Opinion
NO. 14-18-00725-CV
08-28-2020
Ignacio VALDES, M.D., Appellant v. Pamela SHIELDS, Appellee
A psychiatrist challenges the trial court's denial of his motion to dismiss a patient's claims under the Texas Medical Liability Act for failure to serve an expert report. The patient seeks to recover damages based on injuries she claims to have suffered when she tripped on a rug in the psychiatrist's waiting room. The patient contends that her claims are based on a premises-liability theory while the psychiatrist contends the claims tie inextricably to his duties as the patient's health care provider. Concluding that expert medical testimony is unnecessary to prove or refute the patient's claims and that the patient has not alleged facts that give rise to a health care liability claim, we overrule the psychiatrist's issues and affirm the trial court's denial of the psychiatrist's motion to dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the spring of 2017, appellant Ignacio Valdes, M.D., a board-certified psychiatrist began treating appellee Pamela Shields. The evidence attached to Valdes's motion to dismiss shows that Shields had a total of four outpatient visits to Valdes's office. The first visit fell on April 13, 2017, and the last on November 11, 2017. During these visits Shields complained of insomnia and anxiety, and she sought refills of her medication. Shields reported that she had been in a motor-vehicle accident in which she sustained injuries to her neck and back. The notes from her first visit reflect that she had a psychiatric history of depression, anxiety, and insomnia and a medical history of chronic back and neck pain, arthritis and "[h]eart [f]luttering." These notes show a diagnosis of depression and chronic pain.
During her second visit, in September 2017, Shields had an open wound in the big toe of her left foot that appeared to be infected. She was told to see her primary care physician about this wound. The notes from Shields's third visit, in October 2017, reflect that Shields had a boot on her foot and that her infected toe was being treated with antibiotics. The notes from Shields's last visit, in November 2017, reflect that Shields "[f]ell again," and had some foot pain. According to the notes, Valdes was going to give Shields "a minimal supply of Tramadol" to last her until she could get an appointment with her primary care physician. It was suggested to Shields that she "look into getting a walker or cane for her safety."
The next month, Shields filed this lawsuit against Valdes and Cambridge Properties, the owner of the real property where Valdes maintains his medical office. In her live pleading, Shields alleges that she sustained personal injuries "in or about November of 2017," when she was an invitee at Valdes's office. According to Shields, "[w]hile in the waiting room [of Valdes's medical office], [Shields] tripped over a misplaced rug." In her petition, Shields cites no other facts or circumstances as to her claimed injury. She asserted negligence claims based on a premises-liability theory. Shields alleged that Valdes engaged in the following negligent conduct:
At Shields's request the trial court later dismissed without prejudice Shields's claim against Cambridge Properties.
• failure to maintain the premises, including furniture, in a reasonably safe condition;
• failure to inspect the premises where the dangerous condition existed;
• failure to correct the condition by taking reasonable measures to safeguard persons who entered the premises; and
• failure to inform Shields of the dangerous condition existing on the premises.
Shields included a footnote in her live pleading denying that her claims were health care liability claims and declaring the alleged negligence "was unrelated to [Valdes's] duties of care as health care provider." Except for this reference, Shields does not mention in her live pleading health care or medical care or explicitly refer to any duties that Valdes owed Shields as Shields's doctor.
In her discovery responses, Shields stated that (1) she was at Valdes's office for a medical appointment with Valdes when she tripped; (2) immediately before the accident occurred Shields was "sitting on the couch playing a game on her mobile device"; and (3) at the time of the accident Shields was wearing a sandal on her right foot and on her left foot Shields was wearing "one of the orthopedic shoes that was strapped to her ankle."
Valdes filed a motion to dismiss Shields's claim under the Texas Medical Liability Act and attached as evidence (1) Shields's First Amended Petition, (2) a copy of the Supreme Court of Texas's opinion in Ross v. St. Luke's Episcopal Hospital , 462 S.W.3d 496 (Tex. 2015), (3) Shields's written discovery responses, (4) Valdes's affidavit, which includes notes from each of Shields's visits to Valdes's office, and (5) an attorney's affidavit related to Valdes's request for attorney's fees.
