Ksadd, Llc v. Joan Williams ( 2015 )


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  •                                                                            ACCEPTED
    05-15-00776-CV
    FIFTH COURT OF APPEALS
    DALLAS, TEXAS
    10/23/2015 2:40:59 PM
    LISA MATZ
    CLERK
    05-15-00776-CV
    FILED IN
    5th COURT OF APPEALS
    DALLAS, TEXAS
    IN THE FIFTH COURT OF APPEALS          10/23/2015 2:40:59 PM
    DALLAS, TEXAS                         LISA MATZ
    Clerk
    KSADD, L.L.C.,
    Appellant
    v.
    Joan Williams,
    Appellee
    Interlocutory Appeal From County Court at Law No. 4,
    Dallas County, Texas, Cause No. CC-14-03455-D,
    Hon. Ken Tapscott Presiding
    Brief for Appellee
    TED B. LYON & ASSOCIATES, P.C.
    John Hallman (24092474)
    Marquette Wolf (00797685)
    Ben Taylor (19684500) [btaylor@tedlyon.com]
    18601 LBJ Freeway, Suite 525
    Mesquite, Texas 75150-5632
    Telephone: (972) 279-6571
    Facsimile: (972) 279-3021
    Counsel for the Appellee,
    Joan Williams
    Oral Argument (Conditionally) Requested
    Identity of Parties and Counsels
    Supplementing KSADD, L.L.C.’s listing of appellate counsel, appellee
    Joan Williams is additionally represented in this interlocutory appeal by
    Ben Taylor (19684500) of Ted B. Lyon & Associates, P.C.
    Joan Williams’s Statement Regarding Oral Argument
    “A party desiring oral argument must note that request on the front cover of
    the party’s brief.” Tex. R. App. P. 39.7 (emphasis added). KSADD, L.L.C. did
    not request oral argument until page 4 of its opening brief, there asserting oral
    arguments would “allow the Court to more completely understand the facts and
    legal issues presented by this appeal” (emphases supplied).                   Joan Williams
    respectfully submits instead that (1) KSADD, L.L.C.’s interlocutory appeal was
    taken without sufficient cause (cf. RR47-48), and (2) the decisional process would
    not be significantly aided by oral argument. Tex. R. App. P. 39.1, 45. 1
    Moreover, KSADD, L.L.C. filed an opening brief inappropriately citing
    numerous appellate decisions, alleged National Fire Safety Protection Association
    “Life Safety Code” provisions, alleged accreditation requirements, federal
    regulations, Professor Prosser and the Restatement (Second) of Torts, which the
    1
    Cf. Cage v. Methodist Hosp., No. 01-14-00341-CV (Tex. App.--Houston [1st Dist.] July 9,
    2015, no pet.) (mem. op.) (decided without oral arguments) (discussing and applying Ross v.
    St. Luke’s Episcopal Hosp., 
    462 S.W.3d 496
    (Tex. 2015), First court held no expert report was
    required under chapter 74 — even though premises plaintiff’s petition judicially admitted she
    had “gone [to the hospital] for the purpose of assisting a patient” and “Plaintiff is patient’s
    nurse”).
    -2-
    record shows the trial court never got a chance to consider. KSADD, L.L.C. also
    inappropriately appended behind its appellate brief numerous documents
    (including hearsay correspondences) dehors the record and which trial court also
    never got a chance to consider. 2
    The appellate record further fails to show KSADD, L.L.C. offered (or that
    the trial court admitted) any exhibits during the June 1 hearing.                        RR4-57
    (appendix); see also CR91, 180 (neither KSADD, L.L.C.’s proposed written order,
    nor the written order actually signed by the trial court, stated that any affidavit or
    other documents were actually admitted and considered).3 Compare Loaisiga v.
    2
    See Tex. R. App. P. 33.1(a)(1)(A) (“the record must show that” a “timely” motion, request or
    objection stated “specific grounds” as a prerequisite to presenting “a complaint for appellate
    review”) (emphases supplied); Tex. R. App. P. 34.1 (“The appellate record consists of the clerk’s
    record and, if necessary to the appeal, the reporter’s record”); Perry v. Del Rio, 
    66 S.W.3d 239
    ,
    261 (Tex. 2001) (“an appellate court’s review is confined to the record before the trial court
    when the trial court acted. . . . [T]he court of appeals erroneously looked outside the record that
    was before the trial court when it [acted]”); Cantu v. Horany, 
    195 S.W.3d 867
    , 870 (Tex. App.--
    Dallas 2006, no pet.) (“An appellate court cannot consider documents cited in a brief and
    attached as appendices if they are not formally included in the record on appeal”); Dallas Market
    Center v. The Swing, Inc., 
    775 S.W.2d 838
    , 842 (Tex. App.--Dallas 1989, no writ) (“At the very
    most, the exhibits that were tendered to this Court, absent a showing that they were properly
    offered into evidence and that the trial court admitted them into evidence during trial, are loose
    exhibits, forming no part of the record proper”).
    3
    Compare Nichols v. Lin, 
    282 S.W.3d 743
    , 749 (Tex. App.--Dallas 2009, no pet.) (“Lin’s
    affidavit was admitted into evidence”), and Le Meridien Hotels & Resorts v. LaSalle Hotel
    Operating P’ship, L.P., 
    141 S.W.3d 870
    , 876 (Tex. App.--Dallas 2004, no pet.) (“Despite
    LaSalle’s statement in its brief and at oral argument that it had ‘walked the court through’ the
    evidence in Volume 5, we cannot consider material that was not admitted into evidence in our
    review”), overruled on unrelated ground by Capital Tech. Info. Serv.s, Inc. v. Arias & Arias
    Consultores, 
    270 S.W.3d 741
    , 755 (Tex. App.--Dallas 2008, pet. denied) (en banc); with RR49,
    50-51, 53, 56 (trial court observing during hearing: “There’s no evidence in [sic] the motion that
    she knew that she was assuming these duties voluntarily. . . that she’s there to assist in the
    rendering of healthcare. . . . [M]y biggest problem is this idea that they were assisting in the
    -3-
    Cerda, 
    379 S.W.3d 248
    , 258 (Tex. 2012) (appellate court reviewing a chapter 74
    interlocutory appeal should consider “the entire court record, including pleadings,
    motions and responses, and relevant evidence properly admitted” to determine
    whether a particular “contact at issue was part of medical care, or health care, or
    safety or professional or administrative services directly related to health care”)
    (emphases      supplied),     and    CR42      (KSADD,        L.L.C.’s     dismissal     motion
    acknowledging court should review “the entire court record, including the
    pleadings,      the    motions,      the     responses,      and     the     relevant evidence
    properly admitted”) (citing Loaisiga), with Valley Regional Med. Center v.
    Camacho, No. 13-14-00004-CV (Tex. App.--Corpus Christi May 14, 2015,
    no pet.) (mem. op.) (Slip op. at 4) (“The judgment [sic] denying the motion
    specifically stated that the exhibits offered [by Valley Regional Medical Center] at
    the hearing were admitted and considered in evaluating the motion to dismiss”)
    (emphases supplied), and In re Zimmer, Inc., 
    451 S.W.3d 893
    , 902 (Tex. App.--
    Dallas 2014) (orig. pro.) (this Court rejecting argument that the moving party’s
    motion was “factually uncontroverted” with the following explanation: “the trial
    court did not announce that it would rely on the affidavits as evidence and [the
    rendering -- or providing of healthcare . . . without some -- some evidence to show that she knew
    she was . . . . [I]t is so factually intensive. . . . [T]here’s a stronger argument to be had from
    [KSADD, L.L.C.]’s side if she was actually participating as the responsible adult at the moment
    she was injured”) (emphases supplied).
    -4-
    non-moving party] did not agree to the use of affidavits as evidence of [the
    moving party’s] claims”).
    Appellee Joan Williams respectfully requests summary affirmance without
    the additional delay that would be necessitated by scheduling oral arguments
    before a panel. Alternatively, if the Court determines this interlocutory appeal by
    KSADD, L.L.C. merits oral arguments, then appellee Joan Williams respectfully
    requests the opportunity to participate.
    -5-
    Table of Contents
    Page
    Identity of Parties and Counsels ...............................................................................2
    Joan Williams’s Statement Regarding Oral Argument ............................................2
    Index of Authorities ..................................................................................................7
    Joan Williams’s Objections to KSADD, L.L.C.’s Statement of The Case ............10
    Joan Williams’s Reply and/or Cross Issues Presented ...........................................11
    Joan Williams’s Objections to KSADD, L.L.C.’s Statement of Facts (and,
    Alternatively, Joan Williams’s Competing Statement of Facts) ..................12
    Joan Williams’s Summary of Argument ................................................................18
    Joan Williams’s Arguments and Authorities ..........................................................21
    I.       Ms. Williams’s Claim is Not a Chapter 74 Health Care Liability
    Claim Subject to the Medical Expert Report Requirement ..........................21
    II.      There Was and Is No “Presumption” that Ms. Williams’s
    Premises Liability Claim Was Instead a Health Care Liability Claim.........29
    Conclusion and Prayer for Relief............................................................................31
    Certificate of Word Count Compliance ..................................................................34
    Certificate of Filing and Service .............................................................................35
    Appendix (reporter’s record of June 1 motion to dismiss hearing) ..................... post
    -6-
    Index of Authorities
    Page(s)
    Constitutional Provisions
    U.S. Const. amend XIV, § 1 ....................................................................................15
    Case Law
    Archer v. Tunnell,
    No. 05-15-00459-CV (Tex. App.--Dallas June 23, 2015, n.p.h.) .................20
    Cage v. Methodist Hosp.,
    No. 01-14-00341-CV (Tex. App.--Houston [1st Dist.]
    July 9, 2015, no pet.) (mem. op.).....................................................................2
    Cantu v. Horany,
    
    195 S.W.3d 867
    (Tex. App.--Dallas 2006, no pet.) ........................................3
    Capital Tech. Info. Serv.s, Inc. v. Arias & Arias Consultores,
    
    270 S.W.3d 741
    (Tex. App.--Dallas 2008, pet. denied) (en banc) ..................3
    Dallas County v. Sides,
    
    430 S.W.3d 649
    (Tex. App.--Dallas 2014, no pet.) ......................................20
    Dallas Market Center v. The Swing, Inc.,
    
    775 S.W.2d 838
    (Tex. App.--Dallas 1989, no writ) ........................................3
    Davis v. City of Robinson,
    
    919 S.W.2d 849
    (Tex. App.--Austin 1996, writ denied) (per curiam) ..........32
    Director, State Employees Workers’ Comp. Div. v. Evans,
    
    889 S.W.2d 266
    (Tex. 1994) .........................................................................13
    Duncan v. Cessna Aircraft Co.,
    
    665 S.W.2d 414
    , 439 (Tex. 1984) (dissent) ..................................................15
    Garland Community Hosp. v. Rose,
    
    156 S.W.3d 541
    (Tex. 2004) .........................................................................31
    Harris Methodist Fort Worth v. Ollie,
    
    342 S.W.3d 525
    (Tex. 2011) (per curiam) ....................................................31
    In re MetroPCS Commc’ns, Inc.,
    
    391 S.W.3d 329
    (Tex. App.--Dallas 2013, orig. pro.)...................................18
    -7-
    In re Zimmer, Inc.,
    
    451 S.W.3d 893
    (Tex. App.--Dallas 2014) (orig. pro.) ............................... 4-5
    Le Meridien Hotels & Resorts v. LaSalle Hotel Operating P’ship, L.P.,
    
    141 S.W.3d 870
    (Tex. App.--Dallas 2004, no pet.) ........................................3
    Loaisiga v. Cerda,
    
    379 S.W.3d 248
    (Tex. 2012) .................................... 3-4, 11, 13-14, 21, 30-31
    Lucas v. United States,
    
    757 S.W.2d 687
    (Tex. 1988) .........................................................................22
    McCain v. NME Hosps., Inc.,
    
    856 S.W.2d 751
    (Tex. App.--Dallas 1993, no writ) ......................................18
    Michiana Easy Livin’ Country, Inc. v. Holten,
    
    168 S.W.3d 777
    (Tex. 2005) .........................................................................12
    Nichols v. Lin,
    
    282 S.W.3d 743
    (Tex. App.--Dallas 2009, no pet.) ........................................3
    Parex Resources, Inc. v. ERG Resources, LLC,
    
    427 S.W.3d 407
    (Tex. App.--Houston [14th Dist.] 2014,
    pet.s granted 10-23-2015) (supreme court cause nos. 14-0293
    and 14-0295 [Brown, J., not sitting] consolidated for oral argument) .... 12-13
    Perry v. Del Rio,
    
    66 S.W.3d 239
    (Tex. 2001) .............................................................................3
    PopCap Games, Inc. v. MumboJumbo, LLC,
    
    350 S.W.3d 699
    (Tex. App.--Dallas 2011, pet. denied) ................................20
    Ross v. St. Luke’s Episcopal Hosp.,
    
    462 S.W.3d 496
    (Tex. 2015) ....................................... 2, 11, 14, 20-24, 29, 30
    Scoresby v. Santillan,
    
    346 S.W.3d 546
    (Tex. 2011) .........................................................................21
    Texas & Pac. Ry. Co. v. Van Zandt,
    
