Enrique Lopez, D/B/A Maternidad La Piedad v. Marina Edith Osuna, Individually and as Next Friend for Sarai Edith Gonzalez and Benito Gonzalez Cantu

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-14-00310-CV
Enrique LOPEZ d/b/a Maternidad La Piedad,
Appellant
v.
Marina Edith OSUNA, Individually and as Next Friend for S.E.G., Minor Child,
and Benito Gonzalez Cantu,
Appellees
From the 365th Judicial District Court, Maverick County, Texas
Trial Court No. 13-10-28869-MCVAJA
Honorable Amado J. Abascal III, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: November 26, 2014
REVERSED AND REMANDED
This is an interlocutory appeal from a trial court’s order denying a motion to dismiss filed
by appellant Enrique Lopez d/b/a Maternidad La Piedad (“Lopez”). See TEX. CIV. PRAC. & REM.
CODE ANN. § 51.014(a)(9) (West Supp. 2014). Lopez filed the motion claiming appellees Marina
Edith Osuna, Individually and as Next Friend of S.E.G., Minor Child, and Benito Gonzalez Cantu
(collectively “Osuna”) failed to file an expert report as required by section 74.351 of the Texas
Civil Practice and Remedies Code. On appeal, Lopez contends the trial court erred in denying his
motion to dismiss because Osuna’s claims are healthcare liability claims. We reverse and remand.
04-14-00310-CV
BACKGROUND
According to Osuna, she went to La Piedad Maternidad, a clinic using alternative birthing
methods, for a consultation. She met with Lopez to discuss child delivery using a midwife. Osuna
claimed Lopez determined she was due to give birth in approximately four months. Osuna
provided an $80.00 deposit to the clinic and was told the total cost for the delivery would be
$2,250.00. The total was payable in weekly installments leading up to Osuna’s delivery date.
Osuna claimed it was understood that the total would be paid prior to the delivery and in return for
her payment, she “would receive the care and attention as promised her in contract with them.”
However, Osuna claimed Lopez collected the money for his own benefit, without any “intention
of seeing her through her pregnancy.”
Osuna alleged that when she began experiencing labor pains, she and her husband went to
the clinic to see Lopez — the “Director and alleged Licensed Mid Wife” of the clinic. Lopez
“checked” and advised Osuna she would not deliver for another day or two, sending her home
“with little regard for the pain she was experiencing.” Later that day, Osuna alleged her pain
became more frequent and intense; she was sure she was in labor. Her husband rushed her to the
clinic. Osuna’s husband was speeding and was picked up on police radar. Osuna’s husband did
not stop, and the police car gave chase.
During this time, Osuna told her husband the baby was coming. She removed her pants
and gave birth to the child in the vehicle. When the couple arrived at the clinic — “police in tow”
— the baby was on the floor of the truck, connected to the umbilical cord and unresponsive.
According to Osuna, her husband called the clinic from outside, but service was refused “because
the baby was born outside of the facility” and because the clinic believed Osuna had already called
EMS.
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Osuna asserted in her petition that Maverick County firefighters “pleaded” with those
inside the clinic to provide emergency supplies for the care of Osuna and the baby, but were
refused. Firefighters provided medical assistance and transported Osuna and the baby to Fort
Duncan Medical Center.
Based on the foregoing, Osuna filed suit alleging Lopez and the clinic failed to provide any
“of the medical assistance for the delivery of her child” for which she had “prepaid.” According
to Osuna, Lopez agreed to provide certain services to her in connection with her pregnancy, labor
and delivery, and postpartum care, but failed or refused to provide the promised services. Osuna
alleged the baby suffered “serious developmental delays and hardship” due to Lopez’s actions. In
her original petition, Osuna alleged claims for negligence, gross negligence, violations of the
Texas Deceptive Trade Practices Act, fraud, fraud in the inducement, misrepresentation,
constructive fraud, conversion, and unjust enrichment. 1
Osuna did not file an expert report pursuant to section 74.351(a) of the Texas Civil Practice
and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 2014).
