Opinion issued June 17, 2014.




                                    In The

                             Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-13-00154-CV
                          ———————————
    MEMORIAL HERMANN HOSPITAL SYSTEM D/B/A MEMORIAL
         HERMANN SOUTHWEST HOSPITAL, Appellant
                                      V.
                       JEWELL HAYDEN, Appellee


                  On Appeal from the 333rd District Court
                           Harris County, Texas
                     Trial Court Case No. 2010-24879


                        MEMORANDUM OPINION
     In this interlocutory appeal, 1 Memorial Hermann Hospital System d/b/a

Memorial Hermann Southwest Hospital appeals a trial court’s order denying its


1
     See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2013).
motion to dismiss Jewell Hayden’s slip-and-fall claim arising out of an injury she

suffered while she was assisting a patient at the hospital. The trial court held that

Memorial Hermann waived its right to seek dismissal based on Hayden’s failure to

file an expert report as required for a health care liability claim. 2 Memorial

Hermann contends that the trial court abused its discretion by finding waiver and

by denying its motion to dismiss. We affirm.

                                    Background

      In April 2010, Jewell Hayden filed this lawsuit against Memorial Hermann,

alleging she was seriously injured at the hospital as a result of its failure to

properly treat her “very weak and sick” friend whom she had brought there.

Hayden maintained that her friend “became violently ill while . . . in the

Emergency Room” and the hospital failed to provide her friend with necessary

“physical help and medical attention,” because it “did not have anyone to assist”

her friend. Despite having seen a doctor and several nurses coming in and out of


2
      In 2013, the legislature amended section 74.351(a) of the Texas Civil Practice and
      Remedies Code to require each health care liability claimant to serve an expert
      report “not later than the 120th day after each defendant’s original answer is
      filed.” See Act of May 26, 2013, 83rd Leg. R.S., ch. 870, § 2 (emphasis added).
      The new provision applies to all suits filed after September 1, 2013. Hayden filed
      her claims in 2010 and, therefore, the former section 74.351 still applies. See Act
      of May 18, 2005, 79th Leg., R.S., ch. 635, §1, 2005 TEX. GEN. LAWS 1590
      (amended 2013) (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 74.351
      (West Supp. 2013)). Under the earlier version, health care liability claimants must
      serve an expert report on each health care provider defendant no later than 120
      days after filing their initial petition. Id.


                                           2
the friend’s waiting room, Hayden was forced to help her friend to the public

restroom, where the friend fell on her. Memorial Hermann moved to dismiss,

arguing that Hayden had asserted a health care liability claim but had failed to

provide an expert report as required by section 74.351 of the Texas Medical

Liability Act (TMLA).

      In October 2010, while Memorial Hermann’s motion to dismiss was

pending, Hayden amended her petition. She continued to allege the same

background facts; however, she abandoned her original complaint that her friend

fell on her and that the hospital breached its duty by failing to provide medical and

physical assistance to her friend. Instead, she alleged that “[w]hile attempting to

assist” her friend in the restroom in the hospital emergency room, they both slipped

and fell. Hayden asserted that the hospital failed to provide “adequate maintenance

to ensure the premises was free from slip hazards as a reasonable premises owner

would provide,” to clean the floor of the premises, or to provide anti-slip mats or

rugs “in an area that was known to be wet.” She further alleged that the hospital

failed to “provide adequate staffing resources” to ensure a safe environment.

Hayden simultaneously filed a response to Memorial Hermann’s pending motion

to dismiss, arguing that her amended claim did not constitute a health care liability

claim. Relying on Marks v. St. Luke’s Episcopal Hospital, 319 S.W.3d 658, 664

(Tex. 2010) and Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 854



                                         3
(Tex. 2005), Hayden insisted that Memorial Hermann’s acts and omissions did not

constitute a health care liability claim because they were not inseparably related to

the rendition of health care services. Memorial Hermann’s pending motion had

already been set for the trial court to rule on it, but Memorial Hermann passed on

the hearing.

      For the next 22 months, Memorial Hermann did not reset its motion to

dismiss. Instead, both parties conducted discovery and prepared for trial. As part of

that discovery, Memorial Hermann “propounded multiple sets of written

discovery” and “participated in ten fact and expert witness depositions.” During a

July 2011 deposition, Hayden testified that she accompanied her friend to the

emergency room where the friend was seen by the doctor and a nurse and that the

nurse was told that the friend was unable to use a bed pan. According to Hayden,

the friend was “extremely weak” and had to get up from the room in which he was

waiting and “walk past the nurses’ station” to get to the public bathroom. Hayden’s

friend walked by himself to the bathroom at least three times and lost control of his

bowels in the hallway before he reached the bathroom. During his third trip to the

bathroom, Hayden noticed that her friend was in the bathroom “too long,” and she

knocked on the door to ask whether he needed help. When he did not answer,

Hayden entered the bathroom and recalled seeing feces on the floor around the

toilet stall occupied by her friend. Hayden was reaching to get some paper towels



                                         4
when she slipped and fell. Hayden, who was seventy years old, fell and broke both

of her legs. One month after Hayden’s deposition, Memorial Hermann moved for

summary judgment on Hayden’s premises liability claim. As part of its motion,

Memorial Hermann noted that Hayden had simply “recast” her health care liability

claim “as a premises liability lawsuit.” The trial court denied summary judgment.

