Opinion issued August 28, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                            NO. 01-13-00335-CV
                          ———————————
                    EMERLEAN WILLIAMS, Appellant
                                      V.
            RIVERSIDE GENERAL HOSPITAL, INC., Appellee


                   On Appeal from the 11th District Court
                           Harris County, Texas
                     Trial Court Case No. 2012-32441


                      MEMORANDUM OPINION

      Emerlean Williams appeals the trial court’s grant of Riverside General

Hospital, Inc.’s motion to dismiss her suit pursuant to Chapter 74 of the Texas

Medical Liability Act (TMLA). After concluding that Williams had failed to file
an expert report as required by section 74.351(a) of the TMLA, 1 the trial court

granted the motion, dismissed the suit, and awarded Riverside its attorneys’ fees.

In three issues, Williams argues that the trial court erred by dismissing her suit

because her claims, which were neither directly nor indirectly related to health

care, were not health care liability claims (HCLCs), and that, even if her claims

could be classified as HCLCs pursuant to the Supreme Court’s opinion in Texas

West Oaks Hospital, L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012), that opinion

should only be applied prospectively.          We reverse and remand for further

proceedings.

                                     Background

      On June 4, 2012,2 Williams filed suit against Riverside, a community-based,

non-profit, acute-care facility that provides inpatient and outpatient hospital care,

where she was employed as a nursing assistant. Williams alleged that she suffered

personal injuries from two separate incidents at Riverside while at work.

Specifically, that she “sustained serious and permanent injuries when she tripped

1
      In 2013, the legislature amended section 74.351 of the TMLA. See Act of May
      26, 2013, 83rd Leg. R.S., ch. 870, § 2. The new provision applies to all suits filed
      after September 1, 2013. Because Williams filed her original petition prior to
      September 1, 2013, the effective date the amendments, we will apply the former
      version of section 74.351 to her claims. See Act of May 18, 2005, 79th Leg., R.S.,
      ch. 635, § 1, 2005 TEX. GEN. LAWS 1590 (amended 2013) (current version at TEX.
      CIV. PRAC. & REM. CODE ANN. § 74.351 (West Supp. 2014)).
2
      Williams originally filed suit on October 7, 2010 (trial court cause number 2010-
      66405). That case was non-suited and re-filed as the instant case pursuant to an
      agreement between the parties.


                                           2
over an extension cord left out by another hospital employee” on March 13, 2009,

and that she “slipped and fell on a substance on the floor after performing a ‘room

check’” on September 10, 2010. Williams later stated that the substance on the

floor came from “a leaky piece of lab equipment.” 3 In her petition, Williams

alleged that her injuries resulted from her employer’s breach of certain safety

standards by failing to provide her with: (1) the proper equipment or training for

the job; (2) adequate assistance or supervision in performing the tasks she was

assigned to perform; and (3) a safe place to work.

      On March 8, 2013, Riverside filed a motion to dismiss Williams’ suit

pursuant to Chapter 74 of the TMLA. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(a). Relying upon the Supreme Court’s June 2012 opinion in Texas West

Oaks and its discussion of “safety” HCLCs, Riverside argued that Williams’

claims were HCLCs and that, as such, she was required to file an expert report.

Her failure to do so, Riverside argued, mandated dismissal of her suit and an award

of attorney’s fees. Relying upon both Texas West Oaks and Ross v. St. Luke’s

Episcopal Hospital, No. 14–12–00885–CV, 2013 WL 1136613, at *1–2 (Tex. App.—

3
      Williams informed this Court at oral argument of her prior mistaken understanding
      that the source of the substance was from leaking laboratory equipment. She had
      since learned through discovery that the leak was actually from air conditioning
      equipment in the hospital’s ceiling. She acknowledged, however, that this new
      information was not included in the appellate record. See Carlisle v. Philip
      Morris, Inc., 805 S.W.2d 498, 501 (Tex. App.—Austin 1991, writ denied) (“It is
      elementary that . . . an appellate court may not consider matters outside the
      appellate record.”).

