Collin Creek Assisted Living Center, Inc. D/B/A/ Dayspring Assisted Living Community v. Christine Faber, Individually and as Heir at Law of Carmelina "millie" Smith ( 2023 )

Supreme Court of Texas
══════════
No. 21-0470
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Collin Creek Assisted Living Center, Inc. d/b/a DaySpring
Assisted Living Community,
Petitioner,
v.
Christine Faber, Individually and as Heir at Law of Carmelina
“Millie” Smith, Deceased,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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Argued October 5, 2022
JUSTICE BUSBY delivered the opinion of the Court, in which Chief
Justice Hecht, Justice Blacklock, Justice Bland, Justice Huddle, and
Justice Young joined.
JUSTICE YOUNG filed a concurring opinion, in which Justice
Blacklock joined.
JUSTICE BOYD filed a dissenting opinion, in which Justice
Lehrmann and Justice Devine joined.
This case presents an often-litigated issue: whether a cause of
action arising in the health care context is a “health care liability claim”
under the Texas Medical Liability Act, which requires a plaintiff to
submit an early expert report. Here, a resident of an assisted living
facility was seated backward on a rolling walker that a facility employee
was pushing along a sidewalk by the parking lot. When the walker
rolled over a crack in the sidewalk, it tipped, the two fell, and a week
later, the resident died. The resident’s daughter sued the facility and
later amended her petition so it alleged only a cause of action for
premises liability. The facility moved to dismiss for failure to file a
timely expert report.
We hold that the cause of action is a health care liability claim
because it meets the applicable factors we articulated in Ross v. St.
Luke’s Episcopal Hospital, 462 S.W.3d 496 (Tex. 2015). Because the
plaintiff failed to serve a timely expert report, her claim must be
dismissed. We reverse the court of appeals’ judgment, render judgment
dismissing the claim, and remand the case to the trial court for an award
of attorney’s fees, as required.
BACKGROUND
Defendant Collin Creek, which does business as DaySpring, is a
licensed Type-B assisted living facility. It must assist each resident with
activities identified on the resident’s individual service plan “related to
the care of [their] physical health,” which may include
“transferring/ambulating.” 40 TEX. ADMIN. CODE § 46.41(b)(1), (b)(1)(H).
2
Carmelina “Millie” Smith was a new resident at DaySpring with
a history of falls. 1 Her physician conducted general and neurological
evaluations of Smith in March and April 2014, recommended that she
move into an assisted living facility, and sent two history and physical
reports to DaySpring indicating that she used a walker and required
assistance ambulating. DaySpring used these reports in preparing
Smith’s service plan.
When Smith’s daughter, Christine Faber, came to pick Smith up
for a hair appointment, Faber asked a DaySpring employee to help
Smith to Faber’s car. The employee, a Personal Care Assistant, used a
rolling walker to wheel Smith down DaySpring’s sidewalk. Smith
seated herself on the walker, and the employee faced her, pushing Smith
backward. A wheel of the walker caught in a crack. The walker tipped
over, and Smith hit her head on the concrete. She died about a week
later from her injuries.
Faber sued DaySpring. Her original petition included claims for
negligence, negligent hiring, and premises liability. In its answer,
DaySpring alleged that it is a health care provider under the Texas
Medical Liability Act (TMLA or Act). TEX. CIV. PRAC. & REM. CODE
§§ 74.001-74.507. Because the TMLA requires a plaintiff to serve an
expert report within 120 days of the defendant’s original answer,
DaySpring moved to dismiss the case after the deadline passed without
Faber’s serving an expert report. See id. § 74.351(a).
1 One DaySpring assessment rated her mobility as “[t]otally
independent,” while another rated it as “[n]ot always reliable” and described
her as a “fall risk.”
3
Faber then amended her petition, removing all references to
DaySpring’s employee and dropping the claims based on the employee’s
conduct. What remained was a premises liability claim alleging that
“[w]hile exiting [DaySpring], Ms. Smith’s walker suddenly, and without
warning, became caught in a large crack in the concrete.”
The trial court dismissed Faber’s claim, and a panel of the court
of appeals affirmed. No. 05-18-00827-CV, 2020 WL 3529514 (Tex.
App.—Dallas June 30, 2020), opinion withdrawn and superseded on
reh’g en banc, 629 S.W.3d 630 (Tex. App.—Dallas 2021). Addressing the
seven factors outlined in Ross, the panel concluded that Faber’s claim
was a health care liability claim because the facts showed a violation of
safety standards with a “substantive nexus” to the provision of health
care. Id. at *3-5.
