AFFIRMEI); Opinion Filed November 21, 2012.

In The

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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 of appellees’ 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’s judgment.

BACKGROUND

On July 16, 2009, appellant saw Dr. Chandana Reddy at the Allen Family First Clinic, P.A.,

for evaluation and treatment. When appellant left the office, she received a note regarding her ability

to return to work. The note was on Dr. Reddy’s letterhead with Dr. Reddy’s name typed but not
signed at the end ofthe note. The note stated appellant felt she could return to work on July21, five

days later, would then be limited to part-time work for one to two weeks, and “then if tolerated

full-time.” Appellant alleged she returned to work the next day.

On July 21, 2009, Dr. Reddy’s office msnager, Candace Gauntt, sent a letter to appellant’s

employer that, appellant alleged. “contained thlsc statements about [appellant] and placed

[appellant’s] character in an extremely bad light” The letter stated,

Our patient, Crystal Monson (DOB . . .) was seen in our office last Thursday, July

16,2009. For that date ofservice she was treated and left with no work limitation.

Shewasabletoreturntoworkunlesssymptomssuchasfeveroccurred. Apparently,

when receiving her note for work absence, she asked for a return date of 7/21/09 to

be noted with limitations of working part time for one to two weeks, and then if

tolerated full time. Linfortunat[e]ly our new employee that filled out this return to

work note, misunderstood and thoughtthe patientwasstating what the doctorwanted

and not her own decisionsregardingwhen to return to work and how she couldwork.

We do apologize for the inconvenience and hope this note corrects any problems on

our end. A new return to work now is included, ifyou have further questions please

feel free to call.

Appellant was subsequently terminated by her employer, which appellant alleged was a direct and

proximate result ofGauntt’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

distress bymaking false statements about appellantto her employer and disclosing her confidential

The note. dated July It 2009, stated

To Wham hMay Concern

Crystal Macson has been under my cam from 07116/2009 to the psesesa [sJhe has been in flstanent for which [sioj lies

prevented a return to wash. Presently Crystal feels that [ski is able to return on 07121/2009 with limitations as noted below.

LindtationWRansden Part-time the one to two weeks then iftolerated (WI-time.

Ifyou have any questions about this matter please telephone cur at the above telephone numbers.

Sincerely

Chanda Rcddy. DO.

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information, breach of contract, 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 of appellant’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 of the 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 of privacy. 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 of the 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 of Review

Whether a cause of action 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 of review. Nexus

Recovery Ctr. v. Mathis, 336 S.W.3d 360, 365 (Tex. App.—Dallas 2011, no pet.); see Fudge, 308

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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 of the 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. If the 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 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.

Civ. PRAC. § 74.OOl(a)(13) (West Supp. 2012). To determine whether a cause of action is a health

care liability claim, we examine the underlying nature ofthe claim, and we are not bound by the form

of the pleading. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005). If the

act or omission that forrris the basis ofthe complaint is an inseparable part ofthe rendition of health

care services, or if it is based on a breach ofthe standard of care 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

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(Tex. 2004); Sloan. 217 S.W.3d at 767. If expert 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 of a suit health care liability claim, a party cannot avoid the requirements of the statute

through artful pleading of the claims or recasting the claim as another cause of action. Diversicare,

185 S.W.3d at 851.

Analysis

Appellant argues that her claims in her amended petition 2are 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 for appellees’ accusing her in Gauntt’s letter

of being untruthilil.

Appellant’s breach of contract 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 of confidential 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 of appellant’s claims because she did not serve expert reports. Appellant then amended

her petition omitting most of the allegations of disclosure of confidential information. Appcllee argued to the trial court and in this Court that review

of the 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 of contract 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 of the Defendant’s breach.

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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 of the core function of

providing health care services.”). Accordingly, appellant’s cause of action for breach of contract is

a health care liability claim and is subject to the expert-report requirement.

Appellant’s causes of action 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

Plaintiff to her employer.” The negligence cause of action 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 off from work or modified working conditions is “health

care” when the time off or modified working conditions are part of the 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 of the medical care she

received at the clinic was part ofthe health care provided appellant because it was “an act performed

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.

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• • by [al health care provider •..on behalf ofa patient during the patient’s medical care.” The flict

that the letter may have contained false information or impugned appellant’s character does not take

the letter out of the dcl anition of “health care.”

Appellant asserts that not every claim by a patient against a physician is a health 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 of health 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

letter included statements that appellant had no work restrictions after the 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 of her medical

treatment. However, the splicing of a health care liability claim into other causes of action is not

permitted. Diversicare, 185 S.W.3d at 854. When the essence of the suit is a health care liability

claim, a party cannot avoid the requirements of the statute by attempting to recast a health care

liability claim as a different cause of action through artful pleading. Sloan, 217 S.W.3d at 767; see

Lee, 235 S.W.3d at 451 (and cases cited therein).

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We conclude the essence of appellant’s suit is a health care liability claim, Accordingly,

appellant’s causes of action meet the 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

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JUDGMENT

CRYSTAL MON SON, 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.. Chandana Reddy, and

Candace Gauntt recover their costs of this appeal from appellant Crystal Monson.

Judgment entered November 21, 2012.

LANA iv(YERS

JUSTICE