Opinion
02-22-00441-CV
05-04-2023
Terry L'AMBER-HOPE and American Medical Response, Inc., Appellants v. Tabitha Stewart, Appellee
On Appeal from County Court at Law No. 3 Tarrant County, Texas Trial Court No. 2020-005868-3
Before Sudderth, C.J.; Kerr and Walker, JJ.
MEMORANDUM OPINION
Bonnie Sudderth Chief Justice
Appellee Tabitha Stewart was injured when the ambulance she was riding in- driven by Appellant Terry L'Amber-Hope (Hope) on behalf of Appellant American Medical Response, Inc. (AMR)-struck a curb. Stewart sued for negligence, and Hope and AMR contend that Stewart's claims are health care liability claims (HCLCs) subject to the Medical Liability Act's (MLA's) expert-report requirement. See Tex. Civ. Prac. &Rem. Code Ann. § 74.351(a). Under the MLA, if a claimant asserting HCLCs fails to timely serve an expert report on the defendant, then on that defendant's motion, the trial court "shall" dismiss the HCLCs against the defendant. Id. § 74.351(b). When Stewart failed to serve an expert report on Hope and AMR, they moved to dismiss, but the trial court denied the motion.
It is unclear if Appellant's name is L'Amber-Hope Terry or Terry L'Amber-Hope; the name recited in her affidavit is different from the name listed in the style of the case, and her trial court pleadings are inconsistent. Because Appellant has not moved to modify the style of this case, and because our previous interlocutory opinion used the same style, see L'Amber-Hope v. Stewart, No. 02-21-00286-CV, 2022 WL 1793517, at *1 (Tex. App.-Fort Worth June 2, 2022, no pet.) (mem. op.), we refer to Appellant as Terry L'Amber-Hope and leave the case name unchanged.
Stewart pleaded that AMR was vicariously liable for Hope's allegedly negligent driving.
The primary question on appeal is whether Stewart's claims are HCLCs. Because they are, we reverse.
I. Background
In 2018, Stewart called 911 due to chest pain, and AMR responded to her home. She was placed on a gurney in an ambulance and driven to the hospital. Hope-an emergency medical technician (EMT)-drove the ambulance while another EMT sat in the back with Stewart. While en route to the hospital, the ambulance struck a curb.
Stewart sued for negligence, alleging that Hope was liable-and AMR was vicariously liable-for "[f]ailing to timely apply the brakes," "[f]ailing to maintain a proper lookout," failing "to remain reasonably attentive to the traffic and other conditions," "[d]riving the vehicle at a[n unreasonable] rate of speed," "[f]ailing to turn the vehicle . . . to avoid the collision," and "fail[ing] to drive in a single lane."
Because Stewart did not consider her claims to be HCLCs, she did not serve Hope or AMR with an expert report. And because not serving an expert report entitles MLA defendants to a dismissal, Hope and AMR filed their first motion to dismiss, see id., and in a prior interlocutory appeal, we affirmed the trial court's denial of that motion because Hope and AMR had produced no evidence that they were health care providers, see L'Amber-Hope, 2022 WL 1793517, at *4-5.
On remand, Hope provided affidavit evidence that she was a state-certified EMT employed by AMR at the time of the incident, and AMR provided affidavit evidence that it was a state-licensed emergency medical services (EMS) provider at the time of the incident. Relying on this new evidence, they filed a second motion to dismiss under the MLA.
Stewart responded by arguing that her claims related to transportation rather than to health care and that medical expert testimony was unnecessary. The trial court denied the second motion to dismiss, and Hope and AMR filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (authorizing interlocutory appeal).
Stewart also responded by arguing that she was not a patient of Hope's or AMR's. She did not elaborate on this assertion.
II. Discussion
If a plaintiff's claims qualify as HCLCs under the MLA, then the plaintiff is required to serve the defendants with an expert report within a certain amount of time, and if she does not do so, the defendants are entitled to a dismissal. See id. § 74.351. It is undisputed that Stewart did not serve Hope or AMR with an expert report within the relevant time period. The question is whether she was required to, i.e., whether her claims are HCLCs. This is a question of law, which we review de novo. Baylor Scott & White, 575 S.W.3d at 363; L'Amber-Hope, 2022 WL 1793517, at *2 (noting, though, that decision to deny motion to dismiss is reviewed for an abuse of discretion).
