Opinion
No. 21-0470
06-30-2023
COLLIN CREEK ASSISTED LIVING CENTER, INC. d/b/a DaySpring Assisted Living Community, Petitioner, v. Christine FABER, Individually and as Heir at Law of Carmelina "Millie" Smith, Deceased, Respondent
Rachel Anne Ekery, Houston, Wallace B. Jefferson, Austin, Michael W. Blaise, Scott Benjamin Novak, Houston, for Petitioner. James David Walker, Austin, Rod Khavari, Richardson, Heather Long, Farid Moghadassi, for Respondent. Elizabeth G. Bloch, Austin, for Amicus Curiae Texas Assisted Living Association.
Rachel Anne Ekery, Houston, Wallace B. Jefferson, Austin, Michael W. Blaise, Scott Benjamin Novak, Houston, for Petitioner.
James David Walker, Austin, Rod Khavari, Richardson, Heather Long, Farid Moghadassi, for Respondent.
Elizabeth G. Bloch, Austin, for Amicus Curiae Texas Assisted Living Association.
Justice Busby delivered the opinion of the Court, in which Chief Justice Hecht, Justice Blacklock, Justice Bland, Justice Huddle, and Justice Young joined.
This case presents an often-litigated issue: whether a cause of action arising in the health care context is a "health care liability claim" under the Texas Medical Liability Act, which requires a plaintiff to submit an early expert report. Here, a resident of an assisted living facility was seated backward on a rolling walker that a facility employee was pushing along a sidewalk by the parking lot. When the walker rolled over a crack in the sidewalk, it tipped, the two fell, and a week later, the resident died. The resident's daughter sued the facility and later amended her petition so it alleged only a cause of action for premises liability. The facility moved to dismiss for failure to file a timely expert report.
We hold that the cause of action is a health care liability claim because it meets the applicable factors we articulated in Ross v. St. Luke's Episcopal Hospital , 462 S.W.3d 496 (Tex. 2015). Because the plaintiff failed to serve a timely expert report, her claim must be dismissed. We reverse the court of appeals' judgment, render judgment dismissing the claim, and remand the case to the trial court for an award of attorney's fees, as required.
BACKGROUND
Defendant Collin Creek, which does business as DaySpring, is a licensed Type-B assisted living facility. It must assist each resident with activities identified on the resident's individual service plan "related to the care of [their] physical health," which may include "transferring/ambulating." 40 TEX. ADMIN. CODE § 46.41(b)(1), (b)(1)(H).
Carmelina "Millie" Smith was a new resident at DaySpring with a history of falls. Her physician conducted general and neurological evaluations of Smith in March and April 2014, recommended that she move into an assisted living facility, and sent two history and physical reports to DaySpring indicating that she used a walker and required assistance ambulating. DaySpring used these reports in preparing Smith's service plan.
One DaySpring assessment rated her mobility as "[t]otally independent," while another rated it as "[n]ot always reliable" and described her as a "fall risk."
When Smith's daughter, Christine Faber, came to pick Smith up for a hair appointment, Faber asked a DaySpring employee to help Smith to Faber's car. The employee, a Personal Care Assistant, used a rolling walker to wheel Smith down DaySpring's sidewalk. Smith seated herself on the walker, and the employee faced her, pushing Smith backward. A wheel of the walker caught in a crack. The walker tipped over, and Smith hit her head on the concrete. She died about a week later from her injuries.
Faber sued DaySpring. Her original petition included claims for negligence, negligent hiring, and premises liability. In its answer, DaySpring alleged that it is a health care provider under the Texas Medical Liability Act (TMLA or Act). TEX. CIV. PRAC. & REM. CODE §§ 74.001 - 74.507. Because the TMLA requires a plaintiff to serve an expert report within 120 days of the defendant's original answer, DaySpring moved to dismiss the case after the deadline passed without Faber's serving an expert report. See id. § 74.351(a).
Faber then amended her petition, removing all references to DaySpring's employee and dropping the claims based on the employee's conduct. What remained was a premises liability claim alleging that "[w]hile exiting [DaySpring], Ms. Smith's walker suddenly, and without warning, became caught in a large crack in the concrete."
The trial court dismissed Faber's claim, and a panel of the court of appeals affirmed. No. 05-18-00827-CV, 2020 WL 3529514 (Tex. App.—Dallas June 30, 2020), opinion withdrawn and superseded on reh'g en banc , 629 S.W.3d 630 (Tex. App.—Dallas 2021). Addressing the seven factors outlined in Ross , the panel concluded that Faber's claim was a health care liability claim because the facts showed a violation of safety standards with a "substantive nexus" to the provision of health care. Id. at *3-5.
In an 8-5 decision, the en banc court vacated the panel's judgment and reversed the trial court's judgment. 629 S.W.3d at 634. The majority noted that Faber's live pleading alleged only claims based on the condition of DaySpring's sidewalk, and it reasoned that there was no substantive nexus between allegedly negligent sidewalk maintenance and DaySpring's duties as a health care provider. Id. at 639-642. Therefore, Faber's claim was not a health care liability claim, and no expert report was needed. Id. at 642-43.
ANALYSIS
We review de novo whether Faber asserted a health care liability claim. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems , 575 S.W.3d 357, 363 (Tex. 2019). The en banc majority's analysis of this issue was skewed at the outset because it took an overly narrow view of the relevant facts rather than considering the record as a whole. When the walker and the employee's conduct as well as the sidewalk crack are taken into account, we conclude that Faber's cause of action is a health care liability claim.
I. Legal standards governing whether a cause of action is a health care liability claim
The TMLA requires a claimant who asserts a "health care liability claim" to serve one or more expert reports describing the applicable standards of care, how the defendant's conduct failed to meet those standards, and how those failures caused the claimant harm. TEX. CIV. PRAC. & REM. CODE § 74.351(a), (r)(6). If a claimant fails to serve a compliant report within 120 days after the defendant files its original answer, the trial court must dismiss the claim with prejudice and award the defendant attorney's fees and costs. Id. § 74.351(b).
A. Courts must consider the operative facts in the record.
Whether the Act applies turns on the claim's "underlying nature ... rather than its label." Weems , 575 S.W.3d at 363 ; Lake Jackson Med. Spa, Ltd. v. Gaytan , 640 S.W.3d 830, 836-38 (Tex. 2022). To determine a claim's nature, a court must carefully define the universe of relevant facts. How the court does so can significantly affect the outcome of the analysis. Compare 629 S.W.3d at 639-643 (considering only DaySpring's conduct alleged to be negligent in the live petition and holding claim is for premises liability), with id. at 645-48 (Reichek, J., dissenting) (considering DaySpring's conduct to include employee's actions and concluding claim is health care liability claim).
Courts must focus on the set of operative facts "underlying the claim" that are relevant to the alleged injury, not on how "the plaintiff's pleadings describ[e] the facts or legal theories asserted." Loaisiga v. Cerda , 379 S.W.3d 248, 255 (Tex. 2012). If those facts "could support claims against a physician or health care provider for departures from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care," then the TMLA applies "regardless of whether the plaintiff alleges the defendant is liable for breach of any of those standards." Id. ; see also Yamada v. Friend , 335 S.W.3d 192, 193 (Tex. 2010) (holding claims based on same set of "underlying facts" as a health care liability claim are health care liability claims); PM Mgmt.-Trinity NC, LLC v. Kumets , 404 S.W.3d 550, 550-52 (Tex. 2013) (same).
The relevant facts are not limited to those alleged in a claimant's live pleading. Gaytan , 640 S.W.3d at 838-39. Instead, they should be drawn from the "entire court record," including "pleadings, motions and responses, and relevant evidence properly admitted." Loaisiga , 379 S.W.3d at 258.
In defining the scope of the set of facts underlying a particular claim, it is useful to recognize that a distinct negligent act or omission by a different party or conduct occurring at a different time that results in a distinct injury may constitute a separate health care liability claim. See, e.g., Suleman v. Brewster , 269 S.W.3d 297, 298-300 (Tex. App.—Dallas 2008, no pet.) (holding claimant stated two health care liability claims when she first alleged doctor was negligent regarding pressure sores and, later, negligent regarding cardiology care); Puls v. Columbia Hosp. at Med. City Dall. Subsidiary, L.P. , 92 S.W.3d 613, 615, 618-19 (Tex. App.—Dallas 2002, pet. denied) (holding claimant stated distinct health care liability claims when she first alleged perfusionist was negligent and, later, nurses were negligent).
