ACCEPTED 12-13-00005-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 12/29/2014 7:57:38 PM CATHY LUSK CLERK
NO. 12-13-00005-CV ___________________________________________ FILED IN 12th COURT OF APPEALS In the Court of Appeals TYLER, TEXAS 12/29/2014 7:57:38 PM for the Twelfth Judicial District at Tyler, Texas CATHY S. LUSK Clerk ___________________________________________
THE GOOD SHEPHERD HOSPITAL, INC., Appellant,
v.
RONALD MASTEN and CHARLENE MASTEN, Appellees. _____________________________________________
Appealed from the 188th Judicial District Court of Gregg County, Texas Cause No. 2012-876-A _____________________________________________
APPELLANT’S MOTION FOR REHEARING _____________________________________________
Respectfully submitted, MCCATHERN, PLLC David W. Dodge DDodge@McCathernLaw.com State Bar No. 24002000 Regency Plaza 3710 Rawlins, Ste. 1600 Dallas, Texas 75219 (214) 741-2662 - Telephone (214) 741-4717 - Facsimile
ATTORNEYS FOR APPELLANT
1 APPELLANT’S MOTION FOR REHEARING
1. Appellant respectfully requests that the Court of Appeals withdraw its
December 3, 2014 Memorandum Opinion in this matter, and grant judgment to
Appellant. Alternatively, Appellant requests the Court vacate the judgment for
Appellees and await forthcoming guidance from the Texas Supreme Court when it
hands down its opinion in Ross v. St. Luke's Episcopal Hospital, No. 13-0439.
A. The Court Should Grant Judgment for Appellant because the Logic of Vargas is Flawed.
2. In the Memorandum Opinion, the Court relies on a recent opinion
from the El Paso Court of Appeals to dispense with Appellant’s argument that
Appellees’ express reliance on safety regulations that only apply to emergency
medical service providers creates a nexus between those claims and the provision
of health care. See Memorandum Opinion at 7-8 (quoting East El Paso Physicians
Medical Center, L.L.C. v. Vargas, --- S.W.3d ----, No. 08-13-00358-CV, 2014 WL
5794622, *6 (Tex. App.—El Paso, Nov. 7, 2014, pet. filed)). With respect to the
Court, its reliance on Vargas is misplaced.
3. Although not part of the opinion quoted by this Court, the principal
conclusion reached by the El Paso Court in Vargas was that, although “Vargas’
pleaded claims may touch on or implicate hospital licensure regulations, Twilley
makes clear that the existence of an on-point safety regulation does not convert a
2 claim into a safety HCLC . . . .” Vargas, 2014 WL 5794622 at *5. It is this
conclusion that leads to the portion of the opinion cited by the Court. Yet, this
conclusion is an answer to a question that was never asked.
4. Neither the hospital in Vargas nor Appellant here argued that safety
regulations that apply generically to all types of industries—such as the OSHA
regulations at issue in Twilley—established a nexus between the claimant’s cause
of action and health care. Rather, it is the fact that the safety regulation both: (a)
specifically applies only to healthcare providers; and (b) is expressly made a basis
of liability by the claimant, that supplies any necessary connection to healthcare.
5. Those two elements exist here. As Appellant argued in its Reply:
Appellees cannot escape the close relationship of their claim to Good Shepherd’s provision of emergency medical services because they expressly base their claims on Appellants’ alleged deviations from “industry safety standards”—safety standards their experts identify as being established under the Emergency Healthcare Act. Id.; CR 158 (Plaintiffs’ Original Petition at 7); CR 600 (Shipp report alleging violation of 25 TAC § 157.11(d) related to vehicle maintenance); Appx. Ex. 3. In light of this express reliance on the EMS safety regulations—regulations that apply only to providers of emergency medical services—it is impossible for Appellees to show that their claims are “entirely unrelated to health care.” Twilley, 2013 WL 772136 at *4 (emphasis in original). Appellant’s Reply Brief at 5 (footnotes omitted).
6. The fact that Appellees specifically base liability on the allegation that
safety regulations exclusively applicable to Good Shepherd as an emergency
3 medical services provider itself supplies a sufficient nexus to healthcare to trigger
application of the Texas Medical Liability Act (“TMLA”). Thus, if the question is,
as the El Paso Court of Appeals stated: “[W]hether the plaintiff alleged that the
health care provider defendant breached safety standards indirectly related to
health care,” then the answer here is emphatically “yes”.1
7. As noted below, the Vargas opinion also conflicts with this Court’s
decision in Reddic, an opinion which is much more closely aligned with the
Fourteenth Court of Appeals’ decision in Ross. See Vargas, 2014 WL 5794622 at
*3 (grouping Reddic and Ross together as cases that require no nexus between
safety and the provision of healthcare).
