Nexion Health Management, Inc. and Nexion Health at Lumberton, Inc. v. Carolyn and David Waddell

AFFIRMED and Opinion Filed December 30, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00406-CV
NEXION HEALTH MANAGEMENT, INC. AND NEXION HEALTH AT
LUMBERTON, INC., Appellants
V.
CAROLYN AND DAVID WADDELL, Appellees
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-11781
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Pedersen, III, and Justice Evans
Opinion by Justice Evans
Appellants Nexion Health Management, Inc. and Nexion Health at
Lumberton, Inc. (collectively, “Nexion”) appeal the trial court orders denying their
motions to dismiss. In two issues, Nexion alleges that (1) the trial court abused its
discretion by denying the motions to dismiss because the Texas Medical Liability
Act (“TMLA”) applies in this case and (2) appellees Carolyn and David Waddills’
expert report was deficient. We affirm.
BACKGROUND
On December 24, 2018, Carolyn slipped on a puddle of water and injured
herself while visiting her mother (Lois Chance), a resident at a long-term care facility
called Village Creek Rehabilitation and Nursing Center. Specifically, Carolyn
alleged that during her visit “she walked down the hall from her [mother’s] room to
the nurses’ station. As she walked down the hallway, she slipped in a puddle of
water that had accumulated on the floor.”
On August 13, 2019, Carolyn and David filed a lawsuit against Nexion— as
the owner and operator of Village Creek Rehabilitation and Nursing Center—
alleging claims of premises liability and negligence. Nexion filed an answer and
plead “all defenses set forth in Chapter 74 of the Texas Civil Practice and Remedies
Code, including, but not limited to §§ 74.301 and 74.303.” Carolyn and David filed
a motion for partial summary judgment “to show the provisions of Chapter 74 of the
Texas Civil Practice & Remedies Code do not apply to this action.” In their
pleadings, Carolyn and David further alleged:
Texas’s medical malpractice statute requires the Plaintiff in a med-mal
case to serve an expert report within 120 days of the Defendant’s
answer. This is not a med-mal case because the Victim is not a patient,
the injury did not involve medical care, and the wrongful actions by
Defendants do not arise from medical services. Nevertheless, in an
abundance of caution, Plaintiffs obtained an expert report before filing
the lawsuit and served that report on Defendant within the time
required.
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(emphasis added). Nexion filed objections to their expert report and a motion to
dismiss alleging the claims should be dismissed because the expert report did not
meet the requirements of the statute. On March 5, 2020, the trial court held a hearing
on Nexion’s objections to the expert report and the motion to dismiss. At the
hearing, the trial court noted that it was familiar with the Texas Supreme Court case
law on point, stating “I am familiar with Ross. It’s very simple. It seems to be very
analogous to this case.”1 The trial court denied the motion “[b]ased upon the
pleadings, argument of counsel, all other matters of record, and the applicable law.”
The trial court stated that it was “of the opinion that said objections are not
meritorious and are in all things DENIED.” Nexion then filed this interlocutory
appeal.
ANALYSIS
A. TMLA
In its first issue, Nexion alleges that the trial court abused its discretion by
denying its motions to dismiss.
1) Standard of review
Generally, an appellate court reviews a trial judge’s decision on a motion to
dismiss a claim under section 74.351 of the Texas Civil Practice and Remedies Code
for an abuse of discretion. Wilson N. Jones Mem’l Hosp. v. Ammons, 266 S.W.3d
1
Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 504 (Tex. 2015).
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51, 55 (Tex. App.—Dallas 2008, pet. denied). However, when the resolution of an
issue on appeal requires interpretation of a statute, the reviewing standard is de novo.
Id. Therefore, we review de novo the determination of whether a claim is a health
care liability claim for the purpose of applying chapter 74 of the Texas Civil Practice
and Remedies Code. Id.
2) Application of Ross factors
A cause of action constitutes a health care liability claim if it is 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 . . . .” See TEX. CIV.