This broad scope of relevant facts helps to promote the Act's consistent and predictable application to the claims of similarly situated plaintiffs and prevent gamesmanship. As we have explained, a "claimant cannot avoid the Act's application by artfully pleading claims for ordinary negligence or premises liability." Gaytan , 640 S.W.3d at 838 ; see also Diversicare Gen. Partner, Inc. v. Rubio , 185 S.W.3d 842, 851 (Tex. 2005) ; Ahmadi v. Moss , 530 S.W.3d 754, 757-58 (Tex. App.—Houston [14th Dist.] 2017, no pet.) ; Med. Hosp. of Buna Tex., Inc. v. Wheatley , 287 S.W.3d 286, 291 (Tex. App.—Beaumont 2009, pet. denied).
B. The Ross analysis applies to claims concerning alleged departures from standards that implicate safety.
To determine whether a given set of operative facts could support a health care liability claim, we turn to the language of the Act. See Rogers v. Bagley , 623 S.W.3d 343, 350 (Tex. 2021). The Act 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.
TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13). This definition includes three essential elements: (1) the defendant is a physician or health care provider; (2) the claim is for treatment, lack of treatment, or another departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's act or omission proximately caused the claimant's injury or death. Tex. W. Oaks Hosp., LP v. Williams , 371 S.W.3d 171, 179-180 (Tex. 2012).
Faber does not dispute the first element: by statute, DaySpring is a health care provider. See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(11)(B) (defining "[h]ealth care institution" to include "an assisted living facility licensed under Chapter 247, Health and Safety Code"); id. § 74.001(a)(12)(A)(vii) (defining "[h]ealth care provider" to include "a health care institution"). And Faber has alleged that DaySpring's departure from accepted standards proximately caused Smith's death. Consequently, only the second element is at issue: whether her claim concerns "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." Id. § 74.001(a)(13).
We have recognized various tests for determining whether the set of operative facts underlying a claim concerns an alleged departure from accepted standards of (1) medical care, (2) health care, (3) safety, or (4) related professional or administrative services. For example, claimed departures from medical or health care standards are analyzed under a three-step framework outlined in Lake Jackson Medical Spa v. Gaytan , see 640 S.W.3d at 844, while claimed departures from safety standards are assessed under a seven-factor test articulated in Ross v. St. Luke's Episcopal Hospital , see 462 S.W.3d at 505.
The concurrence suggests that the time may have come to revisit the Ross factors. Post at 896–97 (Young, J., concurring). The concurrence acknowledges, however, that no party has asked us to do so in this case. Id. at 897. Addressing the issues as framed by the parties, we apply the Ross factors below.
But as we explain below, many claims implicate more than one type of standard. And in some cases, it may be unclear whether a standard implicates health care more than safety, and thus which prong of the definition—and its associated test—applies. For example, the standards that the health care provider relies upon here to argue that the claim falls under the health care prong are defined in terms of safety.
In such cases, parties have briefed—and courts have analyzed—alleged departures from health care standards separately from alleged departures from safety standards. In addition, they have addressed whether a safety standard has a "direct" relationship to the provision of health care separately from whether it has a "substantive nexus" to the provision of health care.
Because a cause of action need only concern a departure from one type of standard for the Act to apply, this approach can be needlessly burdensome. In cases where application of the health care prong is a straightforward exercise, an analysis under the safety prong is unnecessary.
Alternatively, if a claim alleges departures from safety standards as well as health care standards, or if it is unclear whether a standard applicable to a health care provider relates more to safety than to health care, parties and courts need not spend time and resources trying to parse whether the claim falls on the health care or safety side of the line. Rather, they can simply use our decision in Ross v. St. Luke's Episcopal Hospital to assess whether the second element is satisfied. Consequently, we hold that when the operative facts concern alleged departures from (1) health care standards that implicate safety; (2) safety standards with a "direct" relationship to the provision of health care; and/or (3) safety standards with a "substantive nexus" to the provision of health care, parties and courts may address the second element using a single Ross analysis.
1. Ross applies to all safety-standard claims.
The question whether a set of operative facts implicates an alleged departure from accepted standards of safety ("safety-standard claims") has been analyzed in more than one way. A recurring issue in determining whether claims fall under the safety prong is how closely related the safety standards must be to the provision of health care for the claim to qualify as a health care liability claim. A "direct" relationship to health care is sufficient, but we later explained that it is not necessary. Tex. W. Oaks Hosp. , 371 S.W.3d at 185-86 ; see Ross , 462 S.W.3d at 502. Instead, at minimum, there must be a "substantive nexus between the safety standards allegedly violated and the provision of health care." Ross , 462 S.W.3d at 504. And Ross provided seven nonexclusive factors to assess whether a substantive nexus exists. These factors are:
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; [and]
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?
We note that many courts of appeals conducting a substantive-nexus analysis have concluded that a claim is a health care liability claim when a majority of the following three circumstances are present: (1) the claimant is a patient; (2) a health care professional was involved in the alleged departure from accepted standards; and (3) the injury occurred in an area directly related to health care or not generally accessible to the public. See, e.g., S. Place SNF, LP v. Hudson , 606 S.W.3d 829, 834-35 (Tex. App.—Tyler 2020, pet. denied) ; Univ. of Tex. Med. Branch v. Jackson , 598 S.W.3d 475, 481 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) ; Se. Tex. Cardiology Assocs. v. Smith , 593 S.W.3d 743, 748 (Tex. App.—Beaumont 2019, no pet.) ; Hous. Methodist Willowbrook Hosp. v. Ramirez , 539 S.W.3d 495, 497, 501 (Tex. App.—Houston [1st Dist.] 2017, no pet.) ; E. Tex. Med. Ctr. Gilmer v. Porter , 485 S.W.3d 127, 131 (Tex. App.—Tyler 2016, no pet.) ; Phillips v. Jones , No. 05-15-00005-CV, 2016 WL 80561, at *2-3 (Tex. App.—Dallas Jan. 7, 2016, no pet.). On the other hand, claims of sexual assault in a medical setting may present all three circumstances, but they are not health care liability claims. See Loaisiga , 379 S.W.3d at 257. Because the parties focus on the Ross factors, we have no occasion in this case to consider what role, if any, these circumstances should play in the analysis.
In the wake of Ross , it has remained unclear whether courts and litigants should analyze both whether a safety standard is directly related to health care and whether it has a substantive nexus to health care. Because standards with a "substantive nexus" to health care have a sufficient relationship to constitute health care liability claims, courts need only conduct the "substantive nexus" analysis under the Ross factors; a separate "direct relationship" evaluation is unnecessary.
2. Ross applies to claims that allege departures from health care standards that implicate safety.
Ross has so far been limited to analyzing whether claims involve claimed departures from safety standards. In cases where the facts alleged involve departures from accepted standards of health care as well as safety, courts have viewed the inquiries as distinct and sometimes conducted two analyses.
But the Ross factors are capable of analyzing whether a claim involves departures from accepted standards of health care that implicate safety. Ross factors two through four and six reference "care" or "health care" and are appropriate for evaluating alleged departures from accepted standards of health care—such as an employee's conduct. Factors five and seven refer to "safety standards" and "safety-related requirements" and evaluate alleged departures from safety standards—here, cracks in a health facility's sidewalk. Consequently, courts may use Ross to evaluate alleged departures from both safety and health care standards, as well as alleged departures from standards for health care providers that implicate safety.
II. Faber's cause of action is a health care liability claim.
Applying these standards, we hold that Faber's cause of action is a health care liability claim. In determining the relevant scope of conduct, we are not limited to the negligent conduct alleged in the plaintiff's live petition. See Gaytan , 640 S.W.3d at 839. Rather, as discussed above, we consider the entire record to identify the set of operative facts underlying the claim that is relevant to the alleged injury.
Here, those facts include not only the crack in DaySpring's sidewalk but also the actions of DaySpring's employee, the employee's use of the walker, and Smith's status as a recipient of personal care services. If these facts, along with DaySpring's failure to fix the crack, could support a health care liability claim, Faber's cause of action is a health care liability claim. See id. at 838 ; Weems , 575 S.W.3d at 363, 366 n.37 ; Loaisiga , 379 S.W.3d at 255, 258.
We note that Faber's original petition highlighted the role of DaySpring's employee and the walker. There, she alleged:
Day[S]pring's lack of supervision and/or training of its employees and failure to enact rules and regulations to ensure the safety of the transport of Day[S]pring patients, such as Ms. Smith, caused and produced Ms. Smith's injuries.
...
Defendant Day[S]pring[ ] failed to care for Ms. Smith's safety in a manner that would have been maintained by a person of ordinary prudence ....
These facts are relevant not because Faber's original petition focused on them but because they are a part of the operative facts underlying the claim regardless of how—or whether—they factored into Faber's petition. Had Faber originally limited her pleading to the defective sidewalk crack without mentioning DaySpring's employee or the walker, our analysis would be no different.
