Affirmed and Memorandum Opinion filed February 27, 2020.




                                     In The

                     Fourteenth Court of Appeals

                              NO. 14-18-00868-CV

           HARRIS COUNTY HOSPITAL DISTRICT, Appellant

                                        V.
                           NINA MCNEW, Appellee

                    On Appeal from the 151st District Court
                            Harris County, Texas
                      Trial Court Cause No. 2017-55476

                    MEMORANDUM OPINION
      In a single issue, appellant Harris County Hospital District (“the Hospital”)
contends the trial court erred by denying its motion to dismiss appellee Nina
McNew’s suit under the Texas Medical Liability Act (“TMLA”). For the reasons
below, we affirm.

                                 BACKGROUND

      McNew worked as a clerical employee for Westat, a company that performs
statistics-related research for the federal government. Describing her job’s purpose
as “solely to record statistical data,” McNew said she would audit patients’
emergency room charts and identify those patients with a history of drug abuse.

      In 2006, McNew was based at the Lyndon B. Johnson Hospital in northeast
Houston. McNew worked in a private administrative office that was inaccessible
to patients. Alleging that her office was located adjacent to a “radiation-emitting
device,” McNew asserts that radiation exposure caused her to develop an
aggressive form of breast cancer.

      McNew sued the Hospital in August 2017 and asserted a claim for
negligence. In June 2018, the Hospital filed a motion to dismiss McNew’s claim
under the TMLA and attached as evidence (1) McNew’s original petition; (2) the
Hospital’s answer; and (3) the Hospital’s x-ray registration, radioactive material
license, and radiographic imaging operating and safety program. The Hospital
supplemented its motion with McNew’s deposition.

      After an oral hearing, the trial court denied the Hospital’s motion to
dismiss.1 The Hospital timely appealed.

                                            ANALYSIS

      In a single issue, the Hospital challenges the trial court’s denial of its motion
to dismiss.      Arguing that McNew’s cause of action constitutes a health care
liability claim under the TMLA, the Hospital asserts the claim should have been
dismissed for McNew’s failure to comply with the TMLA’s expert-report
requirement.

I.    Standard of Review and Governing Law

      A ruling on a motion to dismiss under the TMLA generally is reviewed for
      1
          A transcript of the oral hearing was not included with the appellate record.

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an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873, 875 (Tex. 2001). But we review de novo whether a particular
claim constitutes a health care liability claim. See, e.g., Bioderm Skin Care, LLC v.
Sok, 426 S.W.3d 753, 757 (Tex. 2014); Brazos Presbyterian Homes, Inc. v.
Rodriguez, 468 S.W.3d 175, 177 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
In doing so, we consider the entire record including the pleadings, motions and
responses, and any evidence attached to the motions. Ahmadi v. Moss, 530 S.W.3d
754, 758 (Tex. App.—Houston [14th Dist.] 2017, no pet.). In determining the
question, we examine the underlying nature and gravamen of the claim, rather than
the way it is pleaded. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex.
2004). The burden is on the party seeking dismissal to prove the plaintiff’s claim
is a health care liability claim. Houston Methodist Willowbrook Hosp. v. Ramirez,
539 S.W.3d 495, 498 (Tex. App.—Houston [1st Dist.] 2017, no pet.). If a patient
asserts a claim against a physician or health care provider based on facts
implicating the defendant’s conduct during the patient’s care, treatment, or
confinement, then a rebuttable presumption arises that the patient’s claim is a
health care liability claim, and the plaintiff bears the burden of rebutting the
presumption. Rio Grande Valley Vein Clinic, P.A. v. Guerrero, 431 S.W.3d 64, 65
(Tex. 2014) (per curiam).
      Health care liability claims are subject to the TMLA’s provisions, including
its expert-report requirement.       See Tex. Civ. Prac. & Rem. Code Ann.
§§ 74.001(a)(13), 74.351(a) (Vernon 2017); see also Lout v. The Methodist Hosp.,
469 S.W.3d 615, 616-17 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Under
the TMLA, a plaintiff asserting a health care liability claim must serve an expert
report within 120 days of the filing of an answer by any defendant physician or
health care provider. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). If the
plaintiff fails to serve an expert report for claims made under this chapter, the trial
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court must dismiss the plaintiff’s claims on the defendant’s motion.             Id.
§ 74.351(b)(2).

      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.

Id. § 74.001(a)(13). Arguing that McNew’s negligence claim constitutes a health
care liability claim, the Hospital asserts that in making the claim McNew “alleg[es]
a departure from accepted standards of safety.”

