530 S.W.3d 754
Tex. App.2017Background
- Moss paid Dr. Ahmadi for a breast reduction and axillary liposuction; she alleges only the breast reduction was performed.
- Moss sued alleging breach of contract, breach of implied contract, and unjust enrichment seeking only economic damages (refund/reimbursement).
- Ahmadi answered, pleading that Moss’s claims are a Chapter 74 health care liability claim and asserting Moss had not served an expert report.
- After 120 days elapsed with no expert report served, Ahmadi moved to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351(b).
- Trial court denied the motion; Ahmadi appealed interlocutorily.
- The court reviewed whether Moss’s suit was a health care liability claim (thus requiring an expert report) and whether economic damages alone constitute the requisite “injury.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Moss’s pleaded contract-based claims are a "health care liability claim" under Chapter 74 | Moss: claims are contractual/billing disputes tangential to medical care and thus not subject to Chapter 74 | Ahmadi: claims allege lack of promised treatment and thus fall within Chapter 74 | The court held the claims are health care liability claims because they arise from lack of treatment during Moss’s care and implicate the provider’s conduct; plaintiff’s labels do not control (Loaisiga/Yamada). |
| Whether Moss’s purely economic damages satisfy Chapter 74’s requirement that the defendant’s departure proximately result in an "injury" | Moss: "injury" requires personal/physical injury entitling noneconomic damages; pure economic loss falls outside Chapter 74 | Ahmadi: plaintiff cannot avoid Chapter 74 by pleading only economic damages for a care-related wrong | The court held "injury" is broad enough to include economic harm (services paid for but not performed); economic damages can support a health care liability claim. |
| Remedy where claimant fails to serve expert report within 120 days | Moss: N/A (did not serve a report) | Ahmadi: dismissal with prejudice and attorney’s fees mandated under §74.351(b) | The court held dismissal (and award of reasonable attorney’s fees) is required because Moss did not serve the expert report. |
Key Cases Cited
- Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012) (standard for determining whether a claim is a health care liability claim; examine underlying facts, not labels)
- Yamada v. Friend, 335 S.W.3d 192 (Tex. 2010) (plaintiff may not avoid Chapter 74 by artful pleading)
- Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (Tex. 2012) (if expert testimony is necessary to prove or refute the claim, it supports classification as a health care liability claim)
- Shanti v. Allstate Ins. Co., 356 S.W.3d 705 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (distinguishes claims that are tangential to medical care and where medical expert testimony is unnecessary)
- PM Mgmt.-Trinity NC, LLC v. Kumets, 368 S.W.3d 711 (Tex. App.—Austin 2012) (court holding that purely economic harm may not qualify as the requisite "injury" under Chapter 74 — discussed and declined to follow)
- Hopebridge Hosp. Houston, L.L.C. v. Lerma, 521 S.W.3d 830 (Tex. App.—Houston [14th Dist.] 2017) (court may look to the entire record when determining whether a claim implicates care/treatment)