Seton Family of Hospitals, D/B/A Seton Medical Center v. Beverly J. Haywood

ACCEPTED

03-13-00817-CV

5417728

THIRD COURT OF APPEALS

AUSTIN, TEXAS

June 9, 2015 5/26/2015

5608 Parkcrest Drive, 2:14:36 PM

Suite 200

JEFFREY D. KYLE

Austin, Texas 78731

CLERK

512.660.5960 main

512.660.5979 fax

www.rcmhlaw.com

RECEIVED IN

3rd COURT OF APPEALS

Emily J. Davenport

AUSTIN, TEXAS

512.660.5974 direct

edavenport@rcmhlaw.com 5/26/2015 2:14:36 PM

JEFFREY D. KYLE

May 26, 2015 Clerk

Jeffrey D. Kyle, Clerk

Court of Appeals, Third District of Texas

P.O. Box 12547

Austin, Texas 78711-2547

Re: Cause No. 03-13-00817-CV; Seton Family of Hospitals, d/b/a Seton Medical

Center v. Beverly J. Haywood; In the 3rd Court of Appeals

Dear Mr. Kyle:

Appellant files this letter brief pursuant to Texas Rule of Appellant Procedure 38.7,

in response to Appellee’s letter dated May 11, 2015, discussing the Ross opinion.

Ross v. St. Luke’s Hosp., No. 13-0439, 2015 WL 20009744 (Tex. May 1, 2015). A

copy of the opinion is attached.

In Ross, a hospital visitor sued the hospital and a maintenance services company

over a slip-and-fall that occurred in the hospital lobby. Id., at 1. The claimant fell

on an area of floor that was being cleaned and buffed as she was exiting the

hospital. Id. The Court determined that the claim was not a health care liability

claim because the record did not demonstrate a substantive relationship between

the safety standards breached – maintenance of the floor inside the lobby exit doors

– and the provision of health care. Id.

In reaching its decision, the Court held that although safety claims need not be

directly related to health care for the Texas Medical Liability Act (“TMLA”) to

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

violated and the provision of health care.” Id. at 6; TEX. CIV. PRAC. & REM. CODE

§74.001(a)(13) (defining “health care liability claim”). The Court identified seven

non-exclusive considerations for analyzing whether a claim is substantively related

to the defendant’s provision of health care: (1) Did the alleged negligence of the

defendant occur in the course and scope of the defendant’s 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

Jeffrey D. Kyle

May 26, 2015

Page 2

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. On balance those factors show a

substantial relationship between Haywood’s claim and the provision of health care.

Ross, 2015 WL 20009744, at *6.

Haywood’s claim satisfies the first, second and fifth factors in Ross. Haywood

asserts that the events – allegedly negligent operation of an automatic hospital unit

door – occurred while a Seton employee was acting in the course and scope of her

duties. (CR 4). The employee was a nurse, and the events occurred in hospital’s

emergency department, which is an area of the hospital where patients receive

treatment. (CR 4). (RR 7). The incident implicates professional duties of safety.

Hospital services include those services required to meet patients’ fundamental

needs, such as safety. Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527

(Tex. 2011) (finding that a patient’s slip and fall on a wet bathroom floor was a

health care liability claim and directly related to health care); St. David’s

Healthcare Partnership, L.P., LLP v. Esparza, 348 S.W.3d 904, 906 (Tex. 2011)

(finding that permitting lubricating gel to fall and remain on the floor is inseparable

from procedures for the disposition of gloves in a hospital and arises from accepted

standards that should have been performed by the hospital during the patient’s

care). A nurse’s safe operation of a hospital unit door in the hospital emergency

department implicates professional duties of safety owed to Seton’s patients. Ollie,

342 S.W.3d at 527 (relating to safety); see also CHCA Bayshore, LP v. Salazar,

2013 WL 1907888, at *5 (Tex.App.—Houston [14th Dist.] 2013, pet. denied)

(applying the TMLA to an employee injury claim involving a malfunctioning

automatic hospital door).

The third factor in Ross is not at issue. Haywood was not receiving health care

when the event allegedly occurred. Ross, 2015 WL 20009744, at *6. However,

Haywood’s status as a non-patient does not exclude application of the TMLA.

Texas West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012).

Jeffrey D. Kyle

May 26, 2015

Page 3

It is unknown whether the fourth factor is met. Ross, 2015 WL 20009744, at *6.

Haywood was not providing health care when the event occurred. Whether she was

assisting the providers by her presence as a visitor has not been addressed.

The sixth factor is satisfied. Ross, 2015 WL 20009744, at *6. The instrumentality,

an automatic hospital unit door, is subject to hospital licensing regulations to

facilitate safe transfer and movement of patients and nurses. See e.g., 25 TEX.

ADMIN. CODE §133.162(d)(2)(A)(v)-(ix) (regulating doors, including corridor

doors); id. at §133.163(f)(2) (requiring that details and finishes in emergency suites

comply with section 133.162(d)(2)); 25 TEX. ADMIN. CODE §133.162(d)(1)(E)

(requiring compliance with TEX. HEALTH & SAFETY CODE §256.002(b)(8)); TEX.

HEALTH & SAFETY CODE §256.002(b)(8) (requiring hospitals to adopt and ensure

implementation of policy to control risk of injury to patients and nurses associated

with the lifting, transferring, repositioning, or movement of patients, partly through

hospital architecture).

Automatic hospital doors are hospital equipment, and alleged departures from

standards of safety in their use fall within the definition of health care liability

claim. TEX. CIV. PRAC. & REM. CODE §74.001(a)(13); CHCA Bayshore, LP v.

