Bioderm Skin Care, LLC v. Sok

• Decision Date: 28 March 2014
• Docket Number: No. 11–0773.,11–0773.
• Citation: 426 S.W.3d 753,57 Tex. Sup. Ct. J. 390
• Parties: BIODERM SKIN CARE, LLC and Quan Nguyen, M.D., Petitioners, v. Veasna “Sandee” SOK, Respondent.
• Court: Texas Supreme Court

426 S.W.3d 753

57 Tex. Sup. Ct. J. 390

BIODERM SKIN CARE, LLC and Quan Nguyen, M.D., Petitioners,

v.Veasna “Sandee” SOK, Respondent.

No. 11–0773.

Supreme Court of Texas.

Argued Sept. 9, 2013.

Decided March 28, 2014.

Caroline Clore Block, Elizabeth M. Fraley, Fraley & Fraley LLP, Diana L. Faust, Kyle M. Burke, R. Brent Cooper, Richard Clark Harrist, Cooper & Scully, P.C., Dallas, TX, for Petitioners.

Coury Matthews Jacocks, Addison, Matthew Sharp, The Law Offices of Coury M. Jacocks, Dallas, TX, for Respondent.

Justice GUZMAN delivered the opinion of the Court.

This Court has addressed the scope of the Texas Medical Liability Act on a number of occasions since its enactment in 2003. The Act requires claimants asserting health care liability claims to substantiate their claims with an expert report. Today, we determine whether claims arising out of allegedly improper laser hair removal constitute health care liability claims, and thus fall within the purview of the Act.

We recently established a rebuttable presumption that claims against physicians or health care providers based on facts implicating the defendant's conduct during the patient's care, treatment, or confinement are health care liability claims.¹ Here, the claimant alleges that too high an intensity setting caused burns and scars on her legs during the course of her laser hair removal treatment. We conclude the health care liability claim presumption applies in this case.

Further, we hold the claimant has failed to rebut this presumption because expert health care testimony is necessary to prove or refute her claim. Two primary factors guide our conclusion that such testimony is required. First, under federal regulations, the laser used by the defendants in this case may only be purchased by a licensed medical practitioner for supervised use in her medical practice.² Testimony concerning whether its operation departed from accepted standards of health care must therefore come from a licensed physician. Second, we have long held that the use of a “medical instrument which requires extensive training and experience for proper use” is not a matter plainly within the common knowledge of laymen.³ Here, the defendant physician trained laser operators for at least six months on the variables associated with patients and equipment. Moreover, he determined the laser's intensity setting for the specific treatment at issue in this appeal. Accordingly, expert health care testimony is needed to prove or refute the claim.

Because the claimant has not rebutted the presumption that her claim is a health care liability claim, her failure to serve an expert report precludes her suit against a physician and a health care provider. Because the trial court denied the defendants' motion to dismiss and the court of appeals affirmed, we therefore reverse the court of appeals' judgment and remand for the trial court to dismiss the claim.

I. Background

In October 2006, Veasna “Sandee” Sok purchased seven laser hair removal treatments from Bioderm Skin Care, LLC (Bioderm). At the beginning of her fifth treatment, administered in July 2007, Sok expressed dissatisfaction with the results of her previous treatments to the laser operator. The operator relayed Sok's concerns to Dr. Quan Nguyen, who—after reviewing Sok's medical file—instructed the operator to increase the laser's intensity by one setting (from level five to level six) for Sok's fifth treatment. That treatment allegedly burned and scarred Sok's legs, the severity of which the parties dispute.⁴ Sok met with Dr. Nguyen shortly after the burns occurred, and he prescribed a topical burn cream to treat the area. Dr. Nguyen instructed Sok to return for reevaluation in one week, but she did not return.

