Shannon Medical Center v. Michael Sickels and James Christopher Cole

ACCEPTED
15-25-00167-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
11/26/2025 8:28 PM
No. 15-25-00167-CV CHRISTOPHER A. PRINE
CLERK

In the Fifteenth Court of Appeals FILED IN
15th COURT OF APPEALS
AUSTIN, TEXAS
11/26/2025 8:28:49 PM
CHRISTOPHER A. PRINE
Shannon Medical Center, Clerk
Appellant,

v.

Michael Sickels and James Christopher Cole,
Appellees.

On Appeal from the 51st Judicial District Court,
Tom Green County, Texas; Hon. Carmen Dusek, Presiding;
Trial Court No. A250014C
Appellant’s Brief

David M. Walsh IV (Lead)
State Bar No. 00791874
dwalsh@kaktxlaw.com
Jeffery M. Kershaw
State Bar No. 24053279
jkershaw@katxlaw.com
Kershaw Anderson King, PLLC
12400 Coit Road, Suite 800, Dallas, Texas 75251
- and -
5113 Southwest Parkway, Suite 200, Austin, Texas 78735
(214) 347-4993—Phone (Dallas)
(512) 400-0334—Phone (Austin)
(214) 615-7361—Fax

Counsel for Shannon Medical Center

Oral Argument Requested
Identities of Parties and Counsel

1. Appellant Shannon Medical Center
Initially represented in the trial court by:

Michael L. Atchley
State Bar No. 01397600
matchley@popehardwicke.com
Pope, Hardwicke. Christie,
Schell, Kelly & Taplett, LLP
500 West 7th Street, Suite 600
Fort Worth, Texas 76102
(817) 332-3245—Phone

Currently represented in the trial court by:

Jeffery M. Kershaw
State Bar No. 11355020
jkershaw@kaktxlaw.com
David M. Walsh IV
State Bar No. 00791874
dwalsh@kaktxlaw.com
Jaqueline A. Cockrane
State Bar No. 24142790
jcochrane@kaktxlaw.com
Kershaw Anderson King, PLLC
12400 Coit Road, Suite 800
Dallas, Texas 75251
(214) 347-4993—Phone
(214) 615-7361—Fax

Represented in this Court by:

David M. Walsh IV (Lead)
State Bar No. 00791874
dwalsh@kaktxlaw.com
Jeffery M. Kershaw

2
State Bar No. 11355020
jkershaw@kaktxlaw.com
Ana P. Romano
State Bar No. 24150010
aromano@kaktxlaw.com
Jaqueline A. Cockrane
State Bar No. 24142790
jcochrane@kaktxlaw.com
Kershaw Anderson King, PLLC
12400 Coit Road, Suite 800
Dallas, Texas 75251
(214) 347-4993—Phone
(214) 615-7361—Fax

2. Appellees Michael Sickels and James Christopher Cole

Represented at the trial court by:

Jason K. Burress
State Bar No. 24036292
Kyle H. Dreyer
State Bar No. 06119500
Kyle R. Hejl
State Bar No. 24035578
Brian L. Mincher
State Bar No. 24052669
J. Bart Smith
State Bar No. 24029840
Rachel Hatten
State Bar No. 24101883
Josh A. Flippin
State Bar No. 24084429
Griffin J. Scheumack
State Bar No. 24097168
Burress Law, PLLC
6952 Mediterranean Drive
McKinney, Texas 75072
Tel: (214) 726-0016
3
Fax: (214) 865-7336
E-mail: legal@mytexasfirm.com

Represented at the appellate court by:

Matthew J. Kita
State Bar No. 24050883
matt@mattkita.com
3110 Webb Ave Ste 150
Dallas, TX 75205-3503

Kyle Dreyer
State Bar No. 06119500
legal@mytexasfirm.com
Josh A. Flippin
State Bar No. 24084429
legal@mytexasfirm.com
Burress Law, PLLC
6952 Mediterranean Drive
McKinney, Texas 75072

4
Table of Contents

Identities of Parties and Counsel 2

Index of Authorities 7

Statement of the Case 11

Statement Regarding Oral Argument 12

Issue Presented 12

Statement of Facts 17

Argument 23

A. Standard of Review 23

B. This Case Is a Health Care Liability Claim 24
Subject to the Requirements of Chapter 74 (Issue 1)

1. Sickels and Cole’s allegations satisfy the 29
elements of a health care liability claim.

a. Sickels and Cole are claimants who sued 29
a hospital

b. Sickels and Cole alleged departures from 33
safety standards that have a substantive
nexus to the provision of health care

c. Sickels and Cole allege that departures 48
from safety standards proximately caused
their injuries

2. Sickels and Cole’s artful pleading cannot 48
circumvent the requirements of Chapter 74

5
3. Sickels and Cole were not employees of 53
Shannon Medical Center (Issue 2)

C. Sickels and Cole Failed to Serve Shannon Medical 63
Center with a Chapter 74 Expert Report as Required
by Chapter 74 (Issue 3)

Conclusion and Prayer 72

Certificate of Compliance 75

Certificate of Service 75
Appendix
1. Order Denying Defendant’s Motion to Dismiss

2. Tex. Civ. Prac. & Rem. Code § 74.001

3. Tex. Civ. Prac. & Rem. Code § 74.351

4. Tex. Civ. Prac. & Rem. Code § 74.353

6
Index of Authorities
Cases:

Abshire v. Christus Health Se. Tex., 65
563 S.W.3d 219 (Tex. 2018)

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 23-24
46 S.W.3d 873 (Tex. 2001)

Badiga v. Lopez, 29, 64
274 S.W.3d 681 (Tex. 2009)

Baty v. Futrell, 29, 63, 65
543 S.W.3d 689 (Tex. 2018)

Baylor Scott & White Hillcrest Med. Ctr. v. Weems, 24, 29, 47
575 S.W.3d 357 (Tex. 2019)

Bowie Mem’l Hosp. v. Wright, 65
79 S.W.3d 48 (Tex. 2002)

Christus Health Gulf Coast v. Carswell, 30
505 S.W.3d 528 (Tex. 2016)

City of Alvin v. Fields, 45
No. 01-22-00572-CV, 2023 LX 54875
(Tex. App.—Houston [1st Dist.] June 15, 2023, no pet.)

Collin Creek Assisted Living Ctr., Inc. v. Faber, 24, 28, 35
671 S.W.3d 879 (Tex. 2023)

Coming Attractions Bridal & Formal, Inc. v. Texas Health Res., passim
595 S.W.3d 659 (Tex. 2020)

Constancio v. Shannon Med. Ctr., 32
No. 03-10-00134-CV, 2012 WL 1948345,
2012 Tex. App. Lexis 4339 (Tex. App.—Austin 2012,
no pet.)
7
Diversicare Gen. Partner, Inc. v. Rubio, 27, 49
185 S.W.3d 842 (Tex. 2005)

Drennan v. Community Health Inv. Corp., 54, 60
905 S.W.2d 811 (Tex. App.—Amarillo 1995)

Farlow v. Harris Methodist Fort Worth Hosp., 56
284 S.W.3d 903 (Tex. App.—Ft. Worth 2008)

Fernil v. Bluebird Med. Enters., LLC, 46
714 S.W.3d 171 (Tex. App.—Houston [14th Dist.] 2024,
pet. denied)

Garland Cmty. Hosp. v. Rose, 27, 49
156 S.W.3d 541 (Tex. 2004)

Garner v. Corpus Christi Nat’l Bank, 63
944 S.W.2d 469 (Tex. App.—Corpus Christi 1997, no writ)

Harris Cnty. Hosp. Dist. v. McNew, passim
No. 14-18-00868-CV
(Tex. App.—Houston [14th Dist.] Feb. 27, 2020, no pet.)

In re Allstate Indem. Co., 24
622 S.W.3d 870 (Tex. 2021)

Jelinek v. Casas, 29, 64, 66
328 S.W.3d 526 (Tex. 2010)

Lake Jackson Med. Spa, Ltd. v. Gaytan, 28, 46, 47
640 S.W.3d 830 (Tex. 2022)

Leibman v. Waldroup, 26-27
669 S.W.3d 20, 2025 Tex. Lexis 468 (Tex. 2025)

Limestone Products Distribution, Inc. v. McNamara, 57
71 S.W.3d 308 (Tex. 2002)
8
Loaisiga v. Cerda, 26, 27
379 S.W.3d 248 (Tex. 2012)

Omaha Health Care Center, LLC v. Johnson, 27
344 S.w.3D 392 (Tex. 2011)

Redinger v. Living, Inc., 56
689 S.W.2d 415 (Tex. 1985)

Renaissance Med. Found. v. Lugo, 53, 55
719 S.W.3d 505 (Tex. 2025)

Rogers v. Bagley, 26, 46
623 S.W.3d 343 (Tex. 2021)

Ross v. St. Luke's Episcopal Hosp., 34, 35, 36, 45
462 S.W.3d 496 (Tex. 2015)

Scoresby v. Santillan, 66
346 S.W.3d 546 (Tex. 2011)

St. Joseph Hosp. v. Wolff, 62
94 S.W.3d 513 (Tex. 2002)

Tenet Hosps. Ltd. v. Balderrrama, 72
705 S.W.3d 256 (Tex. App.—El Paso 2024)

Tex. W. Oaks Hosp., LP v. Williams, 28, 30, 36
371 S.W.3d 171 (Tex. 2012)

Wigley v. Shannon Med. Ctr., 32
No. 03-17-00086-CV, 2017 WL 5985501,
2017 Tex. App. Lexis 11177 (Tex. App.—Austin 2017,
no pet.)

Yamada v. Friend, 27, 49
335 S.W.3d 192 (Tex. 2010)
9
Statutes:

Tex. Civ. Prac. & Rem. Code § 74.001(a)(2) 29

Tex. Civ. Prac. & Rem. Code § 74.001(a)(10) 25

Tex. Civ. Prac. & Rem. Code § 74.001(a)(11) 26, 31

Tex. Civ. Prac. & Rem. Code § 74.001(a)(12)(A) 26

Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) passim

Tex. Civ. Prac. & Rem. Code. § 74.001(a)(19) 25

Tex. Civ. Prac. & Rem. Code § 74.351(a) 14, 28, 64, 70

Tex. Civ. Prac. & Rem. Code § 74.351(b) 29, 64, 73

Tex. Civ. Prac. & Rem. Code § 74.351(r)(6) 29, 64

Tex. Civ. Prac. & Rem. § 74.353 71

Tex. Health & Safety Code § 401.002(1) 51

Tex. Health & Safety Code § 401.002(4) 51

Tex. Occ. Code § 151.002(a)(13) 25

Miscellaneous:

Restatement (Second) of Torts § 414 (1965) 56

10
Statement of the Case

Nature of the Case: Radiologists Michael Sickels and James
Christopher Cole sued hospital Shannon Medical
Center, alleging it failed to properly monitor,
report, and restrict their exposure to radiation.
CR. 4-12. A third party, Shannon Clinic,
employed both radiologists to work at Shannon
Medical Center. CR. 119-123. The dispute here is
whether their claims are health care liability
claims. CR. 7-9; 45-77.

Course of the Sickels and Cole sued Shannon Medical. CR.4-12.
Proceedings: Shannon Medical Center generally denied their
allegations and, under Section 74.351 of the
Texas Civil Practice & Remedies Code, moved to
dismiss their health care liability claims for
failure to serve the statutorily required expert
report within 120 days of its answer. CR. 25-44.
Sickels and Cole responded claiming (1) Shannon
Medical Center, not Shannon Clinic, employed
them, exempting their claims from the definition
of a health care liability claim, (2) they did not
allege health care liability claims but violations of
the Texas Radiation Control Act and the Texas
Administrative Code, (3) they served reports that
satisfied the expert-report requirement. CR. 45-
306. Shannon Medical Center filed a reply in
support of its motion to dismiss explaining that it
did not employ Sickels and Cole. CR. 308-311. At
the hearing, the parties argued about whether
the claims were health care liability claims. RR.5-
59.

