

Opinion filed December 13,
2012
 
 
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-11-00256-CV 
                                                    __________
 
                        HENDRICK
MEDICAL CENTER, Appellant
                                                             V.

TEXAS PODIATRIC MEDICAL
ASSOCIATION; CORY BROWN, DPM; AND MARTIN V. SLOAN, DPM, Appellees

 
                                   On
Appeal from the 104th District Court
                                                            Taylor
County, Texas
                                                    Trial
Court Cause No. 25137-B 
 

 
                                                                  O
P I N I O N
            Appellant,
Hendrick Medical Center, brings this interlocutory appeal from the trial
court’s order denying its motion to dismiss the suit of appellees, Texas
Podiatric Medical Association; Cory Brown, DPM; and Martin V. Sloan, DPM, for
their failure to file an expert report under Section 74.351 of the Texas Civil
Practice and Remedies Code.  See Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(b) (West 2011).  The issue on
appeal is whether appellees’ claims against Hendrick are health care liability
claims under Chapter 74 of the Texas Civil Practice and Remedies Code.  See
Tex. Civ. Prac. & Rem. Code Ann.
ch. 74 (West 2011 & Supp. 2012).  Because we conclude that appellees’
claims are not health care liability claims, we affirm the trial court’s
order.     
Background
            Dr.
Brown and Dr. Sloan are podiatrists who are on Hendrick’s medical staff.  In
February 2011, Hendrick gave Dr. Brown and Dr. Sloan written notice that,
effective April 11, 2011, “[their] podiatry privileges [would] be
administratively reduced by the elimination of all ankle privileges.”  Hendrick
indicated in the notice that the decision to eliminate ankle privileges was
based on its interpretation of the law that defines the scope of the practice
of podiatry.  Hendrick stated in the notice that “[i]t is important that you
understand that this reduction in privileges is an administrative reduction and
is not predicated on quality of care issues.”  Hendrick intended to eliminate
all ankle privileges that had been extended to all podiatrists on its staff.
            Appellees
filed this suit against Hendrick.  In their petition, appellees sought
injunctive relief to prevent Hendrick “from denying to podiatrists hospital
privileges for the treatment of ailments or injuries at or below the ankle.”  Appellees
also sought declaratory relief regarding Hendrick’s ability to deny or to
revoke podiatrists’ ankle privileges.  Appellees requested that the trial court
declare, among other things, that Hendrick’s summary revocation of podiatrists’
ankle privileges violated Hendrick’s bylaws and that the denial or revocation
of ankle privileges constituted an unlawful restriction on the scope of the
practice of podiatry.  Following a hearing, the trial court issued a temporary
injunction that enjoined Hendrick “from denying, revoking or limiting any ankle
privileges previously granted to Dr. Cory Brown and/or Dr. Martin V. Sloan.”
            Hendrick
filed a motion to dismiss based on Section 74.351 of the Civil Practice and
Remedies Code.  In the motion, Hendrick asserted (1) that appellees claimed
that it had withdrawn or denied hospital privileges to Dr. Brown and Dr. Sloan;
(2) that actions taken by hospitals with respect to health care providers’
privileges are administrative acts; (3) that Chapter 74 applies to such
administrative acts; and (4) that, therefore, appellees were asserting health
care liability claims subject to the expert-report requirements in Chapter 74. 
Because appellees had not served it with an expert report, Hendrick asserted
that the trial court was required to dismiss this cause.  After a hearing, the
trial court denied Hendrick’s motion.


 
Issue
on Appeal
            In
its sole appellate issue, Hendrick contends that the trial court abused its
discretion when it denied the motion to dismiss.  
Standard
of Review
            We
generally review a trial court’s order granting or denying a motion to dismiss
filed under Section 74.351 under an abuse of discretion standard.  Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Oak Park, Inc. v.
Harrison, 206 S.W.3d 133, 137 (Tex. App.—Eastland 2006, no pet.).  However,
when the issue, as in this case, involves the applicability of Chapter 74 to the
plaintiffs’ claims and requires an interpretation of the statute, we apply a de novo
standard of review.  Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171,
177 (Tex. 2012); Strobel v. Marlow, 341 S.W.3d 470, 473–74 (Tex. App.—Dallas
2011, no pet.); Oak Park, 206 S.W.3d at 137.       
Analysis
            The
expert report requirements set forth in Section 74.351 apply to health care
liability claims.  A claimant who files a health care liability claim must
serve an expert report on each party or the other party’s counsel not later
than the 120th day after the date the claimant’s original petition was filed.  Section
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).  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.
 