DaySpring offers three theories in support of its position that Faber's premises liability cause of action is a health care liability claim. It argues that the underlying facts involve alleged departures from (1) health care standards that implicate safety; (2) safety standards with a "direct" relationship to the provision of health care; and (3) safety standards with a "substantive nexus" to the provision of health care. Because we have held that the health care prong requires a physician–patient relationship, we focus on the latter two arguments. See Tex. W. Oaks Hosp. , 371 S.W.3d at 180-81. We use a single Ross analysis to assess whether DaySpring is correct.
As DaySpring's theories involve departures from accepted standards of health care and safety, we primarily use factors two, three, and six to evaluate the alleged departures from accepted standards of health care that implicate safety: the employee's conduct and the use of a walker. And we look primarily to factors five and seven to analyze deviations from alleged safety standards: Faber's allegations relating to the sidewalk crack.
Our dissenting colleagues contend that the Ross analysis is categorically inapplicable here. They reason that DaySpring was not providing health care to Smith because she signed a form acknowledging as much and DaySpring did not furnish treatment to her as part of a physician's provision of medical care. Post at 903–04 (Boyd, J., dissenting). Thus, in their view, DaySpring's alleged violations of safety standards lack a substantive nexus to the provision of health care. Id. at 904–05, 907. But neither Ross nor the Act supports this view of the safety prong. Indeed, the dissent's approach would supersede the Ross factors by imposing a strict rule that the safety prong never applies unless the defendant health care provider's negligent act or omission occurred during and as part of the provision of medical care by a physician.
That approach rewrites the Act and contradicts our precedent. We have held that although a claim alleging a "breach of health-care or medical-care standards ‘must involve a patient-physician relationship’ " to qualify as a health care liability claim, a claim alleging a "breach of safety, professional-services, or administrative-services standards" need not. Gaytan , 640 S.W.3d at 841 n.13 (citing Tex. W. Oaks Hosp. , 371 S.W.3d at 178-181 ). One reason for this conclusion is that the Act does not define "safety," so nothing in its text indicates that a physician–patient relationship is required for a claim to fall under the safety prong. To the contrary, the expert report requirement applies to suits by a "claimant," not a patient. TEX. CIV. PRAC. & REM. CODE § 74.351(a) ; see Tex. W. Oaks Hosp. , 371 S.W.3d at 181.
We have held that the word "safety" broadly means "being secure from danger, harm or loss," Tex. W. Oaks Hosp. , 371 S.W.3d at 184, though the statutory context in which it is used requires that safety standards "have a substantive relationship with the providing of medical or health care." Ross , 462 S.W.3d at 504. Thus, the underlying facts need not indicate that a health care provider was providing medical or health care and did so negligently for a claim to fall under the safety prong. Rather, the safety prong applies when there are facts indicating that the defendant did not follow standards "implicat[ing its] duties as a health care provider ... to provide for patient safety" as measured by the Ross factors. See id. at 505. Unlike the dissent, we understand the Ross factors to be tools for analyzing whether a safety standard bears the necessary relationship to health care, not considerations that apply only if that relationship is present.
The dissent argues that our opinion suggests a test different from the Ross factors for measuring the necessary relationship. See post at 898–99 n.2. For the reasons just explained, we respectfully disagree. See also infra note 16.
We have also observed that "[t]he breadth of the statute's text essentially creates a presumption that a claim is [a health care liability claim] if it is against a physician or health care provider and is based on facts implicating the defendant's conduct during the course of a patient's [medical] care, treatment, or confinement." Loaisiga , 379 S.W.3d at 256 (emphases added). Thus, to fall under the safety prong, the claim need not be against a physician or involve medical care; it can also be against a health care provider and involve the patient's treatment. The Act defines neither "treatment" nor "patient," but both have ordinary meanings that do not require the active provision of medical care by a physician—much less a physician furnished by the health care provider. Specifically, "treatment" includes management and care to ameliorate a medical condition, and a "patient" includes a recipient of professional services directed toward the protection of health.
DaySpring also argues that Smith's residence amounted to confinement, but the record does not support that assertion.
See Treatment , Merriam-Webster.com Dictionary , https://www.merriam-webster.com/dictionary/treatment (last visited June 30, 2023) (defining "treatment" as not only "the action or way of treating a patient or a condition medically or surgically" but also "management and care to ... ameliorate ... a medical condition"); Patient , Merriam-Webster.com Dictionary , https://www.merriam-webster.com/dictionary/patient (last visited June 30, 2023) (defining "patient" as not only "an individual awaiting or under medical care and treatment" but also "the recipient of any of various personal services"); Medical Definition of Patient , Melissa Conrad Stöppler , MedicineNet (Mar. 29, 2021), https://www.medicinenet.com/patient/definition.htm (noting "considerable lack of agreement about the precise meaning of the term ‘patient,’ " which may include—according to the U.S. Centers for Medicare and Medicaid Services—"[a]n individual who is receiving needed professional services that are directed by a licensed practitioner of the healing arts toward maintenance, improvement or protection of health or lessening of illness, disability or pain").
Here, DaySpring received a license to operate as a health care provider, and it was providing personal care services to Smith to protect her health and ameliorate a particular medical condition identified by her personal physician: her history of falls, which was the very reason her physician recommended that she move to an assisted living facility like DaySpring. Because DaySpring is an assisted living facility licensed to provide health care, statutes and regulations require it to provide quality care for the physical health and safety of its residents, including safe surroundings as well as staff trained in geriatric-care tasks such as safely assisting ambulation and preventing accidents and falls. The Ross factors demonstrate that there is a substantive nexus between this provision of care to a patient on the recommendation of a physician and the alleged violations of safety standards that led to Smith's death.
We do not understand the dissent's proposed distinction between treatment "recommended" versus treatment "order[ed]" by a physician. Post at 904–05. Leaving aside unusual situations such as psychiatrists involved with civil commitments, physicians generally recommend a course of treatment, leaving it up to the patient to decide whether to undertake that treatment.
Tex. Health & Safety Code § 247.026(a), (b)(2) (providing that administrative standards for assisted living facilities must "protect the health and safety of" residents and "ensure quality care").
See, e.g. , Tex. Health & Safety Code § 247.0011(a)(7) (providing that assisted living facilities’ "quality of care" includes "safe surroundings"); 26 Tex. Admin. Code § 553.103(d)(1) (providing that "[a]n assisted living facility must ensure a ... walk ... is of slip-resistive texture and is uniform, without irregularities").
See Tex. Health & Safety Code § 247.026(f) (requiring assisted-living facility employees who provide services to geriatric residents to meet minimum geriatric-care training standards); 26 Tex. Admin. Code § 553.253(c)(3)(A), (E) (stating "[a] facility must have sufficient staff" to "maintain ... safety" and ensure each resident receives "the kind and amount of supervision and care required to meet his basic needs"), (d)(2)(A), (C), (D), (G) (requiring facility to train attendants in "providing assistance with the activities of daily living," "safety measures to prevent accidents and injuries," "fall prevention," and "actions to take when a resident falls"); 40 Tex. Admin. Code § 46.41(b)(1)(H) (requiring facility to assist with "activities related to the care of the client's physical health," including "transferring/ambulating").
First, Smith's injuries occurred while a DaySpring Personal Care Assistant (PCA) assisted Smith to her daughter's car. DaySpring's functional assessment and service plan for Smith—which was informed by her personal physician's report—indicated that she had trouble ambulating independently and required staff to provide standby assistance, which the DaySpring PCA undertook to provide. As the en banc dissent explained, "Faber's request that the PCA assist Smith ... supports the conclusion that Smith sometimes required assistance to walk .... [DaySpring] was obligated to provide these services to Smith to protect her from harm and ... they were ... doing so at the time she fell." 629 S.W.3d at 646 (Reichek, J., dissenting).
Second, the location of the injuries similarly favors a finding that Faber's claim is a health care liability claim. We agree with the en banc dissent that
[u]nlike a convalescence or nursing facility, the sine qua non of an assisted living facility is a resident's right to remain a part of the community beyond the facility. See TEX. HEALTH & SAFETY CODE § 247.064(b)(8) (resident has right to highest level of independence, autonomy, and interaction with community of which resident is capable).
Id. As DaySpring's executive director described, the location of the sidewalk crack was
outside DaySpring's front entrance. This is a location where DaySpring's residents are commonly transported and transferred into vehicles so they may attend activities in the outside community. It was a path where residents gained access to a car for handicap accessibility .... DaySpring had an obligation to prevent falls in this area of the front entrance when staff assistance is requested. For many residents, Personal Care Assistants, along with assistive devices, are provided to prevent falls when residents are cared for in this area outside the front entrance.
