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At a Glance:
Title:
Texas West Oaks Hosp., LP v. Williams
Date:
June 29, 2012
Citation:
371 S.W.3d 171
Court:
Texas Supreme Court
Status:
Published Opinion

Texas West Oaks Hosp., LP v. Williams

Supreme Court of Texas.

TEXAS WEST OAKS HOSPITAL, LP and Texas Hospital Holdings, LLC, Petitioners,

v.

Frederick WILLIAMS, Respondent.

No. 10–0603.

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Argued Nov. 8, 2011.

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Decided June 29, 2012.

Attorneys & Firms

*174 Wesson H. Tribble, Tribble, Ross & Wagner, Houston, TX, for Texas West Oaks Hospital, LP.

William Wade Hoke, Robert Kwok & Associates, Leah Rush Easterby, Houston, TX, for Frederick Williams.

Opinion

Justice WAINWRIGHT delivered the opinion of the Court, in which Chief Justice GUZMAN joined.

At issue in this interlocutory appeal is whether the claims of an employee against his employer, both of whom are health care providers, alleging injuries arising out of inadequate training, supervision, risk-mitigation, and safety in a mental health facility, constitute health care liability claims (HCLCs) under the Texas Medical Liability Act (TMLA or Act). See TEX. CIV. PRAC. & REM.CODE ch. 74 et seq. We conclude that the TMLA does not require that the claimant be a patient of the health care provider for his claims to fall under the Act, so long as the Act’s other requirements are met. We hold that the employee here is properly characterized as a “claimant” under the Act and his allegations against his nonsubscribing employer are health care and safety claims under the TMLA’s definition of HCLCs, requiring an expert report to maintain his lawsuit. We further hold that the Act does not conflict with the Texas Workers’ Compensation Act (TWCA). We therefore reverse the judgment of the court of appeals.

I. Background

Texas West Oaks Hospital, LP and Texas Hospital Holdings, LLC operate Texas West Oaks Hospital (West Oaks), a state-licensed, private mental health hospital located in Houston, Texas. Frederick *175 Williams, a psychiatric technician and professional caregiver at West Oaks, was injured on the job while supervising a patient, Mario Vidaurre. Vidaurre was admitted to West Oaks on June 11, 2007. Due to his history of paranoid schizophrenia, including manic outbursts and violent behavior directed at family members and professional staff, Vidaurre was placed by his admitting physician on one-to-one observation, an elevated level of supervised care in the psychiatric unit. Vidaurre was also put on “unit restriction,” meaning he could only be taken out of the psychiatric unit by direct order of a physician. A few days after Vidaurre’s admission, while Williams was supervising him, Vidaurre became agitated. To calm him, Williams took Vidaurre to an outdoor enclosed smoking area, in violation of the unit-restriction policy. The door to the enclosure locked behind them and the unsupervised area contained no cameras, audio supervision, mirrors, or other monitoring apparatus. Although Williams previously had taken Vidaurre to the smoking area without incident, a physical altercation occurred on this occasion, resulting in Vidaurre’s death and injuries to Williams.

Vidaurre’s estate sued West Oaks, and later Williams, asserting HCLCs under the TMLA, codified in Chapter 74 of the Texas Civil Practice and Remedies Code. Port Elevator–Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex.2012) (discussing the “exclusive remedy” doctrine).

Williams alleged that West Oaks was negligent in:

(a) Failing to properly train Williams to work at West Oaks’ premises, including warning him of the inherent dangers of working with patients with the conditions and tendencies that Mario Vidaurre possessed; (b) Failing to adequately supervise West Oaks’ employees, including Williams, while working with patients with conditions and tendencies that Mario Vidaurre possessed; (c) Failing to provide adequate protocol to avoid and/or decrease the severity of altercations between its employees, such as Williams, and patients; (d) Failing to provide its employees, including Williams, with adequate emergency notification devices to alert other employees of altercations in which assistance is needed; (e) Failing to warn Williams of the dangers that West Oaks knew or should have known were associated with working with patients such as Mr. Vidaurre; and (f) Failing to provide a safe workplace for its employees, including Williams.

West Oaks filed a motion to dismiss on the grounds that Williams’ claims constituted HCLCs under the TMLA and that Williams had not served an expert report on West Oaks, as required under the Act. See (b) (requiring a trial court to dismiss a health care liability claim if an expert report is not served within 120 days of filing suit).1 Williams *176 responded that his claims sound in ordinary negligence rather than health care liability. Following a hearing, the trial court denied West Oaks’ motion. West Oaks then filed this interlocutory appeal. See id. § 51.014(a)(9).

The court of appeals affirmed the trial court’s order. TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13). West Oaks filed a petition for review in this Court.

II. Discussion

In seeking to distinguish ordinary negligence claims from HCLCs, the heart of these cases lies in the nature of the acts or omissions causing claimants’ injuries and whether the events are within the ambit of the legislated scope of the TMLA. Causes of action that are HCLCs cannot be transmuted to avoid the strictures of the medical liability statute. TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13).

West Oaks argues that Williams’ claims, mirroring the same facts as Vidaurre’s HCLCs, are HCLCs and therefore implicate the requirement to serve an expert report. Such a conclusion would mandate *177 a dismissal because Williams did not serve a report on West Oaks. id. at 353 (opining that Williams’ safety and security claims involve issues also “aris[ing] in other settings, such as jails and prisons”). In essence, Williams argues that the hospital is the mere situs of his claims, that his role as psychiatric technician overseeing a mental patient has no bearing on the character of his claims, and the fact that his claims arose in a mental health facility has little or no bearing on their character.

A. Standard of Review

West Oaks’ and Williams’ arguments both implicate the scope of claims reached by the TMLA. The nature of the claims the Legislature intended to include under the TMLA’s umbrella is a matter of statutory construction, a legal question we review de novo. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002) (further citations omitted)).

B. Relationship Between the Parties Under the Act

Williams argues that the lack of a patient-physician or patient-health-care-provider relationship between him and West Oaks is a clear barrier to inclusion of his claims within the Legislature’s definition of HCLCs. He asserts that such a relationship is necessary to HCLCs. At one point in the past, Williams may have had a good argument. However, modifications over time to the TMLA and its predecessor indicate a different scope for HCLCs under current law.

