                         NUMBER 13-14-00322-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

CHRISTUS SPOHN HEALTH
SYSTEM CORPORATION
D/B/A CHRISTUS SPOHN
HOSPITAL CORPUS CHRISTI,                                                    Appellant,

                                           v.

JEANNE K. GOODHEW,                                                          Appellee.


               On appeal from the County Court at Law No. 3
                        of Nueces County, Texas.


                         MEMORANDUM OPINION
             Before Justices Benavides, Perkes, and Longoria
                        Opinion by Justice Perkes

      In this interlocutory appeal, appellant Christus Spohn Health System Corporation

d/b/a Christus Spohn Hospital Corpus Christi (“Christus”) appeals the denial of its motion

to dismiss in a suit brought by appellee Jeanne K. Goodhew (“Goodhew”). By two
issues, Christus argues that the trial court erred in denying its motion to dismiss because:

(1) Goodhew’s claim requires an expert report pursuant to the Texas Medical Liability Act;

and (2) Goodhew failed to timely serve the required expert report within the statutory

deadline. We reverse and remand.

                                   I.     BACKGROUND

       Goodhew was recovering from hip surgery when she was taken for wound care

treatment to the Christus Spohn Shoreline Wound Care Unit. After arriving at the wound

care unit, Goodhew was evaluated by a nurse in preparation for a meeting with a doctor.

Goodhew informed the nurse that she needed to use a restroom.              After the nurse

provided Goodhew with a walker, Goodhew made her way to the restroom without

assistance. While attempting to use the restroom, Goodhew fell and was injured.

       Goodhew filed suit against Christus on March 30, 2012 alleging premises liability,

negligence per se, and gross negligence. She later non-suited her case and re-filed it

on October 24, 2012, alleging the same causes of action included in her first lawsuit, but

with the addition of a Texas Medical Liability Act (TMLA) claim. See TEX. CIV. PRAC. &

REM. CODE ANN. § 74.001 (West, Westlaw through 2013 3d C.S.). Goodhew thereafter

filed an amended petition alleging premises liability, TMLA claims, and violations of the

Americans with Disabilities Act (ADA) and related Texas Accessibility Standards (TAS).

See 42 U.S.C. § 12182(a). She served an expert report as required by the TMLA on

Christus on November 5, 2012. See id. § 74.351.

       Christus filed a motion to dismiss for Goodhew’s failure to timely file an expert

report. After initially granting Christus’ motion to dismiss, the trial court subsequently


                                             2
vacated its order granting the motion and entered another order denying the motion

without explanation. This interlocutory appeal followed.

                         II.     HEALTH CARE LIABILITY CLAIMS

      By its first issue, Christus asserts that Goodhew’s claims are health care liability

claims and therefore subject to the expert report requirement of the TMLA.

      A. Standard of Review

      The denial of the motion to dismiss under the TMLA is generally reviewed for abuse

of discretion. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Padre Behavioral

Health Sys., LLC v. Chaney, 310 S.W.3d 78, 80 (Tex. App.—Corpus Christi 2010, no

pet.). However, when the issue involves the applicability of the TMLA to the plaintiff's

claims and requires an interpretation of the statute, we apply a de novo standard of

review. See Tex. West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012).

      B. Applicable Law

      The TMLA and health care liability claims (HCLC) are codified under chapter 74 of

the Texas Civil Practice and Remedies Code. An HCLC is:

      [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). Whether a case is an HCLC or not

is determined by the nature of the acts or omissions causing the claimant’s injuries. See

West Oaks, 371 S.W.3d at 176. Statutory requirements cannot be circumvented by artful

pleading. Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527 (Tex. 2011) (citing

                                             3
Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010)).

      C. Analysis

      1. Premises Liability and Negligence Claims

      Christus contends that Goodhew’s claim amounts to an allegation of a breach of

accepted standards of health care or safety because Christus failed to provide Goodhew

with adequate assistance in the restroom.

      In response, Goodhew alleges that Christus’ failure to provide a safe restroom was

the proximate cause of her injuries.     She claims that the safety of the restroom is

separate from the health care provided by Christus because she had not yet been seen

by the doctor, walked to the restroom without nurse assistance, and used a common

restroom open to the public.      Goodhew argues that the only relationship between

Christus’s wrongful conduct and the rendition of medical services was the healthcare

setting in which those services occurred.

      In support of her argument, Goodhew cites Losaiga v. Cerda, 379 S.W.3d 248

(Tex. 2012). In Losaiga, two patients sued a doctor who allegedly groped their breasts

during a routine examination. See id. at 253. The supreme court found a claim is not

an HCLC where the only complained-of action was the unconsented-to offensive contact

between doctor and patient, and the only possible relationship between the alleged

offensive contact and the rendition of medical services or healthcare was the setting in

which the act took place. Id. at 257. Goodhew claims that, like the alleged breast-

groping in Losaiga, providing restroom facilities is separate conduct, unrelated to medical




                                            4
care. Since the unrelated conduct caused her injuries, Goodhew concludes that her

claim is not a health care liability claim.

