                IN THE SUPREME COURT OF TEXAS
                                         444444444444
                                           NO . 13-0439
                                         444444444444

                                 LEZLEA ROSS, PETITIONER,
                                                 v.


                    ST. LUKE’S EPISCOPAL HOSPITAL, RESPONDENT

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


       JUSTICE LEHRMANN , joined by JUSTICE DEVINE , concurring.


       I join the Court’s opinion and agree that the claims asserted in this case have no connection

to the provision of health care. I write separately, however, to emphasize my concern that a statute

intended to address the insurance crisis stemming from the volume of frivolous medical-malpractice

lawsuits has become a nebulous barrier to what were once ordinary negligence suits brought by

plaintiffs alleging no breach of any professional duty of care.

       In Texas West Oaks Hospital, LP v. Williams, the Court held that a plaintiff’s claim against

a physician or health care provider may constitute a health care liability claim subject to the Texas

Medical Liability Act even where no patient–physician or patient–health-care-provider relationship

exists between the parties. 371 S.W.3d 171, 177–78 (Tex. 2012). In my dissent in that case, I

disagreed with the Court’s holding “that the mere peripheral involvement of a patient transforms an

ordinary negligence claim into a health care claim.” Id. at 194–95 (Lehrmann, J., dissenting). I
lamented what I viewed as the Court’s departure from the importance we had previously placed on

the relationship between health care providers and their patients in concluding that a patient’s claims

were covered by the Act. Id. at 196–97 (citing Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d

842 (Tex. 2005)). The consequences of that departure are evident in cases like this, in which

defendants who happen to be health care providers seek the protections of the Medical Liability Act

with respect to claims that have nothing to do with medical liability.

         The Court holds, and I agree, that a cause of action against a health care provider for a

departure from safety standards is a health care liability claim only if it has a “substantive

relationship” with the provision of medical or health care.1 ___ S.W.3d at ___. I write separately

to emphasize the significance of the third and fifth factors, which consider whether the claimant was

in the process of seeking or receiving health care at the time of the injury and whether the alleged

negligence was based on safety standards arising from professional duties owed by the health care

provider.

         As we recognized in Diversicare, the duty of care that health care providers owe to their

patients is fundamentally different from the duty of care owed to, say, employees or visitors. 185

S.W.3d at 850–51 (“The obligation of a health care facility to its patients is not the same as the

general duty a premises owner owes to invitees.”). To that end, when we held in Diversicare that

a nursing home resident’s claim that she was sexually assaulted by another resident was a health care

liability claim, we rejected the argument that the claim should be treated the same as that of a visitor


         1
            “Substantive” is defined as “considerable in amount or numbers: substantial.” W EBSTER ’S T H IR D N EW I N T ’L
D IC TIO N ARY 2280 (2002).

                                                             2
who had been assaulted at the facility precisely because of the distinct nature of those duties. Id.

We also distinguished the circumstances at issue in that case from hypothetical claims involving an

“unlocked window that gave an intruder access to the facility” and a “rickety staircase that gave

way,” which we implied would not constitute health care liability claims. Id. at 854. These

statements are consistent with our recognition that health care liability claims involve a “specialized

standard of care” that is established by expert testimony. Garland Cmty. Hosp. v. Rose, 156 S.W.3d

541, 546 (Tex. 2004); see also Jackson v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2007) (explaining

that a physician’s duty of care owed to a patient is that of “a reasonable and prudent member of the

medical profession . . . under the same or similar circumstances” (quoting Hood v. Phillips, 554

S.W.2d 160, 165 (Tex. 1977))).

       In my view, focusing a safety-standards claim on the duty health care providers owe to their

patients ensures that Diversicare’s hypothetical visitor-assault and rickety-staircase claims do not

fall under the Medical Liability Act’s umbrella. It also ensures that a covered cause of action will

“implicate[] the provision of medical or health care” in accordance with the Court’s holding in this

case. ___ S.W.3d at ___. With these considerations in mind, I respectfully join the Court’s opinion

and judgment.



                                                       _________________________________
                                                       Debra H. Lehrmann
                                                       Justice


OPINION DELIVERED: May 1, 2015


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