Reversed , Rendered in Part , and Remanded in Part , and Majority and

Dissenting Opinion s filed March 2 6 , 20 20

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 18

- 00887

- CV

THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON , Appellant

V.
BRENDA JACKSON , App ellee

On Appeal from the 122nd District C ourt Galveston County, Texas Trial Court Cause No. 17

- CV

- 1226

M A J O R I T Y O P I N I O N
The University of Texas Medical Branch at Galveston (“UTMB”) appeals an order denying its motion to dismiss under the Texas Medical L iability Act

. Appellee Brenda Jackson sue d UTMB for injuries she sustained from a slip and
fall while a patient there

. Contending Jackson’s claims are health care liability
claims under Texas Civil Practice and Remedies Code chapter 74, UTMB filed a2

moti on to dismiss because Jackson failed t o se rve an expert report as the code require s . The trial court denied UTMB’s motion.

We conclude that Jackson’s claims are subject to c hapter 74’s expert report requirement. Because Jackson failed to serve an expert report in support of her claims, we r ever se and render judgment that she take nothing against UTMB , and

we remand for further proceedings consistent with this opinion.
Background

UTMB admitted Jackson for a colonoscopy. According to Jackson, while “walki ng from the prep room to the procedure are a,” she “slipped on a liquid believed to be water.” The liquid was in an area not open to the general public. Jackson suffered injuries as a result of her fall. Jackson sued UTMB, asserting a premises liability claim for negligence.

UTMB answered a nd g eneral ly deni ed Jackson’s allegations

. After the expiration of 120 days, UTMB filed a motion to dismiss and for attorney’s fees, contending that Jackson’s claim was a health care liability claim governed by Civil
Practice and Remedies Code c hapter 74 , whi ch requires, among other things, a plaintiff to serve an expert report on a defendant health care provider not later than 120 days after the defendant files its answer. See Tex. Civ. Prac. & Rem. Code § 74.351(a). Because Jackson did not serve an exp ert report, UTMB argued that
the trial court must dismiss Jackson’s claim with prejudice and award reasonable attorney’s fees and costs incurred. See id. § 74.351(b)(2). After conducting a hearing, the trial court d enied UTMB’s motion to
dismiss . UTMB appe al s and argu es the trial court erred in denying its motion

. 1

1 See Tex. Civ. Prac. & Rem. Code § 51.014(a)(9) (“A pers on may appeal from an interlocutory o rder .

. . [that] denies all or part of the relief sought by a motion under Section 74.351(b).”).3 Analysis

A. The Nature of Chapter 74 Health Care Liability Claims The main issue in this appeal

— whether Jackson’s claim is a health care liability clai m

— tur ns on the reach of the Texas Medi cal Liability Act (“TMLA”), a comprehensive medical malpractice reform measure. See Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin , 307 S.W.3d 283, 287 (Tex. 2010) (“[The TMLA] was enacted in 2003 as part of Hous e Bill 4, a top

- to

- bottom overhau l of Texas malpractice law.”) ; see also Hopebridge Hosp. Houston, L.L.C. v. Lerma , 521 S.W.3d 830, 834 (Tex. App.

— Houston [14th Dist.] 2017, no pet.)

. The
TMLA is codified at c hapter 74 of the Texas Civil Practice and Reme dies Code.
See Act of June 2, 20 03, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 864

- 82 (codified at Tex. Civ. Prac. & Rem. Code ch. 74). Because this case requires us to interpret the statute to determine whether it extends to Jackso n’s

c laim, our review is de novo. Loa isig a v. Cerda , 379 S.W.3d 248, 254

- 55 (Tex. 2012); Mem ’ l Hermann Hosp. Sys. v. Kerrigan , 383 S.W.3d 611, 612, 613 (Tex. App.

— Houston [14th Dist.] 2012, pet. denied).

S ection 74.351 requires a plaintiff, in cases invol ving a health care liability claim, to ser ve on the defendant one or more expert reports, on or before the 120th day after the defendant’s original answer is filed. Tex. Civ. Prac. & Rem. Code § 74.351(a). An expert report means “a written report by an e xpert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal
rel ation ship between that failure and the inj ury, harm, or damages claimed.” Id.4

§ 74.351(r)(6). 2 If the plaintiff fails to serve an expert report within the 120

- day period, the statute requires a trial court, upon motion, to dismiss the plaintiff’s
claim w ith p rejudice. Id. § 74.351(b)(2).

