Dallas Court of Appeals rules claim is not a health care liability claim applying the factors set-out by the Texas Supreme Court’s Ross factors:
“Ross provided seven “non-exclusive” factors that “lend themselves to analyzing whether such a claim is substantively related to the defendant’s providing of medical or health care and is, therefore, an HCLC”:
1. Did the alleged negligence of the defendant occur in the course of the defendant’s performing tasks with the purpose of protecting patients from harm;
2. Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the
provider to protect persons who require special, medical care was implicated;
3. At the time of the injury was the claimant in the process of seeking or receiving health care;
4. At the time of the injury was the claimant providing or assisting in providing health care;
5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider;
6. If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; or
7. Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety-related requirements set for health care providers by governmental or accrediting agencies?
Id. at 505.
Under Ross, the key inquiry is the nexus between the standards alleged to have been breached and the provision of health care, not the identity or status of the person injured. Id. (“The pivotal issue in a safety standards-based claim is 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.”); Williams, 371 S.W.3d at 178 (“[O]ur focus in determining whether claims come under the TMLA is not the status of the claimant, but the gravamen of the claim or claims against the health care provider”) (citing Rubio, 185 S.W.3d at 854).”
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