WHAT IS A HEALTHCARE LIABILITY CLAIM?

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WHAT IS A HEALTHCARE LIABILITY CLAIM?

KELLY LIEBBE

THE LIEBBE FIRM, P.C.

2619 Hibernia

Dallas, Texas 75204

[email protected]

www.txtrialattorneys.com

State Bar of Texas

22

ND

ANNUAL

ADVANCED MEDICAL TORTS COURSE

March 12-13, 2015

San Antonio

CHAPTER 7

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WHAT IS A HEALTHCARE

LIABILITY CLAIM?

I. CHAPTER 74 DEFINITION OF HEALTH

CARE LIABILITY

The courts ruled that Chapter 74 has five different ways in which a claimant may bring a health care liability claim (HCLC). These are:

1) treatment, lack of treatment;

2) departure from accepted standards of medical care;

3) departure from accepted standards of health care;

4) departure from accepted standards of safety; or

5) departure from accepted standards of professional or administrative services directly related to health care.

Exactly what type of departure constitutes a health care liability claim, be it a departure from health care or a departure from safety, is not clear. The courts have decided that the statute is not clear, but their opinions did not leave us with a bright lined test either. All of the ways a claim falls under Chapter 74 are defined, except for “safety.”

• “Health care liability claim” means a cause of action against a healthcare 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.

CPRC §74.001(a)(13)

• “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

CPRC §74.001(a)(12)

• “Claimant” means a person. CPRC §74.001(a)(2) • “Medical care” means any act defined as

practicing medicine under Section 151.002, Occupations Code, performed 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.

CPRC §74.001(a)(19)

• “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.

CPRC §74.001(a)(10)

• “Professional or administrative services” means those duties or services that a physician or health care provider is required to provide 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.

CPRC§74.001(a)(24) • “Safety” means…..?

II. 4590I CASES: BEFORE “CLAIMANT” ERA

Health care liability causes of actions under 4590i were restricted to patients or representatives of patients. However, like Chapter 74, a health care claim also arose wherein a health care provider or physician deviated from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient. There was no language in 4590i that stated a departure from safety needed to be directly linked to health care. However, the Texas Supreme Court held that under 4590i “standards of safety must be construed in light of the other standards of medical and health care, standards that are directly related to the patient’s care and treatment.” Marks v. St. Luke’s Episcopal Hospital, 319 S.W.3d 658, 664 (Tex. 2010).

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

In Diversicare, a patient, Maria Rubio, was the victim of a sexual assault at a nursing home by another patient. Rubio filed suit against the nursing home based, in part, on claims that the home failed to hire and train appropriate personnel to monitor her, failed to provide twenty-four-hour nursing services from a sufficient number of qualified nursing personnel to meet her nursing needs, hired incompetent staff who were unqualified to care for her, and failed to establish and implement appropriate safety policies to protect its residents. Id. at 845.

The claims were inseparable from health care and nursing services because a nursing home has a duty to patients to meet their fundamental needs under the Texas Health and Safety Code. Id. at 849. The Court reasoned that supervision and monitoring of Rubio and

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other nursing home residents were part of providing health care. Id. at 850. Furthermore, Rubio’s claims were characterized as departures from accepted standards of safety under 4590i. Id. 854. “Because the supervision of Rubio and the patient who assaulted her are inseparable from the accepted standards of safety applicable to the nursing home in this case, Rubio’s claims are MLIIA claims under the safety element of the statute.” Id. The Court determines that a claim for premise liability independent of a HCLC “would open the door to splicing healthcare liability claims into a multitude of other causes of action with standards of care, damages, and procedures contrary to the Legislature’s explicit requirements.” Id. at 854.

B. Marks v. St. Luke’s Episcopal Hospital, 319 S.W.3d 658 (Tex. 2010)

Medina delivered the opinion joined by Hecht. Wainwright, Johnson and Willett joined in part. Jefferson concurred in part and dissented in part, in which Green, Guzman and Lehrmann joined.

Patient used footboard on his hospital bed that collapsed as he attempted to use it to push himself from the bed to a standing position. Patient sued alleging failure to train and supervise its nursing staff, failing to provide him assistance, failing to provide a safe environment and providing a hospital bed that was negligently assembled and maintained. The Court looks at the allegations and the safety definition of “health care liability claim”. The Court determines that there are three elements to this definition, (1) a physician or HCP must be defendant, (2) the suit must be about the patient’s treatment, and (3) the defendant’s act or omission must proximately cause the patient’s injury or death. The Court notes that these services of failing to train, supervise, provide assistance and maintain a bed are provided by professional staff, and thus conclude that the provision a safe hospital bed was an inseparable part of the health care services provided to the patient.

Interestingly, the Court maintains that the legislature did not intend for safety to encompass all negligent injuries to patients and that the standards of safety must be construed in light of other standards of medical and health care standards that are directly related to the patient’s care and treatment despite 4590i not having language of “directly related” to health care.

Expert requirement: Justice Johnson wrote a concurring opinion pointing out that the plaintiff’s own expert affirms the hospital’s provision that the hospital bed was an integral and inseparable part of actions that were furnished by the hospital for medical care, treatment or confinement. The plaintiff, Marks,

retained a doctor to write an expert report, and the report stated that the standard of care for nursing and hospital practice is to provide safe equipment, including a hospital bed.

III. CHAPTER 74 DOES NOT REQUIRE THE CLAIMANT BE A PATIENT & DOES NOT REQUIRE ALL CLAIMS BE DIRECTLY RELATED TO HEALTH CARE

The Texas Supreme Court breaks up “health care liability” into at least five categories:

1) treatment or lack of treatment;

2) departures from accepted standards of medical care;

3) departures from accepted standards of health care;

4) departures from acceptable standards of safety; and

5) departure from accepted standards of professional or administrative services directly related to health care.

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

When faced with a premise liability case, sexual assault case, employee case, or a cow in the road, clever defendants state-wide realized that the Court in West Oaks states that “safety” need not be directly related to health care.

A. Texas West Oaks Hospital v. Williams, 371 S.W.3d 171 (Tex. 2012)

Wainwright delivered the opinion, Jefferson, Hecht, Green, Johnson and Guzman joined. Lehrmann dissented, in which Medina and Willett joined.

The issue in Texas West Oaks Hospital v. Williams was whether the claims of a health care employee against his health care employer alleging injuries arising out of inadequate training, supervision, risk-management and safety while caring for a mental patient constitutes health care under the Texas Medical Liability Act. Williams, 371 S.W.3d at 174. The Court holds:

“In seeking to distinguish ordinary negligence claims from HCLCs, the heart of these cases lies in the nature of the acts or omissions causing claimants’ injuries and whether the events are within the ambit of the legislated scope of the TMLA.”

