## B YRD 

## D AVIS 

## F URMAN 

## & A LDEN 

## , L.L.P.
A TTORNEYS AND C O UNSELORS E ST .’ D 1959

______________________________________________________________________________________________________________________ 

### May 1 1, 2015

Jeffrey D. Kyle, Clerk Court of Appeals, Third District of Texas P.O . Box 12547 Austin, Texas 78711

- 2547
Re: Court of Appeals Number: 03

- 13

- 00817

- CV; Trial Court Case Number: D -1- GN

- 13

- 001183 Style: Seton Family of Hospitals d/b/a Seton Medical Center, Appellant v. Beverly J. Haywood, Appellee
Dear Mr. Kyle: Pursuant to Texas Rule of Appellate Procedure 38.7, Appellee Beverly J. Haywood files this letter to alert the Court that today t he Texas Supreme Court issued a unanimous opinion in Ross v. St. Luke’s Hospital , No. 13

- 0439 ( Tex. May 1, 2015), one of the pr imary cases on which Appellant relies , and about which the Court asked several questions at oral argument. I believe the Texas Supreme Court’s opinion in Ross is dispositive for this case. I have attached a copy of that opinion to this letter brief. As a reminder, Ms. Haywood was visitor to Seton Hospital when she was knocked to Seton Hospital when she was injured by an automatic door that was activated by a nurse. The plaintiff in Ross was also a visitor to a hospital when she was injured in a “slip and fall.” As in this case, the hospital in Ross relied on the word “safety” in the definition of a “health care liability claim” to argue that the plaintiff’s premises liability claim was a health care liability claim subject to the Texas Medical Liabi lity Act, and therefore subject to the requirement of an expert

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. BYRDDAVIS
. COM (Listed in Martindale

- Hubbell Preeminent Law Firms) Don L. Davis ♦ †‡ dondavis@byrddavis.com Robert C. Alden † ralden@byrddavis.com Kevin O. Henrichson khenrichson@byrddavis.com

________________ Of Counsel Derek L. Davis ddavis@byrddavis.com

________________ L. Tonnett Byrd (1921 – 2007 ) Jack C. Eisenberg (1927

- 2011) David H. Walter (1948 – 2003 )

♦ Board Certified Personal Injury Trial Law, Texas Board of Legal Specialization
† AV Rated by Martindale

- Hubbell
‡ Licensed in Texas and Colorado ACCEPTED 03-13-00817-CV 5226136 THIRD COURT OF APPEALS

AUSTIN, TEXAS 5/11/2015 10:45:05 AM JEFFREY D. KYLE

CLERKJeffrey D. Kyle, Clerk Court of Appeals, Third District of Texas M ay 11, 2015 Page 2



### report. The Fourteenth Court of Appeals held in Ross that “a connection between the act or omission and health care is unnecessary for purposes of determining whether Ross brings an HCLC. An allegation pertaining to safety, standing alone and broadly defined, is suffi cient.” Ross v. St. Luke’s Episcopal Hospital , 2013 Tex. App. LEXIS 2796 at *3 (Tex. App.

— Houston [14 th 

### Dist.] March 19, 2013 ) In today’s opinion, the Texas Supreme Court rev er sed Ross , and conclu ded that “ the safety standards referred to in the definition are those that have a substantive relationship with the providing of medical or health care. And if it were not so, the broad meaning of “safety” would afford defendant heal th care providers a special procedural advantage in the guise of requiring plaintiffs to file expert reports in their suits regardless of whether their cause of action implicated the provision of medical or health care. We do not believe the Legislature in tended the statute to have such arbitrary results. . . . Thus we conclude that for a safety standards

- based claim to be an HCLC there must be a substantive nexus between the safety standards allegedly violated and the provision of health care. ” Ross v. S t. Luke’s Hospital , No. 13

- 0439 at 12 (Tex. May 1, 2015). On pages 13 through 14, the Court listed “non

- exclusive considerations” for analyzing whether a claim is substantively related to the defendant’s providing of medical or health care:
1. Did the allege d negligence of the defendant occur in the course of the defendant’s performing tasks with the purpose of protecting patients from harm; 2. Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligat ion of the provider to protect persons who require special, medical care was implicated; 3. At the time of the injury was the claimant in the process of seeking or receiving health care;Jeffrey D. Kyle, Clerk Court of Appeals, Third District of Texas M ay 11, 2015 Page 3



