P. Palivela Raju, M.D. v. Dianne Jackson

Opinion

ACCEPTED 13-15-00171-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 6/17/2015 1:02:13 PM CECILE FOY GSANGER CLERK

No. 13-15-00171-CV ______________________________________________________________________________ FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS IN THE THIRTEENTH COURT OF APPEALS 6/17/2015 1:02:13 PM CECILE FOY GSANGER CORPUS CHRISTI, TEXAS Clerk __________________________________________________________________

P. PALIVELA RAJU, M.D.

Appellant

v.

DIANE JACKSON

Appellee __________________________________________________________________

APPELLEE'S BRIEF __________________________________________________________________

On Appeal from Cause No. 14-E-0190 In the 23rd District Court of Matagorda County, Texas __________________________________________________________________

Alexander Forrest Alan Kolodny State Bar No. 24065241 State Bar No. 24056882 FORREST & KOLODNY, L.L.P. FORREST & KOLODNY, L.L.P. 1011 Augusta Drive, Suite 111 1011 Augusta Drive, Suite 111 Houston, Texas 77057-2035 Houston, Texas 77057-2035 (713) 532-4474 (713) 532-4474 (713) 785-0597 - Facsimile (713) 785-0597 - Facsimile aforrest@fko-law.com akolodny@fko-law.com IDENTITY OF PARTIES AND COUNSEL

In accordance with TEX. R. APP. P. 38.1(a), the following is a complete list

of all parties to this appeal:

Plaintiff / Appellee Counsel for Plaintiff/Appellee

Dianne Jackson Mr. Alexander Forrest Mr. Alan Kolodny FORREST & KOLODNY, L.L.P. 1011 Augusta Drive, Suite 111 Houston, Texas 77057-2035 (713) 532-4474 / (713) 785-0597 - Fax aforrest@fko-law.com

Defendant / Appellant Counsel for Defendant / Appellant

P. Palivela Raju, M.D. Mr. Gary Sommer Mr. James R. Boston, Jr. Boston & Hughes, P.C. 8584 Katy Freeway, Suite 310 Houston, TX 77024 (713) 961-1122 / (713) 965-0883 – Fax gsommer@bostonhughes.com

OTHER PARTIES

Co-Defendant Diagnostic Healthcare Services d/b/a Onsite Balance Solutions

Trial Counsel Appellate Counsel Mr. Kevin O’Murphy Mr. David Lunningham Law Office of Brian J. Judis Ms. Helena Venturini 9500 Arboretum Boulevard, Suite 145 Watson, Caraway, Midkipp & Austin, Texas 78759 Lunningham, LLP (512) 502-6431 1600 Oil & Gas Building (866) 489-7657 – (fax) 309 W. 7th Street Kevin.Murphy2@cna.com Fort Worth, Texas 76102 (817) 870-1717 / (817) 338-4852 - fax dluningham@watsoncarraway.com ii TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL………………………………………ii TABLE OF CONTENTS……………………………………………………….iii-iv INDEX OF AUTHORITIES…………………………………………………….vi-v STATEMENT OF THE CASE…………………………………………………….1 STATEMENT OF JURISDICTION……………………………………………….2 ISSUES PRESENTED……………………………………………………………..2 Is Appellee’s cause of action against Appellant a Healthcare Liability Claim (HCLC) subject to Chapter 74 of the Texas Civil Practice and Remedy Code?

In the alternative that Appellee’s cause of action against Appellant is a Healthcare Liability Claim (HCLC), did the trial court abuse its discretion by denying Appellant’s motion to dismiss pursuant toTex. Civ. Prac. & Rem. Code §74.351(b)?

 Whether Appellee’s orthopedic surgeon expert (Dr. Arnold Ravdel) was qualified as an expert on the standard of care?

 Whether Appellee’s orthopedic surgeon expert’s (Dr. Arnold Ravdel) report provided a fair summary of the standard of care to meet the “good faith effort” statutory requirement for sufficiency of expert reports?

 Whether Appellee’s medical expert report relied on unsupported assumptions?

 Whether Appellee’s expert conclusion that Plaintiff would not have fallen and sustained injuries if the medical chair used for balance testing had been properly maintained provides a fair summary of he causal relationship between the injury and Appellant’s negligence?

STATEMENT OF THE FACTS…………………………………………………3-5

iii SUMMARY OF ARGUMENT…………………………………………………6-7 STANDARD OF REVIEW………..……………………………………………7-8 ARGUMENT…………………………………………………………………..8-30 I. This Case Does Not Fall Under the Purview of the TMLA………..11-20 II. In the Alternative that Appellee’s Claim Against Appellant is a Healthcare Liability Claim, Appellee’s Expert Report Nonetheless Satisfies the §74.351 Statutory Requirements of the Texas Medical Liability Act…………………………………………………………20-30 A. Plaintiff's expert is not testifying to the standard of care relating to otolaryngology……………………………………20-25

B. Dr. Ravdel's Expert Report provides a fair summary of the standard of care because it meets the "good faith effort" test for satisfying the statutory requirement for expert reports based on the facts of Appellee’s case………………………………………25-28

C. Dr. Ravdel's Expert Report is not based on unsupported assumptions, but rather, on limited, yet obvious facts……….28-29

D. Dr. Ravdel's Expert Report clearly explains that Plaintiff would not have fallen and sustained injuries if the medical chair used for balance testing had been properly maintained.29-30 CONCLUSION………………………………………………………………..31-32 PRAYER………………………………………………………………………….32 CETFIFICATE OF COMPLIANCE……………………………………………...33 CERTIFICATE OF SERVICE……………………………………………………33

iv INDEX OF AUTHORITIES

Cases

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001)………………………………………………………………………….8 Benish v. Grottie, 281 S.W.3d 184 (Tex. App. – Fort Worth 2009, pet denied)………………………………………………………………………...10, 29

Carreras v. Travino, 298 S.W.3d 721 (Tex. App. – Corpus Christi 2009, no pet.)…………………………………………………………………………….23

CHCA W. Houston, L.P. v. Shelley, 438 S.W.3d 149 (Tex. App. 2014)…………...8 Chu v. Fields, 2009 WL 40437……………………………………………………26 Chisholm v. Maron, 63 S.W.3d 903 (Tex. App. – Amarillo 2001, no pet.)………21 Clark v. HCA, Inc., 210 S.W.3d 1 (Tex. App. – El Paso 2005, no pet)…………..21 Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005)………18 Doctors Hosp. at Renaissance, Ltd. v. Meja, No. 13-12-00602-CV, 2014 WL 5859592 (Tex.App. – Corpus Christi Aug.1, 2013, pet. filed) (mem.op.)…...13

