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Click here for the full text of this decision FACTS: Stephanie Wortham Smalling went into labor just 23 weeks into her pregnancy. She checked into one hospital, but then transferred to St. Luke’s Episcopal Hospital so that if the baby was born prematurely, the baby could be transferred to the nursery facilities at Texas Children’s Hospital. Efforts to prevent the child’s delivery failed, so the St. Luke’s staff delivered Smalling’s baby � a girl named Skyler. Smalling says she, her husband and her family were told by hospital staff that Skyler died within minutes of her birth. Reviewing the medical records later, however, Smalling found out that Skyler actually lived for almost two hours. Smalling also found a photograph showing Skyler lying uncovered on a table surrounded by soiled linens. Smalling sued the attending doctors and their parent groups (Baylor Perinatal Associates and Baylor Neonatology Associates), St. Luke’s and other health care providers. Smalling alleged that St. Luke’s and the Baylor defendants engaged in a concerted effort to deny appropriate custodial or palliative care to Skyler and prevent Smalling from knowing the status, location or condition of Skyler, thus depriving Smalling of her right to make informed decisions about Skyler’s future, and also to give her care and comfort before her death. Smalling maintained that her suit was not one for medical negligence covered by the Medical Liability Insurance and Improvement Act, but instead involved claims of fraud, common law negligence, misrepresentation, deceptive trade acts, false imprisonment and intentional infliction of emotional distress. Because of her belief that her lawsuit was not a medical malpractice lawsuit, she did not file the required expert report. The trial court granted the defendants’ motion to dismiss all of Smalling’s claims for failure to adhere to the requirement under the MLIIA to file an expert report. On appeal, Smalling makes several arguments, all related to her contention that the MLIIA does not apply to her lawsuit. HOLDING: Affirmed. As a preliminary matter, the court addressed two motions filed by Smalling to strike portions of St. Luke’s and Baylor’s briefs and appendices. As to St. Luke’s brief, the court found no evidence of the sort of flagrant violations of the rules governing briefs. For instance, Smalling claimed that one of the headings in the St. Luke brief was inappropriately argumentative because it stated the trial court “properly” dismissed her claim. The court did not find such a statement so overly argumentative that it must have been stricken. Similarly, it was unnecessary to strike one of St. Luke’s citations due to the hospital’s failure to note that one of the cases cited was not designated for publication. “The court is capable of evaluating what, if any, value to assign the case,” the court says. Furthermore, St. Luke’s appendix contained documents relevant to Smalling’s appellate issues. None of Baylor’s filings needed to be stricken, either, the court holds. The court then addressed Smalling’s substantive issues on appeal. She first claimed that the MLIIA did not apply because no provider-patient relationship existed between Skyler and the defendants. The court stated that this is not the standard by which a trial court determines whether a claim is a health care liability claim. Instead, the focus is on whether the essence of the claim involves departures from accepted standards of medical care. Then, digging deeper into the specific allegations made by Smalling, the court concluded that the essence of all of her complaints was the treatment or lack of treatment Skyler received. For example, the defendants’ decision not to transport Skyler to TCH as Smalling initially requested implicated the diagnosis, care and/or treatment Skyler received. So, too, with the treatment or lack of treatment she received while still at St. Luke’s. Though the finding above was enough to support the trial court’s judgment, the court addressed additional arguments Smalling raised in defense of why she believed the MLIIA did not govern her claim. Smalling argued that the treatment she said was not provided to Skyler � palliative care, in particular � did not involve medical judgment; it was care “countless lay people” have handed down “for centuries” and was thus within the knowledge of ordinary people. The court corrected Smalling’s argument by noting that Skyler’s birth was far from ordinary and required specialized medical knowledge on how to assess the range of options available for her delivery and subsequent care. As for Smalling’s assertion that no expert testimony would be needed to determine the time of Skyler’s death � to prove that Smalling was lied to about how long Skyler survived after birth � the court found that expert testimony would indeed be necessary to show the baby’s status or condition after birth, including whether she was dead or dying, and whether telling Smalling that the baby was dead was a deviation from the standard of care. The court also rejected Smalling’s argument that, because various Texas laws provide special legal protections for infants, the MLIIA would not apply. Despite efforts to recast her claim, the court found Smalling was still complaining about the health care Skyler received or didn’t receive. The court affirmed the trial court’s procedure of granting a motion to dismiss before holding a summary judgment hearing. And the court found no support for Smalling’s argument that the defendants waived the right to assert its argument that MLIIA applied. Finally, the court ruled that the neither the open courts nor the special laws provisions of the state constitution would be violated by the dismissal of Smalling’s lawsuit. Smalling’s claims were not dismissed because of the creation of an “impossible condition” that would impose an unacceptable barrier to the courts, but because Smalling intentionally failed to produce an expert report as the MLIIA requires. Likewise, contrary to Smalling’s contention regarding the special laws provision, the MLIIA does not immunize physicians and health care providers from suit. OPINION: Fowler, J.; Anderson, Fowler and Frost, JJ.

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