ACCEPTED 01-15-00141-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 7/28/2015 6:09:55 PM CHRISTOPHER PRINE CLERK
No. 01-15-00141-CV
IN THE COURT OF APPEALS FILED IN 1st COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS AT HOUSTON 7/28/2015 6:09:55 PM _____________________________________ CHRISTOPHER A. PRINE Clerk MADHUSUDAN SHAH, Appellant,
v.
SODEXO SERVICES OF TEXAS, LIMITED PARTNERSHIP, Appellee. _____________________________________
On Appeal from the 55th Judicial District Court Harris County, Texas Trial Court Cause No. 2014-20678 ___________________________
FIRST AMENDED RESPONSE BRIEF OF APPELLEE SODEXO SERVICES OF TEXAS, LIMITED PARTNERSHIP ___________________________
ORAL ARGUMENT REQUESTED
Nelson D. Skyler Lead Counsel for Appellee COUNSEL FOR APPELLEE Texas Bar No. 00784982 SODEXO SERVICES OF TEXAS, Neal A. Hoffman LIMITED PARTNERSHIP Texas Bar No. 24069936 BROWN SIMS 1177 West Loop South, Tenth Floor Houston, Texas 77027-9007 (713) 629-1580 Phone (713) 629-5027 Fax nskyler@brownsims.com nhoffman@brownsims.com TABLE OF CONTENTS
INDEX OF AUTHORITIES.................................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ............................................ vii ISSUES PRESENTED........................................................................................... viii
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................3
ARGUMENT & AUTHORITIES .............................................................................5 I. Shah’s claims asserted against Sodexo are health care liability claims, as defined by Chapter 74 of the TEXAS CIVIL PRACTICES & REMEDIES CODE. ..........5
A. Shah is a claimant, Sodexo is a health care provider, and Shah’s claims address alleged departures from accepted standards of safety. ...............5 B. The Texas Supreme Court rejected an interpretation of Chapter 74 imposing a direct-relationship requirement on health care liability claims regarding breaches of safety standards. ..............................................................7
C. Decisions following Texas West Oaks Hospital imposed an indirect- relationship requirement for classifying safety-breach claims as health care liability claims regarding breaches of safety standards. .....................................8
D. The Texas Supreme Court adopted a substantive nexus requirement between safety standards and the provision of health care. ................................9
E. The Ross factors support classifying Shah’s lawsuit as a health care liability claim. ...................................................................................................11
F. Post Ross cases support the conclusion that Shah’s claim is a health care liability claim. ............................................................................................14
II. The trial court properly dismissed Shah’s claim for failure to serve a Chapter 74 expert report within the allotted time period. ....................................16
A. Shah failed to serve an expert report on Sodexo within 120 days of Sodexo’s Original Answer. ...............................................................................17
ii TABLE OF CONTENTS (con't.)
B. Shah waived any objection to Sodexo’s disclosures................................17
C. Sodexo is not obligated to disclose that it believes a case is a health care liability claim in order to seek dismissal under Section 74.351(a), and the Court did not abuse its discretion in granting Sodexo’s motion to dismiss......19
CONCLUSION & PRAYER ...................................................................................23
CERTIFICATE OF COMPLIANCE .......................................................................27
CERTIFICATE OF SERVICE ................................................................................27
iii INDEX OF AUTHORITIES
Cases Brazos Presbyterian Homes, Inc. v. Rodriguez, 14-14-00479-CV, 2015 WL 3424695 (Tex. App.—Houston [14th Dist.] May 28, 2015, no. pet. h.).....................................................................................15 Cage v. Methodist Hosp., 01-14-00341-CV, 2015 WL 4139322 (Tex. App.—Houston [1st Dist.] July 9, 2015, no. pet. h.) ...................................................................................9, 14 Chamie v. Mem’l Hermann Health Sys., 14-14-00213-CV, 2015 WL 4141106 (Tex. App.—Houston [14th Dist.] July 9, 2015, no. pet. h.) .......................................................................................14 Doctors Hosp. at Renaissance, Ltd. v. Mejia, No. 13–12–00602–CV, 2013 WL 4859592 (Tex.App.-Corpus Christi Aug.1, 2013, pet. filed) (mem.op.) .........................................................................9 Finlay v. Olive, 77 S.W.3d 520 (Tex.App.—Houston [1st Dist.] 2002, no pet.)...........................19 Good Shepherd Medical Center–Linden, Inc. v. Twilley, 422 S.W.3d 782 (Tex.App.-Texarkana 2013, pet. denied) ....................................9 Herrera v. Seton Nw. Hosp., 212 S.W.3d 452 (Tex.App.-Austin 2006, no pet.) ...............................................20 Lake Travis Indep. Sch. Dist. v. Lovelace, 243 S.W.3d 244 (Tex. App.—Austin 2007, no pet.)............................................20 Lance Thai Tran, DDS, PA v. Chavez, 14-14-00318-CV, 2015 WL 2342564 (Tex.App.—Houston [14th Dist.] May 14, 2015, no pet. h. .......................................................................................15 Lezlea Ross v. St. Luke’s Episcopal Hosp., 13-0439, 2015 WL 2009744 (Tex. May 1, 2015) ........................................ passim Lout v. Methodist Hosp., 14-04-00302-CV, 2015 WL 3878135 (Tex.App.—Houston [14th Dist.] June 23, 2015, no pet. h.)......................................................................................15 Low v. Henry, 221 S.W.3d 609 (Tex. 2007) ................................................................................20 R.M. Dudley Constr. Co. v. Dawson, 258 S.W.3d 694 (Tex.App.—Waco 2008, pet. denied) .......................................18 iv INDEX OF AUTHORITIES (con’t.)