The TMLIIA was enacted in 1977 to relieve a medical “crisis [having] a material adverse effect on the delivery of medical and health care in Texas.” Act of May 30, 1977, 65th Leg., R.S., ch. 817, article 4590i and recodifying it as Chapter 74 of the Texas Civil Practice and Remedies Code. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(a), 2003 Tex. Gen. Laws 847, 884.

The 2003 legislation featured a significant modification to the existing law; it changed the HCLC definition:

*178 ‘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 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.REV.CIV. STAT. art. 4590i, § 1.03(a)(4) (repealed 2003). The Legislature also defined the new term in the Act:

‘Claimant’ means a person, including a decedent’s estate, seeking or who has sought recovery of damages in a health care liability claim. All persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant.

Id. § 74.001(b). Changing the term “patient” to “claimant” and defining “claimant” as a “person” expands the breadth of HCLCs beyond the patient population. This in turn necessarily widened the reach of the expert report requirement, unless otherwise limited by other statutory provisions.

However, “health care” and “medical care” HCLCs are separately defined in the Act and reference treatment furnished “for, to, or on behalf of a patient.” (a)(19).3 As discussed more fully below, “medical care” and “health care” HCLCs require that the claimant be a patient. See Part II.D.1, infra.

With the exception of medical care and health care claims, our focus in determining whether claims come under the TMLA is not the status of the claimant, but the gravamen of the claim or claims against the health care provider. See Diversicare, 185 S.W.3d at 854.

C. Williams’ Status as a “Claimant” Under the Act

We next examine whether Williams is a “claimant” under the TMLA. Only claimants are obligated to serve expert reports on physicians or health care providers. (b). West Oaks argues that the language and structure of the definition of “claimant” in the current statute, especially when compared to its predecessor, indicate that the term includes not only patients, but other persons as well. Williams asserts that he is not a “claimant” because his claims are not HCLCs, as they do not involve the exercise of professional medical judgment. Williams also argues that the Legislature’s substitution of “patient” with “claimant” is meant only to include derivative claims by the relatives and representatives of deceased patients, *179 not employees of health care provider defendants.

As observed above, a “claimant” is broadly defined as a “person,” including the estate of a person, bringing an HCLC. TEX. CIV. PRAC. & REM.CODE § 74.001(b).

Although he likely would not have been a “patient” under the TMLIIA, Williams is a “claimant” and a “person” under the textual change to the definition of HCLCs in the TMLA. Not only is the term “patient” not included within the definition of “claimant,” the Legislature used the term “including” to precede the reference to a decedent’s estate. This renders any components of the definition nonexclusive. In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 468 (Tex.2011) (observing that the term “including” in that case was an explanatory term of enlargement).

The dissent argues that the 2003 amendment substituting “claimant” in lieu of “patient” in the HCLC definition merely clarifies that a patient’s estate or others acting in a representative capacity may bring an HCLC. 371 S.W.3d at 194 (Lehrmann, J., dissenting). But further belying the contention that a “claimant” may be only a patient or her estate is the Act’s definition of “representative.” The term “representative,” used in the Act’s medical-records-disclosure provision, is defined as the “agent of the patient or claimant,” indicating that patient and claimant do not necessarily refer to the same category of persons. Wilson N. Jones Mem’l Hosp. v. Ammons, 266 S.W.3d 51, 61–62 (Tex.App.—Dallas 2008, pet. denied) (also drawing the distinction). Neither the language of the TMLA nor the logic of the amendments can support a narrow reading of the term “claimant.”

D. Character of Williams’ Claims

In defining the types of claims against health care providers constituting HCLCs, the question we face is not whether it seems that a claimed injury really arose from treatment commonly understood to be some type of medical or health care; nor do we address whether the incident causing the injury would have been a common law negligence claim. Instead, the issue posed is whether the umbrella fashioned by the Legislature’s promulgation of the TMLA includes the cause of action brought by a claimant against physicians or health care providers.

The foundations of our analysis are well established. As in Diversicare and Marks, we determine whether the relevant allegations are negligence claims or are properly characterized as HCLCs under the Act. Diversicare, 185 S.W.3d at 847.

An HCLC contains three basic elements:4 (1) a physician or health care *180 provider must be a defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, or a departure from 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 complained of must proximately cause the injury to the claimant. See Marks, 319 S.W.3d at 662 (construing the similar definition found in the TMLIIA).

The second element is at issue in this case: whether Williams’ claims alleging West Oaks’ failure to properly train the facility’s staff, warn of risks associated with violent psychiatric patients, provide adequate protocols and equipment to limit such risks, and provide a safe work environment under such circumstances implicate one or more of the standards listed in the HCLC definition. There are several types of HCLCs set out in the TMLA: in addition to claims involving treatment and lack of treatment, the Act contemplates claims for alleged “departure[s] from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care.” (a)(24) (defining “health care,” “medical care,” and “professional or administrative services”). West Oaks asserts that Williams’ claims allege departures from accepted standards of either “health care” or “safety.” Williams argues that neither of these categories of claims applies to his allegations, removing him from the Act’s reach.

1. Claimed Departures from Accepted Standards of Health Care

We examine whether Williams’ complaints are “claimed departure[s] from accepted standards of ... health care.” Id. at 850. Williams’ claims are similar to the health care claims at issue in Diversicare. However, our analysis of health care claims in that case involved claims by a patient against a health care provider, not, as in this case, claims brought by a non-patient employee against his employer.

The definition for “health care” suggests that claims brought under this prong of the HCLC definition must involve a patient-physician relationship. See id. § 74.001(a)(10). “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.

section 74.001(a)(13) incorporates the definition of “health care,” such a claim must involve a patient-physician relationship.