In their brief, Hope and AMR list two issues presented: (1) whether Stewart presented sufficient evidence to overcome the rebuttable presumption that her claims were HCLCs and (2) whether a lawsuit brought by a patient against an EMT and EMS provider for injuries allegedly sustained during an ambulance accident en route to the hospital qualifies as an HCLC. Both issues boil down to the same question: whether Stewart's claims are HCLCs.
When a claim is asserted against a health care provider and is based on facts implicating the provider's conduct during the course of the patient's care, treatment, or confinement, a rebuttable presumption arises that the claim qualifies as an HCLC. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019); Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012). The parties dispute whether this presumption applies here for many of the same reasons that they dispute whether Stewart's claims are HCLCs.
An HCLC is a "cause of action [(1)] against a health care provider or physician [(2)] 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, [(3)] 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); see Stewart v. Civitas Senior Healthcare, LLC, No. 02-22-00388-CV, 2023 WL 2607762, at *2 (Tex. App.- Fort Worth Mar. 23, 2023, no pet. h.) (mem. op.). On appeal, Stewart defends the trial court's ruling based on the first two elements. She argues that the trial court properly denied the second motion to dismiss because (1) Hope and AMR are not health care providers and (2) Stewart's negligence claims are not for a "claimed departure from accepted standards of . . . safety." Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13).
"[T]he phrase 'directly related to health care' modifie[s] the terms immediately before it-professional or administrative services-but not the word safety." Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496, 502 (Tex. 2015).
A. Hope and AMR are health care providers.
To qualify as an HCLC, a claim must be asserted "against a health care provider or physician." Id. Stewart does not deny that, at the time of the incident, AMR was an EMS provider and Hope was an AMR employee and an EMT. But, relying on Townsend v. Catalina Ambulance Co., Inc., 857 S.W.2d 791, 796 (Tex. App.- Corpus Christi-Edinburg 1993, no writ), Stewart claims that neither EMS providers nor EMTs are "health care provider[s]" for purposes of the MLA. See Tex. Civ. Prac. &Rem. Code Ann. § 74.001(a)(12), (a)(13).
Stewart did not raise this argument in her response to the second motion to dismiss. See Tex.R.App.P. 33.1(a). Although Stewart argued that she was not Hope's or AMR's patient, she did not explain this contention or tie it to Hope's or AMR's status as a health care provider. Nonetheless, the trial court's order will be upheld on any legal theory supported by the record, Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011), and whether a given profession qualifies as a health care provider is a matter of statutory interpretation-a question of law-that the trial court could have resolved even if Stewart failed to bring it to the court's attention. See Randol Mill Pharmacy v. Miller, 465 S.W.3d 612, 615-16 (Tex. 2015) (noting that provider status is a matter of statutory interpretation and a question of law); L'Amber-Hope, 2022 WL 1793517, at *3 ("As the moving parties, [Hope and AMR] had the burden to present evidence that they are [health care providers].").
Townsend does not bind us, and, indeed, it does not even apply. In that case, our sister court interpreted an old statutory definition of "health care providers," and the statute has changed since then. Compare Townsend,, 857 S.W.2d at 795-96 (quoting and interpreting definition of health care provider in what was then Tex. Rev. Civ. Stats. Ann. art. 4590i, § 1.03(3)), with Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(12)(A) (providing current definition of health care provider); see also Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (repealing Article 4590i, effective Sept. 1, 2003)
The statutory definition interpreted in Townsend defined health care provider as "[a]ny person, partnership, professional association, corporation, facility, or institution duly licensed or chartered by the State of Texas to provide health care as a registered nurse, hospital, dentist, podiatrist, pharmacist, or nursing home or an officer, employee, or agent thereof acting in the course and scope of his employment." Townsend, 857 S.W.2d at 796 (quoting former Tex. Rev. Civ. Stats. Ann. art. 4590i, § 1.03(3)).
The current version of the MLA defines a "[h]ealth care provider" as "any person, . . . corporation, . . . or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including . . . a health care institution." Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(12)(A)(vii). A "[h]ealth care institution" is defined to include "an emergency medical services provider." Id. § 74.001(a)(11)(C); see City of Houston v. Houston, 608 S.W.3d 519, 524-26 (Tex. App.- Houston [1st Dist.] 2020, no pet.) (holding City was health care provider when City department provided emergency medical services). And AMR provided undisputed evidence that it was "an emergency medical services provider." See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(11)(C).
