Zertuche v. Wessels
| Decision Date | 14 November 2018 |
| Docket Number | No. 04-18-00429-CV,04-18-00429-CV |
| Parties | Benjamin Scott ZERTUCHE, Appellant v. Chelsae WESSELS and Joey Urrabazo, Appellees |
| Court | Texas Court of Appeals |
From the 218th Judicial District Court, Atascosa County, Texas
Honorable Karen H. Pozza, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice
DISMISSED WITH PREJUDICE IN PART; REMANDED
This is an interlocutory appeal from the trial court's order ruling on a physician's motion to dismiss health care liability claims against him. Because the claims based on the set of facts relating to medical care were health care liability claims (HCLCs), and the plaintiffs did not timely serve an expert report, the HCLCs should have been dismissed. The claims based on the other set of facts—distinguishable by time and nature—are not subject to dismissal for lack of an expert report.
BACKGROUND
In conjunction with his divorce proceeding, Appellant Dr. Benjamin S. Zertuche sued Appellee Chelsae Wessels, his former mistress, for nine causes of action related to a health care business.
Wessels counterclaimed against Dr. Zertuche, a physician trained in obstetrics and gynecology, for assault, intentional infliction of emotional distress, and loss of consortium. Joey Urrabazo, who married Wessels in June 2016, sued Dr. Zertuche for intentional infliction of emotional distress and loss of consortium. To support their tort claims, Wessels and Urrabazo alleged facts spanning several years.
In 2009, shortly after Wessels began an intimate relationship with Dr. Zertuche, she became pregnant with Dr. Zertuche's child. Dr. Zertuche did not want the child, intentionally misinformed Wessels about the health of her unborn child, performed medical tests and treatments on her, and eventually subjected her to an abortion.
In January 2012, Dr. Zertuche violently pushed her onto a bed, pinned her down, and threatened her with violence. In February 2012, Dr. Zertuche held her in his vehicle for over five hours, smashed her head into the dashboard and the vehicle's window, and again threatened her. And in January 2014, Dr. Zertuche screamed at her, slammed her head against the wall, hit her head, grabbed her by the face, yelled directly into her ears, and threatened her with violence.
Dr. Zertuche filed a motion to dismiss their claims. He argued the claims were health care liability claims (HCLCs), and because Wessels did not serve the required expert report, the trial court was required to dismiss the claims with prejudice and award him reasonable attorney's fees and costs of court.
Without dismissing any of the claims, the trial court granted the motion to dismiss but denied Dr. Zertuche attorney's fees because "none of the claims alleged malpractice under the [Texas Medical Liability] Act."
Dr. Zertuche appeals.
STANDARDS OF REVIEW
"We generally review a trial court's ruling on a motion to dismiss a health care liability claim for an abuse of discretion." PHCC—La Hacienda Rehab. & Health Care Ctr. LLC v. Crume, 492 S.W.3d 797, 800 (Tex. App.—Houston [1st Dist.] 2016, no pet.); see Schwartz v. Fipps, 553 S.W.3d 549, 552 (Tex. App.—San Antonio 2018, no pet.). But determining whether a "claim is a health care liability claim is a question of law we review de novo." See Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 757 (Tex. 2014) (citing Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012)).
HEALTH CARE LIABILITY CLAIMS
The Texas Medical Liability Act (TMLA) defines 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 ANN. § 74.001(a)(13); see Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012) ().
The Texas Supreme Court has "determined that a claim based on one set of facts cannot be spliced or divided into both an HCLC and another type of claim." Loaisiga, 379 S.W.3d at 255(citing Yamada v. Friend, 335 S.W.3d 192, 197 (Tex. 2010)). Loaisiga explained this claim-splitting prohibition further:
[C]laims premised on facts that could support claims against a physician or health care provider for departures from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care are HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach of any of those standards.
Id. ).
