Hart v. Wright ( 2000 )

OPINION

DIXON W. HOLMAN, Justice.

I. BACKGROUND

On January 22, 1996, Appellant Bobby Hart fell in his backyard. He began sweating, became flushed, and experienced pain in his arms, neck, and chest. Carolyn Hart drove Mr. Hart to Huguley Memorial Medical Center (Huguley) where he was admitted to the emergency room. Mr. Hart began vomiting and described feeling like “something was sitting on his chest.” Mr. Hart’s neck and chest were x-rayed, and a cat scan was ordered. Mr. Hart was given a shot and released later that day, but the following morning, he was admitted to Harris Hospital (Harris). An examination and tests indicated that he had suffered an inferior wall myocardial infarction. Cardiac catheterization revealed a complete occlusion of the left anterior descending coronary artery.

Appellants filed suit on January 21, 1998 against Huguley and the treating doctors at Huguley. Appellants alleged Appellees were negligent in their treatment and care of Mr. Hart, violations of the Deceptive Trade Practices Act (DTPA), and breach of good faith and fair dealing. Ms. Hart also sued to recover damages from the loss of support, advice, counsel, companionship, and consortium stemming from Appellees’ alleged negligence and for mental anguish damages.

Appellees filed motions to dismiss with prejudice pursuant to Appellants’ failure to file their expert report as required by Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d)(1) (Vernon Supp.2000). Appellants responded by offering a report from Dr. Hrishi Maewal, which purported to comply with article 4590i, section 13.01(d)(1). Appellants then filed a motion to extend time to file an expert affidavit. On October 15, 1998, the trial court held a hearing on Appellees’ motions to dismiss and found that Appellants had failed to furnish a report pursuant to article 4590i, section 13.01(d) in a timely manner. However, the trial court also found that under article 4590i, section 13.01(g), Appellants had provided sufficient evidence of good cause to permit the late filing of Dr. Mae-wal’s report; thus, the court granted Appellants’ motion to extend time to file the expert affidavit. The court postponed its ruling on Appellees’ claims that Dr. Mae-wal’s report was insufficient under article 4590i, section 13.01(r)(6).

On December 10, 1998, the trial court held a hearing on Appellees’ motion to strike Dr. Maewal’s report and denied it in addition to their motion to dismiss. Appel-lees filed another motion asking the court to reconsider the motion. The court reversed itself and found that Dr. Maewal’s report was insufficient as a matter of law and dismissed Appellants’ entire cause of action.

II. ISSUES ON APPEAL

Appellants contend in their first issue that the trial court erred by striking Dr. Maewal’s expert report and by dismissing their health care claim. In their second issue, Appellants insist that the trial court erred by dismissing their fraud and breach of fiduciary duty claims.

III. EXPERT REPORT OF DR. MAEWAL

We review a trial court’s order dismissing a case with prejudice pursuant to article 4590i, section 13.01(e)(3) under an abuse of discretion. See Wood v. Tice, 988 S.W.2d 829, 830 (Tex.App. — San Antonio 1999, pet. denied); Estrello v. Elboar, 965 S.W.2d 754, 758 (Tex.App. — Fort Worth 1998, no pet.). But see Palacios v. American Transitional Care Ctrs., 4 S.W.3d 857, 860 (Tex.App. — Houston [1st Dist.] 1999, pet. filed) (applying summary judgment standard of review, which we decline to follow).¹ An abuse of discretion occurs when a trial court acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding principles. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). To the contrary, an abuse of discretion does not occur where the trial court bases its decision on conflicting evidence, see Kirkpatrick v. Memorial Hosp., 862 S.W.2d 762, 776 (Tex. App. — Dallas 1993, writ denied), or where there is some evidence of a substantive and probative character to support the trial court’s decision. See Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App. — Houston [1st Dist.] 1993, writ denied). We must therefore examine the evidence in the light most favorable to the trial court’s order.

The Medical Liability and Insurance Improvement Act (the Act) was enacted by the Texas Legislature to curtail frivolous claims against physicians and related health care providers. See Horsley-Layman v. Angeles, 968 S.W.2d 533, 537 (Tex.App.—Texarkana 1998, no pet.). Under the Act, a plaintiff must provide each defending physician or health care provider one or more expert reports, along with a curriculum vitae, not later than the 180 a day after the date on which a health care liability action is filed. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d)(1). If a plaintiff fails to comply with this provision and the defendant files a motion seeking sanctions, a trial court has no discretion and must enter an order dismissing the case with prejudice. See id. § 13.01(e)(3).

