Vanderwerff v. Beathard

• Decision Date: 01 November 2007
• Docket Number: No. 05-07-00128-CV.,05-07-00128-CV.
• Parties: Eric VANDERWERFF, D.C., d/b/a Millennium Chiropractic & Scoliosis Center, Appellant v. Kristina BEATHARD, Appellee.
• Court: Texas Court of Appeals

239 S.W.3d 406

Eric VANDERWERFF, D.C., d/b/a Millennium Chiropractic & Scoliosis Center, Appellant v. Kristina BEATHARD, Appellee.

No. 05-07-00128-CV.

Court of Appeals of Texas, Dallas.

November 1, 2007.

Stephen G. Good and Brenda Neel Hight, Fletcher & Springer, L.L.P., Dallas, for Appellant.

Jay Crismon Vecchio, Vecchio & Vecchio, Grand Prairie, TX, for Appellee.

Before Justices RICHTER, FRANCIS, and LANG-MIERS.

OPINION

Opinion by Justice RICHTER.

In a single issue, appellant Eric Vanderwerff, D.C., d/b/a Millennium Chiropractic & Scoliosis Center challenges the trial court's order denying his motion to dismiss on the ground that appellee Kristina Beathard failed to comply with the expert report requirements of section 74.351(b) of the Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b) (Vernon 2005). Because we conclude that the Beathard's claims are "health care liability claims" subject to the requirements of section 74.351(b), we resolve appellant's issue in his favor. We reverse the judgment of the trial court, render judgment dismissing Beathard's claims with prejudice, and remand the case solely for a determination of reasonable attorney's fees and costs of court incurred by Vanderwerff.

A. Background

Beathard presented to Vanderwerff, a chiropractor, complaining of pain in her neck, wrists, ankle, and left knee. She also indicated the pain extended from her knee to upper thigh. Beathard claimed Vanderwerff rubbed her genitals during the examination. As a result, Beathard sued Vanderwerff in tort for assault.¹ When Beathard failed to file an expert report as required by section 74.351(b) of the MLIIA, Vanderwerff moved to dismiss her claim. The trial court denied the motion to dismiss, and this interlocutory appeal ensued.

In a single issue, Vanderwerff argues the trial court erred by denying his motion to dismiss because Beathard's claim for sexual assault is the artful pleading of a health care liability claim subject to dismissal for noncompliance with the expert report requirement of the Texas Medical Liability and Insurance Improvement Act (the MLIIA)². Based on our review of the record and the applicable law, we agree.

B. Standard of Review

When the resolution of an issue on appeal requires the interpretation of a statute, the court applies a de novo standard of review. Groomes v. USH of Timberlawn, Inc., 170 S.W.3d 802, 804 (Tex. App.-Dallas 2005, no pet.). Thus, in determining whether Beathard's claim is a "health care liability claim" for the purpose of applying chapter 74 of the Civil Practice and Remedies Code, we apply a de novo standard of review. See Ponce v. El Paso Healthcare Sys., Ltd., 55 S.W.3d 34, 36 (Tex.App-El Paso 2001, pet.denied); Boothe v. Dixon, 180 S.W.3d 915, 919 (Tex. App.-Dallas 2005, no pet.).

C. Applicable Law

Section 74.351(a) of the civil practice and remedies code requires that a claimant bringing a health care liability claim must, not later than the 120th day after filing suit, serve on each party or the party's attorney one or more expert reports for each physician or health care provider against whom a liability claim is being asserted. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp.2006). If a report has not been served by the 120-day deadline, the statute requires that upon motion by the affected physician or health care provider, the trial court "shall" dismiss the action with prejudice and award reasonable attorney's fees and costs. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b) (Vernon Supp.2006). The expert report requirements apply to a patient's claims regardless of whether they are tort claims, as long as the claims fall within the statutory definition of "health care liability claims." Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex.2005). A health care liability claim is defined 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 or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.

TEX. CIV. PRAC. & REM.CODE ANN. § 74.001(a)(13) (Vernon 2005). When the essence of the suit is a health care liability claim, a party cannot avoid the requirements of the statute through the artful pleading of his claim. Diversicare, 185 S.W.3d at 848; Garland Community Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004); MacGregor Med. Ass'n v. Campbell, 985 S.W.2d 38, 40 (Tex.1998). The Texas Supreme Court has instructed that the determination of whether a claim falls within the definition of a health care liability claim requires an examination of the underlying nature of the claim. Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994); Groomes, 170 S.W.3d at 806. If the act or omission that forms the basis of the complaint is an inseparable part of the rendition of health care services, or if it is based on a breach of the standard of care applicable to health care providers, then the claim is a health care liability claim. Garland Community Hosp., 156 S.W.3d at 544 (citing, Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995)); MacPete v. Bolomey, 185 S.W.3d 580, 584 (Tex.App.-Dallas 2006, no pet.). Plaintiffs cannot avoid the MLIIA by artful pleading or recasting their causes of action as something other than health care claims. See MacPete, 185 S.W.3d at 584. In our application of this core analysis, we are mindful of the Texas Supreme Court's concern that the application of a "rigid temporal distinction would create a large loophole, rendering the MLIIA inapplicable to a substantial number of claims against health care providers." Id. at 546. Within these parameters, we examine whether the underlying nature of the claim in this case is so inextricably interwoven with the rendition of health care services as to constitute a health care liability claim. See Garland Community Hosp. 156 S.W.3d at 546.

D. Beathard's Claims

Vanderwerff was performing a chiropractic examination of Beathard when the alleged conduct giving rise to the claim occurred. According to Vanderwerff, he was using subjective means to manipulate Beathard's musculoskeletal system. The record reflects Beathard presented to Vanderwerff complaining of pain in her neck, wrists, ankle, and left knee. Beathard was also asked to place an "X" on an anatomical drawing to indicate the areas where she was experiencing pain. In addition to the...