Shannon Medical Center v. Michael Sickels and James Christopher Cole

Reverse and Render and Memorandum Opinion filed August 25, 2026 In The Fifteenth Court of Appeals NO. 15-25-00167-CV SHANNON MEDICAL CENTER, Appellant V. MICHAEL SICKELS AND JAMES CHRISTOPHER COLE, Appellees On Appeal from the 51st District Court Tom Green County, Texas Trial Court Cause No. A250014C MEMORANDUM OPINION Appellees Dr. Michael Sickels and Dr. James Christopher Cole are radiologists who worked at appellant Shannon Medical Center (“Shannon”), a hospital. Sickels and Cole (“Radiologists”) sued Shannon, alleging Shannon negligently exposed them to radiation while they worked there. Shannon filed a motion to dismiss, arguing that Radiologists’ claims were health care liability claims (“HCLCs”) and should be dismissed because Radiologists failed to file the requisite expert report within 120 days of Shannon’s answer. The trial court denied the motion and Shannon filed this interlocutory appeal. Because we conclude that Radiologists’ claims are HCLCs, we reverse and render. BACKGROUND Dr. Michael Sickels and Dr. James Christopher Cole worked at Shannon Medical Center as radiologists for two decades. Both received skin cancer diagnoses and had to undergo multiple invasive surgical procedures to treat the cancer. Radiologists then sued Shannon, asserting claims of negligence, negligence per se, and gross negligence. They argued that Shannon breached its common law duty of care to Radiologists by failing to properly monitor, warn, report, control, and restrict Radiologists from excessive radiation exposure, and by failing to maintain proper procedures for performing these duties. Radiologists also asserted breaches of Shannon’s common law duty to provide Radiologists with proper radiation monitoring devices to measure the levels of radiation exposure in Radiologists’ hands and to provide Radiologists with appropriate and suitable protective equipment and clothing. Radiologists further pleaded that Shannon breached its statutory duty of care by failing to maintain proper procedures regarding radiation exposure to Radiologists in accordance with Chapter 401 of the Texas Health and Safety Code (“Chapter 401”) and Title 25, Chapter 289 of the Texas Administrative Code (“Chapter 289”), the regulations promulgated to implement Chapter 401. 25 Tex. Admin. Code §§ 289.101–.102. Radiologists pleaded that these failures resulted in Radiologists’ skin cancer diagnoses. Shannon filed an answer and then, over 120 days later, filed a motion seeking to dismiss Radiologists’ claims because the claims were HCLCs subject to the Texas Medical Liability Act, and Radiologists failed to file the required expert report within 120 days of Shannon’s answer. Following a hearing, the trial court denied Shannon’s motion. Shannon then filed this interlocutory appeal. 2  STANDARD OF REVIEW The Texas Medical Liability Act requires HCLC claimants1 to serve the defendant an expert report “describing the applicable standards of care, how the defendant’s conduct failed to meet those standards, and how those failures caused the claimant harm . . . within 120 days after the defendant files its original answer . . . .” Collin Creek Assisted Living Ctr., Inc. v. Faber, 671 S.W.3d 879, 885 (Tex. 2023). If a claimant fails to serve such a report, “the trial court must dismiss the claim with prejudice and award the defendant attorney’s fees and costs.” Id. The primary dispute between the parties is whether the Radiologists’ claims are HCLCs. An HCLC is defined as a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, 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. Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). The Texas Supreme Court has recognized that this definition includes three essential elements: (1) the defendant is a physician or health care provider; (2) the claim is for treatment, lack of treatment, or another departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s act or omission proximately caused the claimant’s injury or death. Faber, 671 S.W.3d at 886. The 1 A “claimant” is a “person . . . seeking or who has sought recovery of damages in a health care liability claim.” Tex. Civ. Prac. & Rem. Code § 74.001(a)(2). 3 parties do not dispute the first and third elements in this appeal. Only the second is at issue—whether Radiologists’ claims allege a departure from safety standards related to health care. We review whether a claimant asserted an HCLC de novo, Faber, 671 S.W.3d at 885, but we review motions to dismiss targeting the adequacy of an expert report for abuse of discretion, Baty v. Futrell, 543 S.W.3d 689, 693 & n.4 (Tex. 2018).2 Whether a claim is an HCLC “turns on the claim’s ‘underlying nature . . . rather than its label.’” Faber, 671 S.W.3d at 885 (quoting Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019)). Courts “must focus on the set of operative facts ‘underlying the claim’ that are relevant to the alleged injury, not on how ‘the plaintiff’s pleadings describ[e] the facts or legal theories asserted.’” Id. (alteration in original) (quoting Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012)). In appraising