                                          3
Houston [14th Dist.] Mar. 19, 2013, pet. granted) (mem. op.), a recent appellate

decision broadly applying Texas West Oaks, the trial court determined that

Williams’ suit to be a HCLC, dismissed the case, and awarded attorney’s fees to

Riverside.

                                     Discussion

      Williams argues that (1) this court should construe the Supreme Court’s

discussion of “safety” in Texas West Oaks as judicial dicta, and apply the plain

meaning of the words in the TMLA so that the term “safety” is modified by

“directly related to health care,” and hold that her safety claim is not a HCLC

because it is not “directly related to health care,” (2) alternatively, if we decide to

follow the Supreme Court’s interpretation of “safety” as set forth in Texas West

Oaks, then we should follow some of our sister courts and hold that, although the

alleged breach in safety need not be directly related to the provision of health care,

there must still be some indirect, reasonable relationship between the two, and

because her claim is not indirectly related to health care, it is not a HCLC, and (3)

in the further alternative, if we subscribe to the Texas West Oaks’ interpretation,

that new rule would only apply prospectively, and, thus, because she filed suit

prior to the issuance of the Texas West Oaks opinion, her safety claims against

Riverside should not be treated as HCLCs.




                                          4
A.    Standard of Review

      Generally, we review a trial court’s decision on a motion to dismiss a HCLC

for an abuse of discretion.     See Am. Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P., 189

S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). However,

because this appeal poses a question of statutory construction (i.e., whether

Williams’ claims are HCLCs), we apply a de novo standard of review. Loaisiga v.

Cerda, 379 S.W.3d 248, 254–55 (Tex. 2012); Tex. W. Oaks, 371 S.W.3d at 177.

When determining whether a claim is a HCLC, we consider the entire record,

including the pleadings, motions and responses, and relevant evidence properly

admitted. Loaisiga, 379 S.W.3d at 258.

      The TMLA defines HCLCs 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 ANN. § 74.001(a)(13) (West Supp. 2014) (emphasis

added). A claimant asserting a HCLC must serve an expert report on the defendant

within a specified deadline and until that time, discovery is limited.               Id.

§ 74.351(a),(c), & (s). If the claimant fails to serve an expert report, the trial court




                                           5
must, on the defendant’s motion, dismiss the claims with prejudice and award the

defendant reasonable attorney’s fees and costs. Id. § 74.351(b).

      It is fairly well established that, except for “medical care” and “health care”

claims, HCLCs can be filed by both patients and non-patients (e.g., visitors and

employees of health care providers). See Tex. W. Oaks, 371 S.W.3d at 178–79; see

also TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(2) (West Supp. 2014)

(defining “claimant” as “a person . . . seeking or who has sought recovery of

damages in a health care liability claim.”). In such cases, it is not the status of the

person bringing the claim, but rather the nature of the underlying claim, that

determines whether the claim is a HCLC. See Tex. W. Oaks, 317 S.W.3d at 178

(“With the exception of medical care and health care claims, our focus in

determining whether claims come under the TMLA is not the status of the

claimant, but the gravamen of the claim or claims against the health care

provider.”).   The Supreme Court instructs that when “seeking to distinguish

ordinary negligence claims from HCLCs,” we must consider the “nature of the acts

or omissions causing claimants’ injuries and whether the events are within the

ambit of the legislated scope of the TMLA.” Id. at 176.

B.    Applicable Law

      In Texas West Oaks, a mental health professional sued his employer, a

private psychiatric hospital, for injuries sustained during a physical altercation with



                                          6
the psychiatric patient he was supervising. Relying in part on its decision in

Diversicare General Partnership, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005),

the Texas West Oaks court initially held that the employee’s claims were HCLCs

because he alleged departures from accepted standards of “health care,” (i.e., that

his employer departed from accepted standards of care with regard to training and

staffing policies, supervision, and patient protection, which are all integral

components of a health care facility’s rendition of health care services). See Tex.