In an 8-5 decision, the en banc court vacated the panel’s judgment
and reversed the trial court’s judgment. 629 S.W.3d at 634. The
majority noted that Faber’s live pleading alleged only claims based on
the condition of DaySpring’s sidewalk, and it reasoned that there was
no substantive nexus between allegedly negligent sidewalk
maintenance and DaySpring’s duties as a health care provider. Id. at
639-642. Therefore, Faber’s claim was not a health care liability claim,
and no expert report was needed. Id. at 642-43.
ANALYSIS
We review de novo whether Faber asserted a health care liability
claim. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d
357, 363 (Tex. 2019). The en banc majority’s analysis of this issue was
skewed at the outset because it took an overly narrow view of the
4
relevant facts rather than considering the record as a whole. When the
walker and the employee’s conduct as well as the sidewalk crack are
taken into account, we conclude that Faber’s cause of action is a health
care liability claim.
I. Legal standards governing whether a cause of action is a
health care liability claim
The TMLA requires a claimant who asserts a “health care liability
claim” to serve one or more expert reports describing the applicable
standards of care, how the defendant’s conduct failed to meet those
standards, and how those failures caused the claimant harm. TEX. CIV.
PRAC. & REM. CODE § 74.351(a), (r)(6). If a claimant fails to serve a
compliant report within 120 days after the defendant files its original
answer, the trial court must dismiss the claim with prejudice and award
the defendant attorney’s fees and costs. Id. § 74.351(b).
A. Courts must consider the operative facts in the
record.
Whether the Act applies turns on the claim’s “underlying nature
. . . rather than its label.” Weems, 575 S.W.3d at 363; Lake Jackson Med.
Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 836-38 (Tex. 2022). To determine
a claim’s nature, a court must carefully define the universe of relevant
facts. How the court does so can significantly affect the outcome of the
analysis. Compare 629 S.W.3d at 639-643 (considering only DaySpring’s
conduct alleged to be negligent in the live petition and holding claim is
for premises liability), with id. at 645-48 (Reichek, J., dissenting)
(considering DaySpring’s conduct to include employee’s actions and
concluding claim is health care liability claim).
5
Courts must focus on the set of operative facts “underlying the
claim” that are relevant to the alleged injury, not on how “the plaintiff’s
pleadings describ[e] the facts or legal theories asserted.” Loaisiga v.
Cerda, 379 S.W.3d 248, 255 (Tex. 2012). If those facts “could support
claims against a physician or health care provider for departures from
accepted standards of medical care, health care, or safety or professional
or administrative services directly related to health care,” then the
TMLA applies “regardless of whether the plaintiff alleges the defendant
is liable for breach of any of those standards.” Id.; see also Yamada v.
Friend, 335 S.W.3d 192, 193 (Tex. 2010) (holding claims based on same
set of “underlying facts” as a health care liability claim are health care
liability claims); PM Mgmt.-Trinity NC, LLC v. Kumets, 404 S.W.3d 550,
550-52 (Tex. 2013) (same).
The relevant facts are not limited to those alleged in a claimant’s
live pleading. Gaytan, 640 S.W.3d at 838-39. 2 Instead, they should be
drawn from the “entire court record,” including “pleadings, motions and
responses, and relevant evidence properly admitted.” Loaisiga, 379
S.W.3d at 258.
2 In defining the scope of the set of facts underlying a particular claim,
it is useful to recognize that a distinct negligent act or omission by a different
party or conduct occurring at a different time that results in a distinct injury
may constitute a separate health care liability claim. See, e.g., Suleman v.
Brewster, 269 S.W.3d 297, 298-300 (Tex. App.—Dallas 2008, no pet.) (holding
claimant stated two health care liability claims when she first alleged doctor
was negligent regarding pressure sores and, later, negligent regarding
cardiology care); Puls v. Columbia Hosp. at Med. City Dall. Subsidiary, L.P.,
92 S.W.3d 613, 615, 618-19 (Tex. App.—Dallas 2002, pet. denied) (holding
claimant stated distinct health care liability claims when she first alleged
perfusionist was negligent and, later, nurses were negligent).
6
This broad scope of relevant facts helps to promote the Act’s
consistent and predictable application to the claims of similarly situated
plaintiffs and prevent gamesmanship. As we have explained, a
“claimant cannot avoid the Act’s application by artfully pleading claims
for ordinary negligence or premises liability.” Gaytan, 640 S.W.3d at
838; see also Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842,
851 (Tex. 2005); Ahmadi v. Moss, 530 S.W.3d 754, 757-58 (Tex.
App.—Houston [14th Dist.] 2017, no pet.); Med. Hosp. of Buna Tex., Inc.
v. Wheatley, 287 S.W.3d 286, 291 (Tex. App.—Beaumont 2009, pet.
denied).
B. The Ross analysis applies to claims concerning
alleged departures from standards that implicate
safety.
