Bioderm Skin Care, LLC and Quan Nguyen, M.D. v. Veasna "sandee" Sok
426 S.W.3d 753
Tex.2014Background
- Laser hair removal claim arises under Texas Medical Liability Act (TMLA).
- Sok alleges burns during fifth treatment after Dr. Nguyen increased laser intensity; dispute over severity of burns.
- Sok sues Bioderm Skin Care, LLC and Dr. Nguyen; defendants move to dismiss as health care liability claim under TMLA.
- Court of Appeals affirmed denial of dismissal; petition for review granted by Texas Supreme Court.
- Court applies Loaisiga presumption that claims based on care during treatment are health care liability claims; presumption favors dismissal if not rebutted.
- Court holds Bioderm is a health care provider (affiliate of Dr. Nguyen) and expert medical testimony is required; Sok did not rebut the presumption; case remanded to dismiss with fee considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the claim is a health care liability claim under the TMLA | Sok disputes health care claim status | Bioderm/Nguyen argue health care claim under statute | Yes; presumption applies and claim is health care liability |
| Whether Bioderm is a health care provider under the TMLA | Bioderm not a physician-based provider | Affiliate of physician qualifies as health care provider | Yes; Bioderm is an affiliate and thus a health care provider |
| Whether expert testimony is required to prove/ refute the claim | Layperson knowledge suffices | Expert testimony necessary to prove standard of care | Yes; expert testimony required to prove breach of standard of care |
| Whether Sok rebutted the presumption that the claim is health care related | Sok could rely on non-physician expert | Expert physician testimony required | No; Sok did not rebut the presumption |
| Consequences of failing to timely serve an expert report | Not addressed | Dismissal appropriate | Remanded to dismiss Sok's claim and consider fees |
Key Cases Cited
- Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012) (rebuttable presumption for health care liability claims; expert testimony needed to prove care deviation)
- Texas West Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (Tex. 2012) (expert testimony needed to prove breach of standard of care in health care claims)
- Haddock v. Arnspiger, 793 S.W.2d 948 (Tex. 1990) (expert testimony required for medical device use; not within common knowledge of laymen)
- Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (statutory interpretation of health care liability elements; causation absent as a factor in rebutting presumption)
- Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005) (scope of expert testimony in health care claims; common knowledge aspects)