Opinion issued August 21, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00296-CV ——————————— SHEILA FOSTER, Appellant V. SPRING HOSPITAL, HEIGHTS HOSPITAL, AND NORTH HOUSTON SURGICAL HOSPITAL, LLC, Appellees
On Appeal from the 295th District Court Harris County, Texas Trial Court Case No. 2022-81813
MEMORANDUM OPINION This appeal arises from a trial court’s dismissal of a health care liability claim
(HCLC) for failure to serve a medical expert report under the Texas Medical
Liability Act (TMLA).1
A patient being discharged from a hospital the day after knee surgery was
injured in a fall outside the hospital’s front entrance as staff assisted her in
transferring from a wheelchair to a car. The patient brought a negligence action
against the hospital. The issue presented is whether the claim constitutes a HCLC—
thus requiring an expert report.
We conclude that the patient’s claim fits within the statutory definition of a
HCLC. Therefore, she was required to serve the hospital with an expert report.
Because it is undisputed that she did not, the trial court was statutorily required to
dismiss her suit. We affirm the trial court’s dismissal.
Background
Sheila Foster underwent surgery on her right knee at Spring Hospital. During
discharge the next day, hospital staff directed Foster’s husband to drive to the front
of the hospital to pick up Foster.
Hospital staff brought Foster outside to the waiting car in a wheelchair and
positioned her at a passenger-side seat. During the transfer, a staff member lifted
Foster’s left leg up into the car—a sport–utility vehicle. This action resulted in
1 See TEX. CIV. PRAC. & REM. CODE § 74.351. 2 Foster shifting her weight to her right leg. Foster’s right knee—which was numb
and immobilized from surgery—buckled, and she fell to the ground.
In her fall, Foster’s knee bent backwards under her body, and she twisted her
back. She immediately felt pain and screamed. Foster contacted her physician, who
sent her to the emergency room. Foster later underwent back surgery. She attributes
her need for back surgery to injuries she sustained in the fall.
Foster sued the hospital2 under an ordinary negligence theory. She alleged
that the hospital’s staff “worked as nurses and assistants whose job it was to help
discharged patients out to their cars and leave the hospital without any further
injury.” She alleged that staff failed to recognize that she had recently undergone
surgery on her right knee and could not use her knee like a person of “ordinary
health.” And they failed to bring her to the driver’s-side back seat—where she could
have stood on her left leg to get into the car. Further, according to Foster, hospital
staff breached a duty of care in lifting her and allowing her to fall. She alleged that
the staff’s acts and omissions caused her injuries and that the hospital was
vicariously liable under the doctrine of respondeat superior.
2 Foster originally named “Spring Hospital, Heights Hospital, and North Houston Surgical Hospital, LLC” as defendants. She later amended her petition to correct the named defendants to “North Houston Surgical Hospital, LLC, d/b/a Spring Hospital and d/b/a The Heights Hospital.” However, the case remained as previously styled.
3 The hospital filed a motion to dismiss Foster’s suit. It argued that her claim
constitutes a HCLC, that she failed to serve the statutorily required expert report,
and that therefore the TMLA mandated dismissal.
Foster argued that the incident occurred after she was released from medical
care and during assistance by non–medical staff, whose role was to assist discharged
patients to vehicles. According to Foster, her claim sounds in ordinary negligence,
not medical malpractice, and thus no expert report was required.
After conducting a hearing, the trial court granted the hospital’s motion and
dismissed Foster’s suit.
Health Care Liability Claim
In her first and second issues, Foster argues that the trial court erred in
concluding that her claim is a HCLC and dismissing her suit for failure to serve an
expert report. In her third issue, Foster asserts that the trial court’s dismissal
“violated” section 256.002 of the Texas Health and Safety Code. We address these
related issues together.
A. Standard of Review and Legal Principles
The TMLA “is a statutory framework intended to reduce excessive frequency
and severity of medical tort claims without unduly restrict[ing] a claimant’s rights.”
Leibman v. Waldroup, 715 S.W.3d 367, 373 (Tex. 2025) (internal quotations
omitted). “To that end, the [TMLA] strikes a careful balance between eradicating
4 frivolous claims and preserving meritorious ones by distinguishing ordinary tort
claims from statutorily defined HCLCs and imposing additional requirements upon
plaintiffs asserting the latter.” Id. (internal quotations omitted).
