                IN THE SUPREME COURT OF TEXAS
                                          444444444444
                                             NO . 14-0410
                                          444444444444



                                SYLVIA GALVAN, PETITIONER,
                                                   v.


                MEMORIAL HERMANN HOSPITAL SYSTEM , RESPONDENT

           4444444444444444444444444444444444444444444444444444
                            ON PETITION FOR REVIEW FROM THE
                  COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
           4444444444444444444444444444444444444444444444444444

                                           PER CURIAM

       At issue in this case is whether a visitor’s claim against a hospital arising from a slip and fall

inside the hospital is a health care liability claim under the Texas Medical Liability Act. See TEX .

CIV . PRAC. & REM . CODE ch. 74. Because the record does not demonstrate a substantive relationship

between the safety standards the visitor alleges the hospital breached and the provision of health

care, we conclude that the claim is not a health care liability claim. We reverse the court of appeals’

judgment and remand the case to the trial court for further proceedings.

       Sylvia Galvan sued Memorial Hermann Southwest Hospital, alleging that she was injured

when she slipped on water on the floor. She alleged she was visiting a relative in the hospital and

was walking from the pharmacy to her relative’s room when she encountered the water coming from

a restroom. The hospital filed a motion to dismiss, asserting that Galvan’s claim was a health care
liability claim (HCLC)1 and she failed to serve an expert report as required by the Texas Medical

Liability Act (the Act). See TEX . CIV . PRAC. & REM . CODE § 74.351(a), (b) (requiring dismissal of

an HCLC if a claimant fails to timely serve an expert report). In its motion, the hospital cited Texas

West Oaks Hospital, L.P. v. Williams, 371 S.W.3d 171, 186 (Tex. 2012), where we held that when

a claimant asserts a safety standards-based claim against a health care provider, those standards need

not be directly related to the provision of health care in order for the claim to be an HCLC under the

Act. The hospital urged that Galvan’s allegations fell within the common meaning of “safety” and

her claim was therefore an HCLC.

       The trial court denied the hospital’s motion. The court of appeals reversed. 434 S.W.3d 176

(Tex. App.—Houston [14th Dist.] 2014). The appeals court interpreted Williams to mean that

“health care liability claims based upon alleged departures from accepted safety standards must

involve an alleged departure from standards for protection from danger, harm, or loss, but need not

involve an alleged departure from standards that involve health care or are directly or indirectly

related to health care.” Id. at 181-82 (citing Williams, 371 S.W.3d at 183-86). Therefore, the court

concluded, because Galvan’s claim was based on an alleged departure from accepted standards of

safety, it was an HCLC. Id. at 186.



       1
           Under the Texas Medical Liability Act an 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.

       T EX . C IV . P RAC . & R EM . C O D E § 74.001(a)(13).

                                                                 2
        After the court of appeals issued its opinion, we considered a factually and procedurally

similar claim against a hospital. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496 (Tex. 2015).

In that case, Lezlea Ross, a hospital visitor, slipped and fell in the hospital lobby near the exit doors.

Id. at 499. She did not file an expert report; the hospital moved for dismissal on the basis that Ross’s

claim was an HCLC; the trial court granted the motion; and the court of appeals affirmed. Id. We

reversed, concluding that a safety standards-based claim against a health care provider is an HCLC

only if there is a “substantive nexus” between the “safety standards allegedly violated and the

provision of health care.” Id. at 504. We set out the following non-exclusive considerations:

        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. at 505. Under the record in Ross, we concluded the answer to each of the considerations was

“no.” Id. Therefore, Ross’s claim was based on safety standards that had no substantive relationship

to the hospital’s provision of health care, so it was not an HCLC. Id.


                                                    3
       Galvan argues that our holding in Ross is dispositive. She asserts that her claim is based on

safety standards that have no relationship—much less a substantive one—to the hospital’s providing

of medical or health care. The hospital asserts that the safety standards at issue have a substantive

relationship to health care and patient safety because the purpose of those safety standards is to

maintain infection control according to governmental and industry standards. Given the record

before us, we agree with Galvan.

       The hospital sets out four of the Ross factors that it claims are presented here: (1) the

hospital’s alleged negligence occurred in the course of performing tasks to protect patients from

harm, (2) the injuries occurred in a place where patients might be during the time they were receiving

care, (3) the alleged negligence was based on safety standards arising from professional duties owed

by the hospital, and (4) the alleged negligence occurred in the course of the hospital’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.

       As for the hospital’s claim that the injuries occurred in a place where patients might be when

they were receiving care, the hospital argues that this injury occurred in a hallway and patients must

regularly traverse the hallways on their way to hospital destinations. Patients can also be found, the

hospital claims, wandering the hospital hallways while waiting for test results. Galvan’s pleadings

did not allege where the water was, other than that it was in a hallway; she argued in the court of

appeals and argues in this Court that she fell in the hospital’s main lobby. The record, however,

contains no evidence of where Galvan fell. And nothing in the record supports the hospital’s



                                                  4
contention that patients regularly—or even occasionally—traversed the area where Galvan fell,

regardless of whether it was in the main lobby or a hallway.

