Lake Jackson Medical Spa, Ltd., Robert Yarish, M.D., and Jamie Gutzman, Petitioners, v. Erika Gaytan, Respondent
No. 20-0802
Supreme Court of Texas
Argued October 26, 2021
On Petition for Review from the Court of Appeals for the Fourteenth District of Texas
The plaintiff in this case alleges that the defendants negligently administered various treatments that caused scarring and discoloration to her skin. The primary issue is whether her claims constitute
We hold that the Act did not prohibit the plaintiff from filing an amended petition and that her claims constitute health care liability claims. Because the plaintiff failed to timely serve an expert report, the Act requires that her claims be dismissed. We reverse the court of appeals’ judgment and remand the case to the trial court for an award of attorney‘s fees, as the Act requires.
I.
Background
Erika Gaytan sued Lake Jackson Medical Spa, Ltd., its employee, aesthetician Jamie Gutzman, and its owner, Dr. Robert Yarish, complaining that Gutzman negligently performed various skin treatments that caused scarring and discoloration. Gaytan originally sued only the Medical Spa and Gutzman, expressly asserting claims for “medical negligence” involving an “improper and negligent course of medical treatment.” She later added Dr. Yarish as a defendant in her first amended petition, alleging he negligently allowed Gutzman to administer the “medical treatments” even though he knew or should have known they were “improper and would cause physical harm.”
In their original and first-amended answers, the defendants moved to limit discovery because Gaytan had not yet served them with an expert report as the Texas Medical Liability Act requires. See
Gaytan filed a response to the defendants’ dismissal motion, arguing that the Act does not apply (and thus did not require her to serve an expert report) because she is not asserting a “health care liability claim” against any of the defendants. Instead, she argued, she complains only about “cosmetic skin treatments” she received “purely for aesthetic reasons.” To support her response, Gaytan attached an affidavit in which she testified that she was not referred to the Medical Spa by a medical doctor, she sought only “cosmetic treatment” for acne and not to address any “disease, disorder or injury,” she does not recall completing any medical-history or patient-consent forms, she never saw or consulted with Dr. Yarish, Dr. Yarish never examined or treated her, and the skin cream Gutzman applied was not a prescription medication.
Consistent with her response, Gaytan filed a second-amended petition the day before the hearing on the defendants’ dismissal motion, in which she omitted all references to the Act and to “medical” treatments or negligence. Specifically, where
- she initially alleged she had given pre-suit notice “[p]ursuant to the Medical Liability Act,” she now omitted any reference to the Act;
- she initially alleged an “improper and negligent course of medical treatment,” she now alleged an “improper and negligent course of cosmetic treatment“;
- she initially alleged the Medical Spa “is in the business of providing surgical and non-surgical medical treatment to its patients,” she now
alleged it “is in the business of providing surgical and non-surgical cosmetic improvements to its patrons seeking such cosmetic improvements“; - she initially alleged she “was a patient at Defendant‘s medical spa,” she now alleged she “was a patron at” the Medical Spa;
- she initially alleged she “underwent a course of medical treatment,” she now alleged she “underwent a course of cosmetic treatment“;
- she initially alleged she sustained scarring and darkening “as a result of the negligent medical treatments,” she now omitted that phrase completely;
- she initially alleged she “was under Ms. Gutzman‘s care” to resolve skin conditions, she now alleged she “was visiting Ms. Gutzman” to resolve those conditions;
- she initially asserted a claim for “Medical Negligence,” she now asserted a claim for ordinary “Negligence“;
- she initially alleged the Medical Spa is “in the business of providing health care,” she now alleged it is “in the business of providing cosmetic services“;
- she initially alleged the Medical Spa “owed [Gaytan] a duty of care as its patient,” she now alleged it “owed [Gaytan] a duty of care as its customer“; and
- she initially sought damages “for medical malpractice,” she now omitted that reference completely. [Emphases added.]