W. Oaks, 371 S.W.3d at 180; TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13)

(defining HCLC as “a cause of action against a health care provider or physician

for . . . [a] claimed departure from accepted standards of . . . health care”); see also

Diversicare, 185 S.W.3d at 848, 850 (holding that training and staffing policies,

supervision, and patient protection are integral components of health care facility’s

rendition of health care services). The Texas West Oaks court further observed that

expert testimony is a factor in assessing the nature of a claim against a health care

provider and that, because such testimony was necessary to prove or refute the

merits of the employee’s claims in that case, such claims fall under the ambit of the

TMLA. Tex. W. Oaks, 371 S.W.3d at 182 (“[W]e now hold that if expert medical

or health care testimony is necessary to prove or refute the merits of the claim

against a physician or health care provider, the claim is a health care liability

claim.”). Specifically, the Court noted that the employee’s claims would require



                                           7
expert testimony on issues that are “integral to a patient’s care and confinement,”

including the proper training, supervision, and protocols necessary “to prevent,

control, and defuse aggressive behavior and altercations in a mental hospital

between psychiatric patients and employed professional counselors who treat and

supervise them.” Id. at 182.

      Even though it was not necessary to the resolution of the case because the

Court had already determined that the employee’s claims alleged departures from

accepted health care standards, the Supreme Court addressed whether the

employee’s claims were also HCLCs because he alleged departures from accepted

safety standards. See Tex. W. Oaks, 371 S.W.3d at 183–86. Abrogating precedent

from seven courts of appeals, including this court’s decision in Christus Health v.

Beal,4 the Supreme Court determined that the phrase “directly related to health

care” in section 74.001(a)(13) does not modify the phrase “claimed departure[s]

from accepted standards of . . . safety.” See Tex. W. Oaks, at 183–86. Thus, the

4
      See St. David’s Healthcare P’ship, L.P. v. Esparza, 315 S.W.3d 601, 604 (Tex.
      App.—Austin 2010), rev’d on other grounds, 348 S.W.3d 904 (Tex. 2011)
      (“directly related to health care” modifies “safety”); Appell v. Muguerza, 329
      S.W.3d 104, 115 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (same);
      Dual D Healthcare Operations, Inc. v. Kenyon, 291 S.W.3d 486, 489–90 (Tex.
      App.—Dallas 2009, no pet.) (same); Omaha Healthcare Ctr., L.L.C. v. Johnson,
      246 S.W.3d 278, 284 (Tex. App.—Texarkana 2008), rev’d on other grounds, 344
      S.W.3d 392 (Tex. 2011) (same); Harris Methodist Ft. Worth v. Ollie, 270 S.W.3d
      720, 723 (Tex. App.—Fort Worth 2008), rev’d on other grounds, 342 S.W.3d 525
      (Tex. 2011) (same); Christus Health v. Beal, 240 S.W.3d 282, 289 (Tex. App.—
      Houston [1st Dist.] 2007, no pet.) (same); Valley Baptist Med. Ctr. v. Stradley, 210
      S.W.3d 770, 775 (Tex. App.—Corpus Christi 2006, pet. denied) (same).


                                           8
high court held, a claim based upon alleged departures from accepted safety

standards need not be directly related to health care to be a HCLC. See id.

      Two months later, the Supreme Court considered whether a female patient’s

claim that her doctor assaulted her by groping her breasts while examining her for

sinus and flu symptoms was a HCLC. See Loaisiga, 379 S.W.3d at 252. After

quoting the statute’s broad definition of “health care,” the Loaisiga court held that

“[t]he breadth of the statute’s text essentially creates a presumption that a claim is

an HCLC if it is against a physician or health care provider and is based on facts

implicating the defendant’s conduct during the course of a patient’s care,

treatment, or confinement.” Id. at 256; TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.001(a)(10) (West Supp. 2014) (defining “health care” to include “any act . . .

by any health care provider for, to, or on behalf of a patient during the patient’s

medical care, treatment, or confinement”).         That presumption, however, is

rebuttable because, as the court noted, sometimes the “only possible relationship

between the conduct underlying a claim and the rendition of medical services or

healthcare will be the healthcare setting (i.e., the physical location of the conduct

in a health care facility), the defendant’s status as a doctor or health care provider,

or both.” Loaisiga, 379 S.W.3d at 256.