Williams at 176. This statement sets the foundation for determination of whether a claim is a health care liability claim. Unfortunately, it leaves us without

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specific guidelines to make such a determination. In other words, simply being a patient, visitor, or employee does not necessarily mean health care liability or not health care liability. In most cases since West Oaks, this guideline is the rule for determining whether Chapter 74 will apply. A suggested way to phrase the issue is whether a person in the general public knows how to prevent the injury of the claimant or whether some health care policy or procedure is necessary to know how to prevent the injury to the claimant. Whether or not a code violation that is applicable to health care providers also plays a role in determining if the claim is a HCLC.

Williams, a psychiatric technician and professional caregiver at West Oaks, was injured on the job while supervising a mental health patient. The patient had a history of paranoid schizophrenia, including manic outbursts and violent behavior. The patient became agitated so Williams took the patient to an outdoor area where a physical altercation occurred resulting the patient’s death and injuries to Williams. Williams at 175. Williams alleged West Oaks was negligent in “failing to properly train Williams,” “failing to adequately supervise West Oaks’ employees,” and “failing to provide adequate protocol to avoid and/or decrease the severity of altercations between its employees, such as Williams, and patients.” Id. at 175.

The Court recognizes that the Legislature intended Chapter 74 to be broader than 4590i. First, “patient” was replaced with “claimant”. Second, the subject matter scope of activities constituting a health care liability claim under Chapter 74 was broadened to “professional or administrative services directly related to health care.” “Safety” was part of 4590i as well as Chapter 74.

1. Claimed Departures from Accepted Standards of Health Care

Claims made under health care must involve a patient-physician relationship. Id. at 181. Furthermore, “the necessity of expert testimony to support or refute the allegations at issue is a factor in assessing the nature of the claim against a health care provider or physician.” Id. at 182 (citing Diversicare, 185 S.W.3d at 848).

Williams, the technician, was acting on orders to provide one-on-one supervision for the psych patient. The Court holds that directive was made by a West Oaks physician exercising professional judgment about the patient’s care and treatment and professional judgments about safety protocols were put into place. Id. at 181. Therefore, the first requirement is met. Secondly, the Court finds that “expert testimony is required for evidence on proper training, supervision, and protocols to prevent, control and defuse aggressive behavior and altercations in a mental hospital between

psychiatric patients and employed professional counselors who treat and supervise them.” Id. at 182.

The plaintiff, Williams, argued that any security officer could have performed the oversight and supervision of a psychiatric patient. However the Court says that argument is too simplistic because Williams’ position involved different judgments from tasks typically associated with law enforcement or a security guard. Id. at 183. “Treatment of a mental patient subject to psychotic and aggressive outbursts requires health care, not simply protection from bodily harm, to control, defuse, or prevent mental processes leading to aggression, and professional techniques to do so.” Id. Thus, Williams’ claims fell under the health care definition of Chapter 74.

2. Claimed Departures from Safety

The Court holds that “safety” does not need to be directly related to health care. Chapter 74 has definitions for all claims for health care liability except for safety. Since “safety” was also in 4590i with no definition, the Court uses the previously given common meaning as “the condition of being ‘untouched by danger; not exposed to danger; secure from danger, harm or loss’”. Id. at 184 (citing Diversicare, 185 S.W.3d at 855).

The next issue was whether “directly related to health care” applied to “safety” or only “professional or administrative services”. The Court decides that “directly related to health care” only modifies “professional or administrative services” because that is the closest phrase to the modifier that immediately precedes it. Id. at 184-85. Therefore, the rule is that “the safety component of HCLCs need not be directly related to the provision of health care and that Williams’ claims are against West Oaks implicate this component of HCLCs.” Id. at 186. Other than dissecting the statute and common law definitions, the Court does not give a clear analysis as to why Williams’ claims fall under the safety component.

The dissent does not view unsafe workplace and inadequate training as health care and does not find any patient-physician relationship. Id. at 194 (dissent). Secondly, the dissent interprets the intent of the Legislature read “directly related to health care” to both safety and professional or administrative services and states “The Court’s strained reading of the statute runs counter to express statutory language, the Legislature’s stated purposes in enacting the current version of chapter 74, and common sense.” Id. at 193 (dissent). The majority shot back stating the dissent’s “construction is nonsensical, as it would be entirely redundant as to health care and medical care, unsupported by the text in the attempted application to safety, and render safety largely repetitive of health care.” Id. at 185. Applying practicality, the dissent argues the other provisions of notice and medical

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records release, expert reports and jury instructions should trump the definitions. Specifically, the dissent argues that the expert report requirement language “clearly contemplates that the defendant health care provider has delivered health care services to a patient, who has allegedly been injured by the provider’s departure from applicable standards.” Id. at 196 (dissent). However, the majority simply points out that “patient” was replaced with “claimant”. Unfortunately, the argument that finding a physician qualified to write a report regarding non-medical safety standards is near impossible was not brought up or addressed.

IV. HOSPITAL SECURITY RESTRAINING PSYCH PATIENT

In Memorial Hermann Hospital System v. Kerrigan, 383 S.W.3d 611 (Tex. App.—Houston [14th Dist.] 2012, pet denied), Plaintiff brought his daughter, Kathleen, to the emergency department for painful sores on her feet, which were from several days of relentlessly pacing throughout her home due to a manic episode. A physician diagnosed Kathleen with acute psychosis and mania, and scheduled a transfer to a psychiatric facility for her own safety. Before transfer, Kathleen left her room in the hospital and wanted to leave the hospital. The physician requested hospital security to help escort her back to her room to ensure the safety of the hospital staff and other patients because the patient was determined by the physician to be a danger to herself and others. The request for hospital security’s assistance was sought to comply with the medical care plan for Kathleen. The facts that ensured next were disputed, but there was a physical altercation between Kathleen and the security guard. Plaintiff, Kathleen’s father, sued alleging false imprisonment, assault, and negligence. The hospital moved to dismiss all claims for failure to file an expert report.

The main difference between Kerrigan and West Oaks is essentially a security guard and a hospital technician. The court looked to West Oaks v. Williams concluding that since Kathleen was determined a threat to herself, other patients, and employees by a physician then the facts are directly related to health care. More importantly, the court viewed Kathleen as receiving treatment because a medical diagnosis was made and a physician’s care plan was in place to transfer her. The Texas Supreme Court denied review of this case on June 21, 2013.

