chca-bayshore-lpas-successor-in-interest-to-chca-east-houston-lp ( 2012 )

Opinion issued July 19, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00764-CV
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CHCA BAYSHORE, L.P. D/B/A EAST HOUSTON REGIONAL MEDICAL
CENTER AND PASADENA BAYSHORE HOSPITAL, INC., Appellants
V.
AMY RAMOS AND RICHARD RAMOS, Appellees
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2010-49225
OPINION
Appellants CHCA Bayshore, L.P. d/b/a East Houston Regional Medical
Center and Pasadena Bayshore Hospital, Inc. (collectively, the “Hospital”) bring
this statutory interlocutory appeal from the denial of their motion to dismiss under
section 74.351 of the Texas Civil Practice and Remedies Code. In one issue, the
Hospital contends that the trial court erred because appellees Amy and Richard
Ramos asserted a health care liability claim and did not timely serve an expert
report.
We reverse the order of the trial court and remand for further proceedings
consistent with this opinion.
Background
Amy Ramos had a dilation and curettage procedure after suffering a
miscarriage when she was approximately 12 weeks pregnant. The operative report
of Amy’s obstetrician indicated that a “specimen was sent to pathology” for
testing. Because Amy and her husband wished to hold a funeral, the obstetrician
instructed the pathology department to test the specimen and then hold it for the
funeral home.
The next day, a funeral home employee went to the Hospital to receive the
specimen for burial. After the Ramoses held the funeral, they learned that the
Hospital had given the wrong specimen to the funeral home. The buried specimen
was exhumed and found to be the amputated toe of another patient. The Ramoses
later buried the correct specimen.
The Ramoses sued the Hospital, alleging negligence and negligent infliction
of emotional distress. Specifically, they alleged that the Hospital acted negligently
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with respect to the identification, handling, and disposition of the specimen, in
regard to training their employees, and in relation to their policies and procedures.
The Hospital filed a motion to dismiss, arguing that the Ramoses had pleaded a
health care liability claim governed by Chapter 74 of the Texas Civil Practice and
Remedies Code, yet they failed to timely serve an expert report. The Ramoses
denied that their claim was a health care liability claim and argued that no expert
report was required. In their response to the Hospital’s motion to dismiss, the
Ramoses argued in part that “there is no specialized standard in the health care
community that applies for the pathology department[’s] failure to deliver the
correct remains to the funeral home; and there is no medical judgment related to
the care or treatment of the fetal remains.” After a hearing, the trial court denied
the motion to dismiss, and the Hospital filed this interlocutory appeal.
Analysis
The sole issue in this appeal is whether the Ramoses’ claim qualifies as a
health care liability claim governed by the Medical Liability Act. See TEX. CIV.
PRAC. & REM. CODE ANN. §§ 74.001–.507 (West 2011). A claimant who files a
health care liability claim must serve an expert report on each party or his counsel
not later than the 120th day after the claimant’s original petition was filed. Id.
§ 74.351(a). If the claimant fails to do so, the trial court must dismiss the health
care liability claim on the defendant’s motion. Id. § 74.351(b).
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In this case, the Hospital moved to dismiss the Ramoses’ suit because they
were required but failed to file an expert report in support of their alleged health
care liability claim. We review a trial court’s denial of a motion to dismiss under
Chapter 74 of the Texas Civil Practice and Remedies Code for abuse of discretion.
Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).
However, when the issue on appeal raises a question of law, such as whether the
statute applies to a particular claim, we employ a de novo standard of review. Tex.
W. Oaks Hosp., L.P. v. Williams, No. 10-0603, 2012 WL 2476807, at *3 (Tex.
June 29, 2012).
“Whether a claim is a health care liability claim depends on the underlying
nature of the claim being made.” Yamada v. Friend, 335 S.W.3d 192, 196 (Tex.
2010). Chapter 74 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, 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.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). The Hospital relies on
Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005), and
subsequent related cases, to argue that the Ramoses’ claims—which concern the
handling of a tissue specimen and related training issues—satisfy this definition
because they allege a departure from accepted standards of “health care.” The
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Hospital also argues that the Ramoses’ claims allege a departure from accepted
standards of care for “professional or administrative services directly related to
health care.”
We conclude that the Ramoses’ claims are health care liability claims.
Regardless of whether Diversicare and its progeny support characterizing the
Ramoses’ claims as ones for a “departure from accepted standards of medical care,
or health care,” we conclude that a separate aspect of the statutory definition of
“health care liability claim”—that term’s inclusion of “professional or
administrative services directly related to health care”—more naturally captures
the essence of the Ramoses’ claims.
I. Professional or administrative services
“Professional or administrative services,” as that phrase is used in the
Medical Liability Act, are “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.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.001(a)(24). The Ramoses alleged that the Hospital was negligent in its
failures to properly identify the remains of the fetus, to establish and follow
policies and procedures for identifying and surrendering remains, to properly
secure and monitor the fetal remains, to train and manage its employees to prevent
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mislabeling or misidentifying the fetal remains, to establish and implement a
comprehensive program to prevent confusion of remains, and to establish and
implement a comprehensive program to prevent the improper surrender of remains.
