Affirmed and Opinion Filed November 25, 2013 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-13-00188-CV BAYLOR UNIVERSITY MEDICAL CENTER AND

BAYLOR HEALTH CARE SYSTEM, Appellants V. SARAH LAWTON, Appellee On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. 12-09816 

### OPINION Before Justices Bridges, Fillmore, and Lewis Opinion by Justice Bridges Appellants Baylor University Medical Ce nter and Baylor Health Care System (collectively referred to as “Baylor”) appeal fro m the trial court’s denial of their motion to dismiss pursuant to chapter 74 of the Texas civ il practice and remedies code (“Chapter 74”) and request for attorney’s fees. In a single issue, Baylor contends the trial court erred in failing to dismiss appellee Sarah Lawton’s lawsuit against th em when she failed to file an expert report within 120 days of filing a nonsubscriber lawsuit ag ainst a health care provider. For the reasons expressed below, we affirm. Background Lawton sued Baylor for workplace injuries al legedly sustained when raw sewage began to back-up into showers and sinks on the fourth floor where she was working as a nurse. In–2– response to the back-up, main tenance workers employed by Baylor poured chemicals into several drains throughout the fourth floor. Lawt on alleges she was injure d as a result of the irritants in the sewage fumes a nd the poured chemicals. She file d suit against Baylor for these injuries on August 29, 2012. On October 4, 2012, in their first amended answer, Baylor asserted Lawton’s claims should be dismissed because she failed to file an expert report within 120 days of filing her lawsuit. Eight days later, Baylor filed a motion to dismiss pursuant to Chapter 74 and request for attorney’s fees. Lawton responded to the motion, noting “[t]his is not a Health Care Liability Claim because [she] alleges a workplace injury who lly unrelated to the provi sion of health care. . . .” The associate judge heard and denied Baylor’s motion on December 4, 2012. Baylor then appealed the associate judge’s decision, and the trial court signed an order on January 3, 2013, denying Baylor’s motion to dismiss pursuant to Chapter 74 and request for attorney’s fees. Analysis In this appeal, we are asked to determine whether Lawton’s claims fall within the scope of Chapter 74. Texas courts review issues of statut ory interpretation de novo. Molinet v. Kimbrell , 356 S.W.3d 407, 411 (Tex. 2011). In construing a statute, our aim is to determine and give effect to the legislature’s intent, and we begin with the plain and common meaning of the statute’s words. Texas West Oaks Hosp., LP v. Williams , 371 S.W.3d 171, 177 (Tex. 2012); State v. Shumake , 199 S.W.3d 279, 284 (Tex. 2006). Chapter 74 provides that “[i]n a health care liab ility claim, a claimant shall, not later than the 120th day after the date the original petiti on was filed, serve on each party or the party’s attorney one or more expert reports. . . for each physician or health care provider against whom a liability claim is asserted.” T EX
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. §74.351. A health care liability claim is defined as “a cause of action against a hea lth care provider or physician for treatment,–3– lack of treatment, or other claimed departure fr om 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 cl aimant, whether the claima nt’s claim or cause of action sounds in tort or contract.” Id . at §74.001(a)(13). A health care liability claim has three elements: (1) the defendant is a health care prov ider or physician; (2) the claimant’s cause of action is for treatment, lack of treatment, or ot her claimed departure from accepted standards of medical care, health care, or safety or professional or administrati ve services directly related to health care; and (3) the defendant’s alleged departure from accepted standards proximately caused the claimant’s injury or death . Loaisiga v. Cerda , 379 S.W.3d 248, 255 (Tex. 2012). Because the first and third elements are not in dispute, we focus on the second element, concerning the nature of Lawton’s cause of action. Specifically, the parties ask us to consider whether Lawton’s claims center on a departur e from accepted standards of safety as contemplated by Chapter 74. Baylor relies primarily on the Williams decision for the proposition that, even though Lawton’s claims are unrelated to health care, they fall with in the ambit of Chapter 74. See Williams , 371 S.W.3d 171. The Texas Supreme Cour t has instructed that, in order to differentiate between ordinary negligence claims a nd health care liability claims, the courts must focus on the nature of the acts or omi ssions causing the a lleged injuries. Id. at 176. Accordingly, a brief discussion of Williams is necessary.
In Williams , a psychiatric technician and professional caregiver at West Oaks was injured on the job while supervising a patient. Id. at 175. The employee brought claims against his nonsubscribing employer, a hospital, after he was in jured in an altercation with the psychiatric patient. Id. Williams alleged the hospital failed to properly train, warn, and supervise him to work with potentially violent psychiatric patients and, as a re sult, failed to provide a safe–4– workplace. Id. at 192-93. The hospital filed a motion to dismiss based on Williams’s failure to provide an expert report in acco rdance with Chapter 74. The tr ial court denied the motion, and the court of appeals affirmed. The Texas Supreme Court reversed and found that William’s claims were health care liability claims based on claimed departures from accepted standards of health care and safety. Id. at 193. In its analysis, the Williams court noted that “[i]n seek ing to distinguish ordinary negligence claims from [health care liability claims], the heart of th ese cases lies in the nature of the acts or omissions causing claimants’ injuries and whether the events are within the ambit of the legislated scope of [Chapter 74].” Id . at 176. In short, we must determine whether the relevant allegations are negligence claims or are properly characterized as health care liability claims under Chapter 74. Id. at 179. Like our sister court in Twilley , 1 we conclude Williams is distinguishable from the case at hand. See Good Shepherd Med. Ctr. -Linden, Inc. v. Twilley , No. 06-12-00098-CV, 2013 WL 772136, *3 (Tex. App.—Texarkana March 1, 2013, pet. denied) (concluding because the claims at issue were unrelated to health care–save only that they arose on the premises of a health care provider–no expert report was required). The claim in Williams had an indirect relationship to health care; Lawton’ s claim does not. “The heart of these cases lies in the nature of the acts or omissions causing claimants’ injuries and whether the events ar e within the ambit of the legisl ated scope of [Chapter 74].” Williams , 371 S.W.3d at 176. Because Williams’s safe ty claims implicated safety standards required for working with potentially violent schi zophrenic patients at a me ntal health hospital, they were indirectly related to health care. See Twilley , 2013 WL 772136 at *4. Here, however,

