Ksadd, Llc v. Joan Williams

ACCEPTED
05-15-00776-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
10/23/2015 2:40:59 PM
LISA MATZ
CLERK

05-15-00776-CV
FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
IN THE FIFTH COURT OF APPEALS 10/23/2015 2:40:59 PM
DALLAS, TEXAS LISA MATZ
Clerk

KSADD, L.L.C.,

Appellant
v.
Joan Williams,
Appellee

Interlocutory Appeal From County Court at Law No. 4,
Dallas County, Texas, Cause No. CC-14-03455-D,
Hon. Ken Tapscott Presiding

Brief for Appellee

TED B. LYON & ASSOCIATES, P.C.

John Hallman (24092474)
Marquette Wolf (00797685)
Ben Taylor (19684500) [btaylor@tedlyon.com]
18601 LBJ Freeway, Suite 525
Mesquite, Texas 75150-5632
Telephone: (972) 279-6571
Facsimile: (972) 279-3021

Counsel for the Appellee,
Joan Williams

Oral Argument (Conditionally) Requested
 Identity of Parties and Counsels

Supplementing KSADD, L.L.C.’s listing of appellate counsel, appellee

Joan Williams is additionally represented in this interlocutory appeal by

Ben Taylor (19684500) of Ted B. Lyon & Associates, P.C.

Joan Williams’s Statement Regarding Oral Argument

“A party desiring oral argument must note that request on the front cover of

the party’s brief.” Tex. R. App. P. 39.7 (emphasis added). KSADD, L.L.C. did

not request oral argument until page 4 of its opening brief, there asserting oral

arguments would “allow the Court to more completely understand the facts and

legal issues presented by this appeal” (emphases supplied). Joan Williams

respectfully submits instead that (1) KSADD, L.L.C.’s interlocutory appeal was

taken without sufficient cause (cf. RR47-48), and (2) the decisional process would

not be significantly aided by oral argument. Tex. R. App. P. 39.1, 45. 1

Moreover, KSADD, L.L.C. filed an opening brief inappropriately citing

numerous appellate decisions, alleged National Fire Safety Protection Association

“Life Safety Code” provisions, alleged accreditation requirements, federal

regulations, Professor Prosser and the Restatement (Second) of Torts, which the

1
Cf. Cage v. Methodist Hosp., No. 01-14-00341-CV (Tex. App.--Houston [1st Dist.] July 9,
2015, no pet.) (mem. op.) (decided without oral arguments) (discussing and applying Ross v.
St. Luke’s Episcopal Hosp., 462 S.W.3d 496 (Tex. 2015), First court held no expert report was
required under chapter 74 — even though premises plaintiff’s petition judicially admitted she
had “gone [to the hospital] for the purpose of assisting a patient” and “Plaintiff is patient’s
nurse”).

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record shows the trial court never got a chance to consider. KSADD, L.L.C. also

inappropriately appended behind its appellate brief numerous documents

(including hearsay correspondences) dehors the record and which trial court also

never got a chance to consider. 2

The appellate record further fails to show KSADD, L.L.C. offered (or that

the trial court admitted) any exhibits during the June 1 hearing. RR4-57

(appendix); see also CR91, 180 (neither KSADD, L.L.C.’s proposed written order,

nor the written order actually signed by the trial court, stated that any affidavit or

other documents were actually admitted and considered).3 Compare Loaisiga v.

2
See Tex. R. App. P. 33.1(a)(1)(A) (“the record must show that” a “timely” motion, request or
objection stated “specific grounds” as a prerequisite to presenting “a complaint for appellate
review”) (emphases supplied); Tex. R. App. P. 34.1 (“The appellate record consists of the clerk’s
record and, if necessary to the appeal, the reporter’s record”); Perry v. Del Rio, 66 S.W.3d 239,
261 (Tex. 2001) (“an appellate court’s review is confined to the record before the trial court
when the trial court acted. . . . [T]he court of appeals erroneously looked outside the record that
was before the trial court when it [acted]”); Cantu v. Horany, 195 S.W.3d 867, 870 (Tex. App.--
Dallas 2006, no pet.) (“An appellate court cannot consider documents cited in a brief and
attached as appendices if they are not formally included in the record on appeal”); Dallas Market
Center v. The Swing, Inc., 775 S.W.2d 838, 842 (Tex. App.--Dallas 1989, no writ) (“At the very
most, the exhibits that were tendered to this Court, absent a showing that they were properly
offered into evidence and that the trial court admitted them into evidence during trial, are loose
exhibits, forming no part of the record proper”).
3
Compare Nichols v. Lin, 282 S.W.3d 743, 749 (Tex. App.--Dallas 2009, no pet.) (“Lin’s
affidavit was admitted into evidence”), and Le Meridien Hotels & Resorts v. LaSalle Hotel
Operating P’ship, L.P., 141 S.W.3d 870, 876 (Tex. App.--Dallas 2004, no pet.) (“Despite
LaSalle’s statement in its brief and at oral argument that it had ‘walked the court through’ the
evidence in Volume 5, we cannot consider material that was not admitted into evidence in our
review”), overruled on unrelated ground by Capital Tech. Info. Serv.s, Inc. v. Arias & Arias
Consultores, 270 S.W.3d 741, 755 (Tex. App.--Dallas 2008, pet. denied) (en banc); with RR49,
50-51, 53, 56 (trial court observing during hearing: “There’s no evidence in [sic] the motion that
she knew that she was assuming these duties voluntarily. . . that she’s there to assist in the
rendering of healthcare. . . . [M]y biggest problem is this idea that they were assisting in the

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Cerda, 379 S.W.3d 248, 258 (Tex. 2012) (appellate court reviewing a chapter 74

interlocutory appeal should consider “the entire court record, including pleadings,

motions and responses, and relevant evidence properly admitted” to determine

whether a particular “contact at issue was part of medical care, or health care, or

safety or professional or administrative services directly related to health care”)

(emphases supplied), and CR42 (KSADD, L.L.C.’s dismissal motion

acknowledging court should review “the entire court record, including the

pleadings, the motions, the responses, and the relevant evidence

properly admitted”) (citing Loaisiga), with Valley Regional Med. Center v.

Camacho, No. 13-14-00004-CV (Tex. App.--Corpus Christi May 14, 2015,

no pet.) (mem. op.) (Slip op. at 4) (“The judgment [sic] denying the motion

specifically stated that the exhibits offered [by Valley Regional Medical Center] at

the hearing were admitted and considered in evaluating the motion to dismiss”)

(emphases supplied), and In re Zimmer, Inc., 451 S.W.3d 893, 902 (Tex. App.--

Dallas 2014) (orig. pro.) (this Court rejecting argument that the moving party’s

motion was “factually uncontroverted” with the following explanation: “the trial

court did not announce that it would rely on the affidavits as evidence and [the

rendering -- or providing of healthcare . . . without some -- some evidence to show that she knew
she was . . . . [I]t is so factually intensive. . . . [T]here’s a stronger argument to be had from
[KSADD, L.L.C.]’s side if she was actually participating as the responsible adult at the moment
she was injured”) (emphases supplied).

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non-moving party] did not agree to the use of affidavits as evidence of [the

moving party’s] claims”).

Appellee Joan Williams respectfully requests summary affirmance without

the additional delay that would be necessitated by scheduling oral arguments

before a panel. Alternatively, if the Court determines this interlocutory appeal by

KSADD, L.L.C. merits oral arguments, then appellee Joan Williams respectfully

requests the opportunity to participate.

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 Table of Contents

Page

Identity of Parties and Counsels ...............................................................................2
Joan Williams’s Statement Regarding Oral Argument ............................................2
Index of Authorities ..................................................................................................7
Joan Williams’s Objections to KSADD, L.L.C.’s Statement of The Case ............10
Joan Williams’s Reply and/or Cross Issues Presented ...........................................11
Joan Williams’s Objections to KSADD, L.L.C.’s Statement of Facts (and,
Alternatively, Joan Williams’s Competing Statement of Facts) ..................12
Joan Williams’s Summary of Argument ................................................................18
Joan Williams’s Arguments and Authorities ..........................................................21
I. Ms. Williams’s Claim is Not a Chapter 74 Health Care Liability
Claim Subject to the Medical Expert Report Requirement ..........................21
II. There Was and Is No “Presumption” that Ms. Williams’s
Premises Liability Claim Was Instead a Health Care Liability Claim.........29
Conclusion and Prayer for Relief............................................................................31
Certificate of Word Count Compliance ..................................................................34
Certificate of Filing and Service .............................................................................35
Appendix (reporter’s record of June 1 motion to dismiss hearing) ..................... post

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 Index of Authorities

Page(s)
Constitutional Provisions

U.S. Const. amend XIV, § 1 ....................................................................................15

Case Law

Archer v. Tunnell,
No. 05-15-00459-CV (Tex. App.--Dallas June 23, 2015, n.p.h.) .................20
Cage v. Methodist Hosp.,
No. 01-14-00341-CV (Tex. App.--Houston [1st Dist.]
July 9, 2015, no pet.) (mem. op.).....................................................................2
Cantu v. Horany,
195 S.W.3d 867 (Tex. App.--Dallas 2006, no pet.) ........................................3
Capital Tech. Info. Serv.s, Inc. v. Arias & Arias Consultores,
270 S.W.3d 741 (Tex. App.--Dallas 2008, pet. denied) (en banc) ..................3
Dallas County v. Sides,
430 S.W.3d 649 (Tex. App.--Dallas 2014, no pet.) ......................................20
Dallas Market Center v. The Swing, Inc.,
775 S.W.2d 838 (Tex. App.--Dallas 1989, no writ) ........................................3
Davis v. City of Robinson,
919 S.W.2d 849 (Tex. App.--Austin 1996, writ denied) (per curiam) ..........32
Director, State Employees Workers’ Comp. Div. v. Evans,
889 S.W.2d 266 (Tex. 1994) .........................................................................13
Duncan v. Cessna Aircraft Co.,
665 S.W.2d 414, 439 (Tex. 1984) (dissent) ..................................................15
Garland Community Hosp. v. Rose,
156 S.W.3d 541 (Tex. 2004) .........................................................................31
Harris Methodist Fort Worth v. Ollie,
342 S.W.3d 525 (Tex. 2011) (per curiam) ....................................................31
In re MetroPCS Commc’ns, Inc.,
391 S.W.3d 329 (Tex. App.--Dallas 2013, orig. pro.)...................................18

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In re Zimmer, Inc.,
451 S.W.3d 893 (Tex. App.--Dallas 2014) (orig. pro.) ............................... 4-5
Le Meridien Hotels & Resorts v. LaSalle Hotel Operating P’ship, L.P.,
141 S.W.3d 870 (Tex. App.--Dallas 2004, no pet.) ........................................3
Loaisiga v. Cerda,
379 S.W.3d 248 (Tex. 2012) .................................... 3-4, 11, 13-14, 21, 30-31
Lucas v. United States,
757 S.W.2d 687 (Tex. 1988) .........................................................................22
McCain v. NME Hosps., Inc.,
856 S.W.2d 751 (Tex. App.--Dallas 1993, no writ) ......................................18
Michiana Easy Livin’ Country, Inc. v. Holten,
168 S.W.3d 777 (Tex. 2005) .........................................................................12
Nichols v. Lin,
282 S.W.3d 743 (Tex. App.--Dallas 2009, no pet.) ........................................3
Parex Resources, Inc. v. ERG Resources, LLC,
427 S.W.3d 407 (Tex. App.--Houston [14th Dist.] 2014,
pet.s granted 10-23-2015) (supreme court cause nos. 14-0293
and 14-0295 [Brown, J., not sitting] consolidated for oral argument) .... 12-13
Perry v. Del Rio,
66 S.W.3d 239 (Tex. 2001) .............................................................................3
PopCap Games, Inc. v. MumboJumbo, LLC,
350 S.W.3d 699 (Tex. App.--Dallas 2011, pet. denied) ................................20
Ross v. St. Luke’s Episcopal Hosp.,
462 S.W.3d 496 (Tex. 2015) ....................................... 2, 11, 14, 20-24, 29, 30
Scoresby v. Santillan,
346 S.W.3d 546 (Tex. 2011) .........................................................................21
Texas & Pac. Ry. Co. v. Van Zandt,
159 Tex. 178, 317 S.W.2d 528 (1958) ..........................................................15
Valley Regional Med. Center v. Camacho,
No. 13-14-00004-CV (Tex. App.--Corpus Christi May 14, 2015,
no pet.) (mem. op.) ........................................................................ 4, 14, 22-23
Statutes

Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014 (Vernon 2015).................................................................................11

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Tex. Civ. Prac. & Rem. Code section 74.351 ................................................... 10, 11

Rules of Procedure and Evidence

Tex. R. App. P. 2 ......................................................................................................32
Tex. R. App. P. 33.1(a)(1)(A) ....................................................................................3
Tex. R. App. P. 34.1.............................................................................................3, 26
Tex. R. App. P. 38.1(d) ............................................................................................10
Tex. R. App. P. 38.1(g) ............................................................................................12
Tex. R. App. P. 39.1...................................................................................................2
Tex. R. App. P. 39.7...................................................................................................2
Tex. R. App. P. 45......................................................................................... 2, 20, 32
Tex. R. App. P. 49.9.................................................................................................32
Tex. R. App. P. 9.4(d) ..............................................................................................10
Tex. R. App. P. 9.4(i) ...............................................................................................10
Tex. R. Civ P. 97(a) .................................................................................................19
Tex. R. Civ. P. 166a(c), (f), (i).................................................................................13
Tex. R. Evid. 101(b).................................................................................................14
Tex. R. Evid. 103(a)(2) ............................................................................................14
Tex. R. Evid. 802 .....................................................................................................14
Regulation

Tex. Admin. Code § l35.10(b) .................................................................................28
Other Authorities

http://www.stanleyaccess.com/automatic-swing-door-operators ............................27
http://www.stanleyaccess.com/manual-icu-ccu-doors ............................................27

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 Joan Williams’s Objections to KSADD, L.L.C.’s Statement of The Case

The lengthy, single-spaced “STATEMENT OF THE CASE” on pages 2-3

of KSADD, L.L.C.’s opening brief violates Tex. R. App. P. 9.4(d), which requires

that text in a brief “be double-spaced,” and Tex. R. App. P. 38.1(d), which requires

that appellants make a “concise” statement of “the nature of the case (e.g.,

whether it is a suit for damages, on a note, or involving a murder prosecution)” and

such statement “should not discuss the facts” (emphases supplied). Compare Tex.

