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In Marks, the court expressly rejected the notion that "any patient injury negligently caused by an unsafe condition at a health care facility" represents a health care liability claim, holding instead that a health care liability claim exists "when the unsafe condition... is an inseparable or integral part of the patient's care or treatment."
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No. 07-0783
Argued September 11, 2008.
Opinion Delivered: August 28, 2009.
On Petition for Review from the Court of Appeals for the First District of Texas.
JUSTICE MEDINA delivered the opinion of the Court, in which CHIEF JUSTICE JEFFERSON, JUSTICE O'NEILL, JUSTICE BRISTER, and JUSTICE GREEN joined.
CHIEF JUSTICE JEFFERSON filed a concurring opinion.
JUSTICE HECHT filed a dissenting opinion.
JUSTICE WAINWRIGHT filed a dissenting opinion.
JUSTICE JOHNSON filed a dissenting opinion, in which JUSTICE HECHT, JUSTICE WAINWRIGHT, and JUSTICE WILLETT joined.
In this case we must decide whether a hospital patient's fall, allegedly caused by a negligently maintained hospital bed, is a health care liability claim under article 4590i of the Revised Civil Statutes. Article 4590i, also known as the Medical Liability and Insurance Improvement Act, provides that health care liability claims, not accompanied by an expert report, may be dismissed with prejudice 180 days after filing, although a grace period is available under limited circumstances. The trial court concluded that the hospital bed claim here was a health care liability claim, which it then dismissed because of the patient's failure to file a timely expert report. The trial court also denied the patient's request for a grace period. The court of appeals initially disagreed with the trial court, concluding that the patient's claim was not a health care liability claim. See Marks v. St. Luke's Episcopal Hosp., 177 S.W.3d 255, 260 (Tex. App.-Houston [1st Dist.] 2005), vacated, 193 S.W.3d 575 (Tex. 2006). Following our remand of the case, however, the court affirmed the trial court's judgment. 229 S.W.3d 396. One justice dissented, arguing that the hospital bed claim was in the nature of a premises liability claim rather than a health care liability claim. Id. at 403 (Jennings, J., dissenting in part). We agree with the dissenting justice and accordingly reverse the court of appeals' judgment and remand the case to the trial court.
See Medical Liability and Insurance Improvement Act of Texas, Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2041, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
I
Irving Marks fell and injured himself during his recuperation from back surgery at St. Luke's Hospital. The fall occurred when Marks, while sitting on his hospital bed, attempted to use the bed's footboard to push himself up to a standing position. Unfortunately, the footboard came loose, causing Marks to fall. Marks sued the Hospital, alleging several acts of negligence, including: (1) failing to train and supervise the nursing staff properly, (2) failing to provide him with the assistance he required for daily living activities, (3) failing to provide him with a safe environment in which to recover, and (4) providing a hospital bed that had been negligently assembled and maintained by the hospital's employees.
The trial court concluded that Marks's petition asserted health care liability claims as defined under the Medical Liability and Insurance Improvement Act. See TEX . REV. CIV. STAT. art. 4590i § 1.03(a)(4) (defining health care liability claim). This Act requires that health care liability claims be substantiated by a timely filed expert report. Id. § 13.01(d). Because Marks failed to file a timely expert report, the trial court granted the Hospital's motion to dismiss.
Article 4590i was repealed after the filing of this case. See n. 1 supra. Similar medical liability legislation is now codified in Chapter 74 of the Texas Civil Practice and Remedies Code, affecting actions filed on or after September 1, 2003. See TEX. CIV. PRAC. REM . COD E §§ 74.301-.303.
The court of appeals initially reversed, concluding that Marks's allegations concerned "an unsafe condition created by an item of furniture" and thus related to "premises liability, not health care liability[.]" Marks, 177 S.W.3d at 259. The Hospital appealed, filing its petition for review a few days before we held, in Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005), that a patient's claims against a nursing home for inadequate supervision and nursing services were health care liability claims.
After full briefing, we granted the Hospital's petition. Rather than parse through Marks's claims, however, we vacated the court of appeal's judgment without reference to the merits and remanded for the court of appeals to consider the nature of these claims in light of Diversicare. St. Luke's Episcopal Hosp. v. Marks, 193 S.W.3d 575 (Tex. 2006) (per curiam). Following our remand, a divided court of appeals affirmed the trial court's dismissal for want of a timely expert report, concluding that Marks had asserted only health care liability claims. 229 S.W.3d at 402. One justice dissented in part, urging that Marks's fourth claim concerning the defective footboard was a premises-liability claim rather than a health care liability claim under the Medical Liability and Insurance Improvement Act. Id. at 403 (Jennings, J., dissenting in part).
II
The Medical Liability and Insurance Improvement Act of 1977 was the Legislature's response to a crisis in the cost and availability of medical malpractice insurance in Texas. The Legislature perceived that an inordinate increase in the frequency and severity of health care liability claims had caused the crisis. TEX. REV . CIV. STAT. art. 4590i § 1.02(a)(1)-(5). The Legislature also found that this insurance crisis had adversely affected the cost and delivery of medical and health care in Texas. Id. § 1.02(a)(6)-(9). To address the problem, the Legislature sought to reduce the "frequency and severity of health care liability claims through reasonable improvements and modifications in the Texas insurance, tort, and medical practice systems[.]" Id. § 1.02(b)(1). The Legislature's modifications included a damages cap, a shortened limitations period, and heightened filing requirements for health care liability claims. See Diversicare, 185 S.W.3d at 846-47.
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" proximately resulting in a patient's injury or death. TEX. REV. CIV. STAT. art. 4590i § 1.03(a)(4). The Act does not define safety, although it does define other terms, including "health care provider," "physician," "medical care," and "health care." Id. § 1.03(a)(2)-(4), (8).
These definitions indicate that physicians provide medical care, and health care providers furnish other health care services. "Medical care" is defined as the practice of medicine, including the diagnosis and treatment by a licensed physician. Id. § 1.03(a)(6). "Health care" is defined more broadly to include "any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." See id. § 1.03(a)(3). Hospitals are expressly included in the definition of "health care provider." Id. § 1.03(a)(3).
Although Diversicare primarily concerned a claimed departure from accepted standards of health care, we mentioned safety and the absence of any statutory definition for the term. Diversicare, 185 S.W.3d at 855. We observed that the inclusion of accepted standards of safety expanded the statute's scope beyond what it would have been had the statute only covered medical care and health care. Because the statute offered no definition of safety, we suggested its commonly understood meaning, that is, "'untouched by danger; not exposed to danger; secure from danger, harm or loss.'" Id. (quoting BLACK'S LAW DICTIONARY 1336 (6th ed. 1990)). The term's meaning, however, was ultimately unnecessary to our decision, and so we left unresolved its contextual meaning, as well as its relationship to the other defined terms of medical care and health care. See id. The meaning of this term is squarely presented here as the parties dispute what the Legislature intended to include as a health care liability claim involving a "departure from accepted standards of . . . safety[.]" TEX. REV. CIV. STAT. art 4590i § 1.03(a)(4).
Marks contends that safety must be read narrowly to include only safety concerns directly related to the patient's care or treatment. The Hospital, on the other hand, argues that the term should be read broadly to include any patient injury negligently caused by an unsafe condition at a health care facility. Even if the definition is not this broad, the Hospital alternatively argues, it should include equipment used in the patient's care, such as the hospital bed here.
III
To determine the meaning of safety in the context of this Act, we begin with established principles of statutory construction. The first and overarching principle is that we give effect to legislative intent. See TEX. GOV'T CODE § 312.005; see also Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000). When interpreting a statute, we read words and phrases in context and construe them according to the rules of grammar and common usage. TEX. GOV'T CODE § 311.011(a). Words that are not defined are given their ordinary meaning. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). When possible, all words are given effect and none of the statute's language is treated as surplusage. Cont'l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 402 (Tex. 2000). Thus, the terms medical care, health care, and safety should add meaning to the statute; none of the terms should be disregarded, discounted, or dismissed. See Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 89-90 (Tex. 2001).
The Legislature's purpose in article 4590i is clearly stated, to remedy "a medical malpractice insurance crisis" in Texas and its "material adverse effect on the delivery of medical and health care services in Texas[.]" TEX. REV. CIV. STAT. art. 4590i § 1.02(a)(5)-(6). This concern pervades the statute, which is replete with references to medical liability, health care, and malpractice, all of which implicate medical or health care judgments made by professionals. See, e.g., id. § 13.01(r)(5)-(6) (requiring expert to have knowledge of medical diagnosis, care, and treatment).
By comparison, neither the statute nor the historical background suggests that physicians or health care providers were similarly challenged when obtaining commercial general liability insurance coverage for ordinary, non-medical accidents on their premises. The Legislature was responding only to a medical-malpractice insurance crisis, and medical malpractice insurance generally does not cover premises liability claims. See, e.g., N. Am. Speciality Ins. Co. v. Royal Surplus Lines Ins. Co., 541 F.3d 552, 561 (5th Cir. 2008) (recognizing that commercial general liability insurance policies generally exclude professional breaches from coverage).
