Madhusudan Shah v. Sodexo Services of Texas Limited Partnership ( 2015 )

ACCEPTED
01-15-00141-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/29/2015 12:00:00 AM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00141-CV
_______________________________________________________
FILED IN
IN THE COURT OF APPEALS 1st COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT HOUSTON, TEXAS
OF TEXAS AT HOUSTON 6/28/2015 4:56:19 PM
CHRISTOPHER A. PRINE
_______________________________________ Clerk
FILED IN
MADHUSUDAN SHAH st
1 COURT OF APPEALS
APPELLANT HOUSTON, TX
June 29, 2015
CHRISTOPHER A. PRINE,
v. CLERK
SODEXO SERVICES OF TEXAS LIMITED PARTNERSHIP
APPELLEE
On appeal from the 55th Judicial District Court
Harris County, Texas
Trial Court Cause No. 2014-20678
_______________________________________
FIRST AMENDED BRIEF OF APPELLANT MADHUSUDAN SHAH
_______________________________________
ORAL ARGUMENT REQUESTED
Kenneth R. Baird
Lead Counsel for Appellant
Texas Bar No. 24036172
The Baird Law Firm
2323 South Voss Road, Suite 325
(713)783-1113
(281)677-4227 (facsimile)
bairdlawfirm@hotmail.com
Attorney for Madhusudan Shah
NO. 01-15-00141-CV
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IDENTITY OF PARTIES AND COUNSEL
Trial Counsel for Plaintiff/Appellant Madhusudan Shah
Arshad A. Ramji (Lead Counsel)
Texas Bar No. 24045209
Ramji & Associates, P.C.
2920 Virginia Street
Houston, Texas 77098
(713)888-8888
(866)672-3372 (facsimile)
ramji@ramjilaw.com
Kenneth R. Baird (Co-Counsel)
Texas Bar No. 24036172
The Baird Law Firm
2323 South Voss Road, Suite 325
Houston, Texas 77057
(713)783-1113
(281)677-4227 (facsimile)
bairdlawfirm@hotmail.com
Appellate Counsel for Plaintiff/Appellant Madhusudan
Shah
Kenneth R. Baird
Texas Bar No. 24036172
The Baird Law Firm
2323 South Voss Road, Suite 325
Houston, Texas 77057
(713)783-1113
(281)677-4227 (facsimile)
bairdlawfirm@hotmail.com
Trial and Appellate Counsel for Defendant/Appellee Sodexo
Services of Texas Limited Partnership
Nelson D. Skyler
Texas Bar No. 00784982
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nskyler@brownsims.com
Tarush R. Anand
Texas Bar No. 24055103
Neal A. Hoffman
Texas Bar No. 24069936
nhoffman@brownsims.com
1177 West Loop South, 10th Floor
Houston, Texas 77027
(713)629-1580
(713)629-5027 (facsimile)
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TABLE OF CONTENTS
Page
Identity of Parties and Counsel ……...………….………………. i
Table of Contents ................................................................................... iii
Index of Authorities ………………………….………………………… v
Statement of the Case ……………...………………………….…..…… 1
Issues Presented ……………………...……………………………..…….. 3
Statement of Facts ……………………………...…………………..……. 4
Summary of Argument …………………...…………………………….…... 8
Argument ……………………………………………….………………….…. 14
I. Elements of Health Care Liability Claims ….. 14
II. The Court Should Apply a De Novo Standard
Of Review ……………………………………………….…... 15
III. Reversal of the Trial Court’s Decision is
Mandated Under Ross as Shah’s Tort Claims
Lack the Requisite Substantive Nexus With
Health Care ………………………………………………... 17
A. The Ross Decision ………………………….…….. 17
B. Ross Mandates Reversal of the Trial
Court’s Decision…………………………………... 22
C. Ross’ Progeny Also Supports Reversal
of the Trial Court’s Decision …………….. 32
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Page
IV. Pre-Ross Cases Remain Valid as Persuasive
Authorities & Illustrate the Fallacies
Associated With Trying to Label Shah’s
Claims as Health Care Liability Claims ……... 35
A. Riverside General Hospital …………………. 35
B. Riverside General Hospital’s Logic……… 36
Was Extended in Gonzalez
C. The Twilley Decision…………………………….. 37
D. The Dewey Decision ……………………………... 40
E. The Pre-Ross Decisions Support
Reversal of the Trial Court’s
Decision ……………………………………………... 41
V. Requiring an Expert Report Would Engraft
a Superfluous and Pointless Requirement
Onto Shah’s Negligence Claim …………………….. 42
VI. In the Alternative, Sodexo Should be
Equitably Estopped From Seeking Dismissal
of Shah’s Claims …………………………………………………………………. 45
Prayer ……………………………………………………….…….………….. 50
Certificate of Service ……………………………………..………… 51
Certificate of Compliance …………………………………..…….… 52
Appendix ……………………………………………………………….…….. 53
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INDEX OF AUTHORITIES
Page(s)
Brazos Presbyterian Homes, Inc. v.
Rodriguez, No. 14-14-00479-CV, 2015
Texas App. LEXIS 5374 (Tex. App. ---
Houston [14th Dist.] 5/28/15, no pet. h.)........33, 34
Buck v. Blum,
130 S.W.3d 285 (Tex. App. --- Houston
[14th Dist.] 2004, no pet.).......................16
Columbia Med. Ctr. of Denton Subsidiary, L.P.
v. Braudrick, No. 02-13-00339-CV, 2014 Tex.
App. LEXIS 5536 (Tex. App. --- Fort Worth
2014, pet. filed) (memorandum opinion)..............14
DHS Mgmt. Services, Inc. v. Castro,
435 S.W.3d 919 (Tex. App. --- Dallas 2014,
no pet.)...........................................15
Gonzalez v. Diversicare Leasing Corp.,
No. 01-13-00108-CV, 2014 Tex. App. LEXIS
10576 (Tex. App. --- Houston [1st Dist.] 2014,
pet. filed)....................................36, 37,
41
Good Shepherd Medical Center-Linden, Inc. v.
Twilley,422 S.W.3d (Tex. App. --- Texarkana 2013,
pet. denied)...................................37, 38,
39, 40,
41, 43
Holland v. Friedman & Feiger,
No. 05-12-01714-CV, 2014 Tex. App. LEXIS 12892
(Tex. App. --- Dallas 2014, no pet. h.)............46
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Page(s)
Loaisiga v. Cerda,
379 S.W.3d 248 (Tex. 2012).....................14, 16,
18, 23
Lance Thai Tran, DDS, P.A. v. Chavez,
No. 14-14-00318-CV, 2015 Tex. App. LEXIS
4886 (Tex. App. --- Houston [14th Dist.]
5/14/15, no pet. h.) ..............................33
Lout v. Methodist Hosp.,
No. 14-04-00302, CV, 2015 Tex. App. LEXIS
6272 (Tex. App. --- Houston [14th Dist.]
6/23/15, no pet. h.)...............................33
Marks v. St. Luke’s Episcopal Hosp.,
319 S.W.3d 658 (Tex. 2010).........................15
MCI Sales & Services, Inc. v. Hinton,
329 S.W.3d 475 (Tex. 2010), cert. denied,
131 S. Ct. 2903, 179 L. Ed. 2d 1246, 2011
U.S.LEXIS 3990, 79 U.S.L.W. (2011)...............15
Methodist Healthcare System of San Antonio
v. Dewey, 423 S.W.3d 516 (Tex. App. ---
San Antonio 2014, pet. filed)......................40,
41, 43
McIntyre v. Ramirez,
109 S.W.3d 741 (Tex. 2003)........................15
Ross v. St. Luke’s Episcopal Hospital,
No. 13-0439, 2015 Tex. LEXIS 361 (Tex.
5/1/15) (publication status pending)............passim
Sherman v. HealthSouth Specialty Hospital, Inc.,
397 S.W.3d 869 (Tex. App. --- Dallas 2013, pet.
denied)............................................15
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Page(s)
Texas Dept. of Transportation v. Needham,
82 S.W.3d 314 (Tex. 2002)...........................15
Tex. Lottery Comm’n v. First State Bank of
DeQueen, 325 S.W.3d 628, 635 (Tex. 2010)............16
Texas West Oaks Hospital, L.P. v. Williams,
371 S.W.3d 171 (Tex. 2012)......................passim
Union Carbide v. Synatzske,
438 S.W.3d 39 (Tex. 2014)...........................16
Williams v. County of Dallas,
194 S.W.3d 29 (Tex. App. --- Dallas 2006,
pet. denied).....................................46
Williams v. Riverside General Hospital, Inc.,
No. 01-13-00335-CV, 2014 Tex. App. LEXIS 9681
(Tex. App. --- Houston [1st Dist.] 2014, no pet.
h.) (memorandum opinion)........................passim
Valley Regional Medical Ctr. v. Camacho,
No. 13-14-00004-CV, 2015 Tex. App. LEXIS
4967 (Tex. App. --- Corpus Christi 5/14/15,
no pet. h.).........................................33
Yamada v. Friend,
335 S.W.3d 192 (Tex. 2010)..........................15
Statutes & Rules
TEX. CIV. PRAC. & REM. CODE § 74.001, et. Seq.........passim
TEX. CIV. PRAC. & REM. CODE § 74.001(13) .................14
TEX. R. CIV. P. 194.2(c) .......................3, 12, 45,
46, 48, 49
TEX. R. CIV. P. 193.6(a) ...........................46, 48
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STATEMENT OF THE CASE
On April 14, 2014, Madhusudan Shah1 commenced the
underlying litigation in the District Courts of Harris
County.2 Shah’s claims sounded in common law negligence
and related to personal injuries sustained on August 1,
2013 when he was struck by a beverage cart operated by
Sodexo Services of Texas Limited Partnership3 while Shah
was on the premises of non-party Ben Taub Hospital.4
Sodexo filed its Original Answer on May 23, 2015.5
On December 19, 2014, Sodexo filed its Motion to
Dismiss for Failure to Provide a Timely and Complete
Chapter 74 Expert Report.6 Shah filed a timely response
opposing the Motion to Dismiss7 and reply and sur-reply
briefs were also filed by the parties.8 An oral hearing
1 Hereinafter “Shah”
2 Clerk’s Record (hereinafter “CR”) 4-8.
3 Hereinafter “Sodexo”
4 Id.
5
CR 18-20. Although Shah originally named five separate defendants
in the suit, Shah later non-suited the other defendants after
learning that Sodexo was the responsible party. See CR 27-28.
6 CR 158-281. Hereinafter, Shah refers to the Motion to Dismiss
for Failure to Provide a Timely and Complete Chapter 74 Expert
Report as “Motion to Dismiss.”
7 CR 284-314.
8 CR 386-395 & 400-402.
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on the Motion to Dismiss was conducted by the 55th
Judicial District Court on January 12, 2015.9
On January 16, 2015, the 55th Judicial District Court
of Harris County entered an order granting Sodexo’s
Motion to Dismiss.10 Shah filed a timely Notice of Appeal
with the Harris County District Clerk’s Office on
February 12, 2015.11
9 CR 282-283. The oral hearing on the Motion to Dismiss was
conducted without a record.
10 CR 413. Although there was initially some uncertainty as to
whether or not the 55th Judicial District Court’s order was an
appealable final judgment as it left unresolved Sodexo’s claim for
attorney’s fees and costs under Chapter 74 of the Texas Civil
Practice & Remedies Code, Sodexo later waived its claim for
attorney’s fees and costs and the parties submitted a joint
stipulation to the Honorable Court of Appeals on March 19, 2015
stipulating that 55th Judicial District Court’s Order was a final
judgment and requesting that the Honorable Court of Appeals resolve
the substantive legal issues raised by this appeal. A copy of the
stipulation is included in the Appendix.
11 CR 416 to 419.
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ISSUES PRESENTED
(1) Under the Supreme Court’s recent opinion in Ross,12
including the seven non-exclusive factors
identified by the Supreme Court as guideposts for
the analysis, do Shah’s tort claims have a
substantive relationship with the provision of
medical or health care such that they can be
properly classified as health care liability
claims under Chapter 74 of the Texas Civil Practice
& Remedies Code?
