Opinion
NO. 01-18-00683-CV
03-19-2019
CITY OF HOUSTON, Appellant v. NAJLA HUSSEIN AND ASHA OBEID, Appellees
On Appeal from the 125th District Court Harris County, Texas
Trial Court Case No. 2017-81588
MEMORANDUM OPINION
In this accelerated, interlocutory appeal, appellant, the City of Houston, appeals the trial court's order that denied its motion for summary judgment and motion to dismiss the negligence claims of appellees, Najla Hussein and Asha Obeid. In two issues on appeal, the City argues that the trial court erred because (1) the City retained governmental immunity and (2) appellees failed to serve an expert report.
We affirm.
Background
On May 26, 2016, Hussein, Obeid's daughter, called 911 after Obeid complained of chest pains and thought she was having a heart attack. The City dispatched Houston Fire-EMS Ambulance M003, driven by Antonio Camacho. An EKG showed that Obeid was experiencing atrial fibrillation, a life-threatening emergency, which necessitated that Camacho transport her to a hospital that could address cardiac patients.
Camacho initially transported Obeid to Memorial City Hospital via the Sam Houston Tollway. While in route, Obeid stated that she preferred Memorial Hermann Southwest Hospital because she had previously been a cardiac patient at that hospital. To reach the new hospital, Camacho attempted to exit the tollway and chose a lane with the fewest cars. Camacho later realized that the lane he chose had been designated as a "cars only" lane due to the lane's width. After determining that backing up would be riskier, Camacho proceeded with the "hopes" that the ambulance would fit through the narrow lane. Although the mirrors fit, the bottom of the ambulance struck the tollbooth lane, causing injuries to Hussein and Obeid.
Hussein and Obeid brought suit against the City for negligence and respondeat superior. The City answered with a general denial along with special exceptions, arguing that appellants did not allege a waiver of governmental immunity under the Texas Torts Claim Act ("TTCA"). Later, the City moved for summary judgment, arguing that because the emergency exception of the TTCA preserves the City's immunity, the City was entitled to summary judgment on all of appellees' claims. The City argued in the alternative that the trial court should dismiss the case because appellees' claims were health care liability claims, and they failed to serve a statutorily-required expert report.
See TEX. CIV. PRAC. & REM. CODE §§ 101.001-.109.
See TEX. CIV. PRAC. & REM. CODE § 74.351. Section 74.351, entitled "Expert Report" provides, "In a health care liability claim, a claimant shall, not later than the 120th day after the date each defendant's original answer is filed, serve on that party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted." Id.
Governmental Immunity
In its first issue on appeal, the City argues that the trial court erred in denying its motion for summary judgment. Specifically, the City argues that its immunity is preserved pursuant to the emergency response exception within the TTCA as a matter of law.
Standard of Review and Applicable Law
The summary judgment movant bears the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). In reviewing a traditional motion for summary judgment, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). We review the motion and the evidence de novo, taking as true all evidence favorable to the nonmovant, and indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Id. at 756; Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
Once a defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). A genuine issue of material fact exists if the record evidence "would enable reasonable and fair-minded people to differ in their conclusions." First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
The City of Houston is a governmental entity and cannot be liable for an employee's actions unless its governmental immunity has been waived. See Harris Cty. v. Sykes, 136 S.W.3d 635, 640-41 (Tex. 2004). The TTCA provides a limited waiver of a governmental entity's immunity for certain claims relevant here:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
TEX. CIV. PRAC. & REM. CODE § 101.021(1). Exempted from this waiver of immunity are claims included in the TTCA's "emergency response exception" that arise:A. the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
B. the employee would be personally liable to the claimant according to Texas law. . . .
[F]rom the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others[.]Id. § 101.055(2); see also City of San Antonio v. Hartman, 201 S.W.3d 667, 671-72 (Tex. 2006).
The underlying policy of the emergency response exception is to balance the safety of the public with the need for prompt response from emergency personnel. City of Amarillo v. Martin, 971 S.W.2d 426, 429 (Tex. 1998). Imposing liability for a mere failure in judgment could deter emergency personnel from acting decisively and from taking calculated risks. Id. at 430 (quoting Saarinen v. Kerr, 84 N.Y.2d 494, 620 N.Y.S.2d 297, 644 N.E.2d 988, 992 (1994)). This would also allow for judicial second guessing of the split-second and time-pressured decisions emergency personnel are forced to make. See id. (quoting Saarinen, 620 N.Y.S.2d 297, 644 N.E.2d at 992).