    159 Tex. 178
    , 
    317 S.W.2d 528
    (1958) ..........................................................15
    Valley Regional Med. Center v. Camacho,
    No. 13-14-00004-CV (Tex. App.--Corpus Christi May 14, 2015,
    no pet.) (mem. op.) ........................................................................ 4, 14, 22-23
    Statutes
    Tex. Civ. Prac. & Rem. Code Ann.
    § 51.014 (Vernon 2015).................................................................................11
    -8-
    Tex. Civ. Prac. & Rem. Code section 74.351 ................................................... 10, 11
    Rules of Procedure and Evidence
    Tex. R. App. P. 2 ......................................................................................................32
    Tex. R. App. P. 33.1(a)(1)(A) ....................................................................................3
    Tex. R. App. P. 34.1.............................................................................................3, 26
    Tex. R. App. P. 38.1(d) ............................................................................................10
    Tex. R. App. P. 38.1(g) ............................................................................................12
    Tex. R. App. P. 39.1...................................................................................................2
    Tex. R. App. P. 39.7...................................................................................................2
    Tex. R. App. P. 45......................................................................................... 2, 20, 32
    Tex. R. App. P. 49.9.................................................................................................32
    Tex. R. App. P. 9.4(d) ..............................................................................................10
    Tex. R. App. P. 9.4(i) ...............................................................................................10
    Tex. R. Civ P. 97(a) .................................................................................................19
    Tex. R. Civ. P. 166a(c), (f), (i).................................................................................13
    Tex. R. Evid. 101(b).................................................................................................14
    Tex. R. Evid. 103(a)(2) ............................................................................................14
    Tex. R. Evid. 802 .....................................................................................................14
    Regulation
    Tex. Admin. Code § l35.10(b) .................................................................................28
    Other Authorities
    http://www.stanleyaccess.com/automatic-swing-door-operators ............................27
    http://www.stanleyaccess.com/manual-icu-ccu-doors ............................................27
    -9-
    Joan Williams’s Objections to KSADD, L.L.C.’s Statement of The Case
    The lengthy, single-spaced “STATEMENT OF THE CASE” on pages 2-3
    of KSADD, L.L.C.’s opening brief violates Tex. R. App. P. 9.4(d), which requires
    that text in a brief “be double-spaced,” and Tex. R. App. P. 38.1(d), which requires
    that appellants make a “concise” statement of “the nature of the case (e.g.,
    whether it is a suit for damages, on a note, or involving a murder prosecution)” and
    such statement “should not discuss the facts” (emphases supplied). Compare Tex.
    R. App. P. 9.4(i) (excepting “statement of the case” from appealing party’s word
    count limitations). The following concise statement would have been appropriate:
    This is a suit for damages brought by appellee Joan Williams eventually
    against KSADD, L.L.C. and other defendants. CR9-14, 27-37. All the defendants
    filed a motion to dismiss under chapter 74 of the Texas Civil Practice and
    Remedies Code, asserting (1) Ms. Williams’s claim against them was a health care
    liability claim, and (2) Ms. Williams had not served the required expert report
    under section 74.351. CR38-53, 126-147. Ms. Williams took a non-suit as to the
    defendants other than KSADD, L.L.C., but she otherwise:           (1) responded in
    opposition to KSADD, L.L.C.’s motion to dismiss, and (2) cross-moved asking the
    trial court to determine that chapter 74 does not apply to her premises liability
    claim against KSADD, L.L.C. CR92-108.
    -10-
    Two days after holding a recorded hearing on June 1, the trial court signed
    on June 3, 2015, a written order denying KSADD, L.L.C.’s motion to dismiss and
    decreeing that chapter 74 does not apply. RR1-57 (appendix); CR180. KSADD,
    L.L.C. filed its notice of interlocutory appeal on June 23, 2015, and has thus
    already avoided the September 1, 2015 “JURY TRIAL” setting for this case. See
    CR5-6, 191 (“SPECIAL SET #1”); Tex. Civ. Prac. & Rem. Code Ann.
    § 51.014(a)(9), (b) (Vernon 2015) (a permitted interlocutory appeal from the denial
    of a motion under section 74.351(b) “stays the commencement of a trial in the trial
    court pending resolution of the appeal”).
    Joan Williams’s Reply and/or Cross Issues Presented
    1. Whether the trial court correctly denied KSADD, L.L.C’s motion to
    dismiss because the Loaisiga presumption does not apply, because KSADD,
    L.L.C. failed to introduce required evidence to support its dismissal motion, and
    because KSADD, L.L.C.’s motion is also without merit in light of Ross v.
    St. Luke’s Episcopal Hospital, 
    462 S.W.3d 496
    (Tex. 2015), rev’g 
    459 S.W.3d 617
    (Tex. App.--Houston [14th Dist.] 2013).
    2. Whether this Court should strike (and refuse to consider) appendix items
    KSADD, L.L.C. improperly attached behind its opening brief without first giving
    the trial court an opportunity to consider them in the first instance (specifically
    appellant’s improper appendix items 2, 3, 4, 6, and 7 and all appellate cites).
    -11-
    To the Honorable Fifth Court of Appeals:
    Joan Williams files this appellee’s brief on or before November 11, 2015,
    and requests that the order appealed from be summarily affirmed.
    Joan Williams’s Objections to KSADD, L.L.C.’s Statement of Facts
    (and, Alternatively, Joan Williams’s Competing Statement of Facts)
    Ms. Williams objects to the “STATEMENT OF FACTS” at pages 6-13 of
    KSADD, L.L.C.’s opening brief.4 KSADD, L.L.C. has improperly briefed this
    interlocutory appeal as if all of KSADD, L.L.C.’s trial court filings were admitted
    into evidence. A review of the record shows KSADD, L.L.C. did not offer a single
    exhibit into evidence and did not request nor obtain any oral or written ruling
    admitting a single exhibit into evidence. See RR4-57 (copy of reporter’s record
    appended behind this brief); CR91, 180.
    This is not an appeal from denial of a special appearance, where
    in personam jurisdiction is at issue, and “evidence” is sometimes merely filed with
    the clerk. See Michiana Easy Livin’ Country, Inc. v. Holten, 
    168 S.W.3d 777
    , 781-
    84 (Tex. 2005); but see Parex Resources, Inc. [Parex Resources (Bermuda), Ltd.]
    v. ERG Resources, LLC, 
    427 S.W.3d 407
    , 417-19 (Tex. App.--Houston [14th Dist.]
    2014, pet.s granted 10-23-2015) (supreme court cause nos. 14-0293 and 14-0295
    4
    See generally Tex. R. App. P. 38.1(g) (“Statement of facts. The brief must state concisely and
    without argument the facts pertinent to the issues or points presented. In a civil case, the court
    will accept as true the facts stated unless another party contradicts them. The statement must be
    supported by record references”).
    -12-
    [Brown, J., not sitting] consolidated for oral argument). 5 Nor is this an appeal
    from the denial of a motion for new trial after a default judgment, where affidavits
    merely attached to the motion can be considered evidence without being offered at
    a hearing. 6 Nor is this a summary judgment appeal, where affidavits and other
    documents would only need to be timely filed and served in order potentially to
    qualify as summary judgment “evidence.”7
    The record of this chapter 74 interlocutory appeal shows KSADD, L.L.C.
    cited Loaisiga to the trial court (albeit redundantly, inaccurately and inconsistently)
    some sixty-five (65) times. 8 And despite KSADD, L.L.C.’s repeated inaccurate
    citations, there is no disputing Loaisiga’s teaching about the applicable scope of
    review. See Loaisiga v. Cerda, 
    379 S.W.3d 248
    , 258 (Tex. 2012) (reviewing court
    should consider “the entire court record, including pleadings, motions and
    responses, and relevant evidence properly admitted” to determine whether “the
    5
    The clerk’s record reflects KSADD, L.L.C. has appeared generally in this lawsuit without any
    challenge whatsoever to the trial court’s jurisdiction over its person. CR33-37.
    6
    See Director, State Employees Workers’ Comp. Div. v. Evans, 
    889 S.W.2d 266
    , 268
    (Tex. 1994) (“Affidavits attached to the motion for new trial do not have to be offered into
    evidence in order to be considered by the trial court for the meritorious defense element . . . . It
    is sufficient that the affidavits are attached to the motion for new trial . . .”).
    7
    See Tex. R. Civ. P. 166a(c), (f), (i).
    8
    CR39 n.1, 40 nn.2-7, 41 n.10, 42, 44 nn.13-15, 45 nn.16-17, 48 n.22, 49 nn.23-26, 127 nn.1-5,
    128 nn.6-11, 130 & n.16, 134 nn.17-21, 135 nn.22-23, 136 nn.24-28, 137 nn.29-30, 138 nn.32-
    34, 139 nn.35-36, 38-39, 140 n.40, nn.42-44, 141 nn.45-47, 142 nn.48-49, 143 nn.50-52, 145;
    RR6.
    -13-
    contact at issue was part of medical care, or health care, or safety or professional or
    administrative services directly related to health care”) (emphases supplied).
    The statement of “FACTS” in KSADD, L.L.C.’s opening brief relies almost
    entirely upon citations to affidavits (and additional hearsay documents) the Court
    can assume might be “relevant” but which were never “properly admitted” in the
    trial court. Cf. RR7 (after KSADD, L.L.C.’s counsel asserted “we’ve shown [sic]
    evidence of” all the Ross considerations, trial court stated: “your big picture
    position is that at the time she was injured, Ms. Williams was assisting in the
    providing of healthcare”) (emphasis supplied); RR17-18 (trial court stating to
    KSADD, L.L.C.’s counsel: “again, when you say they’re assisting in providing
    care . . .”) (emphases supplied); RR44 (KSADD, L.L.C.’s counsel asserting
    “Plaintiff’s counsel was testifying [sic] about” Valley Regional Medical Center v.
    Camacho, No. 13-14-00004-CV (Tex. App.--Corpus Christi May 14, 2015,
    no pet.) (mem. op.). 9
    9
    It is unclear why on page 12 of its opening brief KSADD, L.L.C. feels it necessary to
    repeatedly insert (and italicize) new bracketed verbiage not actually included in paragraphs 10
    and 12 of the affidavit signed by KSADD, L.L.C.’s automatic door expert (even assuming,
    contrary to the clerk’s and reporter’s records, KSADD, L.L.C.’s automatic door expert’s
    affidavit had actually been offered and admitted into evidence). Cf. Tex. R. Evid. 802 (only
    inadmissible hearsay actually “admitted” without objection cannot be denied probative value);
    Tex. R. Evid. 101(b) (“These rules apply to proceedings in Texas courts except as provided in
    subdivisions (d)-(f)”); Tex. R. Evid. 103(a)(2) (recognizing “a ruling” is needed “to admit or
    exclude” evidence, and an “offer of proof” would be needed if the ruling excludes evidence).
    -14-
    The record shows KSADD, L.L.C. did nothing more than file affidavits (and
    other documents) with its dismissal motion, and its later supplemental briefing.
    CR38-90, 126-179. Ms. Williams respectfully objects to KSADD, L.L.C.’s factual
    averments (on pages 6-13 of its opening brief) as factually unsupported and
    inappropriate to the extent they cite and rely upon affidavits and other hearsay
    documents KSADD, L.L.C. never offered (and the trial court never admitted) into
    evidence. Alternatively, if the Court were to decide affidavits and other documents
    KSADD, L.L.C. never introduced into evidence are properly considered in this
    appeal, then Ms. Williams asserts the following facts from her own timely filed
    affidavit are the correct facts this Court should consider instead. 10
    Ms. Williams recalled walking into the clinic located at 3865 Childress
    Avenue, Mesquite, Texas 75150 on June 20, 2013. CR112. This was the first time
    Ms. Williams had ever been to the clinic. 
    Id. She was
    not a patient. 
    Id. She was
    only there to pick up a friend who had finished treatment. 
    Id. Ms. Williams
    had
    never been provided medical care at the facility. 
    Id. When Ms.
    Williams arrived at the facility, she entered through two sets of
    automatic doors. CR112, 116. From being present at the clinic and personally
    10
    See genenerally Texas & Pac. Ry. Co. v. Van Zandt, 
    159 Tex. 178
    , 
    317 S.W.2d 528
    , 531
    (1958) (rules “must be applied to plaintiffs and defendants alike”); Duncan v. Cessna Aircraft
    Co., 
    665 S.W.2d 414
    , 439 (Tex. 1984) (4-judge dissent) (“There is no greater inequality than the
    unequal treatment by the same court of things that are equal”); U.S. Const. amend XIV, § 1 (“No
    State shall . . . deny to any person within its jurisdiction the equal protection of the laws”).
    -15-
    observing the doors, Ms. Williams has personal knowledge that the photograph
    attached as Exhibit A behind her affidavit is a true and accurate image of the
    clinic’s doors as they appeared on June 20, 2013. 
    Id. The doors
    malfunctioned and hit Ms. Williams on June 20, 2013. CR112.
    Ms. Williams’s friend was in the clinic and Ms. Williams was waiting to give her a
    ride home. CR112-13. There were no doctors or employees present when the door
    hit Ms. Williams. CR113. There were no doctors or employees operating the door
    either. 
    Id. There was
    a witness who was in the waiting room that saw the doors
    malfunction and hit Ms. Williams. 
    Id. When the
    door hit Ms. Williams, she was not inside the area of the clinic
    where patients are treated. CR113. She was not in the waiting room either. 
    Id. The malfunctioning
    door that hit Ms. Williams was located in the entrance to the
    building, not in a place where patients were receiving care. 
    Id. The only
    reason Ms. Williams was on the clinic’s premises that day was
    because she was picking up a friend. CR113. Ms. Williams was not, and had
    never been, a patient seeking medical care at the clinic, nor had she ever received
    medical care there at the clinic. 
    Id. Ms. Williams
    ’s plan that day was to enter the
    clinic and wait to meet her friend and drive her home. 
    Id. Prior to
    her injury, Ms. Williams had never been contacted by any employee
    or owner of the clinic, nor had any employee or owner of the clinic mentioned
    -16-
    anything regarding the malfunctioning automatic doors to her.                CR113.
    Ms. Williams was never told by any employee or owner of the clinic that she
    would be assisting in the medical treatment of her friend. 
    Id. Ms. Williams
    was not informed by the doctors of any special routine or
    procedures she needed to follow on behalf of her friend. CR113. Ms. Williams
    never even had communication with anyone at the clinic. 
    Id. “I was
    there to drive
    her home, and that was it. I was not a caretaker for my friend- after I was to drop
    her off at her home, I was going to go back to my daily routine. I have no medical
    training, and did not receive any that day prior to picking up my friend. At no time
    did any employee or doctor at the clinic ask me to assist in providing health care to
    my friend.” 
    Id. Ms. Williams
    ’s complaint regarding the malfunctioning automatic doors is
    centered on that very fact — the doors malfunctioned and hit her. CR113. “My
    complaint is that the doors malfunctioned and knocked me down, not that any
    doctor did anything wrong.” 
    Id. “The doors
    that malfunctioned were common automatic doors.” CR113.
    “I’ve seen these doors - or doors very similar to the doors that hit me - at grocery
    stores, shopping malls, banks, and other businesses around Mesquite, Texas.” 
    Id. “These doors
    did not have any markings on them that would indicate they were
    anything other than normal automatic doors.” 
    Id. “These doors
    did not have any
    -17-
    markings on them that would indicate that they were special doors unique to the
    health care facility.” 
    Id. 11 “When
    the doors malfunctioned and hit me, there was no employee or owner
    of the clinic present at the doors, nor was there any employee or owner of the clinic
    present at the doors and taking action in order to ensure that the doors were
    operating properly and not malfunctioning.” CR114.
    Joan Williams’s Summary of Argument
    The trial court got it right, correctly denying KSADD, L.L.C.’s motion to
    dismiss and also correctly ordering that chapter 74 does not apply. CR180. No
    physician or other health care provider touched, contacted, nor otherwise treated
    Ms. Williams; consequently, there is no applicable presumption that her premises
    11
    Cf. RR39-40 (Ms. Williams’s counsel arguing: “At no point does the defendant in [its]
    supplemental briefing argue that the doors in question were of a type used in providing
    healthcare. . . . I’m just going to show [the Court] -- this is from the Stanley website. This is a
    product listing of the door in question, Your Honor. . . . [H]ere is a product listing of the doors
    that are not in question, and those are healthcare doors. These are also made by Stanley, and
    those are healthcare doors. And what I’m getting at is that KSADD could have chosen to buy
    and install healthcare specific doors, but they didn’t. They installed doors that you see at malls,
    grocery stores, Target, other places. . . . [T]here’s nothing special about these doors that makes
