CITY OF HOUSTON v. UMANA (2025)

OPINION

This appeal presents the question of whether allegations based on a car accident on the way home from a clinic visit constitute a healthcare liability claim (“HCLC”) under the Texas Medical Liability Act (“TMLA”). The City of Houston brings this interlocutory appeal from the trial court's denial of its motion to dismiss. Appellee Juan Umana sued the City after the City-owned van he was riding in was involved in a traffic accident while taking Umana home from a visit to a City-run medical clinic. In its motion, the City asserted that Umana's allegations presented an HCLC, and the trial court was required to dismiss the claims because Umana failed to timely serve an expert report as required for such claims under the TMLA. See Tex. Civ. Prac. & Rem. Code § 74.351. In a single issue on appeal, the City asserts that the trial court erred in denying its motion to dismiss. Concluding that Umana's allegations concerning a simple car accident did not present an HCLC under the TMLA, we affirm.

Background

In his petition, Umana alleged that he was a passenger in a City-owned vehicle being driven by City employee Autries Carroll, when Carroll turned in front of another vehicle causing a collision that seriously injured Umana. Umana further alleged that Carroll's negligence was the proximate cause of the accident and his injuries and that the City was liable for Caroll's conduct under the doctrine of respondeat superior.

The City answered with a general denial and various affirmative defenses. The City also filed a motion to dismiss in which it contended that Umana's lawsuit stated an HCLC under the TMLA and that Umana had failed to file expert reports as required by TMLA section 74.351. In the motion, the City explained that one of its departments, the Houston Health Department, operates a number of clinics that provide medical services, including treatment for tuberculosis, also known as “TB.” The Houston Health Department employs drivers like Carroll to transport patients to and from monthly clinic visits. The accident at issue in this litigation occurred as Carroll was transporting Umana home from one such clinic visit. As will be discussed more fully below, the City therefore insisted that Umana's claim is a safety standards-based HCLC under the TMLA.

The City attached to its motion an affidavit by James Vinh, who stated he is a “Public Health Investigator Supervisor” with the City and has worked in TB control for thirty years. Vinh further averred that the health department is accredited by the Public Health Accreditation Board and operates several clinics, including the Sunnyside Health and Multi-Service Center, which provides, among other health services, treatment for TB. He explained that TB is a communicable disease that “can effect anyone” and “presents a public health issue.” Vinh supervises a team that, among other things, provides transportation for TB patients to and from clinics for treatment if the patient does not otherwise have transportation. He said that if the patient is positive for TB at the time of transport, both the patient and the driver wear masks. Lastly, Vinh stated that at the time of the accident, Carroll was transporting Umana home from a clinic appointment in a health department van.

In his response to the motion, Umana argued, among other things, that his claim was a simple car wreck claim and not an HCLC requiring an expert report. He specifically insisted that Carroll's alleged conduct in causing the accident did not occur during the course of medical care, treatment, or confinement; did not implicate any safety-related requirements set for healthcare providers by government or accrediting agencies; and did not implicate any medical or professional standards but only Texas traffic laws and common law duties imposed when operating a motor vehicle. He noted that the vehicle Carroll was driving was a standard Dodge Caravan and not an ambulance. He additionally alleged that the City is not a healthcare provider under the TMLA and that the service Caroll was providing at the time of the accident was no more than a taxi company would have provided.

Umana also filed objections to Vinh's affidavit, asserting it is conclusory and does not establish Vinh had personal knowledge of the statements he made as facts. Additionally, Umana argued that Vinh had not been properly disclosed as a witness and was not qualified to testify regarding the treatment of TB.

Umana attached to his response a copy of Carroll's deposition, in which she discussed her job duties and the circumstances surrounding the accident, among other things. Umana also attached a copy of a City of Houston accident investigation report. In her deposition, Carroll testified that on the day of the accident, she was working for the City and giving Umana a ride home from the Sunnyside clinic. Carroll has a degree in food nutrition but does not have any medical training such as EMS or CPR training. She said, however, that she has been trained on how to give injections to TB patients, although it had been awhile since she had needed to do so. She stated her job title was City of Houston public health investigator, and her duties included locating TB patients, giving them their medication, and transporting them to and from a clinic if they needed transportation. She receives periodic, computer-based driver training—“every two years or something of that nature”—that covers safety related topics like seatbelt and mask use and “those kinds of things.” When she was first hired for the job, she was expected to use her own vehicle, but she was later provided a vehicle to drive. At the time of the accident, she was driving a van from the City's “fleet share.” She explained that she had probably given rides to no more than ten patients on the day of the accident. She picked up Umana from his apartment and drove him to the clinic and then picked him up from the clinic and drove him home. Carroll did not think Umana was using crutches that day, and she knew he was not in a wheelchair because, she said, “we don't transport wheelchairs.”

