Business disparagement and defamation of an individual distinguished (In re Lipsky Tex 2015)

 
TWO DISTINCT TORTS: BUSINESS DISPARAGEMENT AND "CHARACTER ASSASSINATION" (DEFAMATION)
   
Business disparagement and defamation are similar in that both involve harm from the publication of false information. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 155 (Tex. 2014). The respective torts, however, serve different interests.

Whereas “defamation actions chiefly serve to protect the personal reputation of an injured party, [] a business disparagement claim protects economic interests.” Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003). Business disparagement or “injurious falsehood applies to derogatory publications about the plaintiff’s economic or commercial interests.” 3 DAN B. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, THE LAW OF TORTS § 656, at 615 (2d ed. 2011).

The tort does not seek to redress dignitary harms to the business owner, but rather redresses aspersions cast on the business’s commercial product or activity that diminishes those interests. Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766–67 (Tex. 1987).

A corporation or other business entity that asserts a claim for defamation may assert an additional or alternative claim for business disparagement if it seeks to recover economic damages for injury to the business. Burbage v. Burbage, 447 S.W.3d 249, 261 n.6 (Tex. 2014). Impugning one’s reputation is possible without disparaging its commercial interests and vice versa. Depending on the circumstances, then, a plaintiff may have a claim for defamation, or for business disparagement, or both.

ELEMENTS OF BIZ DISPARAGEMENT CAUSE OF ACTION 

“To prevail on a business disparagement claim, a plaintiff must establish that (1) the defendant published false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff.” Forbes, 124 S.W.3d at 170 (citing Hurlbut, 749 S.W.2d at 766). 

SOURCE: TEXAS SUPREME COURT - No. 13-0928 - IN RE STEVEN LIPSKY 
[Opinion by Justice Divine in pdf] - 4/24/2015 

CITATION: In re Lipsky, No. 13-0928, ___ S.W.3d ___ (Tex. 2015) 

COA OPINION BELOW: In re Lipsky, 411 S.W.3d 530 (Tex.App.-Fort Worth 2013, orig. proceeding)   

IN RE STEVEN LIPSKY

No. 13-0928.

Supreme Court of Texas.

Argued December 4, 2014.

Opinion Delivered: April 24, 2015.

JUSTICE DEVINE delivered the opinion of the Court.

JOHN P. DEVINE, Justice.

The Texas Citizens Participation Act (TCPA)[1] protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them. TEX. CIV. PRAC. & REM. CODE §§ 27.001-.011. The protection consists of a special motion for an expedited consideration of any suit that appears to stifle the defendant's communication on a matter of public concern. Id. § 27.003. In reviewing that motion, the trial court is directed to dismiss the suit unless "clear and specific evidence" establishes the plaintiffs' "prima facie case." Id. § 27.005(c). When applying the Act's requirement for clear and specific evidence, however, the courts of appeals disagree about the role of circumstantial evidence.

Some courts hold that only direct evidence is relevant when considering a motion to dismiss under the Act, while others have concluded that relevant circumstantial evidence must also be considered. The court of appeals here considered circumstantial evidence, and we agree that clear and specific evidence under the Act includes relevant circumstantial evidence. 411 S.W.3d 530, 546 (Tex. App.-Fort Worth 2013). We further agree, generally, with the court of appeals's disposition of the proceedings below and accordingly deny all relief requested here.

I. Background and Procedural History

Steven and Shyla Lipsky own several acres in Weatherford, Texas. In 2005 they drilled a well on their property to a depth of about two hundred feet to provide water to a cabin and boathouse. In 2009 they finished a house on the property, connecting the well to their new home. That same year, Range Resources Corporation and Range Production Company drilled two gas wells about a half-mile from the Lipskys' property.

A few months after moving into their new home, the Lipskys experienced mechanical problems with their well. They contacted a well-servicing company, which identified the problem as "gas locking," a condition typically associated with an excess of natural gas in the ground water. A submersible pump's ability to transport water from a well can be affected when too much gas is in the water.

Concerned about the gas in their well water, the Lipskys contacted local health officials who referred them to Alisa Rich, an environmental consultant with Wolf Eagle Environmental. After tests, Rich confirmed the presence of methane and other gases in the well. About this time, Lipsky made a video of himself lighting gas escaping from a garden hose attached to his well. To produce this effect, Lipsky connected the hose to a vent on his water well. He shared his video with the Environmental Protection Agency (EPA) and the media, which reported on the flammable nature of Lipsky's water well. He also complained about the gas in his well to the Texas Railroad Commission. Lipsky's own investigation led him to believe that Range, the oil and gas operator closest to his property, had some responsibility for contaminating his ground water.

Both the EPA and Railroad Commission began investigating Lipsky's complaints. The EPA initially concluded that Range's production activities had contributed to the gas in the Lipskys' well water and that the situation could be hazardous to health and safety. The federal agency ordered Range to provide the Lipskys potable water and to install explosivity meters at their property.

The Railroad Commission completed its investigation a few months later. Although invited to participate in the Commission's evidentiary hearing, the Lipskys declined. The Commission thereafter concluded that Range's operations in the area were not the source of the contamination. Lipsky immediately denounced the Railroad Commission's decision in the media and continued to blame Range, pointing to the EPA's action and his expert's opinions.

The Lipskys thereafter sued Range and others involved in developing their residential area. As to Range, they alleged that its fracking operations near their property were negligent, grossly negligent, and a nuisance. They asserted that Range's operations contaminated their water well, causing the water to become flammable and their home uninhabitable. Range answered the suit and moved to dismiss all claims as an improper collateral attack on the Railroad Commission's ruling. Range also filed a counterclaim against the Lipskys and a third-party claim against Rich (the Lipskys' environmental consultant) alleging defamation, business disparagement, and a civil conspiracy. The Lipskys and Rich responded by moving to dismiss Range's counter-attack as an improper attempt to suppress their First Amendment rights guaranteed under the Constitution and protected by the Texas Citizens Participation Act. TEX. CIV. PRAC. & REM. CODE § 27.005.

The trial court granted Range's motion to dismiss, agreeing that the Lipskys' claims were an improper collateral attack on the Commission's determination. The court also declined to dismiss Range's claims against the Lipskys and Rich by denying their motions to dismiss under the Texas Citizens Participation Act. The Lipskys and Rich attempted an interlocutory appeal from this latter ruling, but the court of appeals dismissed the appeal for want of jurisdiction.[2] See Lipsky v. Range Prod. Co., No. 02-12-00098-CV, 2012 WL 3600014, at *1 (Tex. App.-Fort Worth Aug. 23, 2012, pet. denied) (mem. op.). The court, however, allowed the challenge to proceed as an original proceeding. 411 S.W.3d at 536. Meanwhile, the EPA withdrew its administrative order against Range without explanation. See Joint Stipulation of Dismissal Without Prejudice, United States v. Range Prod. Co., No. 3:11-CV-00116-F (N.D. Tex. Mar. 30, 2012).

The court of appeals thereafter determined that the Texas Citizens Participation Act required the dismissal of Range's claims against Lipsky's wife, Shyla, and his environmental consultant, Rich, and that the trial court had accordingly abused its discretion in not dismissing those claims. 411 S.W.3d at 554. The court further determined that the TCPA did not similarly require dismissal of all of Range's claims against Lipsky.[3] Id. at 546. The court of appeals granted mandamus relief to Lipsky's wife and consulant, while denying similar relief to Lipsky, prompting both Lipsky and Range to seek mandamus relief in this Court. In their respective petitions, Lipsky argues that the TCPA required the trial court to dismiss all claims against him also, while Range argues that the TCPA did not require the dismissal of any claims. The Lipsky petition accordingly concludes that the trial court abused its discretion in failing to grant his TCPA motion. The Range petition, on the other hand, concludes that the court of appeals abused its discretion in granting mandamus relief to Lipsky's wife, his environmental consultant, and Lipsky himself (in part) because the TCPA did not require it.

