                                                                             ACCEPTED
                                                                        12-13-00005-CV
                                                            TWELFTH COURT OF APPEALS
                                                                         TYLER, TEXAS
                                                                  12/29/2014 7:57:38 PM
                                                                           CATHY LUSK
                                                                                 CLERK


               NO. 12-13-00005-CV
     ___________________________________________
                                                        FILED IN
                                                 12th COURT OF APPEALS
            In the Court of Appeals                   TYLER, TEXAS
                                                 12/29/2014 7:57:38 PM
for the Twelfth Judicial District at Tyler, Texas     CATHY S. LUSK
                                                          Clerk
     ___________________________________________

        THE GOOD SHEPHERD HOSPITAL, INC.,
                    Appellant,

                               v.

      RONALD MASTEN and CHARLENE MASTEN,
                              Appellees.
    _____________________________________________

     Appealed from the 188th Judicial District Court of
                  Gregg County, Texas
                 Cause No. 2012-876-A
    _____________________________________________

APPELLANT’S MOTION FOR REHEARING
    _____________________________________________

                                Respectfully submitted,
                                MCCATHERN, PLLC
                                David W. Dodge
                                DDodge@McCathernLaw.com
                                State Bar No. 24002000
                                Regency Plaza
                                3710 Rawlins, Ste. 1600
                                Dallas, Texas 75219
                                (214) 741-2662 - Telephone
                                (214) 741-4717 - Facsimile

                                ATTORNEYS FOR APPELLANT

                               1
                APPELLANT’S MOTION FOR REHEARING

      1.     Appellant respectfully requests that the Court of Appeals withdraw its

December 3, 2014 Memorandum Opinion in this matter, and grant judgment to

Appellant. Alternatively, Appellant requests the Court vacate the judgment for

Appellees and await forthcoming guidance from the Texas Supreme Court when it

hands down its opinion in Ross v. St. Luke's Episcopal Hospital, No. 13-0439.

      A. The Court Should Grant Judgment for Appellant because the Logic
         of Vargas is Flawed.

      2.     In the Memorandum Opinion, the Court relies on a recent opinion

from the El Paso Court of Appeals to dispense with Appellant’s argument that

Appellees’ express reliance on safety regulations that only apply to emergency

medical service providers creates a nexus between those claims and the provision

of health care. See Memorandum Opinion at 7-8 (quoting East El Paso Physicians

Medical Center, L.L.C. v. Vargas, --- S.W.3d ----, No. 08-13-00358-CV, 2014 WL

5794622, *6 (Tex. App.—El Paso, Nov. 7, 2014, pet. filed)). With respect to the

Court, its reliance on Vargas is misplaced.

      3.     Although not part of the opinion quoted by this Court, the principal

conclusion reached by the El Paso Court in Vargas was that, although “Vargas’

pleaded claims may touch on or implicate hospital licensure regulations, Twilley

makes clear that the existence of an on-point safety regulation does not convert a

                                              2
claim into a safety HCLC . . . .” Vargas, 2014 WL 5794622 at *5. It is this

conclusion that leads to the portion of the opinion cited by the Court. Yet, this

conclusion is an answer to a question that was never asked.

      4.     Neither the hospital in Vargas nor Appellant here argued that safety

regulations that apply generically to all types of industries—such as the OSHA

regulations at issue in Twilley—established a nexus between the claimant’s cause

of action and health care. Rather, it is the fact that the safety regulation both: (a)

specifically applies only to healthcare providers; and (b) is expressly made a basis

of liability by the claimant, that supplies any necessary connection to healthcare.