All patient injuries in a health care setting, regardless of cause, may be said to implicate patient safety in the broader sense, but not all patient injuries involve malpractice. Given the statute's objective and the Legislature's express concern, the Legislature evidently did not intend to define safety as broadly as the Hospital proposes. Moreover, such an expansive interpretation conflicts with the Legislature's express intent that the statute operate to control medical-malpractice insurance costs without unduly restricting a patient's rights. See TEX. REV. CIV. STAT. art. 4590i § 1.02(b)(3); see also O'Reilly v. Wiseman, 107 S.W.3d 699, 707 n. 12 (Tex. App.-Austin 2003, pet. denied). We accordingly reject the Hospital's contention that a health care liability claim includes any patient injury negligently caused by an unsafe condition at a health care facility.
We said as much in Diversicare, noting that there could "be circumstances that give rise to premises liability claims in a healthcare setting" and that not every accidental injury to a patient in a health care setting would constitute a health care liability claim under article 4590i. Diversicare, 185 S.W.3d at 854 (indicating that a health care claim is determined by the nature of the claim, not the nature of the defendant). As noted, a health care liability claim is defined to include a "claimed departure from accepted standards of medical care or health care or safety." TEX . REV. CIV. STAT . art. 4590i § 1.03(a)(4). Standards of medical care or health care are implicated when the negligent act or omission is an inseparable or integral part of the rendition of medical services. Diversicare, 185 S.W.3d at 848-49. Similarly, an accepted standard of safety is implicated under the Act when the unsafe condition or thing is an inseparable or integral part of the patient's care or treatment. See id. at 855.
In determining whether the plaintiff's claim is inseparable from the rendition of medical services, and thus a health care liability claim, we are guided by several overlapping factors. They include (1) whether the specialized knowledge of a medical expert may be necessary to prove the claim, (2) whether a specialized standard in the health care community applies to the alleged circumstances, and (3) whether the negligent act involves medical judgment related to the patient's care or treatment. See Diversicare, 185 S.W.3d at 847-52. Not surprisingly, these factors confirm the significance that medical or professional judgment plays in classifying the claim as one involving health care liability.
IV
Marks's original petition asserted four negligence claims against the Hospital. The first three — failing to properly train and supervise its agents, employees, servants and nursing staff when caring for him; failing to provide him with the assistance he required for daily living activities; and failing to provide him a safe environment in which to receive treatment and recover — are similar to those in Diversicare.
In that case, a nursing home resident's daughter sued on her mother's behalf, alleging the nursing home had been negligent in failing to provide enough staff and supervision to prevent her mother from falling on two occasions and from being sexually assaulted by another nursing home resident. Id. at 845. The trial court concluded that the allegations constituted health care liability claims, dismissing the case because the plaintiff had not filed the requisite expert report. See TEX. REV. CIV. STAT. art. 4590i § 13.01(d), (e). The court of appeals reversed, concluding that the sexual-assault claim did not fit the definition of a health care liability claim. Rubio v. Diversicare Gen. Partner, Inc., 82 S.W.3d 778, 783-84 (Tex. App.-Corpus Christi 2002), rev'd, 185 S.W.3d 842 (Tex. 2005). We disagreed, however, concluding that all the plaintiff's claims were based on an alleged departure from accepted standards of health care. Diversicare, 185 S.W.3d at 849. We noted that nursing homes provide services to their residents that include supervision of daily activities, routine examinations, monitoring of the residents' physical and mental condition, administering medication, "and meeting the fundamental care needs of the residents." Id. We further noted that these services are provided by professional staff, and "[t]he level and types of health care services provided vary with the needs and capabilities, both physical and mental, of the patients." Id. at 849-50 (citing Harris v. Harris County Hosp. Dist., 557 S.W.2d 353, 355 (Tex. Civ. App.-Houston [1st Dist.] 1977, no writ)). We then concluded that those services, including the monitoring and protection of the patient, as well as training and staffing policies, were "integral components of Diversicare's rendition of health care services[.]" Id. at 850. Similarly, Marks's first three claims here, involving patient supervision and staff training, are claims implicating professional expertise and the departure from the accepted standard of health care. Such claims are health care liability claims subject to the Act. TEX . REV. CIV. STAT . art. 4590i § 1.03(a)(4).
Marks's hospital bed claim is different, however, because it does not assert a departure from the accepted standards of medical care or health care. Instead, Marks alleges that the Hospital was negligent in the bed's assembly or maintenance, or both, and that a defectively attached footboard presented an unsafe condition. At its core, Marks's hospital bed claim involves the failure of a piece of equipment. Whether the failure of that equipment qualifies as a health care liability claim depends on whether that failure constitutes a departure from accepted standards of safety under article 4590i. Id. To assist us in answering that question, we consider the various factors indicative of professional judgment, that being the equipment's use and importance in the patient's care or treatment.
No evidence shows that the assembly of Marks's hospital bed involved any medical or professional judgment, or that the bed's footboard or its assembly were related to, or affected by, Marks's care or treatment. To the contrary, Marks presented some evidence that the assembly of the hospital bed was solely the responsibility of the Hospital's maintenance staff. Presumably, tasks performed by the maintenance staff do not require any specialized health care knowledge, and evaluation of whether those tasks were performed negligently would not require expert medical testimony. Other jurisdictions have, for the most part, found claims based on injuries incurred when a hospital fixture or piece of equipment breaks due to negligent assembly, maintenance, or repair to sound in ordinary, rather than medical, negligence.
See, e.g., William son v. H osp. Serv. D ist. No. 1 of Jefferson, 888 So.2d 782, 789-90 (La. 2004) (holding that hospital's negligence in failing to repair and inspect wheelchair prior to returning it to service was ordinary not medical negligence to which state's medical malpractice statute did not apply); Pluard v. Patients Compensation Fund, 705 N.E.2d 1035, 1037-38 (Ind. App. 1999) (holding that injuries incurred when surgical lamp inadequately attached to the wall fell on patient not covered by Indiana's M edical M alpractice Act); Harts v. Caylor-Nickel Hosp., Inc., 553 N.E.2d 874, 879 (Ind. App. 1990) (concluding that injury incurred when bed rail collapsed, causing patient to fall, were premises liability claims not covered by Medical Malpractice Act); but see Prater v. Smyth County Cmty. Hosp., No. 93-4050, 1995 WL 1055761, at *2-3 (Va. Cir. Ct. Jan. 30, 1995) (not designated for publication) (holding that a bed rail collapse while taking patient's medical history was an integral part of the health care treatment and covered by Virginia's Medical Malpractice Act).
A cause of action alleges a departure from accepted standards of safety within the Act's meaning when the unsafe condition is an inseparable or integral part of the patient's care or treatment. An unsafe condition, like a negligent act or omission, is inseparable from the rendition of medical or health care services when the relationship between the two is significant and direct, and thus involves professional judgment. The following cases illustrate this point.
In Hector v. Christus Health Gulf Coast, the court of appeals held that a patient's action for injuries in a fall from an operating table during surgery was based on "an alleged departure from accepted standards of safety" under article 4590i. 175 S.W.3d 832, 835-36 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). The patient argued that the operating table was under the hospital's control and that the accident involved an administrative or routine use rather than medical care. Id. at 836. The court of appeals agreed in theory with the "distinction between hospital workers that were health care providers, such as nurses and doctors, and hospital workers that were not, such as cooks or electricians." Id. But the court concluded the distinction was irrelevant because "any person in the operating room at the time of Hector's accident would necessarily have been considered a health care provider." Id. The distinction is relevant in this case, however, because the hospital workers responsible for assembling Marks's bed, identified by the hospital nurses as the maintenance team, would not have been considered health care providers when doing so.
In another case, a patient sued a hospital for a foot injury caused by stepping on a sharp paint chip while showering in preparation for surgery. Shults v. Baptist St. Anthony's Hosp. Corp., 166 S.W.3d 502, 503 (Tex. App.-Amarillo 2005, pet. denied). The patient alleged negligence based both on the hospital's failure to maintain and keep safe its shower as well as on the hospital's treatment of his foot injury. The court rejected the argument that the negligence claims based on the condition of the hospital shower constituted claims resulting from departures from accepted standards of safety under article 4590i:
We agree with [hospital's] characterization of [patient's] claims as involving two distinct theories of recovery, one based upon premises liability and the other on medical negligence. Personal injury claims resulting from departures from accepted standards of safety may be included within the scope of article 4590i, but such departures must be inseparable parts of the rendition of medical services and the standards of safety within the health care industry to be covered by the Act. We do not believe that the presence of a sharp paint chip in the shower of [patient's] hospital room could be considered in any way an inseparable part of the medical services rendered to [patient].
Id. at 505.
The shower was, however, taken in preparation for surgery at a physician's instruction. Id. at 503. In that sense, it was a functional part of the surgical services provided by the hospital, just as the footboard attached to the hospital bed here was a functional part of the morphine-treatment and recovery services provided to Marks. The source of the negligence in both cases, however, is not directly related to the rendition of any medical or health care services, but instead is incidental, occurring in the course of the Hospital's general maintenance duties which do not involve health care professionals or the exercise of any medical or professional judgment.
