Enrique Lopez, Individually, and as Representative of the Estate of Tristan Lopez v. Guiding Light, LLC ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00561-CV
Enrique LOPEZ, Individually, and as Representative of the Estate of Tristan Lopez, Deceased,
Appellant
v.
GUIDING LIGHT, LLC,
Appellee
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2019CI21729
Honorable Norma Gonzales, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Irene Rios, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: December 1, 2021
AFFIRMED
This appeal arises from the trial court’s granting of Guiding Light, LLC’s Texas Civil
Practice and Remedies Code section 74.351 motion to dismiss the survival and wrongful death
lawsuit filed against it by Enrique Lopez, Individually and as Representative of the Estate of
Tristen Lopez, Deceased (“Lopez”). We affirm.
BACKGROUND
In August 2018, the Texas Department of Family and Protective Services (the
“Department”) was granted temporary managing conservatorship of Lopez’s fourteen-year-old
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son, T.L. In that same month, T.L. was admitted to Renaissance Behavioral Center (“RBC”)
because he made threats of suicide. RBC later recommended T.L. “attend a residential treatment
center to achieve maximum stability before attempting to place him with a foster family.” On
September 4, 2018, T.L. was transferred to Guiding Light, which is a residential child-care facility
operated pursuant to a contract with the Department. On the evening of September 16, T.L. and
another resident got into a physical altercation and a staff member called the Bexar County
Sheriff’s Office. The events of the evening are disputed; however, the Sheriff’s incident report
indicates that when the deputies arrived, staff members were performing CPR on T.L. He was
transported to a hospital by EMS and died fifteen days later.
Lopez sued Guiding Light alleging wrongful death and survival claims. Lopez contended
it was unclear whether T.L. died at the hands of the other resident or one of the staff members
attempting to end the fight. He alleged Guiding Light was negligent because it failed to (1)
properly and adequately train and supervise its employees; (2) oversee and supervise the young
men entrusted to Guiding Light; and (3) exercise reasonable care to avoid a foreseeable risk of
injury to others.
Guiding Light answered and filed its motion to dismiss, alleging Lopez’s suit should be
dismissed with prejudice because he failed to serve an expert report within the 120-day deadline
set forth in section 74.351(a). Lopez responded that he was not required to file an expert report
because Guiding Light was not a health care provider and his claim was not a health-care liability
claim. The trial court conducted a hearing, and later signed an order granting Guiding Light’s
motion to dismiss with prejudice and awarding Guiding Light attorney’s fees. This appeal ensued.
STANDARD OF REVIEW
Generally, we review a trial court’s order granting or denying a motion to dismiss under
section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of discretion. Am.
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Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). However,
whether a petition asserts a health care liability claim under the statute is a question of law
reviewed de novo. See Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012);
Heriberto Sedeno, P.A. v. Mijares, 333 S.W.3d 815, 818 (Tex. App.—Houston [1st Dist.] 2010,
no pet.). “[W]hen making that determination courts should consider the entire court record,
including the pleadings, motions and responses, and relevant evidence properly admitted.”
Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012).
APPLICABILITY OF THE TEXAS MEDICAL LIABILITY ACT
Civil Practice and Remedies Code Chapter 74, also known as the Texas Medical Liability
Act (the “Act”), requires health care liability claimants to serve an expert report upon each
defendant not later than 120 days after that defendant’s answer is filed. TEX. CIV. PRAC. & REM.
CODE § 74.351(a). The purpose of the expert report requirement is to weed out frivolous
malpractice claims in the early stages of litigation, not to dispose of potentially meritorious claims.
Palacios, 46 S.W.3d at 877; see also Loaisiga, 379 S.W.3d at 258 (“[Expert report] requirements
are meant to identify frivolous claims and reduce the expense and time to dispose of any that are
filed.”). In accordance with that purpose, the Act provides a mechanism for dismissal of the
claimant’s suit in the event of an untimely or deficient report. TEX. CIV. PRAC. & REM. CODE
§ 74.351(b); see also Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018). “If,
as to a defendant physician or health care provider, an expert report has not been served within the
period specified by Subsection (a), the court, on the motion of the affected physician or health care
provider, shall, subject to Subsection (c), enter an order that:
(1) awards to the affected physician or health care provider reasonable attorney’s
fees and costs of court incurred by the physician or health care provider; and
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(2) dismisses the claim with respect to the physician or health care provider, with
prejudice to the refiling of the claim.
TEX. CIV. PRAC. & REM. CODE § 74.351(b).
“The broad language of the [Act] evidences legislative intent for the statute to have
expansive application.” Loaisiga, 379 S.W.3d at 256. “The breadth of the statute’s text essentially
creates a presumption that a claim is [a healthcare 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 care, treatment, or confinement.” Id. “But the presumption is necessarily rebuttable.”
Id. “In some instances the only possible relationship between the conduct underlying a claim and
the rendition of medical services or healthcare will be the healthcare setting (i.e., the physical
location of the conduct in a health care facility), the defendant’s status as a doctor or health care
provider, or both.” Id.
A healthcare liability claim contains three basic elements: (1) a physician or health care
provider must be a defendant; (2) the claim or claims at issue must concern treatment, lack of
treatment, or a departure from accepted standards of medical care, or health care, or safety or
professional or administrative services directly related to health care; and (3) the defendant’s act
or omission complained of must proximately cause the injury to the claimant. See TEX. CIV. PRAC.
