Lake Jackson Medical Spa, Ltd., Robert Yarish, and Jamie Gutzman v. Erika Gaytan ( 2022 )

Supreme Court of Texas
══════════
No. 20-0802
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Lake Jackson Medical Spa, Ltd., Robert Yarish, M.D., and Jamie
Gutzman,
Petitioners,
v.
Erika Gaytan,
Respondent
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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
═══════════════════════════════════════
Argued October 26, 2021
JUSTICE BOYD delivered the opinion of the Court.
The plaintiff in this case alleges that the defendants negligently
administered various treatments that caused scarring and discoloration
to her skin. The primary issue is whether her claims constitute “health
care liability claims” under the Texas Medical Liability Act. A
preliminary issue is whether the Act prohibited the plaintiff from filing
an amended petition after the Act’s deadline for serving expert reports.
We hold that the Act did not prohibit the plaintiff from filing an
amended petition and that her claims constitute health care liability
claims. Because the plaintiff failed to timely serve an expert report, the
Act requires that her claims be dismissed. We reverse the court of
appeals’ judgment and remand the case to the trial court for an award
of attorney’s fees, as the Act requires.
I.
Background
Erika Gaytan sued Lake Jackson Medical Spa, Ltd., its employee,
aesthetician Jamie Gutzman, and its owner, Dr. Robert Yarish,
complaining that Gutzman negligently performed various skin
treatments that caused scarring and discoloration. Gaytan originally
sued only the Medical Spa and Gutzman, expressly asserting claims for
“medical negligence” involving an “improper and negligent course of
medical treatment.” She later added Dr. Yarish as a defendant in her
first amended petition, alleging he negligently allowed Gutzman to
administer the “medical treatments” even though he knew or should
have known they were “improper and would cause physical harm.”
In their original and first-amended answers, the defendants
moved to limit discovery because Gaytan had not yet served them with
2
an expert report as the Texas Medical Liability Act requires. See TEX.
CIV. PRAC. & REM. CODE § 74.351(a), (s) (limiting discovery until
claimant serves an expert report). Five months later, the defendants
moved to dismiss Gaytan’s claims because she still had not served an
expert report. See id. § 74.351(b) (requiring dismissal with prejudice and
attorney’s-fees award if claimant fails to serve an expert report within
120 days after each defendant files an original answer).
Gaytan filed a response to the defendants’ dismissal motion,
arguing that the Act does not apply (and thus did not require her to
serve an expert report) because she is not asserting a “health care
liability claim” against any of the defendants. Instead, she argued, she
complains only about “cosmetic skin treatments” she received “purely
for aesthetic reasons.” To support her response, Gaytan attached an
affidavit in which she testified that she was not referred to the Medical
Spa by a medical doctor, she sought only “cosmetic treatment” for acne
and not to address any “disease, disorder or injury,” she does not recall
completing any medical-history or patient-consent forms, she never saw
or consulted with Dr. Yarish, Dr. Yarish never examined or treated her,
and the skin cream Gutzman applied was not a prescription medication.
3
Consistent with her response, Gaytan filed a second-amended
petition the day before the hearing on the defendants’ dismissal motion,
in which she omitted all references to the Act and to “medical”
treatments or negligence. Specifically, where
 she initially alleged she had given pre-suit notice
“[p]ursuant to” the Medical Liability Act, she now
omitted any reference to the Act;
 she initially alleged an “improper and negligent
course of medical treatment,” she now alleged an
“improper and negligent course of cosmetic
treatment”;
 she initially alleged the Medical Spa “is in the
business of providing surgical and non-surgical
medical treatment to its patients,” she now alleged it
“is in the business of providing surgical and non-
surgical cosmetic improvements to its patrons
seeking such cosmetic improvements”;
 she initially alleged she “was a patient at
Defendant’s medical spa,” she now alleged she “was
a patron at” the Medical Spa;
 she initially alleged she “underwent a course of
medical treatment,” she now alleged she “underwent
a course of cosmetic treatment”;
 she initially alleged she sustained scarring and
darkening “as a result of the negligent medical
treatments,” she now omitted that phrase
completely;
 she initially alleged she “was under Ms. Gutzman’s
care” to resolve skin conditions, she now alleged she
4
“was visiting Ms. Gutzman” to resolve those
conditions;
 she initially asserted a claim for “Medical
Negligence,” she now asserted a claim for ordinary
“Negligence”;
 she initially alleged the Medical Spa is “in the
business of providing health care,” she now alleged
it is “in the business of providing cosmetic services”;
 she initially alleged the Medical Spa “owed [Gaytan]
a duty of care as its patient,” she now alleged it
“owed [Gaytan] a duty of care as its customer”; and
 she initially sought damages “for medical
malpractice,” she now omitted that reference
completely. [Emphases added.]
Several key facts Gaytan asserted in support of her claims and
allegations, however, remained consistent in each of her petitions and
in her affidavit. Specifically, as in her earlier petitions, she still alleged
in her second-amended petition and in her affidavit that Dr. Yarish “is
a medical physician who owns and operates” the Medical Spa; the
“treatments” Gaytan received “included L.J. acne treatment, L.J. skin
pen, L.J. phototherapy acne treatment, skin pen spot treatment,
microdermabrasion, and L.J. VI peel treatment for areas on her face and
back”; those treatments “left [Gaytan] with scarring and darkening on
her back and face”; and the defendants’ actions “fell below the applicable
5
standard” of care. Regarding specific breaches of the standard of care,
Gaytan alleged—as she had in her earlier petitions—that the
defendants:
a. failed “to properly evaluate [Gaytan’s] skin condition and
tailor cosmetic[1] treatments pursuant to established
standards of dermatological care”;
b. failed “to properly assess, document, and/or request
[Gaytan’s] medical history, including medications [Gaytan]
was using at the time of the cosmetic[2] treatments”;
c. performed “abrasive dermatological treatment such as VI
peel on [Gaytan] while [Gaytan] was actively using a
tretinoin cream”;
d. failed “to properly instruct [Gaytan] to suspend use of
tretinoin cream in anticipation of abrasive dermatological
treatment such as VI peel”;
e. recommended and prescribed “laser treatment without
determining its effect on [Gaytan’s] ethnic skin”;
f. failed “to properly prepare [Gaytan’s] ethnic skin to safely
accept laser treatment”;
g. failed “to properly adjust laser treatment to be safely
applied to [Gaytan’s] ethnic skin;” and
h. failed “to properly supervise and evaluate Ms. Gutzman’s
cosmetic treatments of [Gaytan’s] skin conditions.”
