Reversed and Remanded and Memorandum Opinion filed May 7, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00928-CV


CHCA BAYSHORE, L.P. D/B/A EAST HOUSTON REGIONAL MEDICAL
                     CENTER, Appellant

                                        V.

                       ROSALVA SALAZAR, Appellee


                   On Appeal from the 334th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2010-03516


                 MEMORANDUM OPINION

      In three issues, CHCA Bayshore, L.P. d/b/a East Houston Regional Medical
Center (“CHCA”) contends the trial court erred by denying CHCA’s motion to
dismiss based on the Texas Medical Liability Act (“TMLA”). See generally Tex.
Civ. Prac. & Rem. Code Ann. §§ 74.001 et seq. (West 2011 & Supp. 2012). We
reverse and remand for further proceedings consistent with our opinion.
                                I. BACKGROUND

      In January 2009, appellee Rosalva Salazar was an employee of CHCA when
she allegedly sustained personal injuries within the course and scope of her
employment “while attempting to maneuver a patient.” Because CHCA did not
subscribe to worker’s compensation insurance, Salazar filed suit against CHCA in
January 2010, alleging,

      [CHCA] was guilty of negligence [1] in failing to provide the proper
      equipment or training for the job required of [Salazar], [2] failing to
      provide adequate assistance or supervision to [Salazar] in performing
      the tasks she was assigned to perform, and [3] in failing to provide her
      a safe place to work.
      For over two years, the parties conducted discovery, and the case was set for
trial several times, including on July 26, 2012. On June 29, 2012, the Texas
Supreme Court issued Texas West Oaks Hospital, LP v. Williams, holding a non-
patient hospital employee suing his employer was required to comply with the
expert-report requirements governed by section 74.351 of the TMLA. 371 S.W.3d
171 (Tex. 2012); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West
2011). Relying on Williams, on July 17, 2012, CHCA filed a motion to dismiss
Salazar’s suit, contending she failed to serve a section 74.351 report. The trial
court denied CHCA’s motion and orally granted Salazar leave to serve a report.
CHCA now brings this interlocutory appeal.

                          II. APPELLATE JURISDICTION

      As an initial matter, we address Salazar’s contention this court lacks
jurisdiction over CHCA’s interlocutory appeal because CHCA is not appealing an
order denying a motion to dismiss under section 74.351 but an order granting
Salazar an extension to serve an expert report. During the hearing on CHCA’s
motion to dismiss, the following exchange occurred:

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      [CHCA Counsel]: . . . I take it you are denying my motion, then?
      [Trial Court]: Well, yeah, I am not going to punish his client because
      the law changed. I am going to give him a chance to comply with the
      new law.

      ...
      He’s now obligated to file a report. I want him to file a report. And if
      he can’t meet the standard, then the case is gone; but two months ago,
      he didn’t have to file a report. So, maybe or maybe he did, maybe he
      didn’t. So, I am going to let him file a report.

      Under the interlocutory-appeals statute, a person may appeal an
interlocutory order that “denies all or part of the relief sought by a motion under
Section 74.351(b), except that an appeal may not be taken from an order granting
an extension under Section 74.351.” See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(9) (West Supp. 2012). It is undisputed Salazar did not serve CHCA with
an expert report. Additionally, the trial court’s grant of an extension to serve a
report was not authorized under the TMLA because “in the absence of a timely
report, the trial court cannot properly grant an extension under section 74.351.”
Badiga v. Lopez, 274 S.W.3d 681, 684–85 (Tex. 2009).1 Accordingly, it is clear
CHCA is appealing the trial court’s denial of the motion to dismiss, as authorized
under the interlocutory-appeals statute. See id. at 685 (holding appellate court
should have considered merits of interlocutory appeal based on section
51.014(a)(9) because, “[w]hether the trial court granted an extension or not, the
issue here is whether a case must be dismissed when no expert report is timely
served.”).

