## NUMBER 13 -21-00172-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

CHRISTUS SPOHN HEALTH

SYSTEM CORPORATION

, Appellant,

v.

MARY ANN HIGH AND

CYNTHIA RECTOR

, Appellee s.

On appeal from the County Court at Law No. 1

of Nueces C ounty, Texas.



## OPINION

Before Justices Hinojosa, Tijerina, and Silva

Opinion by Justice Silva

In this interlocutory appeal, we review the trial court ’s denial of appellant Christus

Spohn Health System Corporation ’s (Christus Spohn) motion to dismiss appellees Mary

Ann High and Cynthia Rector ’s negligence and medical malpractice suit. At issue is2 whether High and Rector’s causes of action constitute health care liability claim s subject

to the expert

- report requirement under the Texas Medical Liability Act (TMLA). 1 See T EX

.

C IV

. P RAC

. & R EM

. C ODE § 74.351.

For reasons explored below, we conclude in the affirmative; namely, High and

Rector ’s complaints that Christus Spohn fai led to properly identify each infant or parent

of each infant or maintain proper patient identification practices

— resul t ing in High and

Rector being “switched at birth” and discharged to the wrong families

— is a claimed

departure of accepted standards of professional or administrative services directly related

to health care

. S ee id. at § 74.001(a)(13)

. We reverse and remand so that the trial court

may assess the adequacy of High and Rector’s submitted expert reports

.

I. B ACKGROUND

On July 29, 2020, H igh and Rector sued Christus Spohn for negligence and

alternatively, medical malpractice

, complaining that the hospital ’s improper practices

resulted in H igh and Rector being misidentified while in the hospital and discharged to the

incorrect families on April 30, 1969. 2 H igh and Rector pleaded that the doctrine of res

ipsa loquitur applie d in the alternative

.

1 The parties agree that the trial court’s denial of Christus Spohn’s motion to dismiss was

predicated on its conclusion that High and Rector’s claims were not health care liability claims, and the trial

court did not rule on the adequacy of the expert reports or High and Rector’s contingency request for an

extension of time to cure any deficiencies. See T EX

. C IV

. P RAC

. & R EM

. C ODE § 74.351(c); Baty v. Futrell

, 543 S.W.3d 689, 692 n.2 (Tex. 2018)

.

2 High became motivated to learn the circumstances of her birth after her DNA testing results from

an online DNA testing service indicated she had ancestry unshared by other members of her immediate

family. High obtained public birth records from the Kleberg County Hospital, where High was delivered, and

confirmed that one other female, Rector, had also been born on the same day. High contacted Rector

, but

she declined to participate in genetic testing . However, Rector’s sister agreed to undergo genetic test ing

, and the results revealed that High and Rector ’s sister were biologically related.3 Following Christus Spohn ’s answer, H igh and Rector served Christus Spohn with

expert report s. 3 On January 19, 2021, Christus Spohn filed objections to the expert

reports and a motion to dismiss for failure to file an expert report pursuant to the TMLA

.

See id. Christus Spohn argued that the expert reports were so deficient that they

amounted to no report being served at all

. See id. § 74.351 ( I ), (r). In response, H igh and

Rector asserted that they had submitted the expert reports out of an abundance of caution

and maintained that their claims do not involve medical care

, treatment

, or a claimed

departure from the accepted standards of health care

, safety

, or professional or

administrative services directly related to health care so as to require TMLA compliance

.

See id. at §§ 74.001(a)(13) (defining a “health care liability claim”)

, 74.351 (requiring an

expert report to accompany a health care liability claim ). At a hearing on Christus Spohn’s

motion to dismiss, H igh and Rector reiterated their position that the TMLA does not apply

,

and t he trial court subsequently denied Christus Spohn’s motion to dismiss on this narrow

basis

. This appeal followed.

II. D ISCUSSION

By a singl e issue, Christus Spohn challeng es the trial court ’s denial of its TMLA

motion to dismiss. The question of whether a hospital’s misidentification of infant patients

constitutes a health care liability claim is an issue of first impression for Texas courts.