To determine whether a given set of operative facts could support
a health care liability claim, we turn to the language of the Act. See
Rogers v. Bagley, 623 S.W.3d 343, 350 (Tex. 2021). The Act defines a
health care liability claim as
a cause of action against a health care provider or
physician for treatment, lack of treatment, or other claimed
departure from accepted standards of medical care, or
health care, or safety 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 definition includes
three essential elements: (1) the defendant is a physician or health care
provider; (2) the claim is for treatment, lack of treatment, or another
departure from accepted standards of medical care, health care, or
7
safety or professional or administrative services directly related to
health care; and (3) the defendant’s act or omission proximately caused
the claimant’s injury or death. Tex. W. Oaks Hosp., LP v. Williams, 371
S.W.3d 171, 179-180 (Tex. 2012).
Faber does not dispute the first element: by statute, DaySpring is
a health care provider. See TEX. CIV. PRAC. & REM. CODE
§ 74.001(a)(11)(B) (defining “[h]ealth care institution” to include “an
assisted living facility licensed under Chapter 247, Health and Safety
Code”); id. § 74.001(a)(12)(A)(vii) (defining “[h]ealth care provider” to
include “a health care institution”). And Faber has alleged that
DaySpring’s departure from accepted standards proximately caused
Smith’s death. Consequently, only the second element is at issue:
whether her claim concerns “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.” Id. § 74.001(a)(13).
We have recognized various tests for determining whether the set
of operative facts underlying a claim concerns an alleged departure from
accepted standards of (1) medical care, (2) health care, (3) safety, or
(4) related professional or administrative services. For example,
claimed departures from medical or health care standards are analyzed
under a three-step framework outlined in Lake Jackson Medical Spa v.
Gaytan, see 640 S.W.3d at 844, while claimed departures from safety
8
standards are assessed under a seven-factor test articulated in Ross v.
St. Luke’s Episcopal Hospital, see 462 S.W.3d at 505. 3
But as we explain below, many claims implicate more than one
type of standard. And in some cases, it may be unclear whether a
standard implicates health care more than safety, and thus which prong
of the definition—and its associated test—applies. For example, the
standards that the health care provider relies upon here to argue that
the claim falls under the health care prong are defined in terms of safety.
In such cases, parties have briefed—and courts have
analyzed—alleged departures from health care standards separately
from alleged departures from safety standards. In addition, they have
addressed whether a safety standard has a “direct” relationship to the
provision of health care separately from whether it has a “substantive
nexus” to the provision of health care.
Because a cause of action need only concern a departure from one
type of standard for the Act to apply, this approach can be needlessly
burdensome. In cases where application of the health care prong is a
straightforward exercise, an analysis under the safety prong is
unnecessary.
Alternatively, if a claim alleges departures from safety standards
as well as health care standards, or if it is unclear whether a standard
applicable to a health care provider relates more to safety than to health
The concurrence suggests that the time may have come to revisit the
3
Ross factors. Post at 4-5 (Young, J., concurring). The concurrence
acknowledges, however, that no party has asked us to do so in this case. Id. at
6. Addressing the issues as framed by the parties, we apply the Ross factors
below.
9
care, parties and courts need not spend time and resources trying to
parse whether the claim falls on the health care or safety side of the line.
Rather, they can simply use our decision in Ross v. St. Luke’s Episcopal
Hospital to assess whether the second element is satisfied.
Consequently, we hold that when the operative facts concern alleged
departures from (1) health care standards that implicate safety;
(2) safety standards with a “direct” relationship to the provision of
health care; and/or (3) safety standards with a “substantive nexus” to
the provision of health care, parties and courts may address the second
element using a single Ross analysis.
1. Ross applies to all safety-standard claims.
The question whether a set of operative facts implicates an
alleged departure from accepted standards of safety (“safety-standard
claims”) has been analyzed in more than one way. A recurring issue in
determining whether claims fall under the safety prong is how closely
related the safety standards must be to the provision of health care for
the claim to qualify as a health care liability claim. A “direct”
relationship to health care is sufficient, but we later explained that it is
not necessary. Tex. W. Oaks Hosp., 371 S.W.3d at 185-86; see Ross, 462
S.W.3d at 502. Instead, at minimum, there must be a “substantive
nexus between the safety standards allegedly violated and the provision
of health care.” Ross, 462 S.W.3d at 504. And Ross provided seven
nonexclusive factors to assess whether a substantive nexus exists.
These factors are:
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;
10
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; [and]
7. Did the alleged negligence occur in the course of the
defendant’s taking action or failing to take action
necessary to comply with safety-related
requirements set for health care providers by
governmental or accrediting agencies?