1The word “cosmetic” did not appear here in the original and first-
amended petitions.
2The word “cosmetic” did not appear here in the original and first-
amended petitions.
6
Regarding the Medical Spa and Dr. Yarish specifically, Gaytan also
alleged that they failed to “use ordinary care in hiring, training and
retaining” Gutzman.
The trial court denied the defendants’ dismissal motion, and the
defendants took an interlocutory appeal. See TEX. CIV. PRAC. & REM.
CODE § 51.014(a)(9) (authorizing interlocutory appeal from order
denying dismissal under section 74.351(b)). The court of appeals
affirmed, 627 S.W.3d 350 (Tex. App.—Houston [14th Dist.] 2020), and
we granted the defendants’ petition for review.
II.
Health Care Liability Claims
The Texas Medical Liability Act requires a claimant who asserts
a “health care liability claim” against a “physician or health care
provider” to serve on each defendant one or more expert reports
describing the expert’s opinions addressing the applicable standards of
care, how the defendant’s conduct failed to meet those standards, and
how those failures caused the claimant’s injury, harm, or damages. TEX.
CIV. PRAC. & REM. CODE § 74.351(a), (r)(6). If a claimant fails to serve
the report within 120 days after the defendant files an original answer,
the trial court must dismiss the claim with prejudice and award the
7
defendant attorney’s fees and costs. Id. § 74.351(b). Gaytan concedes she
never served an expert report on any of the defendants in this case, but
she argues the Act’s requirements do not apply because she did not
assert a “health care liability claim.”
Whether a pleading asserts a health care liability claim presents
a question of law courts review de novo. Baylor Scott & White, Hillcrest
Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019). To answer that
question, we must focus on the claim’s “underlying nature . . . rather
than its label.” Id. To determine the claim’s underlying nature, we must
consider the “entire court record,” including “the pleadings, motions and
responses, and relevant evidence properly admitted.” Loaisiga v. Cerda,
379 S.W.3d 248, 258 (Tex. 2012).
The defendants argue here, however, that the pleadings the trial
court could consider did not include Gaytan’s second-amended petition
because she filed it after the statute’s 120-day deadline for serving an
expert report. So we must first determine which amended petition the
trial court should have considered and then decide whether Gaytan
asserted a health care liability claim.
8
III.
The Relevant Petition
Although Gaytan acknowledges that her first two petitions
expressly asserted health care liability claims, she urged the trial court
to deny the defendants’ dismissal motion because she “filed a Second
Amended Petition which properly sets forth the nature of her claims.”
The defendants urged the court to consider only her first-amended
petition—the live pleading when the 120-day expert-report deadline
passed—because “a health care liability claim cannot be recast as
another cause of action in an attempt to avoid the expert report
requirement.” The trial court denied the dismissal motion without
indicating which petition it considered. The court of appeals concluded
it was proper to “focus on Gaytan’s second amended petition” because
courts must “focus on the underlying nature of the cause of action and
are not bound by the pleadings.” 627 S.W.3d at 350 (citing Diversicare
Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005)). For several
reasons, we agree with the court of appeals’ resolution of this issue of
first impression.
First, the Act’s 120-day deadline expressly applies only to the
serving of an expert report, and not to the filing of amended pleadings.
9
The defendants argue that the 120-day deadline prevents a claimant
from amending pleadings because the Act requires the court to dismiss
the claims if the claimant has not served an expert report by that date.
According to the defendants, their statutory right to dismissal is fixed
when the deadline passes, so any amended pleading filed after the
deadline is irrelevant.
The question here, however, is not whether Gaytan failed to serve
an expert report by the deadline, but whether the report requirement
and deadline apply to her claims at all. Whether they apply depends on
whether Gaytan asserted a “health care liability claim.” TEX. CIV. PRAC.
& REM. CODE § 74.351(a). If she didn’t, the 120-day deadline is
irrelevant; if she did, the deadline required her to timely serve an expert
report. But the deadline does not govern the determination of whether
she asserted a health care liability claim and thus the determination of
whether the deadline applies.
Second, nothing else in the Act addresses pleading amendments
one way or the other. The Act says nothing about whether or when a
claimant can amend her pleadings, either before or after the 120-day
deadline. Our rules generally permit parties to freely amend their
pleadings, so long as doing so does not “operate as a surprise to the
10
opposite party.” TEX. R. CIV. P. 63. Although the Act controls over any
rule that conflicts with the Act’s provisions, see TEX. CIV. PRAC. & REM.
CODE § 74.002, rule 63 does not conflict with any of the Act’s provisions.
Because the defendants have not asserted that Gaytan’s second-
amended petition “operated as a surprise” to them, neither the Act nor
our rules prohibited Gaytan from amending her petition in response to
the defendants’ dismissal motion. 3
Third, the trial court’s consideration of an amended pleading
properly filed in response to a dismissal motion is consistent with the
basis on which the court must determine whether the claimant has
asserted a health care liability claim. In our numerous opinions
addressing how courts must make that determination, we have
repeatedly explained that they must consider “the underlying nature of
the plaintiff’s claim rather than its label” and that parties cannot alter
3 See, e.g., CHCA Woman’s Hosp., L.P. v. Lidji, 403 S.W.3d 228, 233
(Tex. 2013) (holding that a claimant’s nonsuit of a health care liability claim
before the 120-day deadline tolls the deadline until suit is refiled because the
Act “neither expressly allows nor expressly prohibits tolling” and “construing
the expert-report requirement to prohibit tolling in the event of a nonsuit
would interfere with [the claimant’s] absolute right to nonsuit the claims”).