these operative facts, courts must not just look at the pleadings but the entire record, “including ‘pleadings, motions and responses, and relevant evidence properly admitted.’” Id. at 886 (quoting Loaisiga, 379 S.W.3d at 258). ANALYSIS Shannon challenges the trial court’s order denying their motion to dismiss, arguing that the (1) Radiologists’ claims are HCLCs; (2) the carve out to HCLCs for employee actions against employers does not apply here; and (3) the required expert report was not filed. We address these issues in turn. 3 2 Radiologists contend that courts must analyze the applicability of the HCLC carve out provision for claims by employees against employers under an abuse of discretion standard. Whether the carve out provision applies necessarily implicates whether the claims at issue are HCLCs, which makes review of the carve out provision’s applicability de novo. Radiologists cite Eden II Enterprises, LLC v. Charlton to support their position, but that case addressed the adequacy of an expert report, not whether an HCLC was asserted. No. 02-24-00079-CV, 2024 WL 2971692, at *3 (Tex. App.—Fort Worth June 13, 2024, no pet.) (mem. op.). 3 Radiologists throughout argue that Shannon failed to preserve certain arguments on 4  I. Radiologists’ Claims are HCLCs. In their first issue, Shannon argues that Radiologists’ claims meet all three elements to be HCLCs. Namely, the claims are against a health care provider, Shannon; the claims allege departures from safety standards that have a substantive nexus to the provision of health care; and Shannon’s departures from safety standards proximately caused their injuries. Shannon also contends there is a rebuttable presumption that Radiologists’ claims are HCLCs. Radiologists do not dispute that Shannon is a health care provider and that Shannon’s alleged departures from safety standards proximately caused Radiologists’ injuries, but they contest that Shannon’s violation of safety standards has a substantial nexus with the provision of health care. Radiologists also contest that there is a rebuttable presumption that their claims are HCLCs. We agree with Shannon that there is a rebuttable presumption that Radiologists’ claims are HCLCs and that Radiologists have not overcome that presumption. A. There Is a Rebuttable Presumption that Radiologists’ Claims are HCLCs. We first determine whether there is a rebuttable presumption that Radiologists’ claims are HCLCs. “When a claim brought against a health care provider is ‘based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement,’ a rebuttable presumption arises that it is a health care liability claim for purposes of the Medical Liability Act.” Weems, 575 appeal regarding the first two issues because they were not initially raised before the trial court. “But our preservation rules recognize that parties may waive issues, not arguments, by failing to raise them.” Montelongo v. Abrea, 622 S.W.3d 290, 298 n.10 (Tex. 2021). Shannon raised the issue of whether Radiologists’ claims were HCLCs in its motion to dismiss before the trial court. Because the issue of whether the HCLC employee-claim carve out provision applies implicates whether a claim is an HCLC, that issue too was raised before the trial court. Shannon further addressed this issue in its reply brief when it responded to Radiologists’ arguments that the carve out applied. Accordingly, none of Shannon’s arguments as to these issues are waived. 5 S.W.3d at 363 (quoting Loaisiga, 379 S.W.3d at 256). Here, Radiologists’ allegations taken together establish that Shannon’s violations of radiation safety standards implicate Shannon’s conduct during the course of patients’ care and treatment. Radiologists pleaded that they were injured by radiation exposure “through the machines used in the performance of their duties” at Shannon and concede in their briefing throughout this litigation that their injuries occurred by providing or assisting with the provision of health care to patients. Radiologists also acknowledge in their response to Shannon’s motion to dismiss in the trial court that “a good deal of the exposure to ionizing radiation Plaintiffs experienced did occur in areas where patients were present . . . .” Taking these statements together, the gravamen of Radiologists’ claims is that due to Shannon’s negligence in failing to properly abide by radiation safety standards, Radiologists were exposed to excessive radiation while providing health care to patients present in the room. These facts, taken as true, implicate Shannon’s conduct during the course of Radiologists’ care of patients. Radiologists were not recipients of any health care, but “[t]he [Medical Liability] Act does not limit its reach to persons receiving or having received health or medical care—it applies to ‘claimants.’” CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d 528, 537 (Tex. 2016) (quoting Tex. Civ. Prac. & Rem. Code § 74.001(a)(13)). Accordingly, Radiologists bear the burden to show that their claims are not HCLCs. Radiologists object that this rebuttable presumption only applies when a patient sues a health care provider. Radiologists point to language in Loaisiga v. Cerda, which held that “the TMLA creates a rebuttable presumption that a patient’s claims” against a “health care provider based on facts implicating the defendant’s conduct during the patient’s care, treatment, or confinement are HCLCs.” 