Call us today at 281-580-8800 or email us at ask@painterfirm.com

Tort reform limitations do not apply Contact Now

Dallas court of appeals: Visitor slip and fall in hallway is not health care liability claim

Tort reform limitations do not apply

I recently wrote an article about a Houston court of appeals opinion dealing with a slip and fall injury at the hospital in the Texas Medical Center. It addresses the safety duty owed by hospital to visitors.

In a December 2020 opinion, the Dallas Court of Appeals considered another thorny issue for health care facility visitors injured in a slip and fall, namely whether the tort reform requirements and limitations of the Texas Medical Liability Act apply. As is often the case, the devil is in the details. The case is styled Nexion Health Management, Inc. and Nexion Health at Lumberton, Inc. v. Waddell, No. 05-20-00406-CV, In the Dallas Court of Appeals. You can read the opinion here.

In the Waddell case, a woman was visiting her mother who was a resident in the long-term care facility, Village Creek Rehabilitation and Nursing Center. The petition alleges that the woman slipped on a puddle of water in the hallway between her mother’s room in the nurse’s station.

This injured facility visitor filed a lawsuit against the nursing home, alleging premises liability and negligence cause of action. There was no allegation of medical malpractice, but the nursing home contended that the Texas Medical Liability Act apply.

This is significant because when this tort reform statute applies, a plaintiff must serve at least one medical expert report on the health care defendant within 120 days of that defendant filing an answer in the lawsuit. Without an expert report being served, the case must be dismissed upon motion of the defendant.

The plaintiff didn’t serve a medical expert report, the defendant moved for dismissal, and the trial court denied the motion by finding that the facts and circumstances did not constitute a health care liability claim covered by the Texas Medical Liability Act. This appeal followed.

Like the trial court, the Dallas Court of Appeals looked to the Texas Supreme Court’s seminal opinion on this topic, Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496, 504 (Tex. 2015). The Ross opinion created seven non-exclusive factors for courts to consider to determine whether safety-related claims are sufficiently related to a defendant’s provision of health care to fall within the definition of a health care liability claim.

The Dallas Court of Appeals noted that the Texas Supreme Court had found on three separate occasions that a claim based on a slip and fall by a hospital visitor wasn’t a health care liability claim. The court agreed with the trial court in this case, making these observations when applying the Ross factors:

• Did the alleged negligence of the defendant occur in the course of the defendants performing tasks with the purpose of protecting patients from harm? Maintaining the hallways is not exclusively for the benefit of patients, but also for guests. Therefore, the nursing homes duties to maintain its floors were no different from any other business owner.

• 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? There was no evidence that the nursing home’s patients received medical care in the hallways.

• At the time of the injury was the claimant in the process of seeking or receiving health care? No.

• At the time of the injury was the claimant providing or assisting in providing health care? No.

• Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider? The court applied the same analysis as above that hallways aren’t for patient care.

• If an instrumentality was involved in the defendant's alleged negligence, was it a type used in providing health care? The nursing home tried to argue that a mobile hydration cart may have caused the puddle of water on which the visitor slipped. The court wasn’t convinced, though, that the hydration cart was a health care instrumentality.

• Did the alleged negligence occur in the course of the defendant's taking action or failing to take action necessary to comply with safety related requirements set for health care providers by governmental or accrediting agencies? No evidence was presented.

In my view of hospital or facility visitor slip and fall cases, if the injury didn’t occur in an area that’s used for or limited to patient care, it’s unlikely that it’s a health care liability claim for purposes of the Texas Medical Liability Act.

If you’ve been seriously injured in a hospital or other health care facility in Texas, then contact a top-rated experienced Houston, Texas medical malpractice lawyer for help in evaluating your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


// Read full biography
// Read more expertise by Robert Painter

Discover More