Salazar, 2013 WL 1907888, at *5 (Tex.App.—Houston [14th Dist.] 2013, pet.

denied) (finding an employee’s claim that she was injured by a malfunctioning

automatic door was a health care liability claim because it implicated standards of

safety, including proper training, equipment and supervision of hospital

employees).

The seventh consideration in Ross is met to the extent Haywood’s claim asserts

that Seton failed to institute policy or properly train the nurse who activated the

automatic door. Ross, 2015 WL 20009744, at *6. See 25 TEX. ADMIN. CODE

§133.142(a)(3)(B) and (C) (requiring hospitals to develop, implement and enforce

safety policies and procedures and establish safety training and continuing

education); Ollie, 342 S.W.3d at 527 (regarding patient safety); Diversicare

General Partner, Inc. v. Rubio, 185 S.W.3d 842, 850 (Tex. 2005). Although

Haywood pleads that Seton is vicariously liable for the nurse, Haywood did not sue

the nurse individually. (CR 3). The focus is on the essence of the claim and not the

artfulness of the claimant’s pleading. Diversicare, 185 S.W.3d at 851.

Jeffrey D. Kyle

May 26, 2015

Page 4

According to the analysis in Ross, there is a substantive nexus between the safety

standards that Haywood alleges were violated (operation of a hospital unit door by

a hospital employee acting in the course and scope of her duties) and the provision

of health care (providing for safety of patients on a hospital unit). The fact that an

incident could have occurred outside a hospital does not preclude it from being a

health care liability claim. Ross, 2015 WL 20009744, at *6; see also Diversicare

General Partner, Inc. v. Rubio, 185 S.W.3d 842, 850 (Tex. 2005) (“The obligation

of a health care facility to its patients is not the same as the general duty a premises

owner owes to invitees.”).

Based on the foregoing analysis, Appellee’s claims against Appellant alleging a

departure from accepted standards of safety by Appellant’s registered nurse

concerning the nurse’s use and operation of the hospital unit door in question are

safety standards-based claims that are substantively related to the provision of

health care. Accordingly, this is a health care liability claim subject to the

provisions of the TMLA. Appellee failed to satisfy the 120-day expert report

requirement. As such, dismissal of her claim is mandatory and the trial court erred

by denying Seton’s motion to dismiss.

Respectfully Submitted,

/s/ Emily J. Davenport

Emily J. Davenport

edavenport@rcmhlaw.com

State Bar No. 24012501

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing brief has been compiled using a computer

program in Word with 14-point font conventional typeface for the body of the

brief. Excluding the portions of the brief exempted pursuant to Rule 9.4 of the

Texas Rules of Appellate Procedure, this brief contains 1,283 words.

/s/ Emily J. Davenport

Emily J. Davenport

Jeffrey D. Kyle

May 26, 2015

Page 5

CERTIFICATE OF SERVICE

Pursuant to Rule 9.5 of the Texas Rules of Appellate Procedure, I hereby

certify that a true and correct copy of the foregoing instrument has been sent by e-

mail to the following counsel of record on this 26th day of May, 2015:

Robert C. Alden

Byrd, Davis Furman & Alden, LLP

707 West 34th St.

Austin, TX 78705

ralden@byrddavis.com

/s/ Emily J. Davenport

Emily J. Davenport

Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)

58 Tex. Sup. Ct. J. 766

Actions and Proceedings

2015 WL 2009744

When a safety standards-based claim is made

NOTICE: THIS OPINION HAS NOT BEEN against a health care provider, the Medical

RELEASED FOR PUBLICATION IN THE Liability Act (TMLA) does not require the

PERMANENT LAW REPORTS. UNTIL RELEASED, safety standards to be directly related to the

IT IS SUBJECT TO REVISION OR WITHDRAWAL. provision of health care in order for the claim to

Supreme Court of Texas. be a health care liability claim (HCLC). Tex.

Civ. Prac. & Rem. Code Ann. § 74.001(a)(13).

Lezlea Ross, Petitioner,

v.

St. Luke’s Episcopal Hospital, Respondent 2 Cases that cite this headnote

No. 13–0439 | Argued November 5, 2014 | OPINION

DELIVERED: May 1, 2015

[2]

Courts

Appellate jurisdiction of Supreme Court in

Synopsis

general

Background: Visitor brought action against hospital on

premises liability theory after she slipped and fell near

Inconsistent appellate court interpretations of the

lobby exit doors. The 215th District Court, Harris County,

Supreme Court case of Texas West Oaks Hosp.,

dismissed action, finding that visitor’s claim was a health

LP v. Williams, concerning the degree to which

care liability claim (HCLC) requiring service of expert

a safety standards-based claim must be related to

report. The Court of Appeals affirmed, 2013 WL

health care in order to qualify as a health care

1136613. Visitor’s petition for review was granted.

liability claim (HCLC) within ambit of the

Medical Liability Act (TMLA), conferred

jurisdiction on Supreme Court to address the

Holdings: The Supreme Court, Johnson, J., held that: issue in case in which hospital visitor’s

slip-and-fall premises liability claim was

[1]

inconsistent lower court interpretations of Supreme dismissed upon finding that it was an HCLC

Court case conferred jurisdiction on Supreme Court to requiring service of a medical expert report.

address the issue; Tex. Civ. Prac. & Rem. Code Ann. §

74.001(a)(13); Tex. Gov’t Code Ann. §

[2]

visitor raised issue in her appellate brief before Court 22.225(c).

of Appeals to degree necessary to preserve it for review

before Supreme Court; and

Cases that cite this headnote

[3]

slip-and-fall claim was not an HCLC simply because

the fall occurred in a hospital.

