The Texas Supreme Court on Friday ordered dismissal of a wrongful death case filed against a North Texas assisted living facility by the daughter of a resident who fell on a cracked sidewalk. The court, in a 6-3 ruling, found that the case should have been filed as a healthcare liability claim, which required the plaintiff to submit an early expert report.
The decision means that a jury will not consider the circumstances of Carmelina “Millie” Smith’s devastating fall in 2014 outside of DaySpring, a state-licensed facility owned by Collin Creek Assisted Living Center. On that day, Carolyn Faber had gone to pick up her 88-year-old mother for a hair appointment. Smith was seated in a walker and being pushed by an attendant when the walker became caught in a crack in the sidewalk and tipped over. Smith hit her head on the concrete and died eight days later.
The court wrestled with an often-litigated issue of whether a cause of action arising in the health care context falls under the statutory definition for a health care liability claim. Two of the justices joining the majority opinion lamented in a concurring opinion that the decisionis unlikely to stem the “staggering number” of appeals over the issue, largely because of the statute’s vague definitions.
The three dissenting justices said that the facility clearly was not providing health care to Smith in helping her get to her daughter’s vehicle.
The Texas Assisted Living Association was following the case and filed an amicus brief written by Elizabeth “Heidi” G. Bloch of Greenberg Traurig. The brief warned the court that an adverse ruling would create an unwelcoming environment for Texas operators already facing increased insurance premiums and possible closures due to the pandemic.
Faber’s lawsuit initially asserted that DaySpring failed to care for Smith and was negligent in hiring and supervising its employees. DaySpring answered that it was a health care provider and moved to dismiss the case over the missing expert report. Faber amended her petition to remove allegations related to the employee and DaySpring’s duty to provide safe transport, leaving only premises liability and bystander claims based on the sidewalk condition.
The trial court granted DaySpring’s motion to dismiss, and a panel of the Fifth Court of Appeals affirmed. The en banc court subsequently granted Faber’s motion for reconsideration and issued a divided ruling that concluded Faber’s claim was a “simple, run-of-the-mill premises liability case, where the instrumentality causing injury was broken concrete.”
Supreme Court Justice Brett Busby said the en banc majority took an overly narrow view of the relevant facts rather than considering the whole record.
“When the walker and the employee’s conduct as well as the sidewalk crack are taken into account, we conclude that Faber’s cause of action is a health care liability claim,” Busby said.
The majority determined that the claims meet the applicable factors under the court’s 2015 decision in Ross v. St. Luke’s Episcopal Hospital. Busby said that “courts may use Ross to evaluate alleged departures from both safety and health care standards, as well as alleged departures from standards for health care providers that implicate safety.”
The majority focused on the fact that Smith’s physician recommended she be moved to the assisted living center due to her frequent falls. Busby said whether it was negligent for the facility to push Smith in a walker “is a question well suited to expert testimony.” In addition, he said, assisted living facilities have heightened duties of sidewalk maintenance compared to ordinary businesses.
“Because DaySpring is an assisted living facility licensed to provide health care, statutes and regulations require it to provide quality care for the physical health and safety of its residents, including safe surroundings as well as staff trained in geriatric-care tasks such as safely assisting ambulation and preventing accidents and falls,” Busby said. “The Ross factors demonstrate that there is a substantive nexus between this provision of care to a patient on the recommendation of a physician and the alleged violations of safety standards that led to Smith’s death.”
Faber’s suit was remanded to the trial court for an award of attorney’s fees.
Joining the majority opinion were Chief Justice Nathan Hecht and Justices Jimmy Blacklock, Jane Bland, Rebeca Aizpuru Huddle and Evan Young.
Young, in a concurring opinion joined by Blacklock, said Ross attempted but failed to impose order on chaos. Its multifactor balancing test has “created a new battleground for waging costly collateral litigation of immense scope,” Young said.
“Learning too late that a claim was an [health care liability claim] all along can mean that the claim is lost wholly aside from whether it had any merit, which is what we must hold today,” Young said.
He called for the legislature to provide greater clarity by amending the definition, and failing that, “I hope that a future case will give us the opportunity to reconsider our framework for determining when a claim qualifies as an HCLC.”
The dissent was written by Justice Jeff Boyd and joined by Justices Debra Lehrmann and John Devine. Boyd said nothing in the record indicates that DaySpring’s safety standards had any relationship to “health care” as defined in the Texas Medical Liability Act.
“More specifically, nothing indicates that DaySpring provided any health care to Smith at all,” according to the dissent, adding that DaySpring provided only personal-care services to Smith and did not provide those as part of any physician’s medical care.
Busby pushed back, saying that “the dissent’s approach would supersede the Ross factors by imposing a strict rule that the safety prong never applies unless the defendant health care provider’s negligent act or omission occurred during and as part of the provision of medical care by a physician.”
“Unlike the dissent,” Busby said, “we understand the Ross factors to be tools for analyzing whether a safety standard bears the necessary relationship to health care, not considerations that apply only if that relationship is present.”
DaySpring was represented by Wallace B. Jefferson of Alexander Dubose & Jefferson. Faber was represented by James “Jim” Walker of Rockwall.
The case is number 21-0470.