                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §
 CECILIA M. SIMMONS,                                            No. 08-13-00204-CV
                                                §
                             Appellant,                           Appeal from the
                                                §
 v.                                                          County Court at Law No. 6
                                                §
 OUTREACH HEALTH COMMUNITY                                    of El Paso County, Texas
 CARE SERVICES, L.P., d/b/a                     §
 OUTREACH HEALTH SERVICES,                                        (TC# 2011-2789)
                                                §
                             Appellee.

                                          OPINION

       In two issues, Appellant Cecilia Simmons, a certified nursing assistant, challenges the

trial court’s ruling that the workplace safety claim she brought against her employer for injuries

she sustained while moving a patient constituted a health care liability claim (“HCLC”) for

which the filing of an expert report was required under the Texas Medical Liability Act

(“TMLA” or “the Act”). Appellant also attacks the constitutionality of TMLA’s expert-report

requirement as applied to her under the Texas Constitution’s Open Courts Provision and the Due

Process Clause of the U.S. Constitution’s Fourteenth Amendment.

       We conclude that Appellant’s claim constitutes a breach of safety standards HCLC under

the Act, and that her failure to serve an expert report detailing the relevant standard of care is


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fatal. We also conclude that her as-applied constitutional challenges to the Act are without

merit. As such, we affirm the trial court’s dismissal with prejudice.

                                               BACKGROUND

         At the time she sustained her injuries, Appellant worked for Outreach Health Community

Care Services (“Outreach”), a non-subscriber to the Texas worker’s compensation plan and the

operator of a state-licensed nursing home and home-care service businesses. Appellant’s job

responsibilities involved supporting a client’s self-care and independence by providing bathing,

grooming, laundry, meal preparation, assistance with medication, and “transfer/ambulation,”

among other things. On October 4, 2010, Appellant attempted to lift, turn, and move one of her

homebound, quadriplegic patients. The patient weighed 262 pounds. As she tried to perform

these actions, Appellant felt two “pops” and injured her lower back.

         Appellant brought suit against Outreach, alleging that her injuries were proximately

caused by Outreach’s breach of the duty to provide a safe work environment. Nearly a year after

Appellant filed suit, the Texas Supreme Court issued its opinion in Texas West Oaks Hosp., L.P.,

v. Williams, 371 S.W.3d 171 (Tex. 2012), holding inter alia that the TMLA’s expert report

requirement applied to claims brought against a health care provider not only by patient

plaintiffs, but by certain health care provider employees as well.1 Almost a month and a half

after the Texas Supreme Court handed down the Williams opinion, Outreach moved to dismiss,

arguing that Appellant’s personal injury claim was actually an HCLC requiring submission of an

expert report, and that since more than 120 days had passed since Appellant filed suit, Outreach

was entitled to dismissal with prejudice since it had not been served with a report. The trial court

subsequently granted Outreach dismissal of Appellant’s claims with prejudice.

1
  At least one court of appeal has applied the expert report requirement “retroactively” to an employee claimant case
that was pending at the time Williams was decided. See CHCA Bayshore, L.P. v. Salazar, No. 14-12-00928-CV,
2013 WL 1907888, at *5 (Tex.App.--Houston [14th Dist.] May 7, 2013, pet. denied).

                                                          2
          This appeal followed.

                                                 DISCUSSION
                                                     I.

          In Issue One, Appellant maintains that her duty to provide a safe workplace claim does

not constitute an HCLC because her injury was unconnected to the rendition of health care, her

actions did not implicate the safety of the patient, and an expert opinion was unnecessary to set

out the standard of care, since her claim would be a standard negligence claim but for the

defendant’s status as a health care provider. We disagree.

                                 Standard of Review and Applicable Law

          Whether a claim constitutes an HCLC is a question of statutory construction reviewed de

novo. Loaisiga v. Cerda, 379 S.W.3d 248, 254-55 (Tex. 2012). In analyzing the claim, the court

considers the record as a whole, the pleadings, and the factual allegations contained therein. Id.

at 259.

          An HCLC consists of three elements: (1) the defendant must be either a health care

provider or a physician; (2) the plaintiff’s claim must concern treatment, lack of treatment, or a

departure from the accepted standards of care on one of four predicate grounds (“the Four

Breaches”); and (3) the conduct complained of in element two proximately caused the plaintiff’s

injury or death. See TEX.CIV.PRAC.&REM.CODE ANN. § 74.001(a)(13)(West 2011); Williams,

371 S.W.3d at 179-80. The Four Breaches covered by element two include departures from the

accepted standards of (a) medical care, (b) health care, (c) safety, and (d) professional or

administrative services directly related to health care.2 Id. at 180.