[3]

Courts

Reversed and remanded.

Appellate jurisdiction of Supreme Court in

general

Lehrmann, J., issued concurring opinion in which Devine,

J., joined.

For purposes of conferring jurisdiction upon

Supreme Court, one lower court holds

“differently” from another when there is

inconsistency in their decisions that should be

West Headnotes (17) clarified to remove unnecessary uncertainty in

the law. Tex. Gov’t Code Ann. § 22.001(e).

[1]

Health

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Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)

58 Tex. Sup. Ct. J. 766

Cases that cite this headnote

[7]

Statutes

Language and intent, will, purpose, or policy

[4]

Appeal and Error

Scope and effect In determining legislative intent, courts look

first and foremost to the language of the statute.

In her appellate brief on appeal to Court of

Appeals, visitor challenged trial court finding

that her slip-and-fall premises liability claim Cases that cite this headnote

against hospital was in fact a health care liability

claim (HCLC) requiring service of medical

expert report to a degree necessary to preserve

the issue for review before the Supreme Court; [8]

in her original appellate brief, visitor discussed Statutes

the purpose of the Medical Liability Act Plain Language; Plain, Ordinary, or Common

(TMLA) and asserted that classifying her claim Meaning

as an HCLC would conflict with the Statutes

Government Code, and the Court of Appeals Defined terms; definitional provisions

implicitly determined that visitor’s citations and Statutes

argument were enough to avoid waiver because Context

it addressed the issue. Tex. Civ. Prac. & Rem. Statutes

Code Ann. § 74.001(a)(13); Tex. R. App. P. Relation to plain, literal, or clear meaning;

38.1(I). ambiguity

Courts construe a statute’s words according to

Cases that cite this headnote their plain and common meaning unless they are

statutorily defined otherwise, a different

meaning is apparent from the context, or unless

such a construction leads to absurd or

nonsensical results.

[5]

Appeal and Error

Insufficient discussion of objections

Cases that cite this headnote

Failure to provide citations or argument and

analysis as to an appellate issue may waive it.

Tex. R. App. P. 38.1(I).

[9]

Statutes

Cases that cite this headnote Context

Determining legislative intent requires courts to

consider the statute as a whole, reading all its

language in context, and not reading individual

[6]

Appeal and Error provisions in isolation.

Cases Triable in Appellate Court

Review of lower court’s construction of statute Cases that cite this headnote

is de novo, and goal of appellate court is to give

effect to legislative intent.

[10]

Cases that cite this headnote Health

Affidavits of merit or meritorious defense;

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)

58 Tex. Sup. Ct. J. 766

expert affidavits

That visitor happened to slip and fall inside a

hospital, near the hospital’s lobby exit door, did

[13]

not make her premises liability claim a health Statutes

care liability claim (HCLC) requiring service of General and specific terms and provisions;

medical expert report pursuant to Medical ejusdem generis

Liability Act (TMLA); the cleaning and buffing

of the floor near the exit doors was not for the Where the more specific items of a statute, (a)

purpose of protecting patients, the area where and (b), are followed by a catchall “other,” (c),

visitor fell was not one where patients might be the “ejusdem generis doctrine” teaches that the

during their treatment so that the hospital’s latter must be limited to things like the former.

obligation to protect patients was implicated by

the condition of the floor at that location, and

visitor was not seeking or receiving health care, Cases that cite this headnote

nor was she a health care provider or assisting in

providing health care at the time she fell. Tex.

Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13),

74.351(a). [14]

Health

Affidavits of merit or meritorious defense;

Cases that cite this headnote expert affidavits

For a safety standards-based claim to be a health

care liability claim (HCLC) requiring service of

medical expert report, there must be a

[11]

Health substantive nexus between the safety standards

Affidavits of merit or meritorious defense; allegedly violated and the provision of health

expert affidavits care, and that nexus must be more than a “but

for” relationship. Tex. Civ. Prac. & Rem. Code

The purpose of the Medical Liability Act’s Ann. §§ 74.001(a)(13), 74.351(a).

(TMLA) expert report requirement is not to have

claims dismissed regardless of their merits, but

rather it is to identify and deter frivolous claims 2 Cases that cite this headnote

while not unduly restricting a claimant’s rights.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).

[15]

Cases that cite this headnote Health

Affidavits of merit or meritorious defense;

expert affidavits

Although the mere location of an injury in a

[12]

Health health care facility or in a health care setting

Actions and Proceedings does not bring a claim based on that injury

within the Medical Liability Act (TMLA) so that

A safety standards-based claim does not come it is a health care liability claim (HCLC)

within the Medical Liability Act’s (TMLA) requiring service of a medical expert report, the

provisions just because the underlying fact that the incident could have occurred

occurrence took place in a health care facility, outside such a facility or setting does not

the claim is against a health care provider, or preclude the claim from being an HCLC. Tex.

both. Tex. Civ. Prac. & Rem. Code Ann. § Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13),

74.001(a)(13). 74.351(a).