### 4. At the time of the injury was the claimant providing or assisting in pro viding health care; 5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider; 6. If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care ; or 7. Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety

- related requirements set for health care providers by governmental or accrediting agencies?
None of these consid erations apply to the facts in this case. Very truly yours , B YRD 

### D AVIS 

### F URMAN 

### & A LDEN 

### , L.L.P.

Robert C. Alden ralden@byrddavis.com State Bar No. 00979680 ATTORNEY FOR APPELLEE

CERTIFICATE OF SERVICE Pursuant to Rule 9.5 of the Texas Rules of Appellate Procedure, I hereby certify that a true and correct copy of the foregoing letter has been sent via e

- mail, to the following counsel of record on this 1 1 st 

### day of May , 201 5 :Jeffrey D. Kyle, Clerk Court of Appeals, Third District of Texas M ay 11, 2015 Page 4



### Emily J. Davenport R EED 

### , C LAYMON 

### , M EEKER 

### & H ARGETT 

### , P.C. 5608 Parkcrest Drive, Suite 200 Austin, TX 78731 Phone: 512

- 660

- 5960 Fax: 512

- 660

- 5979 edavenport@rcmhlaw.com
Ken Slavin K EMP 

### S MITH 

### LLP 221 N. Kansas Suite 1700 El Paso, Texa s 79901 KSlavin@kempsmith.com

/s/ Robert C. Alden Robert C. Alden

CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing brief has been compiled using a computer program in Word with 14

- point font conventional typeface for the body of the brief. Excluding the portions of the brief exempted pursuant to Rule 9.4 of the Tex as Rules of Appellate Procedure, this brief contains 5, 365 words.

/s/ Robert C. Alden Robert C. Alden

## IN THE SUPREME COURT O F TEX AS

4 4 4 4 4 4 4 4 4 4 4 4 N O
. 13-0439

4 4 4 4 4 4 4 4 4 4 4 4 

### L E Z L E A 

### R O S S 

### , P E T IT IO N E R 

### ,

v
. 

### S T


### . L U K E 

### ’ S 

### E P IS C O P A L 

### H O S P IT A L 

### , R E S P O N D E N T

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4

O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F O U R T E E N T H D I S T R I C T O F T E X A S

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4

Argued Novem ber 5, 2014

J U S T I C E J O H N S O N delivere d the opinion of the Court.
J U S T I C E L E H R M A N N filed a c oncurr ing opinion, in which J U S T I C E D E V I N E joined.
J U S T I C E B R O W N did not participate in the de cision.

I n this case a visitor to St. L uke’s Episcopal Hospital sued the hospital on a premises liability theory afte r she slipped and fell near the lobby exit doors. The issue is whether her suit is a health

car e liability claim under the Texas Medica l L iability Act. See T E X
. C I V
. P R A C
. & R E M
. C O D E ch. 74. The trial court and court of appea ls conclude d that it is. We hold that it is not, be cause the

rec ord does not demonstrate a rela tionship b et wee n the safe ty standards she alleg ed the hospital
b re ached—standar ds for maintaining the floor inside the lobby exit doors—and the provisi o n o f
health car e, other than the location of the occur renc e and the hospi t al ’s s t atus as a health car e provider.We reve rse a nd rema nd to the trial court f

or fur ther proc eeding s. I. Background
L ezlea Ross acc ompanied a friend who was visiti ng a patient in St. L uke’s E piscopal Hospital. Ross was leaving the hospital throug h the lobby when, as she approa ched the exit doors, she slipped and f

ell in an ar ea w here the floor wa s being clea ned and buffe d. She sued St. L uke’s
and Ara mark Manag ement Service s, a company that contra cted with the hospital t o perf orm maintenanc e ser

vices, on a

premises liability

theory . Ara mark is not a par ty to this appeal.
After Ross filed suit we decide d Texas W est Oaks Hospital, L.P. v. W illiams , 371 S.W .3d 171 (Tex. 2012). There we held, in part, that when a safe ty standards- based claim is made ag ainst a health car e provider, the Texas Medica l L iability Act (TML A), T E X
. C I V
. P R A C
. & R E M
. C O D E ch. 74, does not r equire the safe ty standards to be direc tly rela ted to the provision of health car e in
order for the claim to be a health car e liability claim (HCL C). W illiams , 371 S.W .3d at 186. Rely ing

on W illiams , the hospital asserte d that Ross’s claim was an H CL C a nd moved for dismiss al of her
suit beca use she failed to serve an expert repor t. See T E X
. C I V
. P R A C
. & R E M
. C O D E § 74.351(a) , (b) (re quiring dismiss al of an HCL C if a claimant fails to timely serve an expert repor t); W illiams , 371
S.W .3d at 186.
Th e t ri al court g rante d the motion to dismiss

