                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.”

       1
          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

                                              6
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

                                             7
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

                                             8
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.

                                            9
                                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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