II. The Texas Citizens Participation Act

As already mentioned, the Texas Citizens Participation Act or TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. See House Comm. on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 2973, 82nd Leg., R.S. (2011). The Act provides a special procedure for the expedited dismissal of such suits. A two-step process is initiated by motion of a defendant who believes that the lawsuit responds to the defendant's valid exercise of First Amendment rights. Under the first step, the burden is initially on the defendant-movant to show "by a preponderance of the evidence" that the plaintiff's claim "is based on, relates to, or is in response to the [movant's] exercise of: (1) the right of free speech;[4] (2) the right to petition;[5] or (3) the right of association."[6] TEX. CIV. PRAC. & REM. CODE § 27.005(b). If the movant is able to demonstrate that the plaintiff's claim implicates one of these rights, the second step shifts the burden to the plaintiff to "establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c).

Scope of Texas Citizen Participation Act: What kind of communications does it cover? - Lippincott v Whisenhunt, No. 13-0926 (Tex. April 24, 2015)

In a per curiam opinion handed down April 24, 2015, the Texas Supreme Court holds that the Texas Citizens Participation Act (TCPA) does not require a communication be in public form to qualify for protection. Under the Act, a defendant in a defamation suit or similar action may move to dismiss a claim involving the exercise of the right to free speech upon a showing that the communication was made in connection with a matter of public concern, here involving the quality of medical care. The Supreme Court reversed the Texarkana Court of Appeal, which had found the TCPA inapplicable, and remanded to that court for further proceedings.    

Lippincott v Whisenhunt, No. 13-0926 (Tex. April 24, 2015) 

OPINION EXCERPT]

To assert a motion to dismiss under the Act, the defendant must show “by a preponderance 2 of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of . . . the right of free speech.” Id. § 27.005(b). The statute broadly defines “the exercise of the right of free speech” as “a communication made in connection with a matter of public concern.” Id. § 27.001(3). Under this definition, the right of free speech has two components: (1) the exercise must be made in a communication and (2) the communication must be made in connection with a matter of public concern. We address each element in turn. First, the statute defines “communication” as “the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). 

The court of appeals concluded that because the purpose of the Act, as described in section 27.002, includes the phrase “otherwise participate in government,” the Act only protects public communication. 416 S.W.3d at 697. 

We disagree. 

This statute defines “communication” to include any form or medium, including oral, visual, written, audiovisual, or electronic media—regardless of whether the communication takes a public or private form. TEX. CIV. PRAC. & REM. CODE § 27.001(1). The plain language of the statute imposes no requirement that the form of the communication be public. Had the Legislature intended to limit the Act to publicly communicated speech, it could have easily added language to that effect. See In re M.N., 262 S.W.3d at 802. In the absence of such limiting language, we must presume that the Legislature broadly included both public and private communication. TEX. CIV. PRAC. & REM. CODE § 27.011.

Sovereign immunity and governmental immunity in Texas (2015 caselaw snips)

SOVEREIGN IMMUNITY AND ULTRA VIRES DOCTRINE  

Sovereign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). Immunity from suit bars an action against the state unless the state expressly consents to the suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The party suing the governmental entity must establish the state's consent, which may be alleged either by reference to a statute or to express legislative permission. Id. We interpret statutory waivers of immunity narrowly, as the Legislature's intent to waive immunity must be clear and unambiguous. Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 655 (citing TEX. GOV'T CODE ANN. § 311.034 (West, Westlaw through 2013 3d C.S.)).

Under the ultra vires exception to immunity, "suits to require state officials to comply with statutory or constitutional provisions are not prohibited by sovereign immunity, even if a declaration to that effect compels the payment of money." City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) (explaining the ultra vires exception to immunity). However, such claims cannot be brought against Weslaco, because it retains immunity; therefore, the claims must be brought against Ramirez in her official capacity. See id. at 373. Accordingly, the trial court did not err in dismissing the claims against Weslaco for lack of jurisdiction.

SOURCE: CORPUS CHRISTI COURT OF APPEALS - No. 13-14-00054-CV - 1/8/ 2015

Open Courts challenge under the Texas Constitution - Abrogation of Common-Law rights by the Lege

LEGISLATIVE INFRINGEMENT ON RIGHT/REMEDIES AVAILABLE UNDER THE COMMON LAW 

The open-courts provision prohibits arbitrary or unreasonable legislative action that abrogates well-established, common-law remedies. Lebohm v. City of Galveston, 154 Tex. 192, 199 275 S.W.2d 951, 955 (1955) (op. on reh'g). It ensures that Texas citizens bringing common-law causes of action will not unreasonably be denied the right to redress in the courts. Rose v. Doctor's Hosp., 801 S.W.2d 841, 843 (Tex. 1990).

We review the constitutionality of a statute de novo, see Stockton v. Offenbach, 336 S.W.3d 610, 614-15 (Tex. 2011), beginning with the presumption that the statute is constitutional. TEX. GOV'T CODE ANN. § 311.021(1) (West 2013); Sax v. Votteler, 648 S.W.2d 661 664 (Tex. 1983); see also Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin, 307 S.W.3d 283, 285 (Tex. 2010).

To establish an open-courts violation, Cohen must demonstrate that (1) the statute restricts a well-recognized, common-law cause of action (the well-recognized prong) and (2) the restriction is unreasonable or arbitrary when balanced against the Act's purpose (the balance prong). Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex. 1995); Sax, 648 S.W.2d at 666.

A statute does not violate the open courts provision of the Texas Constitution if there are adequate substitute methods for obtaining redress. Liggett v. Blocher, 849 S.W.2d 846, 851 (Tex. App.-Houston [1st Dist.] 1993, no writ) ("In determining the restrictive effect of the statutory provision at issue, the court must also consider whether the legislature has avoided an unconstitutional result by providing a substitute remedy or by leaving a reasonable alternative at common law."). A statute may, however, violate the open-courts provision "when it makes a remedy by due course of law contingent on an impossible condition." In re D.M., 191 S.W.3d 381, 391 (Tex. App.-Austin 2006, pet. denied).

SOURCE: HOUSTON COURT OF APPEALS - Nos. 01-13-00267-CV, 01-13-00233-CV - 2/26/2015 

We reject Cohen's open-courts challenge because he has not been deprived of a common law right. Cohen has not been prevented from suing for damages under the theories of breach of fiduciary duty, fraud, constructive fraud, and breach of contract. Cohen's challenge is directed only at the statutory provision allowing for expungement of a lis pendens if the requisite evidentiary showing is not met. TEX. PROP. CODE §12.0071(c)(2). A lis pendens is not a cause of action or a lien; it is a means of providing constructive notice of an alleged real property claim. TEX. PROP. CODE §13.004(a). Cohen was allowed, by statute, to file a notice of lis pendens to serve as constructive notice of his claims. He was given the opportunity to maintain that notice of lis pendens by demonstrating the probable validity of his real property claim. He had the opportunity to challenge, in an original proceeding in this Court, the trial court's determination that he had not demonstrated the probable validity of his real property claim. He has not established an open courts violation. Cf. Francis v. Coastal Oil & Gas, Inc., 130 S.W.3d 76, 92 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (holding that statute eliminating liability of property owner for independent contractor's injuries unless the property owner exercises sufficient control over the work and has knowledge of the danger does not violate the open courts provision because it only "delineates the evidentiary showing a plaintiff must meet to prevail on a claim of negligence against a property owner"); Freedman v. Univ. of Houston, 110 S.W.3d 504, 508 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (holding that statute requiring legislative consent to sue university for breach of contract did not violate open courts because it does not eliminate right to sue).

