Reverse and Remand and Opinion Filed May 3, 2021

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-18-00827-CV

CHRISTINE FABER, INDIVIDUALLY AND AS HEIR AT LAW OF 

CARMELINA “MILLIE” SMITH, DECEASED, Appellant

V.

COLLIN CREEK ASSISTED LIVING CENTER, INC. D/B/A DAYSPRING 

ASSISTED LIVING COMMUNITY, Appellee

On Appeal from the 366th Judicial District Court

Collin County, Texas

Trial Court Cause No. 366-02547-2015

EN BANC OPINION

Before the En Banc Court

Opinion by Justice Molberg

Christine Faber appeals the trial court’s April 25, 2018 order dismissing her 

action for failing to serve an expert report under the Texas Medical Liability Act 

(TMLA). See TEX.CIV. PRAC. & REM.CODE § 74.351(a). On June 30, 2020, a panel 

of this Court affirmed the trial court’s order. Faber filed a timely motion for 

rehearing en banc, which this Court granted. 

Sitting en banc, we withdraw this Court’s June 30, 2020 opinion and vacate 

the judgment of that date. Because we conclude Faber’s action is not a healthcare 
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liability claim (HCLC) under the TMLA for which an expert report is required, we 

reverse and remand Faber’s action to the trial court for further proceedings.

BACKGROUND

Faber’s mother, Millie Smith, was a resident of Dayspring Assisted Living 

Community, which is owned and operated by appellee Collin Creek Assisted Living 

Center, Inc. (Collin Creek). On May 25, 2014, Faber went to pick her mother up at 

Dayspring to take her to a hair styling appointment. Faber parked in Dayspring’s 

parking lot and asked a Dayspring employee to help Millie to the car. Millie, who 

had become a Dayspring resident only a week earlier, used a rolling walker and sat 

on it facing backwards as the Dayspring employee pushed her along the public 

sidewalk outside Dayspring’s entrance. Millie’s walker got caught in a large crack 

in the sidewalk, causing her to fall and hit her head on the concrete. She died some 

six days later.

Faber sued Collin Creek and a second defendant in June 2015, asserting 

claims on her own behalf and on behalf of Millie’s estate. Her original petition, 

although principally relying on a premises liability theory, also referenced the 

Dayspring employee’s role in her mother’s injury and alleged, among other things, 

that “Dayspring’s lack of supervision and/or training” of employees and “failure to 

enact rules and regulations to ensure the safety of the transport of Dayspring patients, 

such as Ms. Smith, caused and produced Ms. Smith’s injuries.” In addition, Faber

alleged Dayspring “fail[ed] to render adequate and timely aid.” Collin Creek 
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answered and, after the deadline for filing medical expert reports expired, moved to 

dismiss the action because Faber did not file one. See TEX.CIV. PRAC. & REM.CODE

§ 74.351. Faber amended her petition, removing claims of active negligence by 

Dayspring employees, leaving only allegations based on a defect in Dayspring’s 

premises. She then responded to Collin Creek’s motion to dismiss by arguing her 

premises liability claim did not qualify as an HCLC because Dayspring’s duty to 

maintain its premises is separate and apart from any special duties owed to its 

residents.

The 219th Judicial District Court granted Collin Creek’s motion to dismiss in 

January 2016. Over the next two years, Faber pursued additional claims against the 

remaining defendant, which were resolved against Faber by summary judgment in 

November 2017. 

Faber amended her petition twice in 2017. Like her second amended petition, 

her third amended petition—her last live pleading—asserted claims against Collin 

Creek based on a premises liability theory focused factually on the instrumentality 

resulting in Millie’s injuries and death, namely “[a] large crack in the concrete, 

causing her to fall.”1

1 Faber also raised a premises liability per se case, based on the Americans with Disabilities Act (ADA).

Citing 42 U.S.C. § 12182(b)(2)(A)(iv)–(v) and 28 C.F.R. § 35.151, Faber alleged Collin Creek’s “sidewalk 

crack was an architectural barrier that was structural in nature, and removal of the barrier was readily 

achievable; [Collin Creek’s] failure to remedy the structural barrier violated ADA standards.” Further, in 
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In December 2017, after the dismissal by summary judgment of the final 

claims in the case, the case was transferred to the 366thJudicial District Court. Faber 

filed motions for new trial on her claims against both defendants, and the court 

granted both, although it later reinstated its summary judgment order against the 

other defendant. 

