DALLAS HOMES FOR JEWISH AGED, INC. D/B/A GOLDEN ACRES AND LEGACY SENIOR COMMUNITIES, Appellant v. HARLAN LEEDS, INDIVIDUALLY AND AS WRONGFUL DEATH BENEFICIARY AND AS REPRESENTATIVE OF THE ESTATE OF LYLE S. LEEDS, Appellee

AFFIRM and Opinion Filed April 14, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00756-CV
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DALLAS HOMES FOR JEWISH AGED, INC. D/B/A GOLDEN ACRES AND LEGACY SENIOR COMMUNITIES, Appellant
 
V.
 
HARLAN LEEDS, INDIVIDUALLY AND AS WRONGFUL DEATH BENEFICIARY AND AS REPRESENTATIVE OF THE ESTATE OF LYLE S. LEEDS, Appellee
 
.............................................................
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 08-4890
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MEMORANDUM OPINION
Before Justices O'Neill, Lang, and Myers
Opinion By Justice O'Neill
        This is an interlocutory appeal from an order denying appellant Dallas Homes for Jewish Aged, Inc. d/b/a/ Golden Acres and Legacy Senior Communities' motion to dismiss for failing to file an expert report as required by Texas Civil Practice and Remedies Code section 74.351. We affirm the trial court's order.
 
Background
        Lyle S. Leeds was a resident of appellee's facility. He tripped over wires in his room during the middle of the night when he got up to go to the bathroom. His fall resulted in a fractured hip. Over the next three months, he made efforts to recover, but pre-existing Alzheimer's disease hampered his recovery. He later died from complications relating to his hip fracture.
        During the weeks preceding the fall, appellee Harlan Leeds brought the wire situation to the attention of the nurse's station and maintenance at the home. Thus, appellee claims the home was well-advised of the dangerous situation before the fall.
        In his original petition, appellee alleged the home owed a duty to maintain a safe environment for Leeds to live in, and the home had an ongoing obligation to repair the premises once it was informed of the dangerous situation. He further asserted a premises liability claim.
        After filing its answer, the home filed a motion to dismiss after appellee failed to file expert reports required under Texas Civil Practice and Remedies Code section 74.351. The home argued appellee directly interjected medical care into the case by including Leeds' advanced age and diminished mental capacity due to Alzheimer's in the original petition.
        The trial court conducted a hearing where appellee continued to argue the case was nothing more than a trip and fall case and did not fall under the requirements of section 74.351. The trial court admitted it was a “pretty close case,” and denied the home's motion to dismiss. This appeal followed.
Standard of Review and Applicable Law
        We review a trial court's order granting or denying a motion to dismiss for failing to timely file a section 74.351(a) expert report under an abuse of discretion standard. See Holguin v. Laredo Reg'l Med. Ctr., L.P., 256 S.W.3d 349, 352 (Tex. App.-San Antonio 2008, no pet.) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001)). However, when the issue presented requires statutory interpretation or a determination of whether chapter 74 applies to a claim, we apply a de novo standard of review. Id.
        Section 74.351(a) requires that, not later than the 120th day after filing suit, a claimant serve on each party or the party's attorney one or more expert reports for each physician or health care provider against whom a claim is asserted. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2009). If the claimant does not serve the report, the trial court is required upon motion by the affected physician or healthcare provider to dismiss the claim with prejudice and award reasonable attorney's fees and cost. Id. at § 74.351(b). The expert report requirement applies to all claims that fall within the statutory definition of a “health care liability claim.” Holguin, 256 S.W.3d at 352. The statute defines “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).
        Whether a claim falls within the definition of a health care liability claim requires an examination of the essence or underlying nature of the claim. Holguin, 256 S.W.3d at 352. A cause of action against a health care provider is a health care liability claim if it is based on a claimed departure from an accepted standard of medical care, health care, or safety of the patient. Id. “A cause of action alleges a departure from accepted standards of medical care or health care if the act or omission complained of is an inseparable part of the rendition of medical services.” Id. (quoting Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005)). When the essence of a suit is a health care liability claim, a claimant cannot avoid the expert report requirements through artful pleading. Id. at 353. Therefore, we must determine whether Leeds's claims against the home arose from either the rendition of health care services or a breach of safety standards directly related to health care. See Dual D Healthcare Operations, Inc., v. Kenyon, 291 S.W.3d 486, 489 (Tex. App.-Dallas 2009, no pet.).
Analysis
        The conduct Leeds complains of occurred during his stay at the home. He tripped and fell over wires while walking to the restroom in the middle of the night. However, the record does not indicate the fall arose from any aspect of his medical care.
        Leeds's injury would only constitute a health care liability claim if it was related to the rendition of health care services by the home. Relying on Diversicare, the home contends Leeds's medical condition, specifically his advanced age and Alzheimer's, is inseparable from patient care and patient safety, and Leeds will attempt to interject these factors into a future trial.
        Leeds's claim, however, arises from injuries sustained after tripping over wires on the floor. He makes no allegation of the failure of any safety standard related to medical care, and we fail to find one. Leeds's allegations are similar to the patient's claim in Kenyon, where the patient fell on a slippery substance in the nursing home's hallway. Kenyon, 291 S.W.3d at 489; see also Harris Methodist Fort Worth v. Ollie, 270 S.W.3d 720, 726 (Tex. App.-Fort Worth 2008, pet. filed) (patient's claim against hospital for falling on a slippery floor when getting out of the bathtub was not a health care liability claim). In that case, this court held Kenyon failed to make any allegation of the failure of any safety standard related to medical care. We reach the same conclusion under these facts.
        Although courts have held that personal injury claims resulting from breaches of accepted standards of safety may be health care claims, such departures must be “inseparable parts of the rendition of medical services and the standards of safety within the health care industry to be covered by the Act.” Kenyon, 291 S.W.3d at 489. We cannot say that warning about the presence of wires on the floor is inseparable from the medical or health care services rendered to Leeds. Further, expert medical testimony is not necessary to understand his claims that the home failed to use ordinary care as alleged in his petition. See, e.g., Ollie, 270 S.W.3d at 726.
        The home cites Texas Health and Safety Code Annotated section 247.002 and section 247.011 to support its contention that Leeds's claim will necessarily require expert testimony to identify the exact scope of the duty. However, the home has failed to cite to and we have failed to find any case law in which the failure to follow these sections of the health and safety code transformed a party's claim into a health care liability claim for purposes of chapter 74. Likewise, nothing within chapter 74 of the civil practice and remedies code indicates that a violation of the health and safety code will be viewed as a violation under chapter 74. Thus, we find the home's argument unpersuasive.
        Based on our review of the record and applicable law, we overrule the home's sole issue.
Conclusion
        We conclude Leeds's claim is not a health care liability claim and therefore, he is not required to file an expert report. We affirm the trial court's order denying the home's motion to dismiss.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
090756F.P05