REVERSE and REMAND; and Opinion Filed June 5, 2014.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-01065-CV

MATTHEW D. BARROWS, M.D., P.A. D/B/A DERMATOLOGY & SKIN CANCER 

SURGERY CENTER AND MELISSA MCANALLY, Appellants

V.

SUZETTE CARNES, Appellee

On Appeal from the 116th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-12-09350-F

OPINION

Before Justices Bridges, Fillmore, and Lewis 

Opinion by Justice Lewis

This is an interlocutory appeal from orders denying motions to dismiss filed by appellants

Matthew D. Barrows, M.D., P.A. d/b/a Dermatology & Skin Cancer Surgery Center (Barrows)

and Melissa McAnally (McAnally). Appellee Suzette Carnes (Carnes) sued Barrows and 

McAnally seeking damages for injuries she sustained during an intense pulsed light (IPL) skin 

rejuvenation procedure. For the reasons that follow, we reverse and remand to the trial court for 

further proceedings. 

BACKGROUND

Carnes sought IPL skin rejuvenation treatments from the RejuveDermMD Aesthetic 

Center (Center), located within the Dermatology & Skin Cancer Surgery Center owned by 

Barrows. During her third IPL treatment performed by McAnally, the Center’s aesthetician,
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Carnes allegedly sustained injuries to her left eye, including a decrease in vision, inability to 

tolerate light, and pupil disfigurement. Carnes sued Barrows and McAnally, asserting claims for 

negligence, gross negligence, assault, and violations of the Texas Deceptive Trade Practices Act.

Barrows and McAnally asserted Carnes’s claims were health care liability claims, subject 

to the Texas Medical Liability Act (TMLA), as codified in Chapter 74 of the Texas Civil 

Practice and Remedies Code. Although Carnes maintained that her claims were negligence 

claims that did not fall within the ambit of Chapter 74, she nevertheless served expert reports

pursuant to section 74.351 of the TMLA. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) 

(West Supp. 2013). Barrows and McAnally objected to Carnes’s expert reports as failing to 

meet the requirements of Chapter 74 and they filed individual motions to dismiss Carnes’s 

claims. The trial court conducted a hearing and denied Barrow’s and McAnally’s motions to 

dismiss. Barrows and McAnally filed this interlocutory appeal. See id. § 51.014(a)(9) (West 

Supp. 2013). 

DISCUSSION

On appeal, Barrows and McAnally present one issue with two sub-parts. They ask that 

we determine whether the trial court abused its discretion in denying their motions to dismiss 

pursuant to section 74.351 of the TMLA. Appellants ask that we first consider whether Carnes’s 

claims are health care liability claims and second, whether Carnes complied with the expert 

report requirements of section 74.351. 

Carnes argues that our opinion in Bioderm Skin Care, LLC v. Sok, 345 S.W.3d 189 (Tex 

App.—Dallas 2011, pet. granted) is controlling and requires that we conclude her claims are not 

health care liability claims. However, shortly after submission of this appeal, the Texas Supreme 

Court issued its opinion reversing the judgment in Bioderm. See Bioderm Skin Care, LLC v. Sok, 

426 S.W.3d 753 (Tex. 2014). 
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A. HEALTH CARE LIABILITY CLAIM

Whether Carnes’s claims are health care liability claims under Chapter 74 is a question of 

law we review de novo. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012). 

The determination of whether a claim is a health care liability claim requires an examination of 

the underlying nature of the claim, rather than any characterization given to the claim by the 

pleadings. See Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 664 (Tex. 2010); 

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

A health care liability claim consists of three elements: (1) the claim is asserted against a 

physician or health care provider, (2) for treatment, lack of treatment, or other claimed departure 

from accepted standards of medical care, health care, or safety or professional or administrative 

services directly related to health care, (3) 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. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.001(a)(13) (West Supp. 2013); see Tex. W. Oaks Hosp., 371 

S.W.3d at 179–80. Additionally, the TMLA “creates a rebuttable presumption that a patient’s 

claims against a physician or health care provider based on facts implicating the defendant’s 

conduct during the patient’s care, treatment, or confinement” are health care liability claims. 

Loaisiga v. Cerda, 379 S.W.3d 248, 252 (Tex. 2012).

