Collin Creek Assisted Living Center, Inc. D/B/A/ Dayspring Assisted Living Community v. Christine Faber, Individually and as Heir at Law of Carmelina "millie" Smith

Supreme Court of Texas
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No. 21-0470
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Collin Creek Assisted Living Center, Inc. d/b/a DaySpring
Assisted Living Community,
Petitioner,

v.

Christine Faber, Individually and as Heir at Law of Carmelina
“Millie” Smith, Deceased,
Respondent

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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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JUSTICE YOUNG, joined by Justice Blacklock, concurring.

The Ross factors attempted to impose order on chaos. But as so
often happens with well-intended multifactor balancing tests, they
instead have created a new battleground for waging costly collateral
litigation of immense scope. The staggering number of cases from this
Court and the lower courts, both before and after Ross, illustrates how
many resources have been devoted to fighting over what the statutory
definition of “health care liability claim” means. Tex. Civ. Prac. & Rem.
Code § 74.001(a)(13). Litigants spar over all the precedent-generated
“tests” and “factors” and “prongs” and “nexuses.” And we talk so much
about “health care liability claims” that we long ago surrendered to the
unsightly initialism “HCLC,” which now litters many of our opinions
(including, alas, this one).
Determining whether a claim is an HCLC should be a purely
antecedent step—a sorting mechanism, a matter of taxonomy. Getting
the sorting right is important, of course, but for reasons that have little
to do with the merits. An HCLC must adhere to certain otherwise
inapplicable procedural requirements, like providing a special kind of
notice and, especially, a particular kind of expert report. HCLC status
also affects limitations periods, whether certain elevated standards of
proof apply, whether some kinds of damages may be curtailed, and other
significant matters. Learning too late that a claim was an HCLC all along
can mean that the claim is lost wholly aside from whether it had any
merit, which is what we must hold today.
Getting the HCLC-or-not answer right is therefore of undoubted
importance. The legislature is well within its rights to impose heightened
standards on HCLCs and to prescribe the consequences that follow when
those standards are not met. Precisely because HCLC status is so
significant, clarity about whether or not a claim is an HCLC is, too.
The law should therefore make it as easy as possible to distinguish
between HCLCs and non-HCLCs. Foundational to the rule of law itself
is the principle that citizens should know what law governs them. And
central to this Court’s role, as I understand it at least, is the duty to
facilitate that rule-of-law principle by generating transparent, reliable,

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and intelligible articulations of what the law is (something that, to its
credit, Ross sought to do). Unless answering the antecedent HCLC-status
question is relatively simple, courts cannot work efficiently and the
parties’ limited resources must be expended on matters collateral to their
merits dispute. After all, asking “is it an HCLC?” is meaningless aside
from the role the answer plays in a real dispute.
True, it may never be as easy as looking at two pets and saying
“that is a cat, and that is a dog.” But under our cases (and, in fairness,
under the complicated but vague statutory definition that we have
labored to construe), the inquiry is more like taking biopsies of both pets
and sending them off to high-priced laboratories for analysis by
pathologists just to know what kind of pet food to buy.
Our current jurisprudential inability to provide ready guidance
about HCLC status could set the stage for at least three possible
reactions. First, plaintiffs could assume that any claim that remotely
touches on healthcare or a physical injury is an HCLC and act
accordingly. Of course, doing so is costly; experts are expensive, their
time is valuable, and conceding HCLC status will cause the litigation to
unfold in a very different way. But satellite litigation is expensive, too,
so a plaintiff with a serious claim might choose to accept HCLC status
from the start. Indeed, some plaintiffs may already have made this
concession, even silently, solely to get on with their cases.
Second, the legislature could provide greater clarity by amending
the definition. There are many ways it could do so. One would be to use
brighter and more absolute lines, which may entail covering more claims
or fewer claims than the current definition (and our current case law)

