NUMBER 13-14-00004-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG VALLEY REGIONAL MEDICAL CENTER, Appellant, v. MARIA GUADALUPE CAMACHO, Appellee.

On appeal from County Court at Law No. 1 of Cameron County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Garza and Benavides Memorandum Opinion by Justice Garza In this appeal, we are once again faced with the “knotty” issue of whether a plaintiff’s claim is a health care liability claim (“HCLC”) under the Texas Medical Liability Act (“TMLA”) and therefore subject to that statute’s expert report requirement. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through 2013 3d C.S.); Loaisiga v. Cerda, 379 S.W.3d 248, 265 (Tex. 2012) (Lehrmann, J., concurring and dissenting) (“Whether a claim against a health care provider is [an HCLC] is a knotty issue this Court has repeatedly struggled with.”). Appellant Maria Guadalupe Camacho failed to timely serve an expert report and the trial court denied a motion to dismiss filed by appellee, Valley Regional Medical Center (“VRMC”). Because we find that the claim raised by Camacho is an HCLC, we reverse and remand.

I. BACKGROUND Camacho was injured on August 29, 2012, when she was visiting a family member at the women’s center at VRMC. Her first amended petition, filed on May 20, 2013, alleged that, as she was walking through a set of automatic sliding doors, “the doors suddenly closed with no warning,” “pinn[ing] her between the sliding doors,” “painfully crushing” her and causing her to suffer injury to her right shoulder. She alleged that VRMC was negligent by (1) “permitt[ing] such condition to exist” and (2) failing “to adequately correct the conditions or warn [Camacho], despite the fact that [VRMC] knew, or in exercise of ordinary care, should have known of the existence of the dangerous condition and that there was likelihood of someone being injured.” She further alleged that the dangerous condition of [the] door and premises had continued for such a period of time that it should have been noticed by [VRMC] and that [VRMC] should have warned patrons, such as [Camacho], of the condition and/or should have corrected the dangerous condition of the defective motion sensor of the sliding doors before [Camacho] was crushed so that it would not be dangerous if [VRMC] had exercised ordinary care in the inspection and maintenance of its premises.[1] On August 27, 2013, VRMC filed a motion to dismiss, asserting that the claim is

The trial court later denied VRMC’s motion. Subsequently, VRMC filed a motion to reconsider which included an affidavit by Sergio Loya, VRMC’s Director of Plant Operations. Loya averred as follows: My investigation of this accident indicates that it occurred at the Women’s Pavillion which includes the Labor and Delivery, Post Partum and Nursery areas. The Infant Abduction System alarm sounds whenever a sensor attached to a baby in the Nursery or Post Partum is within a specified distance of the swinging doors. The Infant Abduction System is designed to close and lock the doors as a safety feature that stops a baby from being abducted from the hospital. My investigation reveals that this accident occurred when the alarm sounded and the doors were closing.

The record also contains an affidavit by Camacho stating: When the doors closed there was no audible warning nor was there a sign or visual warning that these doors were part of a security system or would close without reason. The doors just closed quickly injuring me. I later understood that the doors would close if a child was removed without proper authority, however, I was not carrying a child nor was there a child near me; in fact there was no child in sight.

The trial court denied VRMC’s motion to reconsider. The judgment denying the motion specifically stated that the exhibits offered at the hearing were admitted and considered in evaluating the motion to dismiss. This interlocutory appeal followed. See id. § 51.014(a)(9) (West, Westlaw through 2013 3d C.S.) (authorizing appeal of interlocutory order denying motion to dismiss for failure to file a medical expert report).

II. DISCUSSION A. Applicable Law and Standard of Review Under the Texas Medical Liability Act (“TMLA”), a plaintiff seeking damages in an HCLC must serve a medical expert report upon each party’s attorney no later than the 120th day after the date the original petition was filed. Id. § 74.351(a) (stating that expert report requirement applies to any “claimant” asserting an HCLC); see id. § 74.001(a)(2) (defining “claimant” as a person seeking damages in an HCLC). The statute defines HCLC 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.

Id. § 74.001(a)(13) (West, Westlaw through 2013 3d C.S.).

