                 IN THE SUPREME COURT OF TEXAS
                                        444444444444
                                          NO . 12-0388
                                        444444444444

    PSYCHIATRIC SOLUTIONS, INC. AND MISSION VISTA BEHAVIORAL HEALTH
      SERVICES, INC. D/B/A MISSION VISTA BEHAVIORAL HEALTH CENTER,
                                PETITIONERS,
                                                v.


                               KENNETH PALIT , RESPONDENT

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

       JUSTICE GUZMAN delivered the opinion of the Court, in which CHIEF JUSTICE JEFFERSON ,
JUSTICE HECHT , JUSTICE GREEN , JUSTICE JOHNSON , JUSTICE WILLETT , and JUSTICE DEVINE joined.

       JUSTICE BOYD filed a concurring opinion, in which JUSTICE LEHRMANN joined.

       In Texas West Oaks Hospital, LP v. Williams, we held that a mental health professional

employee’s claims against his employer, a mental health hospital, alleging inadequate security and

training were health care liability claims (HCLC) based on the 2003 amendments to the Texas

Medical Liability Act (TMLA).1 Here, we consider the claims of an employee health care provider

against his employer, also a health care provider. The employee’s claims arise from an incident

similar to that in West Oaks, and we thus determine whether the employee’s claim that the employer

provided improper security of a psychiatric patient and inadequate safety for the employee is an

HCLC under the TMLA. As in West Oaks, we conclude here that the employee’s claim is an HCLC,


       1
           371 S.W.3d 171, 179 (Tex. 2012).
the employee is a claimant, and his failure to serve the defendant with an expert report within the

TMLA’s 120-day deadline mandates dismissal of his suit. Because the court of appeals concluded

otherwise, we reverse its judgment.

                                          I. Background

       Kenneth Palit was employed as a psychiatric nurse at Mission Vista Behavioral Health

Center, operated by Psychiatric Solutions, Inc., and Mission Vista Behavioral Health Services, Inc.

(collectively “Mission Vista”). On April 2, 2008, he was injured at work while physically restraining

a psychiatric patient during a behavioral emergency. Palit subsequently filed suit asserting a cause

of action for negligence against Mission Vista, seeking damages for personal injuries.

       Over 120 days later, Mission Vista moved to dismiss Palit’s suit, claiming the suit alleged

an HCLC and must be dismissed because Palit failed to serve an expert report as required by section

74.351 of the TMLA. The trial court denied the motion to dismiss, and the court of appeals

affirmed. __ S.W.3d __, __.

                                           II. Discussion

       Under the TMLA, a claimant is “a person . . . seeking or who has sought recovery of damages

in a health care liability claim.” TEX . CIV . PRAC. & REM . CODE § 74.001(a)(2). When a claimant

asserts an HCLC, the claimant must comply with the TMLA’s requirements, one of which is to serve

an expert report within 120 days of filing suit. Id. § 74.351. Palit, is a claimant under the TMLA

if his suit is seeking damages in an HCLC. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171,

179 (Tex. 2012) (holding the change from “patient” to “claimant” in the 2003 amendment to the

HCLC definition in the TMLA now includes an employee of a health care provider who brings an

                                                 2
HCLC). We must therefore determine whether Palit’s claim is an HCLC to resolve whether Palit’s

suit must be dismissed for failing to comply with the TMLA’s expert-report requirement.

        In West Oaks, we held that a mental health professional employee’s claims against his

employer mental health hospital regarding inadequate security and training were HCLCs based on

the 2003 amendments to the TMLA. Id. at 181. The 2003 Legislation amended the definition of an

HCLC to mean:

        a cause of action against a health care provider or physician for . . . 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.

Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 865 (current

version at TEX . CIV . PRAC. & REM . CODE § 74.001(a)(13)) (emphases added).

        We explained in West Oaks that an HCLC has three basic elements:

        (1) a physician or health care provider must be a defendant; (2) the claim or claims
        at issue must concern treatment, lack of treatment, or a departure from accepted
        standards of medical care, or health care, or safety or professional or administrative
        services directly related to health care; and (3) the defendant’s act or omission
        complained of must proximately cause the injury to the claimant.