       Under the TMLA, “health care” is:

       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).            The Texas Supreme Court

examined this definition in Harris Methodist Fort Worth v. Ollie, where a patient sued a

hospital for injuries suffered when she slipped and fell on a wet bathroom floor during her

post-operative confinement. See 342 S.W.3d 525 (Tex. 2011). In deciding whether

Ollie’s safety-related claim was an HCLC, the Texas Supreme Court explained that “the

essence of the claim center[ed] on the failure of [defendant] to act with the proper degree

of care to furnish a dry floor, warn her of the hazards of a wet bathroom floor, or some

similar failure to act.” Id. at 527; see also Garland Cmty. Hosp. v. Rose, 156 S.W.3d

541, 543–44 (Tex. 2004) (explaining that court is not bound by manner in which plaintiff’s

pleadings characterize claim in determining whether claim is an HCLC).          The court

reasoned that a hospital’s duty to safely meet the fundamental needs of its patients—

cleanliness—falls under the definition of “health care.” See Ollie, 342 S.W.3d at 527.

       Goodhew attempts to distinguish Ollie by claiming that she was not a patient, and

that her claim is similar to cases where a hospital visitor suffers injury. See Doctors

Hosp. at Renaissance, Ltd. v. Mejia, No. 13–12–00602–CV, 2013 WL 4859592, at *3

(Tex. App.—Corpus Christi Aug.1, 2013, pet. filed) (mem. op.) (holding hospital visitor

slip-and-fall accident was not an HCLC); Methodist Healthcare Sys. of San Antonio, Ltd.,


                                              5
LLP v. Dewey, 423 S.W.3d 516, 520 (Tex. App.—San Antonio 2014, pet. filed) (holding

claim of hospital visitor on crutches who fell when automatic entrance door to hospital

closed on him was not an HCLC); Weatherford Tex. Hosp. Co., LLC. v. Smart, 423

S.W.3d 462, 468 (Tex. App.—Fort Worth 2014, pet. filed) (holding slip-and-fall claim

brought by visitor to patient in hospital was not an HCLC).                        We disagree.         In her

response to Christus’s motion to dismiss, Goodhew stated that she arrived at Christus for

the purpose of receiving medical treatment and treatment.                       A nurse then evaluated

Goodhew in preparation for Goodhew’s meeting the doctor. We infer that the nurse’s

evaluation was for the purpose of furthering Goodhew’s medical care and that Goodhew’s

relationship with Christus was as a patient.1

        Similar to Ollie, the underlying nature of Goodhew’s claim involves another

fundamental need—using the restroom. Whether Christus uses employees to assist

patients in using the restroom, or provides other safe means for patients to do so

independently, providing access to a restroom is an “act. . . .that should have been

performed or furnished, by [Christus], for, to, or on behalf of [Goodhew] during

[Goodhew’s] medical care, treatment, or confinement.”                     See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.001(a)(10); Ollie, 342 S.W.3d at 527.

        Despite casting her claims in the language of premises liability and negligence,

Goodhew’s pleadings show that the essence of her suit is a safety claim directly related

to health care—Christus’s failure to meet her fundamental needs. See TEX. CIV. PRAC.


         1 Further, the lack of a health care relationship between the claimant and the health care provider

is not a barrier to the inclusion of a safety claim within the Legislature’s definition of health care liability
claims. See Texas West Oaks Hosp. LP v. Williams, 371 S.W.3d 171, 179 (Tex. 2012).

                                                       6
& REM. CODE ANN. § 74.001(a)(13); Ollie, 342 S.W.3d at 527; Rose, 156 S.W.3d 541,

543–44. Therefore, her premises liability and negligence claims are HCLCs.2

        2. American’s With Disabilities Act and Texas Accessibility Standards
           Claims

        In addition to her premises liability and negligence claims, Goodhew pleaded that

Christus violated the Americans with Disabilities Act (ADA) and the Texas Accessibility

Standards (TAS)3 in failing to provide a handicapped accessible restroom.

        Title III of the ADA, which applies to public accommodations, 4 establishes the

general rule that “[n]o individual shall be discriminated against on the basis of disability in

the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation by any person who owns, leases

(or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a);

Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1057 (5th Cir. 1997).

        Goodhew first raised her ADA claims in her first amended petition, the live pleading

in this case. She filed her first amended petition after Christus moved to dismiss the

lawsuit. Specifically, Goodhew’s first amended petition claims that “[t]he violation of the



        2   To the extent Goodhew argues that requiring an expert report would amount to an “exercise in
futility,” we disagree. As previously discussed, Goodhew’s claim is directly related to health care. An
expert report could determine, as Goodhew alleges in her pleadings, whether Christus’s failure to provide
Goodhew with an escort, knowing that Goodhew was unable to support herself without assistance, was a
violation of appropriate standards of care.