& REM. CODE § 74.001(a)(13).
In this case, Lopez did not file an expert report, and the trial court dismissed his suit with
prejudice. On appeal, Lopez contends he was not required to file an expert report because Guiding
Light failed to establish the Act applies to his claims. Lopez argues (1) Guiding Light is not a
health care provider and (2) he is not asserting a health care liability claim. Guiding Light had the
burden of establishing that it is a health care provider. Akhter v. Smooth Sols. DFW One, LLC, 04-
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11-00263-CV, 2012 WL 3776481, at *3 (Tex. App.—San Antonio Aug. 31, 2012, no pet.) (mem.
op.). We first address whether Guiding Light is a healthcare provider.
HEALTH CARE PROVIDER
Health care liability claims can only be asserted against physicians or health care providers.
See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13) (defining “health care liability claim”).
Guiding Light must be a health care provider for the rebuttable presumption to apply. See Bioderm
Skin Care, LLC v. Sok, 426 S.W.3d 753, 758 (Tex. 2014). The Act defines “health care” to mean
“any act or treatment performed or furnished, or that should have been performed or furnished, by
any health care provider for, to, or on behalf of a patient during the patient’s medical care,
treatment, or confinement.” TEX. CIV. PRAC. & REM. CODE § 74.001(10). A “health care provider”
means “any person, partnership, professional association, corporation, facility, or institution duly
licensed, certified, registered, or chartered by the State of Texas to provide health care . . ..” Id.
§ 74.001(a)(12)(A). Guiding Light contends it is a healthcare provider because it is a “corporation
duly licensed . . . by the State of Texas to provide health care . . ..” See id. § 74.001(12)(A)
(defining “health care provider”). 1
A. Is Guiding Light a Health Care Provider? 2
As described above, the Act defines “health care provider” as a “corporation . . . duly
licensed, certified, registered, or chartered by the State of Texas to provide health care,” including
certain persons and entities expressly listed. Id. § 74.001(a)(12)(A). “It is clear from the language
of section 74.001(a)(12)(A) that the general requirement of being ‘duly licensed, certified,
1
Guiding Light also contends its “Licensed Professional Counselor” (“LPC”), Treatment Director Manuel Lozano Jr.,
MS, is a health care provider. However, Lopez did not file suit against Lozano; therefore, his alleged status as a
healthcare provider is not relevant to whether Guiding Light is a healthcare provider.
2
For the first time on appeal, Lopez raises several objections to certain exhibits attached to Guiding Light’s motion
to dismiss. Because none of the objections were brought to the trial court’s attention, they are waived.
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registered, or chartered by the State of Texas to provide health care’ is primary to any consideration
respecting similarity to the persons and entities expressly listed thereafter.” Lutheran Soc. Services
of the S., Inc. v. Blount, 05-15-00380-CV, 2016 WL 1019191, at *7 (Tex. App.—Dallas Mar. 14,
2016, pet. denied) (mem. op.). Therefore, we begin our analysis by considering whether Guiding
Light demonstrated it meets the general requirement of being “duly licensed, certified, registered,
or chartered by the State of Texas to provide health care.” See TEX. CIV. PRAC. & REM. CODE
§ 74.001(a)(12)(A).
On appeal, Lopez urges this court to apply the reasoning in Shiloh Treatment Center, Inc.
v. Ward, 510 S.W.3d 36 (Tex. App.—Houston [1st Dist.] 2015, no pet.), to reverse the trial court’s
dismissal of his claim against Guiding Light. In that case, Shiloh Treatment’s license specifically
listed: “Type[s] of Treatment Services[:] Emotional Disorders[,] Mental Retardation[, and]
Pervasive Developmental Disorders.” Shiloh Treatment argued that because its child-care license
included “treatment services,” it was “licensed . . . to provide health care” pursuant to the Act. Id.
at 39. Shiloh Treatment also relied on the regulatory definition of “residential treatment center”
as “[a] general residential operation for 13 or more children or young adults that exclusively
provides treatment services for children with emotional disorders.” Id. at *4 (citing 40 TEX.
ADMIN. CODE § 748.43(40)).
The court of appeals disagreed and concluded Shiloh Treatment was “not licensed to be
anything other than a residential treatment center” and Shiloh Treatment had provided no evidence
of what treatment services it provided. Id. In rejecting Shiloh Treatment’s arguments, the court
of appeals stated in part, “[a]lthough Shiloh Treatment was authorized to provide treatment
services for emotional disorders, this alone cannot be enough to make it a health care provider.”
Id. at 40. The court observed (1) the regulatory definition cited by Shiloh Treatment “says nothing
about the kind or degree of treatment services rendered” and (2) although mental care facilities
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licensed under certain provisions of the Texas Health and Safety Code are specifically identified
in the Act as “health care providers,” Shiloh Treatment was not licensed under those provisions,
but rather was licensed pursuant to the Human Resources Code. Id. The court also reasoned that
while “[a] pedicurist may be said to ‘treat’ a callous; a yoga instructor may be said to ‘treat’
anxiety; [and] a teacher may be said to ‘treat’ a learning difference,” “none are automatically health
care providers rendering medical treatment to patients.” Id. (citing Skloss v. Perez, No. 01–08–
00484–CV, 2009 WL 40438, at *4 (Tex. App.—Houston [1st Dist.] Jan. 8, 2009, no pet.) (mem.
op.) (licensed professional counselor was health care provider because she was licensed to provide
medical treatment to patients)). Additionally, the court stated in part,
. . . According to [the Department], treatment services are “a specialized type
of child-care services designed to treat and/or support children.” . . . “Child-care
services [means] services that meet a child’s basic need for shelter, nutrition,
clothing, nurture, socialization, and interpersonal skills, care for personal health and
hygiene, supervision, education, and service planning.” . . . This suggests that
these services are general in nature and not medical services.
