ACCEPTED
12-14-00220-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
10/16/2015 1:14:16 PM
Pam Estes
CLERK
ORAL ARGUMENT REQUESTED
No. 12-14-00220-CV FILED IN
12th COURT OF APPEALS
_______________________________________________
TYLER, TEXAS
10/16/2015 1:14:16 PM
COURT OF APPEALS PAM ESTES
Clerk
for the
TWELFTH DISTRICT OF TEXAS
Tyler, Texas
_______________________________________________
EAST TEXAS MEDICAL CENTER GILMER
Appellant,
v.
BIRDER PORTER
Appellee.
_______________________________________________
Appeal from Cause No. 697-13
th
115 District Court, Upshur County, Texas
Honorable Lauren Parish, Presiding Judge
_______________________________________________
APPELLANT’S REPLY TO APPELLEE’S
SUPPLEMENTAL BRIEF ON APPLICATION OF
ROSS v. ST. LUKE’S EPISCOPAL HOSPITAL
_______________________________________________
Russell G. Thornton
THIEBAUD REMINGTON THORNTON BAILEY LLP
Two Energy Square
4849 Greenville Avenue, Suite 1150
Dallas, Texas 75206
(214) 954-2200 – Telephone
(214) 754-0999 – Telecopier
ATTORNEYS FOR DEFENDANT – APPELLANT
EAST TEXAS MEDICAL CENTER GILMER
October 16, 2015
TABLE OF CONTENTS
INDEX OF AUTHORITIES .................................................................................... ii
SUMMARY OF ARGUMENT ................................................................................2
ARGUMENT ............................................................................................................4
CONCLUSION .........................................................................................................7
PRAYER ...................................................................................................................9
CERTIFICATE OF COMPLIANCE ......................................................................10
CERTIFICATE OF SERVICE ...............................................................................11
i
INDEX OF AUTHORITIES
TEXAS SUPREME COURT CASES
Garland Community Hospital v. Rose,
156 S.W.3d 541 (Tex. 2004) .....................................................................................6
Loaisiga v. Cerda,
379 S.W.3d 248 (Tex. 2010) .................................................................................2, 4
Ross v. St. Luke’s Episcopal Hospital,
462 S.W.3d 496 (Tex. 2015) .................................................................................2, 4
ii
No. 12-14-00220-CV
___________________________________________________
COURT OF APPEALS
for the
TWELFTH DISTRICT OF TEXAS
Tyler, Texas
___________________________________________________
EAST TEXAS MEDICAL CENTER GILMER
Appellant,
v.
BIRDER PORTER
Appellee.
___________________________________________________
Appeal from Cause No. 697-13
th
115 Judicial District Court, Upshur County, Texas
Honorable Lauren Parish, Presiding Judge
___________________________________________________
TO THE TWELFTH COURT OF APPEALS:
Appellant East Texas Medical Center Gilmer, defendant in Cause No. 697-
13 in the 115th Judicial District Court of Upshur County, Texas, Honorable
Lauren Parish presiding, pursuant to this Court’s August 4, 2015 order,
respectfully submits its Reply to Appellee’s Supplemental Brief on Application of
Ross v. St. Luke’s Episcopal Hospital. Appellee is Birder Porter, Plaintiff in the
district court.
1
SUMMARY OF ARGUMENT
Appellee’s Supplemental Brief on Application of Ross v. St. Luke’s
Episcopal Hospital (“Appellee’s Supplemental Brief”) correctly states an
underlying issue is whether or not there is a “substantive nexus” between the safety
standards violated and the provision of health care. Appellee’s assertion that her
claim is not a health care liability claim (“HCLC”) fails to address and ignores the
context within which this statement was made by the Texas Supreme Court in
Ross, as well as the overall context of this statement in the existing framework
provided by the Texas Supreme Court to use in determining if a claim is an HCLC.
As stated by the Texas Supreme Court, the real issue at hand is whether “the
facts underlying a claim could support claims against a physician or health care
provider for departures from accepted standards of medical care, health care, safety
or professional or administrative services directly related to health care…” Ross v.
St. Luke’s Episcopal Hospital, 462 S.W.3d 496, 503 (Tex. 2015)(emphasis in
original)(citing Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2010)). If a claim’s
underlying facts “could” support a safety-standards claim against a health care
provider like East Texas Medical Center Gilmer (“ETMCG”), “the claims are
HCLCs regardless of whether the plaintiff alleged the defendants were liable for a
breach of the standards.” Id.
2
ETMCG’S Supplemental Brief establishes that based on existing applicable
statutes, regulations and case law, Appellee could have asserted a safety claim
against ETMCG for alleged departures from accepted standards of health care or
safety. For that reason, Appellee’s claim against ETMCG is an HCLC as dictated
by Ross and other existing Texas Supreme Court authority.
3
ARGUMENT
In evaluation of the application of Ross to this matter, the Court must go
beyond the Texas Supreme Court’s statement that the issue is whether or not there
exists “a substantive nexus between the safety standards allegedly violated and the
provision of health care.” Ross, 462 S.W.3d at 504. One must go beyond that
statement because the Texas Supreme Court’s analysis and evaluation did not
begin and end there. In fact, the Texas Supreme Court went beyond that statement
to hold, “the pivotal issue in a safety-standards-based claim is whether or not the
standards on which the claim is based implicate the defendant’s duties as a health
care provider, including its duties to provide for patient safety.” Id. at 505
(emphasis added).
