Dissenting opinion issued April 1, 2014.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00292-CV
                          ———————————
 CHRISTUS HEALTH GULF COAST (AS AN ENTITY, D/B/A CHRISTUS
 ST. CATHERINE HOSPITAL, AND FORMERLY D/B/A CHRISTUS ST.
                JOSEPH HOSPITAL), Appellant
                            V.
                LINDA G. CARSWELL, Appellee


                   On Appeal from the 165th District Court
                            Harris County, Texas
                      Trial Court Case No. 2005-36179


  OPINION DISSENTING FROM THE DENIAL OF EN BANC REVIEW

      A hospital’s management of an autopsy is a “professional or administrative

service[] directly related to health care.” See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.001(a)(13) (West 2011); CHCA Bayshore, L.P. v. Ramos, 388 S.W.3d 741,
747 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (holding that Chapter 74

governed claim for emotional distress arising from negligence in handling fetal

remains). The panel in this case decides that fraud relating to procuring an autopsy

is not a health care liability claim, and that the damages the jury awarded for

mental anguish associated with this fraud are not subject to Chapter 74’s

limitations of liability. Because this decision departs from Chapter 74 and stands

in disagreement with both our court’s earlier panel decision in Ramos and the

Dallas Court of Appeal’s decision in Swanner v. Bowman, we should grant en banc

review. See id.; Swanner v. Bowman, No. 05-02-00040-CV, 2002 WL 31478769,

at *4 (Tex. App.—Dallas Nov. 7, 2002, pet. denied) (mem. op., not designated for

publication).

       Professional or administrative service

       Beginning with the statutory language, 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) (emphasis added). Chapter

74 defines professional or administrative services as “those duties or services that a

physician or health care provider is required to provide as a condition of

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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). To maintain its license, a hospital must comply with Title 25,

Chapter 133 of the Administrative Code.        25 TEX. ADMIN. CODE § 133.21(b)

(2013) (Tex. Dep’t of State Health Servs., Hosp. Licensing). Under Chapter 133, a

hospital “shall adopt, implement, and enforce protocols to be used in determining

death and for filing autopsy reports which comply with [Chapter 671 of the Health

and Safety Code].” Id. § 133.45(a). A hospital’s management of an autopsy is

thus a “professional or administrative service” under the health care liability

statute. See Ramos, 388 S.W.3d at 745 (holding that handling fetal remains was

professional or administrative service).

      Directly related to health care

      To fall within the confines of a health care liability claim, the complained–of

“professional or administrative service” must be directly related to health care.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). Carswell’s husband was a

Christus patient at the time of his death. Christus’s mismanagement of her autopsy

request and the representations its staff made to Carswell directly relate to the

provision of health care services because only a physician may conduct an autopsy

to determine the cause of death and to make a post–mortem diagnosis. The fraud

claim in this suit depends on the proper protocols for “determining death and filing



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autopsy reports.” We should hold that Carswell’s post–mortem fraud claim is a

health care liability claim subject to Chapter 74.

      In Ramos, our court held that a hospital’s handling of fetal remains is

directly related to health care because its actions related to medical services that

the hospital had provided to its patient. 388 S.W.3d at 746. Similarly, in this case,

Linda Carswell requested that an autopsy be performed to determine the cause of

her husband’s death and to make a post–mortem diagnosis of his medical

condition; our court’s holding in Ramos should dictate that Chapter 74 applies.

      Additional cases

      In Swanner v. Bowman, the plaintiffs alleged that a hospital’s employees

“conspired to conceal” the results of the administration of a drug by sending a

body to the hospital’s pathologist rather than to the county medical examiner.

