1 

## NO. 12- 13 -00005- CV

___________________________ __ ______________ 

## In the Court of Appeals for the Twelf th Judicial District at Tyler, Texas

___________________________________________ THE GOOD SHEPHERD HOSPITAL, INC.,

Appellant,

v. RONALD MASTEN and CHARLENE MASTEN ,

Appellees.

_____________________________________________ Appealed from the 188 th Judicial District Court of

Gregg County, Texas Cause No. 2012-876-A

_____________________________________________ 

## APPELLANT’S MOTION FOR REHEARING

_____________________________________________ Respectfully submitted, M C C ATHERN , PLLC David W. Dodge DDodge@McCathernLaw.com State Bar No. 24002000 Regency Plaza 3710 Rawlins, Ste. 1600 Dallas, Texas 75219 (214) 741-2662 - Telephone (214) 741-4717 - Facsimile
A TTORNEYS FOR A PPELLANT ACCEPTED 12-13-00005-CV TWELFTH COURT OF APPEALS

TYLER, TEXAS 12/29/2014 7:57:38 PM

CATHY LUSK CLERK2 APPELLANT’S MOTION FOR REHEARING 1. Appellant respectfully requests that the Court of Appeals withdraw its
December 3 , 2014 Memorandum Opinion in this matter , and grant judgment to Appellant. Alternatively, Appellant requests the Court vacate the j udgment for Appellees and await forthcoming guidance from the Texas Supreme Court when it hands down its opinion in R oss v. St. Luke's Episcopal Hospital , No. 13

- 0439

. A. T he Court Should G rant Judgment for Appellant because t he Logic of Vargas is F lawed . 2. In the Memorandum Opinion, the Court relies on a recent opinion
from the El Paso Co urt of Appeals to dispense with Appellant ’ s argument that Appellee s ’ express reliance on safety regulations that only apply to emergency medical service providers create s a nexus between those claims and the provision
of health care. See Memorandum Opinion at 7

- 8 (quoting East El Paso Physicians Medical Center, L.L.C. v. Vargas , --- S.W.3d

---- , No . 08

- 13

- 00358

- CV , 2014 WL
5794622 , *6 (Tex. App.

— El Paso , Nov

. 7, 2014 , pet. filed)). With respect to the Court, i ts reliance on Vargas is misplaced

. 3. Although not part of the opinion quoted by this Court, the principal
conclusion reache d by the El Paso Court in Vargas was that , although “ Vargas ’ pleaded claims may touch on or implicate hospital licensure regulations, Twilley
makes clear that the existence of an on

- point sa fety regulation does not convert a3

claim into a safety HCLC . . . . ” Vargas , 2014 WL 5794622 at *5

. It is this conclusion that leads to the portion of the opinion cited by the Court. Yet, this conclusion is an answer to a question that was never asked.
4. N either the hospital in Vargas nor Appellant here ar gued that safety regulations that apply generical ly to all types of industries

— such as the OSHA regulations at issue in Twilley

— established a n exus between the claim ant ’ s cause of action and health care. Rather, it is the fact that the safety regulation both: (a) specifically applies only to healthcare providers ; and (b) is expressly made a bas is of liability by the claimant, that supplies any necessary connection to healthcare

. 5. Those two elements exist here. As Appellant argued in its Reply: Appellees cannot escape the close relationship of their claim to Good Shepherd’s provision of emergency medical services be cause they expressly base their claims on Appellants’ alleged deviations from “industry safety standards”

— safety standards their experts identify as being established under the Emergency Healthcare Act. Id. ; CR 158 (Plaintiffs’ Original Petition at 7); CR 600 (Shipp report alleging violation of 25 TAC § 157.11(d) related to vehicle maintenance); Appx. Ex. 3. In light of this express reliance on the EMS safety regulations

—

regulations that apply only to providers of emergency medical services

—

it is impossible for Appellees to show that their claims are “entirely unrelated to health care.” Twilley , 2013 WL 772136 at *4 (emphasis in original)

. Appellant ’ s Reply Brief at 5 (footnotes omitted).

6. The fact that Appellees specifically b ase liability on the allegation that safety regulations exclusively applicable to Good Shepherd as an emergency4

m edical services provider itself supplies a sufficient nexus to healthcare to trigger application of the Texas Medical L iability Act ( “ TMLA ” )

. Thus, i f the question is,
as the El Paso Court of Appeals stated: “ [W]hether the plaintiff alleged that the health care provider defendant breached safety standards indirectly related to
health c are, ” then the answer here is emphatically “ yes ”

. 1
7. A s noted b elow , the Vargas opinion a lso conflicts with this Court ’ s decision in Reddic , an opinion which is much more closely aligned with the Fourteenth Court of Appeals ’ decision in Ross

. See Vargas , 2014 WL 5794622 at *3 (grouping Reddic and Ross together as cases that require no nexus between safety and the provision of healthcare)

. 8. Appellant recognizes that this Court would likel y view the El Paso
Court ’ s interpretation of Reddic as i ncorrect on the same basis the Court distinguish ed Reddic in the Memorandum Opinion. However, the basis for this Court finding a n indirect relationship to the provision of healthcare in Reddic is
also p resent here. Specifically, in Reddic , the Court reasoned there was an indirect

conn ection to healthcare because t he duty allegedly breached was equally applicable to patients and hospital visitors alike

. Memorandum Opinion at 6.

