Lead Opinion
delivered the opinion of the Court.
In this case a visitor to St. Luke’s Episcopal Hospital sued the hospital on a premises liability theory after she slipped and fell near the lobby exit doors. The issue is whether her suit is a health care liability claim under the Texas Medical Liability Act. See Tex. Civ. Prac. & Rem. Code ch. 74. The trial court and court of appeals concluded that it is. We hold that it is not, because the record does not demonstrate a relationship between the safety standards she alleged the hospital breached — standards for maintaining the floor inside the lobby exit doors — and the provision of health care, other than the location of the occurrence and the hospital’s status as a health care provider.
We reverse and remand to the trial court for further proceedings.
Lezlea Ross accompanied a friend who was visiting a patient in St. Luke’s Episcopal Hospital. Ross was leaving the hospital through the lobby when, as she approached the exit doors, she slipped and fell in an area where the floor was being cleaned and buffed. She sued St. Luke’s and Aramark Management Services, a company that contracted with the hospital to perform maintenance services, on a premises liability theory. Aramark is not a party to this appeal.
After Ross filed suit we decided Texas West Oaks Hospital, L.P. v. Williams,
The trial court granted the motion to dismiss. The court of appeals affirmed. Ross v. St. Luke’s Episcopal Hosp.,
Ross asserts that the lower courts erred because claims based on departures from “accepted standards of safety” do not come within the provisions of the TMLA unless there is at least some connection between the standards underlying the allegedly negligent actions and the provision of health care, even if they are not directly related. She then argues that her claims are not HCLCs because the hospital’s alleged negligence is completely unrelated to the provision of health care.
The hospital responds with three arguments. It first urges that we lack jurisdiction. See Tex. Gov’t Code § 22.001(a)(2), (3), (6). It next asserts that even if we have jurisdiction, Ross waived the issue of whether her claim is an HCLC because she failed to properly brief and urge it in the court of appeals. Third, the hospital addresses the merits by asserting that the court of appeals correctly held that a safety standards-based claim need not be related to health care to fall within the TMLA’s provisions, but in any event Ross’s claims are related to accepted standards of patient safety because she fell inside the hospital.
We first address our jurisdiction. See Rusk State Hosp. v. Black,
II. Jurisdiction
Texas Civil Practice and Remedies Code § 51.014(a)(10) permits an appeal from an interlocutory order granting relief sought by a motion to dismiss an HCLC for failure to file an expert report. Generally, the court of appeals’ judgment is final on interlocutory appeals. See Tex. Gov’t Code § 22.225(b)(3). However, we have-jurisdiction if the justices of the court of appeals disagree on a question of law material to the decision, or if a court of appeals holds differently from a prior deci
Ross asserts that this Court has jurisdiction because the court of appeals’ opinion in this case conflicts with Good Shepherd Medical Center-Linden, Inc. v. Twilley,
In this case the court of appeals held that under Williams “a connection between the act or omission and health care is unnecessary for purposes of determining whether Ross brings an HCLC.” Ross,
III. Waiver
The hospital argues that Ross waived any challenge to her claim being classified as an HCLC by failing to argue the point or cite relevant authority in the court of appeals. We disagree.
A brief in the court of appeals “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(1). Failure to provide citations or argument and analysis as to an appellate issue may waive it. See ERI Consulting Eng’rs, Inc. v. Swinnea,
In her court of appeals brief, Ross discussed the purpose of the TMLA and asserted that classifying her claim as an HCLC would conflict with the Government Code. See Tex. Gov’t Code § 311.021(3) (providing that when a statute is enacted, there is a presumption that “a just and reasonable result is intended”). The court of appeals implicitly determined that Ross’s citations and argument were enough to avoid waiver because it addressed the issue. See Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150
IV. Health Care Liability Claims
The merits of the appeal require us to review the lower courts’ construction of the TMLA. Under such circumstances our review is de novo, Williams,
The TMLA defines a health care liability claim as:
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.
Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). This Court construed “safety” under the prior statute 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,
Rubio is not complaining about an unlocked window that gave an intruder access to the facility or a rickety staircase that gave way under her weight. All of her claims arise from acts or omissions that are inseparable from the provision of health care. We do not distinguish Rubio’s health care claims from premises liability claims “simply because the landowner is a health care provider” but because the gravamen of Rubio’s complaint is the alleged failure of Diversicare to implement adequate policies to care for, supervise, and protect its residents who require special, medical care.
Id. at 854.
The Legislature added the phrase “or professional or administrative services directly related to health care” to the definí
The next year we considered whether a psychiatric technician’s claims for injuries in an altercation with a patient were HCLCs. Williams,
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. Scoresby v. Santillan,
we fail to see how the Legislature could have intended the requirement of an expert report to apply under circumstances where the conduct of which a plaintiff complains is wholly and conclusively inconsistent with, and thus separable from, the rendition of “medical care, or health care, or safety or professional or administrative services directly related to health care” even though the conduct occurred in a health care context. See Tex. Civ. Prao. & Rem. Code § 74.001(a)(13); see also Tex. Gov’t Code § 311.021 (“In enacting a statute, it is presumed that ... a just and reasonable result is intended.... ”).
Id. at 257. Our reasoning led to the conclusion that a patient’s claim against a medical provider for assault during a medical examination is not an HCLC if the only possible relationship between the alleged improper conduct and the rendition of medical services or health care was the setting in which the conduct took place. Id.