Memorial Hermann did not reset its motion to dismiss for hearing.

      Approximately one year later, on June 29, 2012, the Texas Supreme Court

issued Texas West Oaks Hospital, L.P. v. Williams, holding that a hospital

employee who sued the hospital for the hospital’s failure to provide a safe work

environment after the employee was assaulted by a patient was required to comply

with the expert-report requirement of TMLA section 74.351. See TEX. CIV. PRAC.

& REM. CODE § 74.351; Tex. W. Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171,

175 (Tex. 2012). Six weeks later, which was four days before the trial court

actually called the case to trial, Memorial Hermann filed a second motion to

dismiss Hayden’s suit, contending that under Williams Hayden was required—but

failed—to serve a section 74.351 expert report.

      In response, Hayden argued that there was “no commonality of fact”

between Williams and her claims. Hayden further contended that Memorial

Hermann’s delay in pursuing its second motion to dismiss and its extensive trial

preparation waived any right to dismissal.



                                         5
      Memorial Hermann excused its failure to pursue its motion based on its pre-

Williams good faith belief that Hayden’s amended petition did not state a health

care liability claim subject to the expert report requirement. Hayden does not

dispute that statement. Indeed, the parties later stipulated that Memorial Hermann

“believed based on the case law at that time, that [the amended p]etition did not

assert a health care liability claim and, therefore a motion to dismiss for failure to

file an expert report was groundless.”

      The trial court found, however, that Memorial Hermann had waived its right

to seek dismissal for failure to file an expert report and denied Memorial

Hermann’s motion to dismiss. The trial court also found that Hayden’s claim

constitutes a health care liability claim, a determination that Hayden does not

contest.3

      Memorial Hermann filed a timely notice of appeal from the trial court’s

interlocutory order denying the motion to dismiss. See TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(a)(10) (West Supp. 2013).




3
      In Ross v. St. Luke’s Episcopal Hospital, the court of appeals held that a premises
      liability slip-and-fall claim against a hospital is a “health care liability claim” to
      which the expert-report requirement applies. No. 14–12–00885–CV, 2013 WL
      1136613 (Tex. App.—Houston [14th Dist.] Mar. 19, 2013, pet. filed) (mem. op.).



                                            6
                                Standard of Review

      We review a trial court’s ruling on a motion to dismiss a health care liability

lawsuit pursuant to chapter 74 of the Texas Civil Practice and Remedies Code for

an abuse of discretion. See TEX. CIV. PRAC.    AND   REM. CODE ANN. § 74.351; see

also Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875

(Tex. 2001) (reviewing dismissal under section 74 predecessor statute for abuse of

discretion); Runcie v. Foley, 274 S.W.3d 232, 233 (Tex. App.—Houston [1st Dist.]

2008, no pet.) (reviewing chapter 74 dismissal for abuse of discretion). We defer

to a trial court’s factual findings if they are supported by evidence, but where there

is no factual dispute, only the legal question of whether the conduct constitutes

waiver remains. See Am. Transitional Care Ctrs., 46 S.W.3d at 875; Crosstex

Energy Servs., L.P. v. Pro Plus, Inc., No. 12–0251, 2014 WL 1258307, at *8 (Tex.

Mar. 28, 2014) (“Generally, waiver presents a question of fact, but ‘when the facts

and circumstances are admitted or clearly established, the question [of waiver]

becomes one of law.’”) (citation omitted); Jernigan v. Langley, 111 S.W.3d 153,

156–57 (Tex. 2003) (“[W]hen the surrounding facts and circumstances are

undisputed, the question [of waiver] becomes one of law.”). When a reviewing

court conducts an abuse-of-discretion review, the issue of whether a party waived

certain procedural rights—which requires a balancing of “a multitude of potential

factors”—constitutes “a question of law for the court, and we do not defer to the



                                          7
trial court on questions of law.” Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex.

2008). Neither party disputes Memorial Hermann’s conduct or the surrounding

factual circumstances. Therefore, whether Memorial Hermann waived its right to

seek dismissal is a question of law, which we review de novo. See Crosstex

Energy, 2014 WL 1258307, at *8; Perry Homes, 258 S.W.3d at 598 n.102;

Jernigan, 111 S.W.3d at 156–57.

