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                                                OPINION

                                         No. 04-09-00546-CV

               SAN ANTONIO EXTENDED MEDICAL CARE, INC. D/B/A Med Mart,
                                    Appellant

                                                   v.

    Ruben VASQUEZ, Individually, and as Administrator of the Estate of Ruben Vasquez, Jr.,
               Deceased, and Oralia Vasquez, Joe Jimenez, and Rosa Ward,
                                        Appellees

                      From the 150th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008-CI-20411
                              Honorable Andy Mireles, Judge Presiding

                   OPINION ON APPELLEES’ MOTION FOR REHEARING

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: May 26, 2010

REVERSED AND REMANDED

           The motion for rehearing filed by appellees, Ruben Vasquez, individually and as

administrator of the Estate of Ruben Vasquez, Jr., deceased, and Oralia Vasquez, Joe Jimenez, and

Rosa Ward, is granted. This court’s opinion and judgment dated February 3, 2010, are withdrawn,

and this opinion and judgment are substituted.
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       In this interlocutory appeal, San Antonio Extended Medical Care, Inc. d/b/a Med Mart (“Med

Mart”) challenges the trial court’s order denying its motion to dismiss filed pursuant to section

74.351(a) of the Texas Civil Practice and Remedies Code. TEX . CIV . PRAC. & REM . CODE ANN .

§ 74.351(a) (Vernon Supp. 2009). Because we conclude the trial court erred in finding that Med

Mart did not meet the definition of a health care provider, we reverse the judgment of the trial court

and remand the cause to the trial court for further proceedings.

                                           BACKGROUND

       On April 7, 2008, Ruben Vasquez, Jr. (“Mr. Vasquez”) underwent a tracheostomy. Ten days

after the surgery, he was discharged from the hospital under doctor’s orders to receive home oxygen

therapy and trachea care. Med Mart delivered two oxygen tanks to Mr. Vasquez’s home on April

17, 2008. The following day, Mr. Vasquez’s wife called Med Mart and informed them that her

husband was running low on oxygen. She again informed Med Mart that the oxygen supply was low

on April 19, but another delivery was not made. Later that day, Mr. Vasquez became unconscious

and was transported to the hospital by EMS. He died the next day.

       Thereafter, on December 9, 2008, Ruben Vasquez, individually, and as administrator of the

Estate of Ruben Vasquez, Jr., deceased, and Oralia Vasquez, Joe Jimenez, and Rosa Ward

(collectively, “Vasquez”) sued Med Mart alleging, among other claims, that Mr. Vasquez’s death

was proximately caused by the negligent acts and/or omissions of Med Mart, including: failing to

provide adequate oxygen tanks as ordered; failing to respond to requests by Mr. Vasquez’s family

for an adequate oxygen supply; failing to institute safeguards to insure that patients such as Mr.

Vasquez would always have an adequate supply of medical supplies, including oxygen; and failing

to provide an adequate oxygen supply as ordered by his treating doctors.


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       On May 14, 2009, Med Mart filed a motion to dismiss claiming Vasquez failed to serve his

120-day expert report as required by section 74.351(a) of the Texas Civil Practice and Remedies

Code. See TEX . CIV . PRAC. & REM . CODE ANN . § 74.351(a). Vasquez filed a motion to strike the

motion to dismiss and a response to the motion to dismiss claiming that he is not subject to the

requirements of section 74.351 because he did not assert a health care liability claim against Med

Mart and because Med Mart is not a health care provider. Alternatively, Vasquez argued in the

motions that he complied with section 74.351 by filing an autopsy report attached to a Stowers

demand letter within the 120-day expert report deadline and that the report was not objected to by

Med Mart. The trial court denied the motion to dismiss for failure to file an expert report without

making findings of fact or conclusions of law, but orally stated that the evidence did not demonstrate

Med Mart to be a health care provider. The trial court’s order specifically stated that “[t]he Court

makes no ruling on Plaintiff’s Motion to Strike Defendant’s Motion to Dismiss.”

