Opinion issued September 22, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-25-00220-CV
MEMORIAL HERMANN HEALTH SYSTEM D/B/A MEMORIAL
HERMANN-TEXAS MEDICAL CENTER, Appellant
V.
EVA FREEMAN, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Case No. 2024-37304
MEMORANDUM OPINION
Appellant Memorial Hermann Health System d/b/a Memorial Hermann–
Texas Medical Center (the Hospital) appeals the trial court’s order denying a
motion to dismiss under the Texas Medical Liability Act (TMLA). We affirm.
Background
Appellee Eva Freeman alleges that, in December 2023, she “visited a
medical facility owned by [the Hospital],” and, “[w]hile [she] was on the premises
attending a scheduled appointment with her health care provider, she attempted to
sit in a rolling chair which suddenly and without warning rolled out from under her
causing her to fall to the floor.” Freeman’s petition does not provide further
information about where or how the incident occurred.
The Hospital generally denied Freeman’s allegations. If Freeman’s claim is
a health care liability claim (HCLC), she was required to serve an expert report by
October 25, 2024, the 120th day after the Hospital’s answer. See TEX. CIV. PRAC.
& REM. CODE § 74.351(a). On October 10, 2024, Freeman served an expert report
by the orthopedic surgeon treating her for the injuries she suffered during her fall
at the Hospital. According to this first report, Freeman “injured her right shoulder
in a fall at a hospital while at a seminar.”
The Hospital filed a TMLA motion to dismiss, arguing the first report is
deficient. The Hospital set its motion for submission. Freeman did not file a
response but requested an oral hearing. The trial court did not take any action on
this motion or on Freeman’s request for a hearing.
On December 11, 2024, Freeman served an untimely amended expert report
authored by the same orthopedic surgeon. In the amended report, the surgeon
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states it is his “professional opinion that the provider’s inclusion of a rolling chair
in their lobby was the proximate cause of Ms. Freeman’s right shoulder injury.”
The Hospital again moved to dismiss with the same arguments made in its
initial motion and also asserting that the amended report was untimely and could
not be considered. The Hospital set this motion for submission, and, again,
Freeman did not file a response. The trial court denied the motion. The Hospital
now appeals. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9).
Analysis
The Hospital contends the trial court abused its discretion by denying the
motion to dismiss. Freeman disagrees, arguing her claim is not an HCLC and thus
the TMLA does not apply.1
A. Standard of review and relevant law
We review a trial court’s ruling on a motion to dismiss an HCLC based on
the adequacy of the report for abuse of discretion. Bush v. Columbia Med. Cntr. of
Arlington Subsidiary, L.P., 714 S.W.3d 536, 544 (Tex. 2025). But “[w]hether a
1
Relying on Rule 33.1, the Hospital argues Freeman failed to preserve her appellate
argument that her claim is not an HCLC. But Rule 33.1 requires a party to
preserve error by presenting an argument to the trial court “[a]s a prerequisite to
presenting a complaint for appellate review.” TEX. R. APP. P. 33.1(a)(1). Freeman
is not “presenting a complaint for appellate review” but is defending the trial
court’s ruling. Therefore, Rule 33.1’s preservation requirement is inapplicable
here. See In re G.X.H., 627 S.W.3d 288, 295 (Tex. 2021); see also Najar v. State,
618 S.W.3d 366, 373 (Tex. Crim. App. 2021) (“An appellant must object and
preserve error, but not an appellee.”).
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claim is [an HCLC] under the [TMLA] is a question of law we review de novo.”
Baylor Scott & White, Hillcrest Med. Cntr. v. Weems, 575 S.W.3d 357, 363 (Tex.
2019). To answer that question, we must focus on the claim’s underlying nature
rather than its label and consider the entire record, including the pleadings, motions
and responses, and relevant evidence properly admitted. Lake Jackson Med. Spa,
Ltd. v. Gaytan, 640 S.W.3d 830, 836 (Tex. 2022) (citing Weems, 575 S.W.3d at
363); Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012)). The party moving for
dismissal bears the burden to prove the claim is an HCLC. Belmont Vill. Hunters
Creek TRS, LLC v. Marshall, 634 S.W.3d 115, 121 (Tex. App.—Houston [1st
Dist.] 2020, pet. denied).2 If the record does not affirmatively show that the
plaintiff’s claim is an HCLC, the statutory expert-report requirements do not apply.
Id. at 122.
The TMLA defines an HCLC 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,
2
When a claim is based on facts implicating a health care 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. See Weems, 575 S.W.3d
at 363. This presumption does not arise here because Freeman does not allege
facts implicating the Hospital’s conduct during her care, treatment, or
confinement. See Valdes v. Shields, 607 S.W.3d 900, 906 (Tex. App.—Houston
[14th Dist.] 2020, no pet.). Hence, the Hospital has the burden to prove Freeman’s
claim is an HCLC. See id.
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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).