Remington Arms Co. v. Caldwell, 850 S.W.2d 167 (Tex. 1993) ................................................................................19 Ross v. St. Luke’s Episcopal Hosp., 14-12-00885-CV, 2013 WL 1136613 (Tex.App.—Houston [14th Dist.] Mar. 19, 2013) ........................................................................................................8 Texas West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012) ......................................................................... 5, 7, 8 Valley Reg’l Med. Ctr. v. Camacho, 2015 Tex. App. LEXIS 4967 (Tex. App. Corpus Christi May 14, 2015) ..... 15, 16 Williams v. Riverside Gen. Hosp., Inc., 01-13-00335-CV, 2014 WL 4259889 (Tex. App.—Houston [1st Dist.] Aug. 28, 2014, no pet.) ...........................................................................................9
Statutes TEX. CIV. PRAC. & REM. CODE § 74.001..................................................................12 TEX. CIV. PRAC. & REM. CODE § 74.001(a)(12)(B)(ii) ..............................................6 TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2) ......................................................5, 6 Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) .......................................... vii, 5 Tex. Civ. Prac. & Rem. Code Ann. § 74.351 ..........................................................17 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) .............................................. viii, 17 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)......................................................17
Rules TEX. CIV. PRAC. & REM. CODE § 74.351(a) .............................................................22 Tex. Civ. Prac. & Rem. Code § 74.351(b)...............................................................22 TEX. CIV. PRAC. & REM. CODE §§ 74.001................................................................21 TEX. R. CIV. P. 194.2(c) .................................................................................... 20, 21 Tex. R. Civ. P. 194.2(c). cmt. 2 ...............................................................................21 TEX. R. CIV. P. 215...................................................................................................18 TEX. R. CIV. P. 215.2................................................................................................18
v INDEX OF AUTHORITIES (con’t.)
Tex. R. Civ. P. 215.2(b) ...........................................................................................18 TEX. R. CIV. P. 215.3 ................................................................................................18
Other Authorities Black’s Law Dictionary 1246 (8th ed. 2004) ...........................................................12 MERIAM-WEBSTER.COM, http://meriam-webster.com/dictionary/profession ..........12 MERIAM-WEBSTER.COM, http://www.merriam-webster.com/dictionary/ professional .................................................................................................... 12, 13 MERIAM-WEBSTER.COM, http://www.merriam-webster.com/dictionary/duty ........13
vi STATEMENT REGARDING ORAL ARGUMENT
Oral argument may be appropriate in this case. After this appeal was
initiated, the Texas Supreme Court decided Lezlea Ross v. St. Luke’s Episcopal
Hosp., 13-0439, 2015 WL 2009744 (Tex. May 1, 2015) . Ross set forth a new
framework for analyzing whether allegations constitute a “health care liability
claim” arising under the “safety” prong of Section 74.001(a)(13) of the TEXAS
CIVIL PRACTICE & REMEDIES CODE. Because this case may be one of the first
opportunities for appellate courts to consider and apply the Texas Supreme Court’s
opinion in Ross, the Court may benefit from oral argument.
vii ISSUES PRESENTED
1. Whether Shah’s cause of action should be classified as a safety-based health care liability claim?
2. Whether Shah waived any complaint regarding the substance of Sodexo’s disclosures by failing to pursue or obtain a ruling on any motion for sanctions?
3. Whether the trial court abused its discretion in declining to find that Sodexo’s disclosure precluded Sodexo from invoking Section 74.351(a)1’s expert-report dismissal provision?
1 TEX. CIV. PRAC. & REM. CODE § 74.351(a). viii STATEMENT OF FACTS
Beginning in March of 2003, Appellee Sodexo Services of Texas, L.P.
(hereinafter “Sodexo”) entered into a contract with the Harris County Hospital
District (“Hospital District”) to provide for management, personnel and operation
of food and nutrition services for Hospital District facilities. C.R. at 177; see also
id. at 174–176. Among its obligations, Sodexo agreed to operate and manage the
Hospital District’s food services program and Food and Nutrition Services
Department at various Hospital District facilities. Id. at 182. One of the facilities
that Sodexo serviced was Ben Taub Hospital (“Ben Taub”). See id.
One of the tasks Sodexo performed was managing and operating Nutrition
Services. See id. at 187 (“Sodexo shall manage and operate Nutrition Services for
Hospital District… .”). As part of its Nutrition Services role, Sodexo was tasked
with making meals available, recommending menus, and recommending portion
sizes. See id. at 187 (§E (1.1)). Sodexo was also responsible for properly labeling
prescribed nourishments and supplements for patient identification, and delivering
that food and drink to patient areas. See id. (§E (1.2.1).
On the date of the incident, Shah was a cancer treatment patient at Ben
Taub. See Appellant Brief at 4.2 At the time of the incident, Shah was attempting to
obtain a cup of coffee from a vending machine. Id. at 7. As he was doing so, a
2 Page Citations to Appellant’s Brief are in reference to the page number inserted at the bottom center of each page. 1 Sodexo employee was in the process of providing Nutrition Services at Ben Taub.
Id. at 7; id. at 174. Specifically, the employee was transporting beverages to a
patient area using a cart. Id. at 174; see also id. at 187. Shah alleges that the
beverage cart struck him, causing him to suffer severe injuries. Id. at 7.
