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Boothe v. Dixon12/13/2005
nts and thus were a recasting of medical negligence claims, which were subject to dismissal for failure to file an expert report within the deadline required by section 74.351(b). In addition, Boothe argued that Dixon's DTPA claims were barred by section 74.004 because they were recast medical negligence claims. Boothe also argued that he was entitled to summary judgment because the Release of All Claims barred all claims as a matter of law.
He requested attorney's fees and costs of court. Dixon responded to the motion to dismiss and motion for summary judgment. After a hearing, the trial court denied Boothe's motion to dismiss and motion for summary judgment without specifying the grounds on which its decision was based. II. MOTION TO DISMISS FOR FAILURE TO FILE EXPERT REPORT In his single issue, Boothe argues that the trial court erred in denying his motion to dismiss because all Dixon's claims were improperly recast medical negligence claims subject to dismissal for noncompliance with the expert report requirement of section 74.351(b).
A. Applicable Law and Standard of Review
The version of section 74.351(a) that applies to this case provided that a healthcare liability claimant must file an expert report and curriculum vitae within 120 days after filing the claim. Act of June 2, 2003, 78th Leg., R.S., ch. 205, § 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, §1, 2005 Tex. Gen. Laws 1590 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2005). If a required expert report has not been served by the 120-day deadline, on proper motion by the defendant the trial court "shall" dismiss the action with prejudice and award reasonable attorney's fees and court costs incurred by the defendant.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b).
The expert report requirements of section 74.351(b) apply to a patient's claims, regardless of whether they are tort claims, when those claims come within the statutory definition of a "health care liability claim," 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 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. Id. § 74.001(a)(13) (Vernon 2005). "Health care" is defined as: any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement.
Id. § 74.001(a)(10) (Vernon 2005). "Medical care" is defined as: any act defined as practicing medicine under Section 151.002, Occupations Code, performed or furnished, or which should have been performed, by one licensed to practice medicine in this state for, to, or on behalf of a patient during the patient's care, treatment, or confinement.
Id. at § 74.001(a)(19) (Vernon 2005). "Practicing medicine" means the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions, by a person who:
(A) publicly professes to be a physician or surgeon; or
(B) directly or indirectly charges money or other compensation for those services.
Tex. Occ. Code Ann. § 151.002(a)(13) (Vernon Supp. 2005). Artful pleading cannot avoid the requirements of section 74.351 w
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