                      In The
                Court of Appeals
  Sixth Appellate District of Texas at Texarkana


                     No. 06-12-00098-CV



GOOD SHEPHERD MEDICAL CENTER - LINDEN, INC., Appellant

                               V.

                 BOBBY TWILLEY, Appellee



             On Appeal from the 5th District Court
                     Cass County, Texas
                  Trial Court No. 11-C-351




          Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Chief Justice Morriss
                                                OPINION
         While employed as the Director of Plant Operations for Good Shepherd Medical Center –

Linden, Inc. (Good Shepherd) in the summer of 2009, Bobby Twilley fell from a ladder attached

to the hospital building and was injured. 1 Twilley alleges he sustained a second on-the-job

injury in February 2010, when he tripped and fell over a mound of hardened cement on Good

Shepherd’s premises. His lawsuit against Good Shepherd asserts claims of negligence per se, 2

negligence (premises liability to an invitee), and gross negligence. The lawsuit proceeded as a

typical negligence case 3 for over a year, when Good Shepherd filed a motion to dismiss for want

of an expert report under the Texas Medical Liability Act (TMLA), which requires that,

         [i]n a health care liability claim, 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, with a curriculum vitae of each expert listed in the report for
         each physician or health care provider against whom a liability claim is asserted.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011).

         The trial court denied the motion to dismiss, and Good Shepherd brings this interlocutory

appeal. See Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008); Longino v. Crosswhite, 183

S.W.3d 913, 915 (Tex. App.—Texarkana 2006, no pet.). Good Shepherd claims that an expert

1
 Twilley alleges that, as he reached the top portion of the ladder, his right hand became ensnared between a rung and
a gutter behind the ladder, causing him to slip and fall approximately twelve feet.
2
 Twilley contends Good Shepherd is negligent as a matter of law due to an alleged violation of Section 1910.27 of
Title 29 of the Code of Federal Regulations, which provides, “The distance from the centerline of rungs, cleats, or
steps to the nearest permanent object in back of the ladder shall be not less than 7 inches, except that when
unavoidable obstructions are encountered, minimum clearances as shown in figure D–3 shall be provided.” 29
C.F.R. 1920.27(c)(4).
3
 Discovery proceeded as in a typical negligence case and primarily centered on the alleged Occupational Safety and
Health Administration (OSHA) violations. OSHA investigates workplace injuries.


                                                         2
report is required pursuant to the recent case of Texas West Oaks Hospital, LP & Texas Hospital

Holdings, LLC v. Williams, 371 S.W.3d 171 (Tex. 2012). Because the claims here are not even

indirectly related to health care—save only that they arose on the premises of a health care

provider—we affirm the judgment of the trial court.

       We generally review under an abuse-of-discretion standard a trial court’s order granting a

motion to dismiss for failure to timely file an expert report under Section 74.351(a). See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(a); Am. Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 877–78 (Tex. 2001); Pedroza v. Toscano, 293 S.W.3d 665, 666 (Tex.

App.—San Antonio 2009, no pet.). However, when the issue presented requires a statutory

interpretation or a determination of whether a claim falls under the Act, i.e., questions of law, we

use a de novo standard of review. Williams, 371 S.W.3d at 177.

       Good Shepherd relies primarily on Williams for the proposition that, even though

Twilley’s claims are unrelated to health care, they fall within the ambit of the TMLA. The high

court has instructed that, in order to differentiate between ordinary negligence claims and health

care liability claims (HCLCs), the courts must focus on the nature of the acts or omissions

causing the alleged injuries. Id. at 176. Accordingly, a discussion of Williams is necessary.

       Texas West Oaks, a private mental health hospital, employed Williams as a psychiatric

technician and professional caregiver. Williams was assigned to supervise a particular patient

who, due to his history of mental problems involving violent behavior, was restricted to his unit,

meaning he could be removed from the psychiatric unit only by direct order of a physician. A

physical altercation between Williams and the patient occurred when Williams had taken the

                                                 3
patient to an outdoor enclosed smoking area in violation of the unit-restriction policy. The

altercation resulted in injuries to Williams and the death of the patient. Id. at 175.

       The patient’s family sued the hospital asserting an HCLC under the TMLA. Williams

was later named as a defendant in the suit and subsequently filed a cross-claim alleging

negligence against the hospital pursuant to the Texas Workers’ Compensation Act. Williams

alleged the hospital failed to properly train, warn, and supervise him to work with potentially

violent psychiatric patients and, as a result, failed to provide a safe workplace. Id. at 192–93.

