Affirmed and Memorandum Opinion filed March 14 , 2024

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 22

- 00671

- CV

ALSTONIA LOUIS , Appellant
V. LIBERTY COUNTY EMERGENCY MEDICAL SERVICES, INC. , Appellee

On Appeal from the Co unty Civil C our t at Law No . 3 H arris Coun ty, Texas Trial Court Cause No. 1170332

MEMORANDUM OPINION Raising four issues in thi s appeal , a ppellant Al stonia Lou i s presents the question of whet her his lawsuit against Liberty County Emergency Medi cal Services, Inc. , alleging billing viola tions was subject to the expert

- report requirement of the Civil Practice a nd Remedies Co d e chapter 74

. Tex. Civ. Pra c. & Rem . Code Ann. §§ 74.001

– .50 7. 1 Applying precedent from this court, we

1 The current statute ha s no official short title but was formerly entitled th e Medical Lia b ility and I nsurance Improvement Act of Texas.2 conclude that Lou is ’ s claim was subject to chapter 74 and affirm the judgme n t of the t rial court

. I. B A CKGROUND After being involved in a 2019 motor

- vehicl e a ccident , Lou is wa s t r a nsported to the hospital by Liberty County EMS. According to the EMS rep ort, Lou is reported pain in his wri st and tenderness in his ribs , and the am bulan c e cr ew pl a ced Louis ’ s wrist in a splint and transported him to the hospital in a stretcher.
Louis later received a bill in the amount $1,830.50 listing char ges for “ BLS emergency transport ” and “ BLS disposable supplies , ” as well as mileage. Lo uis f

i led su it again st Liberty County EMS in 2021 alleging deceptive

- tra de practice s on the basis tha t he did not receive “ basic

- life

- support transport. ” Liberty C ounty EMS answered the suit , asserting both governmental immunity and that Lou is ’ s claim was a hea lth

- car e
- liab il it y claim subject to ch apter 74

. Louis later ame nded his petition an d added a b reach

- o f

- contract c ause of action

. Liberty County EMS filed a motion to dismiss pursuan t to the ch apter 74 , arguing that Lou is had not produced the required ex pert rep ort . Lo uis resisted the motion maint ain ing that h is cl aim was not a health

- care
- liab i lity cla im as it only addressed Liberty County EMS ’ s alleged fraudulent billing

. In 2022, the trial court granted Liberty County EMS ’ s mo tion t o dismiss and r en dered a fin al judg men t dismissing Lou is ’ s claims , from which Louis now appeals

. II. A NALYS I S
A. Did Lou i s bring a health

- care - liability claim ?

In issue 1, Lou is argues the t rial court erred by granting Li berty Cou nty3 EMS ’ s motion to dismiss. 2

1. Stand a r d of re view
We review a tr ial cou rt ’ s ruling on a motion to dis miss under secti on 74 .351 f

or an abuse of discr e tion. 3 American Transitional Care Ctrs. of Te x., Inc. v. Palacios , 46 S.W.3d 87 3, 875 (Tex

. 2001) ( ap plyin g former Medical Liability and Insura nc e Impr ovemen t Act of Te xas , Tex. Rev. Civ. Stat. a rt. 45 90i , § 13.01 ( d) , (e ) ) ; Univ e rsity of Tex. Health S c i

. C tr. at Houston v. Joplin , 525 S.W.3d 772, 776 (T ex. App.

— Housto n [14th D ist.] 2017, pet. d enied). W e def er to the t rial court ’ s factual determinations if the y are suppo rte d by th e record and review de nov o qu estio ns of la w involv ing s tatutory interpre t a t io n. Stockton v. Offenbach , 336 S.W.3d 610, 615 (T ex. 2011); Jopl in , 525 S .W.3d at 776. The trial cou rt ab us es its di scretion if it acts i n an unreasonab le and arbitrary man ner or without reference to
any g uidi ng ru les or p rinciple s. Ri venes v. Holden , 2 5 7 S .W.3d 332, 336 (Tex. App.

— Hou ston [14th Dist.] 2 008, pet. denie d).