The requirement that a claim arising under the health care prong of TEX. GOV’T CODE § 311.026(b) (same). However, the specific wording of the “health care” definition, that health care be an act involving treatment rendered for, to or on behalf of a patient, acts as a limitation on the general provision that an HCLC need only be pursued by a “claimant.” While other categories of HCLCs need only be pursued by claimants, by specific statutory directive health care claims must involve a patient-physician relationship.

Claims based on departures from accepted standards of health care therefore involve a nexus between the standard departed from and the alleged injury. Such a nexus exists in this case. Williams, a health care provider for Vidaurre, was assaulted by Vidaurre, who was a West Oaks patient. See 185 S.W.3d at 850. Williams’ similar allegations constitute HCLCs based on claimed departures from accepted standards of health care.

Texas mental health statutes and regulations bolster this conclusion. West Oaks is a state-licensed, private mental health facility. The law requires that an inpatient mental health facility “provide adequate medical and psychiatric care and treatment to every patient in accordance with the highest standards accepted in medical practice.” TEXAS HEALTH AND SAFETY CODE § 576.022(a)(emphasis added). Mental health hospitals may not operate in Texas *182 unless licensed by the Texas Department of Health and operated in accordance with the rules and standards of the Texas Board of Mental Health and Mental Retardation to ensure the proper care and treatment of patients. Id. § 577.001(a), 577.005(b), 577.010(a).

The necessity of expert testimony to support or refute the allegations at issue is a factor in assessing the nature of a claim against a health care provider or physician. 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 a health care liability claim.”). We have not previously addressed the court of appeals’ reasoning, and we now hold that if expert medical or health care testimony is necessary to prove or refute the merits of the claim against a physician or health care provider, the claim is a health care liability claim.

Expert testimony in the health care field is necessary to support Williams’ claims. Those claims require evidence on proper training, supervision, and protocols to prevent, control, and defuse aggressive behavior and altercations in a mental hospital between psychiatric patients and employed professional counselors who treat and supervise them. The provision of emergency notification devices, warning of dangers associated with psychiatric patients, providing a safe workplace, and properly training the caregiver at a psychiatric facility are integral to the patient’s care and confinement. Acts or treatment that are integral to a “patient’s medical care, treatment, or confinement” constitute “health care.” Diversicare, 185 S.W.3d at 850. The allegedly missing or insufficient protocols and standards were for a mental patient in a mental hospital. It 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 Williams’ injury.5

*183 Williams’ argument that any security officer could have performed the oversight and supervision of a psychiatric patient at the mental health hospital is overly simplistic. Perhaps a security officer could have protected Williams, and Vidaurre himself, from harm, or lessened the severity of the injuries suffered, but security is only one aspect of the matter. Williams’ position at West Oaks involved professional, health-care-related judgments different from the tasks typically associated with a law enforcement officer, security guard, or bouncer. Treatment of a mental patient subject to psychotic and aggressive outbursts requires health care, not simply protection from bodily harm, to control, defuse, or prevent mental processes leading to aggression, and professional techniques to do so. Patients at West Oaks are there not merely for shelter, but also for care and treatment. See Charrin v. Methodist Hosp., 432 S.W.2d 572, 574 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ) (holding that the hospital-patient relationship is different from that of a landlord-tenant). Williams’ self-described role at West Oaks was that of a “counselor” and “caregiver,” not a security guard. One of Vidaurre’s experts characterizes psychiatric technicians as a “valuable and indispensable part of psychiatric hospital care.” Vidaurre’s expert also notes that the role of psychiatric technician involves appropriately observing and evaluating potentially assaultive mentally ill patients and assessing the potential for violent eruptions. Thus, the very deficiencies in training and protocols Williams complains of underscore the health-related nature of his role.

We do not conclude, as West Oaks would have us, that Williams’ claims should be considered HCLCs on the bare basis that they mirror those of the patient and stem from the same fact pattern. Williams and the patient stand as separate claimants. We analyze the applicability of the TMLA and its attendant procedural requirements on the gist of the claimant’s allegations. See Diversicare, 185 S.W.3d at 847–48.

2. Claimed Departures from Accepted Standards of Safety

We also examine whether Williams’ claims may be characterized as HCLCs under the definition’s “safety” prong. We have not decided whether safety claims must be “directly related to health care.” The TMLA’s HCLC definition includes, among the different types of covered claims, “claimed departure[s] from accepted standards of ... safety....” TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13).

Williams was injured during an altercation with Vidaurre in a smoking area at the hospital, and he contends his injuries would have been avoided if West Oaks had instituted proper safety protocols and monitoring devices. Williams’ claims, predicated upon the monitoring and restraint *184 of violent, schizophrenic patients, implicate the safety, as commonly understood, of employees and patients. Safety is not defined in the TMLA. This Court has construed the term, under principles of statutory construction, according to its commonly understood meaning as the condition of being “untouched by danger; not exposed to danger; secure from danger, harm or loss.” Marks, 319 S.W.3d at 662–63.

In 2003, the Legislature modified the definition of HCLCs. It changed “patient” to “claimant,” and also added the italicized phrase to the relevant portion of the pre–2003 definition: HCLC means a cause of action for a “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....” TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13)(emphasis added). The dissent argues that the 2003 amendment was intended to narrow the existing scope of the safety prong of HCLCs by requiring that safety be “directly related to health care.”6 See id. We disagree for several reasons.

Safety was in the Act prior to the 2003 amendments and this Court construed it according to its common meaning as being secure from danger, harm or loss. TEX.REV.CIV. STAT. art 4590i, § 1.03(a)(4) (repealed 2003), with Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 865.

Scrutinizing grammar in interpreting statutes, we are cognizant of the rule that “[m]odifiers should come, if possible, next to the words they modify.” William Strunk, Jr. & E.B. White, THE ELEMENTS OF STYLE R. 30 (4th ed. 2000); see also Bryan A. Garner, GARNER’S MODERN AMERICAN USAGE 523 (2003) (noting that “[w]hen modifying words are separated *185 from the words they modify, readers have a hard time processing the information,” and adding that “the true referent should generally be the closest appropriate word.”). This rule is related to the last antecedent doctrine of statutory interpretation commonly applied to ambiguous legislative texts. Diversicare, 185 S.W.3d at 855. Williams’ similar complaints here concerning his protection from danger at the hands of a mental patient also implicate safety.7

Moreover, a majority of the members of this Court have opined in written opinions or joined written opinions reasoning that safety is not constricted by the subsequent addition to the statute of the phrase “professional or administrative services directly related to health care.” Concurring and dissenting in Diversicare, Chief Justice Jefferson wrote that safety, undefined in the statute, is commonly understood to mean protection from danger and that the “specific source of that danger ... is without limitation.” Id. at 674 (Jefferson, C.J., concurring and dissenting, joined by Justices Green, Guzman and Lehrmann).

