed that
Brazos Manor is a health care institution as defined in the TMLA. See id. §
74.001(a)(11); see also id. § 74.001(a)(12)(A)(vii) (definition of “health care
provider” includes “a health care institution”).

       Appellate courts generally review a trial court’s ruling on a motion to
dismiss under section 74.351 for an abuse of discretion. Rosemond v. Al-Lahiq,
331 S.W.3d 764, 766 (Tex. 2011). However, to the extent that our review involves
a matter of statutory construction, the issue is a legal question we review de novo.
See Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012).
Therefore, in determining whether Rodriguez’s claim is an HCLC governed by the
TMLA, we apply a de novo standard of review. Id.

                     Ross Determines the Disposition of this Case

       While this appeal was pending, the Supreme Court of Texas resolved a split


       1
         For lawsuits commenced on or after September 1, 2013, the TMLA provides that the
operative date is “the 120th day after the date each defendant’s original answer is filed.” See Tex.
Civ. Prac. & Rem. Code § 74.351(a).

                                                 4
among the courts of appeals concerning whether and to what extent claimed
departures from accepted standards of safety by a health care provider must be
related to health care to constitute an HCLC governed by the TMLA. See Ross,
2015 WL 2009744, at *2 (concluding that court had jurisdiction to resolve
inconsistant decisions of the courts of appeals to resolve uncertainty in the law
regarding whether a safety standards-based claim must be related to health care).
Accordingly, we are guided by the Ross court’s interpretation of the scope of the
TMLA and its instructions for analyzing whether a plaintiff’s claim constitutes an
HCLC.

      In Ross, a visitor to a hospital sued the hospital on a premises liability theory
after she slipped and fell near the lobby exit doors. Id. at *1. The hospital moved to
dismiss Ross’s claim, asserting that it was an HCLC and Ross had not filed as
expert report. Id. The trial court granted the hospital’s motion, and this court
affirmed, concluding that it was not necessary for any connection to exist between
health care and the safety standard on which a claim is based in order for the claim
to come within the TMLA. Id.

      On review, the Supreme Court of Texas reversed this court’s judgment,
holding that for a safety-based claim against a health care provider to be an HCLC
“there must be a substantive nexus between the safety standards allegedly violated
and the provision of health care.” Id. at *6. The court explained that “[t]he 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. Acknowledging that “the line between a
safety standards-based claim that is not an HCLC and one that is an HCLC may
not always be clear,” the court articulated seven non-exclusive considerations to
aid in analyzing whether a safety standards-based claim is substantively related to

                                          5
the defendant’s providing of medical or health care and is therefore an HCLC:

      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?
Id.

      Brazos Manor’s brief primarily relies on this court’s prior precedent, but it
also argues that the definition of “health care” in the TMLA “takes on an expanded
meaning in the nursing home context” to include providing residents, staff, and
guests a safe and properly functioning environment. See Omaha Healthcare
Center, LLC v. Johnson, 344 S.W.3d 392, 394–95 (Tex. 2011) (“Part of the
fundamental patient care required of a nursing home is to protect the health and
safety of the residents.”) (citing 40 Tex. Admin. Code § 19.1701); Diversicare
Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 849 (Tex. 2005) (stating that nursing
home services include “meeting the fundamental care needs of the residents”); see
also Tex. Admin. Code § 19.309 (“The [nursing] facility must provide a safe,
                                        6
functional, sanitary, and comfortable environment for residents, staff, and the
public.”); Morrison v. Whispering Pines Lodge I, L.L.P., 428 S.W.3d 327, 334–35
(Tex. App.—Texarkana 2014, pet. pending) (holding that because nursing home
was required by law to provide a safe, clean, and sanitary environment to its
residents, housekeeper’s claim based on slip and fall in an area recently mopped by
another employee was “at least indirectly connected” to healthcare and thus an
HCLC). Based on these authorities, Brazos Manor argues that Rodriguez’s
allegations amount to a claim that Brazos Manor failed to provide her a safe and
properly functioning environment, and therefore her claims are HCLCs governed
by the TMLA.

