Reginald W. Bryant and Freda R. Bryant v. Brazos Kidney Disease Center, Central Texas Nephrology Associates, P.A., Dr. Robert J. Go, MD, Adele Mary Gadlin, RN, Kay Dunlap, LMSW, Jennifer Robinson, RLD, Laura Daily, RLD ( 2021 )

Affirmed and Memorandum Opinion filed January 28, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00024-CV
REGINALD W. BRYANT AND FREDA R. BRYANT, Appellants
V.
BRAZOS KIDNEY DISEASE CENTER, CENTRAL TEXAS
NEPHROLOGY ASSOCIATES, P.A., DR. ROBERT J. GO, MD, ADELE
MARY GADLIN, RN, KAY DUNLAP, LMSW, JENNIFER ROBINSON,
RLD, LAURA DAILEY, RLD, Appellees
On Appeal from the 170th District Court
McLennan County, Texas
Trial Court Cause No. 2018-846-4
MEMORANDUM OPINION1
Reginald and Freda Bryant, both appearing pro se, challenge the trial court’s
orders dismissing their lawsuit based on their failure to comply with the expert-
1
The Texas Supreme Court ordered the Tenth Court of Appeals to transfer this case to
this court. We must therefore decide the case in accordance with the precedent of the Tenth
Court of Appeals if our decisions would have been otherwise inconsistent with that court's
precedent. See Tex. R. App. P. 41.3.
report requirement found in the Texas Medical Liability Act (“the TMLA”). In
three issues, Appellants contend that their claims for “libel by health-care
professionals” and for falsification or fabrication of medical records are not claims
governed by the Act; alternatively, they argue that the medical records at issue are
not so “directly connected” to Reginald’s health care that they are governed by the
TMLA. We affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
This case arises out of Reginald Bryant’s treatment for end-stage renal
disease at Appellee Brazos Kidney Disease Center (“Center”). Appellee Robert J.
Go, MD, an employee-member of Appellee Central Texas Nephrology Associates,
P.A. (“CTNA”), was Reginald’s supervising physician. Appellees Adele Mary
Gadlin, RN, Kay Dunlap, LMSW, Jennifer Robinson, RLD and Laura Dailey,
RLD were employees of the Center.2 The record before us shows Reginald’s
course of treatment at the Center involved in-center hemodialysis, with each
session requiring several hours to complete, and with appointments every two to
four days. Bryant began treatment in January 2013 and continued to receive
treatment at the Center for over four years.
Throughout his treatment at the Center, Reginald’s progress was evaluated
periodically and noted on “Interdisciplinary Team Evaluation of Stability Status”
(“ITESS”) forms. Beginning in February 2017, these ITESS evaluations recorded
“disruptive” and “abusive” behavior toward doctors and staff during treatment and
identified Reginald as being “at risk for involuntary discharge or transfer.” Each
of the ITESS forms in question were signed by Go, Gadlin, Dunlap and either
Robinson or Dailey.
2
As used in this opinion, the term “Appellees” will refer to all persons and entities who
were Defendants in the trial court.
2
By letter dated September 14, 2017, Reginald was discharged as a patient by
CTNA. The discharge letter cited Reginald’s “continued refusal to communicate
with your Nephrology Medical Team” along with his “disruptive and hostile
behavior [which] endangers your care as well as that of adjacent patients,” as the
basis for his discharge. That same day, the Center discharged Reginald because he
no longer had a supervising physician.
On March 7, 2018, the Bryants, appearing pro se, filed suit in McLennan
County against Appellees. The Bryants’ First Amended Original Petition asserts
claims for defamation (based on allegedly false statements on Reginald’s ITESS
forms), intentional infliction of emotional distress (based on those allegedly false
statements and those in his discharge letter), negligence “due to the
Physician/Patient relationship,” and negligence per se (based on a violation of Tex.
Penal Code §37.10). The Bryants contend the ITESS entries were false and
defamatory and caused him harm by making it more difficult to transfer to a
different clinic to continue his treatment. The Bryants sought monetary damages
in connection with those claims.
Appellees CTNA and Go answered on March 16, 2018, asserting special
exceptions and affirmative defenses to the Bryants’ claims; they filed a Motion to
Dismiss five months later, on August 15. Appellees Gadlin, Dunlap, Robinson,
Dailey and the Center likewise answered on March 30, 2018, asserting special
exceptions and affirmative defenses, and moved to dismiss the Bryants’ claims on
August 17, 2018. Both Motions to Dismiss asserted that the Bryants claims were
in fact health care liability claims subject to the TMLA, and that the Bryants’
failure to file an initial expert report in support of those claims within the 120-day
time frame required by the TMLA precluded their causes of action. Tex. Civ. Prac.
