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. See TEX. 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.
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).
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
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.
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. See Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423,
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. Synatzske, 438 S.W.3d 39, 51 (Tex. 2014).
The TMLA defines a health care liability claim as:
TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13). This Court construed "safety" under the prior statute according to its common meaning as "the condition of being `untouched by danger; not exposed to danger; secure from danger, harm or loss.'" Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex. 2005) (quoting BLACK'S LAW DICTIONARY 1336 (6th ed. 1990)). We also recognized that the Legislature's inclusion of the word "safety" in the statute expanded the statute's scope beyond what it would be if the statute only included the terms medical care and health care. Id. The Court explained its disagreement with the position of Chief Justice Jefferson who, in a concurring opinion, argued that some of the patient's claims arising from an assault by another patient were premises liability claims:
Id. at 854.
The Legislature added the phrase "or professional or administrative services directly related to health care" to the definition
The next year we considered whether a psychiatric technician's claims for injuries in an altercation with a patient were HCLCs. Williams, 371 S.W.3d at 181. In reaching our decision we specifically and separately analyzed both whether the claims were based on the health care provider's allegedly departing from standards for health care, and whether they were also based on its allegedly departing from standards for safety. Id. at 180-86. Regarding the safety standards issue, we reviewed the definition of HCLC and determined that the phrase "directly related to health care" modified the terms immediately before it — professional or administrative services — but not the word safety. Id. at 185. We said that "Williams'[s] claims are indeed for departures from accepted standards of safety. We conclude that the safety component of HCLCs need not be directly related to the provision of health care and that Williams'[s] claims against West Oaks implicate this prong of HCLCs." Id. at 186. Because we also concluded that Williams's claims were HCLCs because they were for departures from health care standards, our decision that his claims were HCLCs rested on alternative holdings that are both entitled to stare decisis treatment: the claims were for departures from health care standards and they were for departures from safety standards. Id.; see State Farm Mut. Auto. Ins. Co. v. Lopez, 156 S.W.3d 550, 554 (Tex. 2004) (distinguishing alternative holdings from dictum).
The purpose of the TMLA's expert report requirement is not to have claims dismissed regardless of their merits, but rather it is to identify and deter frivolous claims while not unduly restricting a claimant's rights. Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011). And the Legislature did not intend for the expert report requirement to apply to every claim for conduct that occurs in a health care context. See Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012). For example, in Loaisiga patients claimed that a doctor improperly touched them during the course of medical exams and thereby assaulted them. 379 S.W.3d at 253. The trial court concluded that the claim was not an HCLC and the court of appeals affirmed. Id. at 254. We pointed out that the statutory definition of "health care" is broad ("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
Id. at 257. Our reasoning led to the conclusion that a patient's claim against a medical provider for assault during a medical examination is not an HCLC if the only possible relationship between the alleged improper conduct and the rendition of medical services or health care was the setting in which the conduct took place. Id.
In this case, the hospital advances two positions in support of the lower courts' rulings and its assertion that Ross's claim is an HCLC. First, it addresses slip and fall claims generally, and says that any slip and fall event within a hospital is directly related to health care because it necessarily is related to the safety of patients. Second, it focuses on Ross's claim specifically and argues that her claim is related to health care because she alleges the hospital breached standards applicable to maintaining a safe environment for patients. We disagree with both positions.
As to the hospital's first contention, even though the claims in Loaisiga were by a patient and the nature of the claims differ from Ross's safety standards-based claim, the principle we explicated there applies here. A safety standards-based claim does not come within the TMLA's provisions just because the underlying occurrence took place in a health care facility, the claim is against a health care provider, or both. See Loaisiga, 379 S.W.3d at 257.
As to its second contention, Ross alleged that the hospital failed to exercise reasonable care in making the floor safe. The standards Ross says the hospital breached regarding maintenance of its floor may be the same as the hospital's standards for maintaining a safe environment in patient care areas — but those may also be the same standards many businesses generally have for maintaining their floors. And the hospital does not claim, nor does the record show, that the area where Ross fell was a patient care area or an area where patients possibly would be in the course of the hospital's providing health care services to them. Nor does the hospital reference support in the record for the position that the area had to meet particular cleanliness or maintenance standards related to the provision of health care or patient safety. See Ollie, 342 S.W.3d at 527 ("[S]ervices a hospital provides its patients necessarily include those services required to meet patients' fundamental needs such as cleanliness ... and safety."). Which leads to the question of whether
The TMLA 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. But the Legislature must have intended such a relationship to be necessary, given the legislative intent explicitly set out in the TMLA and the context in which "safety" is used in the statute. We said as much in Loaisiga. 379 S.W.3d at 257. Even though the statute's phrase "directly related to health care" does not modify its reference to safety standards, that reference occurs within a specific context, which defines an HCLC to be "a cause of action against a health care provider or physician for [a] treatment, [b] lack of treatment, [c] or other claimed departure from accepted standards of medical care, or health care, or safety." TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13). Where the more specific items, [a] and [b], are followed by a catchall "other," [c], the doctrine of ejusdem generis teaches that the latter must be limited to things like the former.
