Opinion issued August 20, 2020




                                  In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                           NO. 01-18-00984-CV
                         ———————————
BELMONT VILLAGE HUNTERS CREEK TRS, LLC, BELMONT THREE,
   LLC, BELMONT VILLAGE HUNTERS CREEK, LLC, BELMONT
  VILLAGE, L.P. AND BELMONT BP INVESTORS, LLC, Appellants
                                    V.
WILLIAM MARSHALL, INDIVIDUALLY AND AS EXECUTOR OF THE
 ESTATE OF CHARLOTTE MARSHALL, DECEASED, CATHERINE
        MARSHALL AND DAVID MARSHALL, Appellees


                  On Appeal from the 164th District Court
                           Harris County, Texas
                     Trial Court Case No. 2017-75214


                                 OPINION

     Charlotte Marshall, an elderly woman with dementia, was a resident at

Belmont Village, an assisted living facility in Houston. Royland Pringle, an
employee of Belmont Village, raped Charlotte in her unit in Belmont Village. After

Charlotte died, her children—the appellees, William Marshall, individually and as

executor of the Estate of Charlotte Marshall, Deceased; Catherine Marshall; and

David Marshall—sued Pringle for sexual assault and, additionally, sued Belmont

Village for premises liability. The trial court denied Belmont Village’s motion to

dismiss, which asserted that the Marshalls’ claim was a health care liability claim

and that they had failed to provide an expert report as required by the Texas Medical

Liability Act (TMLA). See TEX. CIV. PRAC. & REM. CODE chapter 74.

      Belmont Village contends in this interlocutory appeal that the trial court erred

in denying its motion to dismiss. We affirm.

                                    Background

      On November 29, 2014, Charlotte entered into a contract—a “Residence and

Services Agreement”—with Belmont Village Hunters Creek, LLC.1 The agreement

states that it operates an “Assisted Living Facility” known as Belmont Village that

provides “residency, care and services” and provided for Charlotte to reside in a unit

at Belmont Village. The agreement’s introduction states in part:

      Belmont Village provides certain Core Services to all residents.
      Belmont Village also offers Support Services in addition to Core
      Services. Your Support Services will depend on your needs and may
      vary from time to time. The purpose of this Agreement is to provide a

1
      We refer to appellants Belmont Village Hunters Creek TRS, LLC, Belmont Three,
      LLC, Belmont Village Hunters Creek, LLC, Belmont Village, L.P. and Belmont
      Investors, LLC collectively as Belmont Village.
                                          2
      statement of the services that will be furnished to you at the Community
      [Belmont Village], and to describe the other legal obligations that
      Belmont Village will assume. This Agreement also sets forth your legal
      obligations to Belmont Village, both financial and otherwise.

(Emphasis added.) Section II.D. of the agreement provides:

      D. Excluded Services

      Belmont Village shall not be responsible for furnishing or paying for
      any health care items or services, including but not limited to
      physicians’ services, psychiatric services, nursing services, surgery,
      hospital care, treatment or examination of eyes or teeth, medications,
      vitamins, eyeglasses, contact lenses, hearing aids, orthopedic
      appliances, prosthetic devices, transportation other than that set forth in
      this Agreement, laboratory tests, x-ray services, home health services
      and private duty aides or attendants. If you receive services from
      outside service providers, Belmont Village does not assume
      responsibility for oversight of such services; however, the provision of
      services by outside providers at your Residence or the Community shall
      at all times remain subject to the policies of Belmont Village and the
      Resident Handbook.

(Emphasis added.)

      Charlotte obtained health care from “outside service providers” while she

lived at Belmont Village. For example, she received medical care from Altus Health

Care and Memorial Hermann and podiatric treatment from an outside podiatrist.

Belmont Village was not involved in providing these services.

      The agreement also included an “Assisted Living and Dementia

Neighborhoods Support Services Agreement,” which provides in pertinent part:

      K. Excluded Services. Belmont Village shall not be responsible for
      furnishing or paying for any health care items or services, including but
      not limited to physicians’ services, psychiatric services, nursing services,
                                           3
      surgery, hospital care, treatment or examination of eyes or teeth,
      medications, vitamins, eyeglasses, contact leases, hearing aids, orthopedic
      appliances, prosthetic devices, transportation other than what is set forth
      in this Agreement, laboratory tests, x-ray services, home health services
      and private duty aides or companions.

(Emphasis added.)

      The Residence and Services Agreement provided for a monthly fee payable

to appellant Belmont BP Investors LLC in the total amount of $7,130, which

included a $730 monthly fee for the “Assisted Living and Dementia Neighborhoods

Support Services Agreement.”

      In their suit, the Marshalls allege that on November 9, 2015, Pringle, an

employee of Belmont Village who was on duty, entered Charlotte’s residence and

sexually assaulted her. The Marshalls allege that Charlotte was unable to raise an

alarm or fend off the attack. While the sexual assault was occurring, another

employee entered Charlotte’s residence, observed the sexual assault, and notified

other staff members who intervened and alerted law enforcement. Charlotte was

taken to a hospital where a rape kit was performed, and the kit confirmed the sexual

assault by Pringle.2

      The Marshalls allege that Belmont Village did not provide standard security

measures, such as locks or other alarm systems, to prevent staff from inappropriately


2
      Pringle was convicted of aggravated sexual assault of an elderly or disabled person
      and was sentenced to life in prison.

                                           4
entering residents’ rooms, and that Belmont Village failed to install a lock on

Charlotte’s door. The Marshalls assert that Pringle exploited this lack of security to

sexually assault Charlotte. Under what they term a “standard landlord liability

theory,” they allege a premises liability claim against Belmont Village for its failure

to provide adequate security to Charlotte.

      Belmont Village filed a motion to dismiss the Marshalls’ claim against it,

asserting that Belmont Village, as an assisted living center, was a health care

provider under the TMLA, that the Marshalls’ claim was a health care liability claim,

and that, because they were required but failed to provide an expert report under the

TMLA, their claims against Belmont Village must be dismissed. The Marshalls filed

a response to the motion to dismiss. After a hearing, the trial court denied the motion.

Belmont Village’s sole issue asserts that the Marshalls’ claim is a health care liability

claim and that the trial court should have granted the motion to dismiss.

                                       Analysis

      The TMLA defines a health care liability claim as:

      A cause of action against a health care provider or physician for
      treatment, lack of treatment, or other claimed departure from accepted
      standards of medical care, or health care, or safety or professional or
      administrative services directly related to health care, which
      proximately results in injury to or death of a claimant, whether the
      claimant’s claim or cause of action sounds in tort or contract.

TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13); see Bioderm Skin Care, LLC v. Sok,

426 S.W.3d 753, 758 (Tex. 2014). If, when considered against the statutory

                                           5
requirements of section 74.001(a)(13), a claimant’s cause of action is a health care

liability claim, the claimant must serve the defendant with an expert report within

120 days of the defendant’s original answer. TEX. CIV. PRAC. & REM. CODE

§ 74.351(a); Houston Methodist Willowbrook Hosp. v. Ramirez, 539 S.W.3d 495,

498 (Tex. App.—Houston [1st Dist.] 2017, no pet.). If the claimant fails to serve an

expert report on the defendant within 120 days, the trial court shall, on the motion

by the defendant, enter an order that dismisses the claim with prejudice and awards

the defendant reasonable attorney’s fees and court costs. TEX. CIV. PRAC. & REM.

CODE § 74.351(b). Because it is undisputed that the Marshalls did not serve an expert

report on Belmont Village, we must determine whether their claim is a health care

liability claim under Chapter 74. See Baylor Scott & White Med. Ctr. v. Weems, 575

S.W.3d 357, 363 (Tex. 2019) (holding that if claim is health care liability claim and

no report is served, suit must be dismissed).

      To be a health care liability claim under the TMLA, a claim must contain three

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 omission complained of must
      proximately cause the injury to the claimant.

Bioderm, 426 S.W.3d at 758 (quoting Tex. W. Oaks Hosp., LP v. Williams, 371

S.W.3d 171, 179-80 (Tex. 2012)); see Ramirez, 539 S.W.3d at 498. “No one
                                          6
element, occurring independent of the other two, will recast a claim into a health

care liability claim.” Bioderm, 426 S.W.3d at 758.

      The party moving for dismissal has the burden of proving that the cause of

action is a health care liability claim. Ramirez, 539 S.W.3d at 498 (citing Reddy v.

Veedell, 509 S.W.3d 435, 438 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)).

The TMLA, however, creates a rebuttable presumption that a plaintiff’s claim is a

health care liability claim if it is brought 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.” Loaisiga v. Cerda, 379 S.W.3d 248, 256

(Tex. 2012).

      Our standard of review of a trial court’s ruling on a motion to dismiss depends

on the precise issue being reviewed.

      A ruling on a motion to dismiss a health care liability claim pursuant to
      the Texas Medical Liability Act (TMLA) is generally reviewed for
      abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v.
      Palacios, 46 S.W.3d 873, 875 (Tex. 2001). However, we review de
      novo whether a particular cause of action is a health care liability claim.
      Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 757 (Tex. 2014). In
      doing so, we “consider the entire record, including the pleadings,
      motions, responses, and relevant evidence properly admitted.” See, e.g.,
      Shah v. Sodexo Servs. of Tex. L.P., 492 S.W.3d 413, 416–17 (Tex.
      App.—Houston [1st Dist.] 2016, no pet.).

Ramirez, 539 S.W.3d at 498. If the record does not affirmatively show that the

plaintiff’s claim is a health care liability claim, the statutory expert-report



                                           7
requirement does not apply. Id. (citing Ross v. St. Luke’s Episcopal Hosp., 462

S.W.3d 496, 505 (Tex. 2015)).

A.    Element One: Whether Belmont Village is a Health Care Provider

      It is not in dispute that Belmont Village, an assisted living facility licensed

under Health and Safety Code Chapter 247, satisfies the first element of whether the

defendant meets the statutory definition of “health care provider.” Under the TMLA,

a “[h]ealth care provider means any . . . institution duly licensed . . . by the State of

Texas to provide health care, including . . . a health care institution.” TEX. CIV. PRAC.

& REM. CODE §§ 74.001(a)(12)(A)(vii). And more specifically, “health care

institution includes . . . an assisted living facility licensed under Chapter 247, Health

and Safety Code.” Id. § 74.001(a)(11)(B); see Emeritus Corp. v. Highsmith, 211

S.W.3d 321, 327 (Tex. App.—San Antonio 2006, pet. denied) (finding first statutory

element satisfied because “Kingsley Place is an assisted living facility, which is

encompassed by the statutory definition of a ‘health care provider.’”).

B.    Element Two: Whether the Claim Concerned Health Care or Safety
      Related to Health Care

      The issue raised by Belmont Village goes to the second statutory element:

does the Marshalls’ claim 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? Relying primarily on

Diversicare General Partner, Inc. v. Rubio, Belmont Village argues that a health

                                           8
care facility’s failure to protect a resident from sexual assault is a health care liability

claim. See 185 S.W.3d 842, 849, 855 (Tex. 2005).

       The Marshalls, however, allege that Belmont Village was negligent in failing

to exercise reasonable care in providing security services “necessary for

[Charlotte’s] protection.” They contend that this is a typical claim against a landlord,

citing the Restatement (Second) of Torts § 344 (1965), and they assert that Texas

law has long provided that “[a] landlord ‘who retains control over the security and

safety of the premises’ may be held liable to invitees for criminal acts by third

parties, if, and only if, the criminal acts were foreseeable.” Tex. Real Estate

Holdings, Inc. v. Quach, 95 S.W.3d 395, 397 (Tex. App.—Houston [1st Dist.] 2002,

pet. denied) (quoting Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d

749, 756 (Tex. 1998)). The Marshalls argue that, rather than implicating the

providing of health care, their claim against Belmont Village “involve[s] basic

security requirements (absence of locks, security devices, and so forth) that are

routinely brought against building owners” generally. They further argue that they

make no health-care related complaints and point out that Belmont Village twice

contractually disclaimed that it was providing health care to Charlotte.3


3
       In their petition, the Marshalls alleged:

          Defendant BELMONT VILLAGE HUNTERS CREEK, LLC and
          BELMONT BP INVESTORS, LLC, entered into a written contract
          with CHARLOTTE MASHALL, deceased, for “Core Services.”
                                              9
      To be a healthcare liability claim, the Marshalls’ claim 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. See Bioderm, 426 S.W.3d at 758 (emphasis added).




         These services specifically included such items as furnishing a place
         to live, housekeeping services, meals, and optional services, but
         specifically excluded any responsibility for furnishing or paying for
         any “health care items or services” including medications, private
         aids, nursing care, physician care, laboratory care and home health
         services. The cost of such services [was] $7,130.00 paid monthly to
         Defendant BELMONT BP INVESTORS LLC. An addendum to the
         contract also offered “Support Services” such as personal care
         assistance, for an additional monthly charge of $730, but Defendants
         again made clear that “Support Services” did not include any type of
         healthcare or medical care.
      (Emphasis added.) This pleading is a specific reference to the two above-quoted
      contractual exclusions.

          In their response to Belmont Village’s motion to dismiss, the
          Marshalls asserted that Belmont Village “expressly stipulated that it
          did not provide its residents healthcare services.” Cf. Masterson v.
          Bouldin, 151 S.W.2d 301, 307 (Tex. Civ. App.—Eastland 1941, writ
          ref’d) (noting estoppel by contract is “estoppel to deny the truth of
          facts agreed upon and settled by force of entering into the contract.”);
          id. (“If, in making a contract, the parties agree upon or assume the
          existence of a particular fact as the basis of their negotiations, they are
          estopped to deny the fact so long as the contract stands, in the absence
          of fraud, accident or mistake.”). The Marshalls further argued,
          “Despite expressly denying that it would provide any healthcare
          services to [Charlotte] Marshall, Belmont now seeks to avoid liability
          for the sexual assault that occurred at its residence on the theory that
          it provided her healthcare services. Based on this new position, it
          claims that Marshall’s claims are healthcare liability claims under
          Chapter 74, which require an expert report.”
                                              10
      The TMLA defines “health care” as “any act or treatment performed or

furnished, or that should have been performed or furnished, by any health care

provider for, to, or on behalf of a patient during the patient’s medical care, treatment,

or confinement.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10).

      Safety is not defined by the TMLA, but the Supreme Court of Texas has stated

that “safety” is accorded its common meaning as “the condition of being untouched

by danger; not exposed to danger; secure from danger, harm or loss.” Ross, 462

S.W.3d at 501 (internal quotations omitted). The supreme court has recognized that

“the statute’s phrase ‘directly related to health care’ does not modify its reference to

safety standards.” Id. at 504; see also Rubio, 185 S.W.3d at 855 (“[T]he Legislature’s

inclusion within the scope of the [TMLA] of claims based on breaches of accepted

standards of ‘safety’ expands the scope of the statute beyond what it would be if it

only covered medical and health care.”). Nevertheless, the court has held that the

legislature must have intended that a relationship between safety standards and the

provision of health care exist for a claim to fall within Chapter 74, “given the

legislative intent explicitly set out in the TMLA and the context in which ‘safety’ is

used in the statute.” Ross, 462 S.W.3d at 504.

      Thus, there must be “a substantive nexus between the safety standards

allegedly violated and the provision of health care.” Ross, 462 S.W.3d at 504; see

Cage v. Methodist Hosp., 470 S.W.3d 596, 602 (Tex. App.—Houston [1st Dist.]


                                           11
2015, no pet.). This nexus depends on “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.” Ross, 462 S.W.3d at 505; see Cage, 470 S.W.3d at

602.

       Belmont Village contends that the Marshalls’ claim involves allegations of

alleged departures from both (1) accepted standards of “health care” and

(2) accepted standards of safety “directly related to health care.” We address these

contentions in turn.

       1.    Whether the claim concerns health care

       In asserting that the Marshalls’ claim implicates the provision of health care,

Belmont Village relies on Rubio, and it contends that the supreme court in Rubio

established that a health care facility’s ongoing duty to protect its patients or

residents from assault is health care. See Rubio, 185 S.W.3d at 854–55. We disagree

that Rubio is dispositive of this case.

       Rubio, decided under the TMLA’s predecessor statute, was a suit against a

nursing home by a nursing home resident who had been sexually assaulted by

another resident, and the plaintiff primarily alleged that the nursing home failed to

provide adequate supervision to protect her from sexual assault. Id. at 845. The

supreme court held that the plaintiff’s claims were causes of action for departures




                                          12
from accepted standards of professional health care and safety and thus were health

care liability claims governed by the TMLA’s predecessor statute. Id. at 845, 855.

      The majority in Rubio did not address the factual scenario and the premises

liability claim presented in this case. However, it did anticipate similar arguments in

responding to Chief Justice Jefferson’s concurring and dissenting opinion, which

asserted that some of the plaintiff’s allegations raise a premises liability claim. See

Rubio, 185 S.W.3d at 854; id. at 855–58 (Jefferson, C.J., concurring and dissenting).

The majority emphasized that the plaintiff in Rubio was “not complaining about an

unlocked window that gave an intruder access” and noted that there “may be

circumstances that give rise to premises liability claims in a healthcare setting that

may not be properly classified as health care liability claims, but those circumstances

are not present here.” Id. at 854. We therefore disagree with Belmont Village that

Rubio settled the issue before us. In fact, a close look at Rubio undermines Belmont

Village’s contention that it is applicable to this case.

      The health care facility in Rubio was a nursing home, and the court

emphasized the nature of the services that a nursing home provides in making its

ruling:

      A nursing home provides services to its patients, often around the clock,
      which include supervising daily activities; providing routine
      examinations and visits with physicians; providing dietary,
      pharmaceutical, and routine dental services; monitoring the physical
      and mental conditions of its residents; administering medications; and
      meeting the fundamental care needs of the residents. . . . These services
                                           13
      are provided by professional staff including physicians, nurses, nurse
      aides, and orderlies who care for the residents.

Id. at 849–50.

      The court distinguished the duty of a nursing home to its patients from that of

a premises owner to its invitees:

      The obligation of a health care facility to its patients is not the same as
      the general duty a premises owner owes to invitees. Health care staff
      make judgments about the care, treatment, and protection of individual
      patients and the patient populations in their facilities based on the
      mental and physical care the patients require. The health care standard
      applies the ordinary care of trained and experienced medical
      professionals to the treatment of patients entrusted to them. Premises
      owners similarly owe a duty of care to their residents and invitees, but
      the duty is of ordinary care with no general medical duty to diagnose
      and treat their residents. . . . Residents are in a nursing home for care
      and treatment, not merely for shelter.

Id. at 850–51 (emphases added) (internal citations omitted).

