A Local Couple Wanted to Bury their Fetus. The Hospital Sent Them Them a Body Part Belonging to a Stranger. The Couple Sued, and Lost.

Ben Giannantonio
Strange ruling in disturbing case
Twelve weeks into her pregnancy, Mary Ramos lost her baby. After undergoing a D&C procedure at Pasadena Bayshore Hospital to remove the remains, she and her husband Richard said they would like to have them sent to a mortuary so that they could have a funeral service.

They were told they could do so, after the remains were sent to the hospital's pathology department for testing. Once the tests were concluded, a funeral home employee came by to pick up the tiny body, which is most often referred to in legal documents as a mere "specimen."

After the funeral, it somehow came to light that the Ramos family had been sent the wrong specimen. After exhuming what had been buried, it was found not to be their own unborn child or one belonging to anyone else.

Nope. They had held a funeral for the amputated toe of a complete stranger.

The Ramos family finally did get the remains of the fetus, and went through it all over again with a second funeral.

And then the Ramoses filed suit against Pasadena Bayshore Inc., East Houston Medical Center, and CHCA Bayshore L.P. They cited negligence in mistaking a toe for their unborn child and negligent infliction of emotional distress arising from same.

The hospital responded with a motion to dismiss, claiming that the Ramoses had filed a health care liability claim, and thus should have timely filed an expert report, which they did not do.

The Ramoses responded that there was no specialized standard in the medical community with respect to the pathology department's error, and no medical judgment relating to the care and treatment of fetal remains. They also argued that what they had made was not a health care liability claim at all.

A trial court agreed with the Ramoses, and the hospital's motion to dismiss was denied. The hospital responded with an interlocutory appeal, which was heard by the 1st District Court of Appeals. On July 19 they issued their ruling.

Justice Terry Jennings sided with the Ramoses. Parsing the words of the Texas law in question, he wrote that the hospital's error had nothing directly to do with actual health care.

"The Ramoses are not at all seeking to establish appellants' medical liability for the negligent provision of 'health care,'" wrote Jennings. " They are seeking mental anguish damages because someone, after Mrs. Ramos had received medical treatment, mixed up the remains of their unborn child with another person's toe."

Jennings convincingly argues that the law is written that way in Chapter 74 of the Texas Civil Practice and Remedies Code, under which a "medical liability claim" is defined thusly:

"[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 or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract."

Unfortunately for the Ramoses, Jennings was in the minority and this was a mere dissenting opinion.

In Justice Michael Massengale's majority opinion, he ruled that Ramos had in fact filed what amounted to a health care liability claim because of that clause in the law about "professional or administrative services," under which they believe fell the storage and transfer of a deceased fetus.

The court also ruled that the mismanagement of the dead fetus was directly related to the health care of Amy Ramos, essentially since it came out of her body during the D&C, which was a health care procedure.

Citing precedent, the majority also shot down the Ramos argument that no expert report was necessary since the hospital's error was so egregious and patently disturbing that the details could be easily understood by a layman. Not so, said the court. A health care liability claim might not require expert testimony, but it would still be a health care liability claim, the majority wrote.

Therefore, the Ramos family should have provided an expert report on why having a funeral for a stranger's toe instead of a fetus is less than ideal health care and thus a medical liability issue.

The trial court has been ordered to dismiss the Ramos family's claims against the hospital.

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John Nova Lomax
Contact: John Nova Lomax