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Guimond v. Integrated Genetics Lab Corp Specialty Testing Group

Court of Appeals of Texas, Fourteenth District

August 1, 2017


         On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 2015-30393

          Panel consists of Justices Christopher, Busby, and Jewell.


          Tracy Christopher Justice

         When John and Mary Grace Guimond's son Nicolas was born, they were told that cytogenetic testing showed the child was normal. Eight months later, the hospital that ordered the test and the laboratory that performed it either reviewed the original test results or retested the original sample and informed the Guimonds that their son has Down Syndrome. The Guimonds, individually and as Nicolas's next friends, sued the hospital and the laboratory, but the trial court granted each defendant's motion to dismiss on the ground that the Guimonds failed to file an expert report as required to maintain a health care liability claim.

         In this appeal, the Guimonds argue that the trial court erred in dismissing the case because they present no health care liability claims, and thus, no expert report is required. All of the Guimonds' claims, however, can be reduced to an allegation that Nicolas was harmed by the defendant health care providers' failure to properly perform, interpret, or report the results of diagnostic testing. Under the unambiguous language of the relevant statutes, and as a matter of law, this is a health care liability claim. Because the Guimonds failed to file an expert report as required, we affirm the trial court's orders dismissing their claims and requiring them to pay the defendants' attorney's fees.

         I. Background[1]

         On the day their son Nicolas was born at Memorial Hermann Northwest Hospital ("Memorial Hermann"), [2] Memorial Hermann's doctors and other authorized personnel asked for the Guimonds' consent to perform cytogenetic testing on Nicolas to determine if he has Down Syndrome. The Guimonds agreed and paid for the testing. By agreement with Memorial Hermann, the test was performed by Laboratory Corporation of America Holdings ("LabCorp").[3] LabCorp reported to Memorial Hermann that Nicolas had "normal male karyotype, "[4] and Memorial Hermann employee Dr. Elizabeth Eason informed the Guimonds that the test showed Nicolas to be "normal."

         In the eight months after Nicolas's birth, the Guimonds became concerned about his development. After other medical providers examined Nicolas and suggested that he might have Down Syndrome, the Guimonds returned to Memorial Hermann and again contracted for Memorial Hermann and LabCorp to perform cytogenetic testing. According to the Guimonds, LabCorp did not test an additional sample of Nicolas's blood but instead either retested the original sample or reviewed its original results.[5] LabCorp concluded that Nicolas does have Down Syndrome. LabCorp and Memorial Hermann communicated the amended test report to the Guimonds.

         The Guimonds sued Memorial Hermann, LabCorp, Dr. Eason, and three other doctors for fraud, breach of contract, misrepresentation, violations of the Texas Deceptive Trade Practices-Consumer Protection Act, negligence, and gross negligence. In their original petition, they specifically pleaded that the defendants "committed medical malpractice in their conduct as set forth above and in this petition." After Dr. Eason moved for dismissal of the Guimonds' claims with prejudice for failure to serve the statutorily required expert report necessary to maintain a health care liability claim, the Guimonds nonsuited their claims against all four doctors and amended their petition to remove the reference to medical malpractice. Their amended petition also identified the harm alleged from the erroneous test results: "All research indicates that early intervention with specific therapy for Down Syndrome children is crucial . . . . As a result of the breaches by [Memorial Hermann and LabCorp], Nicolas, John and Mary Grace lost substantial and precious time before being able to make intervention for therapy for Nicolas."

         Memorial Hermann and LabCorp filed their own motions to dismiss for failure to serve expert reports. In response, the Guimonds asserted that Memorial Hermann was the intermediary between themselves and LabCorp, and that LabCorp does not provide medical or health care services. In support of their position, the Guimonds emphasized the statement on LabCorp's website, "Whether the needs are large or small, routine or complex, physicians and patients can depend on us for access to a full range of the highest quality diagnostic testing."

         The trial court granted both motions to dismiss.

         II. Issues Presented

         In seven issues, the Guimonds argue that the trial court erred in granting Memorial Hermann's and LabCorp's motions to dismiss. The issues are different phrasings of the same argument, differing only in whether the issue challenges the order granting Memorial Hermann's motion to dismiss, the order granting LabCorp's motion to dismiss, or both. Because the Guimonds did not separately brief any issue, we likewise address all of their issues as a single unit.

          III. The Nature of the Guimonds' Claim

         Under the Texas Medical Liability Act, [6] a claimant asserting a health care liability claim must serve each defendant with one or more expert reports within 120 days after the defendant answers the suit. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2017). An expert report summarizes the expert's opinion "regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Id. ยง 74.351(r)(6). If the claimant serves no expert report on a defendant physician or health care provider within the time allowed, then that defendant can ...

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