Marks v. St. Luke's Episcopal Hospital

attacking judg- the condemnation erally

ment).

III. Conclusion takings

The Brownlows’ suit states have and the State does not sover- immunity from it. affirm the

eign appeals’ judgment.

court of We remand to proceedings. court for further trial participate did not

Justice GUZMAN

the decision. MARKS, Petitioner,

Irving W. HOSPITAL,

ST. LUKE’S EPISCOPAL

Respondent.

No. 07-0783.

Supreme Court of Texas.

Argued 2008. Sept. Aug.

Decided Doyle,

James E. Nancy Kimberly Bo- hannon, Doyle Restrepo Harvin & Rob- bins, L.L.P., P. Doyle, Doyle Michael Raiz- ner, L.L.P., Hoesl, Nancy Kimberly Doyle Restrepo Robbins, L.L.P., Harvin & Hous- ton, TX, for Petitioner. Boyd Jr., Davidow,

L. Jennifer H. Smith LLP, Houston, TX, Vinson & Elkins Respondent.

Justice MEDINA delivered the Court’s judgment opinion, and an in which Justice joined, HECHT and which Justice WAINWRIGHT, Justice JOHNSON and joined WILLETT I & Justice Parts IV. grant the motion for rehearing, our previous opinion judg-

withdraw statutory definition of a health under August ment of substitute claim, we affirm. following place. in its In we must decide whether a this ease I fall, allegedly by caused hospital patient’s Irving surgery underwent back Marks bed, hospital is a a defective or unsafe Episcopal Hospital. at St. Luke’s Seven claim liability under former later, his days recuperating while still article 4590i of the Revised Civil Statutes.1 surgery, hospital Marks fell room. as the Article also known Medical alleges by He that this fall was caused Act, Liability Improvement Insurance hospital footboard on his which col- bed claims, provides that health attempted to it lapsed push as he use to expert report, may not accompanied by the bed to a standing posi- himself from days be 180 after prejudice dismissed with tion. period

filing, although grace is available that hospital, alleging Marks sued the under certain limited circumstances. The fall. negligence its contributed to cause his that trial court concluded bed complained negli- He that the claim here was a health care claim (1) failing train gent supervise in: which it then because of dismissed (2) properly, nursing failing staff timely file a expert failure to provide him the assistance re- with he also report. The trial court denied the activities, (3) quired daily living failing grace patient’s request period. provide him with safe environment (4) initially appeals disagreed recover, court of with which to a hos- providing court, concluding pital negligently the trial been pa- that had assem- by bled em- hospital’s and maintained tient’s claim was a health care liability ployees. claim. See v. St. Luke’s Episcopal 255,

Hosp., 177 260 (Tex.App.- S.W.3d The trial court concluded 2005), vacated, Houston [1st Dist.] petition asserted (Tex.2006). Following S.W.3d 575 our re- under the claims as defined Medical Liabil- case, however, mand of the the court ity Improvement Act and Insurance changed its mind and affirmed the trial (“MLIIA”). See justice one judgment, 4590i, 1.03(a)(4) court’s with dissent- § lia- (defining health care claim).2 ing. agree MLIIA, 396. Because we bility a health Under cause action claim must be underlying falls substantiated R.S., 44, 45, 1997, 1396, Liability Leg., §§ 1. See Medical Im- ch. Insurance 75th Texas, 30, 1977, 5202, provement May 5249, Act Act of by 1997 xe?L Laws Gen. amended 817, R.S., Leg., 65th ch. 1977 Tex. 1999, R.S., 242, Gen. Laws 13, May Leg., Act of 76th ch. 2039, 18, 1979, by May amended R.S., Act of 66th 1104, repealed by 1999 Tex. Gen. Laws Act 596, Leg., ch. Tex. Gen. Laws 204, 2, 2003, R.S., Leg., June 78th ch. 1259, 26, 1989, by May amended Act of 71st 10.09, 847, § Gen. 2003 Tex. Laws R.S., 1027, 27, 28, Leg., §§ ch. 1989 Tex. 4128, 4145, by Gen. Laws amended Act of repealed filing 2. Article after 4590i was 21, R.S., 1991, 14, 284, Leg., March 72d ch. supra. this case. See n. Similar medical 42, 222, by 1991 Tex. Gen. amended Act Laws Chapter liability legislation is now codified in 25, R.S., 1993, 625, May Leg., ch. 73d 74 of the Texas Civil Practice and Remedies 2347, by May Tex. Gen. amended Laws Act of Code, affecting Sep- actions filed on or after 5, 1995, R.S., 140, Leg., 74th ch. 1995 Tex. 1, tember 2003. See Tex. Civ. Prac. & Rem Code 1, by Gen. Laws Act of amended June §§ 74.301-.303. R.S., Leg., 75th ch. 1997 Tex. by Gen. Act Laws amended of June by timely expert report. filed negligent in failing sufficient 13.01(d). Because Marks failed to file a staff supervision prevent the as timely expert report, grant- the trial court sault. Id. at 845. The trial court held the hospital’s ed the motion to barred dismiss. the MLIIA’s two-year statute of granted limitations and sum reversed, appeals initially The court of mary judgment for the nursing home. Id. concluding allegations that Marks’s con reversed, The court of appeals however, cerned “an unsafe condition created concluding the suit was not a statutory item of furniture” and thus related to health care liability but rather a “premises liability, not health care liabili common law negligence claim to which the Marks, ty[.]” at 259. The MLIIA’s provision limitations did not ap hospital appealed, filing petition its for re ply. Partner, Rubio v. Diversicare Gen. view a days few before opinion our in Inc., 82 S.W.3d 783-84 (Tex.App.-Cor Partner, Diversicare General Inc. v. Ru pus 2002), rev’d, Christi 185 S.W.3d 842 bio, (Tex.2005), 185 S.W.3d 842 another (Tex.2005). disagreed, We holding that involving scope case of a health care the law suit was indeed a health care liability claim under the MLIIA. After liability claim by as determined the trial briefing, granted full we hospital’s pe Diversicare, court. 185 S.W.3d at 849. tition without reference to the merits and nursing We noted that provide homes remanded the case to the appeals court of services to their residents that include su for light its reconsideration in of Diversi pervision daily activities, routine exami care. St. Luke’s Episcopal Hosp. v. nations, Marks, monitoring of the (Tex.2006) physi residents’ 193 S.W.3d condition, cal and curiam). mental administering (per medication, “and meeting the fundamental remand, Following our a divided court of care needs of the residents.” Id. We appeals affirmed the trial judgment court’s further noted that these services are pro timely dismissal for want of a filed staff, vided professional and level “[t]he expert report, concluding that Marks had types and of health provided care services only asserted liability health care claims. vary capabilities, with the needs and both justice S.W.3d at 402. One dissented mental, physical and patients.” part, in urging that Marks’s fourth claim (citing 849-50 County Harris Harris concerning the defective footboard was a Dist., (Tex.Civ. Hosp. premises liability claim rather than a writ)). App.-Houston [1st no Dist.] liability claim under the MLI- services, We then reasoned that those in IA. J., Id. at 403 (Jennings, dissenting in cluding monitoring protection part). granted petition for the patient, as well as training staffing review to consider the issue. policies, “integral were components of Di versicare’s rendition of health care ser II Id. at 850. vices[.]” Several of the allegations in Marks’s trial court pleadings are similar to those in Marks’s first failing three claims— Diversicare, a case which we concluded properly train supervise agents, its that a nursing-home patient’s servants, sexual employees, as- nursing staff sault patient him; another awas health care when caring failing provide liability claim under the MLIIA. Diversi- him with the assistance required he care, 185 S.W.3d at allegations daily activities; 842. The living and failing pro there were that the nursing home was vide him a safe environment in which to treatment, similarly or some other departure treatment and

receive recover— and staff train- patient supervision accepted involve standards of medical care type And, third, this of claim ing. As the de- safety. health care or departure accepted act, omission, asserts departure fendant’s or other care and is standard of health therefore inju- proximately must cause the health care claim under the MLI- ry dispute here is over the or death. IA. element, is, hospi- second that whether alleged tal’s failure to argues

Marks that his bed claim certain stan- implicates safe bed different, He alleges however. that the in the definition of a dards embodied negligent either the assem- claim. bed, both, bly or maintenance of the defectively attached footboard provides The statute some information condition in presented an unsafe the na- its defini- through about these standards premises ture of a claim rather tions of medical care and health care. claim. than a health prac- MLIIA as the defines “medical care” in- submits that his defective bed claim medicine, including diagnosis tice of the ordinary negligence rather than a volves physician, and treatment a licensed accepted from standards of departure “any care” as act or treatment “health safety. health care or furnished, or performed or which should furnished, performed by any have been or hospital responds The that Marks’s hos- for, to, provider health care or on behalf of pital part bed was an inextricable of his care, patient during patient’s a medical during inpatient care and treatment treatment, or confinement.” surgery. convalescence from back As (6). 1.03(a)(2), such, § any submits that defect These definitions indicate bed, care, any danger posed physicians provide in the it to the then that medical patient, implicated departure a from ac- in- providers, and that health care which cepted safety of health care or hospitals pro- cludes and their employees, accordingly a health A vide other health care services. claim under the MLIIA. departure accepted “claimed from stan- of medical care care” thus dards or health The MLIIA defines a “health care liabil- implicates the standards of professional ity claim” as: respective givers. these Diversi- See a against a cause of action health care care, (noting 185 S.W.3d at 850 that the treatment, provider physician lack ordinary “health care applies standard treatment, or other claimed departure experienced care of trained and medical accepted from standards medical care professionals pa- to the treatment safety proxi- or health care or which tients”). injury in mately results to or death of patient, patient’s whether statute, however, does not define or cause of action sounds tort or “safety” term pro and thus does' not contract. insight meaning vide into the of a similar 1.03(a)(4). 4590i, departure accepted “claimed stan § Stat. art. Tex.Rev.Civ. definition, ... safety,” dards of We noted this Under this health care First, observing while that the inclu claim consists of three elements. never physician accepted safety or a health care sion of standards of provider must Second, scope theless be expanded be the defendant. suit must be statute’s treatment, yond about lack of standards of medical care and health Diversion,fe., care. at 855. “polestar intent as the of statutory con- expanded struction”). How much it the statute’s scope say