Suit-within-Suit Requirement in Legal Malpractice Case (2015)

THE CAUSATION ELEMENT IN AN ATTORNEY MALPRACTICE CLAIM 

To establish causation where a legal malpractice claim arises from a prior suit, the plaintiff must establish that but for her attorney's negligence, "she would be entitled to judgment." Cunningham v. Hughes & Luce, L.L.P., 312 S.W.3d 62, 67 (Tex. App.-El Paso 2010, no pet.); see MND Drilling Corp. v. Lloyd, 866 S.W.2d 29, 31-32 (Tex. App.-Houston [14th Dist.] 1987, no writ) (attorney's failure to respond to summary judgment motion alone not enough to support legal malpractice claim; plaintiff must also show suit would have survived summary judgment and that the suit would have been successful but for the attorney's negligence).

This burden is often referred to as the "suit within a suit" requirement. Greathouse v. McConnell, 982 S.W.2d 165, 173 (Tex. App.-Houston [1st Dist.] 1998, pet. denied).

SOURCE: DALLAS COURT OF APPEALS - No. 05-13-00541-CV - 1/7/2015

A trespass to try title action is what?

WHAT DOES TRESPASS TO TRY TITLE MEAN? 

The Texas Property Code provides in part, "A trespass to try title action is the method for determining title to lands, tenements, or other real property." TEX. PROP. CODE ANN. § 22.001(a) (West 2014).

ELEMENTS OF PROOF 

"To prevail in a trespass-to-try-title action, a plaintiff must usually (1) prove a regular chain of conveyances from the sovereign, (2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove title by prior possession coupled with proof that possession was not abandoned." Wilhoite v. Sims, 401 S.W.3d 752, 760 (Tex. App.-Dallas 2013, no pet.).

SOURCE: DALLAS COURT OF APPEALS - No. 05-13-01581-CV - 1/21/2015

In Coinmach Corp. v. Aspenwood Apartments Corp., 417 S.W.3d 909, 926 (Tex. 2013), the supreme court stated as follows:

We have previously held that, when "the trespass-to-try-title statute governs the parties' substantive claims . . ., [the plaintiff] may not proceed alternatively under the Declaratory Judgments Act to recover their attorney's fees." Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004). In so holding, we noted that the Legislature has provided the trespass-to-try-title statute as "the method of determining title to . . . real property," and the Legislature did not provide for attorney's fees in such actions. Id. (citing TEX. PROP.CODE § 22.001(a)) (emphasis added).. . . .

It is undisputed that the present case requires determination of the parties' possessory rights to the property. We see no legitimate basis to distinguish this case from Martin, in which we affirmed and upheld the Legislature's intent that chapter 22 of the Texas Property Code govern the resolution of disputes involving legal interests in real property.

Id. (emphasis original); see also Sani v. Powell, 153 S.W.3d 736, 745 (Tex. App.-Dallas 2005, pet. denied) (stating "[a]ny suit that involves a dispute over the title to land is, in effect, an action in trespass to try title, whatever its form" and attorney's fees pursuant to the declaratory judgments act "are not available in a suit to quiet title or to remove cloud on title"). Although both sides in the case before us couched their claims in terms of requests for declarations, everything requested of the court is necessary to, and a component of, the ultimate relief sought, which is to clear title to the front strip.[12] See Sani, 153 S.W.3d at 746. Accordingly, we conclude the Furnisses were not entitled to an award of attorney's fees under the declaratory judgments act and the trial court abused its discretion by awarding those fees. Id.; see Coinmach Corp., 417 S.W.3d at 926; XTO Energy, Inc., 357 S.W.3d at 62-63 (concluding that although validity of deed was contested, essence of suit was title dispute and therefore award of attorney's fees pursuant to declaratory judgments act was improper); see also RIHR Inc., 308 S.W.3d at 454.

We decide in ADLO's favor on its fifth issue.

SOURCE: FIFTH COURT OF APPEALS IN DALLAS TEXAS - No. 05-13-01581-CV - 1/21/2015

Premises Liability Case - Necessary Elements of Proof (2015)

PREMISES LIABILITY CLAIMS IN TEXAS - ELEMENTS OF PROOF  

In a premises liability case, the plaintiff must establish a duty owed to the plaintiff, breach of the duty, and damages proximately caused by the breach. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010)(citations omitted); Chappell v. Allen, 414 S.W.3d 316, 323 (Tex.App.-El Paso 2013, no pet.)(threshold question in a premises liability case, as with any cause of action based on negligence, is existence of and violation of a duty).

Whether a duty exists is a question of law for the court and turns "on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant." Del Lago Partners, Inc., 307 S.W.3d at 767.

STATUS OF INJURED PARTY IN RELATION TO PRESENCE ON PROPERTY WHERE INJURY OCCURRED IS IMPORTANT

The duty owed by a premises owner or occupier is determined by the status of the complaining party at the time and place of injury. Scott & White Mem'l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010); Del Lago Partners, Inc., 307 S.W.3d at 767 (in premises liability cases, scope of duty turns on the plaintiff's status); Chappell, 414 S.W.3d at 323. The status of the complaining party in a premises liability case may be that of an invitee, a licensee, or a trespasser. See Scott & White Mem'l Hosp., 310 S.W.3d at 412 (invitee); Texas-Louisiana Power Co. v. Webster, 91 S.W.2d 302, 306 (Tex. 1936)(licensee and trespasser); Chappell, 414 S.W.3d at 323 (invitee and licensee); Forester v. El Paso Elec. Co., 329 S.W.3d 832, 837 (Tex.App.-El Paso 2010, no pet.)(invitee and licensee); Wong v. Tenet Hosp. Ltd, 181 S.W.3d 532, 537 (Tex.App.-El Paso 2005, no pet.)(examining status as invitee, licensee, and trespasser); City of El Paso v. Zarate, 917 S.W.2d 326, 330 (Tex.App.-El Paso 1996, no writ)(trespasser and licensee); see also Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 106 (Tex.App.-El Paso 1997, writ denied)(status may change based on person's location on premises).

An invitee is a person who enters the premises of another at the express or implied invitation of the owner or occupier for the parties' mutual benefit. Chappell, 414 S.W.3d at 323; Forester, 329 S.W.3d at 837.

Diez was Alaska's invitee. Generally, a property owner owes an invitee a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known. See Del Lago Partners, Inc., 307 S.W.3d at 767; TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764-65 (Tex. 2009)(premises owners and occupiers owe a duty to keep their premises safe for invitees against known conditions that pose unreasonable risks of harm). The duty is to "take whatever action is reasonably prudent under the circumstances to reduce or to eliminate the unreasonable risk from that condition." TXI Operations, L.P., 278 S.W.3d at 764-65 (quoting Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983)). When such a duty is owed, the premises owner or occupier must either adequately warn of the dangerous condition or make the condition reasonably safe. See TXI Operations, L.P., 278 S.W.3d at 765; State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996)(per curiam).

Thus, as an invitee asserting a premises liability claim, Diez was required to prove: (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (2) the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner/operator's failure to use such care proximately caused the plaintiff's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).

SOURCE: EL PASO COURT OF APPEALS - No. 08-13-00144-CV - 1/7/2015

Expert Report Requirements in Med-Mal Case as articulated in recent (2015) appellate opinions

HEALTH CARE LIABILITY CLAIMS IN TEXAS - THE STATUTORY EXPERT REPORT REQUIREMENT 

The Medical Liability Act provides that a claimant in a health care liability claim shall serve an expert report showing that the claim has merit within 120 days of the date the suit was filed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 2014).

