### 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. 03-15-00081- CV

Acc ess Orthodontics of E ast 7th Stree t, P .A., Appellant

v. Miriam Jaim es, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-1 4-0 0018 9, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellee Miriam J aimes sued Acc ess Orthodontics of East 7th Street, P.A. (Ac cess) in connec tion with orthodontic service s and g oods. Acc ess moved to dismiss the suit on the g round that J aimes’s claims, althoug h pleade d as claims under the Dec eptive Trade Practice s Act (DTPA),

are actua lly health care liability claims and that Jaimes failed to serve an expert re port as required b y t h e Texas Medica l L iability Act. See Tex. Civ. Prac. & Rem Code § 74.351. The t ri al co u rt denied the motion, and A cce ss filed this inter locutory appea l. See id

. § 51.014(a) (9). Be cause we ag ree that J aimes’s claims are health car e l i ab i lity claims under the Act, we will reve rse the trial court’s judgme n t an d rema nd the case for a deter

mination of attorney ’s fee s and for dismiss al of J aimes’s suit.F ACTUAL AND P ROCEDURAL BACK GR OUND Acc ording to her petition, J aimes enter ed into a n ag ree ment with A cce ss f or brac es and orthodontic service s totaling $4, 0 00. J aimes paid $1,000 as a down pay ment for the brac es and set up a pay

ment schedule for the rema ining balanc e. Upo n co m pleting pay ment and afte r

wea ring the brac es for the presc ribed period of time, J aimes schedule d an appointment for remova l of her brac es. Acc ess canc elled this appointment and continued to canc el subsequent scheduling for

remova l of the bra ces. Jaimes later pa id for anothe r orthodontist to remove the br ace s.

J aimes sued Acc ess under the DTPA, pleading for rec overy o f t h e $ 3 1 5 cost to

remove the brac es, attorney ’s fee s, and mental anguish damag es. I n its answe r, Acc ess asser ted that J aimes’s claims wer e not DTPA claims at all, but instead wer e health car e liability claims g overne d by the Texas Medica l L iability Act. See id

. §§ 74.001-74.507. Acc ess later filed a motion to dismiss pursuant to section 74.351(b) of the Act, asser ting that J aimes had failed to tim el y fi l e an expert repor t as require d by the Act. See id

. § 74.351. After a hear ing on the motion to dismiss , the trial 1 court de nied Acc ess’s motion.

Section 74.351of the Ac t states: 1 I n a health car e liability claim, a claimant shall, not later than the 120th day afte r the date eac h d ef

en d an t ’s orig inal answe r is filed, serve on that party or the party ’s attorney one or more expert repor ts, with a curr iculum vitae of eac h expert listed in the re port for e ach phy sician or he alth car e provide r ag ainst whom a liability claim is asserted. Tex. Civ. Pr ac . & Rem. Code § 74.351(a)

. I f an expert repor t is not serve d within the presc ribed p e r io d o f ti me , th e p h y s ic ia n o r h e a lt h c a r e p r o v id e r ma

y s e e k d is mi s s a l o f th e c la im

. I d

. § 7 4

. 3 5 1 ( b )

.
2STANDARD OF REVIEW We r eview a trial court’s order g ranting or deny ing a motion to dismiss pursuant to section 74.351(b) of the Act under an abuse- of-discr etion standard. PM Mgmt.-Trinity NC, LLC v. Kumets , 368 S.W .3d 711, 720 (Tex. App.—Austin 2012), aff’d i n p a r t , r ev’ d on other grounds , 404 S.W .3d 550 (Tex. 2013). Howe ver, the question of whethe r a c ause of action is a health car e liability claim is a question of law, to which we apply a de novo standard of revie w. Texas W

. Oaks Hosp., LP v. W

illiams , 371 S.W .3d 171, 177 (Tex. 2012).

DISCUSSIO N I n its sole issue on appea l, Acc ess asser ts that th e trial court err ed in deny ing its motion to dismiss beca

use J aimes’s claims are health car e liability claims for which she failed to file

an expert repor

t as require d by the Act. See Tex. Civ. Prac. & Rem. Code § 74.351(b). I n response , J aimes contends that her claims are not health car e liability claims beca use they do n o t s o u n d i n neg lige nce and that, as a result, no expert repor t was require d. Be cause it is undisputed that J aimes did not serve an expert repor t, resolution of this appea l turns on whether J aimes’s claims qualify as health ca re liability

claims under the Act. The Texas Supreme Court has rec og nized that a “hea lth car e liability claim” consists of three elements:
First, a phy sician or health car e provider must be the defe ndant. Second, the suit must be about the patient’s trea tment, lack of trea tment or some other depar ture from a c c e p te d s ta

n d a r d s o f me d ic a l c a

r e o r h e a lt h c a r e o r s a f e ty

. A n d th ir d , th e d e f

e n d a n t’ s act, omission or other depar ture must proxi mately cause the patient’s injury or death.