11
that nature “through artful pleading.” Weems, 575 S.W.3d at 363. 4 In
fact, courts making that determination are “not bound by the pleadings,”
Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 758 (Tex. 2014), and
instead must determine the claim’s true “underlying nature” by
considering the “entire court record,” including “the pleadings, motions
and responses, and relevant evidence properly admitted.” Loaisiga, 379
S.W.3d at 258. Whether a claim constitutes a health care liability claim
depends on “the facts underlying the claim, not the form of, or artfully-
phrased language in, the plaintiff’s pleadings describing the facts or
legal theories asserted.” Id. at 255. As a result, claims “premised on facts
4 See also Rogers v. Bagley, 623 S.W.3d 343, 350 (Tex. 2021) (“[W]hen
considering whether claims are [health care liability claims], we focus not on
how the plaintiff pleaded or labeled his claims but, rather, on whether the facts
underlying the claim could support [a health care liability claim].”); Tex. W.
Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 176 (Tex. 2012) (“Causes of action
that are [health care liability claims] cannot be transmuted to avoid the
strictures of the medical liability statute.”); Yamada v. Friend, 335 S.W.3d 192,
196 (Tex. 2010) (“Whether a claim is a health care liability claim depends on
the underlying nature of the claim being made. . . . Artful pleading does not
alter that nature.”); Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 664
(Tex. 2010) (“[I]t is the gravamen of the claim, not the form of the pleadings,
that controls this determination.”); Diversicare, 185 S.W.3d at 847 (“To
determine whether a cause of action is a health care liability claim . . . , we
examine the underlying nature of the claim and are not bound by the form of
the pleading.”); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004)
(“Plaintiffs cannot use artful pleading to avoid the [Act’s] requirements when
the essence of the suit is a health care liability claim. . . . To determine whether
a cause of action falls under the [Act’s] definition of a ‘health care liability
claim,’ we examine the claim’s underlying nature.”).
12
that could support claims” that qualify as health care liability claims are
health care liability claims, regardless of the pleading’s specific
allegations. Id.Logic would dictate that the opposite must also be true: Just as a
claimant cannot avoid the Act’s application by artfully pleading claims
for ordinary negligence or premises liability, she cannot activate the
Act’s application by inartfully pleading claims for “medical negligence.”
In both circumstances, the Act’s application depends not on the labels
contained within the pleading but on the facts revealing the claim’s
underlying nature, as found within the entire record. When those facts
demonstrate that the claims fall within the Act’s definition of a health
care liability claim, the claimant cannot avoid the Act by “splitting
claims into both health care liability claims and other types of claims
such as ordinary negligence claims,” Yamada, 335 S.W.3d at 193–94, 5
5 See also Loaisiga, 379 S.W.3d at 255 (“[A] claim based on one set of
facts cannot be spliced or divided into both [a health care liability claim] and
another type of claim.”); Lindsey v. Adler, No. 05–12–00010–CV, 2013 WL
1456633, at *3–4 (Tex. App.—Dallas Apr. 9, 2013, no pet.) (mem. op.) (“Because
[claimant’s] second amended petition asserting assault and intentional
infliction of emotional distress claims . . . is based on the same facts as the
health care liability claims asserted in her original and first amended petitions,
the record before us reflects the type of claim splitting expressly prohibited by
Yamada.”); Med. Ctr. of Lewisville v. Slayton, 335 S.W.3d 382, 385–86 (Tex.
App.—Fort Worth 2011, no pet.) (holding amended petition asserting a
13
or by amending her pleading to “recast” her claims, Marks, 319 S.W.3d
at 365–66. But when the facts demonstrate that the claim’s underlying
nature does not fall within the Act’s definition, a pleading that
incorrectly labels the claim as a health care liability claim is no more
controlling than one that incorrectly avoids that label.
The defendants assert, however, that Gaytan’s allegations in her
original and first-amended petitions constitute judicial admissions that
her claims are health care liability claims. A clear, deliberate, and
unequivocal factual allegation made in a live pleading and not pleaded
in the alternative constitutes a judicial admission that conclusively
establishes the fact and bars the pleader from disputing it.
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000);
Hous. First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983). But
allegations contained in a pleading that is superseded by an amended
pleading are not “conclusive and indisputable judicial admissions.”
Sosav. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995). We need
not decide here whether and how a claimant may judicially admit that
a claim is a health care liability claim because, even if Gaytan’s prior
premises liability claim “reflects the type of claim splitting expressly
prohibited by Yamada” when the claim was based on the same facts as the
health care liability claim asserted in the original petition).
14
petitions contained such an admission, her second-amended petition did
not.
Finally, the Act’s dismissal process justifies the trial court’s
consideration of amended pleadings. The Act requires courts to dismiss
health care liability claims only “on the motion of the affected physician
or health care provider.” TEX. CIV. PRAC. & REM. CODE § 74.351(b).
Although the Act does not expressly mention it, the defendants do not
dispute that the claimant must be afforded an opportunity to respond to
such a motion. 6 The defendants do not contend, for example, that the
trial court should not have considered the response and affidavit Gaytan
filed to contest their dismissal motion, even though she also filed those
documents after the 120-day deadline. Because the trial court’s task at
that point was to determine from the entire record the underlying
nature of Gaytan’s claims, we see no basis on which to hold that the
court could consider those filings but not an amended petition in which
Gaytan sought to clarify the nature of her claims. In fact, trial courts
generally must allow claimants the opportunity to amend their
pleadings before dismissing their claims unless “the petition
6 See Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 930
(Tex. 1995) (“Due process at a minimum requires notice and an opportunity to
be heard at a meaningful time and in a meaningful manner.”).