When no report was filed, Lopez filed a motion to dismiss on the ground Osuna had not filed the
required report. See id. § 74.351(b). At the conclusion of the hearing on Lopez’s motion, the trial
court stated: “The Court finds that the Plaintiffs’ claims are not health care liability claims and not
subject to the expert reporting requirements. Accordingly, the motion to dismiss is hereby denied.”
Lopez then perfected this appeal.
1
However, at the hearing on Lopez’s motion to dismiss, counsel for Osuna specifically stated Osuna was dropping
her claims for negligence and gross negligence. Moreover, on the morning of the hearing, at 9:30 a.m., Osuna filed a
first amended petition. That petition asserted claims for violations of the Texas Deceptive Trade Practices Act, fraud,
fraud in the inducement, and misrepresentation. Osuna’s other claims were omitted from the amended petition.
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ANALYSIS
As noted above, Lopez contends in this appeal that the trial court erred in denying his
motion to dismiss. Specifically, Lopez argues Osuna’s claims are health care liability claims and
she was required to file an expert report pursuant to section 74.351 of the Civil Practice and
Remedies Code. Lopez asserts Osuna cannot use artful pleading to escape expert reporting
requirements mandated by section 74.351.
Osuna counters, arguing her claims are not health care liability claims because: (1) it is
uncertain Lopez is a licensed midwife; (2) her claims do not arise from alleged “lack of treatment”;
and (3) under a “tie-in” provision of the Texas Administrative Code, she is permitted to assert
claims under the DTPA against birthing centers and midwives. Citing a case involving the doctrine
of res ipsa loquitor, she also contends that even if we determine her claims are health care liability
claims, she is not required to file an expert report because an expert is not necessary when the
alleged breach of a medical duty is plainly within the common knowledge of laymen.
Standard of Review and Applicable Law
Generally, we review a trial court’s ruling on a section 74.351(b) motion to dismiss for an
abuse of discretion. Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 665 (Tex. 2010); Hill
Country San Antonio Mgmt. Servs., Inc. v. Trejo, 424 S.W.3d 203, 208 (Tex. App.—San Antonio
2014, pet. dism’d); Carpinteyro v. Gomez, 403 S.W.3d 508, 510 (Tex. App.—San Antonio 2013,
pet. denied). However, when our review turns on a question of law, we must apply a de novo
standard of review. Trejo, 424 S.W.3d at 208; Carpinteyro, 403 S.W.3d at 510. Whether a claim
is a health care liability claim involves statutory construction and is, therefore, a question of law.
Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 757 (Tex. 2014). Thus, in this case we will
conduct a de novo review. See id.
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“When construing a statute, we give it the effect the Legislature intended.” Id. As stated
by the supreme court, the paramount manifestation of the Legislature’s intent is found in the plain
meaning of the statute’s text. Id. at 757–58. Given the broad language of the Medical Liability
Act, the Legislature has shown its intent that the statute “have expansive application.” Id. at 758.
Section 74.351(a) of the Texas Civil Practice and Remedies Code mandates that in a
“health care liability claim,” a claimant must serve on each party or his attorney one or more expert
reports. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). If a claimant fails to serve the required
report, the trial court must — upon the motion of the affected physician or health care provider —
dismiss the claim with prejudice and award attorney’s fees and costs. Id. § 74.351(b). 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.
Id. § 74.001(a)(13). Pursuant to this statutory definition, there are three elements in a healthcare
liability claim: (1) the defendant is a physician or health care provider; (2) the claims concern
treatment, lack of treatment, or some other departure from accepted standards of medical care,
health care, or safety; and (3) the defendant’s act or omission proximately caused the claimant’s
injury or death. Sok, 426 S.W.3d at 758; Tex. Laurel Ridge Hosp., L.P. v. Almazan, 374 S.W.3d
601, 606 (Tex. App.—San Antonio 2012, no pet.).