    them a door that is of a type used in healthcare”). Ms. Williams acknowledges that arguments by
    her counsel are not “evidence.” See, e.g., In re MetroPCS Commc’ns, Inc., 
    391 S.W.3d 329
    , 338
    (Tex. App.--Dallas 2013, orig. pro.) (“Golovoy does not explain, and the record does not show,
    how argument by his counsel at the hearing constitutes ‘evidence.’”); McCain v. NME Hosps.,
    Inc., 
    856 S.W.2d 751
    , 757 (Tex. App.--Dallas 1993, no writ) (“Motions and arguments of
    counsel are not evidence”). But Ms. Williams’s counsel’s arguments (based on Stanley’s
    website) were not refuted by KSADD, L.L.C. (at all) during the June 1 recorded hearing. And
    they are consistent with Ms. Williams’s sworn affidavit testimony, which is in the clerk’s record
    and which must be considered in this appeal if KSADD, L.L.C.’s un-offered, un-admitted
    affidavits (and other un-offered, un-admitted documents) are going to be accepted and
    considered by this Court. See p. 13, n. 10, above.
    -18-
    liability claim is instead a health care liability liability claim.         Ms. Williams
    acknowledges KSADD, L.L.C. was an “affiliate” (RR46), but KSADD, L.L.C. has
    never provided health care services, never held a medical license, and never put
    “hands on” nor “treat[ed]” a patient (RR48). Dispositively, KSADD, L.L.C.
    failed in its burden to introduce evidence proving Ms. Williams’s premises liability
    claim has a substantive relationship to the provision of health care. Therefore,
    KSADD, L.L.C.’s appellate issue presented is without merit and should be
    summarily overruled. 12
    Independently, KSADD, L.L.C. has violated Texas procedural law by
    inappropriately appending behind its opening brief (and arguing for reversal based
    on) the Code of Federal Regulations, alleged guidelines from the Accreditation for
    Ambulatory Health Care, Inc. (“AAAHC”), an NFPA “Life Safety Code”
    provision, and hearsay correspondences that are nowhere found in the clerk’s
    record or the reporter’s record and which KSADD, L.L.C. chose not to present to
    the hard working trial court.
    KSADD, L.L.C. never filed any counterclaim (nor requested attorneys’ fees
    in its original answer) against Ms. Williams. See CR33-37; see also Tex. R. Civ
    P. 97(a) (entitled “Compulsory Counterclaims”).            KSADD, L.L.C. repeatedly
    12
    It is unclear why the “ISSUE PRESENTED” on page ii of KSADD, L.L.C.’s opening brief,
    (within its table of contents) includes half a dozen complete Texas Supreme Court citations
    (including S.W.3d citations and years of decision), while the “ISSUE PRESENTED” on page 5
    of KSADD, L.L.C.’s opening brief gives only abbreviated case name references.
    -19-
    requested (both in its original motion to dismiss and in supplemental briefing) that
    Ms. Williams be ordered to pay attorneys’ fees to KSADD, L.L.C. (and to the non-
    suited defendants as well) (CR52, 145); however, KSADD, L.L.C. chose not to
    repeat those requests in its opening brief to this Court. See appellant’s opening br.
    at 17, 37-38; 
    id. at i,
    1 (no request for attorneys’ fees expressly included) (and none
    of the non-suited appellants has joined KSADD, L.L.C.’s brief in this appeal).13
    KSADD, L.L.C.’s (and the non-suited defendants’) failure to repeat its/their
    trial court request(s) for attorneys’ fees in KSADD, L.L.C.’s interlocutory appeal
    brief to this Court (1) appears to be deliberate, and (2) further demonstrates this
    appeal has been taken without sufficient cause and for purposes of delay. 14
    13
    See generally PopCap Games, Inc. v. MumboJumbo, LLC, 
    350 S.W.3d 699
    , 715 (Tex. App.--
    Dallas 2011, pet. denied) (trial court parties who choose not to file their own brief on appeal —
    nor join a complaining party’s brief on appeal — receive no relief from this Court).
    14
    Cf. Archer v. Tunnell, No. 05-15-00459-CV (Tex. App.--Dallas June 23, 2015, n.p.h.)
    (deferring ruling on appellee’s motion for sanctions in cow/physician chapter 74 interlocutory
    appeal); RR47-48 (after KSADD, L.L.C.’s counsel volunteered his personal opinion this is a
    “frivolous” liability case, Ms. Williams’s counsel appropriately responded: “I take exception to
    that. There can be frivolous defenses the same way there can be frivolous claims”).
    Ms. Williams has not filed a motion for sanctions against KSADD, L.L.C. and its counsel, even
    though Ms. Williams believes KSADD, L.L.C.’s interlocutory appeal is objectively frivolous
    (and believes this Court should so determine) in light of Ross v. St. Luke’s Episcopal Hospital.
    Cf. Dallas County v. Sides, 
    430 S.W.3d 649
    , 651, 654 (Tex. App.--Dallas 2014, no pet.)
    (teaching this Court will not sanction an appellant unless the Court “conclude[s] the
    circumstances of this appeal were truly egregious”); Tex. R. App. P. 45 (empowering this Court
    to determine that an appeal is frivolous “on its own intiative” after considering documents “in
    the record” and “briefs” and “other papers filed in the court of appeals”) (emphases supplied).
    -20-
    Joan Williams’s Arguments and Authorities
    I.    Ms. Williams’s Claim is Not a Chapter 74 Health Care Liability Claim
    Subject to the Medical Expert Report Requirement
    The purpose of the Texas Medical Liability Act’s expert report requirement
    is not to have claims dismissed regardless of their merits, but rather it is to identify
    and deter frivolous claims while not unduly restricting a claimant’s rights.
    Scoresby v. Santillan, 
    346 S.W.3d 546
    , 554 (Tex. 2011). The Legislature did not
    intend for the expert report requirement to apply to every claim for conduct that
    occurs in a health care context. See Loasisiga v. Cerda, 
    379 S.W.3d 248
    , 258
    (Tex. 2012). Under the supreme court’s more recent opinion in Ross v. St. Luke’s
    Episcopal Hospital, 
    462 S.W.3d 496
    (Tex. 2015), Ms. Williams’s premises
    liability claim against KSADD, L.L.C. for injuries sustained (when she was hit by
    defendant’s malfunctioning automatic door) is a claim for which the Legislature
    did not intend to require service of a medical expert report. In accordance with
    Ross, KSADD, L.L.C.’s motion to dismiss for lack of a medical expert report was
    correctly denied.
    In Ross, the Supreme Court of Texas held that “for a safety standards-based
    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” and “that
    nexus must be more than a ‘but for’ 
    relationship.” 462 S.W.3d at 504
    . KSADD,
    L.L.C.’s position that Ms. Williams’s claim is a health care liability claim (simply
    -21-
    because it concerns departures from accepted standards of safety) fails the test laid
    out by the supreme court in Ross for lack of a substantive nexus to the provision of
    health care. After Ross, in order to constitute a health care liability claim, the
    defendant must show that the safety standards at issue have a substantive nexus to
    the provision of healthcare. See also 
    id. at 506
    & n.2 (Lehrmann, J., concurring,
    joined by Devine, J.) (“The Court holds, and I agree, that a cause of action 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”). 15
    Moreover, Ms. Williams’s case is even further away from chapter 74 than
    the facts first presented Valley Regional Med. Center v. Camacho, No. 13-14-
    00004-CV (Tex. App.--Corpus Christi May 14, 2015, no pet.) (mem. op.).                         In
    Camacho, the automatic doors were “hooked up to an alarm called the Infant
    Abduction System,” a system “designed to prevent the abduction of newborn
    babies from the nursery section of the hospital” that “causes the sliding doors to
    automatically close when it detects the presence of an ankle bracelet which is
    15
    Cf. RR48-49 (trial court aptly observing: “remember the whole crisis was about how medical
    malpractice premiums had skyrocketed, and all the doctors needed this protection, and they --
    and this particular claim wouldn’t even be a -- it would be covered by typically an insurance
    policy that’s just a general premises liability policy, not a medical malpractice insurance
    policy”); Lucas v. United States, 
    757 S.W.2d 687
    , 691 (Tex. 1988) (majority observing twentieth
    century leglislature found that a “medical malpractice insurance crisis” had been created and that
    “satisfactory insurance coverage . . . [was] often not available . . .”).
    -22-
    secured to each infant.” The doors in Camacho were activated by the proximity of
    sensors attached to each infant patient’s ankle and would close the doors to prevent
    someone from leaving with or kidnapping an infant who was still a patient that had
    not been dismissed from the hospital. As such, the doors in Camacho were much
    more a part of ongoing medical treatment and ongoing medical security and safety
    in the women’s center/newborn department at Valley Regional Medical Center.
    In Ms. Williams’s case, by stark contrast, there is no such indirect
    relationship to the provision of health care, much less a substantive nexus between
    the provision of health care and the malfunctioning main entrance doors as
    required under Ross. The doors that were the subject of KSADD, L.L.C.’s motion
    to dismiss are mere doors — main entrance doors, not security doors specially
    designed and engineered to react to the unauthorized movement of infant patients
    beyond a certain portion of the premises. The doors at issue in Ms. Williams’s
    case are not uniquely designed for medical treatment or for medical facilities.
    CR102 & n.5, 119; RR39-40.
    The doors at issue in this case were not prescribed to Ms. Williams nor were
    they prescribed by a doctor to the friend that Ms. Williams was visiting and
    picking up. CR103, 112-13. The doors at issue in this case can be found at
    grocery stores, shopping malls, banks, and almost any other variety of business
    premises one can imagine. CR103, 113
    -23-
    In   Ross,   our   supreme    court      promulgated   certain     non-exclusive
    considerations for courts attempting to draw the line between a safety standards-
    based claim that is not an HCLC and one that is an HCLC:
    1.     Did the alleged negligence of the defendant occur in the
    course 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
    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; or
    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?
    Ross v. St. Luke’s Episcopal Hospital, 
    462 S.W.3d 496
    , 505 (Tex. 2015). On the
    record before this Court, the answer to each of these questions in Ms. Williams’s
    case is “no” and the trial court’s order should be summarily affirmed.
    First, the record does not show that the automatic door malfunction occurred
    in the course of KSADD, L.L.C. performing any task at all, much less a task to
    -24-
    protect patients from harm. CR104. There were no doctors or employees present
    when the doors hit Ms. Williams.       CR104, 113.     There were no doctors or
    employees operating the doors, either. 
    Id. There was
    a witness who was in the
    waiting room who saw the doors malfunction and hit Ms. Williams, and who will
    testify that (1) there were no doctors or employees of KSADD, L.L.C. present, and
    (2) the doors opened suddenly and without warning and without Ms. Williams
    pressing the activation plate that would normally open the doors. CR104. Ms.
    Williams was not a patient. CR104, 112.
    Second, Ms. Williams was injured in the entrance to the facility. CR104,
    113, 116. Ms. Williams was not in an area where patients might be during their
    treatment so that the obligation of the provider to protect persons who require
    special medical care was implicated. CR104-05. Ms. Williams was not in an area
    where patients were being treated, nor was she in the patient waiting room. 
    Id. Third, at
    the time of her injury Ms. Williams was not in the process of
    seeking or receiving health care. CR105. Again, Ms. Williams was not a patient.
    CR105. The only reason Ms. Williams was on the clinic’s premises that day was
    because she was picking up a friend.. CR105, 113. She was not, and had never
    been, a patient seeking medical care at the premises, nor had she ever received
    medical care at the premises. 
    Id. -25- Fourth,
    at the time of the injury Ms. Williams was not providing or assisting
    in providing health care. CR105. When she was injured by the malfunctioning
    door, Ms. Williams had never been contacted by any employee or owner of the
    clinic, nor had any employee or owner of the clinic mentioned anything regarding
    the automatic doors to her. CR105, 113. Ms. Williams was never told by any
    employee or owner of the clinic that she would be assisting in the medical
    treatment of her mend. Id.; see also RR49 (trial court stating: “There’s no
    evidence in [sic] the motion that she knew that she was assuming these duties
    voluntarily”). Joan Williams has never been licensed to provide medical treatment
    and has no medical training whatsoever. CR105. At no time did any employee or
    doctor at the clinic ask Ms. Williams to assist in providing health care to
    Ms. Williams’s friend. CR105.
    Fifth, there is no evidence in the record that the negligence alleged by
    Ms. Williams is based on safety standards arising from professional duties owed by
    KSADD, L.L.C. as a health care provider.                  CR105.16       Ms. Williams’s claim
    regarding the malfunctioning automatic doors has always centered on that very fact
    — the doors on KSADD, L.L.C.’s premises malfunctioned and hit her. CR105,
    113. Ms. Williams’s complaint is and always has been that KSADD, L.L.C.’s
    16
    See Tex. R. App. P. 34.1 (“The appellate record consists of the clerk’s record and, if necessary
    to the appeal, the reporter’s record”).
    -26-
    automatic doors malfunctioned and knocked her down, not that any doctor or
    employee of the clinic did anything wrong or that her claim in any way is related to
    medical treatment or medical safety standards. CR105-06.
    Sixth, the instrumentality alleged in KSADD, L.L.C.’s negligence is a door,
    not an instrumentality unique to the provision of health care. CR106. There is no
    evidence that the automatic doors were particularly suited to providing for the
    safety of patients. CR106, 119. Nor were the doors in question designed to
    provide for the safety of medical patients.     
    Id. The doors
    in question were
    manufactured by Stanley Access Technologies, and are Automatic Swing Door
    Operator Systems, serial numbers A515400 (inner door) and A597485 (outer
    door). CR106. Stanley Access Technologies’ website indicates that these doors
    are “beneficial for any commercial, retail, or industrial environment . . .” (see
    CR106 & n.18, citing to http://www.stanleyaccess.com/automatic-swing-door-
    operators), not that they are specially designed for the healthcare industry and
    setting.   Additionally, Stanley Access Technologies does indeed manufacture
    automatic doors for Intensive Care Units, Hospitals, and Other Healthcare
    Facilities (see CR 106 & n.19, citing to http://www.stanleyaccess.com/manual-icu-
    ccu-doors). At no time has KSADD, L.L.C. alleged in response to Ms. Williams’s
    numerous discovery requests that the doors that injured Ms. Williams were the
    specialized healthcare facility doors marketed by Stanley Access Technologies,
    -27-
    because they simply were not. CR106. Instead, the entrance doors at KSADD,
    L.L.C.’s premises at 3865 Childress Avenue in Mesquite, Texas, are normal doors
    not specialized to the healthcare industry. CR106.
    Nor does the record demonstrate that the automatic doors were installed to
    comply with a safety-related requirement set for health care providers by a
    governmental or accrediting authority. CR106. To this point, in its motion to
    dismiss, KSADD, L.L.C. cited Tex. Admin. Code § l35.10(b), a regulation
    pertaining to Ambulatory Surgical Centers, which does not require a defendant to
    install automatic doors. CR106-07. The language in regulation 135.10(b) simply
    states that “hazards that might lead to slipping, falling, electrical shock, bums,
    poisoning, or other trauma shall be eliminated.”         25 Tex. Admin. Code
    § 135.10(b). CR107. KSADD, L.L.C. has not provided, and there does not exist,
    any safety-related requirement for health care providers to furnish automatic doors
    on behalf of their patients. CR107.
    Finally, for the same reasons addressed in the previous paragraph, the record
    contains no evidence that the negligence alleged by Ms. Williams regarding the
    malfunctioning automatic doors occurred in the course of KSADD, L.L.C. taking
    action or failing to take action necessary to comply with safety-related
    requirements set for health care providers by governmental or accrediting agencies.
    CR107, 112-14.     (New appellate arguments at, e.g., pages 22-28 of KSADD,
    -28-
    L.L.C.’s opening brief, and new appendix items appended to that brief, are dehors
    the record and should be ordered stricken in this Court’s opinion in fairness to the
    trial court and to discourage would-be interlocutory appellants from attempting to
    appeal on a different record than they presented to the trial court.)
    Considering all seven factors set forth in Ross, and the evidence (if any)
    properly admitted below, Ms. Williams’s claim alleges a departure from standards
    of safety that do not have a “substantive relationship with the providing of medical
    or health care.”    Ross v. St. Luke’s Episcopal Hospital, 
    462 S.W.3d 496
    , 504
    (Tex. 2015). Accordingly, Ms. Williams’s claim is not a health care liability
    claim, KSADD, L.L.C.’s issue presented is without merit, and the trial court’s
    order denying KSADD, L.L.C.’s motion to dismiss should be summarily affirmed.
    II.   There Was and Is No “Presumption” that Ms. Williams’s
    Premises Liability Claim Was Instead a Health Care Liability Claim
    In both its written and oral advocacy below (but not in this Court), KSADD,
