                                                                         ACCEPTED
                                                                     01-15-00141-CV
                                                          FIRST COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                                                               6/29/2015 12:00:00 AM
                                                               CHRISTOPHER PRINE
                                                                              CLERK

                   NO. 01-15-00141-CV
_______________________________________________________
                                                 FILED IN
                IN THE COURT OF APPEALS   1st COURT OF APPEALS
            FOR THE FIRST JUDICIAL DISTRICT HOUSTON, TEXAS
                  OF TEXAS AT HOUSTON     6/28/2015 4:56:19 PM
                                          CHRISTOPHER A. PRINE
        _______________________________________   Clerk
                                                        FILED IN
                     MADHUSUDAN SHAH               st
                                                  1 COURT OF APPEALS
                        APPELLANT                     HOUSTON, TX
                                                     June 29, 2015
                                                 CHRISTOPHER A. PRINE,
                            v.                          CLERK


     SODEXO SERVICES OF TEXAS LIMITED PARTNERSHIP
                       APPELLEE

    On appeal from the 55th Judicial District Court
                  Harris County, Texas
           Trial Court Cause No. 2014-20678
        _______________________________________


   FIRST AMENDED BRIEF OF APPELLANT MADHUSUDAN SHAH

        _______________________________________

                ORAL ARGUMENT REQUESTED


Kenneth R. Baird
Lead Counsel for Appellant
Texas Bar No. 24036172
The Baird Law Firm
2323 South Voss Road, Suite 325
(713)783-1113
(281)677-4227 (facsimile)
bairdlawfirm@hotmail.com

Attorney for Madhusudan Shah
                   NO. 01-15-00141-CV
              ___________________________

            IDENTITY OF PARTIES AND COUNSEL

Trial Counsel for Plaintiff/Appellant Madhusudan Shah

Arshad A. Ramji (Lead Counsel)
Texas Bar No. 24045209
Ramji & Associates, P.C.
2920 Virginia Street
Houston, Texas 77098
(713)888-8888
(866)672-3372 (facsimile)
ramji@ramjilaw.com

Kenneth R. Baird (Co-Counsel)
Texas Bar No. 24036172
The Baird Law Firm
2323 South Voss Road, Suite 325
Houston, Texas 77057
(713)783-1113
(281)677-4227 (facsimile)
bairdlawfirm@hotmail.com

Appellate Counsel for Plaintiff/Appellant Madhusudan
Shah

Kenneth R. Baird
Texas Bar No. 24036172
The Baird Law Firm
2323 South Voss Road, Suite 325
Houston, Texas 77057
(713)783-1113
(281)677-4227 (facsimile)
bairdlawfirm@hotmail.com

Trial and Appellate Counsel for Defendant/Appellee Sodexo
Services of Texas Limited Partnership

Nelson D. Skyler
Texas Bar No. 00784982


                            i
                   NO. 01-15-00141-CV
              ___________________________
nskyler@brownsims.com
Tarush R. Anand
Texas Bar No. 24055103
Neal A. Hoffman
Texas Bar No. 24069936
nhoffman@brownsims.com
1177 West Loop South, 10th Floor
Houston, Texas 77027
(713)629-1580
(713)629-5027 (facsimile)




                           ii
                                NO. 01-15-00141-CV
                           ___________________________


                                    TABLE OF CONTENTS

                                                                                                Page

Identity of Parties and Counsel ……...………….………………. i

Table of Contents ................................................................................... iii

Index of Authorities ………………………….………………………… v

Statement of the Case ……………...………………………….…..…… 1

Issues Presented ……………………...……………………………..…….. 3

Statement of Facts ……………………………...…………………..……. 4

Summary of Argument …………………...…………………………….…... 8

Argument ……………………………………………….………………….…. 14

        I.          Elements of Health Care Liability Claims ….. 14

        II.         The Court Should Apply a De Novo Standard
                    Of Review ……………………………………………….…... 15

        III.        Reversal of the Trial Court’s Decision is
                    Mandated Under Ross as Shah’s Tort Claims
                    Lack the Requisite Substantive Nexus With
                    Health Care ………………………………………………... 17

                    A.      The Ross Decision ………………………….…….. 17

                    B.      Ross Mandates Reversal of the Trial
                            Court’s Decision…………………………………... 22

                    C.      Ross’ Progeny Also Supports Reversal
                            of the Trial Court’s Decision …………….. 32


                                                   iii
                   NO. 01-15-00141-CV
              ___________________________

                                                   Page

   IV.   Pre-Ross Cases Remain Valid as Persuasive
         Authorities & Illustrate the Fallacies
         Associated With Trying to Label Shah’s
         Claims as Health Care Liability Claims ……... 35

         A.   Riverside General Hospital …………………. 35

         B.   Riverside General Hospital’s Logic……… 36
              Was Extended in Gonzalez

         C.   The Twilley Decision…………………………….. 37

         D.   The Dewey Decision ……………………………... 40

         E.   The Pre-Ross Decisions Support
              Reversal of the Trial Court’s
              Decision ……………………………………………... 41

   V.    Requiring an Expert Report Would Engraft
         a Superfluous and Pointless Requirement
         Onto Shah’s Negligence Claim …………………….. 42

   VI.   In the Alternative, Sodexo Should be
         Equitably Estopped From Seeking Dismissal
         of Shah’s Claims …………………………………………………………………. 45

Prayer ……………………………………………………….…….………….. 50

Certificate of Service ……………………………………..………… 51

Certificate of Compliance …………………………………..…….… 52

Appendix ……………………………………………………………….…….. 53




                           iv
                   NO. 01-15-00141-CV
              ___________________________

                  INDEX OF AUTHORITIES

                                                 Page(s)
Brazos Presbyterian Homes, Inc. v.
  Rodriguez, No. 14-14-00479-CV, 2015
  Texas App. LEXIS 5374 (Tex. App. ---
  Houston [14th Dist.] 5/28/15, no pet. h.)........33, 34

Buck v. Blum,
    130 S.W.3d 285 (Tex. App. --- Houston
    [14th Dist.] 2004, no pet.).......................16

Columbia Med. Ctr. of Denton Subsidiary, L.P.
  v. Braudrick, No. 02-13-00339-CV, 2014 Tex.
  App. LEXIS 5536 (Tex. App. --- Fort Worth
  2014, pet. filed) (memorandum opinion)..............14

DHS Mgmt. Services, Inc. v. Castro,
  435 S.W.3d 919 (Tex. App. --- Dallas 2014,
  no pet.)...........................................15

Gonzalez v. Diversicare Leasing Corp.,
  No. 01-13-00108-CV, 2014 Tex. App. LEXIS
  10576 (Tex. App. --- Houston [1st Dist.] 2014,
  pet. filed)....................................36, 37,
                                                     41

Good Shepherd Medical Center-Linden, Inc. v.
  Twilley,422 S.W.3d (Tex. App. --- Texarkana 2013,
  pet. denied)...................................37, 38,
                                                39, 40,
                                                 41, 43

Holland v. Friedman & Feiger,
  No. 05-12-01714-CV, 2014 Tex. App. LEXIS 12892
  (Tex. App. --- Dallas 2014, no pet. h.)............46




                            v
                   NO. 01-15-00141-CV
              ___________________________
                                                Page(s)
Loaisiga v. Cerda,
  379 S.W.3d 248 (Tex. 2012).....................14, 16,
                                                 18, 23

Lance Thai Tran, DDS, P.A. v. Chavez,
  No. 14-14-00318-CV, 2015 Tex. App. LEXIS
  4886 (Tex. App. --- Houston [14th Dist.]
  5/14/15, no pet. h.) ..............................33

Lout v. Methodist Hosp.,
  No. 14-04-00302, CV, 2015 Tex. App. LEXIS
  6272 (Tex. App. --- Houston [14th Dist.]
  6/23/15, no pet. h.)...............................33

Marks v. St. Luke’s Episcopal Hosp.,
  319 S.W.3d 658 (Tex. 2010).........................15

MCI Sales & Services, Inc. v. Hinton,
    329 S.W.3d 475 (Tex. 2010), cert. denied,
    131 S.Ct. 2903, 179 L. Ed. 2d 1246, 2011
    U.S.LEXIS 3990, 79 U.S.L.W. (2011)...............15

Methodist Healthcare System of San Antonio
  v. Dewey, 423 S.W.3d 516 (Tex. App. ---
  San Antonio 2014, pet. filed)......................40,
                                                  41, 43

McIntyre v. Ramirez,
    109 S.W.3d 741 (Tex. 2003)........................15

Ross v. St. Luke’s Episcopal Hospital,
  No. 13-0439, 2015 Tex. LEXIS 361 (Tex.
  5/1/15) (publication status pending)............passim

Sherman v. HealthSouth Specialty Hospital, Inc.,
  397 S.W.3d 869 (Tex. App. --- Dallas 2013, pet.
  denied)............................................15




                           vi
                    NO. 01-15-00141-CV
               ___________________________
                                                   Page(s)
Texas Dept. of Transportation v. Needham,
  82 S.W.3d 314 (Tex. 2002)...........................15

Tex. Lottery Comm’n v. First State Bank of
  DeQueen, 325 S.W.3d 628, 635 (Tex. 2010)............16

Texas West Oaks Hospital, L.P. v. Williams,
  371 S.W.3d 171 (Tex. 2012)......................passim

Union Carbide v. Synatzske,
  438 S.W.3d 39 (Tex. 2014)...........................16

Williams v. County of Dallas,
    194 S.W.3d 29 (Tex. App. --- Dallas 2006,
    pet. denied).....................................46

Williams v. Riverside General Hospital, Inc.,
  No. 01-13-00335-CV, 2014 Tex. App. LEXIS 9681
  (Tex. App. --- Houston [1st Dist.] 2014, no pet.
  h.) (memorandum opinion)........................passim

Valley Regional Medical Ctr. v. Camacho,
  No. 13-14-00004-CV, 2015 Tex. App. LEXIS
  4967 (Tex. App. --- Corpus Christi 5/14/15,
  no pet. h.).........................................33

Yamada v. Friend,
  335 S.W.3d 192 (Tex. 2010)..........................15

Statutes & Rules

TEX. CIV. PRAC. & REM. CODE § 74.001, et. Seq.........passim

TEX. CIV. PRAC. & REM. CODE § 74.001(13) .................14

TEX. R. CIV. P. 194.2(c) .......................3, 12, 45,
                                                46, 48, 49

TEX. R. CIV. P. 193.6(a) ...........................46, 48


                             vii
                      NO. 01-15-00141-CV
                 ___________________________

                    STATEMENT OF THE CASE

     On April 14, 2014, Madhusudan Shah1 commenced the

underlying litigation in the District Courts of Harris

County.2   Shah’s claims sounded in common law negligence

and related to personal injuries sustained on August 1,

2013 when he was struck by a beverage cart operated by

Sodexo Services of Texas Limited Partnership3 while Shah

was on the premises of non-party Ben Taub Hospital.4

Sodexo filed its Original Answer on May 23, 2015.5

     On December 19, 2014, Sodexo filed its Motion to

Dismiss for Failure to Provide a Timely and Complete

Chapter 74 Expert Report.6       Shah filed a timely response

opposing the Motion to Dismiss7 and reply and sur-reply

briefs were also filed by the parties.8         An oral hearing


1 Hereinafter “Shah”
2 Clerk’s Record (hereinafter “CR”) 4-8.
3 Hereinafter “Sodexo”
4 Id.
5
  CR 18-20. Although Shah originally named five separate defendants
in the suit, Shah later non-suited the other defendants after
learning that Sodexo was the responsible party. See CR 27-28.
6 CR 158-281.   Hereinafter, Shah refers to the Motion to Dismiss
for Failure to Provide a Timely and Complete Chapter 74 Expert
Report as “Motion to Dismiss.”
7 CR 284-314.
8 CR 386-395 & 400-402.



                                 1
                      NO. 01-15-00141-CV
                 ___________________________
on   the   Motion to Dismiss was conducted            by   the   55th

Judicial District Court on January 12, 2015.9

       On January 16, 2015, the 55th Judicial District Court

of Harris County entered an order granting Sodexo’s

Motion to Dismiss.10    Shah filed a timely Notice of Appeal

with    the   Harris   County   District    Clerk’s    Office     on

February 12, 2015.11




9  CR 282-283.    The oral hearing on the Motion to Dismiss was
conducted without a record.
10 CR 413.   Although there was initially some uncertainty as to
whether or not the 55th Judicial District Court’s order was an
appealable final judgment as it left unresolved Sodexo’s claim for
attorney’s fees and costs under Chapter 74 of the Texas Civil
Practice & Remedies Code, Sodexo later waived its claim for
attorney’s fees and costs and the parties submitted a joint
stipulation to the Honorable Court of Appeals on March 19, 2015
stipulating that 55th Judicial District Court’s Order was a final
judgment and requesting that the Honorable Court of Appeals resolve
the substantive legal issues raised by this appeal. A copy of the
stipulation is included in the Appendix.
11 CR 416 to 419.



