April showers bring en banc opinions

Continuing the shower of spring en banc opinions from the Fifth Court, an eight-justice majority concluded that any “substantive nexus” between the relevant safety standards and health care was too attenuated to implicate the Texas Medical Liability Act on the following facts: “On May 25, 2014, Faber went to pick her mother up at Dayspring [Assisted Living Community] to take her to a hair styling appointment. Faber parked in Dayspring’s parking lot and asked a Dayspring employee to help Millie to the car. Millie, who had become a Dayspring resident only a week earlier, used a rolling walker and sat on it facing backwards as the Dayspring employee pushed her along the public sidewalk outside Dayspring’s entrance. Millie’s walker got caught in a large crack in the sidewalk, causing her to fall and hit her head on the concrete.” 

A 5-justice dissent saw otherwise: “The facts that form the basis of Faber’s suit show that Smith did not simply trip over a crack in the sidewalk. Instead, she fell because a staff member of the health care institution in which she resided pushed her over a crack in the sidewalk while she was seated in a wheeled walker causing her to fall. Because of this, Faber’s claim is inextricably intertwined with the conduct of, and duties owed by, Collin Creek as a health care provider.”  Faber v. Collin Creek Assisted Living Center, No. 05-18-00827-CV (May 3, 2021).