2
  “Medical care” and “health care” are terms of art specifically defined in the statute. “‘Health care’ means any act
or treatment performed or furnished, or that should have been performed or furnished, by any health care provider
for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement.” TEX.CIV.PRAC.&
REM.CODE ANN. § 74.001(a)(10). “Medical care” means any act defined as practicing medicine under Section
151.002, Occupations Code, performed or furnished, or which should have been performed, by one licensed to

                                                         3
         A plaintiff “claimant” under the statute does not need to be the patient of a health care

provider or physician for her claim to be considered an HCLC. Williams, 371 S.W.2d at 179

(classifying a mental health worker’s workplace safety claim against his employee as an HCLC

where plaintiff was injured by a patient under his care). Rather, “[t]he breadth of the statute’s

text essentially creates a presumption that a claim is an HCLC if it is against a physician or

health care provider and is based on facts implicating the defendant's conduct during the course

of a patient's care, treatment, or confinement.” Loaisiga, 379 S.W.3d at 256. The presumption

may be rebutted where the only possible connection between the plaintiff, the defendant, and the

conduct is situs in a health care setting or the defendant’s status as a health care provider. Id.

         In assessing whether a claim is an HCLC, the Court looks to the content and not the form

of the pleadings to see if the alleged conduct falls within the TMLA’s legislated scope.

Williams, 371 S.W.3d at 176 (court must look to the “gravamen of the claim . . . against the

health care provider”). A plaintiff cannot dodge the TMLA’s strictures through artful pleading;

where a pleaded tort or contract claim constitutes an HCLC, the TMLA’s procedural

requirements apply regardless of how the claim is recast. Diversicare General Partner, Inc. v.

Rubio, 185 S.W.3d 842, 851 (Tex. 2005). A defendant is entitled to dismissal with prejudice of

any HCLC if a plaintiff fails to serve the defendant with a statutorily-compliant expert report on

liability or causation within 120 days of the suit’s inception. TEX.CIV.PRAC.&REM.CODE ANN.

§ 74.351(b), (j).

                                                      Analysis

         In her brief, Appellant does not appear to dispute that her employer is a health care

provider under the statute. Instead, this case implicates two of the predicate breaches identified


practice medicine in this state for, to, or on behalf of a patient during the patient's care, treatment, or confinement.
TEX.CIV.PRAC.&REM.CODE ANN. § 74.001(a)(19).

                                                           4
by statute: breach of the accepted standards of health care, and breach of the accepted standards

of safety. Appellant correctly points out that to classify a claim as a health care standards

HCLC, an alleged act or omission in a claim must be “inseparable or integral part of the

rendition of medical services.” See Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 664

(Tex. 2010)(intepreting TMLA’s predecessor statute). The existence of a physician-patient

relationship and a nexus between the plaintiff’s claim and that relationship are also vital before a

claim may be classified as a health care standards HCLC. Psychiatric Solutions, Inc. v. Palit,

414 S.W.3d 724, 726 (Tex. 2013). Appellant argues that her claim, as pleaded, implicates only

the duty Outreach owes to her to ensure she remained free from injury in the workplace, and not

any medical standard of care it owed to the patient. In Appellant’s view, any rendition of health

care services to the patient while she was moving him was too tangential or incidental to trigger

the TMLA.

         Outreach disputes her contentions, but also counters that even if Appellant’s workplace

safety claim cannot be categorized as involving a breach of the standards of health care, her

claim still constitutes an HCLC under the much broader breach of safety standards predicate.

We agree. Safety as used in the TMLA carries its plain, ordinary meaning “as the condition of

being untouched by danger; not exposed to danger; secure from danger, harm or loss.” Williams,

371 S.W.3d at 184 [Internal quotation marks omitted]. In Williams, the Texas Supreme Court

held that the breach of safety predicate sweeps broader than the breach of health care predicate,

noting that the phrase “directly related to health care” does not modify the noun “safety” in

Section 74.001(a)(13). Id. at 186. Thus, “the safety component of HCLCs need not be directly

related to the provision of health care . . . . ” Id.3


3
 We also note that the Williams case prompted the Texas Legislature in 2013 to contemplate amending the TMLA’s
definition of a health care liability claim to clarify that it does “not include claims arising from an injury to or a