There are certainly circumstances in which the assembly or use of a hospital bed might involveprofessional judgment, the evaluation of which would likely require expert testimony. For instance, a health care provider might determine that a patient's condition called for restraints and that side rails attached to the bed would suffice. Thus, the failure of a part of a hospital bed specifically ordered by a physician or health care provider and integral to the patient's care or treatment might implicate article 4590i. See, e.g., Espinosa v. Baptist Health System, No. 04-05-00131-CV, 2006 WL 2871262 (Tex. App.-San Antonio Oct. 11, 2006, pet. denied) (mem. op.) (holding that patient injured while using an overhead bed-frame device or trapeze authorized as part of patient's medical care and installed by a nurse and orthopedic technician was a health care liability claim). But when a piece of hospital equipment is unrelated to any professional judgment and is merely incidental to the patient's care, its alleged unsafe condition does not implicate article 4590i. We conclude that the negligence claim based on the defectively assembled or maintained hospital bed in this case is not a health care liability claim to which article 4590i applies.
See, e.g., Bryant v. Oakpointe Villa Nursing Centre, Inc., 684 N.W.2d 864, 867 (Mich. 2004) (determining that claims based on nursing home's failure to recognize the risk posed by the configuration of bed rails on a hospital bed sounded in medical malpractice); Bell v. West Harrison County Dist., 523 So.2d 1031, 1033 (Miss. 1988) (determining that a patient's claims arising from a nurse's failure to raise side rails on a hospital bed constituted medical malpractice, rather than ordinary negligence, claims because "[a] nurse's decision as to whether or not bed rails should be utilized entails a degree of knowledge concerning the subject patient's condition, medication, history, etc."); Lenny v. Loehmann, 433 N.Y.S.2d 135 (N.Y. App. Div. 1980) (concluding that a physician's alleged negligence in failing to instruct that bed's side rails be raised, or in failing to check condition of the side rails after they had been put up, or in failing to supervise patient's movements to and from bed sounded in medical malpractice rather than ordinary negligence); cf. Gould v. N.Y. Cty. Health and Hosp. Corp., 490 N.Y.S.2d 87, 88-89 (N.Y. Sup. Ct. 1985) (concluding that a plaintiff's claim that hospital bed side railings "were defective and not properly raised" constituted an ordinary negligence claim).
JUSTICE JOHNSON's dissent, however, questions that conclusion as permitting Marks to convert a health care liability claim into an ordinary negligence claim by mere pleading. The dissent submits that "no matter how Marks pleads his case, the substantive facts implicate questions about whether St. Luke's met accepted standards of health care and safety [as to its patient]." ___ S.W.3d at ___ (Johnson, J. dissenting). We disagree, and our disagreement concerns the essence of a health care liability claim.
JUSTICE JOHNSON's dissent assumes that a patient's claim against a hospital must implicate accepted standards of health care and safety by definition. But it is not the identities of the parties or the place of injury that defines the claim. See Diversicare, 185 S.W.3d at 854 (refusing to distinguish patient claims "'simply because the landowner is a health care provider'"). Rather, it is the cause of the injury and its relationship to medical or professional judgment that determines the claim's nature and the application of the Medical Liability and Insurance Improvement Act. See TEX. REV. CIV. STAT. art 4590i § 1.03 (a)(2), (4) (defining "health care" and "health care liability claim" as act or omission during patient's medical care, treatment or confinement that departs from accepted standards). Thus, injury caused by a failure to train and supervise the hospital's nursing staff or by a failure to supervise and assist the patient implicates the Act; that is, it involves a departure from accepted standards during a patient's medical care, treatment, or confinement. A claim involving a defective footboard, on the other hand, does not appear to implicate any medical or professional judgment and was not in this case directly related to the patient's care, treatment, or confinement. Hence, we conclude in this case that the injury allegedly caused by the defective footboard was not a health care liability claim under the Act.
JUSTICE WAIN WRIGHT's dissent agrees that Diversicare did not define safety and that the proper focus when addressing standards of safety should be on "whether medical judgment was employed in the equipment's use and its importance to the patient's care." ___ S.W.3d at ___ (Wainwright, J. dissenting). His apparent disagreement with the Court concerns the defective footboard's significance in the patient's care and treatment and its relationship to the medical or professional judgments made in the case. JUSTICE HECHT's dissent similarly views the defective footboard as an inseparable part of the professional negligence claim.
JUSTICE JOHNSON's dissent also accuses the Court of "conflating standards of safety with standards of health care," but our intention is just the opposite. ___ S.W.3d at ___ (Johnson, J. dissenting). "Standards of medical care or health care or safety" should each add something to the definition of "health care liability claim." None of these standards should be read so broadly as to subsume the others. Thus, standards of medical care and health care implicate the acts or omissions of physicians and other health care providers, respectively, while standards of safety concern a patient's exposure to unreasonably dangerous or defective conditions or things in the course of treatment. The dissent, however, reads safety so broadly as to subsume all duties — not only standards of medical care and health care, but also the breach of any other duty regardless of its connection to patient care or treatment. See ___ S.W.3d at ___ (Johnson, J. dissenting) (noting that "a safety-related cause of action is a health care liability claim" whenever a patient sues a health care provider or physician for a breach of duty involving safety). As we indicated in Diversicare, the focus must be on the gravamen of the claim, which is not determined merely by the defendant's status as a health care professional or the place of injury. See Diversicare, 185 S.W.3d at 854. We accordingly disagree that article 4590i makes every patient's claim against a health care professional a health care liability claim.
V
Although we have concluded that Marks's other negligence claims involving patient supervision and staff training are health care liability claims, a question remains concerning their dismissal. Marks argues that these claims should not have been dismissed because he was entitled to additional time to provide an expert report. Article 4590i generally requires a claimant to furnish an expert report within 180 days after the filing of a health care liability claim. TEX . REV. CIV. STAT. art. 4590i, § l3.0l (d). If a claimant fails to comply with this requirement, the court is directed, on motion, to award appropriate costs and fees and to dismiss the health care liability claim with prejudice. Id. § 13.01(e). The 180-day period can be extended, however, for good cause and enlarged for accidents and mistakes. Id. § 13.01(f), (g). The latter enlargement is referenced in the statute as a grace period. Id. § 13.01(g).
Marks contends that he was entitled to this grace period because his failure to file the expert report on time was an accident or mistake within section 13.01(g)'s meaning. That section provides for a thirty-day grace period if, after a hearing, the court finds that the claimant's failure to file a timely expert report was a mistake or accident rather than intentional or the result of conscious indifference. After hearing the Hospital's motion to dismiss and Marks's motion for a grace period, the trial court found that Marks's failure was not an accident or mistake and dismissed the suit. We review that dismissal under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).
Section 13.01(g) of article 4590i provides:
Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline [for filing the expert report] established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section.
In support of Marks's motion for a grace period, Marks's attorney, James E. Doyle, provided his affidavit. Doyle averred that he was Marks's second attorney, becoming lead counsel about seven months after the first attorney filed the case. Doyle further averred that he and Marks's first attorney "understood the case to be an ordinary negligence case, not a health care liability claim" at that time. According to Doyle's affidavit, it was only after discovery that he determined that Marks also had a potential health care liability claim, causing him to amend the pleadings and provide an expert report. This report was provided more than 500 days after the filing of Marks's original petition.
The amended petition divided Marks's claims under headings of "Negligence" and "Premises Liability." The original petition had lumped all claims under a single negligence heading. In the amended pleading, Marks included complaints about his bed, his care, and his supervision under the "Negligence" heading. Under the "Premises Liability" heading, Marks complained about the condition of the hospital bed. Doyle avers that he "believed that the case presented claims sounding only in ordinary negligence" until the time he filed the amended pleading.
In our view, no significant difference exists between the original and the amended pleading. The underlying factual complaint in both concern the same set of circumstances: inadequate care and supervision by the Hospital's professional staff and a dangerous hospital bed. "It is well settled that a health care liability claim cannot be recast as another cause of action to avoid the requirements of [article 4590i]." Diversicare, 185 S.W.3d at 851. Determining whether a pleading states a health care liability claim thus depends on its underlying substance, not its form. Doyle's affidavit does not clearly indicate what caused him to recognize for the first time that his client had a health care liability claim.
Equally significant, however, is the absence of any evidence explaining the first attorney's failure to furnish an expert report during the first seven months he represented Marks. Doyle's affidavit suggests that the first attorney also mistakenly believed that the original petition did not implicate article 4590i. According to the affidavit, Doyle's belief is based on his review of the case file he inherited. Affidavits, however, must be based on personal knowledge, not supposition. See TEX. R. EVID. 602 ("A witness may not testify to a matter unless . . . the witness has personal knowledge of the matter."). An affidavit not based on personal knowledge is legally insufficient. Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (per curiam). Because Doyle had no personal knowledge of the first lawyer's intent, and the first lawyer did not provide his own affidavit explaining his failure, there is no evidence of mistake or accident and thus no basis for the requested grace period. Accordingly, the trial court did not abuse its discretion in denying Marks's motion for a grace period under section 13.01(g) and did not err in dismissing Marks's health care liability claims. See TEX. REV . CIV. STAT. art. 4590i, § 13.01(e)(3) (stating that dismissal is "with prejudice to the claims refiling").