1 The El Paso Court of Appeals ’ recognition that Ms. Vargas ’ claims “ touch[ed] on or implicate[d] ” the referenced hospital

- specific regulations is, in effect , a tacit admission that those claims are not “ wholly and conclusiv ely inconsisten t with and separable from the rendition of health care. ” Memorandum Opinion at 4.5

9. Yet this i s also true of the specialized emergency medical services regulations allegedly violated in this case

— they exist to keep safe Good Shepherd patients and employees alike. See , e.g. , Appellant ’ s Brief at 25 (citing 25 TAC § 157.11(d)(1)

- “[a]ll EMS vehicles must be adequately constructed, equippe d, maintained and operated to render patient care, comfort and transportation safely and efficiently

. ” (emphasis added)). The difference is that the regulations cited by Appellant apply only to emergency medical service providers. Thus, i f anything,
th e regulations cited by Appellant , and relied on by Appellees as a basis for its alleged liability , bear a much closer relationship to the provision of healthcare than
do the n egligence duties ar ising from the common law of premises liability in
R e ddic.
10. I t is no answer to say that Appellant ’ s alleged acts and omissions are also claimed to violate OSHA regulations. The TMLA does not permit “claim splitting.” Yamada v. Friend , 335 S.W.3d 192, 195

– 96 (Tex. 2010). Either a
claimant ’ s allegations have a relationship to healthcare or they do not. Because the Appellee ’ s allegations here are at least as closely related to the provision of healthcare as those of the plaintiff in Reddic , the requisite nexus (if any is required)
was established.6

B. The Court Should Await the Texas Supreme Court ’ s Opinion in Ross . 11. If the Court is unwilling to grant judgment to Appellant, it should

vacate the judgment, withdraw its M emorandum Opinion and reconsider the appeal after the Texas Supreme Court issues its decision in Ross v. St. Luke's Episcopal Hosp ., 14

- 12

- 00885

- CV, 2013 WL 1136613 (Tex. App.

— Houston [14th Dist .] Mar. 19, 2013, pet. granted).
12. In the wake of Texas W. Oaks Hospital, LP v. Williams , 371 S.W.3d 171 (Tex. 2012) , Texas Courts of Appeals have struggled to articulate and apply a clear standard for d etermining whether a claim falls within the “safety” prong of the definition of a “health care liability claim” (an “HCLC”) under the TMLA

. Specifically, the issue of what (if any) nexus must exist between the provision of
health care an alleged deviation from accepted standards of “safety” i n order for
the TMLA to be triggered is one on which the Texas Courts of Appeals are split. 2
Even those Courts of Appeals that require some nexus to healthcare reach differing
conclusions based on m aterially identical facts. 3

2 See East El Paso Physicians Medical Center, L.L.C. v. Vargas , --- S.W.3d

---- , No . 08

- 13

- 00358

- CV , 2014 WL 5794622 , *3 (Tex. App.

— El Paso , Nov

. 7, 2014 , pet. filed) (listing conflicting cases).
3 Compare id. (concluding “ garden variety ” slip and fall was not an HCLC) with E. Texas Med. Ctr. Reg'l Health Care Sys. v. Reddic, 426 S.W.3d 343 (Tex. App.

— Tyler 2014, pet. filed) ( concluding s uch a slip and fall claim was an HCLC )

.7

13. It is anticipated that the Supreme Court’s decision in Ross will substantially clarify the n exus is sue
. In Ross , the Fourteenth Court of Appeals held

“ a connection between the act or omission and health care is unnecessary for purposes of determining whether Ross brings an HCLC .” Ross , 2013 WL 1136613
at *1

. 4 The Texas Supreme Court hea rd oral argument in Ross on November 5, 2014, and is poised to issue an opinion in that case. 5 If the Supreme Court affirms that holding, Appellant respectfully submits that the Court of Appeals opinion in
this matter would have to be reversed. Even if the Court does not affirm, its opinion in Ross is likely to shed much needed light on the issues raised in this appeal.
PRAYER
W HEREFORE, Appell ant prays that th e Co urt grant this Motion for Rehearing , vacate its judgment for Appellees, and grant judgment for Appellant. Alternatively, Appellant requests that the Court vacate the judgment, withdraw the Memorandum Opinion, and reconsider that decision with the benefit of the Texas Supreme Court’s forthcoming opinion in Ross

.

4 Appellant likewise argued that the TMLA does not require any connection between health care and the alleged deviation from accepted standards of “safety” for a claim to constitute an HCLC. See Appellant’s Brief at 26; Appellan t’s Reply Brief at 3 & n.3.
5 T he video of oral argument before the Texas Supreme court in Ross can be found at: http://texassupremecourt.mediasite.com/mediasite/Play/adababbdb285436395df86df6ce3358b1d8 Respectfully submitted, MCCATHERN, PLLC /s/David W. Dodge David W. Dodge State Bar No. 24002000 Regency Plaza 3710 Rawlins, Ste. 1600 Dallas, Texas 75219 (214) 741

- 2662

- Telephone (214) 741

- 4717

- Facsimile COUNSEL FOR APPELLANT
CERTIFICATE OF COMPL IANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)( 2 ) (D) , I certify that the portion of this motion subject to Appellate Rule 9.4(i) contain s 1 451 words. /s/David W. Dodge
CERTIFICATE OF SERVI CE The undersigned hereby ce rtifies that the foregoing Appellant’s Motion for Rehearing was served upon all parties to this appeal in accordance with the T EXAS R ULES OF C IVIL AND A PPELLATE P ROCEDURE on this 29th day of December, 2014 , via the means indicated below : Via E
- Service: Ted Lyon Bill Zook Ron McCallum Ted B. Lyon & Associates, P.C. 18601 LBJ Freeway, Suite 525 Mesquite, Texas 75150 ATTORNEY

S FOR APPELLEE S
/s/David W. Dodge