Third, the executive director's description also shows that Smith was receiving health care from the PCA at the time of her injury. DaySpring is a health care provider by statute, and it had an obligation to "provide or assist with ... activities related to the care of the client's physical health" identified on the service plan, which for Smith included "ambulating." 40 TEX. ADMIN. CODE § 46.41(b)(1), (b)(1)(H). As explained above, this personal care assistance is "treatment" of a "patient" that was being provided on the recommendation of Smith's physician. And Smith was receiving that treatment from the PCA at the time she fell. The fourth factor is inapplicable. Fifth, the negligence at issue is based on safety standards arising from professional duties owed by the health care provider. DaySpring is an assisted living facility licensed under Texas Health and Safety Code Chapter 247. See TEX. HEALTH & SAFETY CODE § 247.021. It is classified as a Type B facility and provides food, shelter, and services for a patient community in need of personal care, particularly ambulation assistance. See 26 TEX. ADMIN. CODE §§ 553.5(c), 553.7(a), 553.9. Statutes and regulations require DaySpring to provide minimum acceptable levels of care and protect resident health and safety; these include obligations to maintain safe surroundings, understand its residents' needs for care and services, and meet those needs with appropriately trained staff. See, e.g. , TEX. HEALTH & SAFETY CODE §§ 247.0011, 247.026(a), (f) ; 26 TEX. ADMIN. CODE §§ 553.253, 553.259(a)(1), (b)(1)-(2). Consequently, we use the fifth factor to examine Faber's allegations regarding DaySpring's obligation to maintain its sidewalk in a safe condition as well as the underlying facts regarding DaySpring's obligation to assist with ambulation needs.
There is no dispute between the parties that this rule applies to DaySpring. Our dissenting colleagues disagree, arguing that the rule applies only to an assisted living facility that contracts with the government to provide care to certain clients, and DaySpring did not provide services to Smith under such a contract. Post at 905–06 n.9. We need not decide whether the dissent is correct because other statutes and regulations include parallel requirements that an assisted living facility follow standards that "protect the health and safety" of residents, supervise and oversee their "physical ... well-being," and, as required by the resident's individual service plan prepared by the facility, provide "assistance with ... moving" and "transferring." Tex. Health & Safety Code §§ 247.002(5), 247.026(a) ; 26 Tex. Admin. Code §§ 553.3(61), 553.5(c), 553.9(2) ; see also 26 Tex. Admin. Code § 553.259(b)(1)-(2).
In a particular case, the claimant will usually be seeking or receiving health care, or providing or assisting in providing health care, but not both. Thus, courts have recognized that if either factor supports the conclusion that a claim is a health care liability claim, evaluation of the other factor is unnecessary. See, e.g., Univ. of Tex. Med. Branch , 598 S.W.3d at 481 & n.3 ; E. Tex. Med. Ctr. Gilmer , 485 S.W.3d at 131 & n.3.
Both health care facilities and non-healthcare businesses owe a duty to invitees to maintain premises safe from unreasonably dangerous conditions. When "the injury is one that could have occurred outside a health facility," the line between "what does and does not fall within the coverage of the Act is not always clear." Se. Tex. Cardiology Assocs. v. Smith , 593 S.W.3d 743, 747 (Tex. App.—Beaumont 2019, no pet.). But "[t]he pivotal issue in a safety standards-based claim is whether the standards on which the claim is based implicate the defendant's duties as a health care provider , including its duties to provide for patient safety." Ross , 462 S.W.3d at 505 (emphasis added). Here, the relevant question is whether DaySpring—as a health care facility charged with caring for Smith's physical health—violated a duty distinct from one generally owed by businesses to all invitees. In other words, the condition of DaySpring's sidewalk must implicate alleged departures from particular standards related to patient safety. See id. at 503 (considering whether "the area had to meet particular cleanliness or maintenance standards related to the provision of health care or patient safety," rather than "the same standards many businesses generally have").
The safety standards DaySpring allegedly violated here are particular to assisted living facilities and, as discussed above, promote the safety of facility residents in an area where they receive care; thus, the fifth factor favors holding that Faber's claim is a health care liability claim. Assisted living facilities have heightened duties of sidewalk maintenance compared to ordinary businesses. See 26 TEX. ADMIN. CODE § 553.103(d)(1) (providing that "[a]n assisted living facility must ensure a ... walk ... is of slip-resistive texture and is uniform, without irregularities"). Because the operative facts underlying Faber's claim include the cracked sidewalk outside DaySpring's entrance, Faber's claim implicates a deviation from a safety standard specific to a particular type of health care provider—an assisted living facility—rather than a duty owed by businesses generally.
The dissent characterizes this requirement as a "physical plant" standard, rather than a standard specific to the needs of facility residents. Post at 906. But even if the requirement could properly be labeled a "physical plant" standard, we see no reason why that should make any difference under Ross . As we discuss below, it is indisputably a "safety-related requiremen[t] set for health care providers by governmental ... agencies[.]" Ross , 462 S.W.3d at 505. In addition, the requirement that the facility ensure the slip-resistance and uniformity of the walk is a "professional dut[y] owed by the health care provider" that requires more than the ordinary duty of reasonable care, and it applies "in a place" where residents "receiv[e] care" as we have explained. Id. Thus, the standard is "substantively related to the safety" of those receiving care. Reddic v. E. Tex. Med. Ctr. Reg'l Health Care Sys. , 474 S.W.3d 672, 676 (Tex. 2015) (per curiam). Indeed, it is aimed specifically at ensuring their safety: the point of imposing a special slip-resistance standard for assisted living facilities is to "protect residents" in their care who may "need assistance with movement." Tex. Health & Safety Code § 247.0011(b-1) (providing that department "shall protect residents" by regulating facility construction, maintenance, and operation); 26 Tex. Admin. Code § 553.9(2).
The underlying facts relevant to Smith's injury also include the conduct of DaySpring's PCA, so DaySpring's duties in safely providing ambulatory assistance are relevant to the fifth factor as well. Regulations require DaySpring to conduct a comprehensive resident assessment, prepare a service plan within fourteen days of admission, and provide care according to the plan, including any required assistance with transferring/ambulating as well as transport and escort services. See id. § 553.259(b) ; 40 TEX. ADMIN. CODE § 46.41(b)(1)(H), (b)(3). As noted above, this care must be provided by trained staff. See supra note 13. The standard of care for providing such specialized assistance is that of a reasonably prudent assisted living facility and is informed by the applicable statutes and regulations, which provide specific safety standards that such facilities must follow in carrying out their duties as health care providers. See JSC Lake Highlands Ops., LP v. Miller , 539 S.W.3d 359, 371 (Tex. App.—Dallas 2016) (analyzing sufficiency of expert report regarding standard of care applicable to assisted living facility), rev'd , 536 S.W.3d 510 (Tex. 2017). For all these reasons, the fifth factor indicates that Faber's claim is a health care liability claim.
Sixth, an instrumentality used in providing health care—a rolling walker—was involved in DaySpring's conduct underlying Smith's injury.
[A] health care provider chose to use Smith's walker as a wheelchair, and, while transporting Smith, the walker became lodged in a crack causing Smith to fall. Just as patient transport is a type of health care, a wheeled walker, which is used to transport residents at [DaySpring], is an instrumentality used in providing health care. Indeed, Smith's physician noted in his assessment of Smith's suitability for [DaySpring] that she required a walker to "assist" with transfers.
629 S.W.3d at 647 (Reichek, J., dissenting). Whether it is negligent to transport a resident in this manner is a question well suited to expert testimony. See Tex. W. Oaks Hosp. , 371 S.W.3d at 190. As we have held, "if expert medical or health care testimony is necessary to prove or refute the merits of the claim against a physician or health care provider, the claim is a health care liability claim." Id. at 182.
Seventh, the allegedly negligent sidewalk condition occurred because DaySpring failed to comply with safety-related requirements set for health care providers by governmental agencies. As noted above, the Texas Administrative Code requires assisted living facilities to "ensure a ramp, walk, or step is of slip-resistive texture and is uniform, without irregularities." 26 TEX. ADMIN. CODE § 553.103(d)(1). Unlike in Galvan v. Memorial Hermann Hospital System , there is no indication here that DaySpring's decisions regarding maintenance of its sidewalk would have been motivated by a different, non-healthcare-specific safety standard. See 476 S.W.3d 429, 429, 432-33 (Tex. 2015) (holding claim was not health care liability claim when visitor slipped and fell in hallway from water spilling from restroom; hospital's decision to clean water would have been motivated by safety standards applicable to all businesses rather than healthcare-specific standards relating to infection control).
For these reasons, each applicable Ross factor supports the conclusion that Faber's cause of action is a health care liability claim. We therefore hold that the Act required her to serve an expert report.