But where an expert report is tendered to the opposing party, the party is permitted to challenge the report’s adequacy. See id. § 13.01©. The court must grant the motion if it appears to the court, after conducting a hearing, that the report does not represent a good faith effort to meet the requirements of an expert report. See id. An expert report is defined as any report written by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding: (1) the applicable standard of care; (2) the manner in which the care rendered by defendant failed to meet the standard of care; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See id. § 13.01(r)(6).

Appellants offered this written report of Dr. Maewal in affidavit form to comply with their obligation under the Act:

My name is Hrishi K. Maewal. I am over the age of majority, I have never been convicted of a felony or a crime of moral turpitude, and I am in all things qualified to make this affidavit.

I am a physician licensed to practice medicine in the State of Texas.

I am currently practicing medicine and was practicing medicine on January 22,1996.

I am board certified in Internal Medicine, Pulmonary Disease, Cardiology, and Critical Care Medicine.

I examined Bobby Hart at Harris Methodist Fort Worth Hospital on January 23,1996.

Based on the history obtained from the patient and his family members along with the supporting evidence of laboratory evaluation which showed an elevated creatine kinase of 1854 U/L, CK-MB 219.7 ng/ml and % relative index 11.9 at 10:41 a.m. along with an EKG which shows an inferior infarction with Q-waves, in my expert opinion, Mr. Hart was experiencing an acute myocardial infarction at approximately 5:00 p.m. on January 22, 1996 while a patient in the emergency room at Huguley Memorial Hospital.

Based on the above analysis, Dr. Wright, the treating physician at Hugu-ley Memorial Hospital, and Huguley Memorial Hospital departed from the acceptable standard of care for the diagnosis, medical care, and treatment of a patient with an acute myocardial infarction.

Appellants argue that even though Dr. Maewal’s report does not include all of the information required by section 13.01(r)(6), it nonetheless satisfies the definition of an expert report. We disagree because Dr. Maewal’s report does not address a standard of care, deviation from that standard, or that a deviation from the standard caused injury or damages. See id. The report merely concludes that Mr. Hart demonstrated signs and symptoms of a heart attack at a time and place with which Dr. Maewal had no connection. For Dr. Maewal to qualify as an expert, the report had to show that he had knowledge of the accepted standards of care for the diagnosis, care and treatment of the injury involved, how the applicable standard was breached, and how the alleged breach contributed to Appellants’ injuries or damages. See id. §§ 13.01(r)(5), (6). While a party need not marshal all of its proof, a good faith effort in preparing an expert report must, at a minimum, attempt to incorporate the three requirements found in section 13.01(r)(6). Here, the concluso-ry report is not the good faith effort required by the statute. We overrule issue one.

IV. FRAUD AND BREACH OF FIDUCIARY DUTY

Although a plaintiff may assert a claim for common law fraud that is not governed by article 4590i, see Shannon v. Law-Yone, 950 S.W.2d 429, 436 (Tex. App. — Fort Worth 1997, pet. denied),² Texas courts have repeatedly held that a plaintiff cannot recast a health care liability claim in the language of another cause of action to circumvent the statute’s purpose. See Savage v. Psychiatric Inst., 965 S.W.2d 745, 751 (Tex.App. — Fort Worth 1998, pet. denied). In determining whether a plaintiff has attempted to do so, we review the underlying nature of the cause of action. See Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994). If, as here, the cause of action is based on the physician’s breach of the accepted standard of medical care, the cause of action is nothing more than a health care liability claim, no matter how a plaintiff labels it. See Gormley v. Stover, 907 S.W.2d 448, 450 (Tex. 1995); Savage, 965 S.W.2d at 751.

In addition to their allegations of medical negligence and fraud, Appellants assert that their cause of action arose in part because Dr. Wright owed them a fiduciary duty and breached it. Appellants maintain that when Mr. Hart entered Huguley’s emergency room on January 22, 1996, Dr. Wright had a fiduciary duty to inform him that the emergency room physicians were not employees of the hospital and that it would not accept responsibility for the medical treatment those physicians administered in its emergency room.