...
In addition, the record contains no evidence that Shiloh Treatment actually
provided any medical care or treatment to Ward or any other person. There is no
indication of how many members of Shiloh’s staff, if any, were medical personnel.
There is no evidence regarding the extent that medical personnel controlled or
influenced any child-care services rendered to Ward. There is no medical
documentation from Shiloh Treatment in the record. . ..
...
Given the sparse record evidence, we cannot conclude that Shiloh Treatment
was “duly licensed, certified, registered, or chartered by the State of Texas to
provide health care.”
Id. at 39-40 (citations omitted).
As in Shiloh, Guiding Light asserted that it is licensed by the Texas Health and Human
Services Commission and “has been issued a license to operate as a General Residential Operation
– Residential Treatment Center Under the Provisions of Chapter 42, Human Resources Code.”
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As a “General Residential Operation—Residential Treatment Center” and, as part of its
licensing and pursuant to Texas Human Resources Code section 40.058, it entered into a
Residential Child-Care Contract with the Department. Whether Guiding Light is a health care
provider requires this court to examine the type of operation Guiding Light was licensed to operate
and determine the type of services it was licensed to provide. The answers to these questions are
found in the Texas Human Resources Code and the Texas Administrative Code.
1. Type of operation
The Department’s Child-Care Licensing Division licensed Guiding Light as a residential
treatment center, which is a type of “general residential operation.” Shiloh, 510 S.W.3d at 39.
“[R]esidential treatment centers” (“RTCs”) are defined as “[a] general residential operation for 13
or more children or young adults that exclusively provides treatment services for children with
emotional disorders.” 26 TEX. ADMIN. CODE § 748.43(55); see also id. § 748.5 (defining RTC as
“general residential operations that provide treatment services to children with emotional
disorders.”). “RTCs, by definition, must always comply with the rules of this chapter as if 100%
of the children in their care require treatment services for emotional disorders.” Id. § 748.5. “This
includes, but is not limited to, services to individual children, personnel requirements, and
child/caregiver ratio requirements.” Id.
A “general residential operation” is “a child-care facility that provides care for seven or
more children for 24 hours a day, including facilities known as residential treatment centers and
emergency shelters.” TEX. HUM. RES. CODE § 42.002(19); see also 26 TEX. ADMIN. CODE
§ 748.43(27) (defining “general residential operation” as “A residential child-care operation that
provides child care for 13 or more children or young adults. The care may include treatment
services and/or programmatic services. These operations include formerly titled emergency
shelters, operations providing basic child care, residential treatment centers, and halfway
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houses.”). A “child-care facility” is defined to mean “a facility licensed, certified, or registered by
the department to provide assessment, care, training, education, custody, treatment, or supervision
for a child who is not related by blood, marriage, or adoption to the owner or operator of the
facility, for all or part of the 24-hour day, whether or not the facility is operated for profit or charges
for the services it offers.” Id. § 42.002(4). A “residential child-care facility” is defined to mean
“a facility licensed or certified by the department that operates for all of the 24-hour day. The term
includes general residential operations, child-placing agencies, specialized child-care homes,
cottage home operations, continuum-of-care residential operations, and agency foster homes.” Id.
§ 42.002(19).
However, these definitions say nothing about the degree of treatment services rendered or
the severity of emotional disorders treated. See Shiloh, 510 S.W.3d at 40 (holding same).
Therefore, we next look to the types of services Guiding Light was licensed to provide.
2. Types of services
The Administrative Code “set[s] forth rules that apply to General Residential Operations
and Residential Treatment Centers.” 26 TEX. ADMIN. CODE § 748.1. Licenses issued under
Chapter 748 regulate several types of services, including:
(1) Child-Care Services—Services that meet a child’s basic need for shelter,
nutrition, clothing, nurture, socialization and interpersonal skills, care for personal
health and hygiene, supervision, education, and service planning;
(2) Treatment Services—In addition to child-care services, a specialized type of
child-care services designed to treat and/or support children:
(A) With Emotional Disorders who have a current DSM-5
diagnosis, such as mood disorders, psychotic disorders, or
dissociative disorders, and demonstrate two or more of the
following:
(i) Major self-injurious actions, including a suicide attempt within
the last 12 months;
(ii) Difficulties that present a significant risk of harm to others,
including frequent or unpredictable physical aggression; or
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(iii) An additional DSM-5 diagnosis of substance-related and/or
addictive disorder with severe impairment . . ..
Id. § 748.61(1), (2).