CONCLUSION
The TMLA's expert-report requirement applies to Faber's cause of action because it constitutes a health care liability claim under our analysis in Ross . Given Faber's failure to serve an expert report before the Act's 120-day deadline, we reverse the court of appeals' judgment and render judgment dismissing her claim with prejudice. See TEX. CIV. PRAC. & REM. CODE § 74.351(b)(2) ; TEX. R. APP. P. 60.2(c). The Act requires the trial court to award DaySpring its reasonable attorney's fees and costs, see TEX. CIV. PRAC. & REM. CODE § 74.351(b)(1), and we remand the case to the trial court for that purpose.
Justice Young filed a concurring opinion, in which Justice Blacklock joined.
Justice Boyd filed a dissenting opinion, in which Justice Lehrmann and Justice Devine joined.
Justice Young, joined by Justice Blacklock, concurring.
The Ross factors attempted to impose order on chaos. But as so often happens with well-intended multifactor balancing tests, they instead have created a new battleground for waging costly collateral litigation of immense scope. The staggering number of cases from this Court and the lower courts, both before and after Ross , illustrates how many resources have been devoted to fighting over what the statutory definition of "health care liability claim" means. Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). Litigants spar over all the precedent-generated "tests" and "factors" and "prongs" and "nexuses." And we talk so much about "health care liability claims" that we long ago surrendered to the unsightly initialism "HCLC," which now litters many of our opinions (including, alas, this one).
Determining whether a claim is an HCLC should be a purely antecedent step—a sorting mechanism, a matter of taxonomy. Getting the sorting right is important, of course, but for reasons that have little to do with the merits. An HCLC must adhere to certain otherwise inapplicable procedural requirements, like providing a special kind of notice and, especially, a particular kind of expert report. HCLC status also affects limitations periods, whether certain elevated standards of proof apply, whether some kinds of damages may be curtailed, and other significant matters. Learning too late that a claim was an HCLC all along can mean that the claim is lost wholly aside from whether it had any merit, which is what we must hold today.
Getting the HCLC-or-not answer right is therefore of undoubted importance. The legislature is well within its rights to impose heightened standards on HCLCs and to prescribe the consequences that follow when those standards are not met. Precisely because HCLC status is so significant, clarity about whether or not a claim is an HCLC is, too.
The law should therefore make it as easy as possible to distinguish between HCLCs and non-HCLCs. Foundational to the rule of law itself is the principle that citizens should know what law governs them. And central to this Court's role, as I understand it at least, is the duty to facilitate that rule-of-law principle by generating transparent, reliable, and intelligible articulations of what the law is (something that, to its credit, Ross sought to do). Unless answering the antecedent HCLC-status question is relatively simple, courts cannot work efficiently and the parties' limited resources must be expended on matters collateral to their merits dispute. After all, asking "is it an HCLC?" is meaningless aside from the role the answer plays in a real dispute.
True, it may never be as easy as looking at two pets and saying "that is a cat, and that is a dog." But under our cases (and, in fairness, under the complicated but vague statutory definition that we have labored to construe), the inquiry is more like taking biopsies of both pets and sending them off to high-priced laboratories for analysis by pathologists just to know what kind of pet food to buy.
Our current jurisprudential inability to provide ready guidance about HCLC status could set the stage for at least three possible reactions. First, plaintiffs could assume that any claim that remotely touches on healthcare or a physical injury is an HCLC and act accordingly. Of course, doing so is costly; experts are expensive, their time is valuable, and conceding HCLC status will cause the litigation to unfold in a very different way. But satellite litigation is expensive, too, so a plaintiff with a serious claim might choose to accept HCLC status from the start. Indeed, some plaintiffs may already have made this concession, even silently, solely to get on with their cases.
Second, the legislature could provide greater clarity by amending the definition. There are many ways it could do so. One would be to use brighter and more absolute lines, which may entail covering more claims or fewer claims than the current definition (and our current case law) would ultimately reach. Being over-or under-inclusive (at least if measured from the perspective of the current morass) would at least generate greater clarity and certainty, along with the consequent savings of litigation time and expenses. It is the legislature's prerogative to decide if taking one of those approaches, or doing something else, is better than the status quo.
Notably, the legislature recently has mitigated some of the risk that previously befell plaintiffs who, at the end of lengthy litigation about HCLC status, learned that their characterization of their claim was wrong. Ironically enough, however, that change only generates more litigation. It does not simplify the core problem, which is to determine whether a claim actually is a "health care liability claim" in the first place. Plaintiffs who may have taken the first option I listed above may now reconsider (which may be entirely proper if the only reason that they previously held back was the fear of losing their entire case). Third, this Court could convert its reliance on factors into clearer rules. Stare decisis strikes me as posing less of an obstacle here than it otherwise might because our factor-laden HCLC jurisprudence may have "become[ ] less useful over time" as it "continues to generate confusion among parties and the judiciary" about the statutory definition. Mitschke v. Borromeo , 645 S.W.3d 251, 264 (Tex. 2022). Likewise, it is hard to see our cases as having generated "settled and reasonable reliance interests," id. , precisely because it is hard to rely on something as vague and unpredictable as the outcome of a multifactor test, cf. City of League City v. Jimmy Changas, Inc. , 670 S.W.3d 494, 514–15 (Tex. June 9, 2023) (Young, J., concurring). And I fear that subjecting the bar, the public, and the courts over and over again to the labor-intensive effort of trying to figure out what an HCLC is resembles building a sand castle despite knowing that the tide will come. The longer we repeat such an effort, the more likely it will lead to "cynicism" about the use of the factors than to a sense of their "legitimacy." Mitschke , 645 S.W.3d at 266.
A new statutory amendment provides a mechanism for a "preliminary determination for expert report requirement." Tex. Civ. Prac. & Rem. Code § 74.353. Specifically, it allows acceleration of the collateral litigation over "whether a claim made by the claimant is a health care liability claim." Id. § 74.353(a). This process ensures that a plaintiff who avails himself of it will not be caught flat-footed once the answer emerges, because he will have time to get an expert report if the claim turns out to be an HCLC. Id. § 74.353(b). But the new provision in no way simplifies how to make that determination and does not eliminate the burdens involved in doing so. The opposite may be more nearly true, because any claimant can seek such a determination and either side is empowered to take an interlocutory appeal of the trial court's answer. Id. § 74.353(a), (d). Dockets will likely see more HCLC litigation, not less.
Supposing that we were willing to reconceptualize the HCLC definition, what would our new implementing "rules" be? The answer must, as always, start with the statutory text. I hasten to note that our cases have not ignored the text—quite the opposite. If it sounds as if "I come to bury the Ross factors, not to praise them," then—like Mark Antony—I at least offer up substantial praise in fact. I read our precedents to have earnestly sought to give practical meaning to statutory terms that are defined with complexity (including by relying on other broadly or vaguely defined statutory terms). In my view, however, these terms should provide for articulable rules and sub-rules, not a balancing or weighing of factors.
Clear rules through case law, in turn, will facilitate interbranch dialogue that is healthy for the law of a self-governing people. The legislature sets policy; the courts provide clarity about the policy by stating what the content of law is, allowing individual citizens to order their affairs accordingly; and the legislature responds with adjustments as needed. When the courts offer up a host of factors, it may well be (although I have my doubts) that the outcome of any given case will more closely reflect the original policy choice. But those factors have an anesthetic quality, too. Their very lack of certainty makes it harder for the legislature to take aim at them and make clear changes.
But neither party here asks us to step away from the conglomeration of the Ross factors or to wipe away any other cobwebs from the case law. In my judgment, the Court today applies the Ross factors as correctly as they can be applied. It well discharges its duty to provide thorough guidance to the extent the factors allow—a difficult task, to be sure. At the same time, though, I find much about the dissent appealing and praiseworthy—especially its implicit invitation to generate clearer and simpler rules that will govern entire categories of cases.
If the legislature chooses to retain the current statutory definition, I hope that a future case will give us the opportunity to reconsider our framework for determining when a claim qualifies as an HCLC. With these comments, I join the Court's opinion and its judgment.
Justice Boyd, joined by Justice Lehrmann and Justice Devine, dissenting.
As the Court explains, a claim alleging that a health care provider violated regulatory safety standards constitutes a health care liability claim under the Texas Medical Liability Act only if, "at a minimum, there [is] a ‘substantive nexus between the safety standards allegedly violated and the provision of health care.’ " Ante at 888 (quoting Ross v. St. Luke's Episcopal Hosp. , 462 S.W.3d 496, 504 (Tex. 2015) ). Christine Faber claims in this case that the DaySpring Assisted Living Community violated safety standards when it caused the death of her mother, Carmelina "Millie" Smith, but nothing in this record indicates that those standards had any relationship to "health care" as the Act defines that term. More specifically, nothing indicates that DaySpring provided any health care to Smith at all. In fact, DaySpring required Smith and Faber to sign a form created by DaySpring acknowledging that DaySpring "does NOT provide ... health care services (other than assistance with medication administration, if requested)." Because DaySpring did not provide "health care" to Smith, the safety standards it allegedly violated have no substantive nexus to health care, so Faber's claim against DaySpring cannot constitute a "health care liability claim." I respectfully dissent.
