                                                                                         ACCEPTED
                                                                                     01-15-00141-CV
                                                                          FIRST COURT OF APPEALS
                                                                                  HOUSTON, TEXAS
                                                                                7/28/2015 6:09:55 PM
                                                                               CHRISTOPHER PRINE
                                                                                              CLERK

                            No. 01-15-00141-CV

                     IN THE COURT OF APPEALS              FILED IN
                                                   1st COURT OF APPEALS
             FOR THE FIRST JUDICIAL DISTRICT OF TEXAS  HOUSTON, TEXAS
                            AT HOUSTON             7/28/2015 6:09:55 PM
               _____________________________________
                                                   CHRISTOPHER A. PRINE
                                                                  Clerk
                          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
                     ___________________________

         FIRST AMENDED RESPONSE BRIEF OF APPELLEE
       SODEXO SERVICES OF TEXAS, LIMITED PARTNERSHIP
                  ___________________________

                     ORAL ARGUMENT REQUESTED

Nelson D. Skyler
Lead Counsel for Appellee                  COUNSEL FOR APPELLEE
Texas Bar No. 00784982                     SODEXO SERVICES OF TEXAS,
Neal A. Hoffman                            LIMITED PARTNERSHIP
Texas Bar No. 24069936
BROWN SIMS
1177 West Loop South, Tenth Floor
Houston, Texas 77027-9007
(713) 629-1580 Phone
(713) 629-5027 Fax
nskyler@brownsims.com
nhoffman@brownsims.com
                                        TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT ............................................ vii
ISSUES PRESENTED........................................................................................... viii

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENT ........................................................................3

ARGUMENT & AUTHORITIES .............................................................................5
  I. Shah’s claims asserted against Sodexo are health care liability claims, as
  defined by Chapter 74 of the TEXAS CIVIL PRACTICES & REMEDIES CODE. ..........5

     A. Shah is a claimant, Sodexo is a health care provider, and Shah’s
     claims address alleged departures from accepted standards of safety. ...............5
     B. The Texas Supreme Court rejected an interpretation of Chapter 74
     imposing a direct-relationship requirement on health care liability claims
     regarding breaches of safety standards. ..............................................................7

     C. Decisions following Texas West Oaks Hospital imposed an indirect-
     relationship requirement for classifying safety-breach claims as health care
     liability claims regarding breaches of safety standards. .....................................8

     D. The Texas Supreme Court adopted a substantive nexus requirement
     between safety standards and the provision of health care. ................................9

     E. The Ross factors support classifying Shah’s lawsuit as a health care
     liability claim. ...................................................................................................11

     F. Post Ross cases support the conclusion that Shah’s claim is a health
     care liability claim. ............................................................................................14

  II. The trial court properly dismissed Shah’s claim for failure to serve a
  Chapter 74 expert report within the allotted time period. ....................................16

     A. Shah failed to serve an expert report on Sodexo within 120 days of
     Sodexo’s Original Answer. ...............................................................................17


                                                                                                                         ii
                              TABLE OF CONTENTS (con't.)

     B.     Shah waived any objection to Sodexo’s disclosures................................17

     C. Sodexo is not obligated to disclose that it believes a case is a health care
     liability claim in order to seek dismissal under Section 74.351(a), and the
     Court did not abuse its discretion in granting Sodexo’s motion to dismiss......19

CONCLUSION & PRAYER ...................................................................................23

CERTIFICATE OF COMPLIANCE .......................................................................27

CERTIFICATE OF SERVICE ................................................................................27




                                                                                                      iii
                                     INDEX OF AUTHORITIES

Cases
Brazos Presbyterian Homes, Inc. v. Rodriguez,
  14-14-00479-CV, 2015 WL 3424695 (Tex. App.—Houston [14th Dist.]
  May 28, 2015, no. pet. h.).....................................................................................15
Cage v. Methodist Hosp.,
 01-14-00341-CV, 2015 WL 4139322 (Tex. App.—Houston [1st Dist.]
 July 9, 2015, no. pet. h.) ...................................................................................9, 14
Chamie v. Mem’l Hermann Health Sys.,
 14-14-00213-CV, 2015 WL 4141106 (Tex. App.—Houston [14th Dist.]
 July 9, 2015, no. pet. h.) .......................................................................................14
Doctors Hosp. at Renaissance, Ltd. v. Mejia,
 No. 13–12–00602–CV, 2013 WL 4859592 (Tex.App.-Corpus Christi
 Aug.1, 2013, pet. filed) (mem.op.) .........................................................................9
Finlay v. Olive,
  77 S.W.3d 520 (Tex.App.—Houston [1st Dist.] 2002, no pet.)...........................19
Good Shepherd Medical Center–Linden, Inc. v. Twilley,
 422 S.W.3d 782 (Tex.App.-Texarkana 2013, pet. denied) ....................................9
Herrera v. Seton Nw. Hosp.,
 212 S.W.3d 452 (Tex.App.-Austin 2006, no pet.) ...............................................20
Lake Travis Indep. Sch. Dist. v. Lovelace,
  243 S.W.3d 244 (Tex. App.—Austin 2007, no pet.)............................................20
Lance Thai Tran, DDS, PA v. Chavez,
  14-14-00318-CV, 2015 WL 2342564 (Tex.App.—Houston [14th Dist.]
  May 14, 2015, no pet. h. .......................................................................................15
Lezlea Ross v. St. Luke’s Episcopal Hosp.,
  13-0439, 2015 WL 2009744 (Tex. May 1, 2015) ........................................ passim
Lout v. Methodist Hosp.,
  14-04-00302-CV, 2015 WL 3878135 (Tex.App.—Houston [14th Dist.]
  June 23, 2015, no pet. h.)......................................................................................15
Low v. Henry,
  221 S.W.3d 609 (Tex. 2007) ................................................................................20
R.M. Dudley Constr. Co. v. Dawson,
  258 S.W.3d 694 (Tex.App.—Waco 2008, pet. denied) .......................................18
                                                                                                                  iv
                                INDEX OF AUTHORITIES (con’t.)