Cases that cite this headnote Cases that cite this headnote

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)

58 Tex. Sup. Ct. J. 766

APPEALS FOR THE FOURTEENTH DISTRICT OF

TEXAS

Opinion

[16]

Health

Affidavits of merit or meritorious defense; Justice Johnson delivered the opinion of the Court.

expert affidavits

The pivotal issue in a safety standards-based *1 In this case a visitor to St. Luke’s Episcopal Hospital

claim, for purposes of determining whether the sued the hospital on a premises liability theory after she

claim is a health care liability claim (HCLC) slipped and fell near the lobby exit doors. The issue is

requiring service of medical expert report, is whether her suit is a health care liability claim under the

whether the standards on which the claim is Texas Medical Liability Act. See TEX. CIV. PRAC. &

based implicate the defendant’s duties as a REM. CODEE ch. 74. The trial court and court of appeals

health care provider, including its duties to concluded that it is. We hold that it is not, because the

provide for patient safety. Tex. Civ. Prac. & record does not demonstrate a relationship between the

Rem. Code Ann. §§ 74.001(a)(13), 74.351(a). safety standards she alleged the hospital

breached—standards for maintaining the floor inside the

lobby exit doors—and the provision of health care, other

Cases that cite this headnote than the location of the occurrence and the hospital’s

status as a health care provider.

We reverse and remand to the trial court for further

proceedings.

[17]

Health

Affidavits of merit or meritorious defense;

expert affidavits

Non-exclusive considerations used to determine I. Background

whether safety standards-based claim is

substantively related to defendant’s providing of Lezlea Ross accompanied a friend who was visiting a

health care and is therefore a health care liability patient in St. Luke’s Episcopal Hospital. Ross was leaving

claim (HCLC) requiring service of medical the hospital through the lobby when, as she approached

expert report include: whether alleged the exit doors, she slipped and fell in an area where the

negligence occurred in course of defendant’s floor was being cleaned and buffed. She sued St. Luke’s

performing tasks with purpose of protecting and Aramark Management Services, a company that

patients from harm; whether injuries occurred in contracted with the hospital to perform maintenance

place where patients might be during time they services, on a premises liability theory. Aramark is not a

were receiving care, so that obligation of party to this appeal.

provider to protect persons who require medical [1]

care was implicated; whether, at the time of the After Ross filed suit we decided Texas West Oaks

injury, the claimant was in the process of Hospital, L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012).

seeking or receiving health care; and whether, at There we held, in part, that when a safety standards-based

time of the injury, the claimant was providing or claim is made against a health care provider, the Texas

assisting in providing health care. Tex. Civ. Medical Liability Act (TMLA), TEX. CIV. PRAC. &

Prac. & Rem. Code Ann. §§ 74.001(a)(13), REM. CODEE ch. 74, does not require the safety

74.351(a). standards to be directly related to the provision of health

care in order for the claim to be a health care liability

claim (HCLC). Williams, 371 S.W.3d at 186. Relying on

2 Cases that cite this headnote Williams, the hospital asserted that Ross’s claim was an

HCLC and moved for dismissal of her suit because she

failed to serve an expert report. See TEX. CIV. PRAC. &

REM. CODEE § 74.351(a), (b) (requiring dismissal of an

HCLC if a claimant fails to timely serve an expert report);

Williams, 371 S.W.3d at 186.

ON PETITION FOR REVIEW FROM THE COURT OF

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Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)

58 Tex. Sup. Ct. J. 766

Shepherd Medical Center–Linden, Inc. v. Twilley, 422

The trial court granted the motion to dismiss. The court of S.W.3d 782 (Tex.App.–Texarkana 2013, pet. denied). In

appeals affirmed. Ross v. St. Luke’s Episcopal Hosp., ––– that case, Bobby Twilley, the director of plant operations

S.W.3d –––– (Tex.App.–Houston [14th Dist.] 2013). The for a medical center, asserted premises liability claims

appeals court concluded that under Williams it is not against his employer after he fell from a ladder and also

necessary for any connection to exist between health care tripped over a mound of hardened cement. Id. at 783. The

and the safety standard on which a claim is based in order medical center moved for dismissal under the TMLA

for the claim to come within the TMLA. Id. at ––––. because Twilley failed to file an expert report. Id. at

783–84. The trial court denied the motion and the medical

Ross asserts that the lower courts erred because claims center appealed, arguing that even though Twilley’s

based on departures from “accepted standards of safety” claims were unrelated to the provision of health care,

do not come within the provisions of the TMLA unless under Williams they still fell within the ambit of the

there is at least some connection between the standards TMLA. The court of appeals interpreted Williams as

underlying the allegedly negligent actions and the holding that a safety standards-based claim need not be

provision of health care, even if they are not directly directly related to the provision of health care to be an

related. She then argues that her claims are not HCLCs HCLC. Id. at 789. The court stated, however, that it did

because the hospital’s alleged negligence is completely not understand Williams to hold that a safety standards

unrelated to the provision of health care. claim falls under the TMLA when the claim is completely

untethered from health care. Id. The appeals court

The hospital responds with three arguments. It first urges concluded that at least an indirect relationship between

that we lack jurisdiction. See TEX. GOV’T CODE § the claim and health care is required and, because

22.001(a)(2), (3), (6). It next asserts that even if we have Twilley’s claims did not have such a relationship, an

jurisdiction, Ross waived the issue of whether her claim is expert report was not required. Id. at 785.