Trial Court’s After taking the issue under advisement, the trial
Disposition: court denied the dismissal motion. CR. 314-315.
This appeal followed.

11
Statement Regarding Oral Argument

Oral argument will substantially aid the Court’s decisional process.

It will allow the parties to further explain their positions regarding the

facts and the interplay of those facts with the health-care-liability-claim

definitions. That discussion will help the Court conclude that Sickels and

Cole’s claims are health care liability claims and should have been

dismissed with prejudice because they never served an expert report

within 120 days of Shannon Medical Center’s answer.

Issues Presented

Issue 1: Chapter 74’s broad definition of health care liability claim

creates a presumption that a claim is a health care liability claim if it is

against a physician or health care provider and implicates the

defendant’s conduct during a patient’s care or treatment. Sickels and

Cole sued Shannon Medical Center, a hospital, alleging it failed in its

duty to properly monitor, report, and restrict their exposure to radiation

while they treated patients. Considering the nature of their claims, did

they allege health care liability claims as defined by Chapter 74 of the

Texas Civil Practice & Remedies Code?

12
Issue 2: Control is the hallmark in determining whether a person

is employed by another. How could Shannon Medical Center be

considered Sickels and Cole’s employer when Shannon Clinic—a third

party—has employment contracts with Sickels and Cole, and their

evidence never proved that Shannon Medical Center controlled their

conduct in practicing medicine?

Issue 3: Because Sickels and Cole’s claims were health care liability

claims, Section 74.351 of the Texas Civil Practice & Remedies Code

mandated their service of an expert report within the statutory deadline

that explained the standard of care, the breach of the standard of care,

and proximate cause. While Sickels and Cole served (voluminous)

medical records on Shannon Medical Center, they never served an expert

report within the statutory deadline. Did the trial court reversibly err by

denying Shannon Medical Center’s dismissal motion?

13
Introduction

Two radiologists, Michael Sickels and James Christopher Cole,

sued Shannon Medical Center for negligence for its failure to properly

monitor, report, control, and restrict their exposure to ionizing radiation

that they used in treating patients. CR.4-10. As a licensed hospital,

Shannon Medical Center is a health care institution, making it a health

care provider. The radiologists’ claim that Shannon Medical Center failed

to meet its duty is a safety-related claim directly related to health care.

Their claims are health care liability claims.

As such, Section 74.351 required Sickels and Cole to serve an expert

report and curriculum vitae within the 120-day statutory period. Tex.

Civ. Prac. & Rem. Code § 74.351(a). Under the statute, their failure to do

so mandated dismissal of their claims with prejudice and a statutory

award of attorneys’ fees and court costs. The trial court reversibly erred

by denying Shannon Medical Center’s dismissal motion.

Sickels and Cole deny that their claims are health care liability

claims—using a variety of means to artfully plead around the statutory

requirements. Their arguments are without merit. First, their claims

satisfy the elements of a health care liability claim, proving that their

14
claims are health care liability claims. That is particularly true when

considering the presumption that applies to claims against a health care

provider during the treatment provided to a patient—exactly the genesis

of Sickels and Cole’s claims against Shannon Medical Center, i.e., that

they sustained too much radiation exposure while treating patients. The

Ross factors that guide whether a claim is a health care liability claim

weigh strongly in favor of it being a health care liability claim. Any

attempt by Sickels and Cole to evade the statutory requirements is

improper artful pleading.

Second, Sickels and Cole try to circumvent the statute by claiming

they were employees of Shannon Medical Center even though they have

employment contracts with a third party, Shannon Clinic, and Shannon

Medical Center’s interactions with these two radiologists did not amount

to controlling how they did their job. At best, those interactions are

nothing more than a cooperative arrangement between a hospital and

physicians on staff—the typical cooperative arrangement to provide

health care to patients—and did not amount to control. Thus, this case is

not within the health care statute’s exception for claims between

employers and employees. Because Sickels and Cole were not employees

15
of Shannon Medical Center, their claims were health care liability claims,

requiring dismissal because they served no expert report within the

statutory deadline.

Third, Sickels and Cole’s service of thousands of pages of medical

records could not satisfy the expert report requirement. None of the

medical records—alone or collectively—contained the information to

satisfy the elements of an expert report. And none of the pages amounted

to service of a curriculum vitae. Perhaps more importantly, Sickels and

Cole never served the medical records as though they were serving an

expert report. Because Sickels and Cole never served an expert report,

they could not receive a 30-day extension of the expert-report deadline.

The trial court had no option but to dismiss their claim with prejudice

and enter the statutory award of attorneys’ fees and court costs for failure

to serve an expert report. Instead of ruling as required by the statute, the

trial court reversibly erred by denying Shannon Medical Center’s

dismissal motion. This Court should reverse.

16
Statement of Facts

As with more interlocutory appeals, this appeal comes to the Court

with limited information—essentially just what Sickels and Cole have

alleged and the medical records they provided. Shannon Medical Center

does not agree that their characterization of the events is accurate and

specifically denies their allegations. But, at this interlocutory juncture

with limited discovery and a limited record, Shannon Medical Center

presents the following information to give the Court an understanding of

what the radiologists claim occurred. But to be clear, Shannon Medical

Center has denied Sickels and Cole’s allegations. CR.13, 16.

Radiologists Michael Sickels and James Christopher Cole sued

Shannon Medical Center, alleging that Shannon Medical Center failed to

meet its duty to properly monitor, report, and restrict their exposure to

radiation. CR.7-10. They claimed that, as a result, they received unsafe

levels of radiation while they worked. CR.7-10. Sickels and Cole

developed cancer in their upper extremities and underwent numerous

surgical procedures and amputations. CR.6-10. They urged that Shannon

Medical Center’s alleged failure to properly monitor, report, and restrict

exposure to radiation proximately caused these injuries. CR.4-12.

17
To be clear, Sickels and Cole disagree that their claims are health

care liability claims as defined by Section 74.001(a)(13). CR.45-77. But

their claims turn on the idea that Shannon Medical Center, a healthcare

provider, departed from “accepted standards … of safety or professional

or administrative services directly related to health care,” by allegedly

failing to properly monitor, report, and restrict their exposure to

radiation while they worked, which are health care liability claims. CR.6-

8. That triggered their obligation to serve an expert report and

curriculum vitae under Chapter 74 of the Texas Civil Practice &

Remedies Code.

Sickels and Cole never served Shannon Medical Center with the

statutorily required expert report. Thus, after the expiration of the 120-

day period, Shannon Medical Center moved to dismiss their claims under

Section 74.351 of the Texas Civil Practice & Remedies Code. CR.25-43.

The radiologists responded, asserting that their claims were not

health care liability claims. Firstly because, according to them, their

allegations arose from under the Texas Radiation Control Act and the

Texas Administrative Code’s Radiation Control chapter, not the Texas

Medical Liability Act. CR.45-77. But such allegations—even under those

18
standards—allege departures from safety directly related to the health

care. RR.17. Second, despite their employment contracts with Shannon

Clinic, they also alleged that Shannon Medical Center employed them,

and that the Act did not apply to their claims as a result. CR.46-51. But

Shannon Medical Center never exercised control over them in an

employment relationship, rather, Shannon Clinic employed them to work

as radiologists at Shannon Medical Center. CR.119-123;308-311. Third,

they claimed to have served an expert report under the statute by

providing medical records regarding the radiologists’ conditions. CR.72-

76. But no record sets forth the required elements of an expert report.

RR.19-21.

At the hearing on the dismissal motion, the parties emphasized

these positions. RR.5-59. The trial court took the matter under

advisement. RR.58-59. Shortly thereafter, the trial court denied Shannon

Medical Center’s dismissal motion. CR.314. This appeal followed.

CR.316-317.

Summary of the Argument

While there are different issues in this case, the main question—

around which they all center—is whether Sickels and Cole’s claims are

19
health care liability claims and subject to the requirements of Chapter

74 of the Texas Civil Practice & Remedies Code. Appellate courts review

this question de novo, affording no discretion to the trial court. Here, the

importance of this question is significant because, if the claims are health

care liability claims, Sickels and Cole failed to comply with Chapter 74’s

expert-report requirement. And the trial court reversibly erred by not

dismissing their claims with prejudice and awarding statutory remedies.

A health care liability claim has three elements: (1) a physician or

health care provider must be a defendant; (2) the claim must concern

treatment, lack of treatment, or a departure from accepted standards of

medical or health care, or safety or professional or administrative

services directly related to health care; and (3) the defendant’s act or

omission complained of must proximately cause the alleged injury.

Courts focus on the essence and underlying nature of the claim in

answering this question, not the artful manner in which a claimant may

try to plead the case to avoid the statutory requirement. If a claim is a

health care liability claim, a claimant must serve a preliminary expert

report within 120 days of the defendant filing their answer. When a

claimant fails to serve an expert report by the deadline, the statute

20
mandates the claim’s dismissal and entry of an award of attorney’s fees

and court costs incurred by the defendant.

This case satisfies the three elements for it to be a health care

liability claim—regardless of the specific manner in which Sickels and

Cole framed it. First, Sickels and Cole are claimants who sued Shannon

Medical Center, a hospital. Second, Sickels and Cole allege that Shannon

Medical Center departed from safety standards that have a substantial

nexus to health care. Evaluating the seven Ross factors that help courts

determine if a sufficient relationship to health care exists proves that this

case is a health care liability claim. Six of the seven Ross factors weigh

in favor of that conclusion, especially when viewed from the perspective

that patients will be in harm’s way if Sickels and Cole’s allegations are

true. As for the third element, Sickels and Cole alleged Shannon Medical

Center’s safety failures proximately caused their injuries. In short, this

case meets the elements of a health care liability claim.

And Sickels and Cole need expert testimony to prove their claims.

The subject matter of their claims—alleged overexposure to radiation

while treating patients—is highly specialized area of knowledge that falls

outside an ordinary layperson’s understanding. Where expert testimony

21
is needed to prove or refute a claim, that is a substantial consideration—

frequently decisive—in determining whether it is a health care liability

claim.

Sickels and Cole’s claims are not exempt from the definition of a

health care liability claim because Shannon Medical Center did not

employ them they are, at best, independent contractors who have staff

privileges at the hospital. In fact, Sickels and Cole have employment

contracts with another party, Shannon Clinic, which employed them as

full-time employees. No evidence established that Shannon Medical

Center controlled the details by which Sickels and Cole performed their

work as radiologists. Nothing negates their employment agreements

with Shannon Clinic or usurps the control of Shannon Clinic as their

employer.

Because their claims were health care liability claims, Sickels and

Cole had to serve an expert report and curriculum vitae within 120 days

of Shannon Medical Center’s answer. They failed to do that. While they

submitted over 3,700 pages of medical records containing physician notes

on their alleged condition related to radiation overexposure, those

records provide no opinions on the applicable standard of care, Shannon

22
Medical Center’s purported breach of any standard of care, or any

explanation of how that breach proximately caused Sickels’s and Cole’s

alleged injuries. Because they served no expert report and curriculum

vitae and because the medical records did not satisfy Chapter 74’s expert-

report requirement, Sickels and Cole failed to comply with the statute,

mandating dismissal and an award of statutory remedies.