      The Loaisiga court then held that “a claim against a medical or health care

provider for assault is not an HCLC if the record conclusively shows that (1) there



                                          9
is no complaint about any act of the provider related to medical or health care

services other than the alleged offensive contact, (2) the alleged offensive contact

was not pursuant to actual or implied consent by the plaintiff, and (3) the only

possible relationship between the alleged offensive contact and the rendition of

medical services or healthcare was the setting in which the act took place.” Id. at

257. The court further concluded that the record in that case did not contain

sufficient information to conclusively show that the defendant’s conduct “could

not have been part of the examination he was performing” and so it remanded the

case to the trial court for further proceedings. The Loaisiga court did not cite or

refer to the Texas West Oaks decision in its opinion.

      In March 2013 the Texarkana court became the first appellate court to

address the question of the nexus between safety-related complaints and health

care in light of the Supreme Court’s decision in Texas West Oaks. In Good

Shepherd Medical Center–Linden, Inc. v. Twilley, the hospital’s director of plant

operations sued the hospital for negligence after the he fell from a ladder attached

to the hospital building and later tripped and fell over a mound of hardened cement

on the hospital’s premises. 422 S.W.3d 782, 783 (Tex. App.—Texarkana 2013,

pet. denied). The trial court denied the hospital’s motion to dismiss the employee’s

claims for failure to supply an expert report under the TMLA. Id. at 784. On

appeal, the Texarkana court affirmed the trial court’s ruling and held that, while a



                                         10
safety claim need not be directly related to health care pursuant to Texas West

Oaks, there must be some indirect link between an employee’s safety claim and the

provision of health care in order for the claim to fall under the TMLA. See

Twilley, 422 S.W.3d at 785.

      The Twilley court enumerated several reasons supporting this position. Id. at

785–89. In particular, that the safety claims in Texas West Oaks “were indirectly

related to healthcare” because those claims implicated safety standards for health

care providers working with potentially violent schizophrenic patients in a

psychiatric hospital, whereas “[t]he gravamen of Twilley’s claims—for OSHA

violations—[was] unrelated to the provision of health care to the patient population

or to anyone else.” Id. at 787. Thus, unlike in Twilley, the claims in Texas West

Oaks “were more closely connected to health care than simply arising in a health

care context.” Id. at 786.

      The Twilley court further noted the Supreme Court’s acknowledgement in

Loaisiga that a claim against a medical or health care provider for assault could fall

outside of the TMLA when it was unrelated to health care, and reasoned that

common sense dictated that the same could also be true of safety claims that are

unrelated to the provision of health care. Twilley, 422 S.W.3 at 788–89. Thus, the

Twilley court interpreted Loaisiga to suggest a limited application of Texas West

Oaks’s discussion of departures from accepted safety standards.



                                         11
      Finally, the Twilley court observed that requiring an expert report in that

case would be an exercise in futility—where is to be found a qualified expert under

the statute who was also competent to opine on the relevant accepted standards of

care—OSHA ladder construction and installation and walking surface standards?

Id. at 789. The court aptly noted that a medical report in that case would not be

able to shed any light on whether the ladder violated OSHA standards or the

concrete mound constituted an unreasonable risk of harm. Id. at 789.