379 S.W.3d at 252 (emphasis added). Notwithstanding such wording in Loaisiga, the 6 Court applied the presumption in a later case, Baylor Scott & White, Hillcrest Medical Center. v. Weems, which did not involve a patient claimant. 575 S.W.3d at 363. The claimant in Weems was someone indicted for aggravated assault who sued a hospital for intentional infliction of emotional distress, alleging he was only indicted because the nurse who examined the person he assaulted fraudulently described that person’s injuries as being more severe than they in fact were. Id. at 361. The Court held that the claimant’s “pleadings invoke the presumption” and so he “b[ore] the burden of rebutting the presumption that his claim is a health care liability claim.” Id. at 363. B. A Substantive Nexus Exists Between Shannon’s Alleged Safety Standard Violations and the Provision of Health Care. Shannon argues that Radiologists’ claims fall under a subcategory of HCLCs called “safety” HCLCs, which concern a health care provider’s “departures from safety standards . . . .” Faber, 671 S.W.3d at 887. “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.” Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 505 (Tex. 2015). In making this determination, courts must determine whether there is “a substantive nexus between the safety standards allegedly violated and the provision of health care.” Id. at 504. Courts utilize a seven-factor non-exclusive test, the Ross factors, “to assess whether a substantive nexus exists.” Faber, 671 S.W.3d at 888. These factors are: 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; 7  3. At the time of the injury was the claimant in the process of seeking or receiving health care; 4. At the time of the injury was the claimant providing or assisting in providing health care; 5. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider; 6. If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; [and] 7. Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety- related requirements set for health care providers by governmental or accrediting agencies? Id. (alteration in original) (quoting Ross, 462 S.W.3d at 505). We hold that, on balance, Shannon prevails on the Ross factors. The first factor favors Shannon. Shannon’s alleged negligence occurred in the course of its performing—or failing to perform in this instance—tasks with the purpose of protecting patients from harm. Shannon’s failure to monitor, control, and restrict radiation exposure to Radiologists is a concern that applies to both physicians and patients in this instance. This is so because Radiologists, by their own allegations, were providing health care to patients using radiation equipment while the patients were in the room. Radiologists’ response to Shannon’s motion to dismiss asserts that “a good deal of the exposure to ionizing radiation Plaintiffs experienced did occur in areas where patients were present . . . .” Radiologists contend that the presence of patients in such areas did not trigger a duty of care by Shannon to such patients, but such a position is incongruous with the law. “The standard of care for a hospital is what an ordinarily prudent hospital would do under the same or similar circumstances.” Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001). Shannon has a duty of care as a hospital to patients to keep its premises in a reasonably safe condition. Charrin 8 v. Methodist Hosp., 432 S.W.2d 572, 574–75 (Tex. App.—Houston [1st Dist.] 1968, no writ) (“A patient accepted by a hospital enjoys the status of an invitee or business visitor entitled to the exercise of ordinary care by the hospital to keep its premises in reasonably safe condition for the expected use. Thus, the hospital as occupier of the premises has a duty to keep them in a reasonably safe condition for its invitees, to warn or protect its invitees from any dangers of which it knows or should know in the exercise of ordinary care.” (citation omitted)); Mills v. Angel, 995 S.W.2d 262, 267 (Tex. App.—Texarkana 1999, no pet.) (stating a hospital owes a patient “a duty to keep its premises in a reasonably safe condition”). Maintaining radiation standards for equipment used to treat patients while the patients are in the room falls under that duty. Radiologists dispute that this factor favors treating their claim as an HCLC. They argue that their pleadings only allege the violation of general occupational safety standards that make no reference to patients or standards protecting patients. Radiologists further contend that Shannon cites no evidence that the violations of such standards involved protecting patients. But when assessing whether claims are HCLCs, we focus on “the set of operative facts ‘underlying the claim’ that are relevant to the alleged injury” and “not on how ‘the plaintiff’s pleadings describ[e] the facts or legal theories asserted.’” Faber, 671 S.W.3d at 885 (alteration in original) (quoting