1 COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

CECILIA M. SIMMONS, Appellant ,

v. OUTREACH HEALTH COMMUNITY CARE SERVICES, L.P., d/b/a OUTREACH HEALTH SERVICES , Appellee. §

§ § § § § No. 08

- 1 3

- 00 204

- CV

Appeal from the County Court at Law No. 6 of El Paso County , Texas (TC# 2011

- 2789 )

O P I N I O N In two issues, Appellant Cecilia Simmons, a certified nursing assistant, challenges the trial court’s ruling that the workplace safety claim she brought against her employer for injuries she sustained while moving a patient constituted a health ca re liability claim (“HCLC”) for which the filing of an expert report was required under the Texas Medical Liability Act (“TMLA” or “the Act”). Appellant also attacks the constitutionality of TMLA’s expert

- report requirement as applied to her under the Texas Constitution’s Open Courts Provision and the Due Process Clause of the U.S. Constitution’s Fourteenth Amendment. We conclude that Appellant’s claim constitutes a b reach of safety standards HCLC under the Act, and that her failure to serve an expert report detailing the relevant standard of care is2

fatal. We also conclude that her as

- applied constitutional challenges to the Act are without merit. As such, we affirm the trial court’s dismissal with prejudice. BACKGROUND At the time she sustained her injuries, Appellant worked for Outreach Health Community Care Services (“Outreach”), a non

- subscriber to the Texas worker’s compensation plan and the operator of a state

- licensed nursing home and home

- care service businesses. Appellant’s job responsibilities involved supporting a client’s self

- care and independence by providing bathing, grooming, laundry, meal preparation, assistance with medication, and “transfer/ambula tion,” among other things. On October 4, 2010, Appellant attempted to lift, turn, and move one of her homebound, quadriplegic patients. The patient weighed 262 pounds. As she tried to perform these actions, Appellant felt two “pops” and injured her lowe r back. Appellant brought suit against Outreach, alleging that her injuries were proximately caused by Outreach’s breach of the duty to provide a safe work environment. Nearly a year after Appellant filed suit, the Texas Supreme Court issued its opinion in Texas West Oaks Hosp., L.P., v. Williams , 371 S.W.3d 171 (Tex. 2012) , holding inter alia that the TMLA’s expert report requirement applied to claims brought against a health care provider not only by patient plaintiffs, but by certain health care provid er employees as well. 1 Almost a month and a half after the Texas Supreme Court handed down the Williams opinion, Outreach moved to dismiss, arguing that Appellant’s personal injury claim was actually an HCLC requiring submission of an expert report, and t hat since more than 120 days had passed since Appellant filed suit, Outreach was entitled to dismissal with prejudice since it had not been served with a report. The trial court subsequently granted Outreach dismissal of Appellant’s claims with prejudice.

1 At least one court of appeal has ap plied the expert report requirement “retroactively” to an employee claimant case that was pending at the time Williams was decided. See CHCA Bayshore, L.P. v. Salazar , No. 14

- 12

- 00928

- CV, 2013 WL 1907888, at *5 (Tex.App.

-- Houston [14th Dist.] May 7, 2013, pet. denied).3

This appeal followed. DISCUSSION I. In Issue One, Appellant maintains that her duty to provide a safe workplace claim does not constitute an HCLC because her injury was unconnected to the rendition of health care, her actions did not implicate the safe ty of the patient, and an expert opinion was unnecessary to set out the standard of care, since her claim would be a standard negligence claim but for the defendant’s status as a health care provider. We disagree. Standard of Review and Applicable Law
W hether a claim constitutes an HCLC is a question of statutory construction reviewed de

novo . Loaisiga v. Cerda , 379 S.W.3d 248, 25 4

- 5 5 (Tex. 2012). In analyzing the claim, the c ourt considers the record as a wh ole, the pleadings, and the factu al allegati ons contained therein. Id

. at 259. An HCLC consists of three elements: (1) the defendant must be either a health care provider or a physician; (2) the plaintiff’s claim must concern treatment, lack of treatment, or a departure from the accepted standard s of care on one of four predicate grounds (“the Four Breaches”); and (3) the conduct complained of in element two proximately caused the plaintiff’s injury or death. See T EX .C IV .P RAC .&R EM .C ODE A NN
. § 74.001(a)(13) (West 2011) ; Williams , 371 S.W.3d at 179

- 80. The Four Breaches covered by element two include departures from the accepted standard s of (a) medical care, (b) health care, (c) safety, and (d) professional or administrative services directly related to health care. 2 Id. at 180.