In sum, Sickels and Cole alleged health care liability claims,

requiring service of an expert report and curriculum vitae within

statutory deadline. They did not. That failure mandated the trial court’s

dismissal of their claims with prejudice and an award of statutory

remedies. The trial court reversibly ruled by denying Shannon Medical

Center’s dismissal motion. This Court should reverse, render judgment

dismissing the case with prejudice, and remand the case to the trial court

for entry of an award of the statutory remedies.

Argument

A. Standard of Review

Generally, appellate courts review denial of Section 74.351

dismissal motions for an abuse of discretion. Am. Transitional Care Ctrs.

23
of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). But whether a

claim is a health care liability claim is a legal question that appellate

courts review de novo. Collin Creek Assisted Living Ctr., Inc. v. Faber,

671 S.W.3d 879, 885 (Tex. 2023); Baylor Scott & White Hillcrest Med. Ctr.

v. Weems, 575 S.W.3d 357, 363 (Tex. 2019). Even under an abuse-of-

discretion standard, trial courts have “no discretion in determining what

the law is or applying the law to the facts.” In re Allstate Indem. Co., 622

S.W.3d 870, 875-876 (Tex. 2021). Thus, in applying the definition of a

health care liability claim to the allegations to determine if a claim is a

health care liability claim would be an issue over which the trial court

has no discretion. Under either scenario, the standard of review affords

no discretion to the trial court.

B. This Case Is a Health Care Liability Claim Subject to the
Requirements of Chapter 74 (Issue 1)

Chapter 74 of the Texas Civil Practice & Remedies Code defines a

“health care liability claim” 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, health
care, or safety or professional or administrative services
directly related to health care, which proximately results
in injury to or death of a claimant, whether the claimant’s
cause of action sounds in tort or contract.

24
Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). Chapter 74 also defines

“health care” as “any act or treatment performed or furnished or that

should have been performed or furnished, by any health care provider

for, to, or on behalf of a patient during the patient’s medical care,

treatment, or confinement.” Tex. Civ. Prac. & Rem. Code § 74.001(a)(10).

And Chapter 74 defines medical care as “any act defined as practicing

medicine under Section 151.002, Occupations Code, performed or

furnished, or which should have been performed, by one licensed to

practice medicine in this state for, to, or on behalf of a patient during the

patient’s care, treatment, or confinement.” Tex. Civ. Prac. & Rem. Code.

§ 74.001(a)(19). The Texas Occupations Code defines “practicing

medicine” as “the diagnosis, treatment, or offer to treat a mental or

physical disease or disorder or a physical deformity or injury by any

system or method, or the attempt to effect cures of those conditions….”

Tex. Occ. Code § 151.002(a)(13).

Based on these definitions, a health care liability claim has three

elements: (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 or health care, or safety or professional or
25
administrative services directly related to health care; and (3) the

defendant’s complained-of conduct proximately caused the alleged injury.

Rogers v. Bagley, 623 S.W.3d 343, 349 (Tex. 2021). The definition of

“health care provider” includes “a health care institution,” among the

examples of its definition of “any person, partnership, professional

association, corporation, facility, or institution duly licensed, certified,

registered, or chartered by the State of Texas to provide health care.” Tex.

Civ. Prac. & Rem. Code § 74.001(a)(12)(A). A hospital, like Shannon

Medical Center, is an example within Chapter 74’s list of “health care

institution[s].” Tex. Civ. Prac. & Rem. Code § 74.001(a)(11).

Chapter 74’s broad statutory definition “creates a rebuttable

presumption that a claim is a [health care liability claim] if it is against

a physician…and is based on facts implicating the defendant’s conduct

during the course of a patient’s care, treatment, or confinement.”

Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012). Or perhaps that

presumption is just an observation that “a patient's interactions with her

doctor ‘during the course’ of her care will consist primarily of medical

care.” Leibman v. Waldroup, 669 S.W.3d 20, 2025 Tex. Lexis 468, *19

(Tex. 2025). This “presumption” applies where the conduct arises from

26
“the patient’s medical care—that is, of her diagnosis or treatment.” Id. at

*20.

The nature—or essence—of the claim determines whether it is a

health care liability claim. Omaha Health Care Center, LLC v. Johnson,

344 S.w.3D 392, 394 (Tex. 2011); Yamada v. Friend, 335 S.W.3d 192, 196

(Tex. 2010); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851

(Tex. 2005). If the essence of the claim is an alleged “departure from

accepted standards of medical care, or health care, or safety or

professional or administrative services directly related to health care,” it

is a health care liability claim. Weems, 575 S.W.3d at 364.

That is true regardless of whether a party’s petition expressly cites

the Texas Medical Liability Act or alleges a breach of any accepted

standards of medical care, health care, safety or professional or

administrative services directly related to health care. See Loaisiga., 379

S.W.3d at 255. If the act or omission complained of is inseparable from

the rendition of medical or health care, it is a health care liability claim.

Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 544 (Tex. 2004). And if

expert testimony “is necessary to prove or refute the merits of the claim

against a physician or health care provider, it is a health care liability

27
claim.” Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 182 (Tex.

2012).

A party cannot use artful pleading to change the nature of their

claim to avoid the effects of Chapter 74. See Lake Jackson Med. Spa, Ltd.

v. Gaytan, 640 S.W.3d 830, 837 (Tex. 2022). Instead, courts “must

determine the claim’s true underlying nature by considering the entire

court record, including the pleadings, motions, and responses, and

relevant evidence properly admitted,” leaving courts “not bound by the

pleadings.” Id. at 837-838 (cleaned up). Thus, “claims premised on facts

that could support claims that qualify as health care liability claims are

health care liability claims, regardless of the pleading’s specific

allegations.” Id. at 838 (emphasis in original, cleaned up). Courts

examine the operative facts to see what is relevant to the alleged injury.

Collin Creek Assisted Living, 671 S.W.3d at 885.

If a claim is a health care liability claim, a claimant must serve a

preliminary expert report within 120 days of the defendant answering

the lawsuit. Tex. Civ. Prac. & Rem. Code § 74.351(a). That report must

set out, in non-conclusory fashion, the standard of care, breach of the

standard of care, and proximate cause. Tex. Civ. Prac. & Rem. Code §

28
74.351(r)(6); Baty v. Futrell, 543 S.W.3d 689, 693-694 (Tex. 2018); Jelinek

v. Casas, 328 S.W.3d 526, 539 (Tex. 2010). Failure to serve an expert

report requires dismissal of the case with prejudice and entry of an award

of attorneys’ fees and court costs. Tex. Civ. Prac. & Rem. Code § 74.351(b);

Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex. 2009).

1. Sickels and Cole’s allegations satisfy the elements of a
health care liability claim.

Sickels and Cole’s allegations satisfy the elements of a health care

liability claim. They are claimants who sued a hospital; they alleged

departures from safety standards; and they allege their injuries came

from those departures from safety standards. By definition, their claims

are health care liability claims.

a. Sickels and Cole are claimants who sued a
hospital

Sickels and Cole are claimants under Chapter 74, which defines a

claimant as “a person…seeking…recovery of damages in a health care

liability claim.” Tex. Civ. Prac. & Rem. Code § 74.001(a)(2). That

definition has no requirement that the claimant be a patient or someone

seeking treatment—as case law has proven time and again:

• Claims by bridal boutique related to hospital’s handling of its
staff’s exposure to infectious disease were health care liability
29
claims despite the store and exposed nurse not being the
hospital’s patient (Coming Attractions Bridal & Formal, Inc.
v. Texas Health Res., 595 S.W.3d 659, 661-662 (Tex. 2020));

• Claims by person indicted for aggravated assault arising from
allegedly inaccurate medical records were health care liability
claims despite not being brought by, or through, the patient
(Baylor Scott & White Hillcrest Med. Ctr., 575 S.W.3d at 361-
362, 364-366));

• Claims that hospital defrauded family members about the
cause of death of a loved one were health care liability claims
despite the patient not being the person defrauded (Christus
Health Gulf Coast v. Carswell, 505 S.W.3d 528, 537 (Tex.
2016)); and

• Claims by employee of psychiatric facility against the facility
were health care liability claims even though the employee
was not a patient at the facility (Tex. W. Oaks Hosp., 371
S.W.3d at 193 (Tex. 2012)).

As the Supreme Court explained, Chapter 74 “does not limit its

reach to person receiving or having received health or medical care—it

applies to claimants.” Carswell, 505 S.W.3d at 537. Even claims of

professional or administrative services need only “directly relate[] to the

health care of some patient.” Id. (emphasis in original).

Here, Sickels and Cole seek damages in a health care liability claim,

making them claimants. They assert that their exposure to radiation

came as part of their radiology work at the hospital. CR.6. That work was

treating patients. CR.6. They are claimants.
30
Shannon Medical Center is a hospital, which is health care

provider. Tex. Civ. Prac. & Rem. Code §§ 74.001(a)(11) and (12)(A).

Sickels and Cole sued Shannon Medical Center, which they admit is a

“healthcare company.” CR.5. Texas Department of State Health Services

recognizes that Shannon Medical Center is a licensed hospital. A search

of licensed providers reveals that the State licensed “Shannon Medical

Center” as a “hospital,” holding license 000168 and has been licensed

since at least 1960. Search Department of State Health Services

(entering “Shannon Medical Center” under “organization” and

conducting the search). Similarly, the Texas Department of Health and

Human Services publishes a spreadsheet of general and specialty

hospitals, which includes Shannon Medical Center as a general hospital

with license number 000168. TX HHS List of General and Special

Hospitals.

Perhaps more importantly, Sickels and Cole’s exhaustive briefing

and argument below never disputed that Shannon Medical Center was a

health care provider. CR.45-306, RR.23-59. That should not be surprising

because they are interventional radiologists who admit that they are

performing medical procedures at Shannon Medical Center, where they

31
claim to have been exposed to radiation. CR.6. Even case law identifies

Shannon Medical Center as a hospital—while applying the contours of

Chapter 74. See, e.g., Wigley v. Shannon Med. Ctr., No. 03-17-00086-CV,

2017 WL 5985501, 2017 Tex. App. Lexis 11177, *1 and *5-13 (Tex. App.—

Austin 2017, no pet.) (describing Shannon Medical Center as a hospital

and analyzing whether an expert was qualified under Sections 74.401

and 402 of the Texas Civil Practice & Remedies Code); Constancio v.

Shannon Med. Ctr., No. 03-10-00134-CV, 2012 WL 1948345, 2012 Tex.

App. Lexis 4339, *2-*5 (Tex. App.—Austin 2012, no pet.) (describing

Shannon Medical Center as a hospital and the claims as health care

liability claims under the Texas Medical Liability Act).

In short, Sickels and Cole are claimants, and Shannon Medical

Center is a health care provider. Thus, the first element of a health care

liability claim is satisfied.

32
b. Sickels and Cole alleged departures from safety
standards that have a substantive nexus to the
provision of health care

Sickels and Cole alleged that Shannon Medical Center failed to

comply with accepted standards of safety. Specifically, they alleged that

it failed

• to properly limit radiation exposure,

• to warn Sickels and Cole of the levels of radiation they were

being exposed to,

• to provide adequate protocols and procedures to limit that

exposure,

• to provide adequate protective equipment and clothing, and

• to otherwise provide a safe environment with regard to

radiation exposure in accordance with the Texas Safety and

Administrative Codes.

CR.4-10. In other words, the complained-of conduct asserts a departure

from “accepted standards of medical or health care, or safety or

professional or administrative services directly related to health care.”

Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). Thus, the essence and

33
underlying nature of Sickels and Cole’s claims fall squarely within the

second element of a health care liability claim.

The phrase “directly related to health care” does not modify its

reference to safety standards. Ross v. St. Luke's Episcopal Hosp., 462

S.W.3d 496, 504 (Tex. 2015). But a safety-standard breach still must

share a “substantive nexus” with the provision of health care—i.e., more

than a but-for standard. 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.” Id. At 505. Thus, allegations that a

hospital failed to control “the spread of a virus to its nursing staff and the

public…implicate[d] safety standards directly related to health care—

the care and treatment of an infected patient.” Coming Attractions, 595

S.W.3d at 664.