      We understand Brazos Manor’s argument to be that Rodriguez’s claims are
HCLCs because Brazos Manor, as a nursing home, is charged by law with the duty
to provide a safe, functional environment for residents, staff, and the public. See
Ross, 2015 WL 2009744, at *6. Accepting Brazos Manor’s articulation of its duty
to provide a safe environment generally, we find nothing in this record that shows
how the nursing home’s duty to maintain safe, functioning elevators on its
premises is distinguishable from the duty owed by business owners generally. See
id. at *5 (“A safety standards-based claim does not come within the TMLA’s
provisions just because the underlying occurrence took place in a health care
facility, the claim is against a health care provider, or both.”).

      Brazos Manor does not claim that its duty to provide safe, functioning
elevators was for the purpose of protecting patients; nor does Brazos Manor claim
that the elevator was a patient care area, implicating Brazos Manor’s obligation to
protect persons who require special, medical care. See id. at *6. Even assuming the
likelihood that nursing home patients may use the elevators during the course of
their care at the nursing home, the record contains no support for Brazos Manor’s

                                            7
apparent position that elevator maintenance standards are substantively related to
the provision of health care or patient safety. See id. at *5 (concluding that “safety
standards referred to in the definition [of an HCLC] are those that have a
substantive relationship with the providing of medical or health care”); see also
Diversicare, 185 S.W.3d at 854 (“We do not distinguish Rubio’s health care claims
from premises liability claims ‘simply because the landowner is a health care
provider’ but because the gravamen of Rubio’s complaint is the alleged failure of
Diversicare to implement adequate policies to care for, supervise, and protect its
residents who require special, medical care.”).

      Additionally, at the time of Rodriguez’s injury, she was neither a patient of
the nursing home nor an employee involved in providing or assisting in providing
health care to a patient. See Ross, 2015 WL 2009744, at *6. In contrast, the claims
in both Johnson and Diversicare were based on injuries to patients and were held
to be directly related to, or inseparable from, the provision of health care. See
Johnson, 344 S.W.3d at 395 (holding that claims against a nursing home regarding
a patient’s death allegedly caused by a brown recluse spider bite were safety-based
HCLCs); Diversicare, 185 S.W.3d at 855 (holding that nursing home resident’s
claims against nursing home based on alleged sexual abuse and sexual assault
committed by another resident could be characterized as safety-based based
HCLCs under predecessor statute).

      Brazos Manor also relies on the Morrison case, in which a sister court held
that a housekeeper’s slip and fall claims against a nursing home were safety-based
HCLCs because they were “at least indirectly” connected to healthcare. See 426
S.W.3d at 334–35 (noting that “the State of Texas requires [the nursing home] to
provide housekeeping services and a safe, clean, and sanitary environment to its
residents”). But the Ross court instructs that a “substantive nexus”—not merely an

                                          8
indirect relationship—is required between the safety standards allegedly violated
and the provision of health care. See Ross, 2015 WL 2009744, at *6. And, as the
Ross court explained, “that nexus must be more than a ‘but for’ relationship.” Id. In
other words, the fact that Rodriguez, an employee of a third-party cleaning
company, would not have been injured but for the nursing home’s elevator
malfunction, without more, is insufficient to show a substantive relationship
between the standards she alleged the nursing home violated and its health care
activities for the claim to be an HCLC. Id.

      Finally, the record contains no evidence that the negligence Rodriguez
alleged was based on safety standards arising from professional duties owed by
Brazos Manor as a health care provider or that the elevator was of a specific type
used in the provision of health care. Nor does Brazos Manor point to any evidence
that the provision and maintenance of properly functioning elevators is required to
comply with a safety-related requirement set for health care providers by a
governmental or accrediting authority. See id.

      Weighing the Ross court’s non-exclusive considerations, we conclude that
the record in this case does not show a “substantive nexus” between Rodriguez’s
claims relating to the nursing home’s maintenance of its elevator and Brazos
Manor’s provision of health care. See id. We affirm the trial court’s judgment.




                                       /s/       Ken Wise
                                                 Justice



Panel consists of Justices Christopher, Donovan, and Wise.


                                             9