Whether a claim is an HCLC under the TMLA is a matter of statutory construction, which is a purely legal question that we review de novo. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012). To determine whether a cause of action falls under the statute’s definition of an HCLC, we examine the claim’s underlying nature.

Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010). Artful pleading does not alter that nature. Id. In making the determination, we consider the entire court record, including the pleadings, motions and responses, and relevant evidence properly admitted.

Loaisiga, 379 S.W.3d at 258.

Claims “which require[] the use of expert health care testimony to support or refute the allegations” are HCLCs. Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724, 727 (Tex. 2013); see Tex. W. Oaks, 371 S.W.3d at 182. However, the inverse is not true: “[e]ven when expert medical testimony is not necessary, the claim may still be an HCLC.”

Tex. W. Oaks, 371 S.W.3d at 182 (citing Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (“The fact that in the final analysis, expert testimony may not be necessary to support a verdict does not mean the claim is not [an HCLC].”)).

VRMC alleged in its motion to dismiss that the claim is an HCLC because it alleges a “departure from accepted standards of . . . safety.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). “Safety” is not defined in the statute but is commonly understood 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).

The Texas Supreme Court considered the extent to which the TMLA covers “safety claims” in West Oaks. See 371 S.W.3d at 184–85. In that case, a majority of the Court espoused a construction of the statutory definition of HCLC under which the phrase “directly related to health care” modifies “professional or administrative services,” but does not modify the term “safety.” Id. (noting that, under the “last antecedent” doctrine of statutory interpretation, “a qualifying phrase should be applied only to the portion of the sentence immediately preceding it”). In other words, if a claim is based on an alleged departure from accepted standards of “safety,” the “safety component . . . need not be directly related to the provision of health care.” Id. at 186. In West Oaks, which involved

the assault of a hospital employee by a psychiatric patient on hospital grounds, the Court held that the plaintiff’s claim was subject to the TMLA because “the dispute . . . is, at its core, over appropriate standards of care owed to [a] mental health professional in treating and supervising a psychiatric patient.” Id. at 182. According to the Court, “[i]t would blink reality to conclude that no professional mental health judgment is required to decide what those should be, and whether they were in place at the time of [the plaintiff]’s injury.” Id.2 In the years since West Oaks was decided, Texas appellate courts have had no shortage of opportunities to apply its reasoning to other factual scenarios. We did so in Doctor’s Hospital at Renaissance, Ltd. v. Mejia, a slip-and-fall case. No. 13-12-00602- CV, 2013 WL 4859592, at *2–4 (Tex. App.—Corpus Christi Aug. 1, 2013, pet. filed) (mem. op.). The plaintiff, Mejia, was not a patient or employee of the hospital but instead was visiting her father who was recovering from surgery. Id. at *1. Mejia, like Camacho, alleged that the hospital was negligent by failing to ensure her safety. Id. The trial court found that the claim was an HCLC and dismissed because Mejia failed to file an expert report. Id. On appeal, we noted that, although “the precise boundaries of the safety prong remain undefined,” the supreme court has acknowledged that “they are not limitless.” Id. at *2 (citing Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 664 (Tex. 2010) (“[l]t is apparent that the Legislature did not intend for standards of safety to extend to every

In an attempt to reconcile the supreme court’s holdings on this issue—on the one hand, that safety claims need not be “directly related” to health care to come within the scope of the TMLA; but on the other hand, that not all safety claims are within its scope— we narrowly construed West Oaks as “recogniz[ing] a new type of [HCLC]—that is, one involving safety which is indirectly related to health care.” Id. (emphasis in original). We held that, even after West Oaks, a safety claim must still “involve a more logical coherent nexus to health care” than just “[t]he simple fact that an injury occurred on a health care provider’s premises . . . .” Id. at *3.3 Most Texas appellate courts that have considered the issue have also adopted this narrow construction of West Oaks. See E. El Paso