* * *
To summarize, article 4590i does not apply to Marks's claim concerning the defective hospital bed footboard because that claim concerns ordinary, not medical, negligence and thus is not a health care liability claim. Marks's other claims alleging negligent care and supervision are health care liability claims to which article 4590i does apply. Finally, Marks is not entitled to have the period for filing an expert report enlarged under the grace period provision of article 4590i because he has not established that the failure to comply with the statute was a mistake or accident.
The judgment of the court of appeals is affirmed in part and reversed in part, and the cause is remanded to the trial court for further proceedings consistent with our opinion.
In Diversicare, a case involving a sexual assault of one nursing home patient by another, I argued that the MLIIA's broad "safety" definition encompassed what would otherwise be ordinary premises liability claims against health care providers. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 859-61 (Tex. 2005) (Jefferson, C.J., concurring and dissenting). The Court, however, disagreed, noting that "[t]here may be circumstances that give rise to premises liability claims in a healthcare setting that may not be properly classified as health care liability claims." Id. at 854. The Court described the plaintiff's claims in that case as "implicat[ing] more than inadequate security or negligent maintenance," unlike claims involving "an unlocked window that gave an intruder access to the facility or a rickety staircase that gave way under her weight." Id.
The loose footboard here is indistinguishable from the rickety staircase referred to in Diversicare. Under Diversicare, Marks's claim is a "premises liability claim[] in a healthcare setting that may not be properly classified as [a] health care liability claim[]." Id. Accordingly, I join the Court's opinion and concur in its judgment.
I join JUSTICE JOHNSON's dissent with this bit of explanation.
Marks has never had but one complaint: that he fell in his hospital room. The "Facts" section of his original petition and four amended petitions never changed substantively. All his alleged damages occurred in that one event. But he contends that he has two claims against the Hospital: one for breaching the standard of professional care in treating him, a health care liability claim, and another for breaching the standard of ordinary care in attaching the footboard to his hospital bed, an ordinary negligence claim. He argues that his original petition pleaded only a claim of ordinary negligence, as made clear in his first amended petition, but that his second, third, and fourth amended petitions asserted both a health care liability claim and an ordinary negligence claim. Marks filed expert reports that were timely in relation to the second amended petition but late with respect to the original petition. The Court concludes that he asserted both claims from the beginning, that his health care liability claim was properly dismissed for failure to timely file an expert report, and that only his ordinary negligence claim remains.
The "Facts" section of Marks's original petition stated:
"5. On or about March 24, 2000, Irving Marks, a 66-year-old man, suffered severe injuries after a fall from his hospital bed at St. Luke's.
"6. Mr. M arks was admitted to St. Luke's on March 17, 2000, to undergo treatment for chronic intractable failed back symptomatology and intractable radiculopathy after five lumbar operations failed to cure Mr. Marks' severe back problems.
"7. On March 17, 2000, Mr. Marks underwent surgery to implant an intrathecal morphine pump catheter. Immediately following his surgery, Mr. Marks began his morphine treatment with an initial dose of .25 milligrams, and Mr. Marks' morphine doses were raised incrementally up to four milligrams on the ninth day.
"8. After his surgery and his morphine treatment, Mr. Marks' condition improved drastically until Mr. Marks fell the night of March 24, 2000.
"9. At the time of his fall, Mr. Marks was getting up from his hospital bed in the middle of the night, and Mr. Marks was in an upright position sitting at or near the foot of his hospital bed. Mr. Marks placed his hand on the hospital bed's footboard to push himself up to a standing position. As he was pushing himself up, the hospital bed's footboard fell off causing Mr. Marks to fall to the floor.
"10. Mr. Marks suffered severe personal injuries as a result of the fall."
Marks's first amended petition renumbered the paragraphs because of insertions earlier in the pleading, changed "drastically" to "markedly" in original paragraph 8, and omitted original paragraph 10. Original paragraph 9 was edited to read: "At the time of his fall, Mr. Marks was getting up from his hospital bed. Mr. Marks was in an upright position sitting at or near the foot of his hospital bed. As Mr. Marks placed his hand on the hospital bed's footboard to push himself up to a standing position, the hospital bed's footboard broke free from the bed causing Mr. Marks to tumble to the floor." Two new paragraphs, 12 and 13, were added, the first alleging that "[i]n addition to a shoulder dislocation, Plaintiff suffered severe injuries to his, knee, neck, and head", and the second that "[a]s a result of his injuries, M r. M arks had to seek further treatment at Methodist Hospital and the Texas Institute for Rehabilitation and Research."
Marks's second and third amended petitions made no changes in the section. His next amended petition changed "Irving Marks", "Mr. Marks", and "Plaintiff" to "Irving W. Marks" throughout, changed "tumble" to "fall" in the revision of original paragraph 9, changed "dislocation" to "injury" in paragraph 12, and shortened original paragraph 6 to read: "Irving W. Marks was admitted to St. Luke's on March 17, 2000, to undergo treatment for back pain."
Marks's original petition asserted that the Hospital "breached the duty of ordinary care" in four "particulars":
"a. By failing to properly train and supervise any and all agents, employees, servants, and nursing staff when caring for Mr. Marks to prevent and protect him from falls and injuries;
"b. By failing to provide Mr. Marks with the assistance he required for daily living activities;
"c. By failing to provide Mr. Marks with a safe environment in which to receive treatment and recover; and
"d. By providing Mr. Marks with a hospital bed that had been negligently attached and assembled by the Defendant's employees, agents, servants or nursing staff."
In response to the Hospital's request that Marks clarify whether he was asserting a health care liability claim, he filed his first amended petition, asserting that the Hospital had "breached the duty of ordinary care" in only these two "particulars":
"a. Failing to install and/or maintain bed rails on the bed occupied by Mr. Marks, and
"b. Failing to repair and/or maintain the footboard to Mr. Marks' bed."
The first amended petition also contained a new section labeled "Premises Liability", asserting that Marks's hospital bed was in a "dangerous condition . . . attributed to its unstable, broken and/or defective footboard and the improper use or absence of its bedrails. This condition posed an unreasonable risk of harm."
In his second amended petition, repeated in his third and fourth amended petitions, Marks asserted that the Hospital had "breached the duty of ordinary care" in these "particulars":
"a. Failing to install and/or maintain bed rails on the bed occupied by Mr. Marks;
"b. Failing to properly assemble and/or maintain Mr. Marks' bed;
"c. Failing to repair and/or maintain the footboard to Mr. Marks' bed;
"d. Failing to properly monitor Mr. Marks;
"e. Failing to inspect Mr. Marks' bed;
"f. Failing to implement adequate policies and procedures to inspect its hospital beds;
"g. Failing to take precautions to prevent Mr. Marks' fall;
"h. Failing to ensure that adequate policies and procedures were in place for the hiring, training and supervision of the nursing staff at the hospital; and
"i. Failing to ensure that the person(s) hired to work at the hospital had a sufficient understanding of safety concerns for the patients and was competent to formulate policies and procedures for patient safety and quality assurance."
The second, third, and fourth amended petitions retained the "Premises Liability" section essentially unchanged, but in their "Negligence" sections added the allegation that the Hospital was negligent in its "nursing monitoring, nursing care and/or treatment" of Marks.
I agree with JUSTICE JOHNSON, for the reasons he thoroughly explains, that Marks had but one claim from the beginning, a health care liability claim. The Court speculated in Diversicare General Partner, Inc. v. Rubio that "[t]here may be circumstances that give rise to premises liability claims in a healthcare setting that may not be properly classified as health care liability claims," but we certainly did not suggest that the same circumstances could give rise to both a health care liability claim and an ordinary negligence claim. JUSTICE JOHNSON warns of problems attendant to that approach. In terms of concrete examples, a plaintiff may intend to assert only an ordinary negligence claim, as Marks says he did, only to be told after the deadline for an expert report that he also asserted a health care liability claim that must be dismissed. Artful pleading is risky because, as we said in Diversicare, it is the "gravamen of [the] complaint", not the label, that is determinative. On the other hand, a plaintiff may attempt to plead only an ordinary negligence claim at first and defer pleading a health care liability claim in order to allow more time for filing an expert report and to conduct full discovery immediately. This subterfuge should not succeed. And if two separate claims are tried to verdict and judgment, a jury will be asked to apply two different standards of care to the same conduct and determine damages for each breach separately, and the trial court will be required to apply different limitations to the same findings of damages.
185 S.W.3d 842, 854 (Tex. 2005).
Id.
See T EX. C IV. P RAC. REM . C O D E § 7 4 .351(s) ("U ntil a claimant has served the exp ert report and curriculum vitae as required by Subsection (a), all discovery in a health care liability claim is stayed except for the acquisition by the claimant of information, including medical or hospital records or other documents or tangible things, related to the patient's health care through: (1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure; (2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and (3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure.").
Id. §§ 74.301-.303.
In the abstract, health care may not seem to involve bed assembly. In a hospital room, in the circumstances presented, I agree with JUSTICE JOHNSON that it must.
I join Justice Johnson's dissent for the reasons he cogently explains. I write to explain further my differences with the Court's opinion and to lament the Court's reversal of several precedents that precluded artful pleading of claims to circumvent legislative requirements to pursue medical malpractice cases.
