Opinion issued August 28 , 2014

In The 

## Court of Appeals For The 

## First District of Texas

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NO. 01
- 13
- 00335
- CV

——————————— EMERLEAN WILLIAMS , Appellant V. RIVERSIDE GENERAL HO SPITAL , INC . , Appellee
On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2012
- 32441



### MEMORANDUM OPINION
Emerlean Williams appeals the trial court’s grant of Riverside General Hospital , Inc. ’s motion to dismiss her suit pursuant to Chapter 74 of the Texas Medical Liability Act (TMLA). After c oncluding that Williams had failed to file2 an expert report as required by section 74.351(a) of the TMLA, 1 t he trial court granted the motion, dismissed the suit, and awarded Riverside its attorney s ’ fees. In three issues, Williams argues that the trial c ourt erred by dismiss ing her suit because her claims, which were neither directly nor indirectly related to health

care, were not health care liability claims ( HCLCs ) , and that , even if her claims could be classified as HCLCs pursuant to the Supreme Court’ s opinion in Texas West Oaks Hospital, L.P. v. Williams , 371 S.W.3d 171 (Tex. 2012) , that opinion should only be applied prospectively. We reverse and remand for further proceedings. Background On June 4, 2012, 2 Willia ms filed suit against Riverside, a co m munity

- based,

non - profit, acute

- care facility that provides inpatient and outpatient hospital care , where she was employed as a nursing assistant. Williams alleg ed that she su ffered personal injuries from two separate incidents at Riverside while at work

. Specifically, that she “sustained serious and permanent injuries when she tripped

1 In 2013, the legislature amended section 74.351 of the TMLA

. See Act of May 26, 2013, 83rd Leg. R.S., ch. 870, § 2. The new provision applie s to all suits filed after September 1, 2013. Because Williams filed her original petition prior to September 1, 2013, the effective date the amendments, we will apply the former version of section 74.351 to her claims

. See Act of May 18, 2005, 79th Leg. , R.S., ch. 635, § 1, 2005 T EX
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. § 74.351 (West Supp. 2014)). 2 Williams originally filed suit on October 7, 2010 (trial court cause n umber 2010

- 66405) . That case was non - suited and re

- filed as the instant case pursuant to an agreement between the parties.3 over an extension cord left out by another hospital employee” on March 13, 2009 , and that she “ slipped and fell on a substance o n the floor after performing a ‘room check’ ” on September 10, 2010. Williams later stated that the substance on the floor came from “a leaky piece of lab equipment. ” 3 In her petition, Williams alleged that her injuries resulted from her employer ’s breach of certain safety standards by failing to provide her with : (1) the proper equi pment or training for the job; (2) adequate assistance or supervision in performing the tasks she was assigned to perform; and (3) a safe place to work. On March 8, 2013, Riverside filed a motion to d ismiss Williams’ suit pursuant to Chapter 74 of the TMLA

. See T EX
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. § 74.351(a). Relying upon the Supreme Court’s June 2012 opinion in Texas West Oaks and its discussion of “safety” HCLCs , Riverside argued that Williams’ claims were HCLCs and that , as such, she was required to file a n expert report. Her failure to do so, Riverside argued, mandated dismissal of her suit and an award of attorney ’ s fees. Relying upon both Texas West Oaks and Ross v. St. Luke’ s Episcopal Hospital , No. 14

– 12

– 00885

– CV, 2013 WL 1136613, at *1

– 2 (Tex. App.

—

3 Williams informed this Court at oral argument of her prior mistaken understanding that the source of the substance was from leaking laboratory equipment. She had sin ce learned through discovery that the leak was actually from air conditioning equipment in the hospital’s ceiling. She acknowledged, however, that this new information was not included in the appellate record. See Carlisle v. Philip Morris, Inc. , 805 S.W .2d 498, 501 (Tex. App.

