### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00079- CV

Doct ors Data, Inc., A ppellan t

v. Ronald S tem p and Carr ie Stem p, App ellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0227 9, H ONO RAB LE TIM SULAK , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Ronald and Carrie Stemp (c o l lectively , “the Stemps”) sued Doctors Data, I nc., Care Clini cs, I nc., Nutrig enomics, I nc., J esus Antonio Caquias, MD, and other i n d ividuals and entities, in connec tion with Ronald Stemp’s trea tment at a fac ility in Austin, Tex as , k n o wn as Care Clini cs. The Stemps alleged multipl e claims, including assault, violation of the Dec eptive Trade Practice s Act, brea ch of fiduciar y duty , and fra

ud and fra ud-base d acts and omissions

. Doctors Data moved to dismiss the action ag ainst it on the basis that the Stemps asser ted health-c are -liability claims but failed to serve their medical- expert repor t w ithin the time r equire d by section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 74.351. Doctors Data contende d that it is a health-c are provider, that the Stemps’ claims ar e h ea l t h -ca re- liability claims, and that the trial court err ed by failing to dismiss the cause as a result of the Stemps’ failure to comply with section 74.351. The Stemps responde d that their complaints sound in fra ud and, inany event, Doctors Data is not a health-c are provider. The trial court rende red an interlocutory order

denying D octors Data’s motion to dism iss. Doctors Data appea ls. W e will aff

irm.

STANDARD OF REVIEW A trial court’s ruling on a motion to dismiss a cause for failure to comply with section 74.351(b) is subject to revie w for abuse of discretion. American Transit ional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W .3d 873, 875 (Tex. 2001).

BACK GR OUND Care Cli nics, I nc., and Nutrig enomics, I nc., are both T ex as C orpora tions. Doctors Data, I nc., is an I llinois corpor ation. Dr. J esus Antonio Caquias is a phy sician licensed to prac tice 1 medicine in Texas. C ar e C linics appar ently employ ed Dr. Caquias to perf orm medical work requiringa phy sician.

Care Clini cs holds itself out to be a homeopathic or naturopa thic clinic, specia liz ing in a lternative tre atment for a utisti c childre n. On his initi al visit to C are Clini cs, Ronald met with 2 Kazuko Curtin, president and sole direc tor of Care Clini cs, I nc. Curtin and J eff Ba ker, an employ ee, informed Ronald that he likely suffe red from heavy -metal poisoning, Alzheimer’s disease, and hear t disease. Neither Curtin nor Ba ker is a phy sician; Ba

ker claims to be a doctor of naturopa thic medicine. The State of Texas does not license homeopathic c linics or naturopa thic doctors.

An uncer tified copy of an assumed name cer tificate form attache d to a Do ct o rs Da t a 1 pleading states that Nutrig enomics, I nc. intended to do business in Travis County as “Care Clini cs.” I t is unclear w hether

Care Clinics, I nc. and Ca re Clinics are the same or rela ted entities. To avoid conf

usion, we will ref

er to Ronald by

his first name whe re a

ppropriate

. 2 2Care Cli nics does not have a l aboratory
. Tests on s pecimens taken at Care Cli nics

wer e conduc ted by

outside laborator ies, including Doctors Data. Ronald underw ent multipl e tests at Care Clini cs, including labora tory analy sis of his urine to deter

mine whether it contained tox ic metals. Doctors Data perf ormed some labora

tory analy sis of the samples for Care Clini cs. Alleg edly , a provoking ag ent was administered to Ronald’s samples, causing elevated levels of lead, heavy metals, and the like. The Stemps alleged t h at Ronald’s true levels wer e normal, as later deter mined by medical profe ssionals, and the testing and trea tment wer e fra

udulently administered as part of a scheme among the p ar t i es t o justify

unnece ssary testing and trea tment and to char g e and collect costly and fr au d ulent bills. Ronald underw ent che lation therapy , which he disc ontinued afte r ten months whe n he conc luded that the 3 trea tment proved unsucc essful.