Under article 4590i, section 1.03(a)(4) of the Medical Liability and Insurance Improvement Act (MLIIA), there are three types of health care liability claims: claims arising from failure to satisfy the standards of care for medical care, for health care, or for safety. TEX. REV. CIV. STAT . art. 4590i, § 1.03(a)(4) (defining "health care liability claim" as an action against a physician or other health care provider for a "claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient"). In Diversicare General Partner, Inc. v. Rubio, we held that an assault at a nursing home by a patient with reduced mental faculties on another mentally challenged patient was a health care claim. 185 S.W.3d 842, 849 (Tex. 2005). Citing statutory health care duties of nursing homes, we explained that nursing home residents were patients at those facilities not merely for shelter, as apartment residents, but also for health care and treatment. Id. at 850-51. We also concluded that the inclusion in 4590i of claims based on failure to provide adequate "safety" broadened the scope of the statute beyond medical and health care and, therefore, was another basis for concluding that the assault between patients was a health care liability claim. Id. at 855. It was not necessary in Diversicare to precisely define the scope of the "safety" component of a health care liability claim, and we did not.
In 2003, article 4590i was repealed, amended, and recodified in Chapter 74 of the Civil Practice and Remedies Code, which applies to health care liability claims filed on or after September 1, 2003. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 T ex. G en. Laws 203 9, 20 41, repealed by A ct of June 2, 2003, 78th Leg., R .S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at T EX. CIV. PRAC. REM . CO D E §§ 74.301-.303).
The Court's opinion and the concurrence misconstrue Diversicare. The bulk of Diversicare construes "health care" under 4590i. Responding to the dissent and concurrence, the opinion in Diversicare noted that an injury to a patient resulting from a rickety staircase or an unlocked window does not implicate the "health care" prong of health care liability claims. Id. at 854. In this case, the Court and the concurrence erroneously cite those examples as exceptions to the scope of 4590i's "safety" prong in Diversicare. Diversicare's only holding concerning the "safety" prong was that its inclusion expanded the reach of the statute and that it was broad enough to include Rubio's claim in that case. Id. at 855.
Different from Diversicare, this case concerns the circumstances that bring a hospital equipment failure within the scope of article 4590i. Marks underwent surgery at St. Luke's Hospital to implant a lumbar morphine pump catheter into his spinal cord to alleviate back problems. His medical records indicated that St. Luke's Hospital implemented extra safety and fall precautions due to his risk of falling, his limited mobility, his need for an ambulatory assistance device, and his morphine therapy. The hospital's instructions included that his hospital bed was to be "in a low position with the brakes applied," and a fall precaution sticker was placed on the outside door of his room and on his medical chart. The health care providers concluded that Marks required certain prescribed precautions to address his risk of falling as part of his post-surgical care. The Court ignores these and other medical judgments and concludes that the fall was a matter of ordinary negligence disconnected from his hospital treatment.
The Court's conclusion ignores the physician's expert report that Marks himself provided in connection with his claim for medical malpractice. See TEX . REV. CIV. STAT. art. 4590i, § 13.01(d) (requiring the substantiation of health care liability claims with a timely served expert report). Marks's expert opined that the "accepted standard of care for nursing and hospital practice is to provide the patient with reasonably safe medical equipment, including a hospital bed for in-patients" and to "implement interventions to eliminate and reduce the patient's risk of falling." The physician concluded that the hospital violated "accepted standards of good nursing care" by failing to provide Marks with a safe hospital bed and, specifically, by failing "to ensure that the footboard was properly secured to the bed." Marks's own expert determined that, "to a reasonable degree of medical probability," breach of these nursing standards of care was the proximate cause of Marks's fall from the hospital bed. Whether these conclusions are supported by sufficient evidence will be questions for the jury, but they unquestionably establish that Marks pled a health care liability claim and, at least in the amended pleadings, he acknowledged that.
The Court initially asks the right question — whether medical judgment was employed in the equipment's use and its importance to the patient's care. But the Court then inexplicably analyzes whether medical or professional judgment was involved in "the assembly of Marks's hospital bed." ___ S.W.3d ___. It is difficult to understand how the necessity of medical judgment in the assembly of equipment determines whether that equipment's use meets accepted standards of safety in the definition of a health care liability claim. Under this approach for construing 4590i, a hospital's exoneration from or liability for a defective hospital bed would depend on whether assembly of the bed required the input of a medical professional. Likewise, a claim for injuries caused by the improper operation of a surgical drill due to the failure to tighten the drill bit would give rise to a health care liability claim if knowledge of a physician is required to assemble the drill. The Court's reasoning also suggests, for example, that if a defective MRI scanner used to perform a magnetic resonance imaging scan causes injury to a person, the circumstance would not give rise to liability under 4590i unless medical judgment was required to assemble the scanner.
This assumes the Court is correct that, to be a valid claim for inadequate "safety" under article 4590i, the claim must be an inseparable or integral part of the patient's care or treatment. See ___ S.W.3d ___.
Marks based his negligence claim on the improper assembly or maintenance of the hospital bed. However, that does not mean that the determination of whether the claim is a health care claim should turn on whether the assembly of the bed required medical know-how or judgment. By focusing on the assembly rather than the use of the bed, Marks has directed the Court away from the evidence demonstrating the bed's medical purpose and use. The Court has taken the bait, despite our repeated warnings in several cases not to fall for artful pleading. See ___ S.W.3d ___.
If the hospital equipment is used in patient care and treatment, its operation at least implicates medical care and health care. But the Court fails to answer these questions and instead discusses whether the assembly of the hospital equipment was the responsibility of the hospital's maintenance staff or its medical staff. Concluding that the assembly of the equipment was the responsibility of maintenance staff, the Court, therefore, explains that the hospital bed was "unrelated to any professional judgment and is merely incidental to the patient's care." ___ S.W.3d ___. Would the Court also conclude that tightening a drill bit on a surgical drill was the responsibility of maintenance staff and therefore a patient's injury arising from negligent assembly of the drill or its use during surgery would not be a health care liability claim?
I further wonder if anyone else would agree that the type of bed in which we recuperate from back surgery is merely "incidental" to our care. If that were true, neither a sleeping bag on the floor nor a wooden board elevated on wheels would violate 4590i's treatment standards for a patient who had undergone back surgery. Under the Court's characterization of the hospital bed's role in Marks's care, the instructions in his medical records for specific settings for his bed to recuperate after the surgery are superfluous. And the Court has apparently decided, contrary to the trial court and with no controverting evidence, that the opinions of Marks's physician expert are wrong.
I am also concerned that the Court reverses several precedents. The Court holds that three of the four negligence claims against St. Luke's Hospital are health care liability claims. Those three claims are for 1) failure to train and supervise the nursing staff properly, 2) failure to provide Marks with the assistance he required for daily living activities, and 3) failing to provide him with a safe environment in which to recover. The Court decides that the fourth claim as pled by Marks — providing a hospital bed that had been negligently assembled and maintained by the hospital's employees — was not a health care liability claim. Yet, all four claims arose from the same facts involving the hospital bed provided to Marks as part of recuperation from back surgery. The Court cites Diversicare for its conclusion that the first three claims are health care liability claims, but then fails to follow Diversicare and other precedents prohibiting claim-splitting to avoid the statutory limitations on medical malpractice suits.
This Court has repeatedly held that parties may not employ artful pleading to circumvent the requirements for filing a health care liability claim — e.g., shorter statute of limitations than other negligence claims, heightened filing requirements (providing expert reports within 120 days of filing the lawsuit), and caps on damages. Diversicare, 185 S.W.3d at 846-49. Negligence claims that are not health care liability claims are not subject to these requirements. To preclude creative recasting of health care liability claims as ordinary negligence claims to circumvent the statutory requirements, we have held that the underlying nature of the claim governs its categorization and not how the petition is worded. E.g., Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994). In Diversicare, we reaffirmed the well established rule that "artful pleading and recasting of claims is not permitted" and warned that allowing claim-splitting in the pleadings to recast health care liability claims as something else "would open the door to splicing health care liability claims into a multitude of other causes of action with standards of care, damages, and procedures contrary to the Legislature's explicit requirements." Id. at 854. In Murphy v. Russell, we reaffirmed that a "claimant cannot escape the Legislature's statutory scheme by artful pleading." 167 S.W.3d 835, 838 (Tex. 2005). In MacGregor Medical Ass'n v. Campbell, we prohibited a claimant from bringing a health care liability claim veiled as a violation of the Deceptive Trade Practices Act, repeating that claimants may not thwart the express legislative intent of the MLIIA by recasting health care claims as DTPA claims to avoid the standards set forth in the MLIIA. 985 S.W.2d 38, 39-40 (Tex. 1998). And fifteen years ago we established in Sorokolit v. Rhodes that "[c]laims that a physician or health care provider was negligent may not be recast . . . to avoid the standards set forth in the Medical Liability and Insurance Improvement Act." 889 S.W.2d at 242.
