                                                                                ACCEPTED
                                                                            12-14-00220-CV
                                                               TWELFTH COURT OF APPEALS
                                                                             TYLER, TEXAS
                                                                      10/16/2015 1:14:16 PM
                                                                                  Pam Estes
                                                                                     CLERK

                                 ORAL ARGUMENT REQUESTED

               No. 12-14-00220-CV                        FILED IN
                                          12th COURT OF APPEALS
_______________________________________________
                                                       TYLER, TEXAS
                                                   10/16/2015 1:14:16 PM
         COURT OF APPEALS                                 PAM ESTES
                                                            Clerk
                       for the

        TWELFTH DISTRICT OF TEXAS

                  Tyler, Texas
_______________________________________________

     EAST TEXAS MEDICAL CENTER GILMER
                             Appellant,

                          v.

                 BIRDER PORTER
                                       Appellee.
_______________________________________________

           Appeal from Cause No. 697-13
          th
       115 District Court, Upshur County, Texas
       Honorable Lauren Parish, Presiding Judge
_______________________________________________

     APPELLANT’S REPLY TO APPELLEE’S
 SUPPLEMENTAL BRIEF ON APPLICATION OF
    ROSS v. ST. LUKE’S EPISCOPAL HOSPITAL
_______________________________________________

                 Russell G. Thornton
     THIEBAUD REMINGTON THORNTON BAILEY LLP
                 Two Energy Square
          4849 Greenville Avenue, Suite 1150
                Dallas, Texas 75206
             (214) 954-2200 – Telephone
             (214) 754-0999 – Telecopier

     ATTORNEYS FOR DEFENDANT – APPELLANT
       EAST TEXAS MEDICAL CENTER GILMER

                  October 16, 2015
                                         TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................................... ii

SUMMARY OF ARGUMENT ................................................................................2

ARGUMENT ............................................................................................................4

CONCLUSION .........................................................................................................7

PRAYER ...................................................................................................................9

CERTIFICATE OF COMPLIANCE ......................................................................10

CERTIFICATE OF SERVICE ...............................................................................11




                                                             i
                                   INDEX OF AUTHORITIES

TEXAS SUPREME COURT CASES

Garland Community Hospital v. Rose,
156 S.W.3d 541 (Tex. 2004) .....................................................................................6

Loaisiga v. Cerda,
379 S.W.3d 248 (Tex. 2010) .................................................................................2, 4

Ross v. St. Luke’s Episcopal Hospital,
462 S.W.3d 496 (Tex. 2015) .................................................................................2, 4




                                                       ii
                            No. 12-14-00220-CV
           ___________________________________________________

                            COURT OF APPEALS

                                     for the

                         TWELFTH DISTRICT OF TEXAS

                               Tyler, Texas
           ___________________________________________________

                  EAST TEXAS MEDICAL CENTER GILMER
                                          Appellant,

                                        v.

                              BIRDER PORTER
                                               Appellee.
           ___________________________________________________

                        Appeal from Cause No. 697-13
                    th
                115 Judicial District Court, Upshur County, Texas
                    Honorable Lauren Parish, Presiding Judge
           ___________________________________________________

TO THE TWELFTH COURT OF APPEALS:

       Appellant East Texas Medical Center Gilmer, defendant in Cause No. 697-

13 in the 115th Judicial District Court of Upshur County, Texas, Honorable

Lauren Parish presiding, pursuant to this Court’s August 4, 2015 order,

respectfully submits its Reply to Appellee’s Supplemental Brief on Application of

Ross v. St. Luke’s Episcopal Hospital. Appellee is Birder Porter, Plaintiff in the

district court.



                                        1
                         SUMMARY OF ARGUMENT

      Appellee’s Supplemental Brief on Application of Ross v. St. Luke’s

Episcopal Hospital (“Appellee’s Supplemental Brief”) correctly states an

underlying issue is whether or not there is a “substantive nexus” between the safety

standards violated and the provision of health care. Appellee’s assertion that her

claim is not a health care liability claim (“HCLC”) fails to address and ignores the

context within which this statement was made by the Texas Supreme Court in

Ross, as well as the overall context of this statement in the existing framework

provided by the Texas Supreme Court to use in determining if a claim is an HCLC.