Thus, we conclude that for a safety standards-based claim to be an HCLC there must be a substantive nexus between the safety standards allegedly violated and the provision of health care. And that nexus must be more than a "but for" relationship. That is, the fact that Ross, a visitor and not a patient, would not have been injured but for her falling inside the hospital is not a sufficient relationship between the standards Ross alleges the hospital violated and the hospital's health care activities for the claim to be an HCLC. As we recognized in Loaisiga, "[i]n 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." 379 S.W.3d at 256. But although the mere location of an injury in a health care facility or in a health care setting
As this case demonstrates, the line between a safety standards-based claim that is not an HCLC and one that is an HCLC may not always be clear. 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 an HCLC:
Measuring Ross's claim by the foregoing considerations, it is clear that the answer to each is "no." The record does not show that the cleaning and buffing of the floor near the exit doors was for the purpose of protecting patients. Nor does the record reflect that the area where Ross fell was one where patients might be during their treatment so that the hospital's obligation to protect patients was implicated by the condition of the floor at that location. Ross was not seeking or receiving health care, nor was she a health care provider or assisting in providing health care at the time she fell. There is no evidence the negligence alleged by Ross was based on safety standards arising from professional duties owed by the hospital as a health care provider. There is also no evidence that the equipment or materials used to clean and buff the floor were particularly suited to providing for the safety of patients, nor does the record demonstrate that the cleaning and buffing of the floor near the exit doors was to comply with a safety-related requirement set for health care providers by a governmental or accrediting authority.
Under this record Ross's claim is based on safety standards that have no substantive relationship to the hospital's providing of health care, so it is not an HCLC. Because her claim is not an HCLC, she was not required to serve an expert report to avoid dismissal of her suit. We reverse the judgment of the court of appeals and
Justice Lehrmann filed a concurring opinion, in which Justice Devine joined.
Justice Brown did not participate in the decision.
JUSTICE LEHRMANN, joined by JUSTICE DEVINE, concurring.
I join the Court's opinion and agree that the claims asserted in this case have no connection to the provision of health care. I write separately, however, to emphasize my concern that a statute intended to address the insurance crisis stemming from the volume of frivolous medical-malpractice lawsuits has become a nebulous barrier to what were once ordinary negligence suits brought by plaintiffs alleging no breach of any professional duty of care.
In Texas West Oaks Hospital, LP v. Williams, the Court held that a plaintiff's claim against a physician or health care provider may constitute a health care liability claim subject to the Texas Medical Liability Act even where no patient-physician or patient-health-care-provider relationship exists between the parties. 371 S.W.3d 171, 177-78 (Tex. 2012). In my dissent in that case, I disagreed with the Court's holding "that the mere peripheral involvement of a patient transforms an ordinary negligence claim into a health care claim." Id. at 194-95 (Lehrmann, J., dissenting). I lamented what I viewed as the Court's departure from the importance we had previously placed on the relationship between health care providers and their patients in concluding that a patient's claims were covered by the Act. Id. at 196-97 (citing Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005)). The consequences of that departure are evident in cases like this, in which defendants who happen to be health care providers seek the protections of the Medical Liability Act with respect to claims that have nothing to do with medical liability.
The Court holds, and I agree, that a cause of action against a health care provider for a departure from safety standards is a health care liability claim only if it has a "substantive relationship" with the provision of medical or health care.
As we recognized in Diversicare, the duty of care that health care providers owe to their patients is fundamentally different from the duty of care owed to, say, employees or visitors. 185 S.W.3d at 850-51 ("The obligation of a health care facility to its patients is not the same as the general duty a premises owner owes to invitees."). To that end, when we held in Diversicare that a nursing home resident's claim that she was sexually assaulted by another resident was a health care liability claim, we rejected the argument that the claim should be treated the same as that of a visitor who had been assaulted at the facility precisely because of the distinct nature of those duties. Id. We also distinguished the circumstances at issue in that case from hypothetical claims involving an "unlocked window that gave an intruder access to the facility" and a "rickety staircase
In my view, focusing a safety-standards claim on the duty health care providers owe to their patients ensures that Diversicare's hypothetical visitor-assault and rickety-staircase claims do not fall under the Medical Liability Act's umbrella. It also ensures that a covered cause of action will "implicate the provision of medical or health care" in accordance with the Court's holding in this case. 462 S.W.3d at 504. With these considerations in mind, I respectfully join the Court's opinion and judgment.