Remington Arms Co. v. Caldwell,
  850 S.W.2d 167 (Tex. 1993) ................................................................................19
Ross v. St. Luke’s Episcopal Hosp.,
 14-12-00885-CV, 2013 WL 1136613 (Tex.App.—Houston [14th Dist.]
 Mar. 19, 2013) ........................................................................................................8
Texas West Oaks Hosp., L.P. v. Williams,
  371 S.W.3d 171 (Tex. 2012) ......................................................................... 5, 7, 8
Valley Reg’l Med. Ctr. v. Camacho,
 2015 Tex. App. LEXIS 4967 (Tex. App. Corpus Christi May 14, 2015) ..... 15, 16
Williams v. Riverside Gen. Hosp., Inc.,
 01-13-00335-CV, 2014 WL 4259889 (Tex. App.—Houston [1st Dist.]
 Aug. 28, 2014, no pet.) ...........................................................................................9

Statutes
TEX. CIV. PRAC. & REM. CODE § 74.001..................................................................12
TEX. CIV. PRAC. & REM. CODE § 74.001(a)(12)(B)(ii) ..............................................6
TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2) ......................................................5, 6
Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) .......................................... vii, 5
Tex. Civ. Prac. & Rem. Code Ann. § 74.351 ..........................................................17
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) .............................................. viii, 17
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)......................................................17

Rules
TEX. CIV. PRAC. & REM. CODE § 74.351(a) .............................................................22
Tex. Civ. Prac. & Rem. Code § 74.351(b)...............................................................22
TEX. CIV. PRAC. & REM. CODE §§ 74.001................................................................21
TEX. R. CIV. P. 194.2(c) .................................................................................... 20, 21
Tex. R. Civ. P. 194.2(c). cmt. 2 ...............................................................................21
TEX. R. CIV. P. 215...................................................................................................18
TEX. R. CIV. P. 215.2................................................................................................18


                                                                                                                       v
                                INDEX OF AUTHORITIES (con’t.)


Tex. R. Civ. P. 215.2(b) ...........................................................................................18
TEX. R. CIV. P. 215.3 ................................................................................................18

Other Authorities
Black’s Law Dictionary 1246 (8th ed. 2004) ...........................................................12
MERIAM-WEBSTER.COM, http://meriam-webster.com/dictionary/profession ..........12
MERIAM-WEBSTER.COM, http://www.merriam-webster.com/dictionary/
 professional .................................................................................................... 12, 13
MERIAM-WEBSTER.COM, http://www.merriam-webster.com/dictionary/duty ........13




                                                                                                                      vi
             STATEMENT REGARDING ORAL ARGUMENT

      Oral argument may be appropriate in this case. After this appeal was

initiated, the Texas Supreme Court decided Lezlea Ross v. St. Luke’s Episcopal

Hosp., 13-0439, 2015 WL 2009744 (Tex. May 1, 2015) . Ross set forth a new

framework for analyzing whether allegations constitute a “health care liability

claim” arising under the “safety” prong of Section 74.001(a)(13) of the TEXAS

CIVIL PRACTICE & REMEDIES CODE. Because this case may be one of the first

opportunities for appellate courts to consider and apply the Texas Supreme Court’s

opinion in Ross, the Court may benefit from oral argument.




                                                                               vii
                                  ISSUES PRESENTED

      1. Whether Shah’s cause of action should be classified as a safety-based health
         care liability claim?

      2. Whether Shah waived any complaint regarding the substance of Sodexo’s
         disclosures by failing to pursue or obtain a ruling on any motion for
         sanctions?

      3. Whether the trial court abused its discretion in declining to find that
         Sodexo’s disclosure precluded Sodexo from invoking Section 74.351(a)1’s
         expert-report dismissal provision?




1
    TEX. CIV. PRAC. & REM. CODE § 74.351(a).
                                                                                  viii
                               STATEMENT OF FACTS

       Beginning in March of 2003, Appellee Sodexo Services of Texas, L.P.

(hereinafter “Sodexo”) entered into a contract with the Harris County Hospital

District (“Hospital District”) to provide for management, personnel and operation

of food and nutrition services for Hospital District facilities. C.R. at 177; see also

id. at 174–176. Among its obligations, Sodexo agreed to operate and manage the

Hospital District’s food services program and Food and Nutrition Services

Department at various Hospital District facilities. Id. at 182. One of the facilities

that Sodexo serviced was Ben Taub Hospital (“Ben Taub”). See id.

       One of the tasks Sodexo performed was managing and operating Nutrition

Services. See id. at 187 (“Sodexo shall manage and operate Nutrition Services for

Hospital District… .”). As part of its Nutrition Services role, Sodexo was tasked

with making meals available, recommending menus, and recommending portion

sizes. See id. at 187 (§E (1.1)). Sodexo was also responsible for properly labeling

prescribed nourishments and supplements for patient identification, and delivering

that food and drink to patient areas. See id. (§E (1.2.1).

       On the date of the incident, Shah was a cancer treatment patient at Ben

Taub. See Appellant Brief at 4.2 At the time of the incident, Shah was attempting to

obtain a cup of coffee from a vending machine. Id. at 7. As he was doing so, a

2
 Page Citations to Appellant’s Brief are in reference to the page number inserted at the bottom
center of each page.
                                                                                             1
Sodexo employee was in the process of providing Nutrition Services at Ben Taub.