Several key facts Gaytan asserted in support of her claims and allegations, however, remained consistent in each of her petitions and in her affidavit. Specifically, as in her earlier petitions, she still alleged in her second-amended petition and in her affidavit that Dr. Yarish “is a medical physician who owns and operates” the Medical Spa; the “treatments” Gaytan received “included L.J. acne treatment, L.J. skin pen, L.J. phototherapy acne treatment, skin pen spot treatment, microdermabrasion, and L.J. VI peel treatment for areas on her face and back“; those treatments “left [Gaytan] with scarring and darkening on her back and face“; and the defendants’ actions “fell below the applicable standard” of care. Regarding specific breaches of the standard of care, Gaytan alleged—as she had in her earlier petitions—that the defendants:
- failed “to properly evaluate [Gaytan‘s] skin condition and tailor cosmetic1 treatments pursuant to established standards of dermatological care“;
- failed “to properly assess, document, and/or request [Gaytan‘s] medical history, including medications [Gaytan] was using at the time of the cosmetic2 treatments“;
- performed “abrasive dermatological treatment such as VI peel on [Gaytan] while [Gaytan] was actively using a tretinoin cream“;
- failed “to properly instruct [Gaytan] to suspend use of tretinoin cream in anticipation of abrasive dermatological treatment such as VI peel“;
- recommended and prescribed “laser treatment without determining its effect on [Gaytan‘s] ethnic skin“;
- failed “to properly prepare [Gaytan‘s] ethnic skin to safely accept laser treatment“;
-
failed “to properly adjust laser treatment to be safely applied to [Gaytan‘s] ethnic skin;” and - failed “to properly supervise and evaluate Ms. Gutzman‘s cosmetic treatments of [Gaytan‘s] skin conditions.”
Regarding the Medical Spa and Dr. Yarish specifically, Gaytan also alleged that they failed to “use ordinary care in hiring, training and retaining” Gutzman.
The trial court denied the defendants’ dismissal motion, and the defendants took an interlocutory appeal. See
II.
Health Care Liability Claims
The Texas Medical Liability Act requires a claimant who asserts a “health care liability claim” against a “physician or health care provider” to serve on each defendant one or more expert reports describing the expert‘s opinions addressing the applicable standards of care, how the defendant‘s conduct failed to meet those standards, and how those failures caused the claimant‘s injury, harm, or damages.
Whether a pleading asserts a health care liability claim presents a question of law courts review de novo. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019). To answer that question, we must focus on the claim‘s “underlying nature . . . rather than its label.” Id. To determine the claim‘s underlying nature, we must consider the “entire court record,” including “the pleadings, motions and responses, and relevant evidence properly admitted.” Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012).
The defendants argue here, however, that the pleadings the trial court could consider did not include Gaytan‘s second-amended petition because she filed it after the statute‘s 120-day deadline for serving an expert report. So we must first determine which amended petition the trial court should have considered and then decide whether Gaytan asserted a health care liability claim.
III.
The Relevant Petition
Although Gaytan acknowledges that her first two petitions expressly asserted health care liability claims, she urged the trial court to deny the defendants’ dismissal motion because she “filed a Second Amended Petition which properly sets forth the nature of her claims.” The defendants urged the court to consider only her first-amended petition—the live pleading when the 120-day expert-report deadline passed—because “a health care liability claim cannot be recast as another cause of action in an attempt to avoid the expert report requirement.” The trial court denied the dismissal motion without indicating which petition it considered. The court
First, the Act‘s 120-day deadline expressly applies only to the serving of an expert report, and not to the filing of amended pleadings.
The defendants argue that the 120-day deadline prevents a claimant from amending pleadings because the Act requires the court to dismiss the claims if the claimant has not served an expert report by that date. According to the defendants, their statutory right to dismissal is fixed when the deadline passes, so any amended pleading filed after the deadline is irrelevant.
The question here, however, is not whether Gaytan failed to serve an expert report by the deadline, but whether the report requirement and deadline apply to her claims at all. Whether they apply depends on whether Gaytan asserted a “health care liability claim.”
Second, nothing else in the Act addresses pleading amendments one way or the other. The Act says nothing about whether or when a claimant can amend her pleadings, either before or after the 120-day deadline. Our rules generally permit parties to freely amend their pleadings, so long as doing so does not “operate as a surprise to the opposite party.”
Third, the trial court‘s consideration of an amended pleading properly filed in response to a dismissal motion is consistent with the basis on which the court must determine whether the claimant has asserted a health care liability claim. In our numerous opinions addressing how courts must make that determination, we have repeatedly explained that they must consider “the underlying nature of the plaintiff‘s claim rather than its label” and that parties cannot alter
that nature “through artful pleading.” Weems, 575 S.W.3d at 363.4 In fact, courts making
that could support claims” that qualify as health care liability claims are health care liability claims, regardless of the pleading‘s specific allegations. Id.