we did not because the claim there Legislature’s purpose stated in en- a departure involved stan acting article 4590i remedy was to “a medi- safety. dards of health care more so than cal malpractice insurance crisis” in Texas claim, however, present Id. Marks’s fo and its “material adverse effect on the element, is, cuses on the that wheth delivery of medical and health care ser- patient injury er a allegedly caused vices Texas[.]” Tex.Rev.Civ. Stat. art. defective represents 4590i, 1.02(a)(5)-(6). § This concern per- departure “claimed from accepted stan vades the statute which is replete with safety1* dards of ... within the statute’s references to liability, care, medical definition of a “health claim.” malpractice, all of which implicate See medical judgments or health care 1.03(a)(4) made by (defining See, 13.01(r)(5)- claim). professionals. e.g., id. (6) (requiring expert to have knowledge of Ill diagnosis, treatment); The nature safety-related Aguirre, see also Aviles v. Legislature (Tex.2009) curiam) intended to include under (per (noting that

the MLIIA is a matter of statutory con virtually legislative all of the findings ex- struction, legal question we review de pressed in the statute relate to the cost of City novo. Morning Garland v. Dallas insurance). malpractice MLIIA, The how- of News, 351, (Tex.2000). 22 357 S.W.3d ever, defines a health claim statute, construing When words and not in only terms of the specific standards phrases are read in context and construed of medical care and health but also in according grammar to the rules of of apparently general terms more stan- usage. common 103(a)(4). Tex. Gov’t § Code safety. dard of 311.011(a). § Words that are not defined do not “safety” consider the term given are their ordinary meaning unless a isolation, however, but the context of the contrary is apparent intention from the Boerne, statute. City San Antonio v. of context, or unless such a construction leads 22, (Tex.2003). 111 Moreover, S.W.3d 25 City absurd results. Rockwall v. principle ejusdem generis warns 621, (Tex. Hughes, 246 S.W.3d 625-26 against expansive interpretations of broad 2008). possible, Legislature’s When language immediately follows narrow intent plain is drawn from the meaning of terms, specific and counsels us to con chosen, Shumake, the words State v. 199 strue the in light broad of the narrow. See 279, (Tex.2006), giving S.W.3d 284 effect to Coop. Hilco Elec. v. Midlothian Butane all words so that none of the statute’s Co., (Tex.2003) (ob Gas 111 S.W.3d 81 language is surplusage. treated as Cont’l serving that when general words of a na Cas. Ins. Co. v. Functional Restoration ture are used connection with the Assocs., (Tex.2000). desig 19 S.W.3d 402 particular objects, nation of persons, or however, goal, Our ultimate is to under things, meaning general of the words stand the Legislature’s intent apply should conform to the more particular that intent des according pur to the statute’s pose. 312.005; ignation). principle is sound advice see also Tex. Gov’t Code City Barfield, every patient injury LaPorte v. 898 here as in a hospital, S.W.2d (Tex.1995) cause, 292 (referring legislative regardless impli- be said to safety thing, causing injury patient, in the broad sense of tion or to the

cate inseparable integral part the word. is an of the patient’s care or treatment. however, Legislature, could not The determination of whether a cause of safety have intended that standards of en injuries action is a health care claim there- compass negligent patients. all requires fore an examination of the claim’s interpretation safety Such a broad underlying nature. Cmty. Hosp. standard would render the statute’s more Garland (Tex.2004). Rose, v. 156 S.W.3d specific standards of medical and health Diversicare, As we indicated in it is the unnecessary, and we do “not read gravamen poiutless if not the form of the statutory language to be it is susceptible pleadings, that controls reasonably of another con this determination. City of LaPorte, struction.” 898 S.W.2d at See 185 S.W.3d at 854. Redmon, underlying Whether the claim (citing Coup. Chevron involves (Tex.1987)). Moreover, provider’s negligent act or omission, patient’s or the given object exposure of the statute and the to some risk, concern, safety Legislature’s express appar relationship it is other between Legislature injury causing ent that the did not intend for event and the safety every standards of to extend to care or treatment must be substantial and negligent injury might befall a direct for the cause of action to be a health pa tient. See under the MLIIA. See 1.02(b)(3) Cmty. Hosp., (reciting Legislature’s intent Garland operate (observing complaint that the statute to control must concern an act malpractice unduly inseparable part insurance costs without or omission that “is an services”). restricting patient’s rights). Applying of the rendition of health care principle ejusdem generis, we con alleges injury that his here was clude that standards of must be hospital’s improper caused mainte- light construed in of the other standards of assembly nance or of his bed. At care, medical and health standards that core, this claim alleges the failure of a directly are related to the care piece equipment provided during and treatment. said as much in Diver- We inpatient equip- Marks’s care. Medical sicare. specific particular patient’s ment to a care or treatment integral inseparable is an every noted there that not accidental We part of the health provided. care services injury setting to a in a health care the unsafe or When defective condition of liability would constitute a health care equipment injures that the patient, under article 4590L gravamen resulting cause of action (suggesting S.W.3d at 854 that unsafe con- a health liability is care claim. provision ditions unrelated to the of health might care not be a health liability care IV

claim). We further observed that stan- dards of care health Although care were we conclude that Marks’s implicated negligent when the act or liability, omis- claims here involve health care a inseparable integral part question sion was an concerning remains their dismiss argues rendition medical services. Diversi- al. Marks that complaint his care, 185 Similarly, 848-49. an should not have been dismissed because he implicated standard of is was entitled to time provide additional under the MLIIA expert report. when the unsafe condi- an Article generally 4590i a an requires expert claimant furnish averred that he and Marks’s attorney first days filing within 180 after the report “understood the case to be an ordinary claim. case, health not a health negligence 13.01(d). 4590i, § Stat. If claimant claim” at that time. According Doyle’s requirement, fails to with this comply affidavit, it only discovery was after directed, motion, ap- court is to award he determined that Marks had a po- also propriate costs and fees and to dismiss tential health care causing prejudice. claim with him pleadings to amend the an 13.01(e). 180-day period Id. The can be expert report. This report provided was extended, however, good cause and en- than days more after filing larged for accidents mistakes. petition. original 13.01(f), enlargement The latter (g). petition The amended divided Marks’s period. referenced in the statute as a grace headings claims under of “Negligence” and Marks contends that he was enti Liability.” “Premises original petition period grace tled this because his failure lumped had all claims under a single “Neg- expert report to file the on time an was ligence” heading. In plead- the amended accident or mistake within section ing, complaints Marks included about his 13.01(g)’smeaning. provides That section bed, supervision and his under if, day a thirty grace period after “Negligence” heading. Under hearing, the court finds the claimant’s Liability” “Premises heading, Marks com- timely expert report failure to file a awas plained about the condition of the mistake or accident rather than intentional Doyle bed. avers that until up the time he or the result conscious indifference.3 filed the amended pleading, he “believed hearing Hospital’s After motion dis presented case sounding and Marks’s for grace peri miss motion only ordinary negligence.” od, the trial court found that Marks’s fail ure accident or mistake and view, In signifi our there is no dismissed the suit. review that dis cant the original difference between missal under abuse of stan discretion the amended pleading. underlying dard. Am. Transitional Care Ctrs. of factual in both concern complaint the same Tex., Palacios, Inc. v. inadequate set of circumstances: care and (Tex.2001). supervision Hospital’s professional dangerous hospital staff and a support

In “It is grace Marks’s motion for bed. well period, attorney, liability Marks’s E. settled that a health care Doyle, James provided Doyle his affidavit. claim cannot be recast as another cause of averred that he was Marks’s action to the attorney, becoming requirements second avoid of [article lead counsel about seven months after the 185 S.W.3d at 851. 4590i].” attorney first filed the case. Doyle Determining further a pleading whether states a mistake, 13.01(g) provides: 3. Section of article 4590i or an accident the court shall Notwithstanding grant grace period days permit a any provision to other of this section, a comply if has comply claimant failed to the to claimant with that subsec- filing expert with a report] deadline the [for by tion. A motion a claimant for relief (d) by established Subsection of this section under this subsection shall be considered hearing and after the court finds that the timely any hearing if it is filed before on a failure of the claimant the claimant's (e) motion a defendant under Subsection attorney was not the intentional or result of of this section. conscious indifference but was the result of surgery, from back convalescence thus on liability depends claim Marks’s of action for substance, we that his not its form. conclude It underlying cause its the unsafe bed Doyle’s injuries allegedly affidavit what apparent from is not caused by time under article for the first claim recognize him is health caused agree a health care further the trial his client had 4590i. in refus- claim. court abuse discretion did not time for ing request additional however, the is Equally significant, expert report and accord- requisite file the explaining any evidence absence appeals’ judg- ingly affirm court expert furnish an attorney’s failure to first ment. he seven months report during the first Doyle’s sug Marks. affidavit represented filed a Justice WAINWRIGHT attorney also mistaken gests that first opinion. concurring original petition did ly believed that According to implicate article 4590L not concurring filed JOHNSON Justice affidavit, is on his Doyle’s belief based opinion, in which Justice WILLETT Affi file he inherited. review case in which HECHT joined, and Justice davits, however, person be based on must III-A, in II joined to Parts knowledge, supposition. See Tex.R. al not joined as WAINWRIGHT which Justice (“A testify not to a Evid. witness I, II, and Parts III-A. personal unless ... the witness has matter JEFFERSON filed Chief Justice matter.”). An affidavit knowledge concurring dissenting in opinion part knowledge legally personal not based GREEN, in Justice part, in which Justice Arias, Kerlin v. insufficient. GUZMAN, LEHRMANN and Justice curiam). (Tex.2008) Because (per joined. personal knowledge had no Doyle intent, lawyer’s lawyer and the first first opinion GUZMAN filed Justice explaining not his own affidavit did part. in dissenting concurring part failure, no evidence of mistake his there is WAINWRIGHT, concurring. no basis the re Justice accident and thus for Accordingly, the quested grace period. opinion plurality’s I agree with did abuse its trial court discretion that a claim for the extent it concludes grace period denying Marks’s motion alleged improper injury arising from the err in 13.01(g) under section and did not provided operation of dismissing Mark’s health care recuperation of back-sur- the care and See Stat. claims. a health care claim. gery patient is 13.01(e)(3) (dismissal prejudice is “with filings this acknowledged refiling”). the claims court, judge properly the trial trial

