Ross v. St. Luke's Episcopal Hosp.

• Decision Date: 01 May 2015
• Docket Number: No. 13–0439,13–0439
• Parties: Lezlea Ross, Petitioner, v. St. Luke's Episcopal Hospital, Respondent
• Court: Texas Supreme Court

462 S.W.3d 496

Lezlea Ross, Petitioner

v.St. Luke's Episcopal Hospital, Respondent

No. 13–0439

Supreme Court of Texas.

Argued November 5, 2014

OPINION DELIVERED: May 1, 2015

Charles Creighton Carr II, Gregory Alan Schlak, Manning, Gosda & Arredondo, L.L.P., Houston, Lauren Nelson, Elizabeth Dale Burrus, Marsha A. Bradley, Kroger | Burrus, Houston, for Respondent.

Harold Kenneth ‘Ken’ Tummel, Tummel & Casso, Edinburg, Sean Michael Reagan, Leyh Payne & Mallia PLLC, Houston, for Petitioner.

Michael G. Guajardo, Guajardo & Marks, LLP, Dallas, Peter M. Kelly, Kelly, Durham & Pittard, L.L.P., Houston, for Amicus Curiae Texas Trial Lawyers Ass'n (TTLA).

Opinion

Justice Johnson delivered the opinion of the Court.

In this case a visitor to St. Luke's Episcopal Hospital sued the hospital on a premises liability theory after she slipped and fell near the lobby exit doors. The issue is whether her suit is a health care liability claim under the Texas Medical Liability Act. SeeTex. Civ. Prac. & Rem. Code ch. 74. The trial court and court of appeals concluded that it is. We hold that it is not, because the record does not demonstrate a relationship between the safety standards she alleged the hospital breached—standards for maintaining the floor inside the lobby exit doors—and the provision of health care, other than the location of the occurrence and the hospital's status as a health care provider.

We reverse and remand to the trial court for further proceedings.

I. Background

Lezlea Ross accompanied a friend who was visiting a patient in St. Luke's Episcopal Hospital. Ross was leaving the hospital through the lobby when, as she approached the exit doors, she slipped and fell in an area where the floor was being cleaned and buffed. She sued St. Luke's and Aramark Management Services, a company that contracted with the hospital to perform maintenance services, on a premises liability theory. Aramark is not a party to this appeal.

After Ross filed suit we decided Texas West Oaks Hospital, L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012). There we held, in part, that when a safety standards-based claim is made against a health care provider, the Texas Medical Liability Act (TMLA), Tex. Civ. Prac. & Rem. Code ch. 74, does not require the safety standards to be directly related to the provision of health care in order for the claim to be a health care liability claim (HCLC). Williams, 371 S.W.3d at 186. Relying on Williams, the hospital asserted that Ross's claim was an HCLC and moved for dismissal of her suit because she failed to serve an expert report.See Tex. Civ. Prac. & Rem. Code § 74.351(a), (b) (requiring dismissal of an HCLC if a claimant fails to timely serve an expert report); Williams, 371 S.W.3d at 186.

The trial court granted the motion to dismiss. The court of appeals affirmed. Ross v. St. Luke's Episcopal Hosp., 459 S.W.3d 617 (Tex.App.–Houston [14th Dist.] 2013). The appeals court concluded that under Williams it is not necessary for any connection to exist between health care and the safety standard on which a claim is based in order for the claim to come within the TMLA. Id. at 618–19.

Ross asserts that the lower courts erred because claims based on departures from “accepted standards of safety” do not come within the provisions of the TMLA unless there is at least some connection between the standards underlying the allegedly negligent actions and the provision of health care, even if they are not directly related. She then argues that her claims are not HCLCs because the hospital's alleged negligence is completely unrelated to the provision of health care.

The hospital responds with three arguments. It first urges that we lack jurisdiction. See Tex. Gov't Code § 22.001(a)(2), (3), (6). It next asserts that even if we have jurisdiction, Ross waived the issue of whether her claim is an HCLC because she failed to properly brief and urge it in the court of appeals. Third, the hospital addresses the merits by asserting that the court of appeals correctly held that a safety standards-based claim need not be related to health care to fall within the TMLA's provisions, but in any event Ross's claims are related to accepted standards of patient safety because she fell inside the hospital.

