X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:William A. Boothe, M.D., individually and d/b/a Boothe Eye Care and Laser Center, challenges the trial court’s order denying Boothe’s motion to dismiss and motion for summary judgment on grounds that Joe Dixon failed to comply with the expert report requirements of Texas Civil Practice and Remedies Code �74.351(b). Based on Dixon’s allegations, Dixon sought treatment for his vision from Boothe and underwent laser eye surgery in July 2001. His eyesight improved, but “then dramatically deteriorated.” Dixon contacted Boothe, who told Dixon that he needed touch-up surgery. Boothe performed another laser surgery, after which Dixon’s vision did not significantly improve and “began further deterioration.” Dixon reported this result to Boothe, who told Dixon a new procedure called custom abrasion would be approved within the next year and that this surgery would solve Dixon’s problems. Boothe told Dixon he would be an ideal candidate for custom abrasion and he would refund Dixon’s money on the two previous surgeries. Based on Boothe’s representations that custom abrasion would be available and would solve Dixon’s problems, Dixon and his wife executed a “Release of All Claims” in November 2002. In April 2003, Dixon contacted Boothe’s office, but was informed that Boothe did not see patients after one year. Subsequently, Dixon learned that he had not been a good candidate for the initial surgery or the touch-up surgery and, as a result of the two surgeries, he was not a candidate for custom abrasion. In his first amended petition, Dixon asserted claims for fraud, breach of fiduciary duty and violation of the DTPA. Boothe argues that the trial court erred in denying his motion to dismiss because all of Dixon’s claims were improperly recast medical negligence claims, subject to dismissal for noncompliance with the expert report requirement of �74.351(b). HOLDING:The court reverses the trial court’s order denying motion to dismiss and motion for summary judgment and renders judgment in Boothe’s favor dismissing Dixon’s claims with prejudice. The court remands this suit solely for a determination of attorney’s fees and costs of court incurred by Boothe. The expert report requirements of �74.351(b) apply to a patient’s claims, regardless of whether they are tort claims, when those claims come within the statutory definition of a “health care liability claim,” defined as: 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. To determine whether a cause of action falls under Chapter 74′s definition of a health-care liability claim, the court examines the claim’s underlying nature. If the act or omission alleged in the complaint is an inseparable part of the rendition of health-care services, or if it is based on a breach of a standard of care applicable to health-care providers, then the claim is a health-care liability claim. One consideration in that determination may be whether proving the claim would require the specialized knowledge of a medical expert. Artful pleading cannot avoid the requirements of �74.351 when the essence of the suit is a health-care liability claim. If the act or omission alleged in the complaint is an inseparable part of the rendition of health-care services, or if it is based on a breach of a standard of care applicable to health-care providers, then the claim is a health-care liability claim. One consideration in that determination may be whether proving the claim would require the specialized knowledge of a medical expert. All Dixon’s claims are intertwined with Boothe’s rendition of medical services, which involved Boothe’s diagnosis of Dixon’s medical condition and Boothe’s medical judgment and advice as to the choice of medical procedures; the potential risks and complications such as visual deterioration and candidacy for further medical treatment; and Dixon’s alleged physical injury from the two surgeries. The court concludes that all Dixon’s claims meet the statutory definition of a health-care liability claim and are thus subject to the expert report requirement of �74.351(b). OPINION:Moseley, J.; Wright, Moseley and Lang, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.