Enrique Guerra A/K/A Enrique \"Ricky\" Guerra v. State ( 2012 )

NUMBER 13-11-00512-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG
____________________________________________________
MCALLEN HOSPITALS, L.P.
D/B/A MCALLEN MEDICAL CENTER,
IMPROPERLY NAMED AS MCALLEN MEDICAL CENTER Appellant,
v.
EVELIA ONTIVEROS, Appellee.
On appeal from the 398th District Court
of Hidalgo County, Texas
____________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, McAllen Hospitals, L.P. d/b/a McAllen Medical Center appeals 1 an
interlocutory order denying its motion to dismiss filed pursuant to Texas Civil Practice
and Remedies Code section 74.351(b), the Medical Liability Insurance Improvement Act
(“MLIIA”). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West 2011). By one issue,
McAllen Medical Center argues that the trial court abused its discretion in denying its
motion to dismiss when appellee, Evelia Ontiveros, failed to serve McAllen Medical
Center with a timely expert report containing a physician’s opinion on the issue of
causation. See id. § 74.351(a), (r)(5)(C). We affirm the trial court’s order denying
McAllen Medical Center’s motion to dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND
The undisputed facts in this case show the following. About five months into her
pregnancy, Ontiveros’s physician determined that her baby was stillborn and needed to
be delivered. On June 17, 2009, Ontiveros was admitted to the McAllen Medical
Center. On that same day, her stillborn fetus was delivered. While in the hospital,
Ontiveros signed an authorization form “for disposition of products of conception,” by
which she instructed and authorized McAllen Medical Center to give the body of the
stillborn fetus to a representative of Hernandez Funeral Home. On June 19, 2009, a
representative of Hernandez Funeral Home arrived to pick up Ontiveros’s stillborn fetus.
McAllen Medical Center, however, did not deliver the stillborn fetus to Hernandez
Funeral Home. McAllen Medical Center’s medical records for Ontiveros state that the
“funeral home arrived; baby remains gone; accidently disposed of as tissue; family
notified by Candida Constantine, CNO.”
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This appeal was brought pursuant to Texas Civil Practice and Remedies Code section
51.014(a)(9). See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West 2008).
2
Ontiveros filed this lawsuit to recover damages allegedly caused by McAllen
Medical Center’s negligence in mishandling of a corpse by failure to deliver the stillborn
fetus to the funeral home, as directed. Ontiveros’s attorney sent McAllen Medical
Center’s attorney an expert report by Registered Nurse Sally Gaines, accompanied by a
letter explaining that Ontiveros’s case was not a health care liability claim, but that she
was submitting an expert report out of an abundance of caution.
McAllen Medical Center filed a motion to dismiss, challenging the adequacy of
Nurse Gaines’s expert report on the basis that Nurse Gaines was statutorily disqualified
from rendering an expert opinion on causation. Ontiveros did not respond to McAllen
Medical Center’s motion to dismiss but did file a motion for partial summary judgment,
seeking a ruling that her claim is not a health care liability case. The trial court denied
McAllen Medical Center’s and Ontiveros’s motions. McAllen Medical Center filed this
interlocutory appeal of the trial court’s order denying its motion to dismiss. See TEX.
CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West 2008).
II. STANDARD OF REVIEW
Generally, 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. See Am.
Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial
court abuses its direction when it acts in an arbitrary or unreasonable manner or without
reference to any guiding rules and principles. See Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Padre Behavioral Health Sys., LLC v.
Chaney, 310 S.W.3d 78, 80–81 (Tex. App.—Corpus Christi 2010, no pet.). However, to
the extent the issue on appeal raises a question of law, such as whether the statute
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applies to a particular claim, we employ a de novo standard of review. See Tex. W.
Oaks Hosp., L.P. v. Williams, No. 10-0603, 2012 WL 2476807, at *3 (Tex. June 29,
2012); Chaney, 310 S.W.3d at 81.
III. DISCUSSION
Ontiveros argues that she was not required to comply with the section 74.351
expert report requirement because her claim is not a health care liability claim.
Ontiveros maintains that her claim was for negligent mishandling of a corpse by failure
to deliver the stillborn fetus to the funeral home and that her fetus was not a patient,
thus bringing her suit outside the scope of the MLIIA. See TEX. CIV. PRAC. & REM. CODE
ANN. §§ 74.001–.507 (West 2011).