With respect to the first element, the parties do not dispute that Barrows is a physician as 

defined in Chapter 74. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(23). Although 

Carnes discusses the lack of evidence in the record to show that McAnally held any medical 

licenses, had any medical training, or otherwise possessed any specialized knowledge, skill, or 

training in any field related to health care, Carnes does not dispute that McAnally is an employee 

of Barrows. Accordingly, we conclude McAnally is a “health care provider” as defined in

Chapter 74. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12)(B). 
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With respect to the third element, Carnes alleges her injuries were caused by the IPL skin 

rejuvenation treatment she received from McAnally. For purposes of analyzing whether 

Carnes’s claims are health care liability claims, we will assume the truth of her causation 

allegation. The third element is met.

Having determined that Barrows is a physician and McAnally is a health care provider, 

and having accepted as true Carnes’s allegation concerning causation, we next consider the 

second element: whether Carnes’s claims are based on facts implicating the conduct of Barrows 

and McAnally during Carnes’s care, treatment, or confinement. See Bioderm, 426 S.W.3d at 

759. In her pleading, Carnes claimed that Barrows breached a duty to ensure that McAnally used 

the laser in a safe, reasonable and prudent manner by (1) employing McAnally, who was 

unqualified to use the laser device, (2) allowing McAnally to perform the procedure without 

Carnes’s consent, and (3) using the laser near and around Carnes’s eye. Carnes alleged that 

Barrows, as McAnally’s employer, was vicariously liable for McAnally’s negligence. Carnes 

alleged McAnally ignored the risk of using a high-powered laser around Carnes’s eye when she 

moved Carnes’s safety glasses from their proper position and performed the IPL treatment 

directly over Carnes’s exposed eye. 

According to the record, Carnes received physician-supervised treatment in the 

physician’s clinic. Prior to treatment, Carnes completed a “Patient History Questionnaire,” 

which included medical history. Carnes’s rheumatologist was consulted before the IPL 

procedure was performed. Carnes signed various forms, including a “Patient History 

Questionnaire,” “Financial Policy,” and “Cosmetic Interest Questionnaire,” on lines designated 

for a patient’s signature. McAnally’s “Progress Notes” refer to Carnes as the patient. Medical 

records, consisting of progress notes and IPL treatment documentation, were generated in 

connection with the procedure. On this record, we conclude Carnes’s claims are based on 
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conduct of Barrows, a physician, and McAnally, a health care provider, in the context of care and 

treatment, implicate medical expertise, and involve the alleged departure from accepted 

standards of health care. See TEX. CIV. PRAC. & REM. CODE ANN. §74.001(a)(13); see also Rio 

Grande Valley Vein Clinic, P.A., d/b/a RGV Vein Laser & Aesthetic Clinic v. Guerrero, No. 12-

0843, 2014 WL 1661495, at *2 (Tex. April 25, 2014) (per curiam); Bioderm, 426 S.W.3d at 759. 

We further conclude Carnes has not rebutted the presumption that a patient’s claims against a 

physician and health care provider based on facts implicating the defendants’ conduct during the 

patient’s care or treatment are health care liability claims. See Loaisiga, 379 S.W.3d at 252. 

Accordingly, the second element is met.

Our conclusion is consistent with a recent ruling of the Amarillo Court of Appeals,

concluding the plaintiff’s claims were health care liability claims in a factually similar case 

involving IPL treatment provided by a physician’s employee. See Kanase v. Dodson, 303 

S.W.3d 846 (Tex. App.—Amarillo 2009, no pet.). In Kanase, the plaintiff alleged Kanase’s 

employees negligently performed IPL laser treatments, causing severe burns and permanent 

damage to her arms. Id. at 847. The plaintiff asserted claims of ordinary negligence against 

Kanase for, among other things, failing to properly train and supervise employees in the use of 

the IPL technology. Id. The Amarillo Court of Appeals held that “claims that a health care 

provider did not adequately staff, train, or supervise employees are integral components of the 

rendition of health care, which implicate medical expertise and the departure from accepted 

standards of health care, and are, therefore, health care liability claims. Id. at 849 (citing Marks, 

319 S.W.3d at 661).

Our conclusion is supported by the fact expert medical or health care testimony would be 

necessary to prove or refute Carnes’s claims. The TMLA defines health care as “any act or 

treatment performed or furnished, or that should have been performed or furnished, by any health 
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care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or 

confinement.” TEX. CIV. PRAC. & REM. CODE ANN. §74.001(a)(10). If expert medical or health 

care testimony is necessary to prove or refute accepted standards of medical or health care and 

their breach, the claim is a health care liability claim. See Tex. W. Oaks, 371 S.W.3d at 182. 