Similarly, in The Wilson N. Jones Memorial Hospital v. Ammon, 266 S.W.3d 51 (Tex. App.— Dallas 2008, pet. denied), a psychiatric patient was admitted to the emergency room department for transfer to a mental facility. The hospital placed a security guard outside of the patient’s door, but the patient escaped. The fleeing psychiatric patient

“donkey-kicked” the plaintiff, a non-patient who was accompanying her husband at the emergency department. The court first determined that nature and essence of the claim was health care. Id. at 57. Second, the court considered whether expert testimony was necessary to show breach of the standard of care, but noted that a claim may be a HCLC and not require expert testimony to prevail at trial. Id. The court concluded that how and where to hold the psychiatric patient until he could be transferred was a “health care” decision. Id. at 64.

V. ASSAULT BY HEALTH CARE PROVIDER DURING TREATMENT

A. Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012)

Justice Johnson delivered the opinion in which Jefferson, Wainwright, Green and Guzman joined. Willett joined in part and dissented in part. Hecht concurred in part and dissented in part and issued an opinion in which Medina joined. Lehrmann concurred in part and dissented in part and issued opinion.

Patients sued a medical doctor alleging he groped their breasts while examining them for sinus and flu symptoms under the guise of listening to the patient’s heart through the stethoscope. Patients alleged their claims were not HCLCs yet served the doctor with reports from a physician. Defendants moved to dismiss for deficient reports. The Loaisiga decision created a “rebuttable presumption that a patient’s claims against a physician or health care provider based on facts implicating the defendant’s conduct during the patient’s care, treatment, or confinement are HCLCs.” Loaisiga at 252 (emphasis added). This presumption when a patient sues a health care provider is rebuttable because “in some instances the only possible relationship between the conduct underlying a claim and the rendition of medical services or healthcare will be the healthcare setting (i.e. the physical location of the conduct in a health care facility), the defendant’s status as a doctor or health care provider, or both.” Id. at 256.

The Loaisiga presumption only involves (1) patients and (2) during the patient’s care, treatment, or confinement.

“[A] claim against a medical or health care provider for assault is not an HCLC if the record conclusively shows that (1) there is no complaint about any act of the provider related to medical or health care services other than the alleged offensive contact, (2) the alleged offensive contact was not pursuant to actual or implied consent by the

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plaintiff, and (3) the only possible relationship between the alleged offensive contact and the rendition of medical services or healthcare was the setting in which the act took place.”

Id. at 257.

The plaintiffs in Loaisiga served an expert report opining that it is unnecessary that a patient remove their brazier and to cup, palm or touch the breast of a female patient either with the hand holding the stethoscope or the other hand not holding the instrument to listen to the heart beat. The Court hints that if a report is necessary to determine the scope of the examination then the presumption is not rebutted. Id. at 260. However, “the record does not contain sufficient information to conclusively show that Dr. Loaisiga’s conduct could not have been part of the examination he was performing.” Id. 259-60. Therefore, the case was remanded to the trial court for further proceedings on that issue. Id.

B. Drewery v. Adventist Health System/Texas,

Inc., 334 S.W.3d 498 (Tex. App.—Austin 2011,

pet. denied)

Patient, who was employed by hospital as surgical technician, claimed assault against hospital and nurses, who were his coworkers, for painting his fingernails and toenails with pink nail polish, defacing his body by writing on the bottoms of his feet, and wrapping his thumb with tape. Factors such as “whether a specialized standard in the health care community applies to the alleged circumstances and whether the alleged negligent act involves medical judgment related to the patient’s care or treatment” determine whether a claim is inseparable from medical care.” Drewery at 502. The court held that his is not a health care liability claim. This case was rendered before Loaisiga.

VI. ASSAULT BY HEALTH CARE PROVIDER NOT DURING TREATMENT

A neurosurgeon was sued by a physicist who worked with the neurosurgeon for assault and battery involving an allegedly offensive touching that occurred in the workplace. Bidiwala, M.D. v. Fieldler, No. 05-12-01709-CV (Tex. App.—Dallas 2013). The court held that this was not a HCLC because the Texas Supreme Court in Loaisiga specifically states that a claim for assault is not a HCLC if the record conclusively shows there is no complaint about any act of the provider related to medical or health care services other than the alleged offensive contact. Id. at *1. Secondly, the claim does not fall under the safety component because it is wholly unrelated to healthcare and “does not depend upon the existence, adequacy, or implementation of any safety standards.” Id. at *2.

Bidiwala argues that he was or could have been Fielders employer and thus implicates an affirmative duty to provide a safe working environment, but the court rejected that argument because that does not establish the claim was for departure from safety standards or any duties Bidiwala might have as an employer.

In Nexus Recovery Center v. Mathis, 336 S.W.3d 360 (Tex. App.—Dallas 2011), a former patient filed against treatment center asserting sexual exploitation by a mental health services providers. The court held that:

1) allegations that counselor initiated sexual relationship with former patient months after patient left treatment center was not a health care liability claim;

2) claim against center for failing to inquire of its counselor’s former employer concerning possible sexual exploitation of patient by counselor was not a health care liability claim; and

3) claim arising from treatment center’s failure to report, prevent or stop its counselor from the sexual exploitation of patient months after patient was discharged was not a health care liability claim.

However, similar claims were made in Dunn v. Clairmont Tyler, LP, 271 S.W.3d 867 (Tex. App.— Tyler 2008), but in that case the victim of sexual assault was a patient at a nursing home while receiving treatment.

VII. PATIENT PREMISE LIABILITY

A. Dallas Home for Jewish Aged, Inc. v. Leeds,

No. 05-09-00756-CV (Tex. App.—Dallas 2010)

Resident tripped and fell over wires in his room during the middle of the night when he got up to go to the bathroom. The issue of whether the home was a health care provider was not addressed, but the court held that warning of wires on the floor was not a health care liability claim.

B. St. David’s Healthcare Partnership v. Esparza, 348 S.W.3d 904 (Tex. 2011)(per curiam)

Patient slipped and fell on a lubricating gel that fell on the floor of his hospital room during or immediately after a bladder scan is a health care liability claim. Id. at 905. The Court holds that the claim falls within the scope of chapter 74 because it stemmed from the “nurse’s performance of the doctor-ordered scan and her failure to properly dispose of the gel used in the procedure” and the “procedure and its

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performance were directly related to Esparza’s treatment, and thus an integral and inseparable part of his health care.” Id. at 906.

C. Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525 (Tex. 2011)(per curiam)

Patient filed negligence suit when she slipped and fell on a wet bathroom floor during her post-operative confinement. The Court holds this is a HCLC because “the essence of Ollie’s claim centers on the failure of Harris Methodist to act with a proper degree of care to furnish a dry floor, warn her of the hazards of a wet bathroom floor, or some similar failure to act.” Id. at 527.