The TMLA defines a HCLC as a “cause of action against a health care
provider . . . 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.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13).
The statute defines a “health care provider” as “any person, partnership,
professional association, corporation, facility, or institution duly licensed, certified,
registered, or chartered by the State of Texas to provide health care.” Id.
§ 74.001(a)(12)(A). This includes hospitals and hospital systems, along with their
employees, independent contractors, and agents “acting in the course and scope of
the employment or contractual relationship.” Id. § 74.001(a)(11), (a)(12)(B).
Whether a claim constitutes a HCLC is a question that we review de novo.
Collin Creek Assisted Living Ctr., Inc. v. Faber, 671 S.W.3d 879, 885 (Tex. 2023).
We focus on the claim’s “underlying nature,” not on the plaintiff’s label or legal
theory. Id. We consider the “operative facts underlying the claim that are relevant
to the alleged injury,” as drawn from the pleadings, motions and responses, and
relevant evidence properly admitted. Id. at 885–86 (internal quotations omitted).
5 If the operative facts “could support [a] claim[] against a . . . health care
provider for departures from accepted standards of medical care, health care, or
safety or professional or administrative services directly related to health care, then
the TMLA applies.” Id. at 885. A “claimant cannot avoid the [TMLA’s] application
by artfully pleading claims for ordinary negligence or premises liability.” Id. at 886.
“[T]he breadth of the TMLA creates a rebuttable presumption that a patient’s claim[]
against a . . . health care provider based on facts implicating the defendant’s conduct
during the patient’s care, treatment, or confinement” is a HCLC. Rogers v. Bagley,
623 S.W.3d 343, 350 (Tex. 2021) (internal quotations omitted).
If a cause of action is a HCLC, the TMLA requires the claimant to serve the
defendant with an expert report describing the applicable standard of care, the
manner in which the defendant’s conduct failed to meet that standard, and the causal
relationship between that failure and the claimant’s harm. TEX. CIV. PRAC. & REM.
CODE § 74.351(a), (r)(6); Collin Creek, 671 S.W.3d at 885. If a claimant fails to
serve a compliant report within 120 days after the defendant files its original answer,
the trial court, on the motion of the affected health care provider, must dismiss the
claim with prejudice and award the provider reasonable attorney’s fees and costs.
TEX. CIV. PRAC. & REM. CODE § 74.351(a), (b); Collin Creek, 671 S.W.3d at 885.
6 B. Foster’s Claim is a HCLC
Based on the above, Foster’s claim is a HCLC if (1) the hospital is a health
care provider, (2) her claim is for treatment, lack of treatment, or another departure
from accepted standards of medical care, health care, safety or professional or
administrative services directly related to health care, and (3) her claim is that the
hospital’s acts or omissions proximately caused her injuries. See Collin Creek, 671
S.W.3d at 886; see also TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13).
The first element is satisfied. The defendant hospital and its staff meet the
statutory definition of a “health care provider.” See TEX. CIV. PRAC. & REM. CODE
§ 74.001(a)(11), (a)(12) (“health care provider” includes hospital and its employees,
independent contractors, and agents “acting in the course and scope of the
employment or contractual relationship”); Collin Creek, 671 S.W.3d at 886. Foster
does not dispute that the staff members assisting her were “acting in the course and
scope of the[ir] employment or contractual relationship” with the hospital. See TEX.
CIV. PRAC. & REM. CODE § 74.001(a)(12)(B).
The third element is also satisfied. Foster alleges that the acts or omissions of
hospital staff proximately caused her injuries. See id. § 74.001(a)(13); Collin Creek,
671 S.W.3d at 886–87; Rogers, 623 S.W.3d at 349.
Whether Foster’s claim is a HCLC therefore turns on the second element—
whether her claim is for treatment, lack of treatment, or another departure from
7 accepted standards of medical care, health care, safety or professional or
administrative services directly related to health care. See TEX. CIV. PRAC. & REM.
CODE § 74.001(a)(13); Collin Creek, 671 S.W.3d at 887; Rogers, 623 S.W.3d at 350.
The hospital argues that the second element is satisfied because Foster’s claim
concerns a departure from accepted safety standards.