an HCLC because she failed to properly brief and urge it

[3]

in the court of appeals. Third, the hospital addresses the In this case the court of appeals held that under

merits by asserting that the court of appeals correctly held Williams “a connection between the act or omission and

that a safety standards-based claim need not be related to health care is unnecessary for purposes of determining

health care to fall within the TMLA’s provisions, but in whether Ross brings an HCLC.” Ross, ––– S.W.3d at

any event Ross’s claims are related to accepted standards ––––. The hospital asserts that the decision of the court of

of patient safety because she fell inside the hospital. appeals and Twilley do not conflict. But, for purposes of

our jurisdiction, one court holds differently from another

*2 We first address our jurisdiction. See Rusk State Hosp. when there is inconsistency in their decisions that should

v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (noting that if a be clarified to remove unnecessary uncertainty in the law.

court does not have jurisdiction, its opinion addressing TEX. GOV’T CODE § 22.001(e). As other courts of

any issues other than its jurisdiction is advisory). appeals have noted, Ross and Twilley are inconsistent in

their interpretations of Williams and the TMLA, leaving

uncertainty in the law regarding whether a safety

standards-based claim must be related to health care. See,

e.g., Weatherford Tex. Hosp. Co. v. Smart, 423 S.W.3d

II. Jurisdiction 462, 467–68 (Tex.App.–Fort Worth 2014, pet. filed);

[2] DHS Mgmt. Servs., Inc. v. Castro, 435 S.W.3d 919, 922

Texas Civil Practice and Remedies Code § & n.3 (Tex.App.–Dallas 2014, no pet.). That being so, we

51.014(a)(10) permits an appeal from an interlocutory have jurisdiction and move to the hospital’s waiver claim.

order granting relief sought by a motion to dismiss an

HCLC for failure to file an expert report. Generally, the

court of appeals’ judgment is final on interlocutory

appeals. See TEX. GOV’T CODE § 22.225(b)(3).

However, we have jurisdiction if the justices of the court III. Waiver

of appeals disagree on a question of law material to the

decision, or if a court of appeals holds differently from a *3 [4]The hospital argues that Ross waived any challenge

prior decision of another court of appeals or this Court. Id. to her claim being classified as an HCLC by failing to

§ 22.225(c). argue the point or cite relevant authority in the court of

appeals. We disagree.

Ross asserts that this Court has jurisdiction because the

[5]

court of appeals’ opinion in this case conflicts with Good A brief in the court of appeals “must contain a clear and

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Ross v. St. Luke’s Episcopal Hospital, --- S.W.3d ---- (2015)

58 Tex. Sup. Ct. J. 766

concise argument for the contentions made, with treatment, lack of treatment, or

appropriate citations to authorities and to the record.” other claimed departure from

TEX. R. APP. P. 38.1(I). Failure to provide citations or accepted standards of medical care,

argument and analysis as to an appellate issue may waive or health care, or safety or

it. See ERI Consulting Eng’rs, Inc. v. Swinnea, 318 professional or administrative

S.W.3d 867, 880 (Tex. 2010). services directly related to health

care, which proximately results in

In her court of appeals brief, Ross discussed the purpose injury to or death of a claimant,

of the TMLA and asserted that classifying her claim as an whether the claimant’s claim or

HCLC would conflict with the Government Code. See cause of action sounds in tort or

TEX. GOV’T CODE § 311.021(3) (providing that when a contract.

statute is enacted, there is a presumption that “a just and

reasonable result is intended”). The court of appeals TEX. CIV. PRAC. & REM. CODEE § 74.001(a)(13).

implicitly determined that Ross’s citations and argument This Court construed “safety” under the prior statute

were enough to avoid waiver because it addressed the according to its common meaning as “the condition of

issue. See Republic Underwriters Ins. Co. v. Mex–Tex, being ‘untouched by danger; not exposed to danger;

Inc., 150 S.W.3d 423, 427 (Tex. 2004) (concluding that secure from danger, harm or loss.’ ” Diversicare Gen.

an argument in the court of appeals was not waived and Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex. 2005)

noting that “we have instructed the courts of appeals to (quoting BLACK’S LAW DICTIONARY 1336 (6th ed.

construe the Rules of Appellate Procedure reasonably, yet 1990)). We also recognized that the Legislature’s

liberally, so that the right to appeal is not lost by imposing inclusion of the word “safety” in the statute expanded the

requirements not absolutely necessary to effect the statute’s scope beyond what it would be if the statute only

purpose of a rule” (quoting Verburgt v. Dorner, 959 included the terms medical care and health care. Id. The

S.W.2d 615, 616–17 (Tex. 1997))). We agree with the Court explained its disagreement with the position of

court of appeals that Ross did not waive the issue. Chief Justice Jefferson who, in a concurring opinion,

argued that some of the patient’s claims arising from an

assault by another patient were premises liability claims:

*4 Rubio is not complaining about an unlocked

IV. Health Care Liability Claims window that gave an intruder access to the facility or a

[6] [7] [8] [9] [10] rickety staircase that gave way under her weight. All of

The merits of the appeal require us to review her claims arise from acts or omissions that are

the lower courts’ construction of the TMLA. Under such inseparable from the provision of health care. We do

circumstances our review is de novo, Williams, 371 not distinguish Rubio’s health care claims from

S.W.3d at 177, and our goal is to give effect to legislative premises liability claims “simply because the

intent. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 landowner is a health care provider” but because the

(Tex. 2013). In determining that intent we look first and gravamen of Rubio’s complaint is the alleged failure of

foremost to the language of the statute. City of Rockwall Diversicare to implement adequate policies to care for,

v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). We supervise, and protect its residents who require special,

construe a statute’s words according to their plain and medical care.

common meaning unless they are statutorily defined

otherwise, a different meaning is apparent from the Id. at 854.

context, or unless such a construction leads to absurd or

nonsensical results. See Tex. Lottery Comm’n v. First The Legislature added the phrase “or professional or

