Fort Duncan Medical Center, L.P. v. Edwin Martin and Esther Martin, Individually and as Representative of the Estate of Robert Martin ( 2012 )

MEMORANDUM OPINION
No. 04-11-00897-CV
FORT DUNCAN MEDICAL CENTER, L.P.,
Appellant
v.
Edwin MARTIN and Esther Martin, Individually and as Representative of the Estate of Robert
Martin,
Appellees
From the 365th Judicial District Court, Maverick County, Texas
Trial Court No. 10-12-26093-MCVAJA
Honorable Amado J. Abascal, III, Judge Presiding
OPINION ON APPELLEE’S MOTION FOR REHEARING
Opinion by: Steven C. Hilbig, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: August 1, 2012
REVERSED AND REMANDED
We grant Edwin Martin and Esther Martin’s, Individually and as Representative of the
Estate of Robert Martin, Motion for Rehearing. This court’s opinion and judgment dated May
16, 2012 are withdrawn and substituted with this opinion and accompanying judgment. Fort
Duncan Medical Center appeals the trial court’s order denying its motion to dismiss Edwin
04-11-00897-CV
Martin and Esther Martin’s, Individually and as Representative of the Estate of Robert Martin,
lawsuit. We reverse and remand.
BACKGROUND
Robert Martin was an outpatient at Fort Duncan Medical Center (“the Center”) where he
underwent surgery. Robert’s parents (the Martins) alleged that during the surgery Dr. Fowler
severed both of Robert’s internal carotid arteries and ultimately caused Robert’s death. The
Martins filed suit against Dr. James H. Fowler and his employer Maverick County Hospital
District, asserting negligence and gross negligence in the performance of the surgery and post-
operative care. After discovery began, the Martins filed suit against the Center, alleging
negligent credentialing of Dr. Fowler. However, the Martins dismissed the negligent
credentialing claim and proceeded against the Center for conspiracy and fraud. In their sixth
amended petition, the Martins alleged (1) Maverick County Hospital District was liable for the
negligent acts of its agent, Dr. Fowler, in his performance of surgery and post-operative
treatment of Robert Martin, and (2) Dr. Fowler and Fort Duncan Medical Center acted in concert
almost two weeks after the death of Robert Martin to falsify the operative report of the surgery in
question “in order to gain an economic advantage in the potential litigation of this action or to
conceal material facts that would implicate Defendant Dr. James Fowler M.D. and Defendant
Fort Duncan Medical Center, L.P.” The Martins alleged that almost two weeks after Robert’s
surgery Dr. Fowler altered the medical records at the request of the Center’s attorneys. The
Martins claim Dr. Fowler added an addendum to his operative report and made changes to
Robert’s medical history. They pled Dr. Fowler changed the medical records to reflect that he
performed certain procedures that he did not perform and never intended to perform.
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Although the Martins assert their claim is a fraud claim and not a health care liability
claim, they pled the Center was given proper written notice as required by Chapter 74 of the
Medical Liability Act. The Martins also filed an affidavit from John C. Hyde, Ph.D., who
asserted the Center “grossly failed in its duty to protect patients, such as Mr. Martin, from an
environment of deception and lack of accountability.”
The Center filed a motion to dismiss the Martins’ suit, asserting the claims were health
care liability claims and the Martins failed to file an expert report that complied with section
74.351 of the Texas Civil Practices and Remedies Code. In response, the Martins argued that the
claims against the Center were not health care liability claims; rather, they were fraud and
conspiracy claims not subject to the requirements of Chapter 74. The trial court denied the
motion stating the fraud and conspiracy claims were not health care liability claims, and the
Center appeals.
DISCUSSION
A claim against a health care provider that the provider departed from accepted standards
of care is governed by section 74.351 of the Texas Civil Practice and Remedies Code. Section
74.351 requires that a plaintiff serve on each party “one or more expert reports, with a
curriculum vitae of each expert listed in the report for each physician or health care provider
against whom a liability claim is asserted.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)
(West 2011). An “expert report” is defined as “a written report by an expert that provides a fair
summary of the expert’s opinions as of the date of the report regarding applicable standards of
care, the manner in which the care rendered by the physician or health care provider failed to
meet the standards, and the causal relationship between that failure and the injury, harm, or
damages claimed.” Id. § 74.351(r)(6). A court must grant a motion to dismiss under section
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74.351(b) if, after the 120–day deadline has passed, it appears to the court that the report does
not represent an objective, good-faith effort to comply with the definition of an expert report. Id.
