Reversed, Rendered in Part, and Remanded in Part, and Majority and
Dissenting Opinions filed March 26, 2020.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00887-CV

 THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
                        Appellant

                                         V.

                         BRENDA JACKSON, Appellee

                    On Appeal from the 122nd District Court
                           Galveston County, Texas
                      Trial Court Cause No. 17-CV-1226

                             DISSENTING OPINION

      The question before us is whether Brenda Jackson’s claim against UTMB is
a health care liability claim under the Texas Medical Liability Act.     Because
Brenda Jackson’s claim is not subject to the requirements of the Texas Medical
Liability Act, I respectfully dissent from the majority opinion.

      The Texas Legislature’s stated purpose in enacting the Medical Liability and
Insurance Improvement Act, the precursor to the Texas Medical Liability Act, was
to reduce the cost of medical malpractice insurance, thereby increasing patients’
access to health care. Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02(b)(1)-
(5), 1977 Tex. Gen. Laws 2039, 2040 (former Tex. Rev. Civ. Stat. art. 4590i,
§ 1.02(b)(1)-(5)), repealed by Act of June 2, 2003, 78th Leg., R.S., ch.
204, § 10.09, 2003 Tex. Gen. Laws 847, 884. In 2003, the Medical Liability and
Insurance Improvement Act (“MLIIA”) was repealed and replaced with the Texas
Medical Liability Act (“TMLA”). The statutes are the same in purpose and similar
in content. Legislative history of the TMLA reveals that the Legislature intended
to amend sections of the MLIIA to address what was perceived to be a “medical
malpractice crisis.” House Research Org., Bill Analysis, Tex. H.B. 4, 78th Leg.,
R.S. (2003). Supporters urged that the TMLA “would help ensure access to health
care by limiting insurers’ exposure to risk. This would lead to a reduction in
medical malpractice rates, which would permit more physicians to practice in the
state.” Id.

      The majority’s opinion is not consistent with the original intent of TMLA
and fails to serve the purpose intended by the Legislature.           See generally
Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 862–63 (Tex. 2005)
(O’Neill, J., dissenting) (“[T]he adoption of an overly broad interpretation of
‘health care liability claim’ could also hinder the Legislature’s goal of ensuring
that medical malpractice insurance is available at a reasonable cost: if courts sweep
even ordinary negligence claims into the ambit of the MLIIA, then malpractice
insurers may end up covering more of those claims. Malpractice insurance rates
would then continue to rise as those insurance policies are required to cover claims
that were not contemplated under the insurance contracts.”).



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         The TMLA defines a “health care liability claim” as:

         a cause of action against a health care provider 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.
See Tex. Civ. Prac. & Rem. Code § 74. 001(a)(13) (emphasis added).

         If a claim against a health care provider alleges a departure from safety
standards, it is a health care liability claim only if there is a “substantive nexus
between the safety standards allegedly violated and the provision of health care.”
Reddic v. E. Tex. Med. Ctr. Reg’l Health Care Sys., 474 S.W.3d 672, 673–74 (Tex.
2015).

         The TMLA does not specifically state that safety standards-based claims fall
within its provision only if the claim has some relationship to the provision of
health care other than the location of the occurrence, the status of the defendant, or
both. Id. However, the Texas Supreme Court has concluded that the Legislature
must have intended such a relationship is necessary, given the legislative intent
explicitly set out in the TMLA and the context in which “safety” is used in the
statute. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 504 (Tex. 2015). For
a safety standards-based claim to be considered a health care liability claim subject
to the requirement of providing an expert report under the TMLA, there must be a
substantive nexus between the safety standards allegedly violated and the provision
of health care. Id.; Se. Tex. Cardiology Assoc. v. Smith, 09-18-00438-CV, 2019
WL 3022547 at *3 (Tex. App.—Beaumont July 11, 2019, no pet.). “The pivotal
issue ... is whether the standards on which the claim is based implicate the
defendant’s duties as a health care provider, including its duties to provide for
patient safety.” Ross, 462 S.W.3d at 505. The majority and I agree on the “pivotal
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issue” in this case as articulated in Ross; however, this is where we part company.
Id. at 505.

      The high court has created a list of non-exclusive facts to consider when
determining whether a claim is substantively related to providing medical or health
care by the defendant (and is therefore considered a health care liability claim):

      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 alleged
      negligence, was it a type used in providing health care; or
      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 set for health care providers by governmental or
      accrediting agencies?

Ross, 462 S.W.3d at 505.
      While the majority’s analysis relies upon the fact that Brenda Jackson was a
patient in an area not generally accessible to the public, the majority ignores the
other Ross factors. Id.

      The record reflects that Brenda Jackson was at UTMB for a colonoscopy, an
outpatient procedure. Jackson was walking in a hallway to a procedure area, which
was not generally accessible to the public, when she slipped on liquid, believed to

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be water, resulting in her injuries.    As is in Ross, she was not undergoing a
procedure or receiving care, she had not yet undergone testing, she was not
accompanied by any medical staff, and she was not in an area where patients might
be during treatment.