& Rem. Code §74.351(a). The motions further contended that the medical records
3
at issue were “professional or administrative services directly related to health
care” and that any claims arising out of those services were health care liability
claims subject to the TMLA. The Bryants’ response included more than 550 pages
of Reginald’s medical records as exhibits. The Bryants also moved for traditional
summary judgment on their claims.
On September 27, 2018, the trial court signed two orders dismissing the
Bryants’ claims with prejudice and denying summary judgment to the Bryants.
The Bryants filed a Motion for New Trial on October 1, 2018; that motion was
denied by order dated October 22, 2018. This appeal followed.
II. ANALYSIS
In three issues, the Bryants3 dispute the trial court’s application of the
TMLA to their causes of action.4 They contend, first, that the trial court erred in
dismissing their cause of action for defamation because “defamation by [a] health
care professional” is not subject to the TMLA’s requirement of an initial expert
report; second, that their claim for “falsification and fabrication of medical
records” is not subject to the TMLA; and third, that the medical records at issue do
not qualify as the type of “professional and administrative services” made subject
to the TMLA.
A. STANDARD OF REVIEW AND APPLICABLE LAW
We review the trial court’s decision to grant a motion to dismiss under the
TMLA for an abuse of discretion. McIntyre v. Ramirez, 109 S.W.3d 741, 749
(Tex. 2003). Under this standard, the appellate court defers to a trial court’s
3
Freda Bryant filed a separate appeal on her own behalf, but does not state claims
distinct from Reginald’s claims. The parties do not raise any issues on appeal regarding Freda
Bryant’s claims.
4
The Bryants did not appeal the dismissal of their negligence-based claims.
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factual determinations, but reviews de novo questions of law involving statutory
interpretation. Univ. of Tex. Health Sci. Ctr. at Houston v. Joplin, 525 S.W.3d
772, 776 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). A trial court has no
discretion in determining what the law is or applying the law to the facts. Univ. of
Tex. Med. Branch at Galveston v. Callas, 497 S.W.3d 58, 62 (Tex. App.—Houston
[14th Dist.] 2016, pet. denied).
The dispositive question in this appeal -- whether the Bryant’s causes of
action are “health care liability claims” subject to the TMLA -- is primarily one of
statutory interpretation. Loaisiga v. Cerda, 379 S.W.3d 248, 254–255 (Tex. 2012).
When construing a statute, our goal “is to determine and give effect to the
Legislature’s intent” beginning with the “plain and common meaning of the
statute’s words.” Tex. W. Oaks Hosp. L.P. v. Williams, 371 S.W.3d 171, 177 (Tex.
2012)(internal quotation omitted). Whether a claim is a health care liability claim
under the TMLA is a question of law that we review de novo. Id. In determining
the question, we examine the underlying nature and gravamen of the claim, rather
than the way it is pleaded. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543
(Tex. 2004).
The TMLA, which is codified at Chapter 74 of the Civil Practice and
Remedies Code, was first enacted in 2003 as a comprehensive, top-to-bottom
medical-malpractice reform measure to “make affordable medical and health care
more accessible and available to the citizens of Texas,” and to “do so in a manner
that will not unduly restrict a claimant’s rights any more than necessary to deal
with the crisis.” Methodist Healthcare Sys. of San Antonio Ltd., L.L.P. v. Rankin,
307 S.W.3d 283, 287 (Tex. 2010) (internal citations omitted).
5
At issue here is the TMLA’s definition of a health care liability claim:
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). Plaintiffs asserting a health care
liability claim must file an expert report in support of that claim within 120 days of
the filing of a defendant’s original answer. Id. §74.351(a). If, as here, no report is
filed, the trial court must dismiss the claim with prejudice upon motion of an
affected party. Id. §74.351(b). The purpose of this “threshold” expert report
requirement is intended as a “substantive hurdle that helps ensure frivolous claims
are eliminated quickly.” Spectrum Healthcare Res., Inc. v. McDaniel, 306 S.W.3d
249, 253 (Tex. 2010).
Courts have distilled from this statutory definition a three-prong test. If
(1) the defendant is a health care provider or physician; (2) the claimant’s cause of
action is for treatment, lack of treatment, or other claimed departure from accepted
standards of medical care, health care, or safety or professional or administrative
services directly related to health care; and (3) the defendant’s alleged departure
from accepted standards proximately caused the claimant’s injury or death, then
the cause of action is a health care liability claim. Tex. W. Oaks Hosp., 371
S.W.3d at 179–180.