I.
"Health Care Liability Claim"
A claim qualifies as a health care liability claim under the Texas Medical Liability Act (TMLA) if: (1) the defendant is a physician or health-care provider; (2) the claim alleges "treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care;" and (3) the defendant's conduct proximately caused the claimant's injury or death. Tex. W. Oaks Hosp., LP v. Williams , 371 S.W.3d 171, 180 (Tex. 2012) (citing TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13) ).
"Health care liability claim" means
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.
Tex. Civ. Prac. & Rem. Code § 74.001(a)(13).
Regarding the first element, an assisted living facility like DaySpring qualifies as a health-care provider under the TMLA. TEX. CIV. PRAC. & REM. CODE § 74.001(a)(11)(B), (12)(A)(vii). But that does not mean that every thing—or even any thing—a particular assisted living facility does constitutes "health care" under the TMLA. The second element determines that question.
Addressing the second element, the Court does not consider whether Faber's claim alleges a departure from accepted standards of "medical care" or "health care." Instead, it concludes that the claim falls within the definition's "safety standards" prong because it effectively alleges that DaySpring's personal-care assistant violated safety standards that governed Dayspring's provision of services to Smith. Ante at 890–91. But as the Court acknowledges, see id. at 887–88, a claim falls within the TMLA's safety-standards prong only if "a substantive nexus" exists "between the safety standards allegedly violated and the provision of health care. " Ross , 462 S.W.3d at 504 (emphasis added). To determine whether the safety standards DaySpring allegedly violated have a "substantive nexus" to "the provision of health care," we must first determine what the TMLA means by "health care." Under the TMLA, "health care" means any act performed by a health-care provider "for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10) (emphasis added). "Medical" care, in turn, means "any act defined as practicing medicine under Section 151.002, Occupations Code, performed or furnished, or which should have been performed, by one licensed to practice medicine in this state for, to, or on behalf of a patient during the patient's care, treatment, or confinement." Id. § 74.001(a)(19). Under these definitions—as we explained just last term—"physicians provide ‘medical care’ and health care providers provide ‘health care,’ " but "health care providers provide health care only when they furnish treatment to a patient ‘during’—or as part of—a physician's provision of ‘medical care. ’ " Lake Jackson Med. Spa, Ltd. v. Gaytan , 640 S.W.3d 830, 841 (Tex. 2022) (quoting TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10) ) (emphasis added). So the care that DaySpring provided to Smith would qualify as "health care" only if DaySpring provided that care as part of a physician's provision of "medical care" to Smith.
As the Court notes, we also stated in Ross that the "pivotal issue in a safety standards-based claim is whether the standards on which the claim is based implicate the defendant's duties as a health care provider, including its duties to provide for patient safety." Ross , 462 S.W.3d at 505 (emphasis added). Repeatedly relying on this statement, the Court suggests that a claim is a health care liability claim whenever (1) the defendant qualifies as a health care provider, and (2) the claim alleges that the defendant violated a regulatory safety standard that applies to the defendant. See ante at 890–91, 893, 893–94 & n16. But we rejected that exact argument when we applied Ross in two subsequent per curiam opinions: Reddic v. E. Tex. Med. Ctr. Reg'l Health Care Sys. , 474 S.W.3d 672, 675–76 (Tex. 2015), and Galvan v. Mem'l Hermann Hosp. Sys. , 476 S.W.3d 429, 432–33 (Tex. 2015). In Reddic , we held that a hospital visitor's claim based on a slip-and-fall in the hospital's lobby was not a health care liability claim even though it alleged the hospital violated safety standards governing the safety of its lobby floors because "the record does not support a conclusion that safety standards regarding maintenance of the floor and mats where Reddic fell were substantively related to the safety of patients receiving health care or persons seeking health care." 474 S.W.3d at 676. We applied the same reasoning in Galvan , holding that a similar claim involving a visitor's slip-and-fall in a hospital hallway was not a health care liability claim. 476 S.W.3d at 432–33. As these cases confirm, the mere fact that (1) DaySpring qualifies as a health care provider and (2) Faber alleges that DaySpring violated a safety standard that "implicates" its duties to its residents does not make Faber's claim a health care liability claim. Instead, the safety standard itself must have a "substantive nexus" to DaySpring's "provision of health care." Ross , 462 S.W.3d at 504.
Because the TMLA expressly defines the terms "health care" and "medical care," we must apply those definitions even if the terms might bear other meanings in different circumstances. See Tex. Gov't Code § 311.011 ; TGS-NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 439 (Tex. 2011) ("If a statute uses a term with a particular meaning or assigns a particular meaning to a term, we are bound by the statutory usage." (citing Tex. Dep't of Transp. v. Needham , 82 S.W.3d 314, 318 (Tex. 2002) )).
As the Court explains, we "have held that although a claim alleging a ‘breach of health-care or medical-care standards must involve a physician–patient relationship’ to qualify as a health care liability claim, a claim alleging a ‘breach of safety, professional-services, or administrative-services standards’ need not." See ante at 890 (quoting Gaytan , 640 S.W.3d at 841 ). But those holdings referred only to physician–patient relationships between the claimant and the defendant. See Gaytan , 640 S.W.3d at 841 ; Tex. W. Oaks Hosp. , 371 S.W.3d at 178. A claim alleging violations of safety standards may qualify as a health care liability claim even if the claimant has no physician–patient relationship with the defendant, but only if the safety standards at issue have a substantive nexus to health care. See Ross , 462 S.W.3d at 504–05. And to have a substantive nexus to "health care," the standards must have a substantive relationship to care provided as part of a physician's provision of "medical care." See Gaytan , 640 S.W.3d at 841.
Thus, for a safety-standards claim to qualify as a health care liability claim, the claimant need not have a physician–patient relationship with the defendant, but the defendant must be providing "health care," and it can be providing health care as the TMLA defines that term only if it is providing care as part of a physician's provision of medical care to the claimant. If it is not, the safety standards can have no "substantive nexus" to health care. This is not—as the Court accuses—a new "strict rule" I propose today as a replacement for the Ross factors, see ante at 890–91, it is the very rule we announced in Ross when we construed the TMLA to require a "substantive nexus ... between the safety standards allegedly violated and the provision of health care. " Ross , 462 S.W.3d at 504 (emphasis added).
The Court's approach fails to appreciate the fact that the claims in Ross arose from a very different factual context than this case. In Ross , a hospital visitor who was not receiving any health care from the hospital slipped and fell in the hospital's lobby. It was undisputed, of course, that the hospital provided health care. See 462 S.W.3d at 503. The issue was whether the safety standards governing the hospital's maintenance of the lobby floor had a substantive nexus to that health care. See id. at 504. As discussed below, the safety standards governing DaySpring's conduct in assisting a resident to her car could have no substantive nexus to health care because DaySpring was not providing health care at all.
II.
Assisted Living Facilities
Having determined the meaning of "health care" under the TMLA, and before addressing the evidence in this case, it is important to clarify the nature of an "assisted living facility." Under Chapter 247 of the Texas Health and Safety Code—which addresses and governs assisted living facilities in Texas—assisted living facilities may, but are not required to, provide health care. An assisted living facility is simply an "establishment" that provides (1) "food and shelter to four or more persons who are unrelated to the proprietor of the establishment," and (2) either "personal care services" or "administration of medication by a person licensed or otherwise authorized in this state to administer the medication." TEX. HEALTH & SAFETY CODE § 247.002(1)(A), (B) (emphasis added); see 26 TEX. ADMIN. CODE § 553.7(a).
By rule, an assisted living facility that contracts with the government to provide care to clients of the Texas Department of Human Services Community Based Alternatives Assisted Living/Residential Care Program or the Community Care for the Aged and Disabled Residential Care Program must also provide basic "home management" services (which include changing bed linens, housecleaning, laundry, shopping, storing supplies, and washing dishes), transportation and escort services, social and recreational activities, participation in assessments by an outside licensed nurse, and emergency care while the facility seeks a permanent placement in a more appropriate institution. 40 Tex. Admin. Code § 46.1, .41(b)(2)–(6). This record includes no indication that DaySpring provides services pursuant to such a contract.