We agree with West Oaks that Williams’ claims are indeed for departures from accepted standards of safety. We conclude that the safety component of HCLCs need not be directly related to the provision of health care and that Williams’ claims against West Oaks implicate this prong of HCLCs.

E. Relationship with the Texas Workers’ Compensation Act

Williams also contends that interpreting the TMLA to encompass his claims will conflict with the procedural and substantive litigation rights granted to employee plaintiffs under the TWCA. See TEX. LAB.CODE § 406.001 et seq. He argues that his personal injury claims against his employer should not be characterized as HCLCs because the Legislature did not intend for employee claims against a health care provider employer to fall under the rubric of the Act. Williams also contends that an employee’s personal injury claim against his employer would not have constituted a medical malpractice claim prior to the enactment of the medical liability statutes in 1977.

We see no conflict between the TMLA and the TWCA, whether the claim at issue is asserted against an employer subscribing to workers’ compensation insurance or, as here, against a nonsubscriber. The TWCA is unique in permitting private Texas employers to elect to subscribe to workers’ compensation insurance. Id. § 408.001(b) (allowing recovery of exemplary damages for *187 death caused by an intentional act or omission or the employer’s gross negligence).

However, if an employer forgoes workers’ compensation coverage, and is a nonsubscriber to the workers’ compensation system, it is subject to suits at common law for damages. With the exception of certain employer defenses abrogated by the statute, a suit by an employee of a nonsubscribing employer is largely outside the limitations imposed by the TWCA. See id. § 406.033(d). An employee may also elect to waive workers’ compensation coverage and “retain the common-law right of action to recover damages for personal injuries or death” if certain notification requirements are met. Id. § 406.034(a), (b).

Thus, the workers’ compensation construct contemplates two systems, one in which covered employees may recover relatively quickly and without litigation from subscribing employers and the other in which nonsubscribing employers, or the employers of employees who have opted not to accept workers’ compensation coverage, are subject to suit by injured employees to recover for their on-the-job injuries. “In providing the worker a form of prompt remuneration for loss of earning capacity, the statutory [workers’ compensation] scheme is in lieu of common law liability based on negligence.” Reed Tool Co. v. Copelin, 689 S.W.2d 404, 407 (Tex.1985) (“The system balances the advantage to employers of immunity from negligence and potentially larger recovery in common law actions against the advantage to employees of relatively swift and certain compensation without proof of fault.”).

Just as the workers’ compensation system treats employees of subscribing versus nonsubscribing employees differently, the treatment of those two differently situated employees under the TMLA for on-the-job injuries is also distinct. The employee of a subscriber that is a health care provider must pursue an administrative remedy under the TWCA for on-the-job injuries. However, the employee of a nonsubscribing employer that is a health care provider must file suit against the nonsubscriber and follow the rules that govern that suit. In this case, the governing rules include the TMLA’s requirements for a claimant suing a health care provider. Other proceedings to recover against nonsubscribing employers would similarly be governed by applicable statutes and rules, e.g., proof of negligence and causation, notice requirements under the Texas Tort Claims Act, or the common pleading and service requirements in the Texas Rules of Civil Procedure for all lawsuits.

Williams invites us to read into the TMLA an exception for claimants happening to be employees of nonsubscriber health care provider employers who sue their employers for claims that come under the TMLA umbrella. Williams’ case is against a nonsubscriber, outside of the workers’ compensation system, yet he implores the Court to except him from the TMLA’s requirements without any express statutory exception. He seeks a common law exemption from the TMLA’s mandate that we are not willing to create.

As explained, the TWCA and the TMLA do not conflict in this case. But even if they did, the Legislature has already designated the victor—the TMLA would prevail. Section 74.002(a) of the TMLA states:

*188 In the event of a conflict between this chapter and another law, including a rule of procedure or evidence or court rule, this chapter controls to the extent of a conflict.

Article 5525, Revised Civil Statutes of Texas, 1925, as amended” (pertaining to injuries resulting in death and survival of cause of action, respectively)).9

Here, Williams must establish the medical negligence of West Oaks to recover under the TMLA. The statute requires expert reports to support his claims.

III. Response to Dissent

At base, the dissent’s position is that, notwithstanding the Legislature’s substitution of the term “claimant” for “patient” in the TMLA’s HCLC definition, HCLCs are only those in which the defendant has a patient-physician or “patient-health-care-provider” relationship with the plaintiff. In spite of the Act’s words, the dissent proffers that the Court strays from the language of the Act and undermines its purpose. See 371 S.W.3d at 199–200 (Lehrmann, J., dissenting). The chart below vividly illustrates the Legislature’s broad intention and refutes the dissent’s position.

TEX.REV.CIV. STAT. art. 4590i,

 

TEX. CIV. PRAC. & REM.CODE

 

§ 1.03(a)(4) (repealed 2003) (emphases added)

 

§ 74.001(a)(13) (amended 2003) (emphases added)

 

“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 medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.

“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 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.

As explained in Parts II.B and C above, in 2003 the Legislature modified the scope of HCLCs when it deleted “patient” and inserted the broader term “claimant” in the definition. Compare TEX.REV.CIV. STAT. art. 4590i, § 1.03(a)(4) (repealed 2003). A claimant need not be the patient in all HCLCs.

As discussed above, two of the different types of HCLCs have specific definitions. The “medical care” and “health care” definitions both refer to services rendered for, to, or on behalf of a patient during the patient’s care,10 treatment, or confinement. *189 section 74.001(a)(13). We decline to do so.