In an affidavit attached to its second motion to dismiss, an AMR representative averred that AMR was "licensed by the State of Texas as a Licensed EMS Provider" at the time of the incident and provided AMR's license number. As for Hope, it is undisputed that she was acting as an AMR employee at the time of the incident, and "[t]he term [health care provider] includes . . . an employee . . . or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship." Id.§ 74.001(a)(12)(B)(ii). Plus, Hope provided undisputed evidence that, when the incident occurred, she "was certified by the Texas Department of State Health Services as an Emergency Medical Technician," and she provided her certificate number and personal identification number. See Tex. Health & Safety Code Ann. § 773.047 (providing that an individual qualifies as an EMT if she "is certified by the department as minimally proficient to perform emergency prehospital care that is necessary for basic life support and that includes cardiopulmonary resuscitation and the control of hemorrhaging"). So Hope qualified as a health care provider not one, but two ways-both as "an employee . . . or agent of a health care provider . . . acting in the course and scope of the employment or contractual relationship," Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(12)(B)(ii), and as a "person . . . certified . . . by the State of Texas to provide health care," id. § 74.001(a)(12)(A).
Hope and AMR were thus health care providers under the MLA, and the trial court could not have denied the second motion to dismiss on this basis.
B. Stewart's safety-based claims bear a substantive nexus to health care.
The real sticking point is the second HCLC element-whether Stewart's claims are "for . . . [a] claimed departure from accepted standards of . . . safety." Id. § 74.001(a)(13); see Lake Jackson Med. Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 840-41 (Tex. 2022) (noting that "in most disputes over whether a claim constitutes a health care liability claim, the primary issue . . . involves the second element"). This was the primary argument that Stewart advanced below, and it is the crux of the dispute on appeal.
Although "[s]afety" is not defined in the MLA, the Texas Supreme Court has construed it according to its ordinary meaning as "the condition of being 'untouched by danger; not exposed to danger; secure from danger, harm or loss.'" Ross, 462 S.W.3d at 501 (quoting Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex. 2005)).
1. Law: Substantive Nexus
For a safety-based claim to qualify as an HCLC, "there must be a substantive nexus between the safety standards allegedly violated and the provision of health care." Ross, 462 S.W.3d at 504. But what constitutes a "substantive nexus" is not always clear. See id. at 505 (recognizing as much).
The Texas Supreme Court has provided guidance to us by identifying seven nonexhaustive factors to consider when making this determination: (1) whether the negligence was in the course of the defendant's performing tasks to protect patients from harm; (2) whether the injuries occurred where patients might be receiving care, implicating the provider's obligation to protect patients who require special care; (3) whether the injury occurred while the claimant was in the process of seeking or receiving health care; (4) whether the injury occurred while the claimant was providing or assisting in providing health care; (5) whether the negligence was based on safety standards that arise from professional health care provider duties; (6) whether the instrumentality involved, if any, was the type used to provide health care; and (7) whether the negligence occurred while the defendant was acting or failing to act to comply with government-provided safety requirements for health care providers. Id. In analyzing these factors-commonly referred to as the Ross factors-we focus on "the facts underlying the claim," i.e., the claim's "essence" or "gravamen." Baylor Scott & White, 575 S.W.3d at 363-64; Loaisiga, 379 S.W.3d at 255; Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 394 (Tex. 2011); Diversicare, 185 S.W.3d at 851; Stewart, 2023 WL 2607762, at *3.
2. Analysis: Stewart's HCLCs
Stewart argues that her claims have no substantive nexus to health care because she pleaded that Hope violated the rules of the road applicable to all drivers, and she did not accuse Hope of departing from accepted standards of health care or healthcare-related safety. But Hope was not operating the ambulance based on the ordinary rules of the road; she was operating the ambulance based on the rules applicable to ambulance drivers.
Our sister court recognized as much in a similar case involving an ambulance accident. See City of Houston v. Hussein, No. 01-18-00683-CV, 2020 WL 6788079, at *17 (Tex. App.-Houston [1st Dist.] Nov. 19, 2020, pets. denied) (mem. op. on reh'g) (holding patient's claim against ambulance driver for traffic violations was HCLC). There, an ambulance struck a toll-booth barrier while a patient experiencing chest pains was riding in the back with a paramedic. Id. at *1-5, 14-15. The patient sued the ambulance driver for negligence based on the driver's alleged failure to keep a proper lookout, failure to drive at a safe speed and failure to comply with similar traffic laws. Id. at *14.