Guiding Light’s license describes the “services” as “childcare” and the “treatment services”
as “emotional disorders.” The “children served” are boys ranging in age from six years old to
seventeen years old, with a “capacity” of seventy-six children. In its motion to dismiss, Guiding
Light contended it provided T.L. with professional mental health treatment for his severe
emotional and mental disorders. A license to provide treatment services for emotional disorders
“alone cannot be enough to make [Guiding Light] a health care provider”; see Shiloh, 510 S.W.3d
at 40; and nothing in Guiding Light’s license or in the statutory definitions of residential treatment
centers specifically describe the “treatment services” it is licensed to provide. However, our
standard of review requires us to review the entire record; therefore, we must look to other
evidence in the record to determine the types of services Guiding Light was licensed to provide.
“Nothing in [Civil Practice and Remedies Code] section 74.001 distinguishes between
mental and physical health care.” Fudge v. Wall, 308 S.W.3d 458, 462 (Tex. App.—Dallas 2010,
no pet.). The Act defines “health care” as “any act or treatment performed or furnished, or that
should have been performed or furnished, by any health care provider for, to, or on behalf of a
patient during the patient’s medical care, treatment, or confinement.” TEX. CIV. PRAC. & REM.
CODE § 74.001(a)(10). “Health care includes the care and treatment of mental conditions.” Fudge,
308 S.W.3d at 462; Mike Norgaard, LPC v. Pingel, 296 S.W.3d 284, 288 (Tex. App.—Fort Worth
2009, no pet.) (same); see also Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 850 (Tex.
2005).
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Guiding Light relied on the Residential Child-Care Contract it entered into with the
Department to demonstrate the mental health treatment services it was authorized to offer. 3 The
contract stated the goal of residential child care was, in part, “to protect the well-being of the Child,
enhance the Child’s functional abilities in a 24-hour residential child-care setting, and prepare the
Child for his/her Permanency Goal, by providing the following services as appropriate:”
A) Child-Care and Treatment Services;
B) Service Planning for educational, recreational, vocational, transitional and Basic
Life Skills;
C) Behavioral Health, diagnostic assessment, and health/preventive health care
services; . . ..
The contract also provided, in part, as follows:
[The Department] will determine the minimum services provided by the
Contractor [such as Guiding Light] to each Child based on the Child’s level of need.
The Department will designate the level of need as Basic, Moderate, Specialized,
or Intense, as described in Attachment C. The Contractor must provide services to
Children authorized at the Specialized and Intense Service Levels, and must
maintain full compliance with the associated Service Levels as described in
Attachment C for each Child placed with the Contractor.
The components of the contract included, among other things, that the contractor provide
diagnostic assessments, develop, coordinate, and implement a service plan that supports the
3
The Department “may enter into contracts or agreements with any person, including a federal, state, or other public
or private agency, as necessary to perform any of the department’s powers or duties.” TEX. HUM. RES. CODE
§ 40.058(a). “A contract for residential child-care services provided by a general residential operation . . . must include
provisions that:
(1) enable the department and commission to monitor the effectiveness of the services;
(2) specify performance outcomes, financial penalties for failing to meet any specified performance outcomes, and
financial incentives for exceeding any specified performance outcomes;
(3) authorize the department or commission to terminate the contract or impose monetary sanctions for a violation of
a provision of the contract that specifies performance criteria or for underperformance in meeting any specified
performance outcomes;
(4) authorize the department or commission, an agent of the department or commission, and the state auditor to inspect
all books, records, and files maintained by a contractor relating to the contract; and
(5) are necessary, as determined by the department or commission, to ensure accountability for the delivery of services
and for the expenditure of public funds.
Id. § 40.058(f).
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Department’s permanency plan for the child and address the services that would be offered to a
child to meet the child’s specific needs.
T.L. was admitted for “specialized care,” which the contract described as follows:
1) The Specialized Service Level consists of a treatment setting, preferably in a
family, in which Caregivers have specialized training to provide services that help
a person keep, learn or improve skills and functioning for daily living, therapeutic
and medical support and interventions including:
A. 24-hour supervision to ensure the Child’s safety and sense of
security, which includes close monitoring and increased limit
setting;
B. Affection, reassurance, and involvement in therapeutic activities
appropriate to the Child’s age and development to promote the
Child’s well-being;
C. Contact, in a manner that is deemed in the best interest of the
Child, with family members and other persons significant to the
Child to maintain a sense of identity and culture; and
D. Requires services that help a person keep, learn or improve skills
and functioning for daily living, therapeutic and medical
intervention and guidance that is regularly scheduled and
professionally designed and supervised to help the Child attain
functioning appropriate to the Child’s age and development.
2) In addition to the description in Subsection 1) of this Section, a Child with
primary medical needs or a Child that requires services that help a person keep,
learn or improve skills and functioning for daily living, including regular
interventions from a Skilled Caregiver who has demonstrated competence.
The specialized service level plan also required that
S501.01 An initial service plan for each Child is developed within 72 hours of the
Child’s admission.
S501.02 The diagnostic needs assessment and service plan for each Child are
developed by an interdisciplinary team or a full-time staff member with three years
of experience in treating Children with similar characteristics who has a master’s
degree in a mental health field from an accredited college or university and is
licensed as a therapist or counselor or has a professional medical license.
...
