Court of Appeals of Texas, Ninth District, Beaumont
Submitted on March 1, 2019
Appeal from the 60th District Court Jefferson County, Texas
Trial Cause No. B-201, 280
McKeithen, C.J., Horton and Johnson, JJ.
interlocutory appeal, we are asked to decide whether the
trial court erred by denying a health care provider's
motion to dismiss the wrongful death and survival claims of
Doris Smith and the Estate of Gill Smith. Doris,
individually, and as representative of the Estate of Gill
Smith, sued Southeast Texas Cardiology Associates (S.E.T.
Cardiology) after Gill tripped over a weight scale at S.E.T.
Cardiology's offices, broke his hip, and, over one year
later, died. In its appeal, S.E.T. Cardiology argues Doris
failed to file an expert report to support her claims as
required by the Texas Medical Liability Act ("the
Act"). Doris, however, argues her claims are
premises liability claims, not health care liability claims,
and thus not subject to the Act.
conclude Doris's claims are health care liability claims.
As such, they are subject to the expert report requirements
of the Act. Because the Act required that Doris file an
expert report, we reverse the order denying S.E.T.
Cardiology's motion to dismiss. We remand the case to the
trial court for an order dismissing the claims against S.E.T.
Cardiology with prejudice. On remand, the trial court must conduct
a hearing and award S.E.T. Cardiology reasonable
attorney's fees and costs.
March 2016, Gill Smith saw his doctor for a checkup at S.E.T.
Cardiology's office in Beaumont. Gill's doctor saw
him in one of the rooms S.E.T. Cardiology uses to examine
their patients. After the examination, a nurse, employed by
S.E.T. Cardiology, escorted Gill from the room toward the
door leading to the patient lobby. Just after leaving the
examination room, and before entering the patient lobby, Gill
tripped over a weight scale positioned just outside the room
where he saw his doctor. After Gill fell, Gill's doctor
called an ambulance. The ambulance took Gill to the hospital
where he underwent a hip surgery due to his fall. On May 12,
2017, Gill died from complications that Doris's petition
claims are related to the injuries Gill suffered in his fall.
February 2018, Doris sued S.E.T. Cardiology for claims
arising under the Texas wrongful death and survival
statues. In her petition, she alleged S.E.T.
Cardiology "negligently permitted the area in question
to become hazardous and dangerous, negligently or willfully
allowed such condition to continue and negligently or
willfully failed to warn [Gill] of the condition of the area
in question." In March 2018, S.E.T. Cardiology answered
the suit. After S.E.T. Cardiology answered, Doris did not
file a report from an expert addressing how S.E.T. Cardiology
violated the standard of care that applied to its decision
about where to place the weight scale.
August 2018, and more than 120 days after filing its answer,
S.E.T. Cardiology moved to dismiss Doris's suit based on
her failure to comply with the expert report requirements in
the Act. In its motion, S.E.T. Cardiology argued
that while Doris characterized her claims as premises
liability claims, they were instead health care liability
claims, making them subject to the expert report requirements
of the Act. When Doris responded to S.E.T.
Cardiology's motion, she argued she was not asserting
health care liability claims because her claims implicated
only S.E.T. Cardiology's duties as the owner of the
premises where Gill fell. Doris claims that Gill's fall
is unrelated to his medical treatment. After conducting a
hearing on S.E.T. Cardiology's motion to dismiss, the
trial court denied its motion.
the question we must decide is whether Doris's wrongful
death and survival claims are subject to the expert report
requirements of the Act. Because the claims the Legislature
intended to include within the reach of the Act raise
questions of statutory construction, the issue is a legal
question subject to a de novo standard of
review. When determining whether a plaintiff's
claim is a health care liability claim subject to the Act, we
must "consider the entire record before the trial court
and the overall context of the plaintiffs' suit,
including the nature of the factual allegations in their
pleadings, [the health care provider's] contentions, and
the motions to dismiss and responses."
74.351 of the Act requires a plaintiff pursuing health care
liability claims to serve a timely report from an expert on
each of the health care providers the plaintiff
sued. The report must contain the expert's
opinions "regarding applicable standards of care, the
manner in which the care rendered by the . . . health care
provider failed to meet the standards, and the causal
relationship between that failure and the injury, harm, or
damages claimed." The report must be filed within a
120-day deadline; if no report is filed within that period,
the Act requires the trial court to grant the health care
provider's motion and dismiss the health care provider
from the suit. That said, a plaintiff need not serve
the health care provider with an expert report if the claims
are not health care liability claims under the
consider three basic elements in determining whether a
plaintiff's claims are health care liability claims:
(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.
argues she did not file claims falling within the purview of
the Act because no substantive nexus exists between the
safety standards S.E.T. Cardiology violated and the care that
S.E.T. Cardiology provided Gill. Doris suggests that when her
case goes to trial, the testimony she plans to elicit from
S.E.T. Cardiology's employees and agents "will
primarily fall on their general knowledge and observations
when monitoring a common pathway used by many persons when
entering and exiting their office" since S.E.T.
Cardiology did not restrict the area solely to its patients.
Doris notes that a patient's family members are sometimes
allowed to accompany a patient to the room where the
examination occurs. She concludes that "[j]ust because
[Gill] tripped over a piece of equipment owned by [S.E.T.
Cardiology, "] that fact does not make her wrongful
death and survival claims health care liability claims.
alleging that a health care provider violated a safety
standard are not health care liability claims unless a
"substantive nexus [exists] between the safety standards
allegedly violated and the provision of health
care." To determine whether Doris sued S.E.T.
Cardiology on claims classified as health care liability
claims, we apply the framework established by the Texas
Supreme Court in Ross v. St. Luke's Episcopal
Hospital. We rely on the definition the
Legislature gave to the term "health care" in the
Act, which defines "[h]ealth 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." The Act,
however, does not define the word "safety." The
Texas Supreme Court has applied "safety's"
commonly understood meaning, which the Court stated is
"the condition of being 'untouched by danger; not
exposed to danger; secure from danger, harm or
loss.'" The Ross Court explained that
while the line between what does and does not fall within the
coverage of the Act is not always clear when the injury is
one that could have occurred outside a health facility,
"[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." In Ross, the court held the
case fell outside the coverage of the Act because (1) the
plaintiff did not fall in an ...