Based on the record, we will review whether Freeman’s claim is an HCLC
under the safety-standards category of section 74.001(a)(13). The Supreme Court
set forth the framework for evaluating safety claims in Ross v. St. Luke’s Episcopal
Hospital, 462 S.W.3d 496 (Tex. 2015). We have previously identified four “key
holdings” from Ross that inform our analysis of whether a safety-standards claim
qualifies as an HCLC. Village Green Alzheimer’s Care Home, LLC v. Graves, 650
S.W.3d 608, 615 (Tex. App.—Houston [1st Dist.] 2021, pet. denied). First, “the
mere fact that an injury occurs in a health care setting, without more, will not cause
a claim to be [an HCLC].” Id. (citing Ross, 462 S.W.3d at 503).
Second, the safety standards allegedly violated must have a substantive
nexus with the provision of medical or health care, which “requires [the] health
care provider to identify particular safety standards and the court to analyze their
connection to the provision of health care.” Id. (citing Ross, 462 S.W.3d at 504).
Third, the “level of connection . . . between a violation of an identified
safety standard and the provision of health care” must be “‘more than a “but for”
relationship.’” Id. (quoting Ross, 462 S.W.3d at 504). The “‘pivotal issue . . . is
whether the standards on which the claim is based implicate the defendant’s duties
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as a health care provider, including its duties to provide for patient safety.’” Id.
(quoting Ross, 462 S.W.3d at 505) (emphasis in original).
And fourth, Ross set out seven non-exclusive factors for courts to consider in
evaluating whether a safety-standards claim is 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; 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. at 615–16 (quoting Ross, 462 S.W.3d at 505).
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B. Freeman’s claim is not an HCLC
The Hospital has not established that Freeman’s claim is an HCLC.
Freeman alleges the Hospital breached safety standards to “maintain [its] business
free of any hazards or dangerous conditions,” to “provide [her] a safe
environment,” to “warn [her] of an unreasonably dangerous condition on the
premises,” to “provide [her] with safe fixtures while on the premises,” to “properly
instruct [her] on the possibility of a dangerous condition on the premises,” and to
“provide [her] an opportunity to safely attend her appointment.” But these
implicate the Hospital’s duties as a premises owner, and the Hospital does not
contend any of them relates specifically to its provision of health care. See
Houston Methodist Willowbrook Hosp. v. Ramirez, 539 S.W.3d 495, 499 (Tex.
App.—Houston [1st Dist.] 2017, no pet.) (“The relevant duties lack a substantive
nexus with providing health care because they are owed by any business premises
owner to those lawfully entering the property—they are not unique to health care
providers.”).
Instead, the Hospital contends Freeman’s fall had a relationship to the
provision of health care because she alleged she fell while at the Hospital’s
“premises attending a scheduled appointment with her health care provider.” But
Freeman does not provide further allegations about where or how the incident
occurred, such as whether it happened in the lobby while she was waiting to be
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seen or in an exam room while being seen.3 Being on a health care facility’s
premises at the time of an accident does not, by itself, turn the resulting claim into
an HCLC. Ross, 462 S.W.3d at 503; see also Galvan v. Memorial Hermann Hosp.
Sys., 476 S.W.3d 429, 429–30, 431–32 (Tex. 2015) (visitor who slipped on water
while walking from pharmacy to patient’s room did not make HCLC); Reddic v.
East Tex. Med. Cntr. Regional Health Care Sys., 474 S.W.3d 672–73, 675 (Tex.
2015) (visitor who slipped and fell on floor mat in hospital’s lobby did not make
HCLC); Ramirez, 539 S.W.3d at 499–500 (patient who slipped on floor while
walking to hospital’s radiology department did not make HCLC). “It is simply not
enough for [the health care provider] to point to a general duty to provide a safe
environment to turn every act or failure to act within its premises into [an HCLC].”
Graves, 650 S.W.3d at 618.
Although Ross factors one and three may slightly weigh in favor of
Freeman’s claim being an HCLC because the Hospital’s alleged negligence in
failing to correct or warn about a rolling chair relates to protecting patients from
harm—as well as everyone else using the chair—and Freeman’s injury occurred
while she was in the process of seeking health care, the rest of relevant factors
weigh against such a holding. Without knowing where the accident occurred, the
3
We note Freeman’s amended report states that she fell while attempting to sit in a
“rolling chair in [the Hospital’s] lobby.” Because of our disposition, we need not
determine whether we can consider this untimely report for purposes of analyzing
whether Freeman brought an HCLC.
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record does not affirmatively demonstrate that Freeman was in a place where
patients might be when they were receiving care or that the chair was an
instrumentality used in providing health care. And nothing suggests the Hospital’s
alleged negligence was based on its failing to comply with any safety standards
arising from its professional duties or any governmental or accrediting-agency
requirements. On balance, the Hospital did not meet its burden of establishing that
the Ross factors compel the conclusion that Freeman’s accident is substantively
related to the Hospital’s provision of health care. See Ramirez, 539 S.W.3d at 501;
see also Harris Cnty. Hosp. Dist. v. McNew, No. 14-18-00868-CV, 2020 WL
950089, at *5 (Tex. App.—Houston [14th Dist.] Feb. 27, 2020, no pet.) (mem. op.)
(“As our analyses of the Ross factors show, the Hospital did not carry this
burden.”). We overrule the Hospital’s sole issue.
Conclusion
We affirm the trial court’s order denying the Hospital’s motion to dismiss.
Andrew Johnson
Justice
Panel consists of Chief Justice Adams and Justices Guiney and Johnson.
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