. The court of appea ls aff irmed. Ross v. St.
Luke’s Episcopal Hosp. ,

___ S

. W

. 3 d ___ (Tex. App.—Houston [14t h Dist.] 2013). The appea ls

court c oncluded that unde r W illiams it is not nece ssary for any connec tion to exi st betwee n health

car e and the safe ty standard on which a claim is based in order for the claim to come within the
TML A. Id. at ___.

2Ross asser ts that the lower courts err ed beca use claims based on depar tures from “ac cepte d
standard s o f s af

et y ” do not come within the provisi ons of t he TML A unl ess t here is at l east some

connec tion betwee n the standards underly ing the all egedly neg lige nt actions and the provision of
health car e, even if they are not directly rela ted

. She then arg ues that her claims are not HCL Cs
beca use the hospital’s alleg ed neg lige nce is c ompletely unrela ted to the provision of hea lth care

. The hospital responds with three arg uments. I t first urg es that we lack jurisdiction. See T E X
. G O V ’ T C O D E § 22.001(a) (2), (3), (6). I t next asser ts that even if we have jurisdiction, Ross waived
the issue of whether her claim is an HCL C becaus e s h e fa i l ed to proper ly brief and urg e it in the

court of appea ls. Third, the hospital addre sses the m er i t s b y asser ting that the court of appea ls

corr ectly held that a safe ty standards- based claim need not be rela ted to health car e to fall within the
TML A’s provisions, but in any event Ross’s claims are rela ted to acc epted standards of patient safe ty beca use she f ell inside the hospital.
We first addre ss our jurisdiction. See R usk State Hosp. v. Black , 392 S.W .3d 88, 95 (Tex. 2012) (noting that if a court does not have jurisdiction, its opinion addre ssing any issues other than its jurisdi ction is advisory ).
II. Jurisd iction
Texas Civil P ra ct ice and Remedies Code § 51.014(a) (10) permits an appea l from an interlocutory order g ranting relief soug ht by a motion to dismiss an HCL C for failure to file an expert
repor t. Gene rally , the court of appea ls’ judgme nt is final on interlocutory appea ls. See T E X
. G O V ’ T C O D E § 22.225(b)( 3). Howeve r, we have jurisdiction if the justices of the court of appea ls disag ree

3on a question of law materia l to the decision, or if a c ourt of appe als holds differ ently from a prior
decision of a

nother c ourt of appe als or this Court. Id. § 22.225(c)

. Ross asser

ts that this Court has jurisdiction beca use the court of appea ls’ opinion in this case conflicts with Good Shepherd Medic al Center-Linden, Inc. v. Twi lley , 422 S.W .3 d 7 8 2 (Tex

. App.—Texarkana 2013, pet. denied)

. I n that case , Bobby Twilley , the direc tor of plant opera tions
for a medical cente r, asser ted p re m i s es liability claims ag ainst his employ er afte r he fell from a ladder and also tripped ove r a mound of hardened cement. Id. at 783. The medical ce nter moved
for dism issal under the TML A because Twilley failed to file an expert repor t. Id. at 783-84. The
trial court denied the m otion and the medical ce nter a ppeale d, arg uing that even though Twilley ’s
claims wer e unrela

ted to the provision of health car e, under W illiams they still fell within the ambit
of the TML A. The co urt of appea ls interpre ted W illiams as holding that a safe ty standards- based
claim need not be directly rela ted t o t h e p ro vision of health car e to be an HCL C. Id. at 789. The

court stated, howeve r, that it did not understand W illiams to hold that a safe ty standards claim falls
under the TML A when the claim is completely untethere d from health car e. Id. The appea ls court conclude d that at least an indirect rela tionship b et we en t h e claim and health car e is require d and,
beca use Twilley ’s claims did not have such a rela tionship, an expert repor t was not require d. Id. at
785.
I n this case the cour t of appe als held t hat under W illiams “a connec tion betwee n the act or omission and health car e is unnece ssary for purposes of deter mi n in g w h e th e r Ro s s b r ings an HCL C.”
Ross , ___ S.W .3d at ___. The hospital asser ts that the decision of the court of appea ls and Twi lley
do not conflict. But, for purposes of our jurisdiction, one court holds differ ently from another when