According to Carroll, the collision occurred when she was turning left into the driveway for Umana's apartments. Carroll stopped as she entered the driveway, probably because there was a gate that she needed to open with a code. At that point, the other driver drove into the side of Carroll's van. After the collision, Carroll called 911, and she, Umana, and the other driver were all taken to a hospital. Carroll received a citation for failure to yield the right-of-way and subsequently took a defensive driving course as a result. Carroll asserted that she believed the other driver was going too fast and that contributed to the accident. She acknowledged that her supervisor, Vinh, indicated the accident was preventable on a report form and counseled her regarding how to correct the issue. Carroll agreed that she could have pulled further into the driveway before stopping. Carroll hurt her back in the accident and missed a couple of days of work before returning to her duties.

The trial court sustained Umana's objections to Vinh's affidavit and denied the City's motion to dismiss. The City then filed this interlocutory appeal. As stated above, in its sole issue, the City contends the trial court erred in denying the motion to dismiss, which was based on Umana's failure to timely file an expert report.¹

Governing Law

Whether a claim constitutes an HCLC depends on the underlying nature of the claim rather than its label. Collin Creek Assisted Living Ctr., Inc. v. Faber, 671 S.W.3d 879, 885 (Tex. 2023). The analysis must begin by “carefully defin[ing] the universe of relevant facts.” Id. We identify the operative facts underlying the claim by considering the entire record rather than by simply examining the facts and legal theories described in the petition. See id. at 885–86. A claim is an HCLC as defined in the TMLA if (1) the defendant is a physician or health care provider; (2) the claim concerns “treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care”; and (3) the claimant contends the defendant's conduct proximately caused a claimant's injury or death. Lake Jackson Med. Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 840 (Tex. 2022) (quoting Tex. Civ. Prac. & Rem. Code § 74.001(a)(13)). In the present case, although Umana disputes that the City qualifies as a healthcare provider, we will assume for the purposes of our analysis that it does so qualify. See generally City of Hous. v. Houston, 608 S.W.3d 519, 525–26 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (concluding that, within the context of the case, the City constituted a health care provider under the TMLA). Additionally, it is clear that Umana contends Carroll's conduct caused his injuries. Our analysis therefore will focus on the second element. In regard to that element, the City contends that Umana alleges the City, through Carroll, violated accepted safety standards.

Unlike claims alleging violations of accepted standards of professional or administrative services “directly related to health care,” a “safety standards” case such as this requires only a “substantive nexus” between health care and the safety standards allegedly violated. Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496, 504 (Tex. 2015). The Ross court identified seven “non-exclusive considerations” that “lend themselves” to the analysis of whether such a substantive nexus exists, including:

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; and

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.²

In addition to the Ross factors, courts also consider whether testimony from a medical or health care expert would be necessary to prove or refute the applicable standard of care and its breach. See, e.g., Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 182 (Tex. 2012). As we have recently discussed, the need for such testimony may be dispositive in some cases in establishing a claim is an HCLC; however, the opposite is not true because a claim may be an HCLC even when no expert testimony is required. Fernil v. Bluebird Med. Enters., LLC, 714 S.W.3d 171, 179 & n.4 (Tex. App.—Houston [14th Dist.] 2024, pet. denied) (citing Tex. W. Oaks, among other cases).

The initial burden to prove a claim is an HCLC rests with the party seeking dismissal. See Nixon Home Care, Inc. v. Henry, 635 S.W.3d 466, 471 (Tex. App.—Houston [14th Dist.] 2021, no pet.). However, if a claim against a healthcare provider is “based on facts implicating the defendant's conduct during the course of a patient's care, treatment, or confinement,” a presumption arises that the claim is an HCLC. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019) (citing Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012)). The burden would then shift to the claimant to rebut the presumption. Id.