2 “Medical care” and “health care” are terms of art specifically defined in the statute. “‘ Health care ’ means any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement. ” T EX .C IV .P RAC .& R EM .C ODE A NN
. § 74.001(a)(10). “Medical care” means any act defined as practicing medicine under Section 151.002, Occupations Code, performed or furnished, or which should have been performed, by one licensed to4

A plaintiff “claimant” under the statute does not need to be the patient of a health care provider or physician for her claim to be considered an HCLC. Williams, 371 S.W

. 2d at 179 (classifying a mental health worker’s workplace safety claim against his em ployee as an HCLC where plaintiff was injured by a patient under his care). Rather, “[t]he breadth of the statute’ s text essentially creates a presumption that a claim is an HCLC if it is against a physician or health care provider and is based on facts i mplicating the defendant's conduct during the course of a patient's care, treatment, or confinement .” Lo a i siga , 379 S.W.3d at 256. The presumption may be rebutted where the only possible connection between the plaintiff, the defendant, and the conduct is situs in a health care setting or the defendant’s status as a health care provider. Id

. In assessing whether a claim is an HCLC, the Court looks to the content and not the form of the pleadings to see if the alleged conduct falls within the TMLA’s legis lated scope. Williams , 371 S.W.3d at 176 (court must look to the “grava men of the claim . . . a gainst the health care provider” ) . A plaintiff cannot dodge the TMLA’s strictures through artful pleading; where a pleaded tort or contract claim constitutes a n HCLC, the TMLA’s procedural requirements apply regardless of how the claim is recast. Diversicare General Partner, Inc. v. Rubio , 185 S.W.3d 842, 851 (Tex. 2005) . A defendant is entitled to dismissal with prejudice of any HCLC if a plaintiff fails to s erve the defendant with a statutorily

- compliant expert report on liability or causation within 120 days of the suit’s inception. T EX .C IV .P RAC .&R EM .C ODE A NN
. § 74.351(b) , (j). Analysis In her brief, Appellant does not appear to dispute that her employer is a health care provider under the statute. Instead, this case implicates two of the predicate breaches identified

practice medicine in this state for, to, or on behalf of a patient during the patient's care, treatment, or confinement. T EX .C IV .P RAC .&R EM .C ODE A NN
. § 74.001(a)(19).5

by statute: breach of the accepted standards of health care, and breach of the accepted standards of safety. Appellant correctly points o ut that to classify a claim as a health care standards HCLC, an alleged act or omission in a claim must be “ inseparable or integral part of the rendition of medical services.” See Marks v. St. Luke’s Episcopal Hosp. , 319 S.W.3d 658, 664 (Tex. 20 10)(intepr eting TMLA’ s predecessor statute) . The existence of a physician

- patient relationship and a nexus between the plaintiff’s claim and that relationship are also vital before a claim may be classified as a health care standards HCLC. Psychiatric Solutions, I nc. v. Palit , 414 S.W.3d 724, 726 (Tex. 2013). Appellant argues that her claim, as pleaded, implicates only the duty Outreach owes to her to ensure she remained free from injury in the workplace, and not any medical standard of care it owed to the patient . In Appellant’s view, any rendition of health care services to the patient while she was moving him w as too tangential or incidental to trigger the TMLA. Outreach disputes her contentions, but also counters that even if Appellant’s workplace safety clai m cannot be categorized as involving a breach of the standards of health care, her claim still constitutes an HCLC under the much broader breach of safety standards predicate. We agree. Safety as used in the TMLA carries its plain, ordinary meaning “ as t he condition of being untouched by danger; not exposed to danger; secure from danger, harm or loss.” Williams , 371 S.W.3d at 184 [Internal quotation marks omitted]. In Williams , the Texas Supreme Court held that the breach of safety predicate sweeps broa der than the breach of health care predicate, noting that the phrase “directly related to health care” does not modify the noun “safety” in Section 74.001(a)(13). Id

. at 186 . Thus, “t he safety component of HCLCs need not be directly related to the provis ion of health care . . . . ” Id

. 3

3 We also note that the Williams case prompted the Texas Legislature in 2013 to contemplate amending the TMLA ’s definition of a health care liabil ity claim to clarify that it does “not include claims arising from an injury to or a6

Our sister courts ar e split on the issue of whether, after Williams , there is any conceivable limitation on the scope of the safety prong. See Rio Grande Regional Hosp. v. Salinas , No. 13

- 13

- 00557

- CV, 2014 WL 3805141, at *2 n.1 (Tex.App.

