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NO. 12-13-00005-CV

___________________________________________ 

In the Court of Appeals 

for the Twelfth Judicial District at Tyler, Texas 

___________________________________________ 

THE GOOD SHEPHERD HOSPITAL, INC., 

Appellant, 

v.

RONALD MASTEN and CHARLENE MASTEN, 

 Appellees. 

_____________________________________________ 

Appealed from the 188th Judicial District Court of 

Gregg County, Texas 

Cause No. 2012-876-A 

_____________________________________________ 

APPELLANT’S MOTION FOR REHEARING 

_____________________________________________ 

Respectfully submitted, 

MCCATHERN, 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 

ATTORNEYS FOR APPELLANT

ACCEPTED

12-13-00005-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

12/29/2014 7:57:38 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 12/29/2014 7:57:38 PM CATHY S. LUSK Clerk
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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 judgment for

Appellees and await forthcoming guidance from the Texas Supreme Court when it 

hands down its opinion in Ross v. St. Luke's Episcopal Hospital, No. 13-0439.

A. The Court Should Grant Judgment for Appellant because the Logic 

of Vargas is Flawed.

2. In the Memorandum Opinion, the Court relies on a recent opinion 

from the El Paso Court of Appeals to dispense with Appellant’s argument that 

Appellees’ express reliance on safety regulations that only apply to emergency 

medical service providers creates 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, its reliance on Vargas is misplaced.

3. Although not part of the opinion quoted by this Court, the principal 

conclusion reached 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 safety regulation does not convert a 
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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. Neither the hospital in Vargas nor Appellant here argued that safety 

regulations that apply generically to all types of industries—such as the OSHA 

regulations at issue in Twilley—established a nexus between the claimant’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 basis 

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 because 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 base liability on the allegation that 

safety regulations exclusively applicable to Good Shepherd as an emergency 
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medical services provider itself supplies a sufficient nexus to healthcare to trigger 

application of the Texas Medical Liability Act (“TMLA”). Thus, if 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 care,” then the answer here is emphatically “yes”.

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7. As noted below, the Vargas opinion also 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 likely view the El Paso 

Court’s interpretation of Reddic as incorrect on the same basis the Court 

distinguished Reddic in the Memorandum Opinion. However, the basis for this 

Court finding an indirect relationship to the provision of healthcare in Reddic is 

also present here. Specifically, in Reddic, the Court reasoned there was an indirect 

connection to healthcare because the 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 conclusively inconsistent with and separable from the rendition of 

health care.” Memorandum Opinion at 4.
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9. Yet this is 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, equipped, 

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, if anything, 

the 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 negligence duties arising from the common law of premises liability in 

Reddic.

10. It 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.
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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 Memorandum 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 determining 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” in 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 materially identical facts.3

 

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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 such a slip and fall claim was an HCLC).
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13. It is anticipated that the Supreme Court’s decision in Ross will 

substantially clarify the nexus issue. 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.

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 The Texas Supreme Court heard 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

WHEREFORE, Appellant prays that the Court 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; Appellant’s Reply Brief at 3 & n.3.

5 The video of oral argument before the Texas Supreme court in Ross can be found at: 

http://texassupremecourt.mediasite.com/mediasite/Play/adababbdb285436395df86df6ce3358b1d
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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 COMPLIANCE

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) contains 1451 words.

/s/David W. Dodge

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing Appellant’s Motion for 

Rehearing was served upon all parties to this appeal in accordance with the TEXAS 

RULES OF CIVIL AND APPELLATE PROCEDURE 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

ATTORNEYS FOR APPELLEES

/s/David W. Dodge