Good Shepherd Medical Center-Linden, Inc. v. Twilley, 422 S.W.3d 782 (Tex. App. – Texarkana, Mar. 1, 2013, pet. denied)……….…11, 12, 13, 16, 17, 31

Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (Tex. App. – Houston [1st Dist.] 2006, no pet.)……………………………………………………………8

Guerrero v. Ruiz, 2008 WL 3984167……………………………………………..26 Hansen v. Starr, 123 S.W.3d 13 (Tex. App. 2003)……………………………….21 In re Samonte, 163 S.W.3d 229 (Tex. App. – El Paso 2005, orig. proceeding)…..21 In re Stacy K. Boone, 223 S.W. 3d 398 (Tex. App. – Amarillo 2006, orig. proceeding)…………………………………………………………………..27

Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012)……………………………...18, 19

vi Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658 (Tex. 2010)……………..12 Methodist Healthcare Sys. Of San Antonio, Ltd., LLP v. Dewey, 423 S.W.3d 516, 516 (Tex. App – San Antonio 2014, pet. Filed)……………………………...13, 15 Memorial Hermann Hosp. System v. Galvan, 434 S.W.3d 176 (Tex. App. – Houston [14th Dist.] 2014, no pet. h.)……………………………………………..7 Palafox v. Silvey, 247 S.W.3d 310 (Tex. App. – El Paso 2007, no pet.)…………25 Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011)…………………………....7, 8 Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8 (Tex. App. – Tyler 2002, pet. denied)………………………………………………………………………..26

Strom v. Memorial Hospital System, 110 S.W.3d 216 (Tex. App. – Houston [1st Dist.] 2003, pet. denied)…………………………………………26, 27

Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (Tex. 2012)………………………………………………………...12-14, 16, 17, 19

Weatherford Tex. Hosp. Co. v. Smart, 423 S.W.3d 462 (Tex. App. – Fort Worth 2014, pet. filed). ……………………………………………………...14

Whitfield v. Henson, 385 S.W. 3d 708 (Tex. App. – Dallas 2012, no pet.)……….27 Williams v. Riverside Gen. Hosp., Inc., No. 01-13-00335-CV, 2014 WL 4259889 (Tex. App. Aug. 28, 2014)………………………………………………..8

Statutes and Rules

Tex. Civ. Prac. & Rem Code, Chapter 74………………...2, 4, 6, 7, 8, 9, 11, 27, 31

vi STATEMENT OF THE CASE

Nature of the Case: This case was initially in the 412th Judicial District Court of Brazoria County, Texas under the Honorable W. Ed Brennan. The case was transferred to the 130th Judicial District Court of Matagorda County and then to the 23rd Judicial District of Matagorda County under the Honorable Ben Hardin.

Trial Court: The case was initially in the 412th Judicial Disctrict Court of Brazoria County, Texas under the Honorable W. Ed Brennan. The case was transferred to the 130th Judicial District Court of Craig Estlinbaum. Judge Eslinbaum then transferred the case to the 23rd Judicial District Court of Matagorda County under the Honorable Ben Hardin.

Trial Court’s Disposition: Appellant timely filed his initial objections to Appellee’s expert report. (CR 43-54) Judge Brennan overruled the objections. (RR 19) After the 120-day period expired, Appellant filed his Motion to dismiss pursuant to Tex. Civ. Prac. & Rem. Code §74.351 (b). (CR 110-120) Judge Hardin denied the motion to dismiss on March 2, 2015 (CR 144).

Court of Appeals: Appellant filed his Notice of Accelerated Appeal on Monday, March 23, 2015, which was the first business day after the 20-day period to challenge the March 2 order expired on Sunday, March 22, 2015 (CR 145-146). The Court dismissed Appellant’s appeal on April 30, 2015 due to lack of jurisdiction because the trial court did not receive and file the notice of appeal until March 25. On May 11, 2015, the Court withdrew its order of April 30 and reinstated this appeal.

1 STATEMENT OF JURISDICTION The 13th Court of Appeals has jurisdiction over this case under Government Code §22.201(n) because this case arose in Matagorda County. The Court has jurisdiction to hear this appeal of the trial court’s order denying Appellant’s motion to dismiss under Tex. Civ. Prac. & Rem. Code §74.351(b) under Tex. Civ. Prac. & Rem. Code §51.014(a)(9) (Vernon Supp. 2014). ISSUES PRESENTED

1. Is Appellee’s cause of action against Appellant a Healthcare Liability Claim (HCLC) subject to Chapter 74 of the Texas Civil Practice and Remedies Code?

2. In the alternative that Appellee’s cause of action against Appellant is a Healthcare Liability Claim (HCLC), did the trial court abuse its discretion by denying Appellant’s motion to dismiss pursuant to Tex. Civ. Prac. & Rem. Code §74.351(b)?

a. Whether Appellee’s orthopedic surgeon expert was qualified as an expert on the standard of care?

b. Whether Appellee’s expert report provided a fair summary of the standard of care to meet the “good faith effort” statutory requirement for sufficiency of expert reports?

c. Whether Appellee’s medical expert relied on unsupported assumptions?

d. Whether Appellee’s expert’s conclusion that Plaintiff would not have fallen and sustained injuries if the medical testing chair had been properly maintained provides a fair summary of the causal relationship between the injury and Appellant’s negligence?

References to Clerk’s Original Record are shown as (CR ______) References to Clerk’s 1st Supp. Record are shown as (CR 1st Supp.____) References to Clerk’s 2nd Supp. Record are shown as (CR 2nd Supp.____) References to Reporter’s Record are shown as (RR____)

2 STATEMENT OF THE FACTS

The following introductory facts are pertinent to the issues or points

presented. TEX. R. APP. P. 38.1(f).

On March 28, 2012, Appellee Dianne Jackson was at the medical office of

Appellant P. Palivela Raju, M.D, an otorhinolaryngologist, otherwise known as an

ear, nose and throat doctor (ENT). On that date, Appellee was on Appellant’s

medical practice premises not to visit with Appellant, but to perform balance

testing with a third party medical provider, Onsite Balance Solutions. Appellant

scheduled Appellee to undergo balance testing with Onsite Balance Solutions.