1 Although the Texas Supreme Court had already denied petition for review in Twilley , Baylor alleged in oral argument that the high court had incorrectly decided to deny the petiti on and cited us to the pending motion for rehearing on the petition for review. Howe ver, on October 11, 2013, the Texas Supreme Court denied the mo tion for rehearing on the petition for review.–5– it is undisputed that Lawton was no t, at least when she was injure d, a recipient of health care, and the gravamen of Lawton’s claim—workplace injuries—is unrelated to the provision of health care to the patient population or to anyone else. 2 In spite of these facts, Baylor contends Williams requires Lawton to produce an expert report. Like the Twilley Court, however, we do not believe Williams encompasses safety claims that are completely untethered from health care. See id. at *5. “[I]f every safety claim against a health care provider were considered a health ca re liability claim, ther e would be no need to analyze the nature of the acts or omissi ons which caused the alleged injuries.” Id. (emphasis in original). The Texas Supreme C ourt has stated that a claim is not necessarily a health care liability claim merely because a patient is injured by a physici an or health care provider. See Loaisiga , 379 S.W.3d at 256-57. “In so me instances, the only possible relationship between the conduct underlying a claim and the rendition of me dical services or h ealthcare will be the healthcare setting (i.e. the physic al location of the conduct in a health care facility), the defendant’s status as a doctor or health care provider, or both.” Id. at 256. Likewise, “safety” claims completely unrelated to health care are ex cluded from the ambit of the legislated scope of Chapter 74. 3 Twilley , 2013 WL 772136 at *6; see also Doctors Hosp. At Renaissance, LTD. v. Mejia , No. 13-12-00602-CV, 2013 WL 4859592 at *4 (Tex. App.—Corpus Christi Aug. 1, 2013, no pet.) (mem. op.) (relying on Twilley ). Moreover, to require an expert report in this case would amount to an exercise in futility. See Twilley at *6. Section 74.402 essentia lly requires that, in a suit involving a health care liability claim against a health care pr ovider, a qualified expert must be:

2 During oral argument, counsel for Baylor c onceded there is nothing in the record to indicate the sewage back-up took place in patient rooms. 3 We note that the same day the Texas Suprem e Court denied the petition for review in Twilley , it issued its opinion in Psychiatric Solutions, Inc. v. Palit , No. 12-0388, 2013 WL 4493118 (Tex. 2013), which followed the holding in Williams . Thus, we may logically conclude the Texas Supreme Court agreed with the distinction made in Twilley that claims completely unrelated to health care are excluded from the ambit of Chapter 74.–6– practicing health care in a field of practice that invol ves the same type of care or treatment as that delivered by the defe ndant. . . , has knowledge of accepted standards of care for. . . the diagnosis, car e or treatment of the illness, injury or condition involved. . . and is qualified on th e basis of training or experience to offer an expert opinion regarding th ose accepted standards of health care.
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. §74.402(b)(1)-(3). In this case, it would be difficult, if not impossible, to find a qualified expert under the statute who was also competent to opine on the relevant accepted standa rds of care for plumbing. See Twilley , 2013 WL 772136 at *6 (noting difficulty in finding expert that satisfied Chap ter 74 and could also testify to the accepted standards of care regarding OSHA ladder cons truction and installation and walking surface standards). A medical report he re would not shed any light on whether the te chniques used violated plumbing standards. Although a safety claim under Ch apter 74 need not be “directly related to health care,” the converse—that a safety claim falls within the ambit of Chapter 74 even when it is completely untethered from health care— is not the way we or the Twilley Court understood the Williams holding. See id. In Williams , the safety claim was indirectly rela ted to health care. It was not, as are the claims here, related to health care only in that the claims arose on hospital premises . See id. We, therefore, conclude Lawt on’s claim against Baylor for he r workplace inju ries do not come within the ambit of Chapter 74, and no expert report was required. See Loaisiga , 379 S.W.3d at 257; Mejia , 2013 WL 4859592 at *4; Twilley , 2013 WL 772136 at *5-7. We overrule Baylor’s sole issue on appeal and affi rm the judgment of the trial court.

130188F.P05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–7– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BAYLOR UNIVERSITY MEDICAL CENTER AND BAYLOR HEALTH CARE SYSTEM, Appellants
No. 05-13-00188-CV V. SARAH LAWTON, Appellee On Appeal from the 162nd Judicial District Court, Dallas County, Texas Trial Court Cause No. 12-09816. Opinion delivered by Justice Bridges. Justices Fillmore and Lewis participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee SARAH LAWTON recover her costs of this appeal from appellants BAYLOR UNIVERSITY MEDI CAL CENTER AND BAYLOR HEALTH CARE SYSTEM.
Judgment entered November 25, 2013

/David L. Bridges/ DAVID L. BRIDGES JUSTICE