VIII. HEALTH CARE EMPLOYEES AS CLAIMANTS

The test for whether an employee’s claim against its health care provider employer is whether there is at least an indirect relationship to health care. Moreover, if a code was violated, courts look to whether the code is about health care. In Twilley, for example, the employee alleged an OSHA violation, and the court found that was not even indirectly related to health care. The same court in Whispering Pines found a violation in the Health & Safety Code and concluded that was at least indirectly related to health care.

A. Good Shepherd Medical Center v. Twilley, 422 S.W.3d 782 (Tex. App.—Texarkana 2013, pet denied)

This case opened the discussion that a HCLC must be at least indirectly related to health care and that the possibility of obtaining an adequate expert report should be a factor on whether claims are health care liability.

The hospital unsuccessfully argued that a hospital employee who fell from a ladder attached to the hospital building was a health care liability case. The Texarkana Court of Appeals held:

“Because the claims here are not even indirectly related to health care – save only that they arose on the premises of a health care provider – we affirm the judgment of the trial court.”

Twilley 422 S.W.3d at 784.

The hospital argued that the Texas Supreme Court in West Oaks Hospital v. Williams requires premise liability cases to serve expert reports under Chapter 74. Id. at 784. However, the court distinguished Williams pointing out that the issue was the hospital’s failure to properly train, warn and supervise a health care worker. Id. at 786. Mr. Twilley was not a recipient of health care and his employment

did not involve health care related judgments as in Williams. Id. at 787. In holding that the premise liability case was not a health care liability case, the court explained that the hospital’s argument was extreme:

As previously discussed, the safety claims in Williams were at least indirectly related to

health care. 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. Williams, 371 S.W.3d at 176. 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.

Moreover, when Good Shepherd’s argument is taken to its logical extreme, a suit against a health care provider for negligence in causing a car accident in a hospital parking lot would involve a safety claim and thus would require a report from a health care practitioner expert. A safety claim must involve more logical, coherent nexus to health care. The simple fact that an injury occurred on a health care provider’s premise is not enough.

Twilley at 788.

The court further pointed out that it would be “terribly difficult, if not impossible, to find a qualified expert under the statute who was also competent to opine on the relevant accepted standards of care – OSHA ladder construction and installation and walking surface standards.” Id. at 789. In short, “safety claims that are completely untethered from health care” are not health care liability claims. Id. at 788. There must be at least an indirect relationship to health care to be a HCLC.

The hospital filed a petition for review with the Texas Supreme Court, which was denied on August 23, 2013. It again filed a rehearing for petition for review, but the Court denied it as well on October 11, 2013.

B. Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (Tex. 2013)

A psychiatric nurse was injured while physically restraining a psychiatric patient during a behavioral emergency. Using its analysis in West Oaks v. Williams, the court held this was a health care liability claim because “Palit’s health care provider employer

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violated the standard of health care owed to its psychiatric patients.” Id. at 726.

C. Baylor University Medical Center v. Lawton, No. 05-13-00188, 2013 WL 6163859 (Tex. App.—Dallas 2013, pet. filed)

Ms. Lawton was a nurse working at Baylor when raw sewage backed up into showers and sinks at the hospital. Maintenance workers poured chemicals into drains. Lawton claims she was injured as a result of the sewage and chemicals. The hospital moved to dismiss the claims for failure to file an expert report under Chapter 74, but the trial court denied Baylor’s motion to dismiss pursuant to Chapter 74. Lawton at *2.

This court agreed with Twilley that Williams is distinguishable because the claim in Williams had an indirect relationship to health care but Lawton’s claim does not. Id. at *2. The Dallas Court held that Lawton was not a recipient of health care and workplace injuries are unrelated to health care. Id. at *5. The court noted that “During oral argument, counsel for Baylor conceded there is nothing in the record to indicate the sewage back-up took place in patient rooms.” Id. FN2 at *5. Therefore, the court held that “‘safety claims completely unrelated to health care are excluded from the ambit of the legislated scope of Chapter 74.” Id. at *5. Finally, the court held that “it would be difficult, if not impossible, to find a qualified expert under the statute who was also competent to opine on the relevant accepted standards of care for plumbing.” Id. at *5.

D. Morrison v. Whispering Pines Lodge, 428 S.W.3d 327 (Tex. App.—Texarkana 2014, pet. filed)

Nursing home employee slipped and fell in the resident shower area, which had been recently mopped by another employee. The Texarkana Court distinguished the facts here from its ruling in Twilley. It sticks with its rule it created in Twilley that “if there is at least an indirect connection” between the safety claim and the provision of health care, it is a HCLC. Id. at 332. As in Omaha Healthcare Center, LLC v. Johnson, the court finds that the Health & Safety Code requires the nursing home to provide a safe and clean environment for its residents, and that includes “keeping resident shower areas clean and sanitized for the benefit of nursing home residents.” Id. at 334. Therefore, the court ruled that this claim is a HCLC because it was not totally untethered from health care and was “at least indirectly connected to what can be classified as actions involving health care”. Id. at 334-35.

Keeping with its rule that the possibility of obtaining an adequate expert report as a factor whether a claim is HCL, the court stated, “Compliance with the

expert report requirement could be accomplished by retaining a physician with the requisite training, education, and knowledge necessary to provide an opinion concerning the acceptable standard of health care and/or safety required for a nursing home facility.” Id. at 335.

E. Adams v. Golden Rule Service, No. 14-13-00421-CV, 2014 WL 1669868 (Tex. App.— Houston [14th Dist.] 2014)

Employee suing employer for injuries received while assisting a patient at the health care facility is health care liability. It is unclear whether the employee was a nurse aide or how she was injured helping a patient.

F. Simmons v. Outreach Health Community Care Services, L.P., No. 08-13-00204-CV (Tex. App.—El Paso 2014, no pet. h.)

Hospital employee lifting and turning quadriplegic patient and injuring back is a health care liability claim.

G. Barnes v. Navarro Hospital, No. 13-14-00030-CV (Tex. App.—Corpus Christi 2014, no pet.)

Employee injuring back when moving obese patient is health care claim.

H. Williams v. Riverside General Hospital, No. 01-13-00335-CV (Tex. App—Houston [1st Dist.] 2014, no pet. h.)

Nurse tripping on extension cord left out by another hospital employee, and a year later falling on a substance on the floor after performing a room check is

not a HCLC.

I. Gonzalez v. Diversicare Leasing Corp. et. al.,

No. 01-13-00108-CV (Tex. App.—Houston [1st Dist.] 2014, pet. filed) (per curiam)

Nursing home employee tripped over stacked empty milk crates in dimly lit path by back door is not a HCLC.