Id. §
74.001(a)(13) (emphasis added).  The legislature added the phrase “or
professional or administrative services directly related to health care” when
it modified the definition of “health care liability claim” in 2003.  See Tex.
W. Oaks, 371 S.W.3d at 184.  The Texas Supreme Court has explained that, as
used in Section 74.001(a)(13), the phrase “directly related to health care”
modifies “professional or administrative services.”  Id.
            “Professional
or administrative services” is defined as “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.”  Section 74.001(a)(24).  “Health care” is defined 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.”  Id. §
74.001(a)(10).  
            A
plaintiff cannot use artful pleadings to avoid the requirements of Chapter 74
when the essence of the suit is a health care liability claim.  Garland
Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004).  To determine whether
a cause of action is a health care liability claim, we examine the underlying
nature of the claim, and we are not bound by the form of the pleading.  Diversicare
Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005).  A health
care liability claim contains three basic elements: (1) a physician or health
care provider must be a defendant; (2) the claim or claims at issue must
concern treatment, lack of treatment, or a departure from accepted standards of
medical care, or health care, or safety or professional or administrative
services directly related to health care; and (3) the defendant’s act or
omission complained of must proximately cause the injury to the claimant.  Tex.
W. Oaks, 371 S.W.3d at 179–80.  If the act or omission complained of is an
inseparable or integral part of the rendition of health care, the claim alleges
a departure from accepted standards of health care and is, therefore, a health
care liability claim.  Id. at 180; Rose, 156 S.W.3d at 544.       
            Appellees’
claims are based on Hendrick’s decision to eliminate podiatrists’ ankle
privileges.  Hendrick asserts that “[a]ppellees’ petition sets out specific
claims of departure from accepted standards of professional or administrative
services directly related to health care.”  Hendrick states in its brief that
“[t]here can be no ‘administrative service’ more directly related to the
rendition of health care than the granting and denying of privileges to health
care providers that provide the care.”  Appellees assert that, while Hendrick’s
decision to eliminate Dr. Brown’s and Dr. Sloan’s ankle privileges may fall
within the definition of “administrative services,” the decision was not
“directly related to health care” or “an inseparable or integral part of the
rendition of medical services.”  Appellees state in their brief that Hendrick’s
decision to eliminate ankle privileges “was not based on the actual rendition
of health care, was not caused by the actual rendition of health care, and did
not result in the actual rendition of health care.”
            To
satisfy the definition of a health care liability claim, the “professional or
administrative services” implicated by a cause of action against a health care
provider must be “directly related to health care.”  Section 74.001(a)(13); Tex.
W. Oaks, 371 S.W.3d at 184.  As stated above, 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.”  Section
74.001(a)(10).  Thus, for claims relating to professional or administrative
services to be health care liability claims, the services must directly relate
to an act or treatment that was or should have been performed or furnished for,
to, or on behalf of a patient.  Id.; Tex. W. Oaks, 371 S.W.3d at
180–81.      
            Appellees’
claims do not involve care or treatment that was rendered to any patient.  Instead,
their claims relate to a dispute between Hendrick and them as to the scope of
the practice of podiatry.  The act giving rise to appellees’ claims—Hendrick’s
decision to eliminate ankle privileges—was not an inseparable or integral part
of a patient’s care or treatment.  Tex. W. Oaks, 371 S.W.3d at 180.  Therefore,
Hendrick’s act of eliminating privileges was not “directly related to health
care.”  Because the complained-of act was not “directly related to health
care,” appellee’s claims are not health care liability claims under Chapter 74.
            Hendrick
relies on Rose, which we have cited above, and In re McAllen Medical
Center, Inc., 275 S.W.3d 458, 462 (Tex. 2008), for the proposition that “claims
related to the privileges extended to health care providers by health care
facilities are health care liability claims.”  These cases are distinguishable
from the present case.  In Rose, a doctor performed cosmetic surgeries
on a patient at a hospital.  156 S.W.3d at 542.  Later, the patient sued the doctor,
alleging that she had been injured as a result of the doctor’s negligence in
performing the surgeries.  The patient also named the hospital as a defendant. 
The patient alleged that the hospital had been negligent in credentialing the doctor
to practice at the hospital and in permitting him to continue to practice at
the hospital after earlier complaints were made about him.  Id. 
Specifically, the patient alleged that the hospital was negligent and malicious
in allowing the doctor to perform her surgeries, in entrusting the operating
room and equipment to the doctor, and in failing to suspend or review the doctor’s
privileges.  Id. at 544–45.  The patient’s allegations revolved around
the premise that the hospital had put her at risk by allowing the doctor to
treat her.  Id. at 545.    
            The Rose
court explained, “When a plaintiff’s credentialing complaint centers on the
quality of the doctor’s treatment, as it does here, the hospital’s alleged acts
or omissions in credentialing are inextricably intertwined with the patient’s
medical treatment and the hospital’s provision of health care.”  Id. at
546.  In Rose, the patient’s negligent credentialing claim derived from the
physician’s alleged negligent treatment of her.  Id.  The court stated
that, “without negligent treatment, a negligent credentialing claim could not
exist.”  Id.  The court concluded that the hospital’s acts or omissions
in credentialing the physician were an inseparable part of the treatment that
was provided to the patient.  Id.  The court held that the patient’s
negligent credentialing claims against the hospital were health care liability
claims under Chapter 74 because they involved a claimed departure from an
accepted standard of health care.  Id.        
            Similarly,
in McAllen Medical Center, former patients of a hospital alleged
negligent credentialing claims against the hospital based on allegedly
negligent treatment that they had received from a doctor at the hospital.  275
S.W.3d at 462.  The patients claimed that the hospital had been negligent in hiring,
retaining, and supervising the doctor.  Id.  Citing its earlier opinion
in Rose, the court recognized that the patients were asserting health
care liability claims.  Id.
            In Rose
and McAllen Medical Center, the hospitals’ granting of privileges
allowed the doctors to provide treatment to the plaintiffs at the hospitals. 
The plaintiffs’ claims against the hospitals centered on the quality of treatment
that the doctors rendered to them at the hospitals.  In this case, appellees’
allegations do not involve the rendition of health care to any person.  Quality
of treatment is simply not at issue here.  This case is distinguishable from Rose
and McAllen Medical Center.  Accordingly, those cases do not support
the contention that appellees are asserting health care liability claims.   
            For
the reasons stated above, we conclude that appellees’ claims are not health
care liability claims under Chapter 74.  The trial court did not err when it
denied Hendrick’s motion to dismiss.  Hendrick’s appellate issue is
overruled.          
This
Court’s Ruling
            We affirm the trial
court’s order denying Hendrick’s motion to dismiss.
 
 
                                                                                                TERRY
McCALL
                                                                                                JUSTICE
December 13,
2012
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.