In subsequent cases, the Supreme Court has further refined this three-part
test into a working presumption. Relying on the TMLA’s consistent use of broad
language — particularly the statute’s expansive definition of “health care” — the
Court found the TMLA “essentially creates a presumption that a claim is [a health-
care liability claim] if it is against a physician or health care provider and is based
6
on facts implicating the defendant’s conduct during the course of a patient’s care,
treatment, or confinement.” Loaisiga, 379 S.W.3d at 256. The presumption can be
rebutted on a showing that “the only possible relationship between the conduct
underlying a claim and the rendition of medical services or healthcare will be the
healthcare setting . . . the defendant’s status as a doctor or health care provider, or
both.” Id.
Because the Bryants’ issues on appeal arise out of the same operative facts,
we first consider whether the Bryants’ causes of action trigger the presumption in
Loaisiga; if so, we will next determine if the Bryants have rebutted that
presumption.
B. APPLICATION
We determine whether the Bryants’ claims were properly dismissed by
examining the overall context of the their suit, the nature of the facts alleged in the
pleadings, those found in the motions to dismiss, the response, and any relevant
evidence properly admitted. Loaisiga, 379 S.W.3d at 258–59. We are not bound
by the parties’ characterization of those facts in their pleadings or other papers.
CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d 528, 534 (Tex. 2016).
1. DO THE UNDERLYING FACTS GIVE RISE TO THE PRESUMPTION OF A
HEALTH CARE LIABILITY CLAIM?
The presumption that the Bryants are asserting health care liability claims is
triggered on a showing that their causes of action are against a physician or health
care provider and is based on facts implicating the defendant’s conduct during the
course of a patient’s care, treatment, or confinement. Loaisiga, 379 S.W.3d at 256.
Here, the Bryants’ causes of action are based on entries in the medical records
maintained by the Center during Reginald’s four-year course of medical treatment,
which were then published to other health care providers to facilitate their
7
provision of medical care to Reginald Bryant. The harm complained of involves
publication of those entries to other health-care providers.
a. APPELLEES ARE PHYSICIANS OR HEALTH CARE PROVIDERS.
Appellees are all “health care providers” as that term is defined under
section 74.001(a)(12) of the TMLA. Tex. Civ. Prac. & Rem. Code
§§74.001(a)(12)(A)(Robert J. Go, supervising physician; CTNA, his professional
association); 74.001(a)(12)(A)(i)(Adele Mary Gadlin, registered nurse);
74.001(a)(12)(B)(ii)(Kay Dunlap, social worker, Jennifer Robinson, dietitian, and
Laura Dailey, dietitian, as employees of the Center). The Center is both a “health
care institution” and a “health care provider” under the TMLA. Id.
§§ 74.001(a)(11)(K), 74.001(a)12(A)(vii).
b. THE BRYANTS’ CAUSES OF ACTION IMPLICATE APPELLEES’
CONDUCT DURING THE COURSE OF REGINALD’S CARE,
TREATMENT OR CONFINEMENT.
Reginald Bryant’s periodic assessment includes evaluation by team
members of his ability to cooperate in the rendition of treatment and to adhere to
the requirements of his treatment plan. Tex. Admin. Code§117.45(a)(9). The
Bryants’ pleadings allege that Reginald’s ITESS sheets – and the termination letter
from CTNA – contain “false statements . . . pertaining to his behavior” during
Reginald’s treatment sessions at the Center.
The ITESS sheets state that a patient is considered unstable if certain
conditions exist, i.e., extended or frequent hospitalizations, marked deterioration in
health status, significant changes in psychosocial needs, or concurrent poor
nutritional status, unmanaged anemia, and inadequate dialysis. On February 20,
April 24, April 25, June 26, July 3, and August 15, of 2017, Reginald’s ITESS
sheets, which were signed by Appellants, stated he had significant changes in
8
psychosocial needs severe enough to interfere with his ability to follows aspects of
his treatment plan. The completed forms note that Reginald Bryant was “still very
unpredictable in behavior” (ITESS February 20, 2017), “verbal abuse to MD’s and
hospital staff” (April 24, 2017), “refused to attend POC [Plan of Care] meeting”
(annual report April 25, 2017) and accompanying notes indicating he was
disruptive or verbally abusive to medical staff (June 26, 2017, July 3, and August
15, 2017). Each of the ITESS forms in question were signed by Go, Gadlin,
Dunlap and either Robinson or Dailey.