J. The Good Shepherd Hospital, Inc. v. Masten, et. al. No. 12-13-0005-CV (Tex. App.—Tyler 2014, no pet. h.)

Emergency medical technician (EMT) leaving onboard generator that powered ambulance’s equipment causing toxic fumes to kill and injure other EMTs was not a health care liability claim. The court stated that these facts are more like Twilley than its own holding in Reddic where a slip and fall in the hospital was a HCLC.

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K. McKelvy v. Columbia Medical Center of McKinney Subsidiary, L.P., No 05-13-0090-CV (Tex. App.—Dallas 2015, no pet. h.)

Hospital employee slipping in hospital lab due to leaking piece of lab equipment is not a HCLC.

IX. WHEN A HOME HEALTH WORKER AND PATIENT GET HIT BY A CAR CROSSING A STREET

In Health Care Unlimited v. Soto, No. 13-10-00633-CV (Tex. App.—Corpus Christi-Edinburg 2011), a home health worker and the patient were crossing the street after a shopping trip when both were hit by a truck. The plaintiff alleged negligence in hiring supervising, and training the home health worker. The court held that “negligent hiring, supervising, and training of health care employees constitute a deviation from the accepted standards of health care and safety.” Id. at *2. Further, plaintiff’s claim against the home health worker was also a HCLC because the claim regarded the patient’s safety. Id.

X. WHEN A HEALTH CARE VAN IS IN AN AUTO ACCIDENT

In, DHS Management Services, Inc. v. Castro, 435 S.W.3d 919 (Tex. App.—Dallas, June 25, 2014), a technologist employed by DHS was driving a DHS van containing imaging equipment when it struck another vehicle, which then struck Castro’s vehicle. Castro sued DHS and the technologist for ordinary negligence. The Dallas Court repeated the rule that “while a claim need not be directly related to health care, it cannot be completely unrelated to the provision of health care services and still fall under the definition of a health care liability claim.” Id. at 921. Applying the rule, the court held that Castro’s claim was not a

health care claim because “the conduct at issue here is

completely unrelated to DHS and [the technologist’s] provision of health care services … This is no stronger a connection than if the accident had occurred on hospital property.” Id. at 922.

XI. WHEN A DOCTOR RUNS OVER A BICYCLIST WITH HIS CAR

In Reddy v. Veedell, No. 01-14-00309 (Tex. App.—Houston [1st Dist.] 2014, pet. filed), a bicyclist sued a doctor who struck her with his car, and the court held that it was not a health care liability claim. Interestingly, in Dr. Reddy’s motion to dismiss for failure to serve an expert report, he argued that as “a physician, acted unsafely in the operation of his

motor vehicle”. Id. at *1. Dr. Reddy’s concession that

he acted unsafely did not get him into the safety component of Chapter 74.

XII. WHEN COWS GO ROGUE IN THE

ROAD

A retired doctor’s cow escaped the fenced pasture causing a one vehicle accident. Retired doctor filed motion to dismiss but did not request a hearing or ruling. Since the trial judge never made a ruling, retired doctor filed a petition for writ of mandamus seeking to either dismiss for failure to file an expert report or to order the trial court to rule on his motion to dismiss. The petition was denied because a court is not required to consider a motion that has not been properly called to its attention. In re Richard K. Archer, Sr., No. 05-15-00020-CV (Tex. App.—Dallas January 9, 2015, no pet. h.). The court did not address whether the cow’s escape was a HCLC, but it indicated the motion was meritless in dicta.

XIII. FERTILITY CLINICS

A. Saleh v. Hollinger, 335 S.W.3d 368 (Tex. App.—Dallas 2011, pet. denied)

The wife sued the fertility doctor for stealing and selling her eggs. Mr. and Mrs. Hollinger alleged defendants stole Mrs. Hollinger’s eggs and sold her eggs to another patient for profit. The court held that claims for intentional misrepresentation and theft and sale of her eggs were a health care liability claim. It concluded that “an intentional tort allegation does not take the claim out of the purview of chapter 74 when the underlying nature of the claim is inseparable from rendition of medical or health care services and involves departure from accepted standards of medical and health care.” Saleh at 374. The court explained that:

“the very purpose of Toni Hollinger’s treatment was fertilization and the implanting of embryos,” and “the act and omissions of Dr. Saleh and Sher Institute concerning the handling and disposition of eggs was inseparable part of the rendition of medical and health care services.”

Id. at 375. “The claims involve the duties owed to the patient and what a prudent physician or health care provider would do under the same or similar circumstances.” Id.

B. Obstetrical and Gynecological Associates v. Hardin, No. 01-13-00236-CV (Tex. App.— Houston [1st Dist.] 2013)

Hardin had vials of his sperm cryopreserved and gave his then girlfriend, LeBlanc, decisional authority over the use and storage of it in the event of his death or the dissolution of the couple. Their relationship ended, and Hardin and his new girlfriend, Devall, met with the defendant to discuss options for

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pregnancy. A few months later, defendant released vials of Hardin’s sperm to Devall, the new girlfriend, without consent from Hardin or LeBlanc. A nurse at defendant clinic inseminated Devall, new girlfriend, and she became pregnant and gave birth to a son. Hardin and LeBlanc sued for negligently releasing the sperm. The court held that the defendant did not meet its burden to present evidence that the State of Texas has certified it as a healthcare provider. Id. at *2. It further held that, assuming the defendant entity was a health care provider, Chapter 74 “does not require a report specifically addressing vicarious liability for the inadequate healthcare provided by its agent or employee for which a report would be required.” Id. at *3.

The fact that a nurse inseminated Devall and no report was provided as to that nurse was not addressed in the opinion.

XIV. NURSING HOMES

In Omaha Healthcare Center, LLC v. Johnson, 334 S.W.3d 392 (Tex. 2011), a nursing home patient was bitten by a brown recluse spider and died. Plaintiffs alleged that the nursing home “failed to maintain the premises in a safe condition by failing to inspect the premises, failing to institute proper pest control policies, and failing to prevent insect and spider infestations.” Id. at 395. The Texas Supreme Court concludes that the claim was a safety claim directly

related to health care because nursing homes “are

required to take actions to provide ‘quality care’ which includes things such as safety of the environment.” Id. (citing TEX. HEALTH & SAFETY CODE ANN. § 212.001(a)(1), (8) (West 2010)).

XV. ADULT DAY CARE FACILITY IS NOT A

HEALTH CARE PROVIDER

A participant with an adult day care facility was injured when left unattended in a van after a bowling outing in Hill Country San Antonio Management Services v. Trejo, 424 S.W.3d 203 (Tex. App.—San Antonio 2014, pet. denied). The adult day care was not a health care provider because it is governed by the Texas Human Resources Code, which unlike the Health and Safety Code, does not contain any medical or health care personnel training or qualification requirements. Id. at 209. Furthermore, the adult day care center did not employ medical personnel, provide medical services or have state licensed staff of any kind. Id. Moreover, the adult day care services, including transportation to and from daily activities, did not implicate standards associated with providing health care. Id. at 211. The court reasoned, “Unlike the injuries sustained in Williams, Rene’s injuries did not result from an employee’s failure to follow doctor’s orders on how to ‘handle’ Rene or where to take Rene.” Id. at 212.