The Stemps unsucce ssfully attempted to obtain copies of Stemp’s rec ords from Care Clini cs. Their attorney also made demand and m ad e s ev er al unsucce ssful attempts to obtain the

rec ords. At some point, the Fe dera l Bur eau of I nvestig ation and the I nterna l Revenue Service seized control of the r ecor ds of Care Clini cs. The Stemps a ttempted to obtain copies of the r ecor ds from these fede ral ag encie s, but their reque sts wer e declined. They wer e not able to obtain the nece ssary

rec ords throug h the U.S. Attorney ’s Offic e from the Depa rtment of J ustice until sever al months afte r they filed suit. They filed an expert repor t rela ting to their claims, but it was not filed within the time limit provided by

section 74.351.

Chelation thera

py is a medical proce dure that involves the administration of cer tain ag ents 3 to remove he avy

metals from the body

. 3A claimant urg ing health-c are -liability claims has a duty to serve an expert repor t on the defe ndant within the time presc ribed in the statute. See Tex. Civ. Prac. & Rem. Code § 74.351. The Stemps conce de that if their claims are health-c are-l i ab i l ity claims, and if Doctors Data is a health-c are provider, they missed the deadline due to the particula r fac ts of their case and failed to

serve their expert re port in time.

Doctors Data filed a motion to dismiss the cause of action ag ains t i t d u e t o t he Stemps’ untimely filing of their expert repor t. As a basis for its motion, Doctors Data contende d that the Stemps’ complaints are health-c are -liability claims and that it is a health-c are provider beca use it wa s both an independe nt contra ctor of Dr. Caquias and an aff iliate of Dr. Caquias. I n support of its motion, Doctors Data attache d to its motion and relied upon the p l ai n t i ff s ’ orig inal petition, a copy of a contra ct betwee n Doctors Data, I nc. and Nutrig enomics, I nc., an uncer tified co p y o f

an assumed name cer

tificate, an aff

idavit from Dr. Caquias with attachme nts, and excerpts from Ronald Stemp’s deposition.

Dr. Caquias attache d to his aff idavit copies of some of Ronald’s Care Clini cs rec ords and lab tests by Doctors Data. The doctor conce ded that the rec ords belong ed to Care Clini cs, and not to him, a

nd that he is not the custodian of the rec ords. As a result of the Stemps’ obje ctions to the aff idavit, the trial court ruled that the rec ords wer e not proper ly authentica ted. Doctors Data does not complain of this ruling.

Dr. Caquias swore in his aff idavit that he examined Ronald and order ed testing from Doctors Data rela ted to his medical complaints. Ronald points out that in his deposition he testified

4that he never met Dr. Caquias or spoke with him until Ronald’s deposition, and that Dr. Caquias

never examined him or met with him to discuss any test results or for

any rea son. Doctors Data attache d to its motion what purports to be an assumed-na me cer tificate ref lecting that Nutrig enomics, I nc., intended to do business in T ravis County as “Care Clini cs.” I t also attache d a copy of a contra ct betwe en Nutrig enomics, I nc. and Doctors Data, I nc., wher eby Nutrig enomics would use Doctors Data exclusively for cer tain lab testing in e x chang e for Doctors Data’ s perf

orming tests for Nutrig enomics at a discounted price

. Doctors Data as s er t ed that “by virtue of this written ag ree ment,” Dr. Caquias order ed Doctors Data to perf orm lab work on Ronald’s spec i m en s t aken at Care Clini cs. The ag ree ment was dated and commence d three months afte r Ronald discontinued g oing to Car e Clinics; thus, i t does not relate to the period whe n Ronald was being seen a

nd tested at Car e Clinics. I n any event, the ag ree ment does not make any ref ere nce to Care Clini cs or Care Clini cs, I nc. or provide any ag ree ment for Doctors Data to perf orm service s for Care Clinics.

DISCUSSIO N

The trial court declined to dismiss the cause ag ainst Doctors Data. The ruling must be upheld unles s Do ctors Data can show that the trial court abused its discretion by deny ing its motion. Even assum i n g without deciding for purposes of this revie w that the Stemps’ claims are health-c are -liability claims, Doctors Data must also demonstrate that it is a health-c are provider. To do so, the rec ord must show that Doctors Data i s an independe nt contra ctor or an aff iliate of Dr. Caquias, the two g rounds it alleg ed in its moti on to dismi ss.