Id. at 7; id. at 174. Specifically, the employee was transporting beverages to a

patient area using a cart. Id. at 174; see also id. at 187. Shah alleges that the

beverage cart struck him, causing him to suffer severe injuries. Id. at 7.

      Subsequently, Shah filed a negligence lawsuit against Sodexo. See id. at 4–

11. Sodexo filed its Original Answer on May 23, 2014. See id. at 18–20. Shah did

not file an expert report within 120 days after Sodexo filed its Original Answer.

See id. at 105–106, 163. Instead, Shah served an expert report on December 9,

2014. See id. at 81–90. Sodexo timely objected to Shah’s expert report, see id. at

104–157, and moved to dismissed Shah’s lawsuit. See id. at 158–281. The district

court granted Sodexo’s motion. See id. at 413.




                                                                                2
                      SUMMARY OF THE ARGUMENT

      Shah’s claim against Sodexo is a safety standards-based health care liability

claim. Sodexo and its staff were tasked with operating and managing the food

services program at Ben Taub and with providing nutritional services at the

hospital. In this capacity, Sodexo made meals available to patients, labeled

prescribed nourishment and supplements (including beverages) for patient

identification, and delivered those nourishments to patient areas. A Sodexo

employee was in the process of transporting beverages using a cart when the

incident occurred.

      The breaches of safety alleged against Sodexo are sufficiently related to the

provision healthcare, such that this case is a health care liability claim. Texas law

has never required a direct relationship between healthcare and breaches of safety.

The Texas Supreme Court rejected any such direct-relationship requirement, and

subsequent decisions found only that an indirect relationship between safety and

healthcare was necessary to classify a claim as a health care liability claim. The

Texas Supreme Court’s decision in Ross also did not impose a direct-relationship

requirement on potential safety-based health care liability claims. Instead, the

safety standard must only have a substantive relationship/nexus with the provision

of health care. Sodexo’s conduct and the alleged safety departures at issue have




                                                                                   3
such a substantive relationship. Thus, the trial court’s decision granting summary

judgment in Sodexo’s favor should be affirmed.

      Next, Shah asks the Court to excuse his failure to timely file an expert

report, arguing that Sodexo should be estopped from seeking dismissal. The reality

is that if Shah faulted Sodexo for its discovery responses, Shah was obligated to

pursue a motion for sanction. Shah failed to move for sanctions and failed to obtain

a ruling on any sanctions motion. Thus, the Court should find that Shah has waived

the argument on appeal.

      Moreover, even if the Court considered Shah’s equitable estoppel claim, the

argument is without merit. Shah must demonstrate that the trial court abused its

discretion by rejecting Shah’s equitable estoppel evidentiary challenge. However,

Shah fails to identify any legal authority to support his position that equitable

estoppel applies or that Sodexo should have been precluded from seeking dismissal

under TEX. CIV. PRAC. & REM. CODE § 74.351. Chapter 74’s expert report

requirement is not an affirmative defense; defendants are not obligated to plead or

disclose a belief that the statute applies in order to invoke its authority. The statute

would not even apply as a defense until after the deadline to provide a report had

already expired. The trial court’s decision to deny Shah’s equitable estoppel claim

was neither arbitrary nor unreasonable and should be affirmed.




                                                                                      4
                          ARGUMENT & AUTHORITIES

I.   Shah’s claims asserted against Sodexo are health care liability claims, as
     defined by Chapter 74 of the TEXAS CIVIL PRACTICES & REMEDIES CODE.

       A health care liability claim is defined 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.

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

       The Texas Supreme Court has held that whether particular claims are

 covered by Chapter 74 of the TEXAS CIVIL PRACTICES & REMEDIES CODE, also

 known as the Texas Medical Liability Act, is a matter of statutory construction

 which is a legal question reviewed de novo. See Texas West Oaks Hosp., L.P. v.

 Williams, 371 S.W.3d 171, 177 (Tex. 2012). The reviewing court’s aim is to

 determine and give effect to the legislature’s intent. See id.

     A. Shah is a claimant, Sodexo is a health care provider, and Shah’s claims
        address alleged departures from accepted standards of safety.

       In this case, Shah has not appealed the trial court’s conclusion that Shah

 would constitute a claimant as defined by TEX. CIV. PRAC. & REM. CODE §

 74.001(a)(2). See Appellant’s 1st Am. Brief. The parties agree that Shah would be

 a “claimant” if his cause of action is a health care liability claim. The Court should

 also agree. A “claimant” is a person seeking recovery of damages in a health care

                                                                                      5
liability claim. See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2). Shah is making a

claim for recovery of damages. See C.R. 4–11. Thus, if his case is a health care

liability claim, then Shah is a “claimant.”

      Similarly, Shah has not appealed the trial court’s conclusion that Sodexo is a

health care provider under TEX. CIV. PRAC. & REM. CODE § 74.001(a)(12)(B)(ii).

See Appellant’s 1st Am. Brief. The parties agree that Sodexo is a “health care

provider” as defined by that statute. The Court should also agree. A “health care

provider” is defined as “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.” See TEX. CIV. PRAC. & REM. CODE §

74.001(a)(12)(B)(ii) (emphasis added). At the time of the incident, Sodexo was

under contract with the Hospital District to provide services to Ben Taub. See, e.g.,

C.R. at 174–177, 182, 187. As such, Sodexo meets Chapter 74’s definition of a

health care provider.