Id. at 505. 4
4 We note that many courts of appeals conducting a substantive-nexus
analysis have concluded that a claim is a health care liability claim when a
majority of the following three circumstances are present: (1) the claimant is a
patient; (2) a health care professional was involved in the alleged departure
from accepted standards; and (3) the injury occurred in an area directly related
to health care or not generally accessible to the public. See, e.g., S. Place SNF,
LP v. Hudson, 606 S.W.3d 829, 834-35 (Tex. App.—Tyler 2020, pet. denied);
Univ. of Tex. Med. Branch v. Jackson, 598 S.W.3d 475, 481 (Tex. App.—
Houston [14th Dist.] 2020, pet. denied); Se. Tex. Cardiology Assocs. v. Smith,
593 S.W.3d 743, 748 (Tex. App.—Beaumont 2019, no pet.); Hous. Methodist
Willowbrook Hosp. v. Ramirez, 539 S.W.3d 495, 497, 501 (Tex. App.—Houston
[1st Dist.] 2017, no pet.); E. Tex. Med. Ctr. Gilmer v. Porter, 485 S.W.3d 127,
131 (Tex. App.—Tyler 2016, no pet.); Phillips v. Jones, No. 05-15-00005-CV,
11
In the wake of Ross, it has remained unclear whether courts and
litigants should analyze both whether a safety standard is directly
related to health care and whether it has a substantive nexus to health
care. Because standards with a “substantive nexus” to health care have
a sufficient relationship to constitute health care liability claims, courts
need only conduct the “substantive nexus” analysis under the Ross
factors; a separate “direct relationship” evaluation is unnecessary.
2. Ross applies to claims that allege departures
from health care standards that implicate
safety.
Ross has so far been limited to analyzing whether claims involve
claimed departures from safety standards. In cases where the facts
alleged involve departures from accepted standards of health care as
well as safety, courts have viewed the inquiries as distinct and
sometimes conducted two analyses.
But the Ross factors are capable of analyzing whether a claim
involves departures from accepted standards of health care that
implicate safety. Ross factors two through four and six reference “care”
or “health care” and are appropriate for evaluating alleged departures
from accepted standards of health care—such as an employee’s conduct.
Factors five and seven refer to “safety standards” and “safety-related
2016 WL 80561, at *2-3 (Tex. App.—Dallas Jan. 7, 2016, no pet.). On the other
hand, claims of sexual assault in a medical setting may present all three
circumstances, but they are not health care liability claims. See Loaisiga, 379
S.W.3d at 257. Because the parties focus on the Ross factors, we have no
occasion in this case to consider what role, if any, these circumstances should
play in the analysis.
12
requirements” and evaluate alleged departures from safety
standards—here, cracks in a health facility’s sidewalk. Consequently,
courts may use Ross to evaluate alleged departures from both safety and
health care standards, as well as alleged departures from standards for
health care providers that implicate safety.
II. Faber’s cause of action is a health care liability claim.
Applying these standards, we hold that Faber’s cause of action is
a health care liability claim. In determining the relevant scope of
conduct, we are not limited to the negligent conduct alleged in the
plaintiff’s live petition. See Gaytan, 640 S.W.3d at 839. Rather, as
discussed above, we consider the entire record to identify the set of
operative facts underlying the claim that is relevant to the alleged
injury.
Here, those facts include not only the crack in DaySpring’s
sidewalk but also the actions of DaySpring’s employee, the employee’s
use of the walker, and Smith’s status as a recipient of personal care
services. 5 If these facts, along with DaySpring’s failure to fix the crack,
5 We note that Faber’s original petition highlighted the role of
DaySpring’s employee and the walker. There, she alleged:
Day[S]pring’s lack of supervision and/or training of its
employees and failure to enact rules and regulations to ensure
the safety of the transport of Day[S]pring patients, such as Ms.
Smith, caused and produced Ms. Smith’s injuries.
...
Defendant Day[S]pring[] failed to care for Ms. Smith’s safety in
a manner that would have been maintained by a person of
ordinary prudence . . . .
13
could support a health care liability claim, Faber’s cause of action is a
health care liability claim. See id. at 838; Weems, 575 S.W.3d at 363,
366 n.37; Loaisiga, 379 S.W.3d at 255, 258.
DaySpring offers three theories in support of its position that
Faber’s premises liability cause of action is a health care liability claim.
It argues that the underlying facts involve alleged departures from
(1) health care standards that implicate safety; (2) safety standards with
a “direct” relationship to the provision of health care; and (3) safety
standards with a “substantive nexus” to the provision of health care.
Because we have held that the health care prong requires a
physician–patient relationship, we focus on the latter two arguments.
See Tex. W. Oaks Hosp., 371 S.W.3d at 180-81. We use a single Ross
analysis to assess whether DaySpring is correct. 6
Our dissenting colleagues contend that the Ross analysis is
categorically inapplicable here. They reason that DaySpring was not
providing health care to Smith because she signed a form acknowledging
as much and DaySpring did not furnish treatment to her as part of a
These facts are relevant not because Faber’s original petition focused on them
but because they are a part of the operative facts underlying the claim
regardless of how—or whether—they factored into Faber’s petition. Had Faber
originally limited her pleading to the defective sidewalk crack without
mentioning DaySpring’s employee or the walker, our analysis would be no
different.
