In The 

Court of Appeals 

Seventh District of Texas at Amarillo 

 

No. 07-22-00020-CV 

 

NORTHWEST TEXAS HEALTHCARE SYSTEM A/K/A NORTHWEST TEXAS 

HOSPITAL AND UNIVERSAL HEALTH SERVICES, INC., APPELLANTS 

V. 

JANET MARIE ERWIN, APPELLEE 

On Appeal from the 320th District Court 

 Potter County, Texas 

Trial Court No. 110,200-D-CV, Honorable Pamela C. Sirmon, Presiding 

July 25, 2022 

MEMORANDUM OPINION 

Before QUINN, C.J., and PARKER and DOSS, JJ. 

Northwest Texas Healthcare System a/k/a Northwest Texas Hospital and 

Universal Health Services, Inc.1(“NWTHS” or Hospital) appeals from an order denying its 

motion to dismiss under the Texas Medical Liability Act (“TMLA”). Janet Marie Erwin, a 

patient in the Hospital’s emergency room, filed suit against NWTHS after she was 

1 According to NWTHS’s Motion to Dismiss, Appellee, Janet Marie Erwin, agreed not to pursue her 

claims against Universal Health Services, Inc. 
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assaulted by another patient. Contending her claims were health care liability claims 

under chapter 74 of the Texas Civil Practice and Remedies Code, NWTHS filed a motion 

to dismiss because she failed to serve an expert report as required by statute. The trial 

court denied NWTHS’s motion. The Hospital appealed, urging the same contention. We 

reverse. 

Background

On the morning of February 14, 2019, Erwin arrived by ambulance at the 

emergency room at NWTHS for treatment after she experienced trouble breathing. 

Hospital staff admitted her into a room and conducted their initial triage of her. While she 

awaited assignment to a less temporary hospital room, another patient, Thaddaeus 

McLaughlin, entered Erwin’s room. Ostensibly under the influence of methamphetamine, 

he acted like he had a knife, grabbed Erwin around the neck, choked her, and yelled, “I 

have a hostage” and “I’m going to cut her throat.” A third patient then entered the room 

and “body slam[med]” McLaughlin to the ground. Police responded and removed 

McLaughlin. Nurses then “scrambled” to get Erwin out of the room and place her 

elsewhere. 

Erwin filed criminal charges against McLaughlin. She also filed suit against 

NWTHS, alleging negligence. She asserted that McLaughlin appeared to have been 

under the influence of methamphetamine the day he confronted her and that this was 

known or should have been known by the hospital staff. Consequently, the Hospital both 

had and breached a duty to provide a safe room for her while receiving medical care and 

treatment. NWTHS joined issue and unsuccessfully moved to dismiss, as mentioned 

earlier. 
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Authority

The central inquiry is whether Erwin’s claim is a health care liability claim under 

chapter 74 of the Texas Civil Practice and Remedies Code. Because this case requires 

us to interpret the statute to determine whether Erwin asserts such a claim, our review is 

de novo. Loaisiga v. Cerda, 379 S.W.3d 248, 254–55 (Tex. 2012).

Next, section 74.351 of the TMLA requires a plaintiff, in cases involving a health 

care liability claim, to serve the defendant with one or more expert reports, on or before 

the 120th day after the defendant’s original answer is filed. TEX. CIV. PRAC. & REM. CODE 

ANN. § 74.351(a). If the plaintiff fails to do so, statute mandates that the cause be 

dismissed with prejudice. Id. § 74.351(b)(2). The requirement applies only to a health 

care liability claim, and the latter consists of “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, or safety or professional or 

administrative services directly related to health care, which proximately results in injury

to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort 

or contract.” Id. § 74.001(a)(13). From this definition, the Supreme Court distilled three 

components for such a claim. They are that: (1) a physician or health care provider be a 

defendant; (2) the claim concerns 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 proximately caused the injury to the claimant. Psychiatric Sols., Inc. v. Palit, 

414 S.W.3d 724, 725–26 (Tex. 2013) (quoting Tex. W. Oaks Hosp., LP v. Williams, 371 

S.W.3d 171 (Tex. 2012)). Only the second is at issue here. 
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Erwin characterizes her claim as one for “premises liability.” That is, she likens it 

to a landowner neglecting to provide adequate security against a third party’s criminal 

conduct per Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998). 