3 The expert reports are not contained in the record on appeal, but the parties do not dispute that

the reports were served on January 6, 2021. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 74.351(b) (requiring

dismissal with prejudice and attorney’s fees award if claimant fails to serve an expert report within 120 days

after a defendant files an original answer).4 A. Standard of Review and Applicable Law

“ The [TMLA] ’s comprehensive statutory framework strikes ‘a careful balance

between eradicating frivolous claims and preserving meritorious ones ’” in its imposition

of

a threshold expert report requirement, which necessitates that “ suits asserting health

care liability claims must be supported by an expert report ‘ before litigation gets

underway. ’” Baylor Scott & White, Hillcrest Med. Ctr. v. Weems

, 575 S.W.3d 357, 362

–

63 (Tex. 2019) (quoting Leland v. Brandal

, 257 S.W.3d 204, 208 (Tex. 2008) and

Spectrum Healthcare Res., Inc. v. McDaniel , 306 S.W.3d 249, 253 (Tex. 2010) ). A

claimant’s f ailure to serve an adequate expert report in a suit asserting a health care

liability claim will result in the dismiss al of the claimant’s suit with prejudice

. Id. at 363 ;

see T EX

. C IV

. P RAC

. & R EM

. C ODE § 74.351 ( l ) , (r) (6)

.

The TMLA 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

.

T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 74.001(a)(13). Imbued in th is definition are three

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.5 Bioderm Skin Care, LLC v. Sok

, 426 S.W.3d 753, 758 (Tex. 2014) (quoting Tex. W. Oaks

Hosp., LP v. Williams , 371 S.W.3d 171, 179

– 80 (Tex. 2012) ). “ No one element, occurring

independent of the other two, will recast a claim into a health care liability claim .” Id.

Under the TMLA, “h ealth 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) ; see also id. § 74.001(a)(19) (defining “ medical care ”).

Though the statute does not define “ patient, ” we apply its common meaning. See id.

§ 74.001 ; Ross v. St. Luke ’s Episcopal Hosp.

, 462 S.W.3d 496, 501 (Tex. 2015). The

primary dictionary definition of “ patient ” is “ an individual awaiting or under medical care

and treatment. ” Patient (noun)

, M ERRIAM -W EBSTER D ICTIONARY

, https://www.merriam

webster.com/dictionary/patient (last visited November 1 5, 2022 ); see generally HCA, Inc.

v. Miller ex rel. Miller

, 36 S.W.3d 187, 195 n.21 (Tex. App.

— Houston [14th Dist.] 2000),

aff ’d

, 118 S.W.3d 758 (Tex. 2003) (“ Provided it is subsequently born alive, even an unborn

fetus is a ‘ patient ’ to whom a doctor treating the mother owes a duty of care. ” (citing Brown

v. Shwarts

, 968 S.W.2d 331, 334 (Tex. 1998)) ). “ Safety ” is likewise not defined by the

TMLA. However, the Texas Supreme Court has stated that “ safety ” shoulders its common

meaning : “ the condition of being ‘ untouched by danger; not exposed to danger; secure

from danger, harm or loss .’” Ross

, 462 S.W.3d at 501 (quoting Diversicare Gen. Partner,

Inc. v. Rubio

, 185 S.W.3d 842, 855 (Tex. 2005)). “ Professional or administrative services”

means “ 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,6 accreditation status, or certification to participate in state or federal health care programs. ”

T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 74.001(a)(24)

.

Notably, a s to a claim based on professional or administrative services, the TMLA

does not require that “the a lleged injury must have occurred during or contemporaneously

with health care [received] , nor that the alleged injury was caused by health care

. ”

CHRISTUS Health Gulf Coast v. Carswell , 505 S.W.3d 528, 535 (Tex. 2016) ; s ee T EX

.

C IV

. P RAC

. & R EM

. C ODE A NN

. § 74.001(a)(13); CHCA Bayshore, L.P. v. Ramos , 388

S.W.3d 741, 746 (Tex. App.