      Additionally, Shah has not appealed the trial court’s conclusion that Shah’s

claims generally addressed alleged departures from standards of safety. See

Appellant’s 1st Am. Brief. Instead, Shah argues that the safety departures at issue

in his lawsuit are simply unrelated to healthcare, such that they do not fall within

the scope of Chapter 74. See id. Shah’s lawsuit faults Sodexo for not operating the

cart “with reasonable care … to promote the safety and welfare” of Shah. See C.R.


                                                                                   6
at 8. He then proceeds to allege various acts or omissions Sodexo allegedly

committed that were inconsistent with Sodexo’s duty to promote Shah’s safety and

welfare. See id. Finally, Shah alleges that these safety violations proximately

caused his injuries. See id. Consequently, the Court should find that Shah’s

allegations implicate alleged departures from safety standards by Sodexo and

Sodexo’s employees, and that these departures are the alleged proximate cause of

Shah’s injuries.

   B. The Texas Supreme Court rejected an interpretation of Chapter 74
      imposing a direct-relationship requirement on health care liability
      claims regarding breaches of safety standards.

      Chapter 74 defines a ‘health care liability claim’ (“HCLC”) 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.

See id. at § 74.001(13).

      In Texas West Oaks Hospital, L.P. v. Williams, the Texas Supreme Court

considered the above definition in the context of a claim that alleged breaches of

duty related to safety. See Tex. W. Oaks Hosp., L.P., v. Williams, 371 S.W.3d 171

(Tex. 2012). As the Williams court discussed, the word ‘safety’ is not defined by

Chapter 74, so courts apply it using its commonly understood meaning as “the

condition of being ‘untouched by danger; not exposed to danger; secure from

                                                                                7
danger, harm or loss.’” See 371 S.W.3d at 184. Furthermore, the Texas Supreme

Court concluded that the phrase “directly related to health care” appearing at the

end of the definition of a health care liability claim was added to modify only the

phrase “professional or administrative services”—not the term ‘safety.’ See id. at

184. Instead, the Texas West Oaks’ Court clearly stated “ that the safety component

of [health care liability claims] need not be directly related to the provision of

health care.” See id. at 186 (emphasis added).

   C. Decisions following Texas West Oaks Hospital imposed an indirect-
      relationship requirement for classifying safety-breach claims as health
      care liability claims regarding breaches of safety standards.

      Following the Texas Supreme Court’s decision in Texas West Oaks

Hospital, appellate courts diverged on the standard used to determine if a claim

alleging departures from safety standards classified as a health care liability claim.

The minority view, exemplified by Ross v. St. Luke’s Episcopal Hosp., 14-12-

00885-CV, 2013 WL 1136613, at *1 (Tex.App.—Houston [14th Dist.] Mar. 19,

2013), concluded that no relationship between healthcare and safety was required

under Chapter 74.

      The majority view rejected this approach. Instead, the majority concluded

that while a direct relationship was not required between safety standards and

healthcare, something more was required to transform a claim involving safety into

a health care liability claim. See, e.g., Williams v. Riverside Gen. Hosp., Inc., 01-


                                                                                    8
13-00335-CV, 2014 WL 4259889, at *1 (Tex. App.—Houston [1st Dist.] Aug. 28,

2014, no pet.) (some “indirect, reasonable relationship” required)3; Doctors Hosp.

at Renaissance, Ltd. v. Mejia, No. 13–12–00602–CV, 2013 WL 4859592, at *2

(Tex.App.-Corpus Christi Aug.1, 2013, pet. filed) (mem.op.) (a claim must be

indirectly related to health care); Good Shepherd Medical Center–Linden, Inc. v.

Twilley, 422 S.W.3d 782, 785 (Tex.App.-Texarkana 2013, pet. denied) (some

indirect link required). The cases comprising the majority view have never held,

however, that claims involving departures from standards of safety must be

directly related to healthcare in order to classify as health care liability claims.

    D. The Texas Supreme Court adopted a substantive nexus requirement
       between safety standards and the provision of health care.

       The Texas Supreme Court recently considered the merits of the majority and

minority approaches to classifying safety-standard health care liability claims. See

Ross v. St. Luke’s Episcopal Hosp., 13-0439, 2015 WL 2009744, at *1 (Tex. May

1, 2015). The court concluded that “there must be a substantive nexus between the

safety standards allegedly violated and the provision of health care.” Id. The nexus

must also be more than a “but for” relationship, such as the fact that the plaintiff

would not have been injured but for being in a hospital. See id. “The pivotal issue


3
  In discussing Williams, the First Court of Appeals has also characterized its approach as
requiring some reasonable relationship between the claim and the provision of health care. See,
e.g., Cage v. Methodist Hosp., 01-14-00341-CV, 2015 WL 4139322, at *4 (Tex. App.—Houston
[1st Dist.] July 9, 2015, no. pet. h.).
                                                                                             9
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.

      The court identified seven non-exclusive considerations that could be

analyzed to determine whether a claim is substantively related to the defendant’s

providing of medical or health care. See id. Those factors are:

      “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 patient might be during the
         time they were receiving care, so that the obligations of the
         provider to protect persons who require special, medical care was
         implicated;

      4. At the time of the injury was the claimant in the process of seeking
         or receiving health care;

      5. At the time of the injury was the claimant providing or assisting in
         providing health care;

      6. Is the alleged negligence based on safety standards arising from
         professional duties owed by the health care provider;

      7. If an instrumentality was involved in the defendant’s alleged
         negligence, was it a type used in providing health care; or

      8. 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?”




                                                                                   10
See id. In a concurring opinion, Justice Lehrmann, joined by Justice Devine,

emphasized the significance of the third and fifth factors when analyzing potential

safety standards-based health care liability claims. See id. (Lehrmann, J.

concurring).