In granting a new trial on Faber’s claims against Collin Creek, the court 

concluded, in part, that a question existed as to whether Faber’s claims should have 

been categorized as HCLCs. On April 23, 2018, Collin Creek, in turn, filed both a 

“Second Motion for Dismissal Pursuant to TEX.CIV. PRAC. & REM.CODE § 74.351,” 

attaching no documents to the motion, and an interlocutory appeal of the order 

granting Faber a new trial. Two days later, the same day we dismissed that appeal 

for want of jurisdiction, the trial court reversed course, signing an order granting

Collin Creek’s second motion to dismiss, without conducting a hearing or allowing 

time for a response from Faber. This finally disposed of all claims and parties, and 

Faber timely appealed the trial court’s dismissal of Faber’s claims against Collin 

Creek.

all her pleadings, Faber alleged a bystander liability claim on her own behalf. Because these claims are 

likewise predicated on the condition of the sidewalk that caused the harm to Millie, we need not analyze 

them separately. The parties agree that Faber’s live pleading at the time of dismissal presented a premises 

liability claim and the appeal was briefed accordingly.
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ANALYSIS

The issue before us is whether Faber’s negligence action, based on a premises 

liability theory, is an HCLC. Faber argues it is not and, in any event, Collin Creek’s 

second motion for dismissal was untimely.2 Because we agree Faber’s action is not 

an HCLC, we need not discuss timeliness. 

Health Care Liability Claims Under the TMLA

Whether a claim is an HCLC under the TMLA is a legal question we review 

de novo. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 

(Tex. 2019). 

When conducting our review, we “consider the entire court record, including 

the pleadings, motions and responses, and relevant evidence properly admitted,” as 

well as “the overall context of the plaintiffs’ suit, including the nature of the factual 

allegations in their pleadings, [the defendant’s] contentions, and the motions to 

dismiss and responses.” Loaisiga v. Cerda, 379 S.W.3d 248, 258–59 (Tex. 2012). 

We “look first to the pleadings,” id. at 259, and consider the underlying nature and 

gravamen of the plaintiff’s claim, not its label, focusing on “whether the gravamen 

of [the plaintiff’s] complaint is a ‘claimed departure from accepted standards of 

2 Faber raises three issues, the first two of which relate to the root question of whether her action is an 

HCLC. She argues the trial court erred by dismissing her action because (1) the legislature did not intend 

to require her to produce a medical doctor’s expert report about the causal relationship between Collin 

Creek’s failure to maintain a sidewalk and Millie’s injury; (2) Collin Creek is unable to prove a substantive 

nexus between the safety standards allegedly violated and the provision of healthcare, as required by Ross 

v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496 (Tex. 2015); and (3) Collin Creek’s second motion to dismiss 

was untimely. 
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medical care, or health care, or safety or professional or administrative services 

directly related to health care’”. Weems, 575 S.W.3d at 363–64 n.21 (quoting TEX.

CIV. PRAC. & REM. CODE § 74.001(a)(13), and citing CHRISTUS Health Gulf Coast 

v. Carswell, 505 S.W.3d 528, 534 (Tex. 2016)).

The TMLA defines an HCLC as: 

a cause of action[3]against a health care provider[4] or physician for 

treatment, lack of treatment, or other claimed departure from accepted 

standards of medical care,[5] or health care,[6] or safety or professional 

or administrative services directly related to health care,[7] which 

3 The TMLA does not define “cause of action,” but the phrase generally “refers to the ‘fact or facts 

entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief.’” 

In re Jorden, 249 S.W.3d 416, 421 n.19 (Tex. 2008) (orig. proceeding) (quoting A.H. Belo Corp. v. Blanton, 

129 S.W.2d 619, 621 (Tex. 1939)). 

4

“Health care provider” is defined as “any person, partnership, professional association, corporation, 

facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health 

care,” and includes various positions and roles. See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(12)(A)–

(B) (definition includes a registered nurse, dentist, podiatrist, pharmacist, chiropractor, optometrist, health 

care institution, or health care collaborative certified under Texas Insurance Code chapter 848, as well as 

an officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or 

physician, and an employee, independent contractor, or agent of a health care provider or physician acting 

in the course and scope of the employment or contractual relationship). 

