Basith Ghazali, M.D. v. Patricia Brown ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-191-CV
BASITH GHAZALI, M.D. APPELLANT
V.
PATRICIA BROWN APPELLEE
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. Introduction
Appellant Basith Ghazali, M.D. appeals the trial court’s denial of his
motion to dismiss Appellee Patricia Brown’s claims. See Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(a)(9) (Vernon 2009), § 74.351(b) (Vernon Supp. 2009).
In two issues, Dr. Ghazali argues that Brown’s claims against him are health
care liability claims and that the trial court erred by failing to dismiss her claims
with prejudice because she did not provide an expert report fulfilling the
requirements of section 74.351. Id. § 74.351(r)(6). Because we hold that
Brown’s claims are not health care liability claims, we will affirm.
II. Factual and Procedural History
In May 2004, Brown visited an American Laser Center location in Fort
Worth for laser hair removal on her lip, cheek, jaw line, and neck. At that time,
Dr. Ghazali served as the medical director at the facility. 1 Between May 2004
and September 2006, Brown went to American Laser Center at recommended
intervals. But Brown claims she suffered severe burning, blistering, and
lacerations on her face and neck during her visit on September 8, 2006, that
resulted in permanent scarring and discoloration.
On September 5, 2008, Brown filed her original petition against Dr.
Ghazali and the American Laser Center corporate entities and alleged
negligence, negligent failure to warn, gross negligence, violations of the Texas
Deceptive Trade Practices–Consumer Protection Act, fraud, and lack of
informed consent. 2 Within the 120-day period required by section 74.351,
1
 Dr. Ghazali was not affiliated with American Laser Center after
September 2005.
2
 Brown asserts her claim for lack of informed consent as an alternative
to her other causes of action.
2
Brown served Dr. Ghazali with an expert report authored by Dr. Gil Segev.
Relying on Brown’s statements, medical history, and medical files, Dr. Segev
wrote in his report, among other things, that
• an African-American individual should be informed that the
inherent risks of laser hair removal are increased in individuals
with darker skin tones;
• one specific laser, an Nd:YAG laser, is safer to use on
African-American individuals than other types of hair removal
lasers;
• Dr. Ghazali failed to obtain written informed consent from
Brown;
• Dr. Ghazali failed to obtain verbal informed consent from
Brown; and
• Dr. Ghazali’s failure to obtain informed consent ultimately
caused Brown’s injuries. 3
Dr. Ghazali filed a motion to dismiss Brown’s claims pursuant to section
74.351(b). The trial court sustained Dr. Ghazali’s objections to the sufficiency
of Dr. Segev’s report, finding that the report failed to demonstrate a
relationship, direct or indirect, between Dr. Ghazali and Brown, but the trial
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 It is undisputed that Dr. Ghazali’s name does not appear in Brown’s
medical records and that Dr. Ghazali did not perform, or participate in
performing, the procedure.
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court granted Brown a thirty-day extension to correct the deficiency. Brown
then served an amended report with the following additional language:
I have reviewed Defendant[’]s responses to Plaintiff’s
discovery requests, which identify [Dr. Ghazali] as the on-site
medical director for American Laser Center’s Fort Worth
Office. Based on my experience as a founder and active
national medical director of Laser Perfect, a laser hair removal
company with over 20 locations, it is my opinion that an
indirect physician-patient relationship existed between
Patricia Brown and [Dr. Ghazali]. 4
Dr. Ghazali thereafter filed a second motion to dismiss. The trial court heard
and denied Dr. Ghazali’s second motion to dismiss on June 4, 2009, and this
interlocutory appeal followed.
III. Standard of Review
Generally, we review a trial court’s denial of a motion to dismiss under
section 74.351 for an abuse of discretion. Am. Transitional Care Ctrs. of Tex.,
Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Moore v. Gatica, 269
S.W.3d 134, 139 (Tex. App.—Fort Worth 2008, pet. denied). However, we
review de novo the trial court’s denial of a motion to dismiss when it involves
the determination of whether a claim is a health care liability claim under
chapter 74. Tesoro v. Alvarez, 281 S.W.3d 654, 656 (Tex. App.—Corpus
4
 There were no other changes to the expert report.
4
Christi 2008, no pet.); Lee v. Boothe, 235 S.W.3d 448, 451 (Tex. App.—Dallas
2007, pet. denied).
IV. Nonablative Laser Hair Removal Is Not Medical Care
The legislature enacted the Medical Liability and Insurance Improvement
Act (MLIIA) to “reduce excessive frequency and severity of health care liability
claims” and to “make affordable medical and health care more accessible and
available to the citizens of Texas.” Garland Cmty. Hosp. v. Rose, 156 S.W.3d
541, 543 (Tex. 2004). To serve these purposes, the MLIIA includes numerous
procedural requirements for health care liability claims, including a requirement
that a claimant timely provide each defendant with a sufficient expert report.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351.
