## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 13 - 00306 - CV

CAROLYN BUTLER APPELLANT V. DAVID WHITTEN, M.D.; JON BEAZLEY, D.O. ; AND JOSEPH DELPRINCIPE, D.O

. APPELLEES

---------- FROM THE 96TH DISTRI CT COURT OF TARRANT COUN TY

TRIAL COURT NO. 096

- 267810

- 13

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### MEMORANDUM OPINION 1

---------- The trial court dismissed Appellant Carolyn Butler’s lawsuit agains t Appellees David Whitten, M.D.; Jo n Beazley, D.O.; and Joseph DelP rincipe, D.O. because she failed to file an exp ert report pursuant to Texas Civil Practice and Remedies Code s ection 74.351(a). See Tex . Civ. Prac. & Rem. Code Ann.

1 See Tex. R. App. P. 47.4.2

§ 74.351(a) (West Supp. 2014 ) . In three issues, Butler argues that (1) “[i]t is error to admit expert evidence on issues where no specia lized or technical knowledge was necessary”; (2) “[t]he trial court erred when the court ruled that Appellant was required to serve expert opinion evidence for unprofessional conduct”; and (3) “[e]xpert opinion evidence diminishes the right to a jury trial .” 2 Butler’s petition alleged that on February 4, 2011, she fell and injured her leg and back because Defendant s Robert Skegrud and Lola Kelley did not properly maintain their rental property in Arlington, Texas. She alleged that Appellees did not accur ately diagnose her leg injuries so that her leg injuries were left untreated. She sought money damages from each of the Appellees. 3 Butler did not serve any expert report on any of the Appellees or their attorneys either before or after the statutory , 12 0

- day deadline. On Appellees’ motion, the trial court dismissed Butler’s claims and severed them from her claims against Skegrud and Kelley

. Butler perfected this appeal from the trial court’s order dismissing her lawsuit against Appellees. 4 In her fi rst and second issues, Butler argues that she

2 Butler appeared pro se in the trial court and, likewise, proceeds pro se in this appeal.

3 Butler’s petition is brief; it is handwritten, double

- spaced , and three pages long.

4 In the trial court and in this court, Appellee David Whitten, M.D. was represented by counsel , and Appellees Jon Be azley, D.O. and Jos e ph DelPrincipe, D.O. were represented b y different counsel. Although two3

“asserted a [n] unprofessional conduct, and a [n] emotional harm cause of action that did not require expert evidence, pursuant to the Federal Rules of Evidence, Article VII, Rule 702 and Citation 956 S.W.2d 635 (1997).” Butler alleges that Appellees refused to reveal x

- ray evidence to her and were rude to her and that this conduct by Appellees constitute d u nprofessional misconduct that did not require an expert report. She argues that a year and a half later sh e was diagnosed by a different doctor as having an incomplete fracture of her right tibia that had caused her pain. She claims that she can testify to Appellees’ conduct “based on her own personal knowledge” because she “actually observed [ Appellees’ ] con duct during her emergency visits.” A tri al court must grant a defendant’ s motion to dismiss a healthcare

liability suit with prejudice unless the plaintiff serves a timely expert report within 120 days of filing the original petition. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (b). To qualify as a timely expert report, the report must represent a good faith effort to comply with the statutory requirements for an expert report. See id . § 74.351( l

). An expert report is defined as a written report by an expert that provid es a fair summary of the expert’ s opinions regarding (1) the applicable standard of care; (2) the manner in which the care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury, har m, or damages claimed. See id . § 74.351(r)(6); see also Bowie Mem ’ l Hosp. Appellees’ briefs were filed in this court, we group all Appellees together for purposes of our opinion because their positions on appeal are the same.4

v. Wright , 79 S.W.3d 48, 52 (Tex. 2002) ; Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 878 (Tex. 2001). W e review a claim that a trial court improperly grant ed a motion to dismiss under section 74.351(b ) for an abuse of discretion. Wright , 79 S.W.3d at 52 (citing Palacios , 46 S.W.3d at 878)

. To determine whether the trial court abused its discretion, we must decide whether the trial court acted in an arbitra ry or unreasonable manner without reference to any guiding rules or principles. Id. ; see also Broders v. Heise , 924 S.W.2d 148, 151 (Tex. 1996). In making such a determination, a court of appeals may not substitute its own judgment for the trial court’ s judgment. Wright , 79 S.W.3d at 52. The law is well

- settled that a failure

- to
- diagnose claim requires that an expert report be filed. See, e.g. , Otero v. Richardson , 326 S.W.3d 363, 370 (Tex. App.

