NO. 12-13-00005-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE GOOD SHEPHERD HOSPITAL, 

INC., 

APPELLANT

V.

RONALD MASTEN, ET AL.,

APPELLEES

§

§

§

APPEAL FROM THE 188TH 

JUDICIAL DISTRICT COURT

GREGG COUNTY, TEXAS

MEMORANDUM OPINION

The Good Shepherd Hospital, Inc. appeals the trial court‟s order denying its motion to 

dismiss Ronald and Charlene Masten‟s lawsuit against it. In its sole issue, Good Shepherd 

argues that the Mastens‟ suit is a healthcare liability claim (HCLC), that they failed to timely 

serve an expert report as required for an HCLC, and that the trial court should have granted its 

motion to dismiss the Mastens‟ suit. We affirm.

BACKGROUND

Ronald Masten, an emergency medical technician (EMT) for Good Shepherd,1 was 

working his shift at the White Oak, Texas station. Masten, along with two other employees, 

were “response ready,” but resting at the time. Around midnight, Masten and one of the other 

employees went to separate bedrooms to sleep. The third employee remained in the day room.

Shortly after 1:00 a.m., Dolanda Harper and Larry Tidwell from the Ore City, Texas 

station returned one of the White Oak station‟s ambulances. Harper and Tidwell borrowed the 

ambulance to perform their duties because the Ore City ambulance was out of service for repairs. 

Harper was unfamiliar with the White Oak ambulance and had no specific training on its 

 

1 Good Shepherd provides emergency medical services under the trade name “Champion EMS.”
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operation. She was unaware that the onboard generator that powered the ambulance‟s equipment 

required manual shutdown, and that it would continue to operate after turning off the 

ambulance‟s motor. 

The following morning, the assistant police chief and two day shift employees arrived at 

the White Oak station, and noticed an odor in the building. They hurried to check on Ronald and 

the other two employees, and discovered that all three were unconscious. One of the employees 

was pronounced dead at the scene, while Ronald and the other employee were transported for 

emergency treatment. According to the Mastens‟ petition, Ronald sustained serious brain 

damage and physical and cognitive injuries as a result of carbon monoxide poisoning. 

The ambulance was taken to a service center. According to the Mastens‟ petition, 

inspectors determined that a wire to the generator‟s onboard safety alarm had been cut, rendering 

the alarm inoperable. Also, the Mastens alleged that the White Oak station had no carbon 

monoxide detector and alarm at the time.

The Mastens initially intervened in a proceeding filed under Texas Rule of Civil 

Procedure 202 in Gregg County, Texas. Based on the same facts alleged in that proceeding, they 

filed suit in Harris County, Texas. The Mastens asserted premises liability and negligence 

claims against Good Shepherd, alleging that it proximately caused Ronald‟s injuries when it 

failed to maintain a carbon monoxide alert monitor at the station and failed to train Harper in the 

operation of the generator. They also alleged that Good Shepherd or its agents knew that the 

generator‟s safety alarm had been cut and failed to repair it. On Good Shepherd‟s motion, the 

Harris County court transferred venue of the case to Gregg County. 

Good Shepherd subsequently moved to dismiss the Mastens‟ claims with prejudice, 

claiming that their suit was an HCLC, and the Mastens failed to timely file the required expert 

report. After a hearing, the trial court denied the motion. This interlocutory appeal followed.

HEALTHCARE LIABILITY CLAIM

In its sole issue, Good Shepherd argues that the trial court erred when it failed to grant its 

motion to dismiss because the Mastens‟ claim is an HCLC, and they failed to timely file an 

expert report as required by Chapter 74 of the Texas Civil Practice and Remedies Code.
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Standard of Review 

We review a trial court‟s ruling on a Section 74.351 motion to dismiss for an abuse of 

discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 

2001). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner, 

without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 

(Tex. 2003). A trial court acts arbitrarily and unreasonably if it could have reached only one

decision, but instead reached a different one. See Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex. 

App.—Texarkana 2003, no pet.). To that end, a trial court abuses its discretion when it fails to 

analyze or apply the law correctly. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007). 