For the MLIIA to apply, however, a claim must be a “health care liability
claim.” See id.; Rose, 156 S.W.3d at 543; see also Yamada v. Friend, No. 02-
07-00177-CV, 2008 WL 553690, at *4 (Tex. App.—Fort Worth Feb. 28,
2008, pet. granted) (mem. op.) (“A claim alleging a breach of a standard of
medical care is a health care liability claim.”) (citing Wright v. Fowler, 991
S.W.2d 343, 352 (Tex. App.—Fort Worth 1999, no pet.)). Dr. Ghazali
contends that we need to look no further than Brown’s petition to determine
that her claim is a health care liability claim, but in determining whether a cause
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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. Diversicare Gen. Partner,
Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005).
A. Definitions of Health Care, Medical Care, and Treatment
In determining whether Brown’s claim is a health care liability claim, we
begin with established principles of statutory construction. Marks v. St. Luke’s
Episcopal, No. 07-0783, 2009 WL 2667801, at *3 (Tex. Aug. 28, 2009). The
prevailing principle is that we give effect to legislative intent. See Tex. Gov’t
Code Ann. § 312.005 (Vernon 2009); see also Crown Life Ins. Co. v. Casteel,
22 S.W.3d 378, 383 (Tex. 2000). We then interpret a statute by reading the
words and phrases in context and construing them according to the rules of
grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a) (Vernon
2009). Words that are not defined are given their ordinary meaning. Fitzgerald
v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999).
When possible, all words are given effect and none of the statute’s language
is treated as surplusage. Cont’l Cas. Ins. Co. v. Functional Restoration Assocs.,
19 S.W.3d 393, 402 (Tex. 2000).
The MLIIA provides the following definitions relevant to Brown’s claims:
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“Health care” means any act or treatment performed or furnished,
or that should have been performed or furnished, by any health
care provider for, to, or on behalf of a patient during the patient’s
medical care, treatment, or confinement.
....
“Health care liability claim” means 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.
....
“Medical care” means any act as 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 . . . .
Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(10), (13), (19) (Vernon 2009)
(emphasis added).
“Practicing medicine” means the diagnosis, treatment, or offer to
treat a mental or physical disease or disorder or a physical
deformity or injury by any system or method, or the attempt to
effect cures of those conditions . . . .
Tex. Occ. Code Ann. § 151.002(13) (Vernon 2009).
Although the MLIlA defines medical care, it does not define “treatment.”
See generally Tex. Civ. Prac. & Rem.Code Ann. § 74.001; Tesoro, 281 S.W.3d
7
at 658. Therefore, we look to the plain meaning of “treatment” to determine
its application in this case. Tex. Civ. Prac. & Rem. Code Ann. § 74.001(b)
(“Any legal term or word of art used in this chapter, not otherwise defined in
this chapter, shall have such meaning as is consistent with the common law.”);
Kendrick v. Garcia, 171 S.W.3d 698, 704 (Tex. App.—Eastland 2005, pet.
denied) (“[Section 74.001(b)] essentially restates the rule of statutory
construction that terms in a statute are to be given their plain meaning.”).
“Treatment” is defined by Mosby’s Medical Dictionary as “the care and
management of a patient to combat, ameliorate, or prevent a disease, disorder,
or injury.” Mosby's Medical Dictionary 1880 (8th ed. 2009). We will therefore
use this definition in deciding whether laser hair removal constitutes medical
care or treatment.
Because the parties agree that Dr. Ghazali is a physician, the primary
issue before this court is whether Brown’s claim concerns an act that occurred,
or should have occurred, during her medical care or treatment.
B. Brown’s Claim Is Not A Health Care Liability Claim
The parties do not argue, and the record does not suggest, that Brown
sought laser hair removal to “combat, ameliorate, or prevent a disease, disorder,
or injury” or that the hair removal relates to a “physical disease or disorder or
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physical deformity or injury.” See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.001(a)(19); Tex. Occ. Code Ann. § 151.002(13); Mosby’s Medical
Dictionary 1880 (8th ed. 2009). Therefore, Brown’s laser hair removal is not
“treatment” or “medical care.” And because Brown’s laser hair removal is not
“treatment” or “medical care,” it follows that it is also not “health care”
because “health care” requires an act or treatment during the patient’s medical
care or treatment. 5 See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(10).
In 2009, the legislature amended the health and safety code to
specifically regulate laser hair removal procedures and facilities. See Tex.
Health & Safety Code Ann. §§ 401.501–.520 (Vernon Supp. 2009). Under the
5
 We are aware of our sister court’s holding that laser hair removal is
related to health care when the pleadings allege either that appellants were
directly negligent for failing to adequately train and supervise employees or for
breaching the standard of care applicable to such health providers. See Kanase
v. Dodson, No. 07-08-00472-CV, 2009 WL 3425633, at *5 (Tex.