      As stated by the Texas Supreme Court, the real issue at hand is whether “the

facts underlying a claim could support claims against a physician or health care

provider for departures from accepted standards of medical care, health care, safety

or professional or administrative services directly related to health care…” Ross v.

St. Luke’s Episcopal Hospital, 462 S.W.3d 496, 503 (Tex. 2015)(emphasis in

original)(citing Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2010)). If a claim’s

underlying facts “could” support a safety-standards claim against a health care

provider like East Texas Medical Center Gilmer (“ETMCG”), “the claims are

HCLCs regardless of whether the plaintiff alleged the defendants were liable for a

breach of the standards.” Id.




                                         2
      ETMCG’S Supplemental Brief establishes that based on existing applicable

statutes, regulations and case law, Appellee could have asserted a safety claim

against ETMCG for alleged departures from accepted standards of health care or

safety. For that reason, Appellee’s claim against ETMCG is an HCLC as dictated

by Ross and other existing Texas Supreme Court authority.




                                       3
                                   ARGUMENT

      In evaluation of the application of Ross to this matter, the Court must go

beyond the Texas Supreme Court’s statement that the issue is whether or not there

exists “a substantive nexus between the safety standards allegedly violated and the

provision of health care.” Ross, 462 S.W.3d at 504. One must go beyond that

statement because the Texas Supreme Court’s analysis and evaluation did not

begin and end there. In fact, the Texas Supreme Court went beyond that statement

to hold, “the pivotal issue in a safety-standards-based claim is whether or not 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.”        Id. at 505

(emphasis added).

      In Ross, the Texas Supreme Court placed its “substantive nexus” statement

in the context of the existing and still valid concept that “if the facts underlying a

claim could support claims against a physician or health care provider for

departures from accepted standards of medical care health care, or safety or

professional or administrative services directly related to health care, the claims are

HCLCs regardless of whether plaintiff alleged defendants were liable for breach of

the standards.” Id. at 503 (emphasis in original)(citing Loaisiga, 379 S.W.3d at

255). As such, the Texas Supreme Court in Ross tells appellate courts and trial

courts that the touchstone issue is whether or not a claim’s underlying facts



                                          4
implicate the health care provider’s duties as a health care provider.        If the

healthcare provider’s duties as a healthcare provider are implicated, the claim is an

HCLC, regardless of whether or not the claimant actually alleges a breach of those

duties.

      In its Supplemental Brief on Application of Ross v. St. Luke’s Episcopal

Hospital (“ETMCG’s Supplemental Brief”), ETMCG establishes and shows that

its duties as a health care provider are at least implicated by the underlying facts.

Specifically, ETMCG’s Supplemental Brief shows that the factual basis of

Appellee’s claim implicates duties placed on health care providers like ETMCG by

federal law, by Texas law, by guidelines from the United States Centers for

Disease Control and Prevention (“CDC”) and the United States Occupational

Health and Safety Administration (“OSHA”), and by regulations and guidelines of

the Joint Commission (ETMCG’s Supplemental Brief, pages 8-15).

      The appellate court authority cited in ETMCG’s Supplemental Brief further

supports this fact. In particular, ETMCG cites Texas appellate court decisions

holding that CDC guidelines, OSHA regulations, and Joint Commission

requirements not only provide evidence of the standard of care applicable to a

hospital like ETMCG, but have been relied on and used by claimants in Texas to

establish the applicable standards of care and a breach of those standards in expert

reports served to establish the merits of an HCLC pursuant to Section 74.351 of the



                                         5
TEXAS CIVIL PRACTICE & REMEDIES CODE (ETMCG’s Supplemental Brief,

pages 18-19).

