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”).
-2-
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
-3-
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.
-5-
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
-6-
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
-7-
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
-8-
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).
-11-
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”).
-12-
[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).
-14-
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”).
-15-
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
-16-
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
-17-
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
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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
57
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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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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Ksadd, Llc v. Joan Williams
Combined Opinion