"Personal care services" means "[a]ssistance with feeding, dressing, moving, bathing, or other personal needs or maintenance," or "general supervision or oversight of the physical and mental well-being of a person who needs assistance to maintain a private and independent residence in an assisted living facility or who needs assistance to manage the person's personal life, regardless of whether a guardian has been appointed for the person." TEX. HEALTH & SAFETY CODE § 247.002(5). By providing "personal care services," assisted living facilities provide a general form of "care" that promotes "resident independence and self-determination," "humane treatment," "conservative intervention," "access to care," "continuity of care," "coordination of services," "safe surroundings," "professionalism of service providers," "participation in useful studies," and "quality of life." Id. § 247.0011(a). The purpose of such care is to "enhance" the resident's "ability to age in place in a residential setting while receiving increasing or decreasing levels of service as the [resident's] needs change." Id. § 247.0011(c).
Chapter 247 refers to those receiving care from assisted living facilities as "residents," not as "patients." Id. § 247.0011(b). Assisted living facilities must meet certain "resident care standards," "life safety code standards," and "physical plant standards," but the statute never mentions "medical care standards" or "health care standards." Id. § 247.021(d)(1)–(2), (g)(5). In fact, Chapter 247 never mentions "medical care" and refers to "health care" only when referring to "health care professionals" that assisted living facilities "may," but are not required to, have on staff. See id. §§ 247.002(1)(D)(i), .026(h), .029(c)(1), .067.
In all of Chapter 247, the term "patient" appears only twice, referring both times to "patients" or "clients" of the Texas Department of State Health Services, the Texas Department of Aging and Disability Services, a local mental-health authority, or a local intellectual and developmental disability authority, which may "refer" their "patient" or "client" to an assisted living facility. Tex. Health & Safety Code §§ 247.063(a), .065(b)(7). In relation to an assisted living facility, Chapter 247 refers to those who live there only as "residents."
To understand the nature of assisted living facilities, it is helpful to contrast them with "convalescent and nursing facilities and related institutions," often referred to as "nursing homes," which are governed by Chapter 242 of the Health and Safety Code. Like assisted living facilities, nursing facilities must provide "food and shelter to four or more persons who are unrelated to the proprietor of the establishment," but they must also provide "minor treatment under the direction and supervision of a physician licensed by the Texas Medical Board, or other services that meet some need beyond the basic provision of food, shelter, and laundry." Id. § 242.002(10) (emphasis added). Unlike assisted living facilities, nursing facilities must have on staff a "licensed nursing facility administrator," "at least one medical director who is licensed as a physician in this state," and "a director of nursing services who shall be a registered nurse." Id. §§ 242.015(a), .151(a), .153. Like Chapter 247, Chapter 242 refers to those living in a nursing facility as "residents," but unlike Chapter 247, Chapter 242 defines the term "resident" as "including a patient." Id. § 242.002(12).
Unlike assisted living facilities, nursing facilities must provide their residents with "the nursing care required to allow each resident to achieve and maintain the highest possible degree of function and independence medically possible." Id. § 242.154(a) (emphasis added). As we have previously held, nursing homes necessarily provide health care because they provide round-the-clock services, including physician examinations and pharmaceutical and dental services, by medical staff that includes physicians, nurses, nurse aides, and orderlies, according to a "comprehensive care plan to address the resident's medical, nursing, mental, psychosocial, and other needs." Diversicare Gen. Partner, Inc. v. Rubio , 185 S.W.3d 842, 849–50 (Tex. 2005). Chapter 242 and related regulations impose such requirements on nursing facilities, but (with limited exceptions not applicable here) Chapter 242 "does not apply to an assisted living facility licensed under" Chapter 247. TEX. HEALTH & SAFETY CODE § 247.003(a). Indeed, standards adopted by the Health and Human Services Commission to protect the "health and safety" of residents in assisted living facilities must "clearly differentiate an assisted living facility from [a nursing facility] required to be licensed under Chapter 242." Id. § 247.026(b)(1).
All this is not to say that no assisted living facility ever provides "health care." As explained above, assisted living facilities qualify as health-care providers, and they do provide "health care" when they furnish treatment to a patient as part of a physician's provision of "medical care." Gaytan , 640 S.W.3d at 841. In addition to providing food, shelter, and personal-care services, for example, an assisted living facility "may " provide "assistance with or supervision of the administration of medication," "skilled nursing services" for certain "limited purposes," or certain "health maintenance activities," which involve "task[s] that require[ ] a higher level of skill to perform than personal care services. " TEX. HEALTH & SAFETY CODE § 247.002(1)(C)–(E) ; 26 TEX. ADMIN. CODE §§ 553.3(33)(B), 553.7(b) (emphasis added). They may also provide "brain injury rehabilitation services," "personal care services to residents with Alzheimer's disease or related disorders," and "geriatric care." TEX. HEALTH & SAFETY CODE § 247.026(c), (c-1), (f). And they "may " employ a "health care professional," including "a physician, registered nurse, licensed vocational nurse, licensed dietitian, physical therapist, and occupational therapist," who is "licensed, certified, or otherwise authorized to administer health care. " Id. § 247.067(a), (b) (emphases added); see also 26 TEX. ADMIN. CODE § 553.3(32).
But assisted living facilities are not required to employ a health-care professional or to provide services other than personal-care services. Even those that do "must not provide ongoing services to a resident that are comparable to the services available in a nursing facility licensed under" Chapter 242. 26 TEX. ADMIN. CODE § 553.261(c)(1). And those that don't provide only personal-care services, which qualify as "health care" only if they are provided as part of a physician's provision of "medical care." Gaytan , 640 S.W.3d at 841.
Chapter 247 recognizes that there are "different types of assisted living facilities," Tex. Health & Safety Code § 247.048(2), but they differ based not on the level of care or types of services they provide, but on "the capability of the residents to evacuate the facility" in the case of an emergency. 26 Tex. Admin. Code § 553.5(a).
III.
DaySpring's Services
The record here establishes that DaySpring provided only personal-care services to Smith and did not provide those services as part of any physician's provision of medical care. As a result, DaySpring did not provide any health care to Smith as the TMLA defines that term, so Faber's claim cannot be a health care liability claim under either the health-care or "safety" prong.
DaySpring's executive director testified that DaySpring is "a non-medical community where residents can receive assistance with activities of daily living." [Emphasis added.] She explained that, with the exception of assisting some residents with medication administration, DaySpring provides only personal-care services, which means "assistance with the activities of daily living such as bathing, dressing, [and] ambulating." It employs only one licensed vocational nurse, but only to oversee the administration of medications for residents who need that service. It otherwise provides only personal-care services, relying on "caregivers" and nurse aides.
Smith was 87 years old when she moved into DaySpring. She had a history of several physical ailments, as well as a history of falls, but she was able to move around with a walker without assistance and did not require a wheelchair. Because of her risk of falling, her primary-care physician "recommended" to Faber that "she be in an assisted living [facility]."
A few months later, Faber made the decision to move Smith to DaySpring, not because of the physician's recommendation, but because a social worker told Faber that Medicare would not pay for fall-related treatment if she didn't move Smith to a "place where she would be watched." Faber initially arranged for Smith to stay at DaySpring for a few days, to see if it was a good fit. Smith "really liked" DaySpring because she "was a social person," so they decided she would move there a couple months later.
Before making the move, Faber met with DaySpring's executive director, director of resident care, and assistant director of resident care, none of whom are medical professionals, to discuss the assistance Smith would need. Together they completed a "Comprehensive Functional Assessment and Individual Service Plan" for Smith's stay at DaySpring. The plan noted that Smith had "health conditions" that were "unstable chronic conditions where flare-ups may occur," but that she did not "require assistance for any special treatments or procedures" other than "blood pressure monitoring 2x week" and that she would not need assistance in administering her medications for those conditions. It further noted that she was fully oriented as to place and time, was alert with no impairment, and was able to participate in activities and events without assistance.
The Service Plan noted that Smith had fallen more than once in the preceding twelve months and that she required "staff to provide stand by assistance with bathing up to 3 times weekly." It also noted that she did not require assistance for hygiene and grooming, getting dressed, or laundry, was "totally independent" in "mobility" and "moving from place to place," and needed no assistance with "transfers," although she did require "resting areas intermittently throughout [the] residence." Faber testified that Smith needed assistance with "getting around from place to place," and DaySpring's executive director testified that Smith "was capable of walking by herself but long distances were difficult for her."
In addition to the Service Plan that Smith, Faber, and DaySpring completed, Faber provided DaySpring with a "Doctor's History & Physical Report," which Smith's primary-care physician had prepared a few days earlier. This physician was not employed by DaySpring, and its executive director did not know him from "any other patients or history." The Doctor's Report noted that Smith was an 87-year-old woman with a number of physical ailments, including "generalized osteoarthrosis" and a limited range-of-motion in her upper and lower extremities. He observed that Smith walked "with a walker," had a "history of fall[s]," and required "assistance with ambulation." Nevertheless, he opined that Smith did not need skilled-nursing care and was capable of administering her medications independently, and that her needs could "be met at a non-medical , licensed assisted-living facility." [Emphasis added.] In a section describing the "treatment" Smith required, he prescribed medications for various ailments, diagnostic imaging, and a referral to a specialist for urological issues. He did not list or prescribe any "treatment" related to her "transfer and ambulation."