Logic would dictate that the opposite must also be true: Just as a claimant cannot avoid the Act‘s application by artfully pleading claims for ordinary negligence or premises liability, she cannot activate the Act‘s application by inartfully pleading claims for “medical negligence.” In both circumstances, the Act‘s application depends not on the labels contained within the pleading but on the facts revealing the claim‘s underlying nature, as found within the entire record. When those facts demonstrate that the claims fall within the Act‘s definition of a health care liability claim, the claimant cannot avoid the Act by “splitting claims into both health care liability claims and other types of claims such as ordinary negligence claims,” Yamada, 335 S.W.3d at 193-94,5
or by amending her pleading to “recast” her claims, Marks, 319 S.W.3d at 365–66. But when the facts demonstrate that the claim‘s underlying nature does not fall within the Act‘s definition, a pleading that incorrectly labels the claim as a health care liability claim is no more controlling than one that incorrectly avoids that label.
The defendants assert, however, that Gaytan‘s allegations in her original and first-amended petitions constitute judicial admissions that her claims are health
Finally, the Act‘s dismissal process justifies the trial court‘s consideration of amended pleadings. The Act requires courts to dismiss health care liability claims only “on the motion of the affected physician or health care provider.”
For these reasons, we hold that the Act does not prohibit trial courts from considering an amended petition filed in response to a dismissal motion under section 74.351. Except when our procedural rules prohibit such a filing, courts deciding a section 74.351 dismissal motion should consider an amended petition when determining the claims’ underlying nature. Although an amended petition cannot prevent dismissal merely by “recasting” the claims through the artful use of different labels, Diversicare, 185 S.W.3d at 851, it nevertheless comprises part of the “entire court record” courts should consider when making that determination.
IV.
The Underlying Nature of Gaytan‘s Claims
We now turn to the question of whether Gaytan asserted health care liability claims in this case. As explained, we do so by considering the entire record, which includes Gaytan‘s second-amended petition,7
The Act defines the phrase “health care liability claim” to mean
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant‘s claim or cause of action sounds in tort or contract.
The third element is not at issue here, as Gaytan alleges that the defendants’ conduct caused her injury. Regarding the first element, the Act defines “physician” to mean “an individual licensed to practice medicine in this state,”
As in most disputes over whether a claim constitutes a health care liability claim, the primary issue here involves the second element—whether Gaytan‘s claims concern “treatment, lack of treatment, or a departure from accepted standards of
The Act defines “health care” to mean “any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient‘s medical care, treatment, or confinement.”
Reading the definitions of “health care” and “medical care” together clarifies that physicians provide “medical care” and health care providers provide “health care.” See Marks, 319 S.W.3d at 662. But health care providers provide health care only when they furnish
treatment to a patient “during“—or as part of—a physician‘s provision of “medical care.”
A. Physician-patient relationship
Gaytan argues, and the court of appeals agreed, that the record establishes that she was never a patient of Dr. Yarish. See 627 S.W.3d at 351. To reach this conclusion, they both rely on Gaytan‘s affidavit, in which she testified that she never saw or consulted with Dr. Yarish, Dr. Yarish never examined or treated her, and she does not recall providing any medical-history or patient-consent forms. According to the court of appeals, the defendants “presented no evidence to the contrary,” so Gaytan‘s testimony conclusively negated the existence of any physician-patient relationship. 627 S.W.3d at 351–52. We disagree.
Generally, a physician-patient relationship arises when a physician
A patient may, of course, expressly agree to accept a physician‘s professional services by, for example, signing a consent-to-treatment form. See Bioderm, 426 S.W.3d at 759 (citing evidence that claimant signed a consent-to-treatment form as proof that claimant was physician‘s patient); see also Rio Grande Valley Vein Clinic, P.A. v. Guerrero, 431 S.W.3d 64, 65 (Tex. 2014) (per curiam) (noting that claimant “completed forms for medical history, informed consent, and medical information disclosure, indicating she was a patient“). Gaytan argues, and the court of appeals agreed, that the undisputed fact that she does not recall providing any such forms before receiving treatment at the Medical Spa conclusively establishes that she never consented to receive Dr. Yarish‘s professional services. 627 S.W.3d at 351–52. But even in the absence of any such express indication, the relationship may be implied through conduct and circumstances demonstrating the parties’ agreement. St. John, 901 S.W.2d at 423–24; see also Stutes, 180 S.W.3d at 753 (“The implied contractual relationship may arise from facts and circumstances indicating there was a mutual intention to contract.“).14
Similarly, Gaytan argues, and the court of appeals agreed, that the undisputed fact that she never saw or received treatment from Dr. Yarish conclusively establishes that she never consented to receive his professional services. See 627 S.W.3d at 351–52. But a patient need not interact directly with or have physical contact with the physician for the relationship to exist. See St. John, 901 S.W.2d at 424 (“The fact that a physician does not deal directly with a patient does not necessarily preclude the existence of a physician-patient relationship.“); see also Lection v. Dyll, 65 S.W.3d 696, 704 (Tex. App.—Dallas 2001, pet. denied) (“[P]hysical contact between a doctor and patient is not necessary to create a physician-patient relationship.“). In Bioderm, for example, we held that a claimant who received laser-hair-removal treatments from a physician-owned skin-care facility was the physician‘s patient even though she did not meet with the physician until after she received the treatments that allegedly burned and scarred her legs. Bioderm, 426 S.W.3d at 756, 759 n.9; see Guerrero, 431 S.W.3d at 66 (“Even if, as Guerrero now claims, a nurse performed the procedure, this does not prevent the existence of a physician-patient relationship.“). What matters is the physician‘s express or implied agreement to provide, and the patient‘s express or implied agreement to accept, the physician‘s “professional services.” St. John, 901 S.W.2d at 423.
