NUMBER 13-12-00602-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DOCTORS HOSPITAL AT RENAISSANCE, LTD., Appellant,
v.
CLAUDIA MEJIA, Appellee.
On appeal from the County Court at Law No. 2 of Hidalgo County, Texas.
DISSENTING MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Longoria Dissenting Memorandum Opinion by Justice Longoria
Does Chapter 74 of the Texas Civil Practice and Remedies Code, known as the
Texas Medical Liability Act (“TMLA”), apply to a garden-variety, slip-and-fall claim by a
non-patient against a hospital if the injury occurred in a health care setting? See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001–.507 (West 2011 & West Supp. 2011). The trial
court ruled that it does not, and today, this Court reaches the same conclusion.
However, the recent decision of the Texas Supreme Court in Texas West Oaks
Hospital, L.P. v. Williams, 371 S.W.3d 171, 180 (Tex. 2012) instructs that the claim in
this case is subject to the TMLA because appellee alleges that she suffered injuries that
were proximately caused by the Hospital’s departures from accepted standards of
safety. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West Supp. 2011).
Accordingly, I respectfully dissent.
I. ANALYSIS
A. Standard of Review
“We generally review a trial court’s order granting or denying a motion to dismiss
filed under section 74.351 under an abuse of discretion standard.” Hendrick Med. Ctr.
v. Tex. Podiatric Med. Ass’n, 392 S.W.3d 294, 296–97 (Tex. App.—Eastland 2012, no
pet.). “However, when the issue, as in this case, involves the applicability of Chapter 74
to the plaintiff’s claims and requires an interpretation of the statute, we apply a de novo
standard of review.” Id. at 297.
B. Applicable Law
The TMLA applies to a lawsuit if it is a “heath care liability claim,” which consists
of three basic elements:
(1) a physician or health care provider must be a defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s act or omission complained of must proximately cause the injury to the claimant.
2 Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 179–80 (Tex. 2012) (citing TEX.
CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13)). The parties dispute only the second
element, and specifically, whether the claim is for “departure[s] from accepted standards
of . . . safety . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13).
In Texas West Oaks, the Texas Supreme Court gave the term “safety” its
“commonly understood meaning as the condition of being untouched by danger; not
exposed to danger; secure from danger, harm or loss.” Tex. W. Oaks Hosp., 371
S.W.3d at 184 (quotations omitted). “Logically, the inclusion of safety expanded the
scope of the statute beyond what it would be if it only covered medical and health care.”
Id. Because “the safety component of [a health care liability claim] need not be directly
related to the provision of health care,” it “could therefore encompass premises liability
claims.” Id. at 186 (quotations omitted).
In Texas West Oaks, the Texas Supreme Court adopted the statutory
construction that was previously advanced by Chief Justice Wallace Jefferson in his
concurring and dissenting opinion in St. Luke’s, where he wrote that “the Legislature’s
definition of ‘safety’ forbids a premises liability claim against a health care provider,
even if the claim is based on structural defect, criminal assault, or careless act.” See
Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 674 (Tex. 2010) (Jefferson, C.J.,
concurring, dissenting). As Justice Guzman noted in her concurring and dissenting
opinion in St. Luke’s, “it is unclear what acts of ordinary negligence occurring in a health
care setting, if any, might still fall within the scope of premises liability rather than health
care liability.” See id. at 675 (Guzman, J., concurring, dissenting). Under Chief Justice
Jefferson’s statutory interpretation, which the Texas Supreme Court adopted in Texas
3 West Oaks, even “classic premises liability claims” are covered by the TMLA. See
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 858 (Tex. 2005) (Jefferson,
C.J., concurring, dissenting).1
In sum, under Texas West Oaks, “the term ‘safety’ . . . is so broad that almost
any claim against a health care provider can now be deemed a health care liability
claim.” Tex. W. Oaks, 371 S.W.3d at 198 (Lehrmann, J., dissenting) (quotations
omitted). Thus, applying Texas West Oaks, the Fourteenth Court of Appeals recently
decided that a garden-variety, slip-and-fall claim by a non-patient against a hospital,
much like the claim in this case, was a health care liability claim subject to the TMLA
because “an allegation that the floors [we]re slippery [wa]s a ‘safety’-related claim.”
Ross v. St. Luke’s Episcopal Hosp., No. 14-12-00885-CV, 2013 Tex. App. LEXIS 2796,
at *3–4 (Tex. App.—Houston [14th Dist.] Mar. 19, 2013, no pet. h.) (mem. op.) (“Ross
likely never imagined that, under the Texas Supreme Court’s construction, the plain
language of the Texas Medical Liability Act would swallow her garden-variety slip and
fall case. But it has.”). The Dallas Court of Appeals has also issued a similar decision.