   E. The Ross factors support classifying Shah’s lawsuit as a health care
      liability claim.

      An evaluation of the seven factors identified by the Ross court points in

favor of classifying Shah’s lawsuit as a health care liability claim.

      The first factor points in Sodexo’s favor. The allegedly negligent acts

occurred in the course of Sodexo performing tasks for the benefit of patients.

Specifically, Sodexo was in the process of transporting beverages to a patient area

as part of its role managing and operating food and nutrition services. See C.R. at

187. The purpose behind performing food and nutrition services is the protection of

patients from harm. Providing patients with food and beverages, including those

prescribed by physicians, is a part of the health care process. A patient deprived of

food and beverages undoubtedly suffers harm, as would a patient that does not get

his or her required food and beverages at the necessary time. Factor one supports

this case being considered a health care liability claim.

      The second and third factors also points in Sodexo’s favor. At the time of the

injury, Shah was a patient at Ben Taub; he acknowledges that he was receiving

treatment at the hospital when he was injured. See Appellant’s 1st Am. Brief at 4.
                                                                                  11
Similarly, Shah’s injuries occurred in a location at Ben Taub where patients might

be located during the time they were receiving care. Shah, a patient, was in a

hallway getting a cup of coffee during the course of his stay. See C.R. at 7. At that

time, a Sodexo employee was in the process of delivering a beverage cart to a

patient area. See id. at 174, 177, 182, 187. Given the presence of patients like Shah

in an area located on the way to a patient area for beverage delivery, Sodexo’s

obligation to protect patients was implicated. Factor two and factor three supports

this case being considered a health care liability claim.

      Factor four points in Shah’s favor. Shah was neither providing nor assisting

in providing health care at the time of his alleged injury; instead, he was located in

a hallway after getting coffee. See id. at 7.

      In regard to factor five, the term “professional duties” is undefined in Ross,

and does not appear in Chapter 74’s definitions. See 13-0439, 2015 WL 2009744,

at *3–6 (Tex. May 1, 2015); TEX. CIV. PRAC. & REM. CODE § 74.001. As an

adjective, “professional” is defined as being “of, relating to, or characteristic of a

profession.”      See      Professional         Definition,   MERIAM-WEBSTER.COM,

http://www.merriam-webster.com/dictionary/ professional (last visited May 28,

2015). A “profession” is defined as a “type of job that requires special education,

training, or skill.” Black’s Law Dictionary 1246 (8th ed. 2004). See Profession

Definition,     MERIAM-WEBSTER.COM,              http://meriam-webster.com/dictionary/


                                                                                   12
profession (last visited May 28, 2015). Finally, in this context “duty” would

reference something done as part of a job; it can be defined as “obligatory tasks,

conduct, service, or functions that arise from one’s position.” See Duty Definition,

MERIAM-WEBSTER.COM, http://www.merriam-webster.com/dictionary/duty (last

visited May 28, 2015). See, e.g., C.R. at 174, 177, 182, 187. A duty to deliver food

and beverages was owed by Sodexo, a health care provider. And certainly that duty

is related to and arises out of a profession: the provision of health care to patients.

Providing food and drink to patient areas, including food and drink prescribed by

doctors, is a part of that process. Factor five should lean in Sodexo’s favor.

      Factor six also points in Sodexo’s favor. An instrumentality was involved in

the alleged negligence, namely, a cart. See C.R. at 7. The cart contained beverages

being delivered to a patient area as part of Sodexo’s nutrition services role. See id.

at 174, 177, 182, 187. The cart was an instrumentality directly involved in

Sodexo’s health care role. The provision of patient food and beverages is a part of

the patient’s health care process. Consequently, the cart used to transport that food

and those beverages to patient areas for distribution was used in providing health

care. Factor six supports this case being considered a health care liability claim.

      Factor seven points in Shah’s favor. Sodexo was not taking or failing to take

any action necessary to comply with safety-related requirements set by any

governmental or accrediting agency.


                                                                                      13
      Based on the facts of this case, five factors lean in Sodexo’s favor. Two

factors lean in Shah’s favor. As such, the Court should conclude that Shah’s cause

of action is a health care liability claim.

   F. Post Ross cases support the conclusion that Shah’s claim is a health care
      liability claim.

      Shah also argues that cases decided following the Texas Supreme Court’s

Ross decision demonstrate that this case is not a health care liability claim. See

Appellee Brief at 33–35. Sodexo respectfully disagrees.

      Shah identified four cases that address the new Ross standards, See id. at 33

n.49–n.52; Sodexo is also aware of two additional claims that were recently

decided based upon Ross. See Cage v. Methodist Hosp., 01-14-00341-CV, 2015

WL 4139322 (Tex. App.—Houston [1st Dist.] July 9, 2015, no. pet. h.); Chamie v.

Mem’l Hermann Health Sys., 14-14-00213-CV, 2015 WL 4141106 (Tex. App.—

Houston [14th Dist.] July 9, 2015, no. pet. h.). These claims are easily

distinguishable from the claim pending before the Court.

      First, two of the cases referenced by Shah, as well as the two additional

claims found by Sodexo, deal with garden variety slip-and-fall cases, almost

identical to the situation resolved by the Texas Supreme Court in Ross. See Cage,

01-14-00341-CV, 2015 WL 4139322, at *6 (slip and fall by a hospital visitor on a

wet floor in the lobby); Chamie, 14-14-00213-CV, 2015 WL 4141106, at *4 (slip

and fall by nursing home visit on wet floor); Lout v. Methodist Hosp., 14-04-
                                                                                14
00302-CV, 2015 WL 3878135, at *3 (Tex.App.—Houston [14th Dist.] June 23,

2015, no pet. h.) (slip and fall by hospital visit on wet floor); Lance Thai Tran,

DDS, PA v. Chavez, 14-14-00318-CV, 2015 WL 2342564, at *1, *3 (Tex.App.—

Houston [14th Dist.] May 14, 2015, no pet. h.) (slip and fall by dentist employee

on wet floor in break room). These very clearly no longer constitute health care

liability claims. None of the cases even involved hospital/facility patients. See id.