The Court reverses these precedents and takes the position that three of Marks's claims assert health care liability claims and one does not, even though all the claims are of the same underlying nature. The Court allows a claimant to pursue both health care liability claims and non-health care liability claims based on the same facts involving a health care provider. Marks's claim for ordinary negligence in the alleged defective assembly of the hospital bed mirrors the health care liability claim. I would adhere to our precedents and again preclude artful pleading to circumvent the Legislature's objectives under article 4590i. Because the Court does not, I respectfully dissent.
The Court today allows a health care liability claim to go forward despite Marks's failure to comply with the Medical Liability Insurance Improvement Act (MLIIA or Act). It does so by (1) condoning the recasting of a claim by a patient based on an injury caused by specialized hospital equipment into a non-health care claim by artful pleadings; and (2) misconstruing plain, unambiguous statutory language. I dissent.
Marks underwent surgery at St. Luke's Hospital to implant a morphine pump into his spinal cord after multiple previous surgeries failed to alleviate his back problems. After surgery, the nursing staff made a notation in his medical records that he was at risk of falling because of his limited mobility, his need for an ambulatory assistance device, and the fact he was on morphine, and "Safety/Fall Precautions" were being implemented. The hospital's Safety/Fall Precautions included provisions that there should be "no environmental hazards" in Marks's room, his hospital bed was to be "in a low position with the brakes applied," and the "side rails and safety devices" should be used as indicated. Marks alleges that seven days after his surgery and while still an inpatient, he and the footboard on his hospital bed fell when he placed his hand on the footboard and attempted to push himself from the bed to a standing position.
Marks sued St. Luke's. He alleged the hospital was negligent in the following respects: (1) failing to properly train and supervise hospital employees in how to prevent falls and injuries; (2) failing to provide Marks with the assistance he required for daily living activities; (3) failing to provide him with a safe environment in which to receive treatment and recover; and (4) providing him with a hospital bed that had been negligently assembled and maintained by the hospital's employees or nursing staff. The Court holds, and I agree, that the first three claims are health care liability claims that fall under the MLIIA. But, unlike the Court, I would hold that the entire suit is a health care liability claim subject to the procedures and limitations set out in the Act.
In order to preclude Marks's suit from being subject to the MLIIA, the Court must, and does, reach three conclusions with which I disagree. The first is that one injury based on a single set of facts can, by the manner in which pleadings are formulated, be both a health care liability claim and a non-health care liability claim. The second is that a hospital bed furnished to a post-surgery hospital inpatient is not an inseparable part of health care provided by the hospital. The third is that accepted standards of hospital safety do not include providing safe hospital beds to patients confined in the hospital.
First, the Court's holding allows a cause of action by a patient against a health care provider to be both a health care claim and a non-health care claim, even though the action arises from a single injury based on a single set of facts. The Court concludes that because of the manner in which Marks pleads his suit, three of his liability theories are health care liability claims while the other is a premises liability claim that is not subject to the MLIIA. In Diversicare, the concurring and dissenting justices similarly concluded that the victim of sexual assault at a nursing home asserted a premises liability claim against the nursing home independent of her health care liability claim. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 857-58 (Tex. 2005) (Jefferson, C.J., concurring in part, and dissenting in part); id. at 861-66 (O'Neill, J., dissenting). The Court rejected that view because it "would open the door to splicing health care liability claims into a multitude of other causes of action with standards of care, damages, and procedures contrary to the Legislature's explicit requirements. It is well settled that such artful pleading and recasting of claims is not permitted." Id. at 854; see also Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) ("[A] claimant cannot escape the Legislature's statutory scheme by artful pleading."); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004) ("Plaintiffs cannot use artful pleading to avoid the MLIIA's requirements when the essence of the suit is a health care liability claim."). The Court today circumvents explicit language the Court used in Diversicare and other cases rejecting this type of claim-splitting by pleadings. The holding will inevitably open the door to manipulated, inventive, and artful pleading designed to avoid the MLIIA requirements and limitations by recasting of claims.
Allowing this type of claim-splitting almost assuredly will lead to more extended and expensive trial court proceedings to determine whether a patient's pleadings assert health care liability claims subject to the MLIIA, non-health care liability claims, or both; and if both, which is which. As this appeal shows, there will be more extended and expensive appellate proceedings for the same purpose. Extended judicial proceedings and associated increased costs, including "economic" settlements to avoid litigation expense, are a significant part of what the Legislature intended to avoid through enactment of the MLIIA. See former TEX. REV. CIV. STAT. art. 4590i, § 1.02(b)(2); see also id. § 1.02(b)(1).
Medical Liability and Insurance Improvement Act of Texas, 65th Leg., R.S., ch. 817, § 1.02, 1977 Tex. Gen. Laws 2039, 2040, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. While this case was pending, the Legislature repealed the MLIIA, amended parts of the previous article 4590i, and recodified it in 2003 as chapter 74 of the Texas Civil Practice and Remedies Code. Because article 4590i continues to govern this case, citations are to the former article rather than the Civil Practice and Remedies Code.
The most appropriate course in circumstances such as these is the course the Court has taken before today: when the substance of a patient's claim for injury comes within the statutory definition of a health care liability claim, then the MLIIA applies to all the plaintiff's claims against the health care provider based on that injury. Here, no matter how Marks pleads his case, the substantive facts implicate questions about whether St. Luke's met accepted standards of health care and safety. His injury arose during his hospital confinement and from his use of a hospital bed — a bed the nurses' notes show was a specialty bed being used for patient care — that was allegedly improperly assembled and maintained by hospital employees. For this reason, I would hold that Marks's injury and damages arise from a health care liability claim and that he cannot avoid application of the MLIIA by pleading otherwise.
Next, I would hold that the hospital bed furnished to Marks was an integral and inseparable part of the health care he received from St. Luke's, so his allegations that the bed was negligently assembled and maintained fall within the provisions of the MLIIA. Thus, even if a plaintiff could recast a health care claim into another type of claim by artful pleadings, Marks has not done so.
In determining whether the MLIIA encompasses Marks's claims, the statutory construction rules are well established. When interpreting statutes, courts should ascertain and give effect to the Legislature's intent as expressed by the language of the statute. E.g., Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) ("[W]hen possible, we discern [legislative intent] from the plain meaning of the words chosen."). The prime principle to follow when construing a statute is "the words [the Legislature] chooses should be the surest guide to legislative intent." See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999). Only when those words are ambiguous do we "resort to rules of construction or extrinsic aids." In re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007). We use definitions prescribed by the Legislature and any technical or particular meaning the words have acquired, but otherwise we construe the statute's words according to their plain and common meaning unless a contrary intention is apparent from the context or unless such a construction leads to nonsensical or absurd results. FKM P'ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008); see also Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999).
St. Luke's asserts Marks's suit implicates accepted standards of both health care and safety as referenced by the MLIIA. The Court, however, focuses on St. Luke's safety argument and summarily concludes Marks's hospital bed claim does not assert a departure from the accepted standards of health care. ___ S.W.3d at ___. I disagree.
The MLIIA defines a health care liability claim as follows:
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient's claims or cause of action sounds in tort or contract.
TEX. REV. CIV. STAT. art. 4590i, § 1.03(a)(4). Under the statute, a cause of action is a health care liability claim if it (1) is against a health care provider or physician; (2) for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety; and (3) the alleged departure from accepted standards proximately results in injury to or death of the patient. The Act broadly defines "health care" as
Medical Liability and Insurance Improvement Act of Texas, 65th Leg., R.S., ch. 817, § 1.03, 1977 Tex. Gen. Laws 2039, 2041, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement.
TEX. REV. CIV. STAT. art. 4590i, § 1.03(a)(2); see Diversicare, 185 S.W.3d at 847 (describing health care as "broadly defined" under the MLIIA).
As relevant here, health care includes any act that was or should have been performed by a health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement. Applying this broad definition, we have previously concluded that a cause of action alleges a departure from accepted standards of health care if the act or omission complained of is an inseparable part of the rendition of health care services. Diversicare, 185 S.W.3d at 848; see Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex. 1995).
In this case, no one suggests Marks's hospital confinement while recovering from the latest of several back surgeries was not medically necessary. It logically follows that if his condition made hospitalization medically necessary, then the hospital had to provide him with a reasonably safe hospital bed. Indeed, the expert reports Marks eventually filed explicated that as an accepted standard of care. See TEX. REV. CIV. STAT. art. 4590i, § 1.03(a)(2). And, if a reasonably safe hospital bed was necessary for Marks's care and recuperation, it follows that the bed was an integral and inseparable part of his care and treatment, especially in this case in which it was an integral part of the hospital's Safety/Fall Precautions protocol. See Diversicare, 185 S.W.3d at 849-54.