In his motion to dismiss, Valdes asserts that Shields's claim against him is a health care liability claim because (1) Shields was Valdes's patient at the time of her alleged fall in his office; (2) the alleged fall occurred when Shields was in Valdes's office for a medical visit; and (3) Shields received medical care and advice from Valdes related to her foot and walking safety.
In his affidavit, Valdes states that he is not aware that Shields ever fell or had an accident before, during, or after any visit to Valdes's office. According to Valdes, no "fall or incident with a rug" was reported to Valdes's staff or to Valdes, and Valdes first learned of Shields's allegations when he was served in this lawsuit.
Shields filed a response to Valdes's motion. After conducting an oral hearing, the trial court denied Valdes's motion.
Valdes has filed this interlocutory appeal, asserting in two appellate issues that the trial court erred in denying his motion to dismiss.
II. ANALYSIS
Health care liability claims are subject to the Texas Medical Liability Act's provisions, including its expert-report requirement. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13), 74.351(a) (Vernon 2017); see also Lout v. The Methodist Hosp. , 469 S.W.3d 615, 616–17 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Under the Act, a plaintiff asserting a health care liability claim must serve an expert report within 120 days of the filing of an answer by any defendant physician or health care provider. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). If the plaintiff fails to serve an expert report, the trial court must dismiss the plaintiff's claims on the defendant's motion. Id. § 74.351(b)(2).
We generally review a ruling on a motion to dismiss under the Texas Medical Liability Act for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 875 (Tex. 2001). But we review de novo whether a particular claim constitutes a health care liability claim. See, e.g., Bioderm Skin Care, LLC v. Sok , 426 S.W.3d 753, 757 (Tex. 2014). In conducting the review, we consider the entire record including the pleadings, motions and responses, and any evidence attached to the motions. Ahmadi v. Moss , 530 S.W.3d 754, 758 (Tex. App.—Houston [14th Dist.] 2017, no pet.). In determining the question, we examine the underlying nature and gravamen of the claim, rather than the way the plaintiff pleaded it. Garland Cmty. Hosp. v. Rose , 156 S.W.3d 541, 543 (Tex. 2004). The burden rests on the party seeking dismissal to prove the plaintiff's claim amounts to a health care liability claim. Houston Methodist Willowbrook Hosp. v. Ramirez , 539 S.W.3d 495, 498 (Tex. App.—Houston [1st Dist.] 2017, no pet.). But if a patient asserts a claim against a physician or health care provider based on facts implicating the defendant's conduct during the patient's care, treatment, or confinement, then a rebuttable presumption arises that the patient's claim is a health care liability claim, and the plaintiff bears the burden of rebutting the presumption. Rio Grande Valley Vein Clinic, P.A. v. Guerrero , 431 S.W.3d 64, 65 (Tex. 2014) (per curiam).
In the Texas Medical Liability Act the Legislature defined a health care liability claim as:
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract. The term does not include a cause of action described by Section 406.033(a) or 408.001(b), Labor Code, against an employer by an employee or the employee's surviving spouse or heir.
Id. § 74.001(a)(13).
This second exclusionary sentence of the statutory definition, not applicable in today's case, became part of the statute in 2015.
The Legislature also has defined some of the terms used within the definition of health care liability claim. "Health care" is defined as
any act or treatment performed or furnished, or that 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.
Id. § 74.001(a)(10). "Medical care" is defined as
any act defined as practicing medicine under Section 151.002, Occupations Code, performed or furnished, or which should have been performed, by one licensed to practice medicine in this state for, to, or on behalf of a patient during the patient's care, treatment, or confinement.
Id. § 74.001(a)(19). The Legislature has not defined "safety" in the Texas Medical Liability Act, but the Supreme Court of Texas has construed the word according to its common meaning as "the condition of being ‘untouched by danger; not exposed to danger; secure from danger, harm or loss.’ " Diversicare Gen. Partner, Inc. v. Rubio , 185 S.W.3d 842, 855 (Tex. 2005) (quoting Black's Law Dictionary 1336 (6th ed. 1990)). A safety-standards claim need not be directly related to the provision of health care to qualify as a health care liability claim. Ross v. St. Luke's Episcopal Hosp. , 462 S.W.3d 496, 504 (Tex. 2015). Yet, for a safety-standards claim to amount to a health care liability claim, "there must be a substantive nexus between the safety standards allegedly violated and the provision of health care." Id. That nexus must be more than a "but for" relationship. Id.