This is a statutory construction case. Our role “is to determine and give effect to the Legislature’s [expressed] intent.” McIntyre, 109 S.W.3d at 745. Such cases may offer the temptation to shoehorn a desired legislative result. But the Legislature changed “patient” to “claimant,” and “claimant” is broader than “patient.” Aside from claims alleging negligent medical care or health care, a claim need not involve a patient-physician relationship for it to be an HCLC.

The dissent argues several other points which we address briefly. The dissent contends that other provisions of the TMLA should trump the definition of HCLCs.

(1) Notice of suit and medical records release provisions. The dissent similarly notes that inclusion of non-patients as claimants would render the notice of suit to health care providers, and accompanying medical-records releases, to health care providers, questionable. 371 S.W.3d at 195 (Lehrmann, J., dissenting) (citing Garcia v. Gomez, 319 S.W.3d 638, 643 (Tex.2010)). However, nothing in the language of the notice and disclosure provisions or in their purpose of encouraging pre-suit negotiation and settlement indicates a legislative intent that in all cases a claimant must be a patient or her representative.

The dissent contends that the parties’ right to medical records cannot be applied against a third-party patient, such as Vidaurre. Specifically, the dissent points out that medical-privacy laws may prevent the parties from compelling a person such as Vidaurre, who is not a party to this case *190 pursuing a claim under the TMLA, from supplying his medical records. 371 S.W.3d at 195 (Lehrmann, J., dissenting). JUSTICE LEHRMANN’S point is well taken, but not in this case. Williams is the claimant in this case and these requirements should be applied to him. For purposes of his own medical records, Williams would be the “patient” referenced in the authorization form. See section 74.051(a)). Such records would bear directly in assessing the extent of damages and would streamline settlement negotiations, regardless of whether the claimant was a patient of the health care provider being sued.

(2) Expert report provisions. The dissent similarly asserts that the Act’s definition of “expert report” and discussion of expert qualifications means that HCLCs must be based on a patient-physician relationship because those provisions contain references to departures from accepted standards by physicians or health care providers and knowledge of accepted standards for diagnosing, caring, or treating the illness, injury, or condition at issue in the claim. 371 S.W.3d at 195–96 (Lehrmann, J., dissenting) (discussing Samlowski v. Wooten, 332 S.W.3d 404, 416 (Tex.2011) (Wainwright, J., dissenting in part).

(3) Jury instructions. The dissent observes that one of the jury instructions required by the Act in jury trials includes a caution that a finding of negligence may not be based solely on evidence of a “bad result” to the claimant, but a bad result may be considered in determining negligence. 371 S.W.3d at 196 (Lehrmann, J., dissenting) (citing TEX. CIV. PRAC. & REM.CODE § 74.303(e)(2)). Drifting again from the statutory text directly at issue, the dissent argues that this instruction “only *191 makes sense” in the context of a patient dissatisfied with medical or health care services delivered by a health care provider. We fail to see the logic in this argument. “Bad result” is not defined, making it difficult to limit its meaning exclusively to health care or medical care, as the dissent would do. The Act indicates that a “bad result” is merely a fact that may be considered in a negligence finding. To conclude from this provision that the Legislature intended to include only patients under the Act, when it expressly broadened the HCLC definition, is not logical and would render the revisions to the more relevant HCLC definition meaningless.

(4) Re-interpretation of Diversicare. Our opinion today is consistent with our earlier construction of the HCLC definition in Omaha Healthcare, 344 S.W.3d at 394 (similar).

(5) Importance of the 2003 amendments. Incredibly, the dissent contends that the Court places “undue importance” on the Legislature’s modification of the HCLC definition in 2003, substituting the broader term “claimant” for “patient” in identifying who may bring a claim. 371 S.W.3d at 193–94 (Lehrmann, J., dissenting); TEX. CIV. PRAC. & REM.CODE § 74.001(a)(2). Thus, aside from claims involving health care or medical care and claims based on treatment, a direct healthcare-provider-to-patient relationship is not required for claims to constitute HCLCs.

(6) Construction of “safety.” The dissent argues that this issue has not been properly raised. 371 S.W.3d at 198 (Lehrmann, J., dissenting). However, West Oaks presents the safety-related nature of its claims in its briefing, and the court of appeals analyzed Williams’ claims as safety claims. TEX. CIV. PRAC. & REM.CODE § 74.001(a)(13).

(7) Balance between the TMLA and TWCA. Contending that our assessment of Williams’ claims as HCLCs “forc[es]” them into the HCLC “mold” and “significantly disrupts the delicate balance between employee and employer interests” motivating the TWCA, the dissent argues that our reasoning alters the incentive structure in the TWCA intended to penalize nonsubscribing employers. 371 S.W.3d at 199 (Lehrmann, J., dissenting). However, contrary to the implication of the dissent, the TWCA does not create an especially punitive litigation regime for nonsubscribing employers. Rather, as noted above, nonsubscribing employers are divested of several common law defenses. See TEX. CIV. PRAC. & REM.CODE § 74.002(a).

(8) Legislative purpose of the TMLA. Noting that one of the stated purposes of the Act is to reduce the frequency and cost of medical malpractice claims, the dissent concludes that our holding will result in a larger number of total HCLC claims, contrary to the Legislature’s purpose. 371 S.W.3d at 199–200 (Lehrmann, J., dissenting). Given the number of claims filed against health care providers, many will be HCLCs and some may not be. The dissent would shift the balance so that many more are not HCLCs, which is contrary to the Legislature’s change of “patient” to “claimant.” We refuse to trump explicit statutory language with the dissent’s view of the TMLA’s purpose.

Finally, our conclusion that the Act covers claims by non-patients against health care providers is not new territory. The Fifth Court of Appeals has concluded that a non-patient hospital visitor’s personal injury claim resulting from an on-premises patient assault was an HCLC. Id. at 60–62.