4there is inc onsistency in the ir decisions that should be clar ified to r emove unnece ssary uncer tainty
in the law. T E X
. G O V ’ T C O D E § 22.001(e)

. As other courts of appea ls have noted, Ross and Twi lley

are incons i s t en t in their i nterpre tations of W illiams and the TML A, l eaving uncer tainty in the l aw regard i n g wh et h er a safe ty standards- based claim must be rela ted to health car e. See, e.g. , W eatherford Tex. Hosp. Co. v. Smart , 423 S.W .3d 462, 467-68 (Tex. App.—For t Worth 2014, pet. filed); DHS Mgmt. Servs., Inc. v. Castro , 435 S.W .3d 919, 922 & n.3 (Tex. App.—Dallas 2014, no pet.). Tha t being so, we ha ve jurisdiction and move to the hospital’s wa iver c laim.
III. Waiver
The hospital arg ues that Ross waived any challeng e to her claim being classified as an HCL C by failing to arg ue the point or c ite rele vant authority in the court of a

ppeals. We disag ree
. A brief in the court of appea ls “must contain a clea r and concise arg ument for the contentions made, with a

ppropriate citations to a

uthorities a

nd to the rec ord.” T E X
. R. A P P
. P. 38.1( I ). Fa ilure

to provide citations or arg ument and analy sis as to an ap p el l at e i s s u e may waive it. See ERI
Consulti ng Eng’rs, Inc . v. Swinnea , 318 S.W .3d 867, 880 (Tex. 2010).
I n her court of appea ls bri ef , R o s s discussed the purpose of the TML A and asser ted that classify ing her claim as an HCL C would conflict with the Gover nment Code. See T E X
. G O V ’ T C O D E § 311.021(3) (providing that when a statute is enact ed , t h ere is a presumption that “a just and

rea sonable result is intended”)

. The court of appea ls implicitl y deter mined that Ross’s citations and
arg ument wer e enoug h to a void waiver beca

use it addre ssed the issue. See Republic Underwriters
Ins. Co. v. Mex -Tex, Inc. , 150 S.W .3d 423, 427 (Tex. 2004) (conc l u d i n g that an arg ument in the

court of appea ls was not waived and noting that “we have instructed the courts of appea ls to construe

5the Rules of Appe llate Proce dure r easona bly , y et libera lly , so that the rig ht to appeal is not lost by imposing require ments not absolutely nece ssary

to effe ct the purpose of a rule” (quoting Verburgt

v. Dorner , 959 S.W .2d 615, 616-17 (Tex. 1997)))

. We ag ree with the court of appea ls that Ross did
not waive the issue.
IV. Health Care Liab ility Claims
The merits of the appea l r equire us to revie w the lower courts’ construction of the TML A.
Under such circ umstances our

revie w is de novo , W

illiams , 371 S.W .3d at 177, and our g oal is to
g ive eff ect to leg islative intent. Certified EMS, Inc. v. Potts , 392 S.W .3d 625, 631 (Tex. 2013). I n deter mining that intent we look first and f oremost to the lang uag e of the statute. City of Rock wall

v. Hughes , 246 S.W .3d 621, 625 (Tex. 2008). We construe a statute’s words acc ording to their plain
and common meaning unless they are statutorily define d otherwise, a differ ent meaning is appar ent from the context, or u n l es s such a construction leads to absurd or nonsensical results. See Tex. Lottery Comm’n v. First State Bank of D eQue en , 325 S.W .3d 628, 635 (Tex. 2010). Dete rmining leg islative intent require s that we consider the statute as a whole, rea ding all its lang uag e in context, and not read i n g individual provisions in isolation. See Union Carbide Corp. v. Synatzske , 438
S.W .3d 39, 51 (Tex. 2014).
The TML A def

ines a he alth car e liability claim as:

a cause of action ag ainst a health car e provider or phy sician fo r t re at m en t , lack of trea tment, or other claimed depa rt u re from acc epted standards of medical car e, or health car e, or safe ty o r p ro fe ssional or administrative service s direc tly rela ted to health car e, which proxi mately results in injury to or death of a claimant, whether the claimant’s c laim or ca

use of a ction sounds in tort or contrac t.