      Furthermore, we reject Salazar’s argument CHCA should not be allowed to
file an interlocutory appeal under section 51.014(a)(9) because CHCA’s right to


      1
          We consider below Salazar’s argument Williams applies only prospectively.

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receive an expert report under section 74.351 did not “vest until over [two-and-a-
half] years after the original petition was filed.” There is no deadline under section
74.351 by which a defendant must file a motion to dismiss based on the plaintiff’s
failure to serve an expert report. See Heriberto Sedeno, P.A. v. Mijares, 333
S.W.3d 815, 823–24 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (determining
trial court properly considered defendant’s motion to dismiss for failure to serve
74.351 report, even though motion was filed two-and-a-half years after defendant
was served with original petition, because TMLA provides no deadline for filing
motion to dismiss); Obstetrical & Gynecological Assocs., P.A. v. McCoy, 283
S.W.3d 96, 103 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (determining
defendant did not waive right to file motion to dismiss for failure to serve section
74.351 report because no deadline for such motion).               Therefore, we have
jurisdiction to consider this interlocutory appeal. See Kansas City S. Ry. Co. v.
Oney, 380 S.W.3d 795, 798 (Tex. App.—Houston [14th Dist.] 2012, no pet.)
(determining our court had jurisdiction under interlocutory-appeals statute despite
appellee’s attempt to alter the basis of trial court’s interlocutory ruling).

                      III. HEALTH CARE LIABILITY CLAIMS
                    UNDER THE TEXAS MEDICAL LIABILITY ACT
      In three issues, CHCA contends the trial court erred by denying CHCA’s
motion to dismiss based on Salazar’s failure to serve a section 74.351 report.

A. Standard of Review and Relevant Law

      We must determine whether Salazar’s claims fit within the statutory
definition of “health care liability claim” (“HCLC”), a question of statutory
construction we review de novo. Loaisiga v. Cerda, 379 S.W.3d 248, 254–55
(Tex. 2012); Williams, 371 S.W.3d at 177. In making that determination, we
consider the entire court record, including the pleadings, motions and responses,

                                            4
and relevant evidence properly admitted. Loaisiga, 379 S.W.3d at 258.2 We must
focus on the essence of the claims and consider the alleged wrongful conduct and
the duties allegedly breached, rather than the injuries allegedly suffered.
Diversicare Gen. Ptr., Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005). An HCLC
may not be recast as another cause of action to avoid the requirements of chapter
74. See id.

       When it enacted the TMLA in 2003, the Legislature defined 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.

Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) (West Supp. 2012) (emphasis
added). Before 2003, the predecessor act to the TMLA used the more narrow term
“patient,” instead of “claimant,” when defining HCLC. Williams, 371 S.W.3d at
176–79, 188–89.         An HCLC as defined in the TMLA contains three basic
elements: (1) a physician or health care provider must be a defendant; (2) the claim
or claims at issue must concern treatment, lack of treatment, or a departure from
accepted standards of medical care, or health care, or safety or professional or
administrative services directly related to health care; and (3) the defendant’s act or

       2
          Relying on the Loaisiga court’s explanation that courts consider the entire record when
determining if a claim is an HCLC, Salazar argues we should summarily dispose of this appeal
because CHCA failed to present a full record. Salazar complains, “[CHCA] did not request the
entire record, including a number of deposition certificates, [Salazar’s] expert designations, all of
which would illustrate the manner in which this case has proceeded.” Nevertheless, after filing
her brief, Salazar requested the trial court clerk to supplement the record with these and other
discovery-related filings, and we have received a supplemental clerk’s record. Hence, without
deciding whether it was necessary to include these items in the record, we reject Salazar’s
argument.


                                                 5
omission complained of must proximately cause injury to the claimant. Id. at 179–
80.

      Under section 74.351, a claimant asserting a HCLC must serve an expert
report on the defendant within a specified deadline, subject to modification by
written agreement of the parties, or extension by the trial court if a timely but
deficient report is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (c). Until
the claimant serves his report, discovery is limited. Id. § 74.351(s). If the claimant
fails to serve an expert report, the trial court must, on the defendant’s motion,
dismiss the claimant’s claims with prejudice and award the defendant reasonable
attorney’s fees and costs. Id. § 74.351(b).