Application
Based on Sok, we must undertake a three-step analysis and determine whether: (1) Lopez’s
actions or inactions caused Osuna’s alleged injuries; (2) Lopez is a health care provider; and (3)
Osuna’s claims concern her treatment, lack of treatment, or some other departure from accepted
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standards of medical care or health care. See Sok, 426 S.W.3d at 758; Almazan, 374 S.W.3d at
606. There seems to be no dispute with regard to the element of causation — except as to whether
an expert report is required. Thus, we proceed to determine whether Lopez is a health care provider
and whether Osuna’s claims concern her treatment, lack of treatment, or some other departure from
accepted standards of medical care or health care. See id.
Health Care Provider?
Section 74.001(a)(12) defines a “health care provider” as “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; (vii) a health care
institution; or (viii) a health care collaborative certified under Chapter 848, Insurance Code.” TEX.
CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12). However, as this court has held, the statutory list
of health care providers is not exclusive. See San Antonio Extended Med. Care, Inc. v. Vasquez,
327 S.W.3d 193, 197–98 (Tex. App.—San Antonio 2010, no pet.). And, as is relevant here, at
least one appellate court has specifically held that midwives who are “duly licensed” are health
care providers. House of Yahweh v. Johnson, 289 S.W.3d 345, 352 (Tex. App.—Eastland 2009,
no pet.). In Johnson, the court held “midwifery” is recognized by the State of Texas as a health
profession and because the statute includes health care providers as those duly licensed, certified,
or registered to provide health care, a midwife is a health care provider. Id. We agree.
The statutes pertaining to midwives are found in Chapter 203 of the Texas Occupations
Code. The Subtitle in which Chapter 203 appears is titled “Other Professions Performing Medical
Procedures.” TEX. OCC. CODE ANN. Subtitle C., §§ 201.001-206.351 (West 2012) (emphasis
added). Section 203.002(7) defines “midwifery” as the practice of “providing the necessary
supervision, care, and advice to a woman during normal pregnancy, labor, and the postpartum
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period; conducting a normal delivery of a child; and providing normal newborn care.” TEX. OCC.
CODE ANN. § 203.002(7) (emphasis added). Given the Legislature’s decision to include legislation
pertaining to midwives under a subtitle relating to other professions that perform “medical
procedures,” and to include in the definition of midwifery the provision of “care” during
pregnancy, labor, and the postpartum period, we hold the Legislature intended a duly licensed
midwife to be included in the definition of health care provider — one who provides health care.
Given the placement of legislation governing midwives, the definition of midwifery, and the
definition of health care provider, we hold Lopez, as a duly licensed midwife, is a health care
provider.
In her brief, Osuna questions Lopez’s status as a duly licensed midwife. Osuna states that
contrary to his contention, “[i]t is not undisputed that Lopez is a midwife.” She claims the only
proof provided by Lopez is an “outdated certificate,” which does not constitute unequivocal proof
that he is a licensed midwife.
The record establishes Lopez attached an affidavit to his motion to dismiss, which was
filed with the trial court. In the affidavit, Lopez avers he is a “Licensed Midwife, duly licensed by
the State of Texas” and was licensed by the State and in good standing “[a]t all times relevant to
the . . . lawsuit” filed by Osuna. Attached to the affidavit, as stated therein, is a copy of a document
from the Texas Midwifery Board, which certifies Lopez is a licensed midwife. The document is
dated April 4, 1997, and attached to the license is a “renewal card,” stating Lopez’s license did not
expire until March 28, 2014. According to the Texas Occupation Code, midwives must be licensed
and must renew their licenses every two years. Id. §§ 203.251, 203.301. Thus, although the license
might have been “outdated” as of the date of the hearing, the license was, in fact, current and valid
during the events in questions and when Osuna filed suit. Osuna presented no evidence to dispute
Lopez’s status as a duly licensed midwife at the time of the underlying events or when suit was
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filed. 2 Accordingly, we hold Lopez is a healthcare provider, for the purpose of this lawsuit,
pursuant to section 74.001(a)(12). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12); see
also Johnson, 289 S.W.3d at 352.
Treatment, Lack of Treatment, or Some Other Departure from Standards of Health Care?