held governed that his Improve Liability and of hos Medical Insurance provision Because the a safe (MLIIA).1 Stat. Act See part pital inseparable join I and IV of parts 4590L2 I therefore provided during care services properly secured to in that the footboard was physician concluded his 1. Marks’s retained the bed.” Hospi- expert report Episcopal Luke’s that St. good "accepted nurs- tal violated standards Liability Improve- 2. Insurance and Medical by failing ing specifically “to ensure care” 30, 1977, Texas, May Act 65th ment Act of

667 plurality’s opinion and the cepted standards of health Court’s care and ac- judgment. agree with cepted I safety. However, standards of I Justice Johnson’s concurring opinion addressing the “health the plurality narrowly believe that too con- care” of health prong liability claims the language strues “accepted standards of our precedents, “splicing and holding that ... safety.” I also believe that Marks’s liability health care claims into a multitude suit should be dismissed for in reasons of other causes standards action with to, addition and in some instances different care, damages, procedures contrary to from, given by those the plurality. Legislature’s explicit requirements” is First, Marks’s claim single is based on a permitted. not See Part- Gen. Diversicare substantively incident and is a health care ner, Rubio, 842, Inc. v. entirety. claim its This Court (Tex.2005); also, e.g., see Cmty. Garland has consistently maintained that health Rose, 541, 543, Hosp. v. care liability claims cannot be split into (Tex.2004). I, II, I parts join therefore health care by and non-health care claims and III.A of Justice Johnson’s concurring pleading. artful The claim negligently I opinion. do not III of the part join assembling, maintaining, providing plurality’s opinion, part of Justice III.B bed should be along dismissed with concurring or address opinion Johnson’s Marks’s other allegations that unquestion- arguments dissenters’ concerning the ably assert health claims. “safety” prong of health claims3 because it is necessary Second, this the claim for improper assem- case, Diversicare, as it was not in define bling, maintaining, and providing the bed precise scope of “safety” under the claim violating accepted standards MLIIA. See S.W.3d at regardless of whether those (explaining 854-55 III.B.2 of the part actions also violated standards. opinion that an injury Third, improper claim for assem- rickety staircase or window unlocked bling, maintaining, providing the bed does not implicate the “health prong care” is a violating accepted claim for claims). of health care liability of safety regardless of whether the actions also violated health care stan- JOHNSON, by Justice Justice joined The plurality dards. reads the statute too WILLETT, by Justice HECHT narrowly scope and thus reduces the III-A, by Parts II and Justice actions “safety” covered the term I, II, WAINWRIGHT as to and III- Parts prescribed by the statute. A, concurring. fully join I parts I of the plurali- IVand Background I. ty’s opinion and the judgment. Court’s I agree parts with II opinion and III of Marks underwent surgery St. Luke’s plurality Hospital to the extent implant morphine pump into concludes Marks’s claim is a health care spinal cord after multiple previous sur- claim because it violations of ac- alleges failed to alleviate his back geries problems. Tex, R.S., Travers, Leg., ch. Laws Gen. See United States v. 514 F.2d 2, 2003, repealed (2d Cir.1974) J.) Act of June ("Cassandra- 78th (Friendly, R.S., 10.09, Leg., ch. 2003 Tex. Gen. predictions guide like in dissent are not a sure Laws 884. The ap- successor statute is majority's ruling....”). to the breadth the

plicable September to actions on or after filed 1, 2003. Tex Civ. ch. & Rem. Code Pkac. surgery, nursing After staff Pleading made II. Artful in notation his medical records that he was Court, This as the trial did court and the falling risk because his limited of appeals, court concludes that Marks’s mobility, ambulatory of his need for an allegations first three of negligence are device, assistance the fact he was on mor- claims under the Medi- phine, “Safety/Fall and Precautions” were Liability cal Improvement and Insurance being implemented. hospital’s Safe- (MLIIA). Act See former ty/Fall Precautions provisions included 1.03(a)(4).1 4590i, § That conclu- there should be “no environmental requires sion dismissal of Marks’s suit en- room, hospital hazards” in Marks’s his bed tirely because the allegation' fourth position was to be “in a low with the —that assembled, the bed applied,” negligently brakes and the “side was main- rails and tained, devices” should be used as indicat- provided and based on the —is alleges eight days ed. Marks after same facts and the damages same as the surgery and while an inpatient, still he first three. The Court has previously held and the footboard on his hospital bed fell that when a essentially cause of action is placed when he his hand on the footboard health care liability claim and a timely attempted push and himself from the expert report served, has not been standing position. bed to a claim should be entirety dismissed in its

Marks sued St. Luke’s. He alleged the regardless pled. of how the claim is That negligent was in following re- should occur here. (1) spects: failing to properly train and Partner, In Diversicare General Inc. v. supervise hospital employees in how to concurring Rubio the and dissenting jus (2) prevent injuries; falls and failing to tices concluded that the victim of a sexual provide Marks with the assistance he re- nursing assault at a home asserted a (3) activities; quired daily living failing premises liability against nursing him with a safe environment independent home of her health care liabil recover; which to receive treatment and (4) (Tex. ity 842, claim. providing and him with a 857-58 bed 2005) (Jefferson, C.J., negligently had been assembled and concurring part maintained hospital’s employees or dissenting part); id. at 861-66 nursing staff. (O’Neill, J., dissenting). reject The Court ed that view because it open “would timely failed to an expert file splicing door to health care liability claims report and the trial court dismissed his into a of other multitude causes of action suit. The appeals court of affirmed. 229 with damages, pro justice S.W.3d 396. One dissented on the contrary cedures to the Legislature’s basis that the claim ex negligently assem- plicit bling, maintaining, requirements. It is well providing settled that was not a health care liability claim. Id. at such artful pleading recasting J., 403 (Jennings, dissenting in part). 854; permitted.” claims is not Id. at see Liability 1. Medical Improve- previous Insurance article and re-codified it Texas, R.S., Leg., ment Act of 65th ch. chapter in 2003 74 of the Texas Civil 1.03, 1977 Tex. Gen. Laws re- Practice and Remedies Code. Because article 2, 2003, R.S., pealed by Leg., Act of June 78th case, govern 4590i continues to this citations 10.09, ch. 2003 Tex. Gen. Laws are to the former article rather than the Civil pending, 884. While this case Legis- Practice and Remedies Code. MLIIA, repealed lature parts amended

669 835, case, Russell, 167 ed his the are Murphy also v. S.W.3d substantive facts (“[A] (Tex.2005) injury claimant cannot es- his arises 838 from health care liabili- statutory ty claim Legislature’s by the scheme and he should not to cape be allowed Cmty. Hosp. v. avoid pleading.”); application by finding artful Garland the MLIIA (Tex.2004) Rose, 541, way plead 156 S.W.3d 543 another to dam- (“Plaintiffs pleading ages. cannot use artful requirements the MLIIA’s when the

avoid Safety III. Health Care and of the suit is a health care essence claim.”). I would adhere to the Court’s bed furnished to Marks holding the language and reaffirm the integral inseparable part was an Court used in Diversicare and other cases health care St. he received from Luke’s. rejecting by pleadings. claim-splitting St. Luke’s asserts that impli- Marks’s suit Otherwise, door opened the will be ma- cates both health inventive, artful nipulated, pleadings by care and the referenced MLI- require- the MLIIA designed avoid IA. I agree.

ments and limitations. In determining whether the MLIIA en-

By failing claim-splitting to -address the claims, compasses Marks’s we use well- situation, opin- aspect plurality’s this statutory established construction rules. uncertainty ion in the bench create Courts give should ascertain and effect to bar as whether is claim-splitting Legislature’s as expressed by intent permissible. And such uncertainty almost E.g., language the statute. Entergy assuredly will lead to more extended and States, Summers, Inc. v. Gulf expensive appellate pro- trial and court 433, (Tex.2009); Shumake, 437 State 199 ceedings to determine whether a 279, (Tex.2006) (“[W]hen S.W.3d possi- pleadings assert health care ble, [legislative we discern intent] from the claims, claims, non-health chosen.”). meaning plain of the words both; both, and if Ex- which which. prime principle Legisla- is “the words [the proceedings in- tended and associated guide ture] chooses should be surest costs, including creased economic settle- legislative Fitzgerald intent.” See v. Ad- litigation expense, ments to are a avoid Inc., Spine vanced Sys., Fixation significant part Legislature what 864, (Tex.1999). Only S.W.2d when through intended to avoid enactment of ambiguous those are do we words “resort the MLIIA. See Tex.Rbv.Civ. to rules of construction or extrinsic aids.” 1.02(b)(2);2 § see also id. Nash, 914, In re Estate 1.02(b)(1). § (Tex.2007). prescribed We use definitions Legislature any