8. Appellant recognizes that this Court would likely view the El Paso
Court’s interpretation of Reddic as incorrect on the same basis the Court
distinguished Reddic in the Memorandum Opinion. However, the basis for this
Court finding an indirect relationship to the provision of healthcare in Reddic is
also present here. Specifically, in Reddic, the Court reasoned there was an indirect
connection to healthcare because the duty allegedly breached was equally
applicable to patients and hospital visitors alike. Memorandum Opinion at 6.
1 The El Paso Court of Appeals’ recognition that Ms. Vargas’ claims “touch[ed] on or implicate[d]” the referenced hospital-specific regulations is, in effect, a tacit admission that those claims are not “wholly and conclusively inconsistent with and separable from the rendition of health care.” Memorandum Opinion at 4.
4 9. Yet this is also true of the specialized emergency medical services
regulations allegedly violated in this case—they exist to keep safe Good Shepherd
patients and employees alike. See, e.g., Appellant’s Brief at 25 (citing 25 TAC §
157.11(d)(1) - “[a]ll EMS vehicles must be adequately constructed, equipped,
maintained and operated to render patient care, comfort and transportation safely
and efficiently.” (emphasis added)). The difference is that the regulations cited by
Appellant apply only to emergency medical service providers. Thus, if anything,
the regulations cited by Appellant, and relied on by Appellees as a basis for its
alleged liability, bear a much closer relationship to the provision of healthcare than
do the negligence duties arising from the common law of premises liability in
Reddic.
10. It is no answer to say that Appellant’s alleged acts and omissions are
also claimed to violate OSHA regulations. The TMLA does not permit “claim
splitting.” Yamada v. Friend, 335 S.W.3d 192, 195–96 (Tex. 2010). Either a
claimant’s allegations have a relationship to healthcare or they do not. Because the
Appellee’s allegations here are at least as closely related to the provision of
healthcare as those of the plaintiff in Reddic, the requisite nexus (if any is required)
was established.
5 B. The Court Should Await the Texas Supreme Court’s Opinion in Ross.
11. If the Court is unwilling to grant judgment to Appellant, it should
vacate the judgment, withdraw its Memorandum Opinion and reconsider the appeal
after the Texas Supreme Court issues its decision in Ross v. St. Luke's Episcopal
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ACCEPTED 12-13-00005-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 12/29/2014 7:57:38 PM CATHY LUSK CLERK
NO. 12-13-00005-CV ___________________________________________ FILED IN 12th COURT OF APPEALS In the Court of Appeals TYLER, TEXAS 12/29/2014 7:57:38 PM for the Twelfth Judicial District at Tyler, Texas CATHY S. LUSK Clerk ___________________________________________
THE GOOD SHEPHERD HOSPITAL, INC., Appellant,
v.
RONALD MASTEN and CHARLENE MASTEN, Appellees. _____________________________________________
Appealed from the 188th Judicial District Court of Gregg County, Texas Cause No. 2012-876-A _____________________________________________
APPELLANT’S MOTION FOR REHEARING _____________________________________________
Respectfully submitted, MCCATHERN, PLLC David W. Dodge DDodge@McCathernLaw.com State Bar No. 24002000 Regency Plaza 3710 Rawlins, Ste. 1600 Dallas, Texas 75219 (214) 741-2662 - Telephone (214) 741-4717 - Facsimile
ATTORNEYS FOR APPELLANT
1 APPELLANT’S MOTION FOR REHEARING
1. Appellant respectfully requests that the Court of Appeals withdraw its
December 3, 2014 Memorandum Opinion in this matter, and grant judgment to
Appellant. Alternatively, Appellant requests the Court vacate the judgment for
Appellees and await forthcoming guidance from the Texas Supreme Court when it
hands down its opinion in Ross v. St. Luke's Episcopal Hospital, No. 13-0439.
