Opinion filed December 13, 2012




                                         In The


   Eleventh Court of Appeals
                                       __________

                                  No. 11-11-00256-CV
                                      __________

                   HENDRICK MEDICAL CENTER, Appellant

                                            V.

 TEXAS PODIATRIC MEDICAL ASSOCIATION; CORY BROWN, DPM;
            AND MARTIN V. SLOAN, DPM, Appellees


                         On Appeal from the 104th District Court
                                 Taylor County, Texas
                             Trial Court Cause No. 25137-B


                                       OPINION
       Appellant, Hendrick Medical Center, brings this interlocutory appeal from the trial
court’s order denying its motion to dismiss the suit of appellees, Texas Podiatric Medical
Association; Cory Brown, DPM; and Martin V. Sloan, DPM, for their failure to file an expert
report under Section 74.351 of the Texas Civil Practice and Remedies Code. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(b) (West 2011). The issue on appeal is whether appellees’
claims against Hendrick are health care liability claims under Chapter 74 of the Texas Civil
Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. ch. 74 (West 2011 &
Supp. 2012). Because we conclude that appellees’ claims are not health care liability claims, we
affirm the trial court’s order.
                                            Background
         Dr. Brown and Dr. Sloan are podiatrists who are on Hendrick’s medical staff.             In
February 2011, Hendrick gave Dr. Brown and Dr. Sloan written notice that, effective April 11,
2011, “[their] podiatry privileges [would] be administratively reduced by the elimination of all
ankle privileges.” Hendrick indicated in the notice that the decision to eliminate ankle privileges
was based on its interpretation of the law that defines the scope of the practice of podiatry.
Hendrick stated in the notice that “[i]t is important that you understand that this reduction in
privileges is an administrative reduction and is not predicated on quality of care issues.”
Hendrick intended to eliminate all ankle privileges that had been extended to all podiatrists on its
staff.
         Appellees filed this suit against Hendrick. In their petition, appellees sought injunctive
relief to prevent Hendrick “from denying to podiatrists hospital privileges for the treatment of
ailments or injuries at or below the ankle.” Appellees also sought declaratory relief regarding
Hendrick’s ability to deny or to revoke podiatrists’ ankle privileges. Appellees requested that the
trial court declare, among other things, that Hendrick’s summary revocation of podiatrists’ ankle
privileges violated Hendrick’s bylaws and that the denial or revocation of ankle privileges
constituted an unlawful restriction on the scope of the practice of podiatry. Following a hearing,
the trial court issued a temporary injunction that enjoined Hendrick “from denying, revoking or
limiting any ankle privileges previously granted to Dr. Cory Brown and/or Dr. Martin V. Sloan.”
         Hendrick filed a motion to dismiss based on Section 74.351 of the Civil Practice and
Remedies Code.       In the motion, Hendrick asserted (1) that appellees claimed that it had
withdrawn or denied hospital privileges to Dr. Brown and Dr. Sloan; (2) that actions taken by
hospitals with respect to health care providers’ privileges are administrative acts; (3) that Chapter
74 applies to such administrative acts; and (4) that, therefore, appellees were asserting health
care liability claims subject to the expert-report requirements in Chapter 74. Because appellees
had not served it with an expert report, Hendrick asserted that the trial court was required to
dismiss this cause. After a hearing, the trial court denied Hendrick’s motion.




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                                         Issue on Appeal
        In its sole appellate issue, Hendrick contends that the trial court abused its discretion
when it denied the motion to dismiss.
                                        Standard of Review
        We generally review a trial court’s order granting or denying a motion to dismiss filed
under Section 74.351 under an abuse of discretion standard. Bowie Mem’l Hosp. v. Wright, 79
S.W.3d 48, 52 (Tex. 2002); Oak Park, Inc. v. Harrison, 206 S.W.3d 133, 137 (Tex. App.—
Eastland 2006, no pet.). However, when the issue, as in this case, involves the applicability of
Chapter 74 to the plaintiffs’ claims and requires an interpretation of the statute, we apply a
de novo standard of review. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex.
2012); Strobel v. Marlow, 341 S.W.3d 470, 473–74 (Tex. App.—Dallas 2011, no pet.); Oak
Park, 206 S.W.3d at 137.
                                             Analysis
        The expert report requirements set forth in Section 74.351 apply to health care liability
claims. A claimant who files a health care liability claim must serve an expert report on each
party or the other party’s counsel not later than the 120th day after the date the claimant’s
original petition was filed. Section 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). A “health care
liability claim” 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.

Id. § 74.001(a)(13) (emphasis added). The legislature added the phrase “or professional or
administrative services directly related to health care” when it modified the definition of “health
care liability claim” in 2003. See Tex. W. Oaks, 371 S.W.3d at 184. The Texas Supreme Court
has explained that, as used in Section 74.001(a)(13), the phrase “directly related to health care”
modifies “professional or administrative services.” Id.
        “Professional or administrative services” is defined as “those duties or services that a
physician or health care provider is required to provide as a condition of maintaining the