15
affirmatively demonstrates that no cause of action exists or that
plaintiff’s recovery is barred.” Peek v. Equip. Serv. Co. of San Antonio,
779 S.W.2d 802, 805 (Tex. 1989).
For these reasons, we hold that the Act does not prohibit trial
courts from considering an amended petition filed in response to a
dismissal motion under section 74.351. Except when our procedural
rules prohibit such a filing, courts deciding a section 74.351 dismissal
motion should consider an amended petition when determining the
claims’ underlying nature. Although an amended petition cannot
prevent dismissal merely by “recasting” the claims through the artful
use of different labels, Diversicare, 185 S.W.3d at 851, it nevertheless
comprises part of the “entire court record” courts should consider when
making that determination.
IV.
The Underlying Nature of Gaytan’s Claims
We now turn to the question of whether Gaytan asserted health
care liability claims in this case. As explained, we do so by considering
the entire record, which includes Gaytan’s second-amended petition, 7
7 We do not consider Gaytan’s original or first-amended petitions
because her second-amended petition superseded the prior petitions. See TEX.
R. CIV. P. 65; Bos v. Smith, 556 S.W.3d 293, 306 (Tex. 2018) (“Amended
16
the defendants’ dismissal motion, Gaytan’s response and affidavit, and
all other “relevant evidence properly admitted.” Loaisiga, 379 S.W.3d at
258. Based on the claims’ underlying nature as revealed in this record,
we agree with the defendants that Gaytan asserts health care liability
claims.
The Act defines the phrase “health care liability claim” to mean
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). As we have repeatedly
observed, this definition includes three basic elements: (1) the defendant
must be a physician or health care provider; (2) the claim 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
pleadings supersede prior pleadings, and any claim not carried forward in an
amended pleading is deemed dismissed.”); FKM P’ship, Ltd. v. Bd. of Regents
of Univ. of Hous. Sys., 255 S.W.3d 619, 633 (Tex. 2008) (“[A]mended pleadings
and their contents take the place of prior pleadings.”).
17
defendant’s conduct must proximately cause the claimant’s injury or
death. Tex. W. Oaks, 371 S.W.3d at 179–80. 8
The third element is not at issue here, as Gaytan alleges that the
defendants’ conduct caused her injury. Regarding the first element, the
Act defines “physician” to mean “an individual licensed to practice
medicine in this state,” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(23),
and defines “health care provider” to include both an “affiliate of a health
care provider or physician” and an “employee . . . of a health care
provider or physician acting in the course and scope of the employment,”
id. § 74.001(a)(12). Gaytan alleges and concedes that Dr. Yarish is a
physician. She also alleges that Dr. Yarish “owns and operates” the
Medical Spa and that Gutzman was acting within the scope of her
employment with Dr. Yarish or the Medical Spa when she treated
Gaytan. Under these facts, the Medical Spa (as an affiliate9 of Dr.
Yarish) and Gutzman (as an employee of Dr. Yarish or the Medical Spa)
8See also Rogers, 623 S.W.3d at 349; Bioderm, 426 S.W.3d at 758;
Loaisiga, 379 S.W.3d at 255; Marks, 319 S.W.3d at 664.
9See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(1) (defining “affiliate” to
include an entity that is “directly or indirectly . . . controlled by . . . a specified
person”), (3) (defining “control” to mean “the possession of the power to direct
the management and policies of the person”); Bioderm, 426 S.W.3d at 758
(“Because Bioderm is an affiliate of a physician, we conclude it is a health care
provider under the Medical Liability Act.”).
18
are both health care providers. 10 The record thus establishes the first
element of a health care liability claim.
As in most disputes over whether a claim constitutes a health care
liability claim, the primary issue here involves the second element—
whether Gaytan’s claims 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.” Id. § 74.001(a)(13). The defendants contend that this
element is satisfied because Gaytan’s claims allege that the defendants
violated accepted standards of “medical care” and “health care.” 11 We
agree.
The Act defines “health care” to mean “any act or treatment
performed or furnished, or that should have been performed or
The court of appeals’ opinion is less than clear on this point. It first
10
noted that the parties dispute “whether Gutzman is a health care provider,”
627 S.W.3d at 350–51, and later concluded that “Gaytan did not meet with,
see, or agree to be treated by a physician or health care provider,” id. at 352.
But Gaytan did meet with, see, and agree to be treated by Gutzman, an
employee of the Medical Spa, and the court never explained why Gutzman or
the Medical Spa would not qualify as health care providers under the Act’s
definitions. To the extent the court of appeals concluded that Gutzman and the
Medical Spa are not health care providers, we disagree.
The defendants do not rely on the definition’s “safety or professional
11
or administrative services” clause.
19
furnished, by any health care provider for, to, or on behalf of a patient
during the patient’s medical care, treatment, or confinement.” Id.
§ 74.001(a)(10) (emphases added). Gaytan complains of treatment
Gutzman (a health care provider) furnished to Gaytan. At issue,
however, is whether Gaytan was a “patient” and whether Gutzman
performed the acts as part of Gaytan’s “medical” care or treatment. The
Act defines “medical care” to mean “any act defined as practicing
medicine under Section 151.002, Occupations Code, performed or
furnished, or which should have been performed, by one licensed to
practice medicine in this state for, to, or on behalf of a patient during
the patient’s care, treatment, or confinement.” Id. § 74.002(a)(19). 12
Reading the definitions of “health care” and “medical care”
together clarifies that physicians provide “medical care” and health care
providers provide “health care.” See Marks, 319 S.W.3d at 662. But
health care providers provide health care only when they furnish
12 The Act does not define the term “treatment.” We have previously
acknowledged its meaning within the medical context to refer to “the care and
management of a patient to combat, ameliorate, or prevent a disease, disorder,
or injury.” Bioderm, 426 S.W.3d at 757 n.5 (quoting MOSBY’S MEDICAL
DICTIONARY 1880 (8th ed. 2009)). Gaytan acknowledges and alleges that
Gutzman “treated” her at the Medical Spa and that her claims arise from a
course of “treatment,” but argues that she received only “cosmetic” treatment,
as opposed to “medical” treatment.