— Austin 1991, writ denied) (“It is elementary that . . . an appellate court may not consider matters outside the appellate record.”).4 Houston [14th Dist.] Mar. 19, 2013, pet. granted ) (mem. op.) , a recent appellate decision broadly applying Texas West Oaks , the t ri al c ourt determined th at Williams’ suit to be a HCLC, dismissed the case, and awarde d attorney ’ s fees to Riverside

. Discussion Williams argues that (1) this c ourt should construe the Supreme Court’s discussion of “safety” in Texas West Oaks as judicial dicta, and apply the plain meaning of the words in the TMLA so that the term “safety” is modified by “directly related to health care,” and hold that her safety claim is not a HCLC because it is not “directly related to health care,” (2) alternatively, if we decide to follow the Supreme Court’s interpretation of “safety” as set forth in Te xas West Oaks , then we should follow some of our sister courts and hold that, although the alleged breach in safety need not be directly related to the provision of health care, there must still be some indirect , reasonable relationship between the two, an d because her claim is not indirectly related to health care, it is not a HCLC , and (3) in the further alternative , if we subscribe to the Texas West Oaks ’ interpretation, that new rule would only apply prospectively, and, thus, because she filed suit
p rior to the issuance of the Texas West Oaks opinion , her safety claims against Riverside should not be treated as HCLCs.5 A. Standard of Review Generally, w e review a trial court’ s decision on a motion to dismiss a HCLC for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P. , 189 S.W.3d 855, 858 (Tex. App.

— Houston [1st Dist.] 2006, no pet.). However, because this appeal poses a question of statutory construction (i.e. , whether Williams’ claims are HCLCs), we apply a de novo standard of review

. Loaisiga v. Cerda , 379 S.W.3d 248, 254

– 55 (Tex. 2012); Tex. W. Oaks , 371 S.W .3d at 177. When determining whether a claim is a HCLC, we consider the entire record, including the pleadings, motions and responses, and relevant evidence properly admitted. Loaisiga , 379 S.W.3d at 258

. The TMLA defines HCLC s as: 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 so unds in tort or contract. T EX
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. § 74.001(a)(13) (West Supp. 2014) (emphasis added). A claimant asserting a HCLC must serve an expert report on the defend ant within a specified deadline and u ntil that time, discovery is limited. Id. § 74.351(a),(c), & (s) . If the claimant fails to serve an expert report, the trial court6 must, on the defendant’s motion, dismiss the claims with prejudice and award the defendant reasonable atto rney ’ s fees and costs. Id. § 74.351(b). It is fairly w ell established that, except for “medical care” and “health care” claims, HCLCs can be filed by both patients and non

- patients (e.g., visitors and employees of health care providers). See Tex. W. Oaks , 371 S.W.3d at 17 8

– 7 9; see also T EX
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. § 74.001(a)(2) (West Supp. 2014) (defining “claimant” as “a person . . . seeking or who has sought recovery of damages in a health care liability claim.”). In such cases, it is not the status of the person bringing the claim, but rather the nat ure of the underlying claim, that determines whether the claim is a HCLC . See Tex. W. Oaks , 317 S.W.3d at 178 (“With the exception of medical care and health care claims, our focus in determining whether claims come under the TMLA is not the status of the claimant, but the gravamen of the claim or claims against the health care provider.”)

. The Supreme Court instructs that when “ seeking to distinguish ordinary negligence claims from HCLCs,” we must consider the “nature of the acts or omissions causing cla imants’ injuries and whether the events are within the ambit of the legislated scope of the TMLA.” Id. at 176.
B. Applicable Law In Texas West Oaks , a mental health professional sued his employer, a private psychiatric hospital , for injuries s ustained during a physical altercation with7 the psychiatric patient he was supervising

. Rel ying in part on its decision in Diversicare General Partnership, Inc. v. Rubio , 185 S.W.3d 842, 851 (Tex. 2005) , the Texas West Oaks c ourt initially held that the employee’s claim s were HCLCs because he alleged departures from acc epted standards of “health care,” (i.e., that his employer departed from accepted standards of care with regard to training and staffing policies, supervision, and patient protection, which are all integra l components of a health care facility’s rendition of health care services)