Section 74.351 requires the expert report to provide a fair summary of the expert's opinions regarding: (1) the applicable standards of care; (2) the manner in which the care rendered failed to meet the standards; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 858-59 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

The expert report need not marshal all of the plaintiff's proof, but it must demonstrate an objective good faith effort to comply with the statutory requirements. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Palacios, 46 S.W.3d at 878; Gray, 189 S.W.3d at 859; Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex. App.-Houston [1st Dist.] 2003, pet. denied).

To constitute a good faith effort to comply with the statute, the report must provide enough information to fulfill two purposes: it must (1) inform the defendant of the specific conduct that the plaintiff has called into question; and (2) provide a basis for the trial court to conclude that the claims have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011); Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. In making this determination, we review the information contained within the four corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

A conclusory report does not fulfill these two purposes. Palacios, 46 S.W.3d at 879. "[R]ather, the expert must explain the basis of his statements to link his conclusions to the facts." Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). The Act grants the trial court discretion to grant a plaintiff who timely serves a report one 30-day extension to cure its deficiencies. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c).

SOURCE: FIRST COURT OF APPEALS OF TEXAS - 01-14-00448-CV - 2/26/2015

Expert Report Statutory Requirements

The Texas Civil Practice and Remedies Code defines an expert report as:

a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (West Supp. 2014).

Further, the statute provides that a "court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report." Id. at § 74.351(l). A good faith effort has been defined as a report that does not contain a material deficiency. Samlowski v. Wooten, 332 S.W.3d 404, 409-10 (Tex. 2011). Therefore, the report must include all the required elements and explain their connection to the defendant's conduct in a non-conclusory fashion. Id. at 410. When determining if a good faith effort has been made, the trial court is limited to the four corners of the report and cannot consider extrinsic evidence. Palacios, 46 S.W.3d at 878.

The purpose of an expert report under section 74.351 is to inform the defendants of the specific conduct the plaintiff has called into question and to provide the trial court with a basis to determine whether the plaintiff's claims have merit. See Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740, 747 (Tex. App.-Houston [14th Dist.] 2011, no pet.). A report that merely states the expert's conclusions about the standard of care, breach, and causation does not fulfill these purposes. Palacios, 46 S.W.3d at 879. Instead, the expert must explain the basis of his statements to link his conclusions to the facts. Kingwood Pines Hosp., LLC, 362 S.W.3d at 747.

SOURCE: DALLAS COURT OF APPEALS  - 05-14-00586-CV - 3/6/2015

(In view of Dr. Mansfield's general and conclusory statements in his reports, we conclude that the trial court abused its discretion by failing to dismiss the claims against Senior Care Center. We resolve the issues against Senior Care Centers, reverse the trial court's order, and remand the case to the trial court for dismissal and a determination of attorney's fees and costs of court pursuant to section 74.351(b) of the TMLA. See PM Mgmt.-Trinity NC, LLC v. Kumets, 404 S.W.3d 550, 551 (Tex. 2013).)

Health care liability case governed by the Texas Medical Liability Act.  

Tex. Civ. Prac. & Rem. Code §§ 74.001-.507

The Act entitles a defendant to dismissal of a health care liability claim if she has not been served with an expert report showing that the claim has merit within 120 days of the date suit was filed. § 74.351(a)-(b); Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011). The trial court's refusal to dismiss may be immediately appealed. Tex. Civ. Prac. & Rem. Code § 51.014(a)(9); Scoresby, 346 S.W.3d at 549. We review a trial court's denial of a motion to dismiss under section 74.351 for abuse of discretion. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Bailey v. Amaya Clinic, Inc., 402 S.W.3d 355, 361 (Tex. App.-Houston [14th Dist.] 2013, no pet.). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules or principles. Jelinek, 328 S.W.3d at 539; Bailey, 402 S.W.3d at 361.

The Act specifies requirements for an adequate report and mandates "an objective good faith effort to comply" with the requirements. Tex. Civ. Prac. & Rem. Code § 74.351(l), (r)(6); Scoresby, 346 S.W.3d at 549. It also authorizes a trial court to give a plaintiff who meets the 120-day deadline an additional 30 days to cure any deficiencies in the report. Tex. Civ. Prac. & Rem. Code § 74.351(c); Scoresby, 346 S.W.3d at 549. When determining if a good faith effort has been made, the trial court is limited to the four corners of the report and cannot consider extrinsic evidence. See Jelinek, 328 S.W.3d at 539; Bailey, 402 S.W.3d at 361.

An expert report must provide a fair summary of the expert's opinions regarding (1) the applicable standard of care; (2) the manner in which the care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code § 74.351(r)(6); Bailey, 402 S.W.3d at 361-62. In compliance with these standards, the expert report must incorporate sufficient information to inform the defendant of the specific conduct the plaintiff has called into question and provide a basis for the trial court to conclude the claims have merit. Bailey, 402 S.W.3d at 362.

A report may not merely contain the expert's conclusions about these elements. Jelinek, 328 S.W.3d at 539; Bailey, 402 S.W.3d at 362. The expert must explain the basis for his statements and link his conclusions to the facts. Jelinek, 328 S.W.3d at 539. However, a plaintiff need not present all the evidence necessary to litigate the merits of her case. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875, 879 (Tex. 2001); Bailey, 402 S.W.3d at 362. The report may be informal in that the information need not fulfill the same requirements as the evidence offered in a summary judgment proceeding or at trial. Palacios, 46 S.W.3d at 879; Bailey, 402 S.W.3d at 362. The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits. Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012); Scoresby, 346 S.W.3d at 554. Thus, it is only a threshold mechanism to dispose of claims lacking merit. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013).

The standard of care is defined by what an ordinarily prudent health care provider or physician would have done under the same or similar circumstances. Palacios, 46 S.W.3d at 880; Bailey, 402 S.W.3d at 366. Identifying the standard of care is critical: whether a defendant breached her duty to a patient cannot be determined absent specific information about what the defendant should have done differently. Palacios, 46 S.W.3d at 880; Bailey, 402 S.W.3d at 366. While a "fair summary" is something less than a full statement of the applicable standard of care nd how it was breached, even a fair summary must set out what care was expected, but not given. Palacios, 46 S.W.3d at 880; Bailey, 402 S.W.3d at 366.

SOURCE: HOUSTON COURT OF APPEALS - 14TH DISTRICT - 14-14-00527-CV - 1/22/2015

Roaming cattle and malfunctioning sliding doors as medical malpractice? ... Really?

PREMISES LIABILITY TRANSMUTED: FACILITIES MANAGEMENT AND CRIME PREVENTION AS HEALTH CARE 

Here comes the latest head-scratcher from the med-mal front: 

Head-scratchingly interesting

Corpus Christi Court of Appeals panel holds that personal injury claim stemming from incident in which sliding door struck and injured a hospital visitor is a health care liability claim subject to expert report requirement. It's not a retired doctor with wandering cows on a country road scenario this time, but it's just as bad. 

March 16, 2015 Houston Chronicle article on wayward cow collision case
and lawyer's argument that personal injury suit following collision is med-mal because
a doctor owned the cattle that crossed into the country road.

RELATED NEWS ITEMS [updated]:

John Council. "Dallas Judge: Doctor's Cow in Road Is Not Med Mal". TEXAS LAWYER, April 20, 2015, p. 8.

"How Is Hitting a Cow in the Road Med Mal? TEXAS LAWYER, Jan. 29, 2015. 