State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. administrative services directly related to health care” to

2010). Determining legislative intent requires that we the definition of health care liability claim in 2003.

consider the statute as a whole, reading all its language in Compare Act of May 30, 1977, 65th Leg., R.S., ch. 817, §

context, and not reading individual provisions in isolation. 1.03(a)(4), 1977 Tex. Gen. Laws 2039, 2041, repealed by

See Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 51 Act of June 2, 2003, 78th Leg., ch. 204, § 10.09, 2003

(Tex. 2014). Tex. Gen. Laws 847, 884 (absence of language), with

TEX. CIV. PRAC. & REM. CODEE § 74.001(a)(13)

The TMLA defines a health care liability claim as: (language added). After that statutory amendment we

addressed the “safety” part of the definition in Omaha

a cause of action against a health Healthcare Ctr., L.L.C. v. Johnson, 344 S.W.3d 392 (Tex.

care provider or physician for 2011), and Harris Methodist Fort Worth v. Ollie, 342

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S.W.3d 525 (Tex. 2011). Although the claims in both touched them during the course of medical exams and

cases alleged general negligence, they were HCLCs thereby assaulted them. 379 S.W.3d at 253. The trial court

because the underlying nature of the claims involved concluded that the claim was not an HCLC and the court

violations of safety standards directly related to the of appeals affirmed. Id. at 254. We pointed out that the

provision of health care, including protecting patients. statutory definition of “health care” is broad (“any act or

Johnson, 344 S.W.3d at 394–95 (nursing home patient’s treatment performed or furnished, or that should have

death caused by a brown recluse spider); Ollie, 342 been performed or furnished, by any health care provider

S.W.3d at 527 (post-operative patient’s slip and fall on a for, to, or on behalf of a patient during the patient’s

wet bathroom floor). But given that the claims were based medical care, treatment, or confinement” TEX. CIV.

on injuries to patients and were directly related to the PRAC. & REM. CODEE § 74.001(10)), and that if the

provision of health care, we did not address the issue of facts underlying a claim could support claims against a

whether safety standard-based claims must be directly physician or health care provider for departures from

related to health care in order for them to be HCLCs. accepted standards of medical care, health care, or safety

Johnson, 344 S.W.3d at 394 n.2; Ollie, 342 S.W.3d at 527 or professional or administrative services directly related

n.2. to health care, the claims were HCLCs regardless of

whether the plaintiff alleged the defendants were liable

The next year we considered whether a psychiatric for breach of the standards. See Loaisiga, 379 S.W.3d at

technician’s claims for injuries in an altercation with a 255. But that being so, we further explained:

patient were HCLCs. Williams, 371 S.W.3d at 181. In

reaching our decision we specifically and separately *5 we fail to see how the Legislature could have

analyzed both whether the claims were based on the intended the requirement of an expert report to apply

health care provider’s allegedly departing from standards under circumstances where the conduct of which a

for health care, and whether they were also based on its plaintiff complains is wholly and conclusively

allegedly departing from standards for safety. Id. at inconsistent with, and thus separable from, the

180–86. Regarding the safety standards issue, we rendition of “medical care, or health care, or safety or

reviewed the definition of HCLC and determined that the professional or administrative services directly related

phrase “directly related to health care” modified the terms to health care” even though the conduct occurred in a

immediately before it—professional or administrative health care context. See TEX. CIV. PRAC. & REM.

services—but not the word safety. Id. at 185. We said that CODEE § 74.001(a)(13); see also TEX. GOV’T CODE

“Williams’[s] claims are indeed for departures from § 311.021 (“In enacting a statute, it is presumed that ...

accepted standards of safety. We conclude that the safety a just and reasonable result is intended....”).

component of HCLCs need not be directly related to the

provision of health care and that Williams’[s] claims Id. at 257. Our reasoning led to the conclusion that a

against West Oaks implicate this prong of HCLCs.” Id. at patient’s claim against a medical provider for assault

186. Because we also concluded that Williams’s claims during a medical examination is not an HCLC if the only

were HCLCs because they were for departures from possible relationship between the alleged improper

health care standards, our decision that his claims were conduct and the rendition of medical services or health

HCLCs rested on alternative holdings that are both care was the setting in which the conduct took place. Id.

entitled to stare decisis treatment: the claims were for

departures from health care standards and they were for In this case, the hospital advances two positions in

departures from safety standards. Id.; see State Farm Mut. support of the lower courts’ rulings and its assertion that

Auto. Ins. Co. v. Lopez, 156 S.W.3d 550, 554 (Tex. 2004) Ross’s claim is an HCLC. First, it addresses slip and fall

(distinguishing alternative holdings from dictum). claims generally, and says that any slip and fall event

within a hospital is directly related to health care because

[11]

The purpose of the TMLA’s expert report requirement it necessarily is related to the safety of patients. Second, it

is not to have claims dismissed regardless of their merits, focuses on Ross’s claim specifically and argues that her

but rather it is to identify and deter frivolous claims while claim is related to health care because she alleges the

not unduly restricting a claimant’s rights. Scoresby v. hospital breached standards applicable to maintaining a

Santillan, 346 S.W.3d 546, 554 (Tex. 2011). And the safe environment for patients. We disagree with both

Legislature did not intend for the expert report positions.

requirement to apply to every claim for conduct that [12]

occurs in a health care context. See Loaisiga v. Cerda, As to the hospital’s first contention, even though the