B. Texas West Oaks Hospital LP v. Williams

      In Williams, the plaintiff was a psychiatric caregiver at a mental-health
hospital which did not subscribe to worker’s compensation insurance. 371 S.W.3d
at 174–75. The plaintiff brought a patient, who was under elevated supervised
care, to an enclosed outdoor area, where he assaulted the plaintiff. Id. at 175. The
plaintiff filed suit against the hospital, asserting the following negligence claims:

      (a) Failing to properly train [the plaintiff] to work at [the hospital’s]
      premises, including warning him of the inherent dangers of working
      with patients with the conditions and tendencies that [the assaulting
      patient] possessed; (b) Failing to adequately supervise [the hospital’s]
      employees, including [the plaintiff], while working with patients with
      conditions and tendencies that [the assaulting patient] possessed; (c)
      Failing to provide adequate protocol to avoid and/or decrease the
      severity of altercations between its employees, such as [the plaintiff],
      and patients; (d) Failing to provide its employees, including [the
      plaintiff], with adequate emergency notification devices to alert other
      employees of altercations in which assistance is needed; (e) Failing to
      warn [the plaintiff] of the dangers that [the hospital] knew or should
      have known were associated with working with patients such as [the


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       assaulting patient]; and (f) Failing to provide a safe workplace for its
       employees, including [the plaintiff].

Id. The hospital filed a motion to dismiss for the plaintiff’s failure to serve a
section 74.351 report. Id. The plaintiff argued his claims were not HCLCs but
ordinary negligence claims. Id. at 175–76. The trial court denied the hospital’s
motion, and our court affirmed. Id. at 176.

       The supreme court reversed and rendered judgment dismissing the plaintiff’s
claims for failure to serve a section 74.351 report.                   Id. at 193.      The court
determined that, by modifying the HCLC definition, the Legislature intended to
expand “the breadth of HCLCs beyond the patient population.” Id. at 178. Thus,
the plaintiff’s status as a hospital employee, instead of a patient, was not
determinative of whether his claims were HCLCs. Id. at 177–79. The court then
considered whether the plaintiff alleged departures from accepted standards of
“safety” as that term is used in the definition of HCLC located in section
74.001(a)(13). Id. at 183–86.

       The court determined that, under section 74.001(a)(13), an allegation the
defendant departed from accepted standards of “safety”—defined in the common
law as “untouched by danger; not exposed to danger; secure from danger, harm, or
loss”—need not be “directly related to health care” to constitute an HCLC. Id. at
184–86 (quoting section 74.001(a)(13); Diversicare, 185 S.W.3d at 855).
According to the court, “[The plaintiff’s] complaints . . . concerning his protection
from danger at the hands of a mental patient . . . implicate safety.” Id. at 185.
Hence, the plaintiff alleged HCLCs under the “safety” prong and was required to
comply with the expert-report requirements of section 74.351. Id. at 193.3


       3
         The court also determined the plaintiff’s claims were HCLCs under the “health care” prong of
74.001(a)(13). We do not consider whether Salazar’s claims fit within the “health care” prong.

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C. Application of Williams to Salazar’s Claims

      As noted above, Salazar made the following negligence allegations against
CHCA:

      On or about January 14, 2009, while in the course and scope of her
      employment with [CHCA], [Salazar] sustained serious and permanent
      injuries while attempting to maneuver a patient at [CHCA’s] facility .
      . . . [Salazar’s] work was supervised by an agent, servant, or
      employee of [CHCA].

      ...

      [The Hospital] was guilty of negligence [1] in failing to provide the
      proper equipment or training for the job required of [Salazar], [2]
      failing to provide adequate assistance or supervision to [Salazar] in
      performing the tasks she was assigned to perform, and [3] in failing to
      provide her a safe place to work.
Salazar argues her claims are distinguishable from the plaintiff’s claims in
Williams because Salazar’s “claims relate to her employer’s duty to its employees
to provide safe working conditions and a safe place to work[, which is]
distinguishable and not related to any of the health care-related duties that her
employer [owed to] patients at the facility.” Salazar also contends her claims are
distinguishable because they

      principally arise from a malfunctioning automatic door, which was a
      hazard to her working conditions, though not to patients. This is quite
      different from an injury created by the breach of health care owed to a
      potentially violent or volatile psychiatric patient who poses a risk to
      injuring himself or others.

Finally, Salazar notes that, shortly after issuing Williams, the supreme court
explained in Loaisiga that a claim is not a HCLC if “the conduct of which a
plaintiff complains is wholly and conclusively inconsistent with, and thus
separable from, the rendition of ‘medical care, or health care, or safety or

                                        8
professional or administrative services directly related to health care’ even though
the conduct occurred in a health care context.” 379 S.W.3d at 257.