Subsequently, Shah filed a negligence lawsuit against Sodexo. See id. at 4–
11. Sodexo filed its Original Answer on May 23, 2014. See id. at 18–20. Shah did
not file an expert report within 120 days after Sodexo filed its Original Answer.
See id. at 105–106, 163. Instead, Shah served an expert report on December 9,
2014. See id. at 81–90. Sodexo timely objected to Shah’s expert report, see id. at
104–157, and moved to dismissed Shah’s lawsuit. See id. at 158–281. The district
court granted Sodexo’s motion. See id. at 413.
2 SUMMARY OF THE ARGUMENT
Shah’s claim against Sodexo is a safety standards-based health care liability
claim. Sodexo and its staff were tasked with operating and managing the food
services program at Ben Taub and with providing nutritional services at the
hospital. In this capacity, Sodexo made meals available to patients, labeled
prescribed nourishment and supplements (including beverages) for patient
identification, and delivered those nourishments to patient areas. A Sodexo
employee was in the process of transporting beverages using a cart when the
incident occurred.
The breaches of safety alleged against Sodexo are sufficiently related to the
provision healthcare, such that this case is a health care liability claim. Texas law
has never required a direct relationship between healthcare and breaches of safety.
The Texas Supreme Court rejected any such direct-relationship requirement, and
subsequent decisions found only that an indirect relationship between safety and
healthcare was necessary to classify a claim as a health care liability claim. The
Texas Supreme Court’s decision in Ross also did not impose a direct-relationship
requirement on potential safety-based health care liability claims. Instead, the
safety standard must only have a substantive relationship/nexus with the provision
of health care. Sodexo’s conduct and the alleged safety departures at issue have
3 such a substantive relationship. Thus, the trial court’s decision granting summary
judgment in Sodexo’s favor should be affirmed.
Next, Shah asks the Court to excuse his failure to timely file an expert
report, arguing that Sodexo should be estopped from seeking dismissal. The reality
is that if Shah faulted Sodexo for its discovery responses, Shah was obligated to
pursue a motion for sanction. Shah failed to move for sanctions and failed to obtain
a ruling on any sanctions motion. Thus, the Court should find that Shah has waived
the argument on appeal.
Moreover, even if the Court considered Shah’s equitable estoppel claim, the
argument is without merit. Shah must demonstrate that the trial court abused its
discretion by rejecting Shah’s equitable estoppel evidentiary challenge. However,
Shah fails to identify any legal authority to support his position that equitable
estoppel applies or that Sodexo should have been precluded from seeking dismissal
under TEX. CIV. PRAC. & REM. CODE § 74.351. Chapter 74’s expert report
requirement is not an affirmative defense; defendants are not obligated to plead or
disclose a belief that the statute applies in order to invoke its authority. The statute
would not even apply as a defense until after the deadline to provide a report had
already expired. The trial court’s decision to deny Shah’s equitable estoppel claim
was neither arbitrary nor unreasonable and should be affirmed.
4 ARGUMENT & AUTHORITIES
I. Shah’s claims asserted against Sodexo are health care liability claims, as defined by Chapter 74 of the TEXAS CIVIL PRACTICES & REMEDIES CODE.
A health care liability claim is defined as:
A cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.
See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13).
The Texas Supreme Court has held that whether particular claims are
covered by Chapter 74 of the TEXAS CIVIL PRACTICES & REMEDIES CODE, also
known as the Texas Medical Liability Act, is a matter of statutory construction
which is a legal question reviewed de novo. See Texas West Oaks Hosp., L.P. v.
Williams, 371 S.W.3d 171, 177 (Tex. 2012). The reviewing court’s aim is to
determine and give effect to the legislature’s intent. See id.
A. Shah is a claimant, Sodexo is a health care provider, and Shah’s claims address alleged departures from accepted standards of safety.
In this case, Shah has not appealed the trial court’s conclusion that Shah
would constitute a claimant as defined by TEX. CIV. PRAC. & REM. CODE §
74.001(a)(2). See Appellant’s 1st Am. Brief. The parties agree that Shah would be
a “claimant” if his cause of action is a health care liability claim. The Court should
also agree. A “claimant” is a person seeking recovery of damages in a health care
5 liability claim. See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2). Shah is making a
claim for recovery of damages. See C.R. 4–11. Thus, if his case is a health care
liability claim, then Shah is a “claimant.”
Similarly, Shah has not appealed the trial court’s conclusion that Sodexo is a
health care provider under TEX. CIV. PRAC. & REM. CODE § 74.001(a)(12)(B)(ii).
See Appellant’s 1st Am. Brief. The parties agree that Sodexo is a “health care
provider” as defined by that statute. The Court should also agree. A “health care
provider” is defined as “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.” See TEX. CIV. PRAC. & REM. CODE §
74.001(a)(12)(B)(ii) (emphasis added). At the time of the incident, Sodexo was
under contract with the Hospital District to provide services to Ben Taub. See, e.g.,
C.R. at 174–177, 182, 187. As such, Sodexo meets Chapter 74’s definition of a
health care provider.
Additionally, Shah has not appealed the trial court’s conclusion that Shah’s
claims generally addressed alleged departures from standards of safety. See
Appellant’s 1st Am. Brief. Instead, Shah argues that the safety departures at issue
in his lawsuit are simply unrelated to healthcare, such that they do not fall within
the scope of Chapter 74. See id. Shah’s lawsuit faults Sodexo for not operating the
cart “with reasonable care … to promote the safety and welfare” of Shah. See C.R.