To help courts determine whether this substantive nexus exists,

the Supreme Court provided seven non-exclusive considerations (known

as the Ross factors) to employ in analyzing these issues:

34
“(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) [d]id 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?”

Ross, 462 S.W.3d at 505. These factors apply to all safety standards

because they show “a sufficient relationship to constitute health care

liability claims.” Collin Creek Assisted Living Ctr., 671 S.W.3d at 888.

Evaluating these factors proves that they weigh heavily in favor of this

case being a health care liability claim.

35
The first factor is whether the alleged negligence occurred during

the defendant’s performance of tasks meant to protect patients from

harm. Here, it did. As a hospital, Shannon Medical Center has a duty to

protect patients from dangerous levels of radiation exposure—just as it

would doctors as alleged by Sickels and Cole. This is especially true while

performing radiology studies on patients or while a physician does a

radiology-assisted procedure (in the field of interventional radiology).

The hospital setting here is not merely incidental to the patient’s

exposure to radiation—the patient is at the hospital for the radiology

study or procedure. And the doctor’s exposure to the radiation is due to

his presence in the radiology suite—where the patient is. Thus, this case

is not a slip-and-fall incident that could occur in locations where patients

are not and locations unrelated to patient care. Ross, 462 S.W.3d at 499.

Sickels and Cole argue that this factor does not apply to their claims

because the administrative regulations do not apply to patients for

medical diagnosis or therapy. CR.65-66. That attempt to cabin the

statute’s application to exclude affected patients ignore that Sickels and

Cole’s allegations implicate patient safety because they too are

potentially overexposed to radiation—if one were to believe the

36
allegations. And while the regulations do not limit the dose for potential

diagnosis or therapy, compliance with the regulations also protects

patients from doses of radiation that they should not receive—just like

the physician or health care provider. Likewise, while the dosimeters and

individual monitoring desired by Sickels and Cole would potentially

analyze long-term buildup of radiation exposure (CR.66), it would also

detect critical breaches in the short-term—a breach that could severely

compromise patient health from a one-time exposure.

Sickels and Cole argue that radiation devices can be in other

fields—oil and gas or university research—those other fields do not have

patients present and also exposed to the radiation. In short, Sickels and

Cole’s attempt to limit the reach of the statutory and regulatory

framework overlooks how patients are protected by those regulations in

this particular setting. And that setting cannot be divorced from the

context in which Sickels and Cole were allegedly exposed to radiation—

that is the exact same context in which patients could suffer harm. The

first factor favors the case being a health care liability claim.

The second factor is whether the injuries occurred in a place where

patients might be while they received care, implicating the provider’s

37
obligation to protect patients during medical care or treatment. While

Sickels and Cole discount this factor, even they admit that “a good deal

of the exposure to ionizing radiation [they] experienced did occur in areas

where patients were present.” CR.66. Sickels and Cole downplay this

factor, saying it is incidental because the statutory and regulatory

framework does not protect patients. CR.66-67. As with the first fact,

their argument ignores the salutary effect that these safety standards

have in protecting patients from overexposure to radiation.

Sickels and Cole admit they do not know how the overexposure

occurred—was it a radiation leak from the machine or was it some other

mechanism? (CR.25-26)—and their lack of knowledge underscores why

their allegations implicate patient safety. The patients are exposed to

whatever radiation the radiologists received—which neither of them

should have received. That Sickels and Cole treated patients when

allegedly exposed emphasizes how patients were allegedly in danger.

This factor weighs in favor of the case being a health care liability claim.

The third factor is whether the claimant sought or received health

care at the time of the events. Evidence of that factor does not exist here

because Sickels and Cole provided that treatment when they were

38
exposed to the radiation. This factor favors the claim not being a health

care liability claim.

While the third factor asked whether the claimant sought or

received treatment, the fourth factor asks the corollary question of

whether the claimant provided or assisted in providing health care at the

time of the injury. Sickels and Cole admit that this factor “is likely

satisfied.” CR.67. Indeed, that is their very allegation—the received the

exposure to radiation while performing their duties as radiologists. CR.6.

Sickels and Cole insist this factor is not relevant or dispositive

because the health care location did not create the obligation. But, as

discussed, that ignores the fact that the patient is exposed (or

overexposed) to this very same radiation when receiving the treatment,

and the obligations asserted by Sickels and Cole also protect the patient

from that radiation. While these duties may exist outside of the health

care context, in those other contexts, patients or other people are not

exposed to the radiation—other than the workers in those environments.

In health care, however, the patient is exposed along with the worker, so

that the alleged obligation to protect the worker also protects the patient.

39
One final point about the third and fourth factors: that one factor

asks about the patient and the other asks about the doctor or health care

provider demonstrates how Chapter 74 does not require the claimant to

be a patient. Instead, the issue is whether the event occurred at a location

where health care or medical care was occurring. Here, that answer is

resoundingly yes—as admitted by Sickels and Cole.

The fifth factor is whether the alleged negligence is based on safety

standards arising from professional duties owed by the health care

provider. Using the same analysis for the other factors, Sickels and Cole

argue that this factor is not about health care standards and does not

apply to patient care. CR.67-68. But that assertion ignores that hospitals,

physicians, and health care providers that use radiation devices have

these obligations, making them part of their professional duties toward

patients. After all, protecting the radiologist from overexposure to

radiation also protects the patient from overexposure. Sickels and Cole

allege that Shannon Medical Center failed to comply with safety rules

and regulations by not maintaining a proper procedure to monitor,

control, and report levels of radiation. CR.7-8. That allegation asserts a

40
breach of safety standards purportedly owed by the hospital. And this

factor weighs in favor of the case being a health care liability claim.

In discussing this factor, Sickels and Cole rely on a radiation-

exposure case from one of the intermediate appellate courts in Houston.

CR.68-70. But that case is inapposite—primarily because the events

occurred at a location where patients were not present. There, McNew—

a clerical employee whose job exclusively involved collecting statistical

data—sued a hospital, asserting that her office therein “was located

adjacent to a ‘radiation-emitting device,’” which exposed her to radiation

and caused her breast cancer. Harris Cnty. Hosp. Dist. v. McNew, No. 14-

18-00868-CV, at *1 (Tex. App.—Houston [14th Dist.] Feb. 27, 2020, no

pet.).

The appellate court concluded the claims did not fall within the

definition of a health care liability claim for two main reasons: (1) the

appellee did not assert claims based on facts implicating the hospital’s

conduct during any care, treatment, or confinement of the appellee, and

(2) her alleged injuries did not occur in a place where patients might be

while receiving care, rather, she was in an administrative office for the

sole purpose of recording statistical data—i.e., not seeking or receiving

41
health care—and she was not providing or assisting in providing health

care at the time of her alleged injuries. Id. In other words, the facts that

gave rise to her claim did not trigger the rebuttable presumption that the

claim is a health care liability claim, and the court’s analysis of the Ross

factors weighed against finding a health care liability claim. Id. at *5. Of

course, in stark contrast, the presumption applies here because the

allegations occurred during treatment and in locations where patients

were and where treatment occurred.

In McNew, the appellate court also concluded that “three of these

factors [numbers 2, 3, and 4] clearly weigh against” the conclusion that

the appellee’s claim is a health care liability claim because patients would

not be present and no treatment occurred. Id. *7-*8. As for the other

factors, the court could not answer them due to a lack of information. Id.

at *10 (“Without more than a tentative identification regarding the type

of machine that allegedly caused McNew’s injuries, we cannot determine

[the remaining factors.]”). Because three factors weighed against the case

being a health care liability claim and four went unanswered, the court

noted that “[a] claim alleging excessive radiation exposure is not per se

based on safety standards arising from professional duties owed by a

42
health care provider.” Id. CR. 68-9. In contrast, patients were present

and care was provided in the setting where Sickels and Cole purportedly

received excess doses of radiation. And, in that context of patients’

presence and patient care occurred, we can answer the other factors—as

explained here. Thus, McNew is inapplicable to this case.

The sixth factor asks whether the instrumentality involved in the

defendant’s alleged negligence was of a type used in providing health

care. Unlike McNew, we know here that the radiation devices are the

type used in providing health care because Sickels and Cole allege their

injuries are a result of being exposed to radiation from the machines they

used in performance of their duties as radiologists. CR.6-8. Thus, the

instrumentality involved is one that is used in providing health care—it

is medical equipment that they used in carrying out their duties as

radiologists. This factor weighs in favor of the case being a health care

liability claim.

Sickels and Cole complain that the instrumentality is not the

radiation devices they used in performing their jobs but the lack of

dosimeters to monitor radiation levels. CR.70-71. But that argument

neglects the fact that they complain about exposure to and control of

43
radiation, not just monitoring of radiation exposure. CR.6. And

regardless of monitoring devices, the injury-causing device was the

radiation-emitting machine, not the monitoring device. And even without

knowing what device was used or how, Sickels and Cole admit that the

devices were used in their jobs providing care as radiologists. Their

arguments do not change the analysis of this factor and how it weighs in

favor of the case being a health care liability claim.

The seventh factor—whether the alleged negligence

occurred during the defendant’s conduct to comply with safety-related

requirements for health care providers by governmental or accrediting

agencies. As discussed, while the statutory and regulatory framework

cited by Sickels and Cole apply in some other contexts, that framework—

in the health care setting—exists to protect the worker and the exposed

patient. Indeed, the alleged negligence here is Shannon Medical Center’s

supposed failure to “maintain proper procedures to monitor, control, and

report the levels of radiation exposure to [the radiologists]” in violation

of State law. CR.7-8. That necessarily occurred while Shannon Medical

Center allegedly “fail[ed] to take actions necessary to comply with safety

requirements that a governmental or accrediting agency set for health

44
care providers,” affecting patient exposure to radiation. CR. 7-8. In this

context, this factor weighs in favor of the case being a health care liability

claim.

The Ross factors are a qualitative assessment, so no particular

number in favor is dispositive in determining whether a case is a health

care liability claim. See f. Ross, 462 S.W.3d at 505 (“[C]ertain non-

exclusive considerations lend themselves to analyzing whether such a

claim is substantively related to the defendant’s providing of medical or

health care and is therefore a [health care liability claim].”). Instead,

those factors help establish whether the necessary nexus to health care

exists. Here, six of the seven Ross factors weigh in favor of the case being

a health care liability claim with just one factor favoring Sickels and

Cole’s favor, albeit with its opposite factor favoring Shannon Medical

Center. The site of the injury is where patients are, where patients could

be harmed by the very allegations lodged by Sickels and Cole, and where

medical care and treatment occurred. That shows this case has a

substantial nexus to health care.

Six of the seven Ross factors favor this case being a health care

liability claim, but many courts have reached that conclusion based on

45
fewer factors. See Fernil v. Bluebird Med. Enters., LLC, 714 S.W.3d 171,

185-188 (Tex. App.—Houston [14th Dist.] 2024, pet. denied) (concluding

the claim was a health care liability claim based on only four of the seven

Ross factors); City of Alvin v. Fields, No. 01-22-00572-CV, 2023 LX 54875,

at *19 (Tex. App.—Houston [1st Dist.] June 15, 2023, no pet.) (same); see

also McNew, 2020 Tex. App. Lexis 1681 at *7-*11 (deciding the issue

based on three answers the negative with the rest as undetermined).