Becau se the trial court did not file fi ndings of fact or conclusions of law, we upho ld the trial cour t ’ s rul ing on any theory supported b y th e rec ord and imply an y

2 Louis specifical ly des cri bes issue 1 as follo ws: W hether the tri al cou rt erred in granting Defendan t ’ s Texa s M e d ical Liability Act (TMLA) motion to dismiss when said motion was made in bad faith on the false basis that Plaintif f pleaded a health care liability claim (HCLC ) by m aki ng a rebuttal averme nt in an affidavit attach ed to a response to a motion and when De f e ndant knew and eve n tually judicially admitted that its ambulance transport bill was fraudulent by admitting that it s “ basic life support ” charges were admittedl y mere ly a disguised minimum “ standard charge ” a nd whe n no admissible evidence supp orted sa id m o tion when Plai ntif f was not required to file and serve an expert medical report because he did not plead a HCLC and because the issues in his case were within t he com mon knowledge of layper sons when Plaintiff s frau dulent medical billing claims were no t c o v ered by the TM LA.

3 Appellant states in his brief that “ [i]n view of the nature and extent of the trial court ’ s rulings and not ruling ” that this co urt should a pply a de nov o standard of re view and give “ no d eferen ce to the trial court ’ s ruli ngs. ” How ever , appellant off ers n o support or a uthority for his position that this court can pick and choose its standard of review

.4 fin dings of fact nec e s s ar y to support its ruling. Hous ton Methodist Hosp. v. Nguyen , 470 S.W.3d 1 27, 129 (Tex. App.

— Houston [14th D ist.] 201 5, pet. denied).
2. Appl icable law Chap ter 74 defines a hea lth

- car e
- liability claim as :
a cause of acti on against a health care provider or physi c ian for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or admi n istrative s erv ices di rectly related to health care, w hich proximately results in injury to or death o f a claimant, whether the claimant ’ s cla im or cause of action sounds in tort or contract. Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). A “health care p rov ide r” can be a ny person licensed, certified, registered, or c hartered by the State of Texas to provide h ealth care, including a “ health care i nstitu tion

. ” See Tex. Civ. Prac. & Rem. Code § 74.001(a)(12)(A) (vii)

. A “ health care institution ” includes an e mer gen cy services
pr ov ider, such as Liberty County EMS. See Tex. Civ. Prac. & Rem

. Code Ann. § 74.001(a) (8) ( “ ‘ Emergency medical services provider ’ ” means a licensed public or private provider to which Chapter 773, Health and Safety Code, ap plies ” ) , ( 1 1 )( C ) ; se e generally Eme rgency H ealth C are Act , Health and Safety Code § § 773.001

— .25 7

. “To proceed with a health care liability cl aim, a claimant must comply w ith the expert re port req uirem ent of the Texas M e d ica l Liability Act.” Univ ersity of
T

ex. Med. B ranch a t G alveston v. Ca llas , 4 97 S.W.3d 58, 6 1 n.1 (Tex. A pp.

— Housto n [14th Dis t.] 2016, pet. denied). In relevant part, section 74.351 sta tes: In a health care li ability claim, a claim ant shal l, not later than t h e 120th day after the date each defe ndant ’ s origi na l answer is fil ed, or a later date requir ed under Section 74.353 , ser v e on that part y or the part y ’ s attorn ey one or m ore expert reports, with a curriculum vitae of each expert l isted in the report for each physician or heal th care5 provider again st w h o m a liability claim is asserted . The date for servi n g the repor t m ay b e e x tended by writ ten agreement of the af fected part ies. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Section 7 4.351 ’ s expert

- report

re quirement is intended to infor m the served p art y o f the conduct called into quest ion a nd to provide a basis for t he tria l c o urt to conclud e the claimant ’ s claim s have meri t. Hebner v. Reddy , 498 S.W.3d 37, 41 (Tex. 2016); Gardner v . U.S. Imaging, Inc. , 274 S.W.3d 669, 671 (Tex

. 2008) ( per curiam).
3. C laim aga inst Liberty County EMS
Louis argues th a t his cla i m is not a hea lth

- car e
- liab ility claim. Inste ad, he argues that his la wsuit only invo lves a claim of fraudulent billing. In his live pleading, he explains:
The bill is fraudu l ent in a number of mat erial res pects. One , no “ BLS ” (basic life suppo r t) servic e was provid ed