— Houston [ 1st Dist.] 2012, no pet.) (“[I] t is not necessary that

the professional or administrative services occur during the patient’s medical care,

treatment, or confi nement.”) ; see also Ross

, 462 S.W.3d at 504 ( providing that there need

only be “a substantive nexus between the safety standards allegedly violated and the

provision of health care ”). Rather, the TMLA applies where a claim concerns injury

“ proximately caused by a ‘ departure from accepted standards of

. . . professional or

administrative services directly related to health care. ’” Carswell , 505 S.W.3d at 535

(quoting T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 74.001(a)(13) ). T he TMLA ’s “ broad

language

. . . evidences [a] legislative intent for the statute to have expansive application ”

and “ essentially creates a presumption that a claim is a[] [ health care liability claim] if it is

against a physician or health care provider and is based on facts implicating the

defendant ’s conduct during the course of a patient ’s care, treatment, or confinement. ”

Loaisiga v. Cerda , 379 S.W.3d 248, 25 6 (Tex. 2012) . A claimant may rebut the

presumption by showing that “ the only possible relationship between the conduct

underlying a claim and the rendition of medical services or health [] care [is] the7 health [] care setting[,]

. . . the defendant ’s status as a doctor or health care provider, or

both. ” Id.

Whether a claim is a health care liability claim is a question of law we review de

novo. Lake Jackson Med. Spa, Ltd. v. Gaytan , 640 S.W.3d 830, 836 (Tex. 2022). In our

analysis, we must consider the “entire court record” and “the facts underlying the claim

,

not the form of, or artfully

- ph rased language in, the plaintiff’s pleadings describing the

facts or legal theories asserted.” Id. at 838

– 39 (quoting Loaisiga , 379 S.W.3d at 255).

B. Analysis

High and Rector do not dispute that Christus Spohn ha s established the first

element

— that Christus Spohn is a “ health care provider ” under the TMLA ; therefore, the

first element is met

. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 74.001(a)(12)(A) ( “‘ Health

care provider ’ means any person, partnership, professional association, corporation,

facility, or institution duly licensed, certified, registered, or chartered by the State of Texas

to provide health care [.]” ); see also Soliz v. McAllen Hosps., L.P.

, No. 13

- 20

- 00535

- CV,

2022 WL 52595, at *3 (Tex. App.

— Corpus Christi

– Edinburg Jan. 6, 2022, pet. denied)

(mem. op.) (“ It is undisputed that the Hospital is a health care provider under the TMLA,

and, therefore, the first [ health care liability claim] element is met. ” ).

As w e proceed with our inquiry into the second element , we find the Texas

Supreme Court ’s statutory analysis in Carswell to be most instructive. See 505 S.W.3d at

536 . In Carswell

, the c ourt considered whether a claim based on post

- mortem conduct

concerned “ professional or administrative services directly related to health care. ” Id

. at

535. Observing that the plaintiff ’s factual allegations implicated provisions under the

Texas Code of Criminal Procedure, Texas Health and Safety Code, and Texas8 Administrative Code pertaining to hospital requirements for licensure , t he court concluded

that the suit implicitly involved a “ claimed departure from accepted standards

of

. . . professional or administrative services.” Id. at 534

– 35 (citing T EX

. C ODE C RIM

.

P ROC

. A NN

. arts. 49.25, 49.32(a), 49.35; T EX

. H EALTH & S AFETY C ODE A NN

.

§ 241.053(a)(3); 25 T EX

. A DMIN

. C ODE §§ 133.1(c), 133.121(1)(F) ); see also McAllen

Hosps., L.P. v. Ontiveros

, No. 13

- 11

- 00512

- CV, 2012 WL 3761981, at *3 (Tex. App.

—

Corpus Christi

– Edinburg Aug. 30, 2012, pet. denied) (mem. op.)

. We frame our analysis

similarly and jointly consider : (1) what is the gravamen of High and Rector’s claims ; and

(2) what, if any, relationship exists between High and Rector’s claims and the professional

or administrative services Christus Spohn was obligated to provide as a condition of

maintaining its license, accreditation status, or certification

. See T EX

. C IV

. P RAC

. & R EM

.

C ODE A NN . § 74.001(a)(13); Carswell

, 505 S.W.3d at 536 ; Bioderm Skin , 426 S.W.3d at

758

.