Appellant contracted with Onsite Balance Solutions to perform this medical testing

on Appellant’s premises. In anticipation of Appellee’s balance test, Danny

Hertzer, a balance tech employed by on Onsite Balance Solutions, seated Appellee

in Appellant’s balance chair (CR 2nd Supp. 75). After conducting a choloic

stimulation test not involving use of the balance chair, the Onsite Balance

Solutions tech noticed that the “chair was starting to tilt on its back, so [I] moved

to stand on the base to give the base more weight. Despite this the chair fell slowly

on its back and once it had reached the ground Appellee slid out of it” (CR 2nd

Supp. 75). The entire time during which these events transpired, Appellant neither

supervised the testing nor made available any of his nursing or administrative staff.

The only two people in the patient room were Onsite Balance Solutions tech and

3 Appellee. Appellee states very clearly in her in her affidavit that “neither Dr. Raju

nor anyone from his staff was in the room at the time of the accident.” (CR 2nd

Supp. 56). Furthermore, she states, “the accident occurred prior to the vertigo

test.” (CR. 2nd Supp. 56).

On January 24, 2014, Appellee filed this lawsuit against Appellant and

Onsite Balance Solutions alleging professional negligence in failing to ensure that

the chair was properly maintained and in working order, and in failing to have a

physician or qualified medical staff supervise the vertigo testing (CR7). In order to

comply with the expert report requirement for a healthcare liability claim under

Chapter 74 of the Texas Civil Practice and Remedies Code, Appellee attached to

her original petition a report from orthopedic surgeon Arnold Ravdel, M.D. (CR

31-33). On July 21, 2014, Appellee filed her Second Amended Petition and

Request for Disclosure to assert general negligence and premises liability claims in

addition to professional negligence, believing that the facts of Appellee’s claims

may not even implicate the Texas Medical Liability Act. Although Appellee

realizes that the factual backdrop of Appellee’s case is atypical of healthcare

liability claims, Appellee nonetheless asserts a healthcare liability cause of action

in order not to lose the right to sue for professional negligence in the event this

Court finds that Chapter 74 of the Texas Civil Practices and Remedies Code

applies.

4 Appellant objected to the sufficiency of Dr. Ravdel’s report, citing Section

74.351 (a) as authority. (CR 43-54) Appellee obtained a hearing on the objections

prior to expiration of the 120-day period in Section 74.351 (a). On April 11, 2014,

the Honorable W. Ed Brennan of the 412th District Court of Brazoria County

overruled Appellant’s objections. (RR 19). After the hearing, Appellant and

Appellee agreed to transfer the case to Matagorda County, the county of proper

venue. After the 120-day period expired on June 4, 2014, Appellant filed his

motion to dismiss pursuant to Section 74.351 (b). (CR 110-120).

Appellant’s motion to dismiss was first heard by the Honorable Craig

Estlinbaum of the 130th District Court of Matagorda County on June 11, 2014.

Judge Estlinbaum took the matter under advisement and later scheduled a second

hearing for August 11, 2014. (CR 133) By the time of the hearing, the case had

been transferred to the 23rd District of Matagorda County. The Honorable Ben

Hardin of the 23rd District Court took the matter under advisement and denied

Appellant’s motion to dismiss on March 2, 2015. Appellee now responds to

Appellant’s interlocutory appeal of Judge Ben Hardin’s denial of Appellant’s

Motion to Dismiss before this honorable Texas 13th Court of Appeals.

5 SUMMARY OF THE ARGUMENT

In responding to Appellant’s Motion to Dismiss in the lower court, Appellee

specifically informed the court that Appellee’s claims are not a healthcare liability

claims, and her filing an expert report under Chapter 74 of the Texas Civil and

Practice Remedies Code was purely done in an abundance of caution, and in

acknowledgement of the spit between appellate courts interpreting the Texas West

Oaks precedent. Appellee states as follows:

“The only reason a medical expert opinion is provided in this case is because Texas law requires that any Plaintiff injured on the premises of a medical establishment open to the public file their claim as a health care liability claim, regardless of whether the injury was the result of a doctor performing a medical procedure or not. See Texas West Oaks, 371 S.W.3d 171, 178 (Tex. 2012). Simply put, different appellate courts are so split in their interpretations of the

Texas opinion, that Appellee did not feel comfortable taking the risk of the statute

of limitations expiring in the face of this split in authority between different

appellate courts. Therefore, Appellee timely filed a medical expert report.

However, the substance of the medical expert report does not address standards of

care relating to any particular or specialized area of medicine. Rather, the

substance of the report focuses on the condition of the medical chair, its

maintenance or lack thereof, and the duties owed by any medical provider to

deliver safe premises and medical equipment to patients. (CR 31-33).

6 In the alternative that this Court finds that Appellee’s claims are Healthcare

Liability Claims subject to Chapter 74 of the Texas Practice and Remedy Code,

Appellee contends that Dr. Ravdel’s expert report nonetheless satisfies the

statutory requirements. A brief analysis of the facts of the lower court quickly

reveals that the relevant subject area is not any specific area of medical practice,

but the general standard of care any medical physician owes his patients as a

premises owner, which is to ensure that all his medical equipment and chairs are

sufficiently maintained and in working order such that a medical chair used for

balance testing does not collapse when his patients are seated. Given the limited

discovery rights of Appellee coupled with a factual backdrop where Appellee was

injured after merely being seated in a chair that could not hold her weight, the

“good faith effort” standard for determining whether an expert report is statutorily

compliant with Chapter 74 of the Texas Medical Liability Act has clearly been

met. Tex. Civ. Prac. & Rem. Code 74.351(l).

STANDARD OF REVIEW

The standard of review for judging a trial court's decision with regard to

expert reports is the abuse of discretion. Generally, we review a trial court's order

granting or denying a section 74.351(b) motion under an abuse-of-discretion

standard. See Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011); Memorial

Hermann Hosp. System v. Galvan, 434 S.W.3d 176, 178 (Tex. App. – Houston

7 [14th Dist.] 2014, no pet. h.) But, when the issue presented requires statutory

interpretation or a determination of whether Chapter 74 applies to a claim, the

issue is a question of law to which we apply a de novo standard of review. See

Stockton, 336 S.W.3d at 615; Galvan, 434 S.W.3d at 179. CHCA W. Houston, L.P.

v. Shelley, 438 S.W.3d 149, 151 (Tex. App. 2014).

Generally, we review a trial court's decision on a motion to dismiss a

healthcare liability claim for an abuse of discretion. See Am. Transitional Care

Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA

Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App. – Houston [1st Dist.] 2006, no

pet.). However, because this appeal poses a question of statutory construction (i.e.,

whether Williams' claims are HCLCs), we apply a de novo standard of review.