6T E X
. C I V
. P R A C
. & R E M
. C O D E § 74.001(a) (13). Th i s C o u rt construed “saf ety ” under the prior

statute acc ording to its common meaning as “the condition of being ‘untouche d by dan g er; not exposed to dang er; secur e from dang er, harm or loss.’” Diversicare Gen. Partner, Inc. v. Rubio , 185
S.W .3d 842, 855 (Tex. 2005) (quoting B L A C K ’ S L A W D I C T I O N A R Y 1336 (6th ed. 1990)). We a lso

rec og nized that the L eg islature’s inclusion of the word “saf ety ” in the statute expanded the statute’s
scope bey ond what it would be if the statute only included the terms medical car e and health car e. Id. The Court explained its disag re em en t wi t h the position of Chief J ustice J eff erson who, in a

concur ring opinio n , ar gu ed that some of the patient’s claims arising from an assault by another patient wer e pre mises liabilit y claims:
Rubio is not complaining about an unlocked window that g ave an intruder acc ess to the fa cility

or a r ickety

stairca se that g ave w ay under her weight. All of her c laims arise from acts or omissions that are insepara ble from the pr ovision of health car e. We do not distinguish Rubio’ s health car e claims from premises liability claims “simply beca

use the landowner is a health car e provider” but beca use the g rava

men of Rubio’s complaint is the alleg ed failure of Di v er s i ca re to implement adequate policies to car e for, supervise, and protec t its residents who require specia l, medical car e. Id. at 854.
The L eg islature added the phrase “or profe ssional or administrative service s direc tly rela ted

to health car e” to the definition of health car e liability claim in 2003. Compare Act of May 30, 1977,
65th L eg ., R.S., ch. 817, § 1.03(a) (4), 1977 Tex. Gen. L aws 2039, 2041, repeale d by Act of J une 2, 2003, 78th L eg ., ch. 204, § 10.09, 2003 Tex. Gen. L aws 847, 884 (abse nce of lang uag e), with T E X
. C I V
. P R A C
. & R E M
. C O D E § 74.001(a) (13) (lang uage ad d ed ). After that statutory amendment we addre ssed the “saf

ety ” part of the definition in Omaha Healthcare Ctr., L.L.C

. v. Johnson , 344

7S.W .3d 392 (Tex. 2011), and Harris M ethodist Fort W

orth v

. Ollie , 342 S.W .3d 525 (Tex. 2011). Although the claims in both case s alleg ed g ener al n egl ige nce, they wer e HCL Cs beca use the underly ing nature of the claims involved violations of safe ty standards d i re ct l y rela ted to the
p rovision of health car e, including protec ting patients. Johnson , 344 S.W .3d at 394-95 (nursing home patient’s death c aused by a brown rec luse spider); Ollie , 342 S.W .3d at 527 (post-oper ative patient’s slip and fall on a wet bathroom floor). But g iven that the claims wer e based on injuries to patients and were direc tly rela ted to the p ro v i s i o n o f health car e, we did not addre ss the issue of
whether safe ty standard- based claims must be direc tly rela ted to health car e in order for them to be
HCL Cs. Johnson , 344 S.W .3d at 394 n.2; Ollie , 342 S.W .3d at 527 n.2.
The next y ear we consid er ed wh ether a psy chiatric technicia n’s claims for injuries in an alterc ation with a patient wer e HCL Cs. W illiams , 371 S.W .3d at 181. I n rea ching our decision we specific ally and separ ately analy zed both whether th e c la ims wer e based on the health car e provider’ s alleg edly depar

ting from standards for health car e, and whether they wer e also based on its alleg edly depar ting from standards for safe ty

. Id. at 180-86. Reg arding the safe ty standards issue, we revi ew ed t h e definition of HCL C and deter mined that the phrase “dire ctly rela ted to health car e”

mo d if ie d th e te r ms im me diately befor e it—professional or administrative service s—but not the w o r d
safe ty

. Id. at 185. We said that “Willi ams’[s] cla ims are indeed for depar tures from acc epted
standards of safe ty

. We conclude that the safe ty component of HCL Cs need not be direc tly rela ted

to the provision of health car e and that Wil liams’[s] claims ag ainst West Oaks implicate this prong of HCL Cs.” Id. at 186. Be cause we a lso concluded tha t Wi lliams’s claims were HCL Cs beca use they wer e for depar

tures from health car e standards, our decision that his claims wer e HCL Cs rested