. See Tex. W. Oaks , 371 S.W.3d at 180 ; T EX
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. § 74.001(a)(13) (defining HCLC as “ a cause of action against a health care provider or physician for . . . [ a] claimed departure from accepted standards of . . . health care”); see also
Diversicare , 185 S.W.3d at 848, 850 ( holding that training and staffing policies, supervision, and patient protection are integral components of health care facility’s rendition of health care services). The Texas West Oaks c ourt further observed that expert testimony is a factor in assessing the nature of a claim against a health care provider and that, because such testimony was necessary to prove or refute the merits of the em ployee’s claims in that case , such claims fall unde r the ambit of the
TMLA. Tex. W. Oaks , 371 S.W.3d at 1 82 (“[W]e now hold that if expert medical or health care testimony is necessary to prove or refute the merits of the claim against a physician or health care provider, the claim is a health care liability claim.”). Specifically, the C ourt noted that the employee’s claims would require8 expert testimony o n issues that are “integral to a patient’s care and confinement,” including the proper training, supervision, and protocols necessary “to pr event, control, and defuse aggressive behavior and altercations in a mental hospital between psychiatric patients and employed professional counselors who treat and supervise them .” Id. at 182

. Even thou gh it was not necessary to the resolution of the case because the Court had already deter mined that the employee’s claims alleged departures from accepted health care standards , the Supreme C ourt addressed whether the employee’s claims were also HCLCs because he alleged departures from accepted safety standards. See Tex. W. Oaks , 371 S.W.3d at 183

– 86

. Abrogating precedent from se ven courts o f appeals, including this c ourt’ s decision in Christus Health v. Beal , 4 the Supreme Court determined that the phrase “directly related to health care” in section 74.001(a)(13) does not modify the phrase “ claimed departure [ s ] from accepted standards of

. . . safety .” See Tex. W. Oak s , at 183

– 86

. Thus, the

4 See St. David’s Healthcare P’ship, L.P. v. Esparza , 315 S.W.3d 601, 604 (Tex. App.

— Austin 2010) , rev’d on other grounds , 348 S.W.3d 904 (Tex. 2011) (“directly related to health care” modifies “safety”); Appell v. Muguerza , 329 S.W.3d 104, 115 (Tex. App.

— Houston [14th Dist.] 2010, pet. denied ) (same); Dual D Healthcare Operations, Inc. v. Kenyon , 291 S.W.3d 486, 489

– 90 (Tex. App.

— Dallas 2009, no pet.) (same); Omaha Healthcare Ctr., L.L.C. v. Johnson , 246 S.W.3d 278, 284 (Tex. App.

— Texarkana 2008) , rev’d on other grounds , 344 S.W.3d 392 (Tex. 2011) (same); Harris Methodist Ft. Worth v. Ollie , 270 S.W.3d 720, 723 (Tex. App.

— Fort Worth 2008) , rev’d on other grounds , 342 S.W.3d 525 (Tex. 2011) (same); Christus Health v. Beal , 240 S.W.3d 282, 289 (Tex. App.

— Houston [1st Dist.] 2007, no pet.) (same); Valley Baptist Med. Ctr. v. Stradley , 210 S.W .3d 770, 7 75 (Tex. App.

— Corpus Christi 2006, pet. denied) (same).9 high c ourt held, a claim based upon alleged departures from accepted safety standards need not be directly related to health care to be a HCLC

. See id

. Two months later , the Supreme Court considered whether a female patient’s clai m that her doctor assaulted her by groping her breasts while examining her for sinus and flu symptoms was a HCLC. See Loaisiga , 379 S.W.3d at 252

. After quoting the statute’s broad definition of “health care,” the Loaisiga court held that “[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 implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement. ” Id. at 256; T EX
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. § 74.001(a)(10) (West Supp. 2014) (defining “health care” to include “ any act . . . by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement” )