20
treatment to a patient “during”—or as part of—a physician’s provision
of “medical care.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10). So for
Gaytan’s claims to assert departures from accepted standards of “health
care,” the record must establish that Gutzman treated Gaytan pursuant
to a physician-patient relationship between Gaytan and Dr. Yarish, 13
and that Gutzman provided those treatments during Gaytan’s medical
care, treatment, or confinement. We conclude based on this record that
both requirements are met.
A. Physician-patient relationship
Gaytan argues, and the court of appeals agreed, that the record
establishes that she was never a patient of Dr. Yarish. See 627 S.W.3d
at 351. To reach this conclusion, they both rely on Gaytan’s affidavit, in
which she testified that she never saw or consulted with Dr. Yarish, Dr.
Yarish never examined or treated her, and she does not recall providing
any medical-history or patient-consent forms. According to the court of
appeals, the defendants “presented no evidence to the contrary,” so
13 See Tex. W. Oaks, 371 S.W.3d at 178–81 (explaining that unlike a
claim alleging breach of safety, professional-services, or administrative-
services standards, a claim alleging breach of health-care or medical-care
standards “must involve a patient-physician relationship”).
21
Gaytan’s testimony conclusively negated the existence of any physician-
patient relationship. 627 S.W.3d at 351–52. We disagree.
Generally, a physician-patient relationship arises when a
physician agrees to provide professional medical services to a patient
and the patient agrees to accept the physician’s services. See St. John v.
Pope, 901 S.W.2d 420, 423–24 (Tex. 1995); see also Stutes v. Samuelson,
180 S.W.3d 750, 753 (Tex. App.—Fort Worth 2005, pet. denied)
(explaining that a physician-patient relationship “is created when
professional services are offered and they are accepted by another”). The
relationship must be contractual, consensual, and voluntary, but it “does
not require the formalities of a contract.” St. John, 901 S.W.2d at 424.
A patient may, of course, expressly agree to accept a physician’s
professional services by, for example, signing a consent-to-treatment
form. See Bioderm, 426 S.W.3d at 759 (citing evidence that claimant
signed a consent-to-treatment form as proof that claimant was
physician’s patient); see also Rio Grande Valley Vein Clinic, P.A. v.
Guerrero, 431 S.W.3d 64, 65 (Tex. 2014) (per curiam) (noting that
claimant “completed forms for medical history, informed consent, and
medical information disclosure, indicating she was a patient”). Gaytan
argues, and the court of appeals agreed, that the undisputed fact that
22
she does not recall providing any such forms before receiving treatment
at the Medical Spa conclusively establishes that she never consented to
receive Dr. Yarish’s professional services. 627 S.W.3d at 351–52. But
even in the absence of any such express indication, the relationship may
be implied through conduct and circumstances demonstrating the
parties’ agreement. St. John, 901 S.W.2d at 423–24; see also Stutes, 180
S.W.3d at 753 (“The implied contractual relationship may arise from
facts and circumstances indicating there was a mutual intention to
contract.”). 14
Similarly, Gaytan argues, and the court of appeals agreed, that
the undisputed fact that she never saw or received treatment from Dr.
Yarish conclusively establishes that she never consented to receive his
professional services. See 627 S.W.3d at 351–52. But a patient need not
interact directly with or have physical contact with the physician for the
relationship to exist. See St. John, 901 S.W.2d at 424 (“The fact that a
physician does not deal directly with a patient does not necessarily
14See also Childs v. Weis, 440 S.W.2d 104, 106–07 (Tex. Civ. App.—
Dallas 1969, no writ) (“The relation of physician and patient is contractual and
wholly voluntary, created by agreement, express or implied.”); Estrada v.
Mijares, 407 S.W.3d 803, 807 (Tex. App.—El Paso 2013, no pet.) (“It is only
with the physician’s express or implied consent that the physician-patient
relationship is created.”).
23
preclude the existence of a physician-patient relationship.”); see also
Lection v. Dyll, 65 S.W.3d 696, 704 (Tex. App.—Dallas 2001, pet. denied)
(“[P]hysical contact between a doctor and patient is not necessary to
create a physician-patient relationship.”). In Bioderm, for example, we
held that a claimant who received laser-hair-removal treatments from a
physician-owned skin-care facility was the physician’s patient even
though she did not meet with the physician until after she received the
treatments that allegedly burned and scarred her legs. Bioderm, 426
S.W.3d at 756, 759 n.9; see Guerrero, 431 S.W.3d at 66 (“Even if, as
Guerrero now claims, a nurse performed the procedure, this does not
prevent the existence of a physician-patient relationship.”). What
matters is the physician’s express or implied agreement to provide, and
the patient’s express or implied agreement to accept, the physician’s
“professional services.” St. John, 901 S.W.2d at 423.
We conclude that this record establishes that Dr. Yarish offered,
and Gaytan agreed to receive, his professional services, and Gaytan thus
became his patient. According to Gaytan, she went to the Medical Spa
“to seek cosmetic skin treatments to address acne on [her] back and
face.” The Medical Spa, which Dr. Yarish “owns and operates,” is “in the
business of providing surgical and non-surgical cosmetic
24
improvements.” Gaytan received treatments from Gutzman, who was an
aesthetician employed at the Medical Spa. Instead of improving her
skin, the treatments caused scarring and discoloration because the
“Defendants”—including Dr. Yarish—failed to properly evaluate her
skin’s condition, assess her medical condition, instruct her to suspend
use of a skin cream before the treatments, determine the effect the
treatments would have on her skin, and prepare her skin for the
treatments and adjust them to her skin. And Dr. Yarish in particular
failed to “supervise and evaluate” the treatments and negligently hired,
trained, and retained Gutzman.
