640 S.W.3d 830
Tex.2022Background
- Gaytan received a course of skin treatments (e.g., SkinPen, phototherapy, microdermabrasion, VI peel) at a physician-owned medical spa and alleges scarring and darkening resulted.
- She originally pleaded “medical negligence” and later added Dr. Yarish; defendants moved to limit discovery and then to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351(b) for failure to serve an expert report within 120 days of answer.
- On the eve of the dismissal hearing Gaytan filed a second amended petition recasting her claims as ordinary "cosmetic" negligence and submitted an affidavit denying she saw or was treated by Dr. Yarish or signed medical forms.
- The trial court denied dismissal; the court of appeals affirmed, focusing on the amended petition. Defendants petitioned to the Texas Supreme Court.
- The Texas Supreme Court held the trial court properly considered the amended petition, but on the entire record Gaytan’s claims are health care liability claims and, because no expert report was timely served, dismissal with prejudice and an award of attorneys’ fees was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a claimant may file and the court may consider an amended petition filed after the 120-day expert-report deadline when deciding if the claim is a health care liability claim | Gaytan: the Act doesn’t bar post-deadline amendments; the amended petition clarifies her claims are ordinary negligence/cosmetic | Defendants: post-deadline amendment cannot evade the Act; the live pleading at the deadline controls | Court: Amended petitions filed in response to a §74.351 motion may be considered; the 120-day rule governs serving reports, not pleadings |
| Whether Gaytan’s claims are "health care liability claims" under the Medical Liability Act | Gaytan: treatments were cosmetic only; she was not a patient of Dr. Yarish; no medical relationship requiring expert report | Defendants: treatments were medical/dermatological, rendered at a physician-owned spa by an employee, requiring medical standards and expert proof | Court: Claims are health care liability claims—defendants are health-care providers, a physician–patient relationship existed, and the alleged breaches concern medical/dermatological standards |
| Consequence of failing to timely serve an expert report | Gaytan: Act doesn’t apply if claims are ordinary negligence; no report required | Defendants: §74.351(b) requires dismissal with prejudice and attorneys’ fees when no report served within 120 days | Court: Because no expert report was served and claims are health care liability claims, dismissal with prejudice and attorneys’ fees are required |
Key Cases Cited
- Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357 (Tex. 2019) (determine a claim’s underlying nature, not its label)
- Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012) (courts must consider the entire record to decide if claim is a health care liability claim)
- Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (artful pleading cannot avoid the Act when the underlying facts show a health care liability claim)
- Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753 (Tex. 2014) (necessity of expert testimony can show a claim is a health care liability claim)
- Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (Tex. 2012) (claims inseparable from rendition of health care are covered by the Act)
- Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658 (Tex. 2010) (focus on gravamen of claim; assembly/maintenance of care is part of health care services)
- Yamada v. Friend, 335 S.W.3d 192 (Tex. 2010) (prohibits claim-splitting to evade the Act)
- St. John v. Pope, 901 S.W.2d 420 (Tex. 1995) (physician–patient relationship arises by express or implied agreement)