The Ross court introduced seven non-exclusive considerations for courts to employ when analyzing whether a safety-standards claim amounts to a health care liability claim:
1. Did the defendant's alleged negligence occur while the defendant was performing tasks with the purpose of protecting patients from harm?
2. Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special, medical care was implicated?
3. At the time of the injury was the claimant in the process of seeking or receiving health care?
4. At the time of the injury was the claimant providing or assisting in providing health care?
5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider?
6. If an instrumentality was involved in the defendant's alleged negligence, was it a type used in providing health care?
7. Did the alleged negligence occur in the course of the defendant's taking action or failing to take action necessary to comply with safety-related requirements set for health care providers by governmental or accrediting agencies?
Id. at 505.
The Ross court stated that "[t]he pivotal issue in a safety[-]standards-based claim is whether the standards on which the claim is based implicate the defendant's duties as a health care provider, including its duties to provide for patient safety." Id. A safety-standards claim does not fall within the Act's provisions just because the underlying occurrence took place in a health care facility, the claim is against a health care provider, or both. Id. at 503. A. Do Shields's allegations implicate Valdes's conduct during Shields's care, treatment, or confinement, triggering the rebuttable presumption that her claims against him are health care liability claims?
In analyzing Shields's claims, we first consider whether the rebuttable presumption applies to shift the burden to Shields. The records attached to Valdes's affidavit indicate that he viewed Shields as an outpatient. Shields does not allege that she had been admitted to any hospital when she tripped and fell. Presuming for the sake of argument that Shields was in the waiting room of Valdes's office because of a medical appointment, Shields was not confined or receiving medical care or treatment while she was in the waiting room. Valdes has not shown or identified any safety-related standards governing a health care provider's use or placement of rugs in a medical-office waiting room. Shields has not alleged that Valdes was treating her or giving her medical care for her infected toe, her foot pain, or problems with falling, nor does Shields allege that any act or omission by Valdes as to any of these medical issues caused Shields to trip over a rug in Valdes's waiting room. Valdes's alleged negligence in placing the rug in his waiting room does not implicate Valdes's conduct during his psychiatric care and treatment of Shields. Valdes's alleged negligence arising from an allegedly dangerous condition involving the rug in his office's waiting room does not implicate Valdes's conduct during Shields's care, treatment, or confinement. See Harris County Hosp. Dist. v. McNew , No. 14-18-00868-CV, 2020 WL 950089, at *4 (Tex. App.—Houston [14th Dist.] Feb. 27, 2020, no pet.) (mem. op.). Because Shields does not assert a claim against Valdes based on facts implicating Valdes's conduct during Shields's care, treatment, or confinement, a rebuttable presumption does not arise that Shields's claim is a health care liability claim, and Valdes bore the burden of proving that Shields's claim is a health care liability claim. See Harris County Hosp. Dist. , 2020 WL 950089, at *4.
B. Is expert medical or health care testimony necessary to prove or refute the merits of Shields's claim against Valdes?
In his first issue, Valdes contends that the trial court erred in refusing to dismiss Shields's claim because the facts surrounding her injury necessitate expert testimony to address Valdes's care and treatment and to refute her claim that her injury was caused by a premises defect. If expert medical or health care testimony is necessary to prove or refute the merits of the claim against a physician, the claim is a health care liability claim. Tex. W. Oaks Hosp., LP v. Williams , 371 S.W.3d 171, 182 (Tex. 2012). Valdes argues that expert medical or health care testimony is necessary to prove or refute the merits of Shields's trip-and-fall claim against him, and therefore the claim is a health care liability claim. Valdes contends that his medical recommendations and treatment decisions related to Shields’ foot pain and ambulation issues tie inextricably to her claim and that expert testimony is necessary to address the medical standard of care applicable to Valdes's medical decisions and recommendations and to refute causation. Valdes also asserts that this case calls for expert testimony to show that something other than the allegedly misplaced rug — such as Shields "use of the orthotic," the Tramadol, other medications, or her ambulation issues — caused Shields to trip and fall. According to Valdes, this case requires a review of the appropriateness of his prescription of Tramadol, how Tramadol could impact Shields's mobility and his recommendation that Shields use a walker or cane.