The law governing the operation of emergency vehicles is found in section 546.005 of the Texas Transportation Code, which provides that a driver of an emergency vehicle is not relieved of "the consequences of reckless disregard for the safety of others." TEX. TRANSP. CODE § 546.005(2); see also City of Brazoria v. Ellis, No. 14-14-00332-CV, 2015 WL 3424732, at *7 (Tex. App.—Houston [14th Dist.] May 28, 2015, no pet.) (mem. op.) (analyzing emergency response exception, court applied section 546.005 as "the law . . . applicable to emergency action"). "To recover damages resulting from the emergency operation of an emergency vehicle, a plaintiff must show that the operator has committed an act that the operator knew or should have known posed a high degree of risk of serious injury." Martin, 971 S.W.2d at 430.
The City's Summary Judgment Motion
In its summary judgment motion, the City argued that Camacho was responding to an emergency call and that he was continuing to respond to an emergency or reacting to an emergency situation while transporting appellees to the hospital. The City further argued that Camacho's actions were an emergency response because Obeid was experiencing atrial fibrillation, which can cause blood clots that travel to the brain, causing a stroke; to the lungs causing pulmonary embolism; or to the heart, causing a heart attack. The City contended that the paramedics could not ascertain whether Obeid had one of these serious conditions and that even if Obeid had been stable, the paramedics knew her condition could have deteriorated rapidly. Thus, "Ms. Obeid needed to be transported to the hospital with some urgency."
In support of the summary judgment motion, the City attached Camacho's affidavit in which he averred:
• On May 26, 2016, I was the Engineer/Operator of Houston Fire-EMS ambulance M003. At 12:37 p.m., M003 was dispatched to 9888 United Dr., Houston, Texas 77036. Asha Obeid, was suffering from chest pains. M003's response mode was lights and sirens because complaints of chest pains are always treated as worst-case scenario: a heart attack ("MI").
• At 12:52 p.m., M003 arrived at the scene. Ms. Obeid complained of chest pain rated 8 out of 10. At 12:58 p.m. an EKG revealed that Ms. Obeid was experiencing atrial fibrillation. Atrial fibrillation is where the upper chamber of the heart (the atrium) is quivering. Atrial fibrillation could produce clots, which could
travel to the brain and cause a stroke, travel to the lungs and cause a pulmonary embolism ("PE") or travel to the heart, causing an MI. These conditions are immediately life-threatening, so when a patient has atrial fibrillation with heart rate greater than 150 beats per minute, we treat their situation as a life-threatening emergency. When a patient's heart rate is less than 150 beats per minute, we treat their condition as urgent but not as critical. Even if a patient has a normal heart rate, a paramedic team cannot ascertain whether a patient has a PE, MI or other more serious condition, because paramedics do not have training, education, or adequate means of testing for these conditions in the field, so transport is required. Additionally, even if a patient suffering atrial fibrillation is stable, they could deteriorate rapidly, so we must transport them to a hospital with some urgency. Finally, the signs and symptoms of an MI are more subtle or otherwise different for women than for men; women can have a normal EKG even when they are having a heart attack, so transport to a hospital for further testing is required.
• At 1:11 p.m., M003 departed the scene and headed toward Memorial City Emergency Room. While transporting Ms. Obeid to the hospital, M003 was not using its lights or sirens for several reasons. First, her heart rate was within normal range, in part because she had a pacemaker that was doing its job. Lights and sirens were not required given her condition; we needed to transport her to the hospital with some urgency, but we did not need to go extra fast, in a manner that poses a greater risk to the public at large. Second, it was broad daylight, so the lights were less critical than if we had been transporting her at night. Third, we were travelling on the tollway when traffic was not heavy (it was not rush-hour). As such, we were able to travel at freeway speeds, even without the necessity of lights and sirens. And on the tollway, other cars are less likely to hear the sirens as well. I considered each of these factors in deciding whether to use lights and sirens in an attempt [to] balance the urgency to Ms. Obeid's health in reaching the hospital quickly and safely against the risk to the public at large while transporting her.