      In concluding that the plaintiff in Rubio did not allege a common law claim

for premises liability, the court stated, “We do not distinguish Rubio’s health care

claims from premises liability claims ‘simply because the landowner is a health care

provider’ but because the gravamen of Rubio’s complaint is the alleged failure of

Diversicare to implement adequate policies to care for, supervise, and protect its

residents who require special medical care.” Id. at 854 (emphasis added).

      Texas law defines an assisted living facility as one that provides “food and

shelter” and either “personal care services” or “administration of medication.” TEX.

HEALTH & SAFETY CODE § 247.002(1). It allows assisted living facilities flexibility
                                          14
by listing several other nursing and other health care services that an assisted living

facility “may,” but is not required to, provide. See id. § 247.002. As highlighted

above, Belmont Village twice disclaimed that it would provide health care to

Charlotte, who was to obtain and receive health care from outside providers.

      In contrast to Rubio, the services provided by Belmont Village on a regular

basis involved personal care, not health care: bathing assistance, toileting reminders

and assistance, dressing and grooming. Belmont Village also provided some

household services and day-to-day activities: laundry services, housekeeping daily

reminders, “cueing and drawing out of resident,” and “escort assistance.” Although

Belmont Village conducted daily “wellness checks,” its contract emphasized that

these were of a “non-medical nature” and merely assured these non-medical tasks

were completed. The only arguable health care that it provided was medication

distribution, but the Marshalls’ claim does not arise from any alleged failure in the

distribution of medication.

      The crucial distinction between a nursing home and Belmont Village, an

assisted living facility, is that a nursing home provides personal care and health and

medical care, while Belmont Village provided almost only personal care. This

distinction renders Rubio inapplicable. Moreover, while the definition of “health

care” is broadly defined, Loaisiga, 379 S.W.3d at 255, it is not boundless. In Rubio,

the supreme court articulated a limiting test: “A cause of action alleges a departure


                                          15
from accepted standards of medical care or health care if the act or omission

complained of is an inseparable part of the rendition of medical services.” 185

S.W.3d at 848. The Marshalls’ claim that Charlotte’s unit was unsafe because

Belmont Village did not allow her to have a lock on her unit door does not allege an

act or omission that is “an inseparable part of the rendition of medical services” by

Belmont Village.

      For the above reasons, we conclude that the Marshalls’ claim does not involve

allegations of an alleged departure from accepted standards of “health care.”

      2.     Whether the claim concerns safety standards related to health care

      We next turn to Belmont Village’s argument that the Marshalls’ claim

nevertheless involves allegations of an alleged departure from accepted standards of

safety “directly related to health care.” Precedent from the Supreme Court of Texas

makes clear that there must be “a substantive nexus between the safety standards

allegedly violated and the provision of health care.” Ross, 462 S.W.3d at 504.

      In Ross, the court set forth a list of non-exclusive considerations to help courts

determine whether there is a substantive nexus between the safety standards

allegedly violated and the provision of health care:

      1.     Whether the alleged negligence occurred in the course of the
             defendant’s performing tasks with the purpose of protecting
             patients from harm;




                                          16
      2.     Whether the alleged injuries occurred in a place where patients
             were receiving care, so that the obligation of the provider to
             protect persons who require medical care was implicated;

      3.     Whether the plaintiff was seeking or receiving health care when
             the alleged injuries occurred;

      4.     Whether the plaintiff was providing or assisting in providing
             health care when the injuries occurred;

      5.     Whether the alleged negligence arises from safety standards that
             are part of the professional duties owed by the health care
             provider;

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

      7.     Whether the alleged negligence implicated safety-related
             requirements set for health care providers by governmental or
             accrediting agencies.

Ross, 462 S.W.3d at 505. When we examine these factors or considerations, we

focus on the essence of the cause of action. Bain v. Capital Senior Living Corp., No.

05-14-00255-CV, 2015 WL 3958714, at *3 (Tex. App.—Dallas June 30, 2015, pet.

denied) (mem. op.). The pivotal issue is whether the safety standards implicated the

defendant’s duties as a health care provider. See Ross, 462 S.W.3d at 505.

      Here, we note that factor four—whether the plaintiff was providing or

assisting in providing health care when the injuries occurred—and factor six—

whether an instrumentality involved was a type used in providing health care—do




                                         17
not apply. Furthermore, the analysis under factors five and seven are related and

should be considered together in this case. We discuss these factors in turn below.

             Factor 1: Whether the alleged negligence occurred in the course of
             the defendant’s performing tasks with the purpose of protecting
             patients from harm

      The parties vigorously contest this factor. Belmont Village correctly points

out that the gist of the Marshalls’ claim is that Belmont Village failed to provide

locks or adequate security for Charlotte in her unit. But the Marshalls contend that

their claim concerns the protection of Charlotte as a resident, not as a patient. The

Marshalls assert that Belmont Village’s safety and security obligations are related to

Charlotte’s capacity as a resident in an independent apartment, regardless of whether

she received care there or not, and that the alleged failures had nothing to do with

protecting “patients” from harm. The Marshalls also argue that Belmont Village’s

contract with Charlotte, and its exclusions, are significant here because the contract

language is probative of what services Belmont provided. We agree with the

Marshalls.

