Bryant v. Brazos Kidney Disease Ctr.

Decision Date28 January 2021
Docket NumberNO. 14-19-00024-CV,14-19-00024-CV
CourtTexas Court of Appeals

On Appeal from the 170th District Court McLennan County, Texas

Trial Court Cause No. 2018-846-4


Reginald and Freda Bryant, both appearing pro se, challenge the trial court's orders dismissing their lawsuit based on their failure to comply with the expert-report requirement found in the Texas Medical Liability Act ("the TMLA"). In three issues, Appellants contend that their claims for "libel by health-care professionals" and for falsification or fabrication of medical records are not claims governed by the Act; alternatively, they argue that the medical records at issue are not so "directly connected" to Reginald's health care that they are governed by the TMLA. We affirm.


This case arises out of Reginald Bryant's treatment for end-stage renal disease at Appellee Brazos Kidney Disease Center ("Center"). Appellee Robert J. Go, MD, an employee-member of Appellee Central Texas Nephrology Associates, P.A. ("CTNA"), was Reginald's supervising physician. Appellees Adele Mary Gadlin, RN, Kay Dunlap, LMSW, Jennifer Robinson, RLD and Laura Dailey, RLD were employees of the Center.2 The record before us shows Reginald's course of treatment at the Center involved in-center hemodialysis, with each session requiring several hours to complete, and with appointments every two to four days. Bryant began treatment in January 2013 and continued to receive treatment at the Center for over four years.

Throughout his treatment at the Center, Reginald's progress was evaluated periodically and noted on "Interdisciplinary Team Evaluation of Stability Status" ("ITESS") forms. Beginning in February 2017, these ITESS evaluations recorded "disruptive" and "abusive" behavior toward doctors and staff during treatment and identified Reginald as being "at risk for involuntary discharge or transfer." Each of the ITESS forms in question were signed by Go, Gadlin, Dunlap and either Robinson or Dailey.

By letter dated September 14, 2017, Reginald was discharged as a patient by CTNA. The discharge letter cited Reginald's "continued refusal to communicate with your Nephrology Medical Team" along with his "disruptive and hostile behavior [which] endangers your care as well as that of adjacent patients," as the basis for his discharge. That same day, the Center discharged Reginald because he no longer had a supervising physician.

On March 7, 2018, the Bryants, appearing pro se, filed suit in McLennan County against Appellees. The Bryants' First Amended Original Petition asserts claims for defamation (based on allegedly false statements on Reginald's ITESS forms), intentional infliction of emotional distress (based on those allegedly false statements and those in his discharge letter), negligence "due to the Physician/Patient relationship," and negligence per se (based on a violation of Tex. Penal Code §37.10). The Bryants contend the ITESS entries were false and defamatory and caused him harm by making it more difficult to transfer to a different clinic to continue his treatment. The Bryants sought monetary damages in connection with those claims.

Appellees CTNA and Go answered on March 16, 2018, asserting special exceptions and affirmative defenses to the Bryants' claims; they filed a Motion to Dismiss five months later, on August 15. Appellees Gadlin, Dunlap, Robinson, Dailey and the Center likewise answered on March 30, 2018, asserting special exceptions and affirmative defenses, and moved to dismiss the Bryants' claims on August 17, 2018. Both Motions to Dismiss asserted that the Bryants claims were in fact health care liability claims subject to the TMLA, and that the Bryants' failure to file an initial expert report in support of those claims within the 120-day time frame required by the TMLA precluded their causes of action. Tex. Civ. Prac. & Rem. Code §74.351(a). The motions further contended that the medical recordsat issue were "professional or administrative services directly related to health care" and that any claims arising out of those services were health care liability claims subject to the TMLA. The Bryants' response included more than 550 pages of Reginald's medical records as exhibits. The Bryants also moved for traditional summary judgment on their claims.

