The Court of Appeals Fifth District of Texas at Dallas (“Texas Appellate Court”) held in its split-decision En Banc Opinion filed on May 3, 2021: “Here, the standards on which Faber bases her claim do not implicate Collin Creek’s duties as a health care provider or its duties to provide for patient safety. The gravamen of Faber’s complaint is inadequate sidewalk maintenance outside her mother’s assisted living facility—a situation that is even more untethered to health care than a premises liability claim for injuries from the collapse of a rickety staircase inside the facility would be … The duty allegedly breached in this case is no different than the duty imposed on businesses generally and does not implicate Collin Creek’s duty as a health care provider … When Faber’s claim was dismissed, her petition alleged facts having nothing to do with a health care provider’s failure to comply with professional duties and everything to do with the condition of the public sidewalk on the facility’s premises. It was a simple, run-of-the-mill premises liability case, where the instrumentality causing injury was broken concrete.”

“The dissent wrongly suggests that Faber attempted to recast her claim to skirt the strictures of the TMLA. In fact, it is the dissent that attempts to re-characterize Faber’s premises claim into one she does not make, namely an active negligence case involving the conduct of the Collin Creek employee who pushed Millie’s walker at the time it became snared in the cracked concrete. To reach this view, the dissent is forced to disregard the gravamen of Faber’s suit, jettison the holdings of Williams, Rubio, and other authorities as a consequence, and leave unanswered one revelatory, self-evident fact: Had it not been for the defective condition of the sidewalk, this lawsuit would not exist. In the legal analysis of the premises liability claim actually presented by Faber, it matters not who was pushing Millie the day of her deadly fall. This underscores yet another fault in the dissent’s argument.”

“Presumably, under the dissent’s analysis, had Faber pushed her mother that day, the TMLA would not have been implicated. Of course, this makes the case turn merely on the health care employment status of the person assisting Millie and the location of the incident, something we may not do … At bottom, however, the dissent fails to establish any substantive nexus between Faber’s claims and standards implicating Collin Creek’s duties as a healthcare provider.”

Source Faber v. Collin Creek Assisted Living Center, Inc., No. 05-18-00827-CV.

Dissenting Opinion

The dissent stated: “The pleadings and evidence establish that, while residing at Collin Creek, Smith used a wheeled walker with a seat to ambulate. On May 25, 2014, Faber asked a Patient Care Assistant (“PCA”) employed by Collin Creek to assist Smith to her car so that she could take Smith to an appointment. In fulfilling this request, the PCA seated Smith backwards on her walker and used the walker as a make-shift wheelchair to wheel her out to the parking lot. While en route to Faber’s car, which was parked in a wheelchair-accessible parking spot in front of the facility, the PCA pushed the walker with Smith seated on it over a large crack in the sidewalk wheelchair ramp. The walker became caught in the crack, causing Smith to fall and hit her head on the concrete. Smith sustained fatal injuries as a result of the fall. These facts demonstrate that the PCA’s choice to transport Smith using her walker as a wheelchair, along with the PCA’s act of rolling the walker over the crack in the sidewalk, are integral and inextricable parts of the suit regardless of how the majority chooses to characterize the “gravamen” of Faber’s claim. A jury will be required to consider more than just whether the crack presented a hazard. They will necessarily have to consider the PCA’s actions and the risks associated with the choices the PCA made … Unlike the premises liability cases upon which the majority relies, it is clear that the health care provider’s conduct in the course of providing health care was a factor in causing the injury at issue. Claims based on facts that could support claims against a health care provider for departures from accepted standards of safety are HCLCs [health care liability claims], regardless of whether the plaintiff alleges the defendant is liable for breach of that standard … Faber’s request that the PCA assist Smith to her car supports the conclusion that Smith sometimes required assistance to walk. It is undisputed that Collin Creek was obligated to provide these services to Smith to protect her from harm and that they were, in fact, doing so at the time she fell. The first Ross factor, therefore, supports the conclusion that Faber has asserted an HCLC.”

Source

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