(2) Would requiring Shah to obtain an expert report
add anything of substance to Shah’s claims or would
it merely provide Sodexo with an unwarranted
procedural advantage under the guise of regulating
health care?
(3) Can a defendant avoid its obligation to disclose
its “basic assertions” under Rule 194.2(c) by
waiting until after a plaintiff’s one-hundred and
twenty day deadline to serve a Chapter 74 report
expires before it reveals that it may elect to seek
dismissal of the plaintiff’s claims for failure to
satisfy the expert report requirement?
Ross v. St. Luke’s Episcopal Hospital, No. 13-0439, 2015 Tex.
12
LEXIS 361 (Tex. 2015) (publication status pending)
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STATEMENT OF FACTS
On or about August 1, 2013, Shah was a resident at
Ben Taub Hospital for cancer treatment.13 As he was
attempting to retrieve a cup of coffee from a vending
machine, Shah was struck by a beverage cart which was
operated by an employee of Sodexo.14 Shah sustained
severe and disabling injuries to his knee, back, stomach,
feet, and body general as a result of being knocked to
the ground by the beverage cart.15
The gravamen of Shah’s negligence claim is that
Sodexo’s employee breached his or her duty to operate the
beverage cart with reasonable care.16 In particular, Shah
alleges that the employee who was responsible for
operating the cart was negligent in not watching where
he or she was pushing the cart, pushing the cart at an
unsafe rate of speed, not keeping a proper lookout, not
paying attention, not detecting Shah’s obvious presence
13 CR 4.
14 Id.
15 Id.
16 CR 5.
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near the vending machine, and generally operating the
cart in a random, haphazard, and careless manner
inconsistent with his or her duty of reasonable care.17
Shah’s claims relate to the proper operation of a
beverage cart and do not encompass any medical issues.
Sodexo’s Motion to Dismiss was predicated upon the
position that Shah’s claims are health care liability
claims within the meaning of Chapter 74 of the Texas
Civil Practice & Remedies Code and that dismissal of the
claims was appropriate since Shah failed to file a
written expert report within one-hundred and twenty days
from the date Sodexo filed its answer.18 At the ensuing
oral hearing on January 16, 2015, the parties and the
trial court discussed the proper interpretation of the
Texas West Oaks Hospital19 decision as well as various
intermediate appellate court decisions relevant to the
nature and scope of the Supreme Court’s decision.
17 Id.
18 See Generally CR 158 to 281. Shah concedes that he did not file
an expert report within the one-hundred and twenty day period but
contends that no such report was necessary as his claims do not
fall within the purview of Chapter 74.
19 Texas West Oaks Hospital, L.P. v. Williams, 371 S.W.3d 171 (Tex.
2012).
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At the time the trial court heard oral argument on
Sodexo’s Motion to Dismiss, the Ross decision was not
available as a guide as the case was still pending before
the Texas Supreme Court.20 While Shah disagrees with the
trial court’s analysis of the issues before it under the
state of the law at that time, the legal arguments
presented to the trial court are largely moot as Ross
clarified the uncertain nature of the law under Texas
West Oaks Hospital which existed at the time the trial
court rendered its decision. As a result, Shah focuses
his Amended Brief on Ross’ holding that a substantive
nexus must exist between a claim based upon safety
standards and the provision of health care before a tort
claim can be properly classified as a health care
liability claim under Chapter 74 of the Texas Civil
Practice & Remedies Code.21 As no such substantive
relationship exists between Shah’s tort claims and the
20 The Ross decision was issued by the Texas Supreme Court on May
1, 2015.
21 On May 29, 2015, the Court granted Shah leave to file an amended
brief in light of the fact that the Ross decision was not issued
until after Shah’s original brief was filed. A copy of the Order
is included in the Appendix as Tab C.
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provision of health care services, the Court should
reverse the trial court’s ruling on Sodexo’s Motion to
Dismiss and remand this matter to the trial court for
further proceedings.
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SUMMARY OF ARGUMENT
Under Ross, a tort claim predicated upon alleged
departures from safety standards must exhibit a
substantive nexus with the provision of health care
services before it can be labeled a health care liability
claim under Chapter 74 of the Texas Civil Practice &
Remedies Code. Although the question of whether or not
such a substantive relationship exists is a decision to
be made on a case by case basis, the Texas Supreme Court
has articulated a list of seven non-exclusive factors
which may be used as part of the analysis. Before the
factors are even applied, it is clear from the nature of
Shah’s tort claims that the operation of a beverage cart
falls far outside the reach of Chapter 74. Shah’s tort
claims are grounded in the common law duty of reasonable
care and the question of whether or not Sodexo’s employee
operated the cart in a reasonable fashion can be resolved
without reference to any medical standards.
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An application of the seven Ross factors reinforces
the conclusion that Shah’s claims are not health care
liability claims as they lack a substantive nexus with
the provision of health care services and at best have a
marginal and insignificant relationship to the cancer
treatment Shah was receiving from non-party Ben Taub
Hospital when the underlying accident occurred. While
the application of one of the factors is unclear, a
reasoned consideration of the other six indicate that the
requisite substantive relationship to health care is
lacking. As a result, the Court should reverse the trial
court’s ruling on Sodexo’s Motion to Dismiss.
The four intermediate appellate decisions which have
had an opportunity to analyze and apply Ross further
militate in favor of the conclusion that a substantive
relationship between Shah’s tort claims and health care
is lacking. All four decisions were decided in favor of
plaintiffs who argued that Chapter 74 was inapplicable
to their respective tort claims. As any factual or legal
distinctions between those decisions and the case sub
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judice would be nothing more than arbitrary distinctions
without a difference, it is clear that Shah’s tort claims
are not health care liability claims within the meaning
of Chapter 74 of the Texas Civil Practice & Remedies
Code.
Although they may be characterized as non-binding
authorities due to the fact that they were decided before
the announcement of the substantive relationship standard
in Ross, a series of intermediate appellate court
decisions remain persuasive as they highlight the logical
fallacy which would result in the event that Shah’s
claims are forced under the rubric of Chapter 74. As
there is no substantive difference between the injury-
producing activity in those cases and this matter, it is
clear that Shah’s tort claims do not satisfy the
statutory definition of a health care liability claim
regardless of whether that definition is construed under
Ross or pre-Ross standards.
Regardless of how Ross is interpreted, the Court
should decline Sodexo’s invitation to engraft a
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superfluous and unnecessary procedural requirement onto
Shah’s negligence claim under the guise of regulating
health care. Assuming for the sake of argument that Shah
could locate a physician or other type of health care
provider who had the requisite expertise to address
standard of care issues relative to the operation of a
beverage cart, the safe operation of a beverage cart does
not implicate medical or health care standards. Infusing
expert opinions from a physician or other health care
provider into the midst of this case would not benefit
the trier of fact or otherwise add anything of substance
to the litigation. While requiring Shah to produce an
expert report would provide Sodexo with an unwarranted
tactical advantage, the purpose of Chapter 74 is not to
erect procedural hurdles for plaintiffs in non-medical
cases.
In the alternative and in the unlikely event that
the Court believes that Chapter 74’s expert report
requirement is applicable to Shah’s claims, the Court
should apply the doctrine of equitable estoppel to
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prevent Sodexo from seeking dismissal of Shah’s claims
due to the fact that Sodexo failed to provide a full
disclosure of its “basic assertions” under Rule 194.2(c).
Sodexo’s basic assertions at the time it responded to
Shah’s Requests for Disclosure on July 23, 201422 should
have included the fact that it might seek dismissal of
Shah’s claims for failure to comply with Chapter 74’s
expert report requirement. However, Sodexo failed to
include any reference to Chapter 74 in its response to
194.2(c)23 and instead interjected Chapter 74 into the
case for the first time when the Motion to Dismiss was
filed on December 19, 2014.24 To fail to invoke the
doctrine of equitable estoppel under these circumstances
would effectively convert Chapter 74 into a trap door
that a defendant can spring open at a strategic time in
order to catch an unsuspecting plaintiff who has no
knowledge that an expert report is even required. As
such an outcome does not further the interests of
22 CR 342.
23 CR 343.
24 See Generally CR 158-281.
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justice, the application of equitable estoppel mandates
the reversal of the trial court’s decision on Sodexo’s
Motion to Dismiss.
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ARGUMENT
I. Elements of Health Care Liability Claims
Chapter 74 of the Texas Civil Practice & Remedies
Code defines a health care liability claim as follows:
“A cause of action against a health care provider
or physician for treatment, lack of treatment,
or other claimed departure from accepted
standards of medical care, or heath care, or
safety or professional or administrative
services directly related to health care, which
proximately results in injury to or death of a
claimant, whether the claimant’s claim or cause
of action sounds in tort or contract.25
Based upon the statutory definition, a health care
liability claim has three distinct elements: (1) the
defendant is health care provider; (2) the claim at issue
concerns treatment, lack of treatment, or other claimed
departure from accepted standards of medical care; and
(3) the defendant’s alleged act or omission proximately
caused the injury.26
25See TEX. CIV. PRAC. & REM. CODE § 74.001(13).
26See Loaisiga, 379 S.W.3d at 255; Columbia Medical Ctr. of Denton
Subsidiary, L.P. v. Braudrick, No. 02-13-00339-CV, 2014 Tex. App.
LEXIS 5536, *3 (Tex. App. --- Fort Worth 2014, pet. filed)
(memorandum opinion).
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In order to determine if a claim satisfies the
requisite elements of a health care liability claim, the
nature of the claim being asserted must be examined with
emphasis on the essence of the claim, the alleged
wrongful conduct, and the duties allegedly breached.27
II. The Court Should Apply a De Novo Standard of
Review
The question of whether or not Appellant’s claims
fall within the scope of Chapter 74 of the Texas Civil
Practice & Remedies Code is a question of statutory
interpretation which triggers a de novo review.28 In
reviewing a statute, the goal is to “determine and give
effect to the Legislature’s intent” and the touchstone
of the analysis should be the “plain and common meaning
of the statute’s words.”29 In such an analysis, statutory
27 See Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010); DHS Mgmt.
Servs, Inc. v. Castro, 435 S.W.3d 919, 921 (Tex. App. --- Dallas
2014, no pet.); Sherman v. HealthSouth Specialty Hospital, Inc.,
397 S.W.3d 869, 702 (Tex. App. --- Dallas 2013, pet. denied)
28 See Texas West Oaks Hospital, 371 S.W.3d at 177; Marks v. St.
Luke’s Episcopal Hospital, 319 S.W.3d 658, 663 (Tex. 2010); MCI
Sales & Services, Inc. v. Hinton, 329 S.W.3d 475, 500 (Tex. 2010),
cert. denied, 179 L. Ed. 2d 1246, 2011 U.S. LEXIS 3990, 79 U.S.L.W.
(2011.
29 See Texas Dept. of Transportation v. Needham, 82 S.W.3d 314, 318
(Tex. 2002); McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003).
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language should be afforded its plain and common meaning
unless statutorily defined otherwise, a different meaning
is apparent from the context, or a certain construction
would lead to absurd or nonsensical results.30
Ascertaining legislative intent requires reading the
statute as a whole with all of its language placed in the
proper context.31
When determining whether or not a claimant has
asserted a health care liability claim, an appellate
court should consider the entire record before it,
including the pleadings, motions and responses, and
relevant evidence properly admitted at the trial court
level.32
30 See Ross, 2015 Tex. LEXIS 361 at *8; Tex. Lottery Comm’n v.
First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010).
31 See Ross, 2015 Tex. LEXIS 361 at *8; Union Carbide Corp. v.
Synatzske, 438 S.W.3d 39, 51 (Tex. 2014).
32 See Texas West Oaks Hospital, 371 S.W.3d at 177; Loaisiga, 349
S.W.3d at 258; Riverside General Hospital, 2014 Tex. App. LEXIS
9681 at *5; Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App. ---
Houston [14th Dist.] 2004, no pet.)