Though criminal conduct may be involved here, her characterization of the action is 

inaccurate. Analysis reveals it to be a health care liability claim. 

We start with her pleadings. In them, she averred that: (1) McLaughlin either was 

on methamphetamine, coming off the drug, or experiencing withdrawal symptoms; (2) 

hospital staff knew or should have known this; (3) McLaughlin assaulted and battered 

Erwin after undergoing observation in the ER and while awaiting another room 

assignment; (4) the Hospital and its staff “should have provided a safe room for [Erwin] 

and her daughter”; and (5) “Mr. McLaughlin was under the care and control of the hospital 

and staff.” If nothing else, these accusations implicate the Hospital’s compliance with 

safety standards viz-a-viz patients over whom the Hospital assumed the provision of 

medical attention. Furthermore, a claim based on a departure from such standards 

constitutes a health care liability claim when a “substantive nexus” exists between those 

standards and the provision of health care. Ross v. St. Luke’s Episcopal Hosp., 462 

S.W.3d 496, 499 (Tex. 2015).2 That Erwin had appeared at the hospital for medical 

attention, had been admitted by the hospital for medical treatment (i.e., was an actual 

patient), was inside an ER room awaiting other accommodations when the alleged assault 

2 Factors to consider when assessing the existence of the requisite nexus include whether (1) the 

alleged negligence occurred in the course of the defendant’s performing tasks with the purpose of protecting 

patients from harm; (2) the injuries occurred in a place where patients might be during the time they were 

receiving care, so that the obligation of the provider to protect persons who require special, medical care 

was implicated; (3) the claimant was in the process of seeking or receiving health care when the injury 

occurred; (4) the claim is based on safety standards arising from professional duties owed by the health 

care provider; and (5) the alleged negligence occurred while the defendant was taking action or failing to 

take action necessary to comply with safety-related requirements set for health care providers by 

governmental or accrediting agencies. Ross, 462 S.W.3d at 505. 
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transpired, and was assaulted by another patient apparently there to receive medical 

treatment establish the requisite nexus between the safety protocols and provision of 

health care. 

Indeed, the circumstances at bar differ in no meaningful respect from those in 

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005). There, a patient in 

a nursing home sexually assaulted another patient. Id. at 845. The Texas Supreme Court 

viewed the victim’s ensuing suit and causes of action as departures from accepted 

standards of professional health care and safety. Id. It reasoned that the supervision of 

the victim and assailant were inseparable from the health care and nursing services 

provided to the victim. Id. at 849. Given that, the claims fell within the scope of the TMLA. 

Id. at 845. As the court observed, “[h]ealth care staff make judgments about the care, 

treatment, and protection of individual patients and the patient populations in their 

facilities based on the mental and physical care the patients require.” Id. at 850. “The 

health care standard applies the ordinary care of trained and experienced medical 

professionals to the treatment of patients entrusted to them.” Id.

Emergencies come in many guises. Those appearing in a hospital’s emergency 

room at any particular time may suffer from a myriad of differing ailments. And, those 

ailments may be physical or mental. Moreover, one does not engage in speculation by 

recognizing that this mix of patients may appear at an emergency room’s threshold at the 

same time. It is “an emergency room” after all, and emergencies do not take numbers to 

await occurrence and attention. Thus, reason compels that professional staff present at 

the facility must exercise their independent medical judgment and training when 
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determining how and when to treat the differing patients within its confines. Again, the 

Supreme Court acknowledged as much in Diversicare. 

