IN THE SUPREME COURT OF TEXAS
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NO . 13-0439
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LEZLEA ROSS, PETITIONER,
v.
ST. LUKE’S EPISCOPAL HOSPITAL, RESPONDENT
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
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Argued November 5, 2014
JUSTICE JOHNSON delivered the opinion of the Court.
JUSTICE LEHRMANN filed a concurring opinion, in which JUSTICE DEVINE joined.
JUSTICE BROWN did not participate in the decision.
In this case a visitor to St. Luke’s Episcopal Hospital sued the hospital on a premises liability
theory after she slipped and fell near the lobby exit doors. The issue is whether her suit is a health
care liability claim under the Texas Medical Liability Act. See TEX . CIV . PRAC. & REM . CODE
ch. 74. The trial court and court of appeals concluded that it is. We hold that it is not, because the
record does not demonstrate a relationship between the safety standards she alleged the hospital
breached—standards for maintaining the floor inside the lobby exit doors—and the provision of
health care, other than the location of the occurrence and the hospital’s status as a health care
provider.
We reverse and remand to the trial court for further proceedings.
I. Background
Lezlea Ross accompanied a friend who was visiting a patient in St. Luke’s Episcopal
Hospital. Ross was leaving the hospital through the lobby when, as she approached the exit doors,
she slipped and fell in an area where the floor was being cleaned and buffed. She sued St. Luke’s
and Aramark Management Services, a company that contracted with the hospital to perform
maintenance services, on a premises liability theory. Aramark is not a party to this appeal.
After Ross filed suit we decided Texas West Oaks Hospital, L.P. v. Williams, 371 S.W.3d 171
(Tex. 2012). There we held, in part, that when a safety standards-based claim is made against a
health care provider, the Texas Medical Liability Act (TMLA), TEX . CIV . PRAC . & REM . CODE
ch. 74, does not require the safety standards to be directly related to the provision of health care in
order for the claim to be a health care liability claim (HCLC). Williams, 371 S.W.3d at 186. Relying
on Williams, the hospital asserted that Ross’s claim was an HCLC and moved for dismissal of her
suit because she failed to serve an expert report. See TEX . CIV . PRAC. & REM . CODE § 74.351(a), (b)
(requiring dismissal of an HCLC if a claimant fails to timely serve an expert report); Williams, 371
S.W.3d at 186.
The trial court granted the motion to dismiss. The court of appeals affirmed. Ross v. St.
Luke’s Episcopal Hosp., ___ S.W.3d ___ (Tex. App.—Houston [14th Dist.] 2013). The appeals
court concluded that under Williams it is not necessary for any connection to exist between health
care and the safety standard on which a claim is based in order for the claim to come within the
TMLA. Id. at ___.
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Ross asserts that the lower courts erred because claims based on departures from “accepted
standards of safety” do not come within the provisions of the TMLA unless there is at least some
connection between the standards underlying the allegedly negligent actions and the provision of
health care, even if they are not directly related. She then argues that her claims are not HCLCs
because the hospital’s alleged negligence is completely unrelated to the provision of health care.
The hospital responds with three arguments. It first urges that we lack jurisdiction. See TEX .
GOV ’T CODE § 22.001(a)(2), (3), (6). It next asserts that even if we have jurisdiction, Ross waived
the issue of whether her claim is an HCLC because she failed to properly brief and urge it in the
court of appeals. Third, the hospital addresses the merits by asserting that the court of appeals
correctly held that a safety standards-based claim need not be related to health care to fall within the
TMLA’s provisions, but in any event Ross’s claims are related to accepted standards of patient safety
because she fell inside the hospital.
We first address our jurisdiction. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex.
2012) (noting that if a court does not have jurisdiction, its opinion addressing any issues other than
its jurisdiction is advisory).
