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Staev v. Azouz5/11/2005
Before Justices Moseley, Francis, and Mazzant
Ghinica Staev appeals the summary judgment in favor of defendant David Azouz, M.D. In four issues, Staev argues the trial court erred in (1) granting the no-evidence motion; and granting the motion for summary judgment on the grounds that (2) her medical negligence lawsuit was recast as fraud and Deceptive Trade Practices Act (DTPA) causes of action, (3) the fraud and DTPA causes of action were barred by the applicable statute of limitations, and (4) the fraud and DTPA actions were barred by the statute of frauds. We affirm the trial court's judgment.
BACKGROUND
In 2002, Staev decided she wanted a face lift. She visited with several plastic surgeons but decided not to use them because she did not like their results as shown in their before-and-after pictures. When Staev visited Azouz, he showed her a before-and-after picture of a woman about Staev's age who looked much younger in the "after" picture. Staev hired Azouz to perform the face lift, paid him a $9000 fee for the operation, and paid the hospital $900 for its fees.
After the operation, Staev suffered much more pain and swelling than she expected. She learned that Azouz had almost completely removed her ears during the operation and had reattached them crookedly, with one ear lower than the other. Azouz had also shortened her eyelids to the point her eyes would not close. She also had a swelling in her cheek that had not subsided since the operation. Staev filed suit against Azouz under then-controlling article 4590i, the Medical Liability and Insurance Improvement Act. She alleged Azouz was negligent in failing to properly inform her of the risks of the surgery, was negligent in his performance of the surgery, and committed battery by performing surgery exceeding her informed consent. Staev failed to file the required expert report and curriculum vitae in compliance with section 13.01 of article 4590i. See Tex. Rev. Civ. Stat. Ann. art. 4590i, ยง 13.01 (repealed 2003). Instead, she amended her petition to include causes of action for fraud and violations of the DTPA and nonsuited her claims for negligence and battery.
In her fraud and DTPA actions, Staev alleged seven misrepresentations by Azouz:
a. Dr. Azouz falsely represented that the face lift procedure he intended to perform would be simple and uncomplicated;
b. Dr. Azouz falsely represented that Plaintiff would not have any significant swelling;
c. Dr. Azouz omitted to reveal the Plaintiff would actually suffer painful and embarrassing swelling for up to two months after the surgery;
d. Dr. Azouz falsely represented that Plaintiff could comfortably return to work on the fifth (5) day after the surgery;
e. Dr. Azouz omitted to reveal that the surgery he planned to perform would be significant and extensive, that during the surgery he would almost fully detach her ears and that he would permanently cut of the bony protrusions of the ears, that he would have to cut her eye lids and that doing so might result in her not being able to close her eyes;
f. Dr. Azouz falsely represented factual details pertaining to a "before and after" photo of a former patient used to demonstrate the success of his surgery;
g. Dr. Azouz falsely represented himself to be the best plastic surgeon in the Dallas area and that he exclusively performed facial plastic surgery[.]
Staev also asserted under the DTPA claim that Azouz "engaged in an unconscionable act" by taking advantage of her lack of knowledge, ability, experience or capacity to a grossly unfair degree and by exploiting his position
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