Pearl Trevino, Individually and as Next Friend of Roman Ramos, a Minor Child v. Christus Santa Rosa Health Care Corporation and Nichola Harlan, R.N.

• Court: Court of Appeals of Texas
• Decided: October 30, 2002
• Docket: 04-01-00764-CV
• Status: Published

Opinion

CONCURRING OPINION

No. 04-01-00764-CV

Pearl TREVIÑO, individually and as next friend of Roman Ramos, a minor child,

Appellants

v.

CHRISTUS SANTA ROSA HEALTHCARE Corporation and Nichola Harlan, R.N.,

Appellees

From the 225th Judicial District Court, Bexar County, Texas

Trial Court No. 99-CI-09070

Honorable John J. Specia Jr., Judge Presiding

Opinion by: Alma L. López, Justice

Concurring opinion by: Sandee Bryan Marion, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. López, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 30, 2002

I concur with the majority's affirming the trial court's judgment; however, I respectfully disagree with the majority's conclusion that the factual allegations underlying Treviño's common law fraud claim are not a recast negligence claim. I would hold that her common law fraud claim is really a negligence claim within the ambit of the Medical Liability and Insurance Improvement Act ("MLIIA").

A plaintiff may bring a common law fraud claim that is not governed by the MLIIA; Savage v. Psychiatric Inst. of Bedford, Inc., 965 S.W.2d 745, 751 (Tex. App.--Fort Worth 1998, pet. denied); however, plaintiffs may not recast claims that a health care provider was negligent as a fraud claim to avoid the standards set forth in the MLIIA. The MLIIA applies only to "health care liability claims," which are defined as follows:

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 which proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract.

Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1.03(4).

A cause of action will be considered a health care liability claim if it is based on a breach of a standard of care applicable to health care providers. Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994). The act or omission complained of must be an inseparable part of the rendition of medical services. See Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex. 1995); Drury v. Baptist Memorial Hosp. Sys., 933 S.W.2d 668, 676 (Tex. App.--San Antonio 1996, writ denied). To determine whether a cause of action fits this definition, we must look at the underlying nature of the claim. MacGregor Med. Ass'n v. Campbell, 985 S.W.2d 38, 40 (Tex. 1998); Sorokolit, 889 S.W.2d at 242. We should examine whether the claim involves the diagnosis, care, or treatment of the patient, and whether expert testimony would be required to prove the alleged negligence. Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d 417, 419 (Tex. App.--Corpus Christi 1999, no pet.).

In her petition, Treviño alleged she relied on Santa Rosa's representations that she could present herself as a patient in the event she needed emergency medical care and she would receive the care she needed when she went to Santa Rosa's emergency room. She contended she did not receive the care as represented to her. At trial, Treviño alleged that because of Harlan's misrepresentation: "I will be over there in a little bit," her child was born in a public restroom. I believe the underlying nature of Treviño's complaint is that she did not receive the medical treatment promised by either Santa Rosa or Harlan, which in turn, gives rise to a claim that Harlan and Santa Rosa breached a standard of medical care. Because Treviño's claim arises from medical care she allegedly should have had, but did not receive, her claim is governed by the MLIIA. As such, she was required to present expert testimony on the applicable standard of care, the manner in which the care failed to meet that standard, and the causal relationship between that failure and the claimed injury. Because she failed to do so, I would hold that a directed verdict was proper. In all other respects, I concur in the majority's judgment.

DO NOT PUBLISH