Given the foregoing, the only remaining issue is whether Osuna’s claims concern her
treatment, lack of treatment, or some other departure from accepted standards of medical care or
health care. See Sok, 426 S.W.3d at 758; Almazan, 374 S.W.3d at 606. Despite Osuna’s
protestations to the contrary, we hold her claims fall within the statutory description of a health
care liability claim.
To determine whether Osuna’s claims are based on Lopez’s treatment, lack of treatment or
some other departure from accepted standards of “medical care, or health care, or safety or
professional or administrative services directly related to health care,” we must examine the nature
of the underlying claim. Almazan, 374 S.W.3d at 606. We are bound by neither the form of the
pleading filed by Osuna, nor her characterization of her claims. See id. The Texas Supreme Court
has repeatedly refused to allow a plaintiff, through artful pleading, to avoid the mandates codified
in Chapter 74 by recasting a health care liability claim as some other cause of action. See, e.g.,
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 845 (Tex. 2005) (holding patient’s claim
based on sexual assault by another patient caused by nursing home’s negligence in failing to
provide adequate supervision was health care liability claim); Murphy v. Russell, 167 S.W.3d 835,
839 (Tex. 2005) (holding claims doctor sedated patient after expressly representing and warranting
he would not, could not be recast as DTPA claim); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541,
2
As pointed by Lopez’s counsel at oral argument, the website of the Texas Department of State Health Services
establishes Lopez is currently licensed to practice midwifery through February 2016. Texas Department of State
Health Services, https://vo.ras.dshs.state.tx.us./datamart/detailsTXRAS.do?anchor=62de49c.0.4 (last visited Nov. 6,
2014).
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542 (Tex. 2004) (holding negligent credentialing claims centered on quality of doctor’s treatment
and were inextricably intertwined with patient’s medical treatment); Earle v. Ratliff, 998 S.W.2d
882, 893 (Tex. 1999) (holding that because patient’s claimed misrepresentations all related to
health care provider’s treatment, DTPA claims were not viable); Gormley v. Stover, 907 S.W.2d
448, 449–50 (Tex. 1995) (per curiam) (holding dentist’s statements to patient about treatment were
claims for negligence and not actionable under DTPA); Walden v. Jeffery, 907 S.W.2d 446, 447–
48 (Tex. 1995) (holding dentist’s statement about fit of dentures was not actionable under DTPA
because claims related to violation of standard of care); but see Sorokolit v. Rhodes, 889 S.W.2d
239, 242–43 (Tex. 1994) (holding plastic surgeon’s promise that patient’s appearance after surgery
would be identical to specific photography was actionable under DTPA). As this court has held,
“[i]f the alleged acts or omissions are an inseparable or integral part of the rendition of medical
services or health care, then the claim is a health care liability claim.” Almazan, 374 S.W.3d at
606.
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 addition to ascertaining the underlying nature of the claim when
determining whether a cause of action is a health care liability claim, we also look to whether
expert medical or health care testimony is necessary to prove or refute the merits of the plaintiff’s
claim against the health care provider. Sok, 426 S.W.3d at 760; Almazan, 374 S.W.3d at 607.
Osuna’s current live petition alleges “the acts and procedures” of Lopez, “as described in
the petition”:
● violated the DTPA by representing that goods or services have
sponsorship, approval, characteristics, ingredients, uses, benefits, or
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quantities which they do not have, or that a person has a sponsorship,
approval, status, affiliation, or connection which he does not;
● violated the DTPA by representing that goods or services that are
of a particular standard, quality, or grade, or that goods are of a
particular style or model, if they are of another;
● violated the DTPA by advertising goods or services with intent
not to sell them as advertised;
● violated the DTPA by making false or misleading statements of
fact concerning the reasons for, existence of, or amount of price
reductions;
● violated the DTPA by representing that an agreement confers or
involves rights, remedies, or obligations which it does not have or
involve, or which are prohibited by law;
● violated the DTPA by failing to disclose information concerning
goods or services which was known at the time of the transaction if
such failure to disclose such information was intended to induce the
conswner [sic] into a transaction into which the consumer would not
have entered had the information been disclosed;
● violated the DTPA by breaching express and implied warranties;
and
● violated the DTPA by engaging an unconscionable action or
course of action; and
● constituted fraud, fraud in the inducement, and misrepresentation.
