Under section 74.351 of the Texas Civil Practice and Remedies Code, any
person who has brought a suit asserting a health care liability claim must, within 120 days of filing
the claim, provide an expert report for each physician or health care provider against whom the
claim is asserted. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2006). If
the claimant does not provide an expert report as required, the trial court must, upon motion by
the defendant, dismiss the claim with prejudice. Id. § 74.351(b). A health care liability claim is
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.
Id. § 74.001(a)(13) (Vernon 2005).
Numerous opinions have been issued by both the Texas Supreme Court and
the Texas courts of appeals holding that a plaintiff cannot avoid the requirements of chapter 74
and its predecessor legislation by attempting to recast a health care liability claim as a different
cause of action through artful pleading. See, e.g., Diversicare Gen. Partner, Inc. v. Rubio,
185 S.W.3d 842, 851 (Tex. 2005); Murphy v. Russell, 167 S.W.3d 835, 838-39 (Tex.
2005); Earle v. Ratliff, 998 S.W.2d 882, 893 (Tex. 1999); MacGregor Med. Ass'n v.
Campbell, 985 S.W.2d 38, 40 (Tex. 1998); Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.
1995); Gormley v. Stover, 907 S.W.2d 448, 450 (Tex. 1995); Sorokolit v. Rhodes, 889
S.W.2d 239, 242 (Tex. 1994); Boothe v. Dixon, 180 S.W.3d 915 (Tex. App.-Dallas 2005,
no pet.); Williams v. Walker, 995 S.W.2d 740, 741 (Tex. App.-Eastland 1999, no pet.).
Whether a claim is a health care liability claim is a question of law we review de novo. Dixon,
180 S.W.3d at 919.
In determining whether a claim is subject to the requirements of chapter 74, we
focus on the nature and essence of the claim rather than the way it was pleaded. See Rubio,
185 S.W.3d at 851. We consider the alleged wrongful conduct as well as the duties allegedly
breached. Id. We also consider whether expert testimony is necessary to show breach of an
applicable standard of care. See Boothe, 180 S.W.3d at 919. However, a claim may be a
health care liability claim and not require expert testimony to prevail at trial. See Murphy, 167
S.W.3d 838. If the factual allegations are related to the medical treatment provided by the
defendant and constitute “an inseparable part of [the defendant's] rendition of medical
services,” then the plaintiff's claim is a health care liability claim subject to the requirements of
chapter 74. See Walden, 907 S.W.2d at 448; Williams, 995 S.W.2d at 741.
Lee argues her DTPA claims are not health care liability claims because she is
not alleging that Boothe violated a standard of care but that he failed to fulfill the promises and
guarantees made in his advertisements. Lee contends her claims are similar to those in Sorokolit
v. Rhodes. In Sorokolit, the plaintiff alleged the defendant doctor knowingly breached an
express warranty of a particular result and knowingly misrepresented his skills and the results he
could achieve. See Sorokolit, 889 S.W.2d at 242. The supreme court held the plaintiff's DTPA
claims were not health care liability claims because they did not involve negligence. Id. at
242-43. Since Sorokolit, the supreme court has routinely noted the limited scope of its ruling in
that case and emphasized that if the underlying nature of the claim is negligence in the rendition of
medical services, the plaintiff may not recast his allegations as a DTPA claim to avoid the
statutory restrictions on health care liability claims. See MacGregor, 985 S.W.2d at 40-41.
this case, Lee's factual allegations are, in essence, claims of
negligence. All of Lee's injuries arise out of the allegedly wrongful manner in which Boothe conducted the
operation on Lee's eyes. Section 74.004 of the civil practice and remedies code specifically
prohibits claims under the DTPA “for damages for personal injury or death resulting, or alleged
to have resulted, from negligence on the part of any physician or health care provider.” Tex.
Civ. Prac. & Rem. Code Ann. § 74.004 (Vernon 2005). Because the underlying nature of
Lee's alleged DTPA claims is negligence in the rendition of medical services, we conclude the
trial court properly applied the requirements of chapter 74 when it dismissed Lee's claims.
next argues the trial court erred in dismissing her claim for assault
because Boothe's “physical attack” on her was not an inseparable part of the rendition of medical
services. We disagree. The “attack” involved Boothe's alleged use of excessive force during
an operation. A determination of whether the force used by Boothe was, in fact, excessive
necessarily requires expert testimony on the appropriate standard of care and whether that
standard of care was breached. Accordingly, Lee's assault claim is a health care liability claim
subject to the expert report requirements of chapter 74. See Rubio, 185 S.W.3d at 851. We
conclude the trial court properly dismissed Lee's claim for assault.
Finally, Lee argues the trial court erred in dismissing her fraud claim because
the claim has nothing to do with Boothe's rendition of medical services. Lee's fraud claim is
based on Boothe's alleged misrepresentation that he would correct her vision to 20/20 or the
procedure was free. The fact that Lee alleges Boothe made this misrepresentation knowingly
does not affect the underlying nature of the claim. See Dixon, 180 S.W.3d at 920. To show that
Boothe violated his guarantee, Lee must provide expert testimony to show that he failed to
correct her vision. Her claim, therefore, centers on the medical treatment provided by Boothe
and the quality of that care. Again, the essence of Lee's claim is negligence in the rendition of
health care. See Walden, 907 S.W.2d at 448. The trial court did not err in dismissing Lee's
fraud claim for failure to file an expert report.
We conclude the trial court properly applied section 74.351 of the Texas Civil
Practice and Remedies Code to Lee's claims for violations of the DTPA, assault, and fraud. We
affirm the trial court's judgment.
JOSEPH B. MORRIS