II. Jurisdiction
Texas Civil Practice and Remedies Code § 51.014(a)(10) permits an appeal from an
interlocutory order granting relief sought by a motion to dismiss an HCLC for failure to file an expert
report. Generally, the court of appeals’ judgment is final on interlocutory appeals. See TEX . GOV ’T
CODE § 22.225(b)(3). However, we have jurisdiction if the justices of the court of appeals disagree
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on a question of law material to the decision, or if a court of appeals holds differently from a prior
decision of another court of appeals or this Court. Id. § 22.225(c).
Ross asserts that this Court has jurisdiction because the court of appeals’ opinion in this case
conflicts with Good Shepherd Medical Center-Linden, Inc. v. Twilley, 422 S.W.3d 782 (Tex.
App.—Texarkana 2013, pet. denied). In that case, Bobby Twilley, the director of plant operations
for a medical center, asserted premises liability claims against his employer after he fell from a
ladder and also tripped over a mound of hardened cement. Id. at 783. The medical center moved
for dismissal under the TMLA because Twilley failed to file an expert report. Id. at 783-84. The
trial court denied the motion and the medical center appealed, arguing that even though Twilley’s
claims were unrelated to the provision of health care, under Williams they still fell within the ambit
of the TMLA. The court of appeals interpreted Williams as holding that a safety standards-based
claim need not be directly related to the provision of health care to be an HCLC. Id. at 789. The
court stated, however, that it did not understand Williams to hold that a safety standards claim falls
under the TMLA when the claim is completely untethered from health care. Id. The appeals court
concluded that at least an indirect relationship between the claim and health care is required and,
because Twilley’s claims did not have such a relationship, an expert report was not required. Id. at
785.
In this case the court of appeals held that under Williams “a connection between the act or
omission and health care is unnecessary for purposes of determining whether Ross brings an HCLC.”
Ross, ___ S.W.3d at ___. The hospital asserts that the decision of the court of appeals and Twilley
do not conflict. But, for purposes of our jurisdiction, one court holds differently from another when
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there is inconsistency in their decisions that should be clarified to remove unnecessary uncertainty
in the law. TEX . GOV ’T CODE § 22.001(e). As other courts of appeals have noted, Ross and Twilley
are inconsistent in their interpretations of Williams and the TMLA, leaving uncertainty in the law
regarding whether a safety standards-based claim must be related to health care. See, e.g.,
Weatherford Tex. Hosp. Co. v. Smart, 423 S.W.3d 462, 467-68 (Tex. App.—Fort Worth 2014, pet.
filed); DHS Mgmt. Servs., Inc. v. Castro, 435 S.W.3d 919, 922 & n.3 (Tex. App.—Dallas 2014, no
pet.). That being so, we have jurisdiction and move to the hospital’s waiver claim.
III. Waiver
The hospital argues that Ross waived any challenge to her claim being classified as an HCLC
by failing to argue the point or cite relevant authority in the court of appeals. We disagree.
A brief in the court of appeals “must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.” TEX . R. APP . P. 38.1(I). Failure
to provide citations or argument and analysis as to an appellate issue may waive it. See ERI
Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010).
In her court of appeals brief, Ross discussed the purpose of the TMLA and asserted that
classifying her claim as an HCLC would conflict with the Government Code. See TEX . GOV ’T CODE
§ 311.021(3) (providing that when a statute is enacted, there is a presumption that “a just and
reasonable result is intended”). The court of appeals implicitly determined that Ross’s citations and
argument were enough to avoid waiver because it addressed the issue. See Republic Underwriters
Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004) (concluding that an argument in the
court of appeals was not waived and noting that “we have instructed the courts of appeals to construe
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the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by
imposing requirements not absolutely necessary to effect the purpose of a rule” (quoting Verburgt
v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997))). We agree with the court of appeals that Ross did
not waive the issue.
IV. Health Care Liability Claims
The merits of the appeal require us to review the lower courts’ construction of the TMLA.