Nevertheless, the Court focuses on the assembling of the bed as opposed to its use in patient care and determines that Marks's claim for negligent assembly and maintenance of the bed is not a health care liability claim because it is based on the breach of an ordinary standard of care and not on a discrete standard of care applicable to the health care industry. Under this holding, St. Luke's owed Marks the general duty of care owed by businesses to their invitees. But although health care providers and patients may well be premises owners or occupiers and invitees, the Legislature has imposed requirements on how suits by patients against health care providers may be brought. Those requirements differ from general requirements for suits by invitees against premises owners or occupiers. See TEX. REV . CIV. STAT. art. 4590i, § 1.03(a)(3); Diversicare, 185 S.W.3d at 850 ("The obligation of a health care facility to its patients is not the same as the general duty a premises owner owes to invitees."). If Marks had been a guest in a hotel when his bed fell, his fall could well have given rise to a premises liability claim. But he was not a hotel guest; he was a patient receiving health care in a hospital. There is a difference because of the MLIIA. Diversicare, 185 S.W.3d at 850 ("There is an important distinction in the relationship between premises owners and invitees on one hand and health care facilities and their patients on the other. The latter involves health care."). Further, the bed furnished to Marks was much more than a hotel bed. As indicated by the nurses' notes, the bed was intended to be and was being used as a specialized patient care bed. The nurses' notes referenced Safety/Fall Precautions that included keeping the bed in a low position with the brakes applied and using the bed's side rails and safety devices as indicated.
As the Court did in Diversicare, I "note the irony" of this position. Diversicare, 185 S.W.3d at 853. In his brief, Marks asserts that the MLIIA should not apply to his claim because it is a premises liability claim based on ordinary negligence. But "[i]f we were to agree with [him], our decision would have the effect of lowering the standard from professional to ordinary care for [patients] in health care facilities under similar circumstances." Id. at 853-54.
While Marks was a patient, the hospital provided him with a hospital bed as part and parcel — an integral and inseparable part — of actions "furnished, or which should have been performed or furnished, by [St. Luke's] for, to, or on behalf of [Marks] during [Marks's] medical care, treatment, or confinement." See TEX . REV. CIV. STAT. art. 4590i, § 1.03(a)(2). And even if it were debatable whether a safe, specialized hospital bed was integral to and inseparable from health care St. Luke's provided to Marks, the Court need look no further than Marks's own expert reports for the answer. Marks eventually served expert reports from Dr. Jeffrey D. Reuben, an orthopedic surgeon, and Jan Zdanuk, a nurse practitioner. Although the reports were served too late to save his health care claims from dismissal, they demonstrate what Marks contends is the proper standard of care. Dr. Reuben opined:
Marks asserts the Court should not consider the expert reports because the "experts were retained to opine as to the standards involved in the health care liability claims that were added in [Marks's] Second Amended Petition. They do not address the ordinary standards of care involved in Marks's other claims." But as the Court acknowledges, "there is no significant difference" between Marks's original and amended petitions. ___ S.W.3d at ___. Both petitions included claims based on the hospital bed, and both experts concluded St. Luke's violated the accepted standard of care for health care providers by providing Marks with an improperly assembled hospital bed.
The accepted standard of care for nursing and hospital practice is to provide the patient with reasonably safe medical equipment, including a hospital bed for in-patients, to receive and recover from medical treatment. The accepted standard of good care for nursing and hospital practice is to evaluate each patient to determine if he/she is a risk to fall. . . . If a . . . patient may be a risk to fall, the accepted standard of good care for nursing and hospital practice is to implement interventions to eliminate and reduce the patient's risk of falling. . . .
. . . [St. Luke's] knows that patients would use the footboard on a hospital bed as support to get out of bed. It is for this reason that the hospital footboard should be firmly secured to the hospital bed. [ St. Luke's] staff violated the accepted standard of care by failing to provide [Marks] with a [footboard] that was properly secured to the hospital bed. . . . Given [St. Luke's] staff's knowledge that [Marks] was a risk to fall, that he was on morphine, and that its patients use the footboard as support to get out of the hospital bed, [St. Luke's] nursing staff should have provided [Marks] with a footboard that was properly secured to the hospital bed, and as part of its ongoing duty to assess and identify potential fall hazards, should have identified and properly secured the footboard to the hospital bed.
(emphasis added).
Nurse Zdanuk's opinion was similar:
Hospitals have a duty to provide a safe environment of care for all patients. This includes equipment such as hospital beds that must be maintained in safe operating condition at all times. It is a breach in the standard of care for a footboard to fall off a bed when a patient leans on it while attempting to get up resulting in a fall with serious injuries.
(emphasis added).
This is not, as Marks asserts, a claim merely for "broken furniture;" it is a claim by a patient based on a bed that was more than a mere piece of furniture. A waiting room chair is a mere piece of furniture. Even a chair in Marks's hospital room for his guests to sit on, or a cot for them to rest on, might be classified as a mere piece of furniture. A specialized hospital bed that proof shows (1) has wheels and brakes so it can be used to transport patients as well as to allow patients to rest and recuperate, (2) is built so it can be raised and lowered to accommodate patients' needs, and (3) has side rails and other safety devices, cannot be so classified. The Legislature has prescribed and the expert reports filed in this case recognize that disputes such as the one before us involve standards of care owed by hospitals to patients.
The Court, however, says that Marks's hospital bed allegations can be distinguished from a health care liability claim because the maintenance staff "responsible for assembling Marks's bed . . . would not have been considered health care providers when doing so." ___ S.W.3d at ___. The Court misses the mark in two ways. First, Marks's Original Petition states that the hospital bed was negligently assembled by St. Luke's "employees, agents, servants or nursing staff." Nurses are specially-trained health care providers that exercise professional judgment. But second, and more importantly, the MLIIA does not limit "health care" to those actions taken by nurses or doctors. Rather, the legislative definition of health care includes "any act" which was or should have been performed or furnished "by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." TEX . REV . CIV. STAT. art. 4590i, § 1.03(a)(2). And, importantly, the Act defines "health care provider" as
any person, partnership, professional association, corporation, facility, or institution duly licensed or chartered by the State of Texas to provide health care as a registered nurse, hospital, dentist, podiatrist, pharmacist, or nursing home, or an officer, employee, or agent thereof acting in the course and scope of his employment.
TEX. REV . CIV. STAT. art. 4590i, § 1.03(a)(3) (emphasis added).
The definition plainly includes, without qualification, employees of health care providers so long as they are acting in the course and scope of their employment. The definition's course and scope language does not purport to address the liability of health care employers such as hospitals for the actions of their officers, employees, and agents, and it is not necessary to do so; employers are liable under general principles of agency law for the actions of their officers, agents, and employees acting in the course and scope of their employment. So, unless the phrase "course and scope of his employment" is construed to be what it must be — a description of which officers, employees, and agents are health care providers — the phrase is surplusage. But we presume the Legislature intended an entire statute to be effective, so we "try to give effect to all the words of a statute, treating none of its language as surplusage when reasonably possible." Phillips v. Bramlett, ___ S.W.3d ___, ___ (Tex. 2009); see TEX. GOV'T CODE § 311.021(2). Properly construing the "course and scope of employment" language to define the types of employees who are health care providers avoids the type of strained analysis the Court undertakes today by dissecting and inquiring into nuances of language used to plead a cause of action; distinguishing between categories of health care provider employees based on duties, types of actions performed, and the type of judgment exercised; and speculating as to insurance coverages when there are no policies in the record. The Court distinguishes acts or omissions of hospital workers with specialized health care training from hospital workers that do not have specialized health care training but are nevertheless necessary for a hospital to properly care for patients. The statute does not do so; it does the very opposite. The Court's interpretation contradicts the literal and plain statutory language despite the fact that the context of the language does not call for the Court's interpretation. Moreover, giving the language its literal meaning does not yield absurd or nonsensical results. The Court's "interpretation" violates long-established tenets of statutory construction. See, e.g., In re Jorden, 249 S.W.3d 416, 423 n. 32 (Tex. 2008) ("There are instances where the literal meaning of a statute may be disregarded. But it is only where it is perfectly plain that the literal sense works an absurdity or manifest injustice.") (quoting Gilmore v. Waples, 188 S.W. 1037, 1039 (Tex. 1916)).
The Court additionally states that Marks's claim for negligent assembly and maintenance of the bed is not a health care liability claim because expert medical testimony would not be necessary to prove the claim. Yet, this Court has previously stated that such a circumstance does not preclude a claim from being subject to the MLIIA:
Marks, however, was not so sure. In the trial court he designated Dr. Reuben as an expert witness who "is expected to testify that St. Luke's violated the accepted standard of care of good nursing and hospital practice on March 25, 2000, by failing to provide the plaintiff with a reasonably safe hospital bed in which to receive and recover from medical treatment . . . [or] by providing the plaintiff with a hospital bed with a footboard that was not properly secured or attached to the hospital bed."
The fact that in the final analysis, expert testimony may not be necessary to support a verdict does not mean the claim is not a health care liability claim. A claim may be a health care liability claim to which the damage caps and expert report requirements are applicable and yet not require expert testimony to prevail at trial.
Murphy, 167 S.W.3d at 838; see also Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990) (noting that expert testimony is not needed to establish breach of a medical duty where the departure is plainly within the common knowledge of laymen). The legislatively-mandated expert report requirement merely establishes a procedural threshold over which a claimant must pass to continue the lawsuit. Murphy, 167 S.W.3d at 838.
A patient's medically necessary, specialized hospital bed is different from other property or parts of a premises not designed and intended primarily for use by and in the care of patients, such as a rickety staircase, a defective waiting room chair, or an unlocked window. The hospital's actions in providing Marks with a hospital bed are inseparable from the other medical and health care services it provided to Marks; a staircase, waiting room chair, an open window are not necessarily so. See Diversicare, 185 S.W.3d at 855.