• 9888 United Dr., Houston, Texas 77036 is equidistant from two hospitals that can provide cardiac care: Memorial Hermann Memorial City and Memorial Hermann Southwest. Initially, we
were transporting Ms. Obeid to Memorial Hermann Memorial City. However, because Ms. Obeid had been previously treated at Memorial Hermann Southwest, she requested that we change course. At that moment I had to make a very quick decision to exit the tollway and change direction. Since toll exits are limited, missing this exit would have added 15 minutes to the trip. I chose the lane I was in because it had the fewest cars in line at the toll booth, so that we could get through faster. After I got closer to that booth, I saw a sign that said the lane was for narrow cars only. I brought the ambulance to a complete stop to consider the options. By that point, I could not change lanes because 50-60 feet in front of each toll booth are barrels connected by cable to prevent cars from changing lanes. The only other option I had at that point would have been to back up far enough to change lanes. Doing so would have posed a significant risk to other drivers exiting the tollway, because in an ambulance, my ability to see behind the ambulance is limited. I considered backing up to be a riskier option. So instead, I proceed forward slowly (approximately 5 miles per hour) to minimize the impact if the ambulance were to collide with the toll booth.
• I used the side mirrors as a guide to ascertain whether the vehicle would fit. The side mirrors cleared the booth so I thought that Ambulance M003 would be able to fit. Unbeknownst to me, the roadway was narrower at the bottom than at the level of my mirrors so the bottom of the ambulance hit the toll booth.
• The total time between Ms. Obeid instructing us to take her to Memorial Hermann Southwest, and the ambulance hitting the toll booth was only about 2 minutes. I was truly having to make split-second decisions to ensure Ms. Obeid got to the hospital with some urgency, while minimizing the risk to the other passengers in the ambulance and other drivers on the road.
The City also attached Obeid's discovery responses in which she admitted that (1) she experienced chest pains, (2) 911 had been called, (3) she believed her life was in danger, (4) she needed urgent medical assistance, and (5) she believed the situation was an emergency. However, all of Obeid's admissions were qualified with "at the time the 911 call was made." When asked if she was being transported to the hospital in the ambulance because she needed urgent medical assistance, Obeid responded, "Denied. Plaintiff's condition was stable during the ambulance ride."
Appellees' Response to the City's Summary Judgment Motion
Appellees responded to the City's summary judgment motion, arguing Camacho was not responding to an emergency at the time of the accident and that Camacho acted with reckless disregard to appellees' safety. Appellees further argued that the City's cases do not support its assertion that "responding to an emergency somehow continues indefinitely, even after arrival to the scene and evaluation of the actual situation." Appellees attached to their response a declaration of Obeid who stated,
The ambulance did not have its lights or sirens on during the drive to Memorial Hermann. During the ride, I was breathing normally and fully alert to my surroundings. All medical treatment provided to me in the ambulance was by the paramedic, Rafiq Cooper, and possibly the interns. Antonio Camacho was the driver of the ambulance but did not provide medical treatment to me.
Based upon the sounds that I heard, the feel of the vehicle moving, and the impact I felt, the ambulance was moving at approximately 20 miles per hour upon impact with the barrier. From the impact, I received bruising and abrasions to my left hand.
Obeid's daughter also provided a statement:
The ambulance did not have its lights or sirens on during the drive to Memorial Hermann. While in the ambulance, my mother was responsive, breathing normally, and did not appear to be in any distress. Antonio Camacho was the driver of the ambulance but did not provide medical treatment to my mother.
At no time was I under the medical care of the ambulance personnel, or anyone else. I received no medical treatment whatsoever while at the apartment or in the ambulance. At no time was I providing, or assisting in providing, any health care to any person.
Based upon the sounds that I heard, the feel of the vehicle moving, and the impact I felt, the ambulance was moving at approximately 20 miles per hour when it struck the barrier wall. At the moment of impact, I was knocked to the floor of the ambulance and sustained injuries.
Also attached to appellees' response is a peace officer's crash report that includes an un-checked box stating "Pol., Fire, EMS on Emergency (Explain in Narrative if Checked)" and a Houston Police Department Supplemental Information page indicating that Obeid was hooked to an IV for heart treatment, and the statement that, "Mom had seatbelt on, but I didn't since no one told me to."
After the trial court denied the City of Houston's motion for summary judgment and motion to dismiss, the City brought this accelerated, interlocutory appeal.
Emergency Response Exception
In its first issue, the City argues that the trial court erred in denying its summary judgment motion because the City retained its immunity under the emergency response exception.