Se ctio n 74.351’s expert report requirement applies only to a health care liability claim. The TMLA defines a “health care liability claim” as:
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed d epar ture 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, whe ther the claimant’s claim or cause of acti on sounds in tort or contract.

Id. § 74.001(a)(13). From this definition, the Supreme Court of Texas has identified three basic elements of a health care liability claim: (1) a physician or health care provider mu st be a defendant; (2) the claim or cl aims at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s act or omission c ompl ained of must proximately cause the injury to the claimant. Psychiatric Sols., Inc. v. Palit , 414 S.W.3d 724, 725

- 26 (Tex. 2013) (citation omitted). For purposes of UTMB’s motion and this appeal, t he parties do no t dis pute that UTMB is a health care p rovi der or that the acts or omissions alleged against UTMB proximately caused Jackson’s injuries.

2 The exper t report requirement is meant to identify frivolous claims and reduce the expense and time necessary to d ispos e of any that are filed. See Loaisig a , 379 S.W.3d at 258. It is a threshold requirement; it is not meant to force the plaintiff to marshal and p resent all of the pl aintiff ’ s proof. See In re Alere Women’s & Children’s Health, LLC , 357 S.W.3d 809, 8 12

- 13 (Tex. App.

— Houston [14th Dist.] 2011 , orig. proceeding); see also Tex. Civ. Prac. & Rem. Code § 74.351(k), (t) (expert report generally not admis sible in evidence; c annot be used in a deposition, trial, or other proceeding; and shall not be referred to by any party during the course of the a ction for any purpose, unless the report is used by the claimant in the course of the action for any purpose other than to meet t he service requirement of section 74.351(a)).5

The only dispute, then, pertains to the second element of a health care liability claim

— whether Jackson’s claim at issue “con cern [s] treatment, lack of

treatm ent, or a departure from the accepted standards of medical care, or health care, or safety

. ” Id. In its motion to dismiss, UTMB argued that “the alleged negligence

— allowing a slippery substance to remain on the floor

— is d irectly
related to the task of in spec ting and keeping the floor safe and clean for patients ,”
and so Jackson’s claim necessarily invoked accepted safety standards by which the hospital must abide when providing health care to patients

. Jackson respon ded t hat
her claim do es not allege a b reac h of safety standards that are specific to a hospital rather than any general premises owner, and therefore her claim does not implicate UTMB’s duties as a health care provider

. B. Jackson’s C laim is a H ealth C are L ia bilit y C laim Analysis of the second el emen t of a health care liability claim focuses on the facts underlying the claim. Loaisiga , 379 S.W.3d at 255. A plaintiff cannot avoid the TMLA’s requirements by “artfully

- phrased language” or recasting of claims.
Id. ; see also Diversicare Gen. Partner , In c. v. Rubio , 185 S.W.3d 842, 854 (Tex. 2005); Garland Cmty. Hosp. v. Rose , 156 S.W.3d 541, 543 (Tex. 2004).
Therefore , in ascertaining the gravamen of the claim asserted, we are not bound by Jackson’s characteriza tion of her claim. See Buck v. Blum , 130 S.W.3d 285, 291 (Tex. App.

— Houston [14th Dist.] 2004, no pet.). Rather, we look to the “entire court record” as a whole and the overall context of the plaintiff’s suit, including the nature of the factual allegati ons i n the pleadings, the motion to di smis s, the response, and any relevant evidence properly admitted. See Loaisiga , 379 S.W.3d
at 258

- 59. Accordingly, a claim can be a health care liability claim regardless whether the plaintiff’s petition explicitly ci tes t he TMLA or alleges a breach of an y6

ac cepted standards of medical care, health care, or safety or professional or administrative services directly related to health care. Id. at 255. If a claim is premised on facts that could support liability for a breac h of any such duties, then
the cl aim is properly characterized as a health care liability claim and c hapter 74 applies. See id.
With this framework in mind, we turn to the central question whether Jackson’s claim concerns treatment, lack of treatm ent , or a departure from the accepted sta ndar ds of medical care, or health care, or safety