XVI. HOMEOPATHIC, NATUROPATHIC

AND ALTERNATIVE TREATMENT “CLINIC” NOT HCP

A homeopathic, naturopathic or other such facility is not a health care provider under §74.001 because the State of Texas does not license homeopathic, naturopathic or other such facilities. Interestingly, the court put the burden on the defendant “clinic” to prove that is was a health care provider. Doctors Data, Inc. v. Stemp, No. 03-12-00079-CV (Tex. App.—Austin 2014, pet. denied).

XVII. MIDWIVES ARE HEALTH CARE

PROVIDERS

In Lopez v. Osuna, No. 04-14-00310-CV (Tex. App.—San Antonio 2014, no pet. h.), Osuna made a contract with Lopez, alleged licensed midwife, to “see her through her pregnancy.” Lopez at *1. When Osuna went into labor, Lopez refused to allow Osuna into the clinic and refused to provide firefighters with medical assistance when the baby was born unresponsive outside of the clinic. The court held that midwives are health care providers because the Texas Occupations Code defines midwifery as practice of providing care to a woman during labor. Id. at *3. Secondly, it ruled that this was a health care liability claim because the essence and core of the claim was that Lopez should have helped provide care such as clamp the umbilical cord or deliver the baby as promised. Id. at 6. Moreover, it was a health care liability claim “because to establish or refute the claims will require some sort of medical expert.” Id. at *7.

XVIII. WHEELCHAIR IN A CLINIC VAN

The Fifth Court of Appeals in Sherman v. Healthsouth Specialty Hospital, 397 S.W.3d 869 (Tex. App.—Dallas 2013, pet. denied) determined that when a wheelchair bound passenger in a van being transported to her home from a clinic was not properly secured to the van floor is injured, it is a health care liability claim. The court viewed the issue as “whether the failure to properly secure an invalid passenger in a van before transporting her from the clinic to her home implicates certain accepted standards embodied in the definition of a health care liability claim.” Id. at 873. The court reasoned that while the driver was not providing medical care or treatment, the clinic was still responsible for the patient’s safety during the transport. Id. at 874. It further found that the essence of the claim is that the clinic was negligent for failing to provide for the patient’s safety. Id. at 875.

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XIX. POST-MORTEM BREACH OF

FIDUCIARY DUTY, FRAUD AND CONSPIRACY

Plaintiff in Christus Health Gulf Coast v. Carswell, No. 01-11-00292-CV, (Tex. App.—Houston [1st Dist.] 2014, pet. filed) sued for medical negligence claims, but also asserted in the same litigation claims for post-mortem fraud, breach of fiduciary duty, and negligence arising from the hospital’s attempt to obtain her consent to having its affiliate do the sole autopsy on her husband. Plaintiff alleged a conspiracy to commit a fraudulent cover-up of the circumstances under which her husband died. Since these claims were based on fraudulent misrepresentations made after Jerry Carswell’s death the court held that it was

not a HCLC.

XX. FAILURE TO DELIVER STILLBORN

FETUS TO FUNERAL HOME

It is not a HCLC when the hospital accidentally disposed of a stillborn instead of delivering to the funeral home. McAllen Hospitals v. Ontiveros, No. 13-11-00512-CV (Tex. App.—Corpus Chirisi-Edinburg 2012, pet. denied).

It is not a HCLC when the hospital delivered amputated toe of another patient to a funeral home instead of the patient’s product of conception. CHC Bayshore, L.P. v. Ramo, No. 01-11-00764-CV (Tex. App.—Houston [1st Dist.] 2012).

XXI. LASER HAIR REMOVAL & SKIN

REJUVENATION

In Bioderm Skin Care, LLC v. Sok, 426 S.W3d 753 (Tex. 2014), the first issue was whether the defendant is a health care provider. Dr. Nguyen orders the lasers and trains the employees to use them. Because Bioderm is an affiliate of the doctor, the Court concludes it is a health care provider. Next, the Court uses its rebuttable presumption that a claim against a HCP is a health care liability claim. Claimant alleged too high of an intensity setting during laser hair removal caused burns and scar on her legs. The Court holds that the presumption applies because expert health care testimony is necessary to prove or refute her claim. Id. at 755. The logic that “health care testimony is necessary” was because “the laser used by the defendants in this case may only be purchased by a licensed medical practitioner for supervised use in her medical practice,” and “use of a ‘medical instrument which requires extensive training and experience for proper use’ is not a matter plainly within the common knowledge of laymen.” Id. The Court confirms its holding in Rio Grande Valley Vein Clinic, P.A. v. Guerrero, 431 S.W.3d 64 (Tex. 2014) because laser hair removal facilities and technicians are practicing medicine under the Texas Health & Safety Code.

Laser skin rejuvenation is also a HCLC.

Barrows, M.D. v. Carnes, 434 S.W.3d 836 (Tex. App.—Dallas 2014), held that the aesthetician who used the laser was a health care provider. Moreover, the claimant alleged the aesthetician was not adequately trained or supervised by a physician, thus it was a HCLC.

XXII. NON-PATIENT/NON-EMPLOYEE

PREMISE LIABILITY

As of the date of this paper, the appellate courts differ on whether non-patient visitors making a premise liability claim fall under the “safety” category of a health care liability claim. The 12th and 14th courts hold that these claims fall under Chapter 74. The Ross case out of the 14th district had oral argument at the end of 2014 in the Texas Supreme Court, and it is anticipated this case will lay a more detailed predicate for “safety” claims. Ross petition review was granted on June 27, 2014 and oral argument was heard November 5, 2014.

A. 2nd District –Not Health Care Liability

1. Weatherford Texas Hospital Company v. Smart, 423 S.W.3d 462 (Tex. App.—Fort Worth 2014, pet. filed)

The Fort Worth Court of Appeals held that a visitor slip and fall in a hospital lobby is not a health care liability claim. The Fort Worth Court agreed with Twilley analysis and disagreed with the analysis in Reddic and Ross. Id. at 465-67. “The gravamen of Smart’s claim is a slip and fall, implicating the question of whether there should be a difference between a safety claim occurring in the lobby of a department store, bakery, or lawyer’s office and a safety claim occurring in the lobby of a health care provider when health care services are not involved.” Id. at 467. “And as in Twilley, it would be impractical to assume that Smart could locate a premises liability expert who also practiced ‘health care in a field of practice that involves the same type of care or treatment as that delivered by the’ health care provider.” Id.