. That presumption , however, is rebuttable because , as the court noted, sometimes 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 physica l location of the conduct in a healt h care facility), the defendant’ s status as a doctor or health care provider, or both. ” Loaisiga , 379 S.W.3d at 256. The Loaisiga court then held that “ a claim against a medical or health care provider for assault is not an HCLC if the record conclusively shows that (1) there10 is no complaint about any act of the provider related to medical or health care services other than the alleged offensive contact, (2) the alleged offensive contact was not pursuant to actual or i mplied consent by the plaintiff, and (3) the only possible relationship between the alleged offensive contact and the rendition of medical services or healthcare was the setting in which the act took place .” Id. at 257. The court further concluded that t he record in that case did not contain sufficient information to conclusively show that the defendant’s conduct “ could not have been part of the examination he was performing ” and so it remanded the case to the trial court for further proceedings. The Loa isiga court did not cite or refer to the Texas West Oaks decision in its opinion. In March 2013 t he Texarkana court became the first appellate court to address th e question of the nexus between safety

- related complaint s and health

care in light of the Su preme Court’s decision in Texas West Oaks

. In Good Shepherd Med ical Center

–

Linden, Inc. v. Twilley , the hospital’s director of plant operations sued the hospital for negligence after the he fell from a ladder attached to the hospital building and later tr ipped and fell over a mound of hardened cement on the hospital’s premises. 422 S.W.3d 782 , 783 (Tex. App.

— Texarkana 2013, pet. denied) . The trial court denied the hospital’s motion to dismiss the employee’s claim s for failure to supply an expert report u nder the TMLA

. Id. at 784. On appeal, the Texarkana court affirmed the trial court’s ruling and held that , while a11 safety claim need not be directly related to health care pursuant to Texas West Oaks , 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 Twilley , 422 S.W.3d at 785. The Twilley court enumerat ed several reasons supporting this position

. Id. at 785

– 89. In particular, that the safety claims in Texas West Oa ks “were indirectly related to healthcare” because those claims implicated safety standards for health care providers working with potentially violent schizophrenic patients in a psychiatric hospital , whereas “[t]he gravamen of Twilley’s cl aims

— for OSHA violations

— [was] unrelated to the provision of health care to the patient population or to anyone else.” Id. at 787. Thus, unlike in Twilley , the claims in Texas West Oaks “ were more closely connected to health care than simply arising in a health
care context

. ” Id. at 786. The Twilley court further not ed the Supre me C ourt ’s acknowledge ment in Loaisiga that a claim against a medical or health care provider for assault could fall outside of the TMLA when it was unrelated to health care , and reasoned that common sense dictated that the same could also be true of safety c laims that are unrelated to the prov ision of health care. Twilley , 422 S.W.3 at 788

– 89. Thus, the Twilley court interpreted Loaisiga to suggest a limited application of Texas West Oaks’s discussion of departures from accepted safety standards.12 Finally, the T wille y court observed that requiring an expert report in that

case woul d be an exercise in futi lity

— where is to be found a qualified expert under the statute who was also competent to opine on the relevant accepted standards of

care

— OSHA ladder construction and installation and walking surface standards ? Id. at 789 . The cou rt aptly noted that a medical report in that case would not be able to shed any light on whether the ladder violated OSHA standards or the concrete mound constituted an unreasonable risk of harm. Id. at 789

. Later that same month, the Fourteenth Court o f Appeals addressed this issue
i n Ross and reached a decidedly differ ent opinion. In that case, the Ross court applied the judicial dicta in Texas West Oaks regarding claims based upon alleged departures from accepted safety standards, holding that a slip

- and

- fall claim by a hospital visitor against the hospital was a HCLC

. See Ross v. St. Luke’s Episcopal Hosp

. , No. 14

– 12

– 00885

– CV, 2013 WL 1136613, at *1

– 2 (Tex. App.