Under such circumstances our review is de novo, Williams, 371 S.W.3d at 177, and our goal is to
give effect to legislative intent. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013). In
determining that intent we look first and foremost to the language of the statute. City of Rockwall
v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). We construe a statute’s words according to their plain
and common meaning unless they are statutorily defined otherwise, a different meaning is apparent
from the context, or unless such a construction leads to absurd or nonsensical results. See Tex.
Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). Determining
legislative intent requires that we consider the statute as a whole, reading all its language in context,
and not reading individual provisions in isolation. See Union Carbide Corp. v. Synatzske, 438
S.W.3d 39, 51 (Tex. 2014).
The TMLA defines a health care liability claim 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 to or death of a claimant, whether the
claimant’s claim or cause of action sounds in tort or contract.
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TEX . CIV . PRAC. & REM . CODE § 74.001(a)(13). This Court construed “safety” under the prior
statute 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 BLACK’S LAW DICTIONARY 1336 (6th ed. 1990)). We also
recognized that the Legislature’s inclusion of the word “safety” in the statute expanded the statute’s
scope beyond what it would be if the statute only included the terms medical care and health care.
Id. The Court explained its disagreement with the position of Chief Justice Jefferson who, in a
concurring opinion, argued that some of the patient’s claims arising from an assault by another
patient were premises liability claims:
Rubio is not complaining about an unlocked window that gave an intruder access to
the facility or a rickety staircase that gave way under her weight. All of her claims
arise from acts or omissions that are inseparable from the provision of health care.
We do not distinguish Rubio’s health care claims from premises liability claims
“simply because the landowner is a health care provider” but because the gravamen
of Rubio’s complaint is the alleged failure of Diversicare to implement adequate
policies to care for, supervise, and protect its residents who require special, medical
care.
Id. at 854.
The Legislature added the phrase “or professional or administrative services directly related
to health care” to the definition of health care liability claim in 2003. Compare Act of May 30, 1977,
65th Leg., R.S., ch. 817, § 1.03(a)(4), 1977 Tex. Gen. Laws 2039, 2041, repealed by Act of June 2,
2003, 78th Leg., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (absence of language), with TEX .
CIV . PRAC. & REM . CODE § 74.001(a)(13) (language added). After that statutory amendment we
addressed the “safety” part of the definition in Omaha Healthcare Ctr., L.L.C. v. Johnson, 344
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S.W.3d 392 (Tex. 2011), and Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525 (Tex. 2011).
Although the claims in both cases alleged general negligence, they were HCLCs because the
underlying nature of the claims involved violations of safety standards directly related to the
provision of health care, including protecting patients. Johnson, 344 S.W.3d at 394-95 (nursing
home patient’s death caused by a brown recluse spider); Ollie, 342 S.W.3d at 527 (post-operative
patient’s slip and fall on a wet bathroom floor). But given that the claims were based on injuries to
patients and were directly related to the provision of health care, we did not address the issue of
whether safety standard-based claims must be directly related to health care in order for them to be
HCLCs. Johnson, 344 S.W.3d at 394 n.2; Ollie, 342 S.W.3d at 527 n.2.
The next year we considered whether a psychiatric technician’s claims for injuries in an
altercation with a patient were HCLCs. Williams, 371 S.W.3d at 181. In reaching our decision we
specifically and separately analyzed both whether the claims were based on the health care provider’s
allegedly departing from standards for health care, and whether they were also based on its allegedly
departing from standards for safety. Id. at 180-86. Regarding the safety standards issue, we
reviewed the definition of HCLC and determined that the phrase “directly related to health care”
modified the terms immediately before it—professional or administrative services—but not the word
safety. Id. at 185. We said that “Williams’[s] claims are indeed for departures from accepted
standards of safety. We conclude that the safety component of HCLCs need not be directly related
to the provision of health care and that Williams’[s] claims against West Oaks implicate this prong
of HCLCs.” Id. at 186. Because we also concluded that Williams’s claims were HCLCs because
they were for departures from health care standards, our decision that his claims were HCLCs rested
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on alternative holdings that are both entitled to stare decisis treatment: the claims were for departures
from health care standards and they were for departures from safety standards. Id.; see State Farm
Mut. Auto. Ins. Co. v. Lopez, 156 S.W.3d 550, 554 (Tex. 2004) (distinguishing alternative holdings
from dictum).