                                 2
                      NO. 01-15-00141-CV
                 ___________________________

                       ISSUES PRESENTED

     (1) Under the Supreme Court’s recent opinion in Ross,12
         including   the    seven   non-exclusive    factors
         identified by the Supreme Court as guideposts for
         the analysis, do Shah’s tort claims have a
         substantive relationship with the provision of
         medical or health care such that they can be
         properly classified as health care liability
         claims under Chapter 74 of the Texas Civil Practice
         & Remedies Code?

     (2) Would requiring Shah to obtain an expert report
         add anything of substance to Shah’s claims or would
         it merely provide Sodexo with an unwarranted
         procedural advantage under the guise of regulating
         health care?

     (3) Can a defendant avoid its obligation to disclose
         its “basic assertions” under Rule 194.2(c) by
         waiting until after a plaintiff’s one-hundred and
         twenty day deadline to serve a Chapter 74 report
         expires before it reveals that it may elect to seek
         dismissal of the plaintiff’s claims for failure to
         satisfy the expert report requirement?




 Ross v. St. Luke’s Episcopal Hospital, No. 13-0439, 2015 Tex.
12

LEXIS 361 (Tex. 2015) (publication status pending)


                               3
                         NO. 01-15-00141-CV
                    ___________________________

                          STATEMENT OF FACTS

       On or about August 1, 2013, Shah was a resident at

Ben Taub Hospital for cancer treatment.13              As he was

attempting to retrieve a cup of coffee from a vending

machine, Shah was struck by a beverage cart which was

operated by an employee of Sodexo.14               Shah sustained

severe and disabling injuries to his knee, back, stomach,

feet, and body general as a result of being knocked to

the ground by the beverage cart.15

       The gravamen of Shah’s negligence claim is that

Sodexo’s employee breached his or her duty to operate the

beverage cart with reasonable care.16 In particular, Shah

alleges      that   the    employee   who   was   responsible   for

operating the cart was negligent in not watching where

he or she was pushing the cart, pushing the cart at an

unsafe rate of speed, not keeping a proper lookout, not

paying attention, not detecting Shah’s obvious presence



13   CR 4.
14   Id.
15   Id.
16   CR 5.


                                  4
                   NO. 01-15-00141-CV
              ___________________________
near the vending machine, and generally operating the

cart     in   a   random,     haphazard,     and     careless    manner

inconsistent with his or her duty of reasonable care.17

Shah’s    claims     relate     to   the   proper    operation    of    a

beverage cart and do not encompass any medical issues.

       Sodexo’s Motion to Dismiss was predicated upon the

position that Shah’s claims are health care liability

claims within the meaning of Chapter 74 of the Texas

Civil Practice & Remedies Code and that dismissal of the

claims    was     appropriate    since     Shah    failed   to   file   a

written expert report within one-hundred and twenty days

from the date Sodexo filed its answer.18               At the ensuing

oral hearing on January 16, 2015, the parties and the

trial court discussed the proper interpretation of the

Texas West Oaks Hospital19 decision as well as various

intermediate appellate court decisions relevant to the

nature and scope of the Supreme Court’s decision.

17 Id.
18 See Generally CR 158 to 281. Shah concedes that he did not file
an expert report within the one-hundred and twenty day period but
contends that no such report was necessary as his claims do not
fall within the purview of Chapter 74.
19 Texas West Oaks Hospital, L.P. v. Williams, 371 S.W.3d 171 (Tex.

2012).


                                     5
                    NO. 01-15-00141-CV
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     At the time the trial court heard oral argument on

Sodexo’s Motion to Dismiss, the Ross decision was not

available as a guide as the case was still pending before

the Texas Supreme Court.20          While Shah disagrees with the

trial court’s analysis of the issues before it under the

state of the law at that time, the legal arguments

presented to the trial court are largely moot as Ross

clarified the uncertain nature of the law under Texas

West Oaks Hospital which existed at the time the trial

court rendered its decision.            As a result, Shah focuses

his Amended Brief on Ross’ holding that a substantive

nexus   must      exist   between   a   claim     based    upon   safety

standards and the provision of health care before a tort

claim   can       be   properly   classified      as   a   health   care

liability claim under Chapter 74 of the Texas Civil

Practice      &    Remedies   Code.21   As   no    such    substantive

relationship exists between Shah’s tort claims and the


20 The Ross decision was issued by the Texas Supreme Court on May
1, 2015.
21 On May 29, 2015, the Court granted Shah leave to file an amended

brief in light of the fact that the Ross decision was not issued
until after Shah’s original brief was filed. A copy of the Order
is included in the Appendix as Tab C.


                                    6
                  NO. 01-15-00141-CV
             ___________________________
provision of health care services, the Court should

reverse the trial court’s ruling on Sodexo’s Motion to

Dismiss and remand this matter to the trial court for

further proceedings.




                          7
                      NO. 01-15-00141-CV
                 ___________________________


                     SUMMARY OF ARGUMENT

    Under Ross, a tort claim predicated upon alleged

departures   from    safety   standards    must   exhibit   a

substantive nexus with the provision of health care

services before it can be labeled a health care liability

claim under Chapter 74 of the Texas Civil Practice &

Remedies Code.    Although the question of whether or not

such a substantive relationship exists is a decision to

be made on a case by case basis, the Texas Supreme Court

has articulated a list of seven non-exclusive factors

which may be used as part of the analysis.        Before the

factors are even applied, it is clear from the nature of

Shah’s tort claims that the operation of a beverage cart

falls far outside the reach of Chapter 74.        Shah’s tort

claims are grounded in the common law duty of reasonable

care and the question of whether or not Sodexo’s employee

operated the cart in a reasonable fashion can be resolved

without reference to any medical standards.




                              8
                   NO. 01-15-00141-CV
              ___________________________
    An application of the seven Ross factors reinforces

the conclusion that Shah’s claims are not health care

liability claims as they lack a substantive nexus with

the provision of health care services and at best have a

marginal and insignificant relationship to the cancer

treatment Shah was receiving from non-party Ben Taub

Hospital when the underlying accident occurred.     While

the application of one of the factors is unclear, a

reasoned consideration of the other six indicate that the

requisite substantive relationship to health care is

lacking.   As a result, the Court should reverse the trial

court’s ruling on Sodexo’s Motion to Dismiss.

    The four intermediate appellate decisions which have

had an opportunity to analyze and apply Ross further

militate in favor of the conclusion that a substantive

relationship between Shah’s tort claims and health care

is lacking.   All four decisions were decided in favor of

plaintiffs who argued that Chapter 74 was inapplicable

to their respective tort claims.   As any factual or legal

distinctions between those decisions and the case sub



                             9
                   NO. 01-15-00141-CV
              ___________________________
judice would be nothing more than arbitrary distinctions

without a difference, it is clear that Shah’s tort claims

are not health care liability claims within the meaning

of Chapter 74 of the Texas Civil Practice & Remedies

Code.

     Although they may be characterized as non-binding

authorities due to the fact that they were decided before

the announcement of the substantive relationship standard

in   Ross,   a   series   of     intermediate   appellate    court

decisions remain persuasive as they highlight the logical

fallacy which would result in the event that Shah’s

claims are forced under the rubric of Chapter 74.                  As

there is no substantive difference between the injury-

producing activity in those cases and this matter, it is

clear    that    Shah’s   tort    claims   do   not    satisfy    the

statutory definition of a health care liability claim

regardless of whether that definition is construed under

Ross or pre-Ross standards.

     Regardless of how Ross is interpreted, the Court

should    decline    Sodexo’s      invitation     to    engraft     a



                                  10
                   NO. 01-15-00141-CV
              ___________________________
superfluous and unnecessary procedural requirement onto

Shah’s negligence claim under the guise of regulating

health care.     Assuming for the sake of argument that Shah

could locate a physician or other type of health care

provider who had the requisite expertise to address

standard of care issues relative to the operation of a

beverage cart, the safe operation of a beverage cart does

not implicate medical or health care standards.          Infusing

expert opinions from a physician or other health care

provider into the midst of this case would not benefit

the trier of fact or otherwise add anything of substance

to the litigation.       While requiring Shah to produce an

expert report would provide Sodexo with an unwarranted

tactical advantage, the purpose of Chapter 74 is not to

erect procedural hurdles for plaintiffs in non-medical

cases.

      In the alternative and in the unlikely event that

the   Court   believes   that   Chapter     74’s   expert   report

requirement is applicable to Shah’s claims, the Court

should   apply    the   doctrine     of   equitable   estoppel   to



                                11
                   NO. 01-15-00141-CV
              ___________________________
prevent Sodexo from seeking dismissal of Shah’s claims

due to the fact that Sodexo failed to provide a full

disclosure of its “basic assertions” under Rule 194.2(c).

Sodexo’s basic assertions at the time it responded to

Shah’s Requests for Disclosure on July 23, 201422 should

have included the fact that it might seek dismissal of

Shah’s claims for failure to comply with Chapter 74’s

expert report requirement.              However, Sodexo failed to

include any reference to Chapter 74 in its response to

194.2(c)23 and instead interjected Chapter 74 into the

case for the first time when the Motion to Dismiss was

filed on December 19, 2014.24              To fail to invoke the

doctrine of equitable estoppel under these circumstances

would effectively convert Chapter 74 into a trap door

that a defendant can spring open at a strategic time in

order to catch an unsuspecting plaintiff who has no

knowledge that an expert report is even required.                   As

such     an   outcome   does     not    further   the   interests   of



22   CR 342.
23   CR 343.
24   See Generally CR 158-281.


                                   12
                   NO. 01-15-00141-CV
              ___________________________
justice, the application of equitable estoppel mandates

the reversal of the trial court’s decision on Sodexo’s

Motion to Dismiss.




                          13
                      NO. 01-15-00141-CV
                 ___________________________
                           ARGUMENT

     I. Elements of Health Care Liability Claims

     Chapter 74 of the Texas Civil Practice & Remedies

Code defines a health care liability claim as follows:

     “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 heath 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.25

     Based upon the statutory definition, a health care

liability claim has three distinct elements: (1) the

defendant is health care provider; (2) the claim at issue

concerns treatment, lack of treatment, or other claimed

departure from accepted standards of medical care; and

(3) the defendant’s alleged act or omission proximately

caused the injury.26




25See TEX. CIV. PRAC. & REM. CODE § 74.001(13).
26See Loaisiga, 379 S.W.3d at 255; Columbia Medical Ctr. of Denton
Subsidiary, L.P. v. Braudrick, No. 02-13-00339-CV, 2014 Tex. App.
LEXIS 5536, *3 (Tex. App. --- Fort Worth 2014, pet. filed)
(memorandum opinion).


                                14
                   NO. 01-15-00141-CV
              ___________________________
     In order to determine if a claim satisfies the

requisite elements of a health care liability claim, the

nature of the claim being asserted must be examined with

emphasis   on   the   essence   of   the   claim,   the   alleged

wrongful conduct, and the duties allegedly breached.27

     II. The Court Should Apply a De Novo Standard of
     Review

     The question of whether or not Appellant’s claims

fall within the scope of Chapter 74 of the Texas Civil

Practice & Remedies Code is a question of statutory

interpretation which triggers a de novo review.28               In

reviewing a statute, the goal is to “determine and give

effect to the Legislature’s intent” and the touchstone

of the analysis should be the “plain and common meaning

of the statute’s words.”29 In such an analysis, statutory



27 See Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010); DHS Mgmt.
Servs, Inc. v. Castro, 435 S.W.3d 919, 921 (Tex. App. --- Dallas
2014, no pet.); Sherman v. HealthSouth Specialty Hospital, Inc.,
397 S.W.3d 869, 702 (Tex. App. --- Dallas 2013, pet. denied)
28 See Texas West Oaks Hospital, 371 S.W.3d at 177; Marks v. St.

Luke’s Episcopal Hospital, 319 S.W.3d 658, 663 (Tex. 2010); MCI
Sales & Services, Inc. v. Hinton, 329 S.W.3d 475, 500 (Tex. 2010),
cert. denied, 179 L. Ed. 2d 1246, 2011 U.S. LEXIS 3990, 79 U.S.L.W.
(2011.
29 See Texas Dept. of Transportation v. Needham, 82 S.W.3d 314, 318

(Tex. 2002); McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003).


                                15
                   NO. 01-15-00141-CV
              ___________________________
language should be afforded its plain and common meaning

unless statutorily defined otherwise, a different meaning

is apparent from the context, or a certain construction

would      lead     to   absurd       or    nonsensical       results.30

Ascertaining      legislative     intent        requires    reading   the

statute as a whole with all of its language placed in the

proper context.31

     When    determining       whether     or    not   a   claimant   has

asserted a health care liability claim, an appellate

court   should      consider    the     entire    record    before    it,

including     the    pleadings,    motions       and   responses,     and

relevant evidence properly admitted at the trial court

level.32




30 See Ross, 2015 Tex. LEXIS 361 at *8; Tex. Lottery Comm’n v.
First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010).
31 See Ross, 2015 Tex. LEXIS 361 at *8; Union Carbide Corp. v.

Synatzske, 438 S.W.3d 39, 51 (Tex. 2014).
32 See Texas West Oaks Hospital, 371 S.W.3d at 177; Loaisiga, 349

S.W.3d at 258; Riverside General Hospital, 2014 Tex. App. LEXIS
9681 at *5; Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App. ---
Houston [14th Dist.] 2004, no pet.)