— Houston [14th Dist.] Mar. 19, 2013, pet. granted ) (mem. op.). The court held that, under Texas West Oaks , a claim based upon an alleged departure from accepted standards of safety, broadly defined, may constitute a HCLC , even if no patient

- physician relationship is involved and the allegedly negligent conduct does not relate to13 health care. See id. The Fourteenth Court of Appeals reiterated its position in several subsequent decisions. 5
Our siste r c ourt in Corpus Christi, too, considered th e issue in Doctors Hosp. at Renaissance, Lt d. v. Mejia. No. 13

– 12

– 00602

– CV, 2013 WL 4859592, at *1 (Tex. App.

— Corpus Christi Aug. 1, 2013, pet. filed) (mem. op.). T he court held that a hospital visitor’s claim for injuries from a slip and f a ll on a freshly waxed walkway that a hospital employee directed her to use was not a HCLC

. Id. at *3. The Mejia court wrote that the Texas West Oaks opinion “stopped short of concluding that all premises liability claims involving a healthcare defendant are healthcare liability claims” and “[i]nstead, the court recognized a new type of healthcare liability claim

— that is, one involving safety which is indirectly related to health care. Therefore, we apply [Texas] West Oaks narrowly to govern cases that in volve safety claims that are indirectly related to health care.” Mejia , 2013

5 See CHCA W. Hou s . , L.P. v. Shelley , --- S.W.3d

--- , 2014 WL 3429478, at * 1

– 2 (Tex. App.

— Houston [14th Dist.] Jul. 15, 2014, pet. filed) (holding secretary’s negligence action against employ er/hospital for injuries she received when she slipped and fell at work was HCLC) ; 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 ) (mem. op.) (holding hospital employee’s negligence action against employ er/hospital for injuries received when attempting to maneuver patient was HCLC); Tillman v. Mem’l Hermann Hosp. Sys. , No. 14

– 12

– 01169

– CV,

--- S.W.3d

--- , 2013 WL 5470064, at *3 (Tex. App.

— Houston [14th Dist.] Oct. 1, 2013, pet. denied) (holding negligence action by hospital employee who injured her back while x

- raying patient was HCLC); Mem ’l Hermann Hosp. Sys

. v. Galvan , 434 S.W.3d 176, 186 (Tex. App.

— Houston [14th Dist.] Jan. 28, 2014, pet. filed) (holding hospital visitor slipping on water on floor of ho spital hallway was HCLC).14 WL 4859592, at *2. Relying upon its analysis of Texas West Oaks , the Mejia court held that the hospital visitor’s g arden

- variety slip

- and

- fall claim was not a HCLC because there was no indirect relationship between the hospital’s conduct and health care

. Later that same month t he Supreme Court revisited the issue of safety claims and health care in a case with similar facts to Texas West Oaks

. Psychiatric Solutions, Inc. v. Palit , 4 14 S.W.3d 724, 724

– 25 (Tex. 2013)

. In Psychiatric Solutions , a psychiatric nurse was inj ured while physically restraining a psychiatric patient during a behavioral emergency. Id. at 725. The nurse alleged that his injuries were the “ result of imprope r security of a dangerous psychiatric patient” and that his employer, a health care provider, “failed to provide a safe working environment and failed to make sufficient precautions for [his] safety .” Id. at 726. The Supreme Court noted that “ [a]s in [Te xas] West Oaks , [the plaintiff’s] alleg ations [fell] under both the safety and health care components of an HCLC.” Id. Relying upon Texas West Oaks , the Supreme C ourt held that , because expert health care testimony was required to either support or refute the nurse’s allegations that his heal th

- care - provider

- employer departed from the accepted stand ards of safety and health care, his claims were HCLCs. Psychiatric Solutions , 414 S.W.3d at 727

.15 T he Beaumont, Dallas, Fort Worth, and San Antonio courts of appeals have also addressed this issue, and relied on Mejia or Twilley and held that safety claims by non

- patients were not HCLCs. See Christus St . Elizabeth Hosp. v. Guillory , 415 S.W.3d 900 , 902

– 03 (Tex. App.