In other words, Osuna alleged that certain “acts and procedures” on the part of Lopez
resulted in violations of the DTPA, fraud, fraud in the inducement, and misrepresentation. 3 Osuna
provided a narrative of the “act and procedures” she contends entitle her to recover based on the
3
Osuna contends that even if her DTPA claims are determined to be healthcare liability claims, her remaining claims
are still viable because Lopez’s motion to dismiss and his arguments on appeal are directed solely to the DTPA claims.
Even if we agreed Lopez’s motion and arguments encompass only the DTPA claims, Osuna’s contention would be
incorrect. The supreme court recently reiterated that “[w]hen a plaintiff asserts a claim that is based on the same
underlying facts as an HCLC that the plaintiff also asserts, both claims are HCLCs and must be dismissed if the
plaintiff fails to produce a sufficient report.” PM Management-Trinity NC, LLC v. Kumets, 404 S.W.3d 550, 552
(Tex. 2013) (citing Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010)). All of Osuna’s claims in this case are based
on the same underlying facts. Thus, if we determine the DTPA claim is, in actuality, a health care liability claim, then
all of Osuna’s claims are health care liability claims. See id.
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claims alleged. According to the petition, Lopez claimed to specialize in alternative birthing
methods and care. Osuna went to Lopez for a consultation seeking delivery by a midwife. Lopez
determined her gestational state and provided a due date. Osuna entered into a contract by which
she would pay Lopez a certain amount prior to the delivery and she would receive “care and
attention” as promised. The care promised included: clinic appointments, “attention during natural
childbirth,” “after care” for Osuna and the baby, and an umbilical cord blood test.
Osuna believed she was in labor prior to her scheduled delivery date, and went to Lopez’s
clinic. Lopez examined her but advised she should go home as she would not deliver for another
day or two. According to Osuna, Lopez had “little regard” for her pain. Later in the day, her pain
increased and her husband rushed her back to the clinic, but before she could reach the clinic, she
delivered the baby in the truck, suffering extreme pain during the delivery. Osuna claimed the
baby was still connected to the umbilical cord and firefighters had to provide care to her and the
baby, including clamping the umbilical cord, because Lopez would not assist her or provide
emergency supplies “to care for [her] and her infant.” She asserted Lopez provided none of the
“medical assistance” for which she had paid. As a result of Lopez’s actions and inactions, she
claimed to have experienced, among other things, “physical pain and suffering” and “mental
anguish.” Osuna pled that as a result of Lopez’s conduct, the baby suffers from “serious
developmental delays and hardship.”
Upon review of her claims and the factual allegations supporting same, we hold Osuna’s
claims are health care liability claims. The essence of Osuna’s cause of action is that Lopez, a
health care provider, made certain promises and representations regarding services that would be
“performed or furnished . . . for, to, or on behalf of” Osuna and her child during her pregnancy,
including prenatal care (e.g., appointments at the clinic), delivery by a midwife, and postnatal care.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(10). At the core of Osuna’s claims is
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provision of health care during pregnancy. As Osuna’s counsel argued during the hearing on the
motion to dismiss, once the baby was born, there were actions Lopez should have taken, “[t]he
umbilical cord has to be clamped. I mean, there were things that had to happen.” Osuna cannot
reasonably contend that a failure to clamp an umbilical cord as promised or to deliver a baby as
promised is not a failure to provide health care. At its basest level, Osuna’s allegations are that
she entered into a contract pursuant to which Lopez promised to provide prenatal care, delivery of
a baby by a licensed midwife, and postnatal care. Although Osuna guises her allegations as various
forms of misrepresentations — statutory and common law — the representations or promises she
alleges were fraudulent and breached, related to the base promise to provide health care during
pregnancy and thereafter. We hold the alleged wrongful acts are inseparable from Lopez’s
rendition of health care.