R. App. P. 9.4(i) (excepting “statement of the case” from appealing party’s word

count limitations). The following concise statement would have been appropriate:

This is a suit for damages brought by appellee Joan Williams eventually

against KSADD, L.L.C. and other defendants. CR9-14, 27-37. All the defendants

filed a motion to dismiss under chapter 74 of the Texas Civil Practice and

Remedies Code, asserting (1) Ms. Williams’s claim against them was a health care

liability claim, and (2) Ms. Williams had not served the required expert report

under section 74.351. CR38-53, 126-147. Ms. Williams took a non-suit as to the

defendants other than KSADD, L.L.C., but she otherwise: (1) responded in

opposition to KSADD, L.L.C.’s motion to dismiss, and (2) cross-moved asking the

trial court to determine that chapter 74 does not apply to her premises liability

claim against KSADD, L.L.C. CR92-108.

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 Two days after holding a recorded hearing on June 1, the trial court signed

on June 3, 2015, a written order denying KSADD, L.L.C.’s motion to dismiss and

decreeing that chapter 74 does not apply. RR1-57 (appendix); CR180. KSADD,

L.L.C. filed its notice of interlocutory appeal on June 23, 2015, and has thus

already avoided the September 1, 2015 “JURY TRIAL” setting for this case. See

CR5-6, 191 (“SPECIAL SET #1”); Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(9), (b) (Vernon 2015) (a permitted interlocutory appeal from the denial

of a motion under section 74.351(b) “stays the commencement of a trial in the trial

court pending resolution of the appeal”).

Joan Williams’s Reply and/or Cross Issues Presented

1. Whether the trial court correctly denied KSADD, L.L.C’s motion to

dismiss because the Loaisiga presumption does not apply, because KSADD,

L.L.C. failed to introduce required evidence to support its dismissal motion, and

because KSADD, L.L.C.’s motion is also without merit in light of Ross v.

St. Luke’s Episcopal Hospital, 462 S.W.3d 496 (Tex. 2015), rev’g 459 S.W.3d 617

(Tex. App.--Houston [14th Dist.] 2013).

2. Whether this Court should strike (and refuse to consider) appendix items

KSADD, L.L.C. improperly attached behind its opening brief without first giving

the trial court an opportunity to consider them in the first instance (specifically

appellant’s improper appendix items 2, 3, 4, 6, and 7 and all appellate cites).

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To the Honorable Fifth Court of Appeals:

Joan Williams files this appellee’s brief on or before November 11, 2015,

and requests that the order appealed from be summarily affirmed.

Joan Williams’s Objections to KSADD, L.L.C.’s Statement of Facts
(and, Alternatively, Joan Williams’s Competing Statement of Facts)

Ms. Williams objects to the “STATEMENT OF FACTS” at pages 6-13 of

KSADD, L.L.C.’s opening brief.4 KSADD, L.L.C. has improperly briefed this

interlocutory appeal as if all of KSADD, L.L.C.’s trial court filings were admitted

into evidence. A review of the record shows KSADD, L.L.C. did not offer a single

exhibit into evidence and did not request nor obtain any oral or written ruling

admitting a single exhibit into evidence. See RR4-57 (copy of reporter’s record

appended behind this brief); CR91, 180.

This is not an appeal from denial of a special appearance, where

in personam jurisdiction is at issue, and “evidence” is sometimes merely filed with

the clerk. See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 781-

84 (Tex. 2005); but see Parex Resources, Inc. [Parex Resources (Bermuda), Ltd.]

v. ERG Resources, LLC, 427 S.W.3d 407, 417-19 (Tex. App.--Houston [14th Dist.]

2014, pet.s granted 10-23-2015) (supreme court cause nos. 14-0293 and 14-0295

4
See generally Tex. R. App. P. 38.1(g) (“Statement of facts. The brief must state concisely and
without argument the facts pertinent to the issues or points presented. In a civil case, the court
will accept as true the facts stated unless another party contradicts them. The statement must be
supported by record references”).

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[Brown, J., not sitting] consolidated for oral argument). 5 Nor is this an appeal

from the denial of a motion for new trial after a default judgment, where affidavits

merely attached to the motion can be considered evidence without being offered at

a hearing. 6 Nor is this a summary judgment appeal, where affidavits and other

documents would only need to be timely filed and served in order potentially to

qualify as summary judgment “evidence.”7

The record of this chapter 74 interlocutory appeal shows KSADD, L.L.C.

cited Loaisiga to the trial court (albeit redundantly, inaccurately and inconsistently)

some sixty-five (65) times. 8 And despite KSADD, L.L.C.’s repeated inaccurate

citations, there is no disputing Loaisiga’s teaching about the applicable scope of

review. See Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012) (reviewing court

should consider “the entire court record, including pleadings, motions and

responses, and relevant evidence properly admitted” to determine whether “the

5
The clerk’s record reflects KSADD, L.L.C. has appeared generally in this lawsuit without any
challenge whatsoever to the trial court’s jurisdiction over its person. CR33-37.
6
See Director, State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268
(Tex. 1994) (“Affidavits attached to the motion for new trial do not have to be offered into
evidence in order to be considered by the trial court for the meritorious defense element . . . . It
is sufficient that the affidavits are attached to the motion for new trial . . .”).
7
See Tex. R. Civ. P. 166a(c), (f), (i).
8
CR39 n.1, 40 nn.2-7, 41 n.10, 42, 44 nn.13-15, 45 nn.16-17, 48 n.22, 49 nn.23-26, 127 nn.1-5,
128 nn.6-11, 130 & n.16, 134 nn.17-21, 135 nn.22-23, 136 nn.24-28, 137 nn.29-30, 138 nn.32-
34, 139 nn.35-36, 38-39, 140 n.40, nn.42-44, 141 nn.45-47, 142 nn.48-49, 143 nn.50-52, 145;
RR6.

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contact at issue was part of medical care, or health care, or safety or professional or

administrative services directly related to health care”) (emphases supplied).

The statement of “FACTS” in KSADD, L.L.C.’s opening brief relies almost

entirely upon citations to affidavits (and additional hearsay documents) the Court

can assume might be “relevant” but which were never “properly admitted” in the

trial court. Cf. RR7 (after KSADD, L.L.C.’s counsel asserted “we’ve shown [sic]

evidence of” all the Ross considerations, trial court stated: “your big picture

position is that at the time she was injured, Ms. Williams was assisting in the

providing of healthcare”) (emphasis supplied); RR17-18 (trial court stating to

KSADD, L.L.C.’s counsel: “again, when you say they’re assisting in providing

care . . .”) (emphases supplied); RR44 (KSADD, L.L.C.’s counsel asserting

“Plaintiff’s counsel was testifying [sic] about” Valley Regional Medical Center v.

Camacho, No. 13-14-00004-CV (Tex. App.--Corpus Christi May 14, 2015,

no pet.) (mem. op.). 9

9
It is unclear why on page 12 of its opening brief KSADD, L.L.C. feels it necessary to
repeatedly insert (and italicize) new bracketed verbiage not actually included in paragraphs 10
and 12 of the affidavit signed by KSADD, L.L.C.’s automatic door expert (even assuming,
contrary to the clerk’s and reporter’s records, KSADD, L.L.C.’s automatic door expert’s
affidavit had actually been offered and admitted into evidence). Cf. Tex. R. Evid. 802 (only
inadmissible hearsay actually “admitted” without objection cannot be denied probative value);
Tex. R. Evid. 101(b) (“These rules apply to proceedings in Texas courts except as provided in
subdivisions (d)-(f)”); Tex. R. Evid. 103(a)(2) (recognizing “a ruling” is needed “to admit or
exclude” evidence, and an “offer of proof” would be needed if the ruling excludes evidence).

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 The record shows KSADD, L.L.C. did nothing more than file affidavits (and

other documents) with its dismissal motion, and its later supplemental briefing.

CR38-90, 126-179. Ms. Williams respectfully objects to KSADD, L.L.C.’s factual

averments (on pages 6-13 of its opening brief) as factually unsupported and

inappropriate to the extent they cite and rely upon affidavits and other hearsay

documents KSADD, L.L.C. never offered (and the trial court never admitted) into

evidence. Alternatively, if the Court were to decide affidavits and other documents

KSADD, L.L.C. never introduced into evidence are properly considered in this

appeal, then Ms. Williams asserts the following facts from her own timely filed

affidavit are the correct facts this Court should consider instead. 10

Ms. Williams recalled walking into the clinic located at 3865 Childress

Avenue, Mesquite, Texas 75150 on June 20, 2013. CR112. This was the first time

Ms. Williams had ever been to the clinic. Id. She was not a patient. Id. She was

only there to pick up a friend who had finished treatment. Id. Ms. Williams had

never been provided medical care at the facility. Id.

When Ms. Williams arrived at the facility, she entered through two sets of

automatic doors. CR112, 116. From being present at the clinic and personally

10
See genenerally Texas & Pac. Ry. Co. v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528, 531
(1958) (rules “must be applied to plaintiffs and defendants alike”); Duncan v. Cessna Aircraft
Co., 665 S.W.2d 414, 439 (Tex. 1984) (4-judge dissent) (“There is no greater inequality than the
unequal treatment by the same court of things that are equal”); U.S. Const. amend XIV, § 1 (“No
State shall . . . deny to any person within its jurisdiction the equal protection of the laws”).

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observing the doors, Ms. Williams has personal knowledge that the photograph

attached as Exhibit A behind her affidavit is a true and accurate image of the

clinic’s doors as they appeared on June 20, 2013. Id.

The doors malfunctioned and hit Ms. Williams on June 20, 2013. CR112.

Ms. Williams’s friend was in the clinic and Ms. Williams was waiting to give her a

ride home. CR112-13. There were no doctors or employees present when the door

hit Ms. Williams. CR113. There were no doctors or employees operating the door

either. Id. There was a witness who was in the waiting room that saw the doors

malfunction and hit Ms. Williams. Id.

When the door hit Ms. Williams, she was not inside the area of the clinic

where patients are treated. CR113. She was not in the waiting room either. Id.

The malfunctioning door that hit Ms. Williams was located in the entrance to the

building, not in a place where patients were receiving care. Id.

The only reason Ms. Williams was on the clinic’s premises that day was

because she was picking up a friend. CR113. Ms. Williams was not, and had

never been, a patient seeking medical care at the clinic, nor had she ever received

medical care there at the clinic. Id. Ms. Williams’s plan that day was to enter the

clinic and wait to meet her friend and drive her home. Id.

Prior to her injury, Ms. Williams had never been contacted by any employee

or owner of the clinic, nor had any employee or owner of the clinic mentioned

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anything regarding the malfunctioning automatic doors to her. CR113.

Ms. Williams was never told by any employee or owner of the clinic that she

would be assisting in the medical treatment of her friend. Id.

Ms. Williams was not informed by the doctors of any special routine or

procedures she needed to follow on behalf of her friend. CR113. Ms. Williams

never even had communication with anyone at the clinic. Id. “I was there to drive

her home, and that was it. I was not a caretaker for my friend- after I was to drop

her off at her home, I was going to go back to my daily routine. I have no medical

training, and did not receive any that day prior to picking up my friend. At no time

did any employee or doctor at the clinic ask me to assist in providing health care to

my friend.” Id.

Ms. Williams’s complaint regarding the malfunctioning automatic doors is

centered on that very fact — the doors malfunctioned and hit her. CR113. “My

complaint is that the doors malfunctioned and knocked me down, not that any

doctor did anything wrong.” Id.

“The doors that malfunctioned were common automatic doors.” CR113.

“I’ve seen these doors - or doors very similar to the doors that hit me - at grocery

stores, shopping malls, banks, and other businesses around Mesquite, Texas.” Id.

“These doors did not have any markings on them that would indicate they were

anything other than normal automatic doors.” Id. “These doors did not have any

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markings on them that would indicate that they were special doors unique to the

health care facility.” Id. 11

“When the doors malfunctioned and hit me, there was no employee or owner

of the clinic present at the doors, nor was there any employee or owner of the clinic

present at the doors and taking action in order to ensure that the doors were

operating properly and not malfunctioning.” CR114.

Joan Williams’s Summary of Argument

The trial court got it right, correctly denying KSADD, L.L.C.’s motion to

dismiss and also correctly ordering that chapter 74 does not apply. CR180. No

physician or other health care provider touched, contacted, nor otherwise treated

Ms. Williams; consequently, there is no applicable presumption that her premises

11
Cf. RR39-40 (Ms. Williams’s counsel arguing: “At no point does the defendant in [its]
supplemental briefing argue that the doors in question were of a type used in providing
healthcare. . . . I’m just going to show [the Court] -- this is from the Stanley website. This is a
product listing of the door in question, Your Honor. . . . [H]ere is a product listing of the doors
that are not in question, and those are healthcare doors. These are also made by Stanley, and
those are healthcare doors. And what I’m getting at is that KSADD could have chosen to buy
and install healthcare specific doors, but they didn’t. They installed doors that you see at malls,
grocery stores, Target, other places. . . . [T]here’s nothing special about these doors that makes
them a door that is of a type used in healthcare”). Ms. Williams acknowledges that arguments by
her counsel are not “evidence.” See, e.g., In re MetroPCS Commc’ns, Inc., 391 S.W.3d 329, 338
(Tex. App.--Dallas 2013, orig. pro.) (“Golovoy does not explain, and the record does not show,
how argument by his counsel at the hearing constitutes ‘evidence.’”); McCain v. NME Hosps.,
Inc., 856 S.W.2d 751, 757 (Tex. App.--Dallas 1993, no writ) (“Motions and arguments of
counsel are not evidence”). But Ms. Williams’s counsel’s arguments (based on Stanley’s
website) were not refuted by KSADD, L.L.C. (at all) during the June 1 recorded hearing. And
they are consistent with Ms. Williams’s sworn affidavit testimony, which is in the clerk’s record
and which must be considered in this appeal if KSADD, L.L.C.’s un-offered, un-admitted
affidavits (and other un-offered, un-admitted documents) are going to be accepted and
considered by this Court. See p. 13, n. 10, above.