    L.L.C. repeatedly (and erroneously) argued (1) there is a “presumption” that
    chapter 74 governs Ms. Williams’s premises liability claim, (2) KSADD, L.L.C.
    should enjoy the benefit of that alleged presumption, and (3) Ms. Williams had not
    met her alleged burden to rebut KSADD, L.L.C.’s alleged presumption. CR145;
    RR6-7, 19-20, 27. Early in its June 1 oral arguments to the trial court, KSADD,
    L.L.C. erroneously asserted:
    -29-
    We believe that this is a healthcare liability claim. And this is
    really the key presumption in this case. It’s from this -- and I’m
    going to mess this name up -- it’s Loaisiga, L-O-A-I-S-I-G-A, versus
    Cerda. And this -- the key phrase from this case is -- the breadth of
    the statute’s text essentially creates a presumption that a claim is a
    healthcare liability claim if it is a claim against a physician or
    healthcare provider and is based on facts implicating the defendant’s
    conduct during the course of a patient’s care, treatment or
    confinement.
    ***
    This presumption -- this healthcare presumption, because it’s
    during a patient’s care, has not been rebutted under the new Ross
    case . . . . So our argument is that we’ve shown [sic] evidence of all
    six of the Ross considerations . . . .
    RR6-7 (emphases supplied).
    KSADD, L.L.C.’s appellate brief nowhere repeats these erroneous
    presumption / failure-to-rebut arguments, which were and remain without merit as
    a matter of law. The Loaisiga case involved a physician allegedly groping female
    patients’ breasts “while examining them for sinus and flu symptoms.” Loaisiga v.
    Cerda, 
    379 S.W.3d 248
    , 252 (Tex. 2012). As every person who sees a doctor
    understands, physicians often have to touch sensitive parts of patients’ bodies in
    order to chase down and diagnose medical complaints. Such touching may be
    inappropriate, or it may be appropriate but misinterpreted, so (in fairness to
    physicians) a presumption that “inappropriate touching” claims against a physician
    are health care liability claims arguably makes some sense. See 
    id. (“We hold
    that
    the TMLA creates a rebuttable presumption that a patient’s claims against a
    -30-
    physician or health care provider based on facts implicating the defendant’s
    conduct during the patient’s care, treatment, or confinement are HCLCs”). 17
    The reason KSADD, L.L.C. deliberately waived its “presumption” / failure-
    to-rebut argument in this Court is that KSADD, L.L.C.: is (in its counsel’s own
    words) a “landlord entity” (RR45); is not a physician; never physically examined
    Ms. Williams (or Ms. Williams’s friend); never touched, groped or examined
    Ms. Williams (or Ms. Williams’s friend); and (for anything this record shows)
    never exercised any kind of medical judgment in failing to maintain or repair the
    ordinary Stanley automatic doors that malfunctioned and injured Ms. Williams.
    Conclusion and Prayer for Relief
    Ms. Williams requests that KSADD, L.L.C.’s issue presented be summarily
    overruled, that the interlocutory order appealed from be summarily affirmed, that
    costs of this interlocutory appeal be taxed against KSADD, L.L.C.
    17
    A similar presumption may benefit non-physician health care providers sued by patients. Cf.
    Harris Methodist Fort Worth v. Ollie, 
    342 S.W.3d 525
    , 527 (Tex. 2011) (per curiam) (“the
    essence of [patient’s] claim centers on the failure of Harris Methodist to act with a proper degree
    of care to furnish a dry floor, warn her of the hazards of a wet bathroom floor, or some similar
    failure to act”); Garland Community Hosp. v. Rose, 
    156 S.W.3d 541
    , 545-46 (Tex. 2004) (“[T]he
    Hospital’s credentialing activities are an inseparable part of the medical services Rose received.
    One of a hospital’s primary functions is to provide a place in which doctors dispense health care
    services. The quality of a health care provider’s medical staff is intimately connected with
    patient care. A hospital’s credentialing of doctors is necessary to that core function and is,
    therefore, an inseparable part of the health care rendered to patients. . . . When a plaintiff’s
    credentialing complaint centers on the quality of the doctor’s treatment, as it does here, the
    hospital’s alleged acts or omissions in credentialing are inextricably intertwined with the
    patient’s medical treatment and the hospital’s provision of health care”).
    -31-
    In order to prevent KSADD, L.L.C. from receiving further unwarranted
    delay of a jury trial (CR191), Ms. Williams requests that this Court order that no
    motion for rehearing may be filed in this Court pursuant to its authority under Tex.
    R. App. P. 2 and 49.9. Cf. Davis v. City of Robinson, 
    919 S.W.2d 849
    , 852
    (Tex. App.--Austin 1996, writ denied) (per curiam) (refusing to deny appellants’
    right to file their motion for rehearing because before 1997 a motion for rehearing
    in the appellate court was still “a procedural jurisdictional prerequisite to filing an
    application for writ of error to the Supreme Court of Texas”).
    Ms. Williams also requests all other appropriate relief to which she may be
    entitled on the record that is (and is not) properly before this Court, including a
    determination pursuant to Tex. R. App. P. 45 that KSADD, L.L.C.’s interlocutory
    appeal is frivolous.
    -32-
    Dated: October 23, 2015   Respectfully submitted,
    TED B. LYON & ASSOCIATES, P.C.
    John Hallman (24092474)
    Marquette Wolf (00797685)
    Ben Taylor (19684500) ) [btaylor@tedlyon.com]
    18601 LBJ Freeway, Suite 525
    Mesquite, Texas 75150-5632
    Telephone: (972) 279-6571
    Facsimile: (972) 279-3021
    Counsel for the Appellee,
    Joan Williams
    -33-
    Certificate of Word Count Compliance
    Relying on the word count function in the word processing software used to
    produce this document, I certify that the number of words in this brief (excluding
    any caption, identity of parties and counsel, statement regarding oral argument,
    table of contents, index of authorities, statement of the case, statement of issues
    presented, statement of jurisdiction, statement of procedural history, signature,
    proof of service, certification, certificate of compliance, and appendix) is 5,618.
    Ben Taylor
    -34-
    Certificate of Filing and Service
    I hereby certify that on the 23rd day of October, 2015, this brief (with
    appended June 1, 2015 reporter’s record) has been e-filed today with the Clerk of
    the Fifth Court of Appeals; also, a copy has also been sent today, October 23,
    2015, by e-mail to counsel and by first-class United States Mail, postage prepaid,
    to the presiding trial judge in the trial court, properly posted and addressed per
    below:
    Russell G. Thornton [rthornton@trtblaw.com]
    R. Gregg Byrd [gbyrd@trtblaw.com]
    THIEBAUD REMINGTON THORNTON BAILEY LLP
    Two Energy Square
    4849 Greenville Avenue, Suite 1150
    Dallas, Texas 75206
    (counsel for the appellant, KSADD, L.L.C.)
    Hon. Ken Tapscott, Judge
    Dallas County Court-at-Law No. 4
    George L. Allen, Sr. Courts Bldg.
    600 Commerce St. # 575
    Dallas, Texas 75202
    (courtesy copy)
    ________________________________
    Ben Taylor
    -35-
    1
    1                         REPORTER'S RECORD
    VOLUME 1 OF 1 VOLUMES
    2                TRIAL COURT CAUSE NO. CC-14-03455-D
    FILED IN
    COURT OF APPEALS NO. 05-15-00776-CV
    5th COURT OF APPEALS
    3                                                     DALLAS, TEXAS
    7/28/2015 8:36:14 AM
    4    JOAN WILLIAMS,                   § IN THE    COUNTY COURT
    §                 LISA MATZ
    Clerk
    5          PLAINTIFF,                 §
    §
    6    VS.                              § AT LAW NO. 4
    §
    7                                     §
    NAGARAJ KIKKERI, M.D.,           §
    8    KIKKERI INTERNATIONAL,           §
    P.A., d/b/a ADVANCED PAIN        §
    9    SOLUTIONS, NORTH TEXAS           §
    TEAM CARE SURGERY CENTER,        §
    10    L.L.C., and KSADD,               §
    L.L.C.,                          §
    11                                     §
    DEFENDANTS.                § DALLAS COUNTY, TEXAS
    12
    13
    14                 ********************************
    15                   DEFENDANTS' MOTION TO DISMISS
    16                 *********************************
    17
    18
    19
    20                       On the 1st day of June, 2015, the
    21   following proceedings came on to be heard in the
    22   above-entitled and -numbered cause before the Honorable
    23   Ken Tapscott, Judge presiding, held in Dallas, Texas;
    24                       Proceedings reported by
    25   computerized-machine shorthand.
    2
    1                    A P P E A R A N C E S
    2
    Mr. Marquette William Wolf
    3   SBOT NO. 00797685
    Mr. John Andrew Hallman
    4   SBOT NO. 24092474
    TED B. LYON & ASSOCIATES
    5   18601 LBJ Freeway, Suite 525
    Mesquite, Texas 75150
    6   Telephone: (972) 279-6571
    Facsimile: (972) 279-3021
    7   Mwolf@tedlyon.com
    8            ATTORNEYS FOR PLAINTIFF
    9
    Mr. R. Gregg Byrd
    10   SBOT NO. 90001675
    THIEBAUD REMINGTON THORNTON BAILEY LLP
    11   4849 Greenville Avenue, Suite 1150
    Dallas, Texas 75206
    12   Telephone: (214) 954-2237
    Facsimile: (214) 754-0999
    13   Gbyrd@trtblaw.com
    14            ATTORNEY FOR DEFENDANTS
    15
    16
    17
    18
    19
    20
    21
    22
    23
    24
    25
    3
    1                             I N D E X
    2                             VOLUME 1
    3                  (DEFENDANTS' MOTION TO DISMISS)
    4   June 1, 2015
    5                                                    Page Vol.
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    7   Proceedings.................................        4   1
    8
    Defendants' Motion to Dismiss...............        4   1
    9
    Plaintiff's Response........................       27   1
    10
    11   Court's Ruling..............................       50   1
    12   Court Reporter's Certificate................       58   1
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    4
    1                    P R O C E E D I N G S
    2                 THE COURT:   We're on the record in the case
    3   of Joan Williams versus Nagaraj Kikkeri, K-I-K-K-E-R-I,
    4   M.D., et al., Cause Number CC-14-03455-D.
    5                 Counsel, note appearances for the record,
    6   please.
    7                 MR. WOLF:    Marquette Wolf and John Hallman
    8   on behalf of plaintiff.
    9                 THE COURT:   Okay.
    10                 MR. BYRD:    Greg Byrd on behalf of all the
    11   defendants.
    12                 THE COURT:   All right.   We're here today on
    13   Defendants' motion to dismiss.
    14                 Go ahead.
    15                 MR. BYRD:    Your Honor, as a brief summary
    16   for this hearing -- I understand that you're probably
    17   very familiar with this case law -- this case involves a
    18   former patient of Dr. Kikkeri that agreed to be a
    19   responsible adult, a ride home for one of her friends.
    20   And she had the same situation, I think it was, back in
    21   2007, where she was one -- she had surgery, and she also
    22   had to get a ride home from a responsible adult.    Two
    23   minutes, she arrives at the facility, is walking in the
    24   door, and as far as we can trace it back to the exact
    25   time line based on the EMS records and the PACU records,
    5
    1   her friend exits the PACU unit.     Two minutes later she
    2   has a collision with the door.     We believe that this is
    3   a healthcare liability claim.
    4                THE COURT:    Can I ask --
    5                MR. BYRD:    Yes, sir.
    6                THE COURT:    Now, this may have some
    7   importance, it may not, from your perspective, but was
    8   she actually -- had she made it into the facility to
    9   pick up her friend, Ms. Williams?     Had she actually --
    10   so the -- as I understand the facts, the first set of
    11   doors are manual doors, the second set of doors, these
    12   are the automatic open and close type doors, right?
    13                MR. BYRD:    There is a hallway and a
    14   breezeway, so to speak.   Both doors are automatic.
    15                THE COURT:    Oh, both doors are automatic.
    16   I thought one set was manual.
    17                MR. BYRD:    Well, that's -- that was in her
    18   pleading, but that's not --
    19                THE COURT:    Okay.   All right.   So there's a
    20   second set of doors, and she -- when she was hit by the
    21   door, was she actually helping her friend at that
    22   particular time exit the facility, or was she going in
    23   to get her friend?
    24                MR. BYRD:    My understanding, she was going
    25   in to get her friend, and the surgery had been planned
    6
    1   in reliance on her friend having a ride home.
    2                   THE COURT:   Right.    Yeah.    They didn't want
    3   the person to drive home after having anesthesia
    4   administered and -- right.
    5                   MR. BYRD:    And they also want someone that
    6   just hadn't recently had anesthesia to receive all the
    7   instructions.
    8                   THE COURT:   Okay.    All right.    Go ahead.
    9                   MR. BYRD:    Yes, Your Honor.
    10                   We believe that this is a healthcare
    11   liability claim.    And this is really the key presumption
    12   in this case.    It's from this -- and I'm going to mess
    13   this name up -- it's Loaisiga, L-O-A-I-S-I-G-A, versus
    14   Cerda.   And this -- the key phrase from this case is --
    15   the breadth of the statute's text essentially creates a
    16   presumption that a claim is a healthcare liability claim
    17   if it is a claim against a physician or healthcare
    18   provider and is based on facts implicating the
    19   defendant's conduct during the course of a patient's
    20   care, treatment or confinement.
    21                   And that's what we have in this case.       Her
    22   friend had just left the PACU and was going into her
    23   holding area where she's monitored and she needs to rest
    24   and receives any additional care as necessary.
    25                   This presumption -- this healthcare
    7
    1   presumption, because it's during a patient's care, has
    2   not been rebutted under the new Ross case, which
    3   has -- the Ross case lined out six -- or actually seven
    4   factors.   My opinion is that there's actually six
    5   factors because two of them are alteratives.      Either
    6   you're seeking or receiving care or you're assisting and
    7   providing it.    I don't see how you can provide both.
    8                   So our argument is that we've shown
    9   evidence of all six of the Ross considerations from that
    10   case.   And again, because we believe that this is still
    11   a healthcare liability claim in line with Ross, I'd
    12   request dismissal with prejudice.      That's kind of the
    13   summary of our argument.      I was going to go through the
    14   elements next, or I can go through the recent case law,
    15   whatever would be your preference.
    16                   THE COURT:    Well, you argue it however you
    17   want, if you want to go through the elements.      But your
    18   position is that she was -- essentially, your big
    19   picture position is that at the time she was injured,
    20   Ms. Williams was assisting in the providing of
    21   healthcare.
    22                   MR. BYRD:    Yes.
    23                   THE COURT:    That's the big picture?
    24                   MR. BYRD:    Yes, Your Honor.
    25                   THE COURT:    Because she was there as a
    8
    1   responsible adult who helped a patient who had just been
    2   operated on actually leave the facility in a, I guess,
    3   responsible way and not being informed -- having -- not
    4   being able to drive machinery after having anesthesia
    5   administered, and also making sure that she left the
    6   hospital with the appropriate postsurgical instructions,
    7   meaning left with somebody who had just not had
    8   anesthesia administered to them.
    9                   MR. BYRD:    Yes, Your Honor.
    10                   THE COURT:    Okay.     All right.   So, now go
    11   ahead.     I guess if you want to go through the facts, you
    12   can.     But that's the big picture, Ms. Williams was
    13   assisting in providing healthcare.
    14                   MR. BYRD:    She was.     And this surgery -- if
    15   her name -- if her friend did not have a name in the
    16   medical record identifying a specific, responsible
    17   adult, the surgery would not have been performed.          We
    18   cannot release anyone postoperatively without a
    19   responsible adult.     And so this surgery was performed in
    20   reliance on her being there.      And as we see, when she
    21   was not able to fulfill her duties, she had to be
    22   replaced not by a visitor, such as the plaintiff in
    23   Ross; she was replaced by an employee of the facility to
    24   help get out of the facility in a wheelchair.
    25                   So that just shows that this -- this is not
    9
    1   a Ross-type case.    It doesn't involve a visitor.
    2   It's -- and actually, this factor, her participation in
    3   the healthcare, distinguishes it from the other cases
    4   that follow this.    And I'll go into that.
    5                  THE COURT:    Also, that Corpus Christi case
    6   that they cited, is that also --
    7                  MR. BYRD:    Well, let me see.   And let me go
    8   through those cases real quick.
    9                  THE COURT:    Well, I think it's the Camacho
    10   case.
    11                  MR. BYRD:    Yes.   There's Camacho 1 and
    12   Camacho 2.    Camacho 1 was the one that we initially
