On May 1, 2015, in Ross v. St. Luke's Episcopal Hospital, 58 Tex. S.Ct. J. 766 (May 1, 2015), the Texas Supreme Court explained how to distinguish between a claim against a health care provider for ordinary tort liability (not requiring an expert report) and a health care liability claim (HCLC) controlled by the Texas Medical Liability Act (TMLA) (which does require the filing of an expert report).

The case arose when a visitor to a patient in a hospital slipped and fell in the lobby. When she sued the hospital, her suit was dismissed for failure to serve an expert report. The Court of Appeals affirmed. Noting a divergence of opinion in the courts of appeals about when the TMLA applies to non-health care related accidents in hospitals, the Supreme Court granted review.

The Court concluded that for a safety standards-based claim to be an HCLC, (a) there must be a substantive nexus between the safety standards allegedly violated and the provision of health care, and (b) that nexus must be more than a "but for" relationship. In the Court's view, 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.

In analyzing whether a safety standards claim is substantively related to the defendant providing medical or health care and is therefore an HCLC, the Supreme Court listed seven nonexclusive factors:

  • did the alleged negligence of the defendant occur in the course of the defendant's performing tasks with the purpose of protecting patients from harm;
  • did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special, medical care was implicated;
  • at the time of the injury, was the claimant in the process of seeking or receiving health care;
  • at the time of the injury, was the claimant providing or assisting in providing health care;
  • is the alleged negligence based on safety standards arising from professional duties owed by the health care provider;
  • if an instrumentality was involved in the defendant's alleged negligence, was it a type used in providing health care; or
  • did the alleged negligence occur in the course of the defendant taking action or failing to take action necessary to comply with safety–related requirements set for health care providers by governmental or accrediting agencies?

Applying these factors, the Supreme Court concluded that Ross' claim was based on safety standards that had no substantive relationship to the hospital's providing health care so that it was not an HCLC and, therefore, she was not required to serve an expert report to avoid dismissal of her suit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.