As a final note on the alleged safety-based claims, the requirement

of expert testimony is a substantial factor weighing in favor of a claim

being a health care liability claim. Lake Jackson Med. Spa, Ltd., 640

S.W.3d at 844. One should, at least, consider that requirement in tandem

with the Ross factors. The Supreme Court has repeatedly suggested that

the need for such expert testimony can be dispositive in making a claim

a health care liability claim,

• Tex. W. Oaks Hosp., 371 S.W.3d at 182 (“[W]e now hold that

if expert medical or health care testimony is necessary to

prove or refute the merits of the claim against a physician or

health care provider, the claim is a health care liability

claim.”);

46
• Rogers, 623 S.W.3d at 351 (holding claims were health care

liability claims because “their proof requires expert

testimony”—without analyzing the Ross factors);

• Coming Attractions, 595 S.W.3d at 667 (holding—without

analyzing the Ross factors—that the claims alleging

violations of both health care and safety standards were

health care liability claims “[b]ecause medical experts must

discuss the hospital’s departure from safety standards”); and

• Weems, 575 S.W.3d at 365-66 (holding that the need for expert

testimony “is sufficient to establish that the claim is a health

care liability claim.”) (emphasis added).

Here, expert testimony is necessary to prove or disprove Sickels and

Cole’s allegations. Ordinary laypersons do not know—and “cannot be

expected to understand” by themselves—what proper levels of radiation

are, how to determine what is a proper level, how to prevent overexposure

to radiation or radiation at improper levels, how to monitor for radiation

exposure, what procedures should be in place to protect against radiation

overexposure, and all the similar issues raised by Sickels and Cole’s

allegations. See Lake Jackson Med. Spa, Ltd., 640 S.W.3d at 844. That

47
laypersons do not have this knowledge, requiring expert testimony, is

another significant factor to consider in determining that the case is a

health care liability claim.

Based on Sickels and Cole’s specific allegations, the weighing of the

Ross factors, and the need for expert testimony, their claims are health

care liability claims—alleging departure of safety standards with a

substantial nexus to health care. The trial court reversibly erred by

concluding otherwise.

c. Sickels and Cole allege that departures from
safety standards proximately caused their
injuries

Turning to the third element of a health care liability claim,

proximate cause, Sickels and Cole allege that Shannon Medical Center’s

supposed safety failures proximately caused their injuries. CR.4-10. No

more is necessary—after all, if Sickels and Cole deny the safety failures

were a proximate cause, then they could have no recovery from Shannon

Medical Center anyway. To that end, they never contended that the

proximate cause element was not satisfied here. CR.45-76.

2. Sickels and Cole’s artful pleading cannot circumvent
the requirements of Chapter 74

48
Claimants cannot disguise a health care liability claim “as another

cause of action to avoid [Chapter 74’s] requirements.” Diversicare, 185

S.W.3d at 851.The nature of the claim determines whether a claim is a

health care liability claim, not the specific allegations or claims asserted.

Yamada, 335 S.W.3d at 196. If the act or omission complained of is

inseparable from the rendition of medical or health care, it is a health

care liability claim. Garland Cmty. Hosp., 156 S.W.3d at 544.

While Sickels and Cole disagree that their claims are health care

liability claims, the nature of their claims prove otherwise. They assert

that Shannon Medical Center’s failures involve breaches of “occupational

health and safety responsibilities no different than any other industry

that used equipment that involves radiation.” CR.51. But they ignore the

context in which this use of radiation equipment occurs. Unlike all other

potential industry uses of radiation equipment, when a hospital fails to

comply with health and safety standards, that necessarily implicates

patient-safety standards. The use of radiation in a hospital is in the

provision of medical or health care, i.e., taking diagnostic radiology

images for a doctor to diagnose the patient’s condition or using the

radiology images in real-time to guide the care provided to the patient—

49
such as when an interventional radiologist uses the x-ray to guide

placement of a catheter or other medical device treating the patient. That

is the provision of medical or health care, making any breach of safety

standard—regardless of the claimed source of the obligation—directly

related to the provision of health care.

Indeed, the doctor or hospital employee using the equipment is not

the only person exposed to excess radiation—the patient is also exposed

to it. Even “occupational safety standards” have the effect of minimizing

the radiation dose that patients receive, ensuring that they receive the

proper amount for the treatment and no more. Any failure of a radiation

safety standard—in a hospital like Shannon Medical Center—exposes

the patient to excess radiation, putting the patient in harm’s way.

The statute and regulation that Sickels and Cole rely upon—

Chapter 401 of the Texas Health and Safety Code and Chapter 289, Title

25 of the Texas Administrative Code—are designed to ensure hospitals

implement radiation safety measures that protect patients and medical

providers alike. CR.51-53. The purpose of Chapter 401 of the Texas

Health and Safety Code is “to ensure effective regulation of sources of

radiation for protection of the occupational and public health and safety

50
and the environment” and “permit maximum use of sources of radiation

consistent with public health and safety and environmental protection.”

Tex. Health & Safety Code § 401.002(1),(4). And the purpose of Title 25

of the Texas Administrative Code is to establish requirements “for the

use of radiation machines in the healing arts” and “standards for

protection against ionizing radiation resulting from the use of radiation

machines” in relation to public health and safety. See 25 TAC § 289.227,

289.231.

This application of Chapter 74 is no different than that in Coming

Attractions. There, a nurse, while working at a hospital with allegedly

insufficient protective equipment, treated a patient with an Ebola

infection. Coming Attractions, 595 S.W.3d at 661. The nurse became

infected and, before she knew about her infection, visited an out-of-state

bridal shop. Id. That nurse’s presence at the bridal shop while infected

with Ebola caused the bridal shop to go out of business. Id. The Supreme

Court concluded that the bridal shop’s claim against the hospital was a

safety claim with the required substantive nexus to health care because

“[a] hospital’s alleged negligence in controlling the spread of a virus to its

nursing staff and the public…implicates safety standards directly related

51
to health care—the care and treatment of an infected patient. Id. at 664.

The bridal shop alleged infection spread based on the hospital’s training

treatment, and infection control policies and exposed the nurse to the

virus…and failed to prevent or warn them” about the exposure. Id. See

also id. at 665 (itemizing the specific allegations about the lack of policies

and procedures, training of the medical staff, having sufficient

equipment, and exposing the nursing staff to the virus).

The same analysis applies here. The excess radiation that Sickels

and Cole claim caused their injury exposes patients to excess radiation.

And if the radiation leaked from the hospital, no telling who else in the

public could be injured by the alleged improper handling of the radiation.

Sickels and Cole alleged that the hospital was negligent by:

• Failing to monitor levels of radiation exposure (allegation a);

• Failing to warn of the levels of radiation exposure (allegation
b);

• Failing to report the levels of radiation exposure (allegation
c);

• Failing to restrict the levels of radiation exposure (allegation
d);

• Failing to provide proper radiation monitoring devices
(allegation e);

52
• Failing to provide appropriate protective radiation protective
devices (allegation f); and

• Failing to maintain procedures to monitor, control, and report
the levels of radiation exposure (allegations g and h).

CR.7-8. The same reasons that the hospital allegedly failed to protect

Sickels and Cole from the exposure to excess radiation is the same reason

that patients were alleged exposed to that radiation. These safety-based

claims have the required substantial nexus to health care, making them

health care liability claims.

3. Sickels and Cole were not employees of Shannon
Medical Center (Issue 2)

Sickels and Cole claim that Chapter 74 does not apply to them

because they are employees of the hospital—Shannon Medical Center.

But they have employment contracts with Shannon Clinic, and the

evidence did not establish that Shannon Medical Center controlled the

details by which Sickels and Cole performed their work as radiologists.

Because Sickels and Cole are not employed by Shannon Medical Center,

their claims are not excluded from the definition of a health care liability

claim.

Physicians are generally considered to be independent contractors

when working in hospitals at which they have staff privileges.

53
Renaissance Med. Found. v. Lugo, 719 S.W.3d 505, 510 (Tex. 2025). And

a physician’s mere agreement to abide by a hospital’s policies and

procedures while using its facilities does not elevate his status to that of

an employee. Drennan v. Community Health Inv. Corp., 905 S.W.2d 811,

819 (Tex. App.—Amarillo 1995). As such, Texas has consistently held

that hospitals do not control the details over a physician’s work—even if

they have hospital privileges, so hospitals are not vicariously liable for a

physician’s conduct. See id.

Here, the employment contracts between Sickels and Cole, on the

one hand, and Shannon Clinic, on the other, prove that the Clinic

employed these doctors. Supp.CR. 1 The contracts provide:

The Clinic hereby employs the Physician, and the Physician
hereby accepts employment with the Clinic, upon the terms
and conditions set forth herein. The Physician is a full-time
employee of the Clinic[] and agrees to devote his/her full
professional time and attention to the performance of his/her
duties hereunder for and on behalf of the Clinic.

1 The Clerk’s Record appears to have omitted the attachments to Defendant’s

Reply on the dismissal motion, which included redacted copies of Sickels’s and Cole’s
employment agreements with Shannon Clinic. Appellant will request a supplemental
record to include those omitted exhibits. Sickels and Cole’s Response to the dismissal
motion included an unsigned version of the employment agreement that is virtually
the same as the signed agreements. CR.119-123.
54
Supp.CR. See also CR.119. Under the agreements, they had clinical

duties, including:

• Interviewing, examining, and providing medical services and
treatment to patients of the Clinic, including, without
limitation, patients referred from other physicians and
patients from any managed care plan in which the Clinic is a
participating provider;

• Keeping and maintaining, or causing to be kept and
maintained, appropriate records, reports, claims, and
correspondence necessary and appropriate in connection with
all professional services rendered by the Physician under this
Agreement, including, but not limited to, information on the
medical services provided in accordance with the Clinic's
policies and protocols regarding medical records, claims
preparation, and utilization management;

• Participating in the Clinic's patient care management or
patient safety programs;

• Promoting, to the extent permitted by law and the applicable
canons of medical ethics, the professional practice of the Clinic
and assisting in developing a fully integrated health care
delivery system as an affiliate of Shannon Medical Center;
and

• Attending professional conventions, postgraduate seminars,
and functions of professional societies necessary to maintain
and improve the Physician's professional skills, and abide by
the Clinic's CME policies and the requirements of the
Physician's medical board specialty.

Supp.CR. See also CR.119-120. For these services, the Clinic paid his

various forms of compensation—base salary, pooled compensation, and

55
incentive bonuses as well as disability draw should they become disabled.

Supp.CR. See also 120-123.

“Right of control may be shown by explicit contractual assignment

or actual exercise of control.” Lugo, 719 S.W.3d at 510 (cleaned up). The

contracts with Shannon Clinic demonstrate that explicit contractual

control and employment arrangement. Despite those agreements and the

lack of any contract with Shannon Medical Center, Sickels and Cole

contend that they are employees of Shannon Medical Center. True,

absent a written contract, actual exercise of control over the physician’s

work can establish an implied employment relationship. Farlow v. Harris

Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex. App.—Ft. Worth

2008). In this context, control must extend beyond a general right to start

or stop work, inspect progress, receive reports, or require safety measures

to establish an employer-employee relationship. Redinger v. Living, Inc.,

689 S.W.2d 415, 418 (Tex. 1985); Restatement (Second) of Torts § 414

(1965).

The following five factors are considered when determining

contractual right of control:

(1) the independent nature of the worker’s business; (2) the
worker’s obligation to furnish necessary tools, supplies, and
56
materials to perform the job; (3) the worker’s right to control
the progress of the work except about final results; (4) the
time for which the worker is employed; and (5) the method of
payment, whether by unit of time or by the job.

Limestone Products Distribution, Inc. v. McNamara, 71 S.W.3d 308, 312

(Tex. 2002). An analysis of these factors supports the conclusion that

Shannon Medical Center did not employ Sickels and Cole, making their

claims health care liability claims.

