Amanda Marie Coci and Heart of Texas EMS, Inc., d/b/a Heart of Texas EMS v. April Dower Appeal from 35th District Court of Brown County (dissenting opinion)
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Opinion filed September 12, 2019 In The Eleventh Court of Appeals __________ No. 11-18-00353-CV __________ AMANDA MARIE COCI AND HEART OF TEXAS EMS, INC., D/B/A HEART OF TEXAS EMS, Appellants V. APRIL DOWER, Appellee On Appeal from the 35th District Court Brown County, Texas Trial Court Cause No. CV1801020 DISSENTING OPINION Because I believe this personal injury lawsuit involves a health care liability claim, I respectfully dissent from the majority’s opinion. The majority affirms the trial court’s denial of a motion to dismiss based on the plaintiff’s failure to file an expert report under the Texas Medical Liability Act (TMLA). I would reverse. The plaintiff alleged that she was injured while a passenger in an ambulance that was involved in a single-vehicle accident. The plaintiff was accompanying her minor daughter, who was being transported by ambulance from one medical facility to another. Under the TMLA, a health care liability claim includes a cause of action against a health care provider for a “departure from accepted standards of . . . safety or professional or administrative services directly related to health care.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West 2017). When the accepted standards of “safety” are at issue, the alleged departure need not actually be “directly related” to health care; there need only be “a substantive nexus” between the safety standards allegedly violated and the provision of health care. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 504 (Tex. 2015). I would hold that there is a substantive nexus to the provision of health care when a patient or a passenger escorting that patient is injured while being transported in an ambulance to a medical facility. See Bain v. Capital Senior Living Corp., No. 05-14-00255-CV, 2015 WL 3958714, at *1–4 (Tex. App.—Dallas June 30, 2015, pet. denied) (mem. op.); see also Sherman v. HealthSouth Specialty Hosp., Inc., 397 S.W.3d 869, 872–74 (Tex. App.—Dallas 2013, pet. denied). I respectfully disagree with the majority’s analysis in this regard and with the case upon which the majority relies: City of Houston v. Hussein, No. 01-18-00683-CV, 2019 WL 1246417, at *8 (Tex. App.—Houston [1st Dist.] Mar. 19, 2019, no pet. h.). KEITH STRETCHER September 12, 2019 JUSTICE Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.1 Willson, J., not participating. 1 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment. 2
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