Because a trial court has no discretion to apply the law incorrectly, we review questions 

concerning the proper construction of the law de novo. See Tex. W. Oaks Hosp., L.P. v. 

Williams, 371 S.W.3d 171, 177 (Tex. 2012). Similarly, the nature of the claims the legislature 

intended to include under the Texas Medical Liability Act‟s (TMLA) umbrella is a matter of 

statutory construction, a legal question, which we review de novo. Id.

Applicable Law

1. Expert Report Requirement

Under the TMLA, a claimant who asserts an HCLC must comply with the TMLA‟s 

requirements, including serving an expert report upon the health care provider within 120 days of 

filing suit. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West Supp. 2014); Psychiatric 

Solutions, Inc. v. Palit, 414 S.W.3d 724, 725 (Tex. 2013). If the claimant fails to serve an 

expert report on a health care provider, the trial court must award the health care provider 

reasonable attorney‟s fees and costs of court and dismiss the claim or claims against the health 

care provider with prejudice. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b). 

2. Classification of Claims as HCLCs

An HCLC includes a cause of action against a health care provider “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 . . . .” Id. 

§ 74.001(a)(13) (West Supp. 2014). To determine whether a claimant is making an ordinary 

negligence claim as opposed to an HCLC, we examine the acts or omissions causing the 

claimant‟s injuries and “whether the events are within the ambit of the legislated scope of the 

TMLA.” Williams, 371 S.W.3d at 176. A claim based on facts that could support an HCLC is 
4

an HCLC regardless of whether the claimant alleges that the health care provider is liable for 

breach of any of those standards. Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012). Even 

when expert medical testimony is not necessary, the claim may still be an HCLC. Williams, 371 

S.W.3d at 182. In making our determination of whether a claim is an HCLC, we consider the 

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

properly admitted. Loaisiga, 379 S.W.3d at 258.

3. “Safety” Claims as HCLCs

“Safety” is not defined by the TMLA, and thus, is given its ordinary, commonly 

understood meaning. Williams, 371 S.W.3d at 184. Safety means “the condition of being 

„untouched by danger; not exposed to danger; secure from danger, harm or loss.‟” Id. (citing 

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex. 2005) (quoting Black‟s 

Law Dictionary 1336 (6th ed. 1990))). The safety component of an HCLC need not be directly 

related to the provision of health care. Williams, 371 S.W.3d at 186; see also Good Shepherd 

Med. Center–Linden, Inc. v. Twilley, 422 S.W.3d 782, 785 (Tex. App.—Texarkana 2013, pet. 

denied) (stating that “even if a claim is not directly related to health care, it may nevertheless be 

classified as a claimed departure from accepted standards of safety by a health care provider”). 

But the TMLA does not extend to a claim that is wholly and conclusively inconsistent with and 

separable from the rendition of “medical care, or health care, or safety or professional or 

administrative services directly related to health care” even though the conduct occurred in a 

health care context. Loaisiga, 379 S.W.3d at 257 (holding claim was not HCLC when patient 

alleged that doctor assaulted her).

That a claimant is not a patient of the health care provider is of no consequence in 

determining whether the claimant has brought an HCLC under the safety prong of the TMLA. 

Williams, 371 S.W.3d at 174. With the exception of medical care, health care, and professional 

or administrative services claims, we focus on the gravamen of the claim or claims against the 

health care provider, not the status of the claimant. See id. at 178, 181.

4. Professional or Administrative Services Claims Directly Related to Health Care as 

HCLCs

As we have stated, an HCLC includes a cause of action against a health care provider for 

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

CODE ANN. § 74.001(a)(13). “Professional or administrative services” means “those duties or 

services that a physician or health care provider is required to provide as a condition of 
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maintaining the physician‟s or health care provider‟s license, accreditation status, or certification 

to participate in state or federal health care programs.” Id. § 74.001(a)(24). “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.” Id. § 74.001(a)(10).