West Oaks filed a motion to dismiss based on Williams’ failure to provide an expert report in

accordance with the TMLA.         The trial court denied the motion, and the court of appeals

affirmed. The Texas Supreme Court reversed, finding that Williams’ claims were HCLCs based

on claimed departures from accepted standards of health care and safety. Id. at 193.

       Two primary holdings of Williams are pertinent to our decision here: (1) the lack of a

health care relationship between the claimant and the health care provider is not a barrier to the

inclusion of a claim within the Legislature’s definition of health care liability claims, and (2) “the

safety component of HCLCs need not be directly related to the provision of health care . . . .” Id.

at 179, 186.

       In determining that a claimant need not be a patient under the Act, the Williams court

relied primarily on the modification of the HCLC definition in the 2003 legislation.             The

italicized portion of the following definition was added in 2003:

       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

                                                  4
        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) (West Supp. 2012); Williams, 371 S.W.3d

at 178. Before 2003, the term “patient” appeared in this definition where the term “claimant”

now appears. The court observed that “[c]hanging the term ‘patient’ to ‘claimant’ and defining

‘claimant’ as a ‘person’ expands the breadth of HCLCs beyond the patient population. This in

turn necessarily widened the reach of the expert report requirement, unless otherwise limited by

other statutory provisions.” Williams, 371 S.W.3d at 178. Therefore, “with the exception of

medical care and health care claims,” 4 the focus in determining whether a claim comes within

the confines of the TMLA is “not the status of the claimant, but the gravamen of the claim . . . .”

Id. So long as the TMLA’s other requirements are met, it “does not require that the claimant be

a patient of the health care provider for his claims to fall under the Act.” Id. at 174. Because the

TMLA’s other requirements were deemed to have been met, Williams was a claimant. Id. at

179.

        Likewise, Twilley’s status as a nonpatient does not prevent his classification as a

claimant, so long as the other requirements of the TMLA are met. As explained below, however,

we believe a different vital requirement of the TMLA remains unmet in this case.

        Here, the unmet requirement of the TMLA is that this safety claim have at least an

indirect relationship to health care. The claim in Williams had an indirect relationship to health


4
 The court observed that the terms “health care” and “medical care” are separately defined and reference treatment
furnished “for, to, or on behalf of a patient.” Williams, 371 S.W.3d at 178; see TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.001(a)(10), (19) (West Supp. 2012).

                                                        5
care; Twilley’s claim does not. Key to the Williams ruling that the petition in that case asserted a

safety claim under the TMLA was the determination that, even if a claim is not directly related to

health care, it may nevertheless be classified as a claimed departure from accepted standards of

safety by a health care provider. Id. at 186. “The heart of these cases lies in the nature of the

acts or omissions causing claimants’ injuries and whether the events are within the ambit of the

legislated scope of the TMLA.” Id. at 176. An HCLC is defined 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).

       The statute includes a cause of action for a “claimed departure from accepted standards of

medical care, or health care, or safety or professional administrative services directly related to

health care, which proximately results in injury to or death of a claimant . . . .” TEX. CIV. PRAC.

& REM. CODE ANN. § 74.001(a)(13) (emphasis added). The high court noted that the term

“safety” was in the Act before the 2003 amendments. That term was construed according to its

common meaning as “being secure from danger, harm or loss.” Williams, 371 S.W.3d. at 184

(citing Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex. 2005)). In 2003, the

phrase “directly related to health care” was added to the definition to modify “professional or

administrative services.” Id. The high court used the rule of statutory construction known as the




                                                 6
last antecedent doctrine 5 to determine that the phrase “directly related to health care” modifies

“professional or administrative services,” but does not modify the term “safety.” Id. at 185–86.

“Williams’ claims are indeed for departures from accepted standards of safety. We conclude that

the safety component of HCLCs need not be directly related to the provision of health care and

that Williams’ claims against West Oaks implicate this prong of HCLCs.” Id. at 186.

        In reaching this conclusion, the high court recognized that Williams’ claims against

Texas West Oaks centered on the hospital’s alleged failure “to properly train, warn and supervise

him to work with potentially violent psychiatric patients and, as a result, [the hospital] failed to

provide a safe workplace.” Id. at 192–93. His injuries could have been avoided, claimed

Williams, if the hospital would have instituted proper safety protocols and monitoring devices.

Accordingly, “Williams’ claims, predicated on the monitoring and restraint of violent,

schizophrenic patients, implicate the safety, as commonly understood, of employees and

patients.” 6 Id. at 183–84.

