Chief Justice Tom Gray
Over the dissent of Chief Justice Gray, the Waco Court of Appeals has affirmed a trial court order denying a Chapter 74 motion to dismiss on the basis that plaintiff’s claims were not health care liability claims.
Spencer Canter and American Medical Response, Inc. v. Zaida Soto Toca, (No. 10-22-00166-CV) arose from an accident in which an ambulance rear-ended the plaintiff’s vehicle while she was stopped at a traffic light. Canter, the ambulance driver, was transporting a patient when he entered a lane of oncoming traffic and struck the plaintiff’s vehicle. The plaintiff asserted claims for negligence, negligence per se, and vicarious liability. The defendants moved to dismiss the lawsuit under Chapter 74, CPRC, for failure to serve an expert report. The trial court denied the motion, and defendants filed an interlocutory appeal.
The court of appeals affirmed but split over the proper application of Ross v. St. Luke’s Episcopal Hosp. 462 S.W. 3d 496 (Tex. 2015). Ross established a test for determining whether a claim against a health care provider alleging a breach of safety standards constitutes a health care liability claim under Chapter 74. Factors the court must consider include: (1) whether the defendant’s negligence occurred in the course of the defendant performing task with the purpose of protecting patients from harm; (2) whether the injuries occurred in a place where patients might be during the time they were receiving care; (3) at the time of the injury was the claimant seeking or receiving health care or providing or assisting in providing health care; (4) whether the alleged negligence was based on safety standards arising from professional duties owed by the provider; (5) if an instrumentality was involved in the defendant’s alleged negligence, whether it was of a type used in performing health care; or (7) whether the alleged negligence occurred in the course of the defendant’s taking or failing to take action necessary to comply with safety-related requirements set for health care providers by governmental or accrediting agencies.
The majority focused much of its analysis on the fact that the plaintiff was not a patient but merely a driver on the road. Citing authority holding that just because an ambulance was involved an accident did not transform an ordinary negligence claim into a Chapter 74 HCLC, the majority observed that the plaintiff did not receive care in the ambulance and that the “essence of the cause of action” was one of ordinary negligence. Relying heavily on Coci v. Dower, 585 S.W.3d 652 (Tex.App.—Eastland 2019, pet. denied), the majority concluded that “the legal duties allegedly violated in this case apply to every driver on the road and are not unique to a health care provider driving an ambulance. Therefore, we cannot say that appellants have met their burden in showing a substantive nexus between the safety standards allegedly violated and the provision of health care.”
Chief Justice Gray dissented in a note rather than a formal opinion. He pointed out that Canter was not an ordinary driver and that driving an ambulance during patient transport (with its lights and sirens on, as in this case) requires a “specialized standard of care” applying to ambulance drivers. Justice Gray would have answered “yes” to most of the Ross factors and held that the plaintiff’s claim was covered by Chapter 74. “We should not write around the statute to what we think would have been a better one,” he noted. “To meet the requirements of the statute, Mrs. Toca merely had to file an expert report which set out the standard of care, the breach, and the causation.”
We find Chief Justice Gray’s analysis persuasive. The operation of an ambulance is a regulated activity requiring training and certification as an EMT. The training presumably includes the conditions under which the ambulance should deviate from ordinary traffic laws in order to transport a patient in urgent need of care. There is evidence that the driver in this case was doing just that when the accident occurred. It seems to us that the majority should have at least taken that into account and conducted a more thorough Ross analysis.
