IN THE SUPREME COURT OF TEXAS
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NO . 12-0388
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PSYCHIATRIC SOLUTIONS, INC. AND MISSION VISTA BEHAVIORAL HEALTH
SERVICES, INC. D/B/A MISSION VISTA BEHAVIORAL HEALTH CENTER,
PETITIONERS,
v.
KENNETH PALIT , RESPONDENT.
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
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JUSTICE BOYD , joined by JUSTICE LEHRMANN , concurring.
I agree with the Court’s conclusion that Palit’s claims are health care liability claims subject
to the Texas Medical Liability Act (TMLA), and I agree with the Court’s disposition of those claims,
which is consistent with the Court’s prior decision in Texas West Oaks Hospital, L.P. v. Williams,
371 S.W.3d 171 (Tex. 2012). I do not agree, however, with the West Oaks majority’s broad
construction of the “safety standards” component of the TMLA’s definition of a “health care liability
claim.” Although this disagreement does not alter the proper disposition of this case, it relates to an
important issue that I anticipate the Court will face again in future cases. I therefore concur in the
Court’s judgment, but write separately to express and explain the nature of my disagreement.
The Texas Legislature has defined a “health care liability claim” to mean “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 sounds in tort or contract.” TEX . CIV .
PRAC. & REM . CODE § 74.001(a)(13). Prior to 2003, this definition included only “claimed
departure[s] from accepted standards of medical care, or health care, or safety”—that is, it did not
include the language “or professional or administrative services directly related to health care.” Act
of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(a)(4), 1977 TEX . GEN . LAWS 2039, 2041 (former
TEX . REV . CIV . STAT . art. 4590i, § 1.03(a)(4)), repealed by Act of June 2, 2003, 78th Leg., R.S., ch.
204, § 10.09, 2003 TEX . GEN . LAWS 847, 884.
This Court has struggled to reach a consensus on the meaning of the word “safety,” as used
in both the prior and current versions of the statute. Under the prior version, a five-member majority
of the Court first held that the Legislature’s inclusion of the reference to “safety” standards “expands
the scope of the statute beyond what it would be if it only covered medical and health care,” and thus
includes “[p]rofessional supervision, monitoring, and protection of the patient population.”
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex. 2005) (Wainwright, J., joined
by Hecht, Medina, Johnson, and Willett, JJ., joined by Jefferson, C.J. as to Part III.B.3 (“Safety”)).
Chief Justice Jefferson joined the Court’s discussion of “safety” and concluded in his concurring and
dissenting opinion that the “statute’s plain text” and “plain meaning” did not limit safety claims only
to those that “involve health care” or “safety as it relates to the provision of health care.” Id. at
860–61 (Jefferson, C.J., concurring in part and dissenting in part). Dissenting from the judgment,
three Justices disagreed with Chief Justice Jefferson and agreed instead “with the Court” that the Act
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encompassed “safety” claims only “when those claims are directly related to the provision of health
care.” Id. at 866 (O’Neill, J., dissenting, joined by Brister and Green, JJ.).
The Court addressed the prior version of the statute again in Marks v. St. Luke’s Episcopal
Hospital, 319 S.W.3d 658 (Tex. 2010). There, two members of the Court concluded that a cause of
action alleging departures from accepted safety standards is a health care liability claim only if the
safety standards are “an inseparable or integral part of the patient’s care or treatment,” and held that
the plaintiff’s claims did, in fact, involve “an integral and inseparable part of the health care services
provided” to him. Id. at 664 (Medina, J., joined by Hecht, J.).1 Four Justices disagreed that the
plaintiff’s claims involved an integral component of his treatment, but noted that the claims would
have satisfied the broader construction of the “safety” that Chief Justice Jefferson advocated in
Diversicare, which the Court had rejected. Id. at 675–76 (Jefferson, C.J., joined by Green, Guzman,
and Lehrmann, JJ., concurring in part and dissenting in part). Two other Justices separately
concurred and expressly agreed with Chief Justice Jefferson’s broader construction of the “safety”
component in Diversicare. Id. at 672–74 (Johnson, J., joined by Willett, J., concurring).2 One
Justice declined to join any of the others’ constructions of “safety” because “it is not necessary in
this case, as it was not in Diversicare, to define the precise scope of ‘safety’ under the [Act].” Id.
at 667 (Wainwright, J., concurring).
