Saleh v. Hollinger
335 S.W.3d 368
Tex. App.2011Background
- Toni Hollinger filed a district court petition stemming from an in vitro fertilization procedure performed by Dr. Saleh at Sher Institute.
- Toni alleged eggs were stolen, misrepresented, and sold for profit, with injuries proximately caused by defendants' conduct.
- A county court petition by Toni and George Hollinger was consolidated with the district court suit, alleging fraudulent representations, conversion, and negligent misrepresentations.
- Dr. Saleh and Sher Institute moved to dismiss Toni's claims under Chapter 74, asserting an expert report was required for health care liability claims; the motion referenced Toni's claims, not George's.
- The trial court denied the motion to dismiss; the court of appeals later dismissed George Hollinger's claims for lack of jurisdiction and reversed as to Toni's claims.
- The court held Toni's claims against Dr. Saleh and Sher Institute are health care liability claims subject to 74.351, and Toni failed to serve an expert report within 120 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over George Hollinger's claims | George's claims were part of the same motion to dismiss and thus appealable as part of the interlocutory appeal. | The motion to dismiss addressed only Toni's claims; George's claims were not properly before the court. | Appeal dismissed as to George Hollinger for lack of jurisdiction. |
| Whether Toni Hollinger's claims are health care liability claims under Chapter 74 | Allegations involve theft and fraud, not health care, and thus do not require an expert report. | Claims arise from the rendition of health care and are inseparable from medical care, requiring an expert report under 74.351(b). | Yes; Hollinger's claims are health care liability claims under 74.001 and require an expert report. |
| Effect of failure to file an expert report | Even if health care claims apply, Toni should be allowed to cure or the court should provide relief. | If no expert report is filed within 120 days, the trial court must dismiss with prejudice and award fees. | Dismissal with prejudice required; the case remanded to determine reasonable attorney's fees and costs. |
Key Cases Cited
- Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (focus on essence of claim to classify health care liability)
- Yamada v. Friend, 335 S.W.3d 192 (Tex. 2010) (addresses health care liability claim classification and expert reports)
- Walker v. Packer, 827 S.W.2d 833 (Tex.1992) (trial court lacks discretion in applying law)
- Stary v. DeBord, 967 S.W.2d 352 (Tex.1998) (jurisdictional questions governed by statute in interlocutory appeals)
- Walls Reg'l Hosp. v. Altaras, 903 S.W.2d 36 (Tex.App.-Waco 1994) (jurisdictional reach cannot be conferred by consent)