2. Columbia Medical Center of Denton Subsidiary, LP v. Braudrick, No. 02-13-00399-CV (Tex. App.—Fort Worth 2014, pet. filed) A visitor tripping in the hospital parking lot is not a health care liability claim.

B. 4th District –Not Health Care Liability

1. Methodist Healthcare System of San Antonio v. Dewey, 423 S.W.3d 516 (Tex. App.—San Antonio 2014, pet filed)

The San Antonio Court of Appeals held that a visitor who was injured by an electronic door closing on him while entering the hospital was not a health care liability case. The court disagreed with the Ross

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analysis noting that “the Texas Supreme Court has yet to address whether a visitor, who slips and falls in a health care facility, has brought a HCLC when the visitor sues the health care facility.” Id. at 519 (internal citations omitted). Furthermore, the San Antonio Court distinguished a garden variety slip and fall from the fact in West Oaks v. Williams because there “the plaintiff was a hospital employee who brought a negligence claim cross action against his employer in a HCLC brought by the estate of a psychiatric patient.” Id. at 520.

C. 5th District –Not Health Care Liability

1. Methodist Hospitals of Dallas v. Garcia, No. 05-13-01307-CV, 2014 WL 2003121 (Tex. App.— Dallas 2014, no pet.)

The Dallas Court of Appeals held that the Texas Medical Liability Act does not apply when a visitor is injured when a hospital elevator malfunctions. Garcia at *1. The sole issue was whether the trial court abused its discretion in denying the hospital’s motion to dismiss based on failure to file an expert report under Chapter 74 of the Texas Civil Practice and Remedies Code. Id. at *1. Garcia, who was at the hospital to visit her daughter who worked there, injured her back and neck when an elevator fell from the second to the first floor. The court examined the Texas Supreme Court holding in Williams, and determined that the claim in Williams had at least an indirect relationship to health care. Id. at *2. Referencing its previous opinion in Lawton, the court states, “This Court and other courts of appeals have determined that Williams does not encompass safety claims that are ‘completely untethered’ from health care.” Id. (citing Lawton, 2013 WL 6163859, at *3).

The Dallas Court held that Garcia’s claims did not have an indirect relationship with health care, and “the mere fact that the alleged injuries occurred at a hospital is insufficient to transform Garcia’s ordinary negligence claim into a health care liability claim.” Id. (citing Loaisiga v. Creda, 379 S.W.3d 248, 256-57 (Tex. 2012)).

2. Methodist Hospitals of Dallas v. Searcy, No. 05-14-00375-CV, 2014 WL 5804193 (Tex. App.— Dallas 2014, no pet. h.) (mem. op.)

In Searcy, a non-patient slipped and fell on a wet floor outside labor and delivery area at the hospital while visiting her daughter who was in labor. She alleged that the hospital was negligent in failing to properly inspect and maintain the flooring area among other premise liability claims. The Dallas Court continued to uphold its analysis that a claim that did not have an indirect relationship to health care does not fall into the ambit of Chapter 74. Searcy at *2.

D. 6th District –Not Health Care Liability

1. Watson v. Good Shepherd Medical Center, No. 06-14-00025-CV (Tex. App.—Texarkana 2015, no pet. h.)

Plaintiff slipped and fell on wet floor when accompanying her grandson to the emergency department. The court held the claims were untethered from health care because the nature of the claim was a purse premises liability cause of action and the only connection to health care is that it occurred at a hospital.

E. 8th District –Not Health Care Liability

1. East El Paso Physicians Medical Center, L.L.C. v. Vargas, No. 08-13-00358-CV (Tex. App.—El Paso 2014, pet. filed)

Visitor injured after automatic doors at hospital malfunctioned is not a health care liability claim.

F. 9th District – Not Health Care Liability

1. Christus St. Elizabeth Hospital v. Guillory, 415 S.W.3d 900, 902-03 (Tex. App.— Beaumont 2013, pet. filed)

The Beaumont Court of Appeals was confronted with the issue of whether a hospital visitor who slips and falls in a hospital hallway is a health care claim in Christus St. Elizabeth Hospital v. Guillory, 415 S.W.3d 900, 902-03 (Tex. App.— Beaumont 2013, pet. filed). After analyzing West Oaks v. Williams, the Beaumont Court determined that “[t]he Texas Supreme Court has not yet addressed whether a garden-variety premises case involving a visitor’s slip-and-fall is a ‘health care liability claim’ as defined by the Texas Medical Liability Act.” Guillory at 902. The court held that this was not a health care liability claim because “no nexus exists between the claims Guillory asserts in her Second Amended Original Petition and the hospital’s duties of providing healthcare.” Id. at 903.

G. 12th District- Health Care Liability

1. East Texas Medical Center v. Reddic, 426 S.W.3d 343 (Tex. App.—Tyler 2014, pet. filed).

The Tyler Court held that a slip and fall inside the hospital was a HCLC. Reddic at 345. Reddic fell while inside the hospital, but the record did not clearly indicate whether Reddic was a patient or a visitor at the hospital. Id. at 347. The Tyler Court treated Reddic as a patient and not visitor, and therefore looked at Harris Methodist Fort Worth v. Ollie as precedent. In Ollie, the Texas Supreme Court holds that a claim by a patient that the hospital failed to furnish her with a bathroom floor free from hazards was a HCLC. Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527 (Tex. 2011). The Tyler Court also noted that the area where Reddic fell was “an area frequented by numerous patients throughout the day”. Id. at 348. The court held, “the care of the floor around an area

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frequented by numerous patients throughout the day has an indirect relationship to the provision of health care that is sufficient to satisfy the safety component of the TMLA.” Id. at 348. The Tyler Court of Appeals seemed to base its decision on the location of the negligence, pointing out that Twilley was a fall that occurred outside the hospital. Id. at 378.

Justice Griffin dissented explaining that the facts are simple, and that Reddic, as an invitee visitor, approached the reception desk when she slipped on a wet rug. Griffin stated that there is “a difference between a claim arising where the plaintiff is a patient receiving health care from the defendant medical facility or a person providing such health care, on the one hand, and a situation where the plaintiff is a nonpatient, nonemployee of the health care facility.” Id. at 350 (dissenting).