§ 74.351(b)(l ).
The question of whether a claim is a health care liability claim is a question of law that
we review de novo. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005).
We look to the nature and essence of the claim, rather than the way the parties plead their cause
of action. Id.; see Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 664 (Tex. 2010). When
the essence of the suit is a health care liability claim, a party cannot avoid the statutory
requirement of filing an expert report in support of its claim by artful pleading. Yamada v.
Friend, 335 S.W.3d 192, 195–96 (Tex. 2010); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541,
543 (Tex. 2004). The Texas Supreme Court has warned that “allowing the claim to be split or
spliced into a multitude of other causes of action with differing standards of care, damages, and
procedures would contravene the Legislature’s explicit requirements.” Yamada, 335 S.W.3d at
197; see also Diversicare Gen. Partner, 185 S.W.3d at 854 (holding claimant could not allege
premises-liability claim independent of health care liability claim). A claim is a health care
liability claim if it implicates standards of medical care by alleging a negligent act or omission
that is “an inseparable or integral part of the rendition of medical services.” Marks, 319 S.W.3d
at 664.
The Martins contend their claims against the Center are not health care liability claims
because they are not directly related to acts that occurred during Robert’s treatment, medical
care, or confinement. Rather, they assert the basis of their suit against the Center is for fraud. 1
1
A fraud cause of action requires a material misrepresentation, which was false, and which was either known to be
false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was
relied upon, and which caused injury. Sears, Roebuck & Co. v. Meadows, 877 S.W.2d 281, 282 (Tex. 1994).
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Following the principles espoused in Yamada, we hold the Martins’ claims against the Center are
health care liability claims. The Texas Supreme Court has clearly stated that artful pleading and
the recasting of claims, in an attempt to avoid the expert report requirement, is not permissible.
Yamada, 335 S.W.3d at 197. Initially, the Martins claimed the Center negligently credentialed
Dr. Fowler, which is clearly a health care liability claim. Garland Cmty. Hosp., 156 S.W.3d at
546. They amended their pleadings to eliminate the negligent credentialing claim and pled the
Center committed fraud by requesting Dr. Fowler alter Robert’s medical records. In the Martins’
sixth amended petition, they seek damages they claim were proximately caused by Dr. Fowler’s
alleged falsification of medical records.
Section 74.001(13) defines a health care liability claim as including a departure from
accepted standards of professional or administrative services directly related to health care. TEX.
CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West 2011). The preparation of medical records is
an “administrative service” directly related to the rendition of health care and a memorialization
of that care. See TTHR, L.P. v. Coffman, 338 S.W.3d 103, 108 (Tex. App.—Fort Worth 2011, no
pet.) (“[T]he duty to create records is directly related to the acts performed by the health care
provider or treatments received by the patient.”); see also 22 TEX. ADMIN. CODE § 165.1(a)
(2010). The substance of the Martins’ claims arise by reason of the same occurrence—the
operation and post-operative treatment of Robert Martin. Their suit against the Center is
premised on the acts and omissions of Dr. Fowler with respect to his surgery and post-operative
treatment of the patient. The record tampering claims involve an examination of the intent of Dr.
Fowler in completing the medical records associated with the same surgery and post-operative
treatment. Thus, the Martins’ claims are health care liability claims. See Marks, 319 S.W.3d at
664.
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On rehearing, the Martins assert that upon determining their claims against the Center are
health care liability claims, the case should have been remanded for the trial court to determine
whether the expert report of John C. Hyde, Ph.D. is deficient and if found to be deficient,
whether they are entitled to a thirty-day extension to correct the deficiency. We agree. The trial
court denied the Center’s motion to dismiss because it found the Martins’ claims were not health
care liability claims. The trial court did not review Hyde’s report to determine whether it met the
requirements of Chapter 74. Therefore, this case must be remanded for the trial court to make
such determination. Leland v. Brandel, 257 S.W.3d 204, 207 (Tex. 2008); see also Am.
Transitional Care Ctrs. of Tex. v. Palacios, 45 S.W.3d 873, 878 (Tex. 2001) (issue for the trial
court is whether “the report” represents a good-faith effort to comply with the statutory definition
of an expert report in TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West 2011)).
We hold the trial court erred by concluding the Martins’ claims were not health care
liability claims. We hold the Martins’ claims against the Center are health care liability claims
subject to the expert report requirements in section 74.351 of the Texas Civil Practice and
Remedies Code. The case is remanded to the trial court for further proceedings consistent with
this opinion.
Steven C. Hilbig, Justice
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