6 at 8. He then proceeds to allege various acts or omissions Sodexo allegedly
committed that were inconsistent with Sodexo’s duty to promote Shah’s safety and
welfare. See id. Finally, Shah alleges that these safety violations proximately
caused his injuries. See id. Consequently, the Court should find that Shah’s
allegations implicate alleged departures from safety standards by Sodexo and
Sodexo’s employees, and that these departures are the alleged proximate cause of
Shah’s injuries.
B. The Texas Supreme Court rejected an interpretation of Chapter 74 imposing a direct-relationship requirement on health care liability claims regarding breaches of safety standards.
Chapter 74 defines a ‘health care liability claim’ (“HCLC”) as:
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.
See id. at § 74.001(13).
In Texas West Oaks Hospital, L.P. v. Williams, the Texas Supreme Court
considered the above definition in the context of a claim that alleged breaches of
duty related to safety. See Tex. W. Oaks Hosp., L.P., v. Williams, 371 S.W.3d 171
(Tex. 2012). As the Williams court discussed, the word ‘safety’ is not defined by
Chapter 74, so courts apply it using its commonly understood meaning as “the
condition of being ‘untouched by danger; not exposed to danger; secure from
7 danger, harm or loss.’” See 371 S.W.3d at 184. Furthermore, the Texas Supreme
Court concluded that the phrase “directly related to health care” appearing at the
end of the definition of a health care liability claim was added to modify only the
phrase “professional or administrative services”—not the term ‘safety.’ See id. at
184. Instead, the Texas West Oaks’ Court clearly stated “ that the safety component
of [health care liability claims] need not be directly related to the provision of
health care.” See id. at 186 (emphasis added).
C. Decisions following Texas West Oaks Hospital imposed an indirect- relationship requirement for classifying safety-breach claims as health care liability claims regarding breaches of safety standards.
Following the Texas Supreme Court’s decision in Texas West Oaks
Hospital, appellate courts diverged on the standard used to determine if a claim
alleging departures from safety standards classified as a health care liability claim.
The minority view, exemplified by Ross v. St. Luke’s Episcopal Hosp., 14-12-
00885-CV, 2013 WL 1136613, at *1 (Tex.App.—Houston [14th Dist.] Mar. 19,
2013), concluded that no relationship between healthcare and safety was required
under Chapter 74.
The majority view rejected this approach. Instead, the majority concluded
that while a direct relationship was not required between safety standards and
healthcare, something more was required to transform a claim involving safety into
a health care liability claim. See, e.g., Williams v. Riverside Gen. Hosp., Inc., 01-
8 13-00335-CV, 2014 WL 4259889, at *1 (Tex. App.—Houston [1st Dist.] Aug. 28,
2014, no pet.) (some “indirect, reasonable relationship” required)3; Doctors Hosp.
at Renaissance, Ltd. v. Mejia, No. 13–12–00602–CV, 2013 WL 4859592, at *2
(Tex.App.-Corpus Christi Aug.1, 2013, pet. filed) (mem.op.) (a claim must be
indirectly related to health care); Good Shepherd Medical Center–Linden, Inc. v.
Twilley, 422 S.W.3d 782, 785 (Tex.App.-Texarkana 2013, pet. denied) (some
indirect link required). The cases comprising the majority view have never held,
however, that claims involving departures from standards of safety must be
directly related to healthcare in order to classify as health care liability claims.
D. The Texas Supreme Court adopted a substantive nexus requirement between safety standards and the provision of health care.
The Texas Supreme Court recently considered the merits of the majority and
minority approaches to classifying safety-standard health care liability claims. See
Ross v. St. Luke’s Episcopal Hosp., 13-0439, 2015 WL 2009744, at *1 (Tex. May
1, 2015). The court concluded that “there must be a substantive nexus between the
safety standards allegedly violated and the provision of health care.” Id. The nexus
must also be more than a “but for” relationship, such as the fact that the plaintiff
would not have been injured but for being in a hospital. See id. “The pivotal issue
3 In discussing Williams, the First Court of Appeals has also characterized its approach as requiring some reasonable relationship between the claim and the provision of health care. See, e.g., Cage v. Methodist Hosp., 01-14-00341-CV, 2015 WL 4139322, at *4 (Tex. App.—Houston [1st Dist.] July 9, 2015, no. pet. h.). 9 in a safety standards-based claim is whether the standards on which the claim is
based implicate the defendant’s duties as a health care provider, including its duties
to provide for patient safety.” Id.
The court identified seven non-exclusive considerations that could be
analyzed to determine whether a claim is substantively related to the defendant’s
providing of medical or health care. See id. Those factors are:
“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 patient might be during the time they were receiving care, so that the obligations of the provider to protect persons who require special, medical care was implicated;
4. At the time of the injury was the claimant in the process of seeking or receiving health care;
5. At the time of the injury was the claimant providing or assisting in providing health care;
6. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider;
7. If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; or
8. 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 set for health care providers by governmental or accrediting agencies?”
10 See id. In a concurring opinion, Justice Lehrmann, joined by Justice Devine,
emphasized the significance of the third and fifth factors when analyzing potential
safety standards-based health care liability claims. See id. (Lehrmann, J.
concurring).
E. The Ross factors support classifying Shah’s lawsuit as a health care liability claim.
An evaluation of the seven factors identified by the Ross court points in
favor of classifying Shah’s lawsuit as a health care liability claim.