      In Brazos Presbyterian, a Sodexo employee performing custodian duties in a

nursing home was injured when an elevator dropped suddenly. Brazos

Presbyterian Homes, Inc. v. Rodriguez, 14-14-00479-CV, 2015 WL 3424695, at

*1 (Tex. App.—Houston [14th Dist.] May 28, 2015, no. pet. h.). The employee

was not a patient, the elevator was not in a patient area, and the facility did not

claim that the elevator had any purpose related to protecting patients or to patients

in general. See id. at *4. Instead, the nursing home argued only that the case was a

health care liability claim because the facility had a duty by law to provide a safe

environment generally. See id. at 3–4.

      Finally, in Camacho, a visitor to a medical center was injured when she was

struck by automatic sliding doors. Valley Reg’l Med. Ctr. v. Camacho, 2015 Tex.

App. LEXIS 4967, at *3 (Tex. App. Corpus Christi May 14, 2015). Again, the

victim was not a patient. See id. The court noted that while the injury would relate




                                                                                        15
  to something with the purpose of protecting patients, none of the other Ross factors

  were met in the context of Camacho’s incident. See id. at *10–*11.

         Here, however, circumstances are different. As discussed in subpart 4,

  immediately preceding this section, Shah was clearly a patient at the hospital at the

  time of his incident. See, e.g., Appellant’s 1st Am. Brief at 4; C.R. at 4. Shah was

  also in a location at the hospital where patients might be located during the time

  they were receiving care. See C.R. at 7; see also Appellant’s 1s Am. Brief at 23–

  24.4 Similarly, Sodexo was engaged in activity with purpose of protecting patients

  from harm, through its transportation of beverages to a patient area. See C.R. at

  187.5 Sodexo also believes that factors five and six, discussed above in subpart 4,

  support Sodexo, and distinguish this matter from a garden variety slip-and-fall case

  or an incident involving an elevator injury to a custodian in a non-patient area.

II.   The trial court properly dismissed Shah’s claim for failure to serve a
      Chapter 74 expert report within the allotted time period.

         Shah’s claims against Sodexo were properly dismissed when Shah failed to

  timely serve an expert report on Sodexo. Chapter 74 is unequivocal with regard to

  4
    At one instance, Shah’s brief claims that there is no difference between operation of an elevator
  in a nursing home and using a beverage cart in a hospital lobby. See Appellant’s 1st Am. Brief at
  34–35. Shah’s example should not be construed as a claim that his incident actually occurred in
  the Ben Taub lobby, as Shah has never asserted such a claim nor identified any record evidence
  supporting such a contention. He in fact concedes that he was “in a ‘place where patients might
  be during the time they were receiving care’ … .” See Appellant’s 1st Am. Brief at 23–24.
  5
   By way of example, the Camacho court found that having automatic doors was arguably for the
  purpose of protecting patients because it could protect mothers and newborns from criminal
  misconduct. See 2015 Tex. App. LEXIS 4967, at *10.

                                                                                                  16
its expert report requirement. See generally TEX. CIV. PRAC. & REM. CODE §

74.351. A claimant is required to serve an expert report on all health care providers

against whom a health care liability claim is asserted not later than the 120th day

after the answer is filed. See TEX. CIV. PRAC. & REM. CODE § 74.351(a). Should the

claimant fail to uphold this obligation the trial court “shall” enter an order that

dismisses the claims with prejudice. See TEX. CIV. PRAC. & REM. CODE §

74.351(b). The statute’s language makes clear this is not a discretionary decision.

   A. Shah failed to serve an expert report on Sodexo within 120 days of
      Sodexo’s Original Answer.

      Here, Sodexo filed its Original Answer on May 23, 2014. See C.R. at 18–20.

Under Chapter 74’s requirements, Shah’s deadline to serve Sodexo with an expert

report was September 20, 2014. See TEX. CIV. PRAC. & REM. CODE § 74.351(a).

Shah did not serve Sodexo with an expert report by that date. See C.R. 127–136.

Instead, Shah served a report on December 9, 2014, See id. Sodexo objected to the

report on December 19, 2014, and moved to dismiss the case that same day. See

C.R. 104–281. Consequently, the record conclusively establishes that Shah failed

to comply with Chapter 74’s expert report requirement, and that Sodexo timely and

properly invoked Chapter 74 to seek dismissal.

   B. Shah waived any objection to Sodexo’s disclosures.

      As part of his complaint, Shah appears to argue that Sodexo should have

been barred from introducing evidence on Chapter 74 or the expert report
                                                                                      17
requirement. See Appellant Brief at 44–45. In essence, Shah is arguing that Sodexo

should have been sanctioned for not disclosing Chapter 74’s application, and that

the sanction penalty should have been Sodexo’s preclusion from seeking dismissal.

Such penalties would arise under TEX. R. CIV. P. 215. However, in addition to

Sodexo not having engaged in sanctionable conduct, Shah has entirely waived this

argument.

       If Shah felt that Sodexo’s discovery disclosures were improper, Rule 215

would provide him with his desired remedy. See, e.g., TEX. R. CIV. P. 215.3; TEX.

R. CIV. P. 215.2. However, to seek such a remedy, Shah was obligated to file a

motion for sanctions and explain why the sanctions would be “just.” See TEX. R.