The Court should make clear it is not technical or abandoning position meaning that when the sub- have particular words ac- of a patient’s damages quired, stance claim for but otherwise we construe stat- statutory within according plain comes definition of a ute’s to their words contrary then the MLIIA common meaning unless inten- applies plaintiffs against to all apparent tion is from the context or unless provider the health care based on that such a leads to nonsensical or construction Here, injury. plead- no matter how Ltd. v. P’ship, absurd results. FKM Bd. R.S., 2, 2003, Liability Improve- pealed Leg., 2. Medical and Insurance Act of June 78th Texas, R.S., 10.09, Leg., ment Act of 65th ch. ch. Tex. Laws Gen. 1.02, 1977 Tex. Gen. Laws re- 670 complained inseparable Houston 255 of Regents Sys., omission is Univ. of of

of (Tex.2008); ser- part see of the rendition of health care 683 also Flem- S.W.3d Diversicare, 848; Tex., Rylander, at Inc. v. 6 vices.” 185 S.W.3d ing Foods of (Tex.1999). 448 Jeffery, see Walden v. 907 284 S.W.2d S.W.3d (Tex.1995). case, disputes In this no one A. Health Care hospital while confinement the back recovering from latest of several health The MLIIA a care liabili- defines medically If his surgeries necessary. was ty claim as: medically hospitalization made condition a against a cause action health care the necessary, logically then it follows that treatment, or for provider physician lack hospital had to him with a treatment, other claimed departure or And, necessary bed. if a bed was accepted from standards medical care and it fol- recuperation, Marks’s care proxi- or health care or which integral lows the and bed mately injury in to or results death inseparable of his part care and treatment. patient, patient’s the whether the Diversicare, See at 849-54. S.W.3d cause sounds in or or of action tort contract. assembling on Marks focuses the bed, opposed to its maintaining 4590i, 1.03(a)(4). § art. Tex.Rev.Civ. Stat. use care. that his argues He notes, plurality the a cause of is As action mainte- negligent assembly claim for (1) liability claim if a health care it is nance health claim is not a care provider a care against physi- health or of an because it is based the breach (2) cian; treatment, treatment, lack of a dis- ordinary standard of not on departure accepted or other claimed from crete of care to the applicable standard of medical care or standards health care industry. health as to position, His (3) safety; alleged departure that St. him Luke’s owed accepted proximately standards results general duty by busi- care owed patient. injury to death of The Act their invitees.3 nesses to broadly “health care” as: defines act ... any which should have been pa- health care Although providers furnished, by any performed or health premises tients be owners or well for, to, or provider on behalf of a invitees, has occupiers Legislature patient during imposed by requirements patients on suits care, treatment, or confinement. against providers that differ requirements 4590i, 1.03(a)(2) art. from general for suits Tex.Rev.Civ. Stat. added); Diversicare, (emphasis against premises see or occu- invitees owners (describing at piers. health care as See Tex.Rev.Giv. Stat. MLIIA). “broadly 1.03(a)(3); Diversicare, Ap- defined” under (“The definition, obligation this a plying broad has care facili- Court health n not the same as previously ty patients “[a] concluded cause of ac- alleges departure general duty premises tion owes owner invitees.”). of ... health care if in a guest the act or If Marks had been Diversicare, ordinary negligence. position, As the if Court did I “note the But his irony” position. adopted, lowering of this have the would effect of provid- S.W.3d at 853. Marks asserts that owed the MLIIA standard of care apply id. patients should because the ers in health care facilities. See premises liability claim is claim based on at 853-54. fell, hotel when his bed his fall provide could well to [Marks] with a [footboard] given premises have rise to a that was properly secured to the hospi- claim. But he a guest; was not hotel he tal bed- Given [St. staffs Luke’s] patient a receiving was health care in a knowledge that was a [Marks] risk to fall, hospital. There is a difference because of that he was on morphine, and that the MLIIA. patients 185 S.W.3d at its use the support footboard as (“There is an important get distinction in out bed, of the hospital [St. relationship the between premises nursing owners Luke’s] staff should pro- have and invitees on one hand and health care vided with [Marks] a footboard that was patients facilities and their on the other. properly bed, secured to the hospital care.”). The latter involves health part and as ongoing duty to assess identify potential hazards, fall expert reports Marks’s own affirm that should have identified and properly se- the hospital’s provision of the hospital bed cured the footboard to the hospital bed. an integral and inseparable part of practitioner Nurse Jan opinion Zdanuk’s “furnished, actions that were or which was similar: performed furnished, should have been for, to, Hospitals have a

by duty to provide [St. or on behalf Luke’s] safe environment of care, care for during patients. [Marks] medical all [Marks’s] treatment, This includes equipment hospital confinement.” such as See Tex.Rev. 4590i, 1.03(a)(2). beds art. that must be maintained in Al- safe Civ. Stat. though operating condition at reports were served too all times. late to It is a dismissal, save his breach health care claims from standard of care for a they footboard to fall off a patient demonstrate what bed when a Marks contends is leans on it while proper attempting get standard of Jeffrey up care. Dr. resulting in D. a fall with opined: injuries. Reuben serious accepted The Legislature standard of prescribed, care for nurs- has and the ing expert hospital practice reports filed in this case recognize, patient with reasonably disputes safe such medical as the one before us equipment, involve including hospital standards of care by owed hospi- inpatients, to patients. receive and recover tals to medical treatment. The accepted stan- To the plurality says extent the or im- good dard of care for nursing hospi- plies that a departure claim for a tal practice is to evaluate each to accepted health care standards depends on determine if ais risk to fall.... he/she allegations concerning acts or omissions of ... patient may fall, If a be a risk to hospital specialized workers with health accepted good standard of care for nurs- training opposed hospital —as ing hospital practice implement is to specialized workers without training who interventions to eliminate and reduce necessary are nevertheless hospital for a patient’s falling.... risk of to properly patients care for disagree. —I ... knows patients [St. Luke's] Original hospi- Petition states the would use the hospital footboard tal negligently bed was assembled St. bed as support get out of bed. “employees, It is Luke’s agents, servants or for this reason that the hospital nursing foot- staff.” The MLIIA does not limit board firmly should be secured to the “health care” to those actions taken Rather, bed. [St. staff violated legislative Luke’s] nurses or doctors. accepted by failing standard of care “any definition of health care includes act” performed providing reasonably have been conclude that safe

which was or should “by any provider or furnished bed to Marks involved for, to, However, a patient during safety. or on behalf of I believe treatment, or con- plurality “accepted construes the ... finement.” safety” language standards of too narrow- 1.03(a)(2). Act “health defines ly. provider” as The MLIIA defines a health care liabili- any person, partnership, professional as- ty claim to include “a cause of action sociation, facility, or institu- corporation, against provider physician a health care or duly or chartered tion licensed ... departure accept- claimed [a] State Texas to of as ... safety proxi- ed standards of which nurse, dentist, a registered hospital, po- mately injury in results to or death of the diatrist, home, pharmacist, nursing or or 4590i, patient.” art. Tex.Rev.Civ. Stat. or officer; employee, agent thereof 1.03(a)(4). § The plurality says that under in the acting scope course and of his the statute employment. 1.03(a)(3) added). safety standards of must be (emphasis Id. construed includes, light of the other standards of plainly qualifi- definition without cation, employees providers of health care and health are di- long they acting rectly patient’s so are in the to the course related care and their scope employment. of treatment.... [A]n standard safety implicated under the MLIIA inquire

There is no need to dissect and thing, when unsafe condition or distinguish categories into or between causing injury patient, insep- to the is an health-care-provider employees based on integral part patient’s arable or of the duties, types performed, of actions and the care or treatment. type judgment exercised. The literal plain statutory language includes all 319 at S.W.3d statute does not officers, employees, agents pro or so limit provision safety its as to stan- acting scope vider the course and The plurality’s dards. construction con- employment. Giving their the lan application stricts the of the statute guage meaning yield literal does not effectively adding language to it. See, e.g., absurd or nonsensical results. In (Tex. Jorden, Although re 423 n. 32 the MLIIA does not define 2008) (“There “safety,” are the lit specifies legal instances where the statute meaning eral of a statute be disre terms or words of art used but not other- garded. only perfectly But it is where it is wise in the defined statute “shall have such plain that the literal sense works an ab meaning as is consistent with the common surdity injustice.” (quoting or manifest law.” Waples, 1.03(b). Gilmore v. 108 Tex. Thus, S.W. interpreting the MLI- (1916))). 1037, 1039 Marks’s claim as to IA, previously the Court has construed bed is a claim that the hospital “safety” according to its common law defi- violated accepted standards of health care. nition as the condition of being “untouched by danger; exposed danger; secure Safety