Appellate courts generally review a trial court's ruling on a motion to dismiss under section 74.351 for an abuse of discretion. Rosemond v. Al–Lahiq, 331 S.W.3d 764, 766 (Tex. 2011). However, because our review involves a matter of statutory construction, the issue is a legal question we review de novo. Tex. W. Oaks, 371 S.W.3d at 177. Accordingly, in determining whether Umana's allegations constitute an HCLC governed by the TMLA, we apply a de novo standard of review. Id.; see also Nixon Home Care, 635 S.W.3d at 471 (“[W]e review de novo whether a particular claim constitutes a health care liability claim.”).

HCLC Presumption

The City first contends that the HCLC presumption applies under the facts of this case. As discussed above, the rebuttable presumption applies if Umana's claims implicate the City's conduct during the course of a patient's care, treatment, or confinement. See Weems, 575 S.W.3d at 363; Loaisiga, 379 S.W.3d at 256. The City does not assert Umana was receiving care or treatment during the van ride home; instead, it argues the presumption applies because Umana was confined in the van at the time of the accident. Beyond pointing out that Umana was given a ride home in a City-owned vehicle, however, the City offers no analysis or citation in support of its assertion that a van ride constitutes confinement as used in the TMLA context. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”); Rogers v. City of Hous., 627 S.W.3d 777, 787 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (declining to create argument on behalf of appellant). However, as discussed below, whether we assume the van ride home constituted a confinement under the TMLA and the HCLC presumption therefore applies or not, the record demonstrates that Umana's claim is not an HCLC.

Ross and Other Considerations

We now consider the seven “non-exclusive” factors that the Ross court identified as relevant in determining whether a substantive nexus exists between health care and the safety standards allegedly violated. We also examine whether testimony from a medical or healthcare expert would be necessary to prove or refute the applicable standard of care and its breach. Ross, 462 S.W.3d at 504–05; see also Fernil, 714 S.W.3d at 179 & n.4. We begin by noting that in its briefing, the City does not offer an analysis of each of the Ross factors but instead groups Umana's arguments based on the Ross factors into three categories of arguments and then attempts to refute those arguments. We will explicitly or implicitly address each of the City's contentions, but we will do so in the context of the Ross factors. We conclude that none of the Ross factors support the conclusion that Umana has asserted an HCLC.

1. Did the alleged negligence occur in the course of performing tasks with the purpose of protecting patients from harm?

Carroll's alleged negligence related to how she performed the task of driving Umana home. The purpose of the task Carroll was performing was to get Umana home. Certainly, as any driver would be expected to do, Carroll was expected to operate the van in a safe manner—for herself, Umana, and other drivers and pedestrians—but the purpose was just to provide a ride home. It was not to protect Umana from harm. It was a matter of convenience for the patient and, of course, was done to ensure the patient went to his appointment if he was otherwise unable to find transportation.

In that regard, the facts in this case contrast sharply with those we addressed in Fernil, where we held the emergency medical transport of a patient in an ambulance satisfied the first Ross factor “because ‘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.’ ” 714 S.W.3d at 184 (quoting L'Amber-Hope v. Stewart, No. 02-22-00441-CV, 2023 WL 3251014, at *5 (Tex. App.—Fort Worth May 4, 2023, no pet.) (mem. op.)). We also noted in Fernil that a physician's “memorandum of transfer” listed expected benefits to the patient's condition from the transport. Id. There is no similar evidence in the present case. The purpose of the van ride was not to protect Umana from harm; it was to get him home.

2. Did the injuries occur in a place where patients might be during the time they were receiving care, so the obligation to protect persons who require special, medical care was implicated?

Umana was injured while in the back seat of a standard passenger van from the City's “fleet share.” Cf. id. at 185 (noting second factor was not implicated because plaintiff was in driver's seat of their own vehicle when hit by an ambulance). While the City points out that it regularly facilitates treatment for TB patients by giving them van rides to and from appointments, there is no evidence that Umana, or any other patient, receives health or medical care while in the van. See Ross, 462 S.W.3d at 505 (noting area of hospital where claimant fell was not “one where patients might be during their treatment”). The City also suggests that protocols for infectious disease control were implicated by the van ride, citing only Vinh's statement in his affidavit that “[i]f a patient is positive, we ensure that the driver and patient both wear masks to prevent transmission of TB.” But, there is no evidence in the record that Umana or Carroll were wearing masks at the time of the van ride. Moreover, to the extent the City intends to suggest that simply wearing masks could convert the Dodge Caravan into a place where patients receive care, it does not cite any support for that proposition. The City's additional arguments that may be relevant to this consideration are discussed in the next section.

3 & 4. At the time of injury, was the claimant in the process of seeking or receiving health care, or providing or assisting in providing health care?