-18-
liability claim is instead a health care liability liability claim. Ms. Williams

acknowledges KSADD, L.L.C. was an “affiliate” (RR46), but KSADD, L.L.C. has

never provided health care services, never held a medical license, and never put

“hands on” nor “treat[ed]” a patient (RR48). Dispositively, KSADD, L.L.C.

failed in its burden to introduce evidence proving Ms. Williams’s premises liability

claim has a substantive relationship to the provision of health care. Therefore,

KSADD, L.L.C.’s appellate issue presented is without merit and should be

summarily overruled. 12

Independently, KSADD, L.L.C. has violated Texas procedural law by

inappropriately appending behind its opening brief (and arguing for reversal based

on) the Code of Federal Regulations, alleged guidelines from the Accreditation for

Ambulatory Health Care, Inc. (“AAAHC”), an NFPA “Life Safety Code”

provision, and hearsay correspondences that are nowhere found in the clerk’s

record or the reporter’s record and which KSADD, L.L.C. chose not to present to

the hard working trial court.

KSADD, L.L.C. never filed any counterclaim (nor requested attorneys’ fees

in its original answer) against Ms. Williams. See CR33-37; see also Tex. R. Civ

P. 97(a) (entitled “Compulsory Counterclaims”). KSADD, L.L.C. repeatedly
12
It is unclear why the “ISSUE PRESENTED” on page ii of KSADD, L.L.C.’s opening brief,
(within its table of contents) includes half a dozen complete Texas Supreme Court citations
(including S.W.3d citations and years of decision), while the “ISSUE PRESENTED” on page 5
of KSADD, L.L.C.’s opening brief gives only abbreviated case name references.

-19-
requested (both in its original motion to dismiss and in supplemental briefing) that

Ms. Williams be ordered to pay attorneys’ fees to KSADD, L.L.C. (and to the non-

suited defendants as well) (CR52, 145); however, KSADD, L.L.C. chose not to

repeat those requests in its opening brief to this Court. See appellant’s opening br.

at 17, 37-38; id. at i, 1 (no request for attorneys’ fees expressly included) (and none

of the non-suited appellants has joined KSADD, L.L.C.’s brief in this appeal).13

KSADD, L.L.C.’s (and the non-suited defendants’) failure to repeat its/their

trial court request(s) for attorneys’ fees in KSADD, L.L.C.’s interlocutory appeal

brief to this Court (1) appears to be deliberate, and (2) further demonstrates this

appeal has been taken without sufficient cause and for purposes of delay. 14

13
See generally PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 715 (Tex. App.--
Dallas 2011, pet. denied) (trial court parties who choose not to file their own brief on appeal —
nor join a complaining party’s brief on appeal — receive no relief from this Court).
14
Cf. Archer v. Tunnell, No. 05-15-00459-CV (Tex. App.--Dallas June 23, 2015, n.p.h.)
(deferring ruling on appellee’s motion for sanctions in cow/physician chapter 74 interlocutory
appeal); RR47-48 (after KSADD, L.L.C.’s counsel volunteered his personal opinion this is a
“frivolous” liability case, Ms. Williams’s counsel appropriately responded: “I take exception to
that. There can be frivolous defenses the same way there can be frivolous claims”).
Ms. Williams has not filed a motion for sanctions against KSADD, L.L.C. and its counsel, even
though Ms. Williams believes KSADD, L.L.C.’s interlocutory appeal is objectively frivolous
(and believes this Court should so determine) in light of Ross v. St. Luke’s Episcopal Hospital.
Cf. Dallas County v. Sides, 430 S.W.3d 649, 651, 654 (Tex. App.--Dallas 2014, no pet.)
(teaching this Court will not sanction an appellant unless the Court “conclude[s] the
circumstances of this appeal were truly egregious”); Tex. R. App. P. 45 (empowering this Court
to determine that an appeal is frivolous “on its own intiative” after considering documents “in
the record” and “briefs” and “other papers filed in the court of appeals”) (emphases supplied).

-20-
 Joan Williams’s Arguments and Authorities

I. Ms. Williams’s Claim is Not a Chapter 74 Health Care Liability Claim
Subject to the Medical Expert Report Requirement

The purpose of the Texas Medical Liability Act’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). 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 Loasisiga v. Cerda, 379 S.W.3d 248, 258

(Tex. 2012). Under the supreme court’s more recent opinion in Ross v. St. Luke’s

Episcopal Hospital, 462 S.W.3d 496 (Tex. 2015), Ms. Williams’s premises

liability claim against KSADD, L.L.C. for injuries sustained (when she was hit by

defendant’s malfunctioning automatic door) is a claim for which the Legislature

did not intend to require service of a medical expert report. In accordance with

Ross, KSADD, L.L.C.’s motion to dismiss for lack of a medical expert report was

correctly denied.

In Ross, the Supreme Court of Texas held that “for a safety standards-based

claim to be a health care liability claim, 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.” 462 S.W.3d at 504. KSADD,

L.L.C.’s position that Ms. Williams’s claim is a health care liability claim (simply

-21-
because it concerns departures from accepted standards of safety) fails the test laid

out by the supreme court in Ross for lack of a substantive nexus to the provision of

health care. After Ross, in order to constitute a health care liability claim, the

defendant must show that the safety standards at issue have a substantive nexus to

the provision of healthcare. See also id. at 506 & n.2 (Lehrmann, J., concurring,

joined by Devine, J.) (“The Court holds, and I agree, that a cause of action against

a health care provider for a departure from safety standards is a health care liability

claim only if it has a “substantive relationship” with the provision of medical or

health care”). 15

Moreover, Ms. Williams’s case is even further away from chapter 74 than

the facts first presented Valley Regional Med. Center v. Camacho, No. 13-14-

00004-CV (Tex. App.--Corpus Christi May 14, 2015, no pet.) (mem. op.). In

Camacho, the automatic doors were “hooked up to an alarm called the Infant

Abduction System,” a system “designed to prevent the abduction of newborn

babies from the nursery section of the hospital” that “causes the sliding doors to

automatically close when it detects the presence of an ankle bracelet which is

15
Cf. RR48-49 (trial court aptly observing: “remember the whole crisis was about how medical
malpractice premiums had skyrocketed, and all the doctors needed this protection, and they --
and this particular claim wouldn’t even be a -- it would be covered by typically an insurance
policy that’s just a general premises liability policy, not a medical malpractice insurance
policy”); Lucas v. United States, 757 S.W.2d 687, 691 (Tex. 1988) (majority observing twentieth
century leglislature found that a “medical malpractice insurance crisis” had been created and that
“satisfactory insurance coverage . . . [was] often not available . . .”).

-22-
secured to each infant.” The doors in Camacho were activated by the proximity of

sensors attached to each infant patient’s ankle and would close the doors to prevent

someone from leaving with or kidnapping an infant who was still a patient that had

not been dismissed from the hospital. As such, the doors in Camacho were much

more a part of ongoing medical treatment and ongoing medical security and safety

in the women’s center/newborn department at Valley Regional Medical Center.

In Ms. Williams’s case, by stark contrast, there is no such indirect

relationship to the provision of health care, much less a substantive nexus between

the provision of health care and the malfunctioning main entrance doors as

required under Ross. The doors that were the subject of KSADD, L.L.C.’s motion

to dismiss are mere doors — main entrance doors, not security doors specially

designed and engineered to react to the unauthorized movement of infant patients

beyond a certain portion of the premises. The doors at issue in Ms. Williams’s

case are not uniquely designed for medical treatment or for medical facilities.

CR102 & n.5, 119; RR39-40.

The doors at issue in this case were not prescribed to Ms. Williams nor were

they prescribed by a doctor to the friend that Ms. Williams was visiting and

picking up. CR103, 112-13. The doors at issue in this case can be found at

grocery stores, shopping malls, banks, and almost any other variety of business

premises one can imagine. CR103, 113

-23-
 In Ross, our supreme court promulgated certain non-exclusive

considerations for courts attempting to draw the line between a safety standards-

based claim that is not an HCLC and one that is 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;

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?

Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496, 505 (Tex. 2015). On the

record before this Court, the answer to each of these questions in Ms. Williams’s

case is “no” and the trial court’s order should be summarily affirmed.

First, the record does not show that the automatic door malfunction occurred

in the course of KSADD, L.L.C. performing any task at all, much less a task to

-24-
protect patients from harm. CR104. There were no doctors or employees present

when the doors hit Ms. Williams. CR104, 113. There were no doctors or

employees operating the doors, either. Id. There was a witness who was in the

waiting room who saw the doors malfunction and hit Ms. Williams, and who will

testify that (1) there were no doctors or employees of KSADD, L.L.C. present, and

(2) the doors opened suddenly and without warning and without Ms. Williams

pressing the activation plate that would normally open the doors. CR104. Ms.

Williams was not a patient. CR104, 112.

Second, Ms. Williams was injured in the entrance to the facility. CR104,

113, 116. Ms. Williams was not in an area where patients might be during their

treatment so that the obligation of the provider to protect persons who require

special medical care was implicated. CR104-05. Ms. Williams was not in an area

where patients were being treated, nor was she in the patient waiting room. Id.

Third, at the time of her injury Ms. Williams was not in the process of

seeking or receiving health care. CR105. Again, Ms. Williams was not a patient.

CR105. The only reason Ms. Williams was on the clinic’s premises that day was

because she was picking up a friend.. CR105, 113. She was not, and had never

been, a patient seeking medical care at the premises, nor had she ever received

medical care at the premises. Id.

-25-
 Fourth, at the time of the injury Ms. Williams was not providing or assisting

in providing health care. CR105. When she was injured by the malfunctioning

door, Ms. Williams had never been contacted by any employee or owner of the

clinic, nor had any employee or owner of the clinic mentioned anything regarding

the automatic doors to her. CR105, 113. Ms. Williams was never told by any

employee or owner of the clinic that she would be assisting in the medical

treatment of her mend. Id.; see also RR49 (trial court stating: “There’s no

evidence in [sic] the motion that she knew that she was assuming these duties

voluntarily”). Joan Williams has never been licensed to provide medical treatment

and has no medical training whatsoever. CR105. At no time did any employee or

doctor at the clinic ask Ms. Williams to assist in providing health care to

Ms. Williams’s friend. CR105.

Fifth, there is no evidence in the record that the negligence alleged by

Ms. Williams is based on safety standards arising from professional duties owed by

KSADD, L.L.C. as a health care provider. CR105.16 Ms. Williams’s claim

regarding the malfunctioning automatic doors has always centered on that very fact

— the doors on KSADD, L.L.C.’s premises malfunctioned and hit her. CR105,

113. Ms. Williams’s complaint is and always has been that KSADD, L.L.C.’s

16
See Tex. R. App. P. 34.1 (“The appellate record consists of the clerk’s record and, if necessary
to the appeal, the reporter’s record”).

-26-
automatic doors malfunctioned and knocked her down, not that any doctor or

employee of the clinic did anything wrong or that her claim in any way is related to

medical treatment or medical safety standards. CR105-06.

Sixth, the instrumentality alleged in KSADD, L.L.C.’s negligence is a door,

not an instrumentality unique to the provision of health care. CR106. There is no

evidence that the automatic doors were particularly suited to providing for the

safety of patients. CR106, 119. Nor were the doors in question designed to

provide for the safety of medical patients. Id. The doors in question were

manufactured by Stanley Access Technologies, and are Automatic Swing Door

Operator Systems, serial numbers A515400 (inner door) and A597485 (outer

door). CR106. Stanley Access Technologies’ website indicates that these doors

are “beneficial for any commercial, retail, or industrial environment . . .” (see

CR106 & n.18, citing to http://www.stanleyaccess.com/automatic-swing-door-

operators), not that they are specially designed for the healthcare industry and

setting. Additionally, Stanley Access Technologies does indeed manufacture

automatic doors for Intensive Care Units, Hospitals, and Other Healthcare

Facilities (see CR 106 & n.19, citing to http://www.stanleyaccess.com/manual-icu-

ccu-doors). At no time has KSADD, L.L.C. alleged in response to Ms. Williams’s

numerous discovery requests that the doors that injured Ms. Williams were the

specialized healthcare facility doors marketed by Stanley Access Technologies,

-27-
because they simply were not. CR106. Instead, the entrance doors at KSADD,

L.L.C.’s premises at 3865 Childress Avenue in Mesquite, Texas, are normal doors

not specialized to the healthcare industry. CR106.

Nor does the record demonstrate that the automatic doors were installed to

comply with a safety-related requirement set for health care providers by a

governmental or accrediting authority. CR106. To this point, in its motion to

dismiss, KSADD, L.L.C. cited Tex. Admin. Code § l35.10(b), a regulation

pertaining to Ambulatory Surgical Centers, which does not require a defendant to

install automatic doors. CR106-07. The language in regulation 135.10(b) simply

states that “hazards that might lead to slipping, falling, electrical shock, bums,

poisoning, or other trauma shall be eliminated.” 25 Tex. Admin. Code

§ 135.10(b). CR107. KSADD, L.L.C. has not provided, and there does not exist,

any safety-related requirement for health care providers to furnish automatic doors

on behalf of their patients. CR107.

Finally, for the same reasons addressed in the previous paragraph, the record

contains no evidence that the negligence alleged by Ms. Williams regarding the

malfunctioning automatic doors occurred in the course of KSADD, L.L.C. taking

action or failing to take action necessary to comply with safety-related

requirements set for health care providers by governmental or accrediting agencies.

CR107, 112-14. (New appellate arguments at, e.g., pages 22-28 of KSADD,

-28-
L.L.C.’s opening brief, and new appendix items appended to that brief, are dehors

the record and should be ordered stricken in this Court’s opinion in fairness to the

trial court and to discourage would-be interlocutory appellants from attempting to

appeal on a different record than they presented to the trial court.)