We conclude that this record establishes that Dr. Yarish offered, and Gaytan agreed to receive, his professional services,
These facts conclusively establish that Gaytan became Dr. Yarish‘s patient. By seeking treatments from an employee at a medical spa Dr. Yarish owned and operated, she necessarily sought and agreed to receive his professional services. Such services, including “nonsurgical medical cosmetic procedures,” need not be performed by the physician personally, but a physician who provides them indirectly through another is ultimately responsible for the patient‘s safety and for ensuring that the person who provides them on the physician‘s behalf is appropriately trained and supervised. See
B. Medical care or treatment
Having concluded that the claims asserted in this case are claims made by a patient against her physician and health care providers, we must still determine whether the claims complain of “medical care or treatment” to decide whether they constitute health care liability claims.
1. The necessity of expert testimony
We held in Bioderm that a claimant who alleged injuries resulting from the negligent use of a laser-hair-removal device asserted health care liability claims because the device “is a regulated surgical device, which may only be acquired by a licensed medical practitioner for supervised use in her medical practice,” and “the proper operation and use of this regulated surgical device requires extensive training and experience.” 426 S.W.3d at 761–62. In this case, the court of appeals distinguished Bioderm and held that expert testimony is not required because “Gaytan has not alleged damages from the use of a medical device” or any device “that could only be acquired by a medical professional in a medical practice.” 627 S.W.3d at 351–52.
But we did not hold or suggest in Bioderm that expert testimony is required only when the claims are based on the use of such a device. The involvement of the device required expert testimony in Bioderm because the proper use of the device is “not within the common knowledge of laypersons,” who “cannot be expected to understand whether” the defendant‘s use of the device in that case was improper. 426 S.W.3d at 761–62. The proper use of a regulated medical device, of course, is not the only topic that falls outside “the common knowledge of laypersons.” See, e.g., Diversicare, 185 S.W.3d at 851 (holding that expert testimony was required on “the ability of patients in weakened conditions to protect themselves” and “whether a potential target of an attack in a healthcare facility should be better protected and by what means” because such information “is not within the common knowledge of the general public“); Garland Cmty. Hosp., 156 S.W.3d at 546 (holding that a claim that hospital negligently credentialed a physician required expert testimony because such claim “involves a specialized standard of care“).
As we have explained, Gaytan alleges that Gutzman negligently administered a course of skin treatments that included
Moreover, Gaytan alleges that the defendants failed to “properly evaluate” her skin condition “pursuant to established standards of dermatological care,” failed to “properly assess, document, and/or request” her medical history, should not have administered “abrasive dermatological treatment” when she “was actively using a tretinoin cream,” should not have administered laser treatment without first determining its effect on Gaytan‘s “ethnic skin,” failed to properly prepare her “ethnic skin to safely accept laser treatment,” and failed to properly “adjust” the laser treatment so that it could be safely applied to her skin. The proper and applicable standards of “dermatological care,” reliance on medical histories, risks involving the use of tretinoin cream, and proper adjustments of a laser-treatment device, as well as whether defendants’ conduct fell below those standards, are all matters that require expert testimony; indeed, it “would blink reality” to conclude otherwise. Tex. W. Oaks, 371 S.W.3d at 182.