Unlike safety claims, a professional or administrative services claim must be asserted by 

a patient. See Williams, 371 S.W.3d at 181. In Williams, the supreme court stated that “the 

specific wording of the „health care‟ definition, that health care be an act involving treatment 

rendered for, to or on behalf of a patient, acts as a limitation on the general provision that an 

HCLC need only be pursued by a „claimant.‟” Id. The court went on to conclude that, “[w]hile 

other categories of HCLCs need only be pursued by claimants, by specific statutory directive 

health care claims must involve a patient-physician relationship.” Id. 

Discussion

Good Shepherd does not argue that this 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.” Rather, it argues that this claim is a “safety” claim or,

alternatively, a claim based on “professional or administrative services directly related to health 

care.” 

As to the latter argument, there is no dispute in the development of the law that “directly 

related to health care” modifies “professional or administrative services.” See Williams, 371 

S.W.3d at 184. As we explained earlier, these types of claims must be directly related to 

treatment performed or furnished, or that should have been performed or furnished, by a health 

care provider for, to, or on behalf of a patient during the patient‟s medical care, treatment, or 

confinement. See id. at 181; Lowry v. Tarbox, No. 04-11-00394-CV, 2011 WL 5080306, at *2 

(Tex. App.—San Antonio Oct. 26, 2011, pet. denied) (mem. op., not designated for publication) 

(holding claim relating to contractual and business relationships between healthcare providers 

was not HCLC for professional or administrative services because claim did not directly relate to 

treatment that was or should have been furnished for, to, or on behalf of a patient). Based on the 

court‟s reasoning in Williams, since administrative or professional services claims must be 

directly related to “health care,” we conclude that the “health care” definition likewise limits the 

application of administrative or professional services claims as HCLCs to patients. See id.
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It is undisputed that Ronald Masten was not a patient. Good Shepherd nevertheless 

argues that Harper and Tidwell provided professional or administrative services directly related 

to health care when they performed their EMT duties on a patient while using the White Oak 

ambulance. However, even if that is true, Harper and Tidwell had ceased providing those 

services when they returned the ambulance to the White Oak station. Consequently, this claim 

does not relate to treatment that should have been performed on that patient during his care, 

treatment, or confinement. Therefore, the Mastens‟ claim is not properly characterized as an 

HCLC based on professional or administrative services directly related to health care.

We likewise conclude, contrary to Good Shepherd‟s contention, that the claim is not 

properly characterized as a safety claim, and therefore is not an HCLC. In a safety claim, the 

claimant need not necessarily be a patient. Williams, 371 S.W.3d at 174. Consequently, in this 

type of claim, we focus on the gravamen of the claim or claims against the health care provider, 

not the status of the claimant. See id. at 178. As we stated previously, the safety component of 

an HCLC need not be directly related to the provision of health care. Williams, 371 S.W.3d at 

186; Twilley, 422 S.W.3d at 785. But the TMLA does not extend to a claim that is wholly and 

conclusively inconsistent with and separable from the rendition of “medical care, or health care, 

or safety or professional or administrative services directly related to health care” even though 

the conduct occurred in a health care context. See Loaisiga, 379 S.W.3d at 257. In some 

instances, the only possible relationship between the conduct underlying a claim and the 

rendition of medical services or healthcare will be the healthcare setting (i.e., the physical 

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.

In Reddic, we recognized that a hospital has duties to keep the floor around the front desk 

free of hazards and to take reasonable steps to prevent patient falls. E. Tex. Med. Ctr. Reg’l 

Health Care Sys. v. Reddic, 426 S.W.3d 343, 348 (Tex. App.—Tyler 2014, pet. filed). 

Therefore, we held that a slip and fall claim occurring in that area, even by a nonpatient, is an 

HCLC under the safety prong, because the care of the floor around an area frequented by 

numerous patients throughout the day has an indirect relationship to the provision of health care. 

Id.

The facts of this case are distinguishable from those in Reddic and are more like the facts 

in Twilley. There, the hospital‟s director of plant operations sued the hospital for negligence 
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after he fell from a ladder attached to the hospital building and later tripped and fell over a 

mound of hardened cement on the hospital‟s premises. Twilley, 422 S.W.3d at 783. The 

Texarkana court of appeals held that while a safety claim need not be directly related to health 

care pursuant to Williams, there must be some indirect link between an employee‟s safety claim 

and the provision of health care in order for the claim to fall under the TMLA. See id. at 785. 