      The agreement expressly stated that its purpose was “to provide a statement

of services that [would] be furnished” to Charlotte as a resident. In two different

locations, it expressly excluded health care services from its list of provided services.

It stated, “Belmont Village shall not be responsible for furnishing or paying for any

health care items or services, including but not limited to” physicians’ services,


                                           18
nursing services, home health services, and private duty aides or attendants. The

agreement further stated that “Belmont Village does not assume responsibility for

oversight of such [health care] services.” The record further demonstrates that

Charlotte obtained health care from “outside service providers” at Belmont Village,

such as Altus Health Care and Memorial Hermann. Belmont Village was not

involved in providing these services.

      This evidence of services provided by Belmont Village is especially important

in the context of an assisted living facility because these facilities range from

apartment complexes that provide essentially no health care, like Belmont Village,

to full-service, nursing home-like facilities. The contract demonstrates that Belmont

Village did not intend to provide health care to Charlotte, and the entire record

further demonstrates that Belmont Village, in fact, did not provide such services.

      Belmont Village likewise failed to show that it had a special duty—different

from a general business—to a patient. A safety claim does not fall under Chapter 74

if “the safety standards at issue” are “the same standards many businesses generally

have . . . .” Reddic v. E. Tex. Med. Ctr. Reg’l Health Care Sys., 474 S.W.3d 672, 676

(Tex. 2015); see Ross, 462 S.W.3d at 503; Galvan v. Mem’l Hermann Hosp. Sys.,

476 S.W.3d 429, 432–33 (Tex. 2015). Belmont Village argues generally that it had

a duty to protect residents like Charlotte as part of providing health care; but, as we

discussed above, this contention is contradicted by its own carefully designed


                                          19
contract and practice of operating Belmont Village more like an apartment complex

than a nursing facility or health care provider.

      We conclude that this factor does not support a health-care nexus or does so

only slightly.

             Factor 2: Whether the alleged injuries occurred in a place where
             patients were receiving care, so that the obligation of the provider to
             protect persons who require medical care was implicated

      Belmont Village argues that, because the sexual assault occurred in

Charlotte’s unit, this factor supports a health-care nexus. The Marshalls point to

Houston Methodist Willowbrook Hospital v. Ramirez, a case in which the plaintiff,

a patient, slipped and fell in a hallway while walking from her primary care doctor’s

office to the radiology room. 539 S.W.3d 495, 500 (Tex. App.—Houston [1st Dist.]

2017, no pet.). This court held that, because the patient was “between the elevator

and the entry to the radiology department” and was therefore not receiving care at

the time of the fall, the second factor was not satisfied. Id.

      Nothing in the record reflects that Charlotte received medical care from

Belmont Village in her unit where the sexual assault occurred, much less that she

was receiving health care at the time she was sexually assaulted. See id. Moreover,

Belmont Village’s contract stated that it did not provide health care in a resident’s

unit. As discussed above, in light of these contractual provisions and other record

evidence, Belmont Village has not established that Charlotte was living at the facility


                                           20
in order to receive health care. Rather, Belmont Village provided personal care

assistance, and her medical needs were addressed by other parties.

       Therefore, we conclude that this factor does not support a health-care nexus.

              Factor 3: Whether the plaintiff was seeking or receiving health care
              when the alleged injuries occurred

       Nothing in the record indicates that Pringle was providing health care to

Charlotte when he sexually assaulted her. Yet, Belmont Village argues that, under

Rubio, its ongoing duty to protect residents from assault is health care and supports

a healthcare nexus. But “[a] patient’s claim against a medical provider for assault . . .

is not [a health care liability claim] if the only possible relationship between the

alleged improper conduct and the rendition of medical services or health care was

the setting in which the conduct took place.” Ross, 462 S.W.3d at 503 (citing

Loaisiga, 379 S.W.3d at 257). To conclude otherwise would render the other factors

meaningless. See id. Because Belmont Village has failed to demonstrate any

relationship between its employee’s improper conduct (or its own negligence) and

the rendition of medical services other than its assertion that it is a health care facility

that provided a setting for the sexual assault, we conclude that this factor does not

support a health-care nexus.




                                            21
             Factors 5&7: Whether the alleged negligence arises from or
             implicates safety standards that are part of the professional duties
             owed by the health care provider or are required by governmental or
             accrediting agencies

      Belmont Village asserts again that Rubio is determinative of these factors,

quoting the majority’s statement that the determination of the “nature and intensity”

of the care and supervision required of each nursing home resident “are judgments

made by professionals trained and experienced in treating and caring for patients and

the patient populations in their health care facilities.” 185 S.W.3d at 850.