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III. Reversal of the Trial Court’s Decision is
Mandated Under Ross as Shah’s Tort Claims Lack the
Requisite Substantive Nexus With Health Care
A. The Ross Decision
Lezlea Ross was a visitor at St. Luke’s Episcopal
Hospital33 As Ross was walking through the lobby in order
to exit the hospital, she slipped and fell on the floor
which was in the process of being cleaned and buffed.34
Ross subsequently filed suit against St. Luke’s and the
cleaning contractor for the hospital on a premises
liability theory.35
After the trial court and the Fourteenth Court of
Appeals labeled Ross’ claims as health care liability
claims, the Texas Supreme Court had an opportunity to
clarify the confusion created by the Texas West Oaks
Hospital decision concerning the proper standard for
defining health care liability claims. After reviewing
Chapter 74’ statutory definition for health care
liability claims as well as the Texas West Oaks Hospital
33 Hereinafter “St. Luke’s”
34 See Ross, 2015 Tex. LEXIS 361 at *2.
35 Id.
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and Loaisiga36 decisions,37 the Court announced a new
standard for distinguishing between health care liability
claims and ordinary tort claims that happen to occur on
the premises of a health care provider.
The court prefaced its holding with three several
key principles related to the purpose of Chapter 74 as
well as its proper application. First, the court expanded
the prior holding in Loasigia to safety-based claims38 by
noting that a claim based upon alleged departure from
safety does not fall underneath Chapter 74’s umbrella
merely because the underlying injury took place on the
premises of a health care provider or because the
defendant is a health care provider.39 The court also
noted that a health care provider may assume tort duties
related to maintenance or generalized safety for its
patrons which are indistinguishable from corresponding
duties acquired by non-medical business owners.40
36 Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012).
37 See Ross, 2015 Tex. LEXIS 361 at *7 to 14.
38 Loaisiga was decided in the context of an intentional tort claim
where a patient was assaulted as opposed to a negligence claim
based on alleged departures from safety standards.
39 See Ross, 2015 Tex. LEXIS at *14.
40 Id. at *14-15.
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Finally, the court recognized that the text of Chapter
74 does not specifically state that a safety-based tort
claim falls within its domain only if the underlying
claim has some relationship to the provision of health
care services. However, the court found that such a
relationship must have been intended by the legislature
given other expressions of legislative intent in the
statute coupled with the context in which “safety”
appears in the statute.41
Perhaps the most important observation made by the
court in its review of the statutory language is the
effect the statute would have if all safety-based claims,
regardless of their relationship to traditional health
care, were forced into the realm of Chapter 74. As the
court eloquently stated, nonsensical results would occur
if all plaintiffs who sue health care providers were
required to obtain an expert report regardless of the
nature of the underlying claim in dispute:
“the broad meaning of ‘safety’ would afford
defendant health care providers a special
procedural advantage in the guise of requiring
41 Id. at *15.
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plaintiffs to file expert reports in their suits
regardless of whether their cause of action
implicated the provision of medical or health
care. We do not believe the Legislature intended
the statue to have such arbitrary results.”42
Based upon the aforementioned reasoning, the court
clarified the law as to health care liability claims by
holding that there must be a substantive nexus between
the safety standards allegedly breached and the provision
of health care before a safety-based tort claim qualifies
as a health care liability claim under Chapter 74.43 The
court clarified that the “pivotal issue” in a safety
based tort claim is whether the standards on which the
claim is based implicate the defendant’s duties as a
health care provider, including the duties to provide for
patient safety.44
As a guide in determining whether or not the
requisite substantive nexus exists, the court articulated
a list of non-exclusive factors which serve as guideposts
42 Id. at *16-17.
43 Id. at *17-18.
44 Id. at *18-19.
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in distinguishing between health care liability claims
and ordinary tort claims:
(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 negligence, was it a
type used in providing health care?
(7) Did the alleged negligence occur in the
course of the defendant’s taking action
or failing to take action necessary to
comply with safety-related requirements
21
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set for health care providers by
governmental or accrediting agencies?45
After finding that none of the seven factors
supported any relationship between a slip and fall
accident in the lobby of a hospital and the hospital’s
provision of medical services, the court reversed the
judgment of the court of appeals and remanded the case
back to the trial court.46
B. Ross Mandates Reversal of the Trial Court’s
Decision
Assuming for the sake of argument that there is any
relationship at all between a patient being struck by a
beverage cart while attempting to retrieve a cup of
coffee and the provision of health care services, the
relationship falls exceedingly short of the substantive
nexus required under Ross. Even before the seven factors
which were provided by the court as guides in Ross are
examined, it is clear from a simple review of the facts
which engendered Shah’s tort claims that there is no
meaningful relationship between Shah’s injury and the
45 Id. at *19-20.
46 Id. at *20-21.
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provision of health care services. While Shah was injured
while he was physically on the premises of non-party Ben
Taub Hospital, it was mere happenstance that the beverage
cart was being pushed through a hospital as opposed to a
non-medical establishment and no legitimate argument can
be advanced that the operation of a beverage cart has
even a tangential connection to the provision of health
care services. Furthermore, Loaisiga and Ross make it
clear that the situs of injury itself is a non-factor in
deciding how to classify Shah’s tort claims.
Applying the seven factors identified in Ross further
reinforces the conclusion that there is no substantive
relationship between being struck by a beverage cart and
health care. While the application of one factor is
unclear, the remaining six considerations all militate
in favor of Shah’s position that a meaningful connection
between his tort claims and health care is lacking.
Arguably, Shah was in a “place where patients might
be during the time they were receiving care”47 when he
47 Id. at *19
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was obtaining a cup of coffee as patients can reasonably
be expected to walk into common areas of the hospital.
However, the latter part of the second factor militates
against classifying Shah’s claims as Sodexo had no duty
to protect Shah based upon his receipt of special medical
care when the accident in question occurred. While
Sodexo had a common law tort duty to operate the beverage
cart with reasonable care so as to protect Shah from
generalized harm, this duty had nothing to do with Shah’s
medical status or the cancer treatment he was receiving
from non-party Ben Taub Hospital. “Harm” as used by the
court in Ross has to refer to medical-based harms for the
factor to have any usefulness and it is clear that Sodexo
was not protecting Shah from any type of medical-based
harm by pushing a beverage cart through the hallways of
a hospital. Since the application of the second factor
cuts both ways and is inconclusive, it has no impact on
the ultimate question of how Shah’s tort claims should
classified.
24
NO. 01-15-00141-CV
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A reasoned application of the remaining six factors
demonstrate that there is no substantive relationship
between the safety standards breached by Sodexo in
connection with its allegedly negligent operation of the
beverage cart and the provision of health care services.
As to the first factor, Sodexo’s alleged negligence did
not occur in the course of Sodexo performing tasks which
had the purpose of protecting Shah from harm. Once again,
“harm” should be construed as medical-based harm for this
factor to have any usefulness and Sodexo’s operation of
a beverage cart in the hallways and common areas of Ben
Taub Hospital clearly was not an activity intended to
protect Shah from medical-based harm. While the doctors
who were treating Shah for cancer had a duty to protect
Shah from medical-based harms when administering
treatment, no similar obligation arose in the lobby near
the vending machine where Sodexo was operating the
beverage cart. Furthermore, the common law duty to
operate a beverage cart with reasonable care is entirely
non-medical in nature and is indistinguishable from the
25
NO. 01-15-00141-CV
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tort duty imposed on the operators of beverage carts at
sporting events or other non-medical settings. Ross was
clear that such duties, which are indistinguishable from
the duties placed on non-medical business owners, do not
create a health care liability claim.48
Shah anticipates that Sodexo will argue that its
role in delivering food and drink items to patients
creates a duty to protect Shah from injury which allows
the second factor support its position. However, such
an argument misconstrues the second factor and the spirt
of the holding in Ross. While the transport of food and
drink through a hospital may spawn a tangential
connection to the health care services which are
delivered by the hospital to patients, it does not create
the type of “substantive nexus” between Shah’s underlying
accident and the provision of health care services which
is necessary under Ross to create a health care liability
claim. Furthermore, “harm” in the context of the first
factor has to be interpreted as “medical-based harm” for
48
Id. at *14-15.
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NO. 01-15-00141-CV
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the Ross analysis to have any significance. Otherwise,
any duty to protect against any type of patient harm
would create a health care liability claim which clearly
was not the intent of the Texas Supreme Court.
Guarding against the risk of injury created by the
unsafe operation of a beverage cart while a patient is
in a common area of the hospital is a generalized tort
obligation that is entirely non-medical in nature and the
existence of the duty has nothing to do with Shah’s status
as a cancer patient at Ben Taub Hospital. Sodexo’s duty
to Shah is analogous to the duty of St. Luke’s Hospital
to buff and clean floors in a manner which prevented
visitors from slipping and falling in the hospital’s
lobby. However, neither tort duty is directed towards
protecting patients from medical-based harms and does not
create a substantive nexus with health care merely
because the duty is carried out the physical premises of
a hospital.
27
NO. 01-15-00141-CV
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The third factor and fourth factors also support
reversal of the trial court’s decision as Shah was not
the process of seeking or receiving health care when he
walked to vending machine in order to obtain a copy of
coffee nor was he providing or assisting in the provision
of health care when he was struck by the beverage cart
in front of the vending machine. To the contrary, the
underlying accident occurred while Shah was taking a
break from medical treatment in order to obtain a
beverage in a common area of the hospital.
Shah again anticipates that Sodexo will attempt to
misconstrue the third factor as part of a disingenuous
attempt to force Shah’s non-medical claims into the realm
of Chapter 74. While patients might be reasonably
expected to walk into the common areas of a hospital
while waiting for an appointment with a doctor or while
taking a break from treatment, Shah’s decision to obtain
a cup of coffee from a vending machine in the hallway was
not made in furtherance of his cancer treatment. The
fact that Sodexo pushed beverage carts through the common
28
NO. 01-15-00141-CV
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areas and that Sodexo was charged with distributing food
and drink items throughout the hospital does not make the
retrieval of a cup of coffee a medical event and no health
care services were being administered by anyone at the
time of Shah’s injury.
The fifth factor also points in Shah’s direction as
the alleged negligence on Sodexo’s part is not based on
safety standards arising from professional duties owed
by Sodexo to a patient. While Sodexo did have an
obligation to adhere to certain safety standards while
operating the beverage cart, the applicable standards
flow from the common law duty of reasonable care and have
no connection whatsoever to medical treatment. Even more
importantly, the safety standards applicable to the safe
operation of a beverage cart do not implicate
professional medical judgment and can be resolved by the
trier of fact without resort to medical or health care
standards.
Someone pushing a beverage cart through a hotel, an
office building, or at a sports stadium would have the
29
NO. 01-15-00141-CV
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same “professional duty” as Sodexo and the operation of
a beverage cart in a medical or a non-medical setting
does not give rise to professional duties which are in
anyway related to the provision of health care. The
professional duties assumed by Sodexo were entirely non-
medical in nature and are functionally distinct from the
professional obligation a physician owes a patient. The
fact that Sodexo’s duties happened to be carried out
while it was transporting food and drink through a
hospital is irrelevant as the nature of Sodexo’s
underlying tort duty could not possibly be further
removed from medical treatment and is no different from
duties acquired by vendors in non-hospital settings.
The final two factors solidify the conclusion that
Shah’s claims lack any meaningful connection to health
care. The beverage cart, which is the instrumentality
in question, is a non-medical piece of equipment which
is not used to administer health care and had no
relationship whatsoever to the cancer treatment Shah was
receiving at Ben Taub Hospital. While Shah anticipates
30
NO. 01-15-00141-CV
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that Sodexo will argue that the beverage cart is a health
care instrumentality as it was used to transport food and
drink throughout the hospital and therefore relates to
patient nutrition, construing “instrumentality” in this
manner would render the entire analysis under Ross
obsolete as any physical item on a hospital premises
would then be an “instrumentality” that supports a
connection to health care. Such an arbitrary result would
essentially render the “substantive nexus” requirement
meaningless and make all tort claims based upon
departures from safety standards health care liability
claims. As this was clearly not the Supreme Court’s
intent in Ross, the Court should reject Sodexo’s
misplaced attempt to spin factor six in favor of a more
reasoned interpretation of Ross.