Loaisiga, 379 S.W.3d at 255). In making this assessment, we look at not just the pleadings but the entire record, “including ‘pleadings, motions and responses, and relevant evidence properly admitted.’” Id. at 886 (quoting Loaisiga, 379 S.W.3d at 258). It is true that Radiologists’ pleadings do not mention the word “patient,” but the underlying operative facts in Radiologists’ pleadings, motion to dismiss response, and other briefing are sufficient on their own to show that the alleged negligence occurred in the course of Shannon’s failing to perform tasks 9 pertaining to its duty to protect patients from harm. Radiologists allege they were providing health care to patients using Shannon’s defective radiation equipment, which caused Radiologists’ injuries, while the patients were in the room. No evidence is needed to show factor one is met when these allegations are sufficient on their own. The second factor also favors Shannon. The facts pleaded by Radiologists confirm that their injuries due to radiation exposure occurred while providing health care to patients, who were present in the room. Given that the injuries occurred while health care was being provided to patients, Shannon’s duty to ensure a reasonably safe premises for patients was triggered. See Mills, 995 S.W.2d at 267. Radiologists argue that they never alleged that patients themselves were exposed to excess radiation, but such an admission is unnecessary to meet the second factor. This factor only requires that the “injuries occur in a place where patients might be during the time they were receiving care,” which Radiologists’ own allegations aver. Ross, 462 S.W.3d at 505; Faber, 671 S.W.3d at 888. Turning to factors three and four, it is undisputed that Radiologists were not seeking or receiving health care but were instead providing it. The Texas Supreme Court has stated that “[i]n a particular case, the claimant will usually be seeking or receiving health care, or providing or assisting in providing health care, but not both” and that, consequently, “if either factor supports the conclusion that a claim is a health care liability claim, evaluation of the other factor is unnecessary.” Faber, 671 S.W.3d at 892 n.15. Accordingly, the third factor “is inapplicable.” See id. at 892. The fifth factor favors Radiologists. This factor asks whether Shannon violated safety standards arising specifically from its “distinct” duty as a health care provider, as opposed to a duty “generally owed” by any kind of entity. See id. at 893 (“Here, the relevant question is whether DaySpring—as a health care facility 10 charged with caring for Smith’s physical health—violated a duty distinct from one generally owed by businesses to all invitees.”); Galvan v. Mem’l Hermann Hosp. Sys., 476 S.W.3d 429, 432 (Tex. 2015) (per curiam) (stating “[h]ospital standards for floor maintenance ‘may also be the same standards many businesses generally have’” and did not implicate the hospital’s duty as a healthcare provider (quoting Ross, 462 S.W.3d at 503)). Here, Radiologists pleaded common-law as well as regulatory and statutory bases for the violation of radiation safety standards. Shannon does not argue, and the record does not reflect, that the common-law grounds 4 are distinctive to health care providers as opposed to being generally applicable to any entity handling radiation- emitting equipment. Indeed, such safety standards seem more akin to the hospital standards for floor maintenance in Galvan, which applied to businesses generally. Galvan, 476 S.W.3d at 432. This assessment is buttressed by the radiation standards promulgated in the Chapter 289 regulations, which apply not only to machines used in the “healing arts” but also to, among other industries, veterinary medicine, dentistry, industrial radiation, industrial radiography, and oil and gas well logging. 25 Tex. Admin. Code §§ 289.226–228, .232–.233, .252–.253, .255–.256. Chapter 289 in fact goes further than merely expounding on general radiation safety standards; it expressly excludes patient exposure from their scope. Id. § 289.202(b)(1) (“[D]ose limits in this section do not apply to doses due . . . to exposure of patients to radiation for the purpose of medical diagnosis or therapy” (emphasis added)). 4 As stated earlier, these grounds are Shannon’s failure to properly monitor, warn, report, control, and restrict Radiologists from excessive radiation exposure, and failing to maintain proper procedures to that effect. Other grounds include failure to provide Radiologists with proper radiation monitoring devices to measure the levels of radiation exposure in Radiologists’ hands and to provide Radiologists with appropriate and suitable protective equipment and clothing. 