Sarwal, Laxmi D. v. Suzanne Bruce M.D. and Marcia Hill R.N. ( 2002 )

Affirmed and Opinion filed December 12, 2002

Affirmed and Opinion filed December 12, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01112-CV

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LAXMI D. SARWAL, Appellant

V.

MARCIA HILL, R.N., Appellee

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On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 00-46411

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O P I N I O N

            Laxmi D. Sarwal appeals the dismissal of her lawsuit against Marcia Hill for failure to file an expert report on the ground that she is asserting a non-health care liability claim that is not subject to the requirement to file such a report.  We affirm.

                                                                   Background

            In September of 1998, Hill, a nurse, administered to Sarwal a hair removal procedure known as EpiLight, which allegedly caused Sarwal burns and permanent and disfiguring scarring.  Sarwal sued Hill,^[1] Hill filed a motion to dismiss Sarwal’s lawsuit for failure to file an expert report, and the trial court granted Hill’s motion, ruling that Sarwal’s allegations were governed by article 4590i.^[2]

                                                            Standard of Review

            Dismissal of a cause of action under article 4590i for failure to file an expert report is reviewed for abuse of discretion.  Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875, 877 (Tex. 2001).  Under an abuse of discretion standard,  we may not set aside a trial court’s ruling unless it is clear from the record that the trial court could only have reached one decision.  In re Nitla S.A. de C.V., 45 Tex. Sup. Ct. J. 571, 2002 WL 534089, at *3 (Apr. 11, 2002).

                                                    Health Care Liability Claim

            A health care liability claimant must file an expert report substantiating the claim within 180 days of filing suit or voluntarily nonsuit the action.  See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp. 2003).  Upon a failure to comply with this requirement and a request by the defendant health care provider, the trial court must dismiss the suit with prejudice. See id. § 13.01(e).  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 which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.

Id. § 1.03(a)(4).

            In this case, Sarwal’s sole issue argues that her case should not have been dismissed for failing to file an expert report under the foregoing provisions because hers is not a “health care liability claim” subject to the requirement to file such a report.  Rather, Sarwal contends that the removal of body hair by Epilight is in the nature of a haircut or manicure and thus involves no medical care, diagnosis, treatment, or any inquiry into whether Hill’s actions fell below the standard of medical or health care. Therefore, Sarwal contends that her claim against Hill is a common law negligence claim rather than (or as well as) a health care liability claim.  However, at the time of the dismissal, the body of Sarwal’s live pleading read as follows:

                                                   JURISDICTION AND VENUE

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1.  Plaintiff is a resident citizen of Harris County, Texas and all acts complained of occurred in Harris County, Texas. Service has been obtained and Answer filed.

                                       STATUTORY COMPLIANCE

2.  Plaintiff has complied with the provisions of Art. 4590i, of the Medical Liability and Improvement Act of the State of Texas.

                                                            FACTS

3.  On September 10, 1998, Plaintiff Sarwal became a patient of Suzanne Bruce, M.D., a Dermatologist in Houston, Texas, with the intent of having several moles, ingrown hairs, and a bump on her head removed.  In the offices plaintiff saw advertisements for “permanent hair removal in 3 treatments” by EpiLight treatment. Plaintiff inquired and Dr. Bruce explained the treatment, and then asked one of her employees to do a test patch for risk assessment to determine suitability for the treatment.  The test patch was done and caused slight warmness and redness, but no pain.  The redness disappeared within two days, as Dr. Bruce indicated it would.  On September 26, Mrs. Sarwal received her first EpiLight treatment by Nurse Marcia Hill, a Registered Nurse.  Nurse Hill criticized the fact that the test patch was done by Denise, a clerk in the office who treated herself with EpiLight.  Ms. Hill informed Plaintiff that she was the only person in the offices that was qualified to administer EpiLight treatments.  The first treatment by EpiLight was painfully hot, enough to cause tears, and complaints to Hill that it was painful and burning her.  Defendant Hill told Plaintiff that the more it burned the more hair it killed.

4.  Plaintiff’s skin began sloughing off and she informed nurse Hill of the pain and the sloughing.

5.  Plaintiff began trying to reach Dr. Bruce through nurse Hill, Denise, or the receptionist for approximately two months, and was repeatedly told by nurse Hill that Dr. Bruce had appointments and she could not take the calls.  She was told that it would be several weeks before Dr. Bruce could make an appointment because she was so busy.

6.  Plaintiff dropped in at the office but could not get in to see Dr. Bruce. Nurse Hill would give Plaintiff samples of ointments and prescribe application of the ointments for the burns.  Defendant told her that the sloughing of tissue was normal.  The burn was bad enough that it was obviously scarring.

