In a case that is more complex than it looks, the Corpus Christi Court of Appeals has held that a claim against the pathologist who performed an autopsy under contract with Hidalgo County did not constitute a health care liability claim subject to Chapter 74, CPRC. The plaintiffs’ failure to file an expert report to maintain the lawsuit thus did not mandate dismissal. Miranda, et al. v. Farley (No. 13-21-0061-CV) arose from the death of a young teenage student who fell from a moving school bus. The student’s parents sued various defendants, including the school district, the superintendent, the bus driver, two parent chaperones, the Edinburg Police Department and chief of police, the City of Edinburgh and its mayor and city manager, Hidalgo County and its county judge, the Texas Education Agency, and Farley, the pathologist who performed the autopsy. They subsequently amended their petition to name only the Harlingen CISD and Farley alleging various causes of action, including intentional infliction of emotional distress. Farley moved to dismiss the claim against her under Chapter 74’s expert report requirement. The trial court granted the motion. The plaintiffs severed their claim against Farley and appealed.

The court of appeals reversed and remanded, finding that Chapter 74 did not apply to the plaintiffs’ claim against Farley. The decision turned on whether Farley departed 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 the injury or death of a claimant.” See §74.001(a)(13), CPRC. The plaintiffs argued that Farley was not a health care provider in terms of the statute because she provided no medical care to the deceased, and they did not allege that Farley’s acts proximately caused the death. Farley responded that the rebuttable presumption that a suit against a physician is a health care liability claim applies and that plaintiffs did not rebut the presumption. While Farley is clearly a health care provider, the court stated, a deceased person is not a “patient” within the meaning of the statute (concurring with the Fort Worth and San Antonio courts of appeals). If the Legislature wanted to expand the definition of “patient” to encompass the subject of a post-mortem examination, it may do so.

The stickier issue was whether the plaintiff’s claims against Farley are for “professional or administrative services directly related to health care.” The court of appeals analysis of this question turned on SCOTX’s decision in Christus Health Gulf Coast v. Carswell, 505 S.W.3d 528 (Tex. 2016). In Christus Health, the plaintiff alleged that she was fraudulently induced into signing a consent form authorizing an affiliated hospital to perform an autopsy on her deceased husband. On appeal from a verdict awarding actual and exemplary damages, Christus appealed on the basis that the suit should have been dismissed under Chapter 74 because it “was based on professional or administrative services directly related to health care.” SCOTX agreed, holding that the plaintiff’s allegations implicated the hospital’s requirements for licensure as thus involved “professional or administrative services” under Chapter 74. SCOTX further ruled that those services were “directly related to health care,” finding that the plaintiff’s post-mortem fraud claim was based on an allegation that Christus induced her to sign the consent form as part of an effort to cover up the cause of her husband’s death. It thus directly related to the standard of care the hospital should have provided to her husband during his confinement and care. SCOTX distinguished the prior court of appeals rulings based on the link in Carswell between the plaintiff’s post-mortem claim and the hospital’s pre-mortem care of her husband (rendering him a “patient” under the statute). The court of appeals’ analysis of Carswell concluded that this case does not present that linkage, and thus the trial court erred in dismissing the plaintiff’s claim against Farley.

Appeals testing the scope of Chapter 74, as well as the sufficiency of expert reports, continue to show up regularly on appellate court dockets and have generated a significant body of jurisprudence. Nearly two decades after its enactment, Chapter 74 remains sound public policy. It appears to us that appellate courts have generally done solid service in policing its boundaries and effecting the Legislature’s intent.

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