                                   16
                      NO. 01-15-00141-CV
                 ___________________________
       III. Reversal of the Trial Court’s Decision is
       Mandated Under Ross as Shah’s Tort Claims Lack the
       Requisite Substantive Nexus With Health Care

       A. The Ross Decision

       Lezlea Ross was a visitor at St. Luke’s Episcopal

Hospital33     As Ross was walking through the lobby in order

to exit the hospital, she slipped and fell on the floor

which was in the process of being cleaned and buffed.34

Ross subsequently filed suit against St. Luke’s and the

cleaning      contractor   for   the   hospital   on    a   premises

liability theory.35

       After the trial court and the Fourteenth Court of

Appeals labeled Ross’ claims as health care liability

claims, the Texas Supreme Court had an opportunity to

clarify the confusion created by the Texas West Oaks

Hospital decision concerning the proper standard for

defining health care liability claims.            After reviewing

Chapter      74’   statutory     definition   for      health   care

liability claims as well as the Texas West Oaks Hospital



33   Hereinafter “St. Luke’s”
34   See Ross, 2015 Tex. LEXIS 361 at *2.
35   Id.


                                  17
                   NO. 01-15-00141-CV
              ___________________________
and Loaisiga36 decisions,37 the Court announced a new

standard for distinguishing between health care liability

claims and ordinary tort claims that happen to occur on

the premises of a health care provider.

     The court prefaced its holding with three several

key principles related to the purpose of Chapter 74 as

well as its proper application. First, the court expanded

the prior holding in Loasigia to safety-based claims38 by

noting that a claim based upon alleged departure from

safety does not fall underneath Chapter 74’s umbrella

merely because the underlying injury took place on the

premises    of   a    health   care    provider   or   because   the

defendant is a health care provider.39             The court also

noted that a health care provider may assume tort duties

related to maintenance or generalized safety for its

patrons which are indistinguishable from corresponding

duties     acquired     by     non-medical   business     owners.40

36 Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012).
37 See Ross, 2015 Tex. LEXIS 361 at *7 to 14.
38 Loaisiga was decided in the context of an intentional tort claim

where a patient was assaulted as opposed to a negligence claim
based on alleged departures from safety standards.
39 See Ross, 2015 Tex. LEXIS at *14.
40 Id. at *14-15.



                                  18
                   NO. 01-15-00141-CV
              ___________________________
Finally, the court recognized that the text of Chapter

74 does not specifically state that a safety-based tort

claim falls within its domain only if the underlying

claim has some relationship to the provision of health

care services.        However, the court found that such a

relationship must have been intended by the legislature

given other expressions of legislative intent in the

statute     coupled   with   the    context   in   which   “safety”

appears in the statute.41

       Perhaps the most important observation made by the

court in its review of the statutory language is the

effect the statute would have if all safety-based claims,

regardless of their relationship to traditional health

care, were forced into the realm of Chapter 74.             As the

court eloquently stated, nonsensical results would occur

if all plaintiffs who sue health care providers were

required to obtain an expert report regardless of the

nature of the underlying claim in dispute:

       “the broad meaning of ‘safety’ would afford
       defendant health care providers a special
       procedural advantage in the guise of requiring
41   Id. at *15.


                                   19
                      NO. 01-15-00141-CV
                 ___________________________
       plaintiffs to file expert reports in their suits
       regardless of whether their cause of action
       implicated the provision of medical or health
       care. We do not believe the Legislature intended
       the statue to have such arbitrary results.”42

       Based upon the aforementioned reasoning, the court

clarified the law as to health care liability claims by

holding that there must be a substantive nexus between

the safety standards allegedly breached and the provision

of health care before a safety-based tort claim qualifies

as a health care liability claim under Chapter 74.43            The

court clarified that the “pivotal issue” in a safety

based tort claim is whether the standards on which the

claim is based implicate the defendant’s duties as a

health care provider, including the duties to provide for

patient safety.44

       As   a   guide   in   determining   whether   or   not   the

requisite substantive nexus exists, the court articulated

a list of non-exclusive factors which serve as guideposts




42   Id. at *16-17.
43   Id. at *17-18.
44   Id. at *18-19.


                                  20
                   NO. 01-15-00141-CV
              ___________________________
in distinguishing between health care liability claims

and ordinary tort claims:

        (1) Did the alleged negligence of the
            defendant occur in the course of the
            defendant’s performing tasks with the
            purpose of protecting patients from
            harm?

        (2) Did the injuries occur in a place where
            patients might be during the time they
            were receiving care, so that the
            obligation of the provider to protect
            persons who require special, medical
            care was implicated?

        (3) At the time of the injury, was the
            claimant in the process of seeking or
            receiving health care?

        (4) At the time of the injury was the
            claimant providing or assisting in
            providing health care?

        (5) Is the alleged negligence based on
            safety    standards    arising    from
            professional duties owed by the health
            care provider?

        (6) If an instrumentality was involved in
            the defendant’s negligence, was it a
            type used in providing health care?

        (7) Did the alleged negligence occur in the
            course of the defendant’s taking action
            or failing to take action necessary to
            comply with safety-related requirements




                            21
                        NO. 01-15-00141-CV
                   ___________________________
                 set for health care providers by
                 governmental or accrediting agencies?45

       After   finding    that   none    of     the   seven    factors

supported      any    relationship    between    a    slip    and   fall

accident in the lobby of a hospital and the hospital’s

provision of medical services, the court reversed the

judgment of the court of appeals and remanded the case

back to the trial court.46

       B. Ross Mandates Reversal of the Trial Court’s
       Decision

       Assuming for the sake of argument that there is any

relationship at all between a patient being struck by a

beverage cart while attempting to retrieve a cup of

coffee and the provision of health care services, the

relationship falls exceedingly short of the substantive

nexus required under Ross.       Even before the seven factors

which were provided by the court as guides in Ross are

examined, it is clear from a simple review of the facts

which engendered Shah’s tort claims that there is no

meaningful relationship between Shah’s injury and the


45   Id. at *19-20.
46   Id. at *20-21.


                                 22
                    NO. 01-15-00141-CV
               ___________________________
provision of health care services. While Shah was injured

while he was physically on the premises of non-party Ben

Taub Hospital, it was mere happenstance that the beverage

cart was being pushed through a hospital as opposed to a

non-medical establishment and no legitimate argument can

be advanced that the operation of a beverage cart has

even a tangential connection to the provision of health

care services.     Furthermore, Loaisiga and Ross make it

clear that the situs of injury itself is a non-factor in

deciding how to classify Shah’s tort claims.

       Applying the seven factors identified in Ross further

reinforces the conclusion that there is no substantive

relationship between being struck by a beverage cart and

health care.      While the application of one factor is

unclear, the remaining six considerations all militate

in favor of Shah’s position that a meaningful connection

between his tort claims and health care is lacking.

        Arguably, Shah was in a “place where patients might

be during the time they were receiving care”47 when he



47   Id. at *19


                              23
                   NO. 01-15-00141-CV
              ___________________________
was obtaining a cup of coffee as patients can reasonably

be expected to walk into common areas of the hospital.

However, the latter part of the second factor militates

against classifying Shah’s claims as Sodexo had no duty

to protect Shah based upon his receipt of special medical

care when the accident in question occurred.       While

Sodexo had a common law tort duty to operate the beverage

cart with reasonable care so as to protect Shah from

generalized harm, this duty had nothing to do with Shah’s

medical status or the cancer treatment he was receiving

from non-party Ben Taub Hospital.   “Harm” as used by the

court in Ross has to refer to medical-based harms for the

factor to have any usefulness and it is clear that Sodexo

was not protecting Shah from any type of medical-based

harm by pushing a beverage cart through the hallways of

a hospital.   Since the application of the second factor

cuts both ways and is inconclusive, it has no impact on

the ultimate question of how Shah’s tort claims should

classified.




                           24
                      NO. 01-15-00141-CV
                 ___________________________
       A reasoned application of the remaining six factors

demonstrate that there is no substantive relationship

between    the   safety    standards     breached     by   Sodexo   in

connection with its allegedly negligent operation of the

beverage cart and the provision of health care services.

As to the first factor, Sodexo’s alleged negligence did

not occur in the course of Sodexo performing tasks which

had the purpose of protecting Shah from harm. Once again,

“harm” should be construed as medical-based harm for this

factor to have any usefulness and Sodexo’s operation of

a beverage cart in the hallways and common areas of Ben

Taub Hospital clearly was not an activity intended to

protect Shah from medical-based harm.            While the doctors

who were treating Shah for cancer had a duty to protect

Shah     from    medical-based        harms    when   administering

treatment, no similar obligation arose in the lobby near

the    vending   machine    where     Sodexo   was    operating     the

beverage cart.       Furthermore, the common law duty to

operate a beverage cart with reasonable care is entirely

non-medical in nature and is indistinguishable from the



                                 25
                   NO. 01-15-00141-CV
              ___________________________
tort duty imposed on the operators of beverage carts at

sporting events or other non-medical settings.               Ross was

clear that such duties, which are indistinguishable from

the duties placed on non-medical business owners, do not

create a health care liability claim.48

           Shah anticipates that Sodexo will argue that its

role in delivering food and drink items to patients

creates a duty to protect Shah from injury which allows

the second factor support its position.                However, such

an argument misconstrues the second factor and the spirt

of the holding in Ross.          While the transport of food and

drink       through   a     hospital    may    spawn   a   tangential

connection       to   the    health     care   services    which   are

delivered by the hospital to patients, it does not create

the type of “substantive nexus” between Shah’s underlying

accident and the provision of health care services which

is necessary under Ross to create a health care liability

claim.       Furthermore, “harm” in the context of the first

factor has to be interpreted as “medical-based harm” for



48
     Id. at *14-15.


                                   26
                   NO. 01-15-00141-CV
              ___________________________
the Ross analysis to have any significance.          Otherwise,

any duty to protect against any type of patient harm

would create a health care liability claim which clearly

was not the intent of the Texas Supreme Court.

    Guarding against the risk of injury created by the

unsafe operation of a beverage cart while a patient is

in a common area of the hospital is a generalized tort

obligation that is entirely non-medical in nature and the

existence of the duty has nothing to do with Shah’s status

as a cancer patient at Ben Taub Hospital.          Sodexo’s duty

to Shah is analogous to the duty of St. Luke’s Hospital

to buff and clean floors in a manner which prevented

visitors from slipping and falling in the hospital’s

lobby.   However, neither tort duty is directed towards

protecting patients from medical-based harms and does not

create   a   substantive   nexus   with   health    care   merely

because the duty is carried out the physical premises of

a hospital.




                              27
                   NO. 01-15-00141-CV
              ___________________________
     The third factor and fourth factors also support

reversal of the trial court’s decision as Shah was not

the process of seeking or receiving health care when he

walked to vending machine in order to obtain a copy of

coffee nor was he providing or assisting in the provision

of health care when he was struck by the beverage cart

in front of the vending machine.          To the contrary, the

underlying accident occurred while Shah was taking a

break   from   medical   treatment   in   order    to    obtain   a

beverage in a common area of the hospital.

     Shah again anticipates that Sodexo will attempt to

misconstrue the third factor as part of a disingenuous

attempt to force Shah’s non-medical claims into the realm

of   Chapter   74.   While   patients     might   be    reasonably

expected to walk into the common areas of a hospital

while waiting for an appointment with a doctor or while

taking a break from treatment, Shah’s decision to obtain

a cup of coffee from a vending machine in the hallway was

not made in furtherance of his cancer treatment.              The

fact that Sodexo pushed beverage carts through the common



                              28
                   NO. 01-15-00141-CV
              ___________________________
areas and that Sodexo was charged with distributing food

and drink items throughout the hospital does not make the

retrieval of a cup of coffee a medical event and no health

care services were being administered by anyone at the

time of Shah’s injury.

    The fifth factor also points in Shah’s direction as

the alleged negligence on Sodexo’s part is not based on

safety standards arising from professional duties owed

by Sodexo to a patient.           While Sodexo did have an

obligation to adhere to certain safety standards while

operating the beverage cart, the applicable standards

flow from the common law duty of reasonable care and have

no connection whatsoever to medical treatment. Even more

importantly, the safety standards applicable to the safe

operation    of   a   beverage    cart   do   not   implicate

professional medical judgment and can be resolved by the

trier of fact without resort to medical or health care

standards.

    Someone pushing a beverage cart through a hotel, an

office building, or at a sports stadium would have the



                             29
                   NO. 01-15-00141-CV
              ___________________________
same “professional duty” as Sodexo and the operation of

a beverage cart in a medical or a non-medical setting

does not give rise to professional duties which are in

anyway related to the provision of health care. The

professional duties assumed by Sodexo were entirely non-

medical in nature and are functionally distinct from the

professional obligation a physician owes a patient.                       The

fact that Sodexo’s duties happened to be carried out

while   it   was   transporting        food    and    drink      through    a

hospital     is    irrelevant    as     the    nature       of     Sodexo’s

underlying     tort     duty   could    not    possibly       be   further

removed from medical treatment and is no different from

duties acquired by vendors in non-hospital settings.

