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 

115th 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 

THIEBAUD REMINGTON THORNTON BAILEY 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

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 10/16/2015 1:14:16 PM PAM ESTES Clerk
i

TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................................... ii

SUMMARY OF ARGUMENT ................................................................................2

ARGUMENT ............................................................................................................4

CONCLUSION .........................................................................................................7

PRAYER ...................................................................................................................9

CERTIFICATE OF COMPLIANCE ......................................................................10

CERTIFICATE OF SERVICE ...............................................................................11
ii

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, 4
1

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

115th Judicial District Court, Upshur County, Texas

Honorable Lauren Parish, Presiding Judge

___________________________________________________

TO THE TWELFTH COURT OF APPEALS:

Appellant East Texas Medical Center Gilmer, defendant in Cause No. 697-

13 in the 115th 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 assertion that her 

claim is not a health care 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, the 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 medical 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. 2010)). If 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 is 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 

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 

(emphasis added). 

In Ross, the 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 standards 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 facts 
5

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 

its duties as a health care provider are at least implicated by the underlying facts. 

Specifically, ETMCG’s Supplemental Brief shows that the factual basis of 

Appellee’s claim implicates duties placed on health care providers 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 Administration (“OSHA”), and by regulations and guidelines of 

the Joint Commission (ETMCG’s Supplemental Brief, pages 8-15). 

The appellate court authority cited in ETMCG’s Supplemental Brief further 

supports this fact. In particular, ETMCG cites Texas appellate court 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 applicable standards of care and a breach of those standards in expert 

reports served to establish the merits of an HCLC pursuant to Section 74.351 of the 
6

TEXAS CIVIL PRACTICE & REMEDIES CODE (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 hospitals like ETMCG must maintain their physical 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, by Appellee’s slipand-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 TEXAS CIVIL PRACTICE & REMEDIES CODE. 

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 

arguments or authority the authority cited and relied on by ETMCG that 

establishes the fact Appellee’s claim is an HCLC. Appellee simply argues in a 
8

conclusory and superficial manner that there is no substantive nexus between her 

claim and the provision of health care (Appellee’s Supplemental Brief, page 5). 

ETMCG has shown Appellee’s argument to 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 court’s denial of 

ETMCG’s motion to dismiss and dismiss Appellee’s claim against it with 

prejudice.
9

PRAYER

Because the trial court erred in denying Appellant East Texas Medical 

Center Gilmer’s Motion to Dismiss, Appellant requests that this Twelfth District 

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,

THIEBAUD REMINGTON THORNTON BAILEY, 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.com
10

CERTIFICATE OF COMPLIANCE

Pursuant to TEXAS RULES OF APPELLATE PROCEDURE 9.4(i)(3) Appellant 

certifies that its Reply to Appellee’s Supplemental Brief on Application of Ross v. 

St. Luke’s Episcopal Hospital, filed on October 16, 2015, in the Twelfth Court of 

Appeals, contains 1,197 words. 

/s/Russell G. Thornton

RUSSELL G. THORNTON
11

CERTIFICATE OF SERVICE

The undersigned certifies that on the 16th day of October, 2015, a true and 

correct copy of the foregoing document was delivered to counsel listed below:

VIA E-SERVE &/OR CMRRR:

Mr. Michael Bernoudy 

THE BERNOUDY LAW FIRM 

2400 W. Grand Avenue 

Marshall, Texas 75670

mlbjr@bernoudylawfirm.com

/s/Russell G. Thornton

RUSSELL G. THORNTON