On September 27, 2018, the trial court signed two orders dismissing the Bryants' claims with prejudice and denying summary judgment to the Bryants. The Bryants filed a Motion for New Trial on October 1, 2018; that motion was denied by order dated October 22, 2018. This appeal followed.


In three issues, the Bryants3 dispute the trial court's application of the TMLA to their causes of action.4 They contend, first, that the trial court erred in dismissing their cause of action for defamation because "defamation by [a] health care professional" is not subject to the TMLA's requirement of an initial expert report; second, that their claim for "falsification and fabrication of medical records" is not subject to the TMLA; and third, that the medical records at issue do not qualify as the type of "professional and administrative services" made subject to the TMLA.


We review the trial court's decision to grant a motion to dismiss under the TMLA for an abuse of discretion. McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003). Under this standard, the appellate court defers to a trial court'sfactual determinations, but reviews de novo questions of law involving statutory interpretation. Univ. of Tex. Health Sci. Ctr. at Houston v. Joplin, 525 S.W.3d 772, 776 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). A trial court has no discretion in determining what the law is or applying the law to the facts. Univ. of Tex. Med. Branch at Galveston v. Callas, 497 S.W.3d 58, 62 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).

The dispositive question in this appeal -- whether the Bryant's causes of action are "health care liability claims" subject to the TMLA -- is primarily one of statutory interpretation. Loaisiga v. Cerda, 379 S.W.3d 248, 254-255 (Tex. 2012). When construing a statute, our goal "is to determine and give effect to the Legislature's intent" beginning with the "plain and common meaning of the statute's words." Tex. W. Oaks Hosp. L.P. v. Williams, 371 S.W.3d 171, 177 (Tex. 2012)(internal quotation omitted). Whether a claim is a health care liability claim under the TMLA is a question of law that we review de novo. Id. In determining the question, we examine the underlying nature and gravamen of the claim, rather than the way it is pleaded. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004).

The TMLA, which is codified at Chapter 74 of the Civil Practice and Remedies Code, was first enacted in 2003 as a comprehensive, top-to-bottom medical-malpractice reform measure to "make affordable medical and health care more accessible and available to the citizens of Texas," and to "do so in a manner that will not unduly restrict a claimant's rights any more than necessary to deal with the crisis." Methodist Healthcare Sys. of San Antonio Ltd., L.L.P. v. Rankin, 307 S.W.3d 283, 287 (Tex. 2010) (internal citations omitted).

At issue here is the TMLA's definition of a health care liability claim:

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). Plaintiffs asserting a health care liability claim must file an expert report in support of that claim within 120 days of the filing of a defendant's original answer. Id. §74.351(a). If, as here, no report is filed, the trial court must dismiss the claim with prejudice upon motion of an affected party. Id. §74.351(b). The purpose of this "threshold" expert report requirement is intended as a "substantive hurdle that helps ensure frivolous claims are eliminated quickly." Spectrum Healthcare Res., Inc. v. McDaniel, 306 S.W.3d 249, 253 (Tex. 2010).

Courts have distilled from this statutory definition a three-prong test. If (1) the defendant is a health care provider or physician; (2) the claimant's cause of action is 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; and (3) the defendant's alleged departure from accepted standards proximately caused the claimant's injury or death, then the cause of action is a health care liability claim. Tex. W. Oaks Hosp., 371 S.W.3d at 179-180.

In subsequent cases, the Supreme Court has further refined this three-part test into a working presumption. Relying on the TMLA's consistent use of broad language — particularly the statute's expansive definition of "health care"the Court found the TMLA "essentially creates a presumption that a claim is [a health-care liability claim] if it is against a physician or health care provider and is basedon facts implicating the defendant's conduct during the course of a patient's care, treatment, or confinement." Loaisiga, 379 S.W.3d at 256. The presumption can be rebutted on a showing that "the only possible relationship between the conduct underlying a claim and the rendition of medical services or healthcare will be the healthcare setting . . . the defendant's status as a doctor or health care...

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