                                                          5
        Our sister courts are split on the issue of whether, after Williams, there is any conceivable

limitation on the scope of the safety prong. See Rio Grande Regional Hosp. v. Salinas, No. 13-

13-00557-CV, 2014 WL 3805141, at *2 n.1 (Tex.App.--Corpus Christi July 31, 2014, pet.

filed)(outlining the division among courts of appeals)4. Six courts hold that a safety claim must

be tethered at least indirectly to the rendition of health care before it falls within the TMLA’s

ambit; two other courts maintain that the 2003 amendments jettisoned any nexus requirements

between safety and rendition of health care by enacting statutory language so sweeping that the

TMLA essentially embraces all safety-related claims brought against any health care provider

defendant for any reason, including garden-variety premises liability claims that would otherwise

not require expert opinions on causation. Id.; see also Diversicare, 185 S.W.3d at 860-61

(Jefferson, C.J., concurring and dissenting)(noting that the specific source of danger triggering

the TMLA’s safety predicate “is without limitation”).

        While we are strongly inclined to agree with the majority approach to this issue, we need

not dive into the fray in this case. Under either approach, Outreach prevails. Assuming the

safety prong is in fact limited to only those claims which relate at least indirectly to the rendition

of health care, Appellant’s safe workplace claim stems from injuries sustained while rendering

health care services to a patient within the scope and course of her employment. In CHCA

Bayshore, L.P. v. Salazar, No. 14-12-00928-CV, 2013 WL 1907888, at *4 (Tex.App.--Houston

[14th Dist.] May 7, 2013, pet. denied)(mem. op.), the Houston Fourteenth Court of Appeals

concluded that a health care worker injured “while attempting to maneuver a patient” through a


death of a person who is not a patient, including employment and premises liability claims.” See Tex. H.B. 2644,
83d Leg., R.S. (2013). Unfortunately, House Bill 2644 was not enacted. Hart v. Select Specialty Hosp.-Houston
L.P., No. 4:13-CV-335, 2014 WL 710287, at *4 n.2 (S.D. Tex. Feb. 19, 2014).
4
  See also Williams v. Riverside General Hospital, Inc., No. 01-13-00335-CV, 2014 WL 4259889, at *4-*5
(Tex.App.--Houston [1st Dist.] Aug. 28, 2014, no pet.h.)(mem. op.); Reddy v. Veedell, No. 01-14-00309, 2014 WL
4651211 (Tex.App.--Houston [1st Dist.] Sept. 18, 2014, pet. filed)(adopting indirect nexus approach).

                                                       6
door that required a second person to hold it open presented a safety prong HCLC, since she

alleged the hospital breached safety duties it owed to its employees while in the course and scope

of dealing with patients. The facts in this case are similar. See also Tillman v. Mem. Hermann

Hosp. Sys., 440 S.W.3d 203, 206, 209 (Tex.App.--Houston [14th Dist.] 2013, pet.

denied)(employee’s safe workplace claim was a safety HCLC where employee alleged injury

resulted from lifting intubated 300-pound patient).

        Appellant encourages us to disregard Salazar and adopt the approach set out in Baylor

Univ. Med. Ctr. v. Lawton, No. 05-13-00188-CV, 2013 WL 6163859, at *1-*3 (Tex.App.--

Dallas Nov. 25, 2013, pet. filed).         However, the distinction Appellant tries to draw is

inapplicable under these facts. Lawton involved an employee who suffered injury after inhaling

certain chemicals used to treat the hospital’s sewer system. Id., at *1. There, the plaintiff

presented a garden-variety premises-liability claim wholly divorced from health care rendition,

save for the fact that the injury occurred at a hospital.

        Here, Appellant’s connection to the health care provider is more than the situs of injury.

Appellant was attempting to move the patient in order to facilitate the patient’s care, which was a

task that explicitly fell within the course and scope of her employment as the employee of a

health care provider. Furthermore, unlike Salazar in which there appeared to be a threat only to

the safety of the employee and not to any patient, Outreach’s alleged breach of safety standards

in relation to Appellant also bears on Appellant’s provision of safe health care to her patient,

since any alleged inadequate training could result in injury to both her and her patient. Cf.

Williams, 371 S.W.3d at 194 (noting in breach of health care predicate case that reference to

standards governing physician-patient relationship necessary to determine liability of employer

to employee caring for patient under facts of the case).