The contract required that, in addition to the service plan requirement at the specialized
service level, a service provider “expand the service plan to cover all of the Child’s waking hours
and include:”
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1501.01 A description of the emotional, behavioral, and physical conditions that
require intense services;
1501.02 A description of the emotional, behavioral, and physical conditions the
Child must achieve and maintain to be assigned to a lower Service Level;
1501.03 A description of the special treatment program and other services and
activities that are planned to help the Child achieve and maintain a condition
allowing a lower Service Level;
1501.04 Criteria for re-evaluating the Child’s condition after 90 days and deciding
whether to continue the placement at the Intense Service Level; continue the
placement at a lower Service Level; transfer the Child to a less restrictive setting;
or refer the Child to an inpatient hospital; and,
1501.05 The provider must ensure that an interdisciplinary team of professionals
develop, review, and supervise each Child’s service plan
Additionally, specialized service level employees were required to “arrange[] for
interventions such as individual, group, and family therapy to be conducted by professional
therapists; or behavior or medical intervention as directed by the service plan.”
We conclude Guiding Light’s evidence established it was licensed to offer mental health
treatment. Therefore, the next question is whether Guiding Light provided evidence to the trial
court that it actually provided such treatment to T.L. See Shiloh, 510 S.W.3d at 39 (“In addition,
the record contains no evidence that Shiloh Treatment actually provided any medical care or
treatment to Ward or any other person.”).
B. Did Guiding Light Provide Mental Health Treatment?
The Department’s “Application for Placement of Children in Residential Care” indicated
T.L. had “mental health needs requiring treatment.” The application recommended “specialized”
level of care because T.L. had suicidal ideations/self-harming behaviors, had been diagnosed with
ADHD, Tourette’s Disorder, and major depression “episode without psychosis.” He also was
alleged to have a history of assaultive behavior, including choking his two-year-old female sibling
and killing animals. The application listed the immediate goals of placement as providing T.L.
with a safe environment, the basic needs of food, clothing, and shelter. Long term goals included
providing him “with extensive therapy to address the underlying issues that led to the removal and
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to provide the child with life techniques so that he can have an opportunity to become a productive
citizen.”
As outlined, Guiding Light’s admission assessment of T.L. listed his level of care as
“specialized,” and noted the same history as contained in the Department’s application. The
assessment noted: “[T.L.] has mental health needs requiring treatment. [T.L.] is diagnosed with
Attention Deficit/Hyperactivity Disorder of the Combined Presentation and Major depressive
disorder, Recurrent episode, Severe without psychosis. [T.L.] has no substance abuse history.”
The assessment stated T.L. would “be examined by a physician while in placement at Guiding
Light to determine medical needs” and as follows:
V. OBJECTIVE OF PLACEMENT The objectives of this placement are to protect
[T.L.] from abuse and neglect and to provide [T.L.] with care that meets his needs
for permanency and belonging.
BASIC NEEDS [T.L.] has basic needs and requires food, shelter, and clothing; He
will also receive routine medical and dental care, a safe stimulating and nurturing
home environment that will include friendships and recreational activities.
Short-term Goals of Placement: The short-term goals of this placement are for
[T.L.] to receive regular medical and dental care, and be provided with a safe
environment. [T.L.] will be emotionally stable and demonstrate good social skills.
[T.L.] will attend school regularly and participate in social and recreational
activities.
Long-term Goals of Placement: [T.L.’s] long term goal for placement is
independent living skills and to maintain overall good physical, dental and medical
health. [T.L.] will demonstrate behavioral control and maintain positive
relationships. [T.L.] will learn to verbalize his feelings appropriately. Also, [T.L.]
will successfully complete school and will demonstrate good social skills.
The assessment stated T.L. would “receive anger management techniques, problems
solving skills, and learn to interact positively with peers to de-escalate negative behaviors.”
Guiding Light’s staff would “positively redirect [T.L.’s] behavior by being consistent with the
facility’s rules and consequences, as well as promoting fair practices[; and p]rovide commands
that are brief, calm, and non-confrontational.” The assessment also stated Guiding Light’s
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therapist would “maintain regular individual and group therapy sessions to address [T.L.’s]
behavior, problems solving skills, positive interactions with peers, impulse control, and provide
anger management techniques.”
Guiding Light also provided a “72-Hour Treatment Plan,” which stated: “[T.L.] will need
coping skills/techniques to help to manage his anger and obtain positive social skills, increase
impulse control as well as problem solving and decision-making techniques.” The plan described
T.L.’s “treatment services” as follows:
[T.L.] will receive individual therapy to work on his aggression, impulsivity,
depression and suicidal ideation. He will also need to understand how his actions
produce both negative and positive consequences from the caregivers. [T.L.] needs
to be involved in a structured recreational experience with peers in order to practice
positive social skills and develop friends. His therapy would also address [T.L.’s]
cognitive/academic needs and/or deficits.
...
[T.L.] will receive weekly individual and group therapy. He will also receive
appropriate psychological evaluations and monthly medication monitoring.
The plan listed the same responsibilities for its staff and therapists as listed on the
admission assessment. The “transitional living” section of the plan stated
As a resident of Guiding Light Residential Treatment Center, [T.L.] will
participates [sic] in individual therapy, group therapy, and staff daily groups that
will teach him problem solving, stress management, assessing consequences,
establishing goals and planning for the future. While at Guiding Light he will be
required to complete weekly chores such as washing dishes, sweeping, mopping,
taking the trash out, cleaning windows and/or assisting with setting the table, this
will teach him everyday life skills. Once [T.L.] turns 16 y/o, his caseworker will
submit a referral to PAL classes and a referral for Circle Of Support.