— Beaumont 2013, pet. filed) (holding that negligence claim by hospital visitor for injuries allegedly sustained when she slipped and fell on water in ho spital hallway near nurses’ station was not HCLC because there was no nexus between plaintiff’s injury and “the hospital’s duties of providing healthcare” and noting that hospital had “failed to direct the trial court or [appellate court] to any health car e standards governing a hospital’s maintenance or lighting of its halls or buildings”); Baylor Univ. M ed. C tr. v. Lawton , --- S.W.3d

--- , No. 05

– 13

– 00188

– CV, 2013 WL 6163859, at *1

– 4 (Tex. App.

— Dallas Nov. 25, 2013, pet. filed) (following Twilley and holding that nurse’s claim agains t hospital

- employer for workplace injuries sustained when raw sewage back ed

- up into hospital’s showers and sinks was not HCLC because gravamen of her claim was unrelated to provision of health care; as in Twilley , “it would be difficult, if not impossible, to find a qualified expert under the statute who was also competent to opine on the relevant accepted standards of care for plumbing”); Weatherford Tex. Hosp. Co. v. Smart , 423 S.W.3d 462 , 463, 467

– 68 (Tex. App.

— Fort Worth 2014 , pet. filed ) (following Twilley , holding visitor fallin g on puddle of water in hospital was not indirectly related to health care or safety and did not require an expert16 report and therefore was not HCLC); Methodist Healthcare Sys. of San Antonio, Ltd., LLP v. Dewey , 423 S.W.3d 516, 516, 519

– 20 (Tex. App.

— San Antonio 2014, pet. filed ) ( h olding that claim of hospital visitor on crutches who fell when automatic entrance door to hospital closed on him was not HCLC ; stating court agreed “with the Mejia court that the supreme court recognized a new type of healthcare liability claim, one invol ving safety that is indirectly related to health
care” ). The Tyler Court of Appeals, however, followed Ross and held that that a negligence claim by a hospital visitor for injuries she allegedly sustained when she fell on a mat satur ated with water in the hospital’ s lobby was a HCLC. E

. Tex

. Med. C tr. Reg’ l Health Care Sys. v. Reddic , 426 S.W.3d 343 , 345, 348 (Tex. App.

— Tyler 2014 , pet. filed ) ( “We agree with Ross that a fall, even by a visitor, in a hospital lobby meets the TMLA’ s safety prong so that [the plaintiff’s] claims in th is case are properly classified as HCLCs.”) Clearly, this issue is squarely before the Supreme Court. 6
C. Rejection of Texas West Oaks’ Interpretation of “S afety” In her first and second issues, Williams argues that this Court should construe the Supreme Cou rt’s discussion of “safety” in Texas West Oaks as judicial dicta, and apply the plain meaning of the words in the TMLA so that the term

6 Ross v. St. Luke’s Episcopal Hosp

. , No. 14

– 12

– 00885

– CV, 2013 WL 1136613 (Tex. App.

— Houston [14th Dist.] Mar. 19, 2013, pet. granted) (mem. op.) is scheduled to argue before the Texas Supreme Court on November 5, 2014.17 “safety” is modified by “directly related to health care” and, in the alternative, if we decide to follow the Supreme Co urt’s interpretation of “safety” in Texas West Oaks , then we should follow some of our sister courts and hold that, although the alleged breach in safety need not be directly related to health care, there must still be some indirect, reasonable relationshi p between the two. According to Williams, her claim is neither directly nor indirectly related to health care, and therefore, it is not a HCLC in either case.
J udicial dictum is a statement by the supreme court made very deliberately after mature conside ration and for future guidan ce in the conduct of litigation and is “at least persuasive and should be followed unless found to be erroneous .” Edwards v. Kaye , 9 S.W.3d 310, 314 (Tex. App.