IV. Conclusion

Williams claims that West Oaks failed to properly train, warn and supervise him to *193 work with potentially violent psychiatric patients and, as a result, failed to provide a safe workplace. In 2003, the Legislature broadened the definition of health care liability claims under the Texas Medical Liability Act by adding new types of claims under the HCLC definition and expanding the scope of persons included within the Act’s purview. Compare TEX. CIV. PRAC. & REM.CODE § 74.351(a). We therefore reverse the judgment of the court of appeals affirming the trial court’s order denying West Oaks’ motion to dismiss all of Williams’ claims. Because West Oaks requested its attorney’s fees and costs in the trial court pursuant to Texas Civil Practice and Remedies Code section 74.35 1(b)(1), we remand to that court with instructions to dismiss Williams’ claims against West Oaks and consider West Oaks’ request for attorney’s fees and costs.

Justice MEDINA and Justice WILLETT joined.

Justice MEDINA and Justice WILLETT, dissenting.

“A whole new world [of health care liability claims], hinted by opinions in the last few years, is here.” In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 470 (Tex.2008) (Wainwright, J. dissenting). Interpreting a law designed to reduce the number of medical malpractice suits, the Court holds that an employee’s claims against his employer for providing an unsafe workplace and inadequate training are health care liability claims. The Court’s strained reading of the statute runs counter to express statutory language, the Legislature’s stated purposes in enacting the current version of chapter 74, and common sense. Further, the Court’s decision undermines the balance struck by the Legislature to encourage employers to become subscribers under the Workers Compensation Act. For these reasons, I am compelled to respectfully express my dissent.

I. The Medical Liability Act Contemplates a Patient/Physician Relationship Between the Parties

A. The Act’s plain language indicates that it applies to claims alleging a breach of a health care provider’s duty to a patient.

Our primary objective in construing a statute “is to ascertain and give effect to the Legislature’s intent by first looking at the statute’s plain and common meaning.” City of Boerne, 111 S.W.3d at 25. All of those tools lead to the conclusion that Williams’s claims are not health care liability claims.

Under the Medical Liability Act, § 74.001 et seq., a health care liability claim is

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 *194 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.

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851, 854 (Tex.2005). The Court’s interpretation renders some of those provisions meaningless or nonsensical.

1. Williams’s claims are not “health care” claims, as the Court concludes.

The Act defines “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.” TEX. CIV. PRAC. & REM.CODE § 74.001(a)(10) (emphasis added). Plainly, the Legislature contemplated that a health care liability claim based upon a departure from standards of health care would stem from medical treatment directed toward a particular patient—“the patient” whose care, treatment, or confinement is the subject of the lawsuit.

Based largely on the Legislature’s use of the term “claimant” rather than “patient” in the health care liability claim definition, the Court determines that a claim falls under the health care prong of the definition even absent a physician-patient relationship so long as a physician-patient relationship is “involved.” 371 S.W.3d at 189. As set out in section I.B. below, the Court’s analysis of the significance of the Legislature’s use of “claimant” in the definition flows from an erroneous premise and is deeply flawed; the Court’s reliance on the change ignores the fact that the Legislature used the term throughout the Act’s predecessor, including in its statement of legislative purpose. More importantly, the Legislature did not say that a health care claim must “involve” a patient. Indeed, the word is found nowhere in the definition of health care or health care liability claim. Instead, health care claims arise from “act[s] or treatment furnished or that should have been furnished for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” TEX. CIV. PRAC. & REM.CODE § 74.001(a)(10) (emphasis added). Williams’s claims allege that West Oaks failed to provide him, not the patient, adequate training and a safe work place.

Section 74.051 of the Act highlights the Court’s error in concluding that the mere peripheral involvement of a patient transforms an ordinary negligence claim into a health care claim. That section requires health care liability claimants to provide *195 notice by certified mail to any health care provider against whom the claim is asserted sixty days before the claim is filed. 45 C.F.R. § 164.502(f) (providing that Health Insurance Privacy and Portability Act restrictions apply to deceased individuals). While the Legislature sought to reduce frivolous claims against health care providers, it sought to do so without unduly restricting claims with merit. It is inconceivable that the Legislature intended to require health care claimants with meritorious claims to be blocked by the refusal of third parties (the patients “involved”) to authorize release of their medical records.

Moreover, even if Williams were somehow able to obtain authorization from Vidaurre’s estate, the records would not serve the purpose In re Collins, 286 S.W.3d 911, 916–17 (Tex.2009)). Vidaurre’s psychiatric diagnosis and violent tendencies are undisputed, and the records would have no bearing on the merits of Williams’s claims against West Oaks for allegedly providing an unsafe workplace and inadequate training.

The Court discounts the import of these sections, finding no language to suggest that employee/employer disputes like this case are not health care liability claims. But section 74.052, which describes the statutory authorization form that must accompany the statutory notice provides:

(c) The medical authorization required by this section shall be in the following form[ ]:

(A) I, _______________ (name of patient [not claimant] or authorized representative), hereby authorize _______________ (name of physician or other health care provider to whom the notice of health care claim is directed) to obtain and disclose ... the protected health information described below....

Other provisions of the Act, which provide the relevant statutory context, see City of Boerne, 111 S.W.3d at 25, shore up the conclusion that health care liability claims arise from a health care provider’s breach of a duty toward a particular patient. I examine several below.

2. The Court’s interpretation is inconsistent with provisions governing the expert reports and the qualifications of experts.

The Court reverses the court of appeals’ judgment and remands to the trial court, instructing it to dismiss because Williams failed to comply with the expert report requirement of section 74.351. But the very definition of “expert report” belies the Court’s conclusion that Williams’s allegations state claims for health care liability. An “expert report” is defined 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, *196 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.

TEX. CIV. PRAC. & REM.CODE § 74.351(r)(6)(emphasis added). The emphasized language clearly contemplates that the defendant health care provider has delivered health care services to a patient, who has allegedly been injured by the provider’s departure from applicable standards. The Court minimizes the definition’s significance by noting that “[t]he fact that experts submitting reports have knowledge of the alleged standards deviated from does not logically lead to a conclusion that only a patient’s suit against a health care provider can constitute an HCLC....” 371 S.W.3d at 190. That suggestion, however, overlooks the provision’s reference to the health care provider’s rendition of care.