B. danger, harm or loss.” agree I with II parts (quoting and III of the S.W.3d at 855 Blace’s Law (6th ed.1990)). plurality’s opinion to the extent parts those DictionaRY prior provider broad construction If a health care un- The Court’s furnishes safe with materials or creates an unsafe standard is consistent condi- integral tion as an statute, inseparable part of does not plain language of treatment, health care or statute, purpose of the is not offend the care provider’s acts or omissions meaning, with its contextual inconsistent already would fall within category yield and does not absurd nonsensi- departures based from accepted (describing cal result. See id. at 847 standards of health care and there would “broadly health care as defined” under the be no need for the Act to include the word MLIIA). agree I with Justice Jef- Chief Diversieare, “safety.” See choice of words in Diversieare: ferson’s (“A cause of action alleges departure Because the statute does not define from accepted standards of medical care “safety,” assign we must its common health care if the act or omission com- meaning protection ... from dan- [of] plained of an inseparable part is the of .... of ger specific source that dan- services.”). rendition of medical Applying defect, it a ger, be structural criminal plurality’s “inseparable the integral part assault, act, or careless is without limita- of the care or treatment” stan- may tion. While it be to logical read to “safety” effectively dard reads requirement into the statute a that a out the giv- of statute of properly instead safety related claim also involve health ing meaning it category as additional of nothing implicit there is in safety’s at (“Certainly, claims. See id. 855 the plain meaning explicit nor the MLI- Legislature’s inclusion within the of scope language impose IA’s that allows us to the MLIIA of claims based breaches of ‘safety’ expands such a restriction. standards of the scope beyond of the what statute it would (Jefferson, C.J., See id. at 860-61 concur only be if it covered medical and health (cita ring part) part, dissenting and care.”). consistently This Court has con- omitted). plurality tions the Statements presumption strued statutes based on the today depart makes from the Court’s prior Legislature the intended an entire statute, of the I reading and would not do effective, to “try give statute be so we to so. The MLIIA legislative reflects intent statute, all treating effect to the words of a broadly, narrowly, to not cover claims none its language surplusage as when patients against made their health care reasonably possible.” Phillips v. Bram providers. If policy sup considerations lett, (Tex.2009); e.g., 288 S.W.3d port limiting or excluding subcategories 311.021(2); v. Sultan Tex. Gov’t Code unambiguous statutory claims when the Mathew, (Tex.2005) 747, 751 178 S.W.3d language category, includes the overall as (“We avoid, possible, treating must when here, it incorporating does then those ex statutory language surplusage.”); City as Legislative clusions into the statute is a Barfield, v. 898 S.W.2d of LaPorte (Tex.1995) (‘We judicial prerogative, not a one. See Tex. statutory will not read II, 1; Houston, Const, Lee v. City reasonably is language pointless be if it (Tex.1991) (“A 807 S.W.2d 294-95 construction.”); susceptible of another judicially court not amend statute (Tex. State, Perkins implicitly and words are 1963) (“[E]ach add not con sentence, clause and word statute.”); in the language tained given is be effect if reasonable Davis, (Tex. Smith v. possible.”). Accordingly, the Court should 1968). Legislature’s construe the inclusion of directly negligence the source the expanding in the MLIIA as

“safety” claims health care services related to medical or liability claims scope of health care the involving professionals only if the statute what it would be beyond judg- professional exercise of medical or claims, covered medical and According at ment. Id be the same 1186-87. confining those claims to not Court, assembly alleged negligent already within stat- coming footboard maintenance bed’s was claims. Di- coverage as health care ute’s professional judgment unrelated versicare, 185 S.W.3d at 855. merely incidental Marks’s care. Id IV. Conclusion 1189. Because case involved “ordi- require nary negligence” that did should be dis- agree I that Marks’s suit knowledge “the specialized resolution However, I would entirety. in its missed rejected expert,” Court suit, including the entire hold hospital’s allega- contention that bed, allegations concerning a health claim. Id tion was the MLIIA and is barred falls within (1) substantively the suit is three reasons: today. A plu course Court changes part of it a health care holding our that the rality repeats earlier be recast into a non-health care cannot only if the safety prong implicated is un (2) claim; departures the claims are for to a derlying directly pa claim relates care; of health accepted from standards Now, however, and tient’s care treatment. (3) departures from and the are for the concludes that the bed Court safety. standards of accepted inseparable part of the treatment is received. But the footboard relates Marks JEFFERSON, joined by Justice Chief way in the same to a care health GUZMAN, GREEN, and Justice Justice walls, stairs, the and utilities do: that LEHRMANN, concurring and Justice room, without the shelter from access dissenting. elements, power adjust the the room’s temperature equip Marks was at St. and run medical Irving patient Luke’s ment, recovering he unable to Hospital, where from doctors would be deliver night, Examples In the like these surgery. back the middle of medical services. easily fit attempted of bed. He would the definition of a get out within footboard, they because on the bed’s which came health leaned him, from collapsed causing departures involve claimed loose beneath reject of has him fall. The held in 2009 that Court safety. Court The view, case, prior that however. In a I resulting Marks’s lawsuit to recover for his ed definition targeted negligent assembly Legislature’s wrote that of injuries “safety” premises maintenance the footboard—a forbids a if provider, v. a health care even against claim. Marks St. premises defect, based Episcopal Sup.Ct. 52 Tex. claim is “structural Hosp., Luke’s J. 2009). assault, 1184, 28, The or act.” (Aug. Court criminal Diversi careless Rubio, Partner; prong Inc. “safety” reasoned that Gen. (Tex.2005) 842, (Jefferson, Liability Improve- S.W.3d Medical and Insurance (MLIIA)1 C.J., Had only concurring dissenting). if implicated ment Act is 2, 2039, 2041, 2003, repealed by Act of June Liability Medical and Insurance Im- 1. See R.S., 10.09, Texas, May Leg., provement Act of ch. Tex. Act of 78th R.S., Leg., Laws ch. 1977 Tex. Gen. Laws Gen. 65th adopted approach, Court that Because the statute does not Diversicare define of this not be in must “safety,” assign the outcome we it its common case would Safety But It disagreed. meaning. commonly the Court said is under- doubt. protection may gives danger. a staircase stood to mean that a if sue source of it weight specific danger, her circumstance that be way under —a defect, assault, “give premises liabili- structural criminal that would rise to [a] act, is Id. at 854. held careless without limitation. ty claim[].” Court it be distinguishing logical that touchstone for be- While to read into the requirement re- premises tween a care claim statute a that a health claim also is that latter involves act omis- lated involve health nothing implicit is is “inseparable safety’s plain there provision sion explicit in lan- meaning nor the MLIIA’s of healthcare.” guage allows impose us to such a Consistency in the law difficult to is restriction. course, achieve, of but strive to we should (Jefferson, C.J., concurring Id. at 860-61 any opinions generate. discord our explain added) (citations dissenting) (emphasis premises liability holds that Diversicare omitted). prevailed, Had that view we against pro- viable claims are longer would types no discuss these so, Id. at 855. If then the viders. that is “premises claims in liability.” terms explain piece must how a wood Court But the rejected Diversicare Court of a integral to medical end approach, holding that health care previous The Court’s de- opinion care. “implicate claims must more than inade- in great why detail scribes the footboard quate security or negligent maintenance.” integral was not to St. Luke’s delivery at may Id. It said that 854. circumstances Marks, I health care services to have premises in a “give liability rise to appendix. it as an attached setting may healthcare that not be proper- complaint the foot- how about ly liability healthcare classified as claims.” maintained to do board was has nothing applied at that Id. conclusion scope with the of medical ser- degree case, our in this opinion stating first received, pro- vices he nor does it involve hospital piece equipment “when a medical about how the fessional judgment any professional judgment unrelated to configuration might bed’s treat- aid merely incidental the and is have easily ment. footboard could as not alleged unsafe condition does chair in his or a been a bedside table. room Marks, 4590i.” Tex. implicate article If leaned on table Marks his bedside as Sup.Ct. J. 1189. The identified Court and it would that be a support collapsed, overlapping guide factors” to our “several if health care What claim? determination, including spe- whether the a “rickety per- fell down while staircase” knowledge expert of a medical cialized ambulating for the time after sur- first claim, necessary prove be gery? The Court offers no explanation as specialized whether a health care standard from the to how the bed’s footboard differs in- applied, negligent whether the act staircase” Diversi- “rickety described judgment volved related to id. at 854. care. See or treatment. at 1189. patient’s care can in the record or in the approach Nothing this conundrum Court’s Court two that a in one of The Court can either new establishes doctor’s opinion ways. here, nor knowledge is relevant say specialized that: that a the an integral footboard was com- ponent of Marks’s treatment. I Because JustiCe filed a dissenting opin- Johnson do not believe that the bed’s footboard was Heoht, ion, in which Justice Justice Wain- integral inseparable to or from the health wright, joined. and Justice Willett St. provided services Luke’s In this case we must decide whether a Marks, I respectfully dissent from the fall, hospital patient’s allegedly caused judgment affirming Court’s the court of bed, a negligently maintained ais appeals’ judgment ground.2 on this I claim under article

would affirm in part part and reverse in 4590i of the Revised Civil Statutes.3 Arti appeals’ the court of judgment and remand cle also known as the Medical Lia the case to the trial court for further pro- bility Act, Improvement and Insurance ceedings. provides claims, accompanied by expert report, may

APPENDIX be with prejudice days dismissed after filing, although grace period is available IN THE SUPREME COURT under limited circumstances. The trial OF TEXAS court concluded that the bed claim here was a health No. 07-0783 which it then dismissed because of the Irving MARKS,Petitioner, W. patient’s failure to a timely expert file report. The trial court also denied the patient’s request for a grace period. The Episcopal Respondent Hospital, St. Luke’s court of appeals initially disagreed with court, the trial concluding pa On Petition for Review from the Court tient’s claim not a health care liability Appeals for the First District claim. See Marks v. Episcopal St. Luke’s of Texas Hosp., 177 S.W.3d 260 (Tex.App. Argued September 11, 2008 Dist.j 2005), vacated, -Houston [1st (Tex.2006). Following our opinion delivered the re Justice Medina case, however, Court, in mand which Chief court af Justice Jeffer- son, O’Neill, firmed the trial court’s judgment. 229 Brister, JustiCe Justioe dissented, justice S.W.3d 396. One joined. argu Justice Green ing hospital that the claim bed was in the Chief Justice Jefferson filed a concur- premises nature of a liability claim rather ring opinion. than liability a health care claim. Id. at Justice Hecht filed a dissenting opinion. J., (Jennings, 403 dissenting part). Wainwright agree with dissenting justice and ac Justice a dissenting filed cordingly reverse the court of appeals’ opinion. (as agree 2. I previously) with the Court Liability I did 3. See Medical and Insurance Im- (involving neg- Texas, Marks's first three claims provement May Act of Act of ligent supervision, failing provide to Marks R.S., Leg., 65th ch. 1977 Tex. Gen. Laws needed, with the assistance he and failure to 2039, 2041, 2, 2003, repealed by Act of June provide a safe environment in which to re- R.S., 10.09, Leg., § 78th ch. 2003 Tex. recover) ceive treatment and are health care Gen. Laws liability claims and that the trial court did not denying grace abuse its discretion in Marks a period dismissing or in those claims.