PRAC. & REM. CODE §74.001(a)(13). The Texas Supreme Court has explicitly held
that for a safety-standards claim to be a health care liability claim, there “must be a
substantive nexus between the safety standards allegedly violated and the provision
of health care.” Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 504 (Tex.
2015). The Texas Supreme Court listed seven factors to consider when analyzing
whether a claim is substantively related to the defendant’s providing of medical or
health care and is therefore a health care 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;
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2. Did the injuries occur in a place where patients might be during the
time they were receiving care, so that the obligation of the provider to
protect persons who require special, medical care was implicated;
3. At the time of the injury was the claimant in the process of seeking
or receiving health care;
4. At the time of the injury was the claimant providing or assisting in
providing health care;
5. Is the alleged negligence based on safety standards arising from
professional duties owed by the health care provider;
6. If an instrumentality was involved in the defendant's alleged
negligence, was it a type used in providing health care; or
7. Did the alleged negligence occur in the course of the defendant's
taking action or failing to take action necessary to comply with safety-
related requirements set for health care providers by governmental or
accrediting agencies?
Id. at 505. When we examine these factors or considerations, we focus on the
essence of the cause of action. City of Houston v. Hussein, No. 01-18-00683-CV,
2020 WL 6788079, at *13 (Tex. App.—Houston [1st Dist.] Nov. 19. 2020, no pet.
h.). 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 TMLA? Id. The pivotal issue is whether the safety
standards implicated Nexion’s duties as a health care provider. Ross, 462 S.W.3d at
505.
On three separate occasions, the Texas Supreme Court has held that a claim
based on a slip and fall in a hospital does not create a substantive relationship
between the safety standards the visitor alleges the hospital breached and the
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provision of health care and, thus, cannot constitute health care liability claims. See
Ross, 462 S.W.3d at 505; Galvan v. Mem’l Hermann Hosp. Sys., 476 S.W.3d 429
(Tex. 2015); and Reddic v. E. Tex. Med. Ctr. Reg’l Health Care Sys., 474 S.W.3d
672 (Tex. 2015). Despite this precedent, Nexion asserts in this case the “largely
uncontroverted evidence weighs heavily in favor of classification as an [health care
liability claim].” Accordingly, we analyze each of the Ross factors below.2
i) 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?
In the petition, Carolyn and David assert as follows:
During Mrs. Waddell’s visit with her mother, she walked down the hall
from her room to the nurses’ station. As she walked down the hallway,
she slipped in a large puddle of water that had accumulated on the floor.
Mrs. Waddell did not see the puddle prior to slipping because the floors
were shiny and waxy and the puddle was clear. The puddle had formed
at the base of a large ice-chest cooler. Apparently, the cooler had been
leaking for quite a while; after slipping, Mrs. Waddell realized that the
water extended nearly all the way across the hallway.
The sole task at issue in this case was Nexion’s maintenance of the floors. Nexion
asserts that the “Fall Prevention Procedure Manual for Long-Term Care applies both
to the resident rooms and the hallway in which Mrs. Waddell fell.” Nexion further
asserts that at its facility “many of the patients are frail and could be seriously injured
2
Nexion first asserts that Reddic, Galvan and Ross all suffered the same fatal flaw which this case does
not: “a lack of any evidence to support the contention that patients frequented the area” where the accident
occurred. As this issue is addressed in our analysis of the Ross factors below, we need not address this
issue separately.