2002 WL 31478769, at *4. The Dallas Court of Appeals held that the plaintiffs’

claims against the hospital were health care liability claims. Id. The panel in this

case incorrectly distinguishes Swanner’s facts, stating that “[t]he family did not

assert any claims arising out of the hospital’s decision to send the body to its own

pathologist.” 2013 WL 4602388 at *18. But, referring to the hospital employees’

decision to send the body to the hospital’s pathologist rather than to the county

medical examiner as the plaintiffs requested, the Swanner court recited that the

plaintiffs “alleged that [h]ospital employees conspired to conceal the results of the



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administration of the drug.” Swanner, 2002 WL 31478769 at *1, *4.           Had the

Dallas Court of Appeals determined that the fraudulent concealment claim was not

a health care liability claim, then it would have concluded that at least part of the

plaintiff’s claim—against the hospital—did not fail for lack of an expert report.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West 2011); compare id., with

2013 WL 4602388 at *19 (noting that civil conspiracy and intentional infliction of

emotional distress claims against hospital “fell within” Medical Liability and

Insurance Improvement Act.)

      The conclusion that a hospital’s fraud in connection with an autopsy directly

relates to the provision of medical services is consistent with the Texas Supreme

Court’s frequent observation that the Legislature has more broadly defined “health

care liability” under Chapter 74 than pure medical negligence. See, e.g., Tex. W.

Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 193 (Tex. 2012) (holding that

hospital employee’s claim that hospital failed to properly train, warn, and supervise

him constituted health care liability claim); Omaha Healthcare Ctr., LLC v.

Johnson, 344 S.W.3d 392, 396 (Tex. 2011) (holding that claim against nursing

home regarding patient’s death from spider bite constituted health care liability

claim); Yamada v. Friend, 335 S.W.3d 192, 196–97 (Tex. 2010) (holding that

claim against doctor for negligently advising water park regarding defibrillators

can be brought only as health care liability claim); Marks v. St. Luke’s Episcopal



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Hosp., 319 S.W.3d 658, 664 (Tex. 2010) (holding that claim against hospital

regarding patient’s fall caused by defective footboard on hospital bed constituted

health care liability claim); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d

842, 855 (Tex. 2005) (holding that inadequate–supervision claim, arising from

hospital patient’s sexual assault by another patient, constituted health care liability

claim).

      The panel relies upon Salazar v. Dickey, No. 04-08-00022-CV, 2010 WL

307852 (Tex. App.—San Antonio Jan. 27, 2010, pet. denied) (mem. op.), and Hare

v. Graham, No. 02-07-00118-CV, 2007 WL 3037708 (Tex. App.—Fort Worth

Oct. 18, 2007, pet. denied) (mem. op.), for the proposition that a claim relating to

an autopsy cannot be a health care liability claim because a patient cannot receive

medical treatment post–mortem. 2013 WL 4602388 at *20. But a health care

liability claim includes “professional or administrative services directly related to

health care,” and performing an autopsy to determine the cause of death is a

professional or administrative service. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.001(a)(13).   The Salazar and Hare courts incorrectly impose a temporal

limitation on medical services by concluding that a health care liability claim can

arise only during a patient’s medical care. Salazar, 2010 WL 307852, at *4; Hare,

2007 WL 3037708, at *3. In Ramos, we rejected this interpretation and held that

“it is not necessary that the professional or administrative services occur during the



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patient’s medical care, treatment, or confinement.” 388 S.W.3d at 746. Such a

limitation contravenes Chapter 74’s broad language, which contains no temporal

restriction. The reasoning adopted by the Salazar and Hare courts departs from

the statutory definition of a health care liability claim; we should not adopt it. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13).

                                    Conclusion

      A hospital’s management of the autopsy of a patient who died in its care is a

professional or administrative service directly related to health care; Chapter 74

therefore governs a judgment of liability for fraud arising out of that management.

The panel’s decision to the contrary neither comports with the applicable statutory

language, nor with an earlier decision of our court, nor with a decision by the

Dallas Court of Appeals.      For these reasons, we should grant en banc review.

Accordingly, I respectfully dissent from our denial of en banc review.




                                              Jane Bland
                                              Justice

Justice Bland, joined by Justices Brown and Huddle, dissenting from the denial of
en banc review.




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