In her brief, Osuna points to other services she claims Lopez promised to provide, but did
not, e.g., spatial accommodations for Osuna’s family before, during, and after the birth, a
comfortable bed for delivery, and the preparation of the child’s birth certificate. However, these
peripheral services also fall within the definition of health care because they are professional or
administrative services that are inseparable from the treatment or lack of treatment that is the true
basis of Osuna’s cause of action. See, e.g., Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171,
184 (Tex. 2012) (recognizing that in 2003 Legislature redefined “health care liability claim” to
include departures from accepted standards of medical care, or health care or professional or
administrative services directly related to health care). The allegations pointed to by Osuna fall
within the category of professional or administrative services related to health care. The sole
purpose of a comfortable bed for delivery or nearby accommodations for the family are to provide
comfort during delivery. As for completion of the birth certificate, when a midwife attends a birth
— provision of health care — he must properly file the birth certificate. TEX. HEALTH & SAFETY
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CODE ANN. § 192.003(a) (West 2010). Thus, filing the birth certificate is an administrative service
related to attendance at the birth, i.e., related to the provision of health care.
Moreover, we hold Osuna’s claims are health care liability claims because to establish or
refute the claims will require some sort of medical expert. When analyzed, there can be little doubt
Osuna’s claims are allegations of a departure from accepted standards of health care. The validity
of her contentions cannot be determined without reference to the standard of care applicable to a
licensed midwife and any departure therefrom, which requires expert testimony from an expert
familiar with such standards. See Marks, 319 S.W.3d at 662 (holding alleged departure from
“accepted standards or medical care or health care” implicates professional standards of the
respective care giver). The conduct about which Osuna complains occurred during a course of
treatment by a health care provider. Whether the course of treatment was improper — including
the failure to attend Osuna once she arrived at the clinic — and whether this resulted in the damages
alleged, e.g., pain and suffering and developmental delays to the baby, is a subject matter for an
expert. See id. Additionally, Osuna’s damage claims for her alleged physical injury and
developmental delays allegedly suffered by the baby require expert testimony. Without an expert,
it is impossible to know whether an act or omission by Lopez was the proximate cause of the
injuries to mother or child. Therefore, because an expert is required to prove or refute her claims,
we hold Osuna’s claims are health care liability claims. See Tex. W. Oaks Hosp., 371 S.W.3d 182.
Osuna essentially contends her claims are not health care liability claims because she is not
alleging Lopez violated a standard of care, but that he failed to fulfill promises and guarantees for
which Osuna paid him. Osuna relies heavily on Sorokolit v. Rhodes, 889 S.W.2d 239 (Tex. 1994).
In Sorokolit, the plaintiff alleged a doctor knowingly breached an express warranty of a particular
result and knowingly misrepresented his skills and the results he could achieve. Id. at 242. The
supreme court held these were not health care liability claims, but claims actionable under the
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DTPA because they did not involve negligence. Id. at 242–43. However, since Sorokolit, the
supreme court has routinely noted the limited scope of the Sorokolit holding and emphasized that
if the underlying nature of the claim is negligence in the rendition of medical services, the plaintiff
may not recast the allegations as a DTPA claim to avoid the statutory restrictions on health care
liability claims. See, e.g., MacGregor Med. Ass’n v. Campbell, 985 S.W.2d 38, 40–41 (Tex. 1998);
Gormley, 907 S.W.2d at 450. As discussed above, the underlying nature of Osuna’s claim is
negligence relating to the rendition of health care, or lack thereof, during and after her pregnancy.
Thus, we hold Sorokolit is inapplicable.
Osuna contends, beyond her argument that her claims do not involve a “lack of treatment,”
that her claims are not health care liability claims subject to the expert reporting requirements of
Chapter 74 because a provision in the Texas Administrative Code (“TAC”), an alleged “tie-in”
statute, permits her to file suit against a midwife and birthing center under the DTPA. First, the
provision of the TAC relied upon by Osuna is not a “tie-in” statute that would permit an action
under the DTPA. Second, even if it is a “tie-in” statute that would permit an action under the
DTPA against midwives and birthing centers, if the underlying basis of the plaintiff’s claim is a
health care liability claim, a plaintiff cannot creatively plead her claim so as to avoid the mandates
of Chapter 74 of the Texas Medical Liability Act. See, e.g., Diversicare, 185 S.W.3d at 845.
