concurring in part and dissenting in part.
I agree with this Court’s judgment to the extent that it affirms the trial court’s order dismissing the actual health care liability claims of appellant, Irving W. Marks, against appellee, St. Luke’s Episcopal Hospital. However, the majority errs in concluding that Marks, in his Original Petition, asserted only “a departure from accepted safety standards ... [which is] a health care liability claim” and in conflating his separate premises liability claim with his health care liability claims. It then errs in affirming the trial court’s order dismissing Marks’s suit in its entirety by misinterpreting the Texas Supreme Court’s opinion in Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex.2005).
In his Original Petition, Marks alleged, among other things, that,
9. At the time of his fall, Mr. Marks was getting up from his hospital bed in the middle of the night, and Mr. Marks was in an upright position sitting at or near the foot of his hospital bed. Mr. Marks placed his hand on the hospital bed’s footboard to push himself up to a standing position. As he was pushing himself up, the hospital bed’s footboard fell off causing Mr. Marks to fall to the floor.
10. Mr. Marks suffered severe personal injuries as a result of the fall.
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12. Defendant, by and through its agents and/or employees, was negligent in the conduct described above. Defendant, by and through its agents and/or employees, breached the duty of ordinary care owed to Mr. Marks including but not limited to the following particulars:
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d. By providing Mr. Marks with a hospital bed that had been negligently attached and assembled by the Defendant’s employee’s agents, servants or nursing staff.
In his Second Amended Petition, Marks more clearly asserts his claim for “PREMISES LIABILITY,” alleging specifically, among other things, that,
24. Mr. Marks’s dislocated shoulder and injuries to his knee, neck and head were brought about as a result of his hospital bed’s dangerous condition. In particular, the bed’s dangerous condition can be attributed to its unstable, broken and/or defective foot-board and the improper use or absence of its bed rails. This condition imposed an unreasonable risk of harm.
25. St. Luke’s breached its duty owed to Mr. Marks including but not limited to the following particulars:
a. Failing to keep Mr. Marks’s hospital bed in a reasonably safe condition; and
b. Failing to adequately warn Mr. Marks of and protect Mr. Marks *404from the dangerous condition of his bed.
In regard to the instant case, the Medical Liability and Insurance Improvement Act defined a “health care liability claim” as,
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.
Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(a)(4), 1977 Tex. Gen. Laws 2039, 2041, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (“Former Tex. Rev.Civ. Stat. art. 4590i, § 1.03(a)(4)”) (emphasis added).
In Diversicare, Rubio, a nursing home resident, brought an action, by her daughter and next friend, against- the corporate owner of a nursing home, seeking recovery on theories of negligent supervision and failure to provide nursing services, breach of implied covenant to provide reasonably safe premises, and fraudulent inducement for injuries resulting from sexual abuse and sexual assault by another resident. 185 S.W.3d at 845. The supreme court concluded that Rubio’s causes of action were actually claims for breaches of the standard of care for a health care provider “because the supervision of Rubio and the patient who assaulted her and the protection of Rubio [were] inseparable from the health care and nursing services provided to her.” Id. at 849 (emphasis added).
Here, the majority concludes that Marks’s claims “are similar to Rubio’s.” Although Marks made allegations and claims that fall within the definition of a health care liability claim, he also presented a separate premises liability claim. Marks’s initial claim that his “hospital bed ... had been negligently attached and assembled by [St. Luke’s] employee’s agents, servants or nursing staff’ simply had nothing to do with a claim for “treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety.” See Former Tex. Rev.Civ. Stat. art. 4590i, § 1.03(a)(4). Nor does his subsequent claim about the bed’s “dangerous condition.”
In fact, the majority of the supreme court, in response to the concurring and dissenting opinions in Diversicare, made it clear that,
There may be circumstances that give rise to premises liability claims in a healthcare setting that may not be properly classified as health care liability claims, but those circumstances are not present here.
185 S.W.3d at 854. The majority emphasized that Rubio’s claims implicated “more than inadequate security or negligent maintenance.” Id. It explained,
Rubio is not complaining about an unlocked window that gave an intruder access to the facility or a rickety staircase that gave way under her weight. All of her claims arise from acts or omissions that are inseparable from the provision of health care.
Id. (emphasis added). The “gravamen of Rubio’s complaint [was] the alleged failure of Diversicare to implement adequate policies to care for, supervise, and protect its residents who require special, medical care.” Id.
Here, Marks is actually complaining of the hospital bed’s footboard that gave way under his weight. In this regard, he is not making a claim for “treatment, lack of treatment, or other claimed departure from accepted standards of medical care or *405health care or safety.” Unlike the claims made by Rubio in Diversicare, Marks’s claim about the hospital bed implicates negligent maintenance, not health care. He is not fracturing or recasting a statutorily defined health care liability claim into a premises liability claim. Like an “unlocked window” or a “rickety staircase,” the hospital bed in this case constituted “a dangerous condition,” and Marks’s premises liability claim is in fact separate from St. Luke’s provision of health care. As such, Marks’s allegations reveal a circumstance that gives rise to a premises liability claim in a healthcare setting that may not be properly classified as a health care liability claim. See id. at 854.
In concluding otherwise, the majority of this court errs. Accordingly, I would reverse the trial court’s order in regard to Mark’s premises liability claim. I would affirm the trial court’s order only to the extent that it dismissed the actual health care liability claims of Marks.