Valdes submitted notes from Shields's four outpatient visits. These notes show that Valdes rendered care to Shields as her psychiatrist, treating her for insomnia, anxiety, depression, and chronic pain. During her second visit in September 2017, Shields had an open wound in the big toe of her left foot that appeared to be infected. She was told to see her primary care physician about this wound. Shields apparently did see another doctor about her toe because the notes from her third visit reflect that she had a medical boot on her foot and that her infected toe was being treated with antibiotics. Nothing in the record shows that Valdes was treating Shields for the infection in her toe. Shields does not allege that Valdes was treating the infection in her toe or that Valdes engaged in any negligent act or omission as to the infection in her toe.
The notes from Shields's last visit, in November 2017 reflect that Shields "[f]ell again," and had some foot pain. According to the notes, Valdes planned to prescribe Shields a "minimal supply of Tramadol" for the foot pain until Shields could see her primary care physician. According to the notes, it was suggested to Shields that she "look into getting a walker or cane for her safety." Nonetheless, neither the evidence nor the pleadings show that Valdes was treating Shields for foot pain or problems with falling, and Shields does not make that allegation. Nor does Shields allege that Valdes engaged in any negligent act or omission as to Shields's foot pain or problems with falling.
In an interrogatory response that Valdes attached to his motion to dismiss, Shields stated that she did not take any prescription or nonprescription drug or medication in the 24-hour period before her accident. Thus, Shields does not claim that she was taking Tramadol or any other medication when she tripped and fell, nor does she allege that Valdes was negligent in prescribing Tramadol. Shields has not alleged any negligent act or omission by Valdes in his rendition of psychiatric care and treatment to Shields. Valdes has not shown any specific safety-related standards governing the use or placement of rugs by health care providers in their waiting rooms.
Valdes asserts that expert testimony is necessary to assess whether Valdes breached the standard of care. In the premises-liability context, an owner or occupier of the premises owes an invitee a negligence duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not. See Austin v. Kroger Texas, L.P. , 465 S.W.3d 193, 203 (Tex. 2015). Shields's negligence claim based on premises liability does not require medical or health care expert testimony to assist the finder of fact in determining whether Valdes breached the standard of care or whether Valdes's alleged negligence caused Shields to trip and fall. Had Shields actually pleaded that Valdes negligently prescribed her medicine, or that he was negligent in his recommendations to use a walker, expert medical and health care testimony would be necessary to prove and refute those claims. But Shields has not made these allegations or asserted these claims.
Valdes could refute the merits of Shields's claim in many ways, for example by showing that (1) Shields did not trip and fall in his waiting room; (2) the rug was not an unreasonably dangerous condition; (3) even if the rug was an unreasonably dangerous condition, this condition was open and obvious or otherwise known to Shields; or (4) Valdes was not, nor should he reasonably have been, aware of this allegedly unreasonably dangerous condition. See id. In addition, Shields alleged that the accident occurred "in or about November of 2017." Valdes submitted evidence showing that the only visit Shields had with Valdes in November 2017, was her final visit on November 11, 2017. The notes from this visit are the only notes that mention that Shields "fell again," that Shields had foot pain, and that it was suggested that Shields look into getting a walker or a cane for her safety. Shields stated that she was sitting on a couch immediately before the accident occurred. If Shields's accident happened on November 11, 2017, and if she fell before going into the appointment, then Valdes did not yet have any of the new information in the notes for this visit and Valdes had not yet recommended a walker or cane when Shields tripped and fell.