      Final support for the fact Appellee’s claim against ETMCG is an HCLC

comes from the Texas Supreme Court’s decision in Garland Community Hospital

v. Rose, 156 S.W.3d 541 (Tex. 2004). In Rose, the Texas Supreme Court held that

accepted standards of health care are not only implicated, but actually involved,

when a hospital’s action is governed by combination of existing federal law, state

law, and Joint Commission guidelines.        Id. at 546 (See also, ETMCG’s

Supplemental Brief, page 19).




                                        6
                                  CONCLUSION

      ETMCG has established that an existing combination of federal law, Texas

law, federal guidelines and regulations, and Joint Commission regulations govern

the manner in which hospitals like ETMCG must maintain their physical premises,

including floors. Because of this existing combination of law, regulations and

guidelines that apply to ETMCG’s maintenance of its premises and floors,

ETMCG’s duties as a health care provider and accepted standards of health care

and safety are directly involved, or at the very least implicated, by Appellee’s slip-

and-fall claim.

      Further, established case law shows this existing combination of law,

regulations and guidelines could have been relied on or used by Appellee to

support a claim against ETMCG for an alleged departure from accepted standards

of health care or safety. For these reasons, based on the Texas Supreme Court’s

opinion in Ross, as well as other existing Texas Supreme Court authority still

entitled to stare decisis treatment, Appellee’s claim against ETMCG is an HCLC

under Chapter 74 of the TEXAS CIVIL PRACTICE & REMEDIES CODE.

      Of final note, at no place in Appellee’s Supplemental Brief on Application

of Ross v. St. Luke’s Episcopal Hospital does Appellee address or rebut with any

arguments or authority the authority cited and relied on by ETMCG that

establishes the fact Appellee’s claim is an HCLC. Appellee simply argues in a



                                          7
conclusory and superficial manner that there is no substantive nexus between her

claim and the provision of health care (Appellee’s Supplemental Brief, page 5).

ETMCG has shown Appellee’s argument to be incorrect and contrary to existing

authority.   Accordingly, the trial court erred in denying ETMCG’s motion to

dismiss and the Tyler Court of Appeals should reverse the trial court’s denial of

ETMCG’s motion to dismiss and dismiss Appellee’s claim against it with

prejudice.




                                       8
                                    PRAYER

      Because the trial court erred in denying Appellant East Texas Medical

Center Gilmer’s Motion to Dismiss, Appellant requests that this Twelfth District

Court of Appeals:

      1.    Reverse the trial court’s denial of East Texas Medical Center Gilmer’s
            Motion to Dismiss (CR 36, Appendix “A”);

      2.    Dismiss with prejudice Appellee’s claim against East Texas Medical
            Center Gilmer, and:

      3.    Remand this matter to the trial court for further proceedings consistent
            with the above actions.

                                      Respectfully Submitted,

                                      THIEBAUD REMINGTON THORNTON BAILEY, LLP



                                      By:/s/Russell G. Thornton
                                        RUSSELL G. THORNTON
                                        State Bar Card No. 19982850
                                         4849 Greenville Avenue
                                         Suite 1150
                                         Dallas, Texas 75206
                                         (214) 954-2200
                                         (214) 754-0999 (Fax)
                                         rthornton@trtblaw.com




                                        9
                     CERTIFICATE OF COMPLIANCE

      Pursuant to TEXAS RULES     OF   APPELLATE PROCEDURE 9.4(i)(3) Appellant

certifies that its Reply to Appellee’s Supplemental Brief on Application of Ross v.

St. Luke’s Episcopal Hospital, filed on October 16, 2015, in the Twelfth Court of

Appeals, contains 1,197 words.

                                    /s/Russell G. Thornton
                                    RUSSELL G. THORNTON




                                        10
                        CERTIFICATE OF SERVICE

      The undersigned certifies that on the 16th day of October, 2015, a true and

correct copy of the foregoing document was delivered to counsel listed below:

      VIA E-SERVE &/OR CMRRR:
      Mr. Michael Bernoudy
      THE BERNOUDY LAW FIRM
      2400 W. Grand Avenue
      Marshall, Texas 75670
      mlbjr@bernoudylawfirm.com



                                    /s/Russell G. Thornton
                                    RUSSELL G. THORNTON




                                        11