. Two, t he $1,200.00 charge for a “ BLS [ba s ic li fe support] emergency transport ” was admittedly a minimum “ s tandard charg e ” , as opposed to a reasonable charge for
n e c essary actual “ BLS [basi c li fe support] e m e rg e nc y transp ort ”
se rvi c es. Three , in view of th e fact that no “ BLS [ ba sic life s upp o rt] emergency transport ” was actually pro v ided, it follows that the $ 1 93.00 charge for “ BLS di s posab l e supplies ” is also fa l se

. And f our , the $437

. 50 “ m ilea ge ” charge without disclosin g the rat e per mile
c h arged as w e ll as not disclo s ing the numb er of mi l es charged lacks required transparency and i s deceptiv e. Therefore, a lthough Louis acknowledges he rode in the ambulance to the hospital and receiv ed so me se rvices , he takes issue with billing charges for “ b asic life

su pport ” s ervi c es on the basis that he received no “ life support ” from the

a mbulance as that term is generally understood. In response, Liberty County EMS argues that Louis ’ s claim fall s squ arely within chapter 74 because Louis ’s claim touch es o n the condu ct of the emergency

m ed ical personnel who attended to him in the ambulance. Further, Liberty County6 EMS

— which is governed by Emer gency He alth Care Act

— argues that Louis did receive “basic life su pp ort ” services as that term is defined i n the E me rgency Heal th Care Ac t. See Heal t h and Safety Code § 773.00 3 (2) ( “ Basic life suppor t ” means emergency prehospital care that uses noninvasive medical acts ). When deciding whether a cause of action is a h eal t h

- care
- liability claim, we look at the f acts un de rlying the ca use of a ction, no t how the cause of action is labeled. See Yamada v. Friend , 335 S.W.3d 192, 196 (Tex. 2010). A plaintiff
cannot avoid the requirements of chapter 74 through artful pleading or b y splitting and splicing a health

- care
- liabilit y claim into ot her caus es of actio n with differing standards of care, damages, and procedures. Id. at 197

. The scope of our review is “the entire court record,” including the pleadings, motions , and response s , and any relevant evide nce properly admitted. Loa isiga v. Ce r da , 379 S .W.3d 248, 256, 2 58 (T ex. 2012) . If we determine that the cause of action “is against a physician or health c are provider and is based on facts implicating the defendant ’ s conduct durin g th e c ourse of a patient ’ s ca re, treatment, or co nfinement,” th e n we must presume tha t the cause of act ion is a health

- care
- liability claim, which the plaintiff has the burden o f rebutting. Id

. at 256; Hopebridge Hosp. Houston, L.L.C. v. Lerma , 521 S.W.3d 8 30, 836 (Tex. App.

— Houston [ 14th Dist.] 2017, no pet.). Also, “ if expert medical or health care testi mony is necessary to prove or refute the merits of the claim against a phy sician or health care provider,” then we must conclude that the cause of action i s a health

- ca r e
- liability cl aim. See Tex as W. Oa ks Hosp., LP v

. Williams , 371 S.W.3d 171, 182 (Tex. 20 12). This court has already addressed a similar situation in Ahmadi v. Moss , in which the patient of a cosmetic surgeon filed suit against the surgeon a l l egi ng he had not performed a procedure for whi ch he received p a yment

. 53 0 S.W.3d 754,7 75 6

– 5 7 (Tex. App.

— Hous ton [14th Dist.] 2017, no pet.)

. In Ahmadi , the surgeon argued the patient ’ s claim was one of lack of treatment , which falls within the definition of a health

- care
- liability cl aim , and the patie nt ar gued her ca u se of act ion was simply a brea ch

- o f

- contract claim f or services paid for, but not performed. Id

. at 757. In that case, we concluded that the TMLA did apply to the patient ’ s claims. Imp ortant t o the court ’ s conclusion were the facts that (1 ) a doctor

- pati e n t relatio nship existed between the p atient and sur geon ; (2) a lack of car e was alleged; and (3) expert testimony would be required to prove or refute the merit s of the patient ’ s claim that th e s urg eon failed to provide th e care at issue

. I d

. at 759. Simil a rly, this court has al so concluded that a p a ti ent ’s complaint that her dentist did not perf orm all the services for which he billed her was a heal th

- care
- liability claim , explaining th at the p at ient ’s allegations that the dentist did not p er form procedure s implicat e the dentist ’ s conduct during the dental treatment

. Milton v. Nguyen , No. 14

- 16

- 00883

- CV, 2017 WL 4017872, at *3 (Tex. App.