-- Corpus Christi July 31, 2014, pet

. filed )(outlining the division among courts of appeals) 4

. Six courts hold that a safety claim must be tethered at least indirectly to the rendition of health care before it falls within the TMLA’s ambit; two other courts maintain that the 2003 amendments jettisoned any nexus requirements between safety and rendition of health care by enacting statutory language so sweeping that the
T MLA essentially embraces all safety

- related claims brought against any health care provider defendant for any reason, including garden

- variety premises liability claims that would otherwise not require expert opinions on causation. Id .; see also Diversica re , 185 S.W.3d at 860

- 61 (Jefferson, C.J., concurring and dissenting)(noting that the specific source of danger triggeri ng the TMLA’s safety predicate “is without limitation” ). While we are strongly inclined to agree with the majority approach to this iss ue, we need not dive into the fray in this case. Under either approach, Outreach prevails. Assuming the safety prong is in fact limited to only those claims which relate at least indirectly to the rendition of health care, Appellant’s safe workplace clai m stems from injuries sustained while rendering health care services to a patient within the scope and course of her employment. In CHCA Bayshore, L.P. v. Salazar , No. 14

- 12

- 00928

- CV, 2013 WL 1907888, at * 4 (Tex.App.

-- Houston [14th D ist.] May 7, 2013, pet . denied) (mem. op.) , the Houston Fourteenth Court of Appeals concluded that a health care worker injured “while attempting to maneuver a patient” through a

death of a person who is not a patient, including employment and premises liability claims.” See Tex. H.B. 2644, 83d Leg., R.S. (2013). Unfortunately, House Bill 2644 wa s not enacted. Hart v. Select Specialty Hosp

. - Houston L

. P

. , No. 4:13

- CV

- 335, 2014 WL 710287, at *4 n.2 (S.D. Tex . Feb. 19, 2014)

.
4 See also Williams v. Riverside General Hospital, Inc., No. 01

- 13

- 00335

- CV, 2014 WL 4259889 , at *4

- *5 (Tex.App.

-- Houston [ 1 st Dist.] Aug. 28, 2014, no pet. h. ) (mem. op.) ; Reddy v. Ve e dell, No. 01

- 14

- 0030 9, 2014 WL 4651211 (Tex.App.

-- Houston [ 1 st Dist.] Sept. 18, 2014, pet

. filed ) (adopting indirect nexus approach)

.7

door that required a second person to hold it open presented a safety prong HCLC, since she alleged the hospital breached safety duties it owed to its employees while in the course and scope of dealing with patients. The facts in this case are similar. See also Tillman v. Mem. Hermann Hosp. Sys. , 440 S.W.3d 203, 206, 209 (Tex.App.

-- Houston [14th Dist.] 2013, pet. denied) (employee’s safe workplace claim was a safety HCLC where employee alleged injury resulted from lifting intubated 300

- pound patient). Appellant encourages us to disregard Salazar and adopt the approach set out in Baylor Univ. Med. Ctr. v . Lawton , No. 05

- 13

- 00188

- CV , 2013 WL 616 3 859, at *1

- *3 (Tex.App.

-- Dallas Nov. 25, 2013, pet. filed) . However, t he distinction Appellant tries to draw is inapplicable under these facts. Lawton involved an employee who suffered injury after inhaling
certa in chemicals used to treat the hospital’s sewer system. Id., at *1. There, the plaintiff presented a garden

- variety premises

- liability claim wholly divorced from health care rendition, save for the fact that the injury occurred at a hospital. Here, Appel lant’s connection to the health care provider is more than the situs of injury. Appellant was attempting to move the patient in order to facilitate the patient’s care, which was a task that explicitly fell within the course and scope of her employment as the employee of a health care provider. Furthermore, unlike Salazar in which there appeared to be a threat only to the safety of the employee and not to any patient, Outreach’s alleged breach of safety standards in relation to Appellant also bears on Appellant’s provision of safe health care to her patient, since any alleged inadequate training could result in injury to both her and her patient. Cf. Williams , 371 S.W.3d at 194 (noting in breach of health care predicate case that reference to standards governing physician

- patient relationship necessary to determine liability of employer to employee caring for patient under facts of the case).8

