NUMBER 13-20-00394-CV 

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

VALLEY REGIONAL MEDICAL CENTER, Appellant,

v.

PATRICK S. SKULEMOWSKI DO, Appellee.

 

On appeal from the 138th District Court 

of Cameron County, Texas.

 

MEMORANDUM OPINION 

Before Chief Justice Contreras and Justices Benavides and Longoria

Memorandum Opinion by Justice Longoria

Appellant Valley Regional Medical Center (Valley Regional) appeals the denial of 

its motion to dismiss pursuant to Chapter 74 of the Texas Civil Practice and Remedies 

Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. In two issues, Valley Regional 

argues: (1) appellee Patrick S. Skulemowski, DO asserted a health care liability claim 
2

(HCLC) governed by Chapter 74; and (2) the trial court erred in denying Valley Regional’s 

motion to dismiss because Skulemowski failed to timely serve an expert report. We 

reverse and remand. 

I. BACKGROUND

On September 9, 2019, Skulemowski filed his original petition, asserting a 

negligence claim against Valley Regional. Skulemowski alleged that Valley Regional was 

negligent in its operation, control, and maintenance of an electrocautery device, which 

Skulemowski had used in performing a caesarean section on a patient. He further alleged 

that he endured an electroshock from said device, which caused injury, immediate severe 

pain, and long-term chronic pain. 

On March 4, 2020, Valley Regional filed its motion to dismiss with prejudice for 

failure to serve an expert report. In said motion, Valley Regional claimed that 

Skulemowski’s allegations fell within the definition of HCLCs pursuant to Chapter 74 and 

that he had failed to serve an expert report, requiring the trial court to render dismissal 

with prejudice. Skulemowski, in fact, did not file an expert report. After a hearing, the trial 

court denied Valley Regional’s motion to dismiss. This appeal followed.

II. MOTION TO DISMISS

As it did in their motion to dismiss, Valley Regional argues on appeal that 

Skulemowski is a claimant whose negligence claim constitutes an HCLC pursuant to 

Chapter 74 of the Texas Civil Practice and Remedies Code and that Skulemowski is 

therefore subject to the expert report requirements of § 74.351(a) of that statute. Valley 

Regional further contends that because Skulemowski failed to file an expert report 
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pursuant to § 74.351(a), the trial court erred when it denied Valley Regional’s motion to 

dismiss. 

A. Standard of Review & Applicable Law

1. Statutory Interpetation

Because the merits of this appeal require us to construe the Texas Medical Liability

Act (TMLA) and decide whether Skulemowski is a claimant whose negligence claim is an 

HCLC subject to the TMLA, our review is de novo. See Ross v. St. Luke’s Episcopal 

Hosp., 462 S.W.3d 496, 501 (Tex. 2015). The TMLA defines the procedural requirements 

for bringing an HCLC in Texas and is codified under Chapter 74 of the Texas Civil Practice 

and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. ch. 74. A claim is an HCLC 

when it is:

A cause of action against a health care provider or physician 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, whether the claimant’s claim or cause of action 

sounds in tort or contract.

Id. § 74.001(a)(13). Whether a case is an HCLC is determined by the nature of the acts 

or omissions causing the alleged injuries. Tex. W. Oaks Hosp. v. Williams, 371 S.W.3d 

171, 176 (Tex. 2012). The statutory requirements of the TMLA cannot be circumvented 

by artful pleading. Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527 (Tex. 2011). 

Thus, when the underlying facts in an action could support an HCLC against a defendant, 

then all claims against that defendant based on those facts are HCLCs. See Turtle 

Healthcare Grp. v. Linan, 337 S.W.3d 865, 868-69 (Tex. 2011) (per curiam) (holding that 

ordinary negligence claims against a health care provider could not be maintained 
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separate and apart from HCLCs when all claims were based on the same underlying 

facts). 