     The final two factors solidify the conclusion that

Shah’s claims lack any meaningful connection to health

care.      The beverage cart, which is the instrumentality

in question, is a non-medical piece of equipment which

is   not    used   to   administer      health       care   and     had    no

relationship whatsoever to the cancer treatment Shah was

receiving at Ben Taub Hospital.               While Shah anticipates



                                  30
                    NO. 01-15-00141-CV
               ___________________________
that Sodexo will argue that the beverage cart is a health

care instrumentality as it was used to transport food and

drink throughout the hospital and therefore relates to

patient nutrition, construing “instrumentality” in this

manner     would    render          the    entire      analysis   under   Ross

obsolete as any physical item on a hospital premises

would    then   be       an    “instrumentality”          that    supports   a

connection to health care. Such an arbitrary result would

essentially render the “substantive nexus” requirement

meaningless        and        make    all       tort    claims    based   upon

departures from safety standards health care liability

claims.      As this was clearly not the Supreme Court’s

intent     in   Ross,         the    Court       should    reject    Sodexo’s

misplaced attempt to spin factor six in favor of a more

reasoned interpretation of Ross.

     Finally, Sodexo’s alleged negligence was not in the

course of Sodexo taking action to comply with safety-

related requirements set for health care providers by

governmental or accrediting agencies.                     Shah is not aware

of   any    safety-related                requirements      promulgated      by



                                           31
                     NO. 01-15-00141-CV
                ___________________________
governmental    or accrediting agencies for              the    safe

operation of a beverage cart and the safe operation of a

beverage cart is guided solely by the common law duty of

reasonable care.      Shah’s allegations that the operator

of the beverage cart pushed the cart at an unsafe rate

of speed, failed to keep a proper lookout, failed to pay

attention to people in the vicinity of the cart’s path,

and failed to detect his obvious presence in front of the

vending machine do not relate to medical standards issued

by    governmental   or     accrediting      agencies.     To    the

contrary, these alleged acts of negligence spring from

the   non-medical    duty    to   push   a   beverage    cart   with

reasonable care and Sodexo’s negligence would not be any

different if the accident in question had occurred in a

non-medical setting.

      C. Ross’ Progeny Also Supports Reversal of the Trial
      Court’s Decision

      Due to its recent issuance, only four intermediate

appellate courts have had an opportunity to analyze and

apply the Ross’ “substantial nexus” holding.              However,

all four cases were decided in favor of plaintiffs who


                                  32
                   NO. 01-15-00141-CV
              ___________________________
argued that Chapter 74 was inapplicable to their claims

and there is not yet a reported decision in Texas where

the substantive nexus has been satisfied. These decisions

involved a slip and fall in a hospital lobby,49 an injury

in an elevator at a nursing home,50 a visitor struck by

an automatic sliding door at a hospital,51 and a slip and

fall in the break room of a dental office.52           As there is

no substantive difference between being struck by a

beverage   cart   while   retrieving    a   cup   of   coffee   and

slipping and falling in the lobby of a hospital or dental

office’s break room or being injured due to an elevator

or a sliding door, the outcome in the case sub judice

should be the same as the result reached by the four




49 See Lout v. Methodist Hospital, No. 14-04-00302-CV, 2015 Tex.
App. LEXIS 6272 (Tex. App. --- Houston [14th Dist.] 6/23/15, no
pet. h)
50 See Brazos Presbyterian Homes, Inc. v. Rodriguez, No. 14-14-

00479-CV, 2015 Tex. App. LEXIS 5374 (Tex. App. – Houston [14th
Dist.] 5/28/15, no pet. h.)
51 See Valley Regional Medical Center v. Camacho, No. 13-14-00004-

CV, 2015 Tex. App. LEXIS 4967 (Tex. App. --- Corpus Christi
5/14/15, no pet. h.)
52 See Lance Thai Tran, DDS, PA v. Chavez, No. 14-14-00318-CV, 2015

Tex. App. LEXIS 4886 (Tex. App. --- Houston [14th Dist.] 5/14/15,
no pet. h.)


                                33
                        NO. 01-15-00141-CV
                   ___________________________
intermediate       appellate courts which have                  had    an

opportunity to apply Ross.

       Some of the misplaced arguments that Shah anticipates

will be advanced by Sodexo were soundly rejected in

Brazos      Presbyterian    Homes.         While    recognizing       that

patients may utilize an elevator in connection with their

course of care at a nursing home, the court rebuffed the

nursing      home’s   contention        that    elevator     maintenance

standards are substantively related to the provision of

either health care or patient safety.53               In holding that

the      claims   before    it   did      not      satisfy     the    Ross

“substantive       connection    standard,”         the      court    also

rejected the argument that the elevator was a health care

instrumentality and found no evidence that the provision

and maintenance of properly functioning elevators are

required to comply with health care requirements set by

governmental or accrediting authorities.54                   As there is

no substantive difference between the safe operation of

an elevator in a nursing home and the use of a beverage


53
     See Brazos Presbyterian Homes, 2015 Tex. App. LEXIS at *10.
54   Id. at *12.


                                   34
                  NO. 01-15-00141-CV
             ___________________________
cart in a hospital lobby, the Court should dispose of

Sodexo’s arguments in a similar manner.

     IV. Pre-Ross Cases Remain Valid as Persuasive
     Authorities & Illustrate the Fallacies Associated
     With Trying to Label Shah’s Claims as Health Care
     Liability Claims
     A.    Riverside General Hospital55
     Emerlean Williams was employed by Riverside General

Hospital as a nursing assistant.              Williams sustained

injuries in 2009 after she tripped over an extension cord

and again in 2010 when she slipped and fell on a foreign

substance on the floor while performing a room check.56

On   appellate     review,   this    very   Court   was     asked   to

determine whether or not Williams’ claims should be

classified as health care liability claims under the

state of the law which predated Ross merely because they

involved alleged safety breaches on the part of a health

care provider.57

     After    reviewing    various    pre-Ross   decisions,     this

Court     found   no   cognizable    link   between   the    “garden


55 No. 01-13-00335-CV, 2014 Tex. App. LEXIS 9681 (Tex. App. ---
Houston [1st Dist.] 2014, no pet.) (memorandum opinion).
56   See Riverside General Hospital, 2014 Tex. App. LEXIS at *2.
57 Id. at *2-3.



                                35
                   NO. 01-15-00141-CV
              ___________________________
variety” slip and fall claims asserted by Williams and

the provision of health care services.58 As a result, this

Court reversed the decision of the trial court dismissing

Williams’    claims   and   remanded   the   case   for   further

proceedings at the trial court level.59

     B. Riverside General Hospital’s Logic was Expanded
     in Gonzalez60

     This Court followed the logic set forth in Riverside

General Hospital to reject another misplaced argument

that tort claims with no apparent connection to health

care were health care liability claims under Chapter 74.

Iris Gonzalez, an employee at Afton Oaks Nursing Home,

was injured while leaving the building in order to move

her car.61   A co-worker had stacked empty milk crates in

the dimly lit path which was used by employees to enter

and exit the building and Gonzalez stumbled over the milk

crates on the way to her car.62         Gonzalez subsequently



58 Id. at * 21-22.
59 Id. at * 25.
60 See Gonzalez v. Diversicare Leasing Corp., No. 01-13-00108-CV,

2014 Tex. App. LEXIS 10576 (Tex. App. --- Houston [1st Dist.] Nov.
7, 2014, pet. filed) (per curiam)
61 See Gonzalez, 2014 Tex. App. LEXIS 10576 at *1-2.
62 Id. at *2.



                                36
                   NO. 01-15-00141-CV
              ___________________________
sued Afton Oaks alleging non-subscriber negligence but

her claims were dismissed by the trial court after she

failed to obtain an expert report within the required

one-hundred and twenty day period.63

     In the context of a brief opinion, this Court relied

on the holding in Riverside General Hospital to reverse

the dismissal of Gonzalez’s claims.         Finding that the

essence of her claims were indistinguishable from those

presented in Riverside General Hospital, this Court held

that liability for the placement of milk crates in a

dimly lit exit should not be construed as a health care

liability claim under the “safety” prong of the statutory

definition.64

     C.   The Twilley65 Decision

     Bobby Twilley was employed as director of plant

operations for Good Shepherd Medical Center.66        In 2009,

Twilley was injured after he fell from a ladder attached



63 Id. at *2-3.
64 Id. at *7.
65 See Good Shepherd Medical Center-Linden, Inc. v. Twilley, 422

S.W.3d 782, 783 (Tex. App. --- Texarkana 2013, pet. denied).
66 Twilley, 422 S.W.3d at 783



                               37
                   NO. 01-15-00141-CV
              ___________________________
to the hospital.   In 2010, Twilley sustained a second

injury after he slipped and fell on a mound of hardened

cement on the hospital’s premises.67 Twilley subsequently

filed      suit    against   Good        Shepherd   Medical    Center,

asserting      claims   of   negligence,        negligence     per    se,

premises liability and gross negligence.             After the trial

court denied its motion to dismiss for failure to serve

an expert report, Good Shepherd Medical Center perfected

an     interlocutory    appeal      to    the   Texarkana     Court   of

Appeals.

       On appellate review, the Texarkana Court of Appeals

recognized that the gravamen of Twilley’s tort claims

related      to    alleged   OSHA    violations      which    bear    no

relationship to the provision of health care services.68

In rejecting Good Shepherd Medical Center’s argument that

the state of the law prior to Ross permitted Chapter 74

to extend to claims which have no relationship at all to

health care services, which is essentially the same




67   Id.
68   Id. at 787.


                                    38
                   NO. 01-15-00141-CV
              ___________________________
argument advanced by Sodexo at the trial court level, the

court noted:

       “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
       omissions causing the alleged injuries.      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.”69

       The   court   additionally   recognized   the   need   to

interpret Chapter 74’s statutory language in a reasoned

manner in order to avoid bizarre results.        In particular,

the court noted that following Good Shepherd Medical

Center’s argument to its logical extreme would mean that

a car accident in a hospital parking lot would constitute

a health care liability claim and require an expert

report.      The court characterized such a result as absurd

and declared that a safety claim against a health care




69   Id. at 788.


                               39
                   NO. 01-15-00141-CV
              ___________________________
provider must involve “a more logical, coherent nexus to

health care.”70

     D.    The Dewey71 Decision

     Thomas Dewey was visiting his mother at Northeast

Methodist Hospital when an electronic door closed on

him.72    In determining whether or not Dewey’s claims fall

within the scope of Chapter 74, the San Antonio Court of

Appeals     characterized        Dewey’s     tort        claim     as    a

“straightforward”         premises      liability    claim.73           In

applying    the    judicial      litmus    test    for    health     care

liability claims, the court found no relationship, direct

or indirect, between the claims and health care as Dewey

was not a patient at the hospital, was not seeking any

form of health care treatment, was not an employee of the

hospital,    and    was    not    assisted    in    any     manner      by

healthcare personnel. The court characterized the nature

of the duty imposed on Northeast Methodist Hospital as



70 Id.
71 See Methodist Hospital System of San Antonio, Ltd. v. Dewey, 423
S.W.3d 516 (Tex. App. --- San Antonio 2014, pet. filed).
72 See Dewey, 423 S.W.3d at 516.
73 Id. at 519-520.



                                   40
                   NO. 01-15-00141-CV
              ___________________________
indistinguishable from the tort duties applicable to any

business which allows visitors on its premises.74

           E. The Pre-Ross Decisions Support Reversal of the
           Trial Court’s Decision

           Although     they     may    be    labeled   as     persuasive

authorities        in    light    of    the   new   standard   which   was

recently         announced     Ross,    Riverside    General    Hospital,

Gonzalez, Twilley and Dewey all support reversal of the

trial court’s decision on Sodexo’s Motion to Dismiss.

Being struck by a beverage cart in a common area of the

hospital while retrieving a cup of coffee presents no

more of a connection to the provision of health care

services than falling over an extension cord, stumbling

over a set of milk crates, falling from a ladder, or

being struck by an electronic door.                  Furthermore, there

is no substantive difference between the “garden variety”

slip       and   fall   claims     at   issue   in   Riverside   General

Hospital and Shah’s claims. In addition, strong-arming

Shah’s claims into the reach of Chapter 74 despite the

absence of any relationship between health care and the


74   Id.


                                        41
                   NO. 01-15-00141-CV
              ___________________________
operation of a beverage cart would result in a result

which is equally as bizarre as classifying a car accident

in a hospital parking lot as a health care liability

claim.

     Although Ross recently ended the confusion which had

plagued trial and intermediate courts of appeals since

the Texas West Oaks Hospital decision was rendered in

2012 and there is now a bright-line standard for drawing

the line of demarcation between health care liability

claims and ordinary tort claims, Shah’s claims clearly

fall outside of the scope of Chapter 74 regardless of

whether or not the Court looks to Ross for guidance or

the state of the law prior to Ross.