      5.     Those two elements exist here. As Appellant argued in its Reply:

      Appellees cannot escape the close relationship of their claim to Good
      Shepherd’s provision of emergency medical services because they
      expressly base their claims on Appellants’ alleged deviations from
      “industry safety standards”—safety standards their experts identify as
      being established under the Emergency Healthcare Act. Id.; CR 158
      (Plaintiffs’ Original Petition at 7); CR 600 (Shipp report alleging
      violation of 25 TAC § 157.11(d) related to vehicle maintenance);
      Appx. Ex. 3. In light of this express reliance on the EMS safety
      regulations—regulations that apply only to providers of emergency
      medical services—it is impossible for Appellees to show that their
      claims are “entirely unrelated to health care.” Twilley, 2013 WL
      772136 at *4 (emphasis in original).
Appellant’s Reply Brief at 5 (footnotes omitted).


      6.     The fact that Appellees specifically base liability on the allegation that

safety regulations exclusively applicable to Good Shepherd as an emergency

                                             3
medical services provider itself supplies a sufficient nexus to healthcare to trigger

application of the Texas Medical Liability Act (“TMLA”). Thus, if the question is,

as the El Paso Court of Appeals stated: “[W]hether the plaintiff alleged that the

health care provider defendant breached safety standards indirectly related to

health care,” then the answer here is emphatically “yes”.1

       7.      As noted below, the Vargas opinion also conflicts with this Court’s

decision in Reddic, an opinion which is much more closely aligned with the

Fourteenth Court of Appeals’ decision in Ross. See Vargas, 2014 WL 5794622 at

*3 (grouping Reddic and Ross together as cases that require no nexus between

safety and the provision of healthcare).

       8.      Appellant recognizes that this Court would likely view the El Paso

Court’s interpretation of Reddic as incorrect on the same basis the Court

distinguished Reddic in the Memorandum Opinion.                    However, the basis for this

Court finding an indirect relationship to the provision of healthcare in Reddic is

also present here. Specifically, in Reddic, the Court reasoned there was an indirect

connection to healthcare because the duty allegedly breached was equally

applicable to patients and hospital visitors alike. Memorandum Opinion at 6.

1
    The El Paso Court of Appeals’ recognition that Ms. Vargas’ claims “touch[ed] on or
implicate[d]” the referenced hospital-specific regulations is, in effect, a tacit admission that those
claims are not “wholly and conclusively inconsistent with and separable from the rendition of
health care.” Memorandum Opinion at 4.

                                                      4
      9.     Yet this is also true of the specialized emergency medical services

regulations allegedly violated in this case—they exist to keep safe Good Shepherd

patients and employees alike. See, e.g., Appellant’s Brief at 25 (citing 25 TAC §

157.11(d)(1) - “[a]ll EMS vehicles must be adequately constructed, equipped,

maintained and operated to render patient care, comfort and transportation safely

and efficiently.” (emphasis added)). The difference is that the regulations cited by

Appellant apply only to emergency medical service providers. Thus, if anything,

the regulations cited by Appellant, and relied on by Appellees as a basis for its

alleged liability, bear a much closer relationship to the provision of healthcare than

do the negligence duties arising from the common law of premises liability in

Reddic.

      10.    It is no answer to say that Appellant’s alleged acts and omissions are

also claimed to violate OSHA regulations. The TMLA does not permit “claim

splitting.” Yamada v. Friend, 335 S.W.3d 192, 195–96 (Tex. 2010). Either a

claimant’s allegations have a relationship to healthcare or they do not. Because the

Appellee’s allegations here are at least as closely related to the provision of

healthcare as those of the plaintiff in Reddic, the requisite nexus (if any is required)

was established.




                                              5
       B. The Court Should Await the Texas Supreme Court’s Opinion in
          Ross.

       11.    If the Court is unwilling to grant judgment to Appellant, it should

vacate the judgment, withdraw its Memorandum Opinion and reconsider the appeal

after the Texas Supreme Court issues its decision in Ross v. St. Luke's Episcopal

Hosp., 14-12-00885-CV, 2013 WL 1136613 (Tex. App.—Houston [14th Dist.]

Mar. 19, 2013, pet. granted).