Importantly, Smith's file also contained a third document, which DaySpring required Smith and Faber to sign to confirm their understanding that DaySpring provided only personal-care services to assist with "routine living functions" and would not provide Smith with any "health care" services:
NOTICE THIS ASSISTED LIVING FACILITY DOES NOT PROVIDE NURSING CARE
This facility is an assisted living facility; also known as a personal care facility. A personal care facility is ... a facility which provides "acts of a protective nature. Personal care is understood to mean adult and responsible supervision or assistance with routine living functions in instances of a resident's condition necessitating such supervision or assistance."
This is NOT a nursing home and this facility does NOT provide nursing or other health care services (other than assistance with medication administration, if requested) .... This facility DOES NOT provide nursing home services, which are defined as "Services provided by nursing personnel (include) observation; promotion and maintenance of health; prevention of illness and disability; management of health care during acute and chronic phases of illness; guidance and counseling of individuals and families; and referral to physicians, other health care providers, and community resources when appropriate."
BY SIGNING BELOW, I CERTIFY THAT I HAVE READ AND UNDERSTOOD THE CONTENTS OF THIS NOTICE.
[Italics added.]
Nevertheless, DaySpring now argues that it was providing "health care" to Smith when its personal-care attendant pushed her backwards over a broken sidewalk in a rolling walker, and the Court agrees. But the record does not establish that DaySpring's services to assist Smith to her daughter's vehicle were provided as part of a physician's provision of medical care.
Because DaySpring did not itself provide medical care or health care and instead provided only personal-care services, the Court focuses on the fact that Smith's physician recommended to Faber that Smith "move to" an assisted living facility. See ante at 891. In the Court's view, this "recommendation" creates a sufficient substantive nexus between the medical care that Smith's physician provided to her and the safety standards that governed DaySpring's provision of personal-care services. This view directly contradicts our recognition in Ross that "the Legislature did not intend for the expert report requirement to apply to every claim for conduct that occurs in a health care context." 462 S.W.3d at 502. To the contrary, a "safety standards-based claim does not come within the TMLA's provisions just because the underlying occurrence took place in a health care facility, the claim is against a health care provider, or both." Id. at 503. Instead, "the safety standards referred to in the definition are those that have a substantive relationship with the providing of medical or health care." Id. at 504. Otherwise, "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 health care." Id.
By finding a "substantive nexus" based merely on a doctor's recommendation that his patient move into a facility that expressly does not provide health care and instead provides only personal-care services, the Court today promotes the very "arbitrary results" we sought to avoid in Ross . Id. Smith's primary-care physician merely "recommended" to Faber that Smith move into an assisted living facility and noted that she needed assistance with ambulating. He did not order or emphasize that she move or that she receive such services, and he agreed that her needs could "be met at a non-medical , licensed assisted-living facility." [Emphasis added.] Concluding that DaySpring provided "health care" because of the physician's recommendation would be like concluding that a restaurant provides health care to a patron whose physician recommended he eat better. Smith's physician had no prior or ongoing relationship with DaySpring, did not recommend DaySpring specifically, and exerted no supervision over the personal-care services it provided to Smith. Further, Smith waited several months after this recommendation to actually move into the facility and only did so after her daughter received information that moving into a facility might be necessary for continued Medicare coverage.
Even accepting that an outside physician's recommendation could be enough to support a substantive nexus, an application of the Ross factors confirms that no substantive nexus exists between the physician's medical care for Smith and the safety standards that DaySpring allegedly violated. Smith was a "resident" of DaySpring, not a "patient," DaySpring did not provide any "health care" to Smith, and DaySpring's obligation to maintain its sidewalks protects not patients but rather the general public. See, e.g., id. at 505 (holding that the hospital's maintenance of its lobby floor was not "for the purpose of protecting patients" but to protect the general public). And the Service Plan completed when Smith entered the facility noted that she was "totally independent" in "mobility" and "moving from place to place," and needed no assistance with "transfers."
The Ross factors are:
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 , 462 S.W.3d at 505 (emphases added).
The Court cites Department of Aging and Disability Services Administrative Rule 46.41 for the proposition that DaySpring was required to assist Smith with service-plan activities "related to the care of [her] physical health," which in Smith's case included "ambulating." Ante at 892–93 (citing 40 Tex. Admin. Code § 46.41(b)(1)(H) ). But Chapter 46 of Title 40 applies only to an assisted living facility that contracts with the government to provide care to clients of the Texas Department of Human Services Community Based Alternatives Assisted Living/Residential Care Program or the Community Care for the Aged and Disabled Residential Care Program. See 40 Tex. Admin. Code § 46.1. Chapter 46 is inapplicable here. The record contains no evidence that DaySpring entered into or provided services to Smith under any such contract. Thus, these regulations cannot support the idea that DaySpring was assisting with activities "related to the client's physical health." Id. § 46.41(b)(1).
The Court relies on a different set of intake paperwork that indicated Smith had trouble ambulating independently and required standby assistance. Ante at 891–92. However, this paperwork was completed several months before Smith permanently moved into the facility. I rely on the paperwork completed just a short time before the accident as the most reliable indicator of Smith's needs at the time she moved into the facility. That intake assessment rated Smith as "totally independent."
The Court's focus on "safety" does not justify its conclusion that a substantive nexus is present here. Contrary to the Court's characterization, Chapter 247 and the rules that govern assisted living facilities, such as the sidewalk requirements, never describe their "safety" standards as "standards of health care." Ante at 889–90 & n.6, 890–91. Instead, they require compliance with "life safety standards" and "physical plant standards," TEX. HEALTH & SAFETY CODE § 247.021(d-2) ; 26 TEX. ADMIN. CODE § 553.23(d), and define the term "safety" to refer generally to "[p]rotection from injury or loss of life due to such conditions as fire, electrical hazard, unsafe building or site conditions , and the hazardous presence of toxic fumes and materials," 26 TEX. ADMIN. CODE § 553.3(74) (emphasis added).
The regulatory standard on which the Court relies, which requires assisted living facilities to "ensure a ramp, walk, or step is of slip-resistant texture and is uniform, without irregularities," 26 TEX. ADMIN. CODE § 553.103(d)(2), is simply a "physical plant" standard. This standard is listed with others, like ensuring the facility is served by a firefighting unit, has adequate parking, has guardrails and handrails where needed, is "maintained in good condition and kept free of rubbish, garbage, and unintended growth," has sufficient water drainage, and (in some cases) is not located in a 100-year floodplain. Id. § 553.103. These are general physical plant standards that apply regardless of whether the assisted living facility chooses to provide health care, not standards that specifically govern a facility's provision of health care as the Court asserts. See ante at 890–91, 893–94 n.16; see also Reddic , 474 S.W.3d at 675–76 (holding that safety standards requiring a hospital to eliminate general safety risks and maintain the hospital grounds did not have or create a sufficient nexus to health care to qualify a visitor's premises-liability claim as a health care liability claim). Because DaySpring does not provide health care, the safety standards that govern it have no substantive nexus to health care.
The Court also considers Dayspring's regulatory duty to safely provide ambulatory assistance to its residents. See ante at 891–92 & n.13. But DaySpring's service plan for Smith did not include any services provided as part of a physician's provision of medical care. An assisted living facility's "service plan" is simply a "written description of the medical care, supervision, or nonmedical care needed by a resident." 26 TEX. ADMIN. CODE § 553.3(76) (emphasis added). As explained, assisted living facilities "may" provide medical care or health care, and when they do those service plans must describe that care, but that was not the case here. And although the Court repeatedly identifies the walker—in its words, "an instrumentality used in providing healthcare," ante at 894—as an operative fact underlying Faber's claim, the walker was Smith's own walker and was not provided by DaySpring or her physician.
Under this record, even analyzing this case under the supposition that a physician's remote recommendation that a patient should move to a facility could provide a sufficient substantive nexus to healthcare, DaySpring failed to demonstrate that it did so here.
IV.
Conclusion
Because nothing in this record establishes that DaySpring provided any services as part of a physician's provision of medical care to Smith, DaySpring did not provide Smith with any "health care" as the TMLA defines that term. Faber's claim therefore does not assert a departure from accepted standards of health care or from accepted standards of "safety" having a "substantive nexus" to health care. And because Smith was not a patient receiving health care from DaySpring, the Ross factors are not satisfied here. As a result, Faber's claim does not qualify as a health care liability claim under the TMLA, and I must respectfully dissent.