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Boothe v. Dixon12/13/2005
n's condition. Dixon contends that this representation constitutes fraud pursuant to Shannon v. Law-Yone, 950 S.W.2d 429 (Tex. App.-Fort Worth 1997, pet. denied). In Shannon, the plaintiff alleged specific fraudulent conduct in connection with keeping him hospitalized, including deceiving him into rescinding requests for release, creating false records, misrepresenting that insurance would not cover his medical bills if he were released against medical advice, and misrepresenting his condition to others. Id. at 432-34. The plaintiff did not allege negligence in his treatment or medical malpractice. Id. at 437. However, an allegation that a misrepresentation is made "knowingly" is not determinative when analyzing the underlying nature of a claim. See Savage v. Psychiatric Inst. of Bedford, Inc., 965 S.W.2d 745, 752 (Tex. App.-Fort Worth 1998, pet. denied). Here, the underlying nature of the claim is whether Dixon would be a candidate for custom abrasion after two laser surgeries, which is a question of medical condition, diagnosis, and treatment. See id. Consequently, Shannon is distinguishable.
Moreover, the only question at this stage is whether the underlying nature of each of Dixon's claims is a health care liability claim; this is a threshold requirement, not a recovery requirement. See Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (per curiam). Consequently, Dixon's reliance on cases regarding the submission of issues of fraud and informed consent in medical malpractice cases is misplaced. See Gaut v. Quast, 510 S.W.2d 90 (Tex. 1974) (per curiam); Crundwell v. Becker, 981 S.W.2d 880 (Tex. App.-Houston [1st Dist.] 1998, pet denied); Melissinos v. Phamanivong, 823 S.W.2d 339 (Tex. App.-Texarkana 1991, writ denied).
Relying primarily on Sorokolit, Dixon next argues that statements amounting to specific promises of cure or a particular result are actionable under the DTPA. In Sorokolit, 889 S.W.2d at 240, a surgeon "guaranteed and warranted" a specific result, instructing the plaintiff to select a picture and promising, following surgery, her breasts "would look just like those in the picture she selected." Here, in contrast, Boothe's alleged representations were that Dixon was an "ideal candidate" for custom abrasion that would "resolve his problems." Thus, the alleged representation related to a possible future procedure that was never performed; in any event, they were not the specific statements necessary to establish a knowing misrepresentation or breach of an express warranty regarding the results of treatment. See Mulligan v. Beverly Enters.-Tex. Inc., 954 S.W.2d 881, 884 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (contrasting representations as to guaranteeing a particular result to representations as to providing care and service).
Finally, Dixon contends that any medical malpractice claim is the basis of his damages, not his claims in this suit. However, there are no separate damages pleaded as between a fraudulent inducement claim and other claims. Moreover, proof of the economic value of the claims released requires proof of those claims, that is, whether Boothe's medical and treatment of Dixon met the applicable standard of care.
CONCLUSION
We conclude that all Dixon's claims meet the statutory definition of a "health care liability claim" and are thus subject to the expert report requirement of section 74.351(b), and we reject all Dixon's arguments to the contrary. Accordingly, we resolve Boothe's issue in his favor. Because of our resolution of Boothe's argument regarding section 74.351(b), we need not address his argument regarding section 74.004. Because Dixon failed to file an expert report as required by section 74.351(b), we re
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