— Houston [14th Dist.] 1999, pet. denied) ( quoting Palestine Contract ors, Inc. v. Perkins , 386 S.W.2d 764, 773 (Tex. 1964)). Williams contends that the Supreme Court’s conclusion that the phrase “directly related to health care” does not modify “safety” is erroneous for the reasons set forth in Justice Jennings’ dissenting opinion in CHCA Bayshore , L.P

. v . Ramos , 388 S.W.3d 741, 751 (Tex. App

. — Houston [ 1st Dist .] 2012 , no pet .) (J. Jennings, dissenting). The Fourteenth Court of Appeals has previously held that this portion of the Supreme Court’s opinion in Texas West Oaks is judicial dicta.
See Mem ’l Hermann Hosp. Sys

. v. Galvan , 434 S.W.3d 176, 181

– 82 (Tex. App.

— Houston [14th Dist.] 2014 , pet. filed ) (concluding that Supreme Court’s statements18 in Texas West Oaks regarding claims based upon alleged departures from accepted safety standards are judicial dicta). We agree with Galvan that this portion of the opinion is judicial dicta. Id. However, we decline the offer to essentially disregard the Supreme Court’s direction regarding the interpretation of “safety,” particular ly in light of the fact that the Supreme Court reaffirmed its position in Psychiatric Solutions the following year

. See Psychiatric Solutions , 414 S.W.3d at 726 (holding psychiatric nurse’s claim that he was injured “as a result of improper security of a dangerous psychiatric patient” because his employer, a health care provider, “failed to provide a safe working environment and failed to make sufficient precautions for [his] safety” were claims that employer departed from the accepted standards of safety and health care, as in Texas West Oaks , and that such claims required expert health care testimony to support or refute allegations, and therefore, claims were HCLCs). We further note that another panel of this Court recognized

— albeit in dicta

— that Texas West Oaks held that safety HCLCs need not be “directly related to the provision of healthcare.” See Obstetrical and Gynecological Associates, P.A. v. Hardin , No. 01

– 13

– 00236

– CV, 2013 WL 6047595, at *3 n. 4 (Tex. App.

— Houston [1st Dist.] Nov. 14, 2013, no p et. ) (mem. op.). Having determined that we will follow the Supreme Court’s interpretation of “safety,” we must now decide whether we agree with the Fourteenth and Tyler19 Courts of Appeals and apply Texas West Oaks decision broadly to encompass all safety cl aims that are completely unrelated health care , or whether we agree with the Texarkana, Corpus Christi, Beaumont, Dallas, Fort Worth, and San Antonio Courts of Appeals and apply a narrow interpretation of the decision’s judicial dictum regarding “safety” H CLCs

. Like the majority of our sister courts, we do not interpret Texas West Oaks to mean that all safety claims that occur in a health care setting

— even claims that are otherwise completely untethered from health care

— are HCLCs. Although safety claims do not need to be directly related to health care pursuant to Texas West Oaks , there must, nevertheless, be some indirect , reasonable relationship between claims and the provision of health care for such claims to be HCLCs

. See Mejia , 2013 WL 4859592, at *2 (interpreting Texas West Oaks “ narrowly to govern cases that involve safety claims that are indirectly related to health care”); Twilley , 422 S.W.3d at 788 (interpreting Texas West Oaks narrowly and holding that safety claim must have at least indirect relationship to health care to be considered
HCLC ); see also Dewey , 423 S.W.3d at 519 (holding that safety claim must have at least indirect relationship to health care to be considered HCLC); Smart , 423 S.W.3d at 467

– 68 ( same ); Lawton , --- S.W.3d at

--- , 2013 WL 6163859, at *3 (same) ; Guillory , 415 S.W.3d at 902

– 03 (same). As the Twilley court correctly noted: “[I] f every safety claim against a health care provider were considered a20 health care liability claim, there would be no need to analyze the nature of the acts or omissions whic h caused the alleged injuries.” Twilley , 422 S.W.3d at 7 88 (emphasis in original); see also Tex. W. Oaks , 371 S.W.3d at 176 (directing lower courts to distinguish ordinar y negligence claims from HCLCs by focusing on