In construing the TMLA, we “look first and foremost to the language of the statute” 

to ascertain legislative intent. Ross, 462 S.W.3d at 501. We accord the TMLA’s words 

their plain meaning unless they are statutorily defined, a different meaning is evident from 

context, or this construction leads to a nonsensical result. Id. We consider the TMLA as 

a whole, rather than reading its individual provisions in isolation. Id. In deciding whether 

Skulemowski’s negligence claim is an HCLC subject to the TMLA, we consider the entire 

record, including the pleadings, motions and responses, and any relevant evidence 

properly admitted. Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012).

2. Definition of Claimant

The TMLA was modified in 2003. Among other things, the 2003 legislation 

changed the HCLC definition:

‘Health care liability claim’ means a cause of action against a health care 

provider or physician 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, whether the 

claimant’s claim or cause of action sounds in tort or contract.

TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13) (emphasis added). The Legislature 

replaced the term “patient” with “claimant” in the definition of an HCLC. Compare TEX.

CIV. PRAC. & RED. CODE § 74.001(a)(13), with TEX. REV .CIV. STAT. ART. 4590i, § 1.03(a)(4) 

(repealed 2003). The Legislature also defined the new term in the Act:

‘Claimant’ means a person, including a decedent’s estate, seeking or who 

has sought recovery of damages in a health care liability claim. All persons
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claiming to have sustained damages as the result of the bodily injury or 

death of a single person are considered a single claimant. 

TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2). “Person” is not defined in the TMLA and 

therefore must be given its common law meaning. Williams, 371 S.W.3d at 178 (citing

TEX. CIV. PRAC. & REM. CODE § 74.001(b)). Changing the term “patient” to “claimant” and 

defining “claimant” as a “person” expands the breadth of HCLCs beyond the patient 

population. Id. This in turn necessarily widened the reach of the expert report requirement, 

unless otherwise limited by other statutory provisions. Id.

A claimant whose claims are subject to the TMLA must serve an expert report 

within 120 days of the filing of an answer by any physician or health care provider. TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(a). If the claimant fails to do so, then the trial court 

must dismiss the claimant’s claims with prejudice and award reasonable attorney’s fees 

and costs of court on the defendant’s motion. Id. § 74.351(b). But only HCLCs are subject 

to the TMLA and its report requirements. Id. § 74.351(a); see Ross, 462 S.W.3d at 502

(noting that “the Legislature did not intend for the expert report requirement to apply to 

every claim for conduct that occurs in a health care context”).

B. Discussion

1. Skulemowski’s Status as a “Claimant” Under the TMLA

The record before us consists only of the parties’ pleadings and filings and in-court 

arguments related to Valley Regional’s motion to dismiss. We first examine whether 

Skulemowski is a “claimant” under the TMLA. Only claimants are obligated to serve expert 

reports on physcians or health care providers. TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(a). There are several types of HCLCs set out in the TMLA: in addition to claims
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involving treatment and lack of treatment, the TMLA contemplates claims for alleged 

“departure[s] from accepted standards of medical care, or health care, or safety or 

professional or administrative services directly related to health care.” TEX. CIV. PRAC. &

REM. CODE § 74.001(a)(13). All of these categories of claims, except safety, are defined 

terms in the TMLA. See, e.g., id. § 74.001(a)(10), (a)(19), and (a)(24) (defining “health

care,” “medical care,” and “professional or administrative services”). Valley Regional

asserts that Skulemowski’s complaints allege departures from accepted standards of 

either “health care,” “safety,” or “professional or administrative services.” Skulemowski 

argues that neither of these categories of claims applies to his allegations, and therefore, 

he is not a “claimant” because he is not a person seeking recovery in an HCLC. 

2. Character of Skulemowski’s Claims

Valley Regional argues that Skulemowski’s complaints are “claimed departure[s] 

from accepted standards of . . . safety . . . .” TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.001(a)(13). “Safety” is not defined by the TMLA; thus, we accord it its common 

meaning, expressed by the Texas Supreme Court as a “condition of being untouched by 

danger; not exposed to danger; secure from danger, harm or loss.” Ross, 462 S.W.3d at 

501 (internal quotation marks omitted). Using the statutory definition, a safety-standard 

claim need not be directly related to the provision of health care to qualify as an HCLC. 