    13   cited.    And that one came out before Ross, and it was
    14   the door -- the automatic door case, the baby theft
    15   prevention doors.    Camacho 1 is now, in fact, under
    16   Ross.    It's no longer good law.     And then, now we have
    17   Camacho 2, which came out after Ross.
    18                  In the Camacho 2 case -- let me see my
    19   briefing on that.    There's basically two things, and
    20   that's -- two things we can get from this Camacho 2
    21   case, which is in our binder.       It is Tab Number 22.     The
    22   first thing, the first key holding in Camacho 2 was
    23   that -- the first element of Ross, that the alleged
    24   negligence occurred in the course of the defendant's
    25   performing tasks to protect patients from harm.       That
    10
    1   alone, that alone is not enough according to the Camacho
    2   case, according to the Camacho court.    It's got to be
    3   something else.
    4                 In Section 10 of this case, they say:
    5   Arguably, VRMC's -- that's the hospital -- alleged
    6   negligence occurred in the course of its performance of
    7   tasks with the purpose of protecting patients, i.e.,
    8   mothers, infants -- newborn infants, from harm.
    9                 However -- and this is where the -- this is
    10   where we find out it's not enough:
    11                 However, consideration of the remaining
    12   Ross factors militates against a finding that her claim
    13   has a substantive relationship with the providing of
    14   medical or health care.
    15                 Okay.   So one isn't enough.
    16                 THE COURT:   Do you realize where you're
    17   headed?   It's kind of like if she comes in there -- and
    18   this is why -- and I'm going to follow the law here, but
    19   this is -- ultimately, it leads to the absurdity that if
    20   you're walking in to visit the patient and you slip and
    21   fall, it's a straight-up premises liability claim.     If
    22   you're walking in to push them out in a wheelchair, as
    23   the responsible adult, and maybe at the same time
    24   visiting them, then it's a healthcare liability claim.
    25                 I mean, that's -- wow.    And you know what's
    11
    1   interesting too is that this person who is assisting as
    2   the responsible adult -- obviously, just removing
    3   this -- let's say that this person could actually be
    4   qualified to render a medical opinion, like a nurse or a
    5   doctor, that -- but let's just say it's just your
    6   average Joe responsible adult.     That person would never
    7   be qualified to provide medical care, give an opinion on
    8   medical care.    I just -- I -- but it's really -- the
    9   Supreme Court has done this to itself, and -- but it
    10   really does lead to some absurd results.
    11                   You're there one day before.   If you come
    12   to visit me the day before you slip and fall, it's a
    13   premises liability case; it's not a -- it's not a
    14   Chapter 74 case.    But you come there the next day to
    15   actually help get me home, as the responsible adult, and
    16   you slip and fall or you have a door close in on you,
    17   now you need an expert report to hold the institution --
    18   it leads to absurd results.
    19                   MR. BYRD:   You know, I was thinking about
    20   that.   Where does it stop?    Where does it stop?   And
    21   this is where it stops.     It stops where the policies and
    22   procedures and the statutes stop, basically, where this
    23   Texas Administrative Code stops.     If that's not covered
    24   by it, if the policy and procedure is not covered by it,
    25   that's where it stops.
    12
    1                 Here we have two -- two guidelines:       We
    2   have the Texas Administrative Code.     We also have the
    3   policies and procedures.     And as far as assisting,
    4   postoperative discharge instructions are very important.
    5   I've done medical malpractice for several years.        There
    6   are cases where miscommunication regarding -- and this
    7   comes up a lot in a postoperative infection context.
    8   Miscommunication or alleged miscommunication regarding
    9   postoperative instructions, they can cause a lot of
    10   problems.
    11                 THE COURT:    I understand all that's
    12   important to rendering good medical care.      I mean, I
    13   just had a C5-C6 fusion myself March 5th, this nice
    14   little cut here on my neck, so --
    15                 MR. BYRD:    Wow.
    16                 THE COURT:    When I woke up, I wasn't
    17   exactly on planet Earth, so to speak, there for a little
    18   while, and so I know what you're talking about.        People
    19   have got to be there.     They've got to know what's
    20   appropriate after you get home after you get out of the
    21   hospital.   I'm not diminishing that at all.
    22                 MR. BYRD:    Yes, Your Honor.
    23                 THE COURT:    I'm just saying, Gosh, the day
    24   before, you're a licensee, you're just -- you come in to
    25   visit a friend, and you just happen to be the person
    13
    1   also who's going to be the responsible adult.    So the
    2   moment you come in to visit and you slip and fall or you
    3   get smacked by the door, straight-up premise liability
    4   claim, not a Chapter 74 claim.   You show up the next day
    5   to pick them up and you slip and fall and you get
    6   smacked by the door or some other type of premises
    7   liability, premises defect, whatever, and all of a
    8   sudden, you need an expert report.
    9                And that's really -- I know that's your
    10   position, is that, hey, look, big picture, she is
    11   assisting in the providing of healthcare by being a
    12   responsible adult.
    13                MR. BYRD:    Yes, Your Honor.
    14                THE COURT:   That's it.
    15                MR. BYRD:    I understand.   And there's --
    16   and that's well spoken from the plaintiff's perspective.
    17                THE COURT:   Well, it's really just -- I'm
    18   talking about just in general, aside from --
    19                MR. BYRD:    I understand.
    20                THE COURT:   You know, one day you're
    21   walking in, it's a straight-up premises liability case.
    22   The next day you're walking in, unbeknownst to you, and
    23   all of a sudden you are -- you are now assisting in
    24   healthcare, even though we would all agree that the vast
    25   majority of people who are acting in that capacity,
    14
    1   they're not medical experts, they can't render any type
    2   of healthcare appropriately in the sense of being
    3   qualified to treat someone, diagnose someone.            They're
    4   just there basically to take down some -- I mean,
    5   collect the written instructions from the doctor, maybe
    6   take down some oral instructions, and then basically be
    7   a ride home.
    8                   MR. BYRD:    I understand.
    9                   THE COURT:   Now, if that's it in a
    10   nutshell --
    11                   MR. BYRD:    I understand.
    12                   THE COURT:   -- if that's it in a nutshell,
    13   and now they have to have an expert report -- and I know
    14   I'm just bashing on the policy of it all.         And I'm not
    15   bashing you.     It just seems to me that they have done
    16   this to themselves.     They have created this problem
    17   where one day you don't need an expert report, the next
    18   day you need one.
    19                   MR. BYRD:    Yes, Your Honor.     And this --
    20                   THE COURT:   I hear you.      Yeah.
    21                   MR. BYRD:    Well spoken, well taken.
    22                   THE COURT:   All right.      Go ahead.
    23                   MR. BYRD:    Just brief follow-up to those
    24   comments.     These are statutes our defendants have to
    25   follow.     So imagine they're discharging patients without
    15
    1   a responsible adult.    Imagine they leave that door in
    2   the condition described by plaintiff, smacking people,
    3   smacking plaintiffs, smacking the patients on the way
    4   out three times, her friend in a wheelchair.      Violation
    5   of the statute?    Of course.
    6                 Of course it's a statute violation.       Which
    7   means from the defendants' point, we've got these rules,
    8   we've got to follow these rules, and now you're telling
    9   us these rules, we follow them, that's not healthcare?
    10   That's the flip side to this.      If these rules are
    11   important, if it's important for them to follow them,
    12   it's healthcare.
    13                 THE COURT:   You know, again, I read that
    14   these -- somewhere in the pleadings that allegedly these
    15   doors had been -- and I may -- I'm sorry if I'm
    16   mischaracterizing the evidence -- that they had been
    17   malfunctioning for -- is it three days or three hours or
    18   something along those lines, that they hadn't been
    19   working properly for some period of time, allegedly?
    20                 MR. BYRD:    Yes, Your Honor.
    21                 THE COURT:   Okay.    So five minutes before
    22   this lady gets knocked down, somebody is in there to
    23   visit, and, bam, they get knocked down, and they get
    24   injured.   They file a lawsuit against the facility, and
    25   they don't need any kind -- they're just there to visit
    16
    1   mom, dad, grandma, grandpa, say hi, see if you're okay,
    2   and then they get a kiss from a door.
    3                  So then, the next person walks in five
    4   minutes later who's a responsible adult, who's there to
    5   pick somebody up and maybe, at the same time, see their
    6   friend.   They just agreed to be the person to give their
    7   friend a ride home and to get these instructions.      And
    8   now they get knocked down, they get a kiss from the
    9   door, they slip and fall, and now they need an expert
    10   report about the lack of safety in the facility in the
    11   rendering of healthcare because they're assisting in
    12   providing healthcare.
    13                  Oh, my God.   It's just -- it just -- we are
    14   treating basically the same people -- the same types
    15   of -- the same types of injury in two different ways,
    16   depending on why they walked in the door.    And it's just
    17   like -- and I know you tell me this is a policy, too,
    18   that if somebody's there for -- if you're there to visit
    19   me, and I'm in the hospital, and you slip and fall and
    20   bust your head, no, that's not a healthcare liability
    21   claim.    But if I walk out the door where I'm being
    22   treated, I'm there postoperative, they want you to walk
    23   it off and to walk around, try to get your blood flowing
    24   again, everything else -- because they had me up within
    25   a certain number of hours, they wanted me to walk around
    17
    1   the hospital -- if I walk out, and there's a pool of
    2   water and I slip and fall and I bust my head open, it's
    3   a healthcare liability claim.    But if you're there to
    4   visit me and you do the same thing five minutes earlier
    5   and you fall and bust your head open, it's not a
    6   healthcare liability claim.
    7                 It just leads to absurd results, but
    8   I -- but go ahead.   Go through the seven things here.
    9   And I don't want you to -- I don't want you to feel like
    10   I'm not receptive to your argument.    It just needs --
    11   it's frustrating from a judicial view because it doesn't
    12   seem, to me, to lead to any type of just result.
    13                 They're just -- you're treating -- I mean,
    14   the injuries could be five minutes apart, literally.       It
    15   could be five minutes apart.    One person whose walking
    16   in to visit, I'm treated differently than the person who
    17   basically is going to be there 15 minutes more only
    18   because they have to receive written and oral
    19   instructions from the treater before they walk the
    20   person out.
    21                 You know, the first person's coming in to
    22   visit, they slip and fall, they get bust -- they're
    23   just -- they're treated differently than the person who
    24   walks in five minutes later.    And there's very, very
    25   little difference between the two, as far as -- again,
    18
    1   when you say they're assisting in providing care, it
    2   is -- it's important what they do, but I'm just -- I
    3   struggle with this idea that they should be treated
    4   differently than the person who walked in five minutes
    5   earlier as a visitor to see someone who was injured.       I
    6   just -- one requires an expert report, one doesn't.
    7                 MR. BYRD:    I understand, Your Honor.
    8                 THE COURT:   And it just doesn't make a lot
    9   of sense to me.   But then again, I know your argument is
    10   essentially, well, it's just the way the law's been
    11   interpreted by the appellate courts.    And maybe one of
    12   these days they'll look at this, and they'll say, You
    13   know what, this is absurd.    It really is absurd.
    14   It's -- but maybe they -- maybe they won't.    But go
    15   ahead.   So go ahead and make your argument on the seven.
    16                 MR. BYRD:    Yes, Your Honor.
    17                 Since we're on substantive case law -- we
    18   started with Camacho 2 -- the second thing about
    19   Camacho 2 is the first element alone -- it's for the
    20   performance of tasks, for the purpose of protecting
    21   patients, that alone is not enough.
    22                 Then we get down to the doors.    If the
    23   purpose of the doors is to prevent criminal misconduct,
    24   according to the Camacho case, Camacho 2, that's not
    25   healthcare.   And Camacho, our position is it's not
    19
    1   applicable to this case because, number one, all they
    2   have is evidence of one factor.   And number two, their
    3   door was designed to prevent criminal conduct.     And
    4   there's been no evidence in the record that our door was
    5   designed for criminal conduct.
    6                The next case we have that --
    7                THE COURT:   Isn't the most important part
    8   about Camacho that favors you is the fact that the
    9   person that was injured there -- and the reason this
    10   case is distinguishable, this case that's in front of me
    11   now, the Williams case, and Camacho, is the fact that
    12   Camacho is a visitor, straight-up visitor that is
    13   visiting a family member at the women's center at VRMC?
    14   She was there not to act as a responsible adult -- or he
    15   was -- no, she -- Maria Camacho was there to walk in as
    16   a visitor.
    17                MR. BYRD:    And that's --
    18                THE COURT:   Isn't that the key point?
    19                MR. BYRD:    That is key.    That is key.
    20                THE COURT:   I mean, isn't that the key?
    21                MR. BYRD:    I think that is the presumption.
    22   They didn't have the benefit of the presumption in that
    23   case, which you just summarized Tran and Rodriguez.      In
    24   neither of those cases did the presumption apply because
    25   Tran was an employee that fell on the floor in a break
    20
    1   room, and the 14th Court of Appeals said there's no
    2   elements.   And none of the six Ross considerations,
    3   there's no evidence of any of those.     And again, as you
    4   pointed out, not there to seek, to receive, to provide
    5   or to assist in healthcare.
    6                 Rodriguez, the same issue, we have a
    7   technician fixing that elevator -- no.     Let me see.   It
    8   was a -- well, it was -- I think they were maybe
    9   cleaning, and they got hurt in an elevator.     But anyway,
    10   concept is he wasn't a patient, wasn't someone that was
    11   seeking, receiving, providing or assisting in
    12   healthcare, didn't have the benefit of the presumption.
    13   The Court also found there's none of the seven elements
    14   of the Ross case in that, no evidence of those.
    15                 That is really the extent of the case law
    16   as of May 28th.   I checked this morning, and we got you
    17   the Rodriguez case as quickly as possible.     To go
    18   through briefly, touch on the seven elements, I'll just
    19   briefly go through them, the seven Ross elements.
    20                 First element:   The negligence occurred in
    21   the course of the defendant performing a task with the
    22   purpose of protecting the patient from harm.
    23                 The reason why we have responsible adults
    24   is to protect them, make sure they get someone that
    25   understands the discharge instructions, make sure they
    21
    1   get out the door in a wheelchair and home by someone
    2   that's not suffering from surgery and anesthesia.
    3                 We have the duty to maintain this door
    4   because in order to remove hazards -- and you mentioned
    5   you had spinal surgery.    I've had four knee surgeries.
    6   I've been on crutches and canes, and I can tell you, it
    7   sure is nice when you have an automatic door because
    8   when there's not an automatic door, you've got to swing
    9   it open, crutch, crutch, crutch through, turn, in a
    10   sprint, turn, hoping the door doesn't swing back and hit
    11   you and knock you off the crutches.
    12                 THE COURT:   Sure.   I've had four as well.
    13   It's a -- it's a -- it's a tattoo contest.
    14                 MR. BYRD:    It really is.
    15                 THE COURT:   I understand.   I agree with
    16   you, man.   I agree.   It's very difficult to use crutches
    17   if you don't have the door swing open for you.       I agree
