Hospital That ‘Disposed of’ Fetus Fights Lawsuit

AUSTIN (CN) - A hospital that disposed of a stillborn fetus wants the Texas Supreme Court to dismiss the complaint of a grieving mother who wanted to bury the infant.

McAllen Medical Center says that a Hildago County judge and the 13th Court of Appeals in Edinburg erred in denying its motion to dismiss. Both courts ruled that plaintiff Evelia Ontiveros has not alleged health care liability claims under state law.

The hospital says the appellate court inaccurately described the suit as being over the "negligent mishandling of a corpse."

It says that, after the stillbirth of the 24-week-old fetus in June 2009, Ontiveros signed a form authorizing "disposition of products of conception."

"By means of that signed form[,] Ms. Ontiveros requested and consented to release of the fetal remains, after appropriate post-delivery testing, to be handed over to a funeral home," the 69-page brief states. "When a representative for the funeral home arrived two days later to retrieve the remains, it was discovered that they had inadvertently been disposed of in the usual manner."

The hospital argues the "proper handling, identifying, monitoring and disposal of a tissue specimen resulting from a medical procedure of a patient (stillbirth delivery)" falls under Chapter 74 of the Texas Civil Practice and Remedies Code.

"Respondent Ontiveros was a patient at McAllen Medical Center who underwent medical delivery and who now pursues a cause of action against a medical care provider for conduct claimed to depart from accepted standards of health care, or medical care, or professional or administrative services directly related to health care, claiming resulting compensable injury to her," the brief states. "The court of appeals' ruling that Petitioner somehow waived the applicability of the 'professional or administrative services' element of the statutory definition of a health care liability claim under [Chapter 74] is simply wrong."

The hospital also contends the testimony of Ontiveros' sole expert witness failed to provide a fair summary of opinions regarding standard of care, the hospital's alleged breaches, and the casual connection between the failure and injury.

"Sally Gaines, RN, whose report was offered by respondent, as a matter of law totally lacks the necessary expert qualifications to speak to medical causation," the hospital says. "The report she prepared for Respondent is a full 7 pages in length; yet only the closing line even makes any attempt to link supposed nursing errors to some manner of injury to Ms. Ontiveros."

The hospital says it is not enough to declare its negligence caused the injury, the report must explain how.

Steven Gonzalez with Gonzalez Palacios in McAllen, Texas, authored the hospital's petition.

Follow @davejourno

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit