Opinion issued July 19, 2012




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                               NO. 01-11-00764-CV
                            ———————————
CHCA BAYSHORE, L.P. D/B/A EAST HOUSTON REGIONAL MEDICAL
 CENTER AND PASADENA BAYSHORE HOSPITAL, INC., Appellants
                                        V.
             AMY RAMOS AND RICHARD RAMOS, Appellees



                    On Appeal from the 234th District Court
                             Harris County, Texas
                       Trial Court Case No. 2010-49225



                                  OPINION

      Appellants CHCA Bayshore, L.P. d/b/a East Houston Regional Medical

Center and Pasadena Bayshore Hospital, Inc. (collectively, the “Hospital”) bring

this statutory interlocutory appeal from the denial of their motion to dismiss under
section 74.351 of the Texas Civil Practice and Remedies Code. In one issue, the

Hospital contends that the trial court erred because appellees Amy and Richard

Ramos asserted a health care liability claim and did not timely serve an expert

report.

      We reverse the order of the trial court and remand for further proceedings

consistent with this opinion.

                                     Background

      Amy Ramos had a dilation and curettage procedure after suffering a

miscarriage when she was approximately 12 weeks pregnant. The operative report

of Amy’s obstetrician indicated that a “specimen was sent to pathology” for

testing. Because Amy and her husband wished to hold a funeral, the obstetrician

instructed the pathology department to test the specimen and then hold it for the

funeral home.

      The next day, a funeral home employee went to the Hospital to receive the

specimen for burial. After the Ramoses held the funeral, they learned that the

Hospital had given the wrong specimen to the funeral home. The buried specimen

was exhumed and found to be the amputated toe of another patient. The Ramoses

later buried the correct specimen.

      The Ramoses sued the Hospital, alleging negligence and negligent infliction

of emotional distress. Specifically, they alleged that the Hospital acted negligently

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with respect to the identification, handling, and disposition of the specimen, in

regard to training their employees, and in relation to their policies and procedures.

The Hospital filed a motion to dismiss, arguing that the Ramoses had pleaded a

health care liability claim governed by Chapter 74 of the Texas Civil Practice and

Remedies Code, yet they failed to timely serve an expert report. The Ramoses

denied that their claim was a health care liability claim and argued that no expert

report was required. In their response to the Hospital’s motion to dismiss, the

Ramoses argued in part that “there is no specialized standard in the health care

community that applies for the pathology department[’s] failure to deliver the

correct remains to the funeral home; and there is no medical judgment related to

the care or treatment of the fetal remains.” After a hearing, the trial court denied

the motion to dismiss, and the Hospital filed this interlocutory appeal.

                                      Analysis

      The sole issue in this appeal is whether the Ramoses’ claim qualifies as a

health care liability claim governed by the Medical Liability Act. See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 74.001–.507 (West 2011). 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. Id.

§ 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).

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      In this case, the Hospital moved to dismiss the Ramoses’ suit because they

were required but failed to file an expert report in support of their alleged health

care liability claim. 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.

Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).

However, when the issue on appeal raises a question of law, such as whether the

statute applies to a particular claim, we employ a de novo standard of review. Tex.

W. Oaks Hosp., L.P. v. Williams, No. 10-0603, 2012 WL 2476807, at *3 (Tex.

June 29, 2012).

      “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 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). The Hospital relies on

Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005), and

subsequent related cases, to argue that the Ramoses’ claims—which concern the

handling of a tissue specimen and related training issues—satisfy this definition

because they allege a departure from accepted standards of “health care.” The
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Hospital also argues that the Ramoses’ claims allege a departure from accepted

standards of care for “professional or administrative services directly related to

health care.”

      We conclude that the Ramoses’ claims are health care liability claims.

Regardless of whether Diversicare and its progeny support characterizing the

Ramoses’ claims as ones for a “departure from accepted standards of medical care,

or health care,” we conclude that a separate aspect of the statutory definition of

“health care liability claim”—that term’s inclusion of “professional or

administrative services directly related to health care”—more naturally captures

the essence of the Ramoses’ claims.

I.    Professional or administrative services

      “Professional or administrative services,” as that phrase is used in the

Medical Liability Act, 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.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.001(a)(24).   The Ramoses alleged that the Hospital was negligent in its

failures to properly identify the remains of the fetus, to establish and follow

policies and procedures for identifying and surrendering remains, to properly

secure and monitor the fetal remains, to train and manage its employees to prevent

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mislabeling or misidentifying the fetal remains, to establish and implement a

comprehensive program to prevent confusion of remains, and to establish and

implement a comprehensive program to prevent the improper surrender of remains.

The crux of these allegations is that the Hospital failed to properly handle, identify,

monitor, and dispose of a specimen resulting from a medical procedure.

      a.     Mishandling of specimen

      Texas hospitals are required to obtain a license prior to admitting patients.