The record does not show that expert medical or expert health care testimony is necessary to prove or refute the merits of Shields's negligence claim against Valdes based on premises liability. See Baylor Univ. Med. Centr. v. Daneshfar , No. 05-17-00181-CV, 2018 WL 833373, at *8 (Tex. App.—Dallas Feb. 12, 2018, pet. denied) (mem. op.); Syed v. Phu Huu Nguyen, Pharm. D., PLLC , No. 01-16-00856, 2017 WL 4171939, at *6 (Tex. App.—Houston [1st Dist.] Sept. 21, 2017, pet. denied) ; Williams v. Riverside General Hosp., Inc. , No. 01-13-00335-CV, 2014 WL 4259889, at *8 (Tex. App.—Houston [1st Dist.] Aug. 28, 2014, no pet.) (mem. op.).
Valdes relies upon the Supreme Court of Texas's opinion in Texas West Oaks Hospital v. Williams . See Tex. W. Oaks Hosp., LP , 371 S.W.3d at 182. In that case the plaintiff did not assert a premises-liability theory of negligence, and the dispute between the plaintiff and the hospital was, at its core, over the appropriate standards of care owed to a mental health professional (the plaintiff) in treating and supervising a psychiatric patient at the mental hospital, what services, protocols, supervision, monitoring and equipment were necessary to satisfy the standard, and whether such specialized standards were breached. See id. at 175–76, 182. The Texas West Oaks Hospital case is not on point. See id.
We overrule Valdes's first issue.
C. Is Shields's claim a safety-based health care liability claim based on application of the Ross considerations?
In his second issue, Valdes asserts that the trial court erred in denying his motion to dismiss because Shields's ambulation issues and known propensity for falls necessitated a higher degree of safety considerations to protect her from harm. Valdes argues that Shields's claim is a health care liability claim based on the Ross considerations. See Ross , 462 S.W.3d at 505. According to Valdes, four of the seven Ross considerations (1, 2, 3, and 5) favor a finding of health care liability claim, one is even (6), one is irrelevant (4), and one does not favor a finding of health care liability claim (7).
In Ross , the plaintiff sued the defendant hospital after she slipped and fell in the hospital's lobby as the floor was being cleaned and buffed. See id. at 499. Concluding the plaintiff did not assert a health care liability claim, the supreme court noted that (1) the plaintiff was not seeking, receiving, or providing health care when she fell; (2) the area where the plaintiff fell was not where patients would be during treatment; and (3) the record did not show the cleaning and buffing of the floor were for the purpose of protecting patients. Id. at 505. We now consider the facts of this case against the considerations provided in Ross :
1. Did the defendant's alleged negligence occur while the defendant was performing tasks with the purpose of protecting patients from harm?
In her live petition Shields alleges that she sustained injuries when she tripped on a misplaced rug in the waiting room of Valdes's office. The record does not provides details as to the rug's placement within the waiting room. But whatever its location or manner of placement, the rug serves as the alleged unreasonably dangerous condition on which Shields bases her negligence claim. Thus, we consider whether Valdes "was performing tasks with the purpose of protecting patients from harm" when the rug was allegedly misplaced, or when Valdes allegedly failed to make safe or warn Shield of this allegedly unreasonably dangerous condition. The record contains no facts about the placement of the rug or the decision-making involved in placing the rug or any other facts about how the rug allegedly came to be misplaced. Nor does the record contain facts touching upon whether Valdes inspected the waiting room for dangerous conditions and, if so, when. Making safe dangerous conditions in the waiting room would protect patients as well as people working at Valdes's office and other invitees who might enter the space. We presume for the sake of argument that the first consideration weighs in favor of finding Shields's claim to be a health care liability.
2. Did the injuries occur in a place where patients might be receiving care, so that the obligation of the provider to protect persons who require special, medical care was implicated?
Nothing in the record shows that the waiting room, where Shields alleges the incident occurred, was a place where patients might stay while receiving care. A patient waiting room, though typically occupied by patients not receiving care at present, is also accessible by nonpatients and ordinarily separate from the area where doctors and nurses treat patients. A doctor's waiting room is more akin to a hospital lobby, as in Ross , than an examination room, as in Phillips , or hallways connecting waiting rooms and examining rooms, as in Smith. Compare Ross , 462 S.W.3d at 503, with Se. Tex. Cardiology Associates v. Smith , 593 S.W.3d 743, 748 (Tex. App.—Beaumont 2019, no pet.) ; and Phillips v. Jones , 05-15-00005-CV, 2016 WL 80561, at *2 (Tex. App.—Dallas Jan. 7, 2016, no pet.) (mem. op.). Nothing in the record shows that patients might be receiving care in the waiting room of Valdes's office. We conclude the second consideration weighs against finding Shields's claim to be a health care liability claim.