                                      Waiver

      Memorial Hermann contends that it did not relinquish a known right by

waiting until August 16, 2012—over 670 days after Hayden amended her petition

to raise a slip-and-fall claim—to move for dismissal for failure to serve a

section 74.351(b) expert report.

A.    Waiver defined

      Section 74.351 of the Texas Civil Practice and Remedies Code requires a

party who alleges a health care liability claim to serve an expert report on every

physician or health care provider against whom liability is asserted. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351; see Heriberto Sedeno, P.A. v. Mijares, 333

S.W.3d 815, 822–23 (Tex. App.—Houston [1st Dist.] 2010, no pet.). The plaintiff

must file the expert report within 120 days of filing the initial petition. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a). If a timely expert report is not filed, the

affected health care provider may file a motion to dismiss, and the court must


                                         8
dismiss the claim with prejudice. Id. § 74.351(b). A defendant can waive his right

to seek dismissal for failure to file an expert report. Jernigan, 111 S.W.3d at 156.

      Waiver is the intentional relinquishment of a known right or intentional

conduct inconsistent with claiming that right. Id. at 156–57; see also Crosstex

Energy, 2014 WL 1258307, at *6. “The elements of waiver include (1) an existing

right, benefit, or advantage held by a party; (2) the party’s actual knowledge of its

existence; and (3) the party’s actual intent to relinquish the right or intentional

conduct inconsistent with the right.” Ulico Cas. Co. v. Allied Pilots Ass’n, 262

S.W.3d 773, 778 (Tex. 2008); see also Alli v. Wachovia Bank, N.A., No. 01–11–

00800–CV, 2013 WL 772946, at *4 (Tex. App.—Houston [1st Dist.] Feb. 28,

2013, no pet.) (mem. op.); TeleResource Corp. v. Accor N. Am., Inc., No. 02–12–

00475–CV, 2014 WL 975736, at *5 (Tex. App.—Fort Worth Mar. 13, 2014, pet.

filed); In re Estate of Lynch, 395 S.W.3d 215, 222 (Tex. App.—San Antonio 2012,

pet. denied).4


4
      This court and others have stated that the second element may be satisfied by
      constructive knowledge. See, e.g., Forged Components, Inc. v. Guzman, 409
      S.W.3d 91, 103 (Tex. App.—Houston [1st Dist.] 2013, no pet.); In re C.H.C., 396
      S.W.3d 33, 43 (Tex. App.—Dallas 2013, no pet.); Nash v. Beckett, 365 S.W.3d
      131, 144 (Tex. App.—Texarkana 2012, pet. denied); Furmanite Worldwide, Inc. v.
      NextCorp, Ltd., 339 S.W.3d 326, 334 (Tex. App.—Dallas 2011, no pet.); Fed.
      Deposit Ins. Corp. v. Attayi, 745 S.W.2d 939, 946 (Tex. App.—Houston [1st Dist.]
      1988, no writ); see also Perry Homes, 258 S.W.3d at 602–3 (Johnson, J.,
      concurring in part, dissenting in part) (stating elements of waiver include “an
      existing right, benefit, or advantage held by a party . . . and the party’s actual or
      constructive knowledge of its existence . . . .”). “Constructive knowledge is a
      substitute in the law for actual knowledge.” CMH Homes, Inc. v. Daenen, 15

                                            9
      In Jernigan, a medical malpractice case involving a late-filed challenge to

the adequacy of an expert report, the Court considered whether the defendant had

waived his right to seek dismissal. Whether a party has waived his rights largely

depends on the party’s intent; an implied intent to waive through a party’s actions

“must be clearly demonstrated by the surrounding facts and circumstances.”

Jernigan, 111 S.W.3d at 156. When the party charged with waiver says or does

nothing inconsistent with the intent to rely on a right, there is no waiver. Id.

However, inaction may establish waiver if it is for so long a period that it shows an

intent to yield a known right. Id. at 157.

      There is no deadline to file a motion to dismiss for failure to timely serve

section 74.351 expert reports. Jernigan, 111 S.W.3d at 156; see also Heriberto

Sedeno, P.A., 333 S.W.3d at 823–24; Obstetrical & Gynecological Assocs., P.A. v.

McCoy, 283 S.W.3d 96, 103 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).

Thus, Memorial Hermann’s more than 670-day delay in pursuing it motion to

dismiss did not, based upon timing alone, waive its right to dismissal. See

Jernigan, 111 S.W.3d at 157; Heriberto Sedeno, P.A., 333 S.W.3d at 823, 825

(delaying 912 days held not waiver). Waiver cannot be “based solely on the length

of delay”; rather, waiver occurs when a party acts in such a way that it


      S.W.3d 97, 102 (Tex. 2000). Constructive knowledge is “knowledge that one
      using reasonable care or diligence should have, and therefore that is attributed by
      law to a given person.” BLACK’S LAW DICTIONARY 950 (9th ed. 2004).


