Affirmed and Memorandum Opinion filed August 1, 2017.




                                   In The

                   Fourteenth Court of Appeals

                            NO. 14-16-00567-CV

 JOHN D. GUIMOND AND MARY GRACE GUIMOND, INDIVIDUALLY
   AND AS NEXT FRIENDS OF NICOLAS R. GUIMOND, A MINOR,
                        Appellants
                                     V.

 INTEGRATED GENETICS LAB CORP SPECIALTY TESTING GROUP,
    LABORATORY CORPORATION OF AMERICA, MEMORIAL
  HERMANN HEALTHCARE SYSTEM, AND MEMORIAL HERMANN
                 HEALTH SYSTEM d/b/a
    MEMORIAL HERMANN NORTHWEST HOSPITAL, Appellees

                  On Appeal from the 80th District Court
                          Harris County, Texas
                    Trial Court Cause No. 2015-30393

               MEMORANDUM                    OPINION


     When John and Mary Grace Guimond’s son Nicolas was born, they were told
that cytogenetic testing showed the child was normal. Eight months later, the
hospital that ordered the test and the laboratory that performed it either reviewed the
original test results or retested the original sample and informed the Guimonds that
their son has Down Syndrome. The Guimonds, individually and as Nicolas’s next
friends, sued the hospital and the laboratory, but the trial court granted each
defendant’s motion to dismiss on the ground that the Guimonds failed to file an
expert report as required to maintain a health care liability claim.

       In this appeal, the Guimonds argue that the trial court erred in dismissing the
case because they present no health care liability claims, and thus, no expert report
is required. All of the Guimonds’ claims, however, can be reduced to an allegation
that Nicolas was harmed by the defendant health care providers’ failure to properly
perform, interpret, or report the results of diagnostic testing. Under the unambiguous
language of the relevant statutes, and as a matter of law, this is a health care liability
claim. Because the Guimonds failed to file an expert report as required, we affirm
the trial court’s orders dismissing their claims and requiring them to pay the
defendants’ attorney’s fees.

                                      I. BACKGROUND1

       On the day their son Nicolas was born at Memorial Hermann Northwest
Hospital (“Memorial Hermann”),2 Memorial Hermann’s doctors and other
authorized personnel asked for the Guimonds’ consent to perform cytogenetic


       1
          Unless otherwise noted, the information in this section is drawn from the factual
allegations of the Guimonds’ pleadings and from the allegations in, and evidence attached to, their
response to the motions to dismiss their claims.
       2
         In their live pleadings, the plaintiffs listed three “Memorial Hermann” defendants—
Memorial Hermann Health System, Memorial Hermann Healthcare System, and Memorial
Hermann Northwest Hospital—but in fact, there is only one “Memorial Hermann” defendant. In
its answer, Memorial Hermann identified itself as “Memorial Hermann Health System d/b/a
Memorial Hermann Northwest Hospital (incorrectly named as Memorial Hermann Healthcare
System).”

                                                2
testing on Nicolas to determine if he has Down Syndrome. The Guimonds agreed
and paid for the testing. By agreement with Memorial Hermann, the test was
performed by Laboratory Corporation of America Holdings (“LabCorp”).3 LabCorp
reported to Memorial Hermann that Nicolas had “normal male karyotype,”4 and
Memorial Hermann employee Dr. Elizabeth Eason informed the Guimonds that the
test showed Nicolas to be “normal.”

       In the eight months after Nicolas’s birth, the Guimonds became concerned
about his development.          After other medical providers examined Nicolas and
suggested that he might have Down Syndrome, the Guimonds returned to Memorial
Hermann and again contracted for Memorial Hermann and LabCorp to perform
cytogenetic testing. According to the Guimonds, LabCorp did not test an additional
sample of Nicolas’s blood but instead either retested the original sample or reviewed
its original results.5 LabCorp concluded that Nicolas does have Down Syndrome.
LabCorp and Memorial Hermann communicated the amended test report to the
Guimonds.

       The Guimonds sued Memorial Hermann, LabCorp, Dr. Eason, and three other
doctors for fraud, breach of contract, misrepresentation, violations of the Texas
Deceptive Trade Practices–Consumer Protection Act, negligence, and gross
negligence. In their original petition, they specifically pleaded that the defendants


       3
         The single laboratory named in the suit is referred to in the plaintiffs’ pleadings both as
Integrated Genetics Lab Corp Specialty Testing Group and as Laboratory Corporation of America.
LabCorp identifies itself as “Laboratory Corporation of America Holdings (‘LabCorp,’ who was
incorrectly sued as Integrated Genetics Lab Corp Specialty Testing Group).”
       4
         “Karyotype” means “the number and visual appearance of the chromosomes in the cell
nuclei of an organism or species.” NEW OXFORD AMERICAN DICTIONARY 950 (Angus Stevenson
& Christine Lindberg eds., 3d ed. 2010).
       5
        LabCorp’s amended report of the test results lists a different specimen number, but gives
the same date of specimen collection stated in the original report.