7.  Finally, on December 2, 1998, some 66 days following the initial burning. Plaintiff just dropped into the offices and saw Dr. Bruce in the office.  Plaintiff immediately talked to Dr. Bruce and told her about the burning and sloughing of tissue.  Dr. Bruce examined Plaintiff and exclaimed, “Marcia has burned you terribly, and I don*t know what to do for it.”  She prescribed ointments and made an effort.

8.  Plaintiff suffered permanent unsightly square and rectangular splotches of destroyed pigmentation, scarring that is permanent and disfiguring.  Plaintiff cannot get outside in the sunlight without fully covering her skin.  Hot weather causes her arms, legs and face to sting severely in the outside heat especially on sunny days.  It is embarrassing for her to have people stare at her; to have co-workers or visitors ask her about the discoloration.  Her employers in the health field have asked her to keep her arms covered to avoid patient inquiries about her condition.

                        BREACHES OF THE STANDARDS OF CARE

9.  Plaintiff alleges that nurse Marcia Hill breached nursing standards of care, and violated Texas Nurse Practice Act Regulations and Rules, Rule 217.11(1) (2) (3) & (5), creating a per se negligence issue, in the following particulars:

(1)a.  In failing to know the rationale for and the effects of medications and treatments and correctly administer the same;

     b. Implement measures to promote a safe environment for clients and others;

      c. Evaluating the client*s responses to nursing interventions;

(2) In failing to explain to Plaintiff that a person of her complexion placed her in a group for which the EpiLight removal therapy was not recommended;

(3) In failing to cease using the EpiLight treatment when the first treatment by Defendant Hill burned Mrs. Sarwal so deeply that it caused sloughing of tissue.

(4) In failing to inform Dr. Bruce about the burns and asking her to examine them.

(5) By practicing medicine without a license, by treating Mrs. Sarwal*s burns without consulting Dr. Bruce, with sample ointments in the office.

(6) By refusing to schedule appointments for Mrs. Sarwal when she requested to see the doctor.

(7) By actively interfering with the Plaintiff’s right to see the doctor for the burns for more than two months.

                                                        DAMAGES

7.  [sic] Defendant Hill*s actions have caused Plaintiff temporary and permanent damages, as follows:

a.  Physical pain and mental anguish in the past and future;

b.  Permanent scarring through permanent loss of pigmentation;

c.  Permanent disfigurement;

c.  [sic] Embarrassment and humiliation in the past and future;

d.  Necessary treatment and care in the past and future to hide the discoloration and disfigurement;

e.  Replacement of suitable clothing frequently;

f.  Continual healthcare with ointments and herbal creams to promote any redevelopment of pigmentation;

                                                          PRAYER

8.  [sic] Plaintiff prays that upon trial of this case she shall be awarded damages in a just and reasonable amount, within the jurisdictional limits of this Court, for interest thereon from the date of said injuries until paid, for costs of court, and such sums as the Court and jury may find. 

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(emphasis added).

Whether or not the factual allegations in Sarwal’s petition could have supported a non-health care liability claim for common law negligence had such a claim been asserted, which we do not decide, the cause(s) of action asserted in her petition, even liberally construed, are framed only as health care liability claims.  In addition to representing in paragraph 2 that she complied with article 4590i, as that provision requires,^[3] Sarwal’s petition consistently refers to Epilight as a “treatment” or “therapy” and affirmatively states that Hill’s allegedly deficient actions and omissions were all breaches of the nursing standard of care. Therefore, to whatever extent any of those actions or omissions could have stated a claim outside the realm of Hill’s professional knowledge, judgment, and performance, they were simply not cast as such in this case.^[4]  Because Sarwal thus alleged only a health care liability claim against Hill, she has failed to demonstrate error by the trial court in dismissing her action for failure to file an expert report.  Accordingly, her issue is overruled, and the judgment of the trial court is affirmed.

                                                                                                /s/        Richard H. Edelman

                                                                                                            Justice

Judgment affirmed and Opinion filed December 12, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish — Tex. R. App. P. 47.3(b).

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^[1]  Sarwal also sued Dr. Suzanne Bruce, Hill’s employer, but later nonsuited Bruce.

^[2]  See Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp. 2003).

^[3]  See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 4.01(b).

^[4]  Even a liberal construction cannot derive a meaning that is different from or contrary to that which is plainly stated.  Moreover, the fact that Sarwal had amended her petition twice after the filing of Hill’s motion to dismiss suggests that the decision to frame her claims in this manner resulted from careful consideration rather than inadvertence.