A. Ontiveros’s Motion for Partial Summary Judgment
Citing Texas Rule of Appellate Procedure 25.1(c), McAllen Medical Center
argues that this Court should not reach the threshold question of whether Ontiveros’s
suit is a health care liability claim because the trial court denied Ontiveros’s motion for
partial summary judgment that the claim is not a health care liability claim and because
Ontiveros did not file a cross notice of appeal raising the issue in this Court. Texas Rule
of Appellate Procedure 25.1 (c) provides as follows:
(c) Who Must File Notice. A party who seeks to alter the trial court’s
judgment or other appealable order must file a notice of appeal. Parties
whose interests are aligned may file a joint notice of appeal. The appellate
court may not grant a party who does not file a notice of appeal more
favorable relief than did the trial court except for just cause.
TEX. R. APP. P. 25.1(c).
On its face, Rule 25.1 (c) does not require Ontiveros to file a notice of appeal,
because she was not seeking to alter the trial court’s order denying McAllen Medical
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Center’s motion to dismiss, which is the subject of this appeal. In addition, the trial
court’s ruling on Ontiveros’s motion for partial summary judgment was interlocutory and
subject to reconsideration. See Clark v. Strayhorn, 184 S.W.3d 906, 909 (Tex. App.—
Austin, 2006, pet. denied). An interlocutory order is unappealable unless a statute
authorizes an interlocutory appeal. See Bally Total Fitness Corp. v. Jackson, 53
S.W.3d 352, 352 (Tex. 2001); see also de Laurentis v. United Servs. Auto. Ass'n, 162
S.W.3d 714, 719 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (citing CU Lloyd's
of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex.1998)).
B. Failure to Deliver Stillborn Fetus to the Funeral Home
Under the facts presented in this case, to decide the issue presented on appeal
we must first address the threshold question of whether Ontiveros’s claim is a health
care liability claim. See Valley Baptist Med. Center v. Azua, 198 S.W.3d 810, 813 (Tex.
App.—Corpus Christi 2006, no pet.); see also Hunsacker v. Fustok, 238 S.W.3d 421,
425–26 (Tex. App.—Houston [1st Dist.] 2007, no pet.). 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. TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351(a) (West 2011). 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).
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
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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) (emphasis added).
“Professional or administrative services,” as that phrase is used in the MLIIA, 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.” Id. § 74.001(a)(24).
The crux of Ontiveros’s allegation is that McAllen Medical Center’s failure to
deliver her stillborn fetus’s body to Hernandez Funeral Home despite her instructions
amounted to negligent mishandling of a corpse and intentional infliction of emotional
distress. Although McAllen Medical Center argues in its reply brief that Ontiveros’s
claim is one for “professional or administrative services directly related to health care,”
even construing its briefing liberally, McAllen Medical Center cites no legal authority for
the proposition that failure to deliver a stillborn fetus’s body to a funeral home comes
within the definition of “professional or administrative services.”
The question of whether Ontiveros’s claim implicates duties or services that
McAllen Medical Center was required to provide as a condition of maintaining its
license, accreditation status, or certification to participate in state or federal health care
programs is one that requires detailed statutory analysis. See id. § 74.001(a)(24); see
also CHCA Bayshore, L.P. v. Ramos, No. 01-11-00764-CV, 2012 WL 3024426, at *3
(Tex. App.—Houston [1st Dist.] July 19, 2012, no pet. h.) (analyzing whether proper
handling, identification, monitoring, and disposition of a specimen from a miscarriage
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implicated “professional or administrative services” under section 74.001(a)(24)).
Accordingly, we conclude McAllen Medical Center has waived this argument by not
citing legal authority and related analysis in support of its position that Ontiveros’s claim
is a health care liability claim. See TEX. R. APP. P. 38.1(i); Goodenberger v. Ellis, 343
S.W.3d 536, 539–40 (Tex. App.—Dallas 2011, pet. denied).
We are aware that the First Court of Appeals recently touched on the question of
whether the failure to deliver the products of a miscarriage to a funeral home is a
“professional or administrative service” directly related to health care. See CHCA
Bayshore, 2012 WL 3024426, at *3 (citing 25 TEX. ADMIN. CODE ANN. § 1.33 (a)(2)(F)
(2012) and §§ 1.131–1.32(40)). In CHCA Bayshore, the crux of the plaintiffs’
allegations was that the hospital failed to properly handle, identify, monitor, and dispose
of a specimen resulting from a miscarriage. Id. at *2. The facts of the case were that
the mother suffered a miscarriage at approximately twelve weeks into her pregnancy
and after sending the resulting specimen to its pathology department for testing, the
hospital erroneously delivered the amputated toe of another patient to the funeral home
for burial. Id. at *1. After a funeral, the buried specimen was exhumed and discovered
to be the incorrect specimen. Id.