Here, Erwin entrusted herself to the medical care and protection of the Hospital 

and its staff, just as did the victim in Diversicare. She had submitted herself to their 

judgments about care, treatment, and protection in relationship to other patients and the 

mental and physical care required by her and other patients. As in Diversicare, the 

Hospital’s supervision of her and her assailant were inseparable from the purpose 

underlying their presence in the hospital, that purpose being the provision of health care 

services. So, what was said and the conclusion reached in Diversicare control here. 

Nor can we ignore the similarity between the circumstances here and those in 

Wilson N. Jones Mem’l Hosp. v. Ammons, 266 S.W.3d 51 (Tex. App.—Dallas 2008, pet. 

denied). Like Erwin, Ammons appeared in the emergency room for medical treatment 

and suffered an attack by a mentally troubled patient. Id. at 53–54. The court observed 

that “the decision as to how and where to hold [the psychiatric patient] until he could be 

transferred for further treatment was a ‘health care’ decision.” Id. at 64. “Because the 

critical acts alleged by Ammons focus on alleged failures with respect to that health care 

decision, proving any of Ammons’s claims would require establishment of the standards 

of care regarding the supervision and restraint of psychiatric patients.” Id. And, 

establishing those standards would require expert testimony. Id. These circumstances 

led the court to conclude that “Ammons’s negligence claims [were] ‘so inextricably 

interwoven with the rendition of health care services’ that such claims constitute health 

care liability claims.” Id. The same can be said of Erwin’s assailant. While awaiting 

treatment in an emergency room, he experienced a psychotic episode caused by 
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methamphetamine or drug withdrawal, or so she suggests. How a medical facility and its 

personnel deal with such a patient would reasonably implicate standards of care 

regarding the supervision and restraint of them. Establishing those standards and 

illustrating compliance or noncompliance would also entail the proffer of expert testimony. 

This means that Erwin’s claim of negligence, like Ammons’s, also is inextricably 

interwoven with the rendition of health care services. So, Ammons too supports our 

conclusion that Erwin’s complaint fell under the umbrella of a health care liability claim. 

As for Erwin’s reference to Belmont Vill. Hunters Creek TRS, LLC v. Marshall, 634 

S.W.3d 115 (Tex. App.—Houston [1st Dist.] 2020, pet. denied), we find that case readily 

distinguishable. It involved the rape by an employee of a resident in an assisted living 

facility. Id. at 119. Yet, the facility contracted to forgo the provision of health care services 

to the resident. Id. at 126–27. Simply put, the facility provided the victim a place to live, 

not a place to receive medical or health care treatment. Here, though, Erwin suffered her 

assault while at a hospital to receive medical attention and after it admitted her for such 

treatment. A liberal reading of her complaint also indicates that her attacker was present 

at the facility to receive medical treatment for a condition triggering a mental episode and 

resulting in the attack. So, unlike the situation in Belmont, medical treatment underlies 

the reason for Erwin and her attacker encountering each other. 

In short, the dispute between the parties concerns the appropriate standard of care 

owed to a patient, the services and supervision necessary to satisfy the standard, and the 

standard’s breach. The Hospital’s training and staffing policies coupled with protocols 

implicating the supervision and protection of its patients from other patients serve as 

integral components of the health care services Erwin sought. Thus, we conclude that 
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Erwin’s cause of action fell under the umbrella of a health care liability claim. Accordingly, 

she was required to comply with the expert report requirements in section 74.351(a) and 

was subject to the dismissal requirement in section 74.351(b). 

The trial court erred in denying the statutory mandate to dismiss. We sustain 

NWTHS’s issue, reverse the trial court’s order and render judgment that Erwin take 

nothing from the Hospital and staff she sued. We also remand the cause for further 

proceedings regarding the award of costs and attorney’s fees. See TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351(b)(1) (stating that if “an expert report has not been served within 

the period specified by Subsection (a), the court, on the motion of the affected . . . health 

care provider, shall, subject to Subsection (c), enter an order that . . . awards to the 

affected . . . health care provider reasonable attorney’s fees and costs of court”).

Brian Quinn

Chief Justice