                                             10
intentionally relinquishes a right or intentionally is not claiming it. In re Universal

Underwriters, 345 S.W.3d 404, 408 (Tex. 2011) (considering waiver for failure to

invoke arbitration clause); see Crosstex, 2014 WL 1258307, at *8 (“We will not

find waiver where a person ‘says or does nothing inconsistent with an intent to rely

upon such right.’” (quoting Jernigan, 111 S.W.3d at 156)). “In other words, while

the time period may be instructive in interpreting the parties’ intentions, it alone is

not the standard by which courts determine” whether waiver has occurred. In re

Universal Underwriters, 345 S.W.3d at 408. Before we address whether Memorial

Hermann’s conduct, in addition to its 670-day delay, was inconsistent with

claiming a known right, we consider Memorial Hermann’s contention that it did

not have a known right to obtain dismissal and that such a pleading would have

been groundless before Williams was decided.

B.    Memorial Hermann had a known right to seek dismissal

      Memorial Hermann contends that before Williams “the law did not subject

slip and falls by a hospital visitor to the [expert report] requirements of Chapter

74.” Therefore, before Williams, Memorial Hermann believed it had, at most, only

“a potential, theoretical, or arguable right,” but not a known right to obtain a

dismissal for Hayden’s failure to file an expert report in a slip-and-fall case.

Hayden responds that the Court’s holding in Williams “did not change” the law; it




                                          11
merely “clarified its interpretation” of a statute that had existed since 2003, “long

before . . . Hayden filed her claim.”

      A party cannot waive a hypothetical right—it must be a “right actually

known.” Ulico, 262 S.W.3d at 778. Stated differently, a party cannot waive a right

that does not exist at the time. Discovery Operating, Inc. v. Baskin, 855 S.W.2d

884, 887 (Tex. App.—El Paso 1993, no writ).

      But Memorial Hermann had more than a hypothetical right before Williams;

regardless of whether it anticipated that it would prevail on its motion to dismiss, it

had a right to seek dismissal. Memorial Hermann not only had that right, it

exercised that right before passing on a hearing on its motion. To limit the rights

that may be waived only to those where the law clearly establishes an ability to

prevail is to demand too much.

      A party has a right to pursue various legal strategies and in choosing one

over another, the party must still bear the consequences of his decision. For

example, the enforceability of an arbitration clause, forum-selection clause, or

appraisal clause may not be clearly established, but the party may nonetheless

waive its right to invoke those clauses. See, e.g., Perry Homes, 258 S.W.3d at 593–

94 (concluding waiver of right to arbitration); In re Universal Underwriters, 345

S.W.3d at 411 (considering waiver of appraisal clause); In re ADM Investor Servs.,

Inc., 304 S.W.3d 371, 374 (Tex. 2010) (“A party waives a forum-selection clause



                                          12
by substantially invoking the judicial process to the other party’s detriment or

prejudice.”).

      Memorial Hermann contends that it should not be penalized for not asserting

a defense it subjectively believed had no basis under the law at the time. But

Memorial Hermann’s subjective beliefs about the status of the law before the

Williams holding is not the issue. Rather, the issue is whether it would have had a

reasonable basis—that is, one that would not have been groundless—for seeking

dismissal of Hayden’s claims at the time.

      Memorial Hermann argues, based on Ross v. St. Luke’s Episcopal Hospital,

that the Williams result could not have been reasonably anticipated. No. 14–12–

00885–CV, 2013 WL 1136613, at *2 (Tex. App.—Houston [14th Dist.] Mar. 19,

2013, pet. filed) (mem. op.) (“Ross likely never imagined that, under the Texas

Supreme Court’s construction . . . the Texas Medical Liability Act would swallow

her garden-variety slip and fall case. But it has.”). This objective-sounding

argument is closer to the mark. But, to be more precise, the issue is whether a

motion asserting that the law required dismissal of Hayden’s slip-and-fall claim

would have been groundless before Williams, not whether it reasonably could have

been expected to prevail. TEX. R. CIV. P. 13. Groundlessness is an objective inquiry

that examines whether such a motion would have had “no basis in law or fact” and

was “not warranted by good faith argument for the extension, modification, or



                                        13
reversal of existing law.” Id. (defining groundless and permitting counsel to file

pleading when she believes “after reasonable inquiry the [pleading] is not

groundless and brought in bad faith or groundless and brought for purpose of

harassment.”); Harrison v. Harrison, 363 S.W.3d 859, 863 (Tex. App.—Houston

[14th Dist.] 2012, no. pet.) (“To determine if a pleading was groundless, the trial

court uses an objective standard: did the party and counsel make a reasonable

inquiry into the legal and factual basis of the claim?” (citation omitted)).5 Cf. Tex.