6As DaySpring’s theories involve departures from accepted standards
of health care and safety, we primarily use factors two, three, and six to
evaluate the alleged departures from accepted standards of health care that
implicate safety: the employee’s conduct and the use of a walker. And we look
primarily to factors five and seven to analyze deviations from alleged safety
standards: Faber’s allegations relating to the sidewalk crack.
14
physician’s provision of medical care. Post at 14-15 (Boyd, J.,
dissenting). Thus, in their view, DaySpring’s alleged violations of safety
standards lack a substantive nexus to the provision of health care. Id.
at 15-17, 21. But neither Ross nor the Act supports this view of the
safety prong. Indeed, the dissent’s approach would supersede the Ross
factors by imposing a strict rule that the safety prong never applies
unless the defendant health care provider’s negligent act or omission
occurred during and as part of the provision of medical care by a
physician.
That approach rewrites the Act and contradicts our precedent.
We have held that although a claim alleging a “breach of health-care or
medical-care standards ‘must involve a patient-physician relationship’”
to qualify as a health care liability claim, a claim alleging a “breach of
safety, professional-services, or administrative-services standards” need
not. Gaytan, 640 S.W.3d at 841 n.13 (citing Tex. W. Oaks Hosp., 371
S.W.3d at 178-181). One reason for this conclusion is that the Act does
not define “safety,” so nothing in its text indicates that a
physician–patient relationship is required for a claim to fall under the
safety prong. To the contrary, the expert report requirement applies to
suits by a “claimant,” not a patient. TEX. CIV. PRAC. & REM. CODE
§ 74.351(a); see Tex. W. Oaks Hosp., 371 S.W.3d at 181.
We have held that the word “safety” broadly means “being secure
from danger, harm or loss,” Tex. W. Oaks Hosp., 371 S.W.3d at 184,
though the statutory context in which it is used requires that safety
standards “have a substantive relationship with the providing of
medical or health care.” Ross, 462 S.W.3d at 504. Thus, the underlying
15
facts need not indicate that a health care provider was providing medical
or health care and did so negligently for a claim to fall under the safety
prong. Rather, the safety prong applies when there are facts indicating
that the defendant did not follow standards “implicat[ing its] duties as
a health care provider . . . to provide for patient safety” as measured by
the Ross factors. See id. at 505. Unlike the dissent, we understand the
Ross factors to be tools for analyzing whether a safety standard bears
the necessary relationship to health care, not considerations that apply
only if that relationship is present. 7
We have also observed that “[t]he breadth of the statute’s text
essentially creates a presumption that a claim is [a health care liability
claim] if it is against a physician or health care provider and is based on
facts implicating the defendant’s conduct during the course of a patient’s
[medical] care, treatment, or confinement.” Loaisiga, 379 S.W.3d at 256
(emphases added). Thus, to fall under the safety prong, the claim need
not be against a physician or involve medical care; it can also be against
a health care provider and involve the patient’s treatment. 8 The Act
defines neither “treatment” nor “patient,” but both have ordinary
meanings that do not require the active provision of medical care by a
physician—much less a physician furnished by the health care provider.
Specifically, “treatment” includes management and care to ameliorate a
7The dissent argues that our opinion suggests a test different from the
Ross factors for measuring the necessary relationship. See post at 3 n.2. For
the reasons just explained, we respectfully disagree. See also infra note 16.
8 DaySpring also argues that Smith’s residence amounted to
confinement, but the record does not support that assertion.
16
medical condition, and a “patient” includes a recipient of professional
services directed toward the protection of health. 9
Here, DaySpring received a license to operate as a health care
provider, and it was providing personal care services to Smith to protect
her health and ameliorate a particular medical condition identified by
her personal physician: her history of falls, which was the very reason
her physician recommended that she move to an assisted living facility
like DaySpring. 10 Because DaySpring is an assisted living facility
licensed to provide health care, statutes and regulations require it to
provide quality care for the physical health and safety of its residents, 11
9 See Treatment, MERRIAM-WEBSTER.COM DICTIONARY, https://
www.merriam-webster.com/dictionary/treatment (last visited June 30, 2023)
(defining “treatment” as not only “the action or way of treating a patient or a
condition medically or surgically” but also “management and care to . . .
ameliorate . . . a medical condition”); Patient, MERRIAM-WEBSTER.COM
DICTIONARY, https://www.merriam-webster.com/dictionary/patient (last
visited June 30, 2023) (defining “patient” as not only “an individual awaiting
or under medical care and treatment” but also “the recipient of any of various
personal services”); Medical Definition of Patient, MELISSA CONRAD STÖPPLER,
MEDICINENET (Mar. 29, 2021), https://www.medicinenet.com/patient/
definition.htm (noting “considerable lack of agreement about the precise
meaning of the term ‘patient,’” which may include—according to the U.S.