Valley Regional Medical Center v. Maria Guadalupe Camacho, 

No. 13-14-00004-CV (Tex. App. - Corpus Christi [13th Dist.] April 9, 2015, no pet. h.)(reversing denial of motion to dismiss and remanding for determination of attorneys fees to be awarded to the defendant medical center) (Memorandum Opinion by Justice Dora Contreras Garza; dissenting opinion by Justice Gina Benavides).  

The nexus to health care in this one? The door with the lateral limb chopping capability was designed to stop baby-snatchers on their way out of the maternity ward with their ill-gotten bundle of other people's joy.  

To her credit, Justice Justice Gina Benavides dissented, though her concern was mostly with the effect the bloated definition of a health care liability would have on malpractice insurance rates. 

  

But she has got a point. If a wayward door with lateral guillotine functionality is a medical device, and its faulty operation amounts to medical malpractice, then malpractice insurance will have to cover the additional risks and pay damages when the wrong sorts of bodies get arrested and mangled. Ergo, med-mal insurance rates will have to go up -- which runs counter to the intent of tort reformers who declared the malpractice insurance crisis in the first place, and promoted tort reform as the solution to bring the rates down.

Unless of course, the novel non-medical med-mal cases have to be dismissed without further ado because no properly credentialed health care expert can be found to diagnose the neonatal theft-prevention-ingress-and-egress system. How does an MD diagnose a door that closes in on unintended moving objects. -- such as family members of maternity ward patient with the nothing but the purest of motives. How about the applicable standard of care for automatic doors turned people-choppers at hospital entry and exit points? Likely not something taught in medical school. 

  

The expert-report requirement for health care liability claims would have been taken ad absurdum and would have revealed itself simply as a mechanism to deny injured persons a chance to seek a judicial remedy irrespective of merit. And, for good measure, the mangled victims of malfunctioning equipment will be rewarded with having to foot the bill for attorney's fees incurred by the party against whom -- under a functioning tort system -- they might otherwise have had some judicial recourse. 

Insult and financial harm on top of injury.  

Conclusion of Justice Benavides' Dissent 

VALLEY REGIONAL MEDICAL CENTER, Appellant,

v.

MARIA GUADALUPE CAMACHO, Appellee.

No. 13-14-00004-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi, Edinburg.

Delivered and filed April 9, 2015.

Before Justices Rodriguez, Garza and Benavides.

MEMORANDUM OPINION

Memorandum Opinion by Justice GARZA.

In this appeal, we are once again faced with the "knotty" issue of whether a plaintiff's claim is a health care liability claim ("HCLC") under the Texas Medical Liability Act ("TMLA") and therefore subject to that statute's expert report requirement. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through 2013 3d C.S.);Loaisiga v. Cerda, 379 S.W.3d 248, 265 (Tex. 2012) (Lehrmann, J., concurring and dissenting) ("Whether a claim against a health care provider is [an HCLC] is a knotty issue this Court has repeatedly struggled with."). Appellant Maria Guadalupe Camacho failed to timely serve an expert report and the trial court denied a motion to dismiss filed by appellee, Valley Regional Medical Center ("VRMC"). Because we find that the claim raised by Camacho is an HCLC, we reverse and remand.

I. BACKGROUND

Camacho was injured on August 29, 2012, when she was visiting a family member at the women's center at VRMC. Her first amended petition, filed on May 20, 2013, alleged that, as she was walking through a set of automatic sliding doors, "the doors suddenly closed with no warning," "pinn[ing] her between the sliding doors," "painfully crushing" her and causing her to suffer injury to her right shoulder. She alleged that VRMC was negligent by (1) "permitt[ing] such condition to exist" and (2) failing "to adequately correct the conditions or warn [Camacho], despite the fact that [VRMC] knew, or in exercise of ordinary care, should have known of the existence of the dangerous condition and that there was likelihood of someone being injured." She further alleged that

the dangerous condition of [the] door and premises had continued for such a period of time that it should have been noticed by [VRMC] and that [VRMC] should have warned patrons, such as [Camacho], of the condition and/or should have corrected the dangerous condition of the defective motion sensor of the sliding doors before [Camacho] was crushed so that it would not be dangerous if [VRMC] had exercised ordinary care in the inspection and maintenance of its premises.^[1]

On August 27, 2013, VRMC filed a motion to dismiss, asserting that the claim is an HCLC and that Camacho was required, but failed, to file an expert medical report within 120 days of filing suit. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b). A hearing was held on October 29, 2013. At the hearing, VRMC's counsel represented to the trial court that the "sliding doors" at issue in Camacho's suit were "hooked up to an alarm called the Infant Abduction System." Counsel explained that the system, which is designed to prevent the abduction of newborn babies from the nursery section of the hospital, causes the sliding doors to automatically close when it detects the presence of an ankle bracelet which is secured to each infant. In response, Camacho's counsel offered as evidence several pages of a local phone book and stated: "I wanted to find a physician who specialized in medical care/engineering door issues, and I'm offering [this exhibit] to prove the point they don't exist."

The trial court later denied VRMC's motion. Subsequently, VRMC filed a motion to reconsider which included an affidavit by Sergio Loya, VRMC's Director of Plant Operations. Loya averred as follows:

My investigation of this accident indicates that it occurred at the Women's Pavillion which includes the Labor and Delivery, Post Partum and Nursery areas. The Infant Abduction System alarm sounds whenever a sensor attached to a baby in the Nursery or Post Partum is within a specified distance of the swinging doors. The Infant Abduction System is designed to close and lock the doors as a safety feature that stops a baby from being abducted from the hospital. My investigation reveals that this accident occurred when the alarm sounded and the doors were closing.

The record also contains an affidavit by Camacho stating:

When the doors closed there was no audible warning nor was there a sign or visual warning that these doors were part of a security system or would close without reason. The doors just closed quickly injuring me. I later understood that the doors would close if a child was removed without proper authority, however, I was not carrying a child nor was there a child near me; in fact there was no child in sight.

The trial court denied VRMC's motion to reconsider. The judgment denying the motion specifically stated that the exhibits offered at the hearing were admitted and considered in evaluating the motion to dismiss. This interlocutory appeal followed. See id. § 51.014(a)(9) (West, Westlaw through 2013 3d C.S.) (authorizing appeal of interlocutory order denying motion to dismiss for failure to file a medical expert report).

II. DISCUSSION

A. Applicable Law and Standard of Review

Under the Texas Medical Liability Act ("TMLA"), a plaintiff seeking damages in an HCLC must serve a medical expert report upon each party's attorney no later than the 120th day after the date the original petition was filed. Id. § 74.351(a) (stating that expert report requirement applies to any "claimant" asserting an HCLC); see id. § 74.001(a)(2) (defining "claimant" as a person seeking damages in an HCLC). The statute defines HCLC as:

a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.

Id. § 74.001(a)(13) (West, Westlaw through 2013 3d C.S.).

Whether a claim is an HCLC under the TMLA is a matter of statutory construction, which is a purely legal question that we review de novo. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012). To determine whether a cause of action falls under the statute's definition of an HCLC, we examine the claim's underlying nature. Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010). Artful pleading does not alter that nature. Id.In making the determination, we consider the entire court record, including the pleadings, motions and responses, and relevant evidence properly admitted. Loaisiga, 379 S.W.3d at 258.

Claims "which require[] the use of expert health care testimony to support or refute the allegations" are HCLCs. Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724, 727 (Tex. 2013); see Tex. W. Oaks, 371 S.W.3d at 182. However, the inverse is not true: "[e]ven when expert medical testimony is not necessary, the claim may still be an HCLC." Tex. W. Oaks, 371 S.W.3d at 182 (citing Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005)("The fact that in the final analysis, expert testimony may not be necessary to support a verdict does not mean the claim is not [an HCLC].")).