A. The Court Should Grant Judgment for Appellant because the Logic of Vargas is Flawed.
2. In the Memorandum Opinion, the Court relies on a recent opinion
from the El Paso Court of Appeals to dispense with Appellant’s argument that
Appellees’ express reliance on safety regulations that only apply to emergency
medical service providers creates a nexus between those claims and the provision
of health care. See Memorandum Opinion at 7-8 (quoting East El Paso Physicians
Medical Center, L.L.C. v. Vargas, --- S.W.3d ----, No. 08-13-00358-CV, 2014 WL
5794622, *6 (Tex. App.—El Paso, Nov. 7, 2014, pet. filed)). With respect to the
Court, its reliance on Vargas is misplaced.
3. Although not part of the opinion quoted by this Court, the principal
conclusion reached by the El Paso Court in Vargas was that, although “Vargas’
pleaded claims may touch on or implicate hospital licensure regulations, Twilley
makes clear that the existence of an on-point safety regulation does not convert a
2 claim into a safety HCLC . . . .” Vargas, 2014 WL 5794622 at *5. It is this
conclusion that leads to the portion of the opinion cited by the Court. Yet, this
conclusion is an answer to a question that was never asked.
4. Neither the hospital in Vargas nor Appellant here argued that safety
regulations that apply generically to all types of industries—such as the OSHA
regulations at issue in Twilley—established a nexus between the claimant’s cause
of action and health care. Rather, it is the fact that the safety regulation both: (a)
specifically applies only to healthcare providers; and (b) is expressly made a basis
of liability by the claimant, that supplies any necessary connection to healthcare.
5. Those two elements exist here. As Appellant argued in its Reply:
Appellees cannot escape the close relationship of their claim to Good Shepherd’s provision of emergency medical services because they expressly base their claims on Appellants’ alleged deviations from “industry safety standards”—safety standards their experts identify as being established under the Emergency Healthcare Act. Id.; CR 158 (Plaintiffs’ Original Petition at 7); CR 600 (Shipp report alleging violation of 25 TAC § 157.11(d) related to vehicle maintenance); Appx. Ex. 3. In light of this express reliance on the EMS safety regulations—regulations that apply only to providers of emergency medical services—it is impossible for Appellees to show that their claims are “entirely unrelated to health care.” Twilley, 2013 WL 772136 at *4 (emphasis in original). Appellant’s Reply Brief at 5 (footnotes omitted).
6. The fact that Appellees specifically base liability on the allegation that
safety regulations exclusively applicable to Good Shepherd as an emergency
3 medical services provider itself supplies a sufficient nexus to healthcare to trigger
application of the Texas Medical Liability Act (“TMLA”). Thus, if the question is,
as the El Paso Court of Appeals stated: “[W]hether the plaintiff alleged that the
health care provider defendant breached safety standards indirectly related to
health care,” then the answer here is emphatically “yes”.1
7. As noted below, the Vargas opinion also conflicts with this Court’s
decision in Reddic, an opinion which is much more closely aligned with the
Fourteenth Court of Appeals’ decision in Ross. See Vargas, 2014 WL 5794622 at
*3 (grouping Reddic and Ross together as cases that require no nexus between
safety and the provision of healthcare).
8. Appellant recognizes that this Court would likely view the El Paso
Court’s interpretation of Reddic as incorrect on the same basis the Court
distinguished Reddic in the Memorandum Opinion. However, the basis for this
Court finding an indirect relationship to the provision of healthcare in Reddic is
also present here. Specifically, in Reddic, the Court reasoned there was an indirect
connection to healthcare because the duty allegedly breached was equally
applicable to patients and hospital visitors alike. Memorandum Opinion at 6.
1 The El Paso Court of Appeals’ recognition that Ms. Vargas’ claims “touch[ed] on or implicate[d]” the referenced hospital-specific regulations is, in effect, a tacit admission that those claims are not “wholly and conclusively inconsistent with and separable from the rendition of health care.” Memorandum Opinion at 4.
4 9. Yet this is also true of the specialized emergency medical services
regulations allegedly violated in this case—they exist to keep safe Good Shepherd
patients and employees alike. See, e.g., Appellant’s Brief at 25 (citing 25 TAC §
157.11(d)(1) - “[a]ll EMS vehicles must be adequately constructed, equipped,
maintained and operated to render patient care, comfort and transportation safely
and efficiently.” (emphasis added)). The difference is that the regulations cited by
Appellant apply only to emergency medical service providers. Thus, if anything,
the regulations cited by Appellant, and relied on by Appellees as a basis for its
alleged liability, bear a much closer relationship to the provision of healthcare than
do the negligence duties arising from the common law of premises liability in
Reddic.