A. Responding to an Emergency Call or Reacting to an Emergency Situation
The TTCA does not define the terms "emergency call" or "emergency situation," but Texas courts have interpreted the term "emergency" broadly. See, e.g., Hartman, 201 S.W.3d at 672 (concluding that section 101.055(2) applied to a suit involving the city's reaction to roadway flooding); Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 410-11 (Tex. App.—Fort Worth 2006, pet. denied) (officers were responding to an emergency situation in which suspect in back of patrol car tried to escape through car window); see also Jefferson Cty. v. Hudson, No. 09-11-00168-CV, 2011 WL 3925724, at *3 (Tex. App.—Beaumont Aug. 25, 2011, no pet.) (mem. op.) ("emergency" as used in section 101.055 "refers to unforeseen circumstances that call for immediate action").
Camacho's affidavit stated that he "operate[s] units to emergencies using lights and sirens," and "transport[s] patients to facilities in a timely manner." Camacho further stated that on the way to Obeid, the "response mode was lights and sirens because complaints of chest pains are always treated as [a] worst-case scenario: a heart attack." Camacho explained that an EKG revealed that Obeid was experiencing atrial fibrillation, which could eventually lead to a stroke, a pulmonary embolism, or a heart attack and that these conditions are "immediately life-threatening." Camacho further explained that when a patient has atrial fibrillation with a heart rate greater than 150 beats per minute, the situation is a "life-threatening emergency." If the patient has a heart rate less than 150 beats per minute, their condition is urgent but not as critical. Camacho further explained that even if the patient has a normal heart rate, the paramedic team cannot ascertain whether the patient has pulmonary embolism or heart attack or other more serious condition, and thus transport is required. Camacho also stated that if a patient has atrial fibrillation but is stable, "they could deteriorate rapidly, so we must transport them to a hospital with some urgency," and that women can have a normal EKG even when they are having a heart attack so transport to the hospital for further testing is required.
The City's summary judgment evidence shows that Camacho was responding to a woman who (1) was experiencing atrial fibrillation, a life-threatening situation, (2) was complaining of chest pains rated 8 out of 10, and (3) required transportation to the hospital as quickly as possible to determine whether she was having a heart attack, a pulmonary embolism or some other serious condition, and (4) believed she needed urgent medical assistance and that her life could be in danger. Based on this evidence, we conclude that the City established that Camacho was responding to an emergency call or reacting to an emergency situation as a matter of law. See Hartman, 201 S.W.3d at 672-73 (holding emergency situation existed as matter of law under section 101.055(2) when unprecedented flooding was present and city had officially declared a disaster); Quested v. City of Houston, 440 S.W.3d 275, 285 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (SWAT officer was responding to emergency call when he drove to hostage situation and was involved in accident); Tex. Dep't of Pub. Safety v. Little, 259 S.W.3d 236, 239 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (dispatch call requesting assistance with wanted person was emergency call when officer testified without contradiction that law enforcement officers consider such request to be emergency); see also City of Houston v. Davis, No. 01-13-00600-CV, 2014 WL 1678907, at *5 (Tex. App.—Houston [1st Dist.] Apr. 24, 2014, no. pet.) (mem. op.) (officer was responding to emergency situation when he pulled over car in response to report that driver of car had tried to run another vehicle off road). Therefore, appellees had the burden to present a genuine issue of fact to defeat summary judgment. See Quested, 440 S.W.3d at 284 (stating that plaintiff has burden of proof to establish that emergency exception does not apply).
B. Did Appellees Present a Fact Issue?
On appeal, appellees appear to concede that Camacho was initially responding to an emergency call, but they disagree that the emergency response lasts forever and that a fact issue existed on whether Camacho continued to respond to an emergency call or react to an emergency situation at the time of the collision. To support their argument, appellees point to several discrepancies within Camacho's affidavit to attempt to raise a fact issue on whether Camacho was reacting to an emergency situation at the time of the accident.