Finally, Sodexo’s alleged negligence was not in the
course of Sodexo taking action to comply with safety-
related requirements set for health care providers by
governmental or accrediting agencies. Shah is not aware
of any safety-related requirements promulgated by
31
NO. 01-15-00141-CV
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governmental or accrediting agencies for the safe
operation of a beverage cart and the safe operation of a
beverage cart is guided solely by the common law duty of
reasonable care. Shah’s allegations that the operator
of the beverage cart pushed the cart at an unsafe rate
of speed, failed to keep a proper lookout, failed to pay
attention to people in the vicinity of the cart’s path,
and failed to detect his obvious presence in front of the
vending machine do not relate to medical standards issued
by governmental or accrediting agencies. To the
contrary, these alleged acts of negligence spring from
the non-medical duty to push a beverage cart with
reasonable care and Sodexo’s negligence would not be any
different if the accident in question had occurred in a
non-medical setting.
C. Ross’ Progeny Also Supports Reversal of the Trial
Court’s Decision
Due to its recent issuance, only four intermediate
appellate courts have had an opportunity to analyze and
apply the Ross’ “substantial nexus” holding. However,
all four cases were decided in favor of plaintiffs who
32
NO. 01-15-00141-CV
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argued that Chapter 74 was inapplicable to their claims
and there is not yet a reported decision in Texas where
the substantive nexus has been satisfied. These decisions
involved a slip and fall in a hospital lobby,49 an injury
in an elevator at a nursing home,50 a visitor struck by
an automatic sliding door at a hospital,51 and a slip and
fall in the break room of a dental office.52 As there is
no substantive difference between being struck by a
beverage cart while retrieving a cup of coffee and
slipping and falling in the lobby of a hospital or dental
office’s break room or being injured due to an elevator
or a sliding door, the outcome in the case sub judice
should be the same as the result reached by the four
49 See Lout v. Methodist Hospital, No. 14-04-00302-CV, 2015 Tex.
App. LEXIS 6272 (Tex. App. --- Houston [14th Dist.] 6/23/15, no
pet. h)
50 See Brazos Presbyterian Homes, Inc. v. Rodriguez, No. 14-14-
00479-CV, 2015 Tex. App. LEXIS 5374 (Tex. App. – Houston [14th
Dist.] 5/28/15, no pet. h.)
51 See Valley Regional Medical Center v. Camacho, No. 13-14-00004-
CV, 2015 Tex. App. LEXIS 4967 (Tex. App. --- Corpus Christi
5/14/15, no pet. h.)
52 See Lance Thai Tran, DDS, PA v. Chavez, No. 14-14-00318-CV, 2015
Tex. App. LEXIS 4886 (Tex. App. --- Houston [14th Dist.] 5/14/15,
no pet. h.)
33
NO. 01-15-00141-CV
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intermediate appellate courts which have had an
opportunity to apply Ross.
Some of the misplaced arguments that Shah anticipates
will be advanced by Sodexo were soundly rejected in
Brazos Presbyterian Homes. While recognizing that
patients may utilize an elevator in connection with their
course of care at a nursing home, the court rebuffed the
nursing home’s contention that elevator maintenance
standards are substantively related to the provision of
either health care or patient safety.53 In holding that
the claims before it did not satisfy the Ross
“substantive connection standard,” the court also
rejected the argument that the elevator was a health care
instrumentality and found no evidence that the provision
and maintenance of properly functioning elevators are
required to comply with health care requirements set by
governmental or accrediting authorities.54 As there is
no substantive difference between the safe operation of
an elevator in a nursing home and the use of a beverage
53
See Brazos Presbyterian Homes, 2015 Tex. App. LEXIS at *10.
54 Id. at *12.
34
NO. 01-15-00141-CV
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cart in a hospital lobby, the Court should dispose of
Sodexo’s arguments in a similar manner.
IV. Pre-Ross Cases Remain Valid as Persuasive
Authorities & Illustrate the Fallacies Associated
With Trying to Label Shah’s Claims as Health Care
Liability Claims
A. Riverside General Hospital55
Emerlean Williams was employed by Riverside General
Hospital as a nursing assistant. Williams sustained
injuries in 2009 after she tripped over an extension cord
and again in 2010 when she slipped and fell on a foreign
substance on the floor while performing a room check.56
On appellate review, this very Court was asked to
determine whether or not Williams’ claims should be
classified as health care liability claims under the
state of the law which predated Ross merely because they
involved alleged safety breaches on the part of a health
care provider.57
After reviewing various pre-Ross decisions, this
Court found no cognizable link between the “garden
55 No. 01-13-00335-CV, 2014 Tex. App. LEXIS 9681 (Tex. App. ---
Houston [1st Dist.] 2014, no pet.) (memorandum opinion).
56 See Riverside General Hospital, 2014 Tex. App. LEXIS at *2.
57 Id. at *2-3.
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NO. 01-15-00141-CV
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variety” slip and fall claims asserted by Williams and
the provision of health care services.58 As a result, this
Court reversed the decision of the trial court dismissing
Williams’ claims and remanded the case for further
proceedings at the trial court level.59
B. Riverside General Hospital’s Logic was Expanded
in Gonzalez60
This Court followed the logic set forth in Riverside
General Hospital to reject another misplaced argument
that tort claims with no apparent connection to health
care were health care liability claims under Chapter 74.
Iris Gonzalez, an employee at Afton Oaks Nursing Home,
was injured while leaving the building in order to move
her car.61 A co-worker had stacked empty milk crates in
the dimly lit path which was used by employees to enter
and exit the building and Gonzalez stumbled over the milk
crates on the way to her car.62 Gonzalez subsequently
58 Id. at * 21-22.
59 Id. at * 25.
60 See Gonzalez v. Diversicare Leasing Corp., No. 01-13-00108-CV,
2014 Tex. App. LEXIS 10576 (Tex. App. --- Houston [1st Dist.] Nov.
7, 2014, pet. filed) (per curiam)
61 See Gonzalez, 2014 Tex. App. LEXIS 10576 at *1-2.
62 Id. at *2.
36
NO. 01-15-00141-CV
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sued Afton Oaks alleging non-subscriber negligence but
her claims were dismissed by the trial court after she
failed to obtain an expert report within the required
one-hundred and twenty day period.63
In the context of a brief opinion, this Court relied
on the holding in Riverside General Hospital to reverse
the dismissal of Gonzalez’s claims. Finding that the
essence of her claims were indistinguishable from those
presented in Riverside General Hospital, this Court held
that liability for the placement of milk crates in a
dimly lit exit should not be construed as a health care
liability claim under the “safety” prong of the statutory
definition.64
C. The Twilley65 Decision
Bobby Twilley was employed as director of plant
operations for Good Shepherd Medical Center.66 In 2009,
Twilley was injured after he fell from a ladder attached
63 Id. at *2-3.
64 Id. at *7.
65 See Good Shepherd Medical Center-Linden, Inc. v. Twilley, 422
S.W.3d 782, 783 (Tex. App. --- Texarkana 2013, pet. denied).
66 Twilley, 422 S.W.3d at 783
37
NO. 01-15-00141-CV
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to the hospital. In 2010, Twilley sustained a second
injury after he slipped and fell on a mound of hardened
cement on the hospital’s premises.67 Twilley subsequently
filed suit against Good Shepherd Medical Center,
asserting claims of negligence, negligence per se,
premises liability and gross negligence. After the trial
court denied its motion to dismiss for failure to serve
an expert report, Good Shepherd Medical Center perfected
an interlocutory appeal to the Texarkana Court of
Appeals.
On appellate review, the Texarkana Court of Appeals
recognized that the gravamen of Twilley’s tort claims
related to alleged OSHA violations which bear no
relationship to the provision of health care services.68
In rejecting Good Shepherd Medical Center’s argument that
the state of the law prior to Ross permitted Chapter 74
to extend to claims which have no relationship at all to
health care services, which is essentially the same
67 Id.
68 Id. at 787.
38
NO. 01-15-00141-CV
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argument advanced by Sodexo at the trial court level, the
court noted:
“Good Shepherd’s interpretation of the law goes
far beyond the holding in Williams and would
render meaningless the high court’s directive
that ordinary negligence claims are
distinguished from health care liability claims
by focusing on the nature of the acts or
omissions causing the alleged injuries. Said
differently, if every safety claim against a
health care provider were considered a health
care liability claim, there would be no need to
analyze the nature of the acts or omissions which
caused the alleged injuries.”69
The court additionally recognized the need to
interpret Chapter 74’s statutory language in a reasoned
manner in order to avoid bizarre results. In particular,
the court noted that following Good Shepherd Medical
Center’s argument to its logical extreme would mean that
a car accident in a hospital parking lot would constitute
a health care liability claim and require an expert
report. The court characterized such a result as absurd
and declared that a safety claim against a health care
69 Id. at 788.
39
NO. 01-15-00141-CV
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provider must involve “a more logical, coherent nexus to
health care.”70
D. The Dewey71 Decision
Thomas Dewey was visiting his mother at Northeast
Methodist Hospital when an electronic door closed on
him.72 In determining whether or not Dewey’s claims fall
within the scope of Chapter 74, the San Antonio Court of
Appeals characterized Dewey’s tort claim as a
“straightforward” premises liability claim.73 In
applying the judicial litmus test for health care
liability claims, the court found no relationship, direct
or indirect, between the claims and health care as Dewey
was not a patient at the hospital, was not seeking any
form of health care treatment, was not an employee of the
hospital, and was not assisted in any manner by
healthcare personnel. The court characterized the nature
of the duty imposed on Northeast Methodist Hospital as
70 Id.
71 See Methodist Hospital System of San Antonio, Ltd. v. Dewey, 423
S.W.3d 516 (Tex. App. --- San Antonio 2014, pet. filed).
72 See Dewey, 423 S.W.3d at 516.
73 Id. at 519-520.
40
NO. 01-15-00141-CV
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indistinguishable from the tort duties applicable to any
business which allows visitors on its premises.74
E. The Pre-Ross Decisions Support Reversal of the
Trial Court’s Decision
Although they may be labeled as persuasive
authorities in light of the new standard which was
recently announced Ross, Riverside General Hospital,
Gonzalez, Twilley and Dewey all support reversal of the
trial court’s decision on Sodexo’s Motion to Dismiss.
Being struck by a beverage cart in a common area of the
hospital while retrieving a cup of coffee presents no
more of a connection to the provision of health care
services than falling over an extension cord, stumbling
over a set of milk crates, falling from a ladder, or
being struck by an electronic door. Furthermore, there
is no substantive difference between the “garden variety”
slip and fall claims at issue in Riverside General
Hospital and Shah’s claims. In addition, strong-arming
Shah’s claims into the reach of Chapter 74 despite the
absence of any relationship between health care and the
74 Id.
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NO. 01-15-00141-CV
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operation of a beverage cart would result in a result
which is equally as bizarre as classifying a car accident
in a hospital parking lot as a health care liability
claim.
Although Ross recently ended the confusion which had
plagued trial and intermediate courts of appeals since
the Texas West Oaks Hospital decision was rendered in
2012 and there is now a bright-line standard for drawing
the line of demarcation between health care liability
claims and ordinary tort claims, Shah’s claims clearly
fall outside of the scope of Chapter 74 regardless of
whether or not the Court looks to Ross for guidance or
the state of the law prior to Ross.
V. Requiring an Expert Report Would Engraft a
Superfluous and Pointless Requirement Onto Shah’s
Negligence Claim
This Court observed in Riverside General Hospital
that requiring an expert medical or health care report
in the context of a slip and fall case would “amount to
an exercise in futility.”75 This Court further noted that
75 See Riverside General Hospital, 2014 Tex. App. LEXIS 9681 at
*22.