In Ross, the Texas Supreme Court placed its “substantive nexus” statement
in the context of the existing and still valid concept that “if the facts underlying a
claim could support claims against a physician or health care provider for
departures from accepted standards of medical care health care, or safety or
professional or administrative services directly related to health care, the claims are
HCLCs regardless of whether plaintiff alleged defendants were liable for breach of
the standards.” Id. at 503 (emphasis in original)(citing Loaisiga, 379 S.W.3d at
255). As such, the Texas Supreme Court in Ross tells appellate courts and trial
courts that the touchstone issue is whether or not a claim’s underlying facts
4
implicate the health care provider’s duties as a health care provider. If the
healthcare provider’s duties as a healthcare provider are implicated, the claim is an
HCLC, regardless of whether or not the claimant actually alleges a breach of those
duties.
In its Supplemental Brief on Application of Ross v. St. Luke’s Episcopal
Hospital (“ETMCG’s Supplemental Brief”), ETMCG establishes and shows that
its duties as a health care provider are at least implicated by the underlying facts.
Specifically, ETMCG’s Supplemental Brief shows that the factual basis of
Appellee’s claim implicates duties placed on health care providers like ETMCG by
federal law, by Texas law, by guidelines from the United States Centers for
Disease Control and Prevention (“CDC”) and the United States Occupational
Health and Safety Administration (“OSHA”), and by regulations and guidelines of
the Joint Commission (ETMCG’s Supplemental Brief, pages 8-15).
The appellate court authority cited in ETMCG’s Supplemental Brief further
supports this fact. In particular, ETMCG cites Texas appellate court decisions
holding that CDC guidelines, OSHA regulations, and Joint Commission
requirements not only provide evidence of the standard of care applicable to a
hospital like ETMCG, but have been relied on and used by claimants in Texas to
establish the applicable standards of care and a breach of those standards in expert
reports served to establish the merits of an HCLC pursuant to Section 74.351 of the
5
TEXAS CIVIL PRACTICE & REMEDIES CODE (ETMCG’s Supplemental Brief,
pages 18-19).
Final support for the fact Appellee’s claim against ETMCG is an HCLC
comes from the Texas Supreme Court’s decision in Garland Community Hospital
v. Rose, 156 S.W.3d 541 (Tex. 2004). In Rose, the Texas Supreme Court held that
accepted standards of health care are not only implicated, but actually involved,
when a hospital’s action is governed by combination of existing federal law, state
law, and Joint Commission guidelines. Id. at 546 (See also, ETMCG’s
Supplemental Brief, page 19).
6
CONCLUSION
ETMCG has established that an existing combination of federal law, Texas
law, federal guidelines and regulations, and Joint Commission regulations govern
the manner in which hospitals like ETMCG must maintain their physical premises,
including floors. Because of this existing combination of law, regulations and
guidelines that apply to ETMCG’s maintenance of its premises and floors,
ETMCG’s duties as a health care provider and accepted standards of health care
and safety are directly involved, or at the very least implicated, by Appellee’s slip-
and-fall claim.
Further, established case law shows this existing combination of law,
regulations and guidelines could have been relied on or used by Appellee to
support a claim against ETMCG for an alleged departure from accepted standards
of health care or safety. For these reasons, based on the Texas Supreme Court’s
opinion in Ross, as well as other existing Texas Supreme Court authority still
entitled to stare decisis treatment, Appellee’s claim against ETMCG is an HCLC
under Chapter 74 of the TEXAS CIVIL PRACTICE & REMEDIES CODE.
Of final note, at no place in Appellee’s Supplemental Brief on Application
of Ross v. St. Luke’s Episcopal Hospital does Appellee address or rebut with any
arguments or authority the authority cited and relied on by ETMCG that
establishes the fact Appellee’s claim is an HCLC. Appellee simply argues in a
7
conclusory and superficial manner that there is no substantive nexus between her
claim and the provision of health care (Appellee’s Supplemental Brief, page 5).
ETMCG has shown Appellee’s argument to be incorrect and contrary to existing
authority. Accordingly, the trial court erred in denying ETMCG’s motion to
dismiss and the Tyler Court of Appeals should reverse the trial court’s denial of
ETMCG’s motion to dismiss and dismiss Appellee’s claim against it with
prejudice.
8
PRAYER
Because the trial court erred in denying Appellant East Texas Medical
Center Gilmer’s Motion to Dismiss, Appellant requests that this Twelfth District
Court of Appeals:
1. Reverse the trial court’s denial of East Texas Medical Center Gilmer’s
Motion to Dismiss (CR 36, Appendix “A”);
2. Dismiss with prejudice Appellee’s claim against East Texas Medical
Center Gilmer, and:
3. Remand this matter to the trial court for further proceedings consistent
with the above actions.
Respectfully Submitted,
THIEBAUD REMINGTON THORNTON BAILEY, LLP
By:/s/Russell G. Thornton
RUSSELL G. THORNTON
State Bar Card No. 19982850
4849 Greenville Avenue
Suite 1150
Dallas, Texas 75206
(214) 954-2200
(214) 754-0999 (Fax)
rthornton@trtblaw.com
9
CERTIFICATE OF COMPLIANCE
Pursuant to TEXAS RULES OF APPELLATE PROCEDURE 9.4(i)(3) Appellant
certifies that its Reply to Appellee’s Supplemental Brief on Application of Ross v.
St. Luke’s Episcopal Hospital, filed on October 16, 2015, in the Twelfth Court of
Appeals, contains 1,197 words.
/s/Russell G. Thornton
RUSSELL G. THORNTON
10
CERTIFICATE OF SERVICE
The undersigned certifies that on the 16th day of October, 2015, a true and
correct copy of the foregoing document was delivered to counsel listed below:
VIA E-SERVE &/OR CMRRR:
Mr. Michael Bernoudy
THE BERNOUDY LAW FIRM
2400 W. Grand Avenue
Marshall, Texas 75670
mlbjr@bernoudylawfirm.com
/s/Russell G. Thornton
RUSSELL G. THORNTON
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