Memorial Hermann Hospital System D/B/A Memorial Hermann Southwest Hospital v. Sylvia Galvan

Reversed and Remanded and Majority and Concurring Opinions filed January 28,
2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00120-CV

MEMORIAL HERMANN HOSPITAL SYSTEM D/B/A MEMORIAL
HERMANN SOUTHWEST HOSPITAL, Appellant

V.

SYLVIA GALVAN, Appellee

On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2012-52629

CONCURRING OPINION
I agree with the majority’s disposition because we already have crossed this
bridge; the result here is dictated by Ross v. St. Luke’s Episcopal Hospital, No. 14-12-
00885-CV, 2013 WL 1136613, at *1–2 (Tex. App.—Houston [14th Dist.] Mar. 19,
2013, pet. filed) (mem. op.). I write separately to suggest that we should retrace our
steps over the bridge and address anew whether a slip-and-fall claim by a hospital
visitor is a health care liability claim under Chapter 74 of the Civil Practice and
Remedies Code.
 Every new law student quickly learns the legal reasoning process in which a
professor first posits a rule, and then explores how the rule applies to a series of
increasingly attenuated factual scenarios; eventually, a vanishing point is reached at
which applying the rule to a particular situation no longer serves the purpose for which
the rule was formulated. Thus is the student introduced to the concept of legal line-
drawing.

No one disputes that a “[h]ealth care liability claim” encompasses a patient’s
claim against a doctor for professional negligence in providing medical treatment. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (Vernon Supp. 2013). This concept
potentially reaches a patient’s claim that a doctor committed an assault during an exam.
Loaisiga v. Cerda, 379 S.W.3d 248, 257 (Tex. 2012). Additionally, it encompasses a
hospital employee’s negligence claim for injuries to the employee arising from the
employee’s patient care activities. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d
171, 183–86 (Tex. 2012); see also Psychiatric Solutions, Inc. v. Palit, No. 12-0388,
__S.W.3d__, __, 2013 WL 4493118, at *2 (Tex. Aug. 23, 2013); CHCA Bayshore, L.P.
v. Salazar, No. 14-12-00928-CV, 2013 WL 1907888, at *1–5 (Tex. App.—Houston
[14th Dist.] May 7, 2013, pet. denied) (mem. op.). All of these scenarios have at least
some direct or indirect relation to the delivery of health care services to patients.

I believe the vanishing point has been reached when a claim by a non-patient,
non-employee hospital visitor who allegedly slips on water in the hallway is treated as a
Chapter 74 health care liability claim requiring a Chapter 74 expert report. This claim
differs in detail, but not in concept, from a slip-and-fall attributed to an oily spot next to
the gas pump; an icy patch near the store entrance; or an errant piece of lettuce in the
produce aisle.

I agree with opinions concluding that characterizing a slip-and-fall claim by a
hospital visitor as a Chapter 74 health care liability claim is not compelled by Chapter

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74’s language, by the policies underlying the statute, or by the supreme court’s decision
in Williams. See Christus St. Elizabeth Hosp. v. Guillory, __S.W.3d__, __, No. 09-12-
00490-CV, 2013 WL 6019523, at *1–3 (Tex. App.—Beaumont Nov. 14, 2013, pet.
filed); Doctors Hosp. at Renaissance, Ltd. v. Mejia, No. 13-12-00602-CV, 2013 WL
4859592, at *1–4 (Tex. App.—Corpus Christi Aug. 1, 2013, no pet.) (mem. op.). This
issue has split the intermediate courts of appeals and awaits resolution by the Texas
Supreme Court; in addition to Ross, at least one other opinion has concluded that a slip-
and-fall claim asserted by a hospital visitor is a health care liability claim and therefore
is subject to Chapter 74’s expert report requirement. E. Tex. Med. Ctr. Reg’l Health
Care Sys. v. Reddic, __S.W.3d__, __, No. 12-13-00107-CV, 2013 WL 6252702, at *1–4
(Tex. App.—Tyler Dec. 4, 2013, no pet. h.).

Memorial Hermann does not identify — and I cannot discern — a nexus between
Galvan’s claimed injury and the provision of health care, other than the hospital location
of the visitor’s alleged fall. Instead, Memorial Hermann points to Williams and Ross
and argues as follows: “The Texas Supreme Court has recently held, and this Court has
affirmed, that safety claims need not be directly related to health care to be
characterized as a Health Care Liability Claim . . . pursuant to Chapter 74 . . . .” This
assertion does not answer the line-drawing question posed by this case. Saying that
safety claims “need not be directly related to health care” to fall within Chapter 74 is not
equivalent to saying that Chapter 74 reaches safety claims lacking any relation to health
care whatsoever.

/s/ William J. Boyce
Justice

Panel consists of Chief Justice Frost and Justices Boyce and Busby. (Frost, C.J.,
majority).

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