The ITESS forms described Reginald as being “at risk” of a poor medical
outcome based on his uncooperative behavior. The September 14, 2017 discharge
letter echoes these concerns, as well as the risks Reginald’s conduct created for
other patients. The letter states that CTNA could not provide effective medical
care to Reginald Bryant due to failure to engage with medical staff during clinic
rounds to discuss treatment or medical well-being, refusal to meet with medical
staff to discuss his annual plan of care or discuss monthly reviews indicating
Reginald’s status as “unstable,” a history of verbal abuse and hostility toward
medical staff and walking out of a Plan of Care meeting to discuss conditional
status with CTNA.
End-stage renal disease facilities, such as the Clinic, are required by statute
to pair kidney dialysis with treatment plans which address patients’ “psychological,
social, and functional needs,” all in an effort to improve medical outcomes. 25
Tex. Admin. Code §117.45(a)(2). The “interdisciplinary team” – a patient’s
primary dialysis physician, registered nurse, dietitian and social worker -- must
evaluate the effectiveness of the treatment plan and sign off on a periodic progress
report. Id. §§117.45(a)(1), 117.45(a)(7). Thus the Bryants’ causes of action are
based on statements which relate to his health care and were an integral part of his
9
treatment.
Although the Bryants attempt to recast their causes of action as claims solely
based on defamation, the allegedly defamatory statements are all located in
Reginald’s medical records and all relate to his course of treatment at the Center,
as well as how his behavior affects his care. These facts demonstrate that the
Bryants’ claims fall within the TMLA’s definition of health care liability claims.
Tex. Civ. Prac. & Rem. Code §74.001(a)(13). Thus the circumstances which
would give rise to the presumption set forth in Loaisiga are invoked. Loaisiga,
379 S.W.3d at 256.
2. DID THE BRYANTS SUCCESSFULLY REBUT THE PRESUMPTION?
Because the TMLA’s text has been broadly interpreted, there is a rebuttable
presumption that a patient’s claims against a physician or health care provider,
based on facts implicating the physician’s conduct during the patient’s care,
treatment, or confinement are health care liability claims implicating the TMLA.
Loaisiga, 379 S.W. 3d at 256. In relation to the TMLA, cases have examined
whether the duty allegedly breached “implicates the defendant’s duties as a health
care provider” as opposed to duties owed to the public at large. See, e.g., T.C. v.
Kayass, 535 S.W.3d 169, 174 (Tex. App.—Fort Worth 2017, no pet.)(presumption
held rebutted when defendant doctor allegedly obtained plaintiff’s telephone
number from a medical chart and sent her a “harassing message” via text);
Drewery v. Adventist Health Sys./Tex., Inc., 344 S.W.3d 498, 499 (Tex. App.—
Austin 2011, pet. denied)(no health-care liability claim involved when nurses
painted surgical patient’s fingernails and toenails pink, and wrote their names on
the soles of his feet; acts were clearly “separable from the provision of medical
care”); see also Reddic v. E. Tex. Med. Ctr. Reg’l Health Care Sys., 474 S.W. 3d
672, 675 (Tex. 2015)(slip and fall negligence case not a health care liability claim
10
under the TMLA when it lacked a “substantive nexus” to the provision of health
care beyond the place where the incident occurred).
In this case, however, the Bryants have failed to rebut the presumption.
Unlike the claims at issue in T.C., the maintenance of accurate medical records
regarding treatment directly implicates duties owed by health care providers in the
provision of health care. Compare T.C., 535 S.W.3d at 174 with Baylor Scott &
White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 364 (Tex. 2019).
a. ARE THE BRYANTS’ CAUSES OF ACTION “DIRECTLY RELATED
TO” THE PROVISION OF HEALTH CARE?
In their third issue, the Bryants contend the discharge letter and ITESS
records are not “directly related” to Reginald’s medical care and therefore do not
constitute a health care liability claim. We disagree.
“Administrative services” subject to the TMLA are defined as
those duties or services that a physician or health care provider is
required to provide as a condition of maintaining the physician's or
health care provider's license, accreditation status, or certification to
participate in state or federal health care programs.
Tex. Civ. Prac. & Rem. Code §74.001(a)(24). The ITESS sheets at issue are
expressly required under the regulations governing end-stage renal disease
facilities and defined as a mandatory part of a dialysis patient’s treatment record.