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“committed medical malpractice in their conduct as set forth above and in this
petition.” After Dr. Eason moved for dismissal of the Guimonds’ claims with
prejudice for failure to serve the statutorily required expert report necessary to
maintain a health care liability claim, the Guimonds nonsuited their claims against
all four doctors and amended their petition to remove the reference to medical
malpractice. Their amended petition also identified the harm alleged from the
erroneous test results: “All research indicates that early intervention with specific
therapy for Down Syndrome children is crucial . . . . As a result of the breaches by
[Memorial Hermann and LabCorp], Nicolas, John and Mary Grace lost substantial
and precious time before being able to make intervention for therapy for Nicolas.”

      Memorial Hermann and LabCorp filed their own motions to dismiss for
failure to serve expert reports. In response, the Guimonds asserted that Memorial
Hermann was the intermediary between themselves and LabCorp, and that LabCorp
does not provide medical or health care services. In support of their position, the
Guimonds emphasized the statement on LabCorp’s website, “Whether the needs are
large or small, routine or complex, physicians and patients can depend on us for
access to a full range of the highest quality diagnostic testing.”

      The trial court granted both motions to dismiss.

                                II. ISSUES PRESENTED

      In seven issues, the Guimonds argue that the trial court erred in granting
Memorial Hermann’s and LabCorp’s motions to dismiss. The issues are different
phrasings of the same argument, differing only in whether the issue challenges the
order granting Memorial Hermann’s motion to dismiss, the order granting
LabCorp’s motion to dismiss, or both. Because the Guimonds did not separately
brief any issue, we likewise address all of their issues as a single unit.


                                           4
                     III. THE NATURE OF THE GUIMONDS’ CLAIM

      Under the Texas Medical Liability Act,6 a claimant asserting a health care
liability claim must serve each defendant with one or more expert reports within 120
days after the defendant answers the suit. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(a) (West 2017).        An expert report summarizes the expert’s opinion
“regarding applicable standards of care, the manner in which the care rendered by
the physician or health care provider failed to meet the standards, and the causal
relationship between that failure and the injury, harm, or damages claimed.” Id.
§ 74.351(r)(6). If the claimant serves no expert report on a defendant physician or
health care provider within the time allowed, then that defendant can move to
dismiss the claim with prejudice. Id. § 74.351(b). The trial court must grant the
motion and must award that defendant reasonable attorney’s fees and costs of court.
Id.

      The Guimonds argue that the trial court erred in dismissing their case against
Memorial Hermann and LabCorp because their claims are not health care liability
claims, and thus, the Act does not apply.

      Whether a claim is encompassed within the Texas Medical Liability Act is a
matter of statutory construction. See Tex. W. Oaks Hosp., LP v. Williams, 371
S.W.3d 171, 177 (Tex. 2012). The construction of a statute is a question of law
which we review de novo. See id. And here, the statute itself defines a “health care
liability claim”:

      “Health care liability claim” means 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
      6
          TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.001–.507 (West 2017).

                                             5
      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). Thus, a claimant asserts a
health care liability claim if (a) the defendant is a “health care provider” or
physician; (b) the claimant’s claim concerns “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”; and (c) the
conduct complained of proximately caused injury to the claimant. See Tex. W. Oaks
Hosp., 371 S.W.3d at 179–80.

A.    Memorial Hermann and LabCorp Are Health Care Providers.

      A “health care provider” includes an entity that is a “health care institution.”
See id. § 74.001(a)(12)(A)(vii). A “health care institution” is defined to include “a
hospital.” See id. § 74.001(a)(11)(G). All parties agree that Memorial Hermann is
a hospital; thus, Memorial Hermann is a “health care provider.”