      Later that same month, the Fourteenth Court of Appeals addressed this issue

in Ross and reached a decidedly different opinion. In that case, the Ross court

applied the judicial dicta in Texas West Oaks regarding claims based upon alleged

departures from accepted safety standards, holding that a slip-and-fall claim by a

hospital visitor against the hospital was a HCLC. 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, pet. granted) (mem. op.). The court held that, under

Texas West Oaks, a claim based upon an alleged departure from accepted standards

of safety, broadly defined, may constitute a HCLC, even if no patient-physician

relationship is involved and the allegedly negligent conduct does not relate to




                                        12
health care. See id. The Fourteenth Court of Appeals reiterated its position in

several subsequent decisions. 5

      Our sister court in Corpus Christi, too, considered the issue in Doctors Hosp.

at Renaissance, Ltd. v. Mejia. No. 13–12–00602–CV, 2013 WL 4859592, at *1

(Tex. App.—Corpus Christi Aug. 1, 2013, pet. filed) (mem. op.). The court held

that a hospital visitor’s claim for injuries from a slip and fall on a freshly waxed

walkway that a hospital employee directed her to use was not a HCLC. Id. at *3.

The Mejia court wrote that the Texas West Oaks opinion “stopped short of

concluding that all premises liability claims involving a healthcare defendant are

healthcare liability claims” and “[i]nstead, the court recognized a new type of

healthcare liability claim—that is, one involving safety which is indirectly related

to health care. Therefore, we apply [Texas] West Oaks narrowly to govern cases

that involve safety claims that are indirectly related to health care.” Mejia, 2013


5
      See CHCA W. Hous., L.P. v. Shelley, --- S.W.3d ---, 2014 WL 3429478, at *1–2
      (Tex. App.—Houston [14th Dist.] Jul. 15, 2014, pet. filed) (holding secretary’s
      negligence action against employer/hospital for injuries she received when she
      slipped and fell at work was HCLC); CHCA Bayshore, L.P. v. Salazar, No. 14–
      12–00928–CV, 2013 WL 1907888, at *5 (Tex. App.—Houston [14th Dist.] May
      7, 2013, pet. denied) (mem. op.) (holding hospital employee’s negligence action
      against employer/hospital for injuries received when attempting to maneuver
      patient was HCLC); Tillman v. Mem’l Hermann Hosp. Sys., No. 14–12–01169–
      CV, --- S.W.3d ---, 2013 WL 5470064, at *3 (Tex. App.—Houston [14th Dist.]
      Oct. 1, 2013, pet. denied) (holding negligence action by hospital employee who
      injured her back while x-raying patient was HCLC); Mem’l Hermann Hosp. Sys. v.
      Galvan, 434 S.W.3d 176, 186 (Tex. App.—Houston [14th Dist.] Jan. 28, 2014,
      pet. filed) (holding hospital visitor slipping on water on floor of hospital hallway
      was HCLC).

                                           13
WL 4859592, at *2. Relying upon its analysis of Texas West Oaks, the Mejia court

held that the hospital visitor’s garden-variety slip-and-fall claim was not a HCLC

because there was no indirect relationship between the hospital’s conduct and

health care.

      Later that same month the Supreme Court revisited the issue of safety claims

and health care in a case with similar facts to Texas West Oaks. Psychiatric

Solutions, Inc. v. Palit, 414 S.W.3d 724, 724–25 (Tex. 2013). In Psychiatric

Solutions, a psychiatric nurse was injured while physically restraining a psychiatric

patient during a behavioral emergency. Id. at 725. The nurse alleged that his

injuries were the “result of improper security of a dangerous psychiatric patient”

and that his employer, a health care provider, “failed to provide a safe working

environment and failed to make sufficient precautions for [his] safety.” Id. at 726.

The Supreme Court noted that “[a]s in [Texas] West Oaks, [the plaintiff’s]

allegations [fell] under both the safety and health care components of an HCLC.”