Loaisiga v. Cerda, 379 S.W.3d 248, 254–55 (Tex.2012); Tex. W. Oaks, 371

S.W.3d at 177. When determining whether a claim is a healthcare liability claim,

we consider the entire record, including the pleadings, motions and responses, and

relevant evidence properly admitted. Loaisiga, 379 S.W.3d at 258. Williams v.

Riverside Gen. Hosp., Inc., No. 01-13-00335-CV, 2014 WL 4259889, at *2 (Tex.

App. Aug. 28, 2014)

ARGUMENT

In Appellant’s brief, Appellant presents the main issue as whether the trial

court abused its discretion in denying Appellant's motion to dismiss pursuant to 8 Tex. Civ. Prac. & Rem. Code §74.351(b). In framing the issue in this manner,

Appellant assumes that the lower court made a finding that Appellee’s claims are

Health Care Liability Claims pursuant to Tex. Civ. Prac. & Rem. Code §74.351(b).

However, nothing in the lower court’s record includes any order where the lower

court judge has made a ruling on whether Chapter 74 is controlling in this case, or

whether the claims asserted by Appellee are necessarily Health Care Liability

Claims. The pleadings in the lower court clearly show that Appellee has asserted

three claims against Appellant, only one of which is a Healthcare Liability Claim.

(CR 66-72). Appellant provides no argument as to how or why the lower court's

denial of his Motion to Dismiss pursuant to Tex. Civ. Prac. & Rem. Code

§74.351(b) makes Appellee’s claims healthcare in nature. There is not a single

order in the lower court whereby any lower court Judge concludes that Chapter 74

of the Texas Civil Practice and Remedies Code necessarily applies to the facts in

this case. Furthermore, Appellant never filed any motion for declaratory judgment

asking the trial court to make any such finding. By entirely avoiding the argument

and failing to explain to this Honorable Court why Appellant believes Appellee’s

claims are healthcare liability claims, Appellant improperly asks this Honorable

Court to assume a fact not in evidence.

After impliedly asking this Honorable Court to make the unwarranted

assumption that Appellee’s claims are healthcare liability claims, Appellant argues

9 that the trial court abused its discretion in finding Appellee's expert report provided

a fair summary of the standard of care and causal relationship. Appellant bases

this judgment on broad and sweeping conclusions rather than assertions of fact.

For example, Appellant contends that Appellee’s expert's opinions were based on

“unsupported assumptions.” However, it is clear from the report that the expert

made inferences based on the medical records, a practice that is accepted by the

courts. (CR 2nd Supp. 62-64). Benish v. Grottie, 281 S.W.3d 184, 195 (Tex. App.

- Fort Worth 2009, pet denied).

Appellant’s brief focuses on the quality of Appellee’s expert report without

providing the necessary factual analysis as to why Appellee’s expert report should

even be subject to a Section 74.351 analysis. Appellee’s pleadings assert general

negligence and premises liability claims, and Appellee relies on the same expert

report in asserting those claims as it would asserting a healthcare liability claim.

To the extent Appellee’s case against Appellant is not a healthcare liability claim,

Appellant makes no arguments as to why the expert report would otherwise not be

sufficient.

Appellee’s claims do not fall under the purview of the Texas Medical

Liability Act (TMLA) because the “setting” or “place” of injury is not the

controlling question for determining whether the TMLA applies. “The simple fact

that an injury occurred on a healthcare providers’ premises is not enough." Good

10 Shepherd Medical Center-Linden, Inc. v. Twilley, 422 S.W.3d 782, 788 (Tex. App. -

Texarkana, Mar. 1, 2013, pet. denied). There simply is no other factual basis for

Appellant’s assumption that Appellee’s claims fall under the purview of Chapter

74 of the Texas Practice and Remedies Code except the fact that the injury

occurred in a medical office. However, when this fact is weighed against other

facts provided hereto and discussed below, there is good reason to find that

Appellant’s case falls outside the purview of the Texas Medical Liability Act

(TMLA).

I. THIS CASE DOES NOT FALL UNDER THE PURVIEW OF THE TMLA

A contentious issue in any litigation involving a health care provider is

whether the Texas Medical Liability Act, Chapter 74 of the Civil Practice and

Remedies Code, applies. Although a contentious issue, it is an issue Appellant

entirely avoids in his brief.

The three basic elements of a healthcare liability claim are defined in the

TMLA: (1) a physician or health care provider must be a defendant; (2) the claim

or claims at issue must concern treatment, lack of treatment, or a departure from

accepted standards of medical care, or health care, or safety or professional or

administrative services directly related to health care; and (3) the defendant’s act or

omission complained of must proximately cause injury to the claimant. Texas West

Oaks, 371 S.W.3d at 179-80. The determination of whether a claim is a HCLA

11 requires an examination of the underlying nature of the claim and the facts related

thereto. See Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 664 (Tex.

2010).

The facts surrounding Appellee’s case, for example, raise the question of

whether medical treatment was even being provided at the time of her injuries.

This is an important question that should have been addressed in Appellant’s brief.

If Appellant did not provide medical care at the time of Appellee’s injuries, and

Appellee was injured instead by faulty equipment rather than a doctor’s hand,

Appellee’s claims are safety-related rather than healthcare-related. In March 2013

the Texarkana court became the first appellate court to address the question of the

nexus between safety-related complaints and healthcare in light of the Supreme

Court’s decision in Texas West Oaks. In the case of Good Shepherd Medical

Center–Linden, Inc. v. Twilley, the hospital’s director of plant operations sued the

hospital for negligence after he fell from a ladder attached to the hospital building

and later tripped and fell over a mound of hardened cement on the hospital’s

premises. 422 S.W.3d at 783. The trial court denied the hospital’s motion to

dismiss the employee’s claims for failure to supply an expert report under the

TMLA. Id. at 784. On appeal, the Texarkana court affirmed the trial court’s ruling

and held that, while a safety claim need not be directly related to health care

pursuant to Texas West Oaks v. Williams, there must be some indirect link between

12 an employee’s safety claim and the provision of health care in order for the claim

to fall under the TMLA. Id. at 785.

