East Texas Medical Center Gilmer v. Birder Porter

Opinion

ACCEPTED 12-14-00220-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 10/2/2015 8:27:19 AM Pam Estes CLERK

DOCKET NUMBER I2.14.OO22OCV

IN THE COURT OF APPEALS FILED IN 12th FOR THE TWELFTH COURT OF APPEALS DISTRICT OFCOURT TEXASOF APPEALS TYLER, TEXAS AT TYLE& TEXAS 10/2/2015 8:27:19 AM PAM ESTES Clerk EAST TEXAS MEDICAL CENTER GILMER,

Appellant

VERSUS

BIRDER PORTER

Appellee

Appealed from the 115rH Judicial District Court of Upshur County, Texas.

APPELLEE'S SUPPLEMENTAL BRIEF ON APPLICATION OF ^RO,S^S V. ST. LUKE'S EPISCOPAL HOSPITAL

Respectfully Submitted by:

THE BERNOUD

By: Michael L. Bernoudy Texas Bar No. 2400 W. Grand A Marshall, TX75670 Telephone: (903) 935-4223 Fax: (903)935-4228 MLBj r@bernoudylawfirm.com www. bernoudylawfi rm.com ATTORNEY FOR APPELLEE TABLE OF CONTENTS 1. Table of Authorities .. 2' Summary of Argument .. 3' Argument 5' Conclusion and PraYer Certificates of Service and Compliance "' """ 6' TABLE OF AUTHORITIES

Page

Statutes

Texas Civil Practice and Remedies Code Section 7a.001(aX13) 3

Case law

Loaisiga v. Cerda, 379 S.W.3d248,257 (Tex.20l2) 4

Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d496 (Tex.2015) 3 SUMMARY OF ARGUMENT

Under Ross for a safety standards-based claim to be a Healthcare Liability Claim

there must be a substantive nexus between the safety standards allegedly violated and the

provision of healthcare. The Texas Supreme Court found in ^Ross that the

cleaning/mopping of floors did not have the necessary nexus to the provision of healthcare. Applying Ross the case at bar likewise would not be a Healthcare Liability

Claims.

2 ARGUMENT

APPELLEE'S CLAIMS ARE NOT HEALTHCAKE LIABILITY CLAIMS UNDER ROSS

By order dated August 6,2015 this Honorable Court ordered the parties to apply

Ross y. St. Luke's Episcopal Hosp.,462 S.W.3d496 (Tex.2015) to determine whether

this case would be a Healthcare Liability Claims as defined by Section 7a.001(a)(13) of

the Texas Civil Practice and Remedies Code. As explained hereafter, Ross makes it

clear that the case at bar is not a Healthcare Liability Claim.

The TMLA defines a health care liability claim as:

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.

rEx. CIV. PRAC. & REM. CODE $ 74.001(a)(13)

-Ross involved a slip and fall that occurred while the complaining party was

visiting a friend at the hospital. The floors were being cleaned and buffed at the time.

The complainant slipped and fell causing injury. The case at bar also involves a

complainant who was not a patient and slipped and fell on a wet floor.

In Ross, the hospital advanced trvo positions in support of the lower courts' rulings

and its assertion that Ross's claim is an HCLC. First, it addressed slip and fall claims

generally, and asserted that any slip and fall event within a hospital is directly related to

health care because it necessarily is related to the safety of patients. Second, it focused on

Ross's claim specifically and argued that her claim is related to health care because she

a J alleged the hospital breached standards applicable to maintaining a safe environment for

patients. The Texas Supreme Court disagreed with both positions.

As to the hospital's first contention, a safety standards-based claim does not come

within the TMLA's provisions just because the underlying occurence took place in a

healthcare facility, the claim is against a healthcare provider, or both. See Loaisiga v.

Cerda, 379 S.W.3 d 248, 257 (T ex. 2012).

As to the second contention, Ross alleged that the hospital failed to exercise

reasonable care in making the floor safe. The standard Ross said the hospital breached

regarding maintenance of its floor may also be the same standards many businesses

generally have for maintaining their floors. The hospital didn't claim, nor did the record

show, that the area where Ross fell was a patient care area or an area where patients

possibly would be in the course of the hospital's providing health care services to them.

Nor did the hospital reference support in the record for the position that the area had to

meet particular cleanliness or maintenance standards related to the provision of health

care or patient safety. Ross at503

The Court concluded that the safety standards referred to in the definition are

those that have a substantive relationship with the providing of medical or health care.

And if it were not so, the broad meaning of "safety" would afford defendant health care providers a special procedural advantage in the guise of requiring plaintiffs to file expert

reports in their suits regardless of whether their cause of action implicated the provision

of medical or healthcare. For a safety standards-based claim to be an HCLC there must

4 be a substantive nexus between the safety standards allegedly violated and the provision

of health care. -Rass at 504

Likewise, in the case at bar there is no substantive nexus between the absence of a

"wet floor" sign in the emergency room admittance desk and the providing of healthcare.

CONCLUSION/PRAYER

The facts in Ross are nearly identical to those in this case. This Court should rule

as did the Ross court. Appellee's claims in this maffer have no nexus to the rendering of

healthcare services and would not require an expert report as provided for in Tex. Civ.

Prac. & Rem.Code Chapter 74. Thejudgment of the trial court was coffect in its entirety

and should be AFFIRMED by this Honorable Court. CERTIFICATE OF SERVICE

I hereby certiff that a copy of the foregoing pleading was delivered via facsimile

at (214) 754-0ggg and regular mail to Russell G. Thornton on this Jg1/ day of

f L{. P^ ,201s'

CERTIFICATE OF COMPLIAI\iCE

Relying on the word count function in the word processing software used to

produce this document, I certifu that the number of words in this reply (excluding any

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the caseo statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of service,

certification, certificate of compliance appendix) is 1035.