The sections of the Act governing the qualifications of experts who may author reports similarly show that a health care liability claim arises only from a patient/health care provider relationship. Section 74.041 establishes the necessary qualifications for an expert in a suit against a physician. Among other qualifications, the expert must “ha[ve] knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim.” TEX. CIV. PRAC. & REM.CODE § 74.401(a)(2)(emphasis added). The definitions thus contemplates that the lawsuit will center on a physician’s treatment of a patient’s illness, injury, or condition, not on the adequacy of a workplace or the training provided to an employee.

3. The jury instruction mandated by the Legislature contemplates that the claim arises from a health care provider’s treatment of a patient.

In section 74.303(e) of the Act, the Legislature mandated the inclusion of two express jury instructions “[i]n any action on a health care liability claim that is tried by a jury in any court in this state.” The second of those is:

A finding of negligence may not be based solely on evidence of a bad result to the claimant in question, but a bad result may be considered by you, along with other evidence, in determining the issue of negligence. You are the sole judges of the weight, if any, to be given to this kind of evidence.

Id. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). Clearly, the instruction only makes sense where a patient or the patient’s proxy is dissatisfied by health care services delivered by a health care provider. In the context of the present case, in which the health care provider acted as an employer, the instruction becomes nonsensical.

B. The Court’s Interpretation Is Contrary to Our Prior Interpretations and Attaches Undue Importance to the Alteration of the Definition of “Health Care Liability Claim.”

Noting that “our focus ... is not the status of the claimant,” 371 S.W.3d at 178, the Court rejects out of hand Williams’s contention that the lack of a patient-physician relationship between him and West Oaks places his suit outside of the Act. It is true, as the Court asserts, that in Diversicare we placed great importance upon the essence of the claims, “the alleged wrongful conduct and the duties allegedly breached.” Id. at 854. The presence of a doctor-patient relationship was undeniably important to our determination that Rubio’s allegations amounted to health care liability claims.

The Court attaches much significance to the Legislature’s alteration in 2003 of the definition of “health care liability claim.” The Act’s predecessor, the Medical Liability and Insurance Improvement Act, former article 4590i, defined the term 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 which proximately results in injury or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.

Act of May 30, 1977, 65th Leg., R.S., ch. 817, TEX. CIV. PRAC. & REM.CODE § 74.001(13). Without regard to the abundant indicia to the contrary throughout the Act, the Court concludes that this change contemplated health care liability claims that do not arise from the physician-patient relationship.

While claimant is a new term in the definition of health care liability claim, the word was used throughout the TMLIIA before the Legislature made that change. In fact, the Legislature used the term in describing the Act’s very purpose: to alleviate a perceived health care crisis “in a manner that will not unduly restrict a claimant’s rights any more than necessary to deal with the crisis.” Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02(13)(3), 1977 Tex. Gen. Laws 2039, 2040, repealed by Act of June 2, 2003, 78th Leg., R.S., ch 204, § 10.09 2003 Tex. Gen. Laws 847, 884 The term was also used and defined in section 13 of article 4590i. That section, the precursor of sections 74.351 and 74.352 of the current act, among other things, required a claimant in a health care liability claim to file an expert report within 180 days. Act of May 1, 1995, 74th Leg., R.S., ch. 971, § 1, sec. 13.01(d), (e), 1995 Tex. Gen. Laws 985, 985–986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. “Claimant” was defined as

a party who files a pleading asserting a claim. All plaintiffs claiming to have sustained damages as the result of the bodily injury or death of a single person are considered to be a single claimant.

Act of May 1, 1995, 74th Leg., R.S., ch. 971, § 1, sec. 13.01(d), (e), 1995 Tex. Gen Laws 985, 985–986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch 204, § 10.09 2003 Tex. Gen. Laws 847, 884. Accordingly, even though “health care liability claim” referred to injury to or the death of a patient, the statute contemplated that others could pursue claims under article 4590i. And what parties could claim to have damages as the result of the injury or death of a patient but spouses or relatives with their own claims for loss of support or *198 consortium or mental anguish, or others acting in a representative capacity, such as an estate or next friend? In light of that history, it seems fairly obvious that the Legislature broadened the definition of “health care liability claim” in 2003 to harmonize the definition with its previous recognition that parties other than patients might suffer injuries as the result of a health care provider’s departure from accepted standards in rendering health care services to a patient.1

II. Safety Under the Act

Although its holding that Williams has asserted a claim for breach of a health care standard is dispositive, the Court reaches out to decide an issue that isn’t even presented: whether a claim for safety under the Act must be directly related to health care. That issue isn’t presented because, at least in the Court’s view, Williams’s claim is directly related to health care. West Oaks itself argued that Willams’s claims “are inextricably interwoven with the rendition of health care services.” Even if the question were properly before us, though, I would reach a different conclusion than the Court. I would hold that a claim for safety under the Health Care Liability Act must arise from a breach of a health care provider’s duty to adequately ensure a patient’s safety in providing health care services.

The Court’s conclusion that a health care liability claim for breach of a safety standard depends entirely on the last antecedent doctrine, 371 S.W.3d at 182, or the notion that “ ‘[m]odifiers should come, if possible, next to the words they modify.’ ” 371 S.W.3d at 184 (quoting William Strunk, Jr. & E.B. White, THE ELEMENTS OF STYLE R. 20 (4th ed. 2000)). In the Court’s view, then, the Legislature would have had to frame the definition 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 ... safety directly related to health care 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. Neither Strunk and White’s instructions nor the last antecedent doctrine are so absolute as to require such redundancy. See Cty. of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex.1978)).

The Court’s reading of the term “safety”—“untouched by danger, not exposed to danger; secure from danger, harm or loss”—is so broad that almost any claim against a health care provider can now be deemed a health care liability claim. If a hospital cook leaves an unlit gas burner on and causes an explosion, claims for any resulting injuries might be health care liability *199 claims. If a nurse’s deranged spouse arrives at a clinic and shoots her, her claim that the facility provided inadequate security will also fall under the statute. Surely the Legislature did not intend to make professional liability insurers responsible for such claims in order to solve an insurance availability crisis.