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by a fall. As such, the standard of care for a nursing and rehabilitation facility such
as Village Creek is that the hallways and the walkways utilized by patients and
guests remain free of slip, trip and fall hazards.” Here, however, Nexion admits that
maintaining the hallways is not exclusively for the benefits of its patients, but also
for its guests. Thus, Nexion’s duties to maintain its floors were no different from
any other business owner. See Ross, 462 S.W.3d at 499 (non-patient slipped in
hospital where floor were being cleaned and buffed not a health care liability claim);
Galvan, 476 S.W.3d at 429-30 (non-patient slipped on water on hospital floor);
Reddic, 474 S.W.3d at 673-74 (non-patient slipped on floor mat in hospital); see
generally Strunk v. Belt Line Rd. Realty Co., 225 S.W.3d 91, 100 (Tex. App.—El
Paso 2005, no pet.) (truck driver slipping in puddle with algae on driveway raised
some evidence of lack of maintenance supporting premises liability claim). A
safety-standards claim does not fall with the TMLA just because the underlying
occurrence took place in a health care facility. See Tex. Health Presbyterian Hosp.
Dallas v. Burch, No. 05-14-00665-CV, 2015 WL 273119, at * 2 (Tex. App.—Dallas
Jan. 22, 2015, no pet.) (mem. op.) (“This Court has held on numerous occasions that
the mere fact that the alleged injuries occurred at a hospital is insufficient to
transform a negligence claim into a health care liability claim.”). In accordance with
this well-settled law, we conclude that Nexion’s negligence did not occur in the
course of it performing a task with “the purpose of protecting patients from harm”
and this factor weighs against a finding of a health care liability claim.
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ii) 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?
The evidence in this case establishes that Carolyn fell in the hallway in
between her mother’s room and the nurses’ station. Nexion alleges although the
majority of the patient medical care is performed in the patient rooms, “each patient
must exit their room and travel the hallway at issue.” We find this argument
unpersuasive for several reasons. First, we note that the Supreme Court has provided
guidance in this matter:
We agree that floor care in an area frequented by persons seeking or
receiving health care is related to the provision of health care. But as
we determined in Ross, the Act requires that for a claim to be a [health
care liability claim], it must have more of a relationship to the provision
of health care than it arises from an occurrence inside a hospital.
Reddic, 474 S.W.3d at 675. Here, Nexion has not provided any evidence that its
patients receive medical care in the hallways, they simply assert that it is enough that
the patients must use the hallway. That Nexion’s patients traverse the floors is not
receiving health care. See Ross, 462 S.W.3d at 498; Galvan, 476 S.W.3d at 672-73;
Reddic, 474 S.W.3d at 429; South Place SNF, LP v. Hudson, 606 S.W.3d 829, 832,
834 (Tex. App.—Tyler 2020, pet. denied) (visitor slipped and fell on a patient’s
urine from a leaky catheter bag in dining room of nursing facility not a health care
liability claim); Tex. Health Presbyterian Hosp. Dallas, 2015 WL 273119 at *1
(visitor slipped and fell on the way to elevators in hospital not a health care liability
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claim). Here, the record does not demonstrate that patients were receiving care in
the hallways, nor did Nexion demonstrate that Carolyn’s claim had a relationship to
the provision of health care other that it arose from an occurrence inside a hospital.
Reddic, 474 S.W.3d at 675. For this reason, this factor does not favor Nexion’s
position.
iii) At the time of the injury was the claimant in the
process of seeking or receiving health care?
As Nexion does not contend that Carolyn was seeking or receiving health care
at the time of the accident and the alleged facts indicate she was not seeking or
receiving health care, this factor weighs against a finding of a health care liability
claim.
iv) At the time of the injury was the claimant
providing or assisting in providing health care?
In regard to this factor, Nexion references numerous allegations from the
petition in support of its assertion that Carolyn was “providing or assisting in
providing health care” including: (1) Carolyn was encouraged to be an “active
participant” in her mother’s care; (2) Carolyn supplied shower products, helped
bathe her, brought her mother food, attended care plan meetings, did her mother’s
hair and other small tasks; and (3) Carolyn was encouraged to visit on holidays and
special occasions because “Nexion stressed it was a benefit to the resident and the
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facility that family be around at the holidays.”3 Nexion does not support these
assertions with citation to any authority. Carolyn’s walking through the hall to visit
her mother is not the provision of health care even if Carolyn’s visits and caring for
her mother has general benefits to her mother. Accordingly, this factor does not
favor Nexion’s argument.
v) Is the alleged negligence based on safety standards
arising from professional duties owed by the
health care provider?