App.—Amarillo Oct. 26, 2009, no pet.) However, in the Kanase opinion, the
court does not include an analysis of whether cosmetic laser hair removal
conducted by a layperson meets the statutory definition of medical care,
treatment, or health care. Moreover, “courts must be equally careful not to
extend Chapter 74's reach beyond its stated bounds. Not every action taken
by a health care provider or every injury sustained by a patient falls within the
ambit of the MLIIA.” See Pallares v. Magic Valley Electric Coop., Inc., 267
S.W.3d 67, 71 (Tex. App.—Corpus Christi 2008, pet. denied) (citing Theroux
v. Vick, 163 S.W.3d 111, 113 (Tex. App.—San Antonio 2005, pet. denied).
Thus, we decline to follow Kanase.
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amended code, an individual does not have to be a physician or health care
provider to perform laser hair removal—and may do so without a physician’s
supervision—as long as the individual holds the appropriate certificate and does
not diagnose, treat, or offer to treat any client for any physical illness, disease,
injury, defect, or deformity. Id. §§ 401.504(b), 401.505. The amendment
limits a physician’s involvement in cosmetic laser hair removal by simply
requiring a laser hair removal facility to have a written contract with a physician
to establish protocols for the facility’s services and to audit the facility’s
protocols and operations. Id. § 401.519. This contractual requirement is not
related to Brown’s claims; nor does Brown assert that Dr. Ghazali diagnosed,
treated, or offered to treat her for any physical illness, disease, injury, defect,
or deformity. Id. §§ 401.504(b), 401.505. We therefore hold that Brown’s
lawsuit concerning her laser hair removal does not constitute a health care
liability claim. 6
6
 Having held Brown’s laser hair removal is not health care, medical
care, or treatment, we decline to conclude that the mere use of the word
“treatment” in Brown’s petition requires a determination that the underlying
nature of her claim is a health care liability claim. See Tesoro, 281 S.W.3d at
659; Diversicare Gen. Partner, Inc., 185 S.W.3d at 847.
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The reasoning in Tesoro v. Alvarez supports our conclusion that Brown’s
claim is not a health care liability claim. See 281 S.W.3d at 660–65. In
concluding that Alvarez’s claim was not a health care liability claim, the Tesoro
court determined that laser hair removal is not transformed into “health care”
simply because the procedure occurs in a medical clinic or the alleged
negligence involved a regulated medical device. Id. at 660–61. In addition, the
Tesoro court considered the following factors: (1) a laser hair removal device
could be used by a lay person without a physician or a health care provider
present; (2) the absence of allegations of medical treatment or breaches of
medical care in Alvarez’s original petition; 7 (3) the absence of legislation
concerning the regulation of laser hair removal; and (4) the holdings of other
states’ courts of appeals that laser hair removal is not “health care.” Id. at
662–65. We agree with the Tesoro court’s analysis and believe it supports our
holding here.
7
 Brown’s petition alleges that “employees” operated the laser hair
removal machines and does not allege a breach of medical care. Thus, we find
this case distinguishable from Sarwal v. Hill. No. 14-01-01112-CV, 2002 WL
31769295, at *2–3 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (not
designated for publication) (holding that appellee’s claim of negligence was a
health care liability claim because the appellee alleged that (1) her physician
explained the laser hair removal procedure to her and (2) the physician’s
registered nurse who performed the procedure, resulting in the burning and
scarring of appellee’s skin, “breached nursing standards of care”).
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C. Brown’s Laser Hair Removal Is Not An Inseparable Part Of The
Rendition of Medical Care
An act or omission by a healthcare provider falls within the scope of the
MLIIA if it is a departure from the standards of medical care or healthcare or if
it is an inseparable part of the rendition of medical services. Tex. Civ. Prac. &
Rem. Code Ann. § 74.001(a)(13); Marks, 2009 WL 2667801, at *4. Dr.
Ghazali contends that Brown’s laser hair removal is an inseparable part of the
rendition of medical care, but in doing so, Dr. Ghazali incorrectly argues that
laser hair removal procedures constitute “medical care.” Because laser hair
removal is not health care, medical care, or treatment, the failure to warn of the
risks of the procedure or the negligent performance of the procedure cannot be
an inseparable part of the rendition of health care, medical care, or treatment.
See Marks, 2009 WL 2667801, at *7 (holding that because the alleged
negligence was not directly related to the rendition of medical or health care,
the MLIIA did not apply).
We therefore conclude that Brown’s claim against Dr. Ghazali is not
inseparable from the rendition of medical services and is not a health care
liability claim. We overrule Dr. Ghazali’s first issue.
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V. Expert Report
In his second issue, Dr. Ghazali contends the trial court erred by denying
his motion to dismiss because Brown’s expert report did not meet the
requirements of section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. §
74.351. However, Brown was not required to file an expert report because she
did not assert a health care liability claim. See id.; Tesoro, 281 S.W.3d at 666.
We therefore overrule Dr. Ghazali’s second issue.
VI. Conclusion
Having held that Brown’s claims concerning her laser hair removal
procedure do not constitute health care liability claims, we affirm the trial
court’s denial of Dr. Ghazali’s motion to dismiss.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DELIVERED: February 25, 2010
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