10. It is no answer to say that Appellant’s alleged acts and omissions are
also claimed to violate OSHA regulations. The TMLA does not permit “claim
splitting.” Yamada v. Friend, 335 S.W.3d 192, 195–96 (Tex. 2010). Either a
claimant’s allegations have a relationship to healthcare or they do not. Because the
Appellee’s allegations here are at least as closely related to the provision of
healthcare as those of the plaintiff in Reddic, the requisite nexus (if any is required)
was established.
5 B. The Court Should Await the Texas Supreme Court’s Opinion in Ross.
11. If the Court is unwilling to grant judgment to Appellant, it should
vacate the judgment, withdraw its Memorandum Opinion and reconsider the appeal
after the Texas Supreme Court issues its decision in Ross v. St. Luke's Episcopal
Hosp., 14-12-00885-CV, 2013 WL 1136613 (Tex. App.—Houston [14th Dist.]
Mar. 19, 2013, pet. granted).
12. In the wake of Texas W. Oaks Hospital, LP v. Williams, 371 S.W.3d
171 (Tex. 2012), Texas Courts of Appeals have struggled to articulate and apply a
clear standard for determining whether a claim falls within the “safety” prong of
the definition of a “health care liability claim” (an “HCLC”) under the TMLA.
Specifically, the issue of what (if any) nexus must exist between the provision of
health care an alleged deviation from accepted standards of “safety” in order for
the TMLA to be triggered is one on which the Texas Courts of Appeals are split.2
Even those Courts of Appeals that require some nexus to healthcare reach differing
conclusions based on materially identical facts.3
2 See East El Paso Physicians Medical Center, L.L.C. v. Vargas, --- S.W.3d ----, No. 08-13- 00358-CV, 2014 WL 5794622, *3 (Tex. App.—El Paso, Nov. 7, 2014, pet. filed) (listing conflicting cases). 3 Compare id. (concluding “garden variety” slip and fall was not an HCLC) with E. Texas Med. Ctr. Reg'l Health Care Sys. v. Reddic, 426 S.W.3d 343 (Tex. App.—Tyler 2014, pet. filed) (concluding such a slip and fall claim was an HCLC).
6 13. It is anticipated that the Supreme Court’s decision in Ross will
substantially clarify the nexus issue. In Ross, the Fourteenth Court of Appeals held
“a connection between the act or omission and health care is unnecessary for
purposes of determining whether Ross brings an HCLC.” Ross, 2013 WL 1136613
at *1.4 The Texas Supreme Court heard oral argument in Ross on November 5,
2014, and is poised to issue an opinion in that case.5 If the Supreme Court affirms
that holding, Appellant respectfully submits that the Court of Appeals opinion in
this matter would have to be reversed. Even if the Court does not affirm, its
opinion in Ross is likely to shed much needed light on the issues raised in this
appeal.
PRAYER
WHEREFORE, Appellant prays that the Court grant this Motion for
Rehearing, vacate its judgment for Appellees, and grant judgment for Appellant.
Alternatively, Appellant requests that the Court vacate the judgment, withdraw the
Memorandum Opinion, and reconsider that decision with the benefit of the Texas
Supreme Court’s forthcoming opinion in Ross.
4 Appellant likewise argued that the TMLA does not require any connection between health care and the alleged deviation from accepted standards of “safety” for a claim to constitute an HCLC. See Appellant’s Brief at 26; Appellant’s Reply Brief at 3 & n.3. 5 The video of oral argument before the Texas Supreme court in Ross can be found at: http://texassupremecourt.mediasite.com/mediasite/Play/adababbdb285436395df86df6ce3358b1d
7 Respectfully submitted,
MCCATHERN, PLLC
/s/David W. Dodge David W. Dodge State Bar No. 24002000 Regency Plaza 3710 Rawlins, Ste. 1600 Dallas, Texas 75219 (214) 741-2662 - Telephone (214) 741-4717 - Facsimile COUNSEL FOR APPELLANT
CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(2)(D), I certify that the portion of this motion subject to Appellate Rule 9.4(i) contains 1451 words.
/s/David W. Dodge
CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Appellant’s Motion for Rehearing was served upon all parties to this appeal in accordance with the TEXAS RULES OF CIVIL AND APPELLATE PROCEDURE on this 29th day of December, 2014, via the means indicated below:
Via E-Service: Ted Lyon Bill Zook Ron McCallum Ted B. Lyon & Associates, P.C. 18601 LBJ Freeway, Suite 525 Mesquite, Texas 75150 ATTORNEYS FOR APPELLEES
/s/David W. Dodge