     V. Requiring an Expert Report Would Engraft a
     Superfluous and Pointless Requirement Onto Shah’s
     Negligence Claim

     This Court observed in Riverside General Hospital

that requiring an expert medical or health care report

in the context of a slip and fall case would “amount to

an exercise in futility.”75 This Court further noted that


75 See Riverside General Hospital, 2014 Tex. App. LEXIS 9681 at
*22.


                              42
                   NO. 01-15-00141-CV
              ___________________________
it was improbable that Williams could have successfully

located a premises liability expert who satisfied the

expert report requirements of Chapter 74.76                    Even more

importantly, this Court recognized that even if such an

expert was available, a garden variety slip and fall

claim does not require expert medical or health care

testimony.77        Similar concerns were recognized by the

Texarkana Court of Appeals               in   Twilley78    and the San

Antonio     Court    of   Appeals   in    Dewey.79        As   the   court

recognized in Dewey, professional medical judgment is not

needed to determine the standard of care relative to an

electric door and whether or not it was breached.80

       The aforementioned concerns survive Ross and further

militate against classifying Shah’s claims as health care

liability claims.         While Ross did not directly speak to

the fact that obtaining an expert report from a medical

expert would be pointless in the context of ordinary tort



76   Id. at 23.
77   Id.
78   See Twilley, 422 S.W.3d at 789.
79   See Dewey, 423 S.W.3d at 520.
80   Id.


                                    43
                   NO. 01-15-00141-CV
              ___________________________
claims, it did note that the purpose of Chapter 74’s

expert report requirement is not to provide defendant

health care providers with a procedural advantage under

the guise of regulating health care.81 Even if Shah could

successfully locate a physician or other health care

expert who had sufficient experience with the operation

of    beverage      carts   to    render       an    expert      opinion,   the

retention      of    such   an     expert          would   add    nothing   of

significance to the case as the standard of care is

readily      discernable         from        the    common    law    duty   of

reasonable care.        The court should decline to burden an

ordinary      negligence         claim       with    an    unnecessary      and

meaningless expert report requirement.

       While requiring Shah to obtain an expert report would

provide Sodexo with an unwarranted tactical advantage,

Chapter 74 was never intended to erect procedural hurdles

for plaintiffs in non-medical cases.                   As an expert report

would accomplish nothing more than the creation of such




81   See Ross, 2015 Tex. LEXIS at *16-17.


                                        44
                  NO. 01-15-00141-CV
             ___________________________
a hurdle, the Court should reverse the trial court’s

ruling on the Motion to Dismiss.

       VI. In the Alternative, Sodexo Should be Equitably
       Estopped From Seeking Dismissal of Shah’s Claims

       In the alternative and in the unlikely event that

the     Court   classifies    Shah’s    claims   as    health   care

liability claims such that an expert report requirement

is triggered, Sodexo should be equitably estopped from

seeking dismissal of Shah’s claims. Shah served Requests

for     Disclosure     on   Sodexo    along   with    his   Original

Petition82 and Sodexo served responses on July 23, 2014.83

In response to Rule 194.2(c), Sodexo made the following

boilerplate allegation which omitted any reference to the

expert report requirement or any other facet of Chapter

74:

       “Defendants generally deny each and every
       allegation made by Plaintiff and demands strict
       proof of the same.      Defendants deny having
       committed any wrongdoing. Defendants deny that
       Plaintiff’s damages are what they claim to be.
       In the alternative, Defendants assert the
       affirmative defense of comparative negligence
       /fault and would show that Plaintiff’s claims
       are barred, in whole or in part, as a result of

82   See CR 4-11.
83   Id. at 314-321.


                                 45
                    NO. 01-15-00141-CV
               ___________________________
     such comparative negligence/fault. Further, in
     the alternative, Plaintiff’s alleged injuries,
     if   any,  were   exacerbated   by    Plaintiff’s
     unreasonable failure to mitigate.” 84


     Rule 194.2(c) requires a party to disclose its legal

theories and, in general, the factual bases of its claims

or defenses.85 While the responding party is not required

to marshal all evidence that may be offered at trial, the

rule is intended at a minimum to require disclosure of a

party’s “basic assertions.”86

     A party who fails to “make, amend or supplement” a

discovery response may not introduce evidence of the

information which was not disclosed unless the court

finds: (1) there was good cause for the failure to timely

disclose; or (2) the failure to timely disclose will not

unfairly prejudice the other party.87

     Sodexo’s “basic assertions” at the time it responded

to Shah’s Requests for Disclosure should have included



84 See CR 316.
85 See Tex. R. Civ. P. 194.2(c).
86 See Tex. R. Civ. P. 192.2(c), CMT. 2; Holland v. Friedman &

Feiger, No. 05-12-01714-CV, 2014 Tex. App. LEXIS 12892 *17-18 (Tex.
App. --- Dallas 2014, no pet. h.).
87 See Tex. R. Civ. P. 193.6(a); Williams v. County of Dallas, 194

S.W.3d 29, 32 (Tex. App. --- Dallas 2006, no pet.).


                                46
                  NO. 01-15-00141-CV
             ___________________________
the fact that Sodexo considered Shah’s claims to fall

within the purview of Chapter 74 and that Sodexo might

seek dismissal of Shah’s claims in the future if an expert

report was not furnished within the applicable one-

hundred and twenty day period.                However, Sodexo failed

to make any such disclosure and instead made a strategic

decision to announce its intention to seek dismissal on

the basis of the expert report requirement after the one-

hundred and twenty day deadline had already expired.

Sodexo’s   failure       to     make      a   proper     disclosure    was

exacerbated     by   the      fact   that     it   did   not   serve   any

supplemental disclosure responses at any point while the

case was active at the trial court level.                       Sodexo’s

failure    to    honor        its    disclosure        requirement     was

compounded by the fact that good cause was lacking and

Shah was the victim of unfair surprise and prejudice as

Shah surely would have attempted to obtain a compliant

expert report if Sodexo’s intentions had been disclosed

during the one-hundred and twenty day period.




                                     47
                     NO. 01-15-00141-CV
                ___________________________
      It would stand the discovery rules on their head and

defeat open disclosure to contend that Shah was entitled

under Rule 194.2(c) to the fact that Sodexo might raise

the affirmative defenses of comparative fault and failure

to mitigate damages but was not similarly entitled to

know that Sodexo might seek a complete dismissal of his

claims based upon Chapter 74’s expert report requirement.

A party should not be allowed to selectively pick and

choose which “basic assertions” it wants to disclose and

which defenses it strategically wants to conceal.                 To

hold otherwise would return the Texas courts to the days

of    trial   by   ambush   which    the   discovery   rules    were

expressly designed to prevent.

      While Rule 193.6(a) is designed to punish a party

who   makes   an   incomplete   disclosure      by   limiting   the

evidence that party is allowed to present at trial,

invoking the doctrine of equitable estoppel to prevent

Sodexo from seeking dismissal of Shah’s claims serves the

same purpose and is an analogous remedy for Sodexo’s

incomplete disclosure.       Allowing Sodexo to strategically



                                48
                   NO. 01-15-00141-CV
              ___________________________
wait for one-hundred and twenty days to disclose that it

considered Shah’s claims to be health care liability

claims would render Rule 194.2(c) meaningless and would

be akin to permitting trial by ambush.      Furthermore,

Chapter 74 would be converted from a legitimate statute

governing health care liability into a trap door that a

defendant could pop open at a strategic time in order to

catch an unsuspecting plaintiff who had no knowledge that

an expert report was even required.     The doctrine of

equitable estoppel exists to prevent such miscarriages

of justice and the Court should invoke the doctrine in

order to reverse the dismissal of Shah’s claims by the

trial court.




                           49
                   NO. 01-15-00141-CV
              ___________________________


                        PRAYER

    WHERFORE, PREMISES CONSIDERED, Appellant Madhusudan

Shah respectfully requests that the court reverse the

Court’s ruling dismissing his claims, and remand for

further proceedings in the trial court.




                           50
                   NO. 01-15-00141-CV
              ___________________________


                CERTIFICATE OF SERVICE

  As required by Rules 6.3and 9.5(b) – (e) of the Texas
Rules of Appellate Procedure, I certify that I have
served this document on all other parties – which are
listed below – by the manner of service indicated below:

  Via Electronic Filing,
  Facsimile: (713)629-5027
  & Certified Mail - RRR
  Mr. Nelson D. Skyler
  Mr. Tarush R. Anand
  Mr. Neal A. Hoffman
  Brown Sims
  1177 West Loop South, 10th Floor
  Houston, Texas 77027
  Counsel for Appellee Sodexo Services of Texas
  Limited Partnership

  Via Electronic Filing Only
  Mr. Arshad A. Ramji
  Ramji & Associates, P.C.
  2920 Virginia Street
  Houston, Texas 77098
  Co-Counsel for Appellant Madhusudan Shah


                   /s/ Kenneth R. Baird, Esq.
                   Kenneth R. Baird
                   Date: June 28, 2015




                           51
                   NO. 01-15-00141-CV
              ___________________________


               CERTIFICATE OF COMPLIANCE

  I, Kenneth R. Baird, lead counsel for Appellant, hereby
certify that the total word count for Appellant’s brief
is 8,311 words which is less than the maximum of 15,000
words allowed under Rule 9.4(i)(2)(B) of the Texas Rules
of Appellate Procedure. I relied upon Microsoft Word in
order to determine the page count.

                 /s/ Kenneth R. Baird, Esq.__
                 Kenneth R. Baird
                 Date: June 28, 2015




                           52
                   NO. 01-15-00141-CV
_______________________________________________________
                IN THE COURT OF APPEALS
            FOR THE FIRST JUDICIAL DISTRICT
                  OF TEXAS AT HOUSTON
        _______________________________________

                    MADHUSUDAN SHAH
                       APPELLANT

                          v.

     SODEXO SERVICES OF TEXAS LIMITED PARTNERSHIP
                       APPELLEE

    On appeal from the 55th Judicial District Court
                  Harris County, Texas
           Trial Court Cause No. 2014-20678
        _______________________________________

   APPENDIX TO THE FIRST AMENDED BRIEF OF APPELLANT
                   MADHUSUDAN SHAH

        _______________________________________

                ORAL ARGUMENT REQUESTED

Kenneth R. Baird
Lead Counsel for Appellant
Texas Bar No. 24036172
The Baird Law Firm
2323 South Voss Road, Suite 325
(713)783-1113
(281)677-4227 (facsimile)
bairdlawfirm@hotmail.com

Attorney for Madhusudan Shah




                           53
                   NO. 01-15-00141-CV
              ___________________________


                 CERTIFICATE OF SERVICE

    As required by Rules 6.3and 9.5(b) – (e) of the Texas
Rules of Appellate Procedure, I certify that I have
served this document, the Appendix to the First Amended
Brief of Madhusudan Shah, on all other parties – which
are listed below – by the manner of service indicated
below:

  Via Electronic Filing,
  Facsimile: (713)629-5027
  & Certified Mail - RRR
  Mr. Nelson D. Skyler
  Mr. Tarush R. Anand
  Mr. Neal A. Hoffman
  Brown Sims
  1177 West Loop South, 10th Floor
  Houston, Texas 77027
  Counsel for Appellee Sodexo Services of Texas
  Limited Partnership

  Via Electronic Filing Only
  Mr. Arshad A. Ramji
  Ramji & Associates, P.C.
  2920 Virginia Street
  Houston, Texas 77098
  Co-Counsel for Appellant Madhusudan Shah


                   /s/ Kenneth R. Baird, Esq.
                   Kenneth R. Baird
                   Date: June 28, 2015




                           54
                    NO. 01-15-00141-CV
               ___________________________


                        APPENDIX

                    LIST OF DOCUMENTS

1.   Order of the 55th Judicial District Court of
     Harris County .................................Tab A

2.   Joint Stipulation as to Appealable Order.......Tab B

3.   Order Granting Joint Motion for Extension of
     Time to File Briefs and motion to Allow
     Appellant to File an Amended Brief ............Tab C

4.   Ross v. St. Luke’s Episcopal Hospital, No.
     13-0439, 2015 Tex. LEXIS 361 (Tex.
     5/1/15) (publication status pending)...........Tab D

5.   Tex. Civ. Prac. & Rem. Code § 74.001...........Tab E




                            55
Tab A
                                                                                      121191201.4 6:62:09 PM
                                                                                     Chris Daniel• District Clerk.
                                                                                     HarrtsCounty
                                                                                     Envelo~ No: 3666761
                                                                                     By: PATTON, JONATHAN R



 MADHUSUDAN SHAH;,
                                           :   CauseNo.:Ol~06;.HE            DISTRICT     COURT         OF     ~
                                Plai~tiff,             :                                                     l!IJO
                                                       §
 v.                                                    §
                                                       §
. SODEXO,        INC.;     :SODBXO                     § HARRIS    COUNTY,_~ TEXAS
  MANAGEMENT,       INC.; :SOPEXO                      §                ~C@

                                                                                oqv
 OPERATIONS.       LLC;   iSODEXO                      §
 SERVICES OF TEXAS !LIMITED                            §
 PARTNERSHIP; &. SODEXO LAUNDRY                        §
 SERVICES, 'lNC.          '                            §
                                                       §
                                                                ~
                                                                             0~
                               Defon4ants.             §        ~~ICIAL     DISTRICT

                                                   ORDER            o~
                                                                @
       Pending before the     Court is Defendanfs M~~ to Dismiss for Failure to Provide
                                       '  @'@              0

a Timely and. Complete Chapt1r 74 Expert~rt. H;aving considered the issues, the

Court hereby GRAm'S the Moti~n.     ~fj
      It is ORDERED that thelCou;;jl_~eby GRANTS Defendant's Motion to Dismiss.
                   assert~~~ein
. . N't.award~·it&
        _, ~mmte
All of Plaintiffs

Defendant
                    cJ.aims
                       ,~:-     .                                     .
                                                     are hereby DISMISSED with prejudice and

                                                attorneyS' fees and costs.wfttA     ~
                                                                                              A~J J.'
                                                                                                     ~•
                                                                                              iT"'' l ·.

