In re McAllen Medical Center, Inc., 05-0892.

• Court: Supreme Court of Texas
• Citation: 275 S.W.3d 458
• Docket Number: No. 05-0892.,05-0892.
• Parties: IN RE MCALLEN MEDICAL CENTER, INC., d/b/a McAllen Medical Center and Universal Health Services, Inc., Relator.
• Decision Date: 29 August 2008

275 S.W.3d 458 IN RE MCALLEN MEDICAL CENTER, INC., d/b/a McAllen Medical Center and Universal Health Services, Inc., Relator. No. 05-0892. Supreme Court of Texas. Argued December 5, 2006. Dissenting Opinion May 16, 2008. Decided August 29, 2008.

[275 S.W.3d 460]

Roger W. Hughes, Scott T. Clark, Craig H. Vittitoe, Wilbert Hughes, Adams &

[275 S.W.3d 461]

Graham, L.L.P., Harlingen, TX, for Relator.

Ramon Garcia, Law Offices of Ramon Garcia, P.C., Edinburg, TX, Brandy M. Wingate, Attorney at Law, Mission, TX, Craig Stephen Smith, Law Offices of Craig S. Smith, Corpus Christi, TX, for Real Parties in Interest.

Thomas B. Cowart, Law Offices of Thomas B. Cowart, P.C., Dallas, TX, for Amicus Curiae.

Justice BRISTER delivered the opinion of the Court, in which Justice HECHT, Justice MEDINA, Justice GREEN, Justice JOHNSON and Justice WILLETT joined.

Appellate courts cannot afford to grant interlocutory review of every claim that a trial court has made a pre-trial mistake. But we cannot afford to ignore them all either. Like "instant replay" review now so common in major sports, some calls are so important — and so likely to change a contest's outcome — that the inevitable delay of interim review is nevertheless worth the wait.

Although mandamus review is generally a matter within our discretion, our place in a government of separated powers requires us to consider also the priorities of the other branches of Texas government.¹ One of those is implicated here— repeated findings by the Legislature that traditional rules of litigation are creating an ongoing crisis in the cost and availability of medical care.² To meet this crisis, the Legislature declared that plaintiffs must support health care claims with expert reports shortly after filing,³ something they have long had to do at trial.⁴ This expedited deadline will of course never accomplish the purposes of the Texas Legislature unless it is enforced by Texas courts.

Four years ago, this Court denied several petitions seeking mandamus relief when the statutorily required reports were allegedly inadequate. The courts of appeals have disagreed since then whether this action means that mandamus review is never available in such cases — several concluding that it does,⁵ and several concluding that it does not.⁶ We granted the

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petition here to settle the question. We now hold that mandamus relief is available when the purposes of the health care statute would otherwise be defeated.

I. Background

The relator hospital, McAllen Medical Center, granted credentials to Dr. Francisco Bracamontes to perform thoracic surgery at the hospital. Dr. Bracamontes got his medical education in Mexico, was licensed to practice medicine in Texas, and had completed a three-year fellowship at the Texas Heart Institute in Houston. But he was not board certified in thoracic surgery, as only physicians who have completed residencies at accredited U.S. hospitals are eligible for such certification.

In 1999, competing mass-tort cases involving treatment by Dr. Bracamontes were filed — one as a class action,⁷ and this case by 400 plaintiffs representing 224 former patients.⁸ As required by statute, the plaintiffs in this case submitted expert reports regarding all 224 patients, all signed by Dr. Jetta Brown. The hospital moved to dismiss on the basis (among others) that Dr. Brown was not qualified to comment on the issues here. After sitting on the motion for four years, the trial court finally denied it. The hospital then sought mandamus relief in the Thirteenth Court of Appeals, which was denied.⁹

The hospital now requests mandamus relief in this Court. To be entitled to such relief, a petitioner must show that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal.¹⁰ We address each in turn.