        3 Texas Accessibility Standards (TAS) was promulgated by the Texas Commission of Licensing
and Regulation and published by the Texas Department of Licensing and Regulation pursuant to the
Architectural Barriers Act. See TEX. GOV'T CODE ANN. § 469.052 (West, Westlaw through 2013 3d C.S.)
(assigning obligations related to adoption of standards and specifications); Craig v. Beeville Family Prac.,
LLP, No. 13–10–00405–CV, 2012 WL 1656492 *3, (Tex. App.—Corpus Christi, May 10, 2012, no pet.).

        4Goodhew alleges that the restroom is located in the “wound care area” of the hospital. For the
purposes of this analysis, we will presume that the restroom is publicly accessible.
                                                     7
ADA by [d]efendant removes this case from a chapter 74 healthcare claim.”               We

disagree. This attempt at recasting her claim to remove it from the bounds of chapter 74

is expressly prohibited by the Texas Supreme Court. See Yamada, 335 S.W.3d at 195–

96 (holding that where all claims arise from the same nucleus of operative fact, and some

pleaded claims are HCLCs, then TMLA's procedural requirements must be followed or

else all claims arising from the same fact scenario must be dismissed). As previously

discussed, Goodhew’s premises liability and negligence claims are HCLCs. Therefore,

since all of Goodhew’s claims arose from the same operative facts, she must follow the

procedures of chapter 74. See id.

       Furthermore, chapter 74 does not prevent Goodhew from pursuing her ADA claim

in state court.   See Hyundai Motor Co. v. Alvarado, 974 S.W.2d 1, 4 (Tex. 1998)

(explaining that state law presents an actual conflict with federal law, and is preempted,

when it is impossible for a private party to comply with both state and federal requirements

or where state law stands as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.) The expert report requirement of chapter 74 is a

substantive hurdle for frivolous medical liability suits. Spectrum Healthcare Res., Inc. v.

McDaniel, 306 S.W.3d 249, 253 (Tex. 2010). In this case, requiring Goodhew to comply

with the expert report requirements of chapter 74 does not prevent her from bringing her

ADA claim; compliance with both state and federal law is possible. The expert report

requirements of chapter 74 do not obstruct Goodhew’s ADA claim which is subject to the

procedural provisions of chapter 74. See Tenet Hosp. Ltd. v. Boada, 304 S.W.3d 528,

534 (Tex. App.—El Paso 2009, no pet.) (holding that plaintiff’s Emergency Medical


                                             8
Treatment and Active Labor Act claim was really a health care liability claim and therefore

subject to procedural provisions of chapter 74); Johnson v. Nacogdoches County Hosp.

Dist., 109 S.W.3d 532, 536 (Tex. App.—Tyler 2001, no pet.) (holding same).

       Because the underlying facts are encompassed by provisions of the TMLA in

regard to Christus, all of Goodhew’s claims against Christus based on those facts must

be brought as health care liability claims. Application of the TMLA cannot be avoided by

splitting claims into both health care liability claims and other types of claims.        See

Yamada, 335 S.W.3d at 194. We sustain Christus’s first issue.

                                  III.    EXPERT REPORT

       By its second issue, Christus claims the trial court erred in denying its motion to

dismiss because Goodhew failed to serve an expert report within the 120-day deadline.

       Specifically, section 74.351(a) provides that:

       In a health care liability claim, a claimant shall, not later than the 120th day
       after the date 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); see Fulp v. Miller, 286 S.W.3d 501, 506–

07 (Tex. App.—Corpus Christi 2009, no pet.). If the claimant fails to serve an expert

report on the defendant physician or health care provider within the period specified by

subsection (a) of section 74.351, then, on the motion of the affected physician or health

care provider, the trial court shall dismiss claimant's claim with prejudice and award

reasonable attorney's fees and costs of court to the affected physician or health care

provider. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b); Chaney, 310 S.W.3d at


                                              9
85. The expert report period begins when the lawsuit is first filed, and does not restart if

the case is later non-suited and refiled. See CHCH Women’s Hosp., L.P. v. Lidji, 403

S.W.3d 228, 232 (Tex. 2013).

       More than 120 days passed from the day Goodhew filed her first lawsuit and the

day of her nonsuit. Dismissal of her case is required because Goodhew failed to comply

with section 74.351. The trial court incorrectly denied Christus’s motion to dismiss. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b); Lidji, 403 S.W.3d at 232; Chaney, 310

S.W.3d at 85. We sustain Christus’s second issue.

                                   IV.     CONCLUSION

       We reverse the trial court’s denial of Christus’s motion to dismiss and remand the

case to the trial court with instructions to dismiss Goodhew’s claims against Christus and

consider Christus’s request for attorney’s fees and costs.



                                                 GREGORY T. PERKES
                                                 Justice
Delivered and filed the
19th day of March, 2015.




                                            10