. A s the Supreme Court of Texas has observed, the TMLA’s broad language evidences legislative intent for the statute to have expansive application. See Loaisiga , 379 S .W.3d at 256 (citing, e.g

. , Tex . Civ. Prac . & Rem. Code § 74.001(a)(10)). In this regard, the code casts a wide net, “essentially creat[ing] a presumption that a claim is [a health care liability claim] if it is against a physician or health care provider and is based on facts implicat ing the def endant’s conduct during the course of a patient’s care, treatment, or confinement.” Id. But the presumption is necessarily reb uttable. For instance, a claim may not fall under chapter 74 if “the only possible rel ation ship between the conduct

u nderlying a claim and the rendition of medical services or healthcare [is] the healthcare setting ( i.e. , the physical location of the cond uct in a health care facility).” Id. On the other hand, “ although the mere location o f an injury in a
health care fa cility or i n a health care setting does not bring a claim based on that injury within the TMLA

. . . the fact that the incident could have occurred outside such a facility or setting does not preclude the claim from being [a healt h care liability claim]

. ” Ross v. St . Luke’s Episcopal Hosp. , 462 S.W.3d 496, 504

- 05 (Tex. 2015 ) (emphasis added)

. T he “pivotal issue . . . is whether the standar ds on7

which the claim is based implicate the defendant’s duties as a health care provid er, i ncluding its duties to pro vide for pa tient safety.” Id. at 505. Admittedly , the line between a safety

- standards

- based claim that is a health care liability claim and one that is not “may not always be clear,” id. at 505, but the Supreme Court of Te xas h as provided helpful guidan ce

. In Ros s , the court held
that a safety

- standards

- based claim such as Jack son ’ s is not a health care liability
claim unless there is a substantive nexus between the safety standards allegedly violated and the provision of healt h care. See id. at 504

- 05. To assis t court s in analyzing whether a claim is substantively related to a defendant health care provider’s provision of medical or he alth care, the supreme court identified seven

non

- exclusive consider ations :
1. Did the alleg ed negligence of the defendant occur in t he 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 th e obl igation of the provider to protect pe rson s 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; 4. At the time of the injury was the claimant providing or a ssist ing in providing health care; 5. Is t he a lleged negligence based on safety standards arising from professional duties owed by the health ca re provider; 6. If an instrumentality was involved in the defendant ’ s alleged negligence, was it a type used in provi ding health care; or 7. Did the alleg ed n egligence 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 agencie s?
Id

. at 505.8

Considering the record in l ight of the relevant Ross factors, we conclude that
a substantive nexus exists between the accepted sa fety standards at issue and Jackson’s fall. 3 Here, Jackson was a patient seeking special medical care (a
colono scopy ). As Jackson admitted, she had “bee n pr epared”

— i.e., UTMB had commenced providing medical care

— and was walking to the procedure room to

u ndergo the colonoscopy when she slipped and fell. If the merits were reached , it may be relevant to inform the trier of fact of hospital procedures on sa fely transferring a patient during the course or provision of medical treatment. Accord St. David’s H

ealthcare P’ship, L.P. v. Esparza , 348 S.W.3d 904, 906 (Tex. 2011) (per curiam) (allegation that patient slipped on u ltrasound gel was health care
liabili ty c laim because fact finder would need to be informed of hospital procedures on safely disposing of g loves covered with a slippery substance after a medical procedure). Moreover, t he water on which she slipped wa s in an area not open to the general publi c. UTMB, therefore, was responsible for Jackson’s safety

as a patient , at a minimum

. See Se. Tex. Ca rdiology Assocs. v. Smith , --- S.W.3d

--- , 2019 WL 3022547, at *3 (Tex. App.

— Beaumont 2019, no pet.); see also Lit tle v

. Riverside Gen. Hosp. Inc. , No. 14

- 1 4

- 00 797

- CV, 2016 WL 208142, at *3 (Tex. App.

