Thursday, January 14, 2016

Fall into a hole in the ground, and it's a med-mal case, or it could be ... Crawl out, go to court, and get buried once more: Comment on Nicole Little v Riverside General Hospital Inc. (Tex.App. - Houston Jan 14, 2016)

News of the weird: You have to be a lawyer to make sense of this, and preferably a regular consumer of Texas Supreme Court juris(mal)prudence to truly appreciate the nuances.  

What is a health-care liability claim? -- Slippery slope is back in operation with grease pit variation on the perennial theme.  

Houston Court of Appeals Justice Marc W. Brown, writing for panel of three, blesses dismissal of premises liability lawsuit by a plaintiff who fell into a grease pit on hospital grounds because she did not file an expert report to explain how her precipitous descent into the netherworld was medical malpractice. 

The problem - you see - is that this personal injury plaintiff was a patient. And patients are held to a higher standard when it comes to proving a negligence claim. Falling into a pit that wasn't properly covered is not enough. Patients also have to jump through some hoops. Like filing expert reports. It's all for their own good, of course. The care providers owe it to them. 

The bitter end: Case dismissed. Defendants get attorney's fees, for good measure; -- to hold them harmless for the trouble of getting the complaint by the uppity injured patient quashed. How dare she sue a hospital!   

Affirmed and Memorandum Opinion filed January 14, 2016. 

In The 
Fourteenth Court of Appeals
NO. 14-14-00797-CV


On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2013-61281


MARC W. BROWN, Justice.

Nicole Little appeals from the trial court's dismissal of her suit against Riverside General Hospital for injuries sustained from a fall on hospital grounds. The trial court dismissed the suit under section 74.351(b) of the Texas Civil Practice and Remedies Code, finding that Little failed to provide the hospital with an expert report as required. In one issue, Little contends that the trial court erred in dismissing her claim because it is not a "health care liability claim" as defined by the Civil Practice and Remedies Code. We hold that Little's claim is substantively related to the hospital's provision of health care and, therefore, is a health care liability claim. 

We affirm.

Factual and Procedural Background

Appellant Nicole Little filed suit against appellee Riverside General Hospital for injuries resulting from a fall into a grease pit on hospital grounds. The facts surrounding the fall are undisputed. Little was an inpatient resident receiving treatment for substance abuse at Riverside's Houston Recovery Campus. At the time of the incident, Little was participating in an informal cookout held outside on the grounds of the hospital. Little noticed a child standing on a wooden pallet covering a grease pit. Little approached the child to remove him from the pallet. Before she could remove him, the child jumped off of the pallet, causing the pallet to flip upwards and causing Little to fall into the pit. Because of the depth of the pit, Little was unable to exit the pit by herself. The fire department responded to the incident and lowered a ladder into the pit to help Little climb out to safety. Little alleges that she suffered an injury to her ankle as well as severe mental anguish.

Little filed suit under a premises liability theory, claiming that Riverside owed a duty of care requiring it to inspect hospital grounds for any latent defects and to make them safe or to give residents an adequate warning of the dangers posed by these defects. In its answer, Riverside characterized Little's claim as a health care liability claim governed by the Texas Medical Liability Act (TMLA). Riverside later filed a motion to dismiss under section 74.351(b) of the TMLA, claiming that Little had failed to present Riverside with the expert report required by that section of the Act.[1] After a hearing, the trial court granted Riverside's motion to dismiss. Little now appeals the dismissal of her case, arguing that section 74.351 does not apply to this lawsuit because her claim is not a health care liability claim.


Little argues that her claim is not a health care liability claim within the meaning of the TMLA because it alleges a breach of duty unrelated to Riverside's provision of health care. Ordinarily, we review a trial court's order granting or denying a section 74.351(b) motion to dismiss for abuse of discretion. Memorial Hermann Hosp. Sys. v. Galvan, 434 S.W.3d 176, 179 (Tex. App.-Houston [14th Dist.] 2014, pet. granted), rev'd on other grounds, No. 14-0410, 2015 WL 7791565, ___ S.W.3d ____ (Tex. 2015) (per curiam). However, because the issue in this case requires us to interpret the statute to determine whether it extends to Little's claim, we review the trial court's judgment de novo. Id.