See Sherman v. HealthSouth Specialty Hosp., Inc., No. 05-11-01039-CV, 2013 Tex.
App. LEXIS 4208, at *13 (Tex. App.—Dallas April 2, 2013, no pet. h.) (“When a plaintiff
claims a health care provider was negligent in failing to properly care for her safety,
1 Notably, the recent decisions by the Texas Supreme Court, including Texas West Oaks, prompted a response from the Texas Legislature. See Tex. H.B. 2644, 83d Leg., R.S. (2013). Among other things, House Bill 2644 would have amended the TMLA to clarify that the definition of a health care liability claim “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.” Id. Ultimately, House Bill 2644 was not enacted. Therefore, the statutory interpretation adopted by the Texas Supreme Court in Texas West Oaks remains the controlling legal standard for purposes of this case.
4 those claims are health care liability claims even if the alleged act or omission is not
directly related to the provision of health care.”).2
C. Discussion
In this case, appellee has alleged that the Hospital failed to provide “a safe
walking area,” “adequate safety measures,” “adequate safety procedures,” “adequate
safety training,” and “reasonable safeguards for safety and protection of all patrons.”
Appellee has further alleged that the Hospital “failed to keep the premises in a
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NUMBER 13-12-00602-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DOCTORS HOSPITAL AT RENAISSANCE, LTD., Appellant,
v.
CLAUDIA MEJIA, Appellee.
On appeal from the County Court at Law No. 2 of Hidalgo County, Texas.
DISSENTING MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Longoria Dissenting Memorandum Opinion by Justice Longoria
Does Chapter 74 of the Texas Civil Practice and Remedies Code, known as the
Texas Medical Liability Act (“TMLA”), apply to a garden-variety, slip-and-fall claim by a
non-patient against a hospital if the injury occurred in a health care setting? See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001–.507 (West 2011 & West Supp. 2011). The trial
court ruled that it does not, and today, this Court reaches the same conclusion.
However, the recent decision of the Texas Supreme Court in Texas West Oaks
Hospital, L.P. v. Williams, 371 S.W.3d 171, 180 (Tex. 2012) instructs that the claim in
this case is subject to the TMLA because appellee alleges that she suffered injuries that
were proximately caused by the Hospital’s departures from accepted standards of
safety. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West Supp. 2011).
Accordingly, I respectfully dissent.
I. ANALYSIS
A. Standard of Review
“We generally review a trial court’s order granting or denying a motion to dismiss
filed under section 74.351 under an abuse of discretion standard.” Hendrick Med. Ctr.
v. Tex. Podiatric Med. Ass’n, 392 S.W.3d 294, 296–97 (Tex. App.—Eastland 2012, no
pet.). “However, when the issue, as in this case, involves the applicability of Chapter 74
to the plaintiff’s claims and requires an interpretation of the statute, we apply a de novo
standard of review.” Id. at 297.
B. Applicable Law
The TMLA applies to a lawsuit if it is a “heath care liability claim,” which consists
of three basic elements:
(1) a physician or health care provider must be a defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s act or omission complained of must proximately cause the injury to the claimant.
2 Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 179–80 (Tex. 2012) (citing TEX.
CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13)). The parties dispute only the second
element, and specifically, whether the claim is for “departure[s] from accepted standards
of . . . safety . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13).
In Texas West Oaks, the Texas Supreme Court gave the term “safety” its
“commonly understood meaning as the condition of being untouched by danger; not
exposed to danger; secure from danger, harm or loss.” Tex. W. Oaks Hosp., 371
S.W.3d at 184 (quotations omitted). “Logically, the inclusion of safety expanded the
scope of the statute beyond what it would be if it only covered medical and health care.”
Id. Because “the safety component of [a health care liability claim] need not be directly
related to the provision of health care,” it “could therefore encompass premises liability
claims.” Id. at 186 (quotations omitted).
In Texas West Oaks, the Texas Supreme Court adopted the statutory
construction that was previously advanced by Chief Justice Wallace Jefferson in his
concurring and dissenting opinion in St. Luke’s, where he wrote that “the Legislature’s
definition of ‘safety’ forbids a premises liability claim against a health care provider,
even if the claim is based on structural defect, criminal assault, or careless act.” See
Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 674 (Tex. 2010) (Jefferson, C.J.,
concurring, dissenting). As Justice Guzman noted in her concurring and dissenting
opinion in St. Luke’s, “it is unclear what acts of ordinary negligence occurring in a health
care setting, if any, might still fall within the scope of premises liability rather than health
care liability.” See id. at 675 (Guzman, J., concurring, dissenting). Under Chief Justice
Jefferson’s statutory interpretation, which the Texas Supreme Court adopted in Texas
3 West Oaks, even “classic premises liability claims” are covered by the TMLA. See
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 858 (Tex. 2005) (Jefferson,
C.J., concurring, dissenting).1
In sum, under Texas West Oaks, “the term ‘safety’ . . . is so broad that almost
any claim against a health care provider can now be deemed a health care liability
claim.” Tex. W. Oaks, 371 S.W.3d at 198 (Lehrmann, J., dissenting) (quotations
omitted). Thus, applying Texas West Oaks, the Fourteenth Court of Appeals recently
decided that a garden-variety, slip-and-fall claim by a non-patient against a hospital,
much like the claim in this case, was a health care liability claim subject to the TMLA
because “an allegation that the floors [we]re slippery [wa]s a ‘safety’-related claim.”