Finally, Appella nt urges us to nevertheless disregard the expert report requirement because a provision of the TMLA states that “ [n]othing in this section shall be construed to require the serving of an expert report regarding any issues other than an issue rel ating to li ability

o r causation.” T EX .C IV .P RAC .&R EM .C ODE A NN
. § 74.351( j ) (West Supp. 2014) . Appellant contends that this provision shows no expert report is required, since the issues of liability and causation in this case are intuitive and a matter of common tort law, and an expert report would therefore serve no purpose. Justice Lehrmann advanced a similar argument in his dissent in Williams , 371 S.W.3d at 196 (Lehrmann, J., dissenting)(opining that the expert report requirement “ contemplates that the law suit wi ll center on a physician’ s treatment of a patient ’ s illness, injury, or condition, not on the adequacy of a workplace or the t raining provided to an employee”); see also Omaha Healthcare Center, L.L.C. v. Johnson , 344 S.W.3d 392, 396 (Tex. 2011)(Lehrmann, J., dissenting)(arguing that forcing a plaintiff to provide an expert report in case where nursing home patient died from spider bite w as “contrary to the Legislature’ s intent, belies common sense, and contorts the role of ex perts in hea lth care litigation ” ) . However, there is no statutory exception from the expert report requirement, even in cases where expert testimony is ultimately unnecessary to determine liability on the merits. See Williams , 371 S.W.3d at 182. As such, the difficulty with which an exp e rt report is obtained or whether that report would even be helpful on the merits appears to be immaterial in light of the statute’s plain language and its current interpretations. We take note of Justice Massengale’s concurring opinion in Reddy, in whi ch he states : Even though the Legislature does not write statutes for the courts’ approval, it still could clarify the TMLA in response to manifest interpretive difficulties. Not only could this relieve the courts and litigants from the continuing burdens of litigation over the procedural standards, it could also better ensure that the standards applied are those actually approved by the Legislature, as opposed9 to a standard r eflecting the courts’ best good

- faith effort to implement an opaque statute

. Legislatures have the right to expect courts to faithfully implement laws as enacted. When the words fail, the Legislature has a corresponding responsibility to provide clarity where it is wanting. Rather than leaving the difficult work of clarification to the courts, w hich have confessed their strugg le with the task of reaching consensus about the meaning of the Act, the Legislature could

- and, I respectfully suggest, should[ ]s tudy the historical record of how the Texas Medical Liability Act is being applied in the courts, evaluate which outcomes do and do not reflect a desirable application of the statutory scheme, and then amend the statute to more clearly indicate what kinds of claims are intended to be subject to these special procedures. Reddy, 2014 WL 4651211 , at * 5 (M assengale, J., concurring). Because we hold that the substance of Appellant’s allegations constituted an HCLC under the broad “safety” ground, we need not address whether the same conduct would constitute an HCLC under the narrower “departure from accepted standards of health care ” ground. See Morrison v. Whispering Pines Lodge I, L.L.P. , 428 S.W.3d 327, 335 n.10 (Tex.App.

- - Texarkana 2014, pet. filed). App ellant was required to file an expert report, and her failure to do so within 120 days entitled Outreach to dismissal with prejudice. T EX .C IV .P RAC .&R EM .C ODE A NN
. § 74.351(b), (j). The trial court did not err by granting dismissal. Issue One is overruled

. II. We next turn to Appellant’s alternative, as

- applied constitutional challenges. We understand her to bring overlapping Open Courts and procedural due process claims based on three rationales. Because the Open Courts Provision represents “a facet of due process,” Hitchcock v. Board of Trustees Cypress

- Fairbanks Indep. Sch. Dist. , 232 S.W.3d 208, 217 (Tex.App.

-- Hou ston [1st Dist.] 2007, no pet.), and because both constitutional challenges embrace the ultimate question of whether any denial or constructive denial of relief for her legal10

claim under the Act is reasonable, we address both points in a consolidated analysis below.

The Open Courts Provision and Procedural Due Process The Texas Constitut ion’s Open Courts Provision provides that “ [a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall ha ve remedy by due course of law.” T EX .C ONST
. a rt. 1, § 13. The provision serves as a judicial check on the legisla tive power, “ prohibit[ing] legislative bodies from arbitrarily withdrawing all legal remedies from one having a cause of action well established and well defined in the common law.” Lebohm v. City of Galveston , 154 Tex. 192, 1 97, 275 S.W.2d 951, 954 (Tex. 1955). In assessing a statute under the Open Courts Provision, we begin with the assumption that the law is constitutional. Marquez v. Providence Mem. Hosp. , 57 S.W.3 d 585, 595 (Tex.App.