Centers for Medicare and Medicaid Services—“[a]n individual who is receiving
needed professional services that are directed by a licensed practitioner of the
healing arts toward maintenance, improvement or protection of health or
lessening of illness, disability or pain”).
10 We do not understand the dissent’s proposed distinction between
treatment “recommended” versus treatment “order[ed]” by a physician. Post
at 16. Leaving aside unusual situations such as psychiatrists involved with
civil commitments, physicians generally recommend a course of treatment,
leaving it up to the patient to decide whether to undertake that treatment.
11TEX. HEALTH & SAFETY CODE § 247.026(a), (b)(2) (providing that
administrative standards for assisted living facilities must “protect the health
and safety of” residents and “ensure quality care”).
17
including safe surroundings 12 as well as staff trained in geriatric-care
tasks such as safely assisting ambulation and preventing accidents and
falls. 13 The Ross factors demonstrate that there is a substantive nexus
between this provision of care to a patient on the recommendation of a
physician and the alleged violations of safety standards that led to
Smith’s death.
First, Smith’s injuries occurred while a DaySpring Personal Care
Assistant (PCA) assisted Smith to her daughter’s car. DaySpring’s
functional assessment and service plan for Smith—which was informed
by her personal physician’s report—indicated that she had trouble
ambulating independently and required staff to provide standby
assistance, which the DaySpring PCA undertook to provide. As the en
banc dissent explained, “Faber’s request that the PCA assist Smith . . .
supports the conclusion that Smith sometimes required assistance to
walk . . . . [DaySpring] was obligated to provide these services to Smith
12 See, e.g., TEX. HEALTH & SAFETY CODE § 247.0011(a)(7) (providing
that assisted living facilities’ “quality of care” includes “safe surroundings”); 26
TEX. ADMIN. CODE § 553.103(d)(1) (providing that “[a]n assisted living facility
must ensure a . . . walk . . . is of slip-resistive texture and is uniform, without
irregularities”).
13 See TEX. HEALTH & SAFETY CODE § 247.026(f) (requiring assisted-
living facility employees who provide services to geriatric residents to meet
minimum geriatric-care training standards); 26 TEX. ADMIN. CODE
§ 553.253(c)(3)(A), (E) (stating “[a] facility must have sufficient staff” to
“maintain . . . safety” and ensure each resident receives “the kind and amount
of supervision and care required to meet his basic needs”), (d)(2)(A), (C), (D),
(G) (requiring facility to train attendants in “providing assistance with the
activities of daily living,” “safety measures to prevent accidents and injuries,”
“fall prevention,” and “actions to take when a resident falls”); 40 TEX. ADMIN.
CODE § 46.41(b)(1)(H) (requiring facility to assist with “activities related to the
care of the client’s physical health,” including “transferring/ambulating”).
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to protect her from harm and . . . they were . . . doing so at the time she
fell.” 629 S.W.3d at 646 (Reichek, J., dissenting).
Second, the location of the injuries similarly favors a finding that
Faber’s claim is a health care liability claim. We agree with the en banc
dissent that
[u]nlike a convalescence or nursing facility, the sine qua
non of an assisted living facility is a resident’s right to
remain a part of the community beyond the facility. See
TEX. HEALTH & SAFETY CODE § 247.064(b)(8) (resident has
right to highest level of independence, autonomy, and
interaction with community of which resident is capable).
Id. As DaySpring’s executive director described, the location of the
sidewalk crack was
outside DaySpring’s front entrance. This is a location
where DaySpring’s residents are commonly transported
and transferred into vehicles so they may attend activities
in the outside community. It was a path where residents
gained access to a car for handicap accessibility . . . .
DaySpring had an obligation to prevent falls in this area of
the front entrance when staff assistance is requested. For
many residents, Personal Care Assistants, along with
assistive devices, are provided to prevent falls when
residents are cared for in this area outside the front
entrance.
Third, the executive director’s description also shows that Smith
was receiving health care from the PCA at the time of her injury.