Christus Spohn argues that High and Rector ’s claims are premised on allegations

of the hospital’s noncompliance with practices set forth in Chapter 133 of the Texas

Administrative Code

, which “provides procedures for obtaining a hospital license;

minimum standards for hospital functions and services; [and] patient rights

standards

. . . .” See 25 T EX

. A DMIN

. C ODE § 133.1(b); see id. § 133.1(a) (“The purpose of

[ Chapte r 133] is to implement the Health and Safety Code, Chapter 241, which requires

general and special hospitals to be licensed by the Department of State Health

Services.”); see also T EX

. H EALTH & S AFETY C ODE A NN . § 241.002 (purpose)

. Christus

Spohn directs this Court to the following Chapter 133 provision s:9 The hospital shall have a medical record service that has administrative

responsibility for medical records. A medical record shall be maintained for

every individual who presents to the hospital for evaluation or treatment.

. . . .

The medical record shall contain information to justify admission and

continued hospitalization, support the diagnosis, reflect significant changes

in the patient’s condition, and describe the patient’s progress and response

to medications and services. Medical records shall be accurately written,

promptly completed, properly filed and retained, and accessible.

25 T EX

. A DMIN

. C ODE § 133.41(j). The Texas Department of State Health Services “may

deny, suspend, or revoke a license [of a hospital] or impose an administrative penalty if

the licensee or applicant

. . . fails to comply” with “any provision ” set forth in Chapter 133

.

Id. at § 133.121(1). Christus Spohn further asserts that Chapter 133 ’s medical record

provision s encompass the professional or administrative dut ies central to High and

Rector’s claims

— namely, that hospitals must “ [p] roperly identify [] infants within medical

records and hav [e] appropriate ‘ processes and procedures in place ’ to prevent infant

misidentification

. . . as a condition for maintaining its license .”

In response, High and Rector maintain on appeal

, as they did before the trial court

,

that they have presented “ no allegation that proper medical records were not kept on the

mothers

. . . or the infants. ” High and Rector stress that this case “ does not involve

incorrect medical records ” because “ [t] he only documents a lleged to be incorrect here

were the birth certificates ,” which are “ not a part of health care. ” Thus, High and Rector

contend that Chapter 133 requirements regarding medical records should have no

bearing on our analysis

. Having reviewed the facts underlying High and Rector’s claim s

,

w e disagree. See Lake Jackson , 640 S.W.3d at 838

– 39.10 T he crux of High and Rector’s claims concern Christus Spohn’s alleged failure to

have reasonable processes and procedures in place to correctly identify and maintain the

identity of each infant patient so as to minimize risk of patient misidentification or incorrect

discharge. See id

. Although not controlling, we note the language contained in High and

Rector’s original petition :

5.2 At the time and place in question, Defendant had a duty to correctly

and securely identify each infant in the hospital and to ensure that

discharge of each infant be with his or her parent or family.

5.3 Defendant was guilty of the following separate acts of negligence,

each of which, singularly or in combination, were a proximate cause

of the injuries and damages alleged herein.

a) Failing to have reasonable processes and procedures in place

to properly identify each infant, or failing to follow same;

b) Failing to have reasonable processes and procedures in place

to properly identify the parent for each infant, or failing to

follow same;

c) Failing to have reasonable processes and procedures in place

to maintain the identity of each infant while in the hospital, or

failing to follow same;

d) Failing to have reasonable processes and procedures in place

to minimize or eliminate the risk that an infant would be

misidentified, or failing to follow same;

e) Failing to have reasonable processes and security

procedures in place to minimize or eliminate the risk that an

infant may be discharged from the hospital with the wrong

parent or family, or failing to follow same.