    18   totally.
    19                 MR. BYRD:    And element number two:    Did
    20   injuries occur in a place where the patient might be
    21   while they're receiving care?
    22                 Yes, while they were being wheeled --
    23   discharged, and we talked about how the plaintiff's
    24   friend was also smacked by the same door.    Obviously a
    25   place where patients received care, i.e., discharge,
    22
    1   supervision by a responsible person.
    2                 At the time of the injury, was the claimant
    3   seeking or receiving healthcare?
    4                 No.     This is the part where I mentioned
    5   that two of the six -- two of the seven elements were
    6   interchangeable; you're either seeking or receiving
    7   healthcare or you're assisting or providing.      I don't
    8   see how you can do both.     So this third element is
    9   really not applicable.
    10                 Four:     At the time of the injury, was
    11   claimant providing or receiving healthcare?
    12                 We've already discussed that.
    13                 Fifth was:     Alleged negligence based on
    14   safety standards from professional duties owed by
    15   healthcare provider.
    16                 So this is -- this is yes.     We have two
    17   sets of -- we have the discharge policies from the
    18   facility itself, and we have the Texas Administrative
    19   Code.   Those are all safety standards imposing
    20   professional duties on KSADD and -- well, on North Texas
    21   Team Care Surgery Center, which is the -- let me back
    22   up.
    23                 In this case, as far as the defendants, we
    24   have the physician, Dr. Kikkeri.     And then he has an
    25   office practice on one side of the building for pain
    23
    1   management.   He's a pain management specialist.      On the
    2   other side of the building, he has a surgery center,
    3   ambulatory surgery center, that they share a common
    4   reception area.    He has an entity for each.     He has --
    5   he's the doctor.   He has an entity for the office
    6   practice; that's APS.     He has an entity for the surgery
    7   center; that's the North Texas Team Care Surgery Center,
    8   NTTC SC.   And then he has KSADD, which is the landlord
    9   entity.
    10                 North Texas, in this case, because we have
    11   a postoperative patient, KSADD's duties are delegated to
    12   North Texas -- excuse me.     The surgery center's duties
    13   are delegated to KSADD.     KSADD, under the case law,
    14   under the statute, is an affiliate of Dr. Kikkeri.       It's
    15   an entity that he has control over, and it's been
    16   delegated the responsibility of maintaining the premises
    17   as appropriate for an office practice or a --
    18   maintaining the facility and the fixtures as appropriate
    19   for an office practice and a surgery center.
    20                 That is element number five briefed well in
    21   the motion that we filed.
    22                 An instrumentality involved and alleged
    23   in -- okay.   And this is element six:    If an
    24   instrumentality is involved in the defendant's alleged
    25   negligence, was it a type used in providing healthcare?
    24
    1                Now, this is something we provide in an
    2   expert report.   We designated experts in the case
    3   according to our scheduling order.     The expert we
    4   designated worked on these doors, and he, under oath,
    5   said that the way these doors are set up, open up, swing
    6   out, they have -- swinging away from the patients
    7   going -- leaving the facility with their responsible
    8   adults in wheelchairs.     We have -- the only way to open
    9   them is by pushing them, so it's a knowing act.
    10   Presumably, a reasonable, prudent person in a surgery
    11   center would be a little bit more careful and -- when
    12   they're making that knowing act and push the push pad to
    13   open the door the only way it opens.
    14                We also have to protect people on the other
    15   side in case someone is not using their best judgment,
    16   and we have a BEA Bodyguard Presence detector, which
    17   means if you're in the swing radius of the door, it's
    18   not supposed to open it.     It automatically will not
    19   open.
    20                He said that that kind of combination, that
    21   configuration, that modification of the door was a
    22   reasonable and prudent way to provide easy access and
    23   free-of-harm exit for these patients and their
    24   responsible adults.   And he's also said -- and this is
    25   the part that I thought was really interesting -- he's
    25
    1   seen that same kind of configuration used on hospitals
    2   and ambulatory surgical centers throughout the DFW
    3   Metroplex.   Likewise, he said that same setup is a
    4   reasonable, prudent way to provide entrance to patients.
    5                   As we noted in our briefing, a lot of these
    6   patients are like us, they're on wheelchairs, they're on
    7   canes, they have crutches, need some kind of assistance
    8   in walking, mainly due to their debilitating pain and
    9   the medications they received for the pain.
    10                   Our position is these doors were -- as
    11   configured, we have the figures we just discussed and
    12   also labeled.    They were labeled to make it obvious that
    13   they were automatic doors.         The function and the
    14   labeling of these doors was particularly suited to
    15   providing safety for the patients, as intended.
    16                   We're at the last element:      Did the
    17   negligence occur in the course of the defense making or
    18   taking actions or failing to take action -- excuse me.
    19                   THE COURT:    You need some water?
    20                   MR. BYRD:    I brought some.    Thank you.
    21                   THE COURT:    Oh, okay.    I was going to say,
    22   there's some right there.
    23                   MR. BYRD:    0h.    That would be quicker.
    24                   THE COURT:    I put cups there.    You might
    25   want to snap that in place.         Snap it in, if it does.
    26
    1                MR. BYRD:    Okay.
    2                THE COURT:    I don't know if it does or not.
    3   I just don't want you to get it all over your suit.
    4                Have you ever seen the movie "Airplane"?
    5                MR. BYRD:    I have.
    6                THE COURT:    I have a drinking problem?
    7   Whenever -- okay.    Never mind.    All right.    Didn't want
    8   you to wear your water there.
    9                Okay.    Go ahead.     I digress often.
    10                MR. BYRD:    I appreciate it.       Thank you.
    11                Okay.    Back to this element number seven:
    12   Did it occur in the course of the defendant taking
    13   action or failing to take action necessary to comply
    14   with the safety-related requirements set for healthcare
    15   providers by governmental or accrediting agencies?
    16                We've already discussed the two statutes.
    17   Texas Administrative Code 135.11 -- excuse me --
    18   135.11(18), that's the one that requires responsible
    19   adults in order to dismiss patients.
    20                Texas Administrative Code 135.10, which
    21   says basically you have to remove all hazards.
    22                Sorry.
    23                THE COURT:    That's fine.     Go ahead.
    24                MR. BYRD:    Thank you, Your Honor.
    25                Okay.    And these are the kind of hazards we
    27
    1   have.   And it uses a pronoun, hazards.        Shock -- Any
    2   kind of hazard that might lead to slipping, falling,
    3   electrical shock, burning, poisoning or other trauma
    4   shall be eliminated.
    5                  We discussed how those doors were designed
    6   to prevent problems with getting out the door by a
    7   swinging door that could knock you off balance if you
    8   don't scoot through the doorway fast enough.
    9                  To summarize and give Plaintiff's counsel a
    10   chance to speak, the Ross case refined and narrowed the
    11   safety standards claim under the -- under Chapter 74 of
    12   the Civil Practice and Remedies Code.         We have the
    13   presumption in this case because Ms. -- the plaintiff
    14   was participating in -- or assisting in providing
    15   healthcare at the time of her accident with the door.
    16   Under Ross and with this presumption, this is still a
    17   healthcare liability claim, an expert report was not
    18   timely served; and therefore, a dismissal with prejudice
    19   is required.
    20                  THE COURT:     Okay.   Thank you.
    21                  All right.     Response.
    22                  MR. HALLMAN:     Good afternoon, Your Honor.
    23   John Hallman for the plaintiff.       Just want to say first
    24   off, if I seem a little bit nervous, it's not because
    25   I'm not confident in my argument.         This is my first time
    28
    1   arguing a motion to dismiss.
    2                 THE COURT:     Okay.   Well, we're friendly
    3   here.
    4                 MR. HALLMAN:     All right.     That's what I'm
    5   kind of getting a feel for.
    6                 THE COURT:     All right.     Go ahead.
    7                 MR. HALLMAN:     I want to clarify the facts
    8   to begin with.     My client, Joan Williams, she was there
    9   with her friend.     They went in together, and her friend
    10   was told that the procedure would take 45 minutes.
    11   Prior to that, the plan was that Joan was going to drop
    12   off her friend, go home to her husband, wait for a call
    13   and then come back.     In response to 45 minutes wait
    14   time, Joan decided just to stay there.        She stepped
    15   outside to the parking lot, called her husband to let
    16   him know that she would not be home as planned, that she
    17   was just going to stay there, and got off the phone and
    18   stepped back into the healthcare facility.        That is when
    19   the accident or the injury occurred.
    20                 Now, what's important about those facts is
    21   she was not picking up her friend.        She had not been
    22   briefed on the standards of postoperative discharge
    23   care.   And from that, it's our position that she was not
    24   assisting in providing care when she was injured.
    25                 THE COURT:     So your position would be
    29
    1   different if she had left and come back rather than just
    2   go out to the parking lot, make a call and come back
    3   into the facility?    Is that it?
    4                  MR. HALLMAN:     No, Your Honor.   What I'm
    5   getting at is that it's different because she had not
    6   been briefed by a doctor or a nurse on what she would be
    7   doing.    Joan never planned on doing anything more than
    8   dropping off her friend and picking up her friend, nor
    9   was she ever told by the defendant or the affiliates of
    10   the defendant that she would be assisting in providing
    11   healthcare.
    12                  THE COURT:     So she didn't -- okay.   So she
    13   didn't consent to being a responsible adult; she was
    14   just simply identified as a responsible adult by her
    15   friend?
    16                  MR. HALLMAN:     She had not yet undergone any
    17   training or had not been told any of the guidelines for
    18   what she would be doing as a responsible adult.
    19                  THE COURT:     But that wasn't my question,
    20   though.   I mean, did she actually consent to be -- I
    21   don't know -- and again, I may have to go back into the
    22   motion to dismiss.    Did she consent to being a
    23   responsible adult?    Had she signed some form or, you
    24   know, recognized that she was going to be the person
    25   responsible for not only just picking up the person who
    30
    1   had been operated on, but also for receiving the
    2   postsurgical instructions and --
    3                 MR. HALLMAN:     No, Your Honor.    From her
    4   affidavit, all she was doing was serving as a ride for
    5   her friend.   Her name was listed by the friend --
    6                 THE COURT:     By the friend who had been
    7   treated?
    8                 MR. HALLMAN:     Right.    Her friend gave her
    9   name, and someone wrote it down.        But, no, Joan did not
    10   sign anything.
    11                 And in addition, on Defendants'
    12   supplemental briefing for this hearing today, on
    13   page 12, the defendant makes an admission that Plaintiff
    14   was not able to perform these duties.        It's in their own
    15   briefing that she did not do any of these duties because
    16   she was injured before she was briefed on what duties
    17   she might be responsible for.
    18                 And that's the main distinction I wanted to
    19   make from the original discussion I just heard.        I'm
    20   prepared to go through the Ross factors and explain to
    21   you why under Ross this is not a healthcare liability
    22   claim.
    23                 THE COURT:     Well, please do.
    24                 MR. HALLMAN:     Okay.    Factor one:   Did the
    25   negligence occur in the course of defendant performing
    31
    1   tasks with the purpose of protecting patients from harm?
    2                 The defendant was not doing anything when
    3   this injury occurred, much less a task.     There was no
    4   task being performed.    Automatic doors malfunctioned.
    5   And even in the event that you might find a task was
    6   being performed, that task was being performed for
    7   convenience and not safety.     If safety was the true
    8   motive, the doors at issue created hazards rather than
    9   removing hazards.   Automatic doors that would retract
    10   into a wall pocket, those would be in the name of
    11   safety.   When you have automatic doors that swing
    12   through the entrance area where patients in wheelchairs
    13   might be, it's foreseeable that those swinging doors are
    14   going to hit someone, possibly someone who's not paying
    15   attention.
    16                 THE COURT:     I can only hear defense counsel
    17   saying, that's why you need an expert report.     If you're
    18   taking the position that somehow these doors were
    19   hazardous or that they were a danger in themselves just
    20   because of the way they swung out, I think that kind of
    21   strengthened his hand by making that statement.      And
    22   probably the first thing he'd say is you're not
    23   qualified to make it yourself.     But go ahead with the
    24   rest of your argument.
    25                 MR. HALLMAN:     And that's just the first
    32
    1   factor.     Just to reiterate, the defendant was not doing
    2   anything, much less performing a task.
    3                   Number two of the Ross factors:     Did the
    4   injuries occur in a place where patients might be during
    5   the time that they are receiving care?
    6                   Your Honor, these -- these injuries
    7   occurred in the entrance to the ambulatory care center,
    8   and that is not an area where patients are receiving
    9   care.     The court of appeals in Camacho held that a
    10   hospital entrance is not an area where patients are
    11   receiving care.     And that's -- that's as simple as my
    12   argument gets on number two.       And importantly, in their
    13   supplemental briefing, the defendants failed to address
    14   this substantively.     If you read it, they did not really
    15   answer why the entrance is an area where care is
    16   provided.
    17                   On number three, number three is not
    18   contested by the defendant.
    19                   Number four:     At the time of the injury,
    20   was the claimant providing or assisting in providing
    21   healthcare?
    22                   And again, I'll refer you back to the
    23   admission.     Plaintiff was not able to perform the
    24   substantive postoperative duties for her friend.
    25                   THE COURT:     So in other words, she
    33
    1   shouldn't be forced to file an expert report because she
    2   never got an opportunity to assist?     Like if she
    3   had been --
    4                 MR. HALLMAN:     Among many other more
    5   important reasons.
    6                 THE COURT:     I think your argument basically
    7   is that at the time she was injured, she wasn't doing
    8   anything to assist in healthcare.     If she had been
    9   injured on the way out of the facility after she had
    10   been told, as a responsible adult, what needed to happen
    11   postoperatively, these are the medications your friend
    12   needs to take, and received all the standard
    13   postsurgical instructions, not that they're
    14   necessarily -- when I say "standard," we use that word
    15   loosely.   You get the written and oral instructions and
    16   the notes of the doctors as to what's supposed to happen
    17   after surgery.   If she's walking out the door and that's
    18   when she's injured, after she has been identified as a
    19   responsible adult and taken those instructions, then
    20   perhaps your argument would be different.     Do you
    21   concede that it would be?
    22                 MR. HALLMAN:     I think that's a very
    23   important distinction that I'm trying to make.        But at
    24   the same time, it's not dispositive whether or not she
    25   had been briefed.    These factors are not exclusive and
    34
    1   neither -- no individual factor is going to be
    2   dispositive.    But I am -- yes, that is what I'm getting
    3   at.   She was not providing any sort of care when she was
    4   injured, nor had she been prepared or briefed on how to