See TEX. HEALTH & SAFETY CODE ANN. § 241.021 (West 2012); 25 TEX. ADMIN.

CODE ANN. § 133.21(a)(1) (2012) (Tex. Dep’t of State Health Servs., Hospital

License).   During the licensing period, a hospital is required to comply with

applicable legislative and regulatory requirements. See 25 TEX. ADMIN. CODE

ANN. § 133.21(b); see generally TEX. HEALTH & SAFETY CODE §§ 241.001–.156

(West 2012) (Texas Hospital Licensing Law); 25 TEX. ADMIN. CODE ANN.

§§ 133.1–133.169 (2012) (Hospital Licensing). Among other things, the Texas

Administrative Code requires that a hospital “shall maintain directly, or have

available adequate laboratory services to meet the needs of its patients.” 25 TEX.

ADMIN. CODE ANN. § 133.41(h) (Hospital Functions & Servs.). It also requires

that a hospital laboratory “shall make provision for proper receipt and reporting of

tissue specimens.” Id. § 133.41(h)(3)(C). And although an exemption is provided

for the disposition of fetal remains by transfer to a licensed funeral director, see id.

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§ 1.133(a)(2)(F), there are specific regulations applicable to the treatment and

disposition of “special waste from health-care related facilities,” including fetuses

and tissues. See id. §§ 1.131–1.137, 1.132(40) (Tex. Dep’t of State Health Servs.,

Definition, Treatment, & Disposition of Special Waste from Health-Care Related

Facilities).

       Hospitals are required to abide by these regulations, and a hospital’s license

may be denied, suspended, or revoked for failure to comply. See TEX. HEALTH &

SAFETY CODE § 241.053(a)(1); 25 TEX. ADMIN. CODE ANN. § 133.121(1)(B) (Tex.

Dep’t of State Health Servs., Enforcement Action). To comply with the general

requirements pertaining to hospital laboratories and the specific requirements

pertaining to special waste, a hospital must have a means of identifying and storing

specimens, before and after testing. Procedures to ensure proper identification and

handling of the specimens are necessary to compliance with the regulations

pertaining to disposition of these types of specimens. Thus 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.

Accordingly, we conclude that these functions—identification, handling, and

disposal of specimens—are professional or administrative services as contemplated

by Chapter 74. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(24).




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       b.     Negligent training and supervision

       The Ramoses also alleged negligence pertaining to the Hospital’s training

and supervision of its employees and its establishment and maintenance of policies

and procedures for labeling, handling, and disposition of specimens.               The

determination of whether such causes of action are health care liability claims

requires an examination of the claims’ underlying nature. Harris Methodist Fort

Worth v. Ollie, 342 S.W.3d 525, 527 (Tex. 2011) (per curiam).

       The training and supervision of employees, as well as the maintenance of

adequate policies, are an inseparable part of fulfilling a hospital’s responsibilities

for the proper handling of specimens. For the reasons explained above, allegations

of these kinds of negligence directly implicate activities that are professional or

administrative services under the statute. Accordingly, they too may constitute

health care liability claims, so long as the other requirements of the statute are

satisfied.   Cf. Diversicare, 185 S.W.3d at 848, 849–50 (a claim of negligent

supervision or failure to train is classified as a health care liability claim when the

claim alleges “a departure from accepted standards of medical care or health care if

the act or omission complained of is an inseparable part of the rendition of medical

services”); Ollie, 342 S.W.3d at 527 (similar causes of action alleged for claimed

departures from accepted standards of “safety” may also be health care liability

claims).

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II.   Direct relation to health care

      In order to give rise to a health care liability claim, the “professional or

administrative services” implicated by a cause of action against a health care

provider or physician must be “directly related to health care.” TEX. CIV. PRAC. &

REM. CODE ANN. § 74.001(a)(13); see Tex. W. Oaks, 2012 WL 2476807, at *10.

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 this case, the Hospital’s challenged actions were directly related to the

health care that Amy received while in the Hospital.               First, Amy was

unquestionably a recipient of “health care” for purposes of the statute. While she

was a patient of the Hospital, Amy underwent “treatment”—a dilation and

curettage procedure—which was rendered on her behalf by a health care provider.

During the course of Amy’s treatment, the Hospital obtained a specimen of fetal

remains. Both the dilation and curettage procedure and the removal of the fetal

remains qualify as an act or treatment that satisfy the definition of “health care” in

section 74.001(a)(10).