"[P]ermitting the same underlying facts to give rise to both types of claims would effectively negate the procedures and limitations of the TMLA." Turtle Healthcare Grp., L.L.C. v. Linan, 337 S.W.3d 865, 868 (Tex. 2011) (per curiam) (citing Yamada, 335 S.W.3d at 196-97). Thus, "[w]hen a plaintiff asserts a claim that is based on the same underlying facts as an HCLC that the plaintiff also asserts, both claims are HCLCs and must be dismissed if the plaintiff fails to produce a sufficient expert report." PM Mgmt.-Trinity NC, LLC v. Kumets, 404 S.W.3d 550, 552 (Tex. 2013) (per curiam); accord Loaisiga, 379 S.W.3d at 255; Yamada, 335 S.W.3d at 196-97.
The claim-splitting prohibition is addressed in cases where "the gravamen or essence of a cause of action is a health care liability claim." E.g., Yamada, 335 S.W.3d at 197 (citing Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 854 (Tex. 2005)) (proscribing claim splitting for HCLCs). The prohibition applies when the claims are "based on one set of facts," Loaisiga, 379 S.W.3d at 255, "based on the same factual allegations," Kumets, 404 S.W.3d at 552, or "based on the same underlying facts," Turtle Healthcare, 337 S.W.3d at 868; Yamada, 335 S.W.3d at 193.
WESSELS'S ASSAULT, IIED CLAIMS
In his first issue, Dr. Zertuche argues the trial court erred by not dismissing Wessels's assault and intentional infliction of emotional distress (IIED) claims because the claims are HCLCs and it is undisputed that no expert report was served.
Wessels contends her claims should not be dismissed because they are not HCLCs. In her view, she has not alleged HCLCs because she does not assert that Dr. Zertuche departed from any accepted standards of care, and she only included the medical care facts to show Dr. Zertuche's history of dealing with her and as a defense for his claims pertaining to the health care business.
Wessels's first set of alleged facts occurred in July-August 2009 and the facts pertain to her pregnancy and abortion.1 She alleges that in July 2009, after she told Dr. Zertuche she was pregnant with his child, he told her he felt the baby was not healthy. He intentionally misled her about the condition of her unborn child and falsely stated she had undergone a "missed abortion." He ordered medical tests to determine her pregnancy hormone levels, and despite the normal test results, he told her the unborn child was not healthy. He administered injections and oral medications that he told her would improve her hormone levels, but he later admitted the injections and medications were intended to induce a miscarriage or abortion.
Dr. Zertuche convinced Wessels to stop seeing her physician and entrust him with her medical care, which she did. Dr. Zertuche performed an ultrasound on Wessels. Although he told her at the time that the baby no longer had a heartbeat and the pregnancy was no longer viable, he later admitted he turned off the sound and held the ultrasound wand to make it appear as if the baby had no heartbeat.
On the morning of August 28, 2009, Dr. Zertuche took Wessels to a hospital, admitted her, performed an abortion, and then discharged her.
Dr. Zertuche argues that the facts Wessels alleges could support an HCLC. With respect to the pregnancy and abortion facts, we agree.
First, it is undisputed that Dr. Zertuche is a physician. See Loaisiga, 379 S.W.3d at 255 (). Second, Wessels supports her assault claim with facts pertaining to how Dr. Zertuche diagnosed her pregnancy, treated her "missed abortion," and performed medical tests and procedures on her. See id. (). Third, Wessels's facts could support a claim that Dr. Zertuche "depart[ed] from accepted standards [and] proximately caused [her] injury." See id. (third element).
Even though Wessels expressly states she is not alleging Dr. Zertuche departed from accepted standards of care, her statement does not prevent her assault claim from being an HCLC. See id. (). Wessels's pregnancy and abortion facts could support an HCLC, and thus her assault and IIED claims based on the pregnancy and abortion facts are HCLCs. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (HCLC definition); Loaisiga, 379 S.W.3d at 255.
Wessels's second set of alleged facts are separated by time and nature from her pregnancy and abortion facts. This separate set of facts—which occurred in January and February of 2012, and in January of 2014—pertains to incidents of...
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