    5   provide that care.
    6                   THE COURT:    You know what's interesting
    7   about all this is that if the responsible adults that
    8   are required by the legislature --
    9                   MR. BYRD:    Yes, Your Honor.
    10                   THE COURT:    -- again, that's the -- you
    11   would think that before -- it's almost like there would
    12   be some -- they would have developed some type of form
    13   for these responsible adults to sign before they assume
    14   those duties.
    15                   Because essentially, what you are -- if
    16   you've got a friend saying, Hey, look, man, can you pick
    17   me up?   I'm having surgery tomorrow.      I've got to get
    18   something cut on and -- let's say it's just a
    19   meniscectomy or something like that in your knee.       Okay?
    20   You're in and out of surgery in 45 minutes.       You ask a
    21   buddy to pick you up.       You identify your buddy as the
    22   responsible adult.    Your buddy doesn't have any idea,
    23   number one, that he's been designated as such.       He just
    24   agreed to pick you up at the hospital after you got out
    25   of surgery.
    35
    1                 You know, there's no recognition that they
    2   are, in fact, assisting in the rendering of healthcare.
    3   You're walking in just to pick up your friend.   And so
    4   someone else, the treater, is basically deciding your
    5   classification, you know what I mean, when it comes to
    6   whether or not you are a licensee or invitee or a
    7   responsible adult, not a responsible -- like just there
    8   to visit, just there to -- your designation is being
    9   provided to you by someone -- or assigned to you by
    10   someone.
    11                 You haven't even assumed those roles
    12   necessarily with knowledge that you have been given that
    13   responsibility.   Your friend may have designated you as
    14   such, and you have no idea.   You just agreed to pick
    15   them up.   The treater has identified you as such and
    16   won't let you out of the facility without that
    17   responsible adult coming in, and you haven't signed a
    18   thing.
    19                 You haven't signed a thing assuming
    20   responsibility for any -- you know, being the
    21   responsible adult and all that entails under Texas law.
    22   You just agreed to pick your friend up, and all of a
    23   sudden, whether you are aware of it or not, now the
    24   facility gets to treat you differently if you were to be
    25   injured.   And also, you have an official, evidently, job
    36
    1   duty in the fact that you are assisting in the rendering
    2   of healthcare just by agreeing to give your friend a
    3   ride.
    4                Again, I'm doing a rant, and I'm sorry that
    5   I'm doing it, but this is part of the problem.       It
    6   just -- I mean, if I'm going to have -- if I'm going to
    7   be assisting in the rendering of healthcare, I would
    8   expect most healthcare facilities to at least have me
    9   sign something acknowledging that I'm picking my friend
    10   up and that I am going to relay to my friend once the
    11   anesthesia wakes off -- wears off -- I'm sorry -- the
    12   postsurgical instructions that have just been given to
    13   me by the treater, I'm going to give the written
    14   instructions that I got from the nurse or the doctor to
    15   the patient so that they follow the doctor's advice.
    16   Evidently, these responsible adults don't have to sign
    17   anything before they leave with the patient.       And is
    18   that -- there's nothing that's being signed?
    19                MR. BYRD:    I'd have to look into that.
    20                MR. HALLMAN:     Not that's been presented.
    21                THE COURT:     That is a big deal.
    22                MR. BYRD:    I understand, Your Honor.
    23                THE COURT:     So, I mean, it's one
    24   thing if -- look, if you're acknowledging that you're
    25   taking this role on yourself and you're
    37
    1   assuming these -- that you're agreeing voluntarily to
    2   provide these instructions from the treater to the
    3   patient once the patient becomes, for lack of a better
    4   word, competent to actually receive that information
    5   after the anesthesia wears off, then maybe there's an
    6   acknowledgment, you know what, yeah, I'm assisting in
    7   the rendering of healthcare, but you're not asked to
    8   sign anything.    You may not even know that you're the
    9   responsible adult.      You're just the buddy who agreed to
    10   give him a ride home from the hospital.      It's just -- it
    11   is -- again, it just seems to me -- go ahead.      I keep
    12   interrupting your argument, and I'm sorry.
    13                   MR. HALLMAN:   No, you're fine, Your Honor.
    14                   Halfway through your argument, I wanted to
    15   say that the treating physician here is not a defendant.
    16   We are suing a landlord entity only.      I just wanted to
    17   clarify that.
    18                   And to support the discussion we just had,
    19   I want to refer you to Scoresby v. Santillan, which I
    20   cited in the first sentence in my argument.      The purpose
    21   of this expert report requirement is not to have these
    22   claims dismissed regardless of their merits; it's to
    23   deter and identify frivolous lawsuits.      And that's from
    24   the Texas Supreme Court.
    25                   Okay.   Moving on to element number five
    38
    1   from Ross:   Is the negligence based on safety standards
    2   arising from professional duties owed by the healthcare
    3   provider?
    4                 Once again, KSADD, the defendant, is not a
    5   healthcare provider; they're a landlord entity.         Our
    6   complaint is a premises liability complaint.         It's based
    7   on defective front entrance doors.      There's no
    8   allegations here that the doctor did anything wrong or
    9   that any healthcare standard was violated.      The
    10   complaint is just a premises claim.
    11                 THE COURT:     Well, you understand defense's
    12   position is a little bit different than that.
    13                 MR. HALLMAN:     I do.   I think --
    14                 THE COURT:     Comply with the government code
    15   and --
    16                 MR. HALLMAN:     Well, the admin code, there's
    17   two sections cited.   One section requires responsible
    18   adults, which I don't believe is applicable to our
    19   premises complaint.   The other admin code requires the
    20   defendant -- it says that the defendant shall eliminate
    21   hazards that could lead to slipping, falling or other
    22   trauma.
    23                 And I'm just summarizing what it says.
    24   There's no requirement that the defendant install
    25   automatic doors.   There's no penalty if defendant chose
    39
    1   not to install automatic doors.    It's an elective
    2   building design-type thing to install these automatic
    3   doors.   There's no regulation that's been cited in
    4   anything that defendants produced or referred to that
    5   makes automatic doors mandatory.
    6                 And in Camacho, the automatic doors were
    7   even closer to being something that would be a
    8   healthcare specific door.    Those doors were tied to
    9   infant alarms that were on infants' ankles, and those
    10   doors would close whenever an infant was approaching the
    11   door prior to being dismissed from the hospital.      These
    12   doors are just doors.    Camacho, those doors were found
    13   not to be a healthcare liability claim, and I think that
    14   strengthens my argument substantially.
    15                 Number six, and kind of keeping with the
    16   door thing:   Is an instrument -- if an instrumentality
    17   was involved in the negligence, was it a type used in
    18   providing healthcare?
    19                 No.   At no point does the defendant in his
    20   supplemental briefing argue that the doors in question
    21   were of a type used in providing healthcare.     Mr. Byrd
    22   referred to his expert, Mr. Hines and the affidavit
    23   prepared by Mr. Hines.   If you read that affidavit, it
    24   does not say that these doors were of a type used to
    25   provide healthcare, as required by the factor in Ross.
    40
    1   The door is a regular Stanley automatic door.     It's not
    2   a Stanley healthcare door.
    3                 And I -- may I approach, Your Honor?
    4                 THE COURT:     Sure.
    5                 MR. HALLMAN:     Mr. Byrd, here.
    6                 I'm just going to show -- this is from the
    7   Stanley website.   This is a product listing of the door
    8   in question, Your Honor.
    9                 THE COURT:     Sure.
    10                 MR. HALLMAN:     And then, here is a product
    11   listing of the doors that are not in question.     These
    12   are also made by Stanley, and those are healthcare
    13   doors.   And what I'm getting at with that is that KSADD
    14   could have chosen to buy and install healthcare specific
    15   doors, but they didn't.    They installed doors that you
    16   see at malls, grocery stores, Target, other places.
    17                 So tying that to the factor, there's
    18   nothing special about these doors that makes them a door
    19   that is of the type used in healthcare.
    20                 And finally, factor number seven:     Did
    21   negligence occur in the course of Defendant taking
    22   action or failing to take action necessary to comply
    23   with safety-related requirements set for healthcare
    24   providers by governmental or accrediting agencies?
    25                 And I do understand that this is similar to
    41
    1   factor five.     But once again, the alleged negligence is
    2   a door malfunction, not that defendant didn't comply
    3   with the safety regulation.       There's no requirement that
    4   the defendant have these special doors.         There's no
    5   penalty or fine to defendant if they don't have these
    6   special doors.     And in this case, having normal doors
    7   would have prevented the injury.
    8                   I don't know if Mr. Wolf has anything, but
    9   that is my analysis.     And I think Ross and Camacho
    10   require a finding that this is not a healthcare
    11   liability claim subject to the expert report
    12   requirement.     And stepping away from the factors, I
    13   think it's pretty clear that this is a -- primarily a
    14   premises case, not a healthcare case that should be
    15   dismissed with prejudice against my client.
    16                   Thank you, Your Honor.
    17                   THE COURT:    Okay.     Anything to add?
    18                   MR. WOLF:    Briefly.     I have -- one, there
    19   is no Camacho 1 and 2.       There is just Camacho.    When we
    20   have a 1 or 2 scenario, it would be like Volkswagen 1,
    21   Volkswagen 2.     There's only one Camacho case.      It was
    22   controlling, presumably, in the underlying motion, and
    23   now it devastates the underlying motion.         It is just
    24   simply Camacho.     That is the only thing I'd like to
    25   point out to the Court.
    42
    1                THE COURT:     When you say it devastates --
    2                MR. WOLF:    It's --
    3                THE COURT:     -- it really -- I mean, it
    4   really is kind of -- because -- and I realize that the
    5   Supreme Court has listed out seven factors, but if --
    6   there are certain -- there are certain of the seven, I
    7   think that you would agree with me there are a couple of
    8   them that are probably more important than the others.
    9   If you're -- if you're actually -- at the time of the
    10   injury, if the claimant was in the process of seeking or
    11   receiving healthcare or they were providing or assisting
    12   in healthcare, that either one of those could be enough.
    13                MR. WOLF:    Could be.   And if -- you would
    14   have to weigh it.   But step back for a minute.    The
    15   hospital was the healthcare provider in Camacho.     This
    16   is -- the Supreme Court said, and Camacho Court took the
    17   cue, this is not a simple but-for.    But what you're
    18   hearing, in spite of Ross, is you're hearing a but-for
    19   argument by a non-healthcare entity against a
    20   non-healthcare recipient.    This is a long way further
    21   away from 74 than even Camacho.
    22                At least Camacho had a healthcare provider.
    23   We don't even have it.    We have an affiliate that has
    24   never practiced medicine, and they can never meet any of
    25   the tenets of practicing medicine or complying with
    43
    1   regulations because they don't apply to KSADD.          So these
    2   duties that are being argued here are new duties that
    3   would be formed between a non-healthcare provider and a
    4   non-healthcare recipient somehow under Chapter 74 that
    5   don't exist under Chapter 74.       That's why I say it's
    6   devastating.
    7                  MR. BYRD:    Brief response, Your Honor.
    8                  THE COURT:    All right.       Yes, please.
    9                  MR. BYRD:    Okay.     Just to follow up on
    10   Mr. Wolf's statement about KSADD, that KSADD is somehow
    11   not a healthcare provider, that's just wrong under the
    12   statute.   You have to pay attention to the definitions,
    13   and that's really what this is all about, these
    14   definitions.
    15                  They didn't cite 74.001(a)(10) once in
    16   their response.   And 74.001(a)(10) is actually the
    17   definition of a healthcare -- of healthcare.          It's
    18   not --
    19                  THE COURT:    The definition of healthcare or
    20   healthcare provider?
    21                  MR. WOLF:    Provider.
    22                  MR. BYRD:    It's --
    23                  THE COURT:    Hang on.     You said 74.0010?
    24                  MR. WOLF:    001.
    25                  THE COURT:    001.     Okay.    Hang on a second.
    44
    1                   MR. BYRD:    Let me pull that up.   It's
    2   (a)(10).
    3                   THE COURT:    Okay.   All right.
    4                   MR. BYRD:    It's not cited once in their
    5   brief.     And we went through in painstaking detail how
    6   KSADD was an affiliate.      It is -- we also prepared a
    7   supplemental affidavit regarding -- it's been delegated
    8   the duty of North Texas Team Care Surgery Center, as far
    9   as those duties relate to safety for patients in the
    10   facility.     I don't understand how Camacho 2 -- and there
    11   are two Camacho cases.
    12                   MR. WOLF:    No.   There's a withdrawn Camacho
    13   case.
    14                   THE COURT:    Yeah.   There's -- yeah.
    15                   MR. BYRD:    There's a subsequent Camacho.
    16   Okay.     As long as we're referring to the same case.
    17                   MR. WOLF:    Well, yeah.
    18                   MR. BYRD:    It agreed that having those
    19   doors was -- Ross element one, it said, that's fine.
    20   That was it, but that's not -- so that is in no way
    21   devastating at all to our case because, as you pointed
    22   out, it didn't occur during healthcare.       That was the
    23   presumption in Camacho, which is the most important
    24   factor.     And this is -- Plaintiff's counsel was
    25   testifying about --
    45
    1                 THE COURT:   And so, in your mind, the
    2   defendant that's left is just simply the property owner,
    3   which is an entity owned by Dr. Kikkeri?
    4                 MR. BYRD:    Yes, Your Honor.   It's the
    5   landlord entity that has the duty of maintaining the
    6   premises and the fixtures as appropriate for a surgery
    7   center --
    8                 THE COURT:   Healthcare facility.
    9                 MR. BYRD:    -- and office practice.    Yes,
    10   Your Honor.   And it all goes back to Dr. Kikkeri.       He's
    11   in complete control of that entity.
    12                 THE COURT:   Are they a healthcare provider?
    13                 MR. BYRD:    Yes, Your Honor, because they're
    14   an affiliate, and an affiliate is a healthcare provider.
    15                 THE COURT:   Where does it say that?
    16                 MR. BYRD:    You know, I didn't print out
    17   my -- do you have your 74 with you?
    18                 THE COURT:   Yes, I do, actually.
    19                 MR. BYRD:    Thank you, Your Honor.
    20                 THE COURT:   Sure.   Take your time.
    21                 MR. BYRD:    I'll use sticky notes.    Here's
    22   affiliate, and here is healthcare provider specifically.
    23   Let me see.   Affiliate right here, and here's why
    24   Dr. Kikkeri -- it is his affiliate because he has
    25   control.
    46
    1                   THE COURT:    Let me see.
    2                   MR. BYRD:    Yes, Your Honor.
    3                   THE COURT:    All right.    So 74.001(a)(1),
    4   that defines affiliate.       All right.    So -- okay.   So
    5   what you're saying is that healthcare provider, when you
    6   go to 74.001 -- do you guys have a copy of it there in
    7   front of you?
    8                   MR. WOLF:    Yeah.    I said earlier, a moment
    9   ago:   Although they are an affiliate.
    10                   THE COURT:    Okay.
    11                   MR. WOLF:    We acknowledge they're an
    12   affiliate.   And to take your point a little further, if
    13   his wife -- they bought a car to get him to work every
    14   day to where he would go become a healthcare provider,
    15   and on the way to work she were to run over some
    16   pedestrians, their argument would be that 74 applies