DaySpring is a health care provider by statute, and it had an obligation
to “provide or assist with . . . activities related to the care of the client’s
physical health” identified on the service plan, which for Smith included
19
“ambulating.” 40 TEX. ADMIN. CODE § 46.41(b)(1), (b)(1)(H). 14 As
explained above, this personal care assistance is “treatment” of a
“patient” that was being provided on the recommendation of Smith’s
physician. And Smith was receiving that treatment from the PCA at the
time she fell. The fourth factor is inapplicable. 15
Fifth, the negligence at issue is based on safety standards arising
from professional duties owed by the health care provider. DaySpring
is an assisted living facility licensed under Texas Health and Safety
Code Chapter 247. See TEX. HEALTH & SAFETY CODE § 247.021. It is
classified as a Type B facility and provides food, shelter, and services for
a patient community in need of personal care, particularly ambulation
assistance. See 26 TEX. ADMIN. CODE §§ 553.5(c), 553.7(a), 553.9.
Statutes and regulations require DaySpring to provide minimum
acceptable levels of care and protect resident health and safety; these
14 There is no dispute between the parties that this rule applies to
DaySpring. Our dissenting colleagues disagree, arguing that the rule applies
only to an assisted living facility that contracts with the government to provide
care to certain clients, and DaySpring did not provide services to Smith under
such a contract. Post at 18 n.9. We need not decide whether the dissent is
correct because other statutes and regulations include parallel requirements
that an assisted living facility follow standards that “protect the health and
safety” of residents, supervise and oversee their “physical . . . well-being,” and,
as required by the resident’s individual service plan prepared by the facility,
provide “assistance with . . . moving” and “transferring.” TEX. HEALTH &
SAFETY CODE §§ 247.002(5), 247.026(a); 26 TEX. ADMIN. CODE §§ 553.3(61),
553.5(c), 553.9(2); see also 26 TEX. ADMIN. CODE § 553.259(b)(1)-(2).
15In a particular case, the claimant will usually be seeking or receiving
health care, or providing or assisting in providing health care, but not both.
Thus, courts have recognized that if either factor supports the conclusion that
a claim is a health care liability claim, evaluation of the other factor is
unnecessary. See, e.g., Univ. of Tex. Med. Branch, 598 S.W.3d at 481 & n.3; E.
Tex. Med. Ctr. Gilmer, 485 S.W.3d at 131 & n.3.
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include obligations to maintain safe surroundings, understand its
residents’ needs for care and services, and meet those needs with
appropriately trained staff. See, e.g., TEX. HEALTH & SAFETY CODE
§§ 247.0011, 247.026(a), (f); 26 TEX. ADMIN. CODE §§ 553.253,
553.259(a)(1), (b)(1)-(2). Consequently, we use the fifth factor to
examine Faber’s allegations regarding DaySpring’s obligation to
maintain its sidewalk in a safe condition as well as the underlying facts
regarding DaySpring’s obligation to assist with ambulation needs.
Both health care facilities and non-healthcare businesses owe a
duty to invitees to maintain premises safe from unreasonably dangerous
conditions. When “the injury is one that could have occurred outside a
health facility,” the line between “what does and does not fall within the
coverage of the Act is not always clear.” Se. Tex. Cardiology Assocs. v.
Smith, 593 S.W.3d 743, 747 (Tex. App.—Beaumont 2019, no pet.). But
“[t]he pivotal issue in a safety standards-based claim is whether the
standards on which the claim is based implicate the defendant’s duties
as a health care provider, including its duties to provide for patient
safety.” Ross, 462 S.W.3d at 505 (emphasis added). Here, the relevant
question is whether DaySpring—as a health care facility charged with
caring for Smith’s physical health—violated a duty distinct from one
generally owed by businesses to all invitees. In other words, the
condition of DaySpring’s sidewalk must implicate alleged departures
from particular standards related to patient safety. See id. at 503
(considering whether “the area had to meet particular cleanliness or
maintenance standards related to the provision of health care or patient
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safety,” rather than “the same standards many businesses generally
have”).
The safety standards DaySpring allegedly violated here are
particular to assisted living facilities and, as discussed above, promote
the safety of facility residents in an area where they receive care; thus,
the fifth factor favors holding that Faber’s claim is a health care liability
claim. Assisted living facilities have heightened duties of sidewalk
maintenance compared to ordinary businesses. See 26 TEX. ADMIN.
CODE § 553.103(d)(1) (providing that “[a]n assisted living facility must
ensure a . . . walk . . . is of slip-resistive texture and is uniform, without
irregularities”). 16 Because the operative facts underlying Faber’s claim
include the cracked sidewalk outside DaySpring’s entrance, Faber’s
claim implicates a deviation from a safety standard specific to a
16The dissent characterizes this requirement as a “physical plant”
standard, rather than a standard specific to the needs of facility residents. Post
at 19. But even if the requirement could properly be labeled a “physical plant”
standard, we see no reason why that should make any difference under Ross.
As we discuss below, it is indisputably a “safety-related requiremen[t] set for
health care providers by governmental . . . agencies[.]” Ross, 462 S.W.3d at
505. In addition, the requirement that the facility ensure the slip-resistance
and uniformity of the walk is a “professional dut[y] owed by the health care
provider” that requires more than the ordinary duty of reasonable care, and it
applies “in a place” where residents “receiv[e] care” as we have explained. Id.