        Additionally, the court recognized that Williams’ claims were similar to those asserted in

Rubio, 185 S.W.3d 842, in which the court determined that “[p]rofessional supervision,

monitoring, and protection of the patient population necessarily implicate the accepted standards

of safety.” Id. at 855. Williams’ claims implicated safety because they had to do with “his

protection from danger at the hands of a mental patient . . . .” Williams, 371 S.W.3d at 185.


5
 Under this tenant, a qualifying phrase should be applied only to the portion of the sentence “immediately preceding
it.” Id. (quoting City of Dallas v. Stewart, 361 S.W.3d 562, 571 n.14 (Tex. 2012)).
6
 The Williams court also determined that the claims in that case were health care claims under the TMLA. We do
not address this aspect of the court’s opinion, as it is not at issue here.

                                                         7
       Even though Williams’ safety claims were not directly related to health care, such claims

were more closely connected to health care than simply arising in a health care context. They

were moored to a unique medical environment involving the safety aspects of the relationship

between Williams (a health care provider) and the patient he was specifically assigned to

supervise.   Decisions regarding the appropriate professional supervision, monitoring, and

protection of the patient population and health care providers are within the unique province of

physicians and health care providers. See, e.g., Rubio, 185 S.W.3d at 851. Because Williams’

safety claims implicated safety standards required for working with potentially violent

schizophrenic patients at a mental health hospital, they were indirectly related to health care.

The high court did not, however, address the precise issue here—whether safety claims fall

within the purview of the TMLA when they are entirely unrelated to health care.

       Here, it is undisputed that Twilley was not, at least when he was injured, a recipient of

health care, and his position as Director of Plant Operations for Good Shepherd did not involve

health-care-related judgments (as in Williams). Further, Twilley did not report to a health care

provider (as did Williams).    The gravamen of Twilley’s claims—for OSHA violations—is

unrelated to the provision of health care to the patient population or to anyone else. Even under

these facts, Good Shepherd contends Williams requires the production of an expert report.




                                               8
       Good Shepherd frames the issue as “whether the Texas Supreme Court decision in. . .

Williams extends to employees of a nonsubscribing hospital when there is a personal injury claim

regarding a deviation from the accepted standards of safety that is unrelated to health care.”

(Emphasis added.)    In contending the answer to the foregoing query is affirmative, Good

Shepherd relies on the express statement that “the safety component of HCLCs need not be

directly related to the provision of health care . . . .” Williams, 371 S.W.3d at 186. Good

Shepherd contends that the breadth of this holding encompasses the safety claim at issue here.

       In addition, Good Shepherd relies on Memorial Hermann Hospital System v. Kerrigan,

383 S.W.3d 611 (Tex. App.—Houston [14th Dist.] 2012, pet. filed). In that case, a hospital

security officer, at the request of hospital personnel, intervened to keep a patient (Kerrigan’s

daughter) in the hospital after she expressed her desire to leave. Kerrigan filed suit against the

hospital alleging claims for false imprisonment, assault, and negligence. The hospital moved to

dismiss all claims for Kerrigan’s failure to provide an expert report. The trial court granted the

motion as to the negligence claim, but denied it as to the false-imprisonment and assault claims.

Id. at 611. On appeal, Kerrigan relied on the Houston court’s opinion in Appell v. Mugerza, 329

S.W.3d 104, 111–12 (Tex. App.—Houston [14th Dist.] 2010, pet. denied), abrogated by

Williams, 371 S.W.3d 171, in which the court concluded that “[p]unching and violently throwing

patients to the ground or into a cabinet without provocation cannot reasonably be characterized

as being part of the medical services provided by a doctor.” Id. However, in light of Williams’

holding that the broad terms of Section 74.001 apply to claimed departures from the accepted

standards of safety—even if that safety is not directly related to health care, the Houston court

                                                9
questioned the precedential value of Appell.         Because each of Kerrigan’s claims—false

imprisonment, assault, and negligence—center on actions taken by hospital employees seeking

to keep safe the patient being restrained, as well as other patients and hospital employees, such

claims were subject to the expert report requirement. Kerrigan, 383 S.W.3d at 611.

       Kerrigan, like Williams, is different from this case. The patient, who had been diagnosed

by her physician with acute psychosis and mania, was scheduled to be transferred, on order of

her physician, to an in-patient psychiatric facility for her own safety until her mental status

stabilized. During the night before the planned transfer, the patient became restless, left her

room, and expressed a desire to leave the hospital. To preserve the attending physician’s

medical care plan and to ensure the safety of the hospital staff and other patients, the treating

physicians requested help from hospital security personnel to escort the patient back to her room.