      Belmont Village also contends that its duties to provide safety to residents like

Charlotte implicate an assisted living facility’s statutory obligation to maintain

quality of care by providing humane treatment and safe surroundings to residents.

See TEX. HEALTH & SAFETY CODE § 247.0011(2), (7). Similarly, Belmont Village

asserts that the standards and licensing requirements for assisted living facilities

includes keeping residents free from abuse, neglect, and exploitation. See 40 TEX.

ADMIN. CODE § 92.125(a)(3)(A), (E)((ii), (F).4 Belmont Village notes that “abuse”

is specifically defined to include “sexual abuse of a resident, including any

involuntary or nonconsensual sexual conduct that would constitute an offense under

Section 21.08, Penal Code (indecent exposure), or Chapter 22, Penal Code


4
      We note that these provisions were transferred to 26 TEX. ADMIN. CODE § 553.125
      effective May 1, 2019. We cite to the law as it existed when the trial court considered
      this issue and when the parties filed their briefing.

                                            22
(assaultive offenses), committed by the resident’s caregiver, family member, or

other individual who has an ongoing relationship with the resident.” Id. § 92.2(1).5

It further points out that assisted living facilities must ensure that their staff is trained

to report abuse, enforce residents’ rights, and provide safety measures to prevent

accidents and injuries. Id. § 92.41(a)(4)(A)(i), (v), (B)(iii).6

       The Marshalls respond that these factors weigh against applying Chapter 74

because, for these factors to be satisfied, Belmont Village must show that “regulatory

mandates” specific to assisted living facilities—and not some other general tort

duty—“would have been [its] reason for [the activity complained of].” Galvan, 476

S.W.3d at 432. That standard is not met if the standards “may also be the same

standards many businesses generally have . . . .” Id.

       Belmont Village does not cite to any specific standards applicable here that

create special duties or requirements for assisted living facilities that differ from a

general apartment complex. It instead relies on only general regulations compelling

assisted living facilities to provide for residents’ security. The supreme court has

held that evidence of such general safety standards does not implicate Chapter 74.

See Reddic, 474 S.W.3d at 676; Ross, 462 S.W.3d at 503.



5
       This provision was transferred to 26 TEX. ADMIN. CODE § 553.2(1) effective May
       1, 2019.
6
       These provisions were transferred to 26 TEX. ADMIN. CODE § 553.41 effective May
       1, 2019.
                                             23
      Reddic rejected a hospital’s argument that factors five and seven weighed in

Chapter 74’s favor because general regulations compelled it to keep the premises

safe. Reddic, 474 S.W.3d at 676. The supreme court noted that the plaintiff’s “claim

is for the hospital’s failing to properly inspect and maintain its floor mats in the

lobby, regardless of whether” the specific safety regulations were themselves met.

Id. The supreme court held:

      As for general safety standards such as federal regulations requiring
      hospitals to maintain facilities “to ensure an acceptable level of safety,”
      42 C.F.R. § 482.41(c)(2), we noted in Ross that hospital standards for
      floor maintenance “may also be the same standards many businesses
      generally have for maintaining their floors.” 462 S.W.3d at 503. We
      said that “[t]he pivotal issue in a safety standards-based claim is
      whether the standards on which the claim is based implicate the
      defendant’s duties as a health care provider, including its duties to
      provide for patient safety.” Id. at 505. Although hospitals are required
      by regulation to ensure an acceptable level of safety for those within its
      confines, the record does not show that the safety standards at issue here
      are related to the provision of health care by more than the location of
      Reddic’s fall being inside a hospital. That is, the record does not support
      a conclusion that safety standards regarding maintenance of the floor
      and mats where Reddic fell were substantively related to the safety of
      patients receiving health care or persons seeking health care.

Id. Here, as in Reddic, although Belmont Village is required to ensure an acceptable

level of safety for its residents, the record does not show that the safety standards

relevant to Charlotte’s assault are related to the provision of health care, other than

by showing that the assault occurred within the facility. Belmont Village has failed

to produce a record showing that the applicable facility standards are more than “the

same standards many businesses generally have . . . .” See id.

                                          24
      This Court likewise held in Ramirez that these factors only weigh in favor of

Chapter 74 if the defendant meets its burden to show that the plaintiff’s “claims

implicate any duties that are specific to health care providers.” Ramirez, 539 S.W.3d

at 500. References to general “safety[] and sanitation requirements,” such as a

general requirement to “provide a sanitary environment,” did not weigh in favor of

finding a health-care nexus. See id. at 499–500.