Considering all seven factors set forth in Ross, and the evidence (if any)

properly admitted below, Ms. Williams’s claim alleges a departure from standards

of safety that do not have a “substantive relationship with the providing of medical

or health care.” Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496, 504

(Tex. 2015). Accordingly, Ms. Williams’s claim is not a health care liability

claim, KSADD, L.L.C.’s issue presented is without merit, and the trial court’s

order denying KSADD, L.L.C.’s motion to dismiss should be summarily affirmed.

II. There Was and Is No “Presumption” that Ms. Williams’s
Premises Liability Claim Was Instead a Health Care Liability Claim

In both its written and oral advocacy below (but not in this Court), KSADD,

L.L.C. repeatedly (and erroneously) argued (1) there is a “presumption” that

chapter 74 governs Ms. Williams’s premises liability claim, (2) KSADD, L.L.C.

should enjoy the benefit of that alleged presumption, and (3) Ms. Williams had not

met her alleged burden to rebut KSADD, L.L.C.’s alleged presumption. CR145;

RR6-7, 19-20, 27. Early in its June 1 oral arguments to the trial court, KSADD,

L.L.C. erroneously asserted:

-29-
 We believe that this is a healthcare liability claim. And this is
really the key presumption in this case. It’s from this -- and I’m
going to mess this name up -- it’s Loaisiga, L-O-A-I-S-I-G-A, versus
Cerda. And this -- the key phrase from this case is -- the breadth of
the statute’s text essentially creates a presumption that a claim is a
healthcare liability claim if it is a claim against a physician or
healthcare provider and is based on facts implicating the defendant’s
conduct during the course of a patient’s care, treatment or
confinement.

***

This presumption -- this healthcare presumption, because it’s
during a patient’s care, has not been rebutted under the new Ross
case . . . . So our argument is that we’ve shown [sic] evidence of all
six of the Ross considerations . . . .

RR6-7 (emphases supplied).

KSADD, L.L.C.’s appellate brief nowhere repeats these erroneous

presumption / failure-to-rebut arguments, which were and remain without merit as

a matter of law. The Loaisiga case involved a physician allegedly groping female

patients’ breasts “while examining them for sinus and flu symptoms.” Loaisiga v.

Cerda, 379 S.W.3d 248, 252 (Tex. 2012). As every person who sees a doctor

understands, physicians often have to touch sensitive parts of patients’ bodies in

order to chase down and diagnose medical complaints. Such touching may be

inappropriate, or it may be appropriate but misinterpreted, so (in fairness to

physicians) a presumption that “inappropriate touching” claims against a physician

are health care liability claims arguably makes some sense. See id. (“We hold that

the TMLA creates a rebuttable presumption that a patient’s claims against a

-30-
physician or health care provider based on facts implicating the defendant’s

conduct during the patient’s care, treatment, or confinement are HCLCs”). 17

The reason KSADD, L.L.C. deliberately waived its “presumption” / failure-

to-rebut argument in this Court is that KSADD, L.L.C.: is (in its counsel’s own

words) a “landlord entity” (RR45); is not a physician; never physically examined

Ms. Williams (or Ms. Williams’s friend); never touched, groped or examined

Ms. Williams (or Ms. Williams’s friend); and (for anything this record shows)

never exercised any kind of medical judgment in failing to maintain or repair the

ordinary Stanley automatic doors that malfunctioned and injured Ms. Williams.

Conclusion and Prayer for Relief

Ms. Williams requests that KSADD, L.L.C.’s issue presented be summarily

overruled, that the interlocutory order appealed from be summarily affirmed, that

costs of this interlocutory appeal be taxed against KSADD, L.L.C.

17
A similar presumption may benefit non-physician health care providers sued by patients. Cf.
Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527 (Tex. 2011) (per curiam) (“the
essence of [patient’s] claim centers on the failure of Harris Methodist to act with a proper degree
of care to furnish a dry floor, warn her of the hazards of a wet bathroom floor, or some similar
failure to act”); Garland Community Hosp. v. Rose, 156 S.W.3d 541, 545-46 (Tex. 2004) (“[T]he
Hospital’s credentialing activities are an inseparable part of the medical services Rose received.
One of a hospital’s primary functions is to provide a place in which doctors dispense health care
services. The quality of a health care provider’s medical staff is intimately connected with
patient care. A hospital’s credentialing of doctors is necessary to that core function and is,
therefore, an inseparable part of the health care rendered to patients. . . . When a plaintiff’s
credentialing complaint centers on the quality of the doctor’s treatment, as it does here, the
hospital’s alleged acts or omissions in credentialing are inextricably intertwined with the
patient’s medical treatment and the hospital’s provision of health care”).

-31-
 In order to prevent KSADD, L.L.C. from receiving further unwarranted

delay of a jury trial (CR191), Ms. Williams requests that this Court order that no

motion for rehearing may be filed in this Court pursuant to its authority under Tex.

R. App. P. 2 and 49.9. Cf. Davis v. City of Robinson, 919 S.W.2d 849, 852

(Tex. App.--Austin 1996, writ denied) (per curiam) (refusing to deny appellants’

right to file their motion for rehearing because before 1997 a motion for rehearing

in the appellate court was still “a procedural jurisdictional prerequisite to filing an

application for writ of error to the Supreme Court of Texas”).

Ms. Williams also requests all other appropriate relief to which she may be

entitled on the record that is (and is not) properly before this Court, including a

determination pursuant to Tex. R. App. P. 45 that KSADD, L.L.C.’s interlocutory

appeal is frivolous.

-32-
Dated: October 23, 2015 Respectfully submitted,

TED B. LYON & ASSOCIATES, P.C.

John Hallman (24092474)
Marquette Wolf (00797685)
Ben Taylor (19684500) ) [btaylor@tedlyon.com]
18601 LBJ Freeway, Suite 525
Mesquite, Texas 75150-5632
Telephone: (972) 279-6571
Facsimile: (972) 279-3021

Counsel for the Appellee,
Joan Williams

-33-
 Certificate of Word Count Compliance

Relying on the word count function in the word processing software used to

produce this document, I certify that the number of words in this brief (excluding

any caption, identity of parties and counsel, statement regarding oral argument,

table of contents, index of authorities, statement of the case, statement of issues

presented, statement of jurisdiction, statement of procedural history, signature,

proof of service, certification, certificate of compliance, and appendix) is 5,618.

Ben Taylor

-34-
 Certificate of Filing and Service

I hereby certify that on the 23rd day of October, 2015, this brief (with

appended June 1, 2015 reporter’s record) has been e-filed today with the Clerk of

the Fifth Court of Appeals; also, a copy has also been sent today, October 23,

2015, by e-mail to counsel and by first-class United States Mail, postage prepaid,

to the presiding trial judge in the trial court, properly posted and addressed per

below:

Russell G. Thornton [rthornton@trtblaw.com]
R. Gregg Byrd [gbyrd@trtblaw.com]
THIEBAUD REMINGTON THORNTON BAILEY LLP
Two Energy Square
4849 Greenville Avenue, Suite 1150
Dallas, Texas 75206

(counsel for the appellant, KSADD, L.L.C.)

Hon. Ken Tapscott, Judge
Dallas County Court-at-Law No. 4
George L. Allen, Sr. Courts Bldg.
600 Commerce St. # 575
Dallas, Texas 75202

(courtesy copy)

________________________________
Ben Taylor

-35-
 1

1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUMES
2 TRIAL COURT CAUSE NO. CC-14-03455-D
FILED IN
COURT OF APPEALS NO. 05-15-00776-CV
5th COURT OF APPEALS
3 DALLAS, TEXAS
7/28/2015 8:36:14 AM
4 JOAN WILLIAMS, § IN THE COUNTY COURT
§ LISA MATZ
Clerk
5 PLAINTIFF, §
§
6 VS. § AT LAW NO. 4
§
7 §
NAGARAJ KIKKERI, M.D., §
8 KIKKERI INTERNATIONAL, §
P.A., d/b/a ADVANCED PAIN §
9 SOLUTIONS, NORTH TEXAS §
TEAM CARE SURGERY CENTER, §
10 L.L.C., and KSADD, §
L.L.C., §
11 §
DEFENDANTS. § DALLAS COUNTY, TEXAS
12

13

14 ********************************

15 DEFENDANTS' MOTION TO DISMISS

16 *********************************

17

18

19

20 On the 1st day of June, 2015, the

21 following proceedings came on to be heard in the

22 above-entitled and -numbered cause before the Honorable

23 Ken Tapscott, Judge presiding, held in Dallas, Texas;

24 Proceedings reported by

25 computerized-machine shorthand.
 2

1 A P P E A R A N C E S

2
Mr. Marquette William Wolf
3 SBOT NO. 00797685
Mr. John Andrew Hallman
4 SBOT NO. 24092474
TED B. LYON & ASSOCIATES
5 18601 LBJ Freeway, Suite 525
Mesquite, Texas 75150
6 Telephone: (972) 279-6571
Facsimile: (972) 279-3021
7 Mwolf@tedlyon.com

8 ATTORNEYS FOR PLAINTIFF

9
Mr. R. Gregg Byrd
10 SBOT NO. 90001675
THIEBAUD REMINGTON THORNTON BAILEY LLP
11 4849 Greenville Avenue, Suite 1150
Dallas, Texas 75206
12 Telephone: (214) 954-2237
Facsimile: (214) 754-0999
13 Gbyrd@trtblaw.com

14 ATTORNEY FOR DEFENDANTS

15

16

17

18

19

20

21

22

23

24

25
 3

1 I N D E X

2 VOLUME 1

3 (DEFENDANTS' MOTION TO DISMISS)

4 June 1, 2015

5 Page Vol.

6 Appearances................................. 2 1

7 Proceedings................................. 4 1

8
Defendants' Motion to Dismiss............... 4 1
9
Plaintiff's Response........................ 27 1
10

11 Court's Ruling.............................. 50 1

12 Court Reporter's Certificate................ 58 1

13

14

15

16

17

18

19

20

21

22

23

24

25
 4

1 P R O C E E D I N G S

2 THE COURT: We're on the record in the case

3 of Joan Williams versus Nagaraj Kikkeri, K-I-K-K-E-R-I,

4 M.D., et al., Cause Number CC-14-03455-D.

5 Counsel, note appearances for the record,

6 please.

7 MR. WOLF: Marquette Wolf and John Hallman

8 on behalf of plaintiff.

9 THE COURT: Okay.

10 MR. BYRD: Greg Byrd on behalf of all the

11 defendants.

12 THE COURT: All right. We're here today on

13 Defendants' motion to dismiss.

14 Go ahead.

15 MR. BYRD: Your Honor, as a brief summary

16 for this hearing -- I understand that you're probably

17 very familiar with this case law -- this case involves a

18 former patient of Dr. Kikkeri that agreed to be a

19 responsible adult, a ride home for one of her friends.

20 And she had the same situation, I think it was, back in

21 2007, where she was one -- she had surgery, and she also

22 had to get a ride home from a responsible adult. Two

23 minutes, she arrives at the facility, is walking in the

24 door, and as far as we can trace it back to the exact

25 time line based on the EMS records and the PACU records,
 5

1 her friend exits the PACU unit. Two minutes later she

2 has a collision with the door. We believe that this is

3 a healthcare liability claim.

4 THE COURT: Can I ask --

5 MR. BYRD: Yes, sir.

6 THE COURT: Now, this may have some

7 importance, it may not, from your perspective, but was

8 she actually -- had she made it into the facility to

9 pick up her friend, Ms. Williams? Had she actually --

10 so the -- as I understand the facts, the first set of

11 doors are manual doors, the second set of doors, these

12 are the automatic open and close type doors, right?

13 MR. BYRD: There is a hallway and a

14 breezeway, so to speak. Both doors are automatic.

15 THE COURT: Oh, both doors are automatic.

16 I thought one set was manual.

17 MR. BYRD: Well, that's -- that was in her

18 pleading, but that's not --

19 THE COURT: Okay. All right. So there's a

20 second set of doors, and she -- when she was hit by the

21 door, was she actually helping her friend at that

22 particular time exit the facility, or was she going in

23 to get her friend?

24 MR. BYRD: My understanding, she was going

25 in to get her friend, and the surgery had been planned
 6

1 in reliance on her friend having a ride home.

2 THE COURT: Right. Yeah. They didn't want

3 the person to drive home after having anesthesia

4 administered and -- right.

5 MR. BYRD: And they also want someone that

6 just hadn't recently had anesthesia to receive all the

7 instructions.

8 THE COURT: Okay. All right. Go ahead.

9 MR. BYRD: Yes, Your Honor.

10 We believe that this is a healthcare

11 liability claim. And this is really the key presumption

12 in this case. It's from this -- and I'm going to mess

13 this name up -- it's Loaisiga, L-O-A-I-S-I-G-A, versus

14 Cerda. And this -- the key phrase from this case is --

15 the breadth of the statute's text essentially creates a

16 presumption that a claim is a healthcare liability claim

17 if it is a claim against a physician or healthcare

18 provider and is based on facts implicating the

19 defendant's conduct during the course of a patient's

20 care, treatment or confinement.

21 And that's what we have in this case. Her

22 friend had just left the PACU and was going into her

23 holding area where she's monitored and she needs to rest

24 and receives any additional care as necessary.

25 This presumption -- this healthcare
 7

1 presumption, because it's during a patient's care, has

2 not been rebutted under the new Ross case, which

3 has -- the Ross case lined out six -- or actually seven

4 factors. My opinion is that there's actually six

5 factors because two of them are alteratives. Either

6 you're seeking or receiving care or you're assisting and

7 providing it. I don't see how you can provide both.

8 So our argument is that we've shown

9 evidence of all six of the Ross considerations from that

10 case. And again, because we believe that this is still

11 a healthcare liability claim in line with Ross, I'd

12 request dismissal with prejudice. That's kind of the

13 summary of our argument. I was going to go through the

14 elements next, or I can go through the recent case law,

15 whatever would be your preference.

16 THE COURT: Well, you argue it however you

17 want, if you want to go through the elements. But your

18 position is that she was -- essentially, your big

19 picture position is that at the time she was injured,

20 Ms. Williams was assisting in the providing of

21 healthcare.