Applying the Ross factors, the court of appeals concluded that these claims were HCLCs: the alleged negligence occurred while the ambulance driver was protecting the patient by transporting her to the hospital for emergency medical treatment (factor 1); the patient's injury occurred while she was in the back of an ambulance receiving care from a paramedic (factor 2); she was being transported to seek treatment for her heart condition (factor 3); the allegedly negligent acts-failing to drive at a safe speed and the like-turned on the safety standards for operators of emergency vehicles (factor 5), and the ambulance was an instrumentality being used to provide health care (factor 6). Id. at *15-17.
The facts here are similar. Stewart, like the patient in Hussein, experienced chest pain, and she was taken to the hospital by ambulance. See id. at *2-5, 15. An EMT rode in the back of the ambulance with Stewart, just as a paramedic rode in the back of the ambulance in Hussein. See id. at *4, 15. In both cases, the ambulance driver engaged in allegedly negligent driving maneuvers such as failing to maintain a single lane, failing to drive at a safe speed, failing to turn the vehicle to avoid impact, and failing to maintain a proper lookout. See id. at *1, 17.
Given the factual similarities between this case and Hussein, it should be no surprise that the Ross factors lead us to the same conclusion. The first Ross factor- whether Hope's and AMR's negligence was in the course of their performance of tasks with the purpose of protecting patients-weighs in favor of classifying Stewart's claims as HCLCs. See id. at *16. Hope's allegedly negligent driving maneuvers all occurred while she was "transporting [Stewart] to the hospital in an ambulance so that she could receive medical treatment for her somewhat urgent . . . medical condition." Id. (discussing first Ross factor). Such emergency medical transportation is intended to protect a patient from health-related harm by providing expedited travel to a health care facility and ongoing medical resources while en route. Cf. Tex. Health & Safety Code Ann. § 773.002 (stating that purpose of Emergency Medical Services chapter is "to provide for the prompt and efficient transportation of sick and injured patients, after necessary stabilization").
We note that, in factually distinguishable circumstances, a plaintiff's claims against an ambulance driver may not be HCLCs. See Ross, 462 S.W.3d at 504-05 (noting that the health care setting is not alone sufficient to make a claim an HCLC, nor is the defendant's status as a health care provider). Indeed, although the Hussein court concluded that the ambulance patient's claims were HCLCs, it also analyzed the claims of a family member who had accompanied the ambulance patient, and the court of appeals determined that those claims were not HCLCs. See Hussein, 2020 WL 6788079, at *12-20; see also Coci v. Dower, 585 S.W.3d 652, 656-57 (Tex. App.- Eastland 2019, pet. denied) (holding that claims against ambulance driver brought by family member accompanying ambulance patient were not HCLC).
The second Ross factor-whether Stewart's injuries occurred where patients might be during the time they are receiving care-is also satisfied. As Hussein recognized, an ambulance is a place where patients might receive health care. See Hussein, 2020 WL 6788079, at *15; see also Tex. Civ. Prac. &Rem. Code Ann. § 74.001(a)(10) (defining health care as "any act or treatment performed or furnished . . . by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement"); 25 Tex. Admin. Code § 157.2(10) (2023) (Tex. Dep't of State Health Servs., Definitions) (implementing Emergency Medical Services Act and defining ambulance as "[a] vehicle for transportation of [a] sick or injured person to, from or between places of treatment for an illness or injury, and [for] provi[sion of] out of hospital medical care to the patient" (emphasis added)); Coci, 585 S.W.3d at 656 (recognizing ambulance as "a health care setting" but holding that claims against ambulance driver were not HCLCs). Stewart acknowledges as much. Although she emphasizes that she was not receiving health care from the driver (Hope) at the time of the incident, an ambulance patient need not be actively receiving care-much less from the negligent actor-for the ambulance to constitute "a place where patients might be during the time they [a]re receiving care, so that the obligation of the provider to protect persons who require special, medical care [i]s implicated." Ross, 462 S.W.3d at 505 (emphasis added).