Id. at 503; see also Williams, 371 S.W.3d at 185 (holding that the phrase “directly related 

to health care” in § 74.001(a)(13) modifies the terms immediately before it—“professional 

or administrative services”—and not “safety”). However, “there must be a substantive 

nexus between the safety standards allegedly violated and the provision of health care.” 
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Id. at 504. This nexus depends on “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 events underlying Skulemowski’s claims occurred while he was performing a 

caesarian section on a patient at Valley Regional. Skulemowski alleges that an 

electrocautery device used to conduct the caesarian section shocked him, causing 

injuries, severe and long-term pain. Skulemowski’s claims are, at the very least, indirectly 

related to healthcare. The question before this Court is whether there exists a substantive 

nexus between the safety standards allegedly violated and the provision of health care.

Ross, 462 S.W.3d at 504. In Ross, the Texas Supreme Court identified non-exclusive 

factors to consider when assessing whether a safety-standard claim is substantively 

related to the provision of health care: 

1. Whether the alleged negligence occurred in the course of the 

defendant’s performing tasks with the purpose of protecting patients 

from harm;

2. Whether the alleged injuries occurred in a place where patients were 

receiving care, so that the obligation of the provider to protect persons 

who require medical care was implicated;

3. Whether the claimant was seeking or receiving health care when the 

alleged injuries occurred;

4. Whether the claimant was providing or assisting in providing health care 

when the injuries occurred;

5. Whether the alleged negligence arises from safety standards that are 

part of the professional duties owed by the health care provider;

6. If an instrumentality was involved in the defendant’s alleged negligence, 

whether it was a type used in providing health care; or
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7. Whether the alleged negligence implicated safety-related requirements 

set for health care providers by governmental or accrediting agencies.

Id. at 505. Six of the Ross factors—the first, second, fourth, fifth, sixth, and seventh—

indicate that Skulemowski’s claims are substantively tied to the hospital’s provision of 

health care. Skulemowski cites to Kindred Healthcare, Inc. v. Morales as authority 

reaching the opposite conclusion. Kindred Healthcare, Inc. v. Morales, 499 S.W.3d 475 

(Tex. App.—Houston [1st Dist.], 2016, no pet.). Kindred involved a maintenance worker, 

Morales, who sued Kindred Healthcare Inc. and Triumph Hospital of East Houston, L.P. 

for injuries he sustained when repairing a clogged drain allegedly owned and operated 

by Kindred and Triumph. Id. at 477. The Kindred court held that Morales’ claims did not 

involve a substantive nexus between safety standards and the provision of health care.

Id. at 481. Our application of the Ross factors to this case make clear why Kindred is not 

persuasive.

As to the first factor, Skulemowski alleges that Valley Regional improperly 

maintained or used the electrocautery device by failing to properly apply grounding pads. 

The alleged negligence occurred while Skulemowki used the device to perform a 

caesarean section on a patient. Because the alleged injury occurred while a patient was 

being rendered medical care, the alleged negligence necessarily occurred in the course 

of Valley Regional performing tasks with the purpose of protecting patients from harm. In 

contrast, the Kindred court found this first factor indeterminate due to the absence of 

relevant evidence. Kindred, 499 S.W.3d at 480.

As to the second and fourth factors, Skulemowski, a physician, was allegedly 

injured while performing a caesarean section on a patient at Valley Regional. Thus, the 
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injury occurred in a place where patients were receiving care, implicating Valley 

Regional’s obligation to protect persons who require medical care; and Skulemowski was 

providing health care to a patient when he was injured. Conversely, due to the absence 

of relevant evidence, the Kindred court found the second factor indeterminate. Id. As to 

the fourth factor, Kindred held that a plumber or maintenance worker is not a health care 

provider who performs or funishes any act or treatment for, to , or on behalf of patients in 

those circumstances. Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(10)).

However, unlike Kindred, the instant case does not involve a plumber or maintenance 

worker, but a doctor who is a health care provider. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.001(a)(12)(A) (defining “health care provider” as . . . any person . . . duly licensed, 

certified, registered, or chartered by the State of Texas to provide health care).