These facts conclusively establish that Gaytan became Dr.
Yarish’s patient. By seeking treatments from an employee at a medical
spa Dr. Yarish owned and operated, she necessarily sought and agreed
to receive his professional services. Such services, including
“nonsurgical medical cosmetic procedures,” need not be performed by
the physician personally, but a physician who provides them indirectly
through another is ultimately responsible for the patient’s safety and for
ensuring that the person who provides them on the physician’s behalf is
appropriately trained and supervised. See 22 TEX. ADMIN. CODE
§ 193.17(d). Gaytan alleges that Dr. Yarish negligently failed in this
25
regard and seeks to hold him responsible, but in the absence of a
physician-patient relationship, Dr. Yarish would have no duty to do any
of the things she alleges he negligently failed to do. See St. John, 901
S.W.2d at 423 (“[T]he duty to treat the patient with proper professional
skill flows from the consensual relationship between the patient and
physician, and only when that relationship exists can there be a breach
of a duty resulting in medical malpractice.”). By alleging that Dr. Yarish
negligently caused her injuries and seeking to hold him legally liable for
that conduct, Gaytan necessarily concedes that she was Dr. Yarish’s
patient.
B. Medical care or treatment
Having concluded that the claims asserted in this case are claims
made by a patient against her physician and health care providers, we
must still determine whether the claims complain of “medical care or
treatment” to decide whether they constitute health care liability
claims. TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10). Although the Act’s
broad definition of the phrase “health care liability claim” provides an
“expansive application,” it does not encompass “circumstances where
the conduct of which a plaintiff complains is wholly and conclusively
inconsistent with, and thus separable from, the rendition of” medical
26
care or health care, even when the claimant is a patient who sues her
physician or health care provider. Loaisiga, 379 S.W.3d at 256–57. 15
In light of the Act’s broad definitions, we held in Loaisiga that it
“essentially creates a presumption” that a patient’s claim against her
physician or health care provider complains of “medical care or
treatment” and thus constitutes a health care liability claim if it is based
on “the defendant’s conduct during the patient’s care, treatment, or
confinement.” Loaisiga, 379 S.W.3d at 256; see also Weems, 575 S.W.3d
at 363; Guerrero, 431 S.W.3d at 65; Bioderm, 426 S.W.3d at 756. When—
as here—the presumption applies, the burden shifts to the claimant to
rebut it by showing that her claims are not based on the defendant’s
“departure from accepted standards of medical care or health care.”
Bioderm, 426 S.W.3d at 759–60 (quoting Tex. W. Oaks, 371 S.W.3d at
179–80). To decide whether the claimant has met that burden, we “first
determine whether expert medical or health care testimony is needed to
15 For example, a patient’s “claim against a medical or health care
provider for assault is not [a health care liability claim] if the record
conclusively shows that (1) there is no complaint about any act of the provider
related to medical or health care services other than the alleged offensive
contact, (2) the alleged offensive contact was not pursuant to actual or implied
consent by the plaintiff, and (3) the only possible relationship between the
alleged offensive contact and the rendition of medical services or healthcare
was the setting in which the act took place.” Loaisiga, 379 S.W.3d at 257.
27
establish the requisite standard of care and breach.” Bioderm, 426
S.W.3d at 760. If expert testimony is required, the claim is a health care
liability claim. Id. 16
1. The necessity of expert testimony
We held in Bioderm that a claimant who alleged injuries resulting
from the negligent use of a laser-hair-removal device asserted health
care liability claims because the device “is a regulated surgical device,
which may only be acquired by a licensed medical practitioner for
supervised use in her medical practice,” and “the proper operation and
use of this regulated surgical device requires extensive training and
experience.” 426 S.W.3d at 761–62. In this case, the court of appeals
distinguished Bioderm and held that expert testimony is not required
because “Gaytan has not alleged damages from the use of a medical
device” or any device “that could only be acquired by a medical
professional in a medical practice.” 627 S.W.3d at 351–52.
16 See also Weems, 575 S.W.3d at 366 (“The necessity of expert testimony
to prove or refute the merits of a claim against a physician or health care
provider is sufficient to establish that the claim is a health care liability
claim.”); Guerrero, 431 S.W.3d at 66 (holding claimant “has not rebutted this
presumption because expert health care testimony is necessary to prove or
refute the merits of her claim”); Tex. W. Oaks, 371 S.W.3d at 182 ( “[I]f expert
medical or health care testimony is necessary to prove or refute the merits of
the claim against a physician or health care provider, the claim is a health care
liability claim.”).
28
But we did not hold or suggest in Bioderm that expert testimony
is required only when the claims are based on the use of such a device.
The involvement of the device required expert testimony in Bioderm
because the proper use of the device is “not within the common
knowledge of laypersons,” who “cannot be expected to understand
whether” the defendant’s use of the device in that case was improper.
426 S.W.3d at 761–62. The proper use of a regulated medical device, of
course, is not the only topic that falls outside “the common knowledge of
laypersons.” See, e.g., Diversicare, 185 S.W.3d at 851 (holding that
expert testimony was required on “the ability of patients in weakened
conditions to protect themselves” and “whether a potential target of an
attack in a healthcare facility should be better protected and by what
means” because such information “is not within the common knowledge
of the general public”); Garland Cmty. Hosp., 156 S.W.3d at 546 (holding
that a claim that hospital negligently credentialed a physician required
expert testimony because such claim “involves a specialized standard of
care”).