Id. at 613. The court noted that each of Kerrigan’s claims centered on actions taken by hospital

employees seeking the safety of the patient, other patients, and hospital employees. Such actions

were taken only after the patient was determined to be a danger to herself and others and sought

to comply with the physician’s medical care plan for the patient. Id. at 614.

       Despite Good Shepherd’s contention to the contrary, we do not believe Williams

encompasses safety claims that are completely untethered from health care. Certainly, Williams

does not so state. As previously discussed, the safety claims in Williams were at least indirectly

related to health care. Good Shepherd’s interpretation of the law goes far beyond the holding in

Williams and would render meaningless the high court’s directive that ordinary negligence

claims are distinguished from health care liability claims by focusing on the nature of the acts or

                                                10
omissions causing the alleged injuries. Williams, 371 S.W.3d at 176. Said differently, if every

safety claim against a health care provider were considered a health care liability claim, there

would be no need to analyze the nature of the acts or omissions which caused the alleged

injuries.

        Moreover, when Good Shepherd’s argument is taken to its logical extreme, a suit against

a health care provider for negligence in causing a car accident in a hospital parking lot would

involve a safety claim and thus would require a report from a health care practitioner expert. A

safety claim must involve a more logical, coherent nexus to health care. The simple fact that an

injury occurred on a health care provider’s premises is not enough.

        Indeed, the high court—although in dicta—so recognized in Loaisiga v. Cerda, 379

S.W.3d 248, 256 (Tex. 2012), a patient assault case decided two months after Williams:

        [W]e fail to see how the Legislature could have intended the requirement of an
        expert report to apply under circumstances where the conduct of which a plaintiff
        complains is wholly and conclusively inconsistent with, and thus separable from,
        the rendition of “medical care, or health care, or safety or professional or
        administrative services directly related to health care” even though the conduct
        occurred in a health care context. See TEX. CIV. PRAC. & REM. CODE
        § 74.001(a)(13); see also TEX. GOV’T CODE § 311.021 (“In enacting a statute, it is
        presumed that . . . a just and reasonable result is intended . . . .”).

Id. at 257. In Loaisiga, the court clarified that a claim is not necessarily a health care liability

claim merely because a patient is injured by a physician or a health care provider. “In some

instances the only possible relationship between the conduct underlying a claim and the rendition

of medical services or healthcare will be the healthcare setting (i.e., the physical location of the

conduct in a health care facility), the defendant’s status as a doctor or health care provider, or

both.” Id. at 256 (discussing rebuttable presumption in patient assault cases).
                                                11
       If certain assault claims are excluded from the purview of the TMLA because such claims

are inconsistent with “medical care, or health care, or safety or professional or administrative

services directly related to health care,” it is likewise logical to recognize that “safety” claims

completely unrelated to health care are likewise excluded from the ambit of the legislated scope

of the TMLA.

       Moreover, to require an expert report in this case would amount to an exercise in futility.

Section 74.351 sets forth the requirement that, in a health care liability claim, a claimant shall

serve on each party one or more expert reports for each physician or health care provider against

whom a claim is made. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). The expert opinion

regarding whether a health care provider departed from accepted standards of health care or

safety must come from an expert qualified to testify under the requirements of Section 74.402.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(B) (West 2011).

       Section 74.402 essentially requires that, in a suit involving an HCLC against a health care

provider, a qualified expert must be

       practicing health care in a field of practice that involves the same type of care or
       treatment as that delivered by the defendant . . . , has knowledge of accepted
       standards of care for . . . the diagnosis, care or treatment of the illness, injury or
       condition involved . . . and is qualified on the basis of training or experience to
       offer an expert opinion regarding those accepted standards of health care.

TEX. CIV. PRAC. REM. CODE ANN. § 74.402(b)(1)–(3) (West 2011). In this case, it would be

terribly difficult, if not impossible, to find a qualified expert under the statute who was also

competent to opine on the relevant accepted standards of care—OSHA ladder construction

and installation and walking surface standards. A medical report here would not shed any

                                                12
light on whether the ladder violated OSHA standards or the concrete mound constituted an

unreasonable risk of harm.

       Although a safety claim under the TMLA need not be “directly related to health care,”

the converse—that a safety claim falls within the ambit of the TMLA even when it is completely

untethered from health care—is not the way we understand the Williams holding. In Williams,

the safety claim was indirectly related to health care. It was not, as are the claims here, related to

health care only in that the claims arose on hospital premises.

       We affirm the judgment of the trial court.



                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:        January 23, 2013
Date Decided:          March 1, 2013




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