ORAL ARGUMENT REQUESTED No. 12

- 14

- 00220 -CV

_______________________________________________ 

## COURT OF APPEALS
for the TWELFTH DISTRICT OF TEXAS Tyler, Texas

_______________________________________________ EAST TEXAS MEDICAL CENTER GILMER Appellant ,

v. BIRDER PORTER Appellee

.

_______________________________________________ Appeal from Cause No. 697-13 115 th District Court, Upshur County, Texas Honorable Lauren Parish, Presiding Judge

_______________________________________________ APPELLANT’S REPLY TO APPELLEE’S SUPPLEMENTAL BRIEF ON APPLICATION OF ROSS v. ST. LUKE’S EPISCOPAL HOSPITAL

_______________________________________________ Russell G. Thornton T HIEBAUD R EMINGTON T HORNTON B AILEY LLP Two Energy Square 4849 Greenville Avenue, Suite 1150 Dallas, Texas 75206 (214) 954-2200 – Telephone (214) 754-0999 – Telecopier
ATTORNEYS FOR DEFENDANT – APPELLANT EAST TEXAS MEDICAL CENTER GILMER October 16, 2015 ACCEPTED 12-14-00220-CV TWELFTH COURT OF APPEALS

TYLER, TEXAS 10/16/2015 1:14:16 PM

Pam Estes CLERKi TABLE OF CONTENTS
INDEX OF AUTHORITIES

................................ ................................ .................... ii
SUMMARY OF ARGUMENT

................................ ................................ ................ 2
ARGUMENT

................................ ................................ ................................ ............ 4
CONCLUSION

................................ ................................ ................................ ......... 7
PRAYER

................................ ................................ ................................ ................... 9 CERTIFICATE OF COMPLIANCE

................................ ................................ ...... 10
CERTIFICATE OF SERVICE

................................ ................................ ............... 11ii INDEX OF AUTHORITIES TEXAS SUPREME COURT CASES Garland Community Hospital v. Rose , 156 S.W.3d 541 (Tex. 2004)

................................ ................................ ..................... 6 Loaisiga v. Cerda , 379 S.W.3d 248 (Tex. 2010)

................................ ................................ ................. 2, 4 Ross v. St. Luke’s Episcopal Hospital , 462 S.W.3d 496 (Tex. 2015)

................................ ................................ ................. 2, 41 No. 12

- 14

- 00220

- CV

___________________________________________________ COURT OF APPEALS for the
TWELFTH DISTRICT OF TEXAS Tyler, Texas

___________________________________________________ EAST TEXAS MEDICAL CENTER GILMER Appellant,

v. BIRDER PORTER Appellee.

___________________________________________________ Appeal from Cause No. 697

- 13 115 th Judicial District Court, Upshur County, Texas Honorable Lauren Parish, Presiding Judge

___________________________________________________ TO THE TWELFTH COURT OF APPE ALS: Appellant East Texas Medical Center Gilmer, defendant in Cause No. 697

- 13 in the 115 th Judicial District Court of Upshur County, Texas, Honorable
Lauren Parish presiding, pursuant to this Court’s August 4, 2015 order, respectfully submits its Reply to Appellee’s Supplemental Brief on Application of Ross v. St. Luke’s Episcopal Hospital. Appellee is Birder Porter, Plaintiff in the district court.2 SUMMARY OF ARGUMENT Appellee’s Supplemental Brief on Application of Ross v. St. Luke’s Episcopal Hospital (“Appellee’s Supplemental Brief”) correctly states an underlying issue is whether or not there is a “substantive nexus” between the safety standards violated and the provision of health care

. Appellee’s a ssertion that her
claim is not a health ca re liability claim (“HCLC”) fails to address and ignores the context within which this statement was made by the Texas Supreme Court in
Ross , as well as the overall context of this statement in the existing framework provided by the Texas Supreme Court to use in determining if a claim is an HCLC

. As stated by the Texas Supreme Court, t he real issue at hand is whether “the facts underlying a claim could support claims against a physician or health care provider for departures from accepted standards of med ical care, health care, safety or professional or administrative services directly related to health care...” Ross v. St. Luke’s Episcopal Hospital , 462 S.W.3d 496, 503 (Tex. 2015)(emphasis in original)(citing Loaisiga v. Cerda , 379 S.W.3d 248, 255 (Tex. 20 10) )

. I f a claim’s underlying facts “ could ” support a safety

- standards claim against a health care provider like East Texas Medical Center Gilmer (“ETMCG”), “the claims are HCLCs regardless of whether the plaintiff alleged the defendants were liable for a breach of the standards.” Id

.3 ETMCG’S Supplemental Brief establishes that based on existing applicable statutes, regulations and case law , Appellee could have asserted a safety claim against ETMCG for alleged departures from accepted standards of health care or safety. For that reason, Appellee’s claim against ETMCG is an HCLC as dictated by Ross and other existing Texas Supreme Court authority.4 ARGUMENT In evaluation of the application of Ross to this matter, the Court must go beyond the Texas Supreme Court’s statement that the issue i s whether or not there exists “a substantive nexus between the safety standards allegedly violated and the provision of health care.” Ross , 462 S.W.3d at 504. One must go beyond that statement because the Texas Supreme Court’s analysis and evaluation did not begin and end there. In fact, the Texas Supreme Court went beyond that statement to hold , “ the pivotal issue in a safety