Thus, the standard is “substantively related to the safety” of those receiving
care. Reddic v. E. Tex. Med. Ctr. Reg’l Health Care Sys., 474 S.W.3d 672, 676
(Tex. 2015) (per curiam). Indeed, it is aimed specifically at ensuring their
safety: the point of imposing a special slip-resistance standard for assisted
living facilities is to “protect residents” in their care who may “need assistance
with movement.” TEX. HEALTH & SAFETY CODE § 247.0011(b-1) (providing
that department “shall protect residents” by regulating facility construction,
maintenance, and operation); 26 TEX. ADMIN. CODE § 553.9(2).
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particular type of health care provider—an assisted living facility—
rather than a duty owed by businesses generally.
The underlying facts relevant to Smith’s injury also include the
conduct of DaySpring’s PCA, so DaySpring’s duties in safely providing
ambulatory assistance are relevant to the fifth factor as well.
Regulations require DaySpring to conduct a comprehensive resident
assessment, prepare a service plan within fourteen days of admission,
and provide care according to the plan, including any required
assistance with transferring/ambulating as well as transport and escort
services. See id. § 553.259(b); 40 TEX. ADMIN. CODE § 46.41(b)(1)(H),
(b)(3). As noted above, this care must be provided by trained staff. See
supra note 13. The standard of care for providing such specialized
assistance is that of a reasonably prudent assisted living facility and is
informed by the applicable statutes and regulations, which provide
specific safety standards that such facilities must follow in carrying out
their duties as health care providers. See JSC Lake Highlands Ops., LP
v. Miller, 539 S.W.3d 359, 371 (Tex. App.—Dallas 2016) (analyzing
sufficiency of expert report regarding standard of care applicable to
assisted living facility), rev’d, 536 S.W.3d 510 (Tex. 2017). For all these
reasons, the fifth factor indicates that Faber’s claim is a health care
liability claim.
Sixth, an instrumentality used in providing health care—a rolling
walker—was involved in DaySpring’s conduct underlying Smith’s
injury.
[A] health care provider chose to use Smith’s walker as a
wheelchair, and, while transporting Smith, the walker
became lodged in a crack causing Smith to fall. Just as
23
patient transport is a type of health care, a wheeled walker,
which is used to transport residents at [DaySpring], is an
instrumentality used in providing health care. Indeed,
Smith’s physician noted in his assessment of Smith’s
suitability for [DaySpring] that she required a walker to
“assist” with transfers.
629 S.W.3d at 647 (Reichek, J., dissenting). Whether it is negligent to
transport a resident in this manner is a question well suited to expert
testimony. See Tex. W. Oaks Hosp., 371 S.W.3d at 190. As we have held,
“if expert medical or health care testimony is necessary to prove or refute
the merits of the claim against a physician or health care provider, the
claim is a health care liability claim.” Id. at 182.
Seventh, the allegedly negligent sidewalk condition occurred
because DaySpring failed to comply with safety-related requirements
set for health care providers by governmental agencies. As noted above,
the Texas Administrative Code requires assisted living facilities to
“ensure a ramp, walk, or step is of slip-resistive texture and is uniform,
without irregularities.” 26 TEX. ADMIN. CODE § 553.103(d)(1). Unlike in
Galvan v. Memorial Hermann Hospital System, there is no indication
here that DaySpring’s decisions regarding maintenance of its sidewalk
would have been motivated by a different, non-healthcare-specific safety
standard. See 476 S.W.3d 429, 429, 432-33 (Tex. 2015) (holding claim
was not health care liability claim when visitor slipped and fell in
hallway from water spilling from restroom; hospital’s decision to clean
water would have been motivated by safety standards applicable to all
businesses rather than healthcare-specific standards relating to
infection control).
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For these reasons, each applicable Ross factor supports the
conclusion that Faber’s cause of action is a health care liability claim.
We therefore hold that the Act required her to serve an expert report.
CONCLUSION
The TMLA’s expert-report requirement applies to Faber’s cause
of action because it constitutes a health care liability claim under our
analysis in Ross. Given Faber’s failure to serve an expert report before
the Act’s 120-day deadline, we reverse the court of appeals’ judgment
and render judgment dismissing her claim with prejudice. See TEX. CIV.
PRAC. & REM. CODE § 74.351(b)(2); TEX. R. APP. P. 60.2(c). The Act
requires the trial court to award DaySpring its reasonable attorney’s
fees and costs, see TEX. CIV. PRAC. & REM. CODE § 74.351(b)(1), and we
remand the case to the trial court for that purpose.
J. Brett Busby
Justice
OPINION DELIVERED: June 30, 2023
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