Although safety claims do not need to be directly related to healthcare

pursuant to Texas West Oaks, there must, nevertheless, be some indirect,

reasonable relationship between claims and the provision of healthcare for such

claims to be healthcare liability claims. 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.) (interpreting Texas West Oaks “narrowly

to govern cases that involve safety claims that are indirectly related to health

care”); Twilley, 422 S.W.3d at 788 (Tex. App. - Texarkana, Mar. 1, 2013, pet.

denied) (interpreting Texas West Oaks narrowly and holding that safety claim must

have at least indirect relationship to health care to be considered HCLC);

Methodist Healthcare Sys. Of San Antonio, Ltd., LLP v. Dewey, 423 S.W.3d 516,

519 (Tex. App. – San Antionio, 2014, pet. filed)(holding that safety claims must

have at least indirect relationship to health care to be considered healthcare liability

claim). As the Twilley court correctly noted:

[I]f 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. Twilley, 422 S.W.3d at 788 (emphasis in original).

13 See also Texas West Oaks Hosp., 371 S.W.3d 171, 176 (Tex. 2012) (directing

lower courts to distinguish ordinary negligence claims from HCLCs by focusing on

“nature of the acts or omissions” causing alleged injuries).

Most courts weigh facts showing the degree to which the harm resulted from

medical treatment to determine if there is at least an indirect nexus between the

medical provider’s act or omission and the injury. For example, in Weatherford

Tex. Hosp. Co. v. Smart, the Fort Worth Court of Appeals held that a visitor falling

on puddle of water in hospital was not indirectly related to healthcare or safety, did

not require an expert report, and was not, therefore, a healthcare liability claim.

Weatherford Tex. Hosp. Co. v. Smart, 423 S.W.3d 462, 463, 467–68 (Tex.App.-

Fort Worth 2014, pet. filed). In Weatherford Tex. Hosp. the facts made it more

obvious that there was no indirect nexus, since the visitor was not on the medical

premises for treatment.

Appellee agrees that her claims are rooted in facts that are distinguishable

from the Weatherford Tex. Hosp. opinion. Unlike that Plaintiff, Appellee was on

Appellant’s premises for medical treatment at the time of her injury. She was

visiting Appellant’s medical office so that a balance test could be performed on her

to assess her treatment for vertigo. However, Appellee’s injuries were not the

result of any balance test. In fact, at the time of her injury, no medical treatment

was performed on Appellee, no medical doctor was in her medical exam room, and

14 no balance test was performed on her. (CR 75). In fact neither Appellant nor his

medical staff was present at the time Appellee was seated in the medical chair used

to test for vertigo. (CR 75). The only other person present in the room at the time

of Appellee’s injury was an employee non-physician tech of Onsite Balance

Solutions, a third party company contracted by Appellant to perform the balance

testing. Like the Plaintiff in Dewey who had entered hospital grounds for purposes

of medical treatment (i.e., crutches) at the time of injury, Appellee had entered

Appellant’s medical office to undergo medical treatment at the time of her injury.

423 S.W.3d 516, 519–20 (Tex. App.- San Antonio 2014, pet. filed). Yet, even in

Dewey the San Antonio Court of Appeals held that the claim of a hospital visitor

on crutches who fell when the automatic entrance door to the hospital closed on

him was not a healthcare liability claim. Id. The San Antonio Court of Appeals

agreed “with the Mejia court that the supreme court recognized a new type of

healthcare liability claim, one involving safety that is indirectly related to health

care.” Id. However, even where the Plaintiff is on hospital grounds for purposes of

medical treatment at the time of injury, this fact alone is not controlling. The

Dewey decision stands for the proposition that even if the patient entered the

medical premises for treatment (i.e., on crutches), absent other, specific and

articulable defendant conduct showing the injury was born from negligent medical

treatment, no sufficient nexus exists, even indirectly, to qualify the injury as a

15 healthcare liability claim. Id. This is consistent with past precedent in Texas West

Oak, where the court held that “the heart of these cases lies in the nature of the acts

or omissions causing claimants’ injuries and whether the events are within the

ambit of the legislated scope of the TMLA.” Texas West Oak, 371 S.W.3d at 178.

The decision is also consistent with the Texarcana Court of Appeals decision in

Twilley, which held that "a safety claim must involve a more logical, coherent

nexus to health care. The simple fact that an injury occurred on a healthcare

providers premises is not enough." Twilley, 422 S.W.3d at 788.

The Texas West Oaks court further observed that expert testimony is a factor

in assessing the nature of a claim against a healthcare provider. That court found

that where such testimony is necessary to prove or refute the merits of the

employee’s claims, such claims fall under the ambit of the Texas Medical Liability

Act. Texas West Oaks, 371 S.W.3d at 182 (“[W]e now hold that if expert medical

or health care testimony is necessary to prove or refute the merits of the claim

against a physician or health care provider, the claim is a health care liability

claim.”). In the Twilley case, it would be terribly difficult, if not impossible, to

find a qualified expert under the statute who was also competent to opine on the

relevant accepted standards of care—OSHA ladder construction and installation

and walking surface standards. A medical report would not shed any light on

16 whether the ladder violated OSHA standards or whether the concrete mound

constituted an unreasonable risk of harm. Twilley at 788.

Similarly, in Appellee’s case, one would be hard pressed to locate a

qualified expert under the statute who was also competent to opine on the relevant

accepted standards of care on the proper installation and maintenance of a medical

chair used for balance testing. A medical expert report would not shed any light on

whether the chair was properly maintained and inspected or if it constituted an

unreasonable risk of harm. In fact, this was one of Appellant's arguments during

the hearing on his Objections to the Plaintiff’s Expert Report:

Whether defendant breached a standard of care can't be determined unless you have specific information about what the defendant should have done different. Now his (referring to Dr. Ravdel) standard of care opinions were that you have to have -- make sure the medical equipment is properly maintained and in working order. But there is no description of how do you properly maintain a balance testing chair…Do you have to inspect it, you know, on a regular basis, have an inspection log? Do you have to, you know, check the bolts every now and then? …There is no indication at all of what specific acts Dr. Raju supposedly would have had to do to properly maintain a balance chair. (RR07)

Appellant's own argument demonstrates that this is not a medical liability case.

We learn from the Texas West Oaks, Dewy, and Twilley line of cases that the

mere fact of being on the premises of a medical provider, even for the purposes of

medical treatment, is not singularly sufficient to determine whether a plaintiff’s

claim against the medical provider is a health care liability claim. These line of

17 cases are directing courts to look at the totality of the circumstances, with

particular attention to the nature of the act or omission on the part of the medical

provider. In Diversicare, the Texas Supreme Court used the language “underlying

nature of the claim” to describe the examination required to determine if a cause of

action is a healthcare liability claim. Diversicare General Partner, Inc. v. Rubio,

185 S.W.3d 842, 848 (Tex. 2005). The court held that one must examine the

underlying nature of the claim when determining whether the claim is in fact a

healthcare liability claim. Id. When conducting this analysis, the court provided

guidance, finding that a cause of action implicates the departure from acceptable

standards of medical care if the act complained of is an “inseparable part of the

rendition of medical service.” Id.

