Reversed and Remanded and Memorandum Opinion filed August 25, 2015.




                                      In The

                       Fourteenth Court of Appeals

                               NO. 14-14-00379-CV

                           ROSALINDA REYES, Appellant
                                        V.

MEMORIAL HERMANN HEALTH D/B/A TIRR MEMORIAL HERMANN,
                      Appellee

                      On Appeal from the 129th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2013-35690

                    MEMORANDUM OPINION
       Rosalinda Reyes appeals from the trial court’s dismissal of personal injury
claims against Memorial Hermann Health d/b/a TIRR Memorial Hermann for
failure to timely file an expert report pursuant to section 74.351 of the Texas
Medical Liability Act (TMLA). Tex. Civ. Prac. & Rem. Code § 74.351. As will
be discussed below, Reyes alleged negligence related to a slip-and-fall incident on
premises owned or controlled by Memorial Hermann. We reverse and remand this
case to the trial court.
                                         Background

       Reyes alleges that on or about June 15, 2011, she was an invitee on premises
owned or controlled by Memorial Hermann when she “slipped and fell due to a
liquid substance on the floor.” She contends that “[n]o signage or other safety
precautions were present to warn patrons of the unsafe condition of the premises
[and a]s a result, [she] suffered personal injuries.” Reyes further claimed that
Memorial Hermann knew or reasonably should have known of the hazardous
condition, which posed an unreasonable risk of harm.                      She complains that
Memorial Hermann “breached its duty of care by both failing to make the
condition on the premises reasonably safe and failing to adequately warn Plaintiff
and others of the condition.” Lastly, Reyes alleges that she sustained injuries due
to her fall, and that such injuries and associated damages were proximately caused
by Memorial Hermann’s failure to use reasonable care. Very few specifics are
provided in the record regarding Reyes’s alleged presence on property owned or
controlled by Memorial Hermann, the location of the alleged incident within the
facility, or the circumstances surrounding the alleged incident.1

       Memorial Hermann filed a motion to dismiss Reyes’s claims, asserting that
the claims are health care liability claims and Reyes failed to timely file an expert
report as required by section 74.351 of the TMLA. Reyes responded by arguing
both that her claims were not health care liability claims and that she had timely
provided an expert report.          The trial court granted the motion and dismissed



       1
          The parties do not dispute that Memorial Hermann TIRR (The Institute for
Rehabilitation and Research) is a facility for the provision of health care or that Reyes was
neither a patient nor seeking medical treatment at the time of the incident. Memorial Hermann
represents in its brief that Reyes was not at the facility seeking medical or rehabilitative
treatment and that she “slipped and fell in a puddle of water” in a hallway outside of a gift shop.
Memorial Hermann, however, offers no record citation in support of this suggestion, and the
record contains no evidence supporting or refuting it.

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Reyes’s claims against Memorial Hermann with prejudice.2

                                       Issue not waived

       Memorial Hermann argues that Reyes failed to preserve the issue that her
claims were not health care liability claims by raising it in the trial court. See Tex.
R. App. P. 33.1. Our review of the record, however, reveals that the argument was
indeed raised and thus preserved. Memorial Hermann’s motion to dismiss was
predicated on Reyes’s claims being health care liability claims. Moreover, Reyes
disputed this characterization in her response to the motion, stating, “Other than
the incident occurring on Defendant’s premises, this case has nothing to do with
health care.” Additionally, in argument to the court during the hearing on the
motion, Reyes’s counsel made repeated reference to her position that her claims
were not health care liability claims, e.g., “Plaintiffs [sic] have never conceded that
this is a healthcare liability claim. It’s pled as a premises liability claim, and we’ve
mentioned in our response that this case doesn’t have anything to do with
healthcare,” “these arguments are absurd because the statute shouldn’t apply to a
premises liability case,” and “it [TMLA Chapter 74] doesn’t really apply to slip
and falls.”3 Furthermore, in her second motion for new trial, Reyes again told the
court that the question presented in the case was whether a slip-and-fall claim with
no connection to the provision of health care, that did not involve a patient, and
was purely a premises liability claim qualified as a health care liability claim
merely because it occurred on the premises of a health care provider.

       2
        After the trial court initially granted the motion and dismissed her claims, Reyes filed a
motion for new trial asserting that her counsel had not been properly served with Memorial
Hermann’s motion. The trial court granted the motion for new trial and reconsidered the motion
to dismiss along with Reyes’s response. The court then granted the motion and dismissed
Reyes’s claims a second time.
       3
         Reyes further argued that, if the trial court found her claims to be health care liability
claims, she complied with Chapter 74’s expert report requirement by furnishing Memorial
Hermann with a doctor’s report.

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                                 Governing Law

      In her sole issue on appeal, Reyes contends that the trial court erred in
dismissing her claims against Memorial Hermann because her claims are not health
care liability claims and, thus, no expert report was required to be filed under
section 74.351. The TMLA defines a “health care liability claim” as:

      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.
Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). Pursuant to section 74.351, a
claimant bringing a health care liability claim must, “not later than the 120th day
after the date each defendant’s original answer is filed, serve on that party or the
party’s attorney one or more expert reports.” Id. § 74.351(a)). If an expert report
has not been served within the 120–day deadline and the defendant physician or
health care provider files a motion to dismiss, the trial court must “dismiss[ ] the
claim with respect to the physician or health care provider, with prejudice to the
refiling of the claim,” and award the physician or health care provider reasonable
attorney’s fees and costs of court. Tex. Civ. Prac. & Rem. Code § 74.351(b).

