Access Orthodontics of East 7th Street, P .A. v. Miriam Jaimes, 03-15-00081-CV

Jaimes sued Access for deceptive trade practices; Access moved to dismiss under TMLA §74.351(b) for failure to serve an expert report; court denied the motion; Access argued Jaimes’ claims are health care liability claims; Jaimes did not serve an expert report; the dispute centers on whether the claim is about treatment/lack of treatment and injury; the court must determine if dismissal with prejudice and attorney’s fees are required

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred in denying dismissal under §74.351(b)	Jaimes’ claims are not health care claims	Jaimes’ claims are health care liability claims and require an expert report	Yes, trial court erred; Jaimes’ claims are health care liability claims.

Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541 (Tex. 2004) (defines health care liability claim; look to gravamen of complaint)
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (rejects form-over-substance pleading; inseparability from health care services)
Walden v. Jeffery, 907 S.W.2d 446 (Tex. 1995) (dental care can be health care liability; dentures as inseparable from health care services)
Kumets, 368 S.W.3d 711 (Tex. App. — Austin 2012) (injury element may include mental/emotional injury in health care claims)
Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658 (Tex. 2010) (three elements of a health care liability claim; treatment, breach, injury proximately caused)
Jernigan v. Langley, 195 S.W.3d 91 (Tex. 2006) (abuse of discretion standard for dismissal; de novo for whether claim is health care claim)