As to the fifth and sixth factors, Skulemowski’s claims, at their core, allege the 

failure of a piece of equipment provided to him by Valley Regional in order to render 

patient healthcare. Specifically, the equipment involved here was an eletrocautery device, 

which Skulemowski alleges he used to perform a caesarean section on a patient. Medical 

equipment specific to a particular patient’s care or treatment is an integral and inseparable 

part of the health care services provided. Marks v. St. Luke’s Episcopal Hosp., 319 

S.W.3d 658, 664 (Tex. 2010). Thus, health care providers have a duty to maintain the 

safe operating condition of medical equipment. Here, the alleged negligence—Valley 

Regional’s negligent operation, control, and maintenance of an electrocautery device

used to render health care to a patient—arises out of the safety standards that are part 

of the professional duties owed by Valley Regional as a health care provider. 
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Furthermore, an eletrocautery device is an instrumentality used to provide health care. 

See id. (holding “[w]hen the unsafe or defective condition of [medical] equipment injures 

the patient, the gravamen of the resulting cause of action is a health care liability claim”).

In stark contrast, as to the fifth factor, the Kindred Court held that Morales’ claim—that he 

was injured as a result of the hospital’s use of a chemical in a drain and its failure to tell 

him about it—was not based on any safety standards arising from professional duties 

owed by the hospital. Kindred, 499 S.W.3d at 480. In addition, the Kindred court found 

the sixth factor indeterminate due to the absence of relevant evidence. Id.

As to the seventh factor, all licensed hospitals in Texas are subject to the 

enforcement of rules addressing, among other things, “safety . . . requirements in 

hospitals” and “compliance with other state and federal laws affecting . . . safety . . . of 

hospital patients.” TEX. HEALTH & SAFETY CODE ANN. § 241.026 (a)(3), (5). Surgical 

technologists, defined as persons who practice intraoperative surgical care, like the 

caesarean section performed in this case, are required, among other things, to prepare 

an operating room for surgical procedures by ensuring that surgical equipment, like an 

electrocautery device, is functioning properly and safely. Id. § 259.001 (2), (3)(A). In 

addition, surgical technologists are required to complete a minimum number of continuing 

education hours. Id. § 259.002 (d)–(f). These statutes demonstrate that the alleged 

negligence involved in this case implicates safety-related requirements set for Valley 

Regional by governmental or accrediting agencies. On the contrary, the seventh factor

was found to be indeterminate by the Kindred court due to the absence of relevant 

evidence. Kindred, 499 S.W.3d at 480.
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The record in this case demonstrates a substantive nexus between the safety 

standards Skulemowski alleged Valley Regional breached and the provision of health 

care. See Ross, 462 S.W.3d at 504. Given the factual differences between the instant 

case and Kindred, we do not find Kindred dispositive or persuasive. We conclude that 

Skulemowski’s claims are HCLCs, that Skulemowski is therefore a “claimant” under the 

TMLA, and that Skulemowski was required to furnish an expert report.1 See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.001(a)(2); § 74.351(a). Because Skulemowski failed to 

furnish an expert report, the trial court erred when it denied Valley Regional’s motion to 

dismiss. We sustain Valley Regional’s issues on appeal.

III. CONCLUSION

The order denying Valley Regional’s motion to dismiss is reversed. We remand 

with instructions to dismiss Skulemowski’s claims with prejudice, to award reasonable 

attorney’s fees and costs of court to Valley Regional, and for further proceedings 

consistent with this opinion. See id. § 74.351(b).

NORA L. LONGORIA 

 Justice 

 

Delivered and filed on the

4th day of August, 2022. 

1 Because our determination is dispositive on the issue whether Skulemowski’s claims are HCLCs, 

we decline to address Valley Regional’s alternative arguments that Skulemowski’s claims are claimed 

departures from accepted standards of “health care” or “professional or administrative services.” See TEX.

R. APP. P. 47.1.