      Moreover, the alleged mishandling of the specimen that occurred after the

dilation and curettage procedure and the removal of the fetal remains was “directly

                                          9
related” to the “health care” received by Amy. The fetal remains were initially

obtained during and as a result of her dilation and curettage procedure. The

Hospital thus came into possession of the specimen as a direct result of providing

health care to Amy. Once the specimen was removed from Amy and it came into

the control of the Hospital, the Hospital was obligated to maintain the specimen

and ultimately dispose of it in compliance with applicable regulations and the

patient’s instructions. The Hospital is alleged to have negligently handled the

remains.    If it did so, that action was an immediate consequence of having

performed the procedure that resulted in the Hospital’s handling of the remains,

and as such, it was directly related to the health care rendered to Amy by the

Hospital.

      Based upon the statutory definition of “health care” and its reference to

treatment performed “during the patient’s medical care, treatment, or

confinement,” id. § 74.001(a)(10), the Ramoses contend that the Hospital’s

challenged actions must have been committed “during the patient’s medical care,

treatment, or confinement” to qualify as a health care liability claim.               Id.

§ 74.001(a)(10), (19) (definitions of “health care” and “medical care”). Because

the allegedly tortious act—providing the wrong specimen to the funeral home—

occurred after Amy was discharged from the Hospital, the Ramoses thus argue that

their claims do not meet the statutory definition of a health care liability claim.

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       We disagree with the Ramoses’ interpretation of the statute as it relates to

actions arising from professional or administrative services. In the context of such

a claim, it is not necessary that the professional or administrative services occur

during the patient’s medical care, treatment, or confinement.        Instead, those

services only need be “directly related” to “health care,” including treatment that

was or should have been performed during the patient’s medical care, treatment, or

confinement. See id. § 74.001(a)(13) (definition of “health care liability claim”);

accord TTHR, L.P. v. Coffman, 338 S.W.3d 103 (Tex. App.—Fort Worth 2011, no

pet.). We hold that the Hospital’s professional or administrative services relating

to its handling of the fetal remains resulting from Amy’s dilation and curettage

procedure were directly related to the health care provided to Amy by the Hospital.

III.   Absence of need for medical expert testimony

       Finally, the Ramoses contend that they did not allege a health care liability

claim because there allegedly is no need for specialized medical expert testimony

to prove a claim of negligence with respect to the mishandling of a specimen as

alleged in their petition. Their argument that they have alleged negligence that is

within the common knowledge of laymen is unavailing.

       In Yamada v. Friend, 335 S.W.3d 192 (Tex. 2010), the Supreme Court of

Texas unanimously held that one set of underlying facts cannot separately support

health care liability claims and ordinary negligence claims.       In Yamada, the

                                         11
plaintiffs sued Dr. Yamada and others after their daughter collapsed at a water park

and later died from a heart condition. 335 S.W.3d at 193. The plaintiffs alleged

that Dr. Yamada, a medical doctor who specialized in emergency medicine, had

failed “to properly provide advice and recommendations to the City about its safety

practices,” including the placement and maintenance of automated external

defibrillators at the water park. Id. The plaintiffs’ pleadings stated claims for both

ordinary negligence and negligence based on a breach of an emergency medicine

physician’s standard of care. Id. They did not file a timely expert report. Id. The

court of appeals dismissed the part of the case relating to the physician’s standard

of care but refused to dismiss the ordinary negligence claims. Id. The Supreme

Court reversed, holding that in light of its prior decisions “to the effect that if the

gravamen or essence of a cause of action is a health care liability claim, then

allowing the claim to be split or spliced into a multitude of other causes of action

with differing standards of care, damages, and procedures would contravene the

Legislature’s explicit requirements.” Id. at 197. The Court further noted, “[I]t

would be hard to find a health care liability claim in which some action by the

health care provider or physician arguably would not be within the common

knowledge of jurors, and thus would support a claim for ordinary negligence.” Id.

      The suggestion that expert testimony is not required to prove the claim is not

dispositive of whether it qualifies as a “health care liability claim.” Even when

                                          12
expert medical testimony is not necessary, the claim may still be a health care

liability claim. See Tex. W. Oaks, 2012 WL 2476807, at *8. The statute does not

expressly state that a claim must require supporting expert testimony to qualify as a

health care liability claim, nor can that requirement by implied from the standard

set forth in the statute.

                                    Conclusion

       We conclude that the Ramoses’ petition alleges a health care liability claim.

TEX. CIV. PRAC. & REM. CODE. ANN. § 74.001(a)(13). Because they did not timely

serve an expert report, we hold that the trial court erred by denying the Hospital’s

motion to dismiss. We sustain the Hospital’s sole issue.

       We reverse the order of the trial court and remand the case to the trial court

with instructions to dismiss the Ramoses’ claims and for further proceedings

consistent with this opinion. See id. § 74.351(b).




                                              Michael Massengale
                                              Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Justice Jennings, dissenting. Publish pursuant to TEX. R. APP. P. 47.4.




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