                          p©2~ '
      SIGNED    ont~'¥~ da.' of ~01<> •
                     0~/           ;
                                       y                                 ~1/
                                                                         •

               ~                  ;
          ~Q5
         ~)                                                    Th               le Jeff Shadwick
                                                                             'ct CoUrt. Harris County
Tab B
                                                                          ACCEPTED
                                                                    01 -15-00141 -CV
                                                          FIRST COURT OF APPEAL~
                                                                  HOUSTON , TEXAS
                                                              3/19/2015 11:17:50 AM
                                                                CHRISTOPHER PRINI
                                                                              CLERK
                 NO. 01-15-00141-CV


          IN TilE COURT OF APPEAlS .
       FOR Tint FIRST JUDICIAL DISTRICf
            OF TEXAS AT HOUSTON


        MADHUSUDAN SHAH, APPElLANT

                           v.
SODEXO SERVICES OF TEXAS UMITED PARTNERSHIP



     On appeal from the 55th Judicial District Court
                 Harris County, Texas
          Trial Court Cause No. 2014-20678


  JOINT STIPULATION AS TO APPEAlABLE ORDER



                        COUNSEL FOR APPEI..LANT:

                        .Kenneth R. Baird
                        The Baird Law Firm
                        2323 South Voss Road, Suite 325
                        Phone: (713) 783-1113
                        Facsimile: (281) 677-4227
                        bairdlawflim@hotmail.com

                       COUNSEL FoR APPELLEE:

                       Nelson D. Skyler
                       Neal A. HQffman
                      · BroWil Sims.
                       1177 West Loop South, lOth Floor
                       Houston, Texas 77027
                       Phone: (713) 629-1580
                       Facsimile: (713) 629-5027
                       nskyler@brownsims.com
                       nhoffinart@brownsims.com



                          1
                          JOINT S11PULATION AS TO APPEALABLE ORDER

    TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

             NO'\Y COMES7 Madhusudan Shah, Appellant in the above-styled and numbered cause

    (hereinafter. "Appellant"), and Sodexo Services of Texas Limited Partnership, Appellee in the

    above-styled and numbered cause (hereinafter "Appellee"), appearing jointly by and through their

    respective coull$els of record, and fde their Joint Stip~lation as to Appealable Order. In support

    thereof, Appellant and Appellee advise the Honorable Court of Appeals that they have reached the

    following stipulation:

            Appellant and Appellee hereby stipUlate that the Order on Defendant's. Motion to Dismiss

    for Failure to Provide. a Timely and Complete Chapter 74 Expert Report, 1 whiCh ~as signed by

    the Honorable Jeff Shadwick of the 55!11 Judicial District Court ofHarris County, Texas. on Janu(lry

    16, 2015, constitutes a final, appealable order despite the fact that that it left unresolved Appellee's

    claim for attorney's fees and costs. Since Appellee later waived its claim for attorney's fees and
                 .                      .           '
costs under Chapter 74 .of the Texas Civil Practice & Remedies Code and both Appellant and

Appellee desire to proceed with the appeal on its current schedule so .that the substan~ve legal

is&ues in dispute can be resolved by the Honorable Court of Appeals, the Parties res~otfully pray

that the Hono~le Court of Appeals accept their stipulation and treat the Order on Defendant's

Motion to Dismiss for Failure to Provide a Timely and Complete Chapter 74 Expert Report as a

final, appealable order for all purposes.




    A copy of the referenced ,otder is attache!l hereto and incorporated herein for all purposes as E~bit A.
1



                                                             2
     Respectfully Submitted,.

     THE BAIRD LAW FIRM


    Is/ Kenneth R. Baird. Esq.
    Kenneth R. ·Baird
    Texas Bar No. 24036172
    2323 South Voss Road, Suite 325
    Houston, Texas 77057
    Phone: (713) 783-1113
    Facsimile: (281) 677-4227
    bairdlawfirm@hotmail.G<>m
    LEAD COUNSEL FOR APPELLANT
    MADHUSUDAN SHAH


    ---AND---


    BROwN~IMS


     Is/ Neal A. Hoffman
    Nelson D.·Skyler
    Texas Bar No. 00784982
    Neal A. Hoffman
    Texa:s Bar No. 24069936
    1177 West Loop South, 101h Floor
    Houston, Texas 77027
    Phone: (713) 629-1580
    Facsimlle: (713) 629-5027
    niDler@brownsims.com
    nhoffman@brownsims.com           .
    COUNSEL FOR APPELLEESODEXO
    SERVICES OF TEXAS LIMITED
    PARTNERSHIP




3
                              CERTIFICATE OF CONfERENCE

        As required by Rule 10.1(a)(5) of the Texa$ Rules of Appellate Procedure, I certify that I
have,conferred With all other parties - who are li,sted below - about the merits of this stipulation
with the followfug results:

        Neal A. Hoffman, counsel for Appellee Sodexo Services of Texas limited Partnership, has
joined in ,the relief sought as indicated in the signature, block. As a result, the term "Joint" has
been included in the style of this document.       ,

                                                        Is/ Kenneth R. Baird. Esg.
                                                        Kenneth R. Baird
                                                        Date: March 19, 2015

                                CERTIFICATE 9F SERVICE

        As required by Rules 6.3and 9.5(b)- (e) of the Texas Rules of Appellate Procedure, I
certify that' I have served this document on aU other parties - which are listed below - by the
manner .of service indicated below:,

       Viq Ele£brqnic Filing & FtiCsimile: (713)62,9 -5027
       Mr. Nelson D. Skyler                        ,
       Mr. Neal A Hoffman ,
       Brown Sitns
       1177 West Loop South, 101b Floor
       Houston, Texa8 77027
      Counsel for Appellee Sodexo Services of Texas
      Limited Partnership

      Viq Electmnk Filin& Only
      Mi. Arshad A Ramji      ,
      Ramji & Associates, P.C.
      2920 Virginia Street
      Houston, Te~as 77098
      Co-Counsel J'or Appellant M;idbusudan Shah

                                                       Is/ Kenneth R. Baird. Esg.
                                                       Kenneth R. Baird
                                                       Date: March 19, 2015




                                               4
MADHUSODAN SHAH,


v.
                         ;
SODEXO,     INC.·;       SODEXO
MANAGEMeNT.    INC.;     ;soo:axo
OPERATIONS       I,LC·   SOPEXO
'SERVICES   OF   'tEXAs .LIMITED.
PAa'tN'ED$P.; & SODEXo LAUNPlt:Y
SERVICES, 'lNC.         :
                                    DISTRICT'
Tab C
                                  COURT OF APPEALS FOR THE
                             FIRST DISTRICT OF TEXAS AT HOUSTON

                                              ORDER


Appellate case name:       Madhusudan Shah v. Sodexo Services of Texas Limited Partnership

Appellate case number:     01-15-00141-CV

Trial court case number: 2014-20678

Trial court:               55th District Court of Harris County

         The parties have filed a "Joint Motion for Extension of Time to File Briefs and Motion to
Allow Appellant to File an Amended Brief." The motion is granted. Appellant' s amended brief
is ordered to be filed no later than 30 days from the date of this order. Appellee' s amended brief,
if any, is ordered to be filed within 30 days of the tiling of appellant's amended brief.
       It is so ORDERED.


Judge's signature: /s/ Michael Massengale
                   X Acting individually 0 Acting for the Court


Date: May 29. 2015
                                                                                                        FJLE COPY




 Sm: RRv RAnACK                                                                              CURJSTOPHER A. PRIN~:
  CHIEF JUSTICE                                                                              CLERK OF THE COURT


 TERRY JENNINGS                                                                              JANET WILLIAMS
 EVEL Y.N KEYES                                                                              CHIEF ST AFF ATTORNEY
 LAURA CARTER HIGLEY
 JANE BLAND
 MICHAEL MASSENGALE
                                        Court of Appeals                                     PHONE:
                                                                                             FAX:
                                                                                                      713-Z74-2700
                                                                                                      713-755-8131
 HARVEY BROWN
 REBECA   Huoou:
                                      First District of Texas                                www.txcourts.gov/l.stcoa.aspx
 Russ~: u. LLOYD                           301 Fannin Street
 J USTICES
                                       Houston, Texas 77002-2066
                                             Friday, May 29,2015

Arshad Ramj i                                                    Neal Hoffman
Ramji & Associates                                               Brown Sims, P.C .
2920 Virginia St                                                 1177 West Loop South, 1Oth Fl
Houston, TX 77098-1201                                           Houston, TX 77027
* DELIVERED VIA E-MAIL *                                         * DELIVERED VIA E-MAIL *

Kenneth Richard Baird                                           Nelson Dean Skyler
The Baird Law Firm                                              Brown Sims P C
2323 South Voss Road, Suite 325                                 1177 West Loop South 1Oth Fl
Houston, TX 77057                                               Houston, TX 77027-9007
* DELIVERED VIA E-MAIL *                                        *DELIVERED VIA E-MAIL*

RE:       Court of Appeals Number: 01-15-00141-CV Trial Court Case Number: 2014-20678

Style: Madhusudan Shah
          v.
          Sodexo, Inc.; Sodexa Management Inc., Sodexo Operations, LLC; Sodexo Services of Texas
          Limited Partnership; & Sodexo Laundry Services, Inc.

         On this date, an order was issued in the above-referenced cause. You may obtain a copy of the Court's
order at http://www.search.tx.courts.gov/CaseSearch.aspx?coa=coaOl&s=c. If you have been required to provide
a valid e-mail address to the Court and accept electronic service as outlined in Rule 9.l(a) and 9.4(g), a copy of
this Notice of Distribution will be sent to you electronically via email.

        For more information        about    a   particular   case,   please   visit   the    Court's     website      at
http://www.txcourts.gov/ lstCOA.

                                                         Sincerely,

                                                         /1/ . . '-' r
                                                        L,,~.-~.}1~~
                                                        Christopher A. Prine, Clerk of the Court
Tab D
                                                                                                                Page 1




                   LEZLEA ROSS, PETITIONER, v. ST. LUKE'S EPISCOPAL HOSPITAL,
                                         RESPONDENT

                                                   NO. 13-0439

                                         SUPREME COURT OF TEXAS

                          2015 Tex. LEXIS 361; 58 Tex. Sup. J. 766; 58 Tex. Sup. J. 802

                                          November 5, 2014, Argued
                                         May 1, 2015, Opinion Delivered

NOTICE:                                                    the Court. JUSTICE LEHRMANN filed a concurring
                                                           opinion, in which JUSTICE DEVINE joined. JUSTICE
   PUBLICATION STATUS PENDING. CONSULT                     BROWN did not participate in the decision.
STATE RULES REGARDING PRECEDENTIAL
VALUE.                                                     OPINION BY: Phil Johnson

PRIOR HISTORY:                [*1] ON PETITION FOR         OPINION
REVIEW FROM THE COURT OF APPEALS FOR
THE FOURTEENTH DISTRICT OF TEXAS.                               In this case a visitor to St. Luke's Episcopal Hospital
Ross v. St. Luke's Episcopal Hosp., 2013 Tex. App. LEXIS   sued the hospital on a premises liability theory after she
2796 (Tex. App. Houston 14thDist., Mar. 19, 2013)          slipped and fell near the lobby exit doors . The issue is
                                                           whether her suit is a health care liability claim under the
                                                           Texas Medical Liability Act. See TEX. [*2] CIV. PRAC.
COUNSEL: For The Texas Trial Lawyers Association           & REM . CODE ch. 74. The trial court and court of appeals
(TTLA), Amicus Curiae: Michael G. Guajardo, Guajardo       concluded that it is. We hold that it is not, because the
& Marks, LLP, Dallas TX; Peter M. Kelly, Kelly,            record does not demonstrate a relationship between the
Durham & Pittard, L.L.P., Houston TX.                      safety     standards      she      alleged   the    hospital
                                                           breached--standards for maintaining the floor inside the
For Ross, Lezlea, Petitioner: Harold Kenneth 'Ken'         lobby exit doors--and the provision of health care, other
Tummel, Tummel & Casso, Edinburg TX; Sean Michael          than the location of the occurrence and the hospital's
Reagan, Leyh Payne & Mallia PLLC, Houston TX.              status as a health care provider.
For St. Luke's Episcopal Hospital, Respondent: Charles         We reverse and remand to the trial court for further
Creighton Carr II, Manning, Gosda & Arredondo, L.L.P.,     proceedings.
Houston TX; Elizabeth Dale Burrus, Kroger I Burrus,
Houston TX; Gregory Alan Schlak, Manning, Gosda &          I. Background
Arredondo, L.L.P. , Houston TX; Lauren Nelson, Kroger!
Burrus, Houston TX; Marsha A. Bradley, Kroger I                 Lezlea Ross accompanied a friend who was visiting
Burrus, Houston TX.                                        a patient in St. Luke's Episcopal Hospital. Ross was
                                                           leaving the hospital through the lobby when, as she
JUDGES: JUSTICE JOHNSON delivered the opinion of           approached the exit doors, she slipped and fell in an area
                                                                                                                   Page 2
                                     2015 Tex. LEXIS 361, *2; 58 Tex. Sup. J. 766;
                                                 58 Tex. Sup. J. 802


