A divided El Paso Court of Appeals has held that Chapter 74, CPRC, applies to a parent’s claim that a hospital negligently performed an autopsy on their deceased newborn.
Tenet Hospitals Limited, a Texas Limited Partnership d/b/a The Hospitals of Providence Memorial Campus v. Ashlee M. Balderrama and Alejandro J. Martinez (No. 08-23-00263-CV; August 16, 2024) arose from the death of a newborn diagnosed during his mother’s pregnancy with trisomy 18. After the infant died shortly after birth, the mother gave oral consent to a “non-invasive autopsy” and later signed a consent form. At week later, at a viewing of the infant’s remains, the parents discovered that an invasive autopsy had been performed. They called the hospital, which informed them that an invasive autopsy (which involved removing some organs) had been necessary to determine the cause of death. The hospital subsequently returned the organs to the funeral home. The parents sued the hospital, alleging negligence and seeking mental anguish damages. When Defendant invoked Chapter 74’s expert report requirement, Plaintiffs sought a determination from the trial court as to whether Chapter 74 applied. The trial court ruled that it did not. Defendants sought interlocutory relief.
In an opinion by Chief Justice Alley, the court of appeals reversed. The parties agreed that the issue before the court was whether Defendant’s “professional or administrative services pertaining to [the newborn’s] autopsy were ‘directly related to health care’” under the second prong of the statutory definition of a “health care liability claim” (§ 74.001(a)(13)). First, the court addressed the meaning of “directly related to health care.” Relying on SCOTX’s decision in CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d 528 (Tex. 2016), the court concluded that the phrase means “an uninterrupted, close relationship or link between the things being considered.” Defendant argued that Plaintiff’s claims arising from an invasive autopsy performed beyond the scope of consent are health care liability claims because there was a “nexus between the provision of health care and professional or administrative service (i.e., the autopsy).” Defendant cited Carswell, which held that an autopsy claim arising from allegations that the hospital committed malpractice resulting in the patient’s death and improperly obtained his wife’s consent to perform an autopsy in order to cover up its negligence came within Chapter 74. Defendant also relief on CHCA Bayshore, L.P. v. Ramos, 388 S.W.3d 741 (Tex. App.—Houston [1st Dist.] 2012, no pet.), in which a couple sued the hospital for mishandling fetal remains. Plaintiffs, on the other hand, argued that Carswell did not cover this case and pointed to a pair of decisions from the Fort Worth and San Antonio courts of appeals holding that a dead body was neither a “patient” or could receive “treatment” under Chapter 74.
The majority agreed with Defendant that Carswell controls because the required “nexus” between the infant’s delivery, his death as a patient in the hospital shortly thereafter, and the consent of Plaintiff, also a patient at the hospital, met the statutory definition. Unlike in Carswell, however, Plaintiffs did not allege any negligence in the treatment of either the mother or the newborn, but the court. The majority didn’t read Carswell to require allegations of negligent health care before the patient’s death, nor did it believe that the plain language of Chapter 74 did, either. The majority thus reversed the trial court and remanded the case.
In a brief dissenting opinion, Justice Soto agreed with Plaintiffs that Chapter 74 does not apply to post-mortem negligence claims that do not involve an allegation of malpractice prior to the patient’s death. This sets up the case for SCOTX consideration, should Plaintiffs decide to take it up. What surprised us somewhat about this case was the relative frequency of post-mortem negligence claims arising in a hospital setting.