11  The sixth factor favors Shannon. The record indicates that the instrumentality involved in Shannon’s alleged negligence was the type used in providing health care. Radiologists argue that Shannon has not offered evidence as to what specific machine caused Radiologists’ injuries, but Shannon did not need to do so. Radiologists plead that they were “exposed to ionizing radiation through the machines used in the performance of their duties” and were injured due to such exposure. (emphasis added). Radiologists conceded per factor four that their injuries were incurred while providing health care to patients and that Radiologists were exposed to the radiation while patients were present. These allegations and concessions taken together are sufficient to show that Radiologists were using the machines for the purposes of providing health care to patients, making the machines the type used in providing health care. To support their argument that Shannon must identify what machine caused their injuries, Radiologists cite a Fourteenth Court of Appeals opinion stating that “[w]ithout more than a tentative identification regarding the type of machine that allegedly caused [claimant’s] injuries,” the Court could not determine whether the radiation-emitting machine was governed by standards specific to healthcare providers or standards generally applicable to any person possessing such a machine. Harris Cnty. Hosp. Dist. v. McNew, No. 14-18-00868-CV, 2020 WL 950089, at *4 (Tex. App.—Houston [14th Dist.] Feb. 27, 2020, no pet.) (mem. op.). But the circumstances in this case are different from McNew. McNew involved a clerical employee, the claimant, working in an administrative office in a hospital who asserted a radiation-emitting device in an adjacent room caused her breast cancer. Id. at *1. In applying the Ross factors, the Court concluded the sixth factor was indeterminate because the evidence and briefing were ultimately unclear as to whether the machine was used for health care, research, or some other purpose. Id. 12 at *4. Unlike in McNew, Radiologists’ own allegations make clear that radiation- producing machines were used to provide health care, thereby invoking Shannon’s duties as a health care provider and any standards that would apply to such health care providing machines. Moreover, in this case, there is a rebuttable presumption that Radiologists’ claims are HCLCs because Radiologists’ claims are “based on facts implicating [Shannon’s] conduct during any care,” which was not the case in McNew. Id. at *5. Radiologists therefore had the burden to show the instrumentalities at issue were not used to provide health care, which they did not meet. Radiologists also contend that this factor does not favor Shannon because Radiologists allege Shannon was negligent for failing to install radiation monitoring devices and Shannon failed to provide evidence identifying these instrumentalities. But Shannon’s failure to monitor the radiation-emitting machines, not the devices monitoring such radiation, is the basis of Radiologists’ injuries that form the basis of their claims. The monitoring devices are not themselves instrumentalities used to provide health care but are rather tools to ensure such instrumentalities—the radiation-emitting machines—are safe. The seventh factor favors Radiologists. The regulations in Chapter 289, enacted to implement Chapter 401 of the Texas Health and Safety Code, provide the safety-related requirements set by governmental agencies—here the Department of State Health Services in conjunction with the Texas Commission on Environmental Quality and the Railroad Commission of Texas. 25 Tex. Admin. Code § 289.101– 102 (memoranda stating their purpose is to coordinate the regulation of radiation sources between these three entities). Radiologists prevail on this factor for the same reasons they prevail on factor five. The safety standards under Chapter 289 as discussed above regulate radiation machines used in the healing arts and other 13 industries but do not regulate exposure as to patients and so are not health care specific. See Faber, 671 S.W.3d at 894 (holding that the seventh factor favored health care facility because the regulation at issue was health care specific and “there is no indication . . .that DaySpring’s decisions regarding maintenance of its sidewalk would have been motivated by a different, non-healthcare-specific safety standard.”). Here, the regulations in Chapter 289 embody the “different, non- healthcare-specific safety standard[s]” possibly motivating Shannon’s decisions regarding the safety of the radiation machines at issue. Id. Turning to the balance, Shannon prevails on four of the factors, Radiologists prevail on two, and factor three is inapplicable. The above factors are non-exclusive, but they on balance support the conclusion that “a substantive nexus” exists between the Shannon’s alleged violation of radiation safety standards and the provision of health care, implicating Shannon’s duties as a health care provider and so making them HCLCs. Ross, 462 S.W.3d at 504–505.5 Radiologists did not meet their burden to overcome the presumption that their claims are HCLCs. II. Radiologists Failed to Establish They Were Employees of Shannon. In their second issue, Shannon argues that the exemption to HCLCs under the Texas Medical Liability Act for employee claims against employers does not apply here. Shannon contends Radiologists were employees of Shannon Clinic, a separate entity from Shannon and that Radiologists’ relationship with Shannon did not rise to the level of employment. Radiologists respond that as a threshold matter Shannon has the burden to prove that Radiologists claims are not HCLCs because Radiologists’ allegations do not implicate misconduct during a patient’s care. That 5 As Shannon prevailing on these factors is sufficient to show a substantive nexus exists, we do not address Shannon’s argument that an independent factor, the need for expert medical or health care testimony to prove the merits of Radiologists’ claims, supports Radiologists’ claims being HCLCs. 