379 S.W.3d 248, 258 (Tex. 2012). For example, in claims in Loaisiga were by a patient and the nature of the

Loaisiga patients claimed that a doctor improperly claims differ from Ross’s safety standards-based claim,

the principle we explicated there applies here. A safety

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58 Tex. Sup. Ct. J. 766

standards-based claim does not come within the TMLA’s meaning of “safety” would afford defendant health care

provisions just because the underlying occurrence took providers a special procedural advantage in the guise of

place in a health care facility, the claim is against a health requiring plaintiffs to file expert reports in their suits

care provider, or both. See Loaisiga, 379 S.W.3d at 257. regardless of whether their cause of action implicated the

provision of medical or health care. We do not believe the

As to its second contention, Ross alleged that the hospital Legislature intended the statute to have such arbitrary

failed to exercise reasonable care in making the floor safe. results. See TEX. GOV’T CODE § 311.021 (“In enacting

The standards Ross says the hospital breached regarding a statute, it is presumed that ... a just and reasonable result

maintenance of its floor may be the same as the hospital’s is intended....”); Synatzske, 438 S.W.3d at 54 (declining to

standards for maintaining a safe environment in patient attribute to the Legislature an intent to require a

care areas—but those may also be the same standards meaningless, arbitrary procedural hurdle for injured

many businesses generally have for maintaining their persons to bring suit).

floors. And the hospital does not claim, nor does the

record show, that the area where Ross fell was a patient *6 [14] [15] [16]Thus, we conclude that for a safety

care area or an area where patients possibly would be in standards-based claim to be an HCLC there must be a

the course of the hospital’s providing health care services substantive nexus between the safety standards allegedly

to them. Nor does the hospital reference support in the violated and the provision of health care. And that nexus

record for the position that the area had to meet particular must be more than a “but for” relationship. That is, the

cleanliness or maintenance standards related to the fact that Ross, a visitor and not a patient, would not have

provision of health care or patient safety. See Ollie, 342 been injured but for her falling inside the hospital is not a

S.W.3d at 527 (“[S]ervices a hospital provides its patients sufficient relationship between the standards Ross alleges

necessarily include those services required to meet the hospital violated and the hospital’s health care

patients’ fundamental needs such as cleanliness ... and activities for the claim to be an HCLC. As we recognized

safety.”). Which leads to the question of whether Ross’s in Loaisiga, “[i]n some instances the only possible

claims are nevertheless HCLCs, as the hospital would relationship between the conduct underlying a claim and

have us hold. the rendition of medical services or healthcare will be the

healthcare setting (i.e., the physical location of the

[13]

The TMLA does not specifically state that a safety conduct in a health care facility), the defendant’s status as

standards-based claim falls within its provisions only if a doctor or health care provider, or both.” 379 S.W.3d at

the claim has some relationship to the provision of health 256. But although the mere location of an injury in a

care other than the location of the occurrence, the status health care facility or in a health care setting does not

of the defendant, or both. But the Legislature must have bring a claim based on that injury within the TMLA so

intended such a relationship to be necessary, given the that it is an HCLC, the fact that the incident could have

legislative intent explicitly set out in the TMLA and the occurred outside such a facility or setting does not

context in which “safety” is used in the statute. We said as preclude the claim from being an HCLC. The pivotal

much in Loaisiga. 379 S.W.3d at 257. Even though the issue in a safety standards-based claim is whether the

statute’s phrase “directly related to health care” does not standards on which the claim is based implicate the

modify its reference to safety standards, that reference defendant’s duties as a health care provider, including its

occurs within a specific context, which defines an HCLC duties to provide for patient safety.

to be “a cause of action against a health care provider or

[17]

physician for [a] treatment, [b] lack of treatment, [c] or As this case demonstrates, the line between a safety

other claimed departure from accepted standards of standards-based claim that is not an HCLC and one that is

medical care, or health care, or safety.” TEX. CIV. an HCLC may not always be clear. But certain

PRAC. & REM. CODEE § 74.001(a)(13). Where the non-exclusive considerations lend themselves to

more specific items, [a] and [b], are followed by a catchall analyzing whether such a claim is substantively related to

“other,” [c], the doctrine of ejusdem generis teaches that the defendant’s providing of medical or health care and is

the latter must be limited to things like the former.1 And therefore an HCLC:

here, the catchall “other” itself refers to standards of

“medical care” or “health care” or “safety.” Considering 1. Did the alleged negligence of the defendant occur

the purpose of the statute, the context of the language at in the course of the defendant’s performing tasks

issue, and the rule of ejusdem generis, we conclude that with the purpose of protecting patients from harm;

the safety standards referred to in the definition are those

that have a substantive relationship with the providing of 2. Did the injuries occur in a place where patients

medical or health care. And if it were not so, the broad might be during the time they were receiving care, so

that the obligation of the provider to protect persons

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58 Tex. Sup. Ct. J. 766

who require special, medical care was implicated; Justice Lehrmann filed a concurring opinion, in which

Justice Devine joined.

3. At the time of the injury was the claimant in the

process of seeking or receiving health care; Justice Brown did not participate in the decision.

4. At the time of the injury was the claimant JUSTICE LEHRMANN, joined by JUSTICE DEVINE,

providing or assisting in providing health care; concurring.

