Appeal from the County Civil Court at Law No. 1 Harris
County, Texas Trial Court Case No. 1077918
consists of Justices Higley, Massengale, and Lloyd.
Michael Massengale Justice.
an accelerated appeal from the denial of a motion to dismiss
a health care liability claim. Mary Lou Ramirez alleges that
Houston Methodist Willowbrook Hospital is liable for her
personal injuries stemming from her slip and fall inside a
hospital building. The hospital contends that Ramirez's
sole cause of action is a health care liability claim, yet
she failed to serve an expert report. See Tex. Civ.
Prac. & Rem. Code § 74.351.
outcome turns on whether Ramirez's cause of action is a
health care liability claim. It isn't. We therefore
Mary Lou Ramirez entered Houston Methodist Willowbrook
Hospital in order to receive medical care from her
primary-care physician, whose office is on the third floor.
Ramirez was suffering from shortness of breath and abdominal
pain. During her appointment with her physician, Ramirez was
"sent down" to the hospital's first-floor
radiology department for a chest x-ray.
took an elevator to the first floor, exited the elevator near
the hospital's entry pavilion, and proceeded alone
through the pavilion toward the radiology department. While
walking between the elevator and the radiology department,
Ramirez alleges that she slipped and fell because the floor
was being "buff[ed] . . . without any caution/wet floor
sign." After falling, Ramirez went to the emergency room
and was later transported by wheelchair back to her
physician's office to complete her appointment. Her
physician's notes about the fall say only that "Pt
fell on her way to xray - sts she slipped on water, she was
taken to the er and had xrays."
sued the hospital, alleging that it "negligently
permitted the floor to become slippery, "
"negligently or willfully allowed such condition to
continue, " and "negligently or willfully failed to
warn" of such a condition. The hospital moved to
dismiss. It contended that Ramirez's sole cause of action
is a health care liability claim. If so, Ramirez should have
served an expert report within 120 days after the hospital
filed its answer, which she failed to do. See Tex.
Civ. Prac. & Rem. Code § 74.351(a). After a hearing,
the trial court denied the hospital's motion to dismiss.
The hospital then initiated this accelerated appeal.
hospital asserts that Ramirez's cause of action is a
health care liability claim under two aspects of that
term's statutory definition: either a health care
liability claim based on a claimed departure from accepted
safety standards or one based on "professional or
administrative services directly related to health
care." See id. § 74.001(a)(13).
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.). The party moving for dismissal bears
the burden to prove that the cause of action is a health care
liability claim. See Reddy v. Veedell, 509 S.W.3d
435, 438 (Tex. App.-Houston [1st Dist.] 2014, pet. denied)
health care liability claim consists of three elements: (1)
the claim must be asserted against a doctor or health care
provider, (2) it must pertain to "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,
" and (3) the alleged departure must proximately cause
injury or death to the claimant. Tex. Civ. Prac. & Rem.
Code § 74.001(a)(13). When asserting a health care
liability claim, a plaintiff generally must serve an expert
report on standard of care, breach, and causation.
Id. § 74.351(a), (r)(6). If the plaintiff does
not timely serve the expert report, then the court must grant
a defendant health care provider's motion to dismiss and
award reasonable attorneys' fees and court costs.
Id. § 74.351(b). If the record does not
affirmatively show that the plaintiff's claims are health
care liability claims, the statutory expert-report
requirements do not apply. See Ross v. St. Luke's
Episcopal Hosp., 462 S.W.3d 496, 505 (Tex. 2015).
hospital contends that Ramirez's cause of action
qualifies as a health care liability claim, either as a
"safety" claim or as a "professional or