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Boothe v. Dixon12/13/2005
Before Justices Wright, Moseley, and Lang.
In a single issue, William A. Boothe, M.D., individually and d/b/a Boothe Eye Care and Laser Center, challenges the trial court's order denying Boothe's motion to dismiss and motion for summary judgment on grounds that Joe Dixon failed to comply with the expert report requirements of section 74.351(b) of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. ยง 74.351(b) (Vernon Supp. 2005). Because we conclude that Dixon's claims are "health care liability claims" making them subject to section 74.351(b), we resolve Boothe's issue in his favor, reverse the trial court's order, render judgment dismissing Dixon's claims with prejudice, and remand this case solely for a determination of reasonable attorney's fees and costs of court incurred by Boothe.
I. FACTUAL AND PROCEDURAL BACKGROUND
Based on Dixon's allegations, Dixon sought treatment for his vision from Boothe and underwent laser eye surgery in July 2001. His eyesight improved, but "then dramatically deteriorated." Dixon contacted Boothe, who told Dixon that he needed "touch up" surgery. Boothe performed another laser surgery, after which Dixon's vision did not significantly improve and "began further deterioration." Dixon reported this result to Boothe, who told Dixon a new procedure called "custom abrasion" would be approved within the next year and that this surgery would solve Dixon's problems. Boothe told Dixon he would be an "ideal candidate" for custom abrasion and he would refund Dixon's money on the two previous surgeries. Based on Boothe's representations that custom abrasion would be available and would solve Dixon's problems, Dixon and his wife executed a "Release of All Claims" in November 2002. In April 2003, Dixon contacted Boothe's office, but was informed that Boothe did not see patients after one year. Subsequently, Dixon learned that he was not a candidate for the initial surgery or the touch up surgery and, as a result of the two surgeries, he was not a candidate for custom abrasion.
In his first amended petition, Dixon asserted claims for fraud, breach of fiduciary duty, and violation of the DTPA. As to the fraud claim, Dixon alleged Boothe made material representations to Dixon to induce him into obtaining the first and touch up laser eye surgeries and executing the Release of All Claims. As to the breach of fiduciary claim, Dixon alleged Booth "made misrepresentations to Plaintiff regarding the appropriateness of and availability of medical procedures to induce Plaintiff into executing the 'Release of All Claims.'" As to the DTPA claim, Dixon alleged Boothe "engaged in an unconscionable course of action in misrepresenting the availability of future medical procedures to Plaintiff"; "represented that an agreement conferred or involved rights, remedies, or obligations which it does not have or involve"; "knowingly made false or misleading statements of fact concerning the need for corrective service"; "failed to disclose information about goods or services that was known at the time of the transaction to induce Plaintiff into entering into a transaction that the consumer would not have entered into had the information been disclosed"; and "further represented that Plaintiff had an astigmatism to 'upcharge' Plaintiff for the initial surgery." Dixon requested actual, economic, and exemplary damages, pre- and postjudgment interest, attorney's fees, costs, and injunctive relief.
Boothe filed a motion to dismiss and motion for summary judgment and a first amended and supplemental motion to dismiss. Boothe argued that all Dixon's claims were based on Boothe's medical treatment or medical opinion as to future eve
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