VRMC alleged in its motion to dismiss that the claim is an HCLC because it alleges a "departure from accepted standards of . . . safety." TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). "Safety" is not defined in the statute but is commonly understood 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).

The Texas Supreme Court considered the extent to which the TMLA covers "safety claims" in West Oaks. See 371 S.W.3d at 184-85. In that case, a majority of the Court espoused a construction of the statutory definition of HCLC under which the phrase "directly related to health care" modifies "professional or administrative services," but does not modify the term "safety." Id. (noting that, under the "last antecedent" doctrine of statutory interpretation, "a qualifying phrase should be applied only to the portion of the sentence immediately preceding it"). In other words, if a claim is based on an alleged departure from accepted standards of "safety," the "safety component . . . need not be directly related to the provision of health care." Id. at 186. In West Oaks, which involved the assault of a hospital employee by a psychiatric patient on hospital grounds, the Court held that the plaintiff's claim was subject to the TMLA because "the dispute . . . is, at its core, over appropriate standards of care owed to [a] mental health professional in treating and supervising a psychiatric patient." Id. at 182. According to the Court, "[i]t would blink reality to conclude that no professional mental health judgment is required to decide what those should be, and whether they were in place at the time of [the plaintiff]'s injury." Id.^[2]

In the years since West Oaks was decided, Texas appellate courts have had no shortage of opportunities to apply its reasoning to other factual scenarios. We did so inDoctor's Hospital at Renaissance, Ltd. v. Mejia, a slip-and-fall case. No. 13-12-00602-CV, 2013 WL 4859592, at *2-4 (Tex. App.-Corpus Christi Aug. 1, 2013, pet. filed) (mem. op.). The plaintiff, Mejia, was not a patient or employee of the hospital but instead was visiting her father who was recovering from surgery. Id. at *1. Mejia, like Camacho, alleged that the hospital was negligent by failing to ensure her safety. Id. The trial court found that the claim was an HCLC and dismissed because Mejia failed to file an expert report. Id. On appeal, we noted that, although "the precise boundaries of the safety prong remain undefined," the supreme court has acknowledged that "they are not limitless." Id. at *2 (citing Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 664 (Tex. 2010) ("[l]t is apparent that the Legislature did not intend for standards of safety to extend to every negligent injury that might befall a patient."); Diversicare, 185 S.W.3d at 854 ("There may be circumstances that give rise to premises liability claims in a healthcare setting that may not be properly classified as [HCLC]s, but those circumstances are not present here.")); see Loaisiga, 379 S.W.3d at 257 ("[W]e fail to see how the Legislature could have intended the requirement of an expert report to apply under circumstances where the conduct of which a plaintiff complains is wholly and conclusively inconsistent with, and thus separable from, the rendition of `medical care, or health care, or safety or professional or administrative services directly related to health care' even though the conduct occurred in a health care context."). Moreover, we noted that the West Oaks Court "stopped short of concluding that all premises liability claims involving a healthcare defendant are [HCLC]s." Mejia, 2013 WL 4859592, at *2 (citing Tex. W. Oaks, 371 S.W.3d at 183).

In an attempt to reconcile the supreme court's holdings on this issue—on the one hand, that safety claims need not be "directly related" to health care to come within the scope of the TMLA; but on the other hand, that not all safety claims are within its scope— we narrowly construed West Oaks as "recogniz[ing] a new type of [HCLC]—that is, one involving safety which is indirectly related to health care." Id. (emphasis in original). We held that, even after West Oaks, a safety claim must still "involve a more logical coherent nexus to health care" than just "[t]he simple fact that an injury occurred on a health care provider's premises. . . ." Id. at *3.^[3] Most Texas appellate courts that have considered the issue have also adopted this narrow construction of West Oaks. See E. El PasoPhysicians Med. Ctr., L.L.C. v. Vargas, No. 08-13-00358-CV, 2014 WL 5794622, at *1, *3 (Tex. App.-El Paso Nov. 7, 2014, pet. filed) (holding no HCLC where plaintiff was injured after hospital's automatic doors malfunctioned and closed on her prematurely);Methodist Healthcare Sys. of San Antonio, Ltd., LLP v. Dewey, 423 S.W.3d 516, 519 (Tex. App.-San Antonio 2014, pet. filed) (holding that a "garden-variety slip and fall case" on hospital grounds but "untethered" from health care is not an HCLC); Weatherford Tex. Hosp. Co., L.L.C. v. Smart, 423 S.W.3d 462, 463 (Tex. App.-Fort Worth 2014, pet. filed) (holding no HCLC where plaintiff slipped on a puddle of water in the hospital lobby after visiting a patient); Williams v. Riverside Gen. Hosp., Inc., No. 01-13-00335-CV, 2014 WL 4259889, at *7 (Tex. App.-Houston [1st Dist.] Aug. 28, 2014, no pet. h.) (mem. op.) ("[W]e do not interpret [West Oaks] to mean that all safety claims that occur in a health care setting—even claims that are otherwise completely untethered from health care— are HCLCs."); Christus St. Elizabeth Hosp. v. Guillory, 415 S.W.3d 900, 902-03 (Tex. App.-Beaumont 2013, pet. filed) (finding that a claim brought by an injured hospital visitor was not an HCLC where "the gravamen of [plaintiff's] petition is that the hospital breached standards of ordinary care to a visitor present in a common area of the hospital"); Baylor Univ. Med. Ctr. v. Lawton, 442 S.W.3d 483, 487 (Tex. App.-Dallas 2013, pet. filed) ("[W]e do not believe [West Oaks] encompasses safety claims that are completely untethered from health care."); Good Shepherd Med. Ctr.-Linden, Inc. v. Twilley, 422 S.W.3d 782, 788-89 (Tex. App.-Texarkana 2013, pet. denied) (plaintiff was injured when he fell from a ladder attached to hospital building, and again when he tripped and fell over "a mound of hardened cement" on hospital property; court held that "`safety' claims completely unrelated to health care are . . . excluded from the ambit of the legislated scope of the TMLA")^[4]; but see E. Tex. Med. Ctr. Reg'l Health Care Sys. v. Reddic, 426 S.W.3d 343, 348 (Tex. App.-Tyler 2014, pet. filed) (holding, where plaintiff was a visitor who slipped in the hospital lobby, that the claim is an HCLC); Ross v. St. Luke's Episcopal Hosp., No. 14-12-00885-CV, 2013 WL 1136613, at *1 (Tex. App.-Houston [14th Dist.] Mar. 19, 2013, pet. granted) (mem. op.) (broadly construing West Oaks as extending the scope of the TMLA to any "allegation pertaining to safety" and finding, "[c]ompelled by stare decisis," that a "garden-variety slip and fall case" was an HCLC).^[5]

In Mejia, we nevertheless held that the plaintiff's claim was not even "indirectly" related to health care and so an expert report was not required. Mejia, 2013 WL 4859592, at *3. We reached the same conclusion in Rio Grande Regional Hospital v. Salinas, No. 13-13-00557-CV, 2014 WL 3805141, at *1-5 (Tex. App.-Corpus Christi July 31, 2014, pet. filed) (mem. op.) (involving a slip-and-fall claim which was undisputedly "not even indirectly related to health care").

