Madhusudan Shah v. Sodexo Services of Texas Limited Partnership

Opinion

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 ___________________________

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

i NO. 01-15-00141-CV ___________________________ 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)

ii NO. 01-15-00141-CV ___________________________

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

iii NO. 01-15-00141-CV ___________________________

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

iv NO. 01-15-00141-CV ___________________________

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

v NO. 01-15-00141-CV ___________________________ 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

vi NO. 01-15-00141-CV ___________________________ 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

vii NO. 01-15-00141-CV ___________________________

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.

1 NO. 01-15-00141-CV ___________________________ 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.

2 NO. 01-15-00141-CV ___________________________

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)

3 NO. 01-15-00141-CV ___________________________

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.

4 NO. 01-15-00141-CV ___________________________ 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).

5 NO. 01-15-00141-CV ___________________________ 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.

6 NO. 01-15-00141-CV ___________________________ 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.

7 NO. 01-15-00141-CV ___________________________

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.

8 NO. 01-15-00141-CV ___________________________ 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

9 NO. 01-15-00141-CV ___________________________ 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

10 NO. 01-15-00141-CV ___________________________ 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

11 NO. 01-15-00141-CV ___________________________ 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.

12 NO. 01-15-00141-CV ___________________________ justice, the application of equitable estoppel mandates

the reversal of the trial court’s decision on Sodexo’s

Motion to Dismiss.

13 NO. 01-15-00141-CV ___________________________ 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).

14 NO. 01-15-00141-CV ___________________________ 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).

15 NO. 01-15-00141-CV ___________________________ 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.)

16 NO. 01-15-00141-CV ___________________________ 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.

17 NO. 01-15-00141-CV ___________________________ 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.

18 NO. 01-15-00141-CV ___________________________ 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.

19 NO. 01-15-00141-CV ___________________________ 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.

20 NO. 01-15-00141-CV ___________________________ 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 NO. 01-15-00141-CV ___________________________ 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.

22 NO. 01-15-00141-CV ___________________________ 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

23 NO. 01-15-00141-CV ___________________________ 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 ___________________________ 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 ___________________________ 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.

26 NO. 01-15-00141-CV ___________________________ 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 ___________________________ 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 ___________________________ 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 ___________________________ 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 ___________________________ 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 ___________________________ 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 ___________________________ 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 ___________________________ 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 ___________________________ 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.

35 NO. 01-15-00141-CV ___________________________ 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 ___________________________ 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 ___________________________ 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 ___________________________ 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 ___________________________ 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 ___________________________ 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.

41 NO. 01-15-00141-CV ___________________________ 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 ___________________________ 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.

43 NO. 01-15-00141-CV ___________________________ 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 ___________________________ 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

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.

45 NO. 01-15-00141-CV ___________________________ 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.

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

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 ___________________________

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.

http://www.statutes.legis.state.tx. us/Docs/CPlhtm/CP. 74.htm 4/27/2015 . 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;

http://www.statutes.legis.state.tx. us/Docs/CP/htm/CP. 74.htm 4/27/2015 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.

http://www.statutes.legis.state.tx.us/Docs/CP!htm/CP.74.htm 4/27/2015 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:

http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.74.htm 4/27/2015 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

http://www.statutes.legis.state.tx. us/Docs/CP!htm/CP. 74.htm 4/27/2015