Disciplinary Rules Prof’l Conduct R. 3.01, cmt. 1, reprinted in TEX. GOV’T CODE

ANN., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R. art. X, § 9) (noting

law is never static and that advocates must account for “the law’s ambiguities and

potential for change”).

      The law before Williams—which Memorial Hermann was presumed to

know 6—did not dictate that an amended motion to dismiss would be groundless.

Two months before Hayden amended her original petition, the hospital defendant




5
      In contrast, whether a pleading is brought in bad faith or for purposes of
      harassment involves a subjective inquiry. Parker v. Walton, 233 S.W.3d 535, 540
      (Tex. App.—Houston [14th Dist.] 2007, no pet.); see also Thielemann v. Kethan,
      371 S.W.3d 286, 294 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
6
      See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 n.3 (Tex.
      1990); Stewart v. Tex. Lottery Com’n, 975 S.W.2d 732, 735–36 (Tex. App.—
      Corpus Christi 1998, no pet.); Gabaldon v. Gen. Motors Corp., 876 S.W.2d 367,
      369 (Tex. App.—El Paso 1993, no writ).


                                         14
in Williams made this argument, 7 which Memorial Hermann later adopted, and no

one suggested that the Williams health care provider’s argument was groundless.8

7
      See Petition for Review at *3, Tex. W. Oaks Hosp., L.P. v. Williams, 371 S.W.3d
      171 (Tex. 2012) (No. 10–0603); see also Reply to Response to Petition for Review
      at *1–7, Tex. W. Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012) (No.
      10–0603).
8
      We note that it is still unsettled whether Williams mandates that all slip-and-fall
      claims be treated as health care liability claims. While Memorial Hermann argues
      that pre-Williams, “the law did not subject slip and falls by a hospital visitor to the
      requirements of Chapter 74,” case law following Williams reflects courts’ abiding
      disagreement about whether slip-and-fall claims at a medical facility constitute
      health care liability claims. Compare Methodist Healthcare Sys. v. Dewey, 423
      S.W.3d 516, 520 (Tex. App.—San Antonio 2014, pet filed.) (concluding patient
      visitor’s claim that hospital’s electronic doors malfunctioned and caused him to
      fall and break his hip was straightforward premises-liability claim and not health
      care claim because it was “completely untethered from health care”), and
      Weatherford Tex. Hosp. Co. v. Smart, 423 S.W.3d 462, 467–68 (Tex. App.—Fort
      Worth 2014, pet. filed) (holding hospital patient visitor claim that he slipped and
      fell on puddle in lobby not health care claim because “gravamen of Smart’s claim
      [was] a slip-and-fall, implicating the 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” and “totally unrelated to
      the provision of health care services.”), with Mem’l Hermann Hosp. Sys. v.
      Galvan, No. 14–13–00120–CV, 2014 WL 295166, at *10 (Tex. App.—Houston
      [14th Dist.] Jan. 28, 2014, no pet. h.) (holding that premises liability claim by
      hospital visitor arising from slip and fall on water coming from men’s restroom
      constituted health care liability claim because, under Williams, claims based on
      alleged departure from accepted safety standards for protection from danger, harm,
      or loss are sufficient to constitute health care liability claim and departure need not
      be directly or indirectly related to health care), and Ross, 2013 WL 1136613, at *1
      (holding slip-and-fall premises claim by patient visitor constituted health care
      liability claim because under Williams, “a connection between the act or omission
      and health care is unnecessary” and “[a]n allegation pertaining to safety, standing
      alone and broadly defined, is sufficient.”). These cases demonstrate that claims
      arising from a slip-and-fall at a hospital may or may not be treated as a health care
      liability claim. Yet the right to pursue that result is clear, as it was pre-Williams.
      The test for being a “known legal right” cannot be whether a motion will succeed,
      but whether a motion would be groundless. Cf. Tex. Disciplinary Rules Prof’l

                                            15
Memorial Hermann could have argued—as the health care provider did in

Williams—that health care liability claims include any claims of departure from

safety standards, including claims brought by a non-patient. See Williams, 371

S.W.3d at 186.9

      Memorial Hermann’s initial motion to dismiss would not have been legally

groundless even after Hayden amended her petition. A court is not bound by the

legal theories in a plaintiff’s pleadings in determining whether a claim is a health

care liability claim. Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527

(Tex. 2011). The “focus in determining whether claims come under the TMLA is

not the status of the claimant, but the gravamen of the claim or claims against the

health care provider.” Williams, 371 S.W.3d at 178. The focus is “on the facts

underlying the claim, not the form of, or artfully-phrased language in, the

plaintiff’s pleadings describing the facts or legal theories asserted.” Loaisiga v.