22 MR. BYRD: Yes.

23 THE COURT: That's the big picture?

24 MR. BYRD: Yes, Your Honor.

25 THE COURT: Because she was there as a
 8

1 responsible adult who helped a patient who had just been

2 operated on actually leave the facility in a, I guess,

3 responsible way and not being informed -- having -- not

4 being able to drive machinery after having anesthesia

5 administered, and also making sure that she left the

6 hospital with the appropriate postsurgical instructions,

7 meaning left with somebody who had just not had

8 anesthesia administered to them.

9 MR. BYRD: Yes, Your Honor.

10 THE COURT: Okay. All right. So, now go

11 ahead. I guess if you want to go through the facts, you

12 can. But that's the big picture, Ms. Williams was

13 assisting in providing healthcare.

14 MR. BYRD: She was. And this surgery -- if

15 her name -- if her friend did not have a name in the

16 medical record identifying a specific, responsible

17 adult, the surgery would not have been performed. We

18 cannot release anyone postoperatively without a

19 responsible adult. And so this surgery was performed in

20 reliance on her being there. And as we see, when she

21 was not able to fulfill her duties, she had to be

22 replaced not by a visitor, such as the plaintiff in

23 Ross; she was replaced by an employee of the facility to

24 help get out of the facility in a wheelchair.

25 So that just shows that this -- this is not
 9

1 a Ross-type case. It doesn't involve a visitor.

2 It's -- and actually, this factor, her participation in

3 the healthcare, distinguishes it from the other cases

4 that follow this. And I'll go into that.

5 THE COURT: Also, that Corpus Christi case

6 that they cited, is that also --

7 MR. BYRD: Well, let me see. And let me go

8 through those cases real quick.

9 THE COURT: Well, I think it's the Camacho

10 case.

11 MR. BYRD: Yes. There's Camacho 1 and

12 Camacho 2. Camacho 1 was the one that we initially

13 cited. And that one came out before Ross, and it was

14 the door -- the automatic door case, the baby theft

15 prevention doors. Camacho 1 is now, in fact, under

16 Ross. It's no longer good law. And then, now we have

17 Camacho 2, which came out after Ross.

18 In the Camacho 2 case -- let me see my

19 briefing on that. There's basically two things, and

20 that's -- two things we can get from this Camacho 2

21 case, which is in our binder. It is Tab Number 22. The

22 first thing, the first key holding in Camacho 2 was

23 that -- the first element of Ross, that the alleged

24 negligence occurred in the course of the defendant's

25 performing tasks to protect patients from harm. That
 10

1 alone, that alone is not enough according to the Camacho

2 case, according to the Camacho court. It's got to be

3 something else.

4 In Section 10 of this case, they say:

5 Arguably, VRMC's -- that's the hospital -- alleged

6 negligence occurred in the course of its performance of

7 tasks with the purpose of protecting patients, i.e.,

8 mothers, infants -- newborn infants, from harm.

9 However -- and this is where the -- this is

10 where we find out it's not enough:

11 However, consideration of the remaining

12 Ross factors militates against a finding that her claim

13 has a substantive relationship with the providing of

14 medical or health care.

15 Okay. So one isn't enough.

16 THE COURT: Do you realize where you're

17 headed? It's kind of like if she comes in there -- and

18 this is why -- and I'm going to follow the law here, but

19 this is -- ultimately, it leads to the absurdity that if

20 you're walking in to visit the patient and you slip and

21 fall, it's a straight-up premises liability claim. If

22 you're walking in to push them out in a wheelchair, as

23 the responsible adult, and maybe at the same time

24 visiting them, then it's a healthcare liability claim.

25 I mean, that's -- wow. And you know what's
 11

1 interesting too is that this person who is assisting as

2 the responsible adult -- obviously, just removing

3 this -- let's say that this person could actually be

4 qualified to render a medical opinion, like a nurse or a

5 doctor, that -- but let's just say it's just your

6 average Joe responsible adult. That person would never

7 be qualified to provide medical care, give an opinion on

8 medical care. I just -- I -- but it's really -- the

9 Supreme Court has done this to itself, and -- but it

10 really does lead to some absurd results.

11 You're there one day before. If you come

12 to visit me the day before you slip and fall, it's a

13 premises liability case; it's not a -- it's not a

14 Chapter 74 case. But you come there the next day to

15 actually help get me home, as the responsible adult, and

16 you slip and fall or you have a door close in on you,

17 now you need an expert report to hold the institution --

18 it leads to absurd results.

19 MR. BYRD: You know, I was thinking about

20 that. Where does it stop? Where does it stop? And

21 this is where it stops. It stops where the policies and

22 procedures and the statutes stop, basically, where this

23 Texas Administrative Code stops. If that's not covered

24 by it, if the policy and procedure is not covered by it,

25 that's where it stops.
 12

1 Here we have two -- two guidelines: We

2 have the Texas Administrative Code. We also have the

3 policies and procedures. And as far as assisting,

4 postoperative discharge instructions are very important.

5 I've done medical malpractice for several years. There

6 are cases where miscommunication regarding -- and this

7 comes up a lot in a postoperative infection context.

8 Miscommunication or alleged miscommunication regarding

9 postoperative instructions, they can cause a lot of

10 problems.

11 THE COURT: I understand all that's

12 important to rendering good medical care. I mean, I

13 just had a C5-C6 fusion myself March 5th, this nice

14 little cut here on my neck, so --

15 MR. BYRD: Wow.

16 THE COURT: When I woke up, I wasn't

17 exactly on planet Earth, so to speak, there for a little

18 while, and so I know what you're talking about. People

19 have got to be there. They've got to know what's

20 appropriate after you get home after you get out of the

21 hospital. I'm not diminishing that at all.

22 MR. BYRD: Yes, Your Honor.

23 THE COURT: I'm just saying, Gosh, the day

24 before, you're a licensee, you're just -- you come in to

25 visit a friend, and you just happen to be the person
 13

1 also who's going to be the responsible adult. So the

2 moment you come in to visit and you slip and fall or you

3 get smacked by the door, straight-up premise liability

4 claim, not a Chapter 74 claim. You show up the next day

5 to pick them up and you slip and fall and you get

6 smacked by the door or some other type of premises

7 liability, premises defect, whatever, and all of a

8 sudden, you need an expert report.

9 And that's really -- I know that's your

10 position, is that, hey, look, big picture, she is

11 assisting in the providing of healthcare by being a

12 responsible adult.

13 MR. BYRD: Yes, Your Honor.

14 THE COURT: That's it.

15 MR. BYRD: I understand. And there's --

16 and that's well spoken from the plaintiff's perspective.

17 THE COURT: Well, it's really just -- I'm

18 talking about just in general, aside from --

19 MR. BYRD: I understand.

20 THE COURT: You know, one day you're

21 walking in, it's a straight-up premises liability case.

22 The next day you're walking in, unbeknownst to you, and

23 all of a sudden you are -- you are now assisting in

24 healthcare, even though we would all agree that the vast

25 majority of people who are acting in that capacity,
 14

1 they're not medical experts, they can't render any type

2 of healthcare appropriately in the sense of being

3 qualified to treat someone, diagnose someone. They're

4 just there basically to take down some -- I mean,

5 collect the written instructions from the doctor, maybe

6 take down some oral instructions, and then basically be

7 a ride home.

8 MR. BYRD: I understand.

9 THE COURT: Now, if that's it in a

10 nutshell --

11 MR. BYRD: I understand.

12 THE COURT: -- if that's it in a nutshell,

13 and now they have to have an expert report -- and I know

14 I'm just bashing on the policy of it all. And I'm not

15 bashing you. It just seems to me that they have done

16 this to themselves. They have created this problem

17 where one day you don't need an expert report, the next

18 day you need one.

19 MR. BYRD: Yes, Your Honor. And this --

20 THE COURT: I hear you. Yeah.

21 MR. BYRD: Well spoken, well taken.

22 THE COURT: All right. Go ahead.

23 MR. BYRD: Just brief follow-up to those

24 comments. These are statutes our defendants have to

25 follow. So imagine they're discharging patients without
 15

1 a responsible adult. Imagine they leave that door in

2 the condition described by plaintiff, smacking people,

3 smacking plaintiffs, smacking the patients on the way

4 out three times, her friend in a wheelchair. Violation

5 of the statute? Of course.

6 Of course it's a statute violation. Which

7 means from the defendants' point, we've got these rules,

8 we've got to follow these rules, and now you're telling

9 us these rules, we follow them, that's not healthcare?

10 That's the flip side to this. If these rules are

11 important, if it's important for them to follow them,

12 it's healthcare.

13 THE COURT: You know, again, I read that

14 these -- somewhere in the pleadings that allegedly these

15 doors had been -- and I may -- I'm sorry if I'm

16 mischaracterizing the evidence -- that they had been

17 malfunctioning for -- is it three days or three hours or

18 something along those lines, that they hadn't been

19 working properly for some period of time, allegedly?

20 MR. BYRD: Yes, Your Honor.

21 THE COURT: Okay. So five minutes before

22 this lady gets knocked down, somebody is in there to

23 visit, and, bam, they get knocked down, and they get

24 injured. They file a lawsuit against the facility, and

25 they don't need any kind -- they're just there to visit
 16

1 mom, dad, grandma, grandpa, say hi, see if you're okay,

2 and then they get a kiss from a door.

3 So then, the next person walks in five

4 minutes later who's a responsible adult, who's there to

5 pick somebody up and maybe, at the same time, see their

6 friend. They just agreed to be the person to give their

7 friend a ride home and to get these instructions. And

8 now they get knocked down, they get a kiss from the

9 door, they slip and fall, and now they need an expert

10 report about the lack of safety in the facility in the

11 rendering of healthcare because they're assisting in

12 providing healthcare.

13 Oh, my God. It's just -- it just -- we are

14 treating basically the same people -- the same types

15 of -- the same types of injury in two different ways,

16 depending on why they walked in the door. And it's just

17 like -- and I know you tell me this is a policy, too,

18 that if somebody's there for -- if you're there to visit

19 me, and I'm in the hospital, and you slip and fall and

20 bust your head, no, that's not a healthcare liability

21 claim. But if I walk out the door where I'm being

22 treated, I'm there postoperative, they want you to walk

23 it off and to walk around, try to get your blood flowing

24 again, everything else -- because they had me up within

25 a certain number of hours, they wanted me to walk around
 17

1 the hospital -- if I walk out, and there's a pool of

2 water and I slip and fall and I bust my head open, it's

3 a healthcare liability claim. But if you're there to

4 visit me and you do the same thing five minutes earlier

5 and you fall and bust your head open, it's not a

6 healthcare liability claim.

7 It just leads to absurd results, but

8 I -- but go ahead. Go through the seven things here.

9 And I don't want you to -- I don't want you to feel like

10 I'm not receptive to your argument. It just needs --

11 it's frustrating from a judicial view because it doesn't

12 seem, to me, to lead to any type of just result.

13 They're just -- you're treating -- I mean,

14 the injuries could be five minutes apart, literally. It

15 could be five minutes apart. One person whose walking

16 in to visit, I'm treated differently than the person who

17 basically is going to be there 15 minutes more only

18 because they have to receive written and oral

19 instructions from the treater before they walk the

20 person out.

21 You know, the first person's coming in to

22 visit, they slip and fall, they get bust -- they're

23 just -- they're treated differently than the person who

24 walks in five minutes later. And there's very, very

25 little difference between the two, as far as -- again,
 18

1 when you say they're assisting in providing care, it

2 is -- it's important what they do, but I'm just -- I

3 struggle with this idea that they should be treated

4 differently than the person who walked in five minutes

5 earlier as a visitor to see someone who was injured. I

6 just -- one requires an expert report, one doesn't.

7 MR. BYRD: I understand, Your Honor.

8 THE COURT: And it just doesn't make a lot

9 of sense to me. But then again, I know your argument is

10 essentially, well, it's just the way the law's been

11 interpreted by the appellate courts. And maybe one of

12 these days they'll look at this, and they'll say, You

13 know what, this is absurd. It really is absurd.

14 It's -- but maybe they -- maybe they won't. But go

15 ahead. So go ahead and make your argument on the seven.

16 MR. BYRD: Yes, Your Honor.

17 Since we're on substantive case law -- we

18 started with Camacho 2 -- the second thing about

19 Camacho 2 is the first element alone -- it's for the

20 performance of tasks, for the purpose of protecting

21 patients, that alone is not enough.

22 Then we get down to the doors. If the

23 purpose of the doors is to prevent criminal misconduct,

24 according to the Camacho case, Camacho 2, that's not

25 healthcare. And Camacho, our position is it's not
 19

1 applicable to this case because, number one, all they

2 have is evidence of one factor. And number two, their

3 door was designed to prevent criminal conduct. And

4 there's been no evidence in the record that our door was

5 designed for criminal conduct.

6 The next case we have that --

7 THE COURT: Isn't the most important part

8 about Camacho that favors you is the fact that the

9 person that was injured there -- and the reason this

10 case is distinguishable, this case that's in front of me

11 now, the Williams case, and Camacho, is the fact that

12 Camacho is a visitor, straight-up visitor that is

13 visiting a family member at the women's center at VRMC?

14 She was there not to act as a responsible adult -- or he

15 was -- no, she -- Maria Camacho was there to walk in as

16 a visitor.

17 MR. BYRD: And that's --

18 THE COURT: Isn't that the key point?

19 MR. BYRD: That is key. That is key.

20 THE COURT: I mean, isn't that the key?

21 MR. BYRD: I think that is the presumption.

22 They didn't have the benefit of the presumption in that

23 case, which you just summarized Tran and Rodriguez. In

24 neither of those cases did the presumption apply because

25 Tran was an employee that fell on the floor in a break
 20

1 room, and the 14th Court of Appeals said there's no

2 elements. And none of the six Ross considerations,

3 there's no evidence of any of those. And again, as you

4 pointed out, not there to seek, to receive, to provide

5 or to assist in healthcare.

6 Rodriguez, the same issue, we have a

7 technician fixing that elevator -- no. Let me see. It

8 was a -- well, it was -- I think they were maybe

9 cleaning, and they got hurt in an elevator. But anyway,

10 concept is he wasn't a patient, wasn't someone that was

11 seeking, receiving, providing or assisting in

12 healthcare, didn't have the benefit of the presumption.