The purpose of the TMLA’s expert report requirement is not to have claims dismissed
regardless of their merits, but rather it is to identify and deter frivolous claims while not unduly
restricting a claimant’s rights. Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011). And the
Legislature did not intend for the expert report requirement to apply to every claim for conduct that
occurs in a health care context. See Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012). For
example, in Loaisiga patients claimed that a doctor improperly touched them during the course of
medical exams and thereby assaulted them. 379 S.W.3d at 253. The trial court concluded that the
claim was not an HCLC and the court of appeals affirmed. Id. at 254. We pointed out that the
statutory definition of “health care” is broad (“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(10)), and that if the facts underlying a claim could support claims against a physician or
health care provider for departures from accepted standards of medical care, health care, or safety
or professional or administrative services directly related to health care, the claims were HCLCs
regardless of whether the plaintiff alleged the defendants were liable for breach of the standards. See
Loaisiga, 379 S.W.3d at 255. But that being so, we further explained:
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we fail to see how the Legislature could have intended the requirement of an expert
report to apply under circumstances where the conduct of which a plaintiff complains
is wholly and conclusively inconsistent with, and thus separable from, the rendition
of “medical care, or health care, or safety or professional or administrative services
directly related to health care” even though the conduct occurred in a health care
context. See TEX . CIV . PRAC. & REM . CODE § 74.001(a)(13); see also TEX . GOV ’T
CODE § 311.021 (“In enacting a statute, it is presumed that . . . a just and reasonable
result is intended . . . .”).
Id. at 257. Our reasoning led to the conclusion that a patient’s claim against a medical provider for
assault during a medical examination is not an HCLC if the only possible relationship between the
alleged improper conduct and the rendition of medical services or health care was the setting in
which the conduct took place. Id.
In this case, the hospital advances two positions in support of the lower courts’ rulings and
its assertion that Ross’s claim is an HCLC. First, it addresses slip and fall claims generally, and says
that any slip and fall event within a hospital is directly related to health care because it necessarily
is related to the safety of patients. Second, it focuses on Ross’s claim specifically and argues that
her claim is related to health care because she alleges the hospital breached standards applicable to
maintaining a safe environment for patients. We disagree with both positions.
As to the hospital’s first contention, even 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. See Loaisiga, 379 S.W.3d at 257.
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As to its second contention, Ross alleged that the hospital failed to exercise reasonable care
in making the floor safe. The standards Ross says the hospital breached regarding maintenance of
its floor may be the same as the hospital’s standards for maintaining a safe environment in patient
care areas—but those may also be the same standards many businesses generally have for
maintaining their floors. And the hospital does not claim, nor does the record show, that the area
where Ross fell was a patient care area or an area where patients possibly would be in the course of
the hospital’s providing health care services to them. Nor does the hospital reference support in the
record for the position that the area had to meet particular cleanliness or maintenance standards
related to the provision of health care or patient safety. See Ollie, 342 S.W.3d at 527 (“[S]ervices
a hospital provides its patients necessarily include those services required to meet patients’
fundamental needs such as cleanliness . . . and safety.”). Which leads to the question of whether
Ross’s claims are nevertheless HCLCs, as the hospital would have us hold.