                                                   7
       Finally, Appellant urges us to nevertheless disregard the expert report requirement

because a provision of the TMLA states that “[n]othing in this section shall be construed to

require the serving of an expert report regarding any issues other than an issue relating to liability

or causation.” TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(j)(West Supp. 2014). Appellant

contends that this provision shows no expert report is required, since the issues of liability and

causation in this case are intuitive and a matter of common tort law, and an expert report would

therefore serve no purpose. Justice Lehrmann advanced a similar argument in his dissent in

Williams, 371 S.W.3d at 196 (Lehrmann, J., dissenting)(opining that the expert report

requirement “contemplates that the lawsuit will center on a physician’s treatment of a patient’s

illness, injury, or condition, not on the adequacy of a workplace or the training provided to an

employee”); see also Omaha Healthcare Center, L.L.C. v. Johnson, 344 S.W.3d 392, 396 (Tex.

2011)(Lehrmann, J., dissenting)(arguing that forcing a plaintiff to provide an expert report in

case where nursing home patient died from spider bite was “contrary to the Legislature’s intent,

belies common sense, and contorts the role of experts in health care litigation”). However, there

is no statutory exception from the expert report requirement, even in cases where expert

testimony is ultimately unnecessary to determine liability on the merits. See Williams, 371

S.W.3d at 182. As such, the difficulty with which an expert report is obtained or whether that

report would even be helpful on the merits appears to be immaterial in light of the statute’s plain

language and its current interpretations.

       We take note of Justice Massengale’s concurring opinion in Reddy, in which he states:

               Even though the Legislature does not write statutes for the courts’
               approval, it still could clarify the TMLA in response to manifest
               interpretive difficulties. Not only could this relieve the courts and
               litigants from the continuing burdens of litigation over the
               procedural standards, it could also better ensure that the standards
               applied are those actually approved by the Legislature, as opposed

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               to a standard reflecting the courts’ best good-faith effort to
               implement an opaque statute. Legislatures have the right to expect
               courts to faithfully implement laws as enacted. When the words
               fail, the Legislature has a corresponding responsibility to provide
               clarity where it is wanting. Rather than leaving the difficult work
               of clarification to the courts, which have confessed their struggle
               with the task of reaching consensus about the meaning of the Act,
               the Legislature could-and, I respectfully suggest, should[ ]study the
               historical record of how the Texas Medical Liability Act is being
               applied in the courts, evaluate which outcomes do and do not
               reflect a desirable application of the statutory scheme, and then
               amend the statute to more clearly indicate what kinds of claims are
               intended to be subject to these special procedures.

Reddy, 2014 WL 4651211, at *5 (Massengale, J., concurring).

       Because we hold that the substance of Appellant’s allegations constituted an HCLC under

the broad “safety” ground, we need not address whether the same conduct would constitute an

HCLC under the narrower “departure from accepted standards of health care” ground. See

Morrison v. Whispering Pines Lodge I, L.L.P., 428 S.W.3d 327, 335 n.10 (Tex.App.--Texarkana

2014, pet. filed). Appellant was required to file an expert report, and her failure to do so within

120 days entitled Outreach to dismissal with prejudice.          TEX.CIV.PRAC.&REM.CODE ANN.

§ 74.351(b), (j). The trial court did not err by granting dismissal.

       Issue One is overruled.

                                                 II.

       We next turn to Appellant’s alternative, as-applied constitutional challenges.          We

understand her to bring overlapping Open Courts and procedural due process claims based on

three rationales.   Because the Open Courts Provision represents “a facet of due process,”

Hitchcock v. Board of Trustees Cypress-Fairbanks Indep. Sch. Dist., 232 S.W.3d 208, 217

(Tex.App.--Houston [1st Dist.] 2007, no pet.), and because both constitutional challenges

embrace the ultimate question of whether any denial or constructive denial of relief for her legal



                                                  9
claim under the Act is reasonable, we address both points in a consolidated analysis below.

                    The Open Courts Provision and Procedural Due Process

       The Texas Constitution’s Open Courts Provision provides that “[a]ll courts shall be open,

and every person for an injury done him, in his lands, goods, person or reputation, shall have

remedy by due course of law.” TEX.CONST. art. 1, § 13. The provision serves as a judicial check

on the legislative power, “prohibit[ing] legislative bodies from arbitrarily withdrawing all legal

remedies from one having a cause of action well established and well defined in the common

law.” Lebohm v. City of Galveston, 154 Tex. 192, 197, 275 S.W.2d 951, 954 (Tex. 1955). In

assessing a statute under the Open Courts Provision, we begin with the assumption that the law is

constitutional. Marquez v. Providence Mem. Hosp., 57 S.W.3d 585, 595 (Tex.App.--El Paso

2001, pet. denied). The party challenging the law’s constitutionality under the Open Courts

Provision must then show “(1) a cognizable common-law cause of action is being restricted; and

(2) the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the

statute.” Id. “[A] mere difference of opinion, where reasonable minds could differ, is not a

sufficient basis for striking down legislation as arbitrary or unreasonable.” Smith v. Davis, 426

S.W.2d 827, 831 (Tex. 1968).