1. Safety Standards
“For a safety standards-based claim to be an HCLC there must be a
substantive nexus between the safety standards allegedly violated and the provision
of health care.” Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 504 (Tex.
2015). “The pivotal issue 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. at 505.
The TMLA does not define “safety,” but the supreme court has defined it as
“being secure from danger, harm or loss.” Collin Creek, 671 S.W.3d at 890 (internal
quotations omitted). The TMLA defines “health care” as “any act or treatment
performed or furnished, or that should have been performed or furnished, by any
health care provider for, to, or on behalf of a patient during the patient’s medical
care, treatment, or confinement.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10).
In Ross, the Texas Supreme Court set forth the following non-exclusive list
of factors to consider in determining whether this “substantive nexus” exists:
8 1. Did the alleged negligence of the defendant occur in the course of the defendant’s performing tasks with the purpose of protecting patients from harm; 2. Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special medical care was implicated; 3. At the time of the injury was the claimant in the process of seeking or receiving health care; 4. At the time of the injury was the claimant providing or assisting in providing health care; 5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider; 6. If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; [and] 7. Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety-related requirements set for health care providers by governmental or accrediting agencies?
Ross, 462 S.W.3d at 5053; see City of Houston v. Houston, 608 S.W.3d 519, 530
(Tex. App.—Houston [1st Dist.] 2020, no pet.) (not all Ross factors need apply).
In addition to these factors, “[t]he necessity of expert testimony to support or
refute the allegations at issue is a factor in assessing the nature of a claim against a
3 “[C]ourts may address the second element using a single Ross analysis,” whether the operative facts concern alleged departures from (1) health care standards that implicate safety; (2) safety standards with a direct relationship to the provision of health care; and/or (3) safety standards with a substantive nexus to the provision of health care. Collin Creek Assisted Living Ctr., Inc. v. Faber, 671 S.W.3d 879, 887 (Tex. 2023) (if claim alleges departures from both safety and health care standards, or it is unclear, “courts need not spend time and resources trying to parse whether the claim falls on the health care or safety side of the line”). Thus, “Ross applies to all safety standard claims.” See id. 9 health care provider.” Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 182
(Tex. 2012). However, the fact that expert testimony may not ultimately be
necessary to support a verdict at trial does not necessarily mean that the claim is not
a health care liability claim. Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005).
The supreme court’s analysis in Collin Creek illustrates an application of the
Ross factors, along with the necessity of expert testimony. 671 S.W.3d at 884, 894.
There, a resident of an assisted living facility was injured in a fall outside the front
entrance of the facility as staff assisted her to a private vehicle. Id. at 884, 892. Staff
transported the resident on the seat of a rolling walker down a sidewalk. Id. at 884.
The walker lodged in a crack in the concrete and tipped over—causing the resident
to fall and suffer injuries that resulted in her death. Id. The resident’s family sued
the facility under negligence and premises-liability theories. Id. The facility moved
to dismiss the suit, arguing that the family’s cause of action was a HCLC and that
they had failed to timely serve an expert report. Id.
The first three Ross factors supported the required nexus in Collin Creek. The
injury occurred while facility staff assisted the resident to her daughter’s car. Id. at
891–92 (alleged negligence occurred while defendant performed tasks to protect
patient from harm). The location of the injury—outside the facility’s front
entrance—was a path through which facility residents were commonly transported
and transferred into vehicles. Id. at 892. The facility had an obligation to prevent
10 falls in the area of the front entrance when staff assistance was required. Id. (injuries
occurred in place where patients might be while receiving care, so that obligation of
provider to protect persons who require special medical care was implicated). And
the resident was receiving health care from the facility—assistance with
ambulating—at the time she fell. Id. (claimant receiving health care at time of
injury).
The fifth and seventh Ross factors also supported the required nexus in Collin
Creek. The standard of care at issue arose from the facility’s professional duties to
safely provide assistance with ambulation. Id. at 893–94. In addition, the alleged
negligence involved the violation of statutes and regulations imposed on health care
providers that required them to provide minimum acceptable levels of care and
protect resident health and safety. See id. at 893–95.
There, the sixth factor was also satisfied in that the walker was of a type used
in providing care—and its manner of use was “a question well suited to expert
testimony.” Id. at 894.