CIV. P. 215.2(b). Moreover, Shah would have been obligated to provide Sodexo

with notice of any sanction motion. See id. And Shah would have been required to

hold a hearing on any sanction motion. See id.; see also R.M. Dudley Constr. Co. v.

Dawson, 258 S.W.3d 694, 709–10 (Tex.App.—Waco 2008, pet. denied). Shah did

none of these things6, nor does he argue that he did any of those things.

       For a party to be entitled to sanctions based on pretrial conduct, such as

alleged discovery violations, that party must secure a pretrial hearing and ruling on

that conduct, or it waives any claim for sanctions based on that conduct. Remington


6
  Shah did file a motion to compel regarding interrogatories and requests for production, see C.R.
at 29–69, however, the motion did not address disclosures, was not ever set for a hearing, and
was never ruled upon.
                                                                                               18
Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993); Finlay v. Olive, 77

S.W.3d 520, 526 (Tex.App.—Houston [1st Dist.] 2002, no pet.). Shah was aware

that Sodexo was contending that this case was a health care liability claim no later

than October 27, 2014. See C.R. 81–82; see also id. at 40–63. Sodexo did not file

its motion to dismiss until December 19, 2014. See id. at 104, 158. The trial court

did not dismiss the case until January 16, 2015. See id. at 413. Shah had more than

enough time to move for sanctions if he felt such were warranted. Because Shah

failed to move for sanctions and failed to obtain any order on sanctions related to

Sodexo’s disclosures, Shah has waived this issue on appeal.

   C. Sodexo is not obligated to disclose that it believes a case is a health care
      liability claim in order to seek dismissal under Section 74.351(a), and
      the Court did not abuse its discretion in granting Sodexo’s motion to
      dismiss.

      Because Shah knows he has waived any issue of sanctions, he attempts to

reclassify his request by titling it as one for “equitable estoppel.” See Appellant’s

Brief at 43–48. Noticeably, Shah fails to identify any authority that such an

equitable estoppel principle exists in this context. See id. Shah does not identify a

single case that applied equitable estoppel to Chapter 74’s expert report

requirement or to general disclosures. Nor does Shah identify any standard of

review that would apply to an equitable estoppel argument in this context. The

reality is that Shah is attempting to raise a motion for sanctions for the first time on

appeal, and the Court should reject Shah’s endeavor.
                                                                                     19
      However, assuming arguendo that the Court considers Shah’s request,

Shah’s claim should be rejected. As with the denial of sanctions, Sodexo contends

that any denial of an equitable estoppel claim should be reviewed for abuse of

discretion. See Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007) (standard of

review for grant or denial of sanctions). In matters committed to a district court’s

discretion, the test is whether the ruling was unreasonable or arbitrary or whether

the court acted without reference to any guiding rules or principles. Herrera v.

Seton Nw. Hosp., 212 S.W.3d 452, 462 (Tex.App.-Austin 2006, no pet.). In

deciding whether a denial of sanctions constitutes an abuse of discretion, courts

examine the entire record, including the findings of fact and conclusions of law,

review the conflicting evidence in the light most favorable to the trial court’s ruling

and drawing all reasonable inferences in favor of the court’s judgment. Lake Travis

Indep. Sch. Dist. v. Lovelace, 243 S.W.3d 244, 249-50 (Tex. App.—Austin 2007,

no pet.). The same approach should apply here.

      Shah argues that Sodexo should be equitably estopped from invoking

Chapter 74 to dismiss Shah’s claims. See Appellant’s Brief at 43–48. Specifically,

Shah faults Sodexo for its disclosure response regarding TEX. R. CIV. P. 194.2(c).

See id. Shah incorrectly believes that this section required Sodexo to disclose that

the case was a health care liability claim in order to invoke Chapter 74’s expert

report dismissal standard.


                                                                                    20
      Rule 194.2(c) requires a responding party to state “the legal theories and, in

general, the factual bases of the responding party’s claims or defenses.” TEX. R.

CIV. P. 194.2(c). The rule’s comments provide an example scenario:

      Rule 194.2(c) and (d) permit a party further inquiry into another’s
      legal theories and factual claims than is often provided in notice
      pleadings. So-called “contention interrogatories” are used for the
      same purpose. Such interrogatories are not properly used to require a
      party to marshal evidence or brief legal issues. Paragraphs (c) and (d)
      are intended to require disclosure of a party’s basic assertions,
      whether in prosecution of claims or defense. Thus, for example, a
      plaintiff would be required to disclose that he or she claimed damages
      suffered in a car wreck caused by defendant’s negligence in speeding
      … . In the same example, defendant would be required to disclose his
      or her denial of the speeding allegation … .

See id. cmt. 2.

      Here, Shah claimed that Sodexo was negligent because one of Sodexo’s

employees struck Shah with a cart while transporting beverages. See C.R. at 7–8.

In response to Shah’s disclosure requests, Sodexo noted that it generally denied

each and every allegation Shah made, denied committing any wrongdoing, and

faulted Shah for comparative negligence. See id. at 316. This disclosure was

perfectly appropriate.

      Chapter 74 and its expert report requirement are not affirmative defenses

that a defendant is required to plead in order to invoke. See TEX. CIV. PRAC. &

REM. CODE §§ 74.001 et seq. Similarly, none of the language in Chapter 74

imposes any pleading or disclosure obligation onto defendants. See id. And Shah


                                                                                 21
does not argue here that Sodexo was required to plead Chapter 74 as an affirmative

defense or that the statute itself mandated disclosure. See Appellant’s Brief. That is

because Chapter 74 is not a legal theory of Sodexo’s defense; it is a procedural

requirement imposed on a party bringing a health care liability claim in order to

ensure that the claim has sufficient grounds to remain before the trial court. Stated

otherwise, the fact that the case was a health care liability claim was not a defense

to Shah’s action; the defenses were that Sodexo denied committing any negligent

acts or omissions and faulted Shah for the incident.

