Opinion
No. 04-05-00555-CV
Delivered and Filed: February 15, 2006.
Appeal from the 166th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-04939, Honorable Barbara Hanson Nellermoe, Judge Presiding.
Reversed and Remanded.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
The Institute for Women's Health, P.L.L.C. appeals the trial court's order denying its motion to dismiss filed pursuant to § 74.351 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. Rem. Code Ann. § 74.351 (Vernon 2005). In the underlying litigation, A.J. and Janelle Imad brought suit against Women's Health under theories of negligence, bailment and wrongful death, after an embryologist employed by Women's Health dropped a tray of nine fertilized eggs, destroying eight of those eggs. Women's Health maintains the Imads' claim is a health care liability claim and should be dismissed because the Imads failed to provide an expert report within 120 days of filing suit. Because we hold the Imads' claim is a health care liability claim subject to the statute's expert report deadline, we reverse the trial court's order denying the motion to dismiss and remand this cause for further proceedings consistent with this opinion.
BACKGROUND
A.J. and Janelle Imad sought medical care from a fertility expert to assist them in getting pregnant. During her treatment, Mrs. Imad had ten eggs removed. Nine of those were fertilized, creating embryos to be transferred to the uterus. Three of the embryos were to be implanted as part of her in vitro fertilization treatment, and the remaining embryos were to be frozen for later use. The day before the embryos were implanted, the embryologist dropped the entire tray of nine embryos resulting in destruction of all but one. The remaining embryo was successfully implanted as scheduled and did lead to the birth of a healthy son for the Imads. Despite their son's birth, the Imads subsequently filed suit against Women's Health asserting theories of negligence, bailment and wrongful death. After the suit had been pending for more than 120 days, Women's Health filed a motion to dismiss for the Imads' failure to file an expert report as required under § 74.351 of the Texas Civil Practice and Remedies Code. The trial court denied the motion and Women's Health filed this accelerated appeal.
DISCUSSION
In its sole issue on appeal, Women's Health contends that the trial court erred in failing to dismiss the Imads' claim because as a matter of law it is a health care liability claim and the Imads failed to timely serve an expert report as required by statute. Tex. Civ. Prac. Rem. Code Ann. §§ 74.001-.507 (Vernon 2005). The Imads maintain that this is not a health care liability claim requiring an expert report because (1) the suit does not allege injury to or death of a "person," and (2) the claim asserted is for common law negligence. We review the trial court's order to either retain or dismiss a health care liability claim under an abuse of discretion standard, but to the extent resolution of the issue requires interpretation of the statute itself, we review under a de novo standard. Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.-Houston [14th] 2004, no pet.) (decided under Tex. Rev. Civ. Stat. Ann. art. 4590i which was repealed and replaced with Tex. Civ. Prac. Rem. Code Ann. §§ 74.001-.507); see also Ponce v. El Paso Healthcare Sys., 55 S.W.3d 34, 36 (Tex.App.-El Paso 2001, pet. denied).
Section 74.001 of the Texas Civil Practice and Remedies Code sets forth the following definition of 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 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). "Plaintiffs cannot use artful pleading to avoid the . . . [Chapter 74] requirements when the essence of the suit is a health care liability claim." Garland Community Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004). However, courts must be equally careful not to extend Chapter 74's reach beyond its stated bounds. Theroux v. Vick, 163 S.W.3d 111, 113 (Tex.App.-San Antonio 2005, pet. denied). Not every action taken by a health care provider or every injury suffered by a patient is a health care liability claim. Id. The act or omission complained of must be an inseparable part of the rendition of medical services. Diversicare General Partner, Inc. v. Rubio, No. 02-0849, 2005 WL 2585490 at *3 (Tex. Oct. 14, 2005); Rose, 156 S.W.3d at 544; Theroux, 163 S.W.3d at 113. A cause of action will generally be considered a health care liability claim if it is based on a departure from an accepted standard of medical care, health care, or safety of the patient, whether the action sounds in tort or contract. Rubio, 2005 WL 2585490 at *3. In determining whether a particular case presents a health care liability claim we look not only to the pleadings but also to the underlying nature of the allegations. Rose, 156 S.W.3d at 543; Theroux, 163 S.W.3d at 113. In so doing, we are not bound by the party's characterization of its claim. Theroux, 163 S.W.3d at 114. In considering whether the claim is a health care liability claim, the court may consider whether proving the claim would require specialized knowledge of a medical expert. Rose, 156 S.W.3d at 544; Rubio, 2005 WL 2585490 at *4 (the necessity of expert testimony from a medical or health care professional to prove a claim is an important factor in determining whether a cause of action is an inseparable part of the rendition of medical or health care services).