Stewart largely concedes the third Ross factor: that her injury occurred while she was in the process of seeking or receiving health care. Stewart acknowledges that "she was in the process of seeking further care for her breathing problems" at the time of the incident and that Hope and AMR had assumed responsibility for Stewart's safety while transporting her to seek that care. See Taton v. Taylor, No. 02-18-00373-CV, 2019 WL 2635568, at *5 (Tex. App.-Fort Worth June 27, 2019, no pet.) (mem. op.) (discussing case law and noting that even if the "health care provider was not providing the plaintiff medical care or treatment at the time its driver suddenly applied his brakes [or engaged in other allegedly negligent driving activity], the health care provider was still responsible for the plaintiff's safety during transport from the clinic to her home"); Bain v. Cap. Senior Living Corp., No. 05-14-00255-CV, 2015 WL 3958714, at *3 (Tex. App.-Dallas June 30, 2015, pet. denied) (mem. op.) (holding claims were HCLCs when clinic resident was injured while being transported in clinic van to doctor's office and explaining that the provider "undertook to transport [the patient] to a medical appointment with a different health care provider, and, in doing so, remained responsible for her safety"); Sherman v. HealthSouth Specialty Hosp., Inc., 397 S.W.3d 869, 874 (Tex. App.-Dallas 2013, pet. denied) (holding claims against clinic for injuries sustained in transport home were HCLCs and explaining that, "[w]hile [the clinic] was not providing [the patient] with medical care or treatment at the time its driver 'suddenly had to apply his brakes' . . ., [the clinic] still was responsible for [the patient's] safety during the transport from the clinic to her home").
Disregarding the inapplicable fourth factor, temporarily skipping over the fifth factor, and jumping to the sixth-whether the instrumentality involved was the type used in providing health care-this factor, too, weighs in favor of classifying Stewart's claims as HCLCs. To the extent that an instrumentality was involved in Hope's alleged negligence, that instrumentality was an ambulance, as the ambulance was what Hope used to conduct the allegedly negligent acts, such as speeding and failing to maintain a single lane. See Hussein, 2020 WL 6788079, at *16. An ambulance can be an instrumentality used in providing health care to a patient when it is used for a patient's medical benefit, such as in this case, where Stewart was being transported to receive health care at a health care facility. Compare id. (holding ambulance was instrumentality in Ross analysis of ambulance patient's claims), with id. at *18-19 (holding ambulance was not instrumentality in Ross analysis of claims asserted not by a patient but by a passenger accompanying an ambulance patient); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(10) (defining health care as "any act . . . performed or furnished . . . by any health care provider for . . . a patient during the patient's medical care, treatment, or confinement").
See Hussein, 2020 WL 6788079, at *15 n.21 (noting fourth factor inapplicable). The fourth factor asks if, at the time of the injury, the claimant was providing or assisting in providing health care. See Ross, 462 S.W.3d at 505. There is no evidence or indication that the claimant here-Stewart-is a health care provider.
Finally, we address the two remaining Ross factors, the fifth and the seventh: whether the negligence was based on safety standards that arose from professional health-care-provider duties, and whether the negligence occurred while the defendant was acting or failing to act to comply with government-provided safety requirements for health care providers. These final two factors clinch the categorization of Stewart's claims as HCLCs.
Based on Stewart's claims, these factors are intertwined. Because Stewart alleges that Hope acted negligently by violating government-established driving safety requirements, the fifth factor-whether Hope's alleged negligence was based on safety standards that arose from her professional health-care-provider duties- overlaps with the seventh-whether her alleged negligence occurred while she was acting or failing to act to comply with government-provided safety requirements for health care providers. But see Hussein, 2020 WL 6788079, at *15 n.21 (disregarding seventh factor as inapplicable). And both factors demonstrate that the driving safety standards that Hope allegedly violated bear a substantive nexus to the provision of health care.
Chapter 546 of the Transportation Code establishes safety-related requirements for emergency vehicle operators such as ambulance drivers. See Tex. Transp. Code Ann. §§ 546.001-.007 (Subchapter A, governing authorized emergency vehicles). That Chapter authorizes ambulance drivers responding to emergency calls to engage in otherwise-impermissible conduct such as exceeding the maximum speed limit, proceeding past a stop sign or red light, and "disregard[ing] a regulation governing the direction of movement or turning." Id. §§ 546.001, .002(b)(1); see id. § 541.201(1)(C) (defining "[a]uthorized emergency vehicle" to include "an emergency medical services vehicle" licensed by the state and operating under contract). These driving safety standards transcend the rules applicable to an ordinary driver.
As we have already discussed, emergency vehicle operators-acting as employees or agents of state-licensed EMS providers-are health care providers under the MLA. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(11)(C), (a)(12)(A)(vii), (a)(12)(B)(ii); supra Section II.A.