        We disagree the differences between Salazar’s claims and those asserted in
Williams render that case inapplicable.4 In the “Statement of Facts” section of her
brief, Salazar asserts her claims relate to CHCA’s “failure to provide a safe place
to work, particularly lack of back up assistance and the poor condition of the
automatic door that posed a risk to employees responsible for keeping it open for
sufficient time to usher patients through.” Whether the hospital failed to provide
proper training, equipment, and supervision for hospital personnel responsible for
moving patients so as to avoid or limit injury to the personnel clearly implicates
safety as that term was interpreted by the Williams court.                           Hence, Salazar
complains of CHCA’s alleged departure of accepted standards of safety owed to
hospital personnel who provide mobility assistance to patients. We hold Salazar’s
claims are HCLCs under the “safety” prong. See Ross v. St. Luke’s Episcopal
Hosp., No. 14-12-00885-CV, 2013 WL 1136613, at *1–2 (Tex. App.—Houston
[14th Dist.] Mar. 19, 2013, no pet. h.) (mem. op.) (relying on Williams court’s
interpretation of “safety” to affirm trial court’s dismissal of suit for failure to serve
section 74.351 report).

D. Whether Williams Applies Retroactively

        Having determined Salazar’s claims are HCLCs under the Williams court’s
interpretation of the TMLA, we next consider Salazar’s contention the trial court
properly afforded her leave to serve an expert report because Williams applies
prospectively but not retroactively. Court decisions generally apply retroactively
because they do not create new law but simply recognize what existing law is. See

        4
        The primary difference is the safety rules implicated in Williams involved protection of hospital
employees from dangerous patients, whereas the safety rules Salazar challenges do not.

                                                   9
Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 4 (Tex. 1999). However,
exceptions to this rule are determined by three factors:

        (1) whether the decision establishes a new principle of law by either
        overruling clear past precedent on which litigants may have relied or
        by deciding an issue of first impression whose resolution was not
        clearly foreshadowed; (2) whether prospective or retroactive
        application of the particular rule will further or retard its operation
        through an examination of the history, purpose, and effect of the rule;
        and (3) whether retroactive application of the rule could produce
        substantial inequitable results.

Id. at 4–5.

        We reject Salazar’s contention because the Williams court itself applied its
interpretation of the TMLA retroactively by holding the plaintiff’s claims were
HCLCs which must be dismissed because of his failure to serve a section 74.351
report. Williams, 371 S.W.3d at 180–86, 193. Moreover, the Williams court did
not limit application of its holding.                 See Lohec v. Galveston Cnty. Comm’rs
Court, 841 S.W.2d 361, 366 n.4 (Tex. 1992) (“Our decisions operate retroactively
unless this court exercises its discretion to modify that application.”); Diamond
Offshore (Bermuda), Ltd. v. Haaksman, 355 S.W.3d 842, 846 n.4 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied) (“Because there is nothing in [two supreme
court opinions] indicating that the Texas Supreme Court intended for those
decisions to apply only prospectively, we conclude that the court intended to apply
those decisions retroactively.”).5


        5
          We also reject Salazar’s argument the trial court implicitly excused Salazar’s failure to serve an
expert report because the failure was due to a good faith mistake of law. The cases cited by Salazar to
support this argument involved the pre-TMLA act which required the trial court to grant a grace period to
furnish a report if the court found the claimant’s failure to serve a report was “not intentional or the result
of conscious indifference but was the result of an accident or mistake.” Yanquinto v. Britt, 188 S.W.3d
819, 826 (Tex. App.—Fort Worth 2006, pet. denied) (citation omitted). The TMLA does not have such a
provision. See Badiga, 274 S.W.3d at 683.

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                                 IV. CONCLUSION

      Accordingly, we sustain CHCA’s issues. We reverse the trial court’s order
denying CHCA’s motion to dismiss Salazar’s claims. Because CHCA requested
its attorney’s fees and costs in the trial court pursuant to section 74.351(b)(1), we
remand with instructions to dismiss Salazar’s claims against CHCA and consider
CHCA’s request for attorney’s fees and costs.




                                       /s/    John Donovan
                                              Justice


Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.




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