The Imads first argue that a health care liability claim is triggered only when the suit alleges injury to or death of a person. They maintain that since a fetus has not yet been born alive and does not qualify as a "person" under the wrongful death statute, Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503, 504 (Tex. 1987), the embryos at issue do not meet the definition of a health care liability "claimant." Tex. Civ. Prac. Rem. Code Ann. § 74.001(a)(2) (Vernon 2005) (statute defines a "claimant" as "a person . . . seeking or who has sought recovery of damages in a health care liability claim"). Therefore, they argue that a suit seeking redress for destruction of a non-person, in this instance eight embryos, cannot be a health care liability claim. This argument fails, however, because the claimants in this instance are the Imads, not the eight embryos. A review of the Imads' pleadings verifies that they are seeking damages for their own mental anguish, loss of companionship and society, and medical bills because of the destruction of the embryos. It is the Imads who filed suit on their own behalf for their own injuries. See Martin v. Texas Dental Plans, Inc., 948 S.W.2d 799, 805 (Tex.App.-San Antonio 1997, writ denied) ("[m]ental anguish is a compensable injury").
The Imads admit that a wrongful death claim does not exist for the destruction of their embryos.
The Imads further assert that their suit does not involve a claimed departure from accepted standards of medical or health care. Instead, they argue their claim is one for simple negligence and is governed by a reasonable prudent person standard, not requiring expert testimony, and clearly within the province of a lay person. We again disagree. Expert testimony is necessary to establish the applicable standard of care "when the alleged negligence is of such a nature as not to be within the experience of the layman." FFE Transp. Serv., Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004). In determining whether expert testimony is necessary to establish negligence, Texas courts have considered whether the conduct at issue involves the use of specialized equipment and techniques unfamiliar to the ordinary person. Id. at 91. By their own pleadings, the Imads were "desirous of giving birth to a child;" they "contacted a specialist concerning fertility issues;" they sought specialized medical treatment which included a "course of preparation . . . [where] eggs were explanted, and ultimately fertilized." In the process of receiving these health care services, the Imads claim they were injured when an employee of Women's Health was negligent in the handling of eight of those embryos. This allegation of negligence necessarily involves the health care provided to the Imads by Women's Health. See Tex. Civ. Prac. Rem. Code Ann. § 74.001(a)(10) (Vernon 2005) (defining "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"). The very purpose of Mrs. Imad's treatment was the fertilization and implanting of the embryos to become pregnant. The acts and omissions of Women's Health, a fertility clinic run by physicians, in employing, training, and supervising an embryologist, and in establishing policies and procedures regarding the handling, storage, and transport of embryos, are an inseparable part of the rendition of health care services to the Imads and are beyond the experience of an ordinary person. Rubio, 2005 WL 2585490 at *3; Rose, 156 S.W.3d at 544; Theroux, 163 S.W.3d at 113. In determining what is proper handling, storing and transporting of embryos, specialized knowledge of health care is clearly necessary; it is not within a juror's ordinary understanding or experience. See Rose, 156 S.W.3d at 544. Therefore, we hold the Imads were required to provide an expert report before proceeding with their case. Because they failed to do so within the applicable time period set forth by the statute, the trial court erred in failing to dismiss the suit. Accordingly, we reverse the trial court's order denying the motion to dismiss, and remand for entry of a judgment dismissing the Imads' claim and awarding reasonable attorney's fees and court costs to Women's Health. Tex. Civ. Prac. Rem. Code Ann. § 74.351(b) (Vernon 2005).