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would ultimately reach. Being over- or under-inclusive (at least if
measured from the perspective of the current morass) would at least
generate greater clarity and certainty, along with the consequent savings
of litigation time and expenses. It is the legislature’s prerogative to decide
if taking one of those approaches, or doing something else, is better than
the status quo.
Notably, the legislature recently has mitigated some of the risk
that previously befell plaintiffs who, at the end of lengthy litigation about
HCLC status, learned that their characterization of their claim was
wrong.* Ironically enough, however, that change only generates more
litigation. It does not simplify the core problem, which is to determine
whether a claim actually is a “health care liability claim” in the first place.
Plaintiffs who may have taken the first option I listed above may now
reconsider (which may be entirely proper if the only reason that they
previously held back was the fear of losing their entire case).
Third, this Court could convert its reliance on factors into clearer
rules. Stare decisis strikes me as posing less of an obstacle here than it
otherwise might because our factor-laden HCLC jurisprudence may have

*A new statutory amendment provides a mechanism for a “preliminary
determination for expert report requirement.” Tex. Civ. Prac. & Rem. Code
§ 74.353. Specifically, it allows acceleration of the collateral litigation over
“whether a claim made by the claimant is a health care liability claim.” Id.
§ 74.353(a). This process ensures that a plaintiff who avails himself of it will not
be caught flat-footed once the answer emerges, because he will have time to get
an expert report if the claim turns out to be an HCLC. Id. § 74.353(b). But the
new provision in no way simplifies how to make that determination and does not
eliminate the burdens involved in doing so. The opposite may be more nearly
true, because any claimant can seek such a determination and either side is
empowered to take an interlocutory appeal of the trial court’s answer. Id.
§ 74.353(a), (d). Dockets will likely see more HCLC litigation, not less.

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“become[] less useful over time” as it “continues to generate confusion
among parties and the judiciary” about the statutory definition. Mitschke
v. Borromeo, 645 S.W.3d 251, 264 (Tex. 2022). Likewise, it is hard to see
our cases as having generated “settled and reasonable reliance interests,”
id., precisely because it is hard to rely on something as vague and
unpredictable as the outcome of a multifactor test, cf. City of League City
v. Jimmy Changas, Inc., ___ S.W.3d ___, 2023 WL 3909986, at *16 (Tex.
June 9, 2023) (Young, J., concurring). And I fear that subjecting the bar,
the public, and the courts over and over again to the labor-intensive effort
of trying to figure out what an HCLC is resembles building a sand castle
despite knowing that the tide will come. The longer we repeat such an
effort, the more likely it will lead to “cynicism” about the use of the factors
than to a sense of their “legitimacy.” Mitschke, 645 S.W.3d at 266.
Supposing that we were willing to reconceptualize the HCLC
definition, what would our new implementing “rules” be? The answer
must, as always, start with the statutory text. I hasten to note that our
cases have not ignored the text—quite the opposite. If it sounds as if “I
come to bury the Ross factors, not to praise them,” then—like Mark
Antony—I at least offer up substantial praise in fact. I read our
precedents to have earnestly sought to give practical meaning to
statutory terms that are defined with complexity (including by relying on
other broadly or vaguely defined statutory terms). In my view, however,
these terms should provide for articulable rules and sub-rules, not a
balancing or weighing of factors.
Clear rules through case law, in turn, will facilitate interbranch
dialogue that is healthy for the law of a self-governing people. The

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legislature sets policy; the courts provide clarity about the policy by
stating what the content of law is, allowing individual citizens to order
their affairs accordingly; and the legislature responds with adjustments
as needed. When the courts offer up a host of factors, it may well be
(although I have my doubts) that the outcome of any given case will more
closely reflect the original policy choice. But those factors have an
anesthetic quality, too. Their very lack of certainty makes it harder for
the legislature to take aim at them and make clear changes.
But neither party here asks us to step away from the
conglomeration of the Ross factors or to wipe away any other cobwebs
from the case law. In my judgment, the Court today applies the Ross
factors as correctly as they can be applied. It well discharges its duty to
provide thorough guidance to the extent the factors allow—a difficult
task, to be sure. At the same time, though, I find much about the dissent
appealing and praiseworthy—especially its implicit invitation to generate
clearer and simpler rules that will govern entire categories of cases.
If the legislature chooses to retain the current statutory definition,
I hope that a future case will give us the opportunity to reconsider our
framework for determining when a claim qualifies as an HCLC. With
these comments, I join the Court’s opinion and its judgment.

Evan A. Young
Justice

OPINION FILED: June 30, 2023

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