Appellees first point out that Camacho used lights and sirens in response to the emergency call but did not use them while transporting Obeid to the hospital. Appellees contend that because Camacho did not use lights and sirens on the way to the hospital, Camacho "acknowledg[ed] that he no longer considered 'the worse-case scenario' of a heart attack for Ms. Obeid" and that "Camacho's statements and actions actually tend to demonstrate a lack of any emergency at that point." Appellees next point out that Camacho stated in his affidavit that someone with a heartbeat over 150 beats is a "life-threatening emergency," but because he later admitted in his affidavit that Obeid's heart rate was within normal range, an emergency situation no longer existed. Appellees next argue that "the mere fact that EMS personnel were assisting Ms. Obeid does not necessarily constitute an emergency situation" and that transporting "a patient in stable condition, who is actively and coherently communicating with the medical personnel, does not clearly establish the existence of an 'emergency.'" Appellees further argue that although Camacho initially started traveling to one hospital, he changed course after Obeid said she was a previous patient at a different hospital. Appellees contend Camacho's decision to take Obeid to a different hospital indicates that an emergency no longer existed. Finally, appellees contend that a peace officer's accident report made by officers who arrived on the scene after the ambulance struck the toll booth raises a fact issue on whether Camacho was reacting to an emergency situation because the peace officer's crash report includes an un-checked box stating "Pol., Fire, EMS on Emergency (Explain in Narrative if Checked)." Because the box was not checked, appellees argue that the accident report is further evidence that the ambulance was "not on Emergency' when the crash occurred."
Although the City showed as a matter of law that Camacho was responding to an emergency call or reacting to an emergency situation, a reasonable juror could conclude that using lights and sirens in response to the emergency call, but not activating lights and sirens while transporting appellees to the hospital, raised a fact issue as to whether an emergency situation existed at the time of the collision. Despite Camacho's explanation of why he did not use lights and sirens on the way to the hospital—Obeid's heartrate was normal, "lights and sirens were not required given her condition," and "we did not need to go extra fast"—a reasonable juror could conclude that these same facts indicate that Camacho was no longer responding to an emergency or reacting to an emergency situation. Likewise, a reasonable juror could conclude that Camacho's decision, while in route to one hospital, to change course and proceed to a different hospital, also raises a fact issue as to whether Camacho was reacting to an emergency situation. In addition, appellees presented sworn statements, stating that Obeid was stable during the ambulance ride, talking to Camacho, breathing normally, and did not appear to be in any distress. The appellees also presented a post-collision police accident report that had an unchecked box with the label, "on emergency." Taking all of the evidence together and viewing it in the light most favorable to appellees, we conclude that a reasonable juror could differ in their conclusion as to whether Camacho was responding to an emergency call or reacting to an emergency situation at the time of the accident. See Collins v. City of Hous., No. 14-13-00533-CV, 2014 WL 3051231, at *7-8 (Tex. App.—Houston [14th Dist.] July 3, 2014, no pet.) (holding that fact issue existed on whether officer was responding to emergency call); Tex. Dep't of Criminal Justice v. Rangel, No. 01-17-00956-CV, 2018 WL 3150882, at *9 (Tex. App.—Houston [1st Dist.] June 28, 2018, no pet.) (holding that fact issue existed on whether emergency existed); Jefferson Cty. v. Hudson, No. 09-11-00168-CV, 2011 WL 3925724, at *3-4 (Tex. App.—Beaumont Aug. 25, 2011, no pet.) (mem. op.); TEX. CIV. PRAC. & REM. CODE 101.055(2). Accordingly, we conclude that the trial court did not err in denying the City's motion for summary judgment.
In the alternative, the City argues that at the time of the accident, Camacho was reacting to another emergency situation—"Obeid's instructions to change destination while the ambulance was already en route to the hospital on the tollway." We decline to address the City's alternative argument because it was not raised below. See TEX. R. APP. P. 33.1; TEX. R. CIV. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.").
We overrule the City's first issue on appeal.
Health Care Liability Claim
In its second issue on appeal, the City argues that Obeid's claim against the City is a health care liability claim and that the trial court erred by denying its motion to dismiss because Obeid failed to file an expert report. Specifically, the City argues that appellees asserted a safety standards-based claim that should have been classified as a health care liability claim. Appellees respond that its claims were only for the negligent operation of a vehicle, which has no nexus to the provision of health care.