      Conduct R. 3.01, cmt. 1, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app.
      A (West 2013) (Tex. State Bar R. art. X, § 9) (noting that “the law is not always
      clear and never is static. Accordingly, in determining the scope of advocacy,
      account must be taken of the law’s ambiguities and potential for change.”).
      Otherwise, Memorial Hermann could continue to not pursue a motion to dismiss
      even after Williams given the current split in case law.
9
      The health care provider in Williams was not alone in believing that the TMLA
      might reach premises liability claims that did not directly involve patient care. See
      Paula Sweeney, Medical Malpractice in Texas, 2010, State Bar of Tex. Prof. Dev.
      Program, Advanced Medical Malpractice Course, 130–31 (2010) (asserting “that
      virtually all conduct occurring on the premises of a health care provider, or
      involving health care defendants, equates to health care” and observing that “[a]
      host of attempts to evade 4590i have failed.”).


                                           16
Cerda, 379 S.W.3d 248, 255 (Tex. 2012) (citing Yamada v. Friend, 335 S.W.3d

192, 196–97 (Tex. 2010)) (emphasis added); see Diversicare, 185 S.W.3d at 847,

854.

       Hayden did not allege that she fell while walking through a waiting room or

a common area. The “gravamen” of her claim is different than a slip-and-fall

“occurring in the lobby of a department store, bakery, or lawyer’s office,” and is

different than a “safety claim occurring in the lobby of a health care provider when

health care services are not involved.” Weatherford Tex. Hosp. Co. v. Smart, 423

S.W.3d 462, 467 (Tex. App.—Fort Worth 2014, pet. filed) (construing Williams).

Hayden fell while attempting to physically assist a “violently ill” and “very weak”

patient to a bathroom while he was undergoing health care treatment in the

emergency room of a hospital. She even alleged that the hospital failed to “provide

adequate staffing resources” to ensure a safe environment—a not uncommon

medical malpractice claim. Hayden’s allegations asserted a causal link between

Hayden’s injury and the level of competence of the hospital staff, implying that

understaffing compromised her safety while visiting the hospital. See, e.g.,

Diversicare, 185 S.W.3d at 845 (concluding that complaint, among others, that

health care provider failed “to budget for, hire, and train a sufficient number of

qualified direct health care staff” was health care claim). These assertions are not




                                        17
“totally unrelated to the provision of health care services.” Weatherford, 423

S.W.3d at 468.

      The legislative history of chapter 74 and related caselaw further support the

conclusion that a motion to dismiss Hayden’s claims would not have been

groundless before Williams. Article 4590i, the predecessor statute of Texas Civil

Practice and Remedies Code Chapter 74, defined 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 which proximately results in injury or death of the

patient . . . .” Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), (e),

1995 TEX. GEN. LAWS 985, 986, repealed by Act of June 2, 2003, 78th Leg., R. S.,

ch. 204, § 10.09, 2003 TEX. GEN. LAWS 847, 884. Under article 4590i, the term

“safety” was not defined, but the claim had to stem from injury or death to a

patient. See id. § 1.03; see also Diversicare, 185 S.W.3d at 855 (noting statute did

not define “safety”).

      In 2003, when article 4590i section 1.03 was recodified as Civil Practice and

Remedies Code section 74.001, the Legislature defined a health care liability claim

as a claim against a health care provider 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,



                                          18
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) (West Supp. 2013) (emphasis added). The term

“safety” remained undefined, but the statute was broadened to include injury to a

“claimant.” See id. The term “claimant” is defined as “a person” who seeks

recovery or damages in a health care liability claim. See id. § 74.001 (a)(2) (West

Supp. 2013).

      Two years later, the Texas Supreme Court explained in Diversicare that

former article 4590i “did not define” the term “safety,” as it related to the

definition of a health care liability claim, and the Court applied the “commonly

understood meaning of safety” as “the condition of being ‘untouched by danger . . .

harm or loss.’” Diversicare, 185 S.W.3d at 855 (citing BLACK’S LAW DICTIONARY

1336 (6th ed. 1990)). The Court recognized that the “Legislature’s inclusion within

the scope of [4590i] claims based on breaches of accepted standards of safety

expand[ed] the scope of the statute beyond what it would be if it only covered

medical and health care.” Id. Diversicare was decided seven years before Williams.

      In Williams, the Court noted that the term “safety” remained undefined in

section 74.001, and, accordingly, applied the definition used in Diversicare.

Williams, 371 S.W.3d at 183–84 (citing Diversicare, 185 S.W.3d at 855 (applying

the “commonly understood meaning of safety” as “the condition of being



                                        19
‘untouched by danger . . . harm or loss.’”)). The Williams Court again recognized

that the Legislature’s “inclusion of safety ‘expanded the scope of the statute

beyond what it would be if it only covered medical and health care.’” Id. at 184. It

also held that “the safety component of [health care liability claims] need not be

directly related to the provision of health care . . . .” Id. at 186. Additionally, the

plaintiff’s status as an injured employee, instead of a patient, did not determine the

nature of the claim. Id. at 188–89. Under Williams, the focus shifted to whether the

hospital’s alleged misconduct involved a departure from accepted standards of

safety. Id. at 179, 185.