The first employment factor measures the independent nature of

the workers’ business. Here, radiology is an independent medical

practice, particularly at hospitals. While hospitals have radiology

departments and even support personnel, they do not employ physicians

interpreting the diagnostic radiology studies or performing radiology

procedures. The nature is an independent business—separate from the

care that the hospital provides.

The second employment factor considers whether the worker had

an obligation to furnish the necessary tools. In radiology, the hospital

provides equipment in a literal sense (the radiology machines which are

often immovable fixtures). But the real tool is the radiologists’

knowledge, expertise, skill, and ability to interpret the diagnostic

57
radiology studies and perform the radiology procedures. Indeed, without

the radiologists’ minds deciphering the information and the radiologists’

skill performing the procedures, the department is essentially

meaningless. The necessary “tools” of the trade are within the radiologist,

not the hospital’s equipment.

The third factor addresses the workers’ right to control the progress

of their work. Here, the radiologists’ third-party employer set the

schedule to allocate work equitably. CR.119 (“[Shannon] Clinic will assist

the Physician in building a practice by scheduling and assigning new

patients to the Physician.”). Sickels and Cole claim that the work

schedule was determined within the radiology department in Shannon

Medical Center, they carefully do not dispute their employment

contracts’ description of that role being played by Shannon Clinic, which

could do the scheduling within the department. Compare CR.119 with

CR.128, 130.

Even scheduling by Shannon Medical Center would only establish

a workflow—like which surgeon is in the operating room at what time—

and would not control the manner and means by which the surgeon

conducts an operation. The same is true for radiologists—scheduling does

58
not control the details over how a radiologist interprets a radiology study

or performs a radiology procedure. And Sickels and Cole remained free

to take breaks, when necessary, determine if the order or work should

change, and the like. They judged what progress to make while

interpreting studies or performing procedures.

While Sickels and Cole claim that Shannon Medical Center sets

their respective work schedules, the employment agreement with their

third-party employer (Shannon Clinic) describes full and part-time

status, fully compensates them for their work, and retains sole discretion

to review and adjust compensation based on annual WRVU production,

thus rewarding an individual physician’s productivity, or time spent

working. Id. at 120-123. The language of the employment contract leaves

no room for disagreement regarding whether the Clinic retains the full

right to control the progress, details, methods, and results of the

physician’s work. More importantly, the contract specifically describes

the physician’s relationship with Shannon Medical Center as a mere

affiliation. CR.120. Indeed, that is how physicians generally provide care

and treatment to patients at hospital facilities, i.e., by having staff

59
privileges at the facility but not as an employee of the facility. Drennan,

905 S.W.2d at 819.

Further, the employment agreement explicitly sets forth physician

duties regarding physician clinical practice including the provision of

“medical services and treatments to patients of the Clinic...and patients

from any managed care plan in which the Clinic is a participating

provider.” CR.119. It further directs that all records regarding medical

services provided by the physician-employee be maintained “in

accordance with the Clinic’s policies and protocols” and requires the

physician to abide by the Clinic’s Continuing Medical Education policies.

Id. at 120. Those contractual obligations with Shannon Clinic controlled

the details by which Sickels and Cole worked.

The fourth employment factor considers the time for which the

worker is employed. Here, the radiologists are not employed by time for

the hospital. Rather, they were employed as full-time employees of

Shannon Clinic, requiring devotion of their “full professional time and

attention to the performance of his/her duties hereunder for and on

behalf of [Shannon] Clinic.” Supp.CR; CR.119.

60
And, as for the fifth employment factor—the method of payment—

no evidence shows that Shannon Medical Center ever paid Sickels and

Cole for their work as radiologists. Instead, the record proves the

radiologists received a salary from Shannon Clinic, their third-party

employer, with additional compensation and bonuses. Supp.CR; CR.120-

121;123.

In short, these employment factors do not support the concept that

Shannon Medical Center employed Sickels and Cole. Indeed, the

evidence proved Shannon Clinic employed and paid them. Supp.CR.;

CR.119-123. That left Shannon Medical Center as just the facility where

the work occurred. The fact that Sickels and Cole were contractually

obligated to maintain staff privileges at Shannon Medical Center and

abide by the hospital’s policies and procedures while using its radiology

equipment does not amount to a “right to control” under Texas law. If

anything, it shows how Shannon Clinic exercised control over them by

making them have staff privileges and comply with those policies and

procedures. Thus, their relationship with Shannon Medical Center was,

at best, mere independent contractors.

61
Sickels and Cole also argue that their phone numbers, business

cards, work schedules, and caseload, including medical record keeping,

also make them employees of Shannon Medical Center. CR.127-32. But

even under a “borrowed employee” theory, these operational measures

are not enough to convert independent contractor physicians into

hospital employees; they do not meet the required threshold of control

over the details of their work. See St. Joseph Hosp. v. Wolff, 94 S.W.3d

513, 542 (Tex. 2002). What little control Shannon Medical Center

exercises over the radiologists—if any—is not enough to negate the

contractually established fact that the Clinic is their employer. If

anything, these acts only illustrate the cooperative arrangements that

must occur between doctors and hospital facilities—they must engage in

these cooperative efforts to have a functioning health care facility. But

that does not transform the doctors into employees of the hospital.

Accordingly, Sickels and Cole were not employees of Shannon Medical

Center.

More importantly, if a contract expressly provides for a specific

party to retain the legal right to control an employee, then that party is

the employer. Producers Chem. Co. v. McKay, 366 S.W.2d 220, 226 (Tex.

62
1963). Courts interpret contract language according to its plain,

grammatical meaning unless doing so would defeat the intent of the

parties. Garner v. Corpus Christi Nat’l Bank, 944 S.W.2d 469, 474 (Tex.

App.—Corpus Christi 1997, no writ). Here, the employment agreements

provide that Sickels and Cole will be “full-time employee[s]” of Shannon

Clinic. That description of them as “employees” “is strong evidence that

the parties…intend [the person] to be considered an employee.”

Renaissance Med., 672 S.W.3d at 912 (“[T]he exclusive use of ‘employee’

in this case is strong evidence that the parties to the agreement intended

for Burke to be considered an employee.”).

Sickels and Cole were not employed by the Shannon Medical Center

but by Shannon Clinic. Their claims—regardless of how pleaded—are not

claims against an employer by an employee under the Labor Code.

Instead, they are claims against a non-employer, making them health

care liability claims. Tex. Civ. Prac. & Rem. Code § 74.001(a)(13).

C. Sickels and Cole Failed to Serve Shannon Medical Center
with a Chapter 74 Expert Report as Required by Chapter 74
(Issue 3)

When a claim is a health care liability claim, claimants must serve a

preliminary expert report and curriculum vitae within 120 days of the

63
defendant answering the lawsuit. Tex. Civ. Prac. & Rem. Code §

74.351(a). That report must set out, in non-conclusory fashion, the

standard of care, breach of the standard of care, and proximate cause.

Tex. Civ. Prac. & Rem. Code § 74.351(r)(6); Baty, 543 S.W.3d at 693-694;

Jelinek, 328 S.W.3d at 539. Failure to serve an expert report and

curriculum vitae by the deadline requires dismissal of the case with

prejudice and entry of an award of attorneys’ fees and court costs. Tex.

Civ. Prac. & Rem. Code § 74.351(b). If the claimant fails to serve a report

and curriculum vitae within the statutory period, courts have no

discretion: they must dismiss the health care liability claim with

prejudice and award the statutory remedies. Badiga, 274 S.W.3d at 685.

Here, Sickels and Cole do not claim that they served an expert

report in the traditional sense (that they served a report from an expert

along with that expert’s curriculum vitae) and instead argue that the

“copious number of medical records and reports…illustrate the nature of

their injuries as resulting from excess exposure to radiation.” CR.72. But

those medical records are not an expert report that sets out the standard

of care, a breach of the standard of care, and proximate cause from the

alleged breach to the claimed injury. Indeed, even Sickels and Cole’s

64
characterization of these records only show that the “illustrate” the

injuries resulted from excess radiation. Id. Such an illustration is not an

explanation of the standard of care, breach, and causation.

An adequate expert report is comprised of three elements: (1) it

provides a fair summary of the expert’s opinions regarding the standard

of care; (2) it explains the manner in which the care rendered by the

physician failed to meet the standards; and (3) it explains the causal

relationship between that failure and the injury, harm, or damages

claimed. E.D. v. Tex. Health Care, P.L.L.C., 644 S.W.3d 660, 664 (Tex.

2022). While the report need only be a good-faith effort, Abshire v.

Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018), it still must

“(1) inform the defendant of the specific conduct called into question and

(2) provide a basis for the trial court to conclude the claims have merit.”

Baty, 543 S.W.3d at 693–94. Furthermore, only the information

contained within the four corners of the report may be considered when

looking for good faith; inferences are not permitted. Abshire, 563 S.W.3d,

at 223.

A report that merely offers bare conclusions, does not address all

the elements (i.e., the applicable standard of care, defendant’s breach

65
thereof, and proximate cause linking the alleged breach to the claimant’s

injuries), or requires inferences to be made because of its omissions, is

not made in good faith. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.

2011); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002);

Jelinek, 328 S.W.3d at 539 (“the expert must explain the basis of his

statements to link his conclusions to the facts”). In situations such as

these, the claimant may not be given an extension to cure. Scoresby, 346

S.W.3d at 555–557.

Sickels and Cole note that they “provided well over 3,700 pages of

medical records, bills, and reports from various doctors,” but those

documents do not provide a fair summary of any expert’s opinions

regarding the standard of care, explain the manner in which Shannon

Medical Center breached the standard of care, or explain the causal

relationship between that failure and the injury, harm, or damages

claimed. That is not a good faith effort to satisfy the expert report

requirement. CR.74.

In response to the dismissal motion, Sickels and Cole highlight a

few snippets from the more than 3,700 pages of records produced. But

those snippets do not explain any of the elements of an expert report. For

66
example, Exhibit T to their response is a one-paragraph that essentially

says, in a conclusory fashion, that Dr. Sickels had long-term radiation

exposure; that he developed skin cancers, which required amputations;

and that he requires long-term care. CR.73, 235. But that does not even

say that Sickels developed cancer from over exposure to radiation. Nor

does it say that Shannon Medical Center’s conduct caused the over-

exposure to radiation—let alone that its negligent conduct caused that.

In short, even if that were a statement of causation, it does not connect

any claimed breach of the standard of care by Shannon Medical Center

to causing that injury. The record from Dr. Cheraku attached as Exhibit

T does not provide a standard of care, a breach of the standard of care, or

a causal connection from the purported breach to the alleged injury. Nor

does it provide any explanation of those expert-report elements.

The same problem exists with Exhibit U—a dermatology office note

that says that Cole “is a retired radiologist and interventional[

radiologist] and possible exposure to ionizing radiation.” CR.236. The

report then describes spots and lesions on his hand. Nothing in that

record sets out a standard of care, a breach, or a causal connection

between the purported breach and the alleged injury. Id.

67
Exhibit V is similarly lacking—merely identifying the surgical

pathology results from biopsies on Sickels’s. hands. CR.237. That report

does attach Dr. Cockrell’s letter, which is also Exhibit X. Compare

CR.238-239 with CR.305-306. Because it is its own exhibit, that letter

will be discussed below. Regardless, nothing in Exhibit V’s discussion of

the pathology results specifies a standard of care, a breach, or proximate

cause.

Finally, Exhibit X is the letter from Dr. Cockrell, who is reviewing

the same pathology samples from Sickels’s hands. CR.238, 305. Dr.