5 The TMLA defines “[m]edical care” as “any act defined as practicing medicine under Section 

151.002, Occupations Code, performed or furnished, or which should have been performed, by one licensed 

to practice medicine in this state for, to, or on behalf of a patient during the patient’s care, treatment, or 

confinement.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(19). The Texas Occupations Code defines 

“[p]racticing medicine” as “the diagnosis, treatment, or offer to treat a mental or physical disease or disorder 

or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions, 

by a person who (A) publicly professes to be a physician or surgeon; or (B) directly or indirectly charges 

money or other compensation for those services.” TEX. OCC. CODE § 151.002(a)(13).

6

“Health care” is defined as “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.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10).

7

“Safety” is not defined in the TMLA but, in connection with an earlier version of the Act, the Texas 

Supreme Court referred to “safety” according to its common meaning as “the condition of being ‘untouched

by danger; not exposed to danger; secure from danger, harm or loss.’” Diversicare Gen. Partner, Inc. v. 

Rubio, 185 S.W.3d 842, 855 (Tex. 2005) (quoting Safety, BLACK’S LAW DICTIONARY 1336 (6th ed. 1990)). 

“Professional or administrative services” are defined as “those duties or services that a physician or health 
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proximately results in injury to or death of a claimant, whether the 

claimant’s claim or cause of action sounds in tort or in contract.

TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13). Thus, an HCLC has three elements: 

(1) the defendant is a health care provider or physician; (2) the claimant’s cause of 

action is for treatment, lack of treatment, or other claimed departure from accepted 

standards of medical care, health care, or safety or professional or administrative 

services directly related to health care; and (3) the defendant’s alleged departure 

from accepted standards proximately caused the claimant’s injury or death. Coming 

Attractions Bridal & Formal, 595 S.W.3d at 663–64 n.13; Loaisiga, 379 S.W.3d at 

255 (citing Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 662 (Tex. 2010)

(plurality op.)); see also Baylor Univ. Med. Ctr. v. Lawton, 442 S.W.3d 483, 485 

(Tex. App.—Dallas 2013, pet. denied) (same). 

In Loaisiga, the court held that the TMLA “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.” Loaisiga, 379 S.W.3d at 256 (citing Marks, 319 

S.W.3d at 662). Loaisiga then instructed: 

care provider is required to provide as a condition of maintaining the physician’s or health care provider’s 

license, accreditation status, or certification to participate in state or federal health care programs.” See TEX.

CIV. PRAC. & REM. CODE § 74.001(a)(24). “‘Directly related’ means an ‘uninterrupted, close relationship 

or link between the things being considered.’” Coming Attractions Bridal & Formal, Inc. v. Tex. Health 

Res., 595 S.W.3d 659, 665 n.23 (Tex. 2020) (quoting Weems, 575 S.W.3d at 365). Finally, the Texas 

Supreme Court held that the phrase “directly related to health care” modifies the terms immediately before 

it—professional or administrative services—but not the word safety. See Tex. W. Oaks Hosp., L.P. v. 

Williams, 371 S.W.3d 171, 185 (Tex. 2012).
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But the presumption is necessarily rebuttable. 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. 

The supreme court extended this principle to a more analogous context in Ross 

v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496, 503 (Tex. 2015), a case in which 

a visitor sued a hospital on a premises liability theory after she slipped and fell near 

the lobby exit doors.8 Id. at 498. In Ross, the hospital argued, in part, that the 

plaintiff’s claim was an HCLC because any slip and fall event within a hospital is 

directly related to health care and is necessarily related to the safety of patients. Id. 

at 503. The supreme court disagreed, stating:

[E]ven though the claims in Loaisiga were by a patient and the nature 

of the claims differ from Ross’s safety standards-based claim, the 

principle we explicated there applies here. A safety standards-based 

claim does not come within the TMLA’s provisions just because the 

underlying occurrence took place in a health care facility, the claim is 

against a health care provider, or both.