                         STANDARD OF REVIEW AND APPLICABLE LAW

       We generally review a trial court’s order granting a motion to dismiss for failure to timely

file a section 74.351(a) expert report under an abuse of discretion standard. Pedroza v. Toscano, 293

S.W.3d 665, 666 (Tex. App.—San Antonio 2009, no pet.); Holguin v. Laredo Reg’l Med. Centr.,

L.P., 256 S.W.3d 349, 352 (Tex. App.—San Antonio 2008, no pet.). However, when the issue

presented requires a statutory interpretation or a determination of whether Chapter 74 applies to a

claim, i.e., questions of law, we use a de novo standard of review. Brown v. Villegas, 202 S.W.3d

803, 805 (Tex. App.—San Antonio 2006, no pet.). Whether a claim is a health care liability claim

is a question of law. Inst. for Women’s Health, P.L.L.C. v. Imad, No. 04-05-00555-CV, 2006 WL




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334013, *1 (Tex. App.—San Antonio Feb.15, 2006, no pet.) (mem. op.); Lee v. Boothe, 235 S.W.3d

448, 451 (Tex. App.—Dallas 2007, pet. denied).

       Section 74.351(a) provides that a health care liability claimant must file an expert report for

each physician or health care provider defendant within 120 days after filing the claim. TEX . CIV .

PRAC. & REM . CODE ANN . § 74.351(a). If the required report has not been served by the 120-day

deadline, on proper motion by a defendant, the trial court must dismiss the action with prejudice and

award reasonable attorney’s fees and court costs incurred by the defendant. Id. § 74.351(b) (Vernon

Supp. 2009).

       A “health care liability claim” is defined 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) (Vernon 2005). Whether a claim falls within

the definition of a health care liability claim requires an examination of the “essence” or “underlying

nature” of the claim. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005);

Holguin, 256 S.W.3d at 352. “A cause of action against a health care provider is a health care

liability claim . . . if it is based on a claimed departure from an accepted standard of medical care,

health care, or safety of the patient, whether the action sounds in tort or contract.” Diversicare, 185

S.W.3d at 848. “A cause of action 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.” Id. The necessity of expert testimony from a medical or health care professional may be

a factor in determining whether a claim is an inseparable part of the rendition of medical or health

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care services. Id. However, the fact that expert testimony may not ultimately be necessary to

support a verdict at trial does not necessarily mean the claim is not a health care liability claim.

Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (per curiam).

                                              DISCUSSION

       On appeal, Med Mart argues the trial court abused its discretion in denying its motion to

dismiss because Vasquez asserted a health care liability claim and was therefore required to serve

an expert report. In support, Med Mart asserts that Vasquez’s claims for negligence based on Med

Mart’s alleged failure to furnish adequate oxygen to Mr. Vasquez meet all three prongs of a health

care liability claim. It is undisputed that Vasquez alleged that Med Mart caused Mr. Vasquez’s death

by failing to deliver oxygen; thus, the third element necessary to establish a health care liability

claim—that the plaintiff must allege that the defendant’s action proximately caused injury to or death

of a claimant—has been satisfied.        TEX . CIV . PRAC. & REM . CODE ANN . § 74.001(a)(13).

Accordingly, we must determine whether Med Mart is a health care provider, and, if so, whether the

claims asserted by Vasquez claimed a departure from the accepted standards of health care. See id.

1.     Health Care Provider

       A health care liability claim is a cause of action against a health care provider or physician.

Id. A “health care provider” is defined as:

       [A]ny 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; or (vii) a health care
       institution.




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TEX . CIV . PRAC. & REM . CODE ANN . § 74.001(a)(12)(A) (Vernon 2005).1 The list is not exclusive.

See Christus Health v. Beal, 240 S.W.3d 282, 286 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

(citing TEX . GOV ’T CODE ANN . § 311.005(13) (Vernon 2005), which provides that “including” is

a term of enlargement and not of limitation). The statute 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) (Vernon 2005).