B. Analysis

VRMC argues on appeal that, under West Oaks and Mejia, Camacho's claim is an HCLC because it is a safety claim that is at least "indirectly related" to health care.^[6] We agree. It was established through the affidavits of Loya and Camacho that the sliding doors which caused the injury were part of a system designed to prevent the abduction of newborn infants from the hospital's nursery. The doors' automatic closing function, which is the mechanism that injured Camacho and forms the gravamen of her claim, can be considered an "act" performed by a "health care provider"—i.e., the hospital—"for, to, or on behalf of a patient"—i.e., new mothers and/or their infant children—"during the patient's medical care, treatment, or confinement." See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(10) (defining "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"); see also id. § 74.001(12)(A)(vii) (defining "health care provider" as including a "health care institution"); id. § 74.001(11)(G) (defining "health care institution" as including a hospital). Therefore, Camacho's claim complains about a safety function which is at least indirectly related to "health care" as defined in the statute. See Mejia, 2013 WL 4859592, at *2.

Camacho contends that we are bound under Mejia to conclude that her claims are "untethered" to health care and therefore not HCLCs. Mejia, like Camacho, was a hospital visitor and claimed that the hospital was negligent in failing to maintain the premises in a reasonably safe condition. See id. at *1. But Mejia is distinguishable because the safety claim at issue in that case did not relate, indirectly or directly, to any act defined as "health care." See id. Mejia alleged that the hospital was negligent in failing to ensure its floors were clean; however, there was no indication that the floors at issue were in a patient's room or that the cleaning of the floors at issue was related, directly or indirectly, to any act or treatment that should have been performed for, to, or on behalf of a patient during the patient's treatment. See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(10). Here, on the other hand, Camacho's safety claim is at least indirectly related to the operation of the infant abduction prevention system, and that system falls under the statute's expansive definition of "health care." See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(10). Camacho's claim is also distinguishable from the one at issue in Vargas, which also arose out of a malfunctioning automatic door in a hospital, because there was no allegation in Vargas that the door at issue in that case was related in any way to an act defined as health care. See 2014 WL 5794622, at *1.

Camacho further argues that it would be "futile" to require an expert report in this case because "it would be nearly impossible for [Camacho] to find a qualified expert under the TMLA to prepare an expert report that would be relevant to her premises liability claim."See Twilley, 422 S.W.3d at 789 (noting that requiring an expert report would be futile because "it would be terribly difficult, if not impossible, to find a qualified expert under the statute who was also competent to opine on the relevant standards of care"). She asserts that, considering the nature of her claim and the qualification requirements for experts under the statute, see TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(b)(2), she "would need to serve a report prepared by an expert who practices `door medicine'—a health care expert who is also competent to opine about matters in the field of mechanical door operation and maintenance." She notes that, according to the phone book pages introduced as evidence at the dismissal hearing, "[n]o physician in the area meets those qualifications." Finally, Camacho argues that, "when construing a statute, . . . all parts of the statute must be given effect, and it must be read in the light of other statutes on the same subject," Hunter v. Whiteaker & Washington, 230 S.W. 1096, 1097 (Tex. Civ. App.-San Antonio 1921, writ ref'd), and that, when sections 74.351, 74.402, and 74.001(10) are read together, "it is clear that the expert report requirement applies only to claims related to diagnosis, care, or treatment of illnesses, injuries, or health conditions." See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.001(10) (defining "health care"), 74.351 (expert report requirement), 74.402 (qualification requirements for experts).

We are sympathetic to Camacho's concerns regarding the futility of requiring an expert report in this case and regarding the construction of the statutory scheme. In fact, in light of the requirements for experts set forth in the statute, we observe that it may well be impossible for Camacho, due to the nature of her claim, to produce a fully compliant expert report. Section 74.351, which sets forth the expert report requirement, defines "expert" as

(A) with respect to a person giving opinion testimony regarding whether a physician departed from accepted standards of medical care, an expert qualified to testify under the requirements of Section 74.401;

(B) with respect to a person giving opinion testimony regarding whether a health care provider departed from accepted standards of health care, an expert qualified to testify under the requirements of Section 74.402;

(C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence;

(D) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care for a dentist, a dentist or physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence; or

(E) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care for a podiatrist, a podiatrist or physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence.

Id. § 74.351(r)(5) (emphases added). None of the five definitions that appear in this statute apply to a person giving opinion testimony about whether a health care provider or physician "depart[ed] from accepted standards of . . . safety," and the list does not state that it is non-exclusive. Arguably, then, any person giving opinion testimony regarding whether a health care provider departed from safety standards cannot be an "expert" and thus would be incapable of providing a compliant report. See id.

Section 74.402 further states that, in an HCLC against a health care provider, an "expert" must "ha[ve] knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim" and must be "qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care." Id. § 74.402(b)(2), (3).^[7]Again, the statute explicitly contemplates only claims based on the "departure from accepted standards of . . . health care" and does not contemplate safety claims. Moreover, section 74.402 explicitly contemplates only claims that "involve" the "diagnosis, care, or treatment" of an "illness, injury, or condition." See id. § 74.402(b)(2). Camacho's claim does not implicate the failure of VRMC to properly diagnose, care, or treat an illness, injury, or condition; and yet it falls within the unambiguously broad statutory definition of HCLC.^[8]

Though we are troubled by this result, we are constrained by the plain language of the statute and by binding precedent. As noted, the TMLA contains an extremely broad definition of "health care" which unambiguously includes "any act" performed by a hospital "for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." Id. § 74.001(10) (emphasis added). The definition of HCLC is also extremely broad and is not limited, implicitly or explicitly, to those claims for which compliant expert reports may be feasibly obtained. See id. § 74.001(13). Further, the Texas Supreme Court has explicitly stated that a claim may be an HCLC even when no expert testimony is necessary to prove the merits of the claim at trial. Tex. W. Oaks, 371 S.W.3d at 182 (citing Murphy, 167 S.W.3d at 838). The high court has also clearly held that a claim for departures from accepted standards of safety may be an HCLC even if it is not directly related to health care. Id. Even if we were to find these tenets of law to be incorrectly reasoned, we would have no choice but to follow them. See City of Mission v. Cantu, 89 S.W.3d 795, 809 n.21 (Tex. App.-Corpus Christi 2002, no pet.) ("As an intermediate appellate court, we are bound to follow the expression of the law as stated by the Texas Supreme Court.").

Texas appellate justices have urged the supreme court and the Legislature to resolve the conflict among the courts of appeal regarding the construction of West Oaks. See Watson v. Good Shepherd Med. Ctr., No. 06-14-00025-CV, 2015 WL 222331, at *6 (Tex. App.-Texarkana Jan. 15, 2015, no. pet. h.) (Moseley, J., concurring) ("I would call upon those who have more power than the intermediate appellate courts possess to somehow resolve this question in some way that is easily discernable. There is a need for a `bright red line' for the public and the profession to employ."); Reddy v. Veedell, No. 01-14-00309-CV, 2014 WL 4651211, at *5 (Tex. App.-Houston [1st Dist.] Sept. 18, 2014, pet. filed) (Massengale, J., concurring).^[9] We join those justices in urging a resolution to the conflict; and we also respectfully urge the Legislature to amend the TMLA so that the statute no longer encompasses claims for which the acquisition of a compliant expert report is essentially impossible.^[10]

III. CONCLUSION

Camacho's claim alleges a departure from standards of safety that are at least indirectly related to health care because they concern the infant abduction prevention system, which is an "act" done "for, to, or on behalf of" patients during their treatment. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(10). We therefore conclude, in accordance with binding precedent, that Camacho's claim is an HCLC under the statute as construed by the Texas Supreme Court in West Oaks and by this Court in Mejia. We sustain VRMC's issue.

The trial court's judgment denying VRMC's motion to dismiss is reversed, and we remand for the award of attorney's fees and for further proceedings consistent with this opinion. See id. § 74.351(b)(1).