Finally, we conclude that Gaytan asserts health care liability claims even if expert testimony were not required. The necessity of expert testimony prevents the claimant from rebutting the Act‘s presumption, but depending on the “totality of the circumstances,” a claimant might not rebut the presumption even when expert testimony is not required. Bioderm, 426 S.W.3d at 760.18 In particular, we have held that a claim constitutes a health care liability claim when the conduct complained of is an “inseparable or integral part of the rendition of health care.” Tex. W. Oaks, 371 S.W.3d at 180; see also Diversicare, 185 S.W.3d at 848 (“A cause of action alleges a departure from accepted standards of medical care or health care if the act or omission complained of is an inseparable part of the rendition of medical services.“).
We conclude that all of the defendants’ conduct about which Gaytan complains is inseparable from the medical and health care the defendants provided. See Marks, 319 S.W.3d at 664 (holding the assembly and maintenance of a patient‘s hospital bed is “an integral and inseparable part of the health care services provided” to the patient); Diversicare, 185 S.W.3d at 849 (holding the supervision of a patient and another patient who assaulted her was “inseparable from the health care and nursing services provided to her“); Garland Cmty. Hosp., 156 S.W.3d at 546 (holding that a hospital‘s conduct in credentialing a physician is “inextricably intertwined with the patient‘s medical treatment and the hospital‘s provision of health care“).
Despite Gaytan‘s careful omission of any “medical” references in her affidavit and second-amended petition, the professional services Dr. Yarish provided to Gaytan through Gutzman and the Medical Spa involved “medical” care and treatment. See
Texas statutes and regulations do not define “nonsurgical medical cosmetic procedures,” other than to say that they include but are “not limited to the injection of medication or substances for cosmetic purposes, the administration of colonic irrigations, and the use of a prescription medical device for cosmetic purposes.”
V.
Disposition
We hold that the Texas Medical Liability Act‘s expert-report deadline did not prohibit Gaytan from amending her petition in response to the defendants’ dismissal motion. But even considering her amended petition, Gaytan‘s claims against the defendants constitute health care liability claims subject to the Act‘s expert-report requirements. Because Gaytan failed to serve an expert report before the Act‘s 120-day deadline, her claims must be dismissed. Because the Act requires the trial court to award defendants their reasonable attorney‘s fees and costs, see
Jeffrey S. Boyd
Justice
OPINION DELIVERED: February 25, 2022
Notes
Phototherapy, or light therapy, involves the use of various lasers to treat acne. See AMERICAN ACADEMY OF DERMATOLOGY ASSOCIATION, Laser and Lights: How Well Do They Treat Acne?, https://www.aad.org/public/diseases/acne/derm-treat/lasers-lights (last visited Feb. 21, 2022). Some “visible-light LED devices” are FDA-approved for at-home use. Id. At-home lasers “are less powerful than the ones a dermatologist uses.” Id.
Microdermabrasion involves the use of a handheld device to remove the top layer of skin to, among other things, treat acne and acne scars. See AMERICAN SOCIETY OF PLASTIC SURGEONS, What is Microdermabrasion?, https://www.plasticsurgery.org/cosmetic-procedures/microdermabrasion (last visited Feb. 21, 2022). Microdermabrasion “kits” are available for at-home use, but dermatologists perform a more intense microdermabrasion in-office. See AMERICAN ACADEMY OF DERMATOLOGY ASSOCIATION, Microdermabrasion: Overview, https://www.aad.org/public/cosmetic/age-spots-marks/microdermabrasion-overview (last visited Feb. 21, 2022).
VI Peels are “Medium-Depth” chemical peels. VITALITY INSTITUTE, What is a Chemical Peel?, https://vipeel.com/pages/chemical-peel (last visited Feb. 21, 2022). A chemical peel is “a cosmetic treatment used to eliminate wrinkles, blemishes, etc., in which an acid is applied to the face . . . causing a layer of skin to peel off.” Chemical peel, DICTIONARY.COM, https://www.dictionary.com/browse/chemical-peel (last visited Feb. 21, 2022). “VI Peel Chemical Peel may only be purchased and administered by a medical professional.” VITALITY INSTITUTE, VI Peel, https://vipeel.com/collections/vi-peel (last visited Feb. 21, 2022).
Of course, we have not sought to verify the accuracy or credibility of these nongovernmental resources, and we do not rely on or vouch for them here. Our point in citing them is simply to demonstrate that the determination of the nature of these and similar treatments and whether they are properly administered to any particular patient requires something other than “common knowledge.”