5Severa l statutes rela te to deter mining Doctors Data’ s status as a health-c are provider. A health-c are provider is define d as any person, partne rship, profe ssional association, corpor ation, fac ility , or instit ution duly licensed, cer tified, reg istered, or char

tere d by the State of Texas to provide health car e. Tex. Civ. Prac. & Rem. Code § 74.001(a) (12)( A). The rec ord contains no evidenc e that Doctors Data, I nc., is licensed, cer tified, reg istered, or char

tere d by the State for this purpose. Thus, althoug h Doctors Data appar ently perf orms labora tory service s, we cannot say that Doctor s Data comes within the primar

y definition of hea lth-car e provide r. The term also includes an af fi liate of a health-c are provider or phy sician. Id. § 74.001(a) (12)( B) (i). An “af filiate” is a person who direc tly or indirectly controls, is controlled b y , or is under common control with a specifie d person. Id. § 74.001(1). “Control” means t h e possession of power to dir ect or cause the direc tion of the manag ement and policies of the person, throug h owner ship, by contra ct, or otherwise. Id. § 74.001(3). I t is undisputed that Dr. Caquias is licensed to prac tice medicine in Texas. Although Doctors Data asser ted in its motion below that it

was a n aff iliate of Dr. Ca quias, it does not make this arg ument on appea l. The term “hea lth car e provider” also includes an employ ee, independe nt contra ctor,

or ag ent of a health-c are provider or phy sician acting in the course and scope of the employ ment or contra ctual relationship. Id. § 74.001(a) (12)( B) (ii). On appeal, Doc tors Data sug g ests that it is an independe nt contra ctor of Care Clini cs. This was not a g round alleg ed in its motion to dismiss and t h us cannot be a g round for reve rsal of the trial court’s ruling

. I n any event, the rec ord d o es n o t contain any evidenc e that Care Clini cs, Care Clini cs, Inc., or Nutrig enomics, I nc. is licensed,

cer tified, reg istered, or cha

rtere d by the State of Te x as to provide health car e. I ndeed, the State of

6Texas does not license homeopathic, naturopa thic, or such fac iliti es. Even if Do ct o rs Data

wer e an i n depende nt contra ctor of Care Clini cs, that would not qualify Doctors Data as a health-c are provider.

Finally , Doctors Data alleg ed in its motion and argues on appea l that it is a health-c are provider beca

use it is an independe nt contra ctor of Dr. Caquias, a licensed phy sician. Doctors Data’ s p o s i t ion seems to be that a contra ctual rela tionship with an employ er can cre ate a contr ac t u al rela tionship with the employ er’ s ag ent or employ ee. Doctors Data arg ues t hat Care Clini cs contra cted with Doctors Data to perf orm lab work for its medical direc tor, Dr. Caquias order ed lab tests, Doctors Data perf

ormed the tests, and by doing so Do ct ors Data acte d as the doctor’s independe nt contractor. We disag ree . An independe nt contra ctor rela tionship does not require a written ag ree ment; it can b e cre ated by implication. Pitchfork Land & Cattl e Co. v. King , 346 S.W .2d 598, 602-04 (Tex

. 1961). Doctors Data contends that it provided specific services to Dr. Caquias which cre ated an independe nt-contra ctor rela tionship with the doctor. Dr. Caquias does not claim to have any independe nt ag ree ment with Doctors Data. Dr. Caquias was an employ ee of Care Clini cs. He did not have a contra ctual ag ree ment with Doctors Data. Even assuming Doctors Data had an ag ree ment with Care Cli nics, his employ er, t h at agr ee ment does not somehow create

an ag ree ment with Dr. Caquias. As ear lier noted, any written ag ree ment was betw e e n Nutrig enomics and Doctors Data and beca me eff ective sever al months afte r Ronald quit Care Clini cs. Thus, the record does not support the conclusion that Doctors Data was an independe nt contra ctor o f Dr. Caquias.

7CONCLUSION Doctors Data has not shown from the rec ord befor e us that it is a health-c are provider; thus, it cannot show that the trial court a bused its discr etion by denying its motion to dismiss. We

overr ule all of Doc tors Data’ s issues on appea l and af firm the trial c ourt’s ruling

.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Marily n Aboussie, J ustice Be fore J ustices Goodwin, F ield, and Aboussie* Concurring Opinion by J ustice Goodwin Affir med Filed: Jul y

31, 2014 * Be fore M arily

n Aboussie, Chief J ustice (re tired), Third Court of Appea ls, sitti ng by assig nment. See Tex. Gov’t Code § 74.003(b).

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