42
NO. 01-15-00141-CV
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it was improbable that Williams could have successfully
located a premises liability expert who satisfied the
expert report requirements of Chapter 74.76 Even more
importantly, this Court recognized that even if such an
expert was available, a garden variety slip and fall
claim does not require expert medical or health care
testimony.77 Similar concerns were recognized by the
Texarkana Court of Appeals in Twilley78 and the San
Antonio Court of Appeals in Dewey.79 As the court
recognized in Dewey, professional medical judgment is not
needed to determine the standard of care relative to an
electric door and whether or not it was breached.80
The aforementioned concerns survive Ross and further
militate against classifying Shah’s claims as health care
liability claims. While Ross did not directly speak to
the fact that obtaining an expert report from a medical
expert would be pointless in the context of ordinary tort
76 Id. at 23.
77 Id.
78 See Twilley, 422 S.W.3d at 789.
79 See Dewey, 423 S.W.3d at 520.
80 Id.
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NO. 01-15-00141-CV
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claims, it did note that the purpose of Chapter 74’s
expert report requirement is not to provide defendant
health care providers with a procedural advantage under
the guise of regulating health care.81 Even if Shah could
successfully locate a physician or other health care
expert who had sufficient experience with the operation
of beverage carts to render an expert opinion, the
retention of such an expert would add nothing of
significance to the case as the standard of care is
readily discernable from the common law duty of
reasonable care. The court should decline to burden an
ordinary negligence claim with an unnecessary and
meaningless expert report requirement.
While requiring Shah to obtain an expert report would
provide Sodexo with an unwarranted tactical advantage,
Chapter 74 was never intended to erect procedural hurdles
for plaintiffs in non-medical cases. As an expert report
would accomplish nothing more than the creation of such
81 See Ross, 2015 Tex. LEXIS at *16-17.
44
NO. 01-15-00141-CV
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a hurdle, the Court should reverse the trial court’s
ruling on the Motion to Dismiss.
VI. In the Alternative, Sodexo Should be Equitably
Estopped From Seeking Dismissal of Shah’s Claims
In the alternative and in the unlikely event that
the Court classifies Shah’s claims as health care
liability claims such that an expert report requirement
is triggered, Sodexo should be equitably estopped from
seeking dismissal of Shah’s claims. Shah served Requests
for Disclosure on Sodexo along with his Original
Petition82 and Sodexo served responses on July 23, 2014.83
In response to Rule 194.2(c), Sodexo made the following
boilerplate allegation which omitted any reference to the
expert report requirement or any other facet of Chapter
74:
“Defendants generally deny each and every
allegation made by Plaintiff and demands strict
proof of the same. Defendants deny having
committed any wrongdoing. Defendants deny that
Plaintiff’s damages are what they claim to be.
In the alternative, Defendants assert the
affirmative defense of comparative negligence
/fault and would show that Plaintiff’s claims
are barred, in whole or in part, as a result of
82 See CR 4-11.
83 Id. at 314-321.
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NO. 01-15-00141-CV
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such comparative negligence/fault. Further, in
the alternative, Plaintiff’s alleged injuries,
if any, were exacerbated by Plaintiff’s
unreasonable failure to mitigate.” 84
Rule 194.2(c) requires a party to disclose its legal
theories and, in general, the factual bases of its claims
or defenses.85 While the responding party is not required
to marshal all evidence that may be offered at trial, the
rule is intended at a minimum to require disclosure of a
party’s “basic assertions.”86
A party who fails to “make, amend or supplement” a
discovery response may not introduce evidence of the
information which was not disclosed unless the court
finds: (1) there was good cause for the failure to timely
disclose; or (2) the failure to timely disclose will not
unfairly prejudice the other party.87
Sodexo’s “basic assertions” at the time it responded
to Shah’s Requests for Disclosure should have included
84 See CR 316.
85 See Tex. R. Civ. P. 194.2(c).
86 See Tex. R. Civ. P. 192.2(c), CMT. 2; Holland v. Friedman &
Feiger, No. 05-12-01714-CV, 2014 Tex. App. LEXIS 12892 *17-18 (Tex.
App. --- Dallas 2014, no pet. h.).
87 See Tex. R. Civ. P. 193.6(a); Williams v. County of Dallas, 194
S.W.3d 29, 32 (Tex. App. --- Dallas 2006, no pet.).
46
NO. 01-15-00141-CV
___________________________
the fact that Sodexo considered Shah’s claims to fall
within the purview of Chapter 74 and that Sodexo might
seek dismissal of Shah’s claims in the future if an expert
report was not furnished within the applicable one-
hundred and twenty day period. However, Sodexo failed
to make any such disclosure and instead made a strategic
decision to announce its intention to seek dismissal on
the basis of the expert report requirement after the one-
hundred and twenty day deadline had already expired.
Sodexo’s failure to make a proper disclosure was
exacerbated by the fact that it did not serve any
supplemental disclosure responses at any point while the
case was active at the trial court level. Sodexo’s
failure to honor its disclosure requirement was
compounded by the fact that good cause was lacking and
Shah was the victim of unfair surprise and prejudice as
Shah surely would have attempted to obtain a compliant
expert report if Sodexo’s intentions had been disclosed
during the one-hundred and twenty day period.
47
NO. 01-15-00141-CV
___________________________
It would stand the discovery rules on their head and
defeat open disclosure to contend that Shah was entitled
under Rule 194.2(c) to the fact that Sodexo might raise
the affirmative defenses of comparative fault and failure
to mitigate damages but was not similarly entitled to
know that Sodexo might seek a complete dismissal of his
claims based upon Chapter 74’s expert report requirement.
A party should not be allowed to selectively pick and
choose which “basic assertions” it wants to disclose and
which defenses it strategically wants to conceal. To
hold otherwise would return the Texas courts to the days
of trial by ambush which the discovery rules were
expressly designed to prevent.
While Rule 193.6(a) is designed to punish a party
who makes an incomplete disclosure by limiting the
evidence that party is allowed to present at trial,
invoking the doctrine of equitable estoppel to prevent
Sodexo from seeking dismissal of Shah’s claims serves the
same purpose and is an analogous remedy for Sodexo’s
incomplete disclosure. Allowing Sodexo to strategically
48
NO. 01-15-00141-CV
___________________________
wait for one-hundred and twenty days to disclose that it
considered Shah’s claims to be health care liability
claims would render Rule 194.2(c) meaningless and would
be akin to permitting trial by ambush. Furthermore,
Chapter 74 would be converted from a legitimate statute
governing health care liability into a trap door that a
defendant could pop open at a strategic time in order to
catch an unsuspecting plaintiff who had no knowledge that
an expert report was even required. The doctrine of
equitable estoppel exists to prevent such miscarriages
of justice and the Court should invoke the doctrine in
order to reverse the dismissal of Shah’s claims by the
trial court.
49
NO. 01-15-00141-CV
___________________________
PRAYER
WHERFORE, PREMISES CONSIDERED, Appellant Madhusudan
Shah respectfully requests that the court reverse the
Court’s ruling dismissing his claims, and remand for
further proceedings in the trial court.
50
NO. 01-15-00141-CV
___________________________
CERTIFICATE OF SERVICE
As required by Rules 6.3and 9.5(b) – (e) of the Texas
Rules of Appellate Procedure, I certify that I have
served this document on all other parties – which are
listed below – by the manner of service indicated below:
Via Electronic Filing,
Facsimile: (713)629-5027
& Certified Mail - RRR
Mr. Nelson D. Skyler
Mr. Tarush R. Anand
Mr. Neal A. Hoffman
Brown Sims
1177 West Loop South, 10th Floor
Houston, Texas 77027
Counsel for Appellee Sodexo Services of Texas
Limited Partnership
Via Electronic Filing Only
Mr. Arshad A. Ramji
Ramji & Associates, P.C.
2920 Virginia Street
Houston, Texas 77098
Co-Counsel for Appellant Madhusudan Shah
/s/ Kenneth R. Baird, Esq.
Kenneth R. Baird
Date: June 28, 2015
51
NO. 01-15-00141-CV
___________________________
CERTIFICATE OF COMPLIANCE
I, Kenneth R. Baird, lead counsel for Appellant, hereby
certify that the total word count for Appellant’s brief
is 8,311 words which is less than the maximum of 15,000
words allowed under Rule 9.4(i)(2)(B) of the Texas Rules
of Appellate Procedure. I relied upon Microsoft Word in
order to determine the page count.
/s/ Kenneth R. Baird, Esq.__
Kenneth R. Baird
Date: June 28, 2015
52
NO. 01-15-00141-CV
_______________________________________________________
IN THE COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT
OF TEXAS AT HOUSTON
_______________________________________
MADHUSUDAN SHAH
APPELLANT
v.
SODEXO SERVICES OF TEXAS LIMITED PARTNERSHIP
APPELLEE
On appeal from the 55th Judicial District Court
Harris County, Texas
Trial Court Cause No. 2014-20678
_______________________________________
APPENDIX TO THE FIRST AMENDED BRIEF OF APPELLANT
MADHUSUDAN SHAH
_______________________________________
ORAL ARGUMENT REQUESTED
Kenneth R. Baird
Lead Counsel for Appellant
Texas Bar No. 24036172
The Baird Law Firm
2323 South Voss Road, Suite 325
(713)783-1113
(281)677-4227 (facsimile)
bairdlawfirm@hotmail.com
Attorney for Madhusudan Shah
53
NO. 01-15-00141-CV
___________________________
CERTIFICATE OF SERVICE
As required by Rules 6.3and 9.5(b) – (e) of the Texas
Rules of Appellate Procedure, I certify that I have
served this document, the Appendix to the First Amended
Brief of Madhusudan Shah, on all other parties – which
are listed below – by the manner of service indicated
below:
Via Electronic Filing,
Facsimile: (713)629-5027
& Certified Mail - RRR
Mr. Nelson D. Skyler
Mr. Tarush R. Anand
Mr. Neal A. Hoffman
Brown Sims
1177 West Loop South, 10th Floor
Houston, Texas 77027
Counsel for Appellee Sodexo Services of Texas
Limited Partnership
Via Electronic Filing Only
Mr. Arshad A. Ramji
Ramji & Associates, P.C.
2920 Virginia Street
Houston, Texas 77098
Co-Counsel for Appellant Madhusudan Shah
/s/ Kenneth R. Baird, Esq.
Kenneth R. Baird
Date: June 28, 2015
54
NO. 01-15-00141-CV
___________________________
APPENDIX
LIST OF DOCUMENTS
1. Order of the 55th Judicial District Court of
Harris County .................................Tab A
2. Joint Stipulation as to Appealable Order.......Tab B
3. Order Granting Joint Motion for Extension of
Time to File Briefs and motion to Allow
Appellant to File an Amended Brief ............Tab C
4. Ross v. St. Luke’s Episcopal Hospital, No.
13-0439, 2015 Tex. LEXIS 361 (Tex.
5/1/15) (publication status pending)...........Tab D
5. Tex. Civ. Prac. & Rem. Code § 74.001...........Tab E
55
Tab A
121191201.4 6:62:09 PM
Chris Daniel• District Clerk.
HarrtsCounty
Envelo~ No: 3666761
By: PATTON, JONATHAN R
MADHUSUDAN SHAH;,
: CauseNo.:Ol~06;.HE DISTRICT COURT OF ~
Plai~tiff, : l!IJO
§
v. §
§
. SODEXO, INC.; :SODBXO § HARRIS COUNTY,_~ TEXAS
MANAGEMENT, INC.; :SOPEXO § ~C@
oqv
OPERATIONS. LLC; iSODEXO §
SERVICES OF TEXAS !LIMITED §
PARTNERSHIP; &. SODEXO LAUNDRY §
SERVICES, 'lNC. ' §
§
~
0~
Defon4ants. § ~~ICIAL DISTRICT
ORDER o~
@
Pending before the Court is Defendanfs M~~ to Dismiss for Failure to Provide
' @'@ 0
a Timely and. Complete Chapt1r 74 Expert~rt. H;aving considered the issues, the
Court hereby GRAm'S the Moti~n. ~fj
It is ORDERED that thelCou;;jl_~eby GRANTS Defendant's Motion to Dismiss.
assert~~~ein
. . N't.award~·it&
_, ~mmte
All of Plaintiffs
Defendant
cJ.aims
,~:- . .
are hereby DISMISSED with prejudice and
attorneyS' fees and costs.wfttA ~
A~J J.'