Id. Relying upon Texas West Oaks, the Supreme Court held that, because expert

health care testimony was required to either support or refute the nurse’s

allegations that his health-care-provider-employer departed from the accepted

standards of safety and health care, his claims were HCLCs. Psychiatric Solutions,

414 S.W.3d at 727.




                                         14
      The Beaumont, Dallas, Fort Worth, and San Antonio courts of appeals have

also addressed this issue, and relied on Mejia or Twilley and held that safety claims

by non-patients were not HCLCs. See Christus St. Elizabeth Hosp. v. Guillory,

415 S.W.3d 900, 902–03 (Tex. App.—Beaumont 2013, pet. filed) (holding that

negligence claim by hospital visitor for injuries allegedly sustained when she

slipped and fell on water in hospital hallway near nurses’ station was not HCLC

because there was no nexus between plaintiff’s injury and “the hospital’s duties of

providing healthcare” and noting that hospital had “failed to direct the trial court or

[appellate court] to any health care standards governing a hospital’s maintenance

or lighting of its halls or buildings”); Baylor Univ. Med. Ctr. v. Lawton, --- S.W.3d

---, No. 05–13–00188–CV, 2013 WL 6163859, at *1–4 (Tex. App.—Dallas Nov.

25, 2013, pet. filed) (following Twilley and holding that nurse’s claim against

hospital-employer for workplace injuries sustained when raw sewage backed-up

into hospital’s showers and sinks was not HCLC because gravamen of her claim

was unrelated to provision of health care; as in Twilley, “it would be difficult, if not

impossible, to find a qualified expert under the statute who was also competent to

opine on the relevant accepted standards of care for plumbing”); Weatherford Tex.

Hosp. Co. v. Smart, 423 S.W.3d 462, 463, 467–68 (Tex. App.—Fort Worth 2014,

pet. filed) (following Twilley, holding visitor falling on puddle of water in hospital

was not indirectly related to health care or safety and did not require an expert



                                          15
report and therefore was not HCLC); Methodist Healthcare Sys. of San Antonio,

Ltd., LLP v. Dewey, 423 S.W.3d 516, 516, 519–20 (Tex. App.—San Antonio 2014,

pet. filed) (holding that claim of hospital visitor on crutches who fell when

automatic entrance door to hospital closed on him was not HCLC; stating court

agreed “with the Mejia court that the supreme court recognized a new type of

healthcare liability claim, one involving safety that is indirectly related to health

care”). The Tyler Court of Appeals, however, followed Ross and held that that a

negligence claim by a hospital visitor for injuries she allegedly sustained when she

fell on a mat saturated with water in the hospital’s lobby was a HCLC. E. Tex.

Med. Ctr. Reg’l Health Care Sys. v. Reddic, 426 S.W.3d 343, 345, 348 (Tex.

App.—Tyler 2014, pet. filed) (“We agree with Ross that a fall, even by a visitor, in

a hospital lobby meets the TMLA’s safety prong so that [the plaintiff’s] claims in

this case are properly classified as HCLCs.”) Clearly, this issue is squarely before

the Supreme Court. 6

C.    Rejection of Texas West Oaks’ Interpretation of “Safety”

      In her first and second issues, Williams argues that this Court should

construe the Supreme Court’s discussion of “safety” in Texas West Oaks as judicial

dicta, and apply the plain meaning of the words in the TMLA so that the term


6
      Ross v. St. Luke’s Episcopal Hosp., No. 14–12–00885–CV, 2013 WL 1136613
      (Tex. App.—Houston [14th Dist.] Mar. 19, 2013, pet. granted) (mem. op.) is
      scheduled to argue before the Texas Supreme Court on November 5, 2014.

                                         16
“safety” is modified by “directly related to health care” and, in the alternative, if

we decide to follow the Supreme Court’s interpretation of “safety” in Texas West

Oaks, then we should follow some of our sister courts and hold that, although the

alleged breach in safety need not be directly related to health care, there must still

be some indirect, reasonable relationship between the two. According to Williams,

her claim is neither directly nor indirectly related to health care, and therefore, it is

not a HCLC in either case.

      Judicial dictum is a statement by the supreme court made very deliberately

after mature consideration and for future guidance in the conduct of litigation and

is “at least persuasive and should be followed unless found to be erroneous.”

Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex. App.—Houston [14th Dist.] 1999, pet.

denied) (quoting Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex.

1964)). Williams contends that the Supreme Court’s conclusion that the phrase

“directly related to health care” does not modify “safety” is erroneous for the

reasons set forth in Justice Jennings’ dissenting opinion in CHCA Bayshore, L.P. v.

