Dallas Court of Appeals, No. 05-03-00279-CV, 04-13-2004

The complained-of omissions on the part of the hospital are an inseparable part of the medical services provided to decedent. For a claim to fall under the Medical Liability and Insurance Improvement Act, the acts or omission that form the factual basis of the claims must be an inseparable part of the rendition of medical services.

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Click here for the full text of this decision FACTS:After a doctor’s appointment, Robert Hogue, Jr., was taken to the hospital by ambulance for a chest x-ray due to suspected fluid in Robert’s lungs. Robert told the ER doctor at defendant hospital he did not have a cardiac condition, despite the fact he had been diagnosed previously with a heart murmur. By 9:10 a.m., the ER doctor called a pulmonologist to handle Hogue’s care. The pulmonologist was not on call at defendant hospital, and the hospital did not have an on-call list by specialty. Hogue was sent to the intensive care unit. Because the pulmonologist was not on call and was seeing other patients at another area hospital, he did not arrive at defendant hospital until over four hours had passed. Soon after the pulmonologist arrived, he performed a surgical procedure to measure pressure in the blood vessels. Thereafter, he requested that Robert be given an echocardiogram “now.” The pulmonologist then left the hospital to care for his other patients. The hospital had a contract service provider to handle its echocardiogram needs. The contract did not provide for emergency echocardiograms on an emergency basis. There was no guaranteed response time to a request for emergency or “stat” echocardiograms. Accordingly, the contract service provider arrived over two and a half hours later, between 6:00 and 6:15 p.m.. Within minutes, he determined Robert had recently experienced a severe leakage of his heart mitral valve. A cardiologist was called, and he determined Robert required immediate open heart surgery. As defendant hospital did not offer open heart surgery procedures, Robert was transferred to another hospital, where he arrived at 8:46 p.m.. Within 15 minutes of arrival, he “coded,” and after an hour of resuscitation attempts, was pronounced dead. HOLDING:The court determines that the initial final judgment of the trial court dated Aug. 30, 2002, before it removed the cap in its amended final judgment on Dec. 3, 2002, was the correct rendition. Therefore, the court reverses the amended final judgment in part, and renders judgment that the calculations used in the Aug. 30, 2002, judgment, were correct. In all other respects, the court affirms the judgment of the trial court. The appellants claim the trial court erred when it determined that the MLIIA did not apply to appellees’ claims because its suit was based not only upon errors and omissions of medical staff, but also upon asserted administrative negligence of the hospital occurring some months before decedent’s admission. In Rose v. Garland Cmty. Hosp., 87 S.W.3d 188 (Tex. App. — Dallas 2002, pet. granted), the court held negligent credentialing/recredentialing claims were not subject to the MLIIA. The court relied on the following factors unique to that cause of action. A credentialing claim is not a cause of action for treatment or lack of treatment. After dispensing with that threshold inquiry, the court looked to whether or not the hospital departed from accepted standards of medical care, health care or safety. The court then observed a hospital cannot practice medicine. Health care refers to acts or omissions that occur during a patient’s medical care, treatment, or confinement. In addition, acts related to safety must have occurred during a patient’s medical care, treatment, or confinement. In contrast, appellees’ claims do not make it past the threshold inquiry. The gist of appellees’ claims is that the hospital failed to promptly provide decedent with an echocardiogram and transfer him to another hospital equipped to handle his needs. These claims clearly complain of a lack of treatment. The complained of omissions on the part of the hospital are an inseparable part of the medical services provided to decedent. For a claim to fall under the MLIIA, the acts or omission that form the factual basis of the claims must be an inseparable part of the rendition of medical services. The court concludes that damages obtained in the trial court are subject to the statutory cap contained in the MLIIA. OPINION:Richter, J.; James, Bridges and Richter, JJ.

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