In this case, the hospital advances two positions in support of the lower courts’ rulings and its assertion that Ross’s claim is an HCLC. First, it addresses slip and fall claims generally, and says that any slip and fall event within a hospital is directly related to health care because it necessarily is related to the safety of patients. Second, it focuses on Ross’s claim specifically and argues that her claim is related to health care because she alleges the hospital breached standards applicable to maintaining a safe environment for patients. We disagree with both positions.
As to the hospital’s first contention, even though the claims in Loaisiga were by a patient and the nature of the claims differ from Ross’s safety standards-based claim, the principle we explicated there applies here. A safety standards-based claim does not come within the TMLA’s provisions just because the underlying occurrence took place in a health care facility, the claim is against a health care provider, or both. See Loaisiga,
As to its second contention, Ross alleged that the hospital failed to exercise reasonable care in making the floor safe. The standards Ross says the hospital breached regarding maintenance of its floor may be the same as the hospital’s standards for maintaining a safe environment in patient care areas — but those may also be the same standards many businesses generally have for maintaining their floors. And the hospital does not claim, nor does the record show, that the area where Ross fell was a patient care area or an area where patients possibly would be in the course of the hospital’s providing health care services to them. Nor does the jiospital reference support in the record for the position that the area had to meet particular cleanliness or maintenance standards related to the provision of health care or patient safety. See Ollie,
The TMLA does not specifically state that a safety standards-based claim falls within its provisions only if the claim has some relationship to the provision of health care other than the location of the occurrence, the status of the defendant, or both. But the Legislature must have intended such a relationship to be necessary, given the legislative intent explicitly set out in the TMLA and the context in which “safety” is used in the statute. We said as much in Loaisiga.
Thus, we conclude that for a safety standards-based claim to be an HCLC there must be a substantive nexus between the safety standards allegedly violated and the provision of health care. And that nexus must be more than a “but for” relationship. That is, the fact that Ross, a visitor and not a patient, would not have been injured but for her falling inside the hospital is not a sufficient relationship between the standards Ross alleges the hospital violated and the hospital’s health care activities for the claim to be an HCLC. As we recognized in Loaisiga, “[i]n some instances the only possible relationship between the conduct underlying a claim and the rendition of medical services or healthcare will be the healthcare setting (i.e., the physical location of the conduct in a health care facility), the defendant’s status as a doctor or health care provider, or both.”
As this case demonstrates, the line between a safety standards-based claim that is not an HCLC and one that is an HCLC may not always be clear. But certain non-exclusive considerations lend themselves to analyzing whether such a claim is substantively related to the defendant’s providing of medical or health care and is therefore an HCLC:
1. Did the alleged negligence of the defendant occur in the course of the defendant’s performing tasks with the purpose of protecting patients from harm;
2. Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special, medical care was implicated;
3. At the time of the injury was the claimant in the process of seeking or receiving health care;
4. At the time of the injury was the claimant providing or assisting in providing health care;
5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider;
6. If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; or
7.Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety-related requirements set for health care providers by governmental or accrediting agencies?
Measuring Ross’s claim by the foregoing considerations, it is clear that the answer to each is “no.” The record does not show that the cleaning and buffing of the floor near the exit doors was for the purpose of protecting patients. Nor does the record reflect that the area where Ross fell was one where patients might be during their treatment so that the hospital’s obligation to protect patients was implicated by the condition of the floor at that location. Ross was not seeking or receiving health care, nor was she a health care provider or assisting in providing health care at the time she fell. There is no evidence the negligence alleged by Ross was based on safety standards arising from professional duties owed by the hospital as a health care provider. There is also no evidence that the equipment or materials used to clean and buff the floor were particularly suited to providing for the safety of patients, nor does the record demonstrate that the cleaning and buffing of the floor near the exit doors was to comply with a safety-related requirement set for health care providers by a governmental or accrediting authority.
V. Conclusion
Under this record Ross’s claim is based on safety standards that have no substantive relationship to the hospital’s providing of health care, so it is not an HCLC. Because her claim is not an HCLC, she was not required to serve an expert report to avoid dismissal of her suit. We reverse the judgment of the court of appeals and
Notes
. Hilco Elec. Co-op. v. Midlothian Butane Gas Co.,
Concurrence Opinion
concurring.
I join the Court’s opinion and agree that the claims asserted in this case have no connection to the provision of health care. I write separately, however, to emphasize my concern that a statute intended to address the insurance crisis stemming from the volume of frivolous medical-malpractice lawsuits has become a nebulous barrier to what were once ordinary negligence suits brought by plaintiffs alleging no breach of any professional duty of care.
In Texas West Oaks Hospital, LP v. Williams, the Court held that a plaintiffs claim against a physician or health care provider may constitute a health care liability claim subject to the Texas Medical Liability Act even where no patient-physician or patient-health-care-provider relationship exists between the parties.
The Court holds, and I agree, that a cause of action against a health care provider for a departure from safety standards is a health care liability claim only if it has a “substantive relationship” with the provision of medical or health care.
As we recognized in Diversicare, the duty of care that health care providers owe to their patients is fundamentally different from the duty of care owed to, say, employees or visitors.
In my view, focusing a safety-standards claim on the duty health care providers owe to their patients ensures that Diversi-care ⅛ hypothetical visitor-assault and rickety-staircase claims do not fall under the Medical Liability Act’s umbrella. It also ensures that a covered cause of action will “implicate[] the provision of medical or health care” in accordance with the Court’s holding in this case.
. “Substantive” is defined as “considerable in amount or numbers: substantial.” Webster’s Third New Int’l Dictionary 2280 (2002).