Ross v. St. Luke’s Episcopal Hosp., No. 14-12-00885-CV, 2013 Tex. App. LEXIS 2796,
at *3–4 (Tex. App.—Houston [14th Dist.] Mar. 19, 2013, no pet. h.) (mem. op.) (“Ross
likely never imagined that, under the Texas Supreme Court’s construction, the plain
language of the Texas Medical Liability Act would swallow her garden-variety slip and
fall case. But it has.”). The Dallas Court of Appeals has also issued a similar decision.
See Sherman v. HealthSouth Specialty Hosp., Inc., No. 05-11-01039-CV, 2013 Tex.
App. LEXIS 4208, at *13 (Tex. App.—Dallas April 2, 2013, no pet. h.) (“When a plaintiff
claims a health care provider was negligent in failing to properly care for her safety,
1 Notably, the recent decisions by the Texas Supreme Court, including Texas West Oaks, prompted a response from the Texas Legislature. See Tex. H.B. 2644, 83d Leg., R.S. (2013). Among other things, House Bill 2644 would have amended the TMLA to clarify that the definition of a health care liability claim “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.” Id. Ultimately, House Bill 2644 was not enacted. Therefore, the statutory interpretation adopted by the Texas Supreme Court in Texas West Oaks remains the controlling legal standard for purposes of this case.
4 those claims are health care liability claims even if the alleged act or omission is not
directly related to the provision of health care.”).2
C. Discussion
In this case, appellee has alleged that the Hospital failed to provide “a safe
walking area,” “adequate safety measures,” “adequate safety procedures,” “adequate
safety training,” and “reasonable safeguards for safety and protection of all patrons.”
Appellee has further alleged that the Hospital “failed to keep the premises in a
reasonably safe condition” and that the condition of the Hospital’s premises was
“unreasonably dangerous” and “unsafe.” Applying the broad interpretation of the term
“safety” adopted in Texas West Oaks, appellee’s suit clearly alleges a departure from
accepted standards of “safety” and is therefore within the statutory definition of a health
care liability claim and subject to the provisions of the TMLA. See TEX. CIV. PRAC. &
REM. CODE ANN. § 74.001(a)(13); Tex. W. Oaks Hosp., 371 S.W.3d at 184. Therefore,
because appellee failed to serve an expert report within 120 days of filing suit as
required by the TMLA, see id. § 74.351(a), the trial court abused its discretion in
denying the Hospital’s motion to dismiss. Accordingly, the Hospital’s sole issue should
be sustained.
2 Until now, only the Texarkana Court of Appeals had attempted to abrogate or modify Texas West Oaks by holding that the TMLA requires that a “safety claim have at least an indirect relationship to health care.” Good Shepherd Med. Ctr. - Linden, Inc. v. Twilley, No. 06-12-00098-CV, 2013 Tex. App. LEXIS 2065, at *7 (Tex. App.—Texarkana Mar. 1, 2013, pet. filed). Today, this Court follows the Texarkana Court of Appeals. However, “[i]t is not the function of a court of appeals to abrogate or modify established precedent.” Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002). “That function lies solely with . . . [the Texas Supreme] Court.” Id. Accordingly, we cannot abrogate or modify Texas West Oaks. See Ross v. St. Luke’s Episcopal Hosp., No. 14-12-00885-CV, 2013 Tex. App. LEXIS 2796, at *4 (Tex. App.—Houston [14th Dist.] Mar. 19, 2013, no pet. h.) (mem. op.) (“Because the result in this case is absurd, Ross urges, this court should . . . disregard the Texas Supreme Court decision on point. We are without such authority.”).
5 II. CONCLUSION
For the reasons stated above, the trial court’s order should be reversed and the
case remanded to the trial court with instructions for the court to dismiss appellee’s
claims and to consider the Hospital’s request for attorney’s fees and court costs.
_______________________ NORA L. LONGORIA Justice
Delivered and filed the 1st day of August, 2013.