AFFIRMEI); Opinion Filed November 21, 2012.

In The 

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## 2iiftb Hitrirt of rxai at 1attai No. 05-12-00099-CV
CRYSTAL MONSON, Appellant V. ALLEN FAMILY FIRST CLINIC, P.A., CHANDANA REDDY, AND CANDACE GAUNTT, Appellees
On Appeal from the County Court at Law No. 6 Collin County, Texas Trial Court Cause No. 006-02223-2011 

### OPINION Before Justices Moseley, Fillmore, and Myers Opinion By Justice Myers Crystal Monson appeals the trial court’s granting ofappellees’ motion to dismiss Monson’s claims because they were health care liability claims and Monson failed to file an expert report. In her sole issue on appeal, Monson contends the trial court ened in determining that her claims were health care liability claims. We affirm the trial court’sjudgment. BACKGROUND On July 16, 2009, appellant saw Dr. Chandana Reddy at the Allen Family First Clinic, P.A., for evaluation andtreatment. When appellant leftthe office, she received anote regarding her ability to return to work. The note was on Dr. Reddy’s letterhead with Dr. Reddy’s name typed but not

### signedattheendofthenote. Thenote statedappellantfeltshecouldreturn to workonJuly21, five days later, would then be limited to part-time work for one to two weeks, and “then iftolerated full-time.” Appellant alleged shereturned to workthe nextday. On July 21, 2009, Dr. Reddy’s officemsnager, Candace Gauntt, senta letterto appellant’s employer that, appellant alleged. “contained thlsc statements about [appellant] and placed [appellant’s] character in an extremely bad light” 

### The letter stated, Ourpatient, Crystal Monson (DOB

. .
. 

## ) was seen in ouroffice lastThursday, July 16,2009. Forthatdate ofservice she was treated and leftwith no worklimitation. Shewasabletoreturntoworkunlesssymptomssuchasfeveroccurred. Apparently, when receivinghernote forworkabsence, she asked forareturndate of7/21/09 to be noted with limitations ofworking part time for one to two weeks, and then if tolerated full time. Linfortunat[e]ly ournew employee 

### that filled out this return to worknote,misunderstoodandthoughtthe

### patientwas statingwhatthedoctor

### wanted andnot

### herowndecisionsregardingwhentoreturntowork

### andhowshecouldwork. We do apologizeforthe inconvenienceandhope

### this notecorrects anyproblems on 

### ourend. A

### newreturnto

### worknowis

### included, if youhavefurther

### questionsplease feel free to call. Appellant was 

### subsequentlyterminatedby heremployer, which appellant

### allegedwas adirect and proximate result of

### Gauntt’s letter. On July 20, 2011, appellant sued Dr. Reddy, Gauntt, and the clinic alleging invasion of 

### privacy by appellees’ 

### disclosure of

### confidential information, intentional infliction of

### emotional distressbymakingfalse statements aboutappellantto 

### heremployeranddisclosing

### herconfidential

Thenote. datedJuly It 2009, stated To Wham hMayConcern Crystal Macson has been under my cam from 07116/2009 to the psesesa [sJhe has been in flstanent forwhich [sioj lies preventedareturntowash. PresentlyCrystalfeelsthat [ski is abletoreturnon07121/2009withlimitations asnotedbelow. LindtationWRansden Part-time theonetotwoweekstheniftolerated (WI-time. Ifyou have anyquestions aboutthis matterpleasetelephonecuratthe abovetelephonenumbers. Sincerely ChandaRcddy. DO.



### —2—information, breach ofcontract, and negligence by Dr. Reddy and the clinic by failing to properly supervise and train Gauntt and by failing to take proper steps to avoid the disclosure ofappellant’s confidential information. On November 28. 201 1, more than 120 days after appellant tiled her petition, appellees filed a motion to dismiss appellant’s claims because appellant had not served them with an expert report as required by section 74.35 1 ofthe Texas Civil Practice & Remedies Code. See TEX. Civ. PRAC. & REM. CODE ANN. 

### § 74.351(a) (West 2011). On December 13, 2011, appellant filed an amended petition and a response to appellees’ motion to dismiss. The amended petition omitted most of the allegations of disclosure of confidential information and omitted appellant’s claim for invasion ofprivacy. Following a hearing on appellees’ motion to dismiss, the trial court granted appellees’ motion and dismissed the cause. EXPERT-REPORT REQUiREMENT In her issue on appeal. appellant contends the trial court erred by dismissing her claims for failing to file an expert report. Chapter 74 ofthe Texas Civil Practice and Remedies Code governs litigation involving medical liability. See TEX. Civ. PRAC. & REM. CODE ANN. 