       The Due Process Clauses of the Texas Constitution and the Fourteenth Amendment to the

United States Constitution also serve as restraints on legislative power in establishing procedural

prerequisites to vindicating a claim. The Fourteenth Amendment provides that “[n]o State shall

. . . deprive any person of life, liberty, or property, without due process of law . . . .” U.S CONST.

Amend. XIV, § 1. Likewise, the Texas Constitution’s Due Process Clause provides that “[n]o

citizen of this State shall be deprived of life, liberty, property, privileges, or immunities, or in

any manner disfranchised, except by the due course of the law of the land.” TEX.CONST. art. I,



                                                 10
§ 19. Notice and the opportunity to be heard are the cornerstones of due process. Before the

State may deprive a person of property, the person must be afforded notice and the opportunity

to be heard. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153, 71

L.Ed.2d 265 (1982). A legal claim is “property” recognized under the Fourteenth Amendment.

Id. at 428, 102 S.Ct. at 1154. Therefore, any restriction on established adjudicatory procedures

that functions as “the equivalent of denying [a litigant] an opportunity to be heard upon their

claimed right[s]” constitutes deprivation of property without due process of law. Boddie v.

Connecticut, 401 U.S. 371, 380, 91 S.Ct. 780, 787, 28 L.Ed.2d 113 (1971).

                                            Analysis

       Appellant acknowledges that a large corpus of adverse authority upholds the

constitutionality of both the prior and current versions of the statute. See Solomon-Williams v.

Desai, No. 01-08-00733-CV, 2009 WL 1813135, at *3 (Tex.App.--Houston [1st Dist.] June 25,

2009, pet. denied)(mem. op.)(listing cases). Nevertheless, Appellant contends the TMLA is

unconstitutional as applied to her under the Texas Constitution’s Open Courts Provision for three

reasons.

       First, she maintains the statute predicates tort relief on the fulfillment of an impossible

condition. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex. 1990)(“the legislature

has no power to make a remedy . . . contingent upon an impossible condition”). Specifically, it

requires her to procure the opinion of an expert on the subject matter of this case when no such

expert exists. Second, she also argues the expert report procedural requirements are “arbitrary

and capricious” because an expert opinion on the applicable standard of care in this case, if it

were indeed possible to procure, is totally unnecessary. Instead, the case can be easily resolved

with reference to the duty to provide a safe workplace standard applicable in all other



                                               11
employment cases. Finally, Appellant argues that the 2003 amendment’s elimination of the

thirty-day grace period for inadvertent failure to comply with the expert report requirement

unreasonably leaves her without remedy and places the TMLA in constitutional quicksand. See

Gajewski v. Jackson, 351 S.W.3d 608, 611 (Tex.App.--El Paso 2011, no pet.)(noting that the

2003 amendments eliminated long-standing grace period and permitted no exception to 120-day

rule even where defendant purposefully eluded process to defeat the cause of action). She

reiterates these same concerns as procedural due process claims under the state and federal

constitutions, averring that the TMLA’s expert report requirement is so onerous as to effectively

deny her the right to be heard before her claim is destroyed by the State.

       “A claimant who brings an open courts challenge has the burden of showing that the

expert-report requirements actually prevented him from pursuing his claims.” Herrera v. Seton

Northwest Hosp., 212 S.W.3d 452, 461 (Tex.App.--Austin 2006, no pet.).               Where the

challenging party produces “no evidence that these requirements actually worked to prevent her

from pursuing her claim[,]” we need not address the constitutional arguments. See Marquez, 57

S.W.3d at 595. Here, Appellant has failed to demonstrate that the unconstitutional application of

the expert report requirement, as opposed to her own failure to timely provide an expert report,

prevented her from pursuing her claim. Id.; accord Solomon-Williams, 2009 WL 1813135, at *4.

As such, we find that her constitutional challenges are without merit.

       Issue Two is overruled. The trial court’s judgment is affirmed.



November 7, 2014
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, J., and Parks, Judge
Parks, Judge (Sitting by assignment)



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