8on alterna tive holding s that are both entitled to stare decisis trea tment: the claims wer e for depar tures from health car e standards and they wer e for depar tures from safe ty standards. Id. ; see State Farm
Mut. Auto. Ins. Co. v. Lopez , 156 S.W .3d 550, 554 (Tex. 2004) (distinguishing alterna tive holdings from dictum).
The purpose of the TML A’s expert repor t require men t is not to have claims dismiss ed
reg ardle ss of their merits, but rathe r it is to identify and deter frivolous claims while not unduly
restric ting a claimant’s rights. Scoresby v. Santi llan , 346 S.W .3d 546 , 5 5 4 (T ex
. 2011). And t he
L eg islature did not intend for the expert repor t require ment to apply to ever y claim for conduct that

occurs i n a h ea l th car e context. See Loaisi ga v. Cerda , 379 S.W .3d 248, 258 (Tex. 2012). For example, in Loaisi

ga patients claimed tha t a doctor imprope rly touched them dur ing the course of
medical exams and there by assaulted them. 379 S.W .3d at 253. The trial court conclude d that the
claim was not an HCL C and the court of appea ls aff irmed. Id. at 254. We pointed out that the statutory definition of “hea lth c are ” is br oad (“a ny act or trea tment pe rfor med or furnished, or

that
should h av e b ee n perf

ormed or furnished, by any health car e provider for, to, or on behalf of a patient during the patient’s medical car e, trea tment, or confine ment” T E X
. C I V
. P R A C
. & R E M
. C O D E § 74.001(10)) , and that if the facts underly ing a claim could support claims ag ainst a p hy sician or
health care provider for departure s from acce pted standar ds of m edica l car e, health car e, or safe ty

or profe ssional or administrative service s direc tly rela ted to health car e, th e cl ai m s were HCL Cs
reg ardle ss of whether the plaintiff alleg ed the defe ndants wer e liable for brea ch of the standards. See
Loaisi ga , 379 S.W .3d at 255. B ut that being so, we fur ther e x plained:

9we fail to see how the L eg islature could have intended the require ment of an expert

repor t to apply under circ umstances wher e the conduct of which a plaintiff complains is wholly and conclusively inconsistent with, and thus separ able from, the rendition of “medica l c are , or health car e, or safe ty or profe ssional or administrative service s direc tly rela ted to health car e” even though the conduct occur red in a h ea l t h ca re context. See T E X
. C I V
. P R A C
. & R E M
. C O D E § 74.001(a) (13); see also T E X
. G O V ’ T C O D E § 311.021 (“I n enac ting a statute, it is presumed that

. . . a just and rea sonable result is intended . . . .”)

. Id. at 257. Our rea soning led to the conclusion that a patient’s claim ag ainst a medical provider for
assault during a medical examination is not an HCL C if the only possible rela tionship betwee n the alleg ed improper conduct and the rendition of medical serv i ce s or health car e was the setting in
which the c onduct took place

. Id.
I n this case , the hospital advanc es two positions in support of the lower courts’ ruling s and
its asser tion that Ross’s claim is an HCL C. First, it addre sses slip and fall claims g ener ally , and say s that any slip and fall eve nt within a hospital is direc tly rela ted to he alth car e beca use it ne cessa

rily
is related to the sa fety

of patients. S econd, it focuse s on Ross’s claim s pecif ically and arg ues t hat
her claim is rela ted to health car e beca use she alleg es the hospital brea ched standards applicable to maintaining a

safe environment for

patients. We disag ree with both posit ions.
As to the hospital’s first contention, even though the claims in Loaisi ga wer e by a patient and
the nature of the claims differ from Ross’s safe ty standards- based claim, the principle we expli cate d
there applies here

. A safe ty standards- based claim does not come within the TML A’s provisions just
beca use the underly ing occur

renc e took place in a hea lth care fac ility , the claim is a g ainst a health

car e provide r, or both. See Loaisiga , 379 S.W .3d at 257.