### § 74.00 l—.507 (West 2011 & Supp. 2012). Standard ofReview Whether a cause ofaction is a health care liability claim is a question oflaw. Lee v. Boot/ic, 235 S.W.3d 448, 451 (Tex. App.—Dallas 2007, pet. denied). Ordinarily, we review the denial of
a motion to dismiss pursuant to section 74.351 under an abuse of discretion standard. See Am. Transitional Care Ctrs. of Tex., Inc. v. Falacios, 46 S.W.3d 873, 877 (Tex. 2001); Fudge v. Wall, 308 S.W.3d 458, 460 (Tex. App—Dallas 2010, no pet.). However, where the issues involve whether chapter 74 applies to the plaintiff’s claims, we apply a de novo standard ofreview. Nexus Recovery Ctr. v. Mathis, 336 S.W.3d 360, 365 (Tex. App.—Dallas 2011, no pet.); see Fudge, 308

—3—S.W.3d at 460 (courts apply (Ic novo standard 

### when resolution of issue requires interpretation of statute). Applicable Law Dr. Reddy and the clinic are “physicians” under chapter 74. See TEx. Civ. PRAC. & REM. CODE ANN. 74.001 (a)(23) (West Supp. 2() 12). Gauntt, as an employee ofthe clinic, is a “health
care provider.’ See id. 

### § 74.00l(a)(l 2)(B)(ii). Section 74.351 requires that a claimant bringing a health care liability claim against a physician or health care provider serve an expert report on each party against whom a health care liability claim is alleged. Id. 

### § 74.35 1(a). The reports must be served within 120 days afier suit is filed. Id. Ifthe claimant does not serve expert reports on the other parties, the trial court must dismiss the health care liability claims with prejudice. Id. 

### § 74.35 1(b). The expert-report requirement applies to a patient’s claims as long as the claims fall within the statutory definition of“health care liability claim,” 

### Sloan v. Farmer, 217 S.W.3d 763, 767 (Tex. App.—Dallas 2007, pet. denied). “Health care liability claim” is 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 ofmedical care, or health care, or safety or professional or administrative services directly related to health care, whichproximatelyresults in injury to or death ofa claimant, whetherthe claimant’s claim or cause ofaction sounds in tort or contract. Civ. PRAC. 

### § 74.OOl(a)(13) (West Supp. 2012). To determine whether a cause ofaction is a health
care liability claim, we examine the underlying nature ofthe claim, and we are not boundbythe form ofthe pleading. Diversicare 

### Gen. Partner, Inc. v. 

### Rubio, 185 S.W.3d 842, 847 (Tex. 2005). Ifthe act or omission that forrris the basis ofthe complaint is an inseparable part ofthe rendition ofhealth
care services, or ifit is based on a breach ofthe standard ofcare applicable to health care providers, then the claim is a health care liability claim. Garland Comm. Hosp. v. Rose, 1 56 S.W.3d 541, 544

-4-(Tex. 2004); Sloan. 217 S.W.3d at 767. Ifexpert medical or health care testimony is necessary to prove or refute a claim against a physician or health care provider, then the claim is a health care liability claim. Ti. W Oaks Hosp. t’. Williams, 371 S.W.3d 171. 112 (Tex. 2012). When the
essence ofa suit health care liability claim, a party cannot avoid the requirements ofthe statute through artful pleading of the claims or recasting the claim as another cause ofaction. Diversicare, 185 S.W.3d at 851. Analysis Appellant argues that her claims in her amended petition 2 are not health care liability claims and, therefore, the expertreport requirement did not apply to her claims. She asserts the tortious activity she alleged is separable from the health care she received. In her response to appellees’ motion to dismiss, appellant explained that her suit was forappellees’ accusing her in Gauntt’s letter ofbeing untruthilil. Appellant’s breach ofcontract claim alleges appellees breached their duty to maintain the confidentiality of appellant’s information. 3 A claim for wrongful disclosure of health care

2 Appellant’s original petition alleged appellees committed the alleged torts and breach of contract by disclosing confidential medical information. In Sloan, this Court held that claims against a physician or health care provider for wrongful disclosure ofconfidential health care information are health care liability claims subject to the expert-report requirement. See Sloao, 217 5.W.3d at 768. Accordingly, appellant’s claims in her original petition were health care liability claims subject to the expert-report requirement. After the expiration of 120 days from the filing of appellant’s original petition, appellees moved for dismissal ofappellant’s claims because she did not serve expert reports. Appellant then amended her petition omitting most ofthe allegations ofdisclosure ofconfidential information. Appcllee argued to the trial court and in this Court that review ofthe trial court’s decision to grant the motion to dismiss had to be based on appellant’s claims as pleaded when the 120 days expired and not on appellant’s amended claims filed after appellees moved to dismiss. See Jones v. Ark-La-Tex, 141 S.W.3d 790. 793 (Tex. App.—Texarkana 2004, no pet.). As discussed below, appellants claims in heramended petition are also health care liability claims. Because we conclude appellant’s claims in both her original and amended petitions are health care liability claims. ive need not determine whether review should be limited to appellant’s original petition. Appellant alleged in her breach ofcontract claim, Defendants breached the contract by refusing to perfoms its ]sicj obligations underthe contract, specifically. Plaintiffdid not pay for Defendant [sic] to disparage her but rather for confidentiality. Defendants breached by refusing to honor their agreement. ‘rhe breach was material, because Defendant [sic] did not substantially perform a material obligation required under the contract. Plaintiff’s injuries were a natural, probable, and foreseeable consequence ofthe Defendant’s breach.

