Texas Health Presbyterian Hospital Dallas v. Dena Burch

AFFIRMED; Opinion Filed January 22, 2015.

S
Court of Appeals
In The

Fifth District of Texas at Dallas
No. 05-14-00665-CV

TEXAS HEALTH PRESBYTERIAN HOSPITAL DALLAS, Appellant
V.
DENA BURCH, Appellee

On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-13-06083-D

MEMORANDUM OPINION
Before Justices Evans, Brown, and Schenck 1
Opinion by Justice Evans
This is an interlocutory appeal from the trial court’s order denying Texas Health

Presbyterian Hospital Dallas’s motion to dismiss Dena Burch’s claim. Texas Health contends

that the trial court erred by: (1) concluding that Burch’s claim against Texas Health is not a

health care liability claim under section 74.351(b) of the Texas Civil Practice & Remedies Code

and (2) denying Texas Health’s motion to dismiss Burch’s claim based on her failure to timely

file an expert report. Because we conclude, as the trial court did, that Burch’s claim is not a

1
Justice Michael O’Neill was a member of the original panel and participated in the submission of this case;
however, he did not participate in this opinion. Justice David Schenck has reviewed the record and the briefs in this
case. See TEX. R. APP. P. 41.1(a).
health care liability claim subject to the expert report requirement, we affirm the trial court’s

order.

BACKGROUND

Burch alleges that in November 2011, she visited her mother at Texas Health’s hospital.

Burch claims that after she finished her lunch en route to the elevators she slipped on a puddle of

water on the floor and fell injuring her neck, back, wrist, knee, foot, pelvis, and ribs. Burch filed

suit to recover for her injuries. Texas Health filed a motion to dismiss asserting that Burch’s

claim was a health care liability claim governed by chapter 74 of the Texas Civil Practice &

Remedies Code and that Burch failed to comply with the chapter’s requirements when she did

not serve an expert report on Texas Health within the statute’s 120-day deadline. The trial court

denied Texas Health’s motion to dismiss and Texas Health perfected this appeal.

ANALYSIS

Texas Health asserts that the trial court erred in failing to dismiss Burch’s claim under

section 74.351 of the Texas Civil Practice & Remedies Code. Specifically, Texas Health argues

that Burch’s claim involves the safety component of a health care liability claim thus making her

suit subject to the requirements of chapter 74. One such requirement is that a claimant must

serve an expert report in support of a health care liability claim no later than 120 days after the

original answer was filed or the claim must be dismissed with prejudice. See TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351 (West. Supp. 2014). The resolution of this issue depends on whether

Burch’s claim is a health care liability claim as defined by chapter 74 of the Texas Civil Practice

and Remedies Code. Whether a cause of action is a health care liability claim is a question of

law which we review de novo. See Sherman v. HealthSouth Specialty Hosp., Inc., 397 S.W.3d

869, 872 (Tex. App.—Dallas 2013, pet. denied).

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 Under the Texas Civil Practice & Remedies Code, a “health care liability claim” is

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

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West. Supp. 2014). Texas Health

relies on the supreme court’s opinion in Texas West Oaks Hospital, LP v. Williams for the

proposition that, although Burch’s claim is unrelated to any health care provided to Burch, a

claim against a health care provider or physician involving a departure from accepted standards

of safety need not be directly related to the provision of health care. 371 S.W.3d 171, 186 (Tex.

2012). In Williams, the claimant—a psychiatric technician and professional caregiver at Texas

West Oaks Hospital—alleged that the hospital failed to provide a safe workplace because it did

not properly train him to work with potentially violent psychiatric patients. Id. at 192–93. After

a physical altercation occurred with the patient, Williams asserted claims of negligence against

his employer, the hospital. Id. at 175. The Texas Supreme Court concluded that the claims

against the hospital constituted health care liability claims and required an expert report.

Subsequent opinions by this court have interpreted Williams to stand for the proposition

that although a safety claim under Chapter 74 need not be directly related to health care, a safety

claim can neither be completely unrelated to health care. See Baylor Univ. Med. Ctr. v. Lawton,

442 S.W.3d 483, 487 (Tex. App.—Dallas 2013, pet. filed) (“Although a safety claim under

Chapter 74 need not be ‘directly related to health care,’ the converse—that a safety claim falls

within the ambit of Chapter 74 even when it is completely untethered from health care—is not

the way we or the Twilley Court understood the Williams holding. In Williams, the safety claim

was indirectly related to health care.”); Methodist Hosps. of Dallas v. Garcia, No. 05-13-01307-

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CV, 2014 WL 2003121 (Tex. App.—Dallas May 14, 2014, no pet.) (no health care liability

claim where claimant was at hospital visiting her daughter and suffered injuries when an elevator

fell from second floor to first floor); DHS Mgmt. Serv., Inc. v. Castro, 435 S.W.3d 919 (Tex.

App.—Dallas 2014, no pet.) (no health care liability claim when driver of a van containing

imaging equipment struck another car causing injuries during morning commute); Methodist

Hosps. of Dallas v. Searcy, No. 05-14-00375-CV, 2014 WL 5804193 (Tex. App.—Dallas Nov.

10, 2014, no pet.) (no health care liability claim where claimant was at hospital visiting her

daughter and suffered injuries when she slipped and fell on a wet floor); McKelvy v. Columbia

Med. Ctr. of McKinney Subsidiary, L.P., No. 05-13-00990-CV, 2015 WL 169656 (Tex. App.—

Dallas Jan. 14, 2015, no pet. h.) (no health care liability claim when employee filed claims

against hospital for a slip and fall due to a leaking piece of lab equipment).

In this case, Burch’s claim is not related directly or indirectly to health care or to any

provision of health care. To the contrary, Burch simply alleged in this case that she slipped and

fell on a puddle of water near the elevators where she ate lunch during a visit to her mother at

Texas Health’s hospital. Burch makes a claim only for herself and does not make a claim

derivative of any care or treatment provided to her mother. This Court has previously held on

numerous occasions that the mere fact that the alleged injuries occurred at a hospital is

insufficient to transform a negligence claim into a health care liability claim. See DHS Mgmt.

Serv., Inc., 435 S.W.3d at 922; Methodist Hosps. of Dallas, 2014 WL 2003121, at *2; Baylor

Univ. Med. Ctr., 442 S.W.3d at 487. It has been our consistent position that although a safety

claim need not have a direct relationship with health care, an indirect relationship with health

care is required. See id. Accordingly, we resolve Texas Health’s issue against it.

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 CONCLUSION

We resolve Texas Health’s issue against it and affirm the trial court’s judgment.

/ David Evans/
140665F.P05 DAVID EVANS
JUSTICE

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

TEXAS HEALTH PRESBYTERIAN On Appeal from the County Court at Law
HOSPITAL DALLAS, Appellant No. 4, Dallas County, Texas
Trial Court Cause No. CC-13-06083-D.
No. 05-14-00665-CV V. Opinion delivered by Justice Evans.
Justices Brown and Schenck participating.
DENA BURCH, Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

It is ORDERED that appellee DENA BURCH recover her costs of this appeal from
appellant TEXAS HEALTH PRESBYTERIAN HOSPITAL DALLAS.

Judgment entered this 22nd day of January, 2015.

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