An “Individual Therapeutic Services Report,” completed by Guiding Light’s Treatment
Director, Manuel Lozano Jr., who is a licensed professional counselor, stated
This therapist [Lozano] inquired about what [T.L.] feels he needs to focus on
while in treatment. [T.L.] reported that he feels he needs to focus on “Depression
and Anger.” This therapist explained to [T.L.] that he and this therapist would
explore his behaviors, recommendations from [the Department], and put together a
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treatment plan. This therapist reviewed the expectations of the facility and how to
successfully adjust to the facility. This therapist also reviewed the rules of the
facility. [T.L.] indicated that he understood and added that if he can’t stay here
until he is 18 years old he will probably go to a foster home. Rapport was
established.
...
[T.L.] is seen in individual therapy on a weekly basis for 45 minute sessions.
The sessions take place in the RTC. He also participates in 45-minute group session
on a weekly basis.
Finally, Guiding Light attached to its motion to dismiss the affidavits of Lozano and its
Executive Director, Phyllis Bartell. Lozano attested he held three individual therapy sessions with
T.L. in September 2018 and created T.L.’s treatment plan based on T.L.’s medical history and
individual interview sessions. Lozano also stated that, in addition to his services, the medical team
consists of a psychiatrist, who is available via Telemed and sees each resident once every sixty
days or as needed, to assist in treating the psychiatric wellbeing of the residents. Bartell attested
that “[p]sychiatric treatment through our psychiatrist consultant & his/her colleagues is available
24 hours a day, seven days a week.”
We conclude Guiding Light established it is a health care provider based on (1) its license
to provide “treatment services” for “emotional disorders,” (2) the Department’s application for
placement that listed as a long term goal providing T.L. “with extensive therapy to address the
underlying issues that led to the removal and to provide the child with life techniques so that he
can have an opportunity to become a productive citizen,” (3) its contract with the Department to
provide these services, and (4) the evidence that it did, in fact, provide these services to T.L.
Therefore, we next examine whether Lopez’s claim is based on facts implicating Guiding Light’s
conduct during T.L.’s care and treatment. If it is, then we apply the rebuttable presumption that
the claim is a health care liability claim.
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04-20-00561-CV
HEALTH CARE LIABILITY CLAIM
One of the elements of a healthcare liability claim is that the claim or claims at issue must
concern treatment, lack of treatment, or a departure from accepted standards of medical care, or
health care, or safety or professional or administrative services directly related to health care. See
TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13).
Generally, we review a trial court’s order granting a motion to dismiss for failure to timely
file a section 74.351(a) expert report under an abuse of discretion standard; however, “[t]he nature
of the claims the Legislature intended to include under the [Act’s] umbrella is a matter of statutory
construction, a legal question we review de novo.” Tex. W. Oaks Hosp., 371 S.W.3d at 177; see
also Bioderm, 426 S.W.3d at 757; Akhter, 2012 WL 3776481, at *1 (citations omitted) (as a general
rule, “we review a trial court’s order granting a motion to dismiss for failure to timely file a section
74.351(a) expert report under an abuse of discretion standard”; however, “when the issue requires
a determination of whether Chapter 74 applies to a claim, the issue is one of statutory interpretation
that we review de novo”). “In construing a statute, our aim ‘is to determine and give effect to the
Legislature’s intent,’ and we begin with the ‘plain and common meaning of the statute’s words.’”
Tex. W. Oaks Hosp., 371 S.W.3d at 177 (citations omitted).
The Act’s broad language “evinces legislative intent for the statute to have expansive
application.” Bioderm, 426 S.W.3d at 758. In determining whether Lopez’s claim is a health care
liability claim, we focus on the underlying nature of the cause of action and we are not bound by
the pleadings. Diversicare, 185 S.W.3d at 847. Artful pleading does not alter that nature. Yamada
v. Friend, 335 S.W.3d 192, 196 (Tex. 2010). A claim based on one set of facts cannot be spliced
or divided into both a healthcare liability claim and another type of claim. See id. at 197;
Diversicare, 185 S.W.3d at 854. Thus, claims premised on facts that could support claims against
a physician or health care provider for departures from accepted standards of medical care, health
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04-20-00561-CV
care, or safety or professional or administrative services directly related to health care are
healthcare liability claims, regardless of whether the plaintiff alleges the defendant is liable for
breach of any of those standards. See Loaisiga, 379 S.W.3d at 255.
“In defining the types of claims against health care providers constituting [health care
liability claims], the question we face is not whether it seems that a claimed injury really arose
from treatment commonly understood to be some type of medical or health care; nor do we address
whether the incident causing the injury would have been a common law negligence claim.” Tex.
W. Oaks Hosp., 371 S.W.3d at 179. “Instead, the issue posed is whether the umbrella fashioned
by the Legislature’s promulgation of the [Act] includes the cause of action brought by a claimant
against physicians or health care providers.” Id. “[W]e determine whether the relevant allegations
are negligence claims or are properly characterized as [healthcare liability claims] under the Act.”
Id. In making the determination, we consider the entire court record, including the pleadings,
motions and responses, and relevant evidence properly admitted. Id. at 258.