~•
iT"'' l ·.
p©2~ '
SIGNED ont~'¥~ da.' of ~01<> •
0~/ ;
y ~1/
•
~ ;
~Q5
~) Th le Jeff Shadwick
'ct CoUrt. Harris County
Tab B
ACCEPTED
01 -15-00141 -CV
FIRST COURT OF APPEAL~
HOUSTON , TEXAS
3/19/2015 11:17:50 AM
CHRISTOPHER PRINI
CLERK
NO. 01-15-00141-CV
IN TilE COURT OF APPEAlS .
FOR Tint FIRST JUDICIAL DISTRICf
OF TEXAS AT HOUSTON
MADHUSUDAN SHAH, APPElLANT
v.
SODEXO SERVICES OF TEXAS UMITED PARTNERSHIP
On appeal from the 55th Judicial District Court
Harris County, Texas
Trial Court Cause No. 2014-20678
JOINT STIPULATION AS TO APPEAlABLE ORDER
COUNSEL FOR APPEI..LANT:
.Kenneth R. Baird
The Baird Law Firm
2323 South Voss Road, Suite 325
Phone: (713) 783-1113
Facsimile: (281) 677-4227
bairdlawflim@hotmail.com
COUNSEL FoR APPELLEE:
Nelson D. Skyler
Neal A. HQffman
· BroWil Sims.
1177 West Loop South, lOth Floor
Houston, Texas 77027
Phone: (713) 629-1580
Facsimile: (713) 629-5027
nskyler@brownsims.com
nhoffinart@brownsims.com
1
JOINT S11PULATION AS TO APPEALABLE ORDER
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
NO'\Y COMES7 Madhusudan Shah, Appellant in the above-styled and numbered cause
(hereinafter. "Appellant"), and Sodexo Services of Texas Limited Partnership, Appellee in the
above-styled and numbered cause (hereinafter "Appellee"), appearing jointly by and through their
respective coull$els of record, and fde their Joint Stip~lation as to Appealable Order. In support
thereof, Appellant and Appellee advise the Honorable Court of Appeals that they have reached the
following stipulation:
Appellant and Appellee hereby stipUlate that the Order on Defendant's. Motion to Dismiss
for Failure to Provide. a Timely and Complete Chapter 74 Expert Report, 1 whiCh ~as signed by
the Honorable Jeff Shadwick of the 55!11 Judicial District Court ofHarris County, Texas. on Janu(lry
16, 2015, constitutes a final, appealable order despite the fact that that it left unresolved Appellee's
claim for attorney's fees and costs. Since Appellee later waived its claim for attorney's fees and
. . '
costs under Chapter 74 .of the Texas Civil Practice & Remedies Code and both Appellant and
Appellee desire to proceed with the appeal on its current schedule so .that the substan~ve legal
is&ues in dispute can be resolved by the Honorable Court of Appeals, the Parties res~otfully pray
that the Hono~le Court of Appeals accept their stipulation and treat the Order on Defendant's
Motion to Dismiss for Failure to Provide a Timely and Complete Chapter 74 Expert Report as a
final, appealable order for all purposes.
A copy of the referenced ,otder is attache!l hereto and incorporated herein for all purposes as E~bit A.
1
2
Respectfully Submitted,.
THE BAIRD LAW FIRM
Is/ Kenneth R. Baird. Esq.
Kenneth R. ·Baird
Texas Bar No. 24036172
2323 South Voss Road, Suite 325
Houston, Texas 77057
Phone: (713) 783-1113
Facsimile: (281) 677-4227
bairdlawfirm@hotmail.G<>m
LEAD COUNSEL FOR APPELLANT
MADHUSUDAN SHAH
---AND---
BROwN~IMS
Is/ Neal A. Hoffman
Nelson D.·Skyler
Texas Bar No. 00784982
Neal A. Hoffman
Texa:s Bar No. 24069936
1177 West Loop South, 101h Floor
Houston, Texas 77027
Phone: (713) 629-1580
Facsimlle: (713) 629-5027
niDler@brownsims.com
nhoffman@brownsims.com .
COUNSEL FOR APPELLEESODEXO
SERVICES OF TEXAS LIMITED
PARTNERSHIP
3
CERTIFICATE OF CONfERENCE
As required by Rule 10.1(a)(5) of the Texa$ Rules of Appellate Procedure, I certify that I
have,conferred With all other parties - who are li,sted below - about the merits of this stipulation
with the followfug results:
Neal A. Hoffman, counsel for Appellee Sodexo Services of Texas limited Partnership, has
joined in ,the relief sought as indicated in the signature, block. As a result, the term "Joint" has
been included in the style of this document. ,
Is/ Kenneth R. Baird. Esg.
Kenneth R. Baird
Date: March 19, 2015
CERTIFICATE 9F SERVICE
As required by Rules 6.3and 9.5(b)- (e) of the Texas Rules of Appellate Procedure, I
certify that' I have served this document on aU other parties - which are listed below - by the
manner .of service indicated below:,
Viq Ele£brqnic Filing & FtiCsimile: (713)62,9 -5027
Mr. Nelson D. Skyler ,
Mr. Neal A Hoffman ,
Brown Sitns
1177 West Loop South, 101b Floor
Houston, Texa8 77027
Counsel for Appellee Sodexo Services of Texas
Limited Partnership
Viq Electmnk Filin& Only
Mi. Arshad A Ramji ,
Ramji & Associates, P.C.
2920 Virginia Street
Houston, Te~as 77098
Co-Counsel J'or Appellant M;idbusudan Shah
Is/ Kenneth R. Baird. Esg.
Kenneth R. Baird
Date: March 19, 2015
4
MADHUSODAN SHAH,
v.
;
SODEXO, INC.·; SODEXO
MANAGEMeNT. INC.; ;soo:axo
OPERATIONS I,LC· SOPEXO
'SERVICES OF 'tEXAs .LIMITED.
PAa'tN'ED$P.; & SODEXo LAUNPlt:Y
SERVICES, 'lNC. :
DISTRICT'
Tab C
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Madhusudan Shah v. Sodexo Services of Texas Limited Partnership
Appellate case number: 01-15-00141-CV
Trial court case number: 2014-20678
Trial court: 55th District Court of Harris County
The parties have filed a "Joint Motion for Extension of Time to File Briefs and Motion to
Allow Appellant to File an Amended Brief." The motion is granted. Appellant' s amended brief
is ordered to be filed no later than 30 days from the date of this order. Appellee' s amended brief,
if any, is ordered to be filed within 30 days of the tiling of appellant's amended brief.
It is so ORDERED.
Judge's signature: /s/ Michael Massengale
X Acting individually 0 Acting for the Court
Date: May 29. 2015
FJLE COPY
Sm: RRv RAnACK CURJSTOPHER A. PRIN~:
CHIEF JUSTICE CLERK OF THE COURT
TERRY JENNINGS JANET WILLIAMS
EVEL Y.N KEYES CHIEF ST AFF ATTORNEY
LAURA CARTER HIGLEY
JANE BLAND
MICHAEL MASSENGALE
Court of Appeals PHONE:
FAX:
713-Z74-2700
713-755-8131
HARVEY BROWN
REBECA Huoou:
First District of Texas www.txcourts.gov/l.stcoa.aspx
Russ~: u. LLOYD 301 Fannin Street
J USTICES
Houston, Texas 77002-2066
Friday, May 29,2015
Arshad Ramj i Neal Hoffman
Ramji & Associates Brown Sims, P.C .
2920 Virginia St 1177 West Loop South, 1Oth Fl
Houston, TX 77098-1201 Houston, TX 77027
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Kenneth Richard Baird Nelson Dean Skyler
The Baird Law Firm Brown Sims P C
2323 South Voss Road, Suite 325 1177 West Loop South 1Oth Fl
Houston, TX 77057 Houston, TX 77027-9007
* DELIVERED VIA E-MAIL * *DELIVERED VIA E-MAIL*
RE: Court of Appeals Number: 01-15-00141-CV Trial Court Case Number: 2014-20678
Style: Madhusudan Shah
v.
Sodexo, Inc.; Sodexa Management Inc., Sodexo Operations, LLC; Sodexo Services of Texas
Limited Partnership; & Sodexo Laundry Services, Inc.
On this date, an order was issued in the above-referenced cause. You may obtain a copy of the Court's
order at http://www.search.tx.courts.gov/CaseSearch.aspx?coa=coaOl&s=c. If you have been required to provide
a valid e-mail address to the Court and accept electronic service as outlined in Rule 9.l(a) and 9.4(g), a copy of
this Notice of Distribution will be sent to you electronically via email.
For more information about a particular case, please visit the Court's website at
http://www.txcourts.gov/ lstCOA.
Sincerely,
/1/ . . '-' r
L,,~.-~.}1~~
Christopher A. Prine, Clerk of the Court
Tab D
Page 1
LEZLEA ROSS, PETITIONER, v. ST. LUKE'S EPISCOPAL HOSPITAL,
RESPONDENT
NO. 13-0439
SUPREME COURT OF TEXAS
2015 Tex. LEXIS 361; 58 Tex. Sup. J. 766; 58 Tex. Sup. J. 802
November 5, 2014, Argued
May 1, 2015, Opinion Delivered
NOTICE: the Court. JUSTICE LEHRMANN filed a concurring
opinion, in which JUSTICE DEVINE joined. JUSTICE
PUBLICATION STATUS PENDING. CONSULT BROWN did not participate in the decision.
STATE RULES REGARDING PRECEDENTIAL
VALUE. OPINION BY: Phil Johnson
PRIOR HISTORY: [*1] ON PETITION FOR OPINION
REVIEW FROM THE COURT OF APPEALS FOR
THE FOURTEENTH DISTRICT OF TEXAS. In this case a visitor to St. Luke's Episcopal Hospital
Ross v. St. Luke's Episcopal Hosp., 2013 Tex. App. LEXIS sued the hospital on a premises liability theory after she
2796 (Tex. App. Houston 14thDist., Mar. 19, 2013) slipped and fell near the lobby exit doors . The issue is
whether her suit is a health care liability claim under the
Texas Medical Liability Act. See TEX. [*2] CIV. PRAC.
COUNSEL: For The Texas Trial Lawyers Association & REM . CODE ch. 74. The trial court and court of appeals
(TTLA), Amicus Curiae: Michael G. Guajardo, Guajardo concluded that it is. We hold that it is not, because the
& Marks, LLP, Dallas TX; Peter M. Kelly, Kelly, record does not demonstrate a relationship between the
Durham & Pittard, L.L.P., Houston TX. safety standards she alleged the hospital
breached--standards for maintaining the floor inside the
For Ross, Lezlea, Petitioner: Harold Kenneth 'Ken' lobby exit doors--and the provision of health care, other
Tummel, Tummel & Casso, Edinburg TX; Sean Michael than the location of the occurrence and the hospital's
Reagan, Leyh Payne & Mallia PLLC, Houston TX. status as a health care provider.
For St. Luke's Episcopal Hospital, Respondent: Charles We reverse and remand to the trial court for further
Creighton Carr II, Manning, Gosda & Arredondo, L.L.P., proceedings.
Houston TX; Elizabeth Dale Burrus, Kroger I Burrus,
Houston TX; Gregory Alan Schlak, Manning, Gosda & I. Background
Arredondo, L.L.P. , Houston TX; Lauren Nelson, Kroger!
Burrus, Houston TX; Marsha A. Bradley, Kroger I Lezlea Ross accompanied a friend who was visiting
Burrus, Houston TX. a patient in St. Luke's Episcopal Hospital. Ross was
leaving the hospital through the lobby when, as she
JUDGES: JUSTICE JOHNSON delivered the opinion of approached the exit doors, she slipped and fell in an area
Page 2
2015 Tex. LEXIS 361, *2; 58 Tex. Sup. J. 766;
58 Tex. Sup. J. 802
where the floor was being cleaned and buffed. She sued provisions, but in any event Ross's claims are related to
St. Luke's and Aramark Management Services, a accepted standards of patient safety because she fell
company that contracted with the hospital to perform inside the hospital.
maintenance services, on a premises liability theory.