The first factor points in Sodexo’s favor. The allegedly negligent acts
occurred in the course of Sodexo performing tasks for the benefit of patients.
Specifically, Sodexo was in the process of transporting beverages to a patient area
as part of its role managing and operating food and nutrition services. See C.R. at
187. The purpose behind performing food and nutrition services is the protection of
patients from harm. Providing patients with food and beverages, including those
prescribed by physicians, is a part of the health care process. A patient deprived of
food and beverages undoubtedly suffers harm, as would a patient that does not get
his or her required food and beverages at the necessary time. Factor one supports
this case being considered a health care liability claim.
The second and third factors also points in Sodexo’s favor. At the time of the
injury, Shah was a patient at Ben Taub; he acknowledges that he was receiving
treatment at the hospital when he was injured. See Appellant’s 1st Am. Brief at 4. 11 Similarly, Shah’s injuries occurred in a location at Ben Taub where patients might
be located during the time they were receiving care. Shah, a patient, was in a
hallway getting a cup of coffee during the course of his stay. See C.R. at 7. At that
time, a Sodexo employee was in the process of delivering a beverage cart to a
patient area. See id. at 174, 177, 182, 187. Given the presence of patients like Shah
in an area located on the way to a patient area for beverage delivery, Sodexo’s
obligation to protect patients was implicated. Factor two and factor three supports
Factor four points in Shah’s favor. Shah was neither providing nor assisting
in providing health care at the time of his alleged injury; instead, he was located in
a hallway after getting coffee. See id. at 7.
In regard to factor five, the term “professional duties” is undefined in Ross,
and does not appear in Chapter 74’s definitions. See 13-0439, 2015 WL 2009744,
at *3–6 (Tex. May 1, 2015); TEX. CIV. PRAC. & REM. CODE § 74.001. As an
adjective, “professional” is defined as being “of, relating to, or characteristic of a
profession.” See Professional Definition, MERIAM-WEBSTER.COM,
http://www.merriam-webster.com/dictionary/ professional (last visited May 28,
2015). A “profession” is defined as a “type of job that requires special education,
training, or skill.” Black’s Law Dictionary 1246 (8th ed. 2004). See Profession
Definition, MERIAM-WEBSTER.COM, http://meriam-webster.com/dictionary/
12 profession (last visited May 28, 2015). Finally, in this context “duty” would
reference something done as part of a job; it can be defined as “obligatory tasks,
conduct, service, or functions that arise from one’s position.” See Duty Definition,
MERIAM-WEBSTER.COM, http://www.merriam-webster.com/dictionary/duty (last
visited May 28, 2015). See, e.g., C.R. at 174, 177, 182, 187. A duty to deliver food
and beverages was owed by Sodexo, a health care provider. And certainly that duty
is related to and arises out of a profession: the provision of health care to patients.
Providing food and drink to patient areas, including food and drink prescribed by
doctors, is a part of that process. Factor five should lean in Sodexo’s favor.
Factor six also points in Sodexo’s favor. An instrumentality was involved in
the alleged negligence, namely, a cart. See C.R. at 7. The cart contained beverages
being delivered to a patient area as part of Sodexo’s nutrition services role. See id.
at 174, 177, 182, 187. The cart was an instrumentality directly involved in
Sodexo’s health care role. The provision of patient food and beverages is a part of
the patient’s health care process. Consequently, the cart used to transport that food
and those beverages to patient areas for distribution was used in providing health
care. Factor six supports this case being considered a health care liability claim.
Factor seven points in Shah’s favor. Sodexo was not taking or failing to take
any action necessary to comply with safety-related requirements set by any
governmental or accrediting agency.
13 Based on the facts of this case, five factors lean in Sodexo’s favor. Two
factors lean in Shah’s favor. As such, the Court should conclude that Shah’s cause
of action is a health care liability claim.
F. Post Ross cases support the conclusion that Shah’s claim is a health care liability claim.
Shah also argues that cases decided following the Texas Supreme Court’s
Ross decision demonstrate that this case is not a health care liability claim. See
Appellee Brief at 33–35. Sodexo respectfully disagrees.
Shah identified four cases that address the new Ross standards, See id. at 33
n.49–n.52; Sodexo is also aware of two additional claims that were recently
decided based upon Ross. See Cage v. Methodist Hosp., 01-14-00341-CV, 2015
WL 4139322 (Tex. App.—Houston [1st Dist.] July 9, 2015, no. pet. h.); Chamie v.
Mem’l Hermann Health Sys., 14-14-00213-CV, 2015 WL 4141106 (Tex. App.—
Houston [14th Dist.] July 9, 2015, no. pet. h.). These claims are easily
distinguishable from the claim pending before the Court.
First, two of the cases referenced by Shah, as well as the two additional
claims found by Sodexo, deal with garden variety slip-and-fall cases, almost
identical to the situation resolved by the Texas Supreme Court in Ross. See Cage,
01-14-00341-CV, 2015 WL 4139322, at *6 (slip and fall by a hospital visitor on a
wet floor in the lobby); Chamie, 14-14-00213-CV, 2015 WL 4141106, at *4 (slip
and fall by nursing home visit on wet floor); Lout v. Methodist Hosp., 14-04- 14 00302-CV, 2015 WL 3878135, at *3 (Tex.App.—Houston [14th Dist.] June 23,
2015, no pet. h.) (slip and fall by hospital visit on wet floor); Lance Thai Tran,
DDS, PA v. Chavez, 14-14-00318-CV, 2015 WL 2342564, at *1, *3 (Tex.App.—
Houston [14th Dist.] May 14, 2015, no pet. h.) (slip and fall by dentist employee
on wet floor in break room). These very clearly no longer constitute health care
liability claims. None of the cases even involved hospital/facility patients. See id.