— Houston [14th Dist.] S ept. 12 , 2017, no pet .)

. The same p r inciples ap ply to the facts in this a ppeal

. It i s clear Louis d oes not be lieve that he received the level of care for which he was billed. However, he received some level of service and/or care. Liberty County EMS sup ported its motion to dis miss with evid e nce establishing that it was a lic ense d emergen c y services prov ider in 20 19 when Louis received care aboard the ambulance

. Both Louis ’ s pleadings and affidavit establish that he was transported by a mbulance and received health care fr om L iberty County EMS

. For e xample, Louis a cknowledged that Lib erty C ounty EMS checke d his vit a l signs. Th ere fore, we are confronted with another situation in whi ch the conduct of the health

- care provider and the determination of t he care provided is at issue. The resolution o f Lou is ’ s challenge
t o t he level of care provide d to him and ap propriate comme nsurate billing for those services is not within lay know ledge. Therefore, the fact

- finder would need expert8 medical testim ony to confirm whether (1) th e ca re received by Louis w a s

“ basic

- life suppor t ” as he was billed for and (2) the amount Lo u is w as charged was appropriate for the services provided

. Louis r elies on Shanti v. Allstate Ins . Co. to support his argument that fraudulent billing claims are not subject to chapter 74

. S h anti , 356 S.W.3d 70 5 (Tex. App.

— Houston [14th D ist.] 2011, p e t

. denied)

. However, Sh anti is inapplicable because it involved a suit by insurance companies against health

- care provi de r s in which this court determined that the insurance companies were not

“ c laimants ” under cha p ter 74. Id . at 713

– 14. Ther efore , chapter 74 did not app l y.
Followi ng this court ’ s precedent and the statutory directi ves of cha pter 74,

w e conclude the trial court d id not err in d eterm ining that Louis brought a health

care
- liability c laim and for dismissing the claim due to lack o f compliance with the expert

- r eport requ irements.
We overrule issue 1.

B. Lack of ruling on Louis ’ s evid entiary objections
In issue 2 , Lou i s argues the trial c ourt erred in not ruling on his objections to Libert y County EMS ’ s evidence suppor ting the motion to dismiss

. He also argues
t hat the trial court ignored his request for a ruli ng. In his response to Li berty Cou nty EMS ’ s motion to dismiss, Lo uis obj ected
to the affidav it supporting the motion to dismiss as a “ fals e affidavit ” and objected
to several of the exhi bits to the motion as una uthen ticated he arsay

. Th e trial cou rt d id not rule on the object io n s, and L ouis does not identify anything in the record supportin g his c ontention that the trial court refused to rule

. Ther efor e, no error i s preserved for this cour t to review. See Te x. R. App. P. 33.1(a) (record must sh ow trial court ruled on objection or refused to r ule on objection).9 We overrule issue 2.
C. D enial of the motion for new trial In issue 3, Louis argue s that the tri al court erre d in denying his motion for

new trial in whi ch he argues that th e trial court erred in gr anting Liberty County EMS ’ s motion to dismiss p ursuant to chapter 74 because his clai m w as not a health

- care
- liability claim

. However, becau se we h ave already held that the trial court did not e rr in gra nting Libert y Count y EMS ’ s mo tion to dismiss, we conclude th e tria l co urt did not err in denying Louis ’ s motion for new t rial.
We overrule is sue 3

. In issue 4, Louis maint ains the trial court e rred “ in not ruling on and not granting Plaintiff ’s o b jectio ns t o th e admi ssibilit y of D efen dant ’s ‘evidence ’ offered in its res pons e to [ Lou is ’ s ] motion for a new trial. ” Here, Louis refers to his objections to Liberty County EMS ’ s motion

- to

- dismiss evide nce th at he re

- ur ged

a t the he aring at the motion for new tri al. H owever, b ecause a final ju dgment ha d already been rendered at the time the motion for new trial was filed, the trial court could only h ave ruled on the motion for new trial (which it denied )

. The evidentiary rulings on evidence supporting the m otion to dismis s we re no lon ger b efore the trial court. Therefore, we overru le issue 4.

III. C ONCLUSION We affirm the judgme nt of the t rial court as challenged on appeal.

/s/ Charles A. S pa in J usti c e
Pa n el con s i sts of Justic e s Zimmerer, S pain , and Hass an

.