The crux of these allegations is that the Hospital failed to properly handle, identify,
monitor, and dispose of a specimen resulting from a medical procedure.
a. Mishandling of specimen
Texas hospitals are required to obtain a license prior to admitting patients.
See TEX. HEALTH & SAFETY CODE ANN. § 241.021 (West 2012); 25 TEX. ADMIN.
CODE ANN. § 133.21(a)(1) (2012) (Tex. Dep’t of State Health Servs., Hospital
License). During the licensing period, a hospital is required to comply with
applicable legislative and regulatory requirements. See 25 TEX. ADMIN. CODE
ANN. § 133.21(b); see generally TEX. HEALTH & SAFETY CODE §§ 241.001–.156
(West 2012) (Texas Hospital Licensing Law); 25 TEX. ADMIN. CODE ANN.
§§ 133.1–133.169 (2012) (Hospital Licensing). Among other things, the Texas
Administrative Code requires that a hospital “shall maintain directly, or have
available adequate laboratory services to meet the needs of its patients.” 25 TEX.
ADMIN. CODE ANN. § 133.41(h) (Hospital Functions & Servs.). It also requires
that a hospital laboratory “shall make provision for proper receipt and reporting of
tissue specimens.” Id. § 133.41(h)(3)(C). And although an exemption is provided
for the disposition of fetal remains by transfer to a licensed funeral director, see id.
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§ 1.133(a)(2)(F), there are specific regulations applicable to the treatment and
disposition of “special waste from health-care related facilities,” including fetuses
and tissues. See id. §§ 1.131–1.137, 1.132(40) (Tex. Dep’t of State Health Servs.,
Definition, Treatment, & Disposition of Special Waste from Health-Care Related
Facilities).
Hospitals are required to abide by these regulations, and a hospital’s license
may be denied, suspended, or revoked for failure to comply. See TEX. HEALTH &
SAFETY CODE § 241.053(a)(1); 25 TEX. ADMIN. CODE ANN. § 133.121(1)(B) (Tex.
Dep’t of State Health Servs., Enforcement Action). To comply with the general
requirements pertaining to hospital laboratories and the specific requirements
pertaining to special waste, a hospital must have a means of identifying and storing
specimens, before and after testing. Procedures to ensure proper identification and
handling of the specimens are necessary to compliance with the regulations
pertaining to disposition of these types of specimens. Thus the identification,
handling, and ultimate disposal of specimens are services that a health care
provider is required to provide as a condition of maintaining its license.
Accordingly, we conclude that these functions—identification, handling, and
disposal of specimens—are professional or administrative services as contemplated
by Chapter 74. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(24).
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b. Negligent training and supervision
The Ramoses also alleged negligence pertaining to the Hospital’s training
and supervision of its employees and its establishment and maintenance of policies
and procedures for labeling, handling, and disposition of specimens. The
determination of whether such causes of action are health care liability claims
requires an examination of the claims’ underlying nature. Harris Methodist Fort
Worth v. Ollie, 342 S.W.3d 525, 527 (Tex. 2011) (per curiam).
The training and supervision of employees, as well as the maintenance of
adequate policies, are an inseparable part of fulfilling a hospital’s responsibilities
for the proper handling of specimens. For the reasons explained above, allegations
of these kinds of negligence directly implicate activities that are professional or
administrative services under the statute. Accordingly, they too may constitute
health care liability claims, so long as the other requirements of the statute are
satisfied. Cf. Diversicare, 185 S.W.3d at 848, 849–50 (a claim of negligent
supervision or failure to train is classified as a health care liability claim when the
claim alleges “a departure from accepted standards of medical care or health care if
the act or omission complained of is an inseparable part of the rendition of medical
services”); Ollie, 342 S.W.3d at 527 (similar causes of action alleged for claimed
departures from accepted standards of “safety” may also be health care liability
claims).
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II. Direct relation to health care
In order to give rise to a health care liability claim, the “professional or
administrative services” implicated by a cause of action against a health care
provider or physician must be “directly related to health care.” TEX. CIV. PRAC. &
REM. CODE ANN. § 74.001(a)(13); see Tex. W. Oaks, 2012 WL 2476807, at *10.
Chapter 74 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 ANN. § 74.001(a)(10).
In this case, the Hospital’s challenged actions were directly related to the
health care that Amy received while in the Hospital. First, Amy was
unquestionably a recipient of “health care” for purposes of the statute. While she
was a patient of the Hospital, Amy underwent “treatment”—a dilation and
curettage procedure—which was rendered on her behalf by a health care provider.
During the course of Amy’s treatment, the Hospital obtained a specimen of fetal
remains. Both the dilation and curettage procedure and the removal of the fetal
remains qualify as an act or treatment that satisfy the definition of “health care” in
section 74.001(a)(10).