As we did in Fernil, we will address the third and fourth factors together as they will almost always be mutually exclusive. 714 S.W.3d at 185. Certainly, there is no suggestion here that Umana was providing or assisting in providing healthcare at the time of the accident. Instead, the parties dispute whether Umana was “in the process of seeking or receiving health care” at the time of his alleged injuries.

The City points out that transportation can be a key part of the provision of healthcare. While this is undoubtedly true, the record here does not support the contention that Carroll giving Umana a ride home was part of the process of Umana seeking or receiving healthcare, certainly not in a way that would create a “substantive nexus” between health care and the traffic laws Carroll allegedly violated. See Ross, 462 S.W.3d at 504. As discussed above, at the time of the ride home, Umana had completed his clinic visit and been released, and was being given a courtesy ride home, apparently because he did not have another way to get there. Had Umana been able to get a ride home on a bus or from an Uber, relative, or neighbor, Umana would not have needed a ride home from the City.

The cases the City cites in support of its assertion that transportation can constitute healthcare actually help illustrate the point that more is required than a simple ride home from a clinic visit. See Collin Creek, 671 S.W.3d at 884, 892 (resident of assisted living facility, whose service plan required assistance with ambulating, was allegedly injured when the walker an employee was pushing her on tipped over outside the entrance to the facility); Houston, 608 S.W.3d at 522–23, 529 (plaintiff was allegedly injured when EMTs responding to an emergency alert at her home allegedly dropped her from a gurney while moving her to an ambulance); Taton v. Taylor, No. 02-18-00373-CV, 2019 WL 2635568, at *1 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem. op.) (heart surgery patient was allegedly injured when thrown from wheelchair during transport to recovery center because employee failed to properly strap her chair into wheelchair accessible van); Pruski v. Am. Med. Response, Inc., No. 03-17-00717-CV, 2018 WL 6056936, at *1 (Tex. App.—Austin Nov. 20, 2018, pet. denied) (mem. op.) (patient being transported from a hospital to a medical center was allegedly injured when gurney overturned on way to ambulance—plaintiff did not contest claim was an HCLC); Bain v. Cap. Senior Living Corp., No. 05-14-00255-CV, 2015 WL 3958714, at *1 (Tex. App.—Dallas June 30, 2015, pet. denied) (mem. op.) (assisted living facility resident was allegedly injured while being transported to doctor's appointment when employee failed to properly secure resident in wheelchair in van); Sherman v. HealthSouth Specialty Hosp., Inc., 397 S.W.3d 869, 871 (Tex. App.—Dallas 2013, pet. denied) (in case predating Ross, patient was allegedly injured during ride home from medical appointment because employee failed to properly secure her wheelchair in van).

The City does not cite, and we have not uncovered, any cases involving a simple ride home from a medical appointment that did not also involve a failure to properly secure a wheelchair. As discussed, there is no evidence in this case that Umana needed a wheelchair or medical attention on the ride home, or that the reason he needed a ride was due to medical concerns, as opposed to finances, distance from public transportation, or the lack of a vehicle or a friend, neighbor, or relative to give him a ride. In other words, this case did not involve patient transport in the same way as the cases the City cites.

The City also cites Coming Attractions Bridal & Formal, Inc. v. Texas Health Resources in support of its suggestion that it does not matter for purposes of the analysis that Umana's appointment had ended, and he had been released from his medical care or treatment at the time of his injuries. 595 S.W.3d 659 (Tex. 2020). The alleged negligence in Coming Attractions involved controlling the spread of a disease and whether the healthcare provider “unnecessarily exposed its nurses to the Ebola virus in an unsafe manner and failed to prevent or even warn the exposed nurses from interacting with the public.” Id. at 664–65. As the opinion points out, although some of the effects of the alleged negligence lasted until after the patient's care, the alleged negligence implicated safety standards directly related to the care and treatment of an infected patient. Id. at 665. In contrast, here, the alleged negligence and effects only occurred after Umana's care and treatment had concluded, and there is no substantive connection in this case between the alleged traffic violations Carroll committed and any care or treatment. Coming Attractions does not support the conclusion that a simple ride home from a medical appointment constitutes a part of “the process of seeking or receiving health care” for TMLA purposes.

5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider?