1
Justices W ainwright, Johnson, and W illett joined other parts of Justice Medina’s opinion, including the
disposition.
2
Justices Hecht and W ainwright joined other parts of Justice Johnson’s concurring opinion.
3
More recently, in West Oaks, the Court addressed the statute’s current definition of a “health
care liability claim,” and a six-member majority held that “the safety component of [health care
liability claims] need not be directly related to the provision of health care.” West Oaks, 371 S.W.3d
at 186. The Court concluded, inter alia, that the Legislature intended that the new phrase “directly
related to health care” modify only the newly-added terms “professional or administrative services,”
and not the previously-existing term “safety.” Id. at 185. The Court thus construed the statute to
mean that any cause of action against a health care provider or physician claiming departure from
accepted standards of “safety” is a health care liability claim, even if the safety standards are not
“directly related to health care.” Id. at 186. Three Justices dissented in West Oaks, concluding that,
in adopting the 2003 amendments, the Legislature intended that the new phrase “directly related to
health care” modify the term “safety” as well as the terms “professional or administrative services.”
See id. at 198–99 (Lehrmann, J., joined by Medina and Willett, JJ., dissenting). They read the statute
to mean that a cause of action claiming departure from accepted standards of “safety” is a health care
liability claim only if it “arise[s] from a breach of a health care provider’s duty to adequately ensure
a patient’s safety in providing health care services.” Id. at 198.
As in West Oaks, the current statutory definition of a “health care liability claim” governs this
case. I agree with the Justices who dissented in that case. For three primary reasons, I conclude that
the Legislature intended the phrase “directly related to health care” to modify the term “safety” as
well as the terms “professional or administrative services,” and thus claims asserting a departure
from accepted safety standards are health care liability claims only if the safety standards are
“directly related to health care.”
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First, I believe this construction is required in light of the statutory context and under the
principle of ejusdem generis. See Marks, 319 S.W.3d at 663 (observing that “the principle of
ejusdem generis warns against expansive interpretations of broad language that immediately follows
narrow and specific terms, and counsels us to construe the broad in light of the narrow”). Even
before the Legislature added the phrase “directly related to health care,” some Justices on this Court
concluded that, for this reason and others, the statute’s reference to safety standards included only
those standards related to patient care or treatment. See Marks, 319 S.W.3d at 663–64 (plurality op.);
Diversicare, 185 S.W.3d 866 (O’Neill, J., joined by Brister and Green, JJ., dissenting). Several of
these Justices concluded that the Legislature’s later addition of the phrase “or professional or
administrative services directly related to health care” after the term “safety” indicates the
Legislature’s agreement with the narrower construction of the term “safety.” See Diversicare, 185
S.W.3d 867 (O’Neill, J., joined by Brister and Green, JJ., dissenting). Reading the statutory
language in context, I agree that the most appropriate conclusion is that the Legislature added the
phrase “directly related to health care” to modify the term “safety” as well as the terms “professional
or administrative services.”
Second, I believe we must attribute meaning to the Legislature’s choice not to insert a comma
after the word “safety” when it inserted the phrase “or professional or administrative services directly
related to health care.” Although I acknowledge the debate over usage of the Oxford or “serial”
comma,3 I necessarily attribute meaning to the lack of such usage in this instance. By inserting a
3
See Omaha Healthcare Ctr., L.L.C. v. Johnson, 246 S.W .3d 278, 282 (Tex. App.— Texarkana 2008)
(discussing use of serial comma and debate), rev’d on other grounds 344 S.W .3d 392 (Tex. 2011) and abrogated by Tex.
W. Oaks Hosp., LP v. Williams, 371 S.W .3d 171 (Tex. 2012); see also Lynne Truss, E ATS , S H O O TS & L EAVES : T H E Z ERO
T O LERAN CE A PPRO ACH TO P U N CTU ATIO N (Gotham 2004) (“There are people who embrace the Oxford comma, and
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comma after “safety,” the Legislature would have clearly indicated its intent to separate that term
from the newly-added language, so that health care liability claims would include claims alleging
a departure from accepted standards of:
1. medical care, or
2. health care, or
3. safety, or
4. professional or administrative services directly related to health care . . .
By choosing not to insert the comma, the Legislature instead tied the term “safety” to the new
language, so that health care liability claims include claims alleging a departure from accepted
standards of:
1. medical care, or
2. health care, or
3. safety or professional or administrative services directly related to health care . . .