The TMLA defines a "health care liability claim" 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.
Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (West 2015). According to this definition, "there are three basic elements of a health care liability claim: (1) a physician or health care provider must be a defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, or a departure from the accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's act or omission of which the claimant complains allegedly must have been the proximate cause of injury to the claimant." Galvan, 434 S.W.3d at 179. The parties do not dispute that Riverside is a health care provider under the statute. The only issue before us is whether Riverside's alleged breach of duty is a departure from safety standards related to health care.

In its recent decision in Ross, the Texas Supreme Court held that, in a safety standards-based claim against a health care provider, the standards allegedly breached by the provider need not be "directly related to health care," but they must have a "substantive relationship" to the provision of health or medical care.[2] Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496, 504 (Tex. 2015)

Here, Little insists that her claim is strictly one of premises liability, alleging a breach of duty unrelated to the provision of health care. But even though Little has pleaded her claim as one of premises liability, we must "consider the underlying nature of the claim" when determining whether it is directly or substantively related to health care. Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 394 (Tex. 2011).

Little's premises liability claim assumes that the duty to inspect, make safe, or warn arises only from Riverside's status as the operator of the property and her own status as an invitee on that property. We note that Riverside's status as Little's health care provider also imposes on it a duty to maintain her safety, the breach of which can be the crux of a health care liability claim under the TMLA. See Ross, 462 S.W.3d at 505Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 850-51 (Tex. 2005) (healthcare facilities have a different obligation to their residents than non-treating premises owners do). "The pivotal issue in a safety standards-based claim is whether the standards on which the claim is based implicate the defendant's duties as a health-care provider, including its duties to provide for patient safety." Ross, 462 S.W.3d at 505.

Relying on the Supreme Court's decision in Loaisiga v. Cerda, Little argues that the maintenance of the grease pit on hospital grounds is "wholly and conclusively inconsistent with, and thus separable from" the rendition of health care. 379 S.W.3d 248, 257 (Tex. 2012). However, Loaisiga is distinguishable from the case at hand. Loaisigainvolved actions by a health care provider that were outside the scope of and not incident to the care that the provider's patients were seeking.[3] Id. Here, the residential care that Little sought necessarily required that the hospital take action to ensure her safety at all times in which she was a patient at the facility. Protection of patient safety—including maintenance of hospital grounds to prevent injury—is part and parcel of the provision of health care, especially in the context of residential treatment. We find case law regarding a health care liability claim in the residential nursing home context to be illustrative. Little's case is similar to Johnson, where the claim involved a resident of a nursing home who was fatally injured when she was bitten by a brown recluse spider. 344 S.W.3d at 393. Like Little, the deceased's representative pleaded the claim under a premises liability theory, alleging that the nursing home failed to inspect the premises for pests. Id. at 393. The Texas Supreme Court held in Johnson—and reiterated in Ross—that the claim was ultimately a health care liability claim because it alleged a departure from the "fundamental patient care required of a nursing home . . . to protect the health and safety of its residents." Id. at 394 (citing 40 Tex. Admin. Code §§ 19.1701, 19.401(b) (2015)); Ross, 462 S.W.3d at 502 (discussing Johnson as a case in which the patient's negligence claim was directly related to the provision of health care).[4]

Substance abuse treatment centers like Riverside are required to adhere to the same standard of care for their patients—a standard that includes the maintenance of a safe environment. 25 Tex. Admin. Code § 448.211 (2015) (Department of State Health Servs. Substance Abuse Treatment Standard of Care) (requiring substance abuse treatment centers to provide an "appropriate, safe, clean, and well-maintained environment"). Little's allegation that Riverside failed to make its grounds safe for its residents is an allegation that it did not comport with the required standard of patient care. We conclude that the Little's claim, despite being pleaded in the language of premises liability, alleges a "violation[] of safety standards directly related to the provision of health care," which includes protecting patients from injury on hospital premises. Ross, 462 S.W.3d at 502(citing Johnson, 344 S.W.3d at 394-95).


Under Ross, Little's claim is a health care liability claim and, as such, is subject to the requirements set forth in section 74.351. We affirm the judgment of the trial court dismissing Little's claim for noncompliance with the TMLA.

[1] "In a health care liability claim, a claimant shall, not later than the 120th day after the date each defendant's original answer is filed, serve on that party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2015).