      Furthermore, Shah’s theory makes no practical sense given the basis for

dismissal. The provision Sodexo asserted for dismissal did not even apply until

September 20, 2014. See TEX. CIV. PRAC. & REM. CODE § 74.351(a). Sodexo

would have no reason (or good faith basis) to assert that Shah’s claims were barred

due to his failure to timely file an expert report until after Shah’s deadline to file an

expert report came and went. The ability to seek dismissal would only apply once

the expert report deadline passed, and any disclosure after that date would have

done Shah no good given Chapter 74’s mandatory dismissal standard. See TEX.

CIV. PRAC. & REM. CODE § 74.351(a)–(b).

      This Court’s review considers all these circumstances and views them in the

light most favorable to the trial court’s ruling and drawing all reasonable

inferences in favor of the court’s judgment. And doing that, the Court should find


                                                                                      22
that the trial court’s ruling was neither unreasonable nor arbitrary. The trial court

clearly acted with reference to guiding rules and principles. Chapter 74’s

application and the expert report requirement are not affirmative defenses and they

are not legal or factual bases of a party’s defense; they are simply procedural

requirements imposed on those bringing health care liability claims. The trial court

did not abuse its discretion in granting Sodexo’s motion to dismiss and, by

definition, denying any request for equitable estoppel.

                          CONCLUSION & PRAYER

      As the foregoing demonstrates, Sodexo is a health care provider as defined

by Chapter 74. Shah is a claimant as defined by Chapter 74. Also, Shah has alleged

that Sodexo has departed from accepted standards of safety, which proximately

caused his injuries.

      The standard for deciding whether a claim for breach of safety standards is a

health care liability claim is not, and has never been, whether a direct relationship

exists between healthcare and safety. Such a requirement has been rejected and,

instead, Texas law requires a substantive nexus exists between the safety standards

allegedly violated and the provision of health care. The substantive nexus

requirement recognizes that there are viable health care liability claims that do not

involve a direct relationship between safety standards and health care. This is one

of those cases.


                                                                                  23
      The standards at issue implicate Sodexo’s duties as a statutory health care

provider, most especially Sodexo’s duties to provide for patient safety. The

negligence occurred in the course of performing tasks with the purpose of

protecting patients from harm. Shah’s injuries occurred in a place where patients

might be during the time they were receiving care. Shah was in the process of

seeking and receiving health care at the time of his injury. The alleged negligence

implicates safety standards arising from duties owed by Sodexo that relate to the

medical profession. Finally, the instrumentality involved in the incident was used

in the provision of aspects of patients’ health care. The Court should conclude that

Shah’s cause of action is a health care liability claim.

      Furthermore, the record demonstrates that Shah failed to serve Sodexo with

a Chapter 74 expert report within 120 days from the date of Sodexo’s answer.

Consequently, the trial court properly dismissed Shah’s claims.

      Finally, any claim raised by Shah that Sodexo was precluded from seeking

dismissal under Chapter 74 was waived in this appeal. Shah failed to comply with

the requirements for seeking sanctions for alleged discovery abuse. The penalty

Shah seeks to impose on Sodexo is clearly a sanction, and Shah openly concedes

that the sanction should apply due to alleged discovery abuse. But even if the Court

chooses to consider the equitable estoppel claim, that argument should be rejected.

Shah has failed to identify any basis in law to preclude Sodexo from seeking


                                                                                 24
dismissal under Chapter 74. Chapter 74 and the expert report requirement are

simply procedural requirements imposed on those bringing health care liability

claims. Defendants are not obligated to disclose that the cause of action is a health

care liability claim in order to obligate plaintiffs to comply with the statute. The

trial court did not abuse its discretion in rejecting Shah’s equitable estoppel claim.

      For all these reasons, Appellee, Sodexo Services of Texas, L.P., respectfully

requests that this Court affirm the ruling of the trial court in granting Sodexo’s

Motion to Dismiss Shah’s claims and grant all such other and further relief to

which Sodexo is justly entitled.




                                                                                     25
Respectfully submitted,

BROWN SIMS


By:_________________________
  Nelson Skyler
  Texas Bar No. 00784982
  nskyler@brownsims.com
  Neal A. Hoffman
  Texas Bar No. 24069936
  nhoffman@brownsims.com
  1177 West Loop South, Tenth Floor
  Houston, Texas 77027
  Telephone:     (713) 629-1580
  Facsimile:     (713) 629-5027

ATTORNEYS FOR APPELLEE
SODEXO SERVICES OF TEXAS, L.P.




                                      26
                      CERTIFICATE OF COMPLIANCE

      I certify this brief complies with the typeface and word-count requirements
set forth in the Texas Rules of Appellate Procedure. This brief has been prepared in
a proportionally spaced typeface using Microsoft Word, in 14-point Times New
Roman font for the text and 12-point Times New Roman font for any footnotes.
This brief contains 6,133 words, as determined by the word count feature of the
word processing program used to prepare this document, excluding those portions
of the brief exempted by Texas R. App. P. 9.4(i)(1).


                                             ___________________
                                             Nelson Skyler

                         CERTIFICATE OF SERVICE

      This will certify that a true and correct copy of the Brief of Appellee has
been electronically served on Appellant, Madhusudan Shah, through the following
counsel of record on July 28, 2015:

      Kenneth R. Baird
      THE BAIRD LAW FIRM
      2323 S. Voss Rd.
      Suite 325
      Houston, Texas 77057



                                             ___________________
                                             Nelson Skyler




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