1 0As to its second contention, Ross alleg ed that the hospital failed to exercise rea sonable car e

in making the floor safe

. The standards Ross say s the hospital br eac hed reg arding maintenanc e of its floor may be the same a s the hospital’s standards f or maintaining a saf

e envir onment in patient

car e are as—but those may also be the same standards many businesses g ener ally have for maintaining their floors. And t he hospi tal does not claim, nor d o es the record show, that the area
wher e Ross fell was a patient car e are a or an are a wher e patients possibly would be in the course of
the hospital’s providing health car e service s to them. Nor does the hospital ref ere nce support in the

rec ord for the position that the are a had to meet particula r clea nliness or maintenanc e standards
rela ted to the provision of hea lth care or patient saf ety

. See O llie , 342 S.W .3d at 527 (“ [S ]ervices

a hospital provides its patients nece ssarily include t h o s e s er v ices require d to meet patients’
fundame ntal needs such as clea nline s s
. . . an d s afe ty .”). Which leads to the question of whether
Ross’s claims are never

theless HCL Cs, as the hospital would have us hold.
The TML A does not specific ally state that a safe ty standards- based cl ai m fa l l s within its provisi o n s o nly if the claim has some rela tionship to the provision of health car e other than the
loca t i o n o f t h e occur

renc e, the status of the defe ndant, or both. But the L eg islature must have
intended such a rela tionship to be nece ssary , g iven the leg islative intent expli citly set out in the
TML A and the context in which “saf ety ” is use d in the statute. We said as much in Loaisi ga . 379
S.W .3d at 257. Even thoug h the s tatute’s phrase “directly rela ted t o health care ” does not modify
its ref ere nce to safe ty standards, that refer en ce occur s within a specific context, which define s an HCL C to be “a cause of action ag ainst a health car e provider or phy sician for [a] trea tment, [b] lack
of trea tment, [c] or other claimed depar ture from acc epted standards of medical car e, or health car e,

1 1or safe ty .” T E X
. C I V
. P R A C
. & R E M
. C O D E § 74.001(a) (13). Where the more specific items, [a] and

[b] , are foll o we d by a catc hall “other ,” [c] , the doctrine of ejusdem generis teac hes that the latter
must be limi ted to things like the f ormer. And here, t he catchall “other” itself ref ers to standards 1
of “medica l car e” or “hea lth car e” or “saf ety .” Considering the purpose of the statute, the context of
the lang uag e at issue, and the rule of ejusdem generis , we conclude that the safe ty standards ref err ed

to in the definiti on are those that have a s ubstantive rela tionship with th e p ro v i d i n g of m edica l or health car e. And if it wer e not so, the broad meaning of “saf ety ” would aff

ord defe ndant health car e providers a specia l proce dural advanta g e in the g uise of requiring plaintiffs to file expert repor ts in
their suits re g ardle ss of whether their cause of action implicated the provision of medical or health

car e. We do not believe the L eg islature intended the statute to have such arbitra ry results. See T E X
. G O V ’ T C O D E § 311.021 (“I n enac ting a statute, it is presumed that . . . a just and re asonable result
is intended .

. . .”); Synatzske , 438 S.W .3d at 54 (dec lining to attribute to t he L eg islature an intent to require a mea

ningle ss, arbitrar

y proce dural hurdle for injure d persons to bring suit). Thus, we conclude that for a safe ty standards- based claim to be an HCL C there must be a substantive nexus betwee n the safe ty standards alleg edly violated and the provision of health car e. And that nexus must be more than a “but for” rela tionship. That is, the fac t that Ross, a visitor and

not a patient, would not have been injured but for her falling ins i de the hospital is not a sufficient

H i l c o E l e c
. C o - o

p
. v
. M i d l o t h i a n B u t a n e G a s C o
. , 1 1 1 S

. W

. 3 d 7 5 , 8 1 ( T e x
. 2 0 0 3 ) ( “ [ T ] h e r u l e o f e j u s d e m 1 g e n e r i s . . . p r o v i d e s t h a t w h e n w o r d s o f a g e n e r a l n a t u r e a r e u s e d i n c o n n e c t i o n w i t h t h e d e s i g n a t i o n o f p a r t i c u l a r o b j e c t s o r c l a s s e s o f p e r s o n s o r t h i n g s , t h e m e a n i n g o f t h e g e n e r a l w o r d s w i l l b e r e s t r i c t e d t o t h e p a r t i c u l a r d e s i g n a t i o n
. ” ) ; s e e a l s o A N T O N IN S C A L IA & B R Y A N A