We first address our jurisdiction. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (noting that if a court does not have jurisdiction, its opinion addressing any issues other than its jurisdiction is advisory).

II. Jurisdiction

Texas Civil Practice and Remedies Code § 51.014(a)(10) permits an appeal from an interlocutory order granting relief sought by a motion to dismiss an HCLC for failure to file an expert report. Generally, the court of appeals' judgment is final on interlocutory appeals. See Tex. Gov't Code § 22.225(b)(3). However, we have jurisdiction if the justices of the court of appeals disagree on a question of law material to the decision, or if a court of appeals holds differently from a prior decision of another court of appeals or this Court. Id. § 22.225(c).

Ross asserts that this Court has jurisdiction because the court of appeals' opinion in this case conflicts with Good Shepherd Medical Center–Linden, Inc. v. Twilley, 422 S.W.3d 782 (Tex.App.–Texarkana 2013, pet. denied). In that case, Bobby Twilley, the director of plant operations for a medical center, asserted premises liability claims against his employer after he fell from a ladder and also tripped over a mound of hardened cement. Id. at 783. The medical center moved for dismissal under the TMLA because Twilley failed to file an expert report. Id. at 783–84. The trial court denied the motion and the medical center appealed, arguing that even though Twilley's claims were unrelated to the provision of health care, under Williams they still fell within the ambit of the TMLA. The court of appeals interpreted Williams as holding that a safety standards-based claim need not be directly related to the provision of health care to be an HCLC. Id. at 789. The court stated, however, that it did not understand Williams to hold that a safety standards claim falls under the TMLA when the claim is completely untethered from health care. Id. The appeals court concluded that at least an indirect relationship between the claim and health care is required and, because Twilley's claims did not have such a relationship, an expert report was not required. Id. at 785.

In this case the court of appeals held that under Williams “a connection between the act or omission and health care is unnecessary for purposes of determining whether Ross brings an HCLC.” Ross, 459 S.W.3d at 619. The hospital asserts that the decision of the court of appeals and Twilley do not conflict. But, for purposes of our jurisdiction, one court holds differently from another when there is inconsistency in their decisions that should be clarified to remove unnecessary uncertainty in the law. Tex. Gov't Code § 22.001(e). As other courts of appeals have noted, Ross and Twilley are inconsistent in their interpretations of Williams and the TMLA, leaving uncertainty in the law regarding whether a safety standards-based claim must be related to health care. See, e.g., Weatherford Tex. Hosp. Co. v. Smart, 423 S.W.3d 462, 467–68 (Tex.App.–Fort Worth 2014, pet. filed) ; DHS Mgmt. Servs., Inc. v. Castro, 435 S.W.3d 919, 922 & n.3 (Tex.App.–Dallas 2014, no pet.). That being so, we have jurisdiction and move to the hospital's waiver claim.

III. Waiver

The hospital argues that Ross waived any challenge to her claim being classified as an HCLC by failing to argue the point or cite relevant authority in the court of appeals. We disagree.

A brief in the court of appeals “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(I). Failure to provide citations or argument and analysis as to an appellate issue may waive it. See ERI Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010).

In her court of appeals brief, Ross discussed the purpose of the TMLA and asserted that classifying her claim as an HCLC would conflict with the Government Code. See Tex. Gov't Code § 311.021(3) (providing that when a statute is enacted, there is a presumption that “a just and reasonable result is intended”). The court of appeals implicitly determined that Ross's citations and argument were enough to avoid waiver because it addressed the issue. SeeRepublic Underwriters Ins. Co. v. Mex–Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004) (concluding that an argument in the court of appeals was not waived and noting that “we have instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule” (quoting V erburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997) )). We agree with the court of appeals that Ross did not waive the issue.

IV. Health Care Liability Claims

The merits of the appeal require us to review the lower courts' construction of the TMLA. Under such circumstances our review is de novo, Williams, 371 S.W.3d at 177, and our goal is to give effect to legislative intent. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013). In determining that intent we look first and foremost to the language of the statute. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). We construe a statute's words according to their plain and common meaning unless they are statutorily defined otherwise, a different meaning is apparent from the context, or unless such a construction leads to absurd or nonsensical results.See Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). Determining legislative intent requires that we consider the statute as a whole, reading all its language in context, and not reading individual provisions in isolation. See Union Carbide Corp. v....