Ramos, 388 S.W.3d 741, 751 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (J.

Jennings, dissenting). The Fourteenth Court of Appeals has previously held that

this portion of the Supreme Court’s opinion in Texas West Oaks is judicial dicta.

See Mem’l Hermann Hosp. Sys. v. Galvan, 434 S.W.3d 176, 181–82 (Tex. App.—

Houston [14th Dist.] 2014, pet. filed) (concluding that Supreme Court’s statements



                                           17
in Texas West Oaks regarding claims based upon alleged departures from accepted

safety standards are judicial dicta). We agree with Galvan that this portion of the

opinion is judicial dicta. Id. However, we decline the offer to essentially disregard

the Supreme Court’s direction regarding the interpretation of “safety,” particularly

in light of the fact that the Supreme Court reaffirmed its position in Psychiatric

Solutions the following year.     See Psychiatric Solutions, 414 S.W.3d at 726

(holding psychiatric nurse’s claim that he was injured “as a result of improper

security of a dangerous psychiatric patient” because his employer, a health care

provider, “failed to provide a safe working environment and failed to make

sufficient precautions for [his] safety” were claims that employer departed from the

accepted standards of safety and health care, as in Texas West Oaks, and that such

claims required expert health care testimony to support or refute allegations, and

therefore, claims were HCLCs). We further note that another panel of this Court

recognized—albeit in dicta—that Texas West Oaks held that safety HCLCs need

not be “directly related to the provision of healthcare.”      See Obstetrical and

Gynecological Associates, P.A. v. Hardin, No. 01–13–00236–CV, 2013 WL

6047595, at *3 n.4 (Tex. App.—Houston [1st Dist.] Nov. 14, 2013, no pet.) (mem.

op.).

        Having determined that we will follow the Supreme Court’s interpretation of

“safety,” we must now decide whether we agree with the Fourteenth and Tyler



                                         18
Courts of Appeals and apply Texas West Oaks decision broadly to encompass all

safety claims that are completely unrelated health care, or whether we agree with

the Texarkana, Corpus Christi, Beaumont, Dallas, Fort Worth, and San Antonio

Courts of Appeals and apply a narrow interpretation of the decision’s judicial

dictum regarding “safety” HCLCs.

      Like the majority of our sister courts, we do not interpret Texas West Oaks to

mean that all safety claims that occur in a health care setting—even claims that are

otherwise completely untethered from health care—are HCLCs. Although safety

claims do not need to be directly related to health care pursuant to Texas West

Oaks, there must, nevertheless, be some indirect, reasonable relationship between

claims and the provision of health care for such claims to be HCLCs. See Mejia,

2013 WL 4859592, at *2 (interpreting Texas West Oaks “narrowly to govern cases

that involve safety claims that are indirectly related to health care”); Twilley, 422

S.W.3d at 788 (interpreting Texas West Oaks narrowly and holding that safety

claim must have at least indirect relationship to health care to be considered

HCLC); see also Dewey, 423 S.W.3d at 519 (holding that safety claim must have

at least indirect relationship to health care to be considered HCLC); Smart, 423

S.W.3d at 467–68 (same); Lawton, --- S.W.3d at ---, 2013 WL 6163859, at *3

(same); Guillory, 415 S.W.3d at 902–03 (same). As the Twilley court correctly

noted: “[I]f every safety claim against a health care provider were considered a



                                         19
health care liability claim, there would be no need to analyze the nature of the acts

or omissions which caused the alleged injuries.” Twilley, 422 S.W.3d at 788

(emphasis in original); see also Tex. W. Oaks, 371 S.W.3d at 176 (directing lower

courts to distinguish ordinary negligence claims from HCLCs by focusing on

“nature of the acts or omissions” causing alleged injuries).