“ nature o f the acts or omissions ” causing alleged injuries ). As in Twilley , Guillory , Smart , and Mejia , the gravamen of Williams’ claim that she tripped over an extension cord is a garden

- variety slip

- and

- fall claim that is completely untethered from the provisio n of health care. See Twilley , 422 S.W.3d at 787 ( holding employee’s claim that he tripped on concrete mound unrelated to health care); Guillory , 415 S.W.3d at 901, 9 03 (holding visitor’s claim that she slipped and fell on water in hospital hallway unrel ated to health care) ; Smart , 423 S.W.3d at 467

– 68 ( holding employee’s claim that he slipped in water puddle unrelated to health care); Mejia , 2013 WL 4859592, at *1, *4 ( holding visitor’s claim she slipped on waxed floor unrelated to health care). The sam e holds true for Williams’ claim for her slip and fall due to leakage o n the hospital’s floor

. T hat the substance originated f r om an air

- conditioning system or “ a leaking piece of lab equipment ” does not alter the outcome. Although Riverside argues that l eaking “ lab equipment ” is the type of event that only occurs in a medical or health care setting , w e disagree. “Lab equipment” is a broad term that can apply to a wide range of equipment used in a variety of educational and commercial21 settings , both insi de and outside of the health care field (e.g., c lassrooms, research facilities). Despite Riverside ’s arguments to the contrary, Williams’ vague reference to a leaking piece of unspecified “lab equipment” does n ot bolster the link between her claim and the provision of health care. We further note that , as in Twilley , requiring an expert medical or health care report in this case would amount to an exercise in futility. See Lawton , --- S.W.3d
at

--- , 2013 WL 6163859, at *1

– 4 (following Twilley and holdin g that nurse’s claim against hospital

- employer for workplace injuries sustained arising from sewage back

- up at hospital was not HCLC because gravamen of her claim was unrelated to provision of he alth care )

. I t is improbable that Williams c ould locate a p remises liability expert who also practiced “health care in a field of practice that involves the same type of care or treatment as th at delivered by” Riverside to opine on either claim. See Psychiatric Solutions , 414 S.W.3d at 726 ( quoting Texas West Oak s ’ holding “that if expert medical or health care testimony is necessary to prove or refute the merits of a claim against a physician or health care provider, the claim is a health care liability claim.”) Further , were such an expert available , the proof or refutation of the merits of ordinary, garden

- variety slip

- and

- fall negligence claims do not require expert medical or health care testimony

. Because neither of Williams ’22 claim s before us are a HCLC, the trial court erred in granting Riverside’s motion to dismiss. Riverside argued during oral argument that the trial court’s granting of the motion to dismiss could also be affirmed because Williams failed to rebut the presumption that her claims were HCLCs pursuant to Loaisiga

. Loaisiga , however, was not a claim that a health care provider departed from an accepted safety standard, as in the present case. On the contrary, L oaisiga only applies to alleged departures from accepted standards of “health care.” After quoting the broad definition of “health c are,” 7 the Loaisiga court held that “[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 f acts implicating the defendant’s conduct during the cou rse of a patient’ s care, treatment, or confinement.” Loaisga does not expressly apply to a safety claim brought by an employee against its health

- care - provider employer and we decline to extend it to such cases. See, e.g

. , Galvan , 434 S.W.3d at 185 (“The Loaisiga court mentioned safety in pas sing, but it did not specifically address the scope of the statutory definition regarding claims based upon alleged departures from accepted safety standards. . . .”).

7 T EX
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. § 74.001(a)(10) (West Supp. 2014) (defining “health care” to include “ any act . . . by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” )23 Having determined that the trial court erred in granting Riverside’s motion to dismiss b ecause Williams’ claims were not HCLCs, we need not address Williams’ retroactivity issue. Conclusion We reverse the trial court’s judgment dismissing Willia ms’ suit and awarding attorneys’ fees to Riverside pursuant to section 74.351(a) and remand for fur ther proceedings.

Jim Sharp Justice
Panel consists of Justices Jennings, Higley, and Sharp.