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Boothe v. Dixon12/13/2005
hen the essence of the suit is a health care liability claim. Diversicare Gen. Partner, Inc. v. Rubio, 2005 WL 2585490, at *7 (Tex. Oct. 14, 2005) ("It is well settled that a health care liability claim cannot be recast as another cause of action to avoid the requirements of the MLIIA"); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004); MacGregor Med. Ass'n v. Campbell, 985 S.W.2d 38, 40 (Tex. 1998). To determine whether a cause of action falls under chapter 74's definition of a health care liability claim, we examine the claim's underlying nature. Id. (citing Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994)). If the act or omission alleged in the complaint is an inseparable part of the rendition of health care services, or if it is based on a breach of a standard of care applicable to health care providers, then the claim is a health care liability claim. Id. at 544 (citing Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex. 1995)). One consideration in that determination may be whether proving the claim would require the specialized knowledge of a medical expert. Garland Cmty Hosp., 156 S.W.3d at 544 (citing Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d 417, 419 (Tex. App.-Corpus Christi 1999, no pet.)); see Diversicare Gen. Partner, Inc., 2005 WL 2585490, at *4.
Whether a claim is a health care liability claim pursuant to section 74.351 is a question of law and is reviewed de novo. Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App.-Houston [14th Dist.] 2004, no pet.); Ponce v. El Paso Heathcare Sys., Ltd., 55 S.W.3d 34, 36 (Tex. App.-El Paso 2001, pet. denied); Gomez v. Matey, 55 S.W.3d 732, 735 & n.2 (Tex. App.-Corpus Christi 2001, no pet.).
B. Discussion
Boothe argues that Dixon improperly recast medical negligence claims to avoid dismissal. Boothe argues that all Dixon's claims are intertwined with Boothe's rendition of medical services, which involved Boothe's diagnosis of Dixon's medical condition and Boothe's medical judgment and advice as to the choice of medical procedures; the potential risks and complications such as visual deterioration and candidacy for further medical treatment; and Dixon's alleged physical injury from the two surgeries. We agree.
To prove that Boothe's diagnoses and treatment were to Dixon's detriment, Dixon would have to provide proof of his medical condition before and after the laser surgeries and in relation to custom abrasion. Dixon must also prove Boothe undertook a mode or form of treatment that a reasonable and prudent member of the medical profession would not undertake under the same or similar circumstances and rely on expert medical testimony. See Gomez, 55 S.W.3d at 735 (concluding allegations of "knowing" misrepresentation regarding necessity of hysterectomy a health care liability claim). Dixon's claim that Boothe's misrepresentations regarding the release were improper is an inseparable part of Boothe's rendition of medical services because Dixon's claim rests on alleged misrepresentations regarding medical care and treatment. See Parker v. CCS/Meadow Pines, Inc., 166 S.W.3d 509, 513 (Tex. App.-Texarkana 2005, no pet.) (concluding allegations of improper restraint related to course of care or treatment a health care liability claim); Williams v. Walker, 995 S.W.2d 740, 741-42 (Tex. App.-Eastland 1999, no pet.) (concluding allegations of assault and battery regarding use of medical procedure without patient's consent a health care liability claim).
Nevertheless, Dixon contends that his cause of action for fraudulent misrepresentation in procuring a release of health care liability claims is not within the report requirements of chapter 74 because Boothe knowingly made a false statement about Dixo
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