In Brazos Presbyterian, a Sodexo employee performing custodian duties in a
nursing home was injured when an elevator dropped suddenly. Brazos
Presbyterian Homes, Inc. v. Rodriguez, 14-14-00479-CV, 2015 WL 3424695, at
*1 (Tex. App.—Houston [14th Dist.] May 28, 2015, no. pet. h.). The employee
was not a patient, the elevator was not in a patient area, and the facility did not
claim that the elevator had any purpose related to protecting patients or to patients
in general. See id. at *4. Instead, the nursing home argued only that the case was a
health care liability claim because the facility had a duty by law to provide a safe
environment generally. See id. at 3–4.
Finally, in Camacho, a visitor to a medical center was injured when she was
struck by automatic sliding doors. Valley Reg’l Med. Ctr. v. Camacho, 2015 Tex.
App. LEXIS 4967, at *3 (Tex. App. Corpus Christi May 14, 2015). Again, the
victim was not a patient. See id. The court noted that while the injury would relate
15 to something with the purpose of protecting patients, none of the other Ross factors
were met in the context of Camacho’s incident. See id. at *10–*11.
Here, however, circumstances are different. As discussed in subpart 4,
immediately preceding this section, Shah was clearly a patient at the hospital at the
time of his incident. See, e.g., Appellant’s 1st Am. Brief at 4; C.R. at 4. Shah was
also in a location at the hospital where patients might be located during the time
they were receiving care. See C.R. at 7; see also Appellant’s 1s Am. Brief at 23–
24.4 Similarly, Sodexo was engaged in activity with purpose of protecting patients
from harm, through its transportation of beverages to a patient area. See C.R. at
187.5 Sodexo also believes that factors five and six, discussed above in subpart 4,
support Sodexo, and distinguish this matter from a garden variety slip-and-fall case
or an incident involving an elevator injury to a custodian in a non-patient area.
II. The trial court properly dismissed Shah’s claim for failure to serve a Chapter 74 expert report within the allotted time period.
Shah’s claims against Sodexo were properly dismissed when Shah failed to
timely serve an expert report on Sodexo. Chapter 74 is unequivocal with regard to
4 At one instance, Shah’s brief claims that there is no difference between operation of an elevator in a nursing home and using a beverage cart in a hospital lobby. See Appellant’s 1st Am. Brief at 34–35. Shah’s example should not be construed as a claim that his incident actually occurred in the Ben Taub lobby, as Shah has never asserted such a claim nor identified any record evidence supporting such a contention. He in fact concedes that he was “in a ‘place where patients might be during the time they were receiving care’ … .” See Appellant’s 1st Am. Brief at 23–24. 5 By way of example, the Camacho court found that having automatic doors was arguably for the purpose of protecting patients because it could protect mothers and newborns from criminal misconduct. See 2015 Tex. App. LEXIS 4967, at *10.
16 its expert report requirement. See generally TEX. CIV. PRAC. & REM. CODE §
74.351. A claimant is required to serve an expert report on all health care providers
against whom a health care liability claim is asserted not later than the 120th day
after the answer is filed. See TEX. CIV. PRAC. & REM. CODE § 74.351(a). Should the
claimant fail to uphold this obligation the trial court “shall” enter an order that
dismisses the claims with prejudice. See TEX. CIV. PRAC. & REM. CODE §
74.351(b). The statute’s language makes clear this is not a discretionary decision.
A. Shah failed to serve an expert report on Sodexo within 120 days of Sodexo’s Original Answer.
Here, Sodexo filed its Original Answer on May 23, 2014. See C.R. at 18–20.
Under Chapter 74’s requirements, Shah’s deadline to serve Sodexo with an expert
report was September 20, 2014. See TEX. CIV. PRAC. & REM. CODE § 74.351(a).
Shah did not serve Sodexo with an expert report by that date. See C.R. 127–136.
Instead, Shah served a report on December 9, 2014, See id. Sodexo objected to the
report on December 19, 2014, and moved to dismiss the case that same day. See
C.R. 104–281. Consequently, the record conclusively establishes that Shah failed
to comply with Chapter 74’s expert report requirement, and that Sodexo timely and
properly invoked Chapter 74 to seek dismissal.
B. Shah waived any objection to Sodexo’s disclosures.
As part of his complaint, Shah appears to argue that Sodexo should have
been barred from introducing evidence on Chapter 74 or the expert report 17 requirement. See Appellant Brief at 44–45. In essence, Shah is arguing that Sodexo
should have been sanctioned for not disclosing Chapter 74’s application, and that
the sanction penalty should have been Sodexo’s preclusion from seeking dismissal.
Such penalties would arise under TEX. R. CIV. P. 215. However, in addition to
Sodexo not having engaged in sanctionable conduct, Shah has entirely waived this
argument.
If Shah felt that Sodexo’s discovery disclosures were improper, Rule 215
would provide him with his desired remedy. See, e.g., TEX. R. CIV. P. 215.3; TEX.
R. CIV. P. 215.2. However, to seek such a remedy, Shah was obligated to file a
motion for sanctions and explain why the sanctions would be “just.” See TEX. R.