As we have explained, Gaytan alleges that Gutzman negligently
administered a course of skin treatments that included “L.J. acne
treatment, L.J. skin pen, L.J. phototherapy acne treatment, skin pen
29
spot treatment, microdermabrasion, and L.J. VI peel treatment.”
Nothing in the record establishes or suggests that the nature of and
standards for the proper administration of these treatments fall “within
the common knowledge of laypersons.” 17
17 From what we can tell from public sources outside the record,
SkinPen is an “FDA-cleared microneedling device” used for “combatting the
appearance of wrinkles of the neck and facial acne scars.” SkinPen Treatment
Get Started, https://skinpen.com/skinpen-treatment-get-started/ (last visited
Feb. 21, 2022); see 21 CFR § 878.4430(a) (“A microneedling device for aesthetic
use is a device using one or more needles to mechanically puncture and injure
skin tissue for aesthetic use.”). SkinPen’s website states that, for the patient’s
“safety and protection, SkinPen is available only through a physician.”
SkinPen Frequently Asked Questions, https://skinpen.com/faq-skinpen/ (last
visited Feb. 21, 2022); see U.S. FOOD & DRUG ADMINISTRATION, DE NOVO
CLASSIFICATION REQUEST FOR SKINPEN PRECISION SYSTEM, DEN160029
(2016), available at https://www.accessdata.fda.gov/cdrh_docs/reviews/DEN16
0029.pdf (“The sale, distribution, and use of the SkinPen Precision System is
restricted to prescription use . . . .”).
Phototherapy, or light therapy, involves the use of various lasers to
treat acne. See AMERICAN ACADEMY OF DERMATOLOGY ASSOCIATION, Laser
and Lights: How Well Do They Treat Acne?, https://www.aad.org/public/diseas
es/acne/derm-treat/lasers-lights (last visited Feb. 21, 2022). Some “visible-light
LED devices” are FDA-approved for at-home use. Id. At-home lasers “are less
powerful than the ones a dermatologist uses.” Id.Microdermabrasion involves the use of a handheld device to remove the
top layer of skin to, among other things, treat acne and acne scars. See
AMERICAN SOCIETY OF PLASTIC SURGEONS, What is Microdermabrasion?,
https://www.plasticsurgery.org/cosmetic-procedures/microdermabrasion (last
visited Feb. 21, 2022). Microdermabrasion “kits” are available for at-home use,
but dermatologists perform a more intense microdermabrasion in-office. See
AMERICAN ACADEMY OF DERMATOLOGY ASSOCIATION,
Microdermabrasion: Overview, https://www.aad.org/public/cosmetic/age-spots-
marks/microdermabrasion-overview (last visited Feb. 21, 2022).
VI Peels are “Medium-Depth” chemical peels. VITALITY INSTITUTE,
What is a Chemical Peel?, https://vipeel.com/pages/chemical-peel (last visited
Feb. 21, 2022). A chemical peel is “a cosmetic treatment used to eliminate
30
Moreover, Gaytan alleges that the defendants failed to “properly
evaluate” her skin condition “pursuant to established standards of
dermatological care,” failed to “properly assess, document, and/or
request” her medical history, should not have administered “abrasive
dermatological treatment” when she “was actively using a tretinoin
cream,” should not have administered laser treatment without first
determining its effect on Gaytan’s “ethnic skin,” failed to properly
prepare her “ethnic skin to safely accept laser treatment,” and failed to
properly “adjust” the laser treatment so that it could be safely applied
to her skin. The proper and applicable standards of “dermatological
care,” reliance on medical histories, risks involving the use of tretinoin
cream, and proper adjustments of a laser-treatment device, as well as
whether defendants’ conduct fell below those standards, are all matters
wrinkles, blemishes, etc., in which an acid is applied to the face . . . causing a
layer of skin to peel off.” Chemical peel, DICTIONARY.COM,
https://www.dictionary.com/browse/chemical-peel (last visited Feb. 21, 2022).
“VI Peel Chemical Peel may only be purchased and administered by a medical
professional.” VITALITY INSTITUTE, VI Peel, https://vipeel.com/collections/vi-
peel (last visited Feb. 21, 2022).
Of course, we have not sought to verify the accuracy or credibility of
these nongovernmental resources, and we do not rely on or vouch for them
here. Our point in citing them is simply to demonstrate that the determination
of the nature of these and similar treatments and whether they are properly
administered to any particular patient requires something other than
“common knowledge.”
31
that require expert testimony; indeed, it “would blink reality” to
conclude otherwise. Tex. W. Oaks, 371 S.W.3d at 182.
2. Inseparable part of the rendition of health care
Finally, we conclude that Gaytan asserts health care liability
claims even if expert testimony were not required. The necessity of
expert testimony prevents the claimant from rebutting the Act’s
presumption, but depending on the “totality of the circumstances,” a
claimant might not rebut the presumption even when expert testimony
is not required. Bioderm, 426 S.W.3d at 760. 18 In particular, we have
held that a claim constitutes a health care liability claim when the
conduct complained of is an “inseparable or integral part of the rendition
of health care.” Tex. W. Oaks, 371 S.W.3d at 180; see also Diversicare,
185 S.W.3d at 848 (“A cause of action alleges a departure from accepted
standards of medical care or health care if the act or omission
complained of is an inseparable part of the rendition of medical
services.”).
18 See also Weems, 575 S.W.3d at 366 (holding claimant asserted health
care liability claims “[e]ven if expert testimony were not ultimately required to
prove his claims”); Tex. W. Oaks, 371 S.W.3d at 182 (“[E]ven when expert
medical testimony is not necessary, the claim may still be a[ health care
liability claim].”).