Aramark is not a party to this appeal. We first address our jurisdiction. See Rusk State
Hasp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (noting
After Ross filed suit we decided Texas West Oaks that if a court does not have jurisdiction, its opinion
Hospital, L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012). addressing any issues other than its jurisdiction is
There we held, in part, that when a safety standards-based advisory).
claim is made against a health care provider, the Texas
Medical Liability Act (TMLA), TEX. CIV. PRAC. & REM. II. Jurisdiction
CODE ch. 74, does not require the safety [*3] standards
Texas Civil Practice and Remedies Code §
to be directly related to the provision of health care in
51.014(a)(JO) permits an appeal from an interlocutory
order for the claim to be a health care liability claim
order granting relief sought by a motion to dismiss an
(HCLC). Williams, 371 S.W.3d at 186. Relying on
HCLC for failure to file an expert report. Generally, the
Williams, the hospital asserted that Ross's claim was an
court of appeals' judgment is final on interlocutory
HCLC and moved for dismissal of her suit because she
appeals. See TEX. Gov'r CODE§ 22.225(b)(3). However,
failed to serve an expert report. See TEX. C!v. PRA C. &
we have jurisdiction if the justices of the court of appeals
REM. CODE§ 74.351(a), (b) (requiring dismissal of an
disagree on a question of law material to the decision, or
HCLC if a claimant fails to timely serve an expert
if a court of appeals holds differently from a prior [*5]
report) ; Williams, 371 S.W.3d at 186.
decision of another court of appeals or this Court. !d. §
The trial court granted the motion to dismiss. The 22.225(c).
court of appeals affirmed. Ross v. St. Luke's Episcopal
Ross asserts that this Court has jurisdiction because
Hasp., S. W.3d , 2013 Tex. App. LEXIS 2796 (Tex.
the court of appeals' opinion in this case conflicts with
App.--Houston [14th Dist.] 2013). The appeals court
Good Shepherd Medical Center-Linden, Inc. v. Twilley,
concluded that under Williams it is not necessary for any
422 S.W.3d 782 (Tex. App.--Texarkana 2013, pet.
connection to exist between health care and the safety
denied) . In that case, Bobby Twilley, the director of plant
standard on which a claim is based in order for the claim
operations for a medical center, asserted premises
to come within the TMLA. !d. at , 2013 Tex. App.
liability claims against his employer after he fell from a
LEXIS 2796.
ladder and also tripped over a mound of hardened
Ross asserts that the lower courts erred because cement. Jd. at 783. The medical center moved for
claims based on departures from "accepted standards of dismissal under the TMLA because Twilley failed to file
safety" do not come within the provisions of the TMLA an expert report. !d. at 783-84. The trial court denied the
unless there is at least some connection between the motion and the medical center appealed, arguing that
standards underlying the allegedly negligent actions and even though Twilley's claims were unrelated to the
the provision of health care, even if they are not directly provision of health care, under Williams they still fell
related. She then argues that her claims are not HCLCs within the ambit of the TMLA. The court of appeals
because the hospital's alleged negligence is completely interpreted Williams as holding that a safety
unrelated to the provision of health care. standards-based claim need not be directly related to the
provision of health care to be an HCLC. !d. at 789. The
The hospital [*4] responds with three arguments. It court stated, however, that it did not understand Williams
first urges that we lack jurisdiction. See TEX. Gov'r CODE to hold that a safety standards claim falls under the
§ 22.001(a)(2), (3), (6) . It next asserts that even if we TMLA when the claim is completely untethered from
have jurisdiction, Ross waived the issue of whether her health care. !d. The appeals court concluded that at least
claim is an HCLC because she failed to properly brief an indirect relationship between the claim and health care
and urge it in the court of appeals. Third, the hospital is required and, because Twilley's [*6] claims did not
addresses the merits by asserting that the court of appeals have such a relationship, an expert report was not
correctly held that a safety standards-based claim need required. !d. at 785.
not be related to health care to fall within the TMLA's
Page 3
2015 Tex. LEXIS 361, *6; 58 Tex. Sup. J. 766;
58 Tex. Sup. J. 802
In this case the court of appeals held that under effect the purpose of a rule" (quoting Verburgt v. Dorner,
Williams "a connection between the act or omission and 959 S.W2d 615, 616-17 (Tex. 1997))) . We agree with the
health care is unnecessary for purposes of determining court of appeals that Ross did not waive the issue.
whether Ross brings an HCLC." Ross, S. W3d at
2013 Tex. App. LEXIS 2796. The hospital asserts that the IV. Health Care Liability Claims
decision of the court of appeals and Twilley do not
The merits of the appeal require us to review the
conflict. But, for purposes of our jurisdiction, one court
lower courts' construction of the TMLA. Under such
holds differently from another when there is
circumstances our review is de novo, Williams, 371
inconsistency in their decisions that should be clarified to
S. W 3d at 177, and our goal [*8] is to give effect to
remove unnecessary uncertainty in the law. TEX. Go v'r
legislative intent. Certified EMS, Inc. v. Potts, 392
CODE § 22.00J(e) . As other courts of appeals have noted,
S. W3d 625, 631 (Tex. 2013). In determining that intent
Ross and Twilley are inconsistent in their interpretations
we look first and foremost to the language of the statute.
of Williams and the TMLA, leaving uncertainty in the
City of Rockwall v. Hughes, 246 S. W3d 621 , 625 (Tex.
law regarding whether a safety standards-based claim
2008) . We construe a statute's words according to their
must be related to health care. See, e. g. , Weatherford Tex.
plain and common meaning unless they are statutorily
Hosp. Co. v. Smart, 423 S. W3d 462, 467-68 (Tex.
defined otherwise, a different meaning is apparent from
App.--Fort Worth 2014, pet. filed) ; DHS Mgmt. Servs.,
the context, or unless such a construction leads to absurd
Inc. v. Castro, 435 S. W3d 919, 922 & n.3 (Tex.
or nonsensical results. See Tex. Lottery Comm'n v. First
App.--Dallas 2014, no pet.). That being so, we have
State Bank of DeQueen, 325 S. W3d 628, 635 (Tex.
jurisdiction and move to the hospital's waiver claim.
2010) . Determining legislative intent requires that we
III. Waiver consider the statute as a whole, reading all its language in
context, and not reading individual provtswns in
The hospital argues that Ross waived any challenge isolation. See Union Carbide Corp. v. Synatzske, 438
to her claim being classified as an HCLC by failing to S.W3d 39,51 (Tex. 2014) .
argue the point or cite relevant authority in the court of
appeals. We disagree. The TMLA defines a health care liability claim as:
A brief in the court of appeals "must contain a clear a cause of action against a health care
and concise argument for the contentions made, [*7] provider or physician for treatment, lack
with appropriate citations to authorities and to the of treatment, or other claimed departure
record." TEX. R. APP. P. 38. l(i) . Failure to provide from accepted standards of medical care,
citations or argument and analysis as to an appellate issue or health care, or safety or professional or
may waive it. See ERI Consulting Eng'rs, Inc. v. Swinnea, administrative services directly related to
31 8 S.W3d867, 880(Tex. 2010). health care, which proximately results in
injury to or death of a claimant, whether
In her court of appeals brief, Ross discussed the the claimant's claim or cause of action
purpose of the TMLA and asserted that classifying her sounds in tort or contract.
claim as an HCLC would conflict with the Government
Code. See TEX. Gov'r CODE§ 311.021 (3) (providing that TEX. Clv. PRA C. & REM. CODE § 74.00l(a)(l3) . This
when a statute is enacted, there is a presumption that "a Court construed "safety" under the prior statute according
just and reasonable result is intended"). The court of to its common meaning as "the condition of being
appeals implicitly determined that Ross's citations and 'untouched by danger; not exposed to danger; secure [*9]
argument were enough to avoid waiver because it from danger, harm or loss.'" Diversicare Gen. Partner,
addressed the issue. See Republic Underwriters Ins. Co. Inc. v. Rubio, 185 S. W3d 842, 855 (Tex. 2005) (quoting
v. Mex-Tex, Inc., 150 S.W3d 423, 427 (Tex. 2004) BLACK'S LAW DICTIONARY 1336 (6th ed. 1990)). We
(concluding that an argument in the court of appeals was also recognized that the Legislature's inclusion of the
not waived and noting that "we have instructed the courts word "safety" in the statute expanded the statute's scope
of appeals to construe the Rules of Appellate Procedure beyond what it would be if the statute only included the
reasonably, yet liberally, so that the right to appeal is not terms medical care and health care. !d. The Court
lost by imposing requirements not absolutely necessary to
wet bathroom floor) . But given that the claims were the statutory definition of "health care" is broad ("any act
based on injuries to patients and were directly related to or treatment performed or furnished, or that should have
the provision of health care, we did not address the issue been performed or furnished, by any health care provider
of whether safety standard-based claims must be directly for, to, or on behalf of a patient during the patient's
related to health care in order for them to he HC:T .C:s. medical care. treatment. or confinement" TF.X. Crv. PRA C.
Page 5
2015 Tex. LEXIS 361, * 12; 58 Tex. Sup. J. 766;
58 Tex. Sup. J. 802
accepted standards of medical care, health care, or safety As to its second contention, Ross alleged that the
or professional or administrative services directly related hospital failed to exercise reasonable care in making the
to health care, the claims [*13] were HCLCs regardless floor safe. The standards Ross says the hospital breached
of whether the plaintiff alleged the defendants were liable regarding maintenance of its floor may be the same as the
for breach of the standards. See Loaisiga, 379 S. W.3d at hospital's standards for maintaining a safe environment in
255. But that being so, we further explained: patient care areas--but those may [* 15] also be the same
standards many businesses generally have for
we fail to see how the Legislature could maintaining their floors. And the hospital does not claim,
have intended the requirement of an expert nor does the record show, that the area where Ross fell
report to apply under circumstances where was a patient care area or an area where patients possibly
the conduct of which a plaintiff complains would be in the course of the hospital's providing health
is wholly and conclusively inconsistent care services to them. Nor does the hospital reference
with, and thus separable from, the support in the record for the position that the area had to
rendition of "medical care, or health care, meet particular cleanliness or maintenance standards
or safety or professional or administrative related to the provision of health care or patient safety.
services directly related to health care" See Ollie, 342 S.W.3d at 527 ("[S]ervices a hospital
even though the conduct occurred in a provides its patients necessarily include those services
health care context. See TEX. Clv. PRAC. & required to meet patients' fundamental needs such as
REM. CODE § 74.001(a)(13); see also TEX. cleanliness . .. and safety."). Which leads to the question
Gov'r CODE § 311.021 ("In enacting a of whether Ross's claims are nevertheless HCLCs, as the
statute, it is presumed that . . . a just and hospital would have us hold.
reasonable result is intended .. .. ").