677 held, case to the trial a few judgment days and remand the review before we Di- Partner, Rubio, versicare General Inc. court. v. (Tex.2005), S.W.3d that a I against nursing home for inade- quate supervision nursing injured fell and himself services Irving Marks liability were health care claims. during recuperation surgery from back at The fall Hospital. St. Luke’s occurred full briefing, granted After we the Hos Marks, sitting when while on his pital’s petition. parse Rather than bed, attempted to use the bed’s footboard claims, however, through Marks’s we va up standing himself push position. to a court appeal’s judgment cated the with loose, Unfortunately, came footboard out reference to the merits and remanded causing to fall. Marks sued appeals for the court of to consider the Hospital, alleging negli- acts of several nature of in light these claims of Diversi (1) gence, including: failing to train care. St. Episcopal Hosp. Luke’s (2) superase nursing properly, Marks, (Tex.2006) staff (per S.W.3d curiam). failing provide remand, him with assistance Following our a divided (3) activities, required daily living appeals he court of affirmed the trial court’s him for want failing timely expert with safe environ- dismissal re (4) recover, port, concluding ment in that Marks had providing which asserted only health liability been claims. negligently that had justice at 402. One dissented in hospi- and maintained assembled part, urging that fourth con Marks’s tal’s employees. cerning defective footboard was a court trial concluded premises-liability claim rather than a petition asserted health care health claim under the Medi claims as defined under the Medical Liabil- Liability cal Improvement and Insurance ity See Improvement and Insurance Act. J., (Jennings, dissenting Act. Id. 1.03(a)(4) part). claim).4 (defining This Act requires II by a timely claims be substantiated filed Liability The Medical and Insurance Im- 13.01(d). expert report. Because provement Legisla- Act of 1977 was the timely expert report, Marks failed file a response ture’s to a in the crisis cost granted the trial Hospital’s court mo- availability of malpractice insur- tion to dismiss. Legislature ance in perceived Texas. The reversed, The of appeals initially court frequen- that an inordinate increase in the allegations that con- concluding cy severity health of care by cerned “an unsafe condition created claims had caused the crisis. Tex.Rev.Civ. item 1.02(a)(l)-(5). of furniture” and thus related to 4590i, § Leg- Stat. art. The “premises liability, not care liabili- islature also found that this cri- insurance Marks, ty!.]” The S.W.3d 259. adversely sis had affected the cost and Hospital appealed, delivery its of medical and health care in Tex- filing petition Code, filing repealed affecting Sep- 4. Article 4590i was after the of actions filed on or after supra. this case. See n. 1 Similar medical tember & See Tex. Civ. Prac. Rem.Code liability legislation Chapter codified in is now §§ 74.301-.303. 74 of the Texas Civil and Remedies Practice Diversicare, 185 1.02(a)(6)-(9). for the term. definition § To address Id. as. the in- observed that at 855. We Legislature sought to reduce S.W.3d problem, the safety of ex- accepted of standards clusion severity of health care “frequency and it scope beyond what the statute’s panded im- through reasonable liability claims only cov- had the statute would have been modifications in the Texas provements care. Be- and health ered medical care insurance, tort, sys- practice and medical no of the statute offered definition 1.02(b)(1). cause Legisla- § The Id. tems[.]” commonly under- safety, suggested we damages a included ture’s modifications “ is, ‘untouched meaning, stood limitations period, shortened cap, a danger; secure danger; exposed for health filing requirements heightened ” (quoting Id. danger, harm or loss.’ See liability claims. care (6th Dictionary at 846-47. Law BlacK’s ed.1990)). however, meaning, The term’s Act defines a “health care unnecessary to our deci- ultimately against “a cause of action claim” as sion, we left unresolved its contex- and so treat- physician or provider health care relationship well as its meaning, tual as treatment, ment, or other claimed lack medical care the other defined terms of departure accepted standards meaning and health care. See id. safety” care or health or medical as the presented is here squarely this term patient’s injury resulting in proximately in- dispute Legislature what parties art. or death. Tex.Rev.Civ. Stat. a health care tended to include as 1.03(a)(4). § The Act does not define safe- involving “departure from terms, other ty, although it does define safety[.]” of ... provider,” “physi- “health care including 1.03(a)(4). 4590i, § care,” cian,” care.” “medical and “health must be Marks contends (8). 1.03(a)(2)-(4), §Id. narrowly only safety include con read physi- These definitions indicate directly patient’s to the cerns related care, provide medical and health cians Hospital, on the other or treatment. The furnish other health care ser- providers hand, read that the term should be argues care” defined vices. “Medical is broadly any patient injury negli to include medicine, including diagno- practice of at a by an unsafe condition gently caused physician. treatment a licensed sis and if the definition facility. health care Even 1.03(a)(6). care” is “Health defined broad, alternatively Hospital not this broadly “any to include act or treat- more equipment it include used argues, should furnished, or performed ment which patient’s in the such as furnished, performed have been should bed here. III for, to, by any provider or on patient during behalf of care, treatment, or confinement.” safety in meaning To determine 1.03(a)(3). ex- Hospitals id. are See Act, with begin the context of this we pressly included the definition “health statutory con- principles established 1.03(a)(3). § care provider.” overarching prin- The and struction. first

Although primarily give legislative Diversicare con- effect to ciple is that we 312.005; § departure accepted intent. see cerned a claimed See Tex. Code Gov’t Casteel, care, 22 v. of health we mentioned also Ins. Co. Crown Life (Tex.2000). 378, inter- any statutory absence of 383 When safety and the S.W.3d

679 statute, ing we read and general liability words that commercial insur- preting policies generally profession- in context and construe them ac ance exclude phrases grammar coverage). com al breaches from cording to the rules and 311.011(a). § usage. mon Tex. Gov’t Code patient injuries All in health care set given that are defined are their not Words cause, ting, regardless be said to Ad ordinary meaning. Fitzgerald v. implicate patient safety in the broader Inc., Sys., 996 Spine vanced Fixation sense, not patient injuries but all involve (Tex.1999). 864, possi S.W.2d 865 When malpractice. Given objective the statute’s ble, all effect and none of given words are concern, Legislature’s and the express is treated sur- language the statute’s as Legislature evidently not intend to did de Ins. Co. v. Function plusage. Cont’l Cas. safety broadly fine Hospital pro as the Assocs., al Restoration S.W.3d Moreover, poses. expansive such an inter (Tex.2000). care, Thus, the terms medical conflicts pretation Legislature’s with the care, safety mean health should add express operate intent that the statute statute; ing to the none of the terms medical-malpractice control insurance discounted, disregarded, should be or dis unduly restricting costs a patient’s without Auto., missed. Inc. Ruan See Meritor v. 4590i, rights. See Tex.Rev.Civ. Stat. art. (Tex. Co., Leasing S.W.3d 89-90 1.02(b)(3); O'Reilly Wiseman, § see also v. 2001). (Tex.App.-Austin 707 n. 12 denied). purpose in Legislature’s pet. accordingly reject article stated, clearly remedy Hospital’s 4590i is “a medi- contention that a health care malpractice patient in Texas any injury cal insurance crisis” claim includes negligently by adverse caused “material effect on unsafe condition facility. care delivery of and health care ser- at a health medical vices in art. Texas[.]” Tex.Rev.Civ. Stat. Diversicare, as much in noting We said 1.02(a)(5)-(6). 4590i, per- § This concern there could “be circumstances that statute, replete which is with vades premises liability claims in give rise care, liability, references to health medical setting” every not healthcare and that ac- malpractice, of which implicate all injury to a in a cidental judgments medical or health care made setting care would constitute a health 13.01(r)(5)~ See, e.g., id. professionals. liability claim article under 4590L (6) knowledge to have (requiring expert Diversicare, 185 854 (indicating S.W.3d at treatment). diagnosis, medical that a health care claim is determined

By comparison, neither the statute nor the nature of the nature of defendant). noted, a health background suggests historical As providers were claim is defined include a physicians or health similarly departure accepted when com- stan- challenged obtaining “claimed medical care health care or general mercial insurance cover- dards of age ordinary, safety.” non-medical accidents 1.03(a)(4). medical care premises. Legislature their re- Standards of implicated in- care are when the only medical-malpractice to a or health sponding crisis, insepara- in- act or is an malpractice negligent medical omission surance integral part of the rendition of generally premises not cover ble or surance does See, e.g., N. services. Specialty claims. Am. Co., Similarly, 848-49. Royal Surplus Ins. Lines Ins. S.W.3d at Co. (5th Cir.2008) (recogniz- implicated under the