I would hold that Marks's claim that the hospital provided a negligently assembled and maintained hospital bed alleges a breach of accepted standards of health care. For this second reason, I would hold that Marks's suit is a health care liability claim subject to the MLIIA.
Finally, I would hold that accepted standards of hospital safety include providing reasonably safe hospital beds to patients, and Marks's claim is for a violation of that standard. For this third reason, I would hold that his claim comes under the MLIIA.
The MLIIA defines a health care liability claim to include "a cause of action against a health care provider or physician for . . . [a] claimed departure from accepted standards of . . . safety which proximately results in injury to or death of the patient." TEX. REV. CIV. STAT. art. 4590i, § 1.03(a)(4). Thus, a safety-related cause of action is a health care liability claim if it (1) is against a health care provider or physician; (2) is for a departure from accepted standards of safety; and (3) the alleged departure proximately results in injury to or death of the patient. Id.
Although the foregoing are the only elements required by the text of the statute, the Court adds a fourth element: a cause of action alleges a departure from accepted safety standards when the unsafe condition is an inseparable or integral part of the patient's care or treatment. The Court effectively adds language to the statute to justify its conclusion as to safety. Even so, there is no question the bed was an inseparable and integral part of Marks's care and treatment and meets even the narrowed safety standard erroneously adopted by the Court. Although analysis of the statute's language yields that conclusion, the nurses' notes in Marks's hospital chart referencing the implementation of Safety/Fall Precautions, which incorporated the hospital bed as part of the precautions, do not just yield the conclusion, they compel it.
Although the MLIIA does not define "safety," the statute specifies that legal terms or words of art used but not otherwise defined in the statute "shall have such meaning as is consistent with the common law." TEX. REV. CIV. STAT . art. 4590i, § 1.03(b). Thus, in interpreting the MLIIA, the Court has previously construed "safety" according to its common law definition as the condition of being "untouched by danger; not exposed to danger; secure from danger, harm or loss." Diversicare, 185 S.W.3d at 855 (quoting BLACK'S LAW DICTIONARY 1336 (6th ed. 1990)).
Our prior construction is consistent with the plain language of the statute, does not offend the purpose of the statute, is not inconsistent with its contextual meaning, and does not yield an absurd or nonsensical result. Because the Court does not determine otherwise, that should settle the question. Unfortunately, it does not. Instead, the Court justifies effectively adding language to the statute by concluding that a "broad" interpretation is at odds with the legislative purpose. ___ S.W.3d at ___ (citing TEX. REV. CIV. STAT. art. 4590i, § 1.02(b)(1), (3)). The Court reasons that because a broad interpretation is not warranted, the statute's safety standard is implicated only when the unsafe condition or thing "is an inseparable or integral part of the patient's care or treatment." Id. at ___. This is in direct contravention of the MLIIA's explicit mandate that terms not defined by the statute be given their common law meaning, see TEX. REV. CIV. STAT. art. 4590i, § 1.03(b), and our previous interpretation of the MLIIA. See Diversicare, 185 S.W.3d at 847 (describing health care as "broadly defined" under the MLIIA). The statute quite clearly does not say what the Court interprets it to say, and I agree with Chief Justice Jefferson's choice of words in Diversicare:
Because the statute does not define "safety," we must assign its common meaning . . . [of] protection from danger. . . . The specific source of that danger, be it a structural defect, criminal assault, or careless act, is without limitation. While it may be logical to read into the statute a requirement that a safety related claim also involve health care, there is nothing implicit in safety's plain meaning nor explicit in the MLIIA's language that allows us to impose such a restriction.
See id. at 860-61 (Jefferson, C.J., concurring in part, and dissenting in part) (citations omitted).
Further, en route to its unfortunate conclusion, the Court speculates about coverages of medical malpractice insurance policies and commercial general liability insurance policies that are not before us. It concludes the Legislature intended to exclude claims against health care providers that are covered by general liability insurance policies from the MLIIA. ___ S.W.3d at ___. Aside from the constitutional problem posed if the Legislature effectively delegated authority to insurance companies to determine operative statutory language by their contracts, see Proctor v. Andrews, 972 S.W.2d 729, 735 (Tex. 1998), and although the Legislature intended to relieve the malpractice insurance crisis by enacting the MLIIA, I simply do not agree that the MLIIA reflects intent by the Legislature to abdicate its legislative function by allowing claims against health care providers to be excluded from the Act's provisions based on coverages provided by particular types of insurance policies.
What the MLIIA does reflect is legislative intent to broadly, not narrowly, include within the statute's coverage claims made by patients against their health care providers. If policy considerations support excluding subcategories of claims from the MLIIA when the unambiguous statutory language includes the overall category, as it does here, then incorporating those exclusions into the statute is a Legislative prerogative, not a judicial one. See TEX. CONST. art. II, § 1; Lee v. City of Houston, 807 S.W.2d 290, 294-95 (Tex. 1991) ("A court may not judicially amend a statute and add words that are not implicitly contained in the language of the statute."); Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968). It is our duty as judges to ascertain the Legislature's intent from the specific language it used, if possible, and to refrain from looking for extraneous reasons to read into laws unexpressed intentions. Gov't Pers. Mut. Life Ins. Co. v. Wear, 251 S.W.2d 525, 529 (Tex. 1952).
Additionally, by conflating standards of safety with standards of health care, the Court negates the Legislature's intent to include within the MLIIA's coverage a separate category of claims based on safety. If a health care provider furnishes unsafe materials or creates an unsafe condition as an integral and inseparable part of a patient's health care or treatment, the health care provider's acts or omissions would already fall within the category of claims based on departures from accepted standards of medical care or health care and there would be no need for the Act to include the word "safety." See Diversicare, 185 S.W.3d at 848 ("A cause of action alleges a departure from accepted standards of medical care or health care if the act or omission complained of is an inseparable part of the rendition of medical services."). Applying the Court's "inseparable or integral part of the patient's care or treatment" standard to "safety" effectively reads safety out of the statute instead of properly giving it meaning as adding a category of claims. Id. at 855 ("Certainly, the Legislature's inclusion within the scope of the MLIIA of claims based on breaches of accepted standards of 'safety' expands the scope of the statute beyond what it would be if it only covered medical and health care."). As noted previously, this Court has consistently construed statutes based on the presumption that the Legislature intended an entire statute to be effective, so we "try to give effect to all the words of a statute, treating none of its language as surplusage when reasonably possible." Phillips, ___ S.W.3d at ___; e.g., TEX. GOV'T CODE § 311.021(2); Sultan v. Mathew, 178 S.W.3d 747, 751 (Tex. 2005) ("We must avoid, when possible, treating statutory language as surplusage."); City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995) ("We will not read statutory language to be pointless if it is reasonably susceptible of another construction."); Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963) ("[E]ach sentence, clause and word is to be given effect if reasonable and possible."). Accordingly, the Court should construe the Legislature's inclusion of "safety" claims in the MLIIA as expanding the scope of health care liability claims beyond what it would be if the statute only covered medical and health care claims. Diversicare, 185 S.W.3d at 855 ("Certainly, the Legislature's inclusion within the scope of the MLIIA of claims based on breaches of accepted standards of 'safety' expands the scope of the statute beyond what it would be if it only covered medical and health care."). Instead, the Court cites case law from other jurisdictions to support the proposition that claims arising from negligent assembly or maintenance of hospital equipment generally sound in ordinary negligence and are not health care liability claims. ___ S.W.3d at ___ n. 3. But the MLIIA is different from most, if not all, statutes in other states that regulate medical malpractice claims: it specifies that it extends to claims involving breaches of accepted standards of safety. See Diversicare, 185 S.W.3d at 860 n. 3 (Jefferson, C.J., concurring in part, and dissenting in part) ("Though many states have statutes regulating medical malpractice claims, the MLIIA is unique in that it apparently is the only statute of its kind that by definition extends to claims involving safety."). Examination of the statutes underlying the cases cited by the Court reveal their differences from the MLIIA. See LA.REV.STAT. ANN. § 40:1299.41 (providing statutory protections for "malpractice" claims based on "health care or professional services rendered"); IND . CODE 34-18-2-18 (providing statutory protections for "malpractice" claims based on "health care or professional services" provided). Because the MLIIA extends to claims for injuries to patients based on breaches of accepted standards of safety, many claims by patients that might be considered claims for ordinary negligence or premises liability in other states are health care liability claims in Texas. Marks's claim is one of them.
In sum, I would affirm the trial court's dismissal of Marks's claims for failure to file an expert report in accordance with requirements of the MLIIA. I would hold that Marks's suit falls within the MLIIA for three separate reasons: (1) the entire claim is based on alleged violations of accepted standards of health care and safety and cannot be recast by artful pleading into both health care and non-health care claims; (2) the claim for negligently assembling, providing, and maintaining a hospital bed is a health care liability claim because it alleges a breach of accepted standards of health care; and (3) the claim for negligently assembling, providing, and maintaining a hospital bed is a health care liability claim because it alleges a breach of accepted standards of safety.