- standards

- based claim is whether or not the

s tandards 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 (emphasis added).
In Ross , t he Texas Supreme Court placed its “substantive nexus” statement in the context of the existing and still valid concept that “if the facts underlying a claim could support claims against a physician or health care provider for departures from accepted standar ds of medical care health care, or safety or professional or administrative services directly related to health care, the claims are HCLCs regardless of whether plaintiff alleged defendants were liable for breach of the standards.” Id . at 503 (emphasis in original)(citing Loaisiga , 379 S.W.3d at 255). As such, the Texas Supreme Court in Ross tells appellate courts and trial courts that the touchstone issue is whether or not a claim’s underlying facts5 implicate the health care provider’s duties as a health care provider . If the healthcare provider’s duties as a healthcare provider are implicated, the claim is an HCLC, regardless of whether or not the claimant actually alleges a breach of those duties. In its Supplemental Brief on Application of Ross v. St. Luke’s Episcopal Hospital (“ETMCG’s Supplemental Brief”), ETMCG establishes and shows that it s duties as a health care provider are at least implicated by the underlying facts

. Specifically, ETMCG ’ s Supplemental Brief shows that the fact ual basis of Appel lee’s claim implicates duties placed on health care provider s like ETMCG by federal law, by Texas law, by guidelines from the United States Centers for Disease Control and Prevention (“CDC”) and the United States Occupational Health and Safety Administrati on (“OSHA”), and by regulations and guidelines of the Joint Commission (ETMCG’s Supplemental Brief, pages 8

- 15).
T he appellate court authority cited in ETMCG’s Supplemental Brief further supports this fact . In particular, ETMCG cites Texas appellate cour t decisions holding that CDC guidelines, OSHA regulations, and Joint Commission requirements not only provide evidence of the standard of care applicable to a hospital like ETMCG, but have been relied on and used by claimants in Texas to establish the appl icable standards of care and a breach of those standards in expert reports served to establish the merits of an HCLC pursuan t to Section 74.351 of the6 T EXAS C IVIL P RACTICE & R EMEDIES C ODE (ETMCG’s Supplemental Brief,
pages 18

- 19). Final support for the fact Appellee’s claim against ETMCG is an HCLC comes from the Texas Supreme Court’s decision in Garland Community Hospital
v. Rose , 156 S.W.3d 541 (Tex. 2004). In Rose , the Texas Supreme Court held that accepted standards of health care are not only implicated, but actually involved, when a hospital’s action is governed by combination of existing federal law, state law, and Joint Commission guidelines. Id. at 546 ( See also, ETMCG’s Supplemental Brief, page 19).7 CONCLUSION ETMCG has established that an existing combination of federal law, Texas law, federal guidelines and regulations , and Joint Commission regulations govern the manner in which hospital s like ETMCG must maintain their physic al premises , including floors. Because of this existing combination of law, regulations and guidelines that apply to ETMCG’s maintenance of its premises and floors , ETMCG’s duties as a health care provider and accepted standards of health care and safety are directly involved, or at the very least implicated, b y Appellee’s slip

and

- fall claim. Further, established case law shows this existing combination of law, regulations and guidelines could have been relied on or used by Appellee to support a claim against ETMCG for an alleged departure from accepted standards of health care or safety. For these reasons, based on the Texas Supreme Court’s opinion in Ross , as well as other existing Texas Supreme Court authority still entitled to stare decisis treatment, Appellee’s claim against ETMCG is an HCLC under Chapter 74 of the T EXAS C IVIL P RACTICE & R EMEDIES C ODE
. Of final note, at no place in Appellee’s Supplemental Brief on Application of Ross v. St. Luke’s Episcopal Hospital does Appellee address or rebut with any
arg uments or author ity the authority cited and relied on by ETMCG that establishes the fact Appellee’s claim is an HCLC. Appellee simply argues in a8 conclusory and superficial manner that there is no substantive nexus between her claim and the provision of health care (Appe llee’s Supplemental Brief, page 5). ETMCG has shown Appellee’s argument t o be incorrect and contrary to existing authority . Accordingly, the trial court erred in denying ETMCG’s motion to dismiss and the Tyler Court of Appeals should reverse the trial co urt’s denial of ETMCG’s motion to dismiss and dismiss Appellee’s claim against it with prejudice.9 PRAYER
Beca use the trial court erred in denying Appellant East Texas Medical Center Gilmer’s Motion to Dismiss, Appellant requests that this Twelfth Distri ct Court of Appeals:
1. Reverse the trial court’s denial of East Texas Medical Center Gilmer’s Motion to Dismiss (CR 36, Appendix “A”);
2. Dismiss with prejudice Appellee’s claim against East Texas Medical Center Gilmer, and:
3. Remand this matter to the trial court for further proceedings consistent with the above actions. Respectfully Submitted,
T HIEBAUD R EMINGTON T HORNTON B AILEY , LLP
By: /s/Russell G. Thornton RUSSELL G. THORNTON State Bar Card No. 19982850 4849 Greenville Avenue Suite 1150 Dallas, Texas 75206 (214) 954

- 2200 (214) 754

- 0999 (Fax) rthornton@ trtblaw.com10 CERTIFICATE OF COMPLIANCE
Pursuant to T EXAS R ULES OF A PPELLATE P ROCEDURE 9.4(i)(3) Appellant
certifies that its Reply to Appellee’s Supplement al Brief on Application of Ross v. St. Luke’s Episcopal Hospital , filed on October 16 , 2015, in the Twelfth Court of Appeals, contains 1,1 9 7 words.

/s/Russell G. Thornton RUSSELL G. THORNTON11 CERTIFICATE OF SERVICE The undersigned certifies that on the 16 th day of October , 2015 , a true and correct copy of the foregoing document was delivered to counsel listed below:
V IA E
- S ERVE &/ OR C MRRR : Mr. Michael Bernoudy T HE B ERNOUDY L AW F IRM 2400 W. Grand Avenue Marshall, T exas 75670 mlbjr@bernoudylawfirm.com

/s/Russell G. Thornton RUSSELL G. THORNTON