8 Like Ross, and unlike Loaisiga, Faber alleges a fall-related premises liability claim. In Loaisiga, the 

plaintiffs alleged assault, claiming a doctor groped their breasts while examining them for sinus and flu 

symptoms. Loaisiga, 379 S.W.3d at 252. After clarifying the standards that applied, id. at 252–57, 

Loaisiga held that “a claim against a medical or health care provider for assault is not an HCLC if the record 

conclusively shows that (1) there 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 implied 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 then remanded the case to the trial court to consider whether expert reports 

were required for the patients’ claims, and if so, whether the court should provide the plaintiffs an extension 

of time to cure deficiencies in the expert reports they already provided. Id. at 263. 
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Id. (citing Loaisiga, 379 S.W.3d at 257). The court stated that “the Legislature must 

have intended” for the TMLA’s provisions to apply “only if the claim has some 

relationship to the provision of health care other than the location of the occurrence, 

the status of the defendant, or both” given the legislative intent set out in the TMLA 

and the context in which “safety” is used in the statute. Id. at 504.

Ross concluded that for a safety-standards claim to be an HCLC, “there must 

be a substantive nexus between the safety standards allegedly violated and the 

provision of health care.” Id. The court explained the “nexus must be more than a 

‘but for’ relationship. That is, the fact that [plaintiff] would not have been injured 

but for her falling inside the hospital is not a sufficient relationship between the 

standards [she] alleges the hospital violated and the hospital’s health care activities 

for the claim to be an HCLC.” Id. 

Acknowledging that “the line between a safety standards-based claim that is 

not an HCLC and one that is an HCLC may not always be clear,” Ross provided 

seven “non-exclusive” factors that “lend themselves to analyzing whether such a 

claim is substantively related to the defendant’s providing of medical or health care 

and is, therefore, an HCLC”:

1. Did the alleged negligence of the defendant occur in the course 

of the defendant’s performing tasks with the purpose of 

protecting patients from harm;

2. Did the injuries occur in a place where patients might be during 

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

implicated;

3. At the time of the injury was the claimant in the process of 

seeking or receiving health care;

4. At the time of the injury was the claimant providing or assisting 

in providing health care;

5. Is the alleged negligence based on safety standards arising from 

professional duties owed by the health care provider;

6. If an instrumentality was involved in the defendant’s alleged 

negligence, was it a type used in providing health care; or

7. Did the alleged negligence occur in the course of the defendant’s 

taking action or failing to take action necessary to comply with 

safety-related requirements set for health care providers by 

governmental or accrediting agencies?

Id. at 505.

Under Ross, the key inquiry is the nexus between the standards alleged to have 

been breached and the provision of health care, not the identity or status of the person 

injured. Id. (“The pivotal issue in a safety standards-based claim is whether the 

standards on which the claim is based implicate the defendant’s duties as a health 

care provider, including its duties to provide for patient safety.”); Williams, 371 

S.W.3d at 178 (“[O]ur 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”) (citing Rubio, 185 S.W.3d at 854).

Application

Here, the parties’ primary dispute is the second HCLC element: whether 

Faber’s cause of action is for treatment, lack of treatment, or other claimed departure 
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from accepted standards of medical care, health care, or safety or professional or

administrative services directly related to health care. See Coming Attractions 

Bridal & Formal, 595 S.W.3d at 663–64 n.13 (describing this as second element);

Loaisiga, 379 S.W.3d at 255 (same); Lawton, 442 S.W.3d at 485 (same). 

Before addressing this element, we first consider whether Faber’s claim raises 

a rebuttable presumption that it is an HCLC. As previously noted, when a claim 

against a healthcare provider is “‘based on facts implicating the [provider’s] conduct 

during the course of a patient’s care, treatment, or confinement,’ a rebuttable 

presumption arises that it is [an HCLC] for purposes of the [TMLA].” Weems, 575 

S.W.3d at 354 n.16 (quoting Loaisiga, 379 S.W.3d at 256). 

We conclude no such presumption arises here. Faber’s third amended 

petition—her live pleading pending at the time of the April 25, 2018 order of 

dismissal—alleges claims based on the condition of Collin Creek’s public sidewalk

at the time of Millie’s fall, not the conduct of the staff member who was with Millie 

when she fell.

9

 Thus, Faber’s pleading does not implicate any health care provider’s 

conduct during the course of Millie’s care, treatment, or confinement, and no 

rebuttable presumption arises that Faber’s claim is an HCLC. Cf. id. at 363 

9 When pleadings are amended, the amended pleading supersedes and supplants earlier pleadings. See

Lee v. Na, 198 S.W.3d 492, 494 (Tex. App.—Dallas 2006, no pet.) (citing TEX. R. CIV. P. 65; Webb v. 