In regard to this factor, Nexion reasserts that same arguments raised in regard
to the first factor. For all the reasons addressed above, we decline to conclude that
the alleged negligence in this case was based on safety standards arising from
professional duties owed by the health care provider, so this factor weighs against a
finding of a health care liability claim.
vi) If an instrumentality was involved in the
defendant's alleged negligence, was it a type used
in providing health care?
In their amended petition, Carolyn and David alleged that a “puddle had
formed at the base of a large ice-chest cooler, which upon information and belief
was designed and manufactured by Igloo” and “the cooler had been leaking for a
3
In response, Carolyn submitted an affidavit stating as follows: “I was neither seeking nor providing
healthcare at the time of my visit on December 24th, 2018 – I am not qualified to provide healthcare – I am
not a doctor or a nurse nor am I employed by a healthcare facility.”Nexion asserts in its brief that Carolyn’s
affidavit “is not competent evidence and should be disregarded pursuant to the sham affidavit doctrine and
because it is conclusory, containing no explanation for contrary judicial admissions.” Nexion asserts that
the trial court erred in overruling its objection to the conclusory nature of its affidavit. As we conclude this
factor against Nexion even without Carolyn’s affidavit, we need not address this argument.
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quite a while because of a defective gasket.” The amended petition named Igloo
Products Corporation as an additional defendant and asserted a product liability
claim against it. In addition, Nexion submitted two affidavits of Delphia Smith, the
administrator of Nexion, dated January 2, 2020 and February 26, 2020. In her
affidavits, Smith stated that:
A plastic, mobile hydration cart containing an ice cooler is used for
patient hydration. The hydration cart is wheeled from patient room to
patient room in order to keep the long-term residents hydrated. To my
knowledge, no other ‘water cooler’ or ‘ice chest cooler’ was present on
the hallway at the time of the incident. The mobile hydration cart is
transported from room to room to assist in maintaining the hydration of
residents of Village Creek.
Exhibit A-1 is an invoice documenting the purchase of 2 mobile
hydration ice carts presented for inspection on February 7, 2020. The
invoice was provided by our medical equipment vendor, Direct Supply,
Inc. at my request and as a result of inquiries into the purchase date.
The carts are mobile and used to provide hydration for residents of the
facility. As the invoice reflects, the mobile hydration ice carts were
purchased in August of 2016. I am an authorized custodian of records
for Village Creek.
The affidavits, however, do not state that these “mobile hydration carts” were the
ones present in the hallway on December 24, 2018 when the accident occurred.
Further, Nexion’s response to Carolyn’s discovery request for the “brand, size, make
and purchase date of each water cooler that was present in the hallways of the facility
on December 24, 2018” provides as follows:
To the best of Nexion Health at Lumberton, Inc.’s knowledge, there
were two mobile hydration carts in use during the specified time period
that remain in use. Although Defendant makes no representation as to
the manufacturer, each of the hydration carts contains an ice chest
cooler marked with a “Rubbermaid” logo. The two hydration ice carts
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supplied for inspection on February 7, 2020 are manufactured by IPU,
Inc. and were purchased from a medical supplier on August 22, 2016.
In addition to the record failing to clearly identify which ice cooler was present on
the date of the accident, the record also fails to state explain why hydration would
be considered the provision of health care as opposed to a basic necessity.
Finally, we note that recent case law makes it unlikely that the ice cooler
would be considered an instrumentality of health care. See South Place SNF, LP,
606 S.W.3d at 834. In South Place, a visitor met an employee in the dining room of
a skilled nursing and rehabilitation facility. Id. at 832. When the visitor went to
leave the dining room, he slipped and fell in a puddle of urine which had leaked from
the catheter bag of a patient who at in the dining room at or near the time of the fall.