      The regulations that Belmont Village refer to are no different from those in

Ramirez or Reddic. Some are inapplicable. See, e.g., 40 TEX. ADMIN. CODE § 92.125

(“train[ing] to report abuse”).7 Others are merely general regulations that do not

differ from general standards of tort liability. See TEX. HEALTH & SAFETY CODE §

247.001 (requirement to provide “humane treatment” and “safe surroundings”); 40

TEX. ADMIN. CODE § 92.125 (requirement to keep a patient “free from physical and

mental abuse”).8 An apartment complex has those same duties under the general

standards of tort liability. See, e.g., Weingarten Realty Mgmt. Co. v. Liberty Mut.

Fire Ins. Co., 343 S.W.3d 859, 874 (Tex. App.—Houston [14th Dist.] 2011, pet.

denied) (“A landlord who retains the right to control the security and safety of the

premises owes a duty to a tenant’s employees to use ordinary care to protect the


7
      Effective May 1, 2019, see 26 TEX. ADMIN. CODE § 553.41(4)(A)(i) (requiring staff
      training on topic of “reporting of abuse”).
8
      This provision was transferred to 26 TEX. ADMIN. CODE § 553.125(a)(3) effective
      May 1, 2019.
                                          25
employees against an unreasonable and foreseeable risk of harm from the criminal

acts of third parties.”) (citing Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197

(Tex. 1995), and Exxon Corp. v. Tidwell, 867 S.W.2d 19, 22–23 (Tex. 1993)).

Belmont Village has not shown regulations that are unique to assisted living centers

that go beyond “the same standards” applicable to businesses generally. Nor has it

shown that compliance with those special standards caused the sexual assault. See

Galvan, 476 S.W.3d at 432.

      And, importantly, Belmont Village has not shown or provided a record that

establishes a healthcare nexus for the absence of a lock on the door of Charlotte’s

unit. See Brazos Presbyterian Homes, Inc. v. Rodriguez, 468 S.W.3d 175, 180 (Tex.

App.—Houston [14th Dist.] 2015, no pet.). The contract provides in pertinent part:

      For your safety and comfort, Belmont Village’s staff must be permitted
      to enter your Residence to perform basic housekeeping services,
      respond to emergencies, deliver services, and make repairs and
      improvements, as Belmont Village deems necessary or advisable.
      Therefore, additional locks are not permitted on the entrance door to
      your residence.

      Nothing in the record establishes that the absence of a door lock was necessary

to provide health care to Charlotte. Neither the contract, nor any evidence, describes

the referenced “emergencies” or “services.” See Ramirez, 539 S.W.3d at 498

(holding that party moving for dismissal has burden of proving that cause of action

is health care liability claim and that, if record does not affirmatively make this

showing, the statutory expert-report requirement does not apply).
                                         26
      Finally, although we recognize that the extent to which expert testimony from

a health care professional is necessary to support a plaintiff’s claim is not

determinative of this issue, it is nevertheless a relevant consideration in deciding

whether a safety-standard claim is a health care liability claim. See Tex. W. Oaks

Hosp., 371 S.W.3d at 182; Pallares v. Magic Valley Elec. Co.-op., Inc., 267 S.W.3d

67, 74–75 (Tex. App.—Corpus Christi 2008, pet. denied). Belmont Village’s alleged

failure here does not require an expert to explain, and nothing in the record indicates

that an expert report would aid the trial court in determining whether the Marshalls’

claim is meritorious. See Ross, 462 S.W.3d at 502 (“The purpose of the TMLA’s

expert report requirement is not to have claims dismissed regardless of their merits,

but rather it is to identify and deter frivolous claims while not unduly restricting a

claimant’s rights. And the Legislature did not intend for the expert report

requirement to apply to every claim for conduct that occurs in a health care

context.”).

      In sum, the Ross factors do not weigh in favor of Chapter 74’s applicability.

Accordingly, we conclude that the record in this case does not show a substantive

nexus between the Marshalls’ claim relating to the safety and security of Charlotte’s

unit and Belmont Village’s providing of health care. See Ross, 462 S.W.3d at 505;

Brazos Presbyterian Homes, Inc., 468 S.W.3d at 180. In light of our conclusion that

Belmont Village failed to establish that the Marshalls’ claim concerns health care or


                                          27
safety standards related to health care, we need not address the third element of a

TMLA claim—whether the complained-of omission proximately caused the injury

to the claimant. See Bioderm, 426 S.W.3d at 758 (“No one element, occurring

independent of the other two, will recast a claim into a health care liability claim.”).

And, because Belmont Village failed to meet its burden to affirmatively demonstrate

that the Marshalls’ claim is a health care liability claim, the expert report requirement

does not apply, and the trial court did not abuse its discretion in denying Belmont

Village’s motion to dismiss. See Ross, 462 S.W.3d at 505; Ramirez, 539 S.W.3d at

498.

                                      Conclusion

       We overrule Belmont Village’s sole issue and affirm the trial court’s order

denying Belmont Village’s motion to dismiss.




                                                Richard Hightower
                                                Justice

Panel consists of Justices Kelly, Hightower, and Countiss.




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