The alleged negligence in this case was the failure to yield the right-of-way to an oncoming car while making a lefthand turn in traffic. As indicated by the fact Carroll received a traffic citation for failing to yield the right-of-way, this alleged negligence violated general traffic laws. See Tex. Transp. Code § 545.152 (“To turn left ․ into [a] driveway, an operator shall yield the right-of-way to a vehicle that is approaching from the opposite direction and that is in the intersection or in such proximity to the intersection as to be an immediate hazard.”); see also Hulick v. City of Hous., No. 14-20-00424-CV, 2022 WL 288096, at *4 (Tex. App.—Houston [14th Dist.] Feb. 1, 2022, pet. denied) (mem. op.) (discussing alleged negligence based on failure to yield the right-of-way to oncoming traffic in attempting a left turn). The City suggests that Carroll's conduct also violated her professional duties, but the City does not identify any professional standards it believes she may have violated or cite any evidence in support of this conclusory assertion.

6. Was the instrumentality involved in the defendant's alleged negligence a type used in providing healthcare?

As we explained in Fernil, a key term in the formulation of the sixth factor is the word “type.” 714 S.W.3d at 185–87. The sixth factor does not ask whether the instrumentality in question was being used at the relevant time to provide healthcare, it simply asks whether it is a “type” of instrumentality used in providing healthcare. Id. at 187 (“ ‘Type’ means ‘a category of people or things having common characteristics,’ so the inquiry is about this category of things.”) (quoting New Oxford American Dictionary 1872 (3d ed. 2010)). We concluded the sixth factor was satisfied in Fernil “because an ambulance ‘was involved in [each] defendant's alleged negligence’ and an ambulance is an instrumentality of ‘a type used in the providing of health care.’ ” Id. (quoting Ross, 462 S.W.3d at 505).

In the present case, there is no suggestion the van in question was anything other than a regular Dodge Caravan from the City's “fleet share.” There also was no evidence that standard passenger vans such as the one in this case are of a type of instrumentality used in providing healthcare. Although the City points out that it routinely gave rides to TB patients in such vans, that fact alone does not convert standard passenger vans into a type of instrumentality used in providing healthcare. Just like the answer for ambulances must be “yes” for the sixth Ross factor, the answer for standard passenger vans must be “no.” See id. (“ ‘Is an ambulance a type of instrumentality used in providing health care?’ The answer is yes.”). Accordingly, the sixth factor does not support the conclusion that Umana's claim was an HCLC.

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?

Again, the alleged negligence in this case stems from the alleged failure to follow general “rules of the road,” see Texas Transportation Code section 545.152 and Hulick, 2022 WL 288096, at *4, and not from failure to follow any governmental or agency safety requirements for healthcare providers. The City does not identify any such safety standards or evidence indicating otherwise.

 Expert testimony not necessary.

As stated above, in addition to the Ross factors, courts also consider whether testimony from a medical or healthcare expert would be necessary to prove or refute the applicable standard of care and its breach. See Tex. W. Oaks, 371 S.W.3d at 182; Fernil, 714 S.W.3d at 179 & n.4. In this case, neither expert medical nor expert healthcare testimony will be necessary, or even relevant, to the issues of negligence presented. Cf. Fernil, 714 S.W.3d at 183–84 (holding expert testimony would be required, or at least relevant, on negligence issues relating to an EMT's driving of an ambulance during an emergency patient transport).

Conclusion

The analysis of the Ross factors does not support the conclusion that a substantive nexus exists between the safety standards Carroll allegedly violated and the provision of health care, and neither expert medical nor expert healthcare testimony will be necessary to prove or refute the applicable standard of care and its breach. The record mandates the conclusion that Umana's claim is not an HCLC. 462 S.W.3d at 504; see also Fernil, 714 S.W.3d at 179 & n.4. Accordingly, the trial court did not err in denying the City's motion to dismiss, and we overrule the City's sole appellate issue.

We affirm the trial court's order denying the City's motion to dismiss.

FOOTNOTES

1.   As a part of its single issue, the City also argues that the trial court either erred in excluding Vinh's affidavit or actually considered the affidavit despite sustaining objections to it. In our review, we assume the trial court considered the affidavit; we therefore do not address the objections thereto.

2.   Although, as noted, the court in Ross referred to seven “non-exclusive considerations” that “lend themselves” to the analysis, the court in subsequent opinions has referred to the seven items as “factors” and even a “test.” See, e.g., Collin Creek, 671 S.W.3d at 887 (“seven-factor test”), 888–89 (“the Ross factors”).

Maritza M. Antú, Justice