. G A R N E R , R E A D IN G L A W : T H E I N T E R P R E T A T IO N O F L E G A L T E X T S 1 9 9 ( 2 0 1 2 ) ( “ W h e r e g e n e r a l w o r d s f

o l l o w a n e n u m e r a t i o n o f t w o o r m o r e t h i n g s , t h e y a p p l y o n l y t o p e r s o n s o r t h i n g s o f t h e s a m e g e n e r a l k i n d
o r c l a s s s p e c i f

i c a l l y m e n t i o n e d

. ” )

. 1 2rela tionship betwee n the standards Ross alleg es the hospital violate d and the hospital’s health car e

activities for the claim to be an HCL C. As we rec og nized in Loaisi ga , “[i] n some instances the only possible rela tionship betwee n the conduct underly ing a claim and the rendition of medical service s

or healthca

re will be the healthca

re setting ( i.e. , the phy sical location of the conduct in a health car e fac ility ), the defe ndant’s status as a doctor or health car e provider, or both.” 379 S.W .3d at 256. But althoug h the m ere location of an inj ury in a health car e facility or i n a health car e setti ng does not bring a claim based on that injury within the TML A so that it is an HCL C, the fac t that the incident
could have occur

red outside such a fac ility or setting does not prec lude the cla i m fr o m being an HCL C. The pivotal issue in a saf ety standards- based c laim is whether the s tandar ds on which the
claim is based implicate the defe ndant’s duties as a health car e provider, including its duti es to provide for

patient safe ty

. As this ca s e demonstrates, the line betwee n a safe ty standards- based claim that is not an HCL C and one that is an HCL C may not alway s be clea r. But cer tain non-exclusive considerations
lend themselv es to analy zing whether such a claim is substantively rela ted to the defe ndant’s providing of medica l or hea lth care and is there fore an HCL C:
1. Did the alleg ed neg lige n ce o f t h e defe ndant occur in the course of the defe ndant’s perf

orming tasks with the purpose of protec ting patients from harm; 2. Did the injuries occur in a place wher e patients might be during the time they wer e rec eiving car e, so that the obliga tion of the provider to protec t persons who re quire spec ial, medical c are was implicated; 3. At the tim e o f t h e injury was the claimant in the proce ss of seeking or rec eiving health ca

re; 4. At the time of the injury was the claimant providing or assisting in providing health ca re;

1 35. I s the alleg ed neg lige nce based on safe ty standards arising from profe ssional duties owed by

the hea lth care provider; 6. I f an instrumentality was involved in the defe ndant’s alleg ed neg lige nce, was it a ty pe used in providing health ca re; or 7. Did the alleg ed neg lige n ce occur in the course of the defe ndant’s taking action or failing to take action nece ssary to comp l y wi t h safe ty -re lated require ments set for health car e providers by g overnme nt al o r accre diting ag encie s?
Measur ing Ross’s c laim by the fore g oing c onsiderations, it is clear that the answe r to ea ch
is “no.” The rec ord does not show that the clea ning and buffing of the floor near the exit doors was for the purpose of protec ting patients. Nor does the rec ord ref lect that the are a wher e Ross fell was

one wher e patients might be during their trea tment so that the hospital’s obliga tion to protec t patients

was implicat ed b y t h e co ndition of the floor at that location. Ross was not seeking or rec eiving
health ca re, nor was she a hea lth care provider or assisting in providing health ca re a t the time she
fell. There is no evidenc e the neg lige nce alleg ed by Ross was based on safe ty standards arising from profe ssional duties owed by the hospital as a health car e provider. There is also no evidenc e that the equipment or materia ls used to clea n and buff the floor wer e particula rly suited to providing for the
safe ty of patients, nor does the rec ord demonstrate that the clea ning and buffing of the floor near the
exit doors was to comply with a safe ty -re lated require ment set for health car e providers by a
g overnme ntal or ac cre diting author ity

. V. Conclusion
Under this rec o rd R o s s ’s claim is based on safe ty standards that have no substantive
rela tionship t o the hos pital’s providing of health car e, so it is not an HCL C. Be cause her c laim is

not an HCL C, she was n o t re q u ired to serve an expert repor t to avoid dismiss al of her suit. We

1 4reve rse the judgme nt of the court of appea ls and rema nd the case to the tri al court for further
proce eding s.

________________________________________ Phil J ohnson J ustice

OP INION DELIVERED: May 1, 2015

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