14 burden includes demonstrating that the HCLC exemption on employee claims against employers does not apply. Radiologists also respond that, notwithstanding this fact, the record demonstrates that Radiologists were employed by Shannon. We hold that Radiologists had the burden to prove they were employed at Shannon, which they failed to do. As stated in the definition of HCLC, “[t]he 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.” Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). Section 406.033(a) describes causes of action brought by employees seeking to recover damages for personal injuries incurred in the scope of employment against employers who have not subscribed to workers’ compensation insurance. Tex. Lab. Code § 406.033(a). It is undisputed that Shannon is not subscribed to workers’ compensation insurance and that Radiologists are seeking damages for personal injuries from Shannon. The parties’ dispute concerns whether Radiologists are employees of Shannon. “Employee” under Section 406.033 is defined to mean “each person in the service of another under a contract of hire, whether express or implied, or oral or written,” Texas Labor Code § 401.012(a), while “employer” means “a person who makes a contract of hire” and “employs one or more employees,”6 id. § 401.011(18). But “[a]lthough determining whether a plaintiff is the defendant’s employee is ultimately a matter of applying these statutory definitions, courts have not often found the definitions alone to be dispositive.” Waste Mgmt. of Tex., Inc. v. Stevenson, 6 The definition of “employer” also states the person “has workers’ compensation insurance coverage” unless otherwise specified. Tex. Labor Code § 401.011(18). Because Section 406.033 contemplates suits by employees against employers not subscribed to workers’ compensation insurance in certain circumstances, it is an instance where being an “employer” does not require having workers’ compensation insurance. 15 622 S.W.3d 273, 277 (Tex. 2021). Both parties again agree that the determination of whether Radiologists are employees comes down to whether Shannon exercised the right of control over Radiologists’ work at Shannon, but they disagree as to how to determine whether there is such a right of control. Radiologists cite Waste Management of Texas, Inc. v. Stevenson as setting the standard while Shannon cites to Limestone Products Distribution, Inc. v. McNamara, 71 S.W.3d 308 (Tex. 2002) (per curiam). The Texas Supreme Court in both cases stated that “[t]he test to determine whether a worker is an employee rather than an independent contractor is whether the employer has the right to control the progress, details, and methods of operations of the work.” Stevenson, 622 S.W.3d at 277 (alteration in original) (quoting Limestone, 71 S.W.3d at 312). The Court in Stevenson on this question stated that whether a worker is in the service of a putative employer “has always depended on the extent to which the parties’ conduct at the jobsite demonstrated the client’s right to control the plaintiff’s daily work.” Id. at 279. Limestone utilizes a five-factor test to determine whether a right of control exists, which is not present in Stevenson: We measure the right to control by considering: (1) the independent nature of the worker’s business; (2) the worker's obligation to furnish necessary tools, supplies, and 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, 71 S.W.3d at 312. Radiologists argue Limestone’s standard is inapplicable because it only applies in the vicarious liability context while Shannon argues Stevenson’s standard is inapplicable because it only applies where the purported employer is subscribed to worker’s compensation insurance. We need not determine which of these standards apply—or whether they even conflict—because 16 under either standard Radiologists are not employees of Shannon. We note at the outset that, as established in Part I.A., the law supplies a rebuttable presumption that Radiologists’ claims are HCLCs because such claims are “based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement . . . .” Weems, 575 S.W.3d at 363 (quoting Loaisiga, 379 S.W.3d at 256). Radiologists therefore bear the burden to show that they were employees of Shannon. As this determination pertains to whether Radiologists’ claims are HCLCs, we must look to the “pleadings, motions and responses, and relevant evidence properly admitted” filed in this case. Faber, 671 S.W.3d at 886 (quoting Loaisiga, 379 S.W.3d at 258). Radiologists have not met their burden to show Shannon had a right of control over their work. The record shows that Radiologists have employment