      Tellingly, here, as in Ross, the record does not reflect that UTMB’s
vigilance, or lack thereof, regarding the liquid on the floor that caused Jackson’s
injuries, was for the purpose of protecting patients any more than any other
individual who might have been in that area of the hospital.

      As the majority notes, a claim may not fall under the TMLA “if the only
possible relationship between the conduct underlying a claim and the rendition of
medical services or healthcare [is] the healthcare setting (i.e., the physical location
of the conduct in a health care facility).” Loaisiga v. Cerda, 379 S.W.3d 248, 257
(Tex. 2012). Walking from one area of the hospital to another does not directly
relate to the rendition of health care unless there are accompanying acts of medical
treatment or health care, or a departure from safety standards directly related to
medical care, which do not exist in this case.

      Although UTMB claims that there are federal regulations that require
UTMB to meet certain safety standards, including requirements that the “overall
hospital environment . . . be developed and maintained in such a manner that the
safety and well-being of patients are assured,” that diagnostic facilities “be located
for the safety of patients,” and that hospital facilities “be maintained to ensure an
acceptable level of safety and quality.” 42 C.F.R. § 482.41 (a), (d)(1), (d)(2), and
Joint Commission Standard EC.02.06.01 (“The hospital establishes and maintains
a safe, functional environment.     Interior spaces meet the needs of the patient
populations and are safe and suitable to the care, treatment, and services
provided.”). UTMB fails to specify how these standards apply to removing liquid

                                          5
from the floor, warning of a dangerous condition, or eliminating a dangerous
condition, which UTMB also denies existed at the time of Jackson’s fall. UTMB
fails to specify any specific requirements that differ from the general obligations of
any business that is open to the public. UTMB fails to state how these duties are
unique to those of a healthcare provider.

      The duties described by UTMB to create a “safe, functional environment”
are duties that are owed by all business premises owners, and the location of the
diagnostic facilities is not a basis for Jackson’s claim. Further, “such generalized
obligations are insufficient to transform garden-variety premises-liability claims
into health care liability claims.” Houston Methodist Willowbrook Hosp. v.
Ramirez, 539 S.W.3d 495, 500 (Tex. App.—Houston [1st Dist.] 2017, no pet.)
(citing Reddic, 474 S.W.3d at 675–76).

      Brenda Jackson’s claim is analogous to the claim of the plaintiff in a case
decided by our sister court. Ramirez, 539 S.W.3d at 497–98. In Ramirez, the
plaintiff was sent from a physician’s office to a radiology lab when she alleged that
she slipped and fell on the floor, which was being buffed. Id. at 497. The First
Court of Appeals held that Ramirez’s claim was not substantively related to the
hospital’s provision of medical or health care, affirming the trial court’s denial of
Houston Methodist’s motion to dismiss based on failure to comply with the
TMLA. Id. at 501. As in Jackson’s claim, the cause of action alleged by Ramirez
were duties owed by a premises owner, not duties unique to a health care provider
that would require compliance with the TMLA.

      Requiring expert testimony in a premises liability or ordinary negligence
case also defeats the purpose of the statute. Expert testimony is not necessary to
determine liability in a premises liability or ordinary negligence case. In Valley
Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770, 772 (Tex. App.—Corpus Christi

                                            6
2006, pet. denied), the plaintiff suffered injuries from an accident that occurred
while using a treadmill in a treatment facility. The court found that Stradley’s
claims were “personal injury claims of the most pedestrian nature” and that a “jury
could understand the evidentiary issues and negligence standards posed by
Stradley’s claims without the aid of a medical expert’s report.” Id. at 775–76. The
simple fact that Stradley was injured on a treadmill located in a medical wellness
center, rather than in some other location did not covert a personal injury claim to a
heath care liability claim. The same principle applies here.

       In sum, the Legislature did not intend that every negligent injury to a patient
would fall under the TMLA. Marks v. St. Luke’s Episcopal Hosp., 319 S.W.2d
658, 664 (Tex. 2010).          The TMLA was created for the specific purpose of
disposing of frivolous claims against health care providers, not destroying possibly
meritorious causes of action for lack of an unnecessary expert report.

       The majority’s opinion has the effect of requiring an expert report to
demonstrate causation and liability1 in claims that should not be subject to the
TMLA’s requirements.

       Brenda Jackson’s claim is a premises liability cause of action and should not
be subject to the TMLA’s requirements.



                                            /s/       Margaret “Meg” Poissant
                                                      Justice


Panel consists of Justices Wise, Jewell, and Poissant. (Jewell, J., majority).

1
 “Nothing in this section shall be construed to require the serving of an expert report regarding
any issue other than an issue relating to liability or causation.” Tex. Civ. Prac. & Rem. Code.
§74.351(j).

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