H. 13th District – Not Health Care Liability

1. Doctors Hospital at Renaissance, Ltd. v. Mejia, No. 13-12-00602-CV, 2013 WL 4859592 (Tex. App.—Corpus Christi 2013 pet. filed) (mem. op.) The Corpus Christi Court of Appeals held that a person visiting a patient who slips and falls on a waxed floor in a hospital is not a health care liability claim. Doctors Hospital at Renaissance, Ltd. v. Mejia, No. 13-12-00602-CV, 2013 WL 4859592 (Tex. App.— Corpus Christi 2013 pet. filed) (mem. op.). More recently, the Thirteenth District again stated, “we decline to interpret the Supreme Court’s reasoning in West Oaks as a direction to extend the scope of the TMLA to encompass ordinary premises liability claims brought by invitees simply because the injury occurred in a hospital.” Rio Grande Regional Hospital v. Salinas, No. 13-13-00557-CV, 2014 WL 3805141 (Tex. App.— Corpus Christi 2014, no pet. h.) (mem. op).

I. 14th District – Health Care Liability

1. Ross v. St. Luke’s Episcopal Hospital, No. 14-12-00885-CV, 2013 WL 1136613 (Tex. App.— Houston [14th Dist.] 2013, pet. granted) (mem. op.)

Ms. Ross slipped and fell on a mat in the lobby of the hospital. The plaintiff in Ross failed to establish why Texas West Oaks Hospital v. Williams was distinguishable from her case. Instead, “Ross argues simply that this court should ignore Williams”. Ross v. St. Luke’s Episcopal Hospital at *2.1 The plaintiff in Ross failed to give the Fourteenth Court of Appeals a reason to not apply the Williams case whatsoever. The

1 To date, Ross v. St. Luke’s Episcopal Hospital is the only appellate case wherein the Texas Supreme Court has granted oral argument. Note that the Texas Supreme Court denied review in Good Shepherd Medical Center v. Twilley.

court points out that,

The Hospital is a defendant because of the condition of its floors in the lobby, not because of any act or omission related to health care-unless the decision to have polished floors is health care-which the Hospital does not allege here. Yet, the Texas Supreme Court instructs that a connection between the act or omission and health care is unnecessary for purposes of determining whether Ross brings an HCLC. An allegation pertaining to safety, standing alone and broadly defined, is sufficient.

Id.at *1.

It should be noted that the court did not mention the Good Shepherd Medical Center v. Twilley case and simply stated that it has no choice but to follow West Oaks v. Williams, especially in light that the plaintiff did not argue otherwise. This short (page and a half) opinion seems to invite the Texas Supreme Court to give clarification on its broad definition left in West Oaks v. Williams. The invitation was seen by defendants state wide and a plethora of premise liability cases ensured, yet the only court that agreed was the Twelfth Court of Appeals in Tyler.

2. Memorial Hermann Hospital System v. Galvan, No. 14-13-00120-CV, 2014 WL 295166 (Tex. App.—Houston [14th Dist.] January 28, 2014, pet. filed) (mem. op.) Galvan, a visitor, slipped and fell in a hospital hallway, and the court held that this fell under Chapter 74 according to the Williams holding and its holding in Ross. Galvan at *2. The Fourteenth Court of Appeals never mentioned the Twilley case but conceded that the reason for its holding that a slip and fall is a HCLC is due to “judicial dicta” in West Oaks v. Williams. Id. at 8-10.

XXIII. HOUSE BILL 956: BACK TO THE

“PERSON” ERA?

Representative Turner filed a bill defining “claimant” as a “patient”. The bill would make claims under TMLA for patients only, including removing employee cases from TMLA. By: Turner of Tarrant

H.B. No. 956 A BILL TO BE ENTITLED AN ACT relating to the scope of a health care liability claim. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

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SECTION 1. Sections 74.001(a)(2) and (13), Civil Practice and Remedies Code, are amended to read as follows:

(2) "Claimant" means a patient [person], including a deceased patient's [decedent's] estate, seeking or who has sought recovery of damages in a health care liability claim. In a cause of action in which a party seeks recovery of damages related to injury to another person who is a patient, or other harm to the patient, "claimant" includes both the patient and the party seeking recovery of damages. [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.] (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 directly related to health care, 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. The term does not include claims arising from an injury to or death of a person who is not a patient, including employment and premises liability claims

SECTION 2. The amendment to Section 74.001, Civil Practice and Remedies Code, by this Act is intended to clarify rather than change existing law.

SECTION 3. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section

39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2015.

XXIV. CONCLUSION

“In seeking to distinguish ordinary negligence claims from HCLCs, the heart of these cases lies in the nature of the acts or omissions causing claimants’ injuries and whether the events are within the ambit of the legislated scope of the TMLA.”

Williams at 176. To fall under the “health care” category of liability under Chapter 74, there must be (1) a patient-physician relationship, and (2) the necessity of expert testimony in assessing the nature of the claim.

The “safety” category of health care liability is broad with no certain factors or tests to guide us. The Court in Texas West Oaks v. Williams did not give specific factors or guidelines to determine whether a claim for deviation of safety falls under Chapter 74. Until the Court makes a decision in Ross, the courts of appeals observe the Court’s dicta. Deficient monitoring and training are HCLCs, but “claims for injuries arising out of an intruder assaulting a claimant due to an unlocked window or a claimant falling from a rickety staircase” are distinct from HCLCs. Texas West Oaks v. Williams at 185 Fn. 7. However, these were examples in Diversicare and West Oaks that “would be separable from health care under the health care component of the HCLC definition” and not the “safety” component. Id.

On the other hand, appellate cases under the safety component with petitions filed were forwarded to the Texas Supreme Court, except a few, in particular Columbia Medical Center of Denton Subsidiary, LP. v. Braudrick, No. 02-13-00399-CV (Tex. App.—Fort Worth 2014, pet. filed July 7, 2014). Braudrick was a trip and fall by a visitor in a hospital parking lot, and the Fort Worth court held this was not a health care liability claim. Since the Texas Supreme Court did not accept this case yet (as of the date of this paper February 2015), it might be an indication that tripping outside in a parking lot will not fall under Chapter 74. Furthermore, the Court denied review in Twilley and in Kerrigan, indicating an employee falling from a ladder is not a HCLA but patients diagnosed with mental disorders being chased by security guards or technicians is a HCLC. One could adopt the analysis in Twilley that a HCLC must be at least indirectly related to health care and the possibility of obtaining an adequate expert report plays a factor in determining whether it is a HCLC.

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WHAT IS A HEALTHCARE LIABILITY CLAIM?

WHAT IS A HEALTHCARE LIABILITY CLAIM?

KELLY LIEBBE

THE LIEBBE FIRM, P.C.

2619 Hibernia

Dallas, Texas 75204

[email protected]

www.txtrialattorneys.com

State Bar of Texas

22

ANNUAL

ADVANCED MEDICAL TORTS COURSE

March 12-13, 2015

San Antonio

CHAPTER 7

TABLE OF CONTENTS

WHAT IS A HEALTHCARE

LIABILITY CLAIM?