In my view, we must read the Legislature’s choice not to insert a comma after “safety” as an
indication of its intent that “safety” be included with “professional or administrative services,” and
thus modified by the requirement that the claim be “directly related to health care.”
Finally, as other Justices have noted, this construction is most consistent with the purposes
of the TMLA. See id.; Marks, 319 S.W.3d at 663–64. The Legislature enacted the TMLA’s
predecessor statute in 1977 for the express purpose of relieving a “crisis [having] a material adverse
effect on the delivery of medical and health care in Texas.” West Oaks, 371 S.W.3d at 177 (quoting
people who don’t, and I’ll just say this: never get between these people when drink has been taken.”).
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Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02(6), 1977 TEX . GEN . LAWS 2039, 2040
(repealed 2003)); Marks, 319 S.W.3d at 663 (same). In 2003, when the Legislature codified the
TMLA and amended the definition of a health care liability claim, it noted that the State was “facing
another ‘medical malpractice insurance crisis’ and a corresponding ‘inordinate[]’ increase in the
frequency of [health care liability claims] filed since 1995.” West Oaks, 371 S.W.3d at 177 (quoting
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(a), 2003 TEX . GEN . LAWS 847, 884); Marks,
319 S.W.3d at 663 (same). The purpose of both the original statute and the 2003 amendments was
to address crises affecting “medical and health care” and “medical malpractice insurance.”
As Justice Medina observed in Marks, “given the object of the statute and the Legislature’s
express concern, it is apparent that the Legislature did not intend for standards of safety to extend
to every negligent injury that might befall a patient.” Marks, 319 S.W.3d at 664. Construing section
74.001(a)(13) to encompass all “safety” claims takes the statute far beyond the Legislature’s stated
purpose. For example, if a hospital visitor who is assaulted at night in the hospital’s parking lot sues
the hospital alleging that the hospital failed to provide adequate lighting and security, the visitor’s
claim would be a health care liability claim under the Court’s holding West Oaks. Unless I assume
that the Legislature intentionally avoids the use of the Oxford comma, I am aware of nothing in the
TMLA that indicates their intent to accomplish something so far outside the stated purpose of the
statute and its amendments. I cannot attribute such great weight to such an assumption.
So far, the Court’s disagreements over the construction of the statute have been of little
consequence, because each time we have held that a claim satisfied the “safety” component we have
also held the claim satisfied the “health care” component or that the safety standards were directly
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related to health care. See West Oaks, 371 S.W.3d at 181 (holding that hospital caregiver injured by
mental health patient under his supervision asserted health care liability claims “based on claimed
departures from accepted standards of health care”); Marks, 319 S.W.3d at 666 (holding that claim
of recovering surgical patient injured when hospital bed footboard collapsed was a health care
liability claim “[b]ecause the provision of a safe hospital bed was an inseparable part of the health
care services provided during [the patient’s] convalescence from back surgery”); Diversicare, 185
S.W.3d at 849 (concluding that claims against nursing home for failing to prevent sexual assault by
another patient were “claims for breaches of the standard of care for a health care provider because
the supervision of Rubio and the patient who assaulted her and the protection of Rubio are
inseparable from the health care and nursing services provided to her”).
Here too, Palit alleges that Mission Vista departed from safety standards that, in my view,
are “directly related to health care,” so these claims are health care liability claims under section
74.001(a)(13).4 Thus, although I disagree with the Court’s construction of the statute, I concur in
the Court’s judgment. In light of the difficulty that the Court has had in reaching a consensus about
the meaning of this statute, and because I anticipate that the Court will one day be required to address
claims based on safety standards that are not directly related to health care, I write separately to
express and explain my disagreement with the Court’s construction.
4
As the Court agrees, Palit’s claims “arise from an incident similar to that in West Oaks,” ante at ___, and “[a]s
in West Oaks, [Palit’s] allegations fall under both the safety and health care components of [a health care liability
claim].” Ante at ___. As to the safety claims issue, this case is essentially identical to West Oaks, and it was as
unnecessary to address the issue in West Oaks as it is to do so here; or, alternatively, it is as necessary to do so here as
it was to do so there. If addressing the issue here constitutes an “advisory” opinion, then the Court’s addressing of the
issue in West Oaks was also an advisory opinion and the issue remains unresolved, which is exactly why I have addressed
it here.
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_______________________________________
Jeffrey S. Boyd
Justice
OPINION DELIVERED: August 23, 2013
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