    17   because that's in connection with healthcare.          There are
    18   so many absurdities in this, but --
    19                   MR. BYRD:    Your Honor, that's --
    20                   MR. WOLF:    -- but that Camacho language,
    21   Judge, where it says:       Not seeking or receiving
    22   healthcare at the time of the injury, not providing or
    23   assisting at the time of the injury, it didn't happen
    24   where patients receive it, that's the new, the actual
    25   Camacho holding.    There's no Camacho 1.
    47
    1                  THE COURT:    Right, right.     You made that
    2   point.    I just want to make sure -- so it's -- the point
    3   generally is that this idea that somehow they're excused
    4   from 74 because it's only the property owner, the
    5   landlord here that they're suing, that's just not the
    6   case.    That's point number one which you want to make.
    7                  MR. BYRD:    Yes.     If you pierce the
    8   corporate veil, it's Dr. Kikkeri.
    9                  THE COURT:    Okay.
    10                  MR. BYRD:    It's his affiliate.
    11                  THE COURT:    All right.     What else?
    12                  MR. BYRD:    They -- they said that this
    13   is -- this statute was not designed for this kind of
    14   case; it was designed to weed out frivolous cases.
    15   Well, there's two points to that.
    16                  What is frivolous?       Well, there's a
    17   liability question, and there's a damages question.           And
    18   to respond in kind to Plaintiff's counsel, I think on
    19   the liability, this is a frivolous case.        On damages,
    20   however, unfortunately for Ms. Williams, not frivolous.
    21   There are some serious damages here.        But you don't get
    22   a case just from damages alone; it takes liability.           And
    23   that's why it's nice for healthcare providers to have
    24   expert reports in situations like this.
    25                  MR. WOLF:    I take exception to that.     There
    48
    1   can be frivolous defenses the same way there can be
    2   frivolous claims.
    3                 THE COURT:    Yeah.   I just -- look, when
    4   they crafted the legislation, the idea was to try to --
    5   there was -- you remember, obviously, there was a big
    6   thing about all this alleged crisis with medical
    7   fraud -- you know, frivolous medical malpractice
    8   lawsuits.   All right?    And now they have interpreted
    9   this statute, which was evidently created to address
    10   this crisis -- and I use that word loosely --
    11                 MR. BYRD:    I understand.
    12                 THE COURT:    -- that has been interpreted in
    13   such a way that safety has been -- instead of safety,
    14   specifically in somebody -- in regards to somebody
    15   putting their hands on you and not treating you properly
    16   or giving you the wrong medicine or putting in your IV
    17   incorrectly, now we're talking about, well, if you're a
    18   patient there at the hospital, like the example I gave
    19   you, you walk out of your room, and you slip and fall on
    20   some water, you're a patient at the facility, you're
    21   done.   That's just -- and, you know, it has nothing to
    22   do with -- remember the whole crisis was about how
    23   medical malpractice premiums had skyrocketed, and all
    24   the doctors needed this protection, and they -- and this
    25   particular type of claim wouldn't even be a -- it would
    49
    1   be covered by typically an insurance policy that's just
    2   a general premises liability policy, not a medical
    3   malpractice insurance policy.
    4                   So again, safety has been interpreted in
    5   such a way that it really doesn't have anything to deal
    6   with medical malpractice anymore.     It's -- but I know
    7   that you had to argue it differently, and I respect you
    8   for doing your job.     I just -- I don't want you to take
    9   my rant as being some kind of -- I just -- to me, it has
    10   led to absurdities, and that's what my position is on
    11   it.
    12                   Now, whether or not they have to file a
    13   Chapter 74 report, my big concern here is -- I do agree
    14   with you that, look, this lady was not there just to act
    15   as a visitor; she was there to act as the responsible
    16   adult, but she didn't know it.     There's no evidence in
    17   the motion that she knew that she was assuming these
    18   duties voluntarily.     Somebody had identified her as
    19   such.    So she doesn't even know that she's there to
    20   assist in the rendering of healthcare.
    21                   She's just -- again, just like in the
    22   everyday world, one buddy's going in for a surgery,
    23   another buddy asked him to pick him up after he wakes
    24   up.     And they just go, Sure, man, I'll pick you up, and
    25   then you slip and fall or you have your head crushed by
    50
    1   a door, some other type of -- seriously, your argument
    2   could be if I was walking from the parking lot into the
    3   facility and I came around the corner and there was a
    4   gigantic hole that they had cut in the sidewalk -- and
    5   you and I would both agree that you need to put up a
    6   barrier to prevent people from falling in -- you turn
    7   the corner, and you're there to pick up your buddy.
    8   You're a, quote, responsible adult.     You don't know
    9   you've been necessarily designated as such.     The
    10   hospital hasn't required you to sign any type of forms
    11   recognizing what your duties are, the fact that you've
    12   got this special role.   You're just a pick-up guy.
    13   You're on your way in, you fall in the hole -- and by
    14   the way, if I fall on top of someone who was there five
    15   minutes before who just came there to visit their buddy,
    16   you'd be treating them differently than me because I
    17   have been declared a responsible adult.     Both of us fell
    18   in the hole, and you needed to tell us about the hole.
    19                  That's what I'm talking about when I'm
    20   talking about absurd results, and it just -- that's what
    21   it would be.   The courts of appeal -- I mean, it's a
    22   mess.   They have strained so far on this safety stuff
    23   that it leads to some absurd results.
    24                  Look, I'm going to take this under
    25   advisement, but I think my biggest problem is this idea
    51
    1   that they were assisting in the rendering -- or
    2   providing of healthcare.      And I know that she's been
    3   designated as the responsible adult, but without some --
    4   some evidence to show that she knew she was -- you know,
    5   I could designate you, Mr. Byrd, as my responsible
    6   adult.     You wouldn't have any idea when you're there to
    7   pick me up from my surgery that you have been designated
    8   as such.    All I asked you to do is pick me up.       But you
    9   show up, you haven't had -- you don't have any idea that
    10   you've been designated as a responsible adult, you don't
    11   really have any idea that technically you are assisting
    12   in the rendering of healthcare, but now you are
    13   according to the treatment facility.
    14                   MR. BYRD:    Yes, Your Honor.   And just
    15   briefly to respond?
    16                   THE COURT:   Sure.
    17                   MR. BYRD:    I do know because I have had
    18   ambulatory surgery twice.
    19                   THE COURT:   Sure.   You do.
    20                   MR. BYRD:    And so if you --
    21                   THE COURT:   Sure.   And I do, too.
    22                   MR. BYRD:    So has the plaintiff.    She had
    23   it by Dr. Kikkeri in 2007.      She had a ride home.      She
    24   had to designate someone to drive her home.       There
    25   is -- and just from a technical causation standpoint,
    52
    1   there's no evidence in the record she would have
    2   said -- and let's just say she makes it through the
    3   door, there's no incident, right?        Okay.
    4                   THE COURT:   Sure.
    5                   MR. BYRD:    She continues to fulfill her
    6   duty as a responsible person.        There's no evidence she
    7   would have heard:     Okay, these are the discharge
    8   instructions, and she says, Whoa, no.        I'm leaving.     I'm
    9   out of here.    I didn't sign up for this.
    10                   There's none of that.     There's no causation
    11   issue in the record about that, that she would have
    12   refused these duties if she hadn't remembered them,
    13   which she -- she probably had a general idea of them
    14   because she had a surgery from Dr. Kikkeri several years
    15   earlier.
    16                   MR. WOLF:    In response to that, Your Honor,
    17   this place didn't exist in 2007.        Where this happened
    18   didn't exist.    It was a field, number one.      Number two,
    19   the evidence before the Court that's not refuted is that
    20   she had not been informed by anyone that there were any
    21   special procedures.     So at the time she's in that
    22   vestibule, she's just going to pick up a friend.        She
    23   hasn't started this business of becoming the agent of
    24   the doctor to care for this post-PACU patient.        It just
    25   hasn't happened yet.     Factually, they can't get there.
    53
    1   And using a surgery that she had for herself and
    2   whatever procedures there were in 2007, to say that she
    3   must always know that all people -- the -- you spoke of
    4   absurdities.     That's not even a point of evidence here.
    5                   THE COURT:    That's why it is so factually
    6   intensive.     And I -- at one point, I discussed, and I
    7   think Mr. Hallman, as he was talking, and I asked him,
    8   Would your analysis be different if she actually had the
    9   patient in the wheelchair pushing her out the door?        She
    10   had assumed the duties of --
    11                   MR. WOLF:    It is splitting absurd --
    12                   THE COURT:    She didn't -- even if she
    13   didn't have to sign a form, if she had gone into the
    14   room and picked up -- you know, was there to pick up her
    15   friend, she's there with the nurse or the doctor,
    16   they've already put her in the wheelchair because
    17   they're not going to let her walk out, and she's gotten
    18   the written and postsurgical written instructions, she
    19   may have got the prescriptions that her friend's been
    20   prescribed, she's been given oral instructions by the
    21   treater, so maybe then, on the facts --
    22                   MR. WOLF:    Maybe.
    23                   THE COURT:    -- she's assisting in the
    24   rendering of healthcare.
    25                   MR. WOLF:    But --
    54
    1                   THE COURT:    If she's assisting, knowing
    2   that that person can't leave, maybe then, factually, she
    3   can't argue, even if she didn't sign off that she knew
    4   she was assisting in the rendering of healthcare.          But
    5   she's not there --
    6                   MR. WOLF:    She never got there.   She never
    7   got to that point.     She never got those instructions.
    8   She never became a willing or unwilling participant in
    9   healthcare.     She never got there.    In fact, the only
    10   evidence in front of the Court is:       I was never informed
    11   by the doctor of any special routines or procedures that
    12   I needed to follow, et cetera.
    13                   It's in her affidavit.    She never got past
    14   the doors.    She never got the instruction to be then the
    15   person taking care of her.      She was never the person
    16   taking care of -- and I respect what the Court is saying
    17   because I completely agree with it, the absurdities
    18   here.   But even if we have splitting the hairs, the case
    19   that he's asking you to split and go down that analysis,
    20   she never got into the building.       She never got the
    21   instructions.     She never got to be part of any
    22   healthcare.
    23                   THE COURT:    She was in the building, I
    24   think, Mr. Byrd.
    25                   MR. BYRD:    Yeah.
    55
    1                   THE COURT:    She was in a waiting area.       She
    2   had to go through two doors to get into the --
    3                   MR. WOLF:    To get back in after the phone
    4   call, right.     But she never got the instructions.      She
    5   never got any special any of it.         She never became a
    6   participant, willing or unwilling, in the healthcare of
    7   this patient.     And that's what their arguing.      Well, she
    8   was going to be the responsible adult.         She never got
    9   there in time.     The accident happened before she
    10   received any --
    11                   THE COURT:    Right.
    12                   MR. WOLF:    -- special instruction.    And
    13   that is splitting absurd hairs, but if we go and look at
    14   it that way, the only evidence in front of this Court is
    15   she didn't do it.     She never got there.
    16                   MR. BYRD:    Brief response, Your Honor?
    17                   THE COURT:    Sure.    And that's kind of what
    18   my -- I went down a tangent, Mr. Byrd, and I said, Well,
    19   what if it was a hole in the ground, and I mean, she
    20   could have been outside calling her friend or smoking a
    21   cigarette or something like that, and she's walking back
    22   in to be the responsible adult, she falls in the hole.
    23   Your argument would be the same, wouldn't it?         She was
    24   there to provide -- she -- I mean --
    25                   MR. BYRD:    If she --
    56
    1                  THE COURT:    I mean, it's about -- I mean,
    2   obviously, again, healthcare facility, if you had a hole
    3   in the sidewalk and you're entering or leaving, then you
    4   would rope it off.      You would agree with me that you
    5   wouldn't want any of your patients to fall in a hole or
    6   anybody there.      I mean, again, this is -- it's basically
    7   the same thing, isn't it?      But she just never got an
    8   opportunity to do what she was -- what would definitely
    9   be -- well, I shouldn't say definitely because I know
    10   plaintiffs don't want to follow me there -- but there's
    11   a stronger argument to be had from your side if she was
    12   actually participating as the responsible adult at the
    13   moment that she was injured.       She didn't even get an
    14   opportunity to do that, right?
    15                  MR. BYRD:    Well, she was by showing up to
    16   give a ride.     That is enough.    That is showing up -- you
    17   have -- you have to show up in order to provide
    18   anything.   Okay?     And she was there.   She came there --
    19   she answered an interrogatory:       What was your purpose?
    20   I was there to be the driver -- designated driver, her
    21   words.   So she answered -- so she had done enough to
    22   qualify under -- one of the ten or so things in our --
    23   of the postoperative duties of the responsible adult is
    24   safe transportation home.      She has shown up to do that.
    25   That is enough.      We -- we provide a surgery to her
    57
    1   friend in expectation of her coming.        We had her name,
    2   her phone number.   We were expecting her.          She wouldn't
    3   have been released to anyone but her.        This is -- the
    4   lady who had surgery, she's in PACU.        She's waiting for
    5   her friend to pick her up.     Her friend's coming in to
    6   pick her up.   That's -- that is a whole --
    7                  THE COURT:    All right.     Okay.    Anything
    8   else?   Y'all have proposed orders?
    9                  MR. BYRD:    We do, Your Honor.
    10                  MR. WOLF:    Yes.   Approach?
    11                  THE COURT:    Yes, please.      Thank you.
    12                  MR. WOLF:    Are we done?
    13                  THE COURT:    Yes, you can go off the record.
    14   Thank you.
    15                  (Proceedings concluded at 2:48 p.m.)
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    58
    1                    REPORTER'S CERTIFICATE
    2   THE STATE OF TEXAS   )
    COUNTY OF DALLAS     )
    3
    4       I, Coral Hough, Official Court Reporter in and for
    5   County Court At Law No. 4, Dallas County, State of
    6   Texas, do hereby certify that the above and foregoing
    7   contains a true and correct transcription of all
    8   portions of evidence and other proceedings requested in
    9   writing by counsel for the parties to be included in
    10   this volume of the Reporter's Record, in the
    11   above-styled and -numbered cause, all of which occurred
    12   in open court or in chambers and were reported by me.
    13       I further certify that this Reporter's Record of
    14   the proceedings truly and correctly reflects the
    15   exhibits, if any, admitted by the respective parties.
    16       I further certify that the total cost for the
    17   preparation of this Reporter's Record is $515 and was
    18   paid by Thiebaud Remington Thornton Bailey LLP.
    19
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    59
    1       WITNESS MY OFFICIAL HAND this the 27th day of July,
    2   2015.
    3
    4
    5                    ______/:/ Coral Hough___________
    Coral Hough, Texas CSR 9007
    6                    CSR Expiration Date: 12/31/2014
    DALLAS COUNTY COURT AT LAW NO. 4
    7                    George L. Allen, Sr. Courts Bldg.
    600 Commerce Street, Suite 575
    8                    Dallas, Texas 75202
    (214) 653-7468 (office)
    9                    (214) 653-6175 (fax)
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