A. Standard of Review and Applicable Law
Because the merits of this appeal require us to construe the Texas Medical Liability Act (the "Act") and decide whether appellees' negligence claim is a health care liability claim subject to the Act, our review is de novo. Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496, 501 (Tex. 2015); Cage v. Methodist Hosp., 470 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2015, no pet.). In construing the Act, we "look first and foremost to the language of the statute" to ascertain legislative intent. Ross, 462 S.W.3d at 501. We accord the Act's words their plain meaning unless they are statutorily defined, a different meaning is evident from context, or this construction leads to a nonsensical result. Id.; see TEX. GOV'T CODE § 311.011. We consider the Act as a whole, rather than reading its individual provisions in isolation. Ross, 462 S.W.3d at 501. In deciding whether appellees' negligence claim is a health care liability claim subject to the Act, we consider the entire record, including the pleadings, motions and responses, and any admissible evidence. Cage, 470 S.W.3d at 600.
A plaintiff whose claims are subject to the Act must serve an expert report within 120 days of the filing of an answer by any physician or health care provider. TEX. CIV. PRAC. & REM. CODE § 74.351(a). If the plaintiff fails to do so, then the trial court must dismiss the plaintiff's claims on the defendant's motion. Id. § 74.351(b)(2). But only health care liability claims are subject to the Act and its report requirements. Id. § 74.351(a); see also Ross, 462 S.W.3d at 502 (noting that "the Legislature did not intend for the expert report requirement to apply to every claim for conduct that occurs in a health care context").
The Act defines a "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 § 74.001(a)(13). "Safety" is not defined by the Act; thus, we accord it its common meaning, expressed by the Texas Supreme Court as a "condition of being untouched by danger; not exposed to danger; secure from danger, harm or loss." Ross, 462 S.W.3d at 501 (internal quotation marks omitted). Using the statutory definition, a safety-standard claim need not be directly related to the provision of health care to qualify as a health care liability claim. Id. at 503. However, "there must be a substantive nexus between the safety standards allegedly violated and the provision of health care." Id. at 504. This nexus depends on "whether the standards on which the claim is based implicate the defendant's duties as a health care provider, including its duties to provide for patient safety." Id. at 505.
In Ross, the Court identified factors to consider when assessing whether a safety-standard claim is substantively related to the provision of health care:
1. Whether the alleged negligence occurred in the course of the defendant's performing tasks with the purpose of protecting patients from harm;
2. Whether the alleged injuries occurred in a place where patients were receiving care, so that the obligation of the provider to protect persons who require medical care was implicated;
3. Whether the claimant was seeking or receiving health care when the alleged injuries occurred;
4. Whether the claimant was providing or assisting in providing health care when the injuries occurred;Ross, 462 S.W.3d at 505; see also Galvan v. Mem'l Hermann Hosp. Sys., 476 S.W.3d 429 (Tex. 2015) (per curiam) (applying Ross factors and concluding that record did not show that slip-and-fall claim was health care liability claim); Reddic v. E. Tex. Med. Ctr. Reg'l Health Care Sys., 474 S.W.3d 672, 675-76 (Tex. 2015) (per curiam) (same); Cage, 470 S.W.3d at 602-03 (same); Lout v. Methodist Hosp., 469 S.W.3d 615, 618-19 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (same).
5. Whether the alleged negligence arises from safety standards that are part of the professional duties owed by the health care provider;
6. If an instrumentality was involved in the defendant's alleged negligence, whether it was a type used in providing health care; or
7. Whether the alleged negligence implicated safety-related requirements set for health care providers by governmental or accrediting agencies.
The Ross factors are non-exclusive. 462 S.W.3d at 505. Another relevant consideration in deciding whether a safety-standard claim is substantively tied to the provision of health care is the extent to which expert testimony from a health care professional is necessary to support the claim. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005) ("The necessity of expert testimony from a medical or health care professional to prove a claim may also be an important factor in determining whether a cause of action is an inseparable part of the rendition of medical or health care services.").
B. Analysis
The appellees' second amended petition, the live pleading, asserts a cause of action against the City for negligence after "causing the ambulance to become stuck and tossing the occupants." Specifically, the appellees asserted that Camacho (1) failed to keep a proper lookout for plaintiffs' safety; (2) failed to control the speed of his vehicle; (3) drove at an unsafe speed; (4) failed to drive in a single lane; (5) failed to turn his vehicle to avoid the impact; and (6) attempted to drive a large ambulance through a narrow toll booth at an excessive speed.