      Appellate courts generally review a trial court’s ruling on a motion to
dismiss under section 74.351 for an abuse of discretion. Rosemond v. Al–Lahiq,
331 S.W.3d 764, 766 (Tex. 2011). However, to the extent that our review involves
a matter of statutory construction, the issue is a legal question we review de novo.
See Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012).
Accordingly, in determining whether Reyes’s allegations constitute health care
liability claims governed by the TMLA, we apply a de novo standard of review.
Id.

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      While this appeal was pending, the Texas Supreme Court resolved a split
among the courts of appeals concerning whether and to what extent claimed
departures from accepted standards of safety by a health care provider must be
related to the provision of health care to constitute health care liability claims
governed by the TMLA. See Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496,
500 (Tex. 2015). The supreme court held that, for a safety-based claim against a
health care provider to be a health care liability claim, “there must be a substantive
nexus between the safety standards allegedly violated and the provision of health
care.” Id. at 504. The court further explained that “[t]he pivotal issue in a safety
standards-based claim 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.” Id. at 505. Accordingly, our analysis is guided by the
Ross court’s instructions for determining whether Reyes’s claims constitute health
care liability claims.

                                      Analysis

      As in Ross, Reyes’s negligence claims are based on alleged violations of
safety standards; Reyes makes no allegations specifically regarding the provision
of health care by Memorial Hermann and does not state where she slipped and fell
on the premises. Memorial Hermann likewise has not asserted any connection
between Reyes’s safety-related claims and the provision of health care, other than
to assert that it is a health care provider. As the Ross court made clear, “[a] safety
standards-based claim does not come within the TMLA’s provisions just because
the underlying occurrence took place in a health care facility, the claim is against a
heath care provider, or both.” Id. at 504 (citing Loaisiga v. Cerda, 379 S.W.3d
248, 257 (Tex. 2012)).

      The Ross court articulated non-exclusive factors to aid in analyzing whether
a safety standards-based claim is substantively related to the defendant’s providing
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of medical or health care and is therefore a health care liability claims. In this
case, because there is no evidence that Reyes was a patient of TIRR Memorial
Hermann, we focus on two Ross factors: (1) whether the alleged negligence
occurred in the course of the defendant’s performing tasks with the purpose of
protecting patients from harm; and (2) whether the injuries allegedly occurred 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. Id. at 505.

      Applying relevant considerations as set forth in Ross, we conclude that no
substantive nexus exists between the safety standards Memorial Hermann allegedly
violated and the provision of health care. The record before us does not show that
the alleged negligence—leaving water on the floor and failing to provide proper
warnings—occurred in the course of performing tasks with the purpose of
protecting patients from harm. Cf. id. (holding that cleaning a floor near exit doors
was not shown to be for the purpose of protecting patients). Similarly, there is no
indication in the record that the alleged negligence occurred in a place where
patients might be while receiving care. See Lout v. The Methodist Hosp., No. 14–
14–00302–CV, 2015 WL 3878135, at *3 (Tex. App.–Houston [14th Dist.] June 23,
2015, no pet. h.) (noting that even though incident allegedly occurred in hospital’s
“heart failure unit,” there was no evidence in the record to substantiate that the
plaintiff slipped in an area where patients might be while receiving treatment).

      Furthermore, the record includes no indication that the alleged negligence
concerning water on the floor implicated safety standards arising from professional
duties Memorial Hermann owed as a health care provider, that any instrumentality
involved in the negligence was of a type used in providing health care, or that the
alleged negligence occurred in the course of taking action or failing to take action
necessary to comply with a requirement set for health care providers by

                                          6
governmental or accrediting agencies. See Ross, 462 S.W.3d at 505; see also
Chamie v. Mem’l Hermann Health Sys., No. 14-14-00213-CV, 2015 WL 4141106,
at *4 (Tex. App.—Houston [14th Dist.] July 9, 2015, no pet. h.) (mem. op.)
(coming to similar conclusions in case involving wet flooring in a retirement
home); Lance Thai Tran, DDS, PA v. Chavez, No. 14–14–00318–CV, 2015 WL
2342564, at *3–4 (Tex. App.–Houston [14th Dist.] May 14, 2015, no pet.) (mem.
op.) (coming to similar conclusions in case involving wet flooring in a dentist’s
office). We therefore conclude that Memorial Hermann has not carried its burden
to prove that Reyes’s claims have a substantive relationship to the hospital’s
provision of health care and are health care liability claims for which an expert
report was required. See Reddy v. Veedell, 01-14-00309, 2014 WL 4651211, at *3
(Tex. App.—Houston [1st Dist.] Sept. 18, 2014, pet. denied) (explaining that
putative health care provider, as the movant, bore the burden of presenting
evidence establishing applicability of TMLA). Reyes, therefore, was not required
to serve an expert report to avoid dismissal of her suit. See Ross, 462 S.W.3d at
505.

                                   Conclusion

       We sustain Reyes’s sole issue, reverse the trial court’s judgment, and
remand for further proceedings in accordance with this opinion.




                                      /s/       Martha Hill Jamison
                                                Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.



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