       12.    In the wake of Texas W. Oaks Hospital, LP v. Williams, 371 S.W.3d

171 (Tex. 2012), Texas Courts of Appeals have struggled to articulate and apply a

clear standard for determining whether a claim falls within the “safety” prong of

the definition of a “health care liability claim” (an “HCLC”) under the TMLA.

Specifically, the issue of what (if any) nexus must exist between the provision of

health care an alleged deviation from accepted standards of “safety” in order for

the TMLA to be triggered is one on which the Texas Courts of Appeals are split.2

Even those Courts of Appeals that require some nexus to healthcare reach differing

conclusions based on materially identical facts.3


2
  See East El Paso Physicians Medical Center, L.L.C. v. Vargas, --- S.W.3d ----, No. 08-13-
00358-CV, 2014 WL 5794622, *3 (Tex. App.—El Paso, Nov. 7, 2014, pet. filed) (listing
conflicting cases).
3
  Compare id. (concluding “garden variety” slip and fall was not an HCLC) with E. Texas Med.
Ctr. Reg'l Health Care Sys. v. Reddic, 426 S.W.3d 343 (Tex. App.—Tyler 2014, pet. filed)
(concluding such a slip and fall claim was an HCLC).

                                                6
       13.    It is anticipated that the Supreme Court’s decision in Ross will

substantially clarify the nexus issue. In Ross, the Fourteenth Court of Appeals held

“a connection between the act or omission and health care is unnecessary for

purposes of determining whether Ross brings an HCLC.” Ross, 2013 WL 1136613

at *1.4 The Texas Supreme Court heard oral argument in Ross on November 5,

2014, and is poised to issue an opinion in that case.5 If the Supreme Court affirms

that holding, Appellant respectfully submits that the Court of Appeals opinion in

this matter would have to be reversed. Even if the Court does not affirm, its

opinion in Ross is likely to shed much needed light on the issues raised in this

appeal.

                                          PRAYER

       WHEREFORE, Appellant prays that the Court grant this Motion for

Rehearing, vacate its judgment for Appellees, and grant judgment for Appellant.

Alternatively, Appellant requests that the Court vacate the judgment, withdraw the

Memorandum Opinion, and reconsider that decision with the benefit of the Texas

Supreme Court’s forthcoming opinion in Ross.


4
 Appellant likewise argued that the TMLA does not require any connection between health care
and the alleged deviation from accepted standards of “safety” for a claim to constitute an HCLC.
See Appellant’s Brief at 26; Appellant’s Reply Brief at 3 & n.3.
5
  The video of oral argument before the Texas Supreme court in Ross can be found at:
http://texassupremecourt.mediasite.com/mediasite/Play/adababbdb285436395df86df6ce3358b1d

                                                   7
                                      Respectfully submitted,

                                      MCCATHERN, PLLC

                                       /s/David W. Dodge
                                      David W. Dodge
                                      State Bar No. 24002000
                                      Regency Plaza
                                      3710 Rawlins, Ste. 1600
                                      Dallas, Texas 75219
                                      (214) 741-2662 - Telephone
                                      (214) 741-4717 - Facsimile
                                      COUNSEL FOR APPELLANT

                      CERTIFICATE OF COMPLIANCE
      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(2)(D), I certify that the
portion of this motion subject to Appellate Rule 9.4(i) contains 1451 words.

                                       /s/David W. Dodge

                         CERTIFICATE OF SERVICE
       The undersigned hereby certifies that the foregoing Appellant’s Motion for
Rehearing was served upon all parties to this appeal in accordance with the TEXAS
RULES OF CIVIL AND APPELLATE PROCEDURE on this 29th day of December, 2014,
via the means indicated below:

Via E-Service:
Ted Lyon
Bill Zook
Ron McCallum
Ted B. Lyon & Associates, P.C.
18601 LBJ Freeway, Suite 525
Mesquite, Texas 75150
ATTORNEYS FOR APPELLEES


                                       /s/David W. Dodge


                                            8