Id. at 834. When examining the sixth factor, our sister court stated as follows:
Finally, in considering the sixth Ross factor, South Place contends that
the patient’s catheter bag is an instrumentality used to provide health
care, and that negligent conduct caused urine to leak on the floor.
Although a catheter bag may generally be an instrumentality used to
provide health care, as we earlier stated, the leaky catheter created a
dangerous condition on the floor, but this is not substantially related to
the active provision of medical or health care. Therefore, although an
instrumentality might have been generally involved, there is no
substantive nexus between the safety standards allegedly violated and
the provision of health care that implicate South Place’s duties as a
health care provider.
Id. at 835 (internal citations omitted). Similarly, here the leaking ice chest created a
dangerous condition but not one substantially related to an active provision of health
care because there is no substantive nexus between the safety standards allegedly
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violated and the provision of health care. Id. For this reason, the sixth factor does
not favor Nexion.
vii) 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?
In regard to this factor, Nexion states “[t]here was no evidence submitted on
this element at the trial court level and none made part of the record.” Thus, this
factor does not support a finding of a health care liability claim.
After consideration of all of the Ross factors, we conclude the claims at issue
in this case are not health care liability claims. As we conclude that the trial court
properly denied the motions to dismiss, we need not address Nexion’s second issue
regarding the alleged deficiencies of the expert report.
B. Texas Rule of Appellate Procedure 45
In their brief, Carolyn and David assert that Nexion’s motion to dismiss was
“frivolous, time consuming and without basis” and request that this Court award just
damages to them. They assert that “[a]ppellants should have known, when their
legal research returned no cases that support their position and three Texas Supreme
Court decisions based on the same fact scenario of this case, that there are no
reasonable grounds to believe the ruling of the trial court would be reversed.”
Texas Rule of Appellate Procedure 45 provides as follows:
If the court of appeals determines that an appeal is frivolous, it may—
on motion of any party or on its own initiative, after notice and a
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reasonable time for response—award each prevailing party just
damages.
See Tex. R. App. P. 45. An appeal is considered “frivolous” when the record, viewed
from the perspective of the advocate, does not provide reasonable grounds for the
advocate to believe that the case could be reversed. See Owen v. Jim Allee Imports,
Inc., 380 S.W.3d 276, 290 (Tex. App.—Dallas 2012, no pet.). In the Owen case,
this Court further noted:
The decision to grant appellate sanctions is a matter of discretion that
an appellate court exercises with prudence and caution and only after
careful deliberation. Although imposing sanctions is within our
discretion, we will do so only in circumstances that are truly egregious.
Id. (internal citations omitted). Here, Nexion’s argument, although ultimately
unpersuasive, hinged on the distinction that the prior case law “turned on the absence
of any evidence” while its case had some evidence in support the Ross factors.
Although we affirm the decision of the trial court, we decline to impose sanctions as
we conclude that this case does not arise to the level of “truly egregious.”
CONCLUSION
On the record of this case, we affirm the trial court’s orders denying the two
motions to dismiss filed by Nexion.
/David Evans/
DAVID EVANS
200406F.P05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NEXION HEALTH On Appeal from the 162nd Judicial
MANAGEMENT, INC. AND District Court, Dallas County, Texas
NEXION HEALTH AT Trial Court Cause No. DC-19-11781.
LUMBERTON, INC., Appellants Opinion delivered by Justice Evans.
Chief Justice Burns and Justice
No. 05-20-00406-CV V. Pedersen, III participating.
CAROLYN AND DAVID
WADDELL, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee CAROLYN AND DAVID WADDELL
recover their costs of this appeal from appellants NEXION HEALTH
MANAGEMENT, INC. AND NEXION HEALTH AT LUMBERTON, INC.
Judgment entered December 30, 2020.
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