Turning to the Ross factors, the first factor weighs in favor of appellees' claims being health care liability claims. Camacho's alleged negligence occurred in the course of Camacho performing a task with the purpose of protecting appellees from harm. Specifically, at the time of the accident and the alleged negligence, Camacho was driving the ambulance for the purpose of transporting appellees to the hospital while keeping them safe in the process.
Appellees do not dispute that the second and third factors weigh in favor of appellees' claims being classified as health care liability claims. We agree, as an ambulance is a place where patients receive care and Obeid was in the process of receiving heath care at the time of the injury. The fourth factor, whether the claimant was providing or assisting in providing health care when the injuries occurred, does not apply to the instant facts.
The fifth factor does not appear to apply because the City has not presented any evidence that the negligence alleged by appellees was based on safety standards arising from professional duties owed by the City as a health care provider. Instead, appellees alleged that Camacho failed to follow the rules of the road. See Shah v. Sodexo Servs. of TX Ltd. P'ship, 492 S.W.3d 413, 418 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (concluding that allegations did not implicate safety-related requirements because plaintiff alleged employee failed to exercise reasonable care).
The sixth factor asks whether an instrumentality was involved in the alleged negligence, and if so, whether it was the type of instrumentality used in providing health care. The City argued below that its ambulance served as the instrumentality. We note that in their live pleading, appellees did not allege that an instrumentality provided health care. Moreover, the City has provided no authority to support its argument that an ambulance falls within the Texas Supreme Court's use of instrumentality in Ross. See Ross, 462 S.W.3d at 505. We therefore conclude that this factor weighs against classifying appellees' claims as health care liability claims.
Regarding the seventh factor, the City did not provide any evidence that the alleged negligence occurred in the course of Camacho driving the ambulance as necessary to comply with safety-related requirements set for health care providers by governmental agencies. Again, as recognized by the City in its motion for summary judgment, the alleged negligence concerns the rules of the road, which apply to all drivers. See Galvan, 476 S.W.3d at 433.
As stated before, the Ross factors are not exclusive and courts also look to whether expert testimony from a health care professional is necessary to support the claim. See Diversicare Gen. Partner, 185 S.W.3d at 848. Based on the allegations in the live pleading, we fail to see how expert testimony from a health care professional can provide meaningful testimony in a dispute concerning an ambulance driver running into a tollway booth.
In sum, appellees' claims, as currently pleaded, concern Camacho's negligence while driving the ambulance. Appellees have not asserted, at this stage, that Camacho violated any safety standards in regard to how appellees were properly or improperly secured in the ambulance. While the injuries occurred in a health care setting, "the mere location of an injury in a health care facility or in a health care setting does not bring a claim based on that injury within the Act so that it is an [health care liability claim]. . . ." Ross, 462 S.W.3d at 504-05. Thus, under the facts before us, the standards on which the claim is based (the violation of driving laws) does not implicate the City's duties as a health care provider. Stated another way, the City failed to show a substantive nexus between the safety standards allegedly violated (the violation of driving laws) and the provision of health care. See Ross, 462 S.W.3d at 505. Instead, the safety standards, driving without violating driving laws, apply to every driver on the road. It is not unique to a health care provider driving an ambulance. See id.; Galvan, 476 S.W.3d at 431-33. It was the City's burden in the trial court to provide the required proof. See Reddy v. Veedell, 509 S.W.3d 435, 438 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). Based on the record before us, the City did not meet its burden.
While the City relies on cases that found allegations that health care providers failed to secure patients in vehicles on the way to medical care were held to be healthcare liability claims, the appellees' allegations in the present case make no assertion of negligence on the part of the health care providers in failing to secure appellees. Thus, the cases on which the City relies are inapposite. See Bain v. Capital Senior Living Corp., No. 05-14-00255-CV, 2015 WL 3958714, at *4 (Tex. App.—Dallas June 30, 2015, pet. denied) (mem. op.); In re Seton Nw. Hosp., No. 03-15-00269-CV, 2015 WL 4196546, at *3-4 (Tex. App.—Austin July 10, 2015, orig. proceeding) (patient's complaint of hospital's failure to protect patients through proper hiring, supervision, and training was health care liability claim).
Accordingly, we hold that appellees' claims are not health care liability claims. Therefore, appellees were not required to satisfy the expert-report requirements in the Act.
We overrule the City's second issue on appeal.
Conclusion
We affirm the trial court's order that denied the City's motion for summary judgment and motion to dismiss.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Goodman and Countiss.