-- El Paso 2001, pet. denied). The par ty challenging the law’s constitutionality under the Open Courts Provision must then show “ (1) a cognizable common

- law cause of action is being restricted; and (2) the restriction is unreasonable or arbitrary when balanced against the pu rpose and basis of the statute.” Id . “ [A] mere difference of opinion, where reasonable minds could differ, is not a sufficient basis for striking down legislatio n as arbitrary or unreasonable.” Smith v. Davis , 426 S.W.2d 827, 831 (Tex. 1968). The Due Process Clauses of t he Texas Constitution and the Fourteenth Amendment to the United States Constitution also serve as restraints on legislative power in establishing procedural prerequisites to vindicating a claim. The Fourteenth Amendment provides that “ [n]o State shall

. . . deprive any person of life, liberty, or proper ty, without due process of law

. . . .” U.S C ONST
. A mend. XIV , § 1

. Likewise, the Texas Constitution’s Due Process Clause provides that “ [n]o citizen of this State shall be deprived of life, liberty, prop erty, privileges, or immunities, or in any manner disfranchised, except by the due course of the law of the land.” T EX .C ONST
. art. I,11

§ 19. Notice and the opportunity to be heard are the cornerstones of due process. Before the State may deprive a person of property, the person must be afforded notice and the opportunity to be heard. Logan v. Zimmerman Brush Co. , 455 U.S. 422, 428, 102 S.Ct. 1148, 1153, 71 L.Ed.2d 265 (1982) . A legal claim is “property” recognized under the Fourteenth Amendment. Id

. at 428, 102 S.Ct. at 1154. Therefore, any restriction on established adjudicator y procedures that functions as “ the equivalent of denying [a litigant] an opportunity to be heard u pon their claimed right[s]” constitutes deprivation of property without due process of law. Boddie v.
Connecticut , 401 U.S. 371, 380, 91 S.Ct. 780, 787, 28 L.Ed.2d 113 (1971)

. Analysis Appellant acknowledges that a large corpus of adverse authority upholds the constitutionality of both the prior and current versions of the statut e. See Solomon

- Williams v.
Desai , No. 01

- 08

- 00733

- CV, 2009 WL 1813135, at *3 (Tex.App.

-- Houston [1st Dist.] June 25, 2009, pet. denied) (mem. op.) (listing cases). Nevertheless, Appellant contends the TMLA is unconstitutional as applied to her under the Te xas Constitution’s Open Court s Provision for three

reasons. First, she maintains the statute predicates tort relief on the fulfillment of an impossible condition. See Moreno v. Sterling Drug, Inc. , 787 S.W.2d 348, 355 (Tex. 1990)(“ the legislature has no p ower to make a remedy . . . contingent upon an impossible condition ” )

. Specifically, it requires her to procure the opinion of an expert on the subject matter of this case when no such expert exists. Second, she also argues the expert report procedural r equirements are “arbitrary and capricious” because an expert opinion on the applicable standard of care in this case, if it were indeed possible to procure, is totally unnecessary. Instead, the case can be easily resolved with reference to the duty to pro vide a safe workplace standard applicable in all other12

employment cases. Finally, Appellant argues that the 2003 amendment’s elimination of the thirty

- day grace period for inadvertent failure to comply with the expert report requirement unreasonably leave s her without remedy and places the TMLA in constitutional quicksand. See Gajewski v. Jackson , 351 S.W.3d 608, 611 (Tex.App.

-- El Paso 2011, no pet.)(noting that the 2003 amendments eliminated long

- standing grace period and permitted no exception to 120

- da y rule even where defendant purposefully eluded process to defeat the cause of action ). She reiterates these same concerns as procedural due process claims under the state and federal constitutions, averring that the TMLA’s expert report requirement is so onerous as to effectively deny her the right to be heard before her claim is destroyed by the State.

“ A claimant who brings an open courts challenge has the burden of showing that the expert

- report requirements actually prevented him from pursuing his cla ims.” Herrera v. Seton Northwest Hosp. , 212 S.W.3d 452, 461 (Tex.App.

-- A ustin 2006, no pet. ). Where the challenging party produces “no evidence that these requirements actually worked to prevent her from pursuing her claim[,]” we need not address the con stitutional arguments. See Marquez , 57 S.W.3d at 595. Here, Appellant has failed to demonstrate that the unconstitutional application of the expert report requirement, as opposed to her own failure to timely provide an expert report, prevented her from p ursuing her claim. Id .; accord Solomon

- Williams , 2009 WL 1813135, at *4. As such, we find that her constitutional challenges are without merit. Issue Two is overruled. The trial court’s judgment is affirmed.

November 7, 2014 YVONNE T. RODRIGUEZ, Justice
Be fore McClure, C.J., Rodriguez, J. , and Parks, Judge Parks, Judge (Sitting by assignment)