DISSENTING MEMORANDUM OPINION

Dissenting Memorandum Opinion by Justice GINA M. BENAVIDES.

I respectfully disagree with the majority and would hold that the allegation asserted by Maria Guadalupe Camacho against Valley Regional Medical Center ("Valley Regional") is an ordinary negligence claim and not a healthcare liability claim (HCLC).

Whether a claim is a HCLC depends on the underlying nature of the claim being made, and artful pleading does not alter that nature. Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010). Thus, the relevant inquiry in this case is whether Camacho's claims against Valley Regional are healthcare liability claims under the "safety" prong of the definition of a HCLC.^[1] See Tex. W. Oaks Hosp. v. Williams, 371 S.W.3d 171, 181 (Tex. 2012)(quoting TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West, Westlaw through 2013 3d C.S.) ("`Health care liability claim' means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of . . . safety . . . which proximately results in injury to or death of a claimant. . . .).

The inclusion of the "safety" prong undoubtedly "expanded the scope of the statute beyond what it would be if it only covered medical and health care," see W. Oaks, 371 S.W.3d at 184, but the boundaries of the safety prong are not without limitation. SeeDiversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 845 (Tex. 2005) ("There may be circumstances that give rise to premises liability claims in a healthcare setting that may not be properly classified as health care liability claims, but those circumstances are not present here."). Notwithstanding Diversicare's limiting principle of the "safety" prong, the Texas Supreme Court broadened its reading of the safety prong and held that "the safety component of HCLC's need not be directly related to the provision of health care."W. Oaks, 371 S.W.3d at 186.

I agree with the Texarkana Court's holding that West Oaks does not encompass "safety claims that are completely untethered from health care." Good Shepherd Med. Ctr.-Linden, Inc. v. Twilley, 422 S.W.3d 782 (Tex. App.-Texarkana 2013, pet. denied). Additionally, it is worth noting that West Oaks has drawn recent criticism by at least two sitting Texas Supreme Court justices, who disagree with this broad interpretation altogether. See Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724, 729 (Tex. 2013) (Boyd, J., concurring, joined by Lehrmann, J.) ("I agree with the Justices who dissented in [West Oaks].").

In any event, Camacho alleged the following relevant claims against Valley Regional in her First Amended Petition:

Defendant [Valley Regional], negligently permitted such condition to exist, and negligently failed to adequately correct the conditions or warn [Camacho], despite the fact that [Valley Regional], its agents, servants, and/or employees knew, or in the exercise of ordinary care, should have known of the existence of the dangerous condition and that there was a likelihood of someone being injured, as happened to Plaintiff [Camacho]. Plaintiff further alleges that the dangerous condition of the Defendant's door and premises had continued for such a period of time that it should have been noticed by the Defendant and that Defendant should have warned patrons, such as the Plaintiff, of the condition and/or should have corrected the dangerous condition of the defective motion sensor of the sliding doors before the Plaintiff was crushed so that it would not be dangerous if the Defendant, its agents, servants and/or employees had exercised ordinary care in the inspection and maintenance of its premises.

Valley Regional relies on West Oaks and argues that Camacho's claims are HCLCs because the Infant Abduction System's (IAS) doors that closed on Camacho's body indirectly relate to healthcare because the system is designed to close and lock the doors in order to prevent infants from being abducted from the hospital. I disagree.

A safety HCLC—even one indirectly related to health care—should demonstrate a "logical, coherent nexus to health care." Twilley, 422 S.W.3d at 788. The term "safety" has been construed according to its commonly understood meaning as the "condition of being untouched by danger, not exposed to danger; secure from danger, harm or loss."W. Oaks, 371 S.W.3d at 184 (quoting Diversicare, 185 S.W.3d at 855 (internal quotations omitted)). As correctly defined by the majority, "health care" is "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 ANN. § 74.001(a)(10).

This "logical, coherent nexus to healthcare" is found in each of the cases that the Texas Supreme Court has recognized to be either direct or indirect safety HCLCs. See, e.g.,Psychiatric Solutions, 414 S.W.3d at 724-27 (healthcare provider employee alleged that the healthcare provider employer provided inadequate security and training after he was injured from restraining a psychiatric patient); W. Oaks, 371 S.W.3d at 185 (healthcare provider employee claimant alleged that a mentally ill patient injured him while he provided care for the patient); Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527 (Tex. 2011) (per curiam) (patient alleged that the hospital was negligent when she slipped and fell on a wet bathroom floor in her bathroom after a bath, following knee replacement surgery); Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 663-64 (Tex. 2010) (patient claimant alleged that the hospital failed to provide him with a properly maintained or assembled hospital bed); Diversicare, 185 S.W.3d at 855 (patient claimant alleged that the healthcare provider failed to adequately supervise patients when she was assaulted by another patient). That nexus is absent in this case. Furthermore, the above-referenced cases indicate that the Texas Supreme Court has not yet extended the definition and application of "departures from accepted standards of safety" to non-patient, non-healthcare-employee claimants like Camacho.

The facts here are separable and untethered from "health care" because they relate more to a malfunctioning electronic door system, whose primary purpose related to prevention of crime (i.e., infant abductions), than a breach of standards of safety as they relate to healthcare. Camacho was visiting a family member who had just given birth to a baby in Valley Regional's Women's Center, where the IAS system was in place. As she exited the Women's Center, the malfunctioning IAS pinned Camacho between the system's sliding doors. The IAS was in place in order to prevent infant abductions, but Camacho was not carrying an infant at the time of her injury, nor was an infant in the vicinity. While I agree with the majority that the general purpose of the doors is to protect new mothers and/or their infant children, this observation ignores that these doors are also utilized by the general public, including visitors to the hospital like Camacho, and the door was in an allegedly dangerous condition. In the abstract, virtually anything located in a healthcare setting can be linked to healthcare. But, a line must be drawn somewhere. Accordingly, I would hold that Camacho's claims involve a straight forward premises liability case and are not attempts to artfully plead out of a HCLC.

Additionally, the majority holds that despite the statutory requirement that a HCLC claimant must serve an expert report upon a health care provider defendant, see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through 2013 3d C.S.), it "may well be impossible" for Camacho to file such an expert report "due to the nature of her claim." The majority's position places Camacho in a very precarious position. On one hand, if Camacho fails to file an expert report—as she did in this case due to the near "impossibility" of finding a qualified expert—her claims will be dismissed with prejudice.See id. § 74.351(b)(2). On the other hand, if Camacho files a deficient report, Camacho may still face dismissal, if the report is incurable. See id. § 74.351(c). I disagree with the majority's analysis on this issue and would hold that the Legislature did not intend this absurd result. See Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 557 (Tex. 2014)("We limit our analysis to the words of the statute and apply the plain meaning of those words unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.") (internal quotations and citations omitted).

Finally, my conclusion today aligns with the purposes of the Texas Medical Liability Act (TMLA) and its predecessor statute, the Medical Liability Insurance Improvement Act—that is, to end the medical malpractice "crisis," lower medical malpractice insurance premiums, and increase the delivery of quality medical and health care in Texas. See W.Oaks, 371 S.W.3d at 177-78. By labeling Camacho's claims a HCLC, the majority sweeps yet another ordinary negligence claim into the ambit of the TMLA that malpractice insurers must now cover. As a result, the TMLA's fundamental purposes are thwarted as medical malpractice insurance rates will likely continue to rise as those insurance policies would be required to cover new claims that were not contemplated under the original insurance contracts. See Diversicare, 185 S.W.3d at 863 (O'Neill, J., dissenting, joined by Brister & Green, JJ.).