A physician is liable for malpractice or negligence only when there is a physician-patient relationship. See Wilson v. Winsett, 828 S.W.2d 231, 232-33 (Tex. App. — Amarillo 1992, writ denied). Additionally, a physician has no liability for medical malpractice unless the physician breaches that duty. See St. John v. Pope, 901 S.W.2d 420, 423 (Tex.1995). Breach of a fiduciary duty by misrepresentation is simply a form of fraud and deception, and although a fiduciary relationship might exist between a physician and patient in special circumstances, the description of a physician’s disclosure duty to a patient in the Act addresses only a duty to disclose to the patient the risks and hazards of a medical or surgical procedure before the patient consents to undergo it. See Tex. Rev.Civ. Stat. Ann. art. 4590i, § 6.05.

Appellants have not cited any case law or statutory law to support their contention that Dr. Wright had a fiduciary duty of the character or description asserted in their pleading and their brief on appeal. Appellants’ allegations of fraud and breach of fiduciary duty by misrepresentation is but an impermissible recasting of their claim for the alleged medical malpractice. See Gormley, 907 S.W.2d at 450.

Appellants also assert that they were defrauded when Mark Forrester, an insurance adjuster acting on behalf of Huguley, told them that Huguley wanted to reach a settlement with them. The parties never agreed on settlement terms. To establish a claim for common-law fraud or misrepresentation, a plaintiff must show that a material misrepresentation was made by a person who knew it was false or made the misrepresentation recklessly without any knowledge of its truth or falsity and with the intention that it would be acted upon by another; and that the other person did act in rebanee and was injured as a result. See Savage, 965 S.W.2d at 752.

After carefully reviewing Appellants’ petition, it is clear that their breach of fiduciary duty claim, stemming from a non-disclosure of the status of emergency room physicians, is simply a claim resulting from a breach of the accepted standard of care. There are no independent factual allegations supporting fraud other than those that relate to their medical malpractice claim. There is no proof that any representation was made, that it was false, or that it was rebed on by Appellants. Although Appebants argue that the alleged misrepresentation was an affirmative omission, this is insufficient to support a finding of fraud absent a duty to speak, and we do not find one here.³ See Smith v. National Resort Communities, Inc., 585 S.W.2d 655, 658 (Tex.1979). As for the alleged misrepresentations of Mark Forrester, Appebants have faded to estabbsh that the statements were false and that they relied on them. Moreover, Appellants seek to recover the same damages under ab theories of babibty.

Without their medical malpractice claim, Appebants would have no claim for fraud. Appellants’ attempt to avoid dismissal under article 4590i, section 13.01 by characterizing their claims as fraud is untenable. See Gormley, 907 S.W.2d at 450; Savage, 965 S.W.2d at 751. We overrule issue two.

V. CONCLUSION

Because the trial court did not err by dismissing Appellants’ causes of action against Appellees, we affirm the trial court’s judgment.

LIVINGSTON, J. filed dissenting and concurring opinion.

1 . A claimant under article 4590i must provide opposing parties one or more expert reports within 180 days after filing the claim. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d)(1). Failure to do so can result in the dismissal of the claimant’s case. See id. § 13.01(e)(3). Section 13.01(e) specifically describes such a dismissal as a "sanction” against the claimant. See id. Sanctions are typically reviewed under an abuse-of-discretion standard. See Stites v. Gillum, 872 S.W.2d 786, 788 (Tex. App.- — Fort Worth 1994, writ denied). We are bound by the plain language of section 13.01(e) and the common meaning of the term "sanction.” Therefore, we will review Appellants’ issue under an abuse-of-discretion standard.

2 . Unlike the case before us, the plaintiff in Shannon did not allege that his health care providers were negligent or that they breached the acceptable standard of care. See Shannon, 950 S.W.2d at 437.

3 . A duty to speak may arise when a fiduciary relationship exists between parties, see Stone v. Lawyers Title Ins. Corp., 537 S.W.2d 55, 67 (Tex.Civ.App. — Corpus Christi 1976), aff'd in part & rev'd in part, 554 S.W.2d 183 (Tex. 1977), or when a party makes a material representation relied upon by the other party that the party later finds out to be untrue and fails to reveal this change in events. See Susanoil, Inc. v. Continental Oil Co., 519 S.W.2d 230, 236 (Tex.Civ.App. — San Antonio 1975, writ ref d n.r.e.).