— Houston [14th Dist.] Jan. 14, 2016, no pet.) (mem. op.) ( “Protection of patient safety

— including maintenance of hospital grounds to prevent injury

— is part and parcel of the p rovision of health care.”) ; c f. Houst on M

ethodist Willowbrook Hosp. v. Ramirez , 539 S.W.3d 495, 501 (Tex. App.

— Houston [1st Dist.] 2017, no pet.) (holding that defendant hospital did not demonstrate that

3 We need not address each factor indiv idual ly, as some are clearly inapplicable to the facts at hand. For instance, Jackson was not “providing or assisting in providing health care,”

nor w as an “instrumentali ty [] involved in the defendant’s alleged negligence.” See, e.g. , Little v. Riversid e Gen . Hosp. Inc. , No. 14

- 14

- 00797

- CV, 201 6 WL 208142, at *3 (Tex. App.

— Houston [14th Dist.] Jan. 14, 2016, no pet.) (mem. op.) (discussing Ross ’s appl icability generally, rather than factor

- by

- factor).9

asserted claims implicated duties specific to h ealth care providers, as opposed to
duties owe d by any premises owner, because the fall occurred in a publicly accessible hallway within the hos pital)

. Finally, a s UTMB observes , federal regulation s require the hospital to meet certain safety standards, i nclud ing requirements that the “overall ho spit al environment . . . be developed and maintained in such a manner that the safety and well

- being o f patients are assured,” that diagnostic facilities “be located for the safety of patients,” and that hospital f

acili ties “be maintained to ensure an acce ptab le level of safety and quality.” 42 C.F.R. § 482.41 (a), (d)(1), (d)(2)

. In sum, facto rs 2, 3, 5, and 7 suggest Jackson ’ s claim i s a health care liability claim ; factor 1 is unclear because
the r ecord d oes no t sho w how the spill was created , but the spill undisputedly
existed in an area gener ally restricted to medical personnel and patients ; t h e an s wer to factor 4 is no; and factor 6 does not apply.

Jackson’s assertion that UTMB failed to make its premises s afe f or its patients is an allegation that it did not comport with the required standard of patient

care , which includes p rotecting patients f rom injury on hospital premises within the context of the treatment provided

. See Ross , 462 S.W.3d at 502; see al so Li ttle , 2016 WL 208142, at *3. We ther efore hold that Jackson’s claim is a health care liability claim, as that term i s defined under chap ter 74, and Jackson was required to serve on UTMB an expert report within 120 days of UTMB’s answer. See Tex.
Civ . Pra c. & Rem. Code § 74.351 (a)

. Because Jackson failed to so, the trial court erred in denying UTMB’s motion to dismiss. See id. § 74.351(b ).

We sustain UTMB’s issue.

Conclusion We hold that Jackson’s claim is based on an alleged departure from accepted

stan dards of patient safety and is a heal th care liability claim under chapter 74.10

Therefore, Jackson was required to co mply with section 74 .351(a)’s expert report requirements. Because she failed to serve an expert report, the trial court erred in deny ing U TMB’s motion to dismiss. We sustain UTMB’s issue, reverse the trial court’s order, render judgment that Jackson take nothing from UTMB , and remand
the case with instructions for the trial court to enter judgment consistent with this opinion, includin g an award of taxable court costs to UTMB. 4

/s/ Kevin Jewell Justice

Pa nel consists of Just ices Wise, Jewell, and Poissant

. (Poissant, J., dissenting).

4 UTMB does not request a remand for determination of atto rneys’ fees. See Tex. Civ. Prac. & R em. Code § 74.351(b)(1) ; Lentino v. Cullen Ctr. Bank & Trust , No. 14

- 00

- 00692

- CV, 2002 WL 220421, at *11 (Tex

. App.

— Houston [14th Dist.] Feb. 14, 2002, pet. denied) (not designated for publication) (“We cannot gran t rel ief appellants do not request.”) ; see also State v. Anderson Courier Serv. , 222 S.W.3d 62, 66

- 67 (Tex. App.

— Austin 2005, pet. denied) ( “ In fact, A nderson Courier soug ht attorney ’ s fees in its declaratory judgment action under section 37.009 in the tri al co urt but did not pursue the issue on a ppeal. Because the issue was not raised on appeal, there was no reason for this Court to remand the case for further considerati on. ” )

.