The supreme court held in Collin Creek that these factors demonstrated a
substantive nexus between the provision of health care and the alleged violations of
safety standards that led to the resident’s injuries and death. Id. at 891. Thus, the
family’s cause of action was a HCLC and an expert report was required. Id. at 895.
11 2. Foster’s Claim
Here, the operative facts are that during Foster’s discharge from the hospital
the day after knee surgery, hospital staff directed her husband to drive to the front of
the hospital to pick her up. Hospital staff then brought Foster outside in a wheelchair
to her family’s waiting car. A staff member positioned Foster at a passenger-side
seat and assisted her with transferring into the car. The staff member lifted Foster’s
left leg up into the sport–utility vehicle. This action resulted in Foster shifting her
weight to her right leg. Foster’s right knee—which was numb and immobilized from
surgery—buckled. She fell to the ground and was injured, requiring back surgery.
Foster states in her brief that the complained-of acts and omissions occurred
“while being discharged from the hospital” and in the course of the hospital’s “nurses
and assistants” helping her—a post-surgical patient with limited mobility—to her
car so that she could “leave the hospital without further injury.”
Foster argues that her “claims are directly related to the hospital’s failure to
comply with [its] statutory duty” at section 256.002 of the Health and Safety Code.
According to Foster, the purpose of section 256.002 “is to protect patients during the
vulnerable transition from hospital care to home.” And it “requires hospitals to
ensure patient safety during discharge” and “imposes a duty on hospitals to provide
safe and appropriate discharge procedures including assistance to patients leaving
the facility.”
12 Thus, not only does Foster not address the Ross factors in her brief, but she
largely concedes the substantive nexus between the hospital’s provision of health
care and the alleged violation of safety standards that led to her injuries. See id. at
891.
With respect to the hospital’s provision of health care, the first, second, and
third Ross factors support the required nexus. See Ross, 462 S.W.3d at 505.
First, Foster’s injuries occurred while hospital staff assisted her to her
husband’s car. See Collin Creek, 671 S.W.3d at 891–92. And Foster required
assistance with transferring from the wheelchair to the car, which hospital staff
undertook to protect her from further injury. See id. at 892; Ross, 462 S.W.3d at 505
(alleged negligence occurred while defendant performed tasks to protect patient
from harm).
Second, Foster’s injuries occurred outside the front entrance of the hospital
“while being discharged,” and she asserts that the hospital had a duty to protect her—
a patient who required special medical care—from injury while she transferred to
her car. See Ross, 462 S.W.3d at 505 (injuries occurred in location where patients
might be while receiving care such that health care provider’s obligation to protect
persons who require special medical care was implicated); see also Collin Creek,
671 S.W.3d at 892 (noting that residents were commonly transported and transferred
into vehicles through front entrance and that staff was provided to prevent falls).
13 Third, Foster was in the process of receiving health care at the time of her
injury. See Ross, 462 S.W.3d at 505 (whether claimant was seeking or receiving
health care at time of injury); see also Collin Creek, 671 S.W.3d at 892. Foster states
that she was “being discharged” from medical care at the time of her injury. And it
is undisputed that Foster—a post-operative patient—was being assisted to her car
under the care and direction of hospital “nurses and assistants.” See TEX. CIV. PRAC.
& REM. CODE § 74.001(a)(10) (“health care” includes any act by any health care
provider for, to, or on behalf of patient during patient’s medical care); see also
Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 395 (Tex. 2011)
(“‘[H]ealth care’ involves more than acts of physical care and medical diagnosis and
treatment.”).
Foster complains that she “had been released from the doctor’s care,” was “no
longer under the care of her physician or a healthcare provider.” She argues that she
was instead under the “direction of a staff member [who] did not directly provide
medical care or treatment to [her].”
As discussed above, the hospital and its staff are statutorily defined as “health
care providers.” Thus, Foster was under the care of a health care provider at the time
of her injury.
14 With respect to safety standards, the fifth Ross factor requires us to consider
whether the alleged negligence is based on safety standards arising from professional
duties owed by the health care provider. See Ross, 462 S.W.3d at 505.
