                                                                                   ACCEPTED
                                                                               12-14-00220-CV
                                                                  TWELFTH COURT OF APPEALS
                                                                                TYLER, TEXAS
                                                                          10/2/2015 8:27:19 AM
                                                                                     Pam Estes
                                                                                        CLERK

              DOCKET NUMBER I2.14.OO22OCV

             IN THE COURT OF APPEALS           FILED IN
                                        12th
FOR THE TWELFTH COURT OF APPEALS DISTRICT  OFCOURT
                                               TEXASOF APPEALS
                                             TYLER, TEXAS
                  AT TYLE& TEXAS
                                                      10/2/2015 8:27:19 AM
                                                             PAM ESTES
                                                               Clerk
         EAST TEXAS MEDICAL CENTER GILMER,

                            Appellant

                            VERSUS

                       BIRDER PORTER

                            Appellee

        Appealed from the 115rH Judicial District Court of
                     Upshur County, Texas.


 APPELLEE'S SUPPLEMENTAL BRIEF ON APPLICATION OF
        ^RO,S^S
                V. ST. LUKE'S EPISCOPAL HOSPITAL


                       Respectfully Submitted by:

                       THE BERNOUD

                       By:
                       Michael L. Bernoudy
                       Texas Bar No.
                       2400 W. Grand A
                       Marshall, TX75670
                       Telephone: (903) 935-4223
                       Fax: (903)935-4228
                       MLBj r@bernoudylawfirm.com
                       www. bernoudylawfi rm.com
                       ATTORNEY FOR APPELLEE
                               TABLE OF CONTENTS
                                                         1.
Table of Authorities ..
                                                         2'
Summary of Argument       ..
                                                         3'
Argument
                                                         5'
Conclusion and   PraYer
Certificates of Service and Compliance   "'        """   6'
                             TABLE OF AUTHORITIES

                                                                Page

Statutes

Texas Civil Practice and Remedies Code Section   7a.001(aX13)   3


Case law

Loaisiga v. Cerda,
379 S.W.3d248,257    (Tex.20l2)                                 4

Ross v. St. Luke's Episcopal Hosp.,
462 S.W.3d496   (Tex.2015)                                      3
                               SUMMARY OF ARGUMENT


      Under Ross for a safety standards-based claim to be a Healthcare Liability Claim

there must be a substantive nexus between the safety standards allegedly violated and the

provision   of   healthcare.   The Texas Supreme Court found in          ^Ross   that   the

cleaning/mopping    of floors did not have the necessary     nexus   to the provision of
healthcare. Applying Ross the case at bar likewise would not be a Healthcare Liability

Claims.




                                           2
                                       ARGUMENT

APPELLEE'S CLAIMS ARE NOT HEALTHCAKE LIABILITY CLAIMS UNDER ROSS

        By order dated August 6,2015 this Honorable Court ordered the parties to apply

Ross   y. St. Luke's Episcopal Hosp.,462 S.W.3d496 (Tex.2015) to determine              whether

this case would be a Healthcare Liability Claims as defined by Section 7a.001(a)(13) of

the Texas Civil Practice and Remedies      Code. As explained hereafter,        Ross makes it

clear that the case at bar is not a Healthcare Liability Claim.

        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.

rEx. CIV. PRAC. & REM. CODE $ 74.001(a)(13)

        -Ross   involved a slip and fall that occurred while the complaining party was

visiting a friend at the hospital. The floors were being cleaned and buffed at the time.

The complainant slipped and fell causing          injury.   The case at bar also involves       a


complainant who was not a patient and slipped and fell on a wet floor.

        In Ross, the hospital advanced trvo positions in support of the lower courts' rulings

and its assertion that Ross's claim is an HCLC. First,      it   addressed slip and   fall claims

generally, and asserted that any slip and fall event within a hospital is directly related to

health care because it necessarily is related to the safety of patients. Second, it focused on

Ross's claim specifically and argued that her claim is related to health care because she



                                              a
                                              J
alleged the hospital breached standards applicable to maintaining a safe environment for

patients. The Texas Supreme Court disagreed with both positions.

       As to the hospital's first contention, a safety standards-based claim does not come

within the TMLA's provisions just because the underlying occurence took place in          a


healthcare facility, the claim is against a healthcare provider, or both. See Loaisiga    v.


Cerda, 379 S.W.3 d 248, 257 (T ex. 2012).

       As to the second contention, Ross alleged that the hospital failed to       exercise

reasonable care in making the floor safe. The standard Ross said the hospital breached

regarding maintenance    of its floor may also be the same     standards many businesses

generally have for maintaining their floors. The hospital didn't claim, nor did the record

show, that the area where Ross fell was a patient care area or an area where patients

possibly would be in the course of the hospital's providing health care services to them.

Nor did the hospital reference support in the record for the position that the area had to

meet particular cleanliness or maintenance standards related to the provision     of health

care or patient safety. Ross at503

       The Court concluded that the safety standards referred to in the definition are

those that have a substantive relationship with the providing of medical or health care.

And   if it were not so, the broad meaning of "safety" would afford defendant health care
providers a special procedural advantage in the guise of requiring plaintiffs to file expert

reports in their suits regardless of whether their cause of action implicated the provision

of medical or healthcare. For a safety standards-based claim to be an HCLC there must




                                             4
be a substantive nexus between the safety standards allegedly violated and the provision

of health care. -Rass at 504

         Likewise, in the case at bar there is no substantive nexus between the absence of   a


"wet floor" sign in the emergency room admittance desk and the providing of healthcare.


                                 CONCLUSION/PRAYER

         The facts in Ross are nearly identical to those in this case. This Court should rule

as did the Ross   court. Appellee's claims in this maffer have no nexus to the rendering of

healthcare services and would not require an expert report as provided for in Tex. Civ.

Prac.   & Rem.Code Chapter 74. Thejudgment of the trial court was coffect in its entirety

and should be AFFIRMED by this Honorable Court.
                               CERTIFICATE OF SERVICE

       I hereby certiff that a copy of the foregoing pleading was delivered via facsimile

at (214) 754-0ggg and regular mail to Russell G. Thornton on this           Jg1/    day of

  f   L{. P^       ,201s'




                          CERTIFICATE OF COMPLIAI\iCE


       Relying on the word count function in the word processing software used to

produce this document,    I   certifu that the number of words in this reply (excluding any

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index   of authorities, statement of the caseo statement of     issues presented,

statement   of jurisdiction, statement of procedural history, signature, proof of   service,

certification, certificate of compliance      appendix) is 1035.




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