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physician’s or health care provider’s license, accreditation status, or certification to participate in
state or federal health care programs.” Section 74.001(a)(24). “Health care” is defined 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.” Id. § 74.001(a)(10).
       A plaintiff cannot use artful pleadings to avoid the requirements of Chapter 74 when the
essence of the suit is a health care liability claim. Garland Cmty. Hosp. v. Rose, 156 S.W.3d
541, 543 (Tex. 2004). To determine whether a cause of action is a health care liability claim, we
examine the underlying nature of the claim, and we are not bound by the form of the pleading.
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005). A health care
liability claim contains three basic elements: (1) a physician or health care provider must be a
defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, or a
departure from accepted standards of medical care, or health care, or safety or professional or
administrative services directly related to health care; and (3) the defendant’s act or omission
complained of must proximately cause the injury to the claimant. Tex. W. Oaks, 371 S.W.3d at
179–80. If the act or omission complained of is an inseparable or integral part of the rendition of
health care, the claim alleges a departure from accepted standards of health care and is, therefore,
a health care liability claim. Id. at 180; Rose, 156 S.W.3d at 544.
       Appellees’ claims are based on Hendrick’s decision to eliminate podiatrists’ ankle
privileges. Hendrick asserts that “[a]ppellees’ petition sets out specific claims of departure from
accepted standards of professional or administrative services directly related to health care.”
Hendrick states in its brief that “[t]here can be no ‘administrative service’ more directly related
to the rendition of health care than the granting and denying of privileges to health care providers
that provide the care.” Appellees assert that, while Hendrick’s decision to eliminate Dr. Brown’s
and Dr. Sloan’s ankle privileges may fall within the definition of “administrative services,” the
decision was not “directly related to health care” or “an inseparable or integral part of the
rendition of medical services.”      Appellees state in their brief that Hendrick’s decision to
eliminate ankle privileges “was not based on the actual rendition of health care, was not caused
by the actual rendition of health care, and did not result in the actual rendition of health care.”
       To satisfy the definition of a health care liability claim, the “professional or
administrative services” implicated by a cause of action against a health care provider must be

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“directly related to health care.” Section 74.001(a)(13); Tex. W. Oaks, 371 S.W.3d at 184. As
stated above, 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.” Section 74.001(a)(10).
Thus, for claims relating to professional or administrative services to be health care liability
claims, the services must directly relate to an act or treatment that was or should have been
performed or furnished for, to, or on behalf of a patient. Id.; Tex. W. Oaks, 371 S.W.3d at 180–
81.
       Appellees’ claims do not involve care or treatment that was rendered to any patient.
Instead, their claims relate to a dispute between Hendrick and them as to the scope of the practice
of podiatry. The act giving rise to appellees’ claims—Hendrick’s decision to eliminate ankle
privileges—was not an inseparable or integral part of a patient’s care or treatment. Tex. W.
Oaks, 371 S.W.3d at 180. Therefore, Hendrick’s act of eliminating privileges was not “directly
related to health care.” Because the complained-of act was not “directly related to health care,”
appellee’s claims are not health care liability claims under Chapter 74.
       Hendrick relies on Rose, which we have cited above, and In re McAllen Medical Center,
Inc., 275 S.W.3d 458, 462 (Tex. 2008), for the proposition that “claims related to the privileges
extended to health care providers by health care facilities are health care liability claims.” These
cases are distinguishable from the present case. In Rose, a doctor performed cosmetic surgeries
on a patient at a hospital. 156 S.W.3d at 542. Later, the patient sued the doctor, alleging that she
had been injured as a result of the doctor’s negligence in performing the surgeries. The patient
also named the hospital as a defendant. The patient alleged that the hospital had been negligent
in credentialing the doctor to practice at the hospital and in permitting him to continue to practice
at the hospital after earlier complaints were made about him. Id. Specifically, the patient alleged
that the hospital was negligent and malicious in allowing the doctor to perform her surgeries, in
entrusting the operating room and equipment to the doctor, and in failing to suspend or review
the doctor’s privileges. Id. at 544–45. The patient’s allegations revolved around the premise that
the hospital had put her at risk by allowing the doctor to treat her. Id. at 545.
       The Rose court explained, “When a plaintiff’s credentialing complaint centers on the
quality of the doctor’s treatment, as it does here, the hospital’s alleged acts or omissions in
credentialing are inextricably intertwined with the patient’s medical treatment and the hospital’s

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provision of health care.” Id. at 546. In Rose, the patient’s negligent credentialing claim derived
from the physician’s alleged negligent treatment of her. Id. The court stated that, “without
negligent treatment, a negligent credentialing claim could not exist.” Id. The court concluded
that the hospital’s acts or omissions in credentialing the physician were an inseparable part of the
treatment that was provided to the patient. Id. The court held that the patient’s negligent
credentialing claims against the hospital were health care liability claims under Chapter 74
because they involved a claimed departure from an accepted standard of health care. Id.
        Similarly, in McAllen Medical Center, former patients of a hospital alleged negligent
credentialing claims against the hospital based on allegedly negligent treatment that they had
received from a doctor at the hospital. 275 S.W.3d at 462. The patients claimed that the hospital
had been negligent in hiring, retaining, and supervising the doctor. Id. Citing its earlier opinion
in Rose, the court recognized that the patients were asserting health care liability claims. Id.
        In Rose and McAllen Medical Center, the hospitals’ granting of privileges allowed the
doctors to provide treatment to the plaintiffs at the hospitals. The plaintiffs’ claims against the
hospitals centered on the quality of treatment that the doctors rendered to them at the hospitals.
In this case, appellees’ allegations do not involve the rendition of health care to any person.
Quality of treatment is simply not at issue here. This case is distinguishable from Rose and
McAllen Medical Center. Accordingly, those cases do not support the contention that appellees
are asserting health care liability claims.
        For the reasons stated above, we conclude that appellees’ claims are not health care
liability claims under Chapter 74. The trial court did not err when it denied Hendrick’s motion to
dismiss. Hendrick’s appellate issue is overruled.
                                         This Court’s Ruling
        We affirm the trial court’s order denying Hendrick’s motion to dismiss.




                                                               TERRY McCALL
                                                               JUSTICE
December 13, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.


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