Cockrell describes the first two samples as being cancerous—without any

statement related to the issues in the case. Id. He then notes that the

third sample “revealed features of chronic radiation dermatitis.” Id. In

the next paragraph, he notes that “these changes all have been induced

by the prior radiation he was exposed to over the years. The clinical

photographs were impressive as well. Patients that have radiation

dermatitis may develop abnormal changes in the epidermis because of

the altered blood flow and other changes, and it is not uncommon to see

crusting and erythema overlying radiation dermatitis which, in my

opinion, explains the findings in the last specimen.” Id. Even giving full

68
weight to all Dr. Cockrell’s statements (and ignoring other potential non-

radiation causes for some of the findings listed in the report), they simply

do not identify a standard of care, a breach, nor claim that the breach

caused the injury. Even this exhibit does not satisfy any element of an

expert report.

None of the snippets emphasized in Sickels and Cole’s response

satisfies the expert-report requirement of Chapter 74. There is no

statement describing any standard of care; there is no statement

explaining any breach of the standard of care; and there is no statement

attributing the purported injuries to a breach in the standard of care.

Indeed, none of the records even implicates Shannon Medical Center’s

conduct in any fashion. At best, these records use passive voice to explain

that these radiologists were exposed to radiation. CR.235-237; 305. . But

they do not even attribute it to radiation from Shannon Medical Center—

let alone to a breach of the standard of care by Shannon Medical Center.

The medical records—regardless of how voluminous—do not satisfy the

expert-report requirement of Chapter 74.

Along these lines, even if they did, Sickels and Cole never served a

curriculum vitae for their expert when serving these medical records.

69
True, one from Dr. Cockrell is attached as Exhibit W to their response to

the dismissal motion. CR.240-304. But unlike the medical records, the

curriculum vitae is not Bates-labeled, indicating it was not served in

discovery. Compare CR.235-239; 305-306 with CR. 240-304. Thus, Sickels

and Cole never served a curriculum vitae as required by Section 74.351,

making service of the medical records deficient even if they satisfied the

expert-report requirement.

Of course, this only underscores the problems inherent in trying to

use the service of medical records as service of an expert report. As

Sickels and Cole admit, they served “over 3,700 pages” of medical records.

CR.74. They now rely on a handful of pages from those records to claim

they satisfied the expert-report requirement—without telling Shannon

Medical Center that somewhere buried in that volume of materials was

something that satisfied their Chapter 74 obligations. Shannon Medical

Center not only had to hunt for those pages never flagged as satisfying

the expert-report requirement but presciently predict that they might be

used as an expert report.

Shannon Medical Center only had 21 days to object to the

sufficiency of any expert report. Tex. Civ. Prac. & Rem. Code § 74.351(a).

70
That places an impossible burden on Shannon Medical Center—

foreseeing that an expert report might be buried among those thousands

of pages and realize that these medical records might be used as an

expert report. Such laying behind the log (so to speak) should not be

permitted. Regardless, these records do not satisfy any element of an

expert report, making them fatally deficient. They are not a good faith

effort to comply with the expert-report requirement and cannot save

Sickels and Cole from the effect of Section 74.351.

If Sickels and Cole truly believed that their claims were not health

care liability claims, they had options to avoid dismissal with prejudice

and other statutory remedies. First, they could have prophetically

obtained an expert report. Second, they could have preliminarily moved

to determine whether the claims were health care liability claims—a new

tool that the Legislature provided when doubt exists about the nature of

the claims asserted against a doctor or health care provider. Tex. Civ.

Prac. & Rem. § 74.353. This latter route potentially gives claimants like

Sickels and Cole additional time to satisfy the expert-report requirement

if a court determines the statute applies. Id. (allowing service of a report

when required by the later of 120 days after the date of each defendant’s

71
original answer or 60 days after the court issues its determination of the

statute’s applicability); Tenet Hosps. Ltd. v. Balderrrama, 705 S.W.3d

256, 259 and n.3 (Tex. App.—El Paso 2024) (reversing trial court's

preliminary determination that autopsy-related claims were not health

care liability claims and remanding for further proceedings).

Instead, Sickels and Cole opted to do nothing to comply with the

statute or challenge its applicability before the deadline expired. Their

claims were health care liability claims; they served no expert report by

the statutory deadline; and the statute mandates dismissal with

prejudice and an award of statutory remedies.

Conclusion and Prayer

For the reasons explained, Sickels and Cole’s claims against

Shannon Medical Center were health care liability claims because their

safety-based claims satisfy the elements of a health care liability claim,

have a substantial nexus to the provision of health care, and require

expert testimony. Shannon Medical Center did not employ Sickels and

Cole. As health care liability claimants, Section 74.351 of the Texas Civil

Practice & Remedies Code mandated that Sickels and Cole serve an

expert report and curriculum vitae on Shannon Medical Center within

72
120 days of its answer. They did not. None of the (voluminous) medical

records served satisfies the elements of an expert report under Chapter

74. Thus, Sickels and Cole did not satisfy Chapter 74’s expert-report

requirement. The trial court had only one option—to grant Shannon

Medical Center’s dismissal motion and award statutory remedies of

attorneys’ fees and court costs. The trial court reversibly erred by denying

that motion. This Court should reverse.

Appellant Shannon Medical Center, therefore, requests that this

Court reverse the denial of the dismissal motion, render judgment

dismissing Appellees Michael Sickels and James Christopher Cole’s case

with prejudice, and remanding this case to the trial court for entry of an

award of attorneys’ fees and court costs in favor of Appellant Shannon

Medical Center and against Appellees Michael Sickels and James

Christopher Cole—as required by Section 74.351(b) of the Texas Civil

Practice & Remedies Code. Appellant Shannon Medical Center further

requests that this Court tax costs against Appellees Michael Sickels and

James Christopher Cole. And Appellant Shannon Medical Center

requests such further relief to which it may be entitled.

73
Respectfully submitted,

/s/ David M. Walsh IV
David M. Walsh IV (Lead)
State Bar No. 00791874
dwalsh@katxlaw.com
Jeffery M. Kershaw
State Bar No. 24053279
jkershaw@katxlaw.com
Ana P. Romano
State Bar No. 24150010
aromano@kaktxlaw.com
Jaqueline A. Cockrane
State Bar No. 24142790
jcochrane@kaktxlaw.com
Kershaw Anderson King, PLLC
12400 Coit Rd., Suite 800 (Main)
Dallas, Texas 75251
-and-
5113 Southwest Parkway, Suite 200
Austin, TX 78735
(214) 347-4993 – Telephone (Dallas)
(512) 400-0334 – Telephone (Austin)
(214) 615-7361 – Facsimile

Counsel for Appellant
Shannon Medical Center

74
Certificate of Compliance

Relying on the word count in Microsoft Word that is part of the suite
of programs in Microsoft Office 365, I certify that this computer-
generated document contains 11,855 words, not including the caption,
identity of parties and counsel, table of contents, index of authorities,
statement of the case, statement regarding oral argument, issue
presented, signature, proof of service, certificate of compliance, and
appendix. The text for the body of the document is in 14-point font, and
any footnotes are in 12-point font.

/s/ David M. Walsh IV
David M. Walsh IV

Certificate of Service

I certify that on November 26, 2025, I served a true and correct copy
of this document on all counsel of record via the e-filing system.

Kyle Dreyer Matthew J. Kita
legal@mytexasfirm.com matt@mattkita.com
Josh A. Flippin 3110 Webb Ave Ste 150
legal@mytexasfirm.com Dallas, TX 75205-3503
Burress Law, PLLC Counsel for Appellees Michael
6952 Mediterranean Drive Sickels and James
McKinney, Texas 75072 Christopher Cole
Counsel for Appellees Michael
Sickels and James
Christopher Cole

/s/ David M. Walsh IV
David M. Walsh IV

75
CAUSE NO. A250014C

MICHAEL SICKELS and JAMES § IN THE DISTRICT COURT
CHRISTOPHER COLE, §
Plaintiff, §
§
VS. § 51st JUDICIAL DISTRICT
SHANNON MEDICAL CENTER, §
§
Defendant. §
§ TOM GREEN COUNTY, TEXAS
§

ORDER DENYING DEFENDANT’S MOTION TO DISMISS

After considering Defendant’s Motion to Dismiss, the evidence on file, record in general

and argument of counsel, this Court is of the opinion that this Motion be DENIED.

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss is hereby DENIED.

SIGNED this day of , 2025.

________________________________
JUDGE PRESIDING

_____________________________________________________________________________________________
ORDER DENYING DEFENDANT’S MOTION TO 314 DISMISS PAGE 1
Tex. Civ. Prac. & Rem. Code § 74.001
*** This document is current through the 2025 Regular Session and the 2nd C.S. of the 89th
Legislature. ***
Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code
> Title 4 Liability in Tort (Chs. 71 — 100D) > Chapter 74 Medical Liability (Subchs. A — L)
> Subchapter A General Provisions (§§ 74.001 — 74.004)

Sec. 74.001. Definitions.

(a) In this chapter:
(1) “Affiliate” means a person who, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with a
specified person, including any direct or indirect parent or subsidiary.
(2) “Claimant” means a person, including a decedent’s estate, seeking or who has
sought recovery of damages in a health care liability claim. All persons claiming to
have sustained damages as the result of the bodily injury or death of a single person
are considered a single claimant.
(3) “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of the person, whether through
ownership of equity or securities, by contract, or otherwise.
(4) “Court” means any federal or state court.
(5) “Disclosure panel” means the Texas Medical Disclosure Panel.
(6) “Economic damages” has the meaning assigned by Section 41.001.
(7) “Emergency medical care” means bona fide emergency services provided after
the sudden onset of a medical or traumatic condition manifesting itself by acute
symptoms of sufficient severity, including severe pain, such that the absence of
immediate medical attention could reasonably be expected to result in placing the
patient’s health in serious jeopardy, serious impairment to bodily functions, or
serious dysfunction of any bodily organ or part. The term does not include medical
care or treatment that occurs after the patient is stabilized and is capable of
receiving medical treatment as a nonemergency patient or that is unrelated to the
original medical emergency.
(8) “Emergency medical services provider” means a licensed public or private
provider to which Chapter 773, Health and Safety Code, applies.
Page 2 of 5
Tex. Civ. Prac. & Rem. Code § 74.001

(9) “Gross negligence” has the meaning assigned by Section 41.001.
(10) “Health care” means any act or treatment performed or furnished, or that
should have been performed or furnished, by any health care provider for, to, or on
behalf of a patient during the patient’s medical care, treatment, or confinement.
(11) “Health care institution” includes:
(A) an ambulatory surgical center;
(B) an assisted living facility licensed under Chapter 247, Health and Safety
Code;
(C) an emergency medical services provider;
(D) a health services district created under Chapter 287, Health and Safety
Code;
(E) a home and community support services agency;
(F) a hospice;
(G) a hospital;
(H) a hospital system;
(I) an intermediate care facility for individuals with an intellectual disability or a
home and community-based services waiver program for individuals with an
intellectual disability adopted in accordance with Section 1915(c) of the federal
Social Security Act (42 U.S.C. Section 1396n), as amended;
(J) a nursing home; or
(K) an end stage renal disease facility licensed under Section 251.011, Health and
Safety Code.
(12)
(A) “Health care provider” means any person, partnership, professional
association, corporation, facility, or institution duly licensed, certified, registered,
or chartered by the State of Texas to provide health care, including:
(i) a registered nurse;
(ii) a dentist;
(iii) a podiatrist;
(iv) a pharmacist;
(v) a chiropractor;
(vi) an optometrist;
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Tex. Civ. Prac. & Rem. Code § 74.001

