Affirmed and Memorandum Opinion filed May 14, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00318-CV

  LANCE THAI TRAN, DDS, PA D/B/A BROADWAY FAMILY DENTAL
                       CARE, Appellant
                                        V.
                          MARIA CHAVEZ, Appellee

                    On Appeal from the 189th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2013-26591

                 MEMORANDUM                      OPINION
      A dental assistant sued her employer for negligence after she slipped and fell
on a wet floor in the dental office where she worked. The employer moved to
dismiss the 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

      Appellee Maria Chavez worked as a dental assistant for appellant Lance
Thai Tran, DDS, PA, d/b/a Broadway Family Dental Care (“Tran”). Chavez
alleges that while she was performing her usual duties, co-workers spilled water in
the break area of the dental office in the course of changing the bottle to the water
cooler. A co-worker mopped the spilled water and then continued to mop in the
adjoining equipment sterilization area which was dirty. No “wet floor” or other
warning signs were posted to alert co-workers that the floor was wet, and no mat or
other type of protective covering was used. Chavez, unaware of the wet floor,
walked into the area to retrieve a piece of equipment and slipped and fell on the
wet floor. Chavez was transported by ambulance to a hospital where she was
diagnosed with a fractured knee cap and taken to surgery.

      In May 2013, Chavez sued Tran, a non-subscriber under the Texas Workers’
Compensation Act, for negligence on a premises-liability theory. Tran filed a
general denial, affirmative defenses, and a request for disclosure. That same day,
Tran also served discovery on Chavez, including interrogatories, a request for
admissions, and a request for production. Tran later filed special exceptions, which
the trial court granted.

      In an amended petition, Chavez alleged that Tran was negligent in training
and supervising staff members regarding the maintenance of floors in the work
area, maintaining a work area that did not have a slip hazard, maintaining a work
area that contained a hazardous condition, and failing to warn that a hazardous
condition had been created by the spilling of water and/or the failure to completely
mop and dry the wet area. Several months later, Tran responded by filing a motion
to dismiss, alleging that Chavez had alleged a health care liability claim against a
health care provider and had failed to produce an expert report as required under

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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 Tran’s motion
to dismiss on April 22, 2014. This interlocutory appeal followed.

                           ANALYSIS OF TRAN’S ISSUES

      On appeal, Tran argues that the trial court erred by denying the motion to
dismiss because Chavez’s claim alleges a departure from accepted standards of
safety by a health care provider and is therefore a health care liability claim
(HCLC) under section 74.001(a)(13) of the TMLA. Tran also contends that the
trial court erred by failing to enforce the procedural requirement of a 120-day
expert report pursuant to section 74.351(a) and by failing to award mandatory
attorney’s fees pursuant to section 74.351(b) of the TMLA.

      In response, Chavez contends that her claim is a simple negligence claim—
the same as if she had slipped and fallen on spilled water as an employee at Wal-
Mart or McDonalds—that is totally “untethered” from the rendition of any health
care. Chavez also asserts that Tran has waived the right to assert that her claim is
an HCLC by immediately initiating discovery in the case, waiting almost a year
before making such an assertion, and actively participating in discovery.

                               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.


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Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) (emphasis added). At the time
Chavez 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. Tex. Civ. Prac. & Rem. Code §
74.351(b). It is undisputed that Tran is a health care provider as defined in the
TMLA. See id. § 74.001(a)(12).

       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 Chavez’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
among the courts of appeal concerning whether and to what extent claimed


       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).

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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 v.
St. Luke’s Episcopal Hosp., 2015 WL 2009744, at *2 (concluding that court had
jurisdiction to resolve inconsistent decisions of the courts of appeals that created
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 an
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 the defendant’s providing of

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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.

      In this case, Chavez, Tran’s employee, alleges that she slipped and fell on a
wet floor as the result of Tran’s negligence in failing to properly train and
supervise staff members concerning the maintenance of floors that become wet,
failing to maintain a safe work area, and failing to warn of a hazardous condition
created by a wet floor. Tran argues generally, in reliance on this court’s prior
precedent, that Chavez’s claim alleges departures from accepted standards of
safety by a health care provider and therefore is an HCLC. But Tran does not assert
any connection between Chavez’s safety-related claims and the provision of health
care other than to assert that Tran is a health care provider. The Ross court
expressly instructs that “[a] safety standards-based claim does not come within the
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TMLA’s provisions just because the underlying occurrence took place in a health
care facility, the claim is against a heath care provider, or both.” Id. at *5 (citing
Loaisiga v. Cerda, 379 S.W.3d 248, 257 (Tex. 2012)).

      Moreover, applying the Ross court’s non-exclusive considerations, we
conclude that no substantive nexus exists between the safety standards Tran
allegedly violated and the provision of health care. The record does not show that
mopping the wet floor in the dental office’s work area was done for the purpose of
protecting patients from harm; indeed, Chavez alleges that she slipped and fell in a
work area where patients are generally not allowed. And although Chavez was
Tran’s employee, Chavez does not allege that she was providing or assisting in
providing health care to a patient at the time she was injured.

      Nor does the record indicate that Tran’s alleged negligence concerning a
dangerous floor condition on the premises implicates safety standards arising from
professional duties Tran owed as a health care provider. Likewise, the record does
not suggest that the mop used by a co-worker was of a type particularly used in
providing health care to patients. Finally, nothing in the record demonstrates that
Tran’s alleged negligence occurred in the course of taking action or failing to take
action necessary to comply with a requirement set for health care providers by
governmental or accrediting agencies. See id. at *6.

      Concluding that the record in this case does not demonstrate a substantive
nexus between the safety standards Chavez alleged Tran breached—standards for
maintaining floors in employee work areas—and the provision of health care, we
affirm the trial court’s order denying Tran’s motion to dismiss.




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                                   CONCLUSION

      We overrule Tran’s issues and affirm the trial court’s order denying Tran’s
motion to dismiss for failure to produce an expert report.




                                       /s/       Ken Wise
                                                 Justice


Panel consists of Justices McCally, Brown, and Wise.




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