Jorns, 488 S.W.2d 407, 409 (Tex. 1972) and Woodruff v. Wright, 51 S.W.3d 727, 731 (Tex. App.—

Texarkana 2001, pet. denied)). 
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(presumption raised where Weems claimed nurse falsified medical records during 

course of his care and treatment as a patient).

Even if we assume the presumption exists, we conclude the record rebuts it 

because no substantive nexus exists between Faber’s claims and safety standards 

implicating Collin Creek’s duties as a healthcare provider. For purposes of our 

analysis, we assume without deciding that the first and third factors weighed in 

Collin Creek’s favor, although, on this record, doing so represents more than a 

stretch, considering, among other things, Collin Creek’s contractual agreements 

disclaiming the provision of health care services to Millie.10 As to the other Ross 

factors, the second, fifth, sixth, and seventh factors weigh against Collin Creek’s 

position as we discuss below, and the fourth factor does not apply.11 

As to the second, fifth, and sixth factors, the record does not show that Millie 

was injured in an area where health care patients might be when receiving treatment; 

the alleged negligence is not based on safety standards arising from the staff 

member’s professional duties; and the injury is alleged to have been caused by a

defective sidewalk, an instrumentality not used in the provision of health care. The 

dissent disagrees based on Millie’s functional assessment, but that assessment rated 

10 Because of our manner of disposition of this appeal, we need not decide whether Collin Creek’s clear 

contractual disclaimer of the provision of health care services to Millie deprives Collin Creek of the benefits 

of the TMLA.

11 The dissent agrees that the fourth factor does not apply.
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Millie’s mobility as “totally independent” and her transfer ability as “independent.”

12

 

The dissent ignoresthis evidence and refuses to recognize the gravamen of the claim: 

negligence through improper sidewalk maintenance, not the action or omission of 

the person who pushed Millie toward Faber’s vehicle to travel to a hair 

appointment.13 

Finally, as to the seventh factor, no link exists between Faber’s allegations 

and the safety-related regulations and standards Collin Creek cites. Instead, the 

12 According to the record before us, the functional assessment rated Millie in nineteen categories, and 

within each, points were assessed based on the resident’s functionality, with lower numbers reflecting a 

lower level of dependence and a higher level of independence. While we acknowledge that the record 

contains some testimony about the assessment as quoted by the dissent, the assessment itself is in the record 

and reflects the ratings, scores, and language mentioned here, where Millie’s mobility was scored as 

“(0) totally independent” and her transfer ability was scored as “(0) independent.”

13 The transport-related cases cited by the dissent are distinguishable because the alleged negligence in 

those cases concerned active negligence claims based on failures of medical personnel to secure individuals 

on or in certain medical equipment, such as on gurneys or in wheelchairs. See City of Houston v. Houston, 

608 S.W.3d 519, 523 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (alleged failure to secure patient to 

gurney when transporting from home to ambulance); Taton v. Taylor, No. 02-18-00373-CV, 2019 WL 

2635568, at *1 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem. op.) (alleged failure to secure 

patient’s wheelchair in van); Bain v. Capital Senior Living Corp., No. 05-14-00255-CV, 2015 WL 3958714, 

*1, 4 (Tex. App.—Dallas June 30, 2015, pet. denied) (mem. op.) (alleged misuse of wheelchair lap belt

when transporting resident in van); Sherman v. Healthsouth Specialty Hosp., Inc., 397 S.W.3d 869, 871

(Tex. App.—Dallas 2013, pet. denied) (alleged failure to secure patient before traveling and failure to 

ensure its employee could provide for her safety before travel). Here, no such claims have been made. 

While the dissent correctly notes that plaintiffs may not artfully plead their way around a claim being an 

HCLC, Faber has not done so, considering the alleged wrongful conduct and the duties allegedly breached. 

See Rubio, 185 S.W.3d at 855 (“[W]e focus on the essence of [the] claim and consider the alleged wrongful 

conduct and the duties allegedly breached.”); Sorokolit v. Rhodes, 889 S.W.2d 239, 242–43 (Tex. 1998)

(concluding that claimant could proceed with DTPA claim because claim was premised on physician’s 

express misrepresentations, not on alleged breach of medical standards). Additionally, based on the record 

before us, we disagree with the dissent’s view that a jury “will be required to consider more than just 

whether the crack presented a hazard” and “will necessarily have to consider the [staff member’s] actions 

and the risks associated with the choices [the staff member] made.” The case cited by the dissent for those 

propositions is distinguishable from the facts presented here. See Se. Tex. Cardiology Assocs. v. Smith, 593 