13 The Court also found there's none of the seven elements

14 of the Ross case in that, no evidence of those.

15 That is really the extent of the case law

16 as of May 28th. I checked this morning, and we got you

17 the Rodriguez case as quickly as possible. To go

18 through briefly, touch on the seven elements, I'll just

19 briefly go through them, the seven Ross elements.

20 First element: The negligence occurred in

21 the course of the defendant performing a task with the

22 purpose of protecting the patient from harm.

23 The reason why we have responsible adults

24 is to protect them, make sure they get someone that

25 understands the discharge instructions, make sure they
 21

1 get out the door in a wheelchair and home by someone

2 that's not suffering from surgery and anesthesia.

3 We have the duty to maintain this door

4 because in order to remove hazards -- and you mentioned

5 you had spinal surgery. I've had four knee surgeries.

6 I've been on crutches and canes, and I can tell you, it

7 sure is nice when you have an automatic door because

8 when there's not an automatic door, you've got to swing

9 it open, crutch, crutch, crutch through, turn, in a

10 sprint, turn, hoping the door doesn't swing back and hit

11 you and knock you off the crutches.

12 THE COURT: Sure. I've had four as well.

13 It's a -- it's a -- it's a tattoo contest.

14 MR. BYRD: It really is.

15 THE COURT: I understand. I agree with

16 you, man. I agree. It's very difficult to use crutches

17 if you don't have the door swing open for you. I agree

18 totally.

19 MR. BYRD: And element number two: Did

20 injuries occur in a place where the patient might be

21 while they're receiving care?

22 Yes, while they were being wheeled --

23 discharged, and we talked about how the plaintiff's

24 friend was also smacked by the same door. Obviously a

25 place where patients received care, i.e., discharge,
 22

1 supervision by a responsible person.

2 At the time of the injury, was the claimant

3 seeking or receiving healthcare?

4 No. This is the part where I mentioned

5 that two of the six -- two of the seven elements were

6 interchangeable; you're either seeking or receiving

7 healthcare or you're assisting or providing. I don't

8 see how you can do both. So this third element is

9 really not applicable.

10 Four: At the time of the injury, was

11 claimant providing or receiving healthcare?

12 We've already discussed that.

13 Fifth was: Alleged negligence based on

14 safety standards from professional duties owed by

15 healthcare provider.

16 So this is -- this is yes. We have two

17 sets of -- we have the discharge policies from the

18 facility itself, and we have the Texas Administrative

19 Code. Those are all safety standards imposing

20 professional duties on KSADD and -- well, on North Texas

21 Team Care Surgery Center, which is the -- let me back

22 up.

23 In this case, as far as the defendants, we

24 have the physician, Dr. Kikkeri. And then he has an

25 office practice on one side of the building for pain
 23

1 management. He's a pain management specialist. On the

2 other side of the building, he has a surgery center,

3 ambulatory surgery center, that they share a common

4 reception area. He has an entity for each. He has --

5 he's the doctor. He has an entity for the office

6 practice; that's APS. He has an entity for the surgery

7 center; that's the North Texas Team Care Surgery Center,

8 NTTC SC. And then he has KSADD, which is the landlord

9 entity.

10 North Texas, in this case, because we have

11 a postoperative patient, KSADD's duties are delegated to

12 North Texas -- excuse me. The surgery center's duties

13 are delegated to KSADD. KSADD, under the case law,

14 under the statute, is an affiliate of Dr. Kikkeri. It's

15 an entity that he has control over, and it's been

16 delegated the responsibility of maintaining the premises

17 as appropriate for an office practice or a --

18 maintaining the facility and the fixtures as appropriate

19 for an office practice and a surgery center.

20 That is element number five briefed well in

21 the motion that we filed.

22 An instrumentality involved and alleged

23 in -- okay. And this is element six: If an

24 instrumentality is involved in the defendant's alleged

25 negligence, was it a type used in providing healthcare?
 24

1 Now, this is something we provide in an

2 expert report. We designated experts in the case

3 according to our scheduling order. The expert we

4 designated worked on these doors, and he, under oath,

5 said that the way these doors are set up, open up, swing

6 out, they have -- swinging away from the patients

7 going -- leaving the facility with their responsible

8 adults in wheelchairs. We have -- the only way to open

9 them is by pushing them, so it's a knowing act.

10 Presumably, a reasonable, prudent person in a surgery

11 center would be a little bit more careful and -- when

12 they're making that knowing act and push the push pad to

13 open the door the only way it opens.

14 We also have to protect people on the other

15 side in case someone is not using their best judgment,

16 and we have a BEA Bodyguard Presence detector, which

17 means if you're in the swing radius of the door, it's

18 not supposed to open it. It automatically will not

19 open.

20 He said that that kind of combination, that

21 configuration, that modification of the door was a

22 reasonable and prudent way to provide easy access and

23 free-of-harm exit for these patients and their

24 responsible adults. And he's also said -- and this is

25 the part that I thought was really interesting -- he's
 25

1 seen that same kind of configuration used on hospitals

2 and ambulatory surgical centers throughout the DFW

3 Metroplex. Likewise, he said that same setup is a

4 reasonable, prudent way to provide entrance to patients.

5 As we noted in our briefing, a lot of these

6 patients are like us, they're on wheelchairs, they're on

7 canes, they have crutches, need some kind of assistance

8 in walking, mainly due to their debilitating pain and

9 the medications they received for the pain.

10 Our position is these doors were -- as

11 configured, we have the figures we just discussed and

12 also labeled. They were labeled to make it obvious that

13 they were automatic doors. The function and the

14 labeling of these doors was particularly suited to

15 providing safety for the patients, as intended.

16 We're at the last element: Did the

17 negligence occur in the course of the defense making or

18 taking actions or failing to take action -- excuse me.

19 THE COURT: You need some water?

20 MR. BYRD: I brought some. Thank you.

21 THE COURT: Oh, okay. I was going to say,

22 there's some right there.

23 MR. BYRD: 0h. That would be quicker.

24 THE COURT: I put cups there. You might

25 want to snap that in place. Snap it in, if it does.
 26

1 MR. BYRD: Okay.

2 THE COURT: I don't know if it does or not.

3 I just don't want you to get it all over your suit.

4 Have you ever seen the movie "Airplane"?

5 MR. BYRD: I have.

6 THE COURT: I have a drinking problem?

7 Whenever -- okay. Never mind. All right. Didn't want

8 you to wear your water there.

9 Okay. Go ahead. I digress often.

10 MR. BYRD: I appreciate it. Thank you.

11 Okay. Back to this element number seven:

12 Did it occur in the course of the defendant taking

13 action or failing to take action necessary to comply

14 with the safety-related requirements set for healthcare

15 providers by governmental or accrediting agencies?

16 We've already discussed the two statutes.

17 Texas Administrative Code 135.11 -- excuse me --

18 135.11(18), that's the one that requires responsible

19 adults in order to dismiss patients.

20 Texas Administrative Code 135.10, which

21 says basically you have to remove all hazards.

22 Sorry.

23 THE COURT: That's fine. Go ahead.

24 MR. BYRD: Thank you, Your Honor.

25 Okay. And these are the kind of hazards we
 27

1 have. And it uses a pronoun, hazards. Shock -- Any

2 kind of hazard that might lead to slipping, falling,

3 electrical shock, burning, poisoning or other trauma

4 shall be eliminated.

5 We discussed how those doors were designed

6 to prevent problems with getting out the door by a

7 swinging door that could knock you off balance if you

8 don't scoot through the doorway fast enough.

9 To summarize and give Plaintiff's counsel a

10 chance to speak, the Ross case refined and narrowed the

11 safety standards claim under the -- under Chapter 74 of

12 the Civil Practice and Remedies Code. We have the

13 presumption in this case because Ms. -- the plaintiff

14 was participating in -- or assisting in providing

15 healthcare at the time of her accident with the door.

16 Under Ross and with this presumption, this is still a

17 healthcare liability claim, an expert report was not

18 timely served; and therefore, a dismissal with prejudice

19 is required.

20 THE COURT: Okay. Thank you.

21 All right. Response.

22 MR. HALLMAN: Good afternoon, Your Honor.

23 John Hallman for the plaintiff. Just want to say first

24 off, if I seem a little bit nervous, it's not because

25 I'm not confident in my argument. This is my first time
 28

1 arguing a motion to dismiss.

2 THE COURT: Okay. Well, we're friendly

3 here.

4 MR. HALLMAN: All right. That's what I'm

5 kind of getting a feel for.

6 THE COURT: All right. Go ahead.

7 MR. HALLMAN: I want to clarify the facts

8 to begin with. My client, Joan Williams, she was there

9 with her friend. They went in together, and her friend

10 was told that the procedure would take 45 minutes.

11 Prior to that, the plan was that Joan was going to drop

12 off her friend, go home to her husband, wait for a call

13 and then come back. In response to 45 minutes wait

14 time, Joan decided just to stay there. She stepped

15 outside to the parking lot, called her husband to let

16 him know that she would not be home as planned, that she

17 was just going to stay there, and got off the phone and

18 stepped back into the healthcare facility. That is when

19 the accident or the injury occurred.

20 Now, what's important about those facts is

21 she was not picking up her friend. She had not been

22 briefed on the standards of postoperative discharge

23 care. And from that, it's our position that she was not

24 assisting in providing care when she was injured.

25 THE COURT: So your position would be
 29

1 different if she had left and come back rather than just

2 go out to the parking lot, make a call and come back

3 into the facility? Is that it?

4 MR. HALLMAN: No, Your Honor. What I'm

5 getting at is that it's different because she had not

6 been briefed by a doctor or a nurse on what she would be

7 doing. Joan never planned on doing anything more than

8 dropping off her friend and picking up her friend, nor

9 was she ever told by the defendant or the affiliates of

10 the defendant that she would be assisting in providing

11 healthcare.

12 THE COURT: So she didn't -- okay. So she

13 didn't consent to being a responsible adult; she was

14 just simply identified as a responsible adult by her

15 friend?

16 MR. HALLMAN: She had not yet undergone any

17 training or had not been told any of the guidelines for

18 what she would be doing as a responsible adult.

19 THE COURT: But that wasn't my question,

20 though. I mean, did she actually consent to be -- I

21 don't know -- and again, I may have to go back into the

22 motion to dismiss. Did she consent to being a

23 responsible adult? Had she signed some form or, you

24 know, recognized that she was going to be the person

25 responsible for not only just picking up the person who
 30

1 had been operated on, but also for receiving the

2 postsurgical instructions and --

3 MR. HALLMAN: No, Your Honor. From her

4 affidavit, all she was doing was serving as a ride for

5 her friend. Her name was listed by the friend --

6 THE COURT: By the friend who had been

7 treated?

8 MR. HALLMAN: Right. Her friend gave her

9 name, and someone wrote it down. But, no, Joan did not

10 sign anything.

11 And in addition, on Defendants'

12 supplemental briefing for this hearing today, on

13 page 12, the defendant makes an admission that Plaintiff

14 was not able to perform these duties. It's in their own

15 briefing that she did not do any of these duties because

16 she was injured before she was briefed on what duties

17 she might be responsible for.

18 And that's the main distinction I wanted to

19 make from the original discussion I just heard. I'm

20 prepared to go through the Ross factors and explain to

21 you why under Ross this is not a healthcare liability

22 claim.

23 THE COURT: Well, please do.

24 MR. HALLMAN: Okay. Factor one: Did the

25 negligence occur in the course of defendant performing
 31

1 tasks with the purpose of protecting patients from harm?

2 The defendant was not doing anything when

3 this injury occurred, much less a task. There was no

4 task being performed. Automatic doors malfunctioned.

5 And even in the event that you might find a task was

6 being performed, that task was being performed for

7 convenience and not safety. If safety was the true

8 motive, the doors at issue created hazards rather than

9 removing hazards. Automatic doors that would retract

10 into a wall pocket, those would be in the name of

11 safety. When you have automatic doors that swing

12 through the entrance area where patients in wheelchairs

13 might be, it's foreseeable that those swinging doors are

14 going to hit someone, possibly someone who's not paying

15 attention.

16 THE COURT: I can only hear defense counsel

17 saying, that's why you need an expert report. If you're

18 taking the position that somehow these doors were

19 hazardous or that they were a danger in themselves just

20 because of the way they swung out, I think that kind of

21 strengthened his hand by making that statement. And

22 probably the first thing he'd say is you're not

23 qualified to make it yourself. But go ahead with the

24 rest of your argument.

25 MR. HALLMAN: And that's just the first
 32

1 factor. Just to reiterate, the defendant was not doing

2 anything, much less performing a task.

3 Number two of the Ross factors: Did the

4 injuries occur in a place where patients might be during

5 the time that they are receiving care?

6 Your Honor, these -- these injuries

7 occurred in the entrance to the ambulatory care center,

8 and that is not an area where patients are receiving

9 care. The court of appeals in Camacho held that a

10 hospital entrance is not an area where patients are

11 receiving care. And that's -- that's as simple as my

12 argument gets on number two. And importantly, in their

13 supplemental briefing, the defendants failed to address

14 this substantively. If you read it, they did not really

15 answer why the entrance is an area where care is

16 provided.

17 On number three, number three is not

18 contested by the defendant.

19 Number four: At the time of the injury,

20 was the claimant providing or assisting in providing

21 healthcare?

22 And again, I'll refer you back to the

23 admission. Plaintiff was not able to perform the

24 substantive postoperative duties for her friend.

25 THE COURT: So in other words, she
 33

1 shouldn't be forced to file an expert report because she

2 never got an opportunity to assist? Like if she

3 had been --

4 MR. HALLMAN: Among many other more

5 important reasons.

6 THE COURT: I think your argument basically

7 is that at the time she was injured, she wasn't doing

8 anything to assist in healthcare. If she had been

9 injured on the way out of the facility after she had

10 been told, as a responsible adult, what needed to happen

11 postoperatively, these are the medications your friend

12 needs to take, and received all the standard

13 postsurgical instructions, not that they're

14 necessarily -- when I say "standard," we use that word

15 loosely. You get the written and oral instructions and

16 the notes of the doctors as to what's supposed to happen

17 after surgery. If she's walking out the door and that's

18 when she's injured, after she has been identified as a

19 responsible adult and taken those instructions, then

20 perhaps your argument would be different. Do you

21 concede that it would be?