Whether Appellee’s injuries are an inseparable part of the rendition of

medical service is best determined by first asking what medical service was

provided. The lower court judge was privy to evidence in this case, such as

Exhibit B to Appellee’s Response to Appellant’s Motion to Dismiss, where the

Onsite Balance Tech present in the room at the time of Plaintiff’s injury informs

Appellant how the injury occurred (CR 75). At no time in the statement does the

tech refer to any medical procedure being conducted at the time Plaintiff’s “chair

was starting to tilt.” (CR 75). Assuming that no medical procedure was performed,

this is the type of medical chair that could tilt anytime a patient is seated in it,

18 regardless of whether medical treatment is being provided or whether the chair is

being used for medical purposes. The Texas Supreme Court has stated that a claim

is not necessarily a health care liability claim merely because a patient is injured by

a physician or health care provider. See Loaisiga v. Cerda, 379 S.W.3d 248, 256–

57 (Tex. 2012). “In some instances, the only possible relationship between the

conduct underlying a claim and the rendition of medical services or healthcare will

be the healthcare setting (i.e. the physical location of the conduct in a health care

facility), [or] the defendant’s status as a doctor or health care provider, or both.” Id.

In Appellee’s case, the injury occurred when neither Appellant nor his staff was in

the medical exam room, and during a time when the tech present in the room had

not started any balance test or any other medical procedure on Appellant’s body.

Appellee provided an expert physician report not to demonstrate that this

court is a healthcare liability claim, but to show the court that it is precisely the

opposite. The Texas Supreme Court has held “that if expert medical or health care

testimony is necessary to prove or refute the merits of a claim against a physician

or health care provider, the claim is a health care liability claim.” Texas West Oak,

371 S.W.3d at 182. Given that Plaintiff’s expert report adds very little to the

factual analysis of what exactly happened on the day Appellant’s medical chair

failed to hold the weight of Appellee is evidence that medical physician expert

testimony adds nothing to the merits of Appellee’s claim against Appellant.

19 Simply put, the factual backdrop of this case is so simplistic that with limited

discovery and the onsite tech admitting that Appellee was injured by a chair that

could not hold the weight of a patient as opposed to injured by a person operating

the chair, there is simply nothing from which any expert can rely to add greater

detail or explanation to the merits of Appellee’s claims against Appellant. To the

extent Appellant argues that an ear, nose, and throat (ENT) specialist would be

able to provide testimony that adds to the merits of Appellee’s claims in the face of

an injury that was not born from any ENT procedure and in the absence of any

ENT present at the time of the injury flies in the face of the facts and is arguably an

argument made in bad faith.

II. IN THE ALTERNATIVE THAT APPELLEE’S CLAIM AGAINST APPELLANT IS A HEALTHCARE LIABILITY CLAIM, APPELLEE’S EXPERT REPORT NONETHELESS SATISFIES THE STATUTORY REQUIREMENTS OF THE §74.351 TEXAS MEDICAL LIABILITY ACT.

A. Plaintiff's expert is not testifying to the standard of care relating to otolaryngology.

Appellant contends that Dr. Ravdel's opinions regarding the standard of

care: (1) ensure that the equipment used is properly maintained and in working

order, and (2) ensure the balance testing is supervised by Appellant or qualified

medical or nursing staff, are defective because he has not shown that he is qualified

as an expert on these medical procedures.

20 Appellant cites Hansen v. Starr and Chisholm v. Maron for the contention

that to comply with the expert report requirement, the expert report must establish

that the purported expert is qualified. Hansen specified, "For a document to be

considered an 'expert report' for the purposes of section 13.01, it must be rendered

by someone qualified to testify as an expert on the relevant medical subject area."

Hansen v. Starr, 123 S.W.3d 13, 19 (Tex. App. 2003) citing Chisholm v. Maron,

63 S.W.3d 903, 907 (Tex. App.- Amarillo 2001, no pet.). Clark v. HCA, Inc., and

In re Samonte are easily distinguished as they are medical malpractice cases where

the physician who authored the expert report was a different specialty than the

subject of the malpractice action (i.e. a cardiologist authoring an expert report on a

radiology case). Clark v. HCA, Inc., 210 S.W.3d 1, 6 (Tex. App.- El Paso 2005, no

pet); and In re Samonte, 163 S.W.3d 229 (Tex. App.- El Paso 2005, orig.

proceeding).

The case at hand is easily distinguished from those cited by Appellant as

Appellee's injuries in this case did not result from the failure of any medical doctor

practicing any standard of care specific to a particular specialized field of

medicine. By Appellant’s own admission, Appellant was not even in the room at

the time the alleged medical balance testing was taking place (CR 2 nd Supp. 75).

In fact, Appellant admits to outsourcing the procedure to a non-physician third

party contractor, Onsite Balance Solutions. Furthermore, Appellant was so

21 comfortable delegating the testing to a non-physician third party that Appellant

didn’t even require any member of his own staff to be in the room at the time of

the testing. (CR 2nd Supp. 75). The relevant subject area is not any specific area of

the practice of medicine, but the general standard of care any medical physician

premises owner owes his patients, which is to ensure that all his medical chairs and

medical office equipment are sufficiently maintained such that the medical chair

does not collapse when his or her patients are seated.

The medical chair at issue in this case was neither owned by or in the control

of the Onsite Balance Solutions employee who seated Appellant in the chair. He

could not be in control of the chair, for the Onsite Balance Solutions employee had

no history of purchasing the chair, using the chair, maintaining the chair, or any

responsibility as to the upkeep of the medical chair in any manner. The condition

of the chair was the exclusive duty of the owner of the medical establishment, in

this case Appellant. Appellant’s duty to maintain the medical chair is not a duty

born by his role as an ENT, but rather from his role as a healthcare premises owner

providing medical services to patients. This duty extends to any doctor who is

running any private practice, regardless of the specialty. Therefore, any medical

doctor familiar with running a private medical practice (i.e., like Dr. Ravdel)

suffices at providing an opinion as to Appellant's failure to keep office space and

22 patient areas in such operating order to ensure patient safety. As such, Dr. Ravdel

is more than qualified to testify in this subject area.