Moreover, the alleged mishandling of the specimen that occurred after the
dilation and curettage procedure and the removal of the fetal remains was “directly
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related” to the “health care” received by Amy. The fetal remains were initially
obtained during and as a result of her dilation and curettage procedure. The
Hospital thus came into possession of the specimen as a direct result of providing
health care to Amy. Once the specimen was removed from Amy and it came into
the control of the Hospital, the Hospital was obligated to maintain the specimen
and ultimately dispose of it in compliance with applicable regulations and the
patient’s instructions. The Hospital is alleged to have negligently handled the
remains. If it did so, that action was an immediate consequence of having
performed the procedure that resulted in the Hospital’s handling of the remains,
and as such, it was directly related to the health care rendered to Amy by the
Hospital.
Based upon the statutory definition of “health care” and its reference to
treatment performed “during the patient’s medical care, treatment, or
confinement,” id. § 74.001(a)(10), the Ramoses contend that the Hospital’s
challenged actions must have been committed “during the patient’s medical care,
treatment, or confinement” to qualify as a health care liability claim. Id.
§ 74.001(a)(10), (19) (definitions of “health care” and “medical care”). Because
the allegedly tortious act—providing the wrong specimen to the funeral home—
occurred after Amy was discharged from the Hospital, the Ramoses thus argue that
their claims do not meet the statutory definition of a health care liability claim.
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We disagree with the Ramoses’ interpretation of the statute as it relates to
actions arising from professional or administrative services. In the context of such
a claim, it is not necessary that the professional or administrative services occur
during the patient’s medical care, treatment, or confinement. Instead, those
services only need be “directly related” to “health care,” including treatment that
was or should have been performed during the patient’s medical care, treatment, or
confinement. See id. § 74.001(a)(13) (definition of “health care liability claim”);
accord TTHR, L.P. v. Coffman, 338 S.W.3d 103 (Tex. App.—Fort Worth 2011, no
pet.). We hold that the Hospital’s professional or administrative services relating
to its handling of the fetal remains resulting from Amy’s dilation and curettage
procedure were directly related to the health care provided to Amy by the Hospital.
III. Absence of need for medical expert testimony
Finally, the Ramoses contend that they did not allege a health care liability
claim because there allegedly is no need for specialized medical expert testimony
to prove a claim of negligence with respect to the mishandling of a specimen as
alleged in their petition. Their argument that they have alleged negligence that is
within the common knowledge of laymen is unavailing.
In Yamada v. Friend, 335 S.W.3d 192 (Tex. 2010), the Supreme Court of
Texas unanimously held that one set of underlying facts cannot separately support
health care liability claims and ordinary negligence claims. In Yamada, the
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plaintiffs sued Dr. Yamada and others after their daughter collapsed at a water park
and later died from a heart condition. 335 S.W.3d at 193. The plaintiffs alleged
that Dr. Yamada, a medical doctor who specialized in emergency medicine, had
failed “to properly provide advice and recommendations to the City about its safety
practices,” including the placement and maintenance of automated external
defibrillators at the water park. Id. The plaintiffs’ pleadings stated claims for both
ordinary negligence and negligence based on a breach of an emergency medicine
physician’s standard of care. Id. They did not file a timely expert report. Id. The
court of appeals dismissed the part of the case relating to the physician’s standard
of care but refused to dismiss the ordinary negligence claims. Id. The Supreme
Court reversed, holding that in light of its prior decisions “to the effect that if the
gravamen or essence of a cause of action is a health care liability claim, then
allowing the claim to be split or spliced into a multitude of other causes of action
with differing standards of care, damages, and procedures would contravene the
Legislature’s explicit requirements.” Id. at 197. The Court further noted, “[I]t
would be hard to find a health care liability claim in which some action by the
health care provider or physician arguably would not be within the common
knowledge of jurors, and thus would support a claim for ordinary negligence.” Id.
The suggestion that expert testimony is not required to prove the claim is not
dispositive of whether it qualifies as a “health care liability claim.” Even when
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expert medical testimony is not necessary, the claim may still be a health care
liability claim. See Tex. W. Oaks, 2012 WL 2476807, at *8. The statute does not
expressly state that a claim must require supporting expert testimony to qualify as a
health care liability claim, nor can that requirement by implied from the standard
set forth in the statute.
Conclusion
We conclude that the Ramoses’ petition alleges a health care liability claim.
TEX. CIV. PRAC. & REM. CODE. ANN. § 74.001(a)(13). Because they did not timely
serve an expert report, we hold that the trial court erred by denying the Hospital’s
motion to dismiss. We sustain the Hospital’s sole issue.
We reverse the order of the trial court and remand the case to the trial court
with instructions to dismiss the Ramoses’ claims and for further proceedings
consistent with this opinion. See id. § 74.351(b).
Michael Massengale
Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
Justice Jennings, dissenting. Publish pursuant to TEX. R. APP. P. 47.4.
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