— Fort Worth 2010, no pet.) (holding expert report satisfie d causation component of report involving failure to diagnose left fibula fracture); Barko v. Genzel , 123 S.W. 3d 457, 460

– 61 (Tex. App.

— Eastland 2003, no pet.) (holding that expert report was inadequate on plaintiff’s failure

- to
- diagnose

- back

- injury claim because report did not indicate that plaintiff would have satisfactorily recovered from back injury but for the alleged failure to diagnose) . To the extent Butler argues otherwise in her first and second issues, we overrule them. Butler also argues that her claims against Appellees are not healthcare

liability claims. We review de novo whether a cause of action is a healthcare

liability claim. Tex. W. Oaks Hosp., LP v. Williams , 371 S.W.3d 171, 177 (Tex.5

2012). In determining whether Butler’s claims ar e healthcare

- liability claims, we examine the underlying nature of the claim and are not bou nd by the form of the pleading. See Diversicare Gen. Partner, Inc. v. Rubio , 185 S.W.3d 842, 848 (Tex. 2005); Garland Cmty. Hosp. v. Rose , 156 S.W.3d 541, 543 (Tex

. 2004). We must focus on the essence of the claims and consider the alleged wrongful conduct and the duties allegedly breached, rather than the injuries allegedly suffered. Diversicare , 185 S.W.3d at 851. A healthcare

- liability claim may not be
recast as another cause of action to avoid the expert
- report requirement. See id

. Butler’s petition alleges that Appellees did not accurately diagnose her leg injuries so that her leg injuries were left untreated. As set forth above, this allegation asserts a healthcare

- liability claim that requires an expert report to be filed. The underlying nature of Butler’s claim is to hold Appellees liable for the medical care they did or did not provide to her; Butler cannot recast her claim on appeal into a “unprofessi onal conduct [rude] and emotional harm” claim. See id

. To the extent Butler’s first and second issues seek to recast her pleaded claim into a non healthcare

- liability claim to avoid the requirements of chapter 74, we overrule them. In her third issue, Bu tler argues that the expert

- report requirement diminishes the right to a jury trial. Appellees point out that Butler did not raise this complaint in the trial court and argue that to the extent she purports to make a constitutional challenge on appeal to the statutory expert

- report requirement, her constitutional challenge is not preserved. We mu st agree , and we generally6

do not favor reversing a trial court’s ruling on unpreserved error. See Tex. R. App. P. 33.1(a)(1) (providing that to preserve a compl aint for appellate review, the complaining party must present the complaint to the trial court by timely request, objection, or motion ); Sw. Elec. Power Co. v. Grant , 73 S.W.3d 211, 222 (Tex. 2002) (holding party failed to raise constitut ional argument tha t trial court’ s ruling violated open

- courts provision a nd thus did not preserve it for appeal); Dreyer v. Greene , 871 S.W.2d 697, 698 (Tex. 1993) (holding party waived due

process and equal

- protection challenges by failing to raise them in trial court) ; Bi rdo v. Ament

, 814 S.W.2d 808, 811 (Tex. App.

— Waco 1991, writ denied) (holding pro se appellant waived constitutional complaints to dismissal of his lawsuit by not raising the constitutional challenges in the trial court)

. Because the error alleged in Butl er’s third issue was not raised in the trial court , it i s waived. We overrule Butler’s third issue. Having addressed each of Butler’s three issues and having overruled her issues and complaints, we hold that the trial court did not abuse its discretion b y dismissing Butler’s claims against Appellees. We affirm the trial court’s dismissal order. /s/ Sue Walker SUE WALKER JUSTICE PANEL: GARDNER , WALKER, and MCCOY, JJ. DELIVERED: September 18, 2014