541 F.3d standard (e). 4590i, 13.01(d), art. thing Act when the unsafe condition or is court Stat. reversed, integral part pa- appeals concluding of the inseparable or tient’s care or treatment. See id. at 855. claim did not fit the sexual-assault defini tion of a health care claim. Rubio determining plaintiffs In whether Partner, Inc., v. Diversicare Gen. inseparable claim is rendition (Tex.App.-Corpus S.W.3d 783-84 services, and thus a health care medical (Tex. 2002), rev’d, Christi 185 S.W.3d 842 claim, guided by we are several 2005). however, disagreed, concluding We (1) They factors. include overlapping plaintiffs that all the claims were based on specialized knowledge of a whether departure accepted alleged stan expert may necessary prove be to Diversicare, dards of health care. (2) specialized whether a stan- at 849. nursing We noted that community applies in the health care dard provide homes services to their residents (3) circumstances, and alleged to the activities, supervision daily that include negligent whether the act involves medical examinations, monitoring routine of the judgment to the related condition, physical mental residents’ and treatment. See 185 S.W.3d at medication, administering meeting “and surprisingly, Not 847-52. these factors the fundamental care needs of the resi significance confirm the that medical or dents.” Id. further We noted that these professional judgment plays classifying staff, by professional services are provided involving the claim as one health care lia- types and level and of health “[t]he bility. provided vary services with the needs and IV mental, capabilities, physical both patients.” (citing Id. at 849-50 Harris original petition Marks’s four asserted Dist., County Hasp. Harris negligence against Hospital. (Tex.Civ.App.-Houston [1st Dist.] failing properly The first train three — 1977, writ)). no then concluded that supervise agents, employees, ser- services, including monitoring those nursing caring vants and staff when protection patient, as well as him; failing him provide with the assis- training staffing policies, were “inte activities; required daily living tance he gral components of Diversicare’s rendition failing provide him a safe environ- of health care Id. at 850. services[.]” ment in which to receive treatment and here, Similarly, Marks’s first three claims to those in recover—are similar Diversi- involving patient supervision and staff care. training, are claims implicating profession case, In that a nursing home resident’s expertise al departure and the from the behalf, daughter sued on her mother’s al- accepted standard of health care. Such leging nursing negli- home had been claims are health care claims sub gent failing enough staff and ject to the Act. Tex.Rev.Civ. supervision prevent her mother from 1.03(a)(4). 4590Í, § falling being on two occasions and from different, bed claim sexually nursing assaulted another however, it because does not assert a de- home resident. Id. at 845. The trial court allegations parture concluded that the from the standards of constituted claims, Instead, medical care or health care. dismissing the plaintiff case because the had not filed the alleges Hospital negli- maintenance, requisite expert report. gent assembly See in the bed’s both, defectively or and that a attached A cause alleges of action a departure presented footboard an unsafe condition. of safety within core, hospital At its bed claim the Act’s meaning when the unsafe condi- piece involves the failure equip- of inseparable tion is an or integral part of ment. Whether the failure of that equip- patient’s care or treatment. An unsafe qualifies ment as a health care liability condition, omission, a negligent like act or on depends whether that failure con- inseparable from the rendition of medi- stitutes a departure from accepted stan- cal or health care services when the rela- dards under article 4590i. tionship between the two is significant and To answering assist us in question, that we direct, professional thus involves judg- consider the various factors indicative of following ment. The cases illustrate this professional judgment, being that point. importance use and pa- equipment’s In Coast, Hector v. Christus Health tient’s care or treatment. Gulf the court of appeals patient’s held that a No evidence shows that the assembly of action for injuries in a fall operat from an Marks’s hospital any bed involved medical ing during table surgery was based “an professional or or judgment, that the bed’s alleged departure from accepted standards to, assembly footboard or its were related safety” under article 4590L 175 S.W.3d by, affected Marks’s care or treatment. (Tex.App.-Houston 835-36 [14th contrary, To the presented some denied). 2005, pet. patient Dist.] ar the assembly evidence that hospital gued operating that the table was under solely responsibility hospital’s control and that the accident Hospital’s maintenance staff. Presumably, involved administrative or routine use performed by tasks the maintenance staff rather than medical care. Id. at 836. The any do not require specialized health care of appeals agreed court in theory with the knowledge, and evaluation of whether “distinction hospital between workers that performed those tasks were negligently were health providers, such as not nurses require expert would medical testimo- doctors, ny. have, Other workers that jurisdictions for the most not, part, were injuries found claims such as cooks or based on in- electricians.” curred when a Id. But the piece fixture or court concluded the distinc equipment breaks to negligent person due tion was irrelevant “any assem- because maintenance, bly, repair operating to sound in the room at the time of Hector’s ordinary, medical, negligence.5 rather than necessarily accident would have been eon- See, e.g., Hosp. Williamson v. Dist. (Ind.App.1990) (concluding Serv. No. N.E.2d Jefferson, (La. 888 So.2d 789-90 injury collapsed, incurred when bed rail 2004) (holding hospital’s negligence fall, causing patient premises were failing repair inspect prior wheelchair Malpractice claims not covered Medical returning ordinary it to service was not Act); Smyth County Cmty. but Prater v. see negligence medical to which state’s medical 93-4050, Hosp., No. WL at *2- malpractice apply); statute did not Pluard v. (Va.Cir.Ct. 30, 1995) (not designated Jan. Fund, Compensation Patients 705 N.E.2d publication) (holding that a bed rail col- (Ind.App.1999) (holding 1037-38 taking lapse history while injuries surgical lamp incurred when inade- integral part anwas of the health care treat- quately attached to wall fell on by Virginia's ment and covered Medical Mal- Malpractice covered Indiana’s Medical Act). practice Act); Inc., Caylor-Nickel Hosp., Harts v.

682 that the the do not believe The Act. We provider.” Id. a health care

sidered case, paint chip in the sharp a presence in this howev- of is relevant distinction er, responsi- workers room could hospital [patient’s] hospital because the of shower bed, identified assembling any inseparable ble for anway be in considered hospital as the maintenance by the nurses medical services rendered part of the team, have been considered would not [patient]. when so. providers doing

health care Id. at 505. case, hospi- a another a sued In was, however, taken in The shower by stepping on injury a foot caused tal for physician’s preparation surgery at a in showering while sharp paint chip a sense, it Id. at 503. In that instruction. Shults surgery. Baptist v. preparation part surgical a of ser- functional the 502, Anthony’s Corp., 166 Hosp. St. by just as the provided hospital, vices the 2005, denied). pet. (Tex.App.-Amarillo 503 hospital bed here footboard attached the both patient alleged negligence based part morphine- of the was a functional hospital’s failure to maintain and on the recovery provided treatment and services the safe as well on keep its shower negligence of in to Marks. The source the injury. of his foot hospital’s treatment cases, however, directly related both argument court that rejected health any to the of medical or rendition based on condition of negligence claims incidental, services, oc- but instead is care re- hospital constituted claims shower Hospital’s in the curring course accepted from sulting departures from do not general maintenance duties which 4590i: safety of under article standards professionals involve health agree [hospital’s] with characteriza- any professional medical or exercise [patient’s] involving claims as two tion judgment. recovery, one based distinct theories of certainly in are circumstances There liability and the other on upon premises hospital which or use of a the assembly injury negligence. Personal professional judgment, bed involve might resulting departures claims re- likely of which would evaluation safety in- be instance, testimony. a quire expert For scope cluded of article within might that provider determine inseparable such must be departures but patient’s a called for restraints condition parts the rendition medical services rails to the bed and that side attached safety and the standards of within Thus, the a part would failure of industry to be covered suffice.6 condition, See, Nursing subject patient’s medi e.g., Bryant Oakpointe cerning v. Villa Loehmann, etc.”); Centre, Inc., cation, history, Lenny v. 78 684 471 Mich. N.W.2d (2004) (N.Y.App.Div. (determining that claims based A.D.2d N.Y.S.2d 1980) alleged (concluding a nursing recognize physician’s the risk home's failure failing negligence that bed’s side posed by configuration of a instruct bed rails on raised, failing rails or in to check condition hospital malpractice); in medical bed sounded be Dist., they put up, County after had been of the side rails Bell West Harrison 523 So.2d (Miss.1988) failing supervise movements to (determining malpractice arising failure from bed sounded medical patient's from nurse's ordinary negligence); Gould hospital rather than to raise side rails on a bed constitut- cf. ordinary Cty. Hosp. Corp., v. N.Y. Health malpractice, ed medical rather than 328, 490 N.Y.S.2d 88-89 negligence, deci- Misc.2d "[a] claims because nurse's (concluding plain that a (N.Y.Sup.Ct.1985) as to or not bed should be sion whether rails railings degree knowledge tiff's bed side con- utilized entails plicate accepted ordered specifically of a standards of health care provider physician or health inte by definition. But it is not the patient’s the or treatment gral to care identities of the parties place or the See, might implicate e.g., 4590L article that injury defines the claim. See Diversi- System, No. Espinosa Baptist Health care, 185 (refusing S.W.3d 854 “ to distin- (Tex. 04-05-00131-CV, 2006 WL 2871262 guish patient ‘simply because the 11, 2006, App.-San pet. Antonio Oct. de ”). is a health care provider’ landowner nied) (mem. op.) patient in (holding Rather, the injury it is cause of the and its jured using while bed-frame overhead an relationship to professional medical or trapeze as part device authorized judgment that determines the claim’s na- patient’s by medical care and installed a ture the application of the Medical orthopedic nurse and technician was a Liability Improvement and Insurance Act. claim). liability care But when health a See art hospital equipment piece unrelated 1.03(a)(2), (4) (defining “health care” and merely any professional judgment and is liability “health care claim” as act or omis- care, patient’s its alleged incidental to during patient’s sion medical treat- implicate unsafe condition does not article ment departs or confinement that negligence 45901 We conclude that standards). Thus, accepted injury caused defectively on the claim based assembled by a supervise failure to train and or maintained case is in this by a hospital’s nursing staff or failure to not a health care claim to which liability supervise patient implicates and assist the applies. article 4590i Act; is, it departure involves a dissent, however, Justice Johnson’s accepted during patient’s standards a permitting questions conclusion care, treatment, medical or confinement. Marks to convert a health care footboard, involving A claim a on defective ordinary negligence claim into an claim hand, appear impli- the other does not pleading. mere dissent submits that any professional judg- cate medical or case, how pleads “no matter directly ment7 and was not in case this implicate questions substantive facts about care, treatment, patient’s related to the whether St. Luke’s met stan- Hence, confinement. we conclude in this safety dards of health care [as injury allegedly case that caused (Johnson, patient].” 819 S.W.3d at 669 J. not a health the defective footboard was dissenting). disagree, and our dis- claim the Act. under of a agreement essence concerns health care claim. Johnson’s dissent also accuses Justice of safe- “conflating the Court standards Johnson’s dissent assumes that Justice care,” patient’s against ty im- with of health but our must standards properly (Wainwright, J. dissent- “were defective and not raised” con- 319 S.W.3d at 666-67 claim). ordinary ing). apparent disagreement with negligence stituted an His sig- concerns the defective footboard’s Court Wainwright's agrees patient’s nificance in the care and treatment 7. Justice dissent that Di- safety profes- relationship did and its to the medical or and that the not define versicare proper addressing judgments in the focus when standards of sional made case. Justice judg- similarly views the defective should be "whether medical Hecht's dissent part pro- employed equipment’s inseparable ment in the use was footboard as importance negligence and its claim. care.” fessional supervision training are just opposite. staff intention is (Johnson, claims, dissenting). “Stan- question J. re- at 667-73 care or concerning or health their dards mains dismissal. Marks safety” something to the should each add these claims not have argues that should liability claim.” of “health care definition been because he entitled to dismissed be read so None these standards should expert time to additional re- Thus, broadly subsume the others. as to 4590i port. generally requires Article of medical care and expert report claimant furnish an within of physi- or implicate acts omissions days filing after the of a care health re- providers, and other health care cians claim. liability safety while of con- spectively, standards 13.01(d). 4590i, § If a claimant fails to unreasonably a exposure cern to comply requirement, with this the court is things or defective conditions or dangerous directed, motion, on appropriate to award dissent, in the course of treatment. fees and to health costs and dismiss the however, broadly reads so as to care claim with Id. prejudice. all only subsume duties —not 13.01(e). The 180-day period can be care, but care and health also the however, extended, good and en- cause any duty regardless breach of other of its larged for accidents and Id. mistakes. patient connection to care or treatment. 13.01(f), (g). enlargement The latter (Johnson, J. See 319 S.W.3d at 664 dissent- period. in the statute grace referenced as a that “a ing) (noting safety-related cause of § 13.01(g). is a health care claim” action Marks contends that he was entitled to pro- a a whenever sues health period because to file grace this his failure physician duty or for a breach of vider report expert on time an accident involving safety). As we in Di- indicated within (g)’s or mistake section 13.01 mean- versicare, grava- focus must be on ing. provides thirty-day That section for a men of the which determined is not if, grace after a court period hearing, the merely by the status defendant’s finds that claimant’s failure file a professional place health expert report timely was a mistake or injury. See 185 S.W.3d rather than the re- accident intentional or accordingly disagree article After hear- sult of conscious indifference.8 every patient’s against makes ing Hospital’s motion to dismiss professional care lia- a health motion grace period, Marks’s for a bility claim.