3. At the time of the injury was the claimant in the process of seeking or receiving health care?
Shields claims she was in the waiting room because of an appointment with Valdes. The record does not show that Shields was in the process of receiving health care when she allegedly tripped and fell. Whether Shields was in the process of seeking medical care depends on whether she was coming or going. On appeal, Shields contends that she was leaving Valdes's office at the time of her injury, yet the record does not reflect whether Shields was waiting to be seen or leaving the office following an appointment. Shields stated in an interrogatory answer that she was sitting on a couch immediately before the accident occurred, but she could have sat down on the couch after she her appointment was over. Because it is unclear on our record whether at the time she was injured she was in the process of seeking medical treatment, we deem this consideration to be neutral. See Shah v. Sodexo Services of Tex. Ltd. P'ship , 492 S.W.3d 413, 418 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (stating that "this record does not show whether Shah was waiting to be seen by a health care provider or actively receiving medicine on a portable IV pole at the time he got coffee from the vending machine").
4. At the time of the injury was the claimant providing or assisting in providing health care?
At the time of her alleged injuries, Shields was not providing or assisting in providing health care. So, the fourth consideration weighs against finding Shields's claim to be a health care liability claim. See Shah , 492 S.W.3d at 418.
5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider?
The alleged negligence is that of Valdes, as the owner or occupier of a premises breaching a duty to make safe or warn against a concealed, unreasonably dangerous condition of which he was, or reasonably should have been, aware but Shields was not. See Kroger Texas, L.P. , 465 S.W.3d at 203. The alleged negligence is not based on safety standards arising from professional duties Valdes owed. Valdes has not identified any safety standards that arise from professional duties based on Shields’ allegation that the rug was an unreasonably dangerous condition. Valdes asserts that the alleged negligence is based on safety standards arising from Valdes's professional duties based on Valdes's knowledge of Shields's ambulation issues, fall history, and his prescribing Tramadol, but the evidence Valdes submitted showed that Valdes gained this knowledge only during Shields's last visit on November 11, 2017, and Valdes has not shown that Shields's alleged accident in the waiting room occurred after this visit. The fifth consideration weighs against finding Shields's claim to be a health care liability claim. See McNew , 2020 WL 950089, at *4 ; Shah , 492 S.W.3d at 418.
6. If an instrumentality was involved in the defendant's alleged negligence, was it a type used in providing health care?
The instrumentality involved — a rug — was not a type used in providing healthcare. We conclude the sixth consideration weighs against finding Shields's claim to be a health care liability claim. See McNew , 14-18-00868-CV, 2020 WL 950089, at *4 ; Shah , 492 S.W.3d at 418.
7. Did the alleged negligence occur in the course of the defendant's taking action or failing to take action necessary to comply with safety-related requirements set for health care providers by governmental or accrediting agencies?
Valdes concedes that the seventh Ross consideration does not favor a health care liability finding. Without record evidence that would suggest otherwise, we conclude this consideration weighs against finding Shields's claim to be a health care liability claim. See Reddic v. E. Tex. Med. Ctr. Reg'l Health Care Sys. , 474 S.W.3d 672, 676 (Tex. 2015).