Physicians Med. Ctr., L.L.C. v. Vargas, No. 08-13-00358-CV, 2014 WL 5794622, at *1, *3 (Tex. App.—El Paso Nov. 7, 2014, pet. filed) (holding no HCLC where plaintiff was injured after hospital’s automatic doors malfunctioned and closed on her prematurely); Methodist Healthcare Sys. of San Antonio, Ltd., LLP v. Dewey, 423 S.W.3d 516, 519 (Tex. App.—San Antonio 2014, pet. filed) (holding that a “garden-variety slip and fall case” on hospital grounds but “untethered” from health care is not an HCLC); Weatherford Tex. Hosp. Co., L.L.C. v. Smart, 423 S.W.3d 462, 463 (Tex. App.—Fort Worth 2014, pet. filed) (holding no HCLC where plaintiff slipped on a puddle of water in the hospital lobby after visiting a patient); Williams v. Riverside Gen. Hosp., Inc., No. 01-13-00335-CV, 2014 WL 4259889, at *7 (Tex. App.—Houston [1st Dist.] Aug. 28, 2014, no pet. h.) (mem. op.) (“[W]e do not interpret [West Oaks] to mean that all safety claims that occur in a health care setting—even claims that are otherwise completely untethered from health care— are HCLCs.”); Christus St. Elizabeth Hosp. v. Guillory, 415 S.W.3d 900, 902–03 (Tex. App.—Beaumont 2013, pet. filed) (finding that a claim brought by an injured hospital visitor was not an HCLC where “the gravamen of [plaintiff’s] petition is that the hospital breached standards of ordinary care to a visitor present in a common area of the hospital”); Baylor Univ. Med. Ctr. v. Lawton, 442 S.W.3d 483, 487 (Tex. App.—Dallas 2013, pet. filed) (“[W]e do not believe [West Oaks] encompasses safety claims that are completely untethered from health care.”); Good Shepherd Med. Ctr.-Linden, Inc. v. Twilley, 422 S.W.3d 782, 788–89 (Tex. App.—Texarkana 2013, pet. denied) (plaintiff was injured when he fell from a ladder attached to hospital building, and again when he tripped and fell over “a mound of hardened cement” on hospital property; court held that “‘safety’ claims completely unrelated to health care are . . . excluded from the ambit of the

legislated scope of the TMLA”)4; but see E. Tex. Med. Ctr. Reg’l Health Care Sys. v. Reddic, 426 S.W.3d 343, 348 (Tex. App.—Tyler 2014, pet. filed) (holding, where plaintiff was a visitor who slipped in the hospital lobby, that the claim is an HCLC); Ross v. St. Luke’s Episcopal Hosp., No. 14-12-00885-CV, 2013 WL 1136613, at *1 (Tex. App.— Houston [14th Dist.] Mar. 19, 2013, pet. granted) (mem. op.) (broadly construing West Oaks as extending the scope of the TMLA to any “allegation pertaining to safety” and finding, “[c]ompelled by stare decisis,” that a “garden-variety slip and fall case” was an HCLC).5

B. Analysis VRMC argues on appeal that, under West Oaks and Mejia, Camacho’s claim is an HCLC because it is a safety claim that is at least “indirectly related” to health care.6 We agree. It was established through the affidavits of Loya and Camacho that the sliding doors which caused the injury were part of a system designed to prevent the abduction of newborn infants from the hospital’s nursery. The doors’ automatic closing function, which is the mechanism that injured Camacho and forms the gravamen of her claim, can be considered an “act” performed by a “health care provider”—i.e., the hospital—“for, to, or on behalf of a patient”—i.e., new mothers and/or their infant children—“during the patient’s medical care, treatment, or confinement.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(10) (defining “health care” 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

(plaintiff radiology technician was injured while assisting a nurse in taking a portable chest x-ray of a patient), and CHCA West Houston, L.P. v. Shelley, No. 14-13-00499-CV, 2014 WL 3429478, at *1, *5 (Tex. App.—Houston [14th Dist.] July 15, 2014, pet. filed) (plaintiff hospital secretary slipped and fell while stepping onto a floor mat).

CODE ANN. § 74.001(13) (West, Westlaw through 2013 3d C.S.). We therefore do not consider whether Camacho’s claim alleges a “departure from accepted standards of medical care [or] health care.” Id. behalf of a patient during the patient's medical care, treatment, or confinement”); see also id. § 74.001(12)(A)(vii) (defining “health care provider” as including a “health care institution”); id. § 74.001(11)(G) (defining “health care institution” as including a hospital).

Therefore, Camacho’s claim complains about a safety function which is at least indirectly related to “health care” as defined in the statute. See Mejia, 2013 WL 4859592, at *2.