Generally, one may not bring a claim under the DTPA if it involves death, bodily injury,
or mental anguish. TEX. BUS. & COM. CODE ANN. § 17.49(e) (West Supp. 2014). However,
section 17.50(h) of the DTPA permits a plaintiff to bring claims that would normally be exempt
from the DTPA if a claimant is granted the right to bring a claim under the DTPA by “another
law.” Id. § 17.50(h) (West 2011). These other laws mentioned in section 17.50(h) are generally
referred to as “tie in” statutes as they “tie in” to the DTPA such that a violation of the “tie in”
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statute is a violation of the DTPA. Hansberger v. EMC Mortg. Corp., No. 04-08-00438-CV, 2009
WL 2264996, at *2 (Tex. App.—San Antonio July 29, 2009, pet. denied) (mem. op.).
The provision Osuna relies upon as a “tie-in” statute is found in Title 25 of the Texas
Administrative Code, which relates to “Health Services.” See 25 TEX. ADMIN. CODE § 137.55(j)
(2007) (Tex. Dep’t of State Health Servs., Birthing Centers). We begin by noting that provisions
in the TAC are rules adopted by a state agency, and compiled, indexed, and published by the Texas
Secretary of State. See TEX. GOV’T CODE ANN. § 2002.051(a) (West 2008). Thus, it could be said
that as agency rules — as opposed to statutes, which are passed by the Legislature and signed by
the governor — the provisions in the TAC do not rise to the level of a statute that might operate
as a tie-in for purposes of an action under the DTPA. However, even if the agency rules set forth
in the TAC could be regarded as statutes for purposes of “tying-in” to the DTPA, we hold the
provision relied upon by Osuna does not contain “tie-in” language.
Osuna relies upon section 137.55(j), which is in Chapter 137 and governs birthing centers.
See 25 TEX. ADMIN. CODE § 137.55(j). Section 137.55 contains several provisions requiring
birthing centers to ensure compliance with various provisions of state and federal law, e.g., ensure
midwives do not violate relevant provisions of the Texas Occupations Code, comply with the
Clinical Laboratory Improvements Amendments of 1988 in the Code of Federal Regulations,
ensure nurses comply with relevant provisions of the Texas Occupations Code, etc. Id.
§§ 137.55(a)-(o). Subsection (j) states that birthing centers “shall not commit a false, misleading,
or deceptive act or practice as that term is defined in the Deceptive Trade Practices-Consumer
Protection Act, Business and Commerce Code, § 17.46.” Id. § 137.55(j).
When construing a statute, we are to give effect to the Legislature’s intent and to do so, we
begin with the plain language of the statute. R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future
& Clean Water, 336 S.W.3d 619, 628 (Tex. 2011); Exxon Corp. v. Emerald Oil & Gas Co., L.C.,
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331 S.W.3d 419, 422 (Tex. 2010). We may not judicially amend a statute and add words that are
not contained in its language. See Illiff v. Illiff, 339 S.W.3d 74, at 80–81 (Tex. 2011). Admittedly,
section 137.55(j) precludes birthing centers from committing deceptive acts or practices, “as that
term is defined” in the DTPA. 25 TEX. ADMIN. CODE § 137.55(j). However, unlike the true tie-in
statutes referenced below, section 137.55(j) does not include any language to suggest a plaintiff
may bring a cause of action under the DTPA for violation of the provision. Id. Section 137.55(j)
does not create a cause of action under the DTPA.
Our position is supported by a survey of statutes that have been held by this court to be
“tie-in” statutes with regard to the DTPA. Hansberger, 2009 WL 2264996, at *2; see, e.g., TEX.