         At the hearing on the motion to dismiss, Carlos Barrera, Med Mart’s vice president, testified

that Med Mart is a company licensed by the Texas Department of Health and licensed as a

prescription drug firm. Barrera further stated that oxygen is a drug which requires a doctor’s

prescription. It is undisputed that Mr. Vasquez was prescribed oxygen by his treating physician, Dr.

Mark W. Hatch, who ordered that he be released from the hospital and treated at home with oxygen

therapy. It is likewise undisputed that Med Mart was the entity selected to provide home health care

services for Mr. Vasquez. Physicians’ orders were faxed to Med Mart by the hospital. Med Mart

contends that these attributes make it a health care provider. Vasquez counters that Med Mart cannot

be a health care provider because it is not specifically listed as such in the statute and because it is

merely licensed by the State as a distributor or manufacturer, not as a health care provider.

         We agree that Med Mart qualifies as a health care provider. The record here contains

evidence that Med Mart is licensed by the Texas Department of State Health Services as a



         1
          … The term “health care provider” also includes: “(i) an officer, director, shareholder, member, partner,
manager, owner, or affiliate of a health care provider or physician; and (ii) an employee, independent contractor, or agent
of a health care provider or physician acting in the course and scope of the employment or contractual relationship.”
T EX . C IV . P RAC . & R EM . C O D E A N N . § 74.001(a)(12)(B) (Vernon 2005).

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prescription drug firm (manufacturer) and as a licensed device firm (distributor and manufacturer).

Further, the record contains testimony from Med Mart’s vice president, who stated that a prescription

drug firm license is the same license held by pharmacies. Unlike in Brown v. Villegas, where we

held that the alleged health care provider failed to prove its status as such by not including proof that

it was “licensed, certified, registered, or chartered by the State of Texas to provide health care,” Med

Mart met its burden of establishing licensure by the State. See Brown, 202 S.W.3d at 806. Vasquez

contends that the evidence here merely demonstrates Med Mart held a license to distribute and

manufacture drugs—not to provide health care—our reading of the statute leads us to conclude that

such licenses meet the definition of a health care provider. See Pedroza, 293 S.W.3d at 668 (noting

that to ascertain the legislative intent of a statute, we begin with its plain language); Marks v. St.

Luke’s Episcopal Hosp., No. 07-0783, 2009 WL 2667801, at *3 (Tex. Aug. 28, 2009) (“When

interpreting a statute, we read words and phrases in context and construe them according to the rules

of grammar and common usage.”). The statute merely requires that the provider be licensed to

“provide health care.” TEX . CIV . PRAC. & REM . CODE ANN . § 74.001(a)(12)(A). “Health care means

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). As will be discussed below,

Med Mart supplied prescription-ordered oxygen therapy to Mr. Vasquez. At a minimum, the

delivery of the oxygen constituted an “act” performed by Med Mart for Mr. Vasquez during his

treatment. See id. Even though the oxygen was delivered to Mr. Vasquez’s home, he was released

from the hospital under doctor’s orders to receive home oxygen therapy, without which he was

incapable of breathing. See, e.g., Tesoro v. Alvarez, 281 S.W.3d 654, 660 (Tex. App.—Corpus


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Christi 2009, no pet.) (location at which health care is performed or furnished is not determinative

of whether claim constitutes a health care liability claim). Accordingly, we hold that on this record

there was sufficient evidence to prove Med Mart’s status as a health care provider. We next examine

whether Vasquez’s claims alleged a claimed departure from the accepted standards of health care.



2.     Claimed Departure from Accepted Standards of Health Care

       To establish a health care liability claim, the act or omission complained of must be an

inseparable part of the rendition of health care services. See Diversicare, 185 S.W.3d at 848;

Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 544 (Tex. 2004). A factor in considering whether

a cause of action is an inseparable part of the rendition of health care services is whether expert

testimony from a medical or health care professional is necessary to prove a claim. Diversicare, 185

S.W.3d at 848; Espinosa v. Baptist Health Sys., No. 04-05-00131-CV, 2006 WL 2871262, at *1

(Tex. App.—San Antonio Oct. 11, 2006, pet. denied) (mem. op.). Here, Vasquez alleged that Mr.

