                               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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                                                                                          04-14-00310-CV


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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                                                                                        04-14-00310-CV


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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                                                                                                  04-14-00310-CV


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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                                                                                                      04-14-00310-CV


                  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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