25 Tex. Admin. Code §§117.45(a), 117.47(7), (8). Compliance with these
regulations is essential to the maintenance of the Center’s license. Tex. Health &
Safety Code §251.062(a). Because they are statutorily required as part of the
patient record, they are directly related to Bryant’s health care. Similarly, the
discharge letter from Appellee CTNA to Reginald is required by regulations
governing medical records kept by a physician. 22 Tex. Admin. Code
§165.1(a)(requiring physician’s patient records to be “complete, contemporaneous
11
and legible”); id. §165.1(a)(8)(record to include copies of significant
correspondence with patient). Maintenance of complete and accurate medical
records is likewise essential to maintenance of a physician’s license. Id.
§160.20(5). Both types of records purport to document the care and treatment
sought and received by Reginald Bryant.
The Bryants rely primarily on Carswell in disputing whether Reginald’s
medical records are directly related to his health care. See 505 S.W.3d at 536.
Carswell involved both malpractice in the death of a patient and fraud in
connection with the patient’s autopsy. Id. The jury awarded damages based on the
fraud claim but not the malpractice claim, and the issue on appeal became whether
the fraud claim was a health care liability claim as defined by the TMLA. Id. at
536–37. The court ultimately found that because fraud found by the jury was
committed in order to cover up a provider’s malpractice, the claim had an
“uninterrupted, close connection” to the alleged malpractice and therefore
constituted a health care liability claim. Id. at 536.
The Bryants’ reliance on Carswell is misplaced. While Carswell did refine
what it meant for a claim to be “directly related to” health care, that definition, if
applied here, would not change the outcome. A person’s medical records have an
“uninterrupted, close relationship or link” to health care rendered to that person.
TTHR, L.P. v. Coffman, 338 S.W.3d 103, 109 (Tex. App.—Fort Worth 2011, no
pet.)(“There can be no ‘administrative service’ more directly related to the
rendition of health care than the memorialization of that care.”) Because the
records at issue are Reginald’s medical records which document his treatment at
the Center, we conclude the Bryants have failed to rebut the presumption that their
claims are health care liability claims.
12
b. DO THE BRYANTS’ CLAIMS FALL WITHIN AN EXCEPTION TO
THE DEFINITION OF A HEALTH CARE LIABILITY CLAIM?
In their first and second issues, the Bryants contend that false statements
found in medical records “are not healthcare liability claims and, therefore, do not
trigger the expert report requirements” because they fit within an exception to the
TMLA. The Bryants’ arguments here, like those asserted in their Motion for New
Trial, are predicated almost entirely on Weems v. Baylor Scott & White, Hillcrest
Med. Ctr., 566 S.W.3d 293 (Tex. App.—Texarkana 2017), rev’d., 575 S.W.3d 357(Tex. 2019) and its predecessor case, Benson v. Vernon, 303 S.W.3d 755, 759
(Tex. App. —Waco 2009, no pet.). In Weems, a transfer case from the Waco Court
of Appeals, the Texarkana Court of Appeals applied the Waco court’s prior
precedent and held that claims of “alteration and fabrication of medical records”
are not health care liability claims subject to the TMLA’s expert report
requirements.” 566 S.W.3d at 294 (citing Benson, 303 S.W.3d at 759). In Benson,
the Waco Court of Appeals stated simply that alteration and fabrication of medical
records “is not a health care liability claim required to be addressed in an expert
report.” Benson, 303 S.W.3d at 759 (citing Tex. Civ. Prac. & Rem. Code
§74.001(a)(13)).
Weems was appealed to the Texas Supreme Court, which reversed. The
Baylor Scott & White Court held that the gravamen of a claim based on false
entries in a patient’s medical records involves breach of a health care provider’s
duty to maintain accurate records. Baylor Scott & White, 575 S.W.3d. at 363–364.
Because this duty is “directly related to health care,” a breach of that duty involves
a “claimed departure from accepted standards of . . . administrative services” and
so met the definition of a “health care liability claim” under the TMLA. Id. at
365–366 (citing Tex. Civ. Prac. & Rem. Code §74.001(a)(13)). As a result of a
change in the law, the Bryants can no longer rely on the Benson exception to the
13
TMLA’s definition of a health care liability claim. The presumption that the
Bryants’ causes of action are health-care liability claims once again stands
unrebutted.
In sum, the Bryants have not shown that the trial court erred in granting
Appellees’ motions to dismiss for failure to file an expert report as required by the
TMLA. Tex. Civ. Prac. & Rem. Code §74.351(b).
The Bryant’s first, second, and third issues are overruled.
III. Conclusion
We affirm the orders of the trial court.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Bourliot, Hassan, and Poissant.
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