        In arguing that the other Ross factors apply, the hospital asserts that dealing with water

coming from a restroom in a hospital setting requires compliance with numerous federal and state

regulations that tie infection control to health care and patient safety. The hospital states that health

care-associated infections pose a threat to all patients, many of whom are already susceptible to

infection. Further, the hospital asserts that the hospital environment plays a significant role in

maintaining patient safety and remaining in compliance with infection-control requirements.

        The hospital points to multiple requirements that it asserts establish a substantive nexus

between the gravamen of Galvan’s claim—failing to remove water on the floor that posed a slip and

fall hazard, or to warn of it—and the provision of health care. It posits that under federal regulations,

hospitals accepting Medicare funds must meet certain standards, including providing a sanitary

environment and having an active program for preventing, controlling, and investigating infections

and communicable diseases. 42 C.F.R. § 482.1, .42. The hospital also refers to a guideline from the

U.S. Department of Health and Human Services Centers for Disease Control and Prevention (CDC)

that recommends the preferred methods for disinfecting and sterilizing medical devices and for

cleaning and disinfecting health care facilities. U.S. DEP ’T OF HEALTH AND HUMAN SERVS. CTRS.

FOR DISEASE CONTROL AND PREVENTION , Guideline for Disinfection and Sterilization in Healthcare


Facilities (2008) [hereinafter CDC Guideline]. The hospital asserts that according to the guideline,

hospital floors are often contaminated and the guideline contains appropriate sanitation practices.

The Agency for Healthcare Research and Quality also published a summary regarding health

                                                   5
care-associated infections stating that the transmission of pathogens is affected by effective cleaning

and preventing contamination of surfaces. U.S. DEP’T OF HEALTH & HUMAN SERVS. AGENCY FOR

HEALTHCARE RESEARCH & QUALITY , Pub’n No. 13-0053-EF, Understanding the Role of Health

Care Facility Design in the Acquisition and Prevention of HAIs (2013). The hospital also points out

that the Environmental Protection Agency encourages hospitals to use microfiber mops rather than

conventional wet loop mops because the microfiber mops eliminate bacteria and microorganisms

more efficiently and effectively. U.S. ENVTL. PROT . AGENCY , Using Microfiber Mops in Hospitals

(Nov. 2002). Finally, the hospital points to State regulations requiring the Texas Board of Health

to adopt and enforce rules addressing safety and sanitation requirements. TEX . HEALTH & SAFETY

CODE § 241.026(a)(3).

        The hospital states, despite the absence of evidence, that there “is no doubt infection control

is applicable to the issue in this lawsuit involving a hospital hallway.” Infection control in a hospital

is related to the provision of health care. But the record here does not show that infection-control

activities and regulatory mandates would have been the hospital’s reason for cleaning the water from

its floor for safety purposes. For example, the CDC guideline the hospital references states that

contact with noncritical surfaces, which includes floors, carries little risk of causing an infection in

patients or staff. CDC Guideline 29. However, the guideline specifies that surfaces contaminated

with “blood and other potentially infectious materials” should be disinfected, and the guideline

discusses the manner of applying disinfectants and lists chemical disinfectants and their uses. Id.

at 11, 30, 38. And despite the hospital’s logic, the record does not indicate that the water Galvan

slipped on was a “potentially infectious material” or was in an area where it posed a hazard to

                                                   6
patients or persons seeking health care. Hospital standards for floor maintenance “may also be the

same standards many businesses generally have for maintaining their floors.” Ross, 462 S.W.3d at

503. Here, the record does not show that the hospital’s duty regarding water on the floor implicated

infection-control standards. See id. at 505 (“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 . . . .”).

        As for the other regulations and recommendations the hospital references that do not

explicitly address infection control, such as recommendations that hospitals use microfiber mops

rather than conventional wet loop mops and State regulations requiring the Texas Board of Health

to adopt and enforce safety and sanitation rules, the record does not show that these have a

substantive relationship to the safety standards underlying Galvan’s claim. Galvan claimed that the

hospital failed to clean up or warn her of the wet floor, regardless of the type of mop it used or

whether the Texas Board of Health has adopted rules addressing safety and sanitation requirements.

        Under the record in this case, no substantive nexus is shown to exist between the safety

standards Galvan alleges the hospital violated and the provision of health care. See id. at 504

(providing that the fact that a visitor would not have been injured but for her falling inside a hospital

is not a sufficient relationship between the standards allegedly violated and the provision of health

care for the claim to be an HCLC).

        We grant the petition for review. Without hearing oral argument, see TEX . R. APP . P. 59.1,

we reverse the court of appeals’ judgment and remand the case to the trial court for further

proceedings consistent with this opinion.

OPINION DELIVERED: December 4, 2015


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