where the floor was being cleaned and buffed. She sued        provisions, but in any event Ross's claims are related to
St. Luke's and Aramark Management Services, a                 accepted standards of patient safety because she fell
company that contracted with the hospital to perform          inside the hospital.
maintenance services, on a premises liability theory.
Aramark is not a party to this appeal.                             We first address our jurisdiction. See Rusk State
                                                              Hasp. v. Black, 392 S. W.3d 88, 95 (Tex. 2012) (noting
     After Ross filed suit we decided Texas West Oaks         that if a court does not have jurisdiction, its opinion
Hospital, L.P. v. Williams, 371 S. W.3d 171 (Tex. 2012).      addressing any issues other than its jurisdiction is
There we held, in part, that when a safety standards-based    advisory).
claim is made against a health care provider, the Texas
Medical Liability Act (TMLA), TEX. CIV. PRAC. & REM.          II. Jurisdiction
CODE ch. 74, does not require the safety [*3] standards
                                                                   Texas Civil Practice and Remedies Code §
to be directly related to the provision of health care in
                                                              51.014(a)(JO) permits an appeal from an interlocutory
order for the claim to be a health care liability claim
                                                              order granting relief sought by a motion to dismiss an
(HCLC). Williams, 371 S. W.3d at 186. Relying on
                                                              HCLC for failure to file an expert report. Generally, the
Williams, the hospital asserted that Ross's claim was an
                                                              court of appeals' judgment is final on interlocutory
HCLC and moved for dismissal of her suit because she
                                                              appeals. See TEX. Gov'r CODE§ 22.225(b)(3). However,
failed to serve an expert report. See TEX. C!v. PRA C. &
                                                              we have jurisdiction if the justices of the court of appeals
REM. CODE§ 74.351(a), (b) (requiring dismissal of an
                                                              disagree on a question of law material to the decision, or
HCLC if a claimant fails to timely serve an expert
                                                              if a court of appeals holds differently from a prior [*5]
report) ; Williams, 371 S. W.3d at 186.
                                                              decision of another court of appeals or this Court. !d. §
    The trial court granted the motion to dismiss. The        22.225(c).
court of appeals affirmed. Ross v. St. Luke's Episcopal
                                                                   Ross asserts that this Court has jurisdiction because
Hasp.,    S. W.3d , 2013 Tex. App. LEXIS 2796 (Tex.
                                                              the court of appeals' opinion in this case conflicts with
App.--Houston [14th Dist.] 2013). The appeals court
                                                              Good Shepherd Medical Center-Linden, Inc. v. Twilley,
concluded that under Williams it is not necessary for any
                                                              422 S. W.3d 782 (Tex. App.--Texarkana 2013, pet.
connection to exist between health care and the safety
                                                              denied) . In that case, Bobby Twilley, the director of plant
standard on which a claim is based in order for the claim
                                                              operations for a medical center, asserted premises
to come within the TMLA. !d. at         , 2013 Tex. App.
                                                              liability claims against his employer after he fell from a
LEXIS 2796.
                                                              ladder and also tripped over a mound of hardened
     Ross asserts that the lower courts erred because         cement. Jd. at 783. The medical center moved for
claims based on departures from "accepted standards of        dismissal under the TMLA because Twilley failed to file
safety" do not come within the provisions of the TMLA         an expert report. !d. at 783-84. The trial court denied the
unless there is at least some connection between the          motion and the medical center appealed, arguing that
standards underlying the allegedly negligent actions and      even though Twilley's claims were unrelated to the
the provision of health care, even if they are not directly   provision of health care, under Williams they still fell
related. She then argues that her claims are not HCLCs        within the ambit of the TMLA. The court of appeals
because the hospital's alleged negligence is completely       interpreted Williams as holding that a safety
unrelated to the provision of health care.                    standards-based claim need not be directly related to the
                                                              provision of health care to be an HCLC. !d. at 789. The
      The hospital [*4] responds with three arguments. It     court stated, however, that it did not understand Williams
first urges that we lack jurisdiction. See TEX. Gov'r CODE    to hold that a safety standards claim falls under the
§ 22.001(a)(2), (3), (6) . It next asserts that even if we    TMLA when the claim is completely untethered from
have jurisdiction, Ross waived the issue of whether her       health care. !d. The appeals court concluded that at least
claim is an HCLC because she failed to properly brief         an indirect relationship between the claim and health care
and urge it in the court of appeals. Third, the hospital      is required and, because Twilley's [*6] claims did not
addresses the merits by asserting that the court of appeals   have such a relationship, an expert report was not
correctly held that a safety standards-based claim need       required. !d. at 785.
not be related to health care to fall within the TMLA's
                                                                                                                      Page 3
                                      2015 Tex. LEXIS 361, *6; 58 Tex. Sup. J. 766;
                                                  58 Tex. Sup. J. 802


      In this case the court of appeals held that under         effect the purpose of a rule" (quoting Verburgt v. Dorner,
 Williams "a connection between the act or omission and         959 S.W2d 615, 616-17 (Tex. 1997))) . We agree with the
 health care is unnecessary for purposes of determining         court of appeals that Ross did not waive the issue.
whether Ross brings an HCLC." Ross,            S. W3d at
2013 Tex. App. LEXIS 2796. The hospital asserts that the        IV. Health Care Liability Claims
decision of the court of appeals and Twilley do not
                                                                     The merits of the appeal require us to review the
conflict. But, for purposes of our jurisdiction, one court
                                                                lower courts' construction of the TMLA. Under such
holds differently from another when there is
                                                                circumstances our review is de novo, Williams, 371
 inconsistency in their decisions that should be clarified to
                                                                S. W 3d at 177, and our goal [*8] is to give effect to
remove unnecessary uncertainty in the law. TEX. Go v'r
                                                                legislative intent. Certified EMS, Inc. v. Potts, 392
CODE § 22.00J(e) . As other courts of appeals have noted,
                                                                S. W3d 625, 631 (Tex. 2013). In determining that intent
Ross and Twilley are inconsistent in their interpretations
                                                                we look first and foremost to the language of the statute.
of Williams and the TMLA, leaving uncertainty in the
                                                                City of Rockwall v. Hughes, 246 S. W3d 621 , 625 (Tex.
law regarding whether a safety standards-based claim
                                                                2008) . We construe a statute's words according to their
must be related to health care. See, e. g. , Weatherford Tex.
                                                                plain and common meaning unless they are statutorily
Hosp. Co. v. Smart, 423 S. W3d 462, 467-68 (Tex.
                                                                defined otherwise, a different meaning is apparent from
App.--Fort Worth 2014, pet. filed) ; DHS Mgmt. Servs.,
                                                                the context, or unless such a construction leads to absurd
Inc. v. Castro, 435 S. W3d 919, 922 & n.3 (Tex.
                                                                or nonsensical results. See Tex. Lottery Comm'n v. First
App.--Dallas 2014, no pet.). That being so, we have
                                                                State Bank of DeQueen, 325 S. W3d 628, 635 (Tex.
jurisdiction and move to the hospital's waiver claim.
                                                                2010) . Determining legislative intent requires that we
III. Waiver                                                     consider the statute as a whole, reading all its language in
                                                                context, and not reading individual provtswns in
    The hospital argues that Ross waived any challenge          isolation. See Union Carbide Corp. v. Synatzske, 438
to her claim being classified as an HCLC by failing to          S.W3d 39,51 (Tex. 2014) .
argue the point or cite relevant authority in the court of
appeals. We disagree.                                               The TMLA defines a health care liability claim as:

     A brief in the court of appeals "must contain a clear                a cause of action against a health care
and concise argument for the contentions made, [*7]                    provider or physician for treatment, lack
with appropriate citations to authorities and to the                   of treatment, or other claimed departure
record." TEX. R. APP. P. 38. l(i) . Failure to provide                 from accepted standards of medical care,
citations or argument and analysis as to an appellate issue            or health care, or safety or professional or
may waive it. See ERI Consulting Eng'rs, Inc. v. Swinnea,              administrative services directly related to
31 8 S.W3d867, 880(Tex. 2010).                                         health care, which proximately results in
                                                                       injury to or death of a claimant, whether
     In her court of appeals brief, Ross discussed the                 the claimant's claim or cause of action
purpose of the TMLA and asserted that classifying her                  sounds in tort or contract.
claim as an HCLC would conflict with the Government
Code. See TEX. Gov'r CODE§ 311.021 (3) (providing that          TEX. Clv. PRA C. & REM. CODE § 74.00l(a)(l3) . This
when a statute is enacted, there is a presumption that "a       Court construed "safety" under the prior statute according
just and reasonable result is intended"). The court of          to its common meaning as "the condition of being
appeals implicitly determined that Ross's citations and         'untouched by danger; not exposed to danger; secure [*9]
argument were enough to avoid waiver because it                 from danger, harm or loss.'" Diversicare Gen. Partner,
addressed the issue. See Republic Underwriters Ins. Co.         Inc. v. Rubio, 185 S. W3d 842, 855 (Tex. 2005) (quoting
v. Mex-Tex, Inc., 150 S.W3d 423, 427 (Tex. 2004)                BLACK'S LAW DICTIONARY 1336 (6th ed. 1990)). We
(concluding that an argument in the court of appeals was        also recognized that the Legislature's inclusion of the
not waived and noting that "we have instructed the courts       word "safety" in the statute expanded the statute's scope
of appeals to construe the Rules of Appellate Procedure         beyond what it would be if the statute only included the
reasonably, yet liberally, so that the right to appeal is not   terms medical care and health care. !d. The Court
lost by imposing requirements not absolutely necessary to




wet bathroom floor) . But given that the claims were            the statutory definition of "health care" is broad ("any act
based on injuries to patients and were directly related to      or treatment performed or furnished, or that should have
the provision of health care, we did not address the issue      been performed or furnished, by any health care provider
of whether safety standard-based claims must be directly        for, to, or on behalf of a patient during the patient's
related to health care in order for them to he HC:T .C:s.       medical care. treatment. or confinement" TF.X. Crv. PRA C.
                                                                                                                     Page 5
                                       2015 Tex. LEXIS 361, * 12; 58 Tex. Sup. J. 766;
                                                   58 Tex. Sup. J. 802


accepted standards of medical care, health care, or safety            As to its second contention, Ross alleged that the
or professional or administrative services directly related      hospital failed to exercise reasonable care in making the
to health care, the claims [*13] were HCLCs regardless           floor safe. The standards Ross says the hospital breached
of whether the plaintiff alleged the defendants were liable      regarding maintenance of its floor may be the same as the
for breach of the standards. See Loaisiga, 379 S. W.3d at        hospital's standards for maintaining a safe environment in
255. But that being so, we further explained:                    patient care areas--but those may [* 15] also be the same
                                                                 standards many businesses generally have for
           we fail to see how the Legislature could              maintaining their floors. And the hospital does not claim,
        have intended the requirement of an expert               nor does the record show, that the area where Ross fell
        report to apply under circumstances where                was a patient care area or an area where patients possibly
        the conduct of which a plaintiff complains               would be in the course of the hospital's providing health
        is wholly and conclusively inconsistent                  care services to them. Nor does the hospital reference
        with, and thus separable from, the                       support in the record for the position that the area had to
        rendition of "medical care, or health care,              meet particular cleanliness or maintenance standards
        or safety or professional or administrative              related to the provision of health care or patient safety.
        services directly related to health care"                See Ollie, 342 S. W.3d at 527 ("[S]ervices a hospital
        even though the conduct occurred in a                    provides its patients necessarily include those services
        health care context. See TEX. Clv. PRAC. &               required to meet patients' fundamental needs such as
        REM. CODE § 74.001(a)(13); see also TEX.                 cleanliness . .. and safety."). Which leads to the question
        Gov'r CODE § 311.021 ("In enacting a                     of whether Ross's claims are nevertheless HCLCs, as the
        statute, it is presumed that . . . a just and            hospital would have us hold.
        reasonable result is intended .. .. ").
                                                                      The TMLA does not specifically state that a safety
1d. at 257. Our reasoning led to the conclusion that a           standards-based claim falls within its provisions only if
patient's claim against a medical provider for assault           the claim has some relationship to the provision of health
during a medical examination is not an HCLC if the only          care other than the location of the occurrence, the status
possible relationship between the alleged improper               of the defendant, or both. But the Legislature must have
conduct and the rendition of medical services or health          intended such a relationship to be necessary, given the
care was the setting in which the conduct took place. !d.        legislative intent explicitly set out in the TMLA and the
                                                                 context [*16] in which "safety" is used in the statute. We
     In this case, the hospital advances two positions in        said as much in Loaisiga. 379 S. W.3d at 257. Even
support of the lower courts' rulings and its assertion that      though the statute's phrase "directly related to health
Ross's claim is [*14] an HCLC. First, it addresses slip          care" does not modify its reference to safety standards,
and fall claims generally, and says that any slip and fall       that reference occurs within a specific context, which
event within a hospital is directly related to health care       defines an HCLC to be "a cause of action against a health
because it necessarily is related to the safety of patients.     care provider or physician for [a] treatment, [b] lack of
Second, it focuses on Ross's claim specifically and argues       treatment, [c] or other claimed departure from accepted
that her claim is related to health care because she alleges     standards of medical care, or health care, or safety." TEX.
the hospital breached standards applicable to maintaining        CIV. PRA C. & REM. CODE§ 74.001(a)(13). Where the
a safe environment for patients. We disagree with both           more specific items, [a] and [b], are followed by a
positions.                                                       catchall "other," [c] , the doctrine of ejusdem generis
                                                                 teaches that the latter must be limited to things like the
     As to the hospital's first contention, even though the      former. I And here, the catchall "other" itself refers to
claims in Loaisiga were by a patient and the nature of the       standards of "medical care" or "health care" or "safety."
claims differ from Ross's safety standards-based claim,          Considering the purpose of the statute, the context of the
the principle we explicated there applies here. A safety         language at issue, and the rule of ejusdem generis, we
standards-based claim does not come within the TMLA's            conclude that the safety standards referred to in the
provisions just because the underlying occurrence took           definition are those that have a substantive relationship
place in a health care facility, the claim is against a health   with the providing of medical or health care. And if it
care provider, or both. See Loaisiga, 379 S. W.3d at 257.        were not so, the broad meaning of "safety" would afford
                                                                                                                      Page 7
                                     2015 Tex. LEXIS 361, *20; 58 Tex. Sup. J. 766;
                                                 58 Tex. Sup. J. 802