      The term “health care provider” is not limited to health care institutions such
as hospitals, but also includes an “independent contractor, or agent of a health care
provider or physician acting in the course and scope of the . . . contractual
relationship.” See id. § 74.001(a)(12)(B)(ii). The undisputed facts establish that
LabCorp fits within this definition.      The Guimonds pleaded that personnel at
Memorial Hermann asked if the Guimonds wanted cytogenetic testing performed on
their newborn child, and when the Guimonds consented, LabCorp performed the test
“by agreement with” Memorial Hermann. In response to the motions to dismiss, the
Guimonds produced LabCorp’s two reports on the results of the test, and both show
that the test was ordered by a physician identified as Dr. Downey. In their appellate
brief, the Guimonds similarly state that the hospital “arranged” the test, and that the
“testing and analysis was performed by [LabCorp] through Memorial Hermann.”


                                           6
Because LabCorp acted as Memorial Hermann’s independent contractor or agent in
performing the test that was ordered by a physician, LabCorp is a “health care
provider.”

      We conclude that the first element of a health care liability claim is satisfied,
that is, that the defendants Memorial Hermann and LabCorp are health care
providers. We turn now to the second element, which concerns whether these
defendants’ alleged acts or omissions are encompassed by the Texas Medical
Liability Act.

B.    The Guimonds’ Cause of Action Is for Memorial Hermann’s and
      LabCorp’s Claimed Departures from Accepted Standards of Medical
      Care, or Health Care, or Professional or Administrative Services Directly
      Related to Health Care.
      To determine if a claimant’s cause of action is for a “claimed departure from
accepted standards of medical care, or health care, or safety or professional or
administrative services directly related to health care,”7 we look to “the facts
underlying the claim, not the form of, or artfully-phrased language in, the plaintiff’s
pleadings describing the facts or legal theories asserted.” Loaisiga v. Cerda, 379
S.W.3d 248, 255 (Tex. 2012). We begin by identifying the kinds of acts and
omissions that are encompassed by the terms “health care” and “medical care.” We
will then be able to compare the statutory definition with the Guimonds’ description
of Memorial Hermann’s and LabCorp’s allegedly improper conduct.

      “Health care” is defined to include “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) (emphasis added). “‘Medical care’ means any


      7
          See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13).

                                              7
act defined as practicing medicine under Section 151.002, Occupations Code,
performed or furnished, or which should have been performed, by one licensed to
practice medicine in this state for, to, or on behalf of a patient during the patient’s
care, treatment, or confinement.” Id. § 74.001(a)(19) (emphasis added). “Practicing
medicine” is defined to include “the diagnosis . . . [of] a mental or physical disease
or disorder or a physical deformity . . . by any system or method” by a person who
either “publicly professes to be a physician or surgeon” or “directly or indirectly
charges money or other compensation for those services.” TEX. OCC. CODE ANN.
§ 151.002(a)(13) (West Supp. 2016). Putting all of these definitions together,
“health care” includes acts that were, or that should have been, performed or
furnished for or to the patient by a health care provider during the diagnosis, by any
system or method, of a physical disorder.8

       The Guimonds’ allegations fall within this definition. The Guimonds allege
that their child was harmed by Memorial Hermann’s and LabCorp’s failure to
properly perform, interpret, and report the results of diagnostic testing. First,
diagnostic testing—which includes performing the test, interpreting the outcome,
and reporting the result—falls within the definition of “health care.” Performing the
test and interpreting and communicating the result are acts that were, or should have
been, “performed” by a “health care provider for . . . a patient during the patient’s
medical care.”9 The acts alleged were performed “during the patient’s medical
care,” because (1) the Guimonds admit that “doctors” approached them and asked if
they wanted cytogenetic testing performed on Nicolas; (2) the tests were ordered by
Dr. Downey, as is shown by the designation of this individual as the “Ordering


       8
          This is not an exhaustive definition; we address only the definitions applicable to the
allegations and the evidence in this case.
       9
           Because Nicolas is a minor, the report was furnished to his parents on his behalf.

                                                  8
Physician” on both the original and the amended reports of the results of Nicolas’s
blood test; (3) the Guimonds allege that they paid for the testing; (4) they allege that
Dr. Eason reported the initial test results; and (5) they admit that at least one purpose
of the test was “to determine if Nicolas had Down Syndrome, or any other
abnormality.” Thus, the testing was performed for direct or indirect compensation,
and was part of Dr. Downey’s and Dr. Eason’s practice of medicine—specifically,
the “the diagnosis . . . [of] a . . . physical . . . disorder . . . by any system or method.”
The comparison of the statutory definitions with the Guimonds’ allegations
establishes that the Guimonds are asserting health care liability claims against health
care providers Memorial Hermann and LabCorp.