Foster’s allegations are that (1) hospital “nurses and assistants” failed to
recognize that she had recently undergone surgery on her right knee and could not
bear weight on the leg like a person of “ordinary health”; (2) staff failed to use proper
judgment in transferring her into the car; and (3) staff failed to exercise proper care
in lifting her into the car and allowing her to fall. Thus, Foster alleges that hospital
staff breached safety standards that arise from their duty to exercise sound
professional judgment, i.e., comply with the standard of care with respect to handling
a patient with post-surgical limitations. See id.
In addition, the standard of care applicable to hospital nurses and staff in
handling a newly post-operative knee patient is an issue that would benefit from
expert testimony. See, e.g., Tenet Hosps. Ltd. v. Barajas, 451 S.W.3d 535, 548 (Tex.
App.—El Paso 2014, no pet.) (concluding expert reports as to whether hospital nurse
breached the standard of care by not seeking assistance of other nurses or aides to
assist newly post-operative knee patient with transfer from recliner chair to bedside
commode provided basis for trial court to conclude that patient’s claim had merit).
It is not within the common knowledge of the general public to determine the
abilities of newly post-operative knee patients in weakened conditions to ambulate
15 or bear weight or the standards for assisting them. In addition, the causal connection
between Foster’s fall and her alleged need for back surgery are matters that would
benefit from expert testimony.
Similarly, the seventh Ross factor requires us to consider whether the alleged
negligence occurred in the course of the hospital taking action, or failing to take
action, necessary to comply with safety-related requirements set for health care
providers by governmental or accrediting agencies. See Ross, 462 S.W.3d at 505.
Section 256.002, on which Foster relies, requires hospitals to “adopt and
ensure implementation of a policy to identify, assess, and develop strategies to
control risk of injury to patients and nurses associated with the lifting, transferring,
repositioning, or movement of a patient.” TEX. HEALTH & SAFETY CODE
§ 256.002(a). This policy requires a hospital to educate its staff on identifying,
assessing, and controlling the risk of injury during “patient handling.” Id.
§ 256.002(b)(2).
As noted above, Foster concedes on appeal that her “claims are directly related
to the hospital’s failure to comply with [its] statutory duty” in section 256.002 of the
Health and Safety Code. We agree that Foster’s allegations involve departures from
protocols that are statutorily imposed on hospitals, as well as safety procedures in
lifting, transferring, repositioning, and moving a patient, and identifying and
assessing risks in patient handling. These are not allegations of ordinary negligence.
16 On balance, the applicable Ross factors4 weigh in favor of concluding that
there is a substantive nexus between the safety standards allegedly violated and the
provision of health care. See Collin Creek, 671 S.W.3d at 891; Ross, 462 S.W.3d at
505. Foster bore the burden of rebutting the presumption that her negligence claim
is a HCLC. See Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d
357, 363 (Tex. 2019). And she has not done so.
We conclude that Foster’s claim constitutes a HCLC. See Collin Creek, 671
S.W.3d at 895; see also TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13).
C. Expert Report Requirement and Dismissal
Because Foster’s claim against the hospital is a HCLC controlled by Chapter
74 of the Texas Civil Practice & Remedies Code, she was required to serve the
hospital with an expert report and curriculum vitae within 120 days after the hospital
filed its answer. See TEX. CIV. PRAC. & REM. CODE § 74.351(a), (b). It is undisputed
that Foster did not do so. Therefore, the trial court was statutorily required to grant
the hospital’s motion to dismiss her claim. See id.; Collin Creek, 671 S.W.3d at 885.5
4 The fourth and sixth Ross factors are inapplicable. See Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 505 (Tex. 2015). 5 Foster argues that the trial court “violated” section 256.002 of the Health and Safety Code by dismissing her claim under section 74.351. See TEX. CIV. PRAC. & REM. CODE § 74.351(b); TEX. HEALTH & SAFETY CODE § 256.002. Even if we were to conclude that any conflict existed, Chapter 74 of the Civil Practice and Remedies Code states that, “[i]n the event of a conflict between this chapter and another law, . . . this chapter controls to the extent of the conflict.” TEX. CIV. PRAC. & REM. CODE § 74.002(a). 17 We hold that the trial court did not err in dismissing Foster’s claim for failure
to file an expert report.
We overrule Foster’s three issues.
Conclusion
We affirm the trial court’s order of dismissal in all things.
Terry Adams Chief Justice
Panel consists of Chief Justice Adams and Justices Caughey and Johnson.