3Marks v. St. Luke’s Episcopal Hosp. , 319 S.W .3d 658, 662 (Tex. 2010); see also Tex. Civ. Prac. &

Rem. Code § 74.001(a) (13) (def inition of health car e liability claim). A c laim ag ainst a phy sician

or health car e provider that implicates the defe ndant’s co n d u ct during the course of the patient’s

car e, trea tment, or confine ment is presumably a health car e liability claim. Loaisi ga v. Cerda , 379 S.W .3d 248, 256 (Tex. 2012). I n this case , there is no dispute that Acc ess is a health car e provider, and ther efor e only

the sec ond and third ele ments are at issue. 2
Nature of the Claim

To satisfy the second element of a health car e liability claim, “the suit must be about the patient’s trea tment, lack of trea tment, or some other depa rt u re fr om acc epted standards of medical care or hea lth care or saf ety .” Marks , 319 S.W .3d at 662

. The Act define s health care as “any act or trea tment pe rfor

med or furnished, or that should ha ve bee n perf

ormed or f

urnished, by any health car e provider for, to, or on behalf of a patient during the patient’s medical car e, trea tment, or conf inement.” Te x . Civ. P rac . & Re m. Code § 74.001(a) (10). To deter mine whether J aimes’s claims satisfy the second element, we must examine the underly ing nature of the pleading s and are not bound by the form o f t h e p l eading s filed by J aimes, nor he r cha

rac terization of her c laims. See M arks , 319 S.W .3d at 658; see also W alden v. Jeffery , 907 S.W .2d 446, 447-48 (Tex. 1995) (holding that health car e liability claim ag ainst dentist for statements reg arding fit of denture s could no t b e rec ast as DTPA claim); Lopez v. Osuna ,

The Act define s a health car e provider as including any profe ssional association “cha rtere d 2 by the State of Texas to provide health car e, including: (ii) a dentist.” See Tex. Civ. Prac. & Rem. Code § 74.001(a) (12)( A) (interna l cit at i o ns omitted). Acc ess is a profe ssional association of orthodontists, a ty

pe of de ntist, charter ed to provide de ntal car e to patients. 44 5 3 S. W. 3 d 6 0 , 6 6

- 6 7 ( T e x. A p p . — Sa n A n to n io 2 0 1 4 , n o p e t. ) ( h o ld in g th a t D T PA c la im s b a s e d o n f a il u r e to p r o v id e p r o mi s e d la

b o r a n d d e li v e r y s e r v ic e s w e r e h e a lt

h c a r e li a b il it y c la im s )

. A p la in

ti f f ’ s artful pleading s do not alter the underly ing nature of the claim. Y

amada v. Friend , 335 S.W .3d 192, 196-97 (Te x . 2010); Diversicare Gen. Partner, I

nc. v. R ubio , 185 S.W .3d 842, 854 (Tex. 2005). I n her petition, J ai mes contends that Acc ess failed to remove her brac es at the presc ribed time , re p ea t edly canc elled and made excuses to avoid remova l of the brac es, and ultimately failed to deliver the service s for which she had alre ady paid. Although J aimes contends that her c laims do not sound in neg lige nce, upon considering the underly ing nature and g rava men of J aimes’s pleading s, we conclude that her complaint conce rns a “lac k of trea tment,” namely , the failure to remove her brac es in a timely manner , and that this omission implicates “a depar ture from

acc epted standards of medical car e.” See Loaisi ga , 379 S.W .3d at 255 (“[C] laims premised on fac ts that could support claims ag ainst a phy sician or he alth car e provider for depar tures from acc epted standards of medical ca re . . . are [health car e liability claims], reg ardle ss of whether plaintiff alleg es the defe ndant is liable for brea ch of any of those standards.” ). J aimes was a patient rec eiving medical trea tment from orthodontists at Acc ess, and the remova l of her brac es was insepara ble from that trea tment. See Diversicare ,185 S.W .3d at 8 48 (“A cause of action alleg es a depar ture from

acc epted standards of medical car e or health car e if the act or omiss i o n co m p lained of is an insepara ble part of the re n d i t i o n of medical service s.”); W alden , 907 S.W .2d at 448 (holding that providing denture s was insepara ble from health car e provided to patient as dental service s). Fur ther, whether J aimes’s brac es had fully trea ted the condition for which she soug ht car e and conseque ntly whether remova l of her brac es was proper are d et er m i n at i o ns that are not within the common