BUS. & COM. CODE ANN. § 20.12 (West 2009) (violation of statute governing “Regulation of
Consumer Credit Reporting Agencies” statute); TEX. BUS. & COM. CODE ANN. § 601.204 (West
Supp. 2014) (violation of statutes governing “Cancellation of Certain Consumer Transactions”);
TEX. PROP. CODE ANN. § 41.006(b) (West 2014) (violation of statutes governing “Certain Sales of
Homestead”); TEX. PROP. CODE ANN. § 41.007(b) (West 2014) (violation of statutes governing
“Home Improvement Project”); TEX. FIN. CODE ANN. § 392.404(a) (West 2006) (violations of
statute governing “Debt Collection”); TEX. FIN. CODE ANN. § 393.504 (West 2006) (violation of
statutes governing “Credit Services Organizations”)). In each of these statutes, the Legislature
specifically stated the conduct in the statute or chapter is a violation of the DTPA, is actionable
under the DTPA, or both. See id. For example, section 41.007(b) of the Property Code specifically
states that a violation of the statute pertaining to home improvement contracts “is a false,
misleading, or deceptive act or practice within the meaning of Section 17.46, Business &
Commerce Code, and is actionable in a public or private suit brought under the provisions of the
Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business &
Commerce Code).” TEX. PROP. CODE ANN. § 41.007(b).
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Section 137.55(j) of the TAC, however, contains neither language that a violation of the
provision is a DTPA claim or is actionable under the DTPA. See 25 TEX. ADMIN. CODE
§ 137.55(j). Rather, it merely states birthing centers are not to engage in deceptive acts or practices
and uses the DTPA to define what is meant by deceptive acts or practices. Id. Moreover, Osuna
has not cited any authority, nor have we found any, that suggests section 137.55(j) or any other
provision in the TAC constitutes a “tie-in” statute under the DTPA. Accordingly, we hold section
137.55(j) is not a “tie-in” statute that would permit Osuna to bring an action against Lopez under
the DTPA. Moreover, even if the court were to hold it is a “tie-in” provision, there is no authority
to support Osuna’s contention that this would somehow permit her to plead around the expert
reporting requirements of Chapter 74 when her core complaint is, in actuality, a health care liability
claim.
Res Ipsa Loquitor?
Lastly, Osuna contends that even if her claims are health care liability claims, she was not
required to serve an expert report as mandated by section 74.351(a) of the Civil Practice and
Remedies Code. Citing a single case, Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990),
Osuna asserts “it is well settled that even in instances where the Court determines that a claim is
one classified as a HCLC, an expert is not needed to ‘establish a breach of a medical duty where
the departure is plainly within the common knowledge of laymen.’”
The case relied upon by Osuna concerns the doctrine of res ipsa loquitor. The Texas
Medical Liability Act specifically states that the doctrine of res ipsa loquitor applies only to health
care liability claims in cases to which it was applied by Texas appellate courts as of August 29,
1977. TEX. CIV. PRAC. & REM. CODE ANN. § 74.201 (West 2011). Historically, the doctrine has
been restrictively applied in medical malpractice cases, applying in only very, very few instances.
Haddock, 793 S.W.2d at 951. According to the very case relied upon by Osuna, “Texas courts
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have generally recognized that res ipsa loquitur is inapplicable in medical malpractice cases.” Id.
In fact, there are only three recognized instances in which the Texas appellate courts have applied
the doctrine in medical malpractice cases: (1) negligence in the use of mechanical instruments; (2)
operating on the wrong portion of the body; and (3) leaving surgical instruments or sponges in the
body. Losier v. Ravi, 362 S.W.3d 639 642–43 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(citing Haddock, 793 S.W.2d at 951; Scott v. Beechnut Manor, 171 S.W.3d 338, 343 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied)). None of these recognized instances are at issue here, and
we have not found a single case applying the doctrine to a midwife at any time, much less before
August 29, 1977. Accordingly, we hold the doctrine of res ipsa loquitor is inapplicable to this
case.
CONCLUSION
Based on the foregoing, we hold Osuna’s claims are health care liability claims and she
was required to file an expert report as mandated by section 74.351(a) of the Civil Practice and
Remedies Code. Accordingly, we reverse the trial court’s order denying Lopez’s motion to
dismiss and remand the cause to the trial court for rendition of judgment dismissing Osuna’s claims
with prejudice and awarding Lopez reasonable attorney’s fees and costs of court.
Marialyn Barnard, Justice
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