(vii) a health care institution; or
(viii) a health care collaborative certified under Chapter 848, Insurance
Code.
(B) The term includes:
(i) an officer, director, shareholder, member, partner, manager, owner, or
affiliate of a health care provider or physician; and
(ii) an employee, independent contractor, or agent of a health care provider
or physician acting in the course and scope of the employment or contractual
relationship.
(13) “Health care liability claim” means 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, 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. The term does not include a cause of action described by
Section 406.033(a) or 408.001(b), Labor Code, against an employer by an employee or
the employee’s surviving spouse or heir.
(14) “Home and community support services agency” means a licensed public or
provider agency to which Chapter 142, Health and Safety Code, applies.
(15) “Hospice” means a hospice facility or activity to which Chapter 142, Health
and Safety Code, applies.
(16) “Hospital” means a licensed public or private institution as defined in Chapter
241, Health and Safety Code, or licensed under Chapter 577, Health and Safety
Code.
(17) “Hospital system” means a system of hospitals located in this state that are
under the common governance or control of a corporate parent.
(18) “Intermediate care facility for individuals with an intellectual disability ” means
a licensed public or private institution to which Chapter 252, Health and Safety
Code, applies.
(19) “Medical care” means any act defined as practicing medicine under Section
151.002, Occupations Code, performed or furnished, or which should have been
performed, by one licensed to practice medicine in this state for, to, or on behalf of
a patient during the patient’s care, treatment, or confinement.
(20) “Noneconomic damages” has the meaning assigned by Section 41.001.
(21) “Nursing home” means a licensed public or private institution to which
Chapter 242, Health and Safety Code, applies.
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Tex. Civ. Prac. & Rem. Code § 74.001

(22) “Pharmacist” means one licensed under Chapter 551, Occupations Code, who,
for the purposes of this chapter, performs those activities limited to the dispensing
of prescription medicines which result in health care liability claims and does not
include any other cause of action that may exist at common law against them,
including but not limited to causes of action for the sale of mishandled or defective
products.
(23) “Physician” means:
(A) an individual licensed to practice medicine in this state;
(B) a professional association organized under the Texas Professional
Association Act (Article 1528f, Vernon’s Texas Civil Statutes) by an individual
physician or group of physicians;
(C) a partnership or limited liability partnership formed by a group of
physicians;
(D) a nonprofit health corporation certified under Section 162.001, Occupations
Code; or
(E) a company formed by a group of physicians under the Texas Limited
Liability Company Act (Article 1528n, Vernon’s Texas Civil Statutes).
(24) “Professional or administrative services” means those duties or services that a
physician or health care provider is required to provide as a condition of
maintaining the physician’s or health care provider’s license, accreditation status, or
certification to participate in state or federal health care programs.
(25) “Representative” means the spouse, parent, guardian, trustee, authorized
attorney, or other authorized legal agent of the patient or claimant.
(b) Any legal term or word of art used in this chapter, not otherwise defined in this
chapter, shall have such meaning as is consistent with the common law.

History

Enacted by Acts 2003, 78th Leg., ch. 204 (H.B. 4), § 10.01, effective September 1, 2003; am.
Acts 2011, 82nd Leg., 1st C.S., ch. 7 (S.B. 7), § 4.02, effective September 1, 2011; Acts 2015,
84th Leg., ch. 728 (H.B. 1403), § 1, effective September 1, 2015; Acts 2023, 88th Leg., ch. 30
(H.B. 446), § 1.01, effective September 1, 2023.

Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2025 All rights reserved.
Page 5 of 5
Tex. Civ. Prac. & Rem. Code § 74.001

End of Document
Tex. Civ. Prac. & Rem. Code § 74.351, Part 1 of 3
*** This document is current through the 2025 Regular Session and the 2nd C.S. of the 89th
Legislature. ***
Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code
> Title 4 Liability in Tort (Chs. 71 — 100D) > Chapter 74 Medical Liability (Subchs. A — L)
> Subchapter H Procedural Provisions (§§ 74.351 — 74.353)

Sec. 74.351. Expert Report.

(a) In a health care liability claim, a claimant shall, not later than the 120th day after
the date each defendant’s original answer is filed or a later date required under Section
74.353, serve on that party or the party’s attorney one or more expert reports, with a
curriculum vitae of each expert listed in the report for each physician or health care
provider against whom a liability claim is asserted. The date for serving the report may
be extended by written agreement of the affected parties. Each defendant physician or
health care provider whose conduct is implicated in a report must file and serve any
objection to the sufficiency of the report not later than the later of the 21st day after
the date the report is served or the 21st day after the date the defendant’s answer is
filed, failing which all objections are waived.
(b) If, as to a defendant physician or health care provider, an expert report has not
been served within the period specified by Subsection (a), the court, on the motion of
the affected physician or health care provider, shall, subject to Subsection (c), enter an
order that:
(1) awards to the affected physician or health care provider reasonable attorney’s
fees and costs of court incurred by the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with
prejudice to the refiling of the claim.
(c) If an expert report has not been served within the period specified by Subsection
(a) because elements of the report are found deficient, the court may grant one 30-day
extension to the claimant in order to cure the deficiency. If the claimant does not
receive notice of the court’s ruling granting the extension until after the applicable
deadline has passed, then the 30-day extension shall run from the date the plaintiff first
received the notice.
(d) to (h) [Reserved].
Page 2 of 4
Tex. Civ. Prac. & Rem. Code § 74.351, Part 1 of 3

(i) Notwithstanding any other provision of this section, a claimant may satisfy any
requirement of this section for serving an expert report by serving reports of separate
experts regarding different physicians or health care providers or regarding different
issues arising from the conduct of a physician or health care provider, such as issues of
liability and causation. Nothing in this section shall be construed to mean that a single
expert must address all liability and causation issues with respect to all physicians or
health care providers or with respect to both liability and causation issues for a
physician or health care provider.
(j) Nothing in this section shall be construed to require the serving of an expert report
regarding any issue other than an issue relating to liability or causation.
(k) Subject to Subsection (t), an expert report served under this section:
(1) is not admissible in evidence by any party;
(2) shall not be used in a deposition, trial, or other proceeding; and
(3) shall not be referred to by any party during the course of the action for any
purpose.
(l) A court shall grant a motion challenging the adequacy of an expert report only if it
appears to the court, after hearing, that the report does not represent an objective good
faith effort to comply with the definition of an expert report in Subsection (r)(6).
(m) to (q) [Reserved].
(r) In this section:
(1) “Affected parties” means the claimant and the physician or health care provider
who are directly affected by an act or agreement required or permitted by this
section and does not include other parties to an action who are not directly affected
by that particular act or agreement.
(2) “Claim” means a health care liability claim.
(3) [Reserved].
(4) “Defendant” means a physician or health care provider against whom a health
care liability claim is asserted. The term includes a third-party defendant, cross-
defendant, or counterdefendant.
(5) “Expert” means:
(A) with respect to a person giving opinion testimony regarding whether a
physician departed from accepted standards of medical care, an expert qualified
to testify under the requirements of Section 74.401;
Page 3 of 4
Tex. Civ. Prac. & Rem. Code § 74.351, Part 1 of 3

(B) with respect to a person giving opinion testimony regarding whether a
health care provider departed from accepted standards of health care, an expert
qualified to testify under the requirements of Section 74.402;
(C) with respect to a person giving opinion testimony about the causal
relationship between the injury, harm, or damages claimed and the alleged
departure from the applicable standard of care in any health care liability claim, a
physician who is otherwise qualified to render opinions on such causal
relationship under the Texas Rules of Evidence;
(D) with respect to a person giving opinion testimony about the causal
relationship between the injury, harm, or damages claimed and the alleged
departure from the applicable standard of care for a dentist, a dentist or
physician who is otherwise qualified to render opinions on such causal
relationship under the Texas Rules of Evidence;
(E) with respect to a person giving opinion testimony about the causal
relationship between the injury, harm, or damages claimed and the alleged
departure from the applicable standard of care for a podiatrist, a podiatrist or
physician who is otherwise qualified to render opinions on such causal
relationship under the Texas Rules of Evidence; or
(F) with respect to a person giving opinion testimony about the causal
relationship between the injury, harm, or damages claimed and the alleged
departure from the applicable standard of care for a chiropractor, a chiropractor
or physician who is otherwise qualified to render opinions on such causal
relationship under the Texas Rules of Evidence.
(6) “Expert report” means a written report by an expert that provides a fair
summary of the expert’s opinions as of the date of the report regarding applicable
standards of care, the manner in which the care rendered by the physician or health
care provider failed to meet the standards, and the causal relationship between that
failure and the injury, harm, or damages claimed.
(s) Until a claimant has served the expert report and curriculum vitae as required by
Subsection (a), all discovery in a health care liability claim is stayed except for the
acquisition by the claimant of information, including medical or hospital records or
other documents or tangible things, related to the patient’s health care through:
(1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure;
(2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure;
and
(3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure.
Page 4 of 4
Tex. Civ. Prac. & Rem. Code § 74.351, Part 1 of 3

(t) If an expert report is used by the claimant in the course of the action for any
purpose other than to meet the service requirement of Subsection (a), the restrictions
imposed by Subsection (k) on use of the expert report by any party are waived.
(u) Notwithstanding any other provision of this section, after a claim is filed all
claimants, collectively, may take not more than two depositions before the expert
report is served as required by Subsection (a).

History

Enacted by Acts 2003, 78th Leg., ch. 204 (H.B. 4), § 10.01, effective September 1, 2003; am.
Acts 2005, 79th Leg., ch. 635 (H.B. 2645), § 1, effective September 1, 2005; am. Acts 2013, 83rd
Leg., ch. 870 (H.B. 658), § 2, effective September 1, 2013; Acts 2021, 87th Leg., ch. 167 (S.B.
232), § 2, effective September 1, 2021; Acts 2023, 88th Leg., ch. 63 (S.B. 2171), § 1, effective
September 1, 2023.

Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2025 All rights reserved.

End of Document
Tex. Civ. Prac. & Rem. Code § 74.353
*** This document is current through the 2025 Regular Session and the 2nd C.S. of the 89th
Legislature. ***
Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code
> Title 4 Liability in Tort (Chs. 71 — 100D) > Chapter 74 Medical Liability (Subchs. A — L)
> Subchapter H Procedural Provisions (§§ 74.351 — 74.353)

Sec. 74.353. Preliminary Determination for Expert Report Requirement.

(a) On motion of a claimant filed not later than 30 days after the date each defendant’s
original answer is filed, a court may issue a preliminary determination regarding whether
a claim made by the claimant is a health care liability claim for the purposes of Section
74.351.
(b) If a court determines under Subsection (a) or (c) that a claim is a health care
liability claim for purposes of Section 74.351, the claimant shall serve an expert report as
required by Section 74.351 not later than the later of:
(1) 120 days after the date each defendant’s original answer is filed;
(2) 60 days after the date the court issues the preliminary determination under
Subsection (a) or (c); or
(3) a date agreed to in writing by the affected parties.
(c) If a court does not issue a preliminary determination under Subsection (a) before
the 91st day after the date that a claimant files a motion under that subsection, the
court shall issue a preliminary determination that the claim is a health care liability claim
for the purposes of Section 74.351.
(d) A preliminary determination under this section is subject to interlocutory appeal by
either the claimant or defendant.
(e) If on interlocutory appeal an appellate court reverses a trial court’s preliminary
determination that a claim is not a health care liability claim, the claimant shall serve an
expert report as required by Section 74.351 not later than 120 days after the date that the
appellate court issues an opinion reversing the preliminary determination.
(f) A preliminary determination under this section applies only to the issue of whether
a claimant is required to serve an expert report under Section 74.351.

History
Page 2 of 2
Tex. Civ. Prac. & Rem. Code § 74.353

Acts 2021, 87th Leg., ch. 167 (S.B. 232), § 3, effective September 1, 2021.

Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2025 All rights reserved.

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