Court defines shipping a toe to funeral home as health care

The Texas Supreme Court this morning heard arguments on the burning question raised in last week’s Last Word: Under Texas law, is cutting up a dead body, otherwise known as an autopsy, medical care?

In other words, once you are dead, are you still receiving medical care?

The world awaits the high court’s decision with bated breath.

Meanwhile, this week we have a follow-up story addressing a related question: Is shipping a dead body to a funeral home part of medical care?

Let me introduce you to the Case of the Misplaced Toe.

I am not using the real names of the couple involved, in order to spare them more pain.

Mary Smith learned that her fetus had died in the womb at 12 weeks and went to a Houston-area hospital to have it removed.

She and her husband mourned the loss and asked that the hospital send it to a funeral home so they could hold a proper burial service.

After a pathology test ordered by the obstetrician, a funeral home employee picked up the remains and the Smiths had the funeral.

But they later learned that the hospital had made a mistake.

The grave was unearthed and they learned to their horror that they had buried a stranger’s amputated toe.

The Smiths sued for negligence and negligent infliction of emotional distress.

The hospital asked the trial court judge to toss the case because the Smiths’ attorney had not filed an expert’s opinion regarding the error.

This is required only in medical malpractice cases.

The idea is that doctors can be spared frivolous lawsuits by requiring early on that an expert finds evidence of malpractice.

The Smiths’ lawyer argued in district court that neither the doctor nor the patient was involved in the error.

The medical procedure was completed.

No medical action was involved.

The district judge agreed with the Smiths, but the hospital appealed his ruling before the trial was held.

And in a 2-1 decision, Houston’s 1st Court of Appeals overturned the district judge and threw out the case.

Writing for the majority, Justice Michael Massengale held that the shipment of the remains was, in the words of the law, “directly related to health care.”

Therefore, the Smiths erred by not filing an expert’s report.

It is probable that they could have found an expert to testify that sending a stranger’s toe to be buried by grieving parents does not meet a hospital’s normal standard of care.

The silliness of such a requirement suggests how much of a stretch it is to consider such matters to be medical malpractice, rather than common negligence.

And in his dissent, Justice Terry Jennings argued precisely that these events did not qualify as medical acts under the law.

The law, as he noted, defines medical malpractice as a “claimed departure from accepted standards of medical care … or safety or professional or administrative services DIRECTLY related to health care ….”

The shipping of remains is not, he argued, directly related to health care.

But Jennings also noted that the Texas Supreme Court seems to have neglected the word “directly” — so much so that their decisions have provoked numerous dissents.

In one, Supreme Court Justice Debrah Lehrmann wrote that the court’s definition “is so broad that almost any claim against a health care provider can now be deemed a health care liability claim.”

Lehrmann is hardly a radical.

She was appointed to the Supreme Court by Gov. Rick Perry and is endorsed for re-election by Gov. Greg Abbott and former chief justices Wallace Jefferson and Tom Phillips.

But she seems to have alienated the powerful pro-business Texans for Lawsuit Reform and the Texas Medical Association.

They are backing none other than Michael Massengale, the Houston justice who threw out the Smith’s claim, in opposing Lehrmann in next March’s Republican primary.