S.W.3d 743, 748–49 (Tex. App.—Beaumont 2019, no pet.) (court decided that patient’s claim was an 

HCLC where the patient fell over a scale outside his exam room after his exam and where the evidence 

reflected that the nurses and doctors employed at the facility had decided the scale’s location). No such 

evidence exists in this record regarding the sidewalk’s condition.
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standard at issue here is that embodied in the tort-law duty owed by most owners 

and occupiers of premises, not just premises of health care providers. Put another 

way, “[t]he obligation of a health care facility to its patients is not the same as the 

general duty a premises owner owes to invitees.” Rubio, 185 S.W.3d at 850. Faber’s 

is not a suit that may fairly be said to involve a claimed departure from safety 

standards that involve a substantial nexus with the provision of healthcare, and it 

does not implicate Collin Creek’s duties as a healthcare provider.

Soon after Ross, the Texas Supreme Court decided two other cases involving 

falls. See Galvan v. Mem’l Hermann Hosp. Sys., 476 S.W.3d 429, 431–33 (Tex. 

2015) (per curiam) (reversing and remanding court of appeals’s reversal of trial 

court’s denial of motion to dismiss in case involving fall in hospital); Reddic v. 

E. Tex. Med. Ctr. Reg’l Health Care Sys., 474 S.W.3d 672, 673–76 (Tex. 2015) (per 

curiam) (same). In Reddic, the supreme court stated:

While the hospital lists requirements of various entities with which it 

must comply . . . the record does not show that the hospital’s complying 

or failing to comply with them had a substantive relationship to the 

safety standards underlying Reddic’s claim. For example, the hospital 

references state administrative requirements that it must have a multidisciplinary safety committee and a safety officer, and Joint 

Commission standards that it must have a written plan for managing 

safety and security of both patients and other persons who enter the 

hospital. But Reddic’s claim is for the hospital’s failing to properly 

inspect and maintain its floor mats in the lobby, regardless of whether 

it had a safety committee, a written plan for managing safety, or a safety 

officer.
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Reddic, 474 S.W.3d at 675–76 (noting facility failed to identify a particular standard 

of care that was both “substantively related to the provision of health care and 

underlies Reddic’s claim” and concluding no substantive nexus existed between the 

provision of health care and the safety standards Reddic claimed the facility 

violated). 

Similarly, in Galvan, the court determined that a slip and fall claim was not 

an HCLC where the gravamen of the claim was failing to remove or warn of water 

on the floor and where the infection control and safety regulations the facility cited 

did not have a substantive relationship to the safety standards underlying the claim. 

Galvan, 476 S.W.3d at 432–33.

Both Reddic and Galvan demonstrate that the record must contain more than 

a mere list of safety-related regulations and requirements that apply to Collin Creek

or its staff in order to determine that a particular claim is an HCLC. Instead, a clear 

nexus must exist between those regulations and requirements and the underlying 

negligence being alleged in the claim. Here, we find no link between Faber’s 

allegations and Collin Creek’s cited regulations and requirements, making those

cites no more useful than jumbled letters in alphabet soup—items that might convey 

substantive meaning if proper links are made between them, but that are otherwise 

of little or no utility or substance.

In addition to Ross, Reddic, and Galvan, our earlier decision in Lawton is also 

instructive. In Lawton, we held that a nurse’s workplace injury claim did not 
–16–

constitute an HCLC and thus did not require submission of an expert report under 

section 74.351 where the condition leading to the nurse’s claim (fumes and irritants 

resulting from the remediation of backed-up sewage in sink and shower drains) did 

not exist inside patient rooms and where the nurse’s claim “related to health care 

only in that [it] arose on hospital premises.” Lawton, 442 S.W.3d at 487. In reaching 

that decision, we noted that requiring an expert report would be futile, as a health 

care professional’s expert report would not shed any light on whether the techniques 

used in creating the condition violated plumbing standards. Id. at 486–87. Because 

the necessary connection between Lawton’s claims and health care did not exist, we 

affirmed the trial court’s denial of the hospital’s motion to dismiss. Id. at 487. In 

Rubio, the Texas Supreme Court also indicated this could be an important factor in 

determining whether a claim falls within the TMLA, stating, “The necessity of 

expert testimony from a medical or health care professional to prove a claim may 

also be an important factor in determining whether a cause of action is an inseparable 

part of the rendition of medical or health care services.” Rubio, 185 S.W.3d at 848 

(citing Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 544 (Tex. 2004)).

Like the fumes and irritants in Lawton, the only relation between health care 

and Faber’s allegations regarding the defective sidewalk is that the injuries occurred 

on Collin Creek’s property, and no expert report by a health care professional will 

address whether the appropriate standards were followed in creating or maintaining 
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the sidewalk, the very premises condition alleged to have caused Faber’s mother 

harm. Id. 

Here, the standards on which Faber bases her claim do not implicate Collin 

Creek’s duties as a health care provider or its duties to provide for patient safety. 

The gravamen of Faber’s complaint is inadequate sidewalk maintenance outside her 

mother’s assisted living facility—a situation that is even more untethered to health 

care than a premises liability claim for injuries from the collapse of a rickety 

staircase inside the facility would be. See Ross, 462 S.W.3d at 506–07 (Lehrmann, 

J., concurring); Rubio, 185 S.W.3d at 854 (distinguishing situation in that active 

negligence case, which court considered “inseparable from healthcare,” from one 

involving “a rickety staircase that gave way under [a patient’s] weight”).14 The duty 

allegedly breached in this case is no different than the duty imposed on businesses 

generally and does not implicate Collin Creek’s duty as a health care provider.15 See 

Reddic, 474 S.W.3d at 676; Nexion Health Mgmt., Inc. v. Waddell, No. 05-20-

14 We disagree with the dissent’s conclusion that Faber’s claim is inextricably intertwined with Collin 

Creek’s conduct and duties as a healthcare provider. The same types of arguments were made and rejected 

by the Texas Supreme Court in Ross and Loaisiga. See Ross, 462 S.W.3d at 503 (TMLA does not cover 

all safety standards-based claims “just because the underlying occurrence took place in a health care facility, 

the claim is against a health care provider, or both”) (citing Loaisiga, 379 S.W.3d at 257)). 

15 One of our sister courts in Houston recently distinguished Rubio and affirmed the denial of a motion 

to dismiss in a premises liability case involving a resident who was raped at an assisted living facility. See 

Belmont Vill. Hunters Creek TRS, LLC v. Marshall, No. 18-00984-CV, 2020 WL 4873563 (Tex. App.—

Houston [1st Dist.] Aug. 20, 2020, no pet.). While the alleged misconduct in the two cases is different, 

Marshall is analogous to Faber’s case in certain respects, as it involved an assisted living facility that 

contractually disclaimed any provision of health care to the decedent, just as Collin Creek does here. Id. at 

*4–12 (distinguishing Rubio, which involved claims of failure to provide adequate supervision and nursing 

services, and concluding Ross factors did not support dismissal in premises liability claim against assisted 

living facility relating to resident’s rape in the facility).
–18–

00406-CV, 2020 WL 7767938, at *2–6 (Tex. App.—Dallas Dec. 30, 2020, no pet.) 

(mem. op.); cf. Coming Attractions Bridal & Formal, 595 S.W.3d at 663–65.

16

When Faber’s claim was dismissed, her petition alleged facts having nothing 

to do with a health care provider’s failure to comply with professional duties and 

everything to do with the condition of the public sidewalk on the facility’s premises. 

It was a simple, run-of-the-mill premises liability case, where the instrumentality 

causing injury was broken concrete.

The dissent wrongly suggests that Faber attempted to recast her claim to skirt 

the strictures of the TMLA. In fact, it is the dissent that attempts to re-characterize 

Faber’s premises claim into one she does not make, namely an active negligence 

case involving the conduct of the Collin Creek employee who pushed Millie’s 

walker at the time it became snared in the cracked concrete. To reach this view, the 

dissent is forced to disregard the gravamen of Faber’s suit, jettison the holdings of 

Williams, Rubio, and other authorities as a consequence, and leave unanswered one 

revelatory, self-evident fact: Had it not been for the defective condition of the 

16 In Coming Attractions Bridal & Formal, the Texas Supreme Court found that a substantive nexus 

existed between the hospital’s health care provider duty and the claimant’s alleged injury, where the 

claimant alleged the hospital failed to (1) recognize the danger of the Ebola virus, (2) develop and 

implement policies and procedures on how to respond to the presence of the Ebola virus in the patient 

population, (3) ensure that all healthcare providers were trained on how to recognize, appreciate, contain, 

and treat the Ebola virus in the patient population; (4) train nurses on proper protection from Ebola; 