Vasquez’s death was proximately caused by the negligent acts and/or omissions of Med Mart,

including: failing to provide adequate oxygen tanks as ordered; failing to respond to requests by Mr.

Vasquez’s family for an adequate oxygen supply; failing to institute safeguards to insure that patients

such as Mr. Vasquez would always have an adequate supply of medical supplies, including oxygen;

and failing to provide an adequate oxygen supply as ordered by his treating doctors. On appeal, Med

Mart contends that Vasquez’s claims are inseparably and inextricably linked to the rendition of Mr.

Vasquez’s health care because his death is alleged to have been caused, at least in part, by Med

Mart’s failure to provide him with oxygen which was prescribed by his doctor as post-operative

treatment. In response, Vasquez maintains that Med Mart was merely delivering oxygen to Mr.


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Vasquez and was not required to remain at his bedside as the oxygen was used; therefore, the

delivery of oxygen tanks cannot be an inseparable part of the rendition of medical or health care

services.

       The facts of this case are similar to those in Valdez v. Lopez Health Systems, where the

plaintiff’s daughter died after a home health care service worker removed the portable suction

machine required for her survival. Valdez v. Lopez Health Sys., Inc., No. 04-04-00023-CV, 2005

WL 1629803, at *1 (Tex. App.—San Antonio July 13, 2005, no pet.) (mem. op.). The plaintiff

alleged that the home health service was negligent in failing to provide necessary medical equipment.

Id. This court held that the plaintiff’s claims were governed by section 74.351 because in order to

establish liability, the plaintiff would have to prove the standard of care applicable to home health

care providers and then show that the standard was breached. Id. at *2. Similarly, in order to

establish that Med Mart was negligent in failing to provide necessary medical equipment to Mr.

Vasquez, Vasquez would have to prove that the standard of care applicable to a health care provider

required Med Mart to deliver oxygen and that Med Mart breached that standard. Thus, Vasquez has

complained of acts or omissions that occurred during Mr. Vasquez’s treatment by Med Mart. See

Rose, 156 S.W.3d at 544. Accordingly, we conclude Vasquez’s claims against Med Mart asserted

an alleged departure from the accepted standards of health care.

       This conclusion is further bolstered by the fact that expert testimony will be required to prove

Vasquez’s claims. See id. (noting that one consideration in determining whether alleged act or

omission is inseparable part of health care is proving claim would require specialized knowledge of

an expert). As Med Mart notes, Vasquez alleged more than a mere failure to deliver oxygen. It is

undisputed that Med Mart delivered two oxygen tanks to Mr. Vasquez. One was half full and the


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other was a quarter full. The Med Mart technician set the flow rate of the tanks at two liters per

minute. The question, therefore, is whether an adequate supply of oxygen was delivered. Med Mart

argues that it is not within the common knowledge of the general public to know whether the correct

flow rate was set or whether there was an adequate supply of oxygen delivered in the first instance.

See Diversicare, 185 S.W.3d at 848, 851. We agree. Expert testimony is required to establish

whether the oxygen tanks were set at the correct flow level or whether an adequate supply of oxygen

was delivered to Mr. Vasquez. Such information is not within the common knowledge of the general

public. See Rose, 156 S.W.3d at 544; Imad, 2006 WL 334013, at *3.

                                           CONCLUSION

       Based on the reasons stated above, we conclude Vasquez was subject to the requirements of

section 74.351 because Vasquez’s suit asserts a health care liability claim against Med Mart, a health

care provider. See Rose, 156 S.W.3d at 546; Holguin, 256 S.W.32d at 353. The trial court erred

when it denied Med Mart’s Motion to Dismiss on the basis that Med Mart did not meet the statutory

definition of a health care provider. Because of the trial court’s erroneous conclusion on this issue,

it never considered Med Mart’s Motion to Dismiss or Vasquez’s responsive Motion to Strike Med

Mart’s Motion to Dismiss. Accordingly, we reverse the trial court’s order denying Med Mart’s

motion to dismiss, and remand the cause to the trial court for further proceedings.

                                                        Phylis J. Speedlin, Justice




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