—5--infbrmation is a health care liability claim subject to the expert—report requirement. See Sloan. 217 S.W.3d at 7( (“Maintaining the confidentiality of patient records is part ofthe core function of providing health care services.”). Accordingly, appellant’s cause ofaction for breach ofcontract is
a health care liability claim and is subject to the expert-report requirement. Appellant’s causes ofaction br intentional infliction of emotional distress and negligence do not alleuc disclosure of confidential infbrmation. The intentional infliction of emotional distress
cause of action alleged appellees caused appellant distress “[bjy making false statements about Plaintiffto her employer.” The negligence cause ofaction alleged Dr. Reddy and the clinic were negligent in “[writing such a letter.” Appellant asserts Gauntt’s letter did not constitute health care. “‘Health care’ means any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Civ. PRAc. 

## § 74.00 l(a)(l0). Appellant argues that appellees’ conduct in sending the letter to appellant’s employer was outside the definition of health care because “the conduct at issue has nothing to do with medical care, treatment, or the release of confidential medical information.” A physician or health care provider’s note recommending that a patient have time offfrom work or modified working conditions is “health care” when the time offor modified working conditions are part ofthe patient’s medical care or treatment. The note appellant received from the clinic was “health care” because the absence from work was based on appellant’s treatment by Dr. Reddy. Gauntt’s letter correcting Dr. Reddy’s unsigned note concerning appellant’s ability to return to work as a result ofthe medical care she received atthe clinic was part ofthe health care provided appellant because itwas “an actperformed

The only contractual obligation appellant alleged was confidentiality, which she alleged appellees breached. Appellant did not allege appellees had a contractual obligation not to disparage her.

-6-• • by 

### [al health care 

### provider

•.. 

### on behalfofa patient during the patient’s medical care.” The flict that the letter

### may have contained false information or impugned appellant’s characterdoes nottake the letter 

### out ofthe dcl

### anition of “health care.” Appellant asserts that not every claimby a patient against a physician is ahealth care liability claim. See Marks v. St. Luke’s Episcopal Jlosp., 319 S.W.3d 65, 664 (Tex, 2010) (Medina. J., joined by Hecht, J.). Although this may be true, it has no bearing on whether appellant’s claims in this case are health care liability claims. See Nexus Recovery Ctr. i’. Mathis, 336 S.W.3d 360 (Tex. App.—[)allas 2011, no pet.) (plaintiffs claims against alcohol and drug-abuse treatment center for sexual exploitation by counselor after plaintiff left treatment center were not health care liability claims).Appellant argues that an expert report in this case would not involve analysis ofhealth care but only an analysis of the consequences of Gauntt’s letter describing appellant as a dishonest person. Appellant alleged Gauntt’s letter “contained false statements about” appellant. Gauntt’s letterincluded statements that appellanthad no workrestrictions afterthe medical care she received. Expert medical testimony will be necessary to establish whether work restrictions were medically appropriate. Moreover, the fact that expert testimony might not be necessary at trial does not mean the claim is not a health care liability claim. See Sloan, 217 S.W.3d at 768. Appellant also argues that her claims are separable from the underlying facts ofhermedical treatment. However, the splicing ofa health care liability claim into other causes ofaction is not permitted. Diversicare, 185 S.W.3d at 854. When the essence ofthe suit is a health care liability claim, a party cannot avoid the requirements ofthe statute by attempting to recast a health care liability claim as a different cause ofaction through artful pleading. Sloan, 217 S.W.3d at 767; see Lee, 235 S.W.3d at 451 (and cases cited therein).

—7—We conclude the essence ofappellant’s suit is a health care liability claim, Accordingly, appellant’s causes of action meetthe definition of“health care liability claim,” and the trial court did not err by dismissing appellant’s claims for failing to file expert reports as required by section 74.351. We overrule appellant’s issue. We aifirm the trial court’s judgment.

LANA MYERS JUSTICE

1 20099E.P05

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## iia1i iftIi Oitrirt nf cIrxwi it 

### 3zt11i JUDGMENT CRYSTAL MONSON, Appellant No. 05—i 2—00099—C’V V. ALLEN FAMILY FIRST CLiNIC, P.A., CHANDANA RLDDY AND CANDACE (iAUNTT, Appellees Appeal from the County Court at Law No. 6 of Collin County, Texas. (Tr.Ct.No. 006- 02223-2011). Opinion delivered by Justice Myers, Justices Moseley and Fillmore participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRNIEI). It is ORI)EREfl that appellees Allen Family First Clinic, P.A.. ChandanaReddy, and Candace Gauntt recover their costs ofthis appeal from appellant Crystal Monson. Judgment entered November 21, 2012.

LANA iv(YERS JUSTICE