Stewart has not argued that Hope and AMR were not responding to an emergency call at the time of injury, nor has Stewart enunciated any other legal reason why, in the circumstances of this case, Hope and AMR were subject to the ordinary rules of the road rather than those applicable to ambulance drivers responding to emergencies.
So although Stewart attempted to frame her negligence claims in terms of the rules of the road applicable to ordinary drivers, Hope was not operating the ambulance as an ordinary driver and was not subject to the same rules as ordinary drivers. See Tex. Health &Safety Code Ann. § 773.017(a) (prohibiting operation of "a motor vehicle . . . that resembles an emergency medical services vehicle" unless the person uses the vehicle as "an emergency medical services vehicle under this chapter" or "for other legitimate governmental functions"); cf. Taton, 2019 WL 2635568, at *6 (rejecting patient's argument that medical transport was "no different than the services provided by a taxi company or Uber or Lyft" because such argument "ignore[d the patient's] status as a post-heart-surgery patient and disregarded] the status of [the defendants] as licensed health care providers"). But see Coci, 585 S.W.3d at 656-57 (holding that non-patient's claims against ambulance driver for traffic violations were not HCLCs and stating that "the legal duties allegedly violated apply to every driver on the road; they are not unique to a health care provider driving an ambulance"). Hope was providing emergency medical transportation to a patient, and she was subject to the government-established safety rules for ambulance drivers.The facts underlying Stewart's negligence claims support a professional standard of care: that of a reasonably prudent ambulance driver transporting an emergency patient.
In addition to Stewart's allegations that Hope negligently drove the ambulance, at one point, Stewart reported that Hope and AMR failed to properly strap Stewart into the gurney in the back of the ambulance. Although Stewart did not plead this allegation in her petition, her medical records-which Stewart herself offered as evidence in response to Hope's and AMR's second motion to dismiss- reflect that she told her health care providers that "she was not strapped in properly." Hope and AMR point to this accusation as an indication that Stewart's claims are HCLCs because, in general, the proper method of strapping a patient to a gurney is based on a professional standard arising from health care provider duties. See Houston, 608 S.W.3d at 527-31 (holding claims were HCLCs and noting that plaintiff's "allegations that the [EMTs] . . . failed to secure [her] properly to the gurney[ and] failed properly to secure the gurney . . . constitute negligence allegations based on safety standards arising from professional duties" (internal quotation marks omitted)). But Stewart has abandoned this allegation. Although her medical records are part of "the facts underlying [Stewart's] claim," Loaisiga, 379 S.W.3d at 255, Stewart has repeatedly and unambiguously conceded that "[a]t the time that Hope hit the curb, Plaintiff Stewart was properly strapped and secured."
Stewart-denying the heightened standard of care-asserts that her case does not require expert testimony. We need not address this issue, though, because "[n]ot all HCLCs require expert testimony" in the final analysis. Stewart, 2023 WL 2607762, at *3. Furthermore, Stewart provides no authority to support a conclusion that an HCLC that does not require expert testimony is exempt from the statutory requirement that an expert report be provided at the threshold stage of the lawsuit to avoid dismissal. Cf. Tex. Civ. Prac. & Rem. Code Ann. § 74.351.
Considering the Ross factors as a whole together with our sister court's persuasive application of them in Hussein, we hold that Stewart's negligence claims against Hope and AMR are for "claimed departure[s] from accepted standards of . . . safety" that bear a substantive nexus to the provision of health care. Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13); see Ross, 462 S.W.3d at 504-05.
III. Conclusion
Because Stewart's negligence claims are asserted against "health care provider[s]" for "claimed departure[s] from accepted standards of . . . safety" that bear a substantive nexus to the provision of health care, the claims are HCLCs. Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13); see Ross, 462 S.W.3d at 504. Stewart was required to serve Hope and AMR with a timely expert report, see Tex. Civ. Prac. & Rem. Code Ann § 74.351(a), and it is undisputed that she failed to do so. Hope and AMR were thus entitled to a dismissal. See id. § 74.351(b).
Therefore, we reverse the trial court's order denying their second motion to dismiss, and we remand the case for the trial court to "enter an order that: (1) awards to the affected . . . health care provider reasonable attorney's fees and costs of court incurred by the . . . health care provider; and (2) dismisses the claim with respect to the . . . health care provider, with prejudice to the refiling of the claim." Id.; see Tex.R.App.P. 43.2(d).