Appellant further contends that medical services relevant to Plaintiff's claims

of negligence are the services relating to balance testing on a patient with

complaints of dizziness and vertigo. Appellant completely misses the mark, as the

testing services are not at issue in Appellee's claims against Appellant. Appellee is

not complaining about the quality of medical care provided to her relating to the

practice of otorhinolaryngology; the functionality and maintenance of the chair is

at issue in this case rather than the application of any medical procedure.

Appellant argues that Dr. Ravdel's report is "similar to the type of report

rejected by this Court in Carreras v. Travino." The allegations at issue in Carreras

v. Travino involved claims of negligent performance of a total knee replacement.

298 S.W.3d 721 (Tex. App.- Corpus Christi 2009, no pet.). Appellant alleges that

like the report in Carreras, Dr. Ravdel’s report and curriculum vitae give no

information that he has any training or experience in the medical care at issue.

However, this assumes that the medical care at issue is otorhinolaryngology. This

is factually incorrect. Not only was Appellant absent from the patient room at the

time of Appellee’s injuries, but none of his office medical staff were present. In

fact, no medical doctor was present, with the sole witness being a tech from a third

party medical service provider known as Onsite Balance Solutions. Appellee's

23 claim has nothing to do with the practice of otorhinolaryngology and to the extent

that it is a health care liability claim, it is such because it relates to the

administrative functions necessarily related to operating a medical practice rather

than the performance of any otorhinolaryngological (ENT) procedure.

Dr. Ravdel is not testifying as to the standard of care relating to

otolaryngology because this is not a health care liability claim and otolaryngology

was not being practiced by anyone at the time of Plaintiff's injury. Plaintiff

selected an orthopedic surgeon to provide the expert report because the injuries at

issue resulted in orthopedic injuries to Plaintiff. (CR 31-33)

Appellant argues that without information in the expert report showing that

the author is qualified to testify on the subject matter, the report fails; however, Dr.

Ravdel is qualified to testify as to the subject matter of this case. As the owner and

manager of a medical practice, Dr. Ravdel is familiar with the duties related to

keeping the premises of a medical practice safe, including the maintenance of

medical office and patient room equipment, such as medical chairs used for

balance testing.

Appellant cites the requirements of Tex. Civ. Prac. & Rem. Code

§74.351(r)(5)(A) and states that Dr. Ravdel is not qualified because he is not an

ENT engaged in the practice of otorhinolaryngology. However, courts have

permitted experts from different fields to provide expert opinions. A physician

24 expert need not be a specialist in the defendant's particular area of practice if the

subject matter of the claim is common to and equally recognized in more than one

field of practice. Christus Health Se. Tex. v. Broussard, 267 S.W.3d 531, 534

(Tex. App. - Beaumont 2008, no pet.); Grindstaff v. Michie, 242 S.W. 3d 536 (Tex.

App. - El Paso 2007, no pet.). Similarly, in Palafox v. Silvey, a patient choked on

food as a result of a negligent physician's order to be given a regular diet. While

the plaintiff's expert was from a different specialty, the Court accepted his

explanation that the understanding of swallowing was not unique to any specialty

and was within his purview of expertise. Palafox v. Silvey, 247 S.W.3d 310 (Tex.

App. - El Paso 2007, no pet.). It is clear that the general principle of maintaining

and making sure a medical chair is properly grounded, balanced, and maintained so

that it does not tip over, causing the claimant to fall would apply to any furniture in

a physician's office.

B. Dr. Ravdel's Expert Report provides a fair summary of the standard of care because it meets the "good faith effort" test for satisfying the statutory requirement for expert reports based on the facts of Appellee’s case.

Appellee’s expert report provided by Dr. Ravdel meets the “good faith

effort” test for satisfying the statutory requirement for sufficiency of an export

report base on the limited discovery rights available to Appellee and the factual

backdrop where Appellee was injured by a medical chair that did not hold her

weight. Appellant contends that Dr. Ravdel’s expert report is so "vague” and 25 “general” that it fails to provide a fair summary of the standard of care.

Specifically, Appellant claims that a proper summary as to the standard of care

requires that the report provide specific information about what the defendant

could have done differently. He further argues that because Dr. Ravdel does not

provide proper this specific information, his standard of care opinion is deficient.

The problem with Appellant’s argument is that it completely ignores the

“good faith effort” test provided by the Texas Medical Liability Act on whether an

expert report sufficiently satisfies the statutory requirements. Appellant cites

several cases where the expert report was found to be insufficient: Guerrero v.

Ruiz, 2008 WL 3984167, involving a medical malpractice case against a surgeon;

Chu v. Fields, 2009 WL 40437 involving a medical malpractice against a doctor

for failure to timely diagnose plaintiff's intracranial aneurysm; Shaw v. BMW

Healthcare, Inc., 100 S.W.3d 8, 14, a wrongful death case involving an overdose

of sedatives at a nursing home. All of these cases cited by Appellant have one

thing in common: they are all medical malpractice causes of action involving

specialized fields of medicine and cases where the negligent act or omission was

directly related to the performance of a specific medical procedure as opposed to

the maintenance of a medical practice’s premises and office equipment.

Appellant cites Strom v. Memorial Hospital System, a medical malpractice

case involving knee replacement surgery which alleged the plaintiff's injury was

26 caused by nurses' negligent placement of plaintiff on the operating room table.

The expert report in Strom was found to be insufficient without statements as to

how to properly place a patient on the operating table. Strom v. Memorial Hospital

System, 110 S.W.3d, 216, 244 (Tex. App. - Houston [1st Dist.] 2003, pet. Denied).

However, Strom is distinguishable from Appellee’s claim against Appellant.

Unlike the Plaintiff in Strom, Appellee was not injured during the performance of

any medical procedure, but due to faulty medical equipment that failed to hold her

weight. Appellee is not alleging that she was improperly placed in the chair, or

any standard of care relating to a failure on the part of the nursing staff to treat her.

Rather the standard of care breached speaks to the condition of the balance chair

which collapsed merely upon Appellee being seated on it, and at a time when no

medical testing was being performed on Appellee.

To meet the statutory requirements under Chapter 74 of the Texas Practice

and Remedies Code, an expert report must provide a fair summary of the expert's

opinions and adequately inform the defendant of the specific conduct called into

question. In re Stacy K. Boone, 223 S.W. 3d 398, 406 (Tex. App. - Amarillo 2006,

orig. proceeding). If a court can determine the basis of a plaintiff's complaint, the

report is adequate. Id. An expert report which "adequately demonstrates the

expert's opinion that the claim has merit, implicates appellant's conduct, and

constitutes a fair summary of his report on causation is adequate." Whitfield v.