      The TMLA does not define “safety” and the Supreme Court of Texas has
construed the word according to its common meaning as “the condition of being
‘untouched by danger; not exposed to danger; secure from danger, harm or loss.’”
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex. 2005)
(quoting Black’s Law Dictionary 1336 (6th ed. 1990)). A safety-standards claim
need not be directly related to the provision of health care to qualify as a health
care liability claim. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 504
(Tex. 2015). However, for a safety-standards claim to be a health care liability
claim, “there must be a substantive nexus between the safety standards allegedly
violated and the provision of health care.” Id. That nexus must be more than a
“but for” relationship. Id.

      The Ross court stated 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. A safety-standards claim does not necessarily fall

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within the TMLA’s provisions merely because the underlying occurrence took
place in a health care facility, the claim is against a health care provider, or both.
Id. at 503.

       The supreme court in Ross promulgated seven non-exclusive considerations
to employ when analyzing whether a safety-standards claim is a health care
liability claim:

       1.     Did the defendant’s alleged negligence occur while the defendant was
              performing tasks with the purpose of protecting patients from harm?
       2.     Did the injuries occur in a place where patients might be during the
              time they were receiving care, so that the obligation of the provider to
              protect persons who require special, medical care was implicated?
       3.     At the time of the injury was the claimant in the process of seeking or
              receiving health care?
       4.     At the time of the injury was the claimant providing or assisting in
              providing health care?
       5.     Is the alleged negligence based on safety standards arising from
              professional duties owed by the health care provider?
       6.     If an instrumentality was involved in the defendant’s alleged
              negligence, was it a type used in providing health care?
       7.     Did the alleged negligence occur in the course of the defendant’s
              taking action or failing to take action necessary to comply with safety-
              related requirements set for health care providers by governmental or
              accrediting agencies?

Id. at 505.

       In Ross, the plaintiff sued the defendant hospital after she slipped and fell in
the hospital’s lobby as the floor was being cleaned and buffed.            Id. at 499.
Concluding the plaintiff did not assert a health care liability claim, the supreme
court noted that (1) the plaintiff was not seeking, receiving, or providing health
care when she fell; (2) the area where the plaintiff fell was not where patients
would be during treatment; and (3) the record did not show the cleaning and
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  buffing of the floor were for the purpose of protecting patients. Id. at 505. The
  supreme court also emphasized that there was no evidence that (1) the alleged
  negligence “was based on safety standards arising from professional duties owed
  by the hospital as a health care provider,” (2) “the equipment or materials used to
  clean and buff the floor were particularly suited to providing for the safety of
  patients,” or (3) the cleaning and buffing were “to comply with a safety-related
  requirement set for health care providers by a governmental or accrediting
  authority.” Id.; see also KSADD, LLC v. Williams, No. 05-15-00776-CV, 2016
  WL 4385794, at *3 (Tex. App.—Dallas Aug. 17, 2016, no pet.) (mem. op.) (the
  plaintiff sued after she was knocked to the ground by malfunctioning automatic
  doors at surgery center’s entrance; concluding the claim did not implicate the
  TMLA, the court reasoned that the “alleged negligence due to the doors
  malfunctioning was not based on safety standards arising from professional duties
  [the defendant] owed as a health care provider”).

II.     Application

        Here, to support her negligence claim, McNew asserts that the Hospital
  breached its duty by “placing [McNew] in an office that was immediately adjacent
  to a powerful x-ray machine that emitted powerful radiation.”

        Our analysis of this claim begins with the seven Ross factors discussed
  above. See Ross, 462 S.W.3d at 505. Three of these factors clearly weigh against
  the conclusion that McNew’s claim implicates the TMLA:

        •     First, McNew’s alleged injuries did not occur in a place where
              patients might be while receiving care; instead, she was in an
              administrative office that was not accessible to patients. See id.
        •     Second, at the time of the alleged injury, McNew was not seeking or
              receiving health care.
        •     Third, McNew was not providing or assisting in providing health care
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              at the time she allegedly was injured. Rather, as she stated in her
              deposition, she was performing statistics-related research for a
              government-funded research project and had “no employment
              relationship” with the Hospital. See Kindred Healthcare, Inc. v.
              Morales, 499 S.W.3d 475, 480 (Tex. App.—Houston [1st Dist.] 2016,
              no pet.) (rejecting the defendant’s “sweeping conception” that
              maintenance worker repairing drain was assisting in providing health
              care because “functioning drains are critical to hospital hygiene”);
              Brazos Presbyterian Homes, Inc., 468 S.W.3d at 176, 179 (employee
              of third-party cleaning company was not providing or assisting in
              providing health care to patients).