III. The Court’s Holding Undermines the Balance Struck by the Legislature in the Workers Compensation Act

I dissent also because, by forcing an employee’s negligence suit against his employer for on-the-job injuries into the health-care-liability-claim mold, the Court significantly disrupts the delicate balance between employee and employer interests the Legislature sought to implement when it enacted the Texas Workers Compensation Act (TWCA). The TWCA permits an employee to bring a negligence action against a nonsubscriber like West Oaks. See Id. § 74.351(b). Rather than the health care provider being penalized for not subscribing to workers’ compensation insurance, the Court’s decision increases the burden and cost of pursuing negligence claims against nonsubscribers for employees of health care institutions. This will likely discourage healthcare workers from bringing smaller claims.

More importantly, the Act places strict limits on damages that may be recovered from health care providers. Kroger v. Keng, 23 S.W.3d at 350–351. Today’s decision redraws that delineation.

IV. The Court’s Holding Undermines the Legislature’s Stated Purposes

In enacting chapter 74, the Legislature found that “the number of health care liability claims [had] increased since 1995 inordinately[,] caus[ing] a serious public problem in availability and affordability of adequate medical professional liability insurance.” Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(a)(1), (4), 2003 Tex. Gen. Laws 847, 884. It adopted the Act to reduce the frequency and decrease the *200 costs of those claims. Id. at § 10.11(b)(1), (2). By sweeping a whole new class of claims—negligence claims of employees of health care institutions—into chapter 74, the Court increases the number of health care liability claims and thwarts that purpose. Mystifyingly, the Court proclaims that its decision is “in harmony” with the Act’s purposes because this new class of health care claimants will be required to file expert reports. 371 S.W.3d at 182–83, n. 5. To be sure, Williams’s claim will be dismissed in the wake of today’s decision—one claim will go away. But, in the future, employees in Williams’s position will be forewarned that they must provide an expert report and undoubtedly will do so. The upshot of the Court’s decision is that medical professional liability insurers will be responsible for claims that normally would have fallen under a health care employer’s workers compensation or comprehensive liability coverage.

The Court has previously declined to construe provisions of the Act in a way that would lead to absurd results. Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 72–73 (Tex.2011). It should do so here.

V. Conclusion

The Court’s conclusion that Williams’s claim against his employer for providing inadequate training and an unsafe workplace is a health care liability claim is not only counterintuitive, it is inconsistent with the Act’s express language and its underlying purposes. Furthermore, it alters the contours of employees’ claims against nonsubscribing health care providers established in the Workers Compensation Act. For these reasons, I respectfully dissent.

Footnotes

1

The HCLC definition was amended after Williams’ cause of action accrued, and the prior law is applicable to his claims. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, amended by Act of July 19, 2011, 82nd Leg., 1st C.S., ch. 7, § 4.02, 2011 Tex. Gen. Laws 5445 (amending section 74.001(a), adding subsection (a)(12)(A)(viii) (including a health care collaborative as a “health care provider”) and making nonsubstantive changes).

2

The Legislature also broadened the subject-matter scope of the activities constituting HCLCs through the addition to the definition of “professional or administrative services directly related to health care.” Id. § 74.001(a)(24).

3

This conclusion is in harmony with the Legislature’s stated intent to “reduce [the] excessive frequency ... of health care liability claims through reasonable improvements and modifications in the Texas insurance, tort, and medical malpractice systems....” Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), 2003 Tex. Gen. Laws 847, 884.

4

“ ‘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 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 § 74.001(a)(13).

5

As we discussed in Diversicare, a number of other states also recognize that providing supervision and a safe environment at a health care facility are matters of professional health care judgment. Bell v. Sharp Cabrillo Hosp., 212 Cal.App.3d 1034, 260 Cal.Rptr. 886, 896 (1989) (“[T]he competent selection and review of medical staff is precisely the type of professional service a hospital is licensed and expected to provide, for it is in the business of providing medical care to patients and protecting them from an unreasonable risk of harm while receiving medical treatment.... [T]he competent performance of this responsibility is ‘inextricably interwoven’ with delivering competent quality medical care to hospital patients.”).

6

Texas appellate courts construing the TMLA have diverged on whether “directly related” applies to safety claims or only to other claims in the definition’s list of departures from accepted standards. Compare Emeritus Corp. v. Highsmith, 211 S.W.3d 321, 328 (Tex.App.—San Antonio 2006, pet. denied) (“[A] claim may be a ‘health care liability claim’ under the safety definition even if it does not ‘directly relate[ ] to healthcare.’ ”).

7

We explained in Diversicare that the claimant’s allegations of deficient monitoring and training are distinct from hypothetical claims for injuries arising out of an intruder assaulting a claimant due to an unlocked window or a claimant falling from a rickety staircase. 319 S.W.3d 658 (Tex.2010).

8

Justices Hecht and Wainwright joined Justice Johnson’s concurrence in Marks, except for the discussion of “safety.” 319 S.W.3d at 667.

9

5525, repealed by Act of June 16, 1985, 69th Leg., R.S., ch. 959, § 9(1), 1985 Tex. Gen. Laws 3242, 3322.

10

There is a slight variance between the definitions for “health care” and “medical care.” The “health care” definition features the word “medical” between the words “patient’s” and “care.” The “medical care” definition does not feature this word. (a)(19).

11

The scope of claims for “professional or administrative services directly related to health care” in the HCLC definition is not at issue in this case.

1

The Court also makes much of the Act’s definition of “representative,” a term used in the Act’s medical records disclosure provision. TEX. CIV. PRAC. & REM.CODE §§ 74.001(a)(25), .052. “Representative” is defined as the “agent of the patient or claimant.” The Court concludes this “indicat[es] that patient and claimant do not necessarily refer to the same category of persons.” I agree, but my conclusion that “claimant” refers to parties with claims derived from a health care provider’s breach of a duty toward a particular patient, such as guardians, executors, survivors, and next friends, is far more consistent with other provisions of the Act than the Court’s.

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