Conclusion
Under the current legal standards, a patient's negligence claim based on premises liability brought against the patient's health care provider may not be a health care liability claim. See Houston Methodist Willowbrook Hosp. v. Ramirez , 539 S.W.3d 495, 500 (Tex. App.—Houston [1st Dist.] 2017, no pet.). A claim does not fall within the Texas Medical Liability Act's provisions just because the underlying occurrence took place in a health care facility, the claim is against a health care provider, or both. Ross , 462 S.W.3d at 503. On balance, the Ross considerations compel us to conclude that Shields's alleged trip-and-fall accident is not substantively related to Valdes's provision of medical care or health care. See Houston Methodist Willowbrook Hosp. , 539 S.W.3d at 499–500. The safety standards implicated in this case do not have a substantive nexus with providing medical care or health care. See id. at 499. Shields's allegations concern an allegedly misplaced rug that allegedly formed an unreasonably dangerous condition and Valdes's alleged failure to make this condition safe or warn Shields about it. See id. The relevant duties lack a substantive nexus with providing medical care or health care because they are owed by any business premises owner to those lawfully entering the property—they are not unique to health care providers. See Ross , 462 S.W.3d at 503 ; Galvan v. Mem'l Hermann Hosp. Sys. , 476 S.W.3d 429, 431–33 (Tex. 2015) (per curiam); Houston Methodist Willowbrook Hosp. , 539 S.W.3d at 499. We conclude that Shields's claim is not a health care liability claim, and we overrule Valdes's second issue.
III. CONCLUSION
Because Shields's claim is not a health care liability claim, the trial court did not err in denying Valdes's motion to dismiss Shields’ claims under the Texas Medical Liability Act. Therefore, we affirm the trial court order denying Valdes's motion to dismiss.
( Poissant, J., concurring).
CONCURRING OPINION
Margaret "Meg" Poissant, Justice, concurring.
Although I concur in the result, I respectfully disagree with the majority's analysis of appellee's claim. The underlying nature and gravamen of appellee's claim is premises liability. The record does not show that appellee's claim is based on safety standards that have a substantive relationship to appellant's professional duties as a health-care provider. I agree with the majority that appellee's claim does not implicate appellant's conduct during the care, treatment, or confinement of appellee as there is no evidence in the record to support such a conclusion. Thus, no rebuttable presumption arises that her claims fall within the ambit of Chapter 74 of the Texas Civil Practice and Remedies Code (the Texas Medical Liability Act or "TMLA"). See Lout v. The Methodist Hosp. , 469 S.W.3d 615, 619 (Tex. App.—Houston [14th Dist.] 2015, no pet.) ; see also Houston Methodist Willowbrook Hosp. v. Ramirez , 539 S.W.3d 495, 498 (Tex. App.—Houston [1st Dist.] 2017, no pet.). As set forth by the majority, appellant bore the burden of proving that appellee's claim is a health care liability claim. Id. ; Harris Cty. Hosp. Dist. v. McNew , No. 14-18-00868-CV, 2020 WL 950089, at *4 (Tex. App.—Houston [14th Dist.] Feb. 27, 2020, no pet.) (mem. op.). In reaching the conclusion that appellant failed to carry his burden, I disagree with my colleagues’ analysis of two of the Ross factors. See Ross v. St. Luke's Episcopal Hosp. , 462 S.W.3d 496, 505 (Tex. 2015).
Appellee seeks to recover damages based on injuries she suffered when she tripped on a rug in her psychiatrist's (appellant's) waiting room. Appellant asserts the claim is a health care liability claim subject to the requirements of the TMLA. Chapter 74 of the TMLA provides the definition of a health care liability claim:
(13) "Health care liability claim" means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related
to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.
Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) (emphasis added).
As the supreme court noted in Ross , a claim against a medical provider is not a health care claim subject to the requirements of the Texas Medical Liability Act "just because the occurrence took place in a health care facility, is against a health care provider, or both." 462 S.W.3d at 503 (citing Loaisiga v. Cerda , 379 S.W.3d 248, 257 (Tex. 2012) ).
In examining the Ross factors, the majority's analysis of two of the Ross factors is flawed.
Did the defendant's alleged negligence occur while the defendant was performing tasks with the purpose of protecting patients from harm?