5. Is the alleged negligence based on safety standards I join the Court’s opinion and agree that the claims

arising from professional duties owed by the health asserted in this case have no connection to the provision

care provider; of health care. I write separately, however, to emphasize

my concern that a statute intended to address the

6. If an instrumentality was involved in the insurance crisis stemming from the volume of frivolous

defendant’s alleged negligence, was it a type used in medical-malpractice lawsuits has become a nebulous

providing health care; or barrier to what were once ordinary negligence suits

brought by plaintiffs alleging no breach of any

7. Did the alleged negligence occur in the course of professional duty of care.

the defendant’s taking action or failing to take action

necessary to comply with safety-related requirements In Texas West Oaks Hospital, LP v. Williams, the Court

set for health care providers by governmental or held that a plaintiff’s claim against a physician or health

accrediting agencies? care provider may constitute a health care liability claim

subject to the Texas Medical Liability Act even where no

Measuring Ross’s claim by the foregoing considerations, patient–physician or patient-health-care-provider

it is clear that the answer to each is “no.” The record does relationship exists between the parties. 371 S.W.3d 171,

not show that the cleaning and buffing of the floor near 177–78 (Tex. 2012). In my dissent in that case, I

the exit doors was for the purpose of protecting patients. disagreed with the Court’s holding “that the mere

Nor does the record reflect that the area where Ross fell peripheral involvement of a patient transforms an

was one where patients might be during their treatment so ordinary negligence claim into a health care claim.” Id. at

that the hospital’s obligation to protect patients was 194–95 (Lehrmann, J., dissenting). I lamented what I

implicated by the condition of the floor at that location. viewed as the Court’s departure from the importance we

Ross was not seeking or receiving health care, nor was had previously placed on the relationship between health

she a health care provider or assisting in providing health care providers and their patients in concluding that a

care at the time she fell. There is no evidence the patient’s claims were covered by the Act. Id. at 196–97

negligence alleged by Ross was based on safety standards (citing Diversicare Gen. Partner, Inc. v. Rubio, 185

arising from professional duties owed by the hospital as a S.W.3d 842 (Tex. 2005)). The consequences of that

health care provider. There is also no evidence that the departure are evident in cases like this, in which

equipment or materials used to clean and buff the floor defendants who happen to be health care providers seek

were particularly suited to providing for the safety of the protections of the Medical Liability Act with respect

patients, nor does the record demonstrate that the cleaning to claims that have nothing to do with medical liability.

and buffing of the floor near the exit doors was to comply

with a safety-related requirement set for health care The Court holds, and I agree, that a cause of action

providers by a governmental or accrediting authority. against a health care provider for a departure from safety

standards is a health care liability claim only if it has a

“substantive relationship” with the provision of medical

or health care.1 ––– S.W.3d at ––––. I write separately to

V. Conclusion emphasize the significance of the third and fifth factors,

which consider whether the claimant was in the process of

Under this record Ross’s claim is based on safety seeking or receiving health care at the time of the injury

standards that have no substantive relationship to the and whether the alleged negligence was based on safety

hospital’s providing of health care, so it is not an HCLC. standards arising from professional duties owed by the

Because her claim is not an HCLC, she was not required health care provider.

to serve an expert report to avoid dismissal of her suit. We

reverse the judgment of the court of appeals and remand As we recognized in Diversicare, the duty of care that

the case to the trial court for further proceedings. health care providers owe to their patients is

fundamentally different from the duty of care owed to,

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58 Tex. Sup. Ct. J. 766

say, employees or visitors. 185 S.W.3d at 850–51 (“The profession ... under the same or similar circumstances”

obligation of a health care facility to its patients is not the (quoting Hood v. Phillips, 554 S.W.2d 160, 165 (Tex.

same as the general duty a premises owner owes to 1977))).

invitees.”). To that end, when we held in Diversicare that

a nursing home resident’s claim that she was sexually In my view, focusing a safety-standards claim on the duty

assaulted by another resident was a health care liability health care providers owe to their patients ensures that

claim, we rejected the argument that the claim should be Diversicare ‘s hypothetical visitor-assault and

treated the same as that of a visitor who had been rickety-staircase claims do not fall under the Medical

assaulted at the facility precisely because of the distinct Liability Act’s umbrella. It also ensures that a covered

nature of those duties. Id. We also distinguished the cause of action will “implicate[ ] the provision of medical

circumstances at issue in that case from hypothetical or health care” in accordance with the Court’s holding in

claims involving an “unlocked window that gave an this case. ––– S.W.3d at ––––. With these considerations

intruder access to the facility” and a “rickety staircase that in mind, I respectfully join the Court’s opinion and

gave way,” which we implied would not constitute health judgment.

care liability claims. Id. at 854. These statements are

consistent with our recognition that health care liability

claims involve a “specialized standard of care” that is

established by expert testimony. Garland Cmty. Hosp. v. Parallel Citations

Rose, 156 S.W.3d 541, 546 (Tex. 2004); see also Jackson

v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2007) (explaining 58 Tex. Sup. Ct. J. 766

that a physician’s duty of care owed to a patient is that of

“a reasonable and prudent member of the medical

Footnotes

1 Hilco Elec. Co–op. v. Midlothian Butane Gas Co., 111 S.W.3d 75, 81 (Tex. 2003) (“[T]he rule of ejusdem generis ...

provides that when words of a general nature are used in connection with the designation of particular objects or

classes of persons or things, the meaning of the general words will be restricted to the particular designation.”); see

also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 199

(2012) (“Where general words follow an enumeration of two or more things, they apply only to persons or things of the

same general kind or class specifically mentioned.”).

1 “Substantive” is defined as “considerable in amount or numbers: substantial.” WEBSTER’S THIRD NEW INT’L

DICTIONARY 2280 (2002).

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