27 Henson, 385 S.W. 3d 708 (Tex. App. - Dallas 2012, no pet.). This holds true

regardless of whether or not the report addresses every causation issue that a

defendant may raise in a challenge. Id.

Plaintiff's expert gives a fair summary of the standard of care given what is

known about Plaintiff's injury and the simplistic facts and circumstances leading to

Plaintiff's injury. The facts of each individual case control the detail required in

the expert report, as the standard is whether the plaintiff has made a "good faith

effort" to meet the statutory requirement. See Tex. Civ. Prac. & Rem. Code

§74.351(1). This analysis necessarily varies depending on the facts of each

particular case. The qualifications of the medical staff supervising Plaintiff and the

maintenance history of the chair are not known at this time. Nothing is known

about the design or condition of the chair except for facts and inferences drawn

from medical records, and given Appellee’s limited discovery rights at this early

stage in the litigation, Appellee has limited tools available to acquire greater

information. Therefore, Appellee has used its best efforts and acted in good faith

to comply with the statutory requirements of the Texas Medical Liability Act

C. Dr. Ravdel's Expert Report is not based on unsupported assumptions, but rather, on limited, yet obvious facts.

While simplistic, Dr. Ravdel's causation opinion is not conclusory or based

on assumptions. His expert opinion is simple only because the facts surrounding

Plaintiff's injuries are equally simple, making the doctrine of res ipsa loquitur 28 applicable in this case. Given the common sense facts and inferences underlying

Plaintiff's claim, there is simply no way for Dr. Ravdel to reach any other

conclusion except that the medical chair used for balance testing would not have

rolled and fallen over if it had been properly maintained and grounded.

Dr. Ravdel's opinions were not based on unsupported assumptions as alleged

by Appellant, but were in fact inferences drawn from Appellee's medical records.

In Benish v. Grottie, Appellant argued the trial court abused its discretion in

finding Appellee's expert report provided a fair summary of the standard of care

and causal relationship when the expert's opinions were based on unsupported

assumptions. However, the appellate court found it was clear from the report, that

the expert made inferences based on the medical records, a practice that is accepted

by the courts. Benish v. Grottie, 281 S.W.3d 184, 195 (Tex. App. - Fort Worth

2009, pet denied).

D. Dr. Ravdel's Expert Report clearly explains that Plaintiff would not have fallen and sustained injuries if the medical chair used for balance testing had been properly maintained.

Appellant alleges Dr. Ravdel's causation opinions are lacking explanation of

how different care would have prevented Appellee's injuries. As previously stated,

Dr. Ravdel's expert opinion is simple because the facts surrounding Plaintiff's

injuries are equally simple, making the doctrine of res ipsa loquitur applicable in

this case. Upon Plaintiff being seated in the chair, the chair did not hold Plaintiff’s

29 weight. There is no reason to believe medical treatment outside of proper

maintenance to the balancing chair, either direct or indirect, had anything to do

with the injuries sustained by Appellee. At the time of the Appellee’s injury, no

medical doctor or any member of Appellant’s staff was present in the patient room.

The only person in the patient room other than Appellee was a non-physician

Onsite Balance Solutions tech. The tech describes the incident in an email to

Appellant, where he clearly implies that whatever caused the chair to fall had

nothing to do with the practice of any medical procedure. (CR 2nd Supp. 75). He

states that after moving his medial equipment, he noticed that the “chair was

starting to tilt on its back, so [I] moved to stand on the base to give the base more

weight. Despite this the chair fell slowly on its back” (CR 2nd Supp. 75). Within

this factual backdrop, Appellee’s medical expert was able to fairly conclude that

the chair began to roll, ultimately falling to the ground and taking Plaintiff down

with it. He further concluded that Appellee fell to the floor with the chair, falling

on the left side of her body when the chair flipped on its side (CR 67). Given the

common sense facts and inferences underlying Appellee's claim, there is simply no

way for Dr. Ravdel to reach any other conclusion except that the medical chair

used for balancing testing would not have rolled and fallen over if it had been

properly maintained.

30 CONCLUSION

The Texas Supreme Court requires an analysis into the gravamen of the

claim in order to determine if the claim is a health care liability claim subject to the

Texas Medical Liability Act, Chapter 74 of the Civil Practice and Remedies Code.

In this case, the gravamen of the claim is the proper maintenance and repair of a

chair. The simple fact that an injury occurred on a healthcare providers premises is

not enough to make it subject to the Texas medical Liability Act.

In this case, the underlying nature or gravamen of the claim is the proper

maintenance and repair of a chair. A safety claim must "involve a more logical

coherent nexus to health care." Twilley at 6-7. The simple fact that the injury

occurred on a healthcare provider’s premises is not enough to make it subject to

the Texas medical Liability Act. Id. In this case, Appellee does not need expert

medical testimony to prove the merits of her claim, as it is unrelated to healthcare.

One would be hard pressed to locate a qualified expert under the statute who was

also competent to opine on the relevant accepted standards of care on the proper

installation and maintenance of a vertigo / balancing chair. A medical report

would not shed any light on whether the chair was properly maintained and

inspected or if it constituted an unreasonable risk of harm.

Appellee maintains that her claim is not a health care liability claim and

therefore not subject to the Chapter 74 expert report requirement. However, in the

31 alternative, if the claim is found subject to Chapter 74 of the Tex. Civ. Prac. &

Rem. Code, Appellee's expert is qualified to provide expert testimony and has

given a fair summary of the standard of care and causal relationship given what is

known about Plaintiff's injury and the simplistic facts and circumstances leading to

said injury.

PRAYER

For the above reasons, this Court should affirm the trial court's order

denying Appellant's motion to dismiss.

32 CERTIFICATE OF COMPLIANCE

I certify that this brief was prepared with Microsoft Word 2010, and that, according to that program’s word-count function, the sections covered by Texas Rule of Appellate Procedure 9.4(i)(1) contain 8,958 words.

/s/ Alexander Forrest _________________________ ALEXANDER FORREST

CERTIFICATE OF SERVICE

In accordance with Rule 9.5(e) of the Texas Rules of Appellate Procedure, I certify that a copy of Appellant’s Brief was served on Plaintiff’s counsel by certified mail, return receipt requested and e-filing on this 17th of June, 2015.

Garry Sommer James R. Boston, Jr. Boston & Hughes, P.C. 8584 Katy Freeway, Suite 310 Houston, Texas 77057 Telephone: (713) 961-1122 gsommer@bostonhughes.com jboston@bostonhughes.com

/s/ Alexander Forrest _________________________ ALEXANDER FORREST