There are several types of healthcare liability claims set forth in the Act. In addition to
claims involving treatment and lack of treatment, the Act contemplates claims for alleged
“departure[s] from accepted standards of medical care, or health care, or safety or professional or
administrative services directly related to health care.” TEX. CIV. PRAC. & REM. CODE
§ 74.001(a)(13) (emphasis added). All these categories of claims, except safety, are defined terms
in the Act. See, e.g., id. § 74.001(a)(10), (a)(19), and (a)(24) (defining “health care,” “medical
care,” and “professional or administrative services”). Guiding Light asserts Lopez’s claims allege
departures from accepted standards of “safety.” Lopez argues his claim is for ordinary negligence
and his claim relates to Guiding Light’s failure to act as a reasonably prudent child-care center
would under the same or similar circumstances in its supervision of T.L.
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The Act “does not specifically state that a safety standards-based claim falls within its
provisions only if the claim has some relationship to the provision of health care other than the
location of the occurrence, the status of the defendant, or both.” Ross v. St. Luke’s Episcopal
Hosp., 462 S.W.3d 496, 504 (Tex. 2015). “But the Legislature must have intended such a
relationship to be necessary, given the legislative intent explicitly set out in the [Act] and the
context in which ‘safety’ is used in the statute.” Id. The Ross Court concluded that, “[c]onsidering
the purpose of the statute, the context of the language at issue, and the rule of ejusdem generis, . . .
the safety standards referred to in the definition are those that have a substantive relationship with
the providing of medical or health care.” Id. “And if it were not so, the broad meaning of ‘safety’
would afford defendant health care providers a special procedural advantage in the guise of
requiring plaintiffs to file expert reports in their suits regardless of whether their cause of action
implicated the provision of medical or health care.” Id. The Court did not believe the Legislature
intended the statute to have such arbitrary results. See id.“The pivotal issue in a safety standards-based claim is whether the standards on which the
claim is based implicate the defendant’s duties as a health care provider, including its duties to
provide for patient safety.” Id. at 505. The line between a safety standards-based claim that is not
a healthcare liability claim and one that is “may not always be clear.” Id. “But certain non-
exclusive considerations lend themselves to analyzing whether such a claim is substantively
related to the defendant’s providing of medical or health care and is therefore a healthcare liability
claim”:
1. Did the alleged negligence of the defendant occur in the course of the defendant’s
performing tasks with the purpose of protecting patients from harm;
2. Did the injuries occur in a place where patients might be during the time they
were receiving care, so that the obligation of the provider to protect persons who
require special, medical care was implicated;
3. At the time of the injury was the claimant in the process of seeking or receiving
health care;
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04-20-00561-CV
4. At the time of the injury was the claimant providing or assisting in providing
health care;
5. Is the alleged negligence based on safety standards arising from professional
duties owed by the health care provider;
6. If an instrumentality was involved in the defendant’s alleged negligence, was it
a type used in providing health care; or
7. Did the alleged negligence occur in the course of the defendant’s taking action
or failing to take action necessary to comply with safety-related requirements set
for health care providers by governmental or accrediting agencies?
Id.“When we examine these factors or considerations, we focus on the essence of the cause
of action.” Nexion Health Mgmt., Inc. v. Waddell, 05-20-00406-CV, 2020 WL 7767938, at *2
(Tex. App.—Dallas Dec. 30, 2020, no pet.) (mem. op.). “For example, is the claim an ordinary
negligence claim or is the claim a health care liability claim as contemplated by the Legislature
when it provided for health care liability claims in the [Act]?” Id. Here, the pivotal issue is whether
the safety standards implicated Guiding Light’s duties as a health care provider.
In his petition, Lopez brought a negligence claim against Guiding Light based on the
following factual allegations:
This case arises out of a catastrophic incident that occurred at a group home for
young men on or around September 16, 2018 in San Antonio, Texas. On that date,
[T.L.] was fatally injured while living at a group home owned and operated by the
Defendant and located at 17602 Tucker Place, San Antonio, Texas 78221.
Specifically, and based on information and belief, [T.L.] and other young men at
the home were not adequately supervised, began to fight, and during the fight or
soon after, [T.L.] passed away. It is unclear at this time whether [T.L.] died at the
hands of another young man living at the home or at the hands of one of the
employees attempting to break up the fight. Either way, Guiding Light failed to
provide [T.L.] and its employees with adequate supervision, adequate training, or a
safe home environment.
Lopez alleged Guiding Light breached its duty of care by failing to (1) properly and
adequately train and supervise its employees; (2) properly oversee and supervise the young men
entrusted to it; and (3) exercise reasonable care to avoid a foreseeable risk of injury to others.
Because we have already determined Lopez’s claim satisfies the first element of a health care
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04-20-00561-CV
liability claim because Guiding Light is a health care provider, and Guiding Light did not dispute
that the third element of a health care liability claim (causation of the injury) was not satisfied,
Lopez may only rebut the presumption that his claim is a health care liability claim by proving his
claim does not constitute an alleged “departure[ ] from accepted standards of medical care or health
care.” See Bioderm, 426 S.W.3d at 759. Thus, we must determine whether Lopez’s claims
alleging Guiding Light failed to provide T.L. and its employees with adequate supervision,
adequate training, or a safe home environment implicate one or more of the standards listed in the
Act’s definition of a healthcare liability claim.
“When a plaintiff only alleges ordinary negligence against a health care provider, courts
have concluded the plaintiff did not assert a safety standard-based” healthcare liability claim. Tex.