371 S.W.3d at 179–80. The parties only dispute the second element here.

        We addressed the second element in West Oaks, which involved a negligence claim by a

mental health professional against his mental health hospital employer for injuries sustained in a

physical altercation with a patient. Id. at 174–75. We reasoned that a “health care facility’s ‘training

and staffing policies and supervision and protection of [a patient] and other residents are integral

components of [the facility’s] rendition of health care services.’” Id. at 181 (quoting Diversicare

                                                   3
Gen. Partner, Inc. v. Rubio, 185 S.W.3d 942, 850 (Tex. 2005)) (alterations in original). Importantly,

“by specific statutory directive[,] health care claims must involve a patient-physician relationship,”

and claims involving employee supervision of a patient at a mental health care facility can still

qualify as a health care claim because the patient’s presence at the facility is due to their patient-

physician relationship. Id. Thus, because appropriate supervision and security of patients and

“providing a safe workplace . . . [for] caregiver[s] at a psychiatric facility are integral to the patient’s

care and confinement,” those acts or omissions constitute “health care” under section 74.001(a)(10)

of the TMLA. Id. at 182.

        Following the 2003 amendments, HCLCs now include “departure[s] from accepted standards

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

to health care.” TEX . CIV . PRAC. & REM . CODE § 74.001(a)(13). Of these types of claims, safety is

the only term not defined in the TMLA. See, e.g., id. § 74.001(a)(10), (a)(19), (a)(24) (defining

“health care,” “medical care,” and “professional or administrative services”). Because “safety” is

not defined, it is construed “according to its common meaning as being secure from danger, harm

or loss.” Tex. W. Oaks, 371 S.W.3d at 184.

        Here, Palit’s claim alleges he was injured “as a result of improper security of a dangerous

psychiatric patient” because Mission Vista “failed to provide a safe working environment and failed

to make sufficient precautions for [his] safety.” As in West Oaks, these allegations fall under both

the safety and health care components of an HCLC, indicating both an alleged departure from the

accepted standards of safety, see id. at 186, and that Palit’s health care provider employer violated

the standard of health care owed to its psychiatric patients, id. at 182. In West Oaks we noted that

                                                     4
Texas mental health statutes and regulations require that inpatient mental health facilities “‘provide

adequate medical and psychiatric care and treatment to every patient in accordance with the highest

standards accepted in medical practice,’” id. at 181 (quoting TEX . HEALTH & SAFETY CODE

§ 576.022(a)) (emphasis added), and that “[i]t would blink reality to conclude that no professional

mental health judgment is required to decide what those [standards] should be, and whether they

were in place at the time of [the] injury,” id. at 182. As such, we have held “that if expert medical

or health care testimony is necessary to prove or refute the merits of a claim against a physician or

health care provider, the claim is a health care liability claim.” Id. Thus, because Palit’s allegations

implicate a standard of care that requires expert testimony to prove or refute it, his claim is an

HCLC. See id.2

                                           III. Conclusion

        In sum, Palit’s suit claims that Mission Vista departed from the accepted standards of safety

and health care, which requires the use of expert health care testimony to support or refute the

allegations. Id. at 182, 193. Thus, the claim is an HCLC. Id. at 182. As a person seeking recovery

of damages in an HCLC, Palit is a claimant and was required to serve an expert report within 120

days of filing suit. TEX . CIV . PRAC. & REM . CODE § 74.351(a). Because he failed to serve an expert

report, Mission Vista is entitled to a dismissal of the claim and reasonable attorney’s fees and costs.



        2
          The concurrence believes that the Legislature’s 2003 amendments to the TMLA indicate
that claims alleging a departure from the accepted standards of safety must be directly related to
health care to qualify as HCLCs. __ S.W.3d __, __ (Boyd, J., concurring). Because the concurrence
itself concedes that the claim here directly relates to health care, the opinion is advisory at best. See
Heckman v. Williamson Cnty., 369 S.W.3d 137, 147 (Tex. 2012).

                                                   5
Id. § 74.351(b). Mission Vista requested its attorney’s fees and costs in the trial court pursuant to

section 74.351(b)(1) of the TMLA. Accordingly, without hearing oral argument, TEX . R. APP . P.

59.1, we grant the petition for review, reverse the court of appeals’ judgment, and remand to the trial

court with instructions to dismiss Palit’s claim against Mission Vista and consider Mission Vista’s

request for attorney’s fees and costs. Tex. W. Oaks, 371 S.W.3d at 193.




                                                       _______________________________________
                                                       Eva M. Guzman
                                                       Justice

OPINION DELIVERED: August 23, 2013




                                                  6