      Based on Diversicare, the text of chapter 74, and Hayden’s claim of

inadequate staffing resources to ensure a safe environment, a motion to dismiss

that contended that Hayden’s claim was a health care liability claim because it was

“for . . . [a] claimed departure from accepted standards of . . . safety . . . which

proximately results in injury to . . . a claimant” would not have been groundless

before Williams. TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (stating

elements of health care liability claim).

      Notably, in its briefing to the trial court in support of its second motion to

dismiss, Memorial Hermann likened Hayden’s claims to Omaha Healthcare

Center v. Johnson, 344 S.W.3d 392, 394 (Tex. 2011), which was issued the year

before Williams. In Omaha, a nursing home patient was bitten by a spider while at



                                            20
the nursing home and died. The patient’s family brought a premises liability claim,

alleging that the nursing home had failed to maintain its premises in a safe

condition. Memorial Hermann explained that the Omaha court found the plaintiff’s

claim was “directly related to health care” and “fell within the statutory definition

of a health care liability claim.” Id. at 395 (emphasis added). In its briefing,

Memorial Hermann likewise asserted, “[L]ike Ms. Hayden in this case, the claim

[in Omaha] was brought as a premises liability claim against the facility for failing

to keep the facility safe.” Memorial Hermann’s reliance on the Omaha case one

year before it set its own motion to dismiss for hearing further supports the

conclusion that Memorial Hermann had a known right to seek dismissal.

      Further, a plaintiff cannot recast a health care liability claim as another cause

of action to avoid the statute. Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010).

Nevertheless, Memorial Hermann passed on the hearing on its motion to dismiss

and instead sought final judgment by filing a summary judgment motion, in which

it contended that Hayden had “recast the case as a premises liability lawsuit.” The

same argument would have supported its pending motion to dismiss.

      We conclude that, even after Hayden amended her petition, Memorial

Hermann could have pursued its motion to dismiss and that the pleading would not

have been groundless before Williams. Accordingly, we hold that, before Williams,

Memorial Hermann had a known right to seek dismissal.



                                         21
C.    Conduct inconsistent with the right to seek dismissal

      Because Memorial Hermann had a known right to seek dismissal, we turn to

consider whether its conduct demonstrated that it waived that right. Memorial

Hermann argues that it did not engage in conduct inconsistent with a known right.

And we recognize that engaging in pretrial preparation, including conducting

discovery, by itself does not constitute waiver. See Crosstex Energy, 2014 WL

1258307, at *9 (citing Jernigan, 111 S.W.3d at 157) (holding that propounding

11,000 pages of discovery and filing answer “inconsequential” in determining

whether engagement of judicial process constitutes intent to waive rights). Hayden,

however, contends that Memorial Hermann did not just participate in the litigation

process, but it conducted itself in a manner inconsistent with pursuing dismissal

under section 74.351(b).

      Before Memorial Hermann filed its second motion to dismissal for a failure

to file an expert report, the parties actively engaged in extensive trial preparations.

According to the parties’ stipulation, Memorial Hermann moved for summary

judgment (which was denied); “propounded multiple sets of written discovery to

[Hayden]”; participated “in ten fact and expert witness depositions” (the majority

of which Memorial Hermann initiated); moved for a trial setting in February 2012;

submitted trial preparation documents, including briefs, a jury charge, motion in

limine, facts witness lists, and exhibit lists; and announced ready for trial on two



                                          22
occasions. Hayden argues these facts, along with Memorial Hermann’s decision to

“abandon” its original motion to dismiss, demonstrate conduct inconsistent with

the right to seek dismissal and, therefore, resulted in waiver.

      In Jernigan, the court of appeals found waiver of the right to dismissal based

on the health care provider’s (1) waiting 646 days after the lawsuit was filed, (2)

undertaking discovery, (3) filing a motion for summary judgment based on

charitable immunity, and (4) filing an amended answer that deleted language in the

original answer specifically referencing a failure to satisfy statutory prerequisites.

Langley v. Jernigan, 76 S.W.3d 752, 756–57 (Tex. App.—Waco 2002), rev’d, 111

S.W.3d 153 (Tex. 2003). The Supreme Court found this conduct insufficient to

constitute waiver. Jernigan, 111 S.W.3d at 156–57. The Court reasoned that

“attempting to learn more about the case” by requesting documents and submitting

interrogatories is not inconsistent with moving for dismissal for failure to meet the

expert-report requirement and observed that most of the discovery was conducted

by the plaintiff. Id. at 157; see Crosstex Energy, 2014 WL 1258307, at *8–9

(applying same standard of waiver). Moving for summary judgment on other

grounds also did not waive the right to dismissal under section 74.351. Jernigan,

111 S.W.3d at 157; see also Seifert v. Price, No. 05–08–00655–CV, 2008 WL

5341045, at *2 (Tex. App.—Dallas, Dec. 23, 2008, pet. denied) (mem. op.).