The TMLA does not specifically state that a safety standards-based claim falls within its
provisions 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. But the Legislature must have
intended such a relationship to be necessary, given the legislative intent explicitly set out in the
TMLA and the context in which “safety” is used in the statute. We said as much in Loaisiga. 379
S.W.3d at 257. Even though the statute’s phrase “directly related to health care” does not modify
its reference to safety standards, that reference occurs within a specific context, which defines an
HCLC to be “a cause of action against a health care provider or physician for [a] treatment, [b] lack
of treatment, [c] or other claimed departure from accepted standards of medical care, or health care,
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or safety.” TEX . CIV . PRAC. & REM . CODE § 74.001(a)(13). Where the more specific items, [a] and
[b], are followed by a catchall “other,” [c], the doctrine of ejusdem generis teaches that the latter
must be limited to things like the former.1 And here, the catchall “other” itself refers to standards
of “medical care” or “health care” or “safety.” Considering the purpose of the statute, the context of
the language at issue, and the rule of ejusdem generis, we conclude that the safety standards referred
to in the definition are those that have a substantive relationship with the providing of medical or
health care. And if it were not so, the broad meaning of “safety” would afford defendant health care
providers a special procedural advantage in the guise of requiring plaintiffs to file expert reports in
their suits regardless of whether their cause of action implicated the provision of medical or health
care. We do not believe the Legislature intended the statute to have such arbitrary results. See TEX .
GOV ’T CODE § 311.021 (“In enacting a statute, it is presumed that . . . a just and reasonable result
is intended . . . .”); Synatzske, 438 S.W.3d at 54 (declining to attribute to the Legislature an intent
to require a meaningless, arbitrary procedural hurdle for injured persons to bring suit).
Thus, we conclude that for a safety standards-based claim to be an HCLC there must be a
substantive nexus between the safety standards allegedly violated and the provision of health care.
And that nexus must be more than a “but for” relationship. That is, the fact that Ross, a visitor and
not a patient, would not have been injured but for her falling inside the hospital is not a sufficient
1
Hilco Elec. Co-op. v. Midlothian Butane Gas Co., 111 S.W .3d 75, 81 (Tex. 2003) (“[T]he rule of ejusdem
generis . . . provides that when words of a general nature are used in connection with the designation of particular objects
or classes of persons or things, the meaning of the general words will be restricted to the particular designation.”); see
also A N TO N IN S CALIA & B RY AN A. G ARN ER , R EAD IN G L AW : TH E I N TERPRETATIO N O F L EGAL T EXTS 199 (2012) (“W here
general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind
or class specifically mentioned.”).
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relationship between the standards Ross alleges the hospital violated and the hospital’s health care
activities for the claim to be an HCLC. As we recognized in Loaisiga, “[i]n 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.” 379 S.W.3d at 256. But
although the mere location of an injury in a health care facility or in a health care setting does not
bring a claim based on that injury within the TMLA so that it is an HCLC, the fact that the incident
could have occurred outside such a facility or setting does not preclude the claim from being an
HCLC. 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.
As this case demonstrates, the line between a safety standards-based claim that is not an
HCLC and one that is an HCLC may not always be clear. But certain non-exclusive considerations
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 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;
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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?
Measuring Ross’s claim by the foregoing considerations, it is clear that the answer to each
is “no.” The record does not show that the cleaning and buffing of the floor near the exit doors was
for the purpose of protecting patients. Nor does the record reflect that the area where Ross fell was
one where patients might be during their treatment so that the hospital’s obligation to protect patients
was implicated by the condition of the floor at that location. Ross was not seeking or receiving
health care, nor was she a health care provider or assisting in providing health care at the time she
fell. There is no evidence the negligence alleged by Ross was based on safety standards arising from
professional duties owed by the hospital as a health care provider. There is also no evidence that the
equipment or materials used to clean and buff the floor were particularly suited to providing for the
safety of patients, nor does the record demonstrate that the cleaning and buffing of the floor near the
exit doors was to comply with a safety-related requirement set for health care providers by a
governmental or accrediting authority.
V. Conclusion
Under this record Ross’s claim is based on safety standards that have no substantive
relationship to the hospital’s providing of health care, so it is not an HCLC. Because her claim is
not an HCLC, she was not required to serve an expert report to avoid dismissal of her suit. We
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reverse the judgment of the court of appeals and remand the case to the trial court for further
proceedings.
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: May 1, 2015
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