CIV. P. 215.2(b). Moreover, Shah would have been obligated to provide Sodexo
with notice of any sanction motion. See id. And Shah would have been required to
hold a hearing on any sanction motion. See id.; see also R.M. Dudley Constr. Co. v.
Dawson, 258 S.W.3d 694, 709–10 (Tex.App.—Waco 2008, pet. denied). Shah did
none of these things6, nor does he argue that he did any of those things.
For a party to be entitled to sanctions based on pretrial conduct, such as
alleged discovery violations, that party must secure a pretrial hearing and ruling on
that conduct, or it waives any claim for sanctions based on that conduct. Remington
6 Shah did file a motion to compel regarding interrogatories and requests for production, see C.R. at 29–69, however, the motion did not address disclosures, was not ever set for a hearing, and was never ruled upon. 18 Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993); Finlay v. Olive, 77
S.W.3d 520, 526 (Tex.App.—Houston [1st Dist.] 2002, no pet.). Shah was aware
that Sodexo was contending that this case was a health care liability claim no later
than October 27, 2014. See C.R. 81–82; see also id. at 40–63. Sodexo did not file
its motion to dismiss until December 19, 2014. See id. at 104, 158. The trial court
did not dismiss the case until January 16, 2015. See id. at 413. Shah had more than
enough time to move for sanctions if he felt such were warranted. Because Shah
failed to move for sanctions and failed to obtain any order on sanctions related to
Sodexo’s disclosures, Shah has waived this issue on appeal.
C. Sodexo is not obligated to disclose that it believes a case is a health care liability claim in order to seek dismissal under Section 74.351(a), and the Court did not abuse its discretion in granting Sodexo’s motion to dismiss.
Because Shah knows he has waived any issue of sanctions, he attempts to
reclassify his request by titling it as one for “equitable estoppel.” See Appellant’s
Brief at 43–48. Noticeably, Shah fails to identify any authority that such an
equitable estoppel principle exists in this context. See id. Shah does not identify a
single case that applied equitable estoppel to Chapter 74’s expert report
requirement or to general disclosures. Nor does Shah identify any standard of
review that would apply to an equitable estoppel argument in this context. The
reality is that Shah is attempting to raise a motion for sanctions for the first time on
appeal, and the Court should reject Shah’s endeavor. 19 However, assuming arguendo that the Court considers Shah’s request,
Shah’s claim should be rejected. As with the denial of sanctions, Sodexo contends
that any denial of an equitable estoppel claim should be reviewed for abuse of
discretion. See Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007) (standard of
review for grant or denial of sanctions). In matters committed to a district court’s
discretion, the test is whether the ruling was unreasonable or arbitrary or whether
the court acted without reference to any guiding rules or principles. Herrera v.
Seton Nw. Hosp., 212 S.W.3d 452, 462 (Tex.App.-Austin 2006, no pet.). In
deciding whether a denial of sanctions constitutes an abuse of discretion, courts
examine the entire record, including the findings of fact and conclusions of law,
review the conflicting evidence in the light most favorable to the trial court’s ruling
and drawing all reasonable inferences in favor of the court’s judgment. Lake Travis
Indep. Sch. Dist. v. Lovelace, 243 S.W.3d 244, 249-50 (Tex. App.—Austin 2007,
no pet.). The same approach should apply here.
Shah argues that Sodexo should be equitably estopped from invoking
Chapter 74 to dismiss Shah’s claims. See Appellant’s Brief at 43–48. Specifically,
Shah faults Sodexo for its disclosure response regarding TEX. R. CIV. P. 194.2(c).
See id. Shah incorrectly believes that this section required Sodexo to disclose that
the case was a health care liability claim in order to invoke Chapter 74’s expert
report dismissal standard.
20 Rule 194.2(c) requires a responding party to state “the legal theories and, in
general, the factual bases of the responding party’s claims or defenses.” TEX. R.
CIV. P. 194.2(c). The rule’s comments provide an example scenario:
Rule 194.2(c) and (d) permit a party further inquiry into another’s legal theories and factual claims than is often provided in notice pleadings. So-called “contention interrogatories” are used for the same purpose. Such interrogatories are not properly used to require a party to marshal evidence or brief legal issues. Paragraphs (c) and (d) are intended to require disclosure of a party’s basic assertions, whether in prosecution of claims or defense. Thus, for example, a plaintiff would be required to disclose that he or she claimed damages suffered in a car wreck caused by defendant’s negligence in speeding … . In the same example, defendant would be required to disclose his or her denial of the speeding allegation … .
See id. cmt. 2.
Here, Shah claimed that Sodexo was negligent because one of Sodexo’s
employees struck Shah with a cart while transporting beverages. See C.R. at 7–8.
In response to Shah’s disclosure requests, Sodexo noted that it generally denied
each and every allegation Shah made, denied committing any wrongdoing, and
faulted Shah for comparative negligence. See id. at 316. This disclosure was
perfectly appropriate.
Chapter 74 and its expert report requirement are not affirmative defenses
that a defendant is required to plead in order to invoke. See TEX. CIV. PRAC. &
REM. CODE §§ 74.001 et seq. Similarly, none of the language in Chapter 74
imposes any pleading or disclosure obligation onto defendants. See id. And Shah
21 does not argue here that Sodexo was required to plead Chapter 74 as an affirmative
defense or that the statute itself mandated disclosure. See Appellant’s Brief. That is
because Chapter 74 is not a legal theory of Sodexo’s defense; it is a procedural
requirement imposed on a party bringing a health care liability claim in order to
ensure that the claim has sufficient grounds to remain before the trial court. Stated
otherwise, the fact that the case was a health care liability claim was not a defense
to Shah’s action; the defenses were that Sodexo denied committing any negligent
acts or omissions and faulted Shah for the incident.