      As in Twilley, Guillory, Smart, and Mejia, the gravamen of Williams’ claim

that she tripped over an extension cord is a garden-variety slip-and-fall claim that

is completely untethered from the provision of health care.        See Twilley, 422

S.W.3d at 787 (holding employee’s claim that he tripped on concrete mound

unrelated to health care); Guillory, 415 S.W.3d at 901, 903 (holding visitor’s claim

that she slipped and fell on water in hospital hallway unrelated to health care);

Smart, 423 S.W.3d at 467–68 (holding employee’s claim that he slipped in water

puddle unrelated to health care); Mejia, 2013 WL 4859592, at *1, *4 (holding

visitor’s claim she slipped on waxed floor unrelated to health care). The same

holds true for Williams’ claim for her slip and fall due to leakage on the hospital’s

floor. That the substance originated from an air-conditioning system or “a leaking

piece of lab equipment” does not alter the outcome. Although Riverside argues

that leaking “lab equipment” is the type of event that only occurs in a medical or

health care setting, we disagree. “Lab equipment” is a broad term that can apply to

a wide range of equipment used in a variety of educational and commercial



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settings, both inside and outside of the health care field (e.g., classrooms, research

facilities).   Despite Riverside’s arguments to the contrary, Williams’ vague

reference to a leaking piece of unspecified “lab equipment” does not bolster the

link between her claim and the provision of health care.

       We further note that, as in Twilley, requiring an expert medical or health care

report in this case would amount to an exercise in futility. See Lawton, --- S.W.3d

at ---, 2013 WL 6163859, at *1–4 (following Twilley and holding that nurse’s

claim against hospital-employer for workplace injuries sustained arising from

sewage back-up at hospital was not HCLC because gravamen of her claim was

unrelated to provision of health care).

       It is improbable that Williams could locate a premises liability expert who

also practiced “health care in a field of practice that involves the same type of care

or treatment as that delivered by” Riverside to opine on either claim.            See

Psychiatric Solutions, 414 S.W.3d at 726 (quoting Texas West Oaks’ holding “that

if expert medical or health care testimony is necessary to prove or refute the merits

of a claim against a physician or health care provider, the claim is a health care

liability claim.”) Further, were such an expert available, the proof or refutation of

the merits of ordinary, garden-variety slip-and-fall negligence claims do not

require expert medical or health care testimony. Because neither of Williams’




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claims before us are a HCLC, the trial court erred in granting Riverside’s motion to

dismiss.

       Riverside argued during oral argument that the trial court’s granting of the

motion to dismiss could also be affirmed because Williams failed to rebut the

presumption that her claims were HCLCs pursuant to Loaisiga.                   Loaisiga,

however, was not a claim that a health care provider departed from an accepted

safety standard, as in the present case. On the contrary, Loaisiga only applies to

alleged departures from accepted standards of “health care.” After quoting the

broad definition of “health care,” 7 the Loaisiga court held that “[t]he breadth of the

statute’s text essentially creates a presumption that a claim is an HCLC if it is

against a physician or health care provider and is based on facts implicating the

defendant’s conduct during the course of a patient’s care, treatment, or

confinement.” Loaisga does not expressly apply to a safety claim brought by an

employee against its health-care-provider employer and we decline to extend it to

such cases. See, e.g., Galvan, 434 S.W.3d at 185 (“The Loaisiga court mentioned

safety in passing, but it did not specifically address the scope of the statutory

definition regarding claims based upon alleged departures from accepted safety

standards. . . .”).


7
       TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(10) (West Supp. 2014) (defining
       “health care” to include “ any act . . . by any health care provider for, to, or on
       behalf of a patient during the patient’s medical care, treatment, or confinement.”)

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      Having determined that the trial court erred in granting Riverside’s motion

to dismiss because Williams’ claims were not HCLCs, we need not address

Williams’ retroactivity issue.

                                    Conclusion

      We reverse the trial court’s judgment dismissing Williams’ suit and

awarding attorneys’ fees to Riverside pursuant to section 74.351(a) and remand for

further proceedings.




                                              Jim Sharp
                                              Justice


Panel consists of Justices Jennings, Higley, and Sharp.




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