ACCEPTED
12-14-00220-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
10/2/2015 8:27:19 AM
Pam Estes
CLERK
DOCKET NUMBER I2.14.OO22OCV
IN THE COURT OF APPEALS FILED IN
12th
FOR THE TWELFTH COURT OF APPEALS DISTRICT OFCOURT
TEXASOF APPEALS
TYLER, TEXAS
AT TYLE& TEXAS
10/2/2015 8:27:19 AM
PAM ESTES
Clerk
EAST TEXAS MEDICAL CENTER GILMER,
Appellant
VERSUS
BIRDER PORTER
Appellee
Appealed from the 115rH Judicial District Court of
Upshur County, Texas.
APPELLEE'S SUPPLEMENTAL BRIEF ON APPLICATION OF
^RO,S^S
V. ST. LUKE'S EPISCOPAL HOSPITAL
Respectfully Submitted by:
THE BERNOUD
By:
Michael L. Bernoudy
Texas Bar No.
2400 W. Grand A
Marshall, TX75670
Telephone: (903) 935-4223
Fax: (903)935-4228
MLBj r@bernoudylawfirm.com
www. bernoudylawfi rm.com
ATTORNEY FOR APPELLEE
TABLE OF CONTENTS
1.
Table of Authorities ..
2'
Summary of Argument ..
3'
Argument
5'
Conclusion and PraYer
Certificates of Service and Compliance "' """ 6'
TABLE OF AUTHORITIES
Page
Statutes
Texas Civil Practice and Remedies Code Section 7a.001(aX13) 3
Case law
Loaisiga v. Cerda,
379 S.W.3d248,257 (Tex.20l2) 4
Ross v. St. Luke's Episcopal Hosp.,
462 S.W.3d496 (Tex.2015) 3
SUMMARY OF ARGUMENT
Under Ross for a safety standards-based claim to be a Healthcare Liability Claim
there must be a substantive nexus between the safety standards allegedly violated and the
provision of healthcare. The Texas Supreme Court found in ^Ross that the
cleaning/mopping of floors did not have the necessary nexus to the provision of
healthcare. Applying Ross the case at bar likewise would not be a Healthcare Liability
Claims.
2
ARGUMENT
APPELLEE'S CLAIMS ARE NOT HEALTHCAKE LIABILITY CLAIMS UNDER ROSS
By order dated August 6,2015 this Honorable Court ordered the parties to apply
Ross y. St. Luke's Episcopal Hosp.,462 S.W.3d496 (Tex.2015) to determine whether
this case would be a Healthcare Liability Claims as defined by Section 7a.001(a)(13) of
the Texas Civil Practice and Remedies Code. As explained hereafter, Ross makes it
clear that the case at bar is not a Healthcare Liability Claim.
The TMLA defines a health care liability claim as:
a cause of action against a health care provider or physician for treatment,
lack of treatment, or other claimed departure from accepted standards of
medical care, or health care, or safety or professional or administrative
services directly related to health care, which proximately results in injury
to or death of a claimant, whether the claimant's claim or cause of action
sounds in tort or contract.
rEx. CIV. PRAC. & REM. CODE $ 74.001(a)(13)
-Ross involved a slip and fall that occurred while the complaining party was
visiting a friend at the hospital. The floors were being cleaned and buffed at the time.
The complainant slipped and fell causing injury. The case at bar also involves a
complainant who was not a patient and slipped and fell on a wet floor.
In Ross, the hospital advanced trvo positions in support of the lower courts' rulings
and its assertion that Ross's claim is an HCLC. First, it addressed slip and fall claims
generally, and asserted that any slip and fall event within a hospital is directly related to
health care because it necessarily is related to the safety of patients. Second, it focused on
Ross's claim specifically and argued that her claim is related to health care because she
a
J
alleged the hospital breached standards applicable to maintaining a safe environment for
patients. The Texas Supreme Court disagreed with both positions.
As to the hospital's first contention, a safety standards-based claim does not come
within the TMLA's provisions just because the underlying occurence took place in a
healthcare facility, the claim is against a healthcare provider, or both. See Loaisiga v.
Cerda, 379 S.W.3 d 248, 257 (T ex. 2012).
As to the second contention, Ross alleged that the hospital failed to exercise
reasonable care in making the floor safe. The standard Ross said the hospital breached
regarding maintenance of its floor may also be the same standards many businesses
generally have for maintaining their floors. The hospital didn't claim, nor did the record
show, that the area where Ross fell was a patient care area or an area where patients
possibly would be in the course of the hospital's providing health care services to them.
Nor did the hospital reference support in the record for the position that the area had to
meet particular cleanliness or maintenance standards related to the provision of health
care or patient safety. Ross at503
The Court concluded that the safety standards referred to in the definition are
those that have a substantive relationship with the providing of medical or health care.
And if it were not so, the broad meaning of "safety" would afford defendant health care
providers a special procedural advantage in the guise of requiring plaintiffs to file expert
reports in their suits regardless of whether their cause of action implicated the provision
of medical or healthcare. For a safety standards-based claim to be an HCLC there must
4
be a substantive nexus between the safety standards allegedly violated and the provision
of health care. -Rass at 504
Likewise, in the case at bar there is no substantive nexus between the absence of a
"wet floor" sign in the emergency room admittance desk and the providing of healthcare.
CONCLUSION/PRAYER
The facts in Ross are nearly identical to those in this case. This Court should rule
as did the Ross court. Appellee's claims in this maffer have no nexus to the rendering of
healthcare services and would not require an expert report as provided for in Tex. Civ.
Prac. & Rem.Code Chapter 74. Thejudgment of the trial court was coffect in its entirety
and should be AFFIRMED by this Honorable Court.
CERTIFICATE OF SERVICE
I hereby certiff that a copy of the foregoing pleading was delivered via facsimile
at (214) 754-0ggg and regular mail to Russell G. Thornton on this Jg1/ day of
f L{. P^ ,201s'
CERTIFICATE OF COMPLIAI\iCE
Relying on the word count function in the word processing software used to
produce this document, I certifu that the number of words in this reply (excluding any
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the caseo statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of service,
certification, certificate of compliance appendix) is 1035.
6