Here, Carnes argues expert medical or health care testimony is not required to prove the merits 

of her claims. However, the IPL skin rejuvenation treatment performed on Carnes utilized an 

intense pulsed light (IPL) device. We note that in her pleading, Carnes also referred to the IPL 

device as a laser. In Bioderm, the Texas Supreme Court considered the necessity of expert 

medical or health care testimony when the claim involved injuries caused during laser hair 

removal. 426 S.W.3d at 760. The Court looked to specific facts in the record and concluded that 

expert health care testimony was necessary to prove or refute Sok’s claim for two reasons. Id. at 

761. First, because Bioderm’s laser was a regulated surgical device that could only be acquired 

by a licensed medical practitioner for supervised use in her medical practice, testimony of a 

licensed medical practitioner was required to prove or refute Sok’s claim that use of the device 

departed from accepted standards of health care. Id. at 761–62. Second, because proper 

operation and use of the laser required extensive training and experience, expert testimony was 

necessary to prove or refute Sok’s claim concerning improper use of the device. Id. at 762. The 

Supreme Court concluded that “because expert health care testimony is needed to prove or refute 

Sok’s claim against a physician and a health care provider, her claim is a health care liability 

claim.” Id. 

Here, Carnes’s claims derive from her allegation that McAnally improperly used the IPL 

device and that such action proximately resulted in Carnes’s injuries. Her specific claims relate 

to an alleged failure by Barrows to adequately staff, train, or supervise McAnally in the use of 

the IPL device. Such claims are integral components of health care, which implicate medical 
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expertise and the departure from accepted standards of health care. See Marks, 319 S.W.3d at 

661; Kanase, 303 S.W.3d at 849. On this record, Carnes’s claims are health care liability claims. 

See Bioderm, 426 S.W.3d at 762. 

B. EXPERT REPORTS

In the second sub-part of their sole issue, Barrows and McAnally ask that we consider 

whether Carnes complied with the expert report requirements of chapter 74. Appellants contend

that Carnes’s expert reports do not constitute objective, good faith efforts to comply with the 

statutory requirements of section 74.351. We note that Barrows and McAnally raised the 

sufficiency of Carnes’s expert reports in their motions to dismiss. However, based on our review

of the record, we conclude the trial court did not consider or make any ruling with respect to the 

sufficiency of Carnes’s expert reports. The trial court should be given the opportunity to 

determine the sufficiency of the expert reports. 

CONCLUSION

In denying appellants’ motions to dismiss, the trial court relied on our opinion in Bioderm 

Skin Care, LLC v. Sok, 345 S.W.3d 189 (Tex App.—Dallas 2011, pet. granted) to reach its 

conclusion that Carnes’s claims were not health care liability claims. The trial court did not have 

the benefit of the recent Texas Supreme Court’s opinion reversing Bioderm and clarifying the 

factors to be considered in determining whether a claim constitutes a health care liability claim. 

See Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753 (Tex. 2014). 
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In light of the Supreme Court’s decision in Bioderm, we reverse the trial court’s orders denying 

Barrows’ and McAnally’s motions to dismiss and remand to the trial court to determine whether 

Carnes’s expert reports satisfy the expert report requirements of chapter 74. 

 

 

131065F.P05

/David Lewis/

DAVID LEWIS

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

MATTHEW D. BARROWS, M.D., P.A. 

D/B/A DERMATOLOGY & SKIN 

CANCER SURGERY CENTER AND 

MELISSA MCANALLY, Appellants

No. 05-13-01065-CV V.

SUZETTE CARNES, Appellee

On Appeal from the 116th Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. DC-12-09350-F.

Opinion delivered by Justice Lewis. 

Justices Bridges and Fillmore participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

REVERSED and this cause is REMANDED to the trial court for further proceedings consistent 

with this opinion.

It is ORDERED that appellants MATTHEW D. BARROWS, M.D., P.A. D/B/A 

DERMATOLOGY & SKIN CANCER SURGERY CENTER AND MELISSA MCANALLY 

recover their costs of this appeal from appellee SUZETTE CARNES.

Judgment entered this 5th day of June, 2014.

/David Lewis/

DAVID LEWIS

JUSTICE