In reviewing this factor, the majority asserts that appellant was performing tasks with the purpose of protecting patients from harm when the rug in the waiting room was misplaced, resulting in the majority's conclusion that the first consideration arguably weighs in favor of finding appellee's claim is a health care liability claim. However, as the majority also notes, "[t]he record contains no facts about the placement of the rug or the decision-making involved in placing the rug or any other facts about how the rug allegedly came to be misplaced. Nor does the record contain facts touching upon whether Valdes inspected the waiting room for dangerous conditions and, if so, when." There are no facts regarding whether appellant or someone else placed or misplaced the rug. There is no evidence in the record that appellant was protecting patients from harm, as the waiting room is available to the public, not only to patients, and it is appellant's burden in seeking dismissal to prove appellee's claim amounts to a health care liability claim implicating duties specific to health care providers as opposed to duties owed by a premises owner. See Ramirez , 539 S.W.3d at 498, 501.
The majority's reliance on Shah v. Sodexo Servs. of Tex. Ltd. P'ship , 492 S.W.3d 413, 418 (Tex. App.—Houston [1st Dist.] 2016, no pet.) to support its position is misplaced. Shah was a hospital patient at Ben Taub Hospital attempting to get coffee from a vending machine when he was struck by a beverage cart. Shah sued the hospital for negligence under the theory of respondeat superior. In Shah , as in this case, the central issue was whether Shah's claims qualified as "health care liability claims." Id. at 416. Our sister court found they did not, and in assessing the Ross factors, concluded that no safety-related requirements set by any agency were shown as evidence of a violation of safety standards. Id. at 418. Likewise, in this case, there is no evidence that the placement of the rug was to comply with any safety-related standard. There is no evidence that appellant's duties as a health care provider are connected to appellee's claims. Ross , 462 S.W.3d at 504–505.
This factor, which the majority weighs in favor of a health care liability claim "for the sake of argument," clearly weighs against a finding that appellee's claim is a health care liability claim.
At the time of the injury was the claimant in the process of seeking or receiving health care?
Additionally, the majority makes a misstep when it concludes that whether appellee was in the process of seeking medical care depends on whether she was coming into or exiting out of the waiting room and finds this factor is "neutral." The record evidence indicates appellee was "sitting on the couch playing a game on her mobile device." Whether she was coming or going to an appointment while in the waiting room is irrelevant because appellee's presence in the waiting room did not involve health care treatment, a lack of treatment, or a claimed departure from accepted standards of medical care. The waiting room is not an area where appellee was treated, seeking treatment, or would be during treatment, and appellee was not receiving health care treatment while in the waiting room. The waiting room is an area accessible to individuals who are not seeking medical treatment. Unlike physical medical treatment, psychiatric treatment does not involve medical devices, such as IVs; psychiatric treatment is, however, based on a confidential verbal exchange in a private, not public, environment. There is no evidence under these facts to support the majority's conclusion that this factor is "neutral." Instead, this factor weighs against a finding that appellee's claim is a health care liability claim.
For the reasons stated above, both of these factors weigh against a finding that appellee's claim is a health care liability claim.
The purpose of the Act's expert report requirement is "to deter frivolous claims, not to dispose of claims regardless of their merits." Scoresby v. Santillan , 346 S.W.3d 546, 554 & n. 43 (Tex. 2011) ; see Ross , 462 S.W.3d at 502 ("The purpose of the TMLA's expert report requirement is not to have claims dismissed regardless of their merits, but rather it is to identify and deter frivolous claims while not unduly restricting a claimant's rights."); see also Tex. Civ. Prac. & Rem. Code § 74.351 (expert report requirements).
Based on the record in this case, no substantive nexus has been shown to exist between the safety standards appellee alleges appellant violated and the provision of health care. See Galvan v. Mem'l Hermann Hosp. Sys. , 476 S.W.3d 429, 433 (Tex. 2015) (per curiam); Reddic v. E. Tex. Med. Ctr. Reg'l Health Care Sys. , 474 S.W.3d 672, 676 (Tex. 2015) (per curiam). The attempt to transform a garden-variety premises liability claim into a health care liability claim has been uniformly rejected. See, e.g., Galvan , 476 S.W.3d at 431–33 ; Reddic , 474 S.W.3d at 675–76. Because the duty of care owed by the medical provider to the patient is substantially different from that owed to an invitee by an owner or occupier of premises, and the latter does not require expert medical review, attempts to subvert the rights of claimants by requesting dismissal under an inapplicable standard is contrary to the purpose of the Act.