contracts with Shannon Clinic, which details the degree of control Shannon Clinic has over Radiologists, the time for which they are employed, and the method of payment.7 Specifically, the agreements state that “[t]he Physician is a full-time employee of [Shannon] 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.” Such duties include providing “medical services and treatment to patients of the Clinic . . . and patients from any managed care plan in which the Clinic is a participating provider,” keeping and maintaining records in connection with services rendered 7 Radiologists note in passing that the employment agreements, which are attached to Shannon’s motion to dismiss reply brief filed in the trial court, are unverified and unauthenticated. However, the record does not reflect that Radiologists objected to these contracts before the trial court, so we consider them as evidence. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 164 (Tex. 2018) (per curiam) (“To preserve a complaint for appellate review, a party must (1) complain to the trial court by way of ‘a timely request, objection, or motion; and (2) the trial court must rule or refuse to rule on the request, objection, or motion.’” (quoting Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 317 (Tex. 2012) (per curiam))). 17 under the agreement, and participating in Shannon Clinic’s patient care management or patient safety programs. The agreements also provide compensation to the Radiologists, listing a base salary, pooled compensation shared with other radiologists employed by Shannon Clinic, bonus compensation, and additional compensation for other services Radiologists provide to Shannon Clinic. In contrast, the record does not support a conclusion that Shannon had employment agreements with Radiologists, compensated Radiologists, or otherwise sufficiently controlled “the progress, details, and methods of operations of” Radiologists’ work to constitute a right of control. Stevenson, 622 S.W.3d at 277, 280 (quoting Limestone, 71 S.W.3d at 312). Radiologists argue that such control is evidenced by Radiologists’ affidavits averring that Radiologists had active medical staff privileges at Shannon, reported to and received feedback from Shannon’s Chief Medical Officer (“CMO”), submitted their work results through a computerized system maintained by Shannon, and that Shannon provided Radiologists with regular training and guidance. Radiologists also contend that other evidence supporting a right to control include Shannon’s website listing the CMO of Shannon Clinic as part of its leadership and listing its imaging department as located at the same address where Radiologists worked, Radiologists receiving business cards featuring the Shannon logo, and Shannon being the only hospital Radiologists were affiliated with. This evidence is insufficient to establish a right of control by Shannon. However, we note as an initial matter where the record supports a right to control. First, the Limestone factor regarding a “worker’s obligation to furnish necessary tools, supplies, and materials to perform the job” favors Radiologists. Limestone, 71 S.W.3d at 312. That is because Shannon acknowledges it “provides equipment in a literal sense (the radiology machines which are often immovable fixtures).” Notwithstanding that 18 fact, Shannon contends the Radiologists’ real tools are the knowledge and expertise in their minds, which Shannon does not supply. We reject Shannon’s contention that intangibles such as knowledge and expertise constitute “tools, supplies, and materials,” for the purpose of this factor. The words surrounding “tools”— “supplies” and “materials”—indicate “tools” has a physical basis. Hilco Elec. Co- op. v. Midlothian Butane Gas Co., Inc., 111 S.W.3d 75, 81 (Tex. 2003) (“[T]he rule of ejusdem generis . . . provides that when words of a general nature are used in connection with the designation of particular objects or classes of persons or things, the meaning of the general words will be restricted to the particular designation.”). Adopting Shannon’s interpretation would further render this factor meaningless as every job, whether on the factory floor or in the hospital room, requires the use of one’s mind. Second, Radiologists’ proffered affidavits evidence that Radiologists’ work schedule is set by Shannon. Radiologists argue in their briefing that Shannon “determined [Radiologists’] work,” but the affidavits cited in support of this argument in fact state that Shannon determined Radiologists’ “work schedule.” Nonetheless, even though Shannon contends Radiologists’ employment agreements state Radiologists are full-time employees of Shannon Clinic, the affidavits evidence that Radiologists work on Shannon’s schedule rather than their own.8 But Shannon providing the equipment Radiologists use and setting Radiologists’ schedule is too limited to rise to the level of a right of control on “the progress, details, and methods of operations of” Radiologists’ work. Stevenson, 622 S.W.3d at 277, 280 (quoting 8 Shannon also argues the employment agreements give Shannon Clinic control over Radiologists’ scheduling through language stating