I. Clear Abuse of Discretion A. Negligent Credentialing

In her initial reports, Dr. Brown addressed a single claim against the hospital: that it had been negligent in "hiring, retention and supervision of Dr. Francisco Bracamontes." We have held that such claims are health care liability claims.¹¹ Thus, they had to be supported within 180 days of filing by an expert report signed by a person with knowledge, training, or experience concerning the applicable standard of care.¹²

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The curriculum vitae the plaintiffs submitted for Dr. Brown was a model of brevity. It lists where she went to high school and college, but not medical school. It discloses a "general surgery internship," but not when it took place or how long it was. For employment, it shows two years practicing emergency medicine (1978-80), twenty years in solo family practice (1980-2000), five years "specializing in medical-legal issues" (1995-2000), and a "house call business in general medicine" since 2000. It lists no hospitals where she is on staff, or has been for twenty years, though in her reports Dr. Brown says she has worked as a "surgical assistant" and attended "heart catherizations" [sic] regarding some of her patients. There is nothing else in either the CV or the reports to suggest she has special knowledge or expertise regarding hospital credentialing.

On this record, the plaintiffs have not established Dr. Brown's qualifications. "The standard of care for a hospital is what an ordinarily prudent hospital would do under the same or similar circumstances."¹³ Nothing in the record here shows how Dr. Brown is qualified to address this standard. Nor can we infer that she may have some knowledge or expertise that is not included in the record.¹⁴

Moreover, "a negligent credentialing claim involves a specialized standard of care" and "the health care industry has developed various guidelines to govern a hospital's credentialing process."¹⁵ Dr. Brown's reports contain no reference to any of those guidelines, or any indication that she has special knowledge, training, or experience regarding this process. Nor was Dr. Brown qualified merely because she is a physician; "given the increasingly specialized and technical nature of medicine, there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question."¹⁶

As the plaintiffs' only reports supporting the credentialing claims against the hospital were submitted by a doctor who was not qualified for that purpose, the trial court committed a clear abuse of discretion by concluding these reports were adequate.¹⁷

B. Other Causes of Action

In addition to their credentialing claim, the plaintiffs pleaded that Dr. Bracamontes was the hospital's agent, and thus was vicariously liable for his negligence. This claim is viable only if the

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doctor was negligent, so it too is a health care liability claim and must be supported by an expert report. But nothing in Dr. Brown's reports suggest the hospital controlled the details of his medical tasks (a requirement for hospital liability),¹⁸ and the plaintiffs do not argue otherwise on appeal.

But they do argue that even if their expert reports were inadequate, dismissal would be improper as to their fraud, fraudulent concealment, civil conspiracy, and misrepresentation claims as these do not involve health care.¹⁹ Their pleadings show otherwise. The civil conspiracy they alleged was that the defendants "conspired to commit malicious physician credentialing and fraud"; the fraud, fraudulent concealment, and misrepresentations they pleaded related to "material facts regarding Dr. Bracamontes' qualifications to perform cardiac surgery." These are simply clandestine credentialing claims.

Finally, the plaintiffs asserted that the hospital advertised all its heart surgeons as board certified, and sought economic damages "because Dr. Bracamontes performed cardiac surgery when he was not qualified as represented, and the Defendants failed to provide the promised quality of medical services." "Health care liability claim" does not include claims unrelated to a departure from accepted standards of medical care, health care, or safety.²⁰ But as the plaintiffs' advertising claims specifically related to whether Dr. Bracamontes was "qualified as represented" and attacked the "quality of medical services" they received, they were inseparable from a health care claim regarding the standards of hospital care.²¹

A person cannot avoid the statutory expert-report requirements by artful pleading.²² As all the acts and omissions the plaintiff alleged against the hospital concerned its credentialing decision, they are governed by our conclusion above that their reports were inadequate.

III. No Adequate Remedy by Appeal

Whether a clear abuse of discretion can be adequately remedied by appeal depends on a careful analysis of costs and benefits of interlocutory review.²³ As this balance depends heavily on circumstances, it must be guided by analysis of principles rather than simple rules that treat cases as categories.²⁴

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The most frequent use we have made of mandamus relief involves cases in which the very act of proceeding to trial — regardless of the outcome — would defeat the substantive right involved. Thus we have held appeal is not an adequate remedy when it will mean:

• forcing parties to trial in a case they agreed to arbitrate;²⁵

• forcing parties to trial on an issue they agreed to submit to appraisers;²⁶

• forcing parties to a jury trial when they agreed to a bench trial;²⁷

• forcing parties to trial in a forum other than the one they contractually selected;²⁸

• forcing parties to trial with an attorney other than the one they properly chose;²⁹

• forcing parties to trial with an attorney who should be attending the Legislature;³⁰ and

• forcing parties to trial with no chance for one party to prepare a defense.³¹

In each of these cases, it was argued that no harm would come from the trial— perhaps the case would settle, and...