The First Court of Appeals concluded that “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.” Id. at *3. However, the court also
noted that the statutes pertaining to the disposition of medical waste specifically exempt
a hospital’s transfer of fetal remains to a funeral home from the general requirements for
handling and disposition of fetuses and tissues. See id. (citing 25 TEX. ADMIN. CODE
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ANN. § 1.33 (a)(2)(F) (2012)). The statutory exemption for transfer of fetal remains to a
funeral home reads as follows:
1.133. Scope, Covering Exemptions and Minimum Parametric
Standards for Waste Treatment Technologies Previously Approved
by the Texas Department of Health
(a) Exemptions.
(1) Unless an item is specifically exempted, all special waste from
health-care related facilities must be treated as provided in these
sections.
(2) These sections do not apply to:
. ..
(F) disposition of fetal remains of a single pregnancy, body parts, or
tissue (including bulk blood), transferred for disposition to a
licensed funeral director in accordance with the Health and Safety
Code, Chapter 711, and Chapter 181 of this title (relating to Vital
Statistics) with the consent of the person or persons authorized to
consent to the disposition of the fetal remains, body parts, or tissue
(including bulk blood). All subcategories of pathological waste,
unless otherwise exempted, must be treated and disposed of in
accordance with § 1.136 of this title (relating to Approved Methods
of Treatment and Disposition).
25 TEX. ADMIN. CODE ANN. § 1.33 (a)(2)(F) (2012).
Interpreting this language, the First Court of Appeals did not find the duty to
deliver the products of a single miscarriage to a funeral home in accordance with the
parent’s instruction to be a licensing, accreditation, or certification requirement for a
hospital under Civil Practice and Remedies Code section 74.001 (a)(24). See CHCA
Bayshore, 2012 WL 3024426, at *3. Thus, the duty to deliver the products of a single
miscarriage to a funeral home would not itself be a “professional or administrative
service” directly related to health care so as to fall within the scope of the MLIIA. See
TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(24). Unlike CHCA Bayshore, the crux of
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Ontiveros’s claim falls within the scope of the exemption for transfer to a funeral home
because it concerns the failure to deliver the remains of her stillborn fetus to Hernandez
Funeral Home, and not the failure to properly handle, identify, monitor, and dispose of a
specimen. See CHCA Bayshore, 2012 WL 3024426, at *3.
McAllen Medical Center also argues that this Court’s ruling in Angeles v.
Brownsville Valley Regional Medical Center, Inc. compels the conclusion that
Ontiveros’s claim is a medical malpractice claim. See 960 S.W.2d 854, 865 (Tex.
App.—Corpus Christi 1997, pet. denied). We disagree because Angeles is not on point.
In Angeles, the plaintiffs sued the hospital alleging that about three months after they
were promised their stillborn fetus would be respectfully disposed of, they learned that
no one had disposed of the fetus and that it was preserved in a plastic-type container at
the hospital. Id. The plaintiffs sued on various theories, including breach of the
Deceptive Trade Practices Act, breach of contract, intentional infliction of emotional
distress, and general negligence. Id. at 857.
This Court held that the trial court did not abuse its discretion in allowing nurse
and physician expert testimony on whether any applicable standards of care for
handling a stillborn fetus were met, even though the plaintiffs argued their case was not
one for medical malpractice. Id. at 864–65. In Angeles, this Court did not rule on the
question of whether the plaintiffs presented a malpractice claim. See id. at 865. And
unlike the plaintiffs in Angeles, Ontiveros’s claim is for failure to deliver her stillborn
fetus to a funeral home, not for improper storage. We are not convinced by Angeles
that Ontiveros’s claim is one for which expert medical testimony is required. See id.
We overrule McAllen Medical Center’s sole issue on appeal.
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IV. CONCLUSION
We affirm the trial court’s order denying McAllen Medical Center’s Motion to
Dismiss under Civil Practice and Remedies Code section 74.351(b).
__________________________________
Gregory T. Perkes
Justice
Delivered and filed the
30th day of August, 2012.
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