                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00227-CV
                           ____________________

        BAPTIST HOSPITALS OF SOUTHEAST TEXAS, Appellant

                                        V.

                      SHERRY GAIL MCCOY, Appellee
_______________________________________________________           ______________

                    On Appeal from the 58th District Court
                          Jefferson County, Texas
                         Trial Cause No. A-194,893
________________________________________________________           _____________

                         MEMORANDUM OPINION

      In this interlocutory appeal, Baptist Hospitals of Southeast Texas asks that

we revisit our decision in Christus St. Elizabeth Hospital v. Guillory, 415 S.W.3d

900 (Tex. App.—Beaumont 2013, pet. filed), in which we held that a garden-

variety slip-and-fall case involving a visitor on the hospital’s premises was not a

health care liability claim requiring an expert report, a report required in cases

subject to the Texas Medical Liability Act (TMLA). See Tex. Civ. Prac. & Rem.

Code Ann. § 51.014(a)(9) (authorizing an interlocutory appeal from a trial court’s

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ruling regarding whether an expert report is required in cases governed by the

TMLA), § 74.001(a)(13) (defining the term “[h]ealth care liability claim” under the

Act), § 74.351(a) (explaining requirements in serving an expert report under the

TMLA) (West Supp. 2014). We hold that the trial court properly denied the

hospital’s motion to dismiss, and we affirm the trial court’s order.

      While at Baptist Hospital visiting a patient, Sherry Gail McCoy slipped and

fell on food that she alleges had been spilled on the floor. McCoy sued the hospital,

alleging the hospital was aware of the hazard and should have either cleaned the

food from the floor or warned her of the hazard. Approximately five months after

McCoy sued, Baptist asked the trial court to dismiss McCoy’s suit. The motion to

dismiss alleges that McCoy had failed to serve the hospital with an expert report

within 120 days of the date it had answered. Although the hospital’s motion notes

our decision in Guillory, it alleged the decision “ignored the Supreme Court

analysis of the requirements for a claim of departure from safety standards.”

However, the hospital never directed the trial court nor has it directed this Court to

any health care standards governing a hospital’s maintenance of its floor.

      In McCoy’s response to the hospital’s motion, McCoy asserted that no nexus

exists between the standards governing her claim and accepted standards of health

care. According to McCoy’s response, her claim has nothing to do with healthcare,

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but rather arises from the responsibilities the hospital has as a landlord. McCoy’s

response also states that when she fell, she was “not a patient, nor was she at the

[hospital] seeking medical care.”

      The trial court, relying on our opinion in Guillory, denied the hospital’s

motion; the hospital appealed. In its appeal, the hospital contends that Guillory was

wrongly decided. But, for the same reasons that we fully explained in Guillory, a

garden-variety slip-and-fall case where the health care provider failed to show that

the case implicated safety standards applying to health care, McCoy’s claims as

pled do not implicate health care standards. Guillory, 415 S.W.3d at 902-03. In

McCoy’s case, McCoy’s claim does not appear to be a health care liability claim

governed by the TMLA and the hospital failed to show that the gravamen of

McCoy’s claim implicates health care standards. Id. at 902. Based on the

allegations of McCoy’s complaint and the information in her response, the duty the

hospital owed to McCoy while she was at the hospital is no different than the duty

imposed on other businesses that allow visitors to enter their premises.

      We conclude that McCoy’s complaint did not allege that Baptist departed

from standards pertinent to acceptable standards of health care; therefore, McCoy

has not asserted a health care liability claim under the TMLA against the hospital.




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We hold the trial court did not err in denying Baptist’s motion to dismiss, and we

affirm the trial court’s order.

      AFFIRMED.


                                            ______________________________
                                                    HOLLIS HORTON
                                                         Justice


Submitted on October 2, 2014
Opinion Delivered October 16, 2014

Before McKeithen, C.J., Horton and Johnson, JJ.




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