22 MR. HALLMAN: I think that's a very

23 important distinction that I'm trying to make. But at

24 the same time, it's not dispositive whether or not she

25 had been briefed. These factors are not exclusive and
 34

1 neither -- no individual factor is going to be

2 dispositive. But I am -- yes, that is what I'm getting

3 at. She was not providing any sort of care when she was

4 injured, nor had she been prepared or briefed on how to

5 provide that care.

6 THE COURT: You know what's interesting

7 about all this is that if the responsible adults that

8 are required by the legislature --

9 MR. BYRD: Yes, Your Honor.

10 THE COURT: -- again, that's the -- you

11 would think that before -- it's almost like there would

12 be some -- they would have developed some type of form

13 for these responsible adults to sign before they assume

14 those duties.

15 Because essentially, what you are -- if

16 you've got a friend saying, Hey, look, man, can you pick

17 me up? I'm having surgery tomorrow. I've got to get

18 something cut on and -- let's say it's just a

19 meniscectomy or something like that in your knee. Okay?

20 You're in and out of surgery in 45 minutes. You ask a

21 buddy to pick you up. You identify your buddy as the

22 responsible adult. Your buddy doesn't have any idea,

23 number one, that he's been designated as such. He just

24 agreed to pick you up at the hospital after you got out

25 of surgery.
 35

1 You know, there's no recognition that they

2 are, in fact, assisting in the rendering of healthcare.

3 You're walking in just to pick up your friend. And so

4 someone else, the treater, is basically deciding your

5 classification, you know what I mean, when it comes to

6 whether or not you are a licensee or invitee or a

7 responsible adult, not a responsible -- like just there

8 to visit, just there to -- your designation is being

9 provided to you by someone -- or assigned to you by

10 someone.

11 You haven't even assumed those roles

12 necessarily with knowledge that you have been given that

13 responsibility. Your friend may have designated you as

14 such, and you have no idea. You just agreed to pick

15 them up. The treater has identified you as such and

16 won't let you out of the facility without that

17 responsible adult coming in, and you haven't signed a

18 thing.

19 You haven't signed a thing assuming

20 responsibility for any -- you know, being the

21 responsible adult and all that entails under Texas law.

22 You just agreed to pick your friend up, and all of a

23 sudden, whether you are aware of it or not, now the

24 facility gets to treat you differently if you were to be

25 injured. And also, you have an official, evidently, job
 36

1 duty in the fact that you are assisting in the rendering

2 of healthcare just by agreeing to give your friend a

3 ride.

4 Again, I'm doing a rant, and I'm sorry that

5 I'm doing it, but this is part of the problem. It

6 just -- I mean, if I'm going to have -- if I'm going to

7 be assisting in the rendering of healthcare, I would

8 expect most healthcare facilities to at least have me

9 sign something acknowledging that I'm picking my friend

10 up and that I am going to relay to my friend once the

11 anesthesia wakes off -- wears off -- I'm sorry -- the

12 postsurgical instructions that have just been given to

13 me by the treater, I'm going to give the written

14 instructions that I got from the nurse or the doctor to

15 the patient so that they follow the doctor's advice.

16 Evidently, these responsible adults don't have to sign

17 anything before they leave with the patient. And is

18 that -- there's nothing that's being signed?

19 MR. BYRD: I'd have to look into that.

20 MR. HALLMAN: Not that's been presented.

21 THE COURT: That is a big deal.

22 MR. BYRD: I understand, Your Honor.

23 THE COURT: So, I mean, it's one

24 thing if -- look, if you're acknowledging that you're

25 taking this role on yourself and you're
 37

1 assuming these -- that you're agreeing voluntarily to

2 provide these instructions from the treater to the

3 patient once the patient becomes, for lack of a better

4 word, competent to actually receive that information

5 after the anesthesia wears off, then maybe there's an

6 acknowledgment, you know what, yeah, I'm assisting in

7 the rendering of healthcare, but you're not asked to

8 sign anything. You may not even know that you're the

9 responsible adult. You're just the buddy who agreed to

10 give him a ride home from the hospital. It's just -- it

11 is -- again, it just seems to me -- go ahead. I keep

12 interrupting your argument, and I'm sorry.

13 MR. HALLMAN: No, you're fine, Your Honor.

14 Halfway through your argument, I wanted to

15 say that the treating physician here is not a defendant.

16 We are suing a landlord entity only. I just wanted to

17 clarify that.

18 And to support the discussion we just had,

19 I want to refer you to Scoresby v. Santillan, which I

20 cited in the first sentence in my argument. The purpose

21 of this expert report requirement is not to have these

22 claims dismissed regardless of their merits; it's to

23 deter and identify frivolous lawsuits. And that's from

24 the Texas Supreme Court.

25 Okay. Moving on to element number five
 38

1 from Ross: Is the negligence based on safety standards

2 arising from professional duties owed by the healthcare

3 provider?

4 Once again, KSADD, the defendant, is not a

5 healthcare provider; they're a landlord entity. Our

6 complaint is a premises liability complaint. It's based

7 on defective front entrance doors. There's no

8 allegations here that the doctor did anything wrong or

9 that any healthcare standard was violated. The

10 complaint is just a premises claim.

11 THE COURT: Well, you understand defense's

12 position is a little bit different than that.

13 MR. HALLMAN: I do. I think --

14 THE COURT: Comply with the government code

15 and --

16 MR. HALLMAN: Well, the admin code, there's

17 two sections cited. One section requires responsible

18 adults, which I don't believe is applicable to our

19 premises complaint. The other admin code requires the

20 defendant -- it says that the defendant shall eliminate

21 hazards that could lead to slipping, falling or other

22 trauma.

23 And I'm just summarizing what it says.

24 There's no requirement that the defendant install

25 automatic doors. There's no penalty if defendant chose
 39

1 not to install automatic doors. It's an elective

2 building design-type thing to install these automatic

3 doors. There's no regulation that's been cited in

4 anything that defendants produced or referred to that

5 makes automatic doors mandatory.

6 And in Camacho, the automatic doors were

7 even closer to being something that would be a

8 healthcare specific door. Those doors were tied to

9 infant alarms that were on infants' ankles, and those

10 doors would close whenever an infant was approaching the

11 door prior to being dismissed from the hospital. These

12 doors are just doors. Camacho, those doors were found

13 not to be a healthcare liability claim, and I think that

14 strengthens my argument substantially.

15 Number six, and kind of keeping with the

16 door thing: Is an instrument -- if an instrumentality

17 was involved in the negligence, was it a type used in

18 providing healthcare?

19 No. At no point does the defendant in his

20 supplemental briefing argue that the doors in question

21 were of a type used in providing healthcare. Mr. Byrd

22 referred to his expert, Mr. Hines and the affidavit

23 prepared by Mr. Hines. If you read that affidavit, it

24 does not say that these doors were of a type used to

25 provide healthcare, as required by the factor in Ross.
 40

1 The door is a regular Stanley automatic door. It's not

2 a Stanley healthcare door.

3 And I -- may I approach, Your Honor?

4 THE COURT: Sure.

5 MR. HALLMAN: Mr. Byrd, here.

6 I'm just going to show -- this is from the

7 Stanley website. This is a product listing of the door

8 in question, Your Honor.

9 THE COURT: Sure.

10 MR. HALLMAN: And then, here is a product

11 listing of the doors that are not in question. These

12 are also made by Stanley, and those are healthcare

13 doors. And what I'm getting at with that is that KSADD

14 could have chosen to buy and install healthcare specific

15 doors, but they didn't. They installed doors that you

16 see at malls, grocery stores, Target, other places.

17 So tying that to the factor, there's

18 nothing special about these doors that makes them a door

19 that is of the type used in healthcare.

20 And finally, factor number seven: Did

21 negligence occur in the course of Defendant taking

22 action or failing to take action necessary to comply

23 with safety-related requirements set for healthcare

24 providers by governmental or accrediting agencies?

25 And I do understand that this is similar to
 41

1 factor five. But once again, the alleged negligence is

2 a door malfunction, not that defendant didn't comply

3 with the safety regulation. There's no requirement that

4 the defendant have these special doors. There's no

5 penalty or fine to defendant if they don't have these

6 special doors. And in this case, having normal doors

7 would have prevented the injury.

8 I don't know if Mr. Wolf has anything, but

9 that is my analysis. And I think Ross and Camacho

10 require a finding that this is not a healthcare

11 liability claim subject to the expert report

12 requirement. And stepping away from the factors, I

13 think it's pretty clear that this is a -- primarily a

14 premises case, not a healthcare case that should be

15 dismissed with prejudice against my client.

16 Thank you, Your Honor.

17 THE COURT: Okay. Anything to add?

18 MR. WOLF: Briefly. I have -- one, there

19 is no Camacho 1 and 2. There is just Camacho. When we

20 have a 1 or 2 scenario, it would be like Volkswagen 1,

21 Volkswagen 2. There's only one Camacho case. It was

22 controlling, presumably, in the underlying motion, and

23 now it devastates the underlying motion. It is just

24 simply Camacho. That is the only thing I'd like to

25 point out to the Court.
 42

1 THE COURT: When you say it devastates --

2 MR. WOLF: It's --

3 THE COURT: -- it really -- I mean, it

4 really is kind of -- because -- and I realize that the

5 Supreme Court has listed out seven factors, but if --

6 there are certain -- there are certain of the seven, I

7 think that you would agree with me there are a couple of

8 them that are probably more important than the others.

9 If you're -- if you're actually -- at the time of the

10 injury, if the claimant was in the process of seeking or

11 receiving healthcare or they were providing or assisting

12 in healthcare, that either one of those could be enough.

13 MR. WOLF: Could be. And if -- you would

14 have to weigh it. But step back for a minute. The

15 hospital was the healthcare provider in Camacho. This

16 is -- the Supreme Court said, and Camacho Court took the

17 cue, this is not a simple but-for. But what you're

18 hearing, in spite of Ross, is you're hearing a but-for

19 argument by a non-healthcare entity against a

20 non-healthcare recipient. This is a long way further

21 away from 74 than even Camacho.

22 At least Camacho had a healthcare provider.

23 We don't even have it. We have an affiliate that has

24 never practiced medicine, and they can never meet any of

25 the tenets of practicing medicine or complying with
 43

1 regulations because they don't apply to KSADD. So these

2 duties that are being argued here are new duties that

3 would be formed between a non-healthcare provider and a

4 non-healthcare recipient somehow under Chapter 74 that

5 don't exist under Chapter 74. That's why I say it's

6 devastating.

7 MR. BYRD: Brief response, Your Honor.

8 THE COURT: All right. Yes, please.

9 MR. BYRD: Okay. Just to follow up on

10 Mr. Wolf's statement about KSADD, that KSADD is somehow

11 not a healthcare provider, that's just wrong under the

12 statute. You have to pay attention to the definitions,

13 and that's really what this is all about, these

14 definitions.

15 They didn't cite 74.001(a)(10) once in

16 their response. And 74.001(a)(10) is actually the

17 definition of a healthcare -- of healthcare. It's

18 not --

19 THE COURT: The definition of healthcare or

20 healthcare provider?

21 MR. WOLF: Provider.

22 MR. BYRD: It's --

23 THE COURT: Hang on. You said 74.0010?

24 MR. WOLF: 001.

25 THE COURT: 001. Okay. Hang on a second.
 44

1 MR. BYRD: Let me pull that up. It's

2 (a)(10).

3 THE COURT: Okay. All right.

4 MR. BYRD: It's not cited once in their

5 brief. And we went through in painstaking detail how

6 KSADD was an affiliate. It is -- we also prepared a

7 supplemental affidavit regarding -- it's been delegated

8 the duty of North Texas Team Care Surgery Center, as far

9 as those duties relate to safety for patients in the

10 facility. I don't understand how Camacho 2 -- and there

11 are two Camacho cases.

12 MR. WOLF: No. There's a withdrawn Camacho

13 case.

14 THE COURT: Yeah. There's -- yeah.

15 MR. BYRD: There's a subsequent Camacho.

16 Okay. As long as we're referring to the same case.

17 MR. WOLF: Well, yeah.

18 MR. BYRD: It agreed that having those

19 doors was -- Ross element one, it said, that's fine.

20 That was it, but that's not -- so that is in no way

21 devastating at all to our case because, as you pointed

22 out, it didn't occur during healthcare. That was the

23 presumption in Camacho, which is the most important

24 factor. And this is -- Plaintiff's counsel was

25 testifying about --
 45

1 THE COURT: And so, in your mind, the

2 defendant that's left is just simply the property owner,

3 which is an entity owned by Dr. Kikkeri?

4 MR. BYRD: Yes, Your Honor. It's the

5 landlord entity that has the duty of maintaining the

6 premises and the fixtures as appropriate for a surgery

7 center --

8 THE COURT: Healthcare facility.

9 MR. BYRD: -- and office practice. Yes,

10 Your Honor. And it all goes back to Dr. Kikkeri. He's

11 in complete control of that entity.

12 THE COURT: Are they a healthcare provider?

13 MR. BYRD: Yes, Your Honor, because they're

14 an affiliate, and an affiliate is a healthcare provider.

15 THE COURT: Where does it say that?

16 MR. BYRD: You know, I didn't print out

17 my -- do you have your 74 with you?

18 THE COURT: Yes, I do, actually.

19 MR. BYRD: Thank you, Your Honor.

20 THE COURT: Sure. Take your time.

21 MR. BYRD: I'll use sticky notes. Here's

22 affiliate, and here is healthcare provider specifically.

23 Let me see. Affiliate right here, and here's why

24 Dr. Kikkeri -- it is his affiliate because he has

25 control.
 46

1 THE COURT: Let me see.

2 MR. BYRD: Yes, Your Honor.

3 THE COURT: All right. So 74.001(a)(1),

4 that defines affiliate. All right. So -- okay. So

5 what you're saying is that healthcare provider, when you

6 go to 74.001 -- do you guys have a copy of it there in

7 front of you?