Camacho contends that we are bound under Mejia to conclude that her claims are “untethered” to health care and therefore not HCLCs. Mejia, like Camacho, was a hospital visitor and claimed that the hospital was negligent in failing to maintain the premises in a reasonably safe condition. See id. at *1. But Mejia is distinguishable because the safety claim at issue in that case did not relate, indirectly or directly, to any act defined as “health care.” See id. Mejia alleged that the hospital was negligent in failing to ensure its floors were clean; however, there was no indication that the floors at issue were in a patient’s room or that the cleaning of the floors at issue was related, directly or indirectly, to any act or treatment that should have been performed for, to, or on behalf of a patient during the patient’s treatment. See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(10).

Here, on the other hand, Camacho’s safety claim is at least indirectly related to the operation of the infant abduction prevention system, and that system falls under the statute’s expansive definition of “health care.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(10). Camacho’s claim is also distinguishable from the one at issue in Vargas, which also arose out of a malfunctioning automatic door in a hospital, because there was no allegation in Vargas that the door at issue in that case was related in any way to an act defined as health care. See 2014 WL 5794622, at *1.

Camacho further argues that it would be “futile” to require an expert report in this case because “it would be nearly impossible for [Camacho] to find a qualified expert under the TMLA to prepare an expert report that would be relevant to her premises liability claim.” See Twilley, 422 S.W.3d at 789 (noting that requiring an expert report would be futile because “it would be terribly difficult, if not impossible, to find a qualified expert under the statute who was also competent to opine on the relevant standards of care”). She asserts that, considering the nature of her claim and the qualification requirements for experts under the statute, see TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(b)(2), she “would need to serve a report prepared by an expert who practices ‘door medicine’—a health care expert who is also competent to opine about matters in the field of mechanical door operation and maintenance.” She notes that, according to the phone book pages introduced as evidence at the dismissal hearing, “[n]o physician in the area meets those qualifications.” Finally, Camacho argues that, “when construing a statute, . . . all parts of the statute must be given effect, and it must be read in the light of other statutes on the same subject,” Hunter v. Whiteaker & Washington, 230 S.W. 1096, 1097 (Tex. Civ. App.—San Antonio 1921, writ ref’d), and that, when sections 74.351, 74.402, and 74.001(10) are read together, “it is clear that the expert report requirement applies only to claims related to diagnosis, care, or treatment of illnesses, injuries, or health conditions.” See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.001(10) (defining “health care”), 74.351 (expert report requirement), 74.402 (qualification requirements for experts).

We are sympathetic to Camacho’s concerns regarding the futility of requiring an expert report in this case and regarding the construction of the statutory scheme. In fact, in light of the requirements for experts set forth in the statute, we observe that it may well

be impossible for Camacho, due to the nature of her claim, to produce a fully compliant expert report. Section 74.351, which sets forth the expert report requirement, defines “expert” as (A) with respect to a person giving opinion testimony regarding whether a physician departed from accepted standards of medical care, an expert qualified to testify under the requirements of Section 74.401; (B) with respect to a person giving opinion testimony regarding whether a health care provider departed from accepted standards of health care, an expert qualified to testify under the requirements of Section 74.402; (C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence; (D) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care for a dentist, a dentist or physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence; or (E) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care for a podiatrist, a podiatrist or physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence.

Id. § 74.351(r)(5) (emphases added). None of the five definitions that appear in this statute apply to a person giving opinion testimony about whether a health care provider or physician “depart[ed] from accepted standards of . . . safety,” and the list does not state that it is non-exclusive. Arguably, then, any person giving opinion testimony regarding whether a health care provider departed from safety standards cannot be an “expert” and thus would be incapable of providing a compliant report. See id.