Because the employee was injured while performing his duties that were “completely 

untethered” from health care, the Texarkana court concluded that his claim was not an HCLC. 

See id. at 785.

Here, Ronald was injured when an employee failed to shut off the generator and closed 

the garage door at the station after concluding her EMT duties. He was injured while he slept at 

the station, a place where no health care services are provided. The purpose of the relevant 

safety standards is to protect persons from exposure to carbon monoxide in places with low or no 

ventilation, such as the enclosed garage adjacent to the living quarters at the station. Those 

safety standards are unrelated to the duties of Good Shepherd and its employees in providing 

health care. Thus, the conduct forming the basis of the claim is conclusively inconsistent with 

and separable from the rendition of “medical care, or health care, or safety or professional or 

administrative services directly related to health care.” See Loaisiga, 379 S.W.3d at 257. The 

only relationship between the conduct underlying the claim and the rendition of medical services 

or healthcare is the defendant‟s status as a health care provider. Id. at 256. We conclude that the 

alleged breach of safety standards is not even indirectly related to health care. See Twilley, 422 

S.W.3d at 785. 

Good Shepherd contends, however, that this claim is an HCLC because statutory and 

administrative provisions regulate the station‟s minimum staffing requirement, Good Shepherd‟s 

training programs in the use of ambulance equipment such as onboard generators, and its 

maintenance of the generator. One of our sister courts recently addressed this issue and stated as 

follows:

We find no authority indicating that we must resort to administrative regulations in determining 

whether the gravamen of the plaintiff‟s claim is a safety claim. Further, the plain text of the 

statute does not make reference to hospital licensing regulations as a component of safety claims. 

As such, Twilley’s ultimate holding is instructive and properly frames the inquiry. The question 

here is not whether the licensing board or some other governmental body has regulated that 

particular aspect of a hospital‟s construction or operation. The question is whether the plaintiff 

alleged that the health care provider defendant breached safety standards indirectly related to 

health care.
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E. El Paso Physicians Med. Ctr., L.L.C. v. Vargas, No. 08-13-00358-CV, 2014 WL 5794622, at 

*6 (Tex. App.—El Paso Nov. 7, 2014, no pet. h.) (op., not yet released for publication) (internal 

citation omitted). We agree with the court‟s reasoning in Vargas. And we have already 

explained that Good Shepherd‟s alleged breach of safety standards forming the basis of this 

claim is not indirectly related to health care. Therefore, we hold that the Mastens‟ claim is not an 

HCLC, and the trial court did not abuse its discretion in denying its motion to dismiss.

Good Shepherd‟s sole issue is overruled.2

DISPOSITION

Having overruled Good Shepherd‟s sole issue, we affirm the order of the trial court 

denying its motion to dismiss.

BRIAN HOYLE

Justice

Opinion delivered December 3, 2014.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

 

2 The Mastens make several counterarguments to Good Shepherd‟s contention that they failed to timely 

serve an expert report. Since we have overruled Good Shepherd‟s sole issue, we need not address these arguments. 

TEX. R. APP. P. 47.1.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

DECEMBER 3, 2014

NO. 12-13-00005-CV

THE GOOD SHEPHERD HOSPITAL, INC.,

Appellant

V.

RONALD MASTEN, ET AL,

Appellee

Appeal from the 188th District Court 

of Gregg County, Texas (Tr.Ct.No. 2012-876-A)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the

trial court‟s order denying Appellant‟s motion to dismiss.

It is therefore ORDERED, ADJUDGED and DECREED that the trial 

court‟s order denying Appellant‟s motion to dismiss below be in all things affirmed, and that all 

costs of this appeal are hereby adjudged against the Appellant, THE GOOD SHEPHERD 

HOSPITAL, INC., for which execution may issue, and that this decision be certified to the 

court below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.