5k

n o w le d g e o f th e g e n e r a l p u b li c . S e e D iv e r s ic a r e , 1 8 5 S. W. 3 d a

t 8 5 1 ( e xp la in in g th a

t is s u e s r e g a

r d in g safe ty of patients in nursing home wer e not “within common knowledg e of the g ener al public”). As

a result, J aimes’s claim that Acc ess’s orthodontists fa iled to timely remove her brac es satisfies the second e lement of a

health ca re liability

claim. Inju ry The third element of a health car e liability claim require s that “t h e defe ndant’s act, omission or other depar tu re m u s t p roxi mately cause the patient’s injury or death.” Marks , 319 S.W .3d at 662. The term “injury ” is not define d in the Act, and thus it must be assig ned “such meaning as is consistent with the common law

. ” S ee Tex. Civ. Prac. & Rem. Code § 74.001(b). Acc ording ly , in Kumets , this Court examined the term “injury ” within the co n t ex t o f t he statute and concluded that a health car e li ability claim requires “more t han mere out -of -pocke t economic harm.” 368 S.W .3d at 719. I nstead, the term “injury ” would seem to “ca rry with it the implication that the alleg ed devia t i o n from an acc epted standard of car e must cause the plaintiff to suffe r

some persona l injury , whether phy sical, mental, or emotional.” Id. at 718. That is, the “injury ” must “also involve some ty

pe of persona l injury , including that which would entitle the plaintiff to seek
to rec over n o n ec onomic damag es.” Id. at 719. This interpre tation more closely serve s the Act’s objective of “re in[ ing] in what was perc eived to be excessive awa rds of noneconomic damag es that

wer e driving up the cost of medic al malpra ctice insura nce.” Id. at 718. I n this case , J aimes has pleade d both economic damag es associate d with the cost of having the brac es remove d and mental anguish damag es arising fro m Ac ce s s ’s failure to remove her brac es. J aimes’s alleg ation that she has suffe red mental ang uish constitutes a claim for persona l
6injury that, if proven, would entitle her to rec over noneconomic damag es. See id .; see also McAllen

Hosps., L.P. v. Gomez , No. 13-12-00421- CV, 2013 WL 784688, at *5 (Tex. App.—Corpus Christi Fe b. 28, 2013, no pet.) (mem. op.) (holding that plaintiff soug ht to rec over for an “injury ” under Act by seeking to r ecove r for mental ang uish damag es arising from dispute conce rning rea sonablene ss of cha rg es); TTHR, L .P. v. Coffman , 338 S.W .3d 103, 111 (Tex. A pp.—For t Worth 2011, no pet.) (noting that “injury ” under Act d o es n o t require phy sical injury). Acc ording ly , J aimes’s claims satisfy the “injury ” element of a health car e liability claim under the Act. See Kumets , 368 S.W .3d at 719; see also Mc

Allen , 2013 WL 784688, at *5. J aimes’s claims ag ainst Acc ess conce rn conduct during the course of her medical
trea tment, and she has failed to rebut the presumption that her claims are health car e liability claims. See L o a isiga , 379 S.W .3d at 256. Be cause J aimes failed to file an expert repor t as mandated by section 74.351(a ) of the A ct, the trial c ourt abused its discre tion in failing to dismiss her suit.

CONCLUSION We r ever se the trial court’s order deny ing Acc ess’s motion to dismiss

. We r emand the cause to the t ri al court with instructions for the trial court to deter mine Acc ess’s rea sonable attorney ’s fee s and to enter an order awa rding attorney ’s fee s and cost s of court to Acc ess, as require d by statute , and dismiss ing J aimes’s claims with prejudice

. See Tex. Civ. Prac. & Rem. Code § 74.351(b).

7__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Reverse d and Remande d Filed: Jul y

23, 2015

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