“Waiver is largely a matter of intent.” Jernigan, 111 S.W.3d at 156; see also



                                          23
Crosstex Energy, 2014 WL 1258307, at *8 (same). And the totality of the

circumstances in Jernigan did not “clearly demonstrate” an intent to not claim a

known right. Jernigan, 111 S.W.3d at 156–57; see also Motor Vehicle Bd. of Tex.

Dept. of Transp. v. El Paso Indep. Auto. Dealers Ass’n, Inc., 1 S.W.3d 108, 111

(Tex. 1999).

      Hayden argues that the facts here are stronger than Jernigan and likens

Memorial Hermann’s conduct to that of the defendant health care provider in In re

Sheppard, 197 S.W.3d 798 (Tex. App.—El Paso 2006, orig. proceeding). In

Sheppard, the court of appeals held that “extensive participation in discovery”

along with a delay of 1,183 days were sufficient, without more, to demonstrate that

the defendant had waived the right to seek dismissal for failure to meet the expert-

report requirement. 197 S.W.3d at 801–02. The defendant sent discovery requests

after receiving the plaintiff’s expert report, designated its own experts, deposed the

plaintiff and her experts, allowed the plaintiff to depose its experts, and announced

ready for trial.10 Id. at 801–02. The court distinguished Jernigan on the ground that

this discovery involved “far more” than learning about the case and was not

initiated solely by the plaintiff. Id. at 802. Under the totality of the circumstances


10
      The opinion does not indicate whether a hearing was held on the motion to
      dismiss. It only states that the defendant health care provider permitted its experts
      to be deposed after it had filed its motion to dismiss and before the trial court
      granted the motion. See In re Sheppard, 197 S.W. 3d 798, 801–2 (Tex. App.—El
      Paso 2006, orig. proceeding).

                                           24
of that case—where discovery had been completed and the defendant had

announced ready for trial—the health care provider had engaged in conduct

“inconsistent with an intent to rely upon the right to seek dismissal.” Id.; see also

Apodaca v. Miller, 281 S.W.3d 123, 127 (Tex. App.—El Paso 2008, no pet.)

(noting that implicit waiver is only inferred by Texas courts in extreme

circumstances, and identifying announcement of ready for trial as one of those

circumstances); cf. Martinez v. Lakshmikanth, 1 S.W.3d 144, 148–49 (Tex. App.—

Corpus Christi 1999, pet. denied) (analyzing waiver under section 74 predecessor

statute, holding waiver of right to dismissal may be implied when health care

provider defendant delays moving for dismissal until after case is disposed of on

other grounds).

      The totality of the circumstances in this case is stronger than those in

Sheppard. First, Memorial Hermann not only conducted most of the discovery—it

completed its discovery. But more importantly, Memorial Hermann announced that

it was ready for trial twice before pursuing its motion to dismiss, and it did not

move to dismiss the case again until “four days prior to the trial court actually

calling the case to trial.” Memorial Hermann had filed a motion to dismiss 22

months earlier and intentionally did not pursue it. Effectively, Memorial Hermann

strategically decided not to pursue its initial motion; instead, it attempted to obtain

a final judgment through other means. Cf. Spinks v. Brown, 211 S.W.3d 374, 379



                                          25
(Tex. App.—San Antonio 2006, no pet.) (holding health care provider waived

rights by “strategic[ally]” choosing not to pursue motion to dismiss).

      Viewing the totality of the circumstances, we conclude that the trial court

did not err in denying “on the ground of waiver” Memorial’s motion to dismiss

Hayden’s health care liability claim for failure to file an expert report. See

Jernigan, 111 S.W.3d at 156 (holding intent must be discerned by reviewing “the

surrounding facts and circumstances”); see also Perry Homes, 258 S.W.3d at 591

(stating that “courts should look at the totality of the circumstances” in determining

whether there is waiver); cf. Murphy v. Gutierrez, 374 S.W.3d 627, 633, 635 (Tex.

App.—Fort Worth 2012, no. pet.) (stating that, in analyzing whether defendant

waives right to dismissal for failure to file expert reports for claims against

architects and similar professional engineers, court should examine totality of

circumstances).

      Accordingly, we overrule Memorial Hermann’s sole issue.

                                    Conclusion

      We affirm the trial court’s interlocutory order.



                                              Harvey Brown
                                              Justice

Panel consists of Justices Jennings, Sharp, and Brown.



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