In July 2009, Sok sued Bioderm, claiming it was vicariously liable for the laser operator's negligence, and Dr. Nguyen, claiming he was liable for Bioderm's negligence because Bioderm was his agent. In their answer, Bioderm and Dr. Nguyen responded that Sok's claim was a health care liability claim under section 74.001(a)(13) of the Texas Medical Liability Act. Thus, when Sok did not serve an expert report within 120 days of filing her original petition, Bioderm and Dr. Nguyen moved to dismiss Sok's claim. SeeTex. Civ. Prac. & Rem.Code § 74.351(a). The trial court denied the motion to dismiss, and Bioderm and Dr. Nguyen filed an interlocutory appeal. The court of appeals affirmed the trial court's denial after determining that laser hair removal did not constitute “treatment.” ⁵ We granted Bioderm and Dr. Nguyen's petition for review.

II. Jurisdiction

As an initial matter, we must determine whether we have jurisdiction over this interlocutory appeal. Interlocutory orders denying all or part of the relief sought in a motion to dismiss pursuant to the Medical Liability Act are appealable. Tex. Civ. Prac. & Rem.Code § 51.014(a)(9). We may consider an interlocutory appeal when the court of appeals' decision conflicts with a previous decision of another court of appeals or this Court on an issue of law material to the disposition of the case. Tex. Gov't Code §§ 22.001(a)(2), (e); id. § 22.225(c). To date, three courts of appeals have concluded claims arising from laser hair removal treatment are not health care liability claims; ⁶ three others have concluded they are health care liability claims.⁷ Because the court of appeals' opinion conflicts with three prior court of appeals' opinions on an issue of law material to the disposition of this appeal, we have jurisdiction over this interlocutory appeal. Seetex. Gov't CodeE §§ 22.001(a)(2), (e); id. § 22.225(c).

III. Discussion

Whether Sok's claim is a health care liability claim is a question of law we review de novo. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex.2012). When construing a statute, we give it the effect the Legislature intended. See Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.2009). The best expression of the Legislature's intent is the plain meaning of the statute's text. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011). More particularly, the broad language of the Medical Liability Act evinces legislative intent for the statute to have expansive application. Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex.2012). In determining whether Sok's claim is a health care liability claim, we focus on the underlying nature of the cause of action and are not bound by the pleadings. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex.2005).

The Medical Liability Act defines a health care liability claim as:

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.

Tex. Civ. Prac. & Rem.Code § 74.001(a)(13). In Texas West Oaks, we observed that this statutory definition contains three elements:

(1) a physician or health care provider must be a defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's act or omission complained of must proximately cause the injury to the claimant.

371 S.W.3d at 179–80. No one element, occurring independent of the other two, will recast a claim into a health care liability claim.

The parties here do not contest causation. Rather, their disputes center around two primary questions: whether Bioderm is a physician or health care provider and whether Sok's claim is for medical care or health care. To answer these questions, we first reiterate our recent holding that the Medical Liability Act “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, 379 S.W.3d at 252. As explained below, we conclude Dr. Nguyen is a physician and Bioderm, as an affiliate of a physician, is a health care provider. We further hold the rebuttable health care liability claim presumption applies and Sok has not rebutted that presumption.

A. Physician or Health Care Provider

Dr. Nguyen and Bioderm must be physicians or health care providers for the rebuttable presumption to apply. Id.;Tex. W. Oaks, 371 S.W.3d at 179–80. No party disputes that Dr. Nguyen is a physician as defined by the Medical Liability Act. Rather, the crux of the parties' disagreement on this question is whether Bioderm qualifies as a health care provider. Because Bioderm is an affiliate of a physician, we conclude it is a health care provider under the Medical Liability Act.

The Medical Liability Act defines a health care provider to include, inter alia, an affiliate of a physician. SeeTex. Civ. Prac. & Rem.Code § 74.001(a)(12)(B)(i). The statute defines “affiliate” as “a person who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a specified person, including any direct or indirect parent or subsidiary.” Id. § 74.001(a)(1). And the statute defines control as “the possession of the power to direct the management and policies of the person” through ownership. Id. § 74.001(a)(3). Therefore, if we determine Dr. Nguyen directly or indirectly controls Bioderm, then we must conclude Bioderm is Dr. Nguyen's affiliate and is a health care provider under the Act. Id. §§ 74.001(a)(1), (a)(12)(B)(i).

The record establishes that Dr. Nguyen is the sole owner of Bioderm and possesses the power to direct its management and policies. A...