the floor near the exit doors was for the purpose of          Court held that a plaintiffs claim against [*22] a
protecting patients. Nor does the record reflect that the     physician or health care provider may constitute a health
area where Ross fell was one where patients might be          care liability claim subject to the Texas Medical Liability
during their treatment so that the hospital's obligation to   Act     even       where    no      patient--physician    or
protect patients was implicated by the condition of the       patient--health-care-provider relationship exists between
floor at that location. Ross was not seeking or receiving     the parties. 371 S.W.3d 171, 177-78 (Tex. 2012) . In my
health care, nor was she a health care provider or            dissent in that case, I disagreed with the Court's holding
assisting in providing health care at the time she fell.      "that the mere peripheral involvement of a patient
There is no evidence the negligence alleged by Ross was       transforms an ordinary negligence claim into a health
based on safety standards arising from professional duties    care claim." !d. at 194-95 (Lehrmann, J., dissenting). I
owed by the hospital as a health care provider. There is      lamented what I viewed as the Court's departure from the
also no evidence that the equipment or materials used to      importance we had previously placed on the relationship
clean and buff the floor were particularly suited to          between health care providers and their patients in
providing for the safety of patients, nor does the record     concluding that a patient's claims were covered by the
demonstrate that the cleaning and buffing of the floor        Act. !d. at 196-97 (citing Diversicare Gen. Partner, Inc.
near [*21] the exit doors was to comply with a                v. Rubio, 185 S. W.3d 842 (Tex. 2005)) . The consequences
safety-related requirement set for health care providers by   of that departure are evident in cases like this, in which
a governmental or accrediting authority.                      defendants who happen to be health care providers seek
                                                              the protections of the Medical Liability Act with respect
V. Conclusion                                                 to claims that have nothing to do with medical liability.

     Under this record Ross's claim is based on safety             The Court holds, and I agree, that a cause of action
standards that have no substantive relationship to the        against a health care provider for a departure from safety
hospital's providing of health care, so it is not an HCLC.    standards is a health care liability claim only if it has a
Because her claim is not an HCLC, she was not required        "substantive relationship" with the provision of medical
to serve an expert report to avoid dismissal of her suit.     or health care.2      S.W.3d at     . I write separately to
We reverse the judgment of the court of appeals and           emphasize [*23] the significance of the third and fifth
remand the case to the trial court for further proceedings.   factors, which consider whether the claimant was in the
                                                              process of seeking or receiving health care at the time of
    Phil Johnson Justice
                                                              the injury and whether the alleged negligence was based
    OPINION DELIVERED: May l, 2015                            on safety standards arising from professional duties owed
                                                              by the health care provider.
CONCUR BY: Debra H. Lehrmann
                                                                      2 "Substantive" is defined as "considerable in
                                                                      amount or numbers: substantial." WEBSTER'S
CONCUR
                                                                      THIRD NEW lNT'L DICTIONARY 2280 (2002).
   JUSTICE LEHRMANN,              joined   by   JUSTICE
                                                                   As we recognized in Diversicare, the duty of care
DEVINE, concurring.
                                                              that health care providers owe to their patients is
     I join the Court's opinion and agree that the claims     fundamentally different from the duty of care owed to,
asserted in this case have no connection to the provision     say, employees or visitors. !85 S.W.3d at 850-51 ("The
of health care. I write separately, however, to emphasize     obligation of a health care facility to its patients is not the
my concern that a statute intended to address the             same as the general duty a premises owner owes to
insurance crisis stemming from the volume of frivolous        invitees."). To that end, when we held in Diversicare that
medical-malpractice lawsuits has become a nebulous            a nursing home resident's claim that she was sexually
barrier to what were once ordinary negligence suits           assaulted by another resident was a health care liability
brought by plaintiffs alleging no breach of any               claim, we rejected the argument that the claim should be
professional duty of care.                                    treated the same as that of a visitor who had been
                                                              assaulted at the facility precisely because of the distinct
    In Texas West Oaks Hospital, LP v. Williams, the          nature of those duties. !d. We also distinguished the
                                                                                                                  Page 8
                                     2015 Tex. LEXIS 361, *23; 58 Tex. Sup. J. 766;
                                                 58 Tex. Sup. J. 802


circumstances at issue in that case from hypothetical               In my view, focusing a safety-standards claim on the
claims involving an "unlocked [*24] window that gave           duty health care providers owe to their patients ensures
an intruder access to the facility" and a "rickety staircase   that Diversicare's hypothetical visitor-assault and
that gave way," which we implied would not constitute          rickety-staircase claims do not fall under the Medical
health care liability claims. 1d. at 854. These statements     Liability Act's umbrella. It also ensures that a covered
are consistent with our recognition that health care           cause of action will "implicate[] the provision of medical
liability claims involve a "specialized standard of care"      or health care" in accordance with the Court's holding in
that is established by expert testimony. Garland Cmty.         this case.     S.W.3d at . With these considerations in
Hosp. v. Rose, 156 S. W.3d 541, 546 (Tex. 2004); see also      mind, I respectfully join the Court's opinion and
Jackson v. Axelrad, 221 S. W.3d 650, 655 (Tex. 2007)           judgment.
(explaining that a physician's duty of care owed to a
patient is that of"a reasonable and prudent member of the          Debra H. Lehrmann
medical profession . . . under the same or similar
circumstances" (quoting Hood v. Phillips, 554 S. W.2d              Justice
160, 165 (Tex. 1977))).
                                                                   OPINION DELIVERED: May I, 2015
Tab E
CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY               Page 1 of5


                             CIVIL PRACTICE AND REMEDIES CODE

                                  TITLE 4. LIABILITY IN TORT

                               CHAPTER 74. MEDICAL LIABILITY

                             SUBCHAPTER A. GENERAL PROVISIONS

         Sec. 74.001.         DEFINITIONS.         (a)    In this chapter:
               (1)     "Affiliate" means a person who, directly or
 indirectly, through one or more intermediaries, controls, is
 controlled by, or is under common control with a specified person,
 including any direct or indirect parent or subsidiary.
               (2)     "Claimant" means a person, including a decedent's
 estate, seeking or who has sought recovery of damages in a health
 care liability claim.              All persons claiming to have sustained damages
 as the result of the bodily injury or death of a single person are
 considered a single claimant.
               (3)    "Control" means the possession, directly or
 indirectly, of the power to direct or cause the direction of the
 management and policies of the person, whether through ownership of
 equity or securities, by contract, or otherwise.
               (4)    "Court" means any federal or state court.
               (5)    "Disclosure panel" means the Texas Medical Disclosure
 Panel.
               (6)    "Economic damages" has the meaning . assigned by
 Section 41. 001.
               (7)    "Emergency medical care" means bona fide emergency
 services provided after the sudden onset of a medical or traumatic
 condition manifesting itself by acute symptoms of sufficient
 severity, including severe pain, such that the absence of immediate
 medical attention could reasonably be expected to result in placing
 the patient's health in serious jeopardy, serious impairment to
 bodily functions, or serious dysfunction of any bodily organ or part.
 The term does not include medical care or treatment that occurs after
 the patient is stabilized and is capable of receiving medical
 treatment as a nonemergency patient or that is unrelated to the
 original medical emergency.




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                (8)     "Emergency medical services provider" means a licensed
 public or private provider to which Chapter 773, Health and Safety
 Code, applies.
                (9)     "Gross negligence" has the meaning assigned by
 Section 41.001.
                (10)     "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.
                (11)     "Health care institution" includes:
                       (A)      an ambulatory surgical center;
                       (B)      an assisted living facility licensed under Chapter
 247, Health and Safety Code;
                       (C)      an emergency medical services provider;
                       (D) .    a health services district created under Chapter
 287, Health and Safety Code;
                       (E)      a home and community support services agency;
                       (F)      a hospice;
                       (G)      a hospital;
                       (H)      a hospital system;
                       (I)      an intermediate care facility for the mentally
 retarded or a home and community-based services waiver program for
 persons with mental retardation adopted in accordance with Section
 1915(c) of the federal Social Security Act (42 U.S.C. Section 1396n),
 as amended;
                       (J)      a nursing home;       or
                       (K)      an end stage renal disease facility licensed under
 Section 251.011, Health and Safety Code.
               ( 12) (A)       "Health care provider" means any person,
 partnership, professional association, corporation, facility,             or
 institution duly licensed, certified, registered, or chartered by the
 State of Texas to provide health care, including:
                               (i)     a registered nurse;
                               (ii)     a dentist;
                               (iii)     a podiatrist;
                               (iv)     a pharmacist;
                               (v)     a chiropractor;
                               (vi)     an optometrist;


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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY               Page 3 of5


                             (vii)     a health care institution;   or
                             (viii)     a health care collaborative certified under
 Chapter 848, Insurance Code.
                      (B)    The term includes:
                            (i)      an officer, director, shareholder, member,
 partner, manager, owner, or affiliate of a health care provider or
 physician;        arid
                            (ii)      an employee, independent contractor, or agent
 of a health care provider or physician acting in the course and scope
 of the employment or contractual relationship.
               (13)       "Health care liability claim" means 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.
               (14)       "Home and community support services agency" means a
 licensed public or provider agency to which Chapter 142, Health and
 Safety Code, applies.
               (15)       "Hospice" means a hospice facility or activity to
 which Chapter 142, Health and Safety Code, applies.
               (16)       "Hospital" means a licensed public or private
 institution as defined in Chapter 241, Health and Safety Code, or
 licensed under Chapter 577, Health and Safety Code.
               (17)       "Hospital system" means a system of hospitals located
 in this state that are under the common governance or control of a
 corporate parent.
               (18)       "Intermediate care facility for the mentally
 retarded" means a licensed public or private institution to which
 Chapter 252, Health and Safety Code, applies.
               (19)       "Medical care" means any act defined as practicing
 medicine under Section 151.002, Occupations Code,              perf~rmed   or
 furnished, or which should have been performed, by one licensed to
 practice medicine in this state for, to, or on behalf of a patient
 during the patient's care, treatment, or confinement.
               (20)       "Noneconomic damages" has the meaning assigned by
 Section 41.001.


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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY         Page 4 of5


               (21)     "Nursing home" means a licensed public or private
 institution to which Chapter 242, Health and Safety .Code, applies.
               (22)     "Pharmacist" means one licensed under Chapter 551,
 Occupations Code, who, for the purposes of this chapter, performs
 those activities limited to the dispensing of prescription medicines
 which result in health care liability claims and does not include any
 other cause of action that may exist at common law against them,
 including but not limited to causes of action for the sale of
 mishandled or defective products.
               (23)     "Physician" means:
                      (A)   an individual licensed to practice medicine in
 this state;
                      (B)   a professional association organized under the
 Texas Professional Association Act (Article 1528f, Vernon's Texas
 Civil Statutes) by an individual physician or group of physicians;
                      (C)   a partnership or limited liability partnership
 formed by a group of physicians;
                      (D)   a nonprofit health corporation certified under
 Section 162.001, Occupations Code;                  or
                      (E)   a company formed by a group of physicians under
 the Texas Limited Liability Company Act (Article 1528n, Vernon's
 Texas Civil Statutes).
               (24)     "Professional or administrative services" means those
 duties or services that a physician or health care provider is
 required to prov{de as a condition of maintaining the physician's or
 health care provider's license, accreditation status, or
 certification to participate in state or federal health care
 programs.
               (25)    "Representative" means the spouse, parent, guardian,
 trustee, authorized attorney, or other authorized legal agent of the
 patient or claimant.
         (b)   Any legal term or word of art used in this chapter, not
 otherwise defined in this chapter, shall have such meaning as is
 consistent with the common law.

 Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
 2003.
 Amended by:



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         Acts 2011, 82nd Leg., 1st C.S., Ch. 7 (S.B. 7), Sec. 4.02, eff.
  September 1, 2011




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