32
We conclude that all of the defendants’ conduct about which
Gaytan complains is inseparable from the medical and health care the
defendants provided. See Marks, 319 S.W.3d at 664 (holding the
assembly and maintenance of a patient’s hospital bed is “an integral and
inseparable part of the health care services provided” to the patient);
Diversicare, 185 S.W.3d at 849 (holding the supervision of a patient and
another patient who assaulted her was “inseparable from the health
care and nursing services provided to her”); Garland Cmty. Hosp., 156
S.W.3d at 546 (holding that a hospital’s conduct in credentialing a
physician is “inextricably intertwined with the patient’s medical
treatment and the hospital’s provision of health care”).
Despite Gaytan’s careful omission of any “medical” references in
her affidavit and second-amended petition, the professional services Dr.
Yarish provided to Gaytan through Gutzman and the Medical Spa
involved “medical” care and treatment. See TEX. CIV. PRAC. & REM. CODE
§ 74.001(a)(10). Under Texas law, “nonsurgical medical cosmetic
procedures” constitute “the practice of medicine.” 22 TEX. ADMIN. CODE
§ 193.17(a). Physicians may delegate the provision of such services to a
qualified and properly trained nonphysician if the physician ensures
that certain conditions are satisfied. See TEX. OCC. CODE § 157.001(a)
33
(authorizing physicians to delegate “any medical act” and listing
conditions for such delegations); 22 TEX. ADMIN. CODE § 193.17
(authorizing physicians to delegate “nonsurgical medical cosmetic
procedures” and listing conditions for such delegations). A physician
who fails to ensure that the conditions are satisfied may violate the
Medical Practice Act and be liable for any resulting harm, see TEX. OCC.
CODE § 157.001(b), but that failure does not transform the services into
something other than the practice of medicine.
Texas statutes and regulations do not define “nonsurgical medical
cosmetic procedures,” other than to say that they include but are “not
limited to the injection of medication or substances for cosmetic
purposes, the administration of colonic irrigations, and the use of a
prescription medical device for cosmetic purposes.” 22 TEX. ADMIN. CODE
§ 193.17(b)(3). But the ordinary meanings of those terms would
encompass the course of treatment about which Gaytan complains.
Gaytan asserts that she sought the treatments for acne, and not for any
“disease, disorder or injury,” but acne is a disease. See Acne, THE
AMERICAN HERITAGE STEDMAN’S MEDICAL DICTIONARY (2002) (“An
inflammatory disease of the sebaceous glands and hair follicles of the
skin that is marked by the eruption of pimples or pustules, especially on
34
the face.”). 19 And she sought those treatments not from a beauty salon
or similar establishment but from a physician-owned “medical spa,”
which by definition offers medical services that must be performed or
supervised by a licensed physician. 20 To the extent some of the conduct
19 See also Acne, DICTIONARY.COM, https://www.dictionary.com/browse/
acne (“[A]n inflammatory disease of the sebaceous glands, characterized by
comedones and pimples, especially on the face, back, and chest, and, in severe
cases, by cysts and nodules resulting in scarring.”).
20 See THE AMERICAN MED SPA ASSOCIATION, Frequently Asked
Questions about Medical Spas and Medical Spa Treatments,
https://www.americanmedspa.org/page/MedSpaFAQ (last visited Feb. 21,
2022) (“The American Med Spa Association defines a medical spa as a hybrid
between an aesthetic medical center and a day spa[] with four core elements:
(1) the provision of non-invasive (i.e. non-surgical) aesthetic medical services;
(2) under the general supervision of a licensed physician; (3) performed by
trained, experienced and qualified practitioners; (4) with onsite supervision by
a licensed healthcare professional.”); Lauren Numeroff, Playing Doctor: The
Dangerous “Medi-Spa” Game Without Rules, 17 J.L. & POL’Y 653, 653 n.3
(2009) (quoting Juliette Fairley, Spas With a Twist, TIME MAG., Feb. 9, 2004,
§ Inside Business/Beauty, at A13) (“Medi-spas . . . differ from day spas in that
they have a doctor on staff.”); AMERICAN SOCIETY OF PLASTIC SURGEONS,
“American Society of Plastic Surgeons Guiding Principles: Supervision of Non-
Physician Personnel in Medical Spas and Physician Offices,”
https://www.plasticsurgery.org/Documents/Health-Policy/Principles/principle-
2011-supervision-personnel-medi-spa.pdf (“The International Medical Spa
Association provides the following definition of a medical spa: ‘a facility that
operates under the full-time, on-site supervision of a licensed health care
professional. The facility operates within the scope of practices of its staff, and
offers traditional, complementary, and alternative health practices and
treatments in a spa-like setting. Practitioners working within a medical spa
will be governed by their appropriate licensing board, if licensure is
required.’”); THE AESTHETICS SOCIETY, “Putting the medical end of your
medispa under the microscope,” June 17, 2013,
https://www.surgery.org/consumers/plastic-surgery-news-briefs/putting-
medical-medispa-microscope-1051338 (“Medical spas typically offer Botox,
35
about which Gaytan complains did not independently constitute the
provision of medical care or health care, we conclude that all of the
conduct was part of and was inseparable from the “course of treatments”
Gaytan sought and received. Because that course of treatment
constituted the provision of medical care and health care, Gaytan has
failed to rebut the presumption that her claims constitute health care
liability claims under the Act.
V.
Disposition
We hold that the Texas Medical Liability Act’s expert-report
deadline did not prohibit Gaytan from amending her petition in
response to the defendants’ dismissal motion. But even considering her
amended petition, Gaytan’s claims against the defendants constitute
health care liability claims subject to the Act’s expert-report
requirements. Because Gaytan failed to serve an expert report before
the Act’s 120-day deadline, her claims must be dismissed. Because the
Act requires the trial court to award defendants their reasonable
attorney’s fees and costs, see TEX. CIV. PRAC. & REM. CODE § 74.351(b),
we remand the case to the trial court for further proceedings.
facial peels, laser skin treatments and other minimally invasive cosmetic
procedures.”).
36
Jeffrey S. Boyd
Justice
OPINION DELIVERED: February 25, 2022
37