One of the remaining Ross factors examines whether the instrumentality involved
in the alleged negligence was “a type used in providing health care.” Ross, 462
S.W.3d at 505.       Based on the limited evidence and briefing addressing the
instrumentality in question, the answer to this factor is indeterminate. It is unclear
whether the instrumentality at issue was used for the provision of health care, for
research, or for some other purpose.

      Two Ross factors examine whether the alleged negligence (1) was based on
safety standards arising from professional duties owed by the health care provider,
or (2) occurred in the course of the defendant’s taking action or failing to take
action necessary to comply with safety-related requirements set for health care
providers by governmental or accrediting agencies. Id. Addressing these factors,
the Hospital points to the following business records it filed in the trial court:
(1) “Department of State Health Services Certificate of X-Ray Registration;”
(2) “Department of State Health Services Radioactive Material License;” and
(3) “Operating and Safety Program for Radiographic Imaging.”

      The Certificate of X-Ray Registration mandates that the Hospital comply
with eight provisions in the Texas Administrative Code.2 One of these provisions

      2
          These provisions are entitled as follows: Texas Administrative Code §§ 289.203
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specifically regulates “radiation machines in the healing arts,” with “healing arts”
defined as “[a]ny system, treatment, operation, diagnosis, prescription, or practice
for the ascertainment, cure, relief, palliation, adjustment, or correction of any
human disease, ailment, deformity, injury, or unhealthy or abnormal physical or
mental condition.” See Tex. Admin. Code Ann. § 289.227(a), (e)(41). Another
provision regulates dental radiation machines.              See id. § 289.232(a).         The
remaining six provisions apply generally to any person who receives, possesses,
uses, owns, or acquires radiation-emitting machines. See id. §§ 289.203(a), .204,
.205, .226(a)(2), .228(a), .231(b)(1).

       Without more than a tentative identification regarding the type of machine
that allegedly caused McNew’s injuries, we cannot determine whether the machine
was governed by requirements specific to health care providers or those generally
applicable to any person possessing radiation-emitting machines. Likewise, we
cannot determine whether the alleged breach implicates standards or requirements
specific to health care providers. A claim alleging excessive radiation exposure is
not per se based on safety standards arising from professional duties owed by a
health care provider.

       Finally, the last factor in our analysis examines whether the alleged
negligence occurred while the defendant was performing tasks with the purpose of
protecting patients from harm. See Ross, 462 S.W.3d at 505. As discussed above,
the evidence does not identify the type of machine that allegedly caused McNew’s


(“Notices, Instructions, and Reports to Workers; Inspections”), .204 (“Fees for Certificates of
Registration, Radioactive Materials Licenses, Emergency Planning and Implementation, and
Other Regulatory Services”), .205 (“Hearing and Enforcement Procedures”), .226 (“Registration
of Radiation Machine Use and Services”), .227 (“Use of Radiation Machines in the Healing
Arts”), .228 (“Radiation Safety Requirements for Industrial Radiation Machines”), .231
(“General Provisions and Standards for Protection Against Machine Produced Radiation”), .232
(“Radiation Control Regulations for Dental Radiation Machines”).

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injuries or its manner of use at the time the injuries occurred.       Without this
evidence, we cannot determine which tasks the Hospital was performing or their
purpose. Therefore, these Ross factors are indeterminate due to the absence of
relevant evidence.

      Because McNew did not assert a claim based on facts implicating the
Hospital’s conduct during any care, treatment, or confinement of McNew, no
rebuttable presumption arose that McNew’s claim is a health care liability claim,
so the Hospital bore the burden of proving that McNew’s claim is a health care
liability claim. See Houston Methodist Willowbrook Hosp., 539 S.W.3d at 498;
Rio Grande Valley Vein Clinic, P.A., 431 S.W.3d at 65. As our analyses of the
Ross factors show, the Hospital did not carry this burden. Therefore, the trial court
did not err by denying the Hospital’s motion to dismiss.

                                   CONCLUSION

      We overrule the Hospital’s sole appellate issue and affirm the trial court’s
September 17, 2018 order denying the Hospital’s motion to dismiss.




                                       /s/       Meagan Hassan
                                                 Justice


Panel consists of Chief Justice Frost and Justices Wise and Hassan.




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