[2] In Tex. West Oaks Hospital, LP v. Williams, the Texas Supreme Court held that, in the definition of "health care liability claim" provided in section 74.001(a)(13), the phrase "directly related to health care" modifies only the terms immediately before it—"professional or administrative services"—but does not modify "safety." 371 S.W.3d 171, 185-86 (Tex. 2012). In Ross, the Court clarified its holding and ruled that, while "directly related to health care" did not modify "safety," there nonetheless must be some substantive relationship between the safety standards that are alleged to have been breached and the provision of health care. 462 S.W.3d at 502-04.

[3] In Loaisiga, the patients were seeking treatment for sinus and flu-like symptoms. 379 S.W.3d at 253. During the course of the exams, the doctor groped the patients' breasts. Id. The Supreme Court concluded that this touching was inappropriate and not within the scope of the treatment sought, meaning that the plaintiffs' claims were not within the scope of the TMLA. Id. at 257. The Court distinguished Loaisiga from a similar case, Vanderwerff, in which the plaintiff filed suit after a chiropractic exam in which she alleged that the chiropractor inappropriately touched her genitals. Id. at 256-57; Vanderwerff v. Beathard, 239 S.W.3d 406, 409 (Tex. App.-Dallas 2007, no pet.). The Vanderwerff court held that the touching of the plaintiff's genitals could have been within the scope of the exam because the plaintiff was seeking care for pain running from her knee to her upper thigh. 239 S.W.3d at 409. Because the touching ostensibly could have been within the scope of the care requested, the court of appeals held that the plaintiff's claim was a health care liability claim. We conclude that Little's case is more like Vanderwerff than Loaisiga because the maintenance of safety on hospital grounds is certainly within the scope of Little's residential treatment program and thus is not separable from the provision of her health care.

[4] The Texas Administrative Code provides that a nursing home must provide "a safe, functional, sanitary, and comfortable environment" for residents. 40 Tex. Admin. Code § 19.1701 (2015) (Tex. Dep't of Aging and Disability Servs. Nursing Facility Quality of Life Requirements). The Code also contains a "Statement of Resident Rights" that provides a right to "safe, decent, and clean conditions" for nursing home residents. Id. § 19.401(b) (2015) (Tex. Dep't of Aging and Disability Servs. Nursing Facility Statement of Resident Rights).


On 10-21-2011, Appellant ("Little") was a resident at a business operated by Appellee ("Riverside General") known as Houston Recovery Campus. (R 4-5) While participating in a cook out outside of the facility, Little notices a four year old boy standing on a wooden pal/et that was covering a grease pit that was located outside the kitchen of the facility. (R 5) Little went to remove the young boy from the pallet and when she did, he jumped off of the pal/et causing the pallet to flip up and Little to fall into 7 the well of grease approximately ten (10) feet deep. (R5) Little found herself in a pit of grease up to her chest and had to be helped out by the Houston Fire Department. (R 5) She sustained injuries and a ligament in her right ankle was torn. (R 6)

On 10-11-2013, Little sued Riverside General to obtain compensation for damages Little sustained as a result of her fall into an open grease pit. (R 4-7) On 6-9-2014, Riverside General moved to dismiss for failure to provide an expert report pursuant to Tex. Civ. Prac. & Rem. Code ("TCPRC") Section 74.351. (R 19-25) On 9-04-2014, the trial court granted Riverside General's motion. (R 51) On 10-2-2014, Little filed her notice of appeal from the trial court's order of dismissal. (R 55)


The facts of this case are limited, but the core particulars supporting the Appellee’s position are not in dispute.

Appellant, Nicole Little, was an in-patient seeking substance abuse rehabilitation at Riverside General Hospital on October 21, 2011. See CR 4 – 7.

Plaintiff’s Original Petition describes her as a “resident” of the subject treatment facility. Id. at Section IV. She allegedly sustained injuries when she fell into a 10-foot deep “grease pit” on the hospital premises while attempting to remove a child from a wooden pallet covering the pit. Id. at Section III. That the Appellant was an in-patient receiving substance abuse treatment at the time of the incident is not in dispute. That the injury occurred during a hospital activity is not in dispute. Also undisputed is the fact that there were several hospital employees attending the subject event, which the Appellant describes as a “cook out,” at the time of the subject injury.

Per her Original Petition, Appellant asserts that Riverside General Hospital, via its agents, servants and employees, acting within the scope of their employment, breached the duty of ordinary care owed to the Appellant. See CR 5. She generally asserts negligence related to the premises condition, specifically the placement of the wooden pallet over the grease pit, as well as the failure of Riverside General Hospital, Inc. to warn her, a resident, of the premises condition. Id. at CR 6. 

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