Health Res. v. Coming Attractions Bridal & Formal, Inc., 552 S.W.3d 335, 340 (Tex. App.—
Dallas 2018), aff’d, 595 S.W.3d 659 (Tex. 2020). “Those cases generally involve injuries related
to the health care provider’s duties as a premises owner—duties owed by any business premises
owner to those lawfully entering the property—and wholly unrelated to the rendition of health
care. Because there was no substantive nexus between the safety standards allegedly breached and
the provision of healthcare in those cases, the claims were not considered” healthcare liability
claims. Id. (and cases cited therein). Unlike the allegations of ordinary negligence in these cases,
Lopez’s allegations are not merely related to Guiding Light’s duties as a premises owner or wholly
unrelated to the rendition of health care. Guiding Light’s alleged negligence is based on safety
standards uniquely arising from professional duties owed as a health care provider. See id. at 340.
We conclude Lopez alleged departures from safety standards that implicate Guiding Light’s duties
as a health care provider; therefore, Lopez asserts a healthcare liability claim. Our conclusion is
further supported by the Ross Court’s non-exclusive list of considerations for analyzing whether a
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claim is substantively related to a health care provider’s provision of medical or health care and,
therefore, a healthcare liability claim.
Four of the Ross factors support our conclusion that Lopez asserts a safety standards-based
healthcare liability claim, two factors do not, and one does not apply because no instrumentality
was involved in the alleged negligence. As to the first and second factors, Lopez alleged Guiding
Light failed to “properly oversee and supervise the young men entrusted to it” while T.L. was
living at Guiding Light’s facility. These allegations assert Guiding Light’s alleged negligence
occurred in the course of Guiding Light performing tasks with the purpose of protecting its
residents from harm in a place where residents might be during the time they were receiving care.
Therefore, the first and second factors weigh in favor of finding that Lopez’s claim is a healthcare
liability claim.
The third factor requires evidence that, at the time of the injury, T.L. was in the process of
seeking or receiving health care. Guiding Light argued peer interaction and structured recreational
experiences with other residents was part of T.L.’s treatment plan and, at the time of the incident,
T.L. and other residents were in Guiding Light’s living room area. On appeal, Guiding Light
suggests that “wrestling with another resident in the living room area . . . certainly could be
considered a recreational experience with peers of the type recommended by Lozano in T.L.’s
treatment plan.” Nothing in the record indicates any such recommendation was made and Guiding
Light points to no other evidence that therapists or other healthcare workers were present during
the incident. Therefore, the third factor weighs against a finding that Lopez’s claim is a healthcare
liability claim. The fourth factor also weighs against such a finding because there is no evidence
Guiding Light was in the process of providing or assisting in providing health care when the
incident occurred. The sixth factor does not apply because no instrumentality was involved in the
alleged negligence.
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The fifth and seventh factors require evidence regarding whether the alleged negligence
(1) is based on safety standards arising from professional duties owed by Guiding Light and (2)
occurred in the course of Guiding Light’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. The gravamen of Lopez’s claim is Guiding Light failed to provide adequate
supervision of T.L. and provide for a safe home environment, and failed to adequately train its
staff. These allegations implicate both an alleged departure from the accepted standards of safety,
and that T.L.’s health care provider violated the standard of health care owed to Guiding Light’s
residents. Thus, the fifth and seventh factors weigh in favor of a finding that Lopez’s claim is a
healthcare liability claim.
Furthermore, expert testimony is necessary when the alleged negligence is of such a nature
as not to be within the experience of laypersons. “[I]n considering whether a claim alleges a
departure from accepted standards of medical or health care, a court should first determine whether
expert medical or health care testimony is needed to establish the requisite standard of care and
breach.” Bioderm, 426 S.W.3d at 760. “And only if expert testimony is not needed should a court
proceed to consider the totality of the circumstances, as a claim may still be a health care liability
claim despite that ‘in the final analysis, expert testimony may not be necessary to support a
verdict.’” Id.
How a health care provider trains its employees and the steps a provider such as Guiding
Light must take to ensure a safe environment for its residents would likely fall outside a layperson’s
common knowledge. The range of alternatives available to a provider such as Guiding Light
requires medical judgment to select and implement. We, therefore, conclude an expert was
required at least as to some of the allegations in Lopez’s petition.
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While not all the Ross factors indicate Lopez asserts a safety standards-based healthcare
liability claim, the factors that do weigh strongly in favor of our conclusion that expert testimony
is required to prove or refute his claim. See SunBridge Healthcare Corp. v. Penny, 160 S.W.3d
230, 246 (Tex. App.—Texarkana 2005, no pet.) (necessity of expert on issue of corporate funding,
nursing home budgets, and staffing level standards); see also Rehabilitative Care Sys. of Am. v.
Davis, 73 S.W.3d 233, 234 (Tex. 2002) (per curiam) (disapproving of court of appeals statement
that negligent supervision claim against physical therapist could be determined without the aid of
expert testimony). We therefore conclude the record before us does not rebut the presumption as
it relates to the Act’s expert report requirements.
CONCLUSION
Because Lopez’s claim is a health care liability claim, it is subject to Civil Practice and
Remedies Code section 74.351. Lopez was therefore required to timely file an expert report within
120 days of Guiding Light’s original answer. He failed to do so; consequently, the trial court
correctly dismissed the suit with prejudice. Accordingly, we affirm the trial court’s dismissal with
prejudice of Lopez’s claims.
Lori I. Valenzuela, Justice
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