       To avoid this conclusion, the Guimonds characterize their allegations as
concerning “scientific” testing, even though they also continue to emphasize that
LabCorp holds itself out as providing “diagnostic testing.” For reasons that are
unclear, the Guimonds conclude from this that “[i]t is obvious that LabCorp DOES
NOT WANT to provide healthcare or medical services. Logically this takes them
out of the health care liability arena, likely their specific intention.” We do not see
the logic in this argument, which cannot be reconciled with the statutory definitions
we have just discussed. Medicine is a science,10 and diagnostic testing is a kind of
scientific testing encompassed by the practice of medicine.

       The Guimonds further state that their claims are not health care liability claims
because the claims “require[] no expert opinions or proof of negligence,
wrongdoing, or mistake” because “LabCorp, by its own reported matters (essentially
admissions) made an error.” Again, the Guimonds’ reasoning is unclear. If this


       10
          See also NEW OXFORD AMERICAN DICTIONARY 1087 (Angus Stevenson & Christine
Lindberg Eds., 3d ed. 2010) (defining “medicine” to include “the science or practice of the
diagnosis, treatment, and prevention of disease”).

                                             9
argument is intended to invoke the doctrine of res ipsa loquitur, the argument fails
because “[r]es ipsa loquitur is simply a rule of evidence by which negligence may
be inferred by the jury; it is not a separate cause of action from negligence.”
Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990). Moreover, even in health
care liability claims to which res ipsa loquitur arguably applies, the claimant still
must comply with the statutory expert-report requirement. See Murphy v. Russell,
167 S.W.3d 835, 838 (Tex. 2005) (per curiam) (addressing the predecessor statute).
If the Guimonds instead intended to suggest that LabCorp’s reports are party
admissions or statements against interest, the argument fails for the same reason:
these are rules of evidence, not exceptions to the Texas Medical Liability Act. See
TEX. R. EVID. 801(e)(2) (identifying the characteristics under which an opposing
party’s statement is not hearsay); TEX. R. EVID. 803(24) (providing that a statement
against interest is “not excluded by the rule against hearsay”).

      We conclude that the Guimonds’ pleading satisfies the second element of a
health care liability claim. This leaves only the third element, that is, whether the
Guimonds contend that Memorial Hermann’s and LabCorp’s conduct proximately
caused injury to Nicolas (and the derivative mental, emotional, and financial harm
the Guimonds allegedly have or will sustain as Nicolas’s parents).

C.    The Guimonds Allege that Memorial Hermann’s and LabCorp’s
      Breaches of the Standard of Care Proximately Caused the Claimed
      Harm.
      The Guimonds’ allegations concerning proximate cause are straightforward.
They pleaded that Memorial Hermann and LabCorp “had duties . . . to provide the
services and reporting, as represented, correctly and accurately.” The Guimonds
further pleaded that Memorial Hermann and LabCorp “failed to adhere to those
duties and in fact breached those duties by failing to adhere to the standard of
conduct reasonably anticipated and relied upon by the Plaintiffs. That breach of duty

                                          10
was a direct and proximate cause of the damages sustained by the Plaintiffs,
inclusive.” Thus, the third element of a health care liability claim is satisfied.

       We overrule each of the issues presented.11

                                       IV. CONCLUSION

       Because the Guimonds have alleged only health care liability claims against
Memorial Hermann and LabCorp, the trial court properly granted the defendants’
motion to dismiss the claims against them with prejudice. We overrule each of the
issues presented, and we affirm the trial court’s judgment.




                                              /s/     Tracy Christopher
                                                      Justice




Panel consists of Justices Christopher, Busby, and Jewell.




       11
            In their seventh issue, the Guimonds ask “whether the district court, absent trial,
summary judgment evidence, or other evidentiary evidence, could properly determine and have
jurisdiction and determine that appellants’ claims were founded on the provision of medical care
or medical services, contrary to the appellants’ pleadings.” The Guimonds did not brief this issue;
thus, to the extent that the issue embraces more than a jurisdictional complaint the issue is waived.
See TEX. R. APP. P. 38.1(i). A lack of subject-matter jurisdiction, however, cannot be waived. See
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). Briefly then, Texas
district courts are courts of general jurisdiction. See Engelman Irrigation Dist. v. Shields Bros.,
Inc., 514 S.W.3d 746, 753 (Tex. 2017). We presume that a court of general jurisdiction has
subject-matter jurisdiction “unless a showing can be made to the contrary.” Dubai Petroleum Co.
v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000). While there are statutory exceptions, we are aware of none
that apply here, nor do the Guimonds argue to the contrary. The Guimonds alleged that their
damages exceeded the trial court’s minimum jurisdictional limits, and that allegation is
unchallenged. We therefore overrule the challenge to the trial court’s jurisdiction.

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