Furthermore, Shah’s theory makes no practical sense given the basis for
dismissal. The provision Sodexo asserted for dismissal did not even apply until
September 20, 2014. See TEX. CIV. PRAC. & REM. CODE § 74.351(a). Sodexo
would have no reason (or good faith basis) to assert that Shah’s claims were barred
due to his failure to timely file an expert report until after Shah’s deadline to file an
expert report came and went. The ability to seek dismissal would only apply once
the expert report deadline passed, and any disclosure after that date would have
done Shah no good given Chapter 74’s mandatory dismissal standard. See TEX.
CIV. PRAC. & REM. CODE § 74.351(a)–(b).
This Court’s review considers all these circumstances and views them in the
light most favorable to the trial court’s ruling and drawing all reasonable
inferences in favor of the court’s judgment. And doing that, the Court should find
22 that the trial court’s ruling was neither unreasonable nor arbitrary. The trial court
clearly acted with reference to guiding rules and principles. Chapter 74’s
application and the expert report requirement are not affirmative defenses and they
are not legal or factual bases of a party’s defense; they are simply procedural
requirements imposed on those bringing health care liability claims. The trial court
did not abuse its discretion in granting Sodexo’s motion to dismiss and, by
definition, denying any request for equitable estoppel.
CONCLUSION & PRAYER
As the foregoing demonstrates, Sodexo is a health care provider as defined
by Chapter 74. Shah is a claimant as defined by Chapter 74. Also, Shah has alleged
that Sodexo has departed from accepted standards of safety, which proximately
caused his injuries.
The standard for deciding whether a claim for breach of safety standards is a
health care liability claim is not, and has never been, whether a direct relationship
exists between healthcare and safety. Such a requirement has been rejected and,
instead, Texas law requires a substantive nexus exists between the safety standards
allegedly violated and the provision of health care. The substantive nexus
requirement recognizes that there are viable health care liability claims that do not
involve a direct relationship between safety standards and health care. This is one
of those cases.
23 The standards at issue implicate Sodexo’s duties as a statutory health care
provider, most especially Sodexo’s duties to provide for patient safety. The
negligence occurred in the course of performing tasks with the purpose of
protecting patients from harm. Shah’s injuries occurred in a place where patients
might be during the time they were receiving care. Shah was in the process of
seeking and receiving health care at the time of his injury. The alleged negligence
implicates safety standards arising from duties owed by Sodexo that relate to the
medical profession. Finally, the instrumentality involved in the incident was used
in the provision of aspects of patients’ health care. The Court should conclude that
Shah’s cause of action is a health care liability claim.
Furthermore, the record demonstrates that Shah failed to serve Sodexo with
a Chapter 74 expert report within 120 days from the date of Sodexo’s answer.
Consequently, the trial court properly dismissed Shah’s claims.
Finally, any claim raised by Shah that Sodexo was precluded from seeking
dismissal under Chapter 74 was waived in this appeal. Shah failed to comply with
the requirements for seeking sanctions for alleged discovery abuse. The penalty
Shah seeks to impose on Sodexo is clearly a sanction, and Shah openly concedes
that the sanction should apply due to alleged discovery abuse. But even if the Court
chooses to consider the equitable estoppel claim, that argument should be rejected.
Shah has failed to identify any basis in law to preclude Sodexo from seeking
24 dismissal under Chapter 74. Chapter 74 and the expert report requirement are
simply procedural requirements imposed on those bringing health care liability
claims. Defendants are not obligated to disclose that the cause of action is a health
care liability claim in order to obligate plaintiffs to comply with the statute. The
trial court did not abuse its discretion in rejecting Shah’s equitable estoppel claim.
For all these reasons, Appellee, Sodexo Services of Texas, L.P., respectfully
requests that this Court affirm the ruling of the trial court in granting Sodexo’s
Motion to Dismiss Shah’s claims and grant all such other and further relief to
which Sodexo is justly entitled.
25 Respectfully submitted,
BROWN SIMS
By:_________________________ Nelson Skyler Texas Bar No. 00784982 nskyler@brownsims.com Neal A. Hoffman Texas Bar No. 24069936 nhoffman@brownsims.com 1177 West Loop South, Tenth Floor Houston, Texas 77027 Telephone: (713) 629-1580 Facsimile: (713) 629-5027
ATTORNEYS FOR APPELLEE SODEXO SERVICES OF TEXAS, L.P.
26 CERTIFICATE OF COMPLIANCE
I certify this brief complies with the typeface and word-count requirements set forth in the Texas Rules of Appellate Procedure. This brief has been prepared in a proportionally spaced typeface using Microsoft Word, in 14-point Times New Roman font for the text and 12-point Times New Roman font for any footnotes. This brief contains 6,133 words, as determined by the word count feature of the word processing program used to prepare this document, excluding those portions of the brief exempted by Texas R. App. P. 9.4(i)(1).
___________________ Nelson Skyler
CERTIFICATE OF SERVICE
This will certify that a true and correct copy of the Brief of Appellee has been electronically served on Appellant, Madhusudan Shah, through the following counsel of record on July 28, 2015:
Kenneth R. Baird THE BAIRD LAW FIRM 2323 S. Voss Rd. Suite 325 Houston, Texas 77057