(5) ensure that the hospital had appropriate personal protective equipment; (6) notify the appropriate 

authorities and employ qualified people to manage Ebola patients; (7) instruct and warn its nurses about the 

dangers of travel and interacting with the public following potential exposure to the Ebola virus; and 

(8) protect the public from foreseeable harm when it unnecessarily exposed its nurses to the Ebola virus in 

an unsafe manner and failed to prevent or warn the exposed nurses from interacting with the public. 595 

S.W.3d at 661, 663–65. Coming Attractions is distinguishable, as Faber makes no similar allegations here. 
–19–

sidewalk, this lawsuit would not exist. In the legal analysis of the premises liability 

claim actually presented by Faber, it matters not who was pushing Millie the day of 

her deadly fall. This underscores yet another fault in the dissent’s argument. 

Presumably, under the dissent’s analysis, had Faber pushed her mother that day, the 

TMLA would not have been implicated. Of course, this makes the case turn merely 

on the health care employment status of the person assisting Millie and the location 

of the incident, something we may not do. See Ross, 462 S.W.3d at 503–04; 

Loaisiga, 379 S.W.3d at 257. At bottom, however, the dissent fails to establish any 

substantive nexus between Faber’s claims and standards implicating Collin Creek’s 

duties as a healthcare provider.17

If we were to affirm the trial court’s decision, the statute would once again 

“become a nebulous barrier to what were once ordinary negligence suits brought by 

plaintiffs alleging no breach of any professional duty of care.” See Ross, 462 S.W.3d 

at 506 (Lehrmann, J., concurring). 

Because the substantive nexus required under Ross is lacking here, we sustain 

Faber’s second issue and conclude that Faber’s action against Collin Creek is not an 

HCLC and that the trial court erred in granting Collin Creek’s second motion to 

dismiss. In light of our ruling, we do not reach Faber’s other two issues because 

17 We also disagree with the dissent’s implicit assumption that a healthcare employee’s mere pushing 

a facility resident along a public sidewalk automatically transforms the case into an HCLC without a 

showing that some substantive nexus (other than the location of the incident or the status of the tortfeasor) 

exists that implicates particular healthcare duties, a breach of which caused the occurrence. Again, Faber 

presented no active negligence claim in her pleading.
–20–

they are unnecessary to final disposition of the appeal. See TEX. R. APP. P. 47.1 

(court “must hand down a written opinion that is as brief as practicable but that 

addresses every issue raised and necessary to final disposition of the appeal”).

CONCLUSION

We vacate this Court’s June 30, 2020 judgment, reverse the trial court’s April 

25, 2018 order, and remand this cause to the trial court for further proceedings 

consistent with this opinion.

180827f.p05

Reichek, J., dissenting, joined by Myers, J., Schenck, J., Pedersen, J., and Smith, J.

/Ken Molberg/

KEN MOLBERG

JUSTICE
–21–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

CHRISTINE FABER, 

INDIVIDUALLY AND AS HEIR 

AT LAW OF CARMELINA 

“MILLIE” SMITH, DECEASED, 

Appellant

No. 05-18-00827-CV V.

COLLIN CREEK ASSISTED 

LIVING CENTER, INC. D/B/A 

DAYSPRING ASSISTED LIVING 

COMMUNITY, Appellee

On Appeal from the 366th Judicial 

District Court, Collin County, Texas

Trial Court Cause No. 366-02547-

2015.

Opinion delivered by Justice 

Molberg. Court sitting en banc.

We WITHDRAW our opinion and VACATE our judgment of June 30, 

2020. This is now the judgment of the Court. 

In accordance with this Court’s opinion of this date, we REVERSE the trial 

court’s April 25, 2018 order, and REMAND this cause to the trial court for further 

proceedings consistent with this opinion.

It is ORDERED that appellant CHRISTINE FABER, INDIVIDUALLY 

AND AS HEIR AT LAW OF CARMELINA “MILLIE” SMITH, DECEASED 

recover her costs of this appeal from appellee COLLIN CREEK ASSISTED 

LIVING CENTER, INC. D/B/A/ DAYSPRING ASSISTED LIVING 

COMMUNITY.

Judgment entered this 3rd day of May, 2021.