8 MR. WOLF: Yeah. I said earlier, a moment

9 ago: Although they are an affiliate.

10 THE COURT: Okay.

11 MR. WOLF: We acknowledge they're an

12 affiliate. And to take your point a little further, if

13 his wife -- they bought a car to get him to work every

14 day to where he would go become a healthcare provider,

15 and on the way to work she were to run over some

16 pedestrians, their argument would be that 74 applies

17 because that's in connection with healthcare. There are

18 so many absurdities in this, but --

19 MR. BYRD: Your Honor, that's --

20 MR. WOLF: -- but that Camacho language,

21 Judge, where it says: Not seeking or receiving

22 healthcare at the time of the injury, not providing or

23 assisting at the time of the injury, it didn't happen

24 where patients receive it, that's the new, the actual

25 Camacho holding. There's no Camacho 1.
 47

1 THE COURT: Right, right. You made that

2 point. I just want to make sure -- so it's -- the point

3 generally is that this idea that somehow they're excused

4 from 74 because it's only the property owner, the

5 landlord here that they're suing, that's just not the

6 case. That's point number one which you want to make.

7 MR. BYRD: Yes. If you pierce the

8 corporate veil, it's Dr. Kikkeri.

9 THE COURT: Okay.

10 MR. BYRD: It's his affiliate.

11 THE COURT: All right. What else?

12 MR. BYRD: They -- they said that this

13 is -- this statute was not designed for this kind of

14 case; it was designed to weed out frivolous cases.

15 Well, there's two points to that.

16 What is frivolous? Well, there's a

17 liability question, and there's a damages question. And

18 to respond in kind to Plaintiff's counsel, I think on

19 the liability, this is a frivolous case. On damages,

20 however, unfortunately for Ms. Williams, not frivolous.

21 There are some serious damages here. But you don't get

22 a case just from damages alone; it takes liability. And

23 that's why it's nice for healthcare providers to have

24 expert reports in situations like this.

25 MR. WOLF: I take exception to that. There
 48

1 can be frivolous defenses the same way there can be

2 frivolous claims.

3 THE COURT: Yeah. I just -- look, when

4 they crafted the legislation, the idea was to try to --

5 there was -- you remember, obviously, there was a big

6 thing about all this alleged crisis with medical

7 fraud -- you know, frivolous medical malpractice

8 lawsuits. All right? And now they have interpreted

9 this statute, which was evidently created to address

10 this crisis -- and I use that word loosely --

11 MR. BYRD: I understand.

12 THE COURT: -- that has been interpreted in

13 such a way that safety has been -- instead of safety,

14 specifically in somebody -- in regards to somebody

15 putting their hands on you and not treating you properly

16 or giving you the wrong medicine or putting in your IV

17 incorrectly, now we're talking about, well, if you're a

18 patient there at the hospital, like the example I gave

19 you, you walk out of your room, and you slip and fall on

20 some water, you're a patient at the facility, you're

21 done. That's just -- and, you know, it has nothing to

22 do with -- remember the whole crisis was about how

23 medical malpractice premiums had skyrocketed, and all

24 the doctors needed this protection, and they -- and this

25 particular type of claim wouldn't even be a -- it would
 49

1 be covered by typically an insurance policy that's just

2 a general premises liability policy, not a medical

3 malpractice insurance policy.

4 So again, safety has been interpreted in

5 such a way that it really doesn't have anything to deal

6 with medical malpractice anymore. It's -- but I know

7 that you had to argue it differently, and I respect you

8 for doing your job. I just -- I don't want you to take

9 my rant as being some kind of -- I just -- to me, it has

10 led to absurdities, and that's what my position is on

11 it.

12 Now, whether or not they have to file a

13 Chapter 74 report, my big concern here is -- I do agree

14 with you that, look, this lady was not there just to act

15 as a visitor; she was there to act as the responsible

16 adult, but she didn't know it. There's no evidence in

17 the motion that she knew that she was assuming these

18 duties voluntarily. Somebody had identified her as

19 such. So she doesn't even know that she's there to

20 assist in the rendering of healthcare.

21 She's just -- again, just like in the

22 everyday world, one buddy's going in for a surgery,

23 another buddy asked him to pick him up after he wakes

24 up. And they just go, Sure, man, I'll pick you up, and

25 then you slip and fall or you have your head crushed by
 50

1 a door, some other type of -- seriously, your argument

2 could be if I was walking from the parking lot into the

3 facility and I came around the corner and there was a

4 gigantic hole that they had cut in the sidewalk -- and

5 you and I would both agree that you need to put up a

6 barrier to prevent people from falling in -- you turn

7 the corner, and you're there to pick up your buddy.

8 You're a, quote, responsible adult. You don't know

9 you've been necessarily designated as such. The

10 hospital hasn't required you to sign any type of forms

11 recognizing what your duties are, the fact that you've

12 got this special role. You're just a pick-up guy.

13 You're on your way in, you fall in the hole -- and by

14 the way, if I fall on top of someone who was there five

15 minutes before who just came there to visit their buddy,

16 you'd be treating them differently than me because I

17 have been declared a responsible adult. Both of us fell

18 in the hole, and you needed to tell us about the hole.

19 That's what I'm talking about when I'm

20 talking about absurd results, and it just -- that's what

21 it would be. The courts of appeal -- I mean, it's a

22 mess. They have strained so far on this safety stuff

23 that it leads to some absurd results.

24 Look, I'm going to take this under

25 advisement, but I think my biggest problem is this idea
 51

1 that they were assisting in the rendering -- or

2 providing of healthcare. And I know that she's been

3 designated as the responsible adult, but without some --

4 some evidence to show that she knew she was -- you know,

5 I could designate you, Mr. Byrd, as my responsible

6 adult. You wouldn't have any idea when you're there to

7 pick me up from my surgery that you have been designated

8 as such. All I asked you to do is pick me up. But you

9 show up, you haven't had -- you don't have any idea that

10 you've been designated as a responsible adult, you don't

11 really have any idea that technically you are assisting

12 in the rendering of healthcare, but now you are

13 according to the treatment facility.

14 MR. BYRD: Yes, Your Honor. And just

15 briefly to respond?

16 THE COURT: Sure.

17 MR. BYRD: I do know because I have had

18 ambulatory surgery twice.

19 THE COURT: Sure. You do.

20 MR. BYRD: And so if you --

21 THE COURT: Sure. And I do, too.

22 MR. BYRD: So has the plaintiff. She had

23 it by Dr. Kikkeri in 2007. She had a ride home. She

24 had to designate someone to drive her home. There

25 is -- and just from a technical causation standpoint,
 52

1 there's no evidence in the record she would have

2 said -- and let's just say she makes it through the

3 door, there's no incident, right? Okay.

4 THE COURT: Sure.

5 MR. BYRD: She continues to fulfill her

6 duty as a responsible person. There's no evidence she

7 would have heard: Okay, these are the discharge

8 instructions, and she says, Whoa, no. I'm leaving. I'm

9 out of here. I didn't sign up for this.

10 There's none of that. There's no causation

11 issue in the record about that, that she would have

12 refused these duties if she hadn't remembered them,

13 which she -- she probably had a general idea of them

14 because she had a surgery from Dr. Kikkeri several years

15 earlier.

16 MR. WOLF: In response to that, Your Honor,

17 this place didn't exist in 2007. Where this happened

18 didn't exist. It was a field, number one. Number two,

19 the evidence before the Court that's not refuted is that

20 she had not been informed by anyone that there were any

21 special procedures. So at the time she's in that

22 vestibule, she's just going to pick up a friend. She

23 hasn't started this business of becoming the agent of

24 the doctor to care for this post-PACU patient. It just

25 hasn't happened yet. Factually, they can't get there.
 53

1 And using a surgery that she had for herself and

2 whatever procedures there were in 2007, to say that she

3 must always know that all people -- the -- you spoke of

4 absurdities. That's not even a point of evidence here.

5 THE COURT: That's why it is so factually

6 intensive. And I -- at one point, I discussed, and I

7 think Mr. Hallman, as he was talking, and I asked him,

8 Would your analysis be different if she actually had the

9 patient in the wheelchair pushing her out the door? She

10 had assumed the duties of --

11 MR. WOLF: It is splitting absurd --

12 THE COURT: She didn't -- even if she

13 didn't have to sign a form, if she had gone into the

14 room and picked up -- you know, was there to pick up her

15 friend, she's there with the nurse or the doctor,

16 they've already put her in the wheelchair because

17 they're not going to let her walk out, and she's gotten

18 the written and postsurgical written instructions, she

19 may have got the prescriptions that her friend's been

20 prescribed, she's been given oral instructions by the

21 treater, so maybe then, on the facts --

22 MR. WOLF: Maybe.

23 THE COURT: -- she's assisting in the

24 rendering of healthcare.

25 MR. WOLF: But --
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1 THE COURT: If she's assisting, knowing

2 that that person can't leave, maybe then, factually, she

3 can't argue, even if she didn't sign off that she knew

4 she was assisting in the rendering of healthcare. But

5 she's not there --

6 MR. WOLF: She never got there. She never

7 got to that point. She never got those instructions.

8 She never became a willing or unwilling participant in

9 healthcare. She never got there. In fact, the only

10 evidence in front of the Court is: I was never informed

11 by the doctor of any special routines or procedures that

12 I needed to follow, et cetera.

13 It's in her affidavit. She never got past

14 the doors. She never got the instruction to be then the

15 person taking care of her. She was never the person

16 taking care of -- and I respect what the Court is saying

17 because I completely agree with it, the absurdities

18 here. But even if we have splitting the hairs, the case

19 that he's asking you to split and go down that analysis,

20 she never got into the building. She never got the

21 instructions. She never got to be part of any

22 healthcare.

23 THE COURT: She was in the building, I

24 think, Mr. Byrd.

25 MR. BYRD: Yeah.
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1 THE COURT: She was in a waiting area. She

2 had to go through two doors to get into the --

3 MR. WOLF: To get back in after the phone

4 call, right. But she never got the instructions. She

5 never got any special any of it. She never became a

6 participant, willing or unwilling, in the healthcare of

7 this patient. And that's what their arguing. Well, she

8 was going to be the responsible adult. She never got

9 there in time. The accident happened before she

10 received any --

11 THE COURT: Right.

12 MR. WOLF: -- special instruction. And

13 that is splitting absurd hairs, but if we go and look at

14 it that way, the only evidence in front of this Court is

15 she didn't do it. She never got there.

16 MR. BYRD: Brief response, Your Honor?

17 THE COURT: Sure. And that's kind of what

18 my -- I went down a tangent, Mr. Byrd, and I said, Well,

19 what if it was a hole in the ground, and I mean, she

20 could have been outside calling her friend or smoking a

21 cigarette or something like that, and she's walking back

22 in to be the responsible adult, she falls in the hole.

23 Your argument would be the same, wouldn't it? She was

24 there to provide -- she -- I mean --

25 MR. BYRD: If she --
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1 THE COURT: I mean, it's about -- I mean,

2 obviously, again, healthcare facility, if you had a hole

3 in the sidewalk and you're entering or leaving, then you

4 would rope it off. You would agree with me that you

5 wouldn't want any of your patients to fall in a hole or

6 anybody there. I mean, again, this is -- it's basically

7 the same thing, isn't it? But she just never got an

8 opportunity to do what she was -- what would definitely

9 be -- well, I shouldn't say definitely because I know

10 plaintiffs don't want to follow me there -- but there's

11 a stronger argument to be had from your side if she was

12 actually participating as the responsible adult at the

13 moment that she was injured. She didn't even get an

14 opportunity to do that, right?

15 MR. BYRD: Well, she was by showing up to

16 give a ride. That is enough. That is showing up -- you

17 have -- you have to show up in order to provide

18 anything. Okay? And she was there. She came there --

19 she answered an interrogatory: What was your purpose?

20 I was there to be the driver -- designated driver, her

21 words. So she answered -- so she had done enough to

22 qualify under -- one of the ten or so things in our --

23 of the postoperative duties of the responsible adult is

24 safe transportation home. She has shown up to do that.

25 That is enough. We -- we provide a surgery to her
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1 friend in expectation of her coming. We had her name,

2 her phone number. We were expecting her. She wouldn't

3 have been released to anyone but her. This is -- the

4 lady who had surgery, she's in PACU. She's waiting for

5 her friend to pick her up. Her friend's coming in to

6 pick her up. That's -- that is a whole --

7 THE COURT: All right. Okay. Anything

8 else? Y'all have proposed orders?

9 MR. BYRD: We do, Your Honor.

10 MR. WOLF: Yes. Approach?

11 THE COURT: Yes, please. Thank you.

12 MR. WOLF: Are we done?

13 THE COURT: Yes, you can go off the record.

14 Thank you.

15 (Proceedings concluded at 2:48 p.m.)

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1 REPORTER'S CERTIFICATE

2 THE STATE OF TEXAS )
COUNTY OF DALLAS )
3

4 I, Coral Hough, Official Court Reporter in and for

5 County Court At Law No. 4, Dallas County, State of

6 Texas, do hereby certify that the above and foregoing

7 contains a true and correct transcription of all

8 portions of evidence and other proceedings requested in

9 writing by counsel for the parties to be included in

10 this volume of the Reporter's Record, in the

11 above-styled and -numbered cause, all of which occurred

12 in open court or in chambers and were reported by me.

13 I further certify that this Reporter's Record of

14 the proceedings truly and correctly reflects the

15 exhibits, if any, admitted by the respective parties.

16 I further certify that the total cost for the

17 preparation of this Reporter's Record is $515 and was

18 paid by Thiebaud Remington Thornton Bailey LLP.

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1 WITNESS MY OFFICIAL HAND this the 27th day of July,

2 2015.

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4

5 ______/:/ Coral Hough___________
Coral Hough, Texas CSR 9007
6 CSR Expiration Date: 12/31/2014
DALLAS COUNTY COURT AT LAW NO. 4
7 George L. Allen, Sr. Courts Bldg.
600 Commerce Street, Suite 575
8 Dallas, Texas 75202
(214) 653-7468 (office)
9 (214) 653-6175 (fax)

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