trial found that court Marks’s failure was V not an accident or mistake and dismissed Although we the suit. We review that under have concluded that dismissal negligence involving Marks’s other discretion Am. abuse standard. mistake, 13.01(g) provides: 8. Section of article 4590i an accident or the court shall grace Notwithstanding any section, provision grant period days permit other of this of 30 comply if a claimant has failed comply the claimant to with that subsec- filing expert report] with a deadline [for tire A motion a claimant for relief tion. (d) established Subsection this section this subsection tinder shall be considered hearing after the court finds that the hearing timely any if it is filed on before failure of the claimant or the claimant's (e) by a defendant motion under Subsection attorney was not intentional the result of this section. conscious indifference but was the result of Tex., Transitional Care Ctrs. Inc. v. health care depends claim thus (Tex.2001). Palacios, substance, its underlying not its form. Doyle’s clearly affidavit does not indicate grace In for a support of Marks’s motion what to recognize caused him first period, attorney, Doyle, E. James time that his client had a health care liabil- provided Doyle his affidavit. averred that ity claim. attorney, he was Marks’s second becoming however, Equally significant, is the ab lead counsel about seven months after the any sence of explaining evidence the first first attorney Doyle filed the case. further attorney’s expert failure furnish an re averred that he and attorney Marks’s first port during the first seven months he “understood the case to an ordinary be represented Doyle’s Marks. sug affidavit case, negligence not a health care gests that the first attorney also mistak According claim” at time. Doyle’s enly original believed that the petition did affidavit, only discovery it was after implicate article 4590L According to he po- determined that Marks had a also affidavit, Doyle’s belief is based his claim, tential health care liability causing review of the case file he inherited. Affi him pleadings provide to amend the and davits, however, must be on person based expert report. This report provided knowledge, al supposition. not See Tex.R. days more filing than 500 after the (“A testify 602 witness not- to a Evid. original petition. Marks’s matter ... unless has person witness petition amended divided Marks’s matter.”). knowledge al of the An affida claims headings “Negligence” under personal vit not knowledge based on is Liability.” petition “Premises The original legally Arias, insufficient. Kerlin v. 274 had lumped single all claims under negli- (Tex.2008) curiam). S.W.3d (per gence heading. In the pleading, amended Doyle Because personal had no knowledge bed, complaints Marks included his about intent, first lawyer’s and the first supervision and his under the lawyer did not his own affidavit “Negligence” heading. the “Prem- Under failure, explaining his there is no evidence ises Liability” heading, complained of mistake or accident no and thus basis about the condition of the bed. the requested grace period. Accord Doyle avers that he “believed that the case ingly, the trial court did not abuse its presented sounding only ordinary claims denying discretion in motion for a Marks’s negligence” until the time he filed the grace period 13.01(g) under section pleading. amended did not err in dismissing Marks’s health liability care claims. See view, In significant our no difference 13.01(e)(3) 4590i, § Stat. (stating that exists between the original and the amend- prejudice is dismissal “with to the claims ed pleading. The factual underlying com- refiling”). plaint in both concern the set same inadequate super- circumstances: care and

vision Hospital’s professional staff summarize, To article does not 4590i and a dangerous hospital “It bed. is well apply concerning claim the de- Marks’s settled that a health care fective bed footboard because cannot be recast another cause action medical, ordinary, neg- claim concerns requirements avoid ligence [article is not a thus health care liabili- Diversieare, 45901].” ty S.W.3d claim. other alleging Determining pleading negligent whether a supervision states a care and are health broadening the class of claims

Court risks compa- malpractice that medical insurance article 4590i claims to which fear, This, cover. I will thwart nies must Marks is not entitled apply. Finally, does MLIIA, which is very purpose of the period filing expert to have the malpractice to reduce the cost of medical grace enlarged period under the report patients in Texas so that can insurance article 4590i because he has provision of access to health care. See have increased comply the failure to not established that 1.02(a)(4)-(5). §id. a mistake or accident. with the statute was carry providers generally Health care judgment appeals of the court of malpractice to cover health policy both a part, reversed in part affirmed in general liability claims and a the cause is remanded to the trial court for See policy ordinary negligence. to cover further consistent with our proceedings Diversicare, (O’Neill, J., at 862 opinion. dissenting) (citing Cochran v. B.J. Servs. (5th Cir.2002)). USA, 302 Co. F.3d Medina David explained As the dissent Justice that a claim is a when courts determine August OPINION DELIVERED: expenses related litigation likely to that will fall under the policy general malpractice instead GUZMAN, concurring and Justice liability policy. Id. Thus: dissenting. overly an adoption interpre- broad concur- join I Justice Jefferson’s Chief tation of “health care claim” rence and dissent for the reasons he ex- Legislature’s goal ... hinder the could (1) in Di- plains, namely holding our ensuring malpractice medical in- a health care requires versicare surance is available at reasonable cost: claim to an act or omission that is involve if sweep ordinary negligence courts even inseparable provision from the of health MLIIA, claims into the ambit of the Partner, v. see Diversicare Gen. Inc. malpractice up then insurers end Rubio, 842, (Tex.2005), Mal- covering more of those claims. (2) hospital on Marks’s footboard practice insurance rates would then con- integral part was not an of St. Luke’s policies insurance tinue to rise as those delivery of health care services to Marks. required are cover claims that were however, I separately, write because of contemplated under the insurance I additional concern have with the Court’s contracts. Liability In-

judgment. Medical Id. at 863. (MLIIA) Improvement surance Act in remedy malpractice No. PD-0401-09. of Criminal Appeals

Court Texas.

Dec. 2009.

Rehearing April Denied enacted to a medical As notes Justice Jefferson Chief dissent, in variety insurance crisis Texas. of fixtures in a 1.02(a)(5)-(6) services, § (repealed Stat. enable doctors 2003).1 By sweeping simple negli- many merely even of which are to the incidental gence claims under the of medi- of health care In hold- provision umbrella services. malpractice policies, ing cal that even bed footboard is insurance R.S., 10.09, Liability Improve- Leg., Tex. 1. Medical and Insurance ch. Gen. Texas, R.S., Leg., liability leg- ment Act 65th Laws 884. Similar medical ch. 1.02(a)(5)-(6), Chapter 74 of 1977 Tex. Gen. Laws islation is now codified 2, 2003, repealed Act of June 78th Civil Practice and Remedies Code. Texas integral inseparable part services, delivery of health care it is un- ordinary negligence clear what acts of oc- curring setting, a health if any, scope still fall within might premises liability rather than care liability. Legislature did not intend for the ordinary, MLIIA convert an nonmedical here, one negligence like the into a claim. Because the interpretation Court’s statute con- intent, express join tradicts this I Chief concurring dis- JeffeRson Justice senting judgment. the Court’s LOVILL, Appellant, Amber The STATE of Texas.

Case Details

Case Name: Marks v. St. Luke's Episcopal Hospital

Court Name: Texas Supreme Court

Date Published: Aug 27, 2010

Citation: 319 S.W.3d 658

Docket Number: 07-0783

Court Abbreviation: Tex.