Section 74.402 further states that, in an HCLC against a health care provider, an “expert” must “ha[ve] knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim” and must be “qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.” Id. § 74.402(b)(2), (3).7 Again, the statute explicitly contemplates only claims based on the “departure from accepted standards of . . . health care” and does not contemplate safety claims. Moreover, section 74.402 explicitly contemplates only claims that “involve” the “diagnosis, care, or treatment” of an “illness, injury, or condition.” See id. § 74.402(b)(2). Camacho’s claim does not implicate the failure of VRMC to properly diagnose, care, or treat an illness, injury, or condition; and yet it falls within the unambiguously broad statutory definition of HCLC.8

See id. § 74.351 (West, Westlaw through 2013 3d C.S.). Under that section, an “expert report” must be written by an “expert” and an “expert” must qualify under one of the five definitions, and the trial court has no discretion to depart from those rules. See id. Arguably, though Camacho does not accuse VRMC to failing to properly diagnose, care, or treat an illness, injury, or condition, her claim nevertheless “involves” the care of new mothers and infants. See id. § 74.402(b)(2) (explicitly contemplating only claims that “involve” the “diagnosis, care, or treatment” of an “illness, injury, or condition”). If that were so, a health care provider that “has knowledge of accepted standards of care for health care providers” in caring for new mothers and infants would qualify as a standard-of-care expert under the TMLA. See id. (stating that an “expert” must “ha[ve] knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim”). Still, the report authored by such an expert would also need to “provide a basis for the trial court to conclude that the plaintiff’s claims have merit” in order to qualify as an expert report under the TMLA. Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012). A person that qualifies as an expert due to their knowledge of the standards of care for new mothers and infants is unlikely to also have the expertise necessary to show “that the plaintiff’s claims have merit” where, as here, the claims involve the technical operation of a piece of equipment that is unrelated to the practice of medicine.

Though we are troubled by this result, we are constrained by the plain language of the statute and by binding precedent. As noted, the TMLA contains an extremely broad definition of “health care” which unambiguously includes “any act” performed by a hospital “for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Id. § 74.001(10) (emphasis added). The definition of HCLC is also extremely broad and is not limited, implicitly or explicitly, to those claims for which compliant expert reports may be feasibly obtained. See id. § 74.001(13). Further, the Texas Supreme Court has explicitly stated that a claim may be an HCLC even when no expert testimony is necessary to prove the merits of the claim at trial. Tex. W. Oaks, 371 S.W.3d at 182 (citing Murphy, 167 S.W.3d at 838). The high court has also clearly held that a claim for departures from accepted standards of safety may be an HCLC even if it is not directly related to health care. Id. Even if we were to find these tenets of law to be incorrectly reasoned, we would have no choice but to follow them. See City of Mission v. Cantu, 89 S.W.3d 795, 809 n.21 (Tex. App.—Corpus Christi 2002, no pet.) (“As an intermediate appellate court, we are bound to follow the expression of the law as stated by the Texas Supreme Court.”).

Texas appellate justices have urged the supreme court and the Legislature to resolve the conflict among the courts of appeal regarding the construction of West Oaks.

See Watson v. Good Shepherd Med. Ctr., No. 06-14-00025-CV, 2015 WL 222331, at *6 (Tex. App.—Texarkana Jan. 15, 2015, no. pet. h.) (Moseley, J., concurring) (“I would call upon those who have more power than the intermediate appellate courts possess to somehow resolve this question in some way that is easily discernable. There is a need for a ‘bright red line’ for the public and the profession to employ.”); Reddy v. Veedell, No.

01-14-00309-CV, 2014 WL 4651211, at *5 (Tex. App.—Houston [1st Dist.] Sept. 18, 2014, pet. filed) (Massengale, J., concurring).9 We join those justices in urging a resolution to the conflict; and we also respectfully urge the Legislature to amend the TMLA so that the statute no longer encompasses claims for which the acquisition of a compliant expert report is essentially impossible.10 III. CONCLUSION Camacho’s claim alleges a departure from standards of safety that are at least indirectly related to health care because they concern the infant abduction prevention system, which is an “act” done “for, to, or on behalf of” patients during their treatment.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(10). We therefore conclude, in accordance with binding precedent, that Camacho’s claim is an HCLC under the statute as construed by the Texas Supreme Court in West Oaks and by this Court in Mejia. We sustain VRMC’s issue.

The trial court’s judgment denying VRMC’s motion to dismiss is reversed, and we remand for the award of attorney’s fees and for further proceedings consistent with this opinion. See id. § 74.351(b)(1).

DORI CONTRERAS GARZA, Justice Delivered and filed the 9th day of April, 2015.