The TMLA does not specifically state that a safety
1d. at 257. Our reasoning led to the conclusion that a standards-based claim falls within its provisions only if
patient's claim against a medical provider for assault the claim has some relationship to the provision of health
during a medical examination is not an HCLC if the only care other than the location of the occurrence, the status
possible relationship between the alleged improper of the defendant, or both. But the Legislature must have
conduct and the rendition of medical services or health intended such a relationship to be necessary, given the
care was the setting in which the conduct took place. !d. legislative intent explicitly set out in the TMLA and the
context [*16] in which "safety" is used in the statute. We
In this case, the hospital advances two positions in said as much in Loaisiga. 379 S.W.3d at 257. Even
support of the lower courts' rulings and its assertion that though the statute's phrase "directly related to health
Ross's claim is [*14] an HCLC. First, it addresses slip care" does not modify its reference to safety standards,
and fall claims generally, and says that any slip and fall that reference occurs within a specific context, which
event within a hospital is directly related to health care defines an HCLC to be "a cause of action against a health
because it necessarily is related to the safety of patients. care provider or physician for [a] treatment, [b] lack of
Second, it focuses on Ross's claim specifically and argues treatment, [c] or other claimed departure from accepted
that her claim is related to health care because she alleges standards of medical care, or health care, or safety." TEX.
the hospital breached standards applicable to maintaining CIV. PRA C. & REM. CODE§ 74.001(a)(13). Where the
a safe environment for patients. We disagree with both more specific items, [a] and [b], are followed by a
positions. catchall "other," [c] , the doctrine of ejusdem generis
teaches that the latter must be limited to things like the
As to the hospital's first contention, even though the former. I And here, the catchall "other" itself refers to
claims in Loaisiga were by a patient and the nature of the standards of "medical care" or "health care" or "safety."
claims differ from Ross's safety standards-based claim, Considering the purpose of the statute, the context of the
the principle we explicated there applies here. A safety language at issue, and the rule of ejusdem generis, we
standards-based claim does not come within the TMLA's conclude that the safety standards referred to in the
provisions just because the underlying occurrence took definition are those that have a substantive relationship
place in a health care facility, the claim is against a health with the providing of medical or health care. And if it
care provider, or both. See Loaisiga, 379 S.W.3d at 257. were not so, the broad meaning of "safety" would afford
Page 7
2015 Tex. LEXIS 361, *20; 58 Tex. Sup. J. 766;
58 Tex. Sup. J. 802
the floor near the exit doors was for the purpose of Court held that a plaintiffs claim against [*22] a
protecting patients. Nor does the record reflect that the physician or health care provider may constitute a health
area where Ross fell was one where patients might be care liability claim subject to the Texas Medical Liability
during their treatment so that the hospital's obligation to Act even where no patient--physician or
protect patients was implicated by the condition of the patient--health-care-provider relationship exists between
floor at that location. Ross was not seeking or receiving the parties. 371 S.W.3d 171, 177-78 (Tex. 2012) . In my
health care, nor was she a health care provider or dissent in that case, I disagreed with the Court's holding
assisting in providing health care at the time she fell. "that the mere peripheral involvement of a patient
There is no evidence the negligence alleged by Ross was transforms an ordinary negligence claim into a health
based on safety standards arising from professional duties care claim." !d. at 194-95 (Lehrmann, J., dissenting). I
owed by the hospital as a health care provider. There is lamented what I viewed as the Court's departure from the
also no evidence that the equipment or materials used to importance we had previously placed on the relationship
clean and buff the floor were particularly suited to between health care providers and their patients in
providing for the safety of patients, nor does the record concluding that a patient's claims were covered by the
demonstrate that the cleaning and buffing of the floor Act. !d. at 196-97 (citing Diversicare Gen. Partner, Inc.
near [*21] the exit doors was to comply with a v. Rubio, 185 S.W.3d 842 (Tex. 2005)) . The consequences
safety-related requirement set for health care providers by of that departure are evident in cases like this, in which
a governmental or accrediting authority. defendants who happen to be health care providers seek
the protections of the Medical Liability Act with respect
V. Conclusion to claims that have nothing to do with medical liability.
Under this record Ross's claim is based on safety The Court holds, and I agree, that a cause of action
standards that have no substantive relationship to the against a health care provider for a departure from safety
hospital's providing of health care, so it is not an HCLC. standards is a health care liability claim only if it has a
Because her claim is not an HCLC, she was not required "substantive relationship" with the provision of medical
to serve an expert report to avoid dismissal of her suit. or health care.2 S.W.3d at . I write separately to
We reverse the judgment of the court of appeals and emphasize [*23] the significance of the third and fifth
remand the case to the trial court for further proceedings. factors, which consider whether the claimant was in the
process of seeking or receiving health care at the time of
Phil Johnson Justice
the injury and whether the alleged negligence was based
OPINION DELIVERED: May l, 2015 on safety standards arising from professional duties owed
by the health care provider.
CONCUR BY: Debra H. Lehrmann
2 "Substantive" is defined as "considerable in
amount or numbers: substantial." WEBSTER'S
CONCUR
THIRD NEW lNT'L DICTIONARY 2280 (2002).
JUSTICE LEHRMANN, joined by JUSTICE
As we recognized in Diversicare, the duty of care
DEVINE, concurring.
that health care providers owe to their patients is
I join the Court's opinion and agree that the claims fundamentally different from the duty of care owed to,
asserted in this case have no connection to the provision say, employees or visitors. !85 S.W.3d at 850-51 ("The
of health care. I write separately, however, to emphasize obligation of a health care facility to its patients is not the
my concern that a statute intended to address the same as the general duty a premises owner owes to
insurance crisis stemming from the volume of frivolous invitees."). To that end, when we held in Diversicare that
medical-malpractice lawsuits has become a nebulous a nursing home resident's claim that she was sexually
barrier to what were once ordinary negligence suits assaulted by another resident was a health care liability
brought by plaintiffs alleging no breach of any claim, we rejected the argument that the claim should be
professional duty of care. treated the same as that of a visitor who had been
assaulted at the facility precisely because of the distinct
In Texas West Oaks Hospital, LP v. Williams, the nature of those duties. !d. We also distinguished the
Page 8
2015 Tex. LEXIS 361, *23; 58 Tex. Sup. J. 766;
58 Tex. Sup. J. 802
circumstances at issue in that case from hypothetical In my view, focusing a safety-standards claim on the
claims involving an "unlocked [*24] window that gave duty health care providers owe to their patients ensures
an intruder access to the facility" and a "rickety staircase that Diversicare's hypothetical visitor-assault and
that gave way," which we implied would not constitute rickety-staircase claims do not fall under the Medical
health care liability claims. 1d. at 854. These statements Liability Act's umbrella. It also ensures that a covered
are consistent with our recognition that health care cause of action will "implicate[] the provision of medical
liability claims involve a "specialized standard of care" or health care" in accordance with the Court's holding in
that is established by expert testimony. Garland Cmty. this case. S.W.3d at . With these considerations in
Hosp. v. Rose, 156 S.W.3d 541, 546 (Tex. 2004); see also mind, I respectfully join the Court's opinion and
Jackson v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2007) judgment.
(explaining that a physician's duty of care owed to a
patient is that of"a reasonable and prudent member of the Debra H. Lehrmann
medical profession . . . under the same or similar
circumstances" (quoting Hood v. Phillips, 554 S. W.2d Justice
160, 165 (Tex. 1977))).
OPINION DELIVERED: May I, 2015
Tab E
CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY Page 1 of5
CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
CHAPTER 74. MEDICAL LIABILITY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 74.001. DEFINITIONS. (a) In this chapter:
(1) "Affiliate" means a person who, directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with a specified person,
including any direct or indirect parent or subsidiary.
(2) "Claimant" means a person, including a decedent's
estate, seeking or who has sought recovery of damages in a health
care liability claim. All persons claiming to have sustained damages
as the result of the bodily injury or death of a single person are
considered a single claimant.
(3) "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of the person, whether through ownership of
equity or securities, by contract, or otherwise.
(4) "Court" means any federal or state court.
(5) "Disclosure panel" means the Texas Medical Disclosure
Panel.
(6) "Economic damages" has the meaning . assigned by
Section 41. 001.
(7) "Emergency medical care" means bona fide emergency
services provided after the sudden onset of a medical or traumatic
condition manifesting itself by acute symptoms of sufficient
severity, including severe pain, such that the absence of immediate
medical attention could reasonably be expected to result in placing
the patient's health in serious jeopardy, serious impairment to
bodily functions, or serious dysfunction of any bodily organ or part.
The term does not include medical care or treatment that occurs after
the patient is stabilized and is capable of receiving medical
treatment as a nonemergency patient or that is unrelated to the
original medical emergency.
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. CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY Page 2 of5
(8) "Emergency medical services provider" means a licensed
public or private provider to which Chapter 773, Health and Safety
Code, applies.
(9) "Gross negligence" has the meaning assigned by
Section 41.001.
(10) "Health care" means any act or treatment performed or
furnished, or that should have been performed or furnished, by any
health care provider for, to, or on behalf of a patient during the
patient's medical care, treatment, or confinement.
(11) "Health care institution" includes:
(A) an ambulatory surgical center;
(B) an assisted living facility licensed under Chapter
247, Health and Safety Code;
(C) an emergency medical services provider;
(D) . a health services district created under Chapter
287, Health and Safety Code;
(E) a home and community support services agency;
(F) a hospice;
(G) a hospital;
(H) a hospital system;
(I) an intermediate care facility for the mentally
retarded or a home and community-based services waiver program for
persons with mental retardation adopted in accordance with Section
1915(c) of the federal Social Security Act (42 U.S.C. Section 1396n),
as amended;
(J) a nursing home; or
(K) an end stage renal disease facility licensed under
Section 251.011, Health and Safety Code.
( 12) (A) "Health care provider" means any person,
partnership, professional association, corporation, facility, or
institution duly licensed, certified, registered, or chartered by the
State of Texas to provide health care, including:
(i) a registered nurse;
(ii) a dentist;
(iii) a podiatrist;
(iv) a pharmacist;
(v) a chiropractor;
(vi) an optometrist;
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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY Page 3 of5
(vii) a health care institution; or
(viii) a health care collaborative certified under
Chapter 848, Insurance Code.
(B) The term includes:
(i) an officer, director, shareholder, member,
partner, manager, owner, or affiliate of a health care provider or
physician; arid
(ii) an employee, independent contractor, or agent
of a health care provider or physician acting in the course and scope
of the employment or contractual relationship.
(13) "Health care liability claim" means a cause of action
against a health care provider or physician for treatment, lack of
treatment, or other claimed departure from accepted standards of
medical care, or health care, or safety or professional or
administrative services directly related to health care, which
proximately results in injury to or death of a claimant, whether the
claimant's claim or cause of action sounds in tort or contract.
(14) "Home and community support services agency" means a
licensed public or provider agency to which Chapter 142, Health and
Safety Code, applies.
(15) "Hospice" means a hospice facility or activity to
which Chapter 142, Health and Safety Code, applies.
(16) "Hospital" means a licensed public or private
institution as defined in Chapter 241, Health and Safety Code, or
licensed under Chapter 577, Health and Safety Code.
(17) "Hospital system" means a system of hospitals located
in this state that are under the common governance or control of a
corporate parent.
(18) "Intermediate care facility for the mentally
retarded" means a licensed public or private institution to which
Chapter 252, Health and Safety Code, applies.
(19) "Medical care" means any act defined as practicing
medicine under Section 151.002, Occupations Code, perf~rmed or
furnished, or which should have been performed, by one licensed to
practice medicine in this state for, to, or on behalf of a patient
during the patient's care, treatment, or confinement.
(20) "Noneconomic damages" has the meaning assigned by
Section 41.001.
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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY Page 4 of5
(21) "Nursing home" means a licensed public or private
institution to which Chapter 242, Health and Safety .Code, applies.
(22) "Pharmacist" means one licensed under Chapter 551,
Occupations Code, who, for the purposes of this chapter, performs
those activities limited to the dispensing of prescription medicines
which result in health care liability claims and does not include any
other cause of action that may exist at common law against them,
including but not limited to causes of action for the sale of
mishandled or defective products.
(23) "Physician" means:
(A) an individual licensed to practice medicine in
this state;
(B) a professional association organized under the
Texas Professional Association Act (Article 1528f, Vernon's Texas
Civil Statutes) by an individual physician or group of physicians;
(C) a partnership or limited liability partnership
formed by a group of physicians;
(D) a nonprofit health corporation certified under
Section 162.001, Occupations Code; or
(E) a company formed by a group of physicians under
the Texas Limited Liability Company Act (Article 1528n, Vernon's
Texas Civil Statutes).
(24) "Professional or administrative services" means those
duties or services that a physician or health care provider is
required to prov{de as a condition of maintaining the physician's or
health care provider's license, accreditation status, or
certification to participate in state or federal health care
programs.
(25) "Representative" means the spouse, parent, guardian,
trustee, authorized attorney, or other authorized legal agent of the
patient or claimant.
(b) Any legal term or word of art used in this chapter, not
otherwise defined in this chapter, shall have such meaning as is
consistent with the common law.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Amended by:
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CIVIL PRACTICE AND REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY Page 5 of5
Acts 2011, 82nd Leg., 1st C.S., Ch. 7 (S.B. 7), Sec. 4.02, eff.
September 1, 2011
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