High an d Rector ’s pleadings altogether eschew mention of “ medical records .” However,

their claims necessarily concern the hospital ’s fail ure to have reasonable processes and

procedures in place to create and maintain accurate medical records (i.e., accurate

patient

- identifying information) for each infant patient

. See Weems

, 575 S.W.3d at 36311 (noting “a party cannot avoid Chapter 74 ’s requirements and limitations through artful

pleading ” ). Though we observe that patient

- identifying procedures may present in

alternative forms, we are unable to disassociate High and Rector’s attenuated contention

that the hospital had a duty to correct ly identify and maintain an accurate identification of

each infant with the hospital ’s recognized duty to create and maintain accurate medical

records. See 25 T EX

. A DMIN

. C ODE § 133.41(j)(4) ; see generally T EX

. H EALTH & S AFETY

C ODE A NN . § 241.0263 (a), (d) (setting forth security procedures to “ reduce the likelihood

of infant patient abduction” or to “aid in the identification of missing infants ,” which include

“ footprinting, photographing, or writing descriptions of infant patients at birth ” ); Strategies

to Improve Patient Identification: Accurate Patient Identification Essential to Avoid

Adverse Health, Financial Risks , 26 H EALTHCARE R EGISTRATION 3 (2017) (reviewing

standards and practices to reduce the risk of misidentifying patients during hospital care) ;

Tara R. Crane, Mistaken Baby Switches , 21 J

. L EGAL M ED

. 109, 110

– 11 (2000) ( exploring

the possible breaches of professional duties which may arise and liability theories to

which hospitals may be exposed when infant patients under their care are “ switched ”)

.

Moreover, at minimum, the claims High and Rector present here are “ premised on

facts that could support ” health care liability claim s, and they must be treated as such.

See Lake Jackson

, 640 S.W.3d at 838 (“ [C]laims ‘ premised on facts that could support

claims ’ that qualify as health care liability claims are health care liability claims, regardless

of the pleading ’s specific allegations. ” (quoting Loaisiga

, 379 S.W.3d at 255) ). It is well

established that the “ creation and maintenance of accurate health records is

. . . a

professional or administrative service directly related to health care ,” and a patient’s

medical records “ must contain accurate data and information pertaining to the patient

. ”12 See Weems

, 575 S.W.3d at 365 ( quoting 22 T EX

. A DMIN

. C ODE § 165.1(a), (a)(10 )). It

follows that an infant’s medical records containing incorrect patient

- identifying information

( or, as relevant here , incorrect prenatal care history or post

- delivery information ) would

be a deviation from accepted professional or administrative standards

. Therefore,

p rovided that the final element of the statute is satisfied

, High and Rector’s claims may

constitute health care liability claims

. 4

To the third and final element of whether Christus Spohn’s alleged act or omission

proximately caused the injury to the claimant s, we answer affirmative ly

. See Bioderm

Skin

, 426 S.W.3d at 758 . A substantive nexus exists between Christus Spohn’s alleged

act or omission

— its failure to correctly identify each infant and maintain accurate

identification for each infant

, an inseparable part of the hospital ’s professional or

administrative duty to create and maintain accurate medical records

— and High and

Rector ’s claimed injury

— their misidentification as infants and the resulting erroneous

discharge

. See Weems

, 575 S.W.3d at 364 (“ Weems ’s claims

, if true, satisfy the final

element of a health care liability claim

, because the central thesis of his claim is that the

purported falsification proximately caused the injuries, he

— the claimant

— alleges he has

suffered. ”). Th us, w e conclude that High and Rector have assert ed health care liability

claim s subject to the TMLA ’s expert report requirement

. See id. ; see also T EX

. C IV

. P RAC

.

& R EM

. C ODE § 74.351.

4 Christus Spohn also contend s that High and Rector’s claims involve allegations of “departure[s]

from accepted standards” of health care and safety. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 74.001(a)(13);

Ross v. St. Luke’s Episcopal Hosp. , 462 S.W.3d 496, 505 (Tex. 2015) (setting forth a list of non

- exclusive

considerations to help courts determine whether there is a substantive nexus between the safety standards

allegedly violated and the providing of health care). Given our resolution of this element under the

“ professional or administrative service” provision, we do not reach th ese subissue s

. See T EX

. R. A PP

. P.

47.1.13 III. C ONCLUSION

The part ies agree that the trial court did not rule on the adequacy of the submitted

expert reports in its denial of Christus Spohn ’ s motion and remand would be appropriate

following a finding by this Court that High and Rector’s claims are health care liability

claims

. W e reverse and remand for further proceedings consistent with this opinion

.

CLARISSA SILVA

Justice

Delivered and filed on the

17th day of November

, 202 2

.