*1 testimony of the attorney provided sworn his setting).
nonreceipt of notice of the trial
Swanson, therefore, pre- failed to rebut the
sumption that the document was received. the trial court abused its
We hold by ordering of all of the exclusion
discretion witnesses, expert and that Thomas
Thomas’ remedy by appeal. See adequate
has no Packer,
Walker v.
1992).2 conditionally grant Accordingly, we only if relief. The writ will issue
mandamus court fails to vacate its order exclud
the trial
ing expert witnesses. Thomas’ SOROKOLIT, M.D., Petitioner,
Bob
v. RHODES, Respondent.
Janice S.
No. D-3639.
Supreme Court of Texas.
Argued Oct. April
Decided
Rehearing Overruled June
(Tex.1991),
argu-
that the trial court abused its
alternative
2. We do not reach Thomas'
failing
good cause for the
discretion in
to state
violates Trans-
that the trial court’s order
ments
Powell,
Corp.
sanctions.
Gas
American Nat’l
*2
Foster,
Simon,
773,
Daniel A.
1992,
Richard U.
(Tex.App.
Den- S.W.2d
— Dallas
Collins,
Worth,
denied);
ise J.
petitioner.
Shubert,
Fort
for
Fidelity
Casualty
&
v.Co.
270,
646 S.W.2d
(Tex.App. Tyler
—
Ellis, Dallas,
Alfred
respondent.
W.
n.r.e.);
writ refd
Armendariz v. Bill
Supermarket
Sears
No.
562 S.W.2d
HIGHTOWER, Justice, delivered the
(Tex.Civ.App.
Paso
writ refd
Court,
opinion
PHILLIPS,
of the
— El
n.r.e.). When Rhodes first saw Dr. Sorokolit
C.J.,
HECHT, DOGGETT, GAMMAGE,
and
proposed
for a
augmentation
breast
surgery,
SPECTOR, JJ.,
ENOCH and
join.
guaranteed
he
and warranted the results of
requires
This case
that we determine
surgery.
Dr. Sorokolit
instructed
whether section
of the Medical Lia-
Rhodes
picture
and her husband to select a
bility
pre-
Act1
of
magazine,
a nude model from a
promising
knowing misrepresenta-
cludes an action for
that, following surgery, her breasts would
express
tion or breach
warranty
of an
under
just
look
picture
like those in the
she select
(DTPA).2
Deceptive
Trade Practices Act
ed.
guaranteed.
The result was not as
(“Rhodes”)
Janice Rhodes
sued Bob Sorokol-
Rhodes sued Dr. Sorokolit for medical mal
(“Dr. Sorokolit”)
it, M.D.
for medical mal-
practice,
implied
breach of
express
and
war
practice,
implied
breach
express
of
and
war-
DTPA,
ranties
knowing
under the
and
mis
ranties,
knowing
and
misrepresentation.
representation
DTPA,
under the
but later
subsequently
Rhodes
dropped
allegations
dropped
claims.
In her
of
proceeded solely
and
on the
allegations,
Rhodes contends that Dr.
warranty
misrepresentation
claims un-
false,
Sorokolit’s conduct amounted to
mis
der the DTPA. Dr.
special
Sorokolit filed
leading,
deceptive
practices
acts and
exceptions, arguing that Rhodes’ DTPA
following
reasons:
12.01(a).
precluded
claims are
under section
1.
represented
[Dr.
Sorokolit]
The trial court
to
special excep-
sustained the
[Rhodes] that his
tions
services had characteris-
and dismissed the case. The court of
tics,
[they]
uses and benefits which
part
did not
reversed
and remanded. 846
have;
explained
618. For the reasons
here-
in, we affirm
of the court of
2.
represented
[Dr.
Sorokolit]
to
appeals.
partic-
that his
[Rhodes]
services were of a
standard, quality
ular
grade
they
when
I.
another;
purpose
reviewing
For the
the dis
represented
3.
[Dr.
Sorokolit]
to
missal,
special
because it
excep
is based on
rights
[Rhodes] that his
involved
tions,
accept
as true all material factual
involve;
which he did not have or
[and]
allegations and all factual statements reason
ably
allegations
inferred from the
set forth in
express
[Dr. Sorokolit] breached his
pleadings.
e.g., City
Rhodes’
implied warranty
Austin
perform
his ser-
Co.,
Lighting
Houston
&
good
Power
in a
vices
and workmanlike manner.
(Vernon
provides:
Supp.1994).
may
Section
A consumer
maintain
following
a DTPAaction if
constitute a
law,
Notwithstanding any
provisions
no
producing
damages:
actual
17.41-17.63,
of Sections
Business & Com-
Code,
(1)
physicians
employment by any
merce
shall
person
or health
the use or
of a
1.03(3)
false,
providers
misleading,
deceptive
care
as defined in
practice
Section
or
act or
respect
damages
with
specifically
to claims for
that is
enumerated in a subdivision
personal injury
resulting,
alleged
(b)
or death
or
of Subsection
of Section 17.46 of this sub-
resulted,
have
on the
chapter;
any physician
provider.
(2)
implied warranty;
breach
anof
4590i,
12.01(a) (Ver-
art.
any unconscionable action or course of ac-
Tex.Rev.Civ.StatAnn
Supp.1994).
non
by any person;
tion
(4) [certain
the]
violations of
Texas Insurance
regulations
The
DTPA outlines a nonexclusive list of acts
[and of]
Code
issued
the State
false, misleading,
deceptive
that are
under the
Board of Insurance....
17.46(b)
17.50(a) (Vernon 1987).
statute. TexBus. & Com.Code Ann.
Id.
Inc.,
Drug,
Finally,
alleges
ling
that Dr.
Rhodes
Sorokolit
Dallas,
1990);
knowingly committed the described acts and
N.A v. Inter
RepublicBank
(Tex.1985).3
practices. Sustaining
special
Dr.
kal, Inc.,
Sorokolit’s
exceptions,
physi-
the trial court ruled that a
applying
plain
In
and common
*3
cian
DTPA for
cannot be sued under
the
statute,
language
may
in a
courts
not
of the
arising
profes-
provision
conduct
from the
of
any
by implication enlarge
meaning of
the
sional medical services. The court of
beyond
ordinary
in the statute
its
word
remanded,
holding
reversed in
that meaning;
implication
inappropriate
is
such
12.01(a)
bars DTPA claims for breach
legislative
may
gathered from
when
intent
be
12.01(a)
implied
of
but that section
interpretation of the statute as
a reasonable
knowing
does not
on
bar
claims based
Monsanto,
939;
at
it is written.
865 S.W.2d
misrepresentation
or breach of
war-
N. & S.
Commonwealth Mass. v. United
of
ranty.
Co.,
417,
226, 229
Dev.
140 Tex.
168 S.W.2d
Ass’n,
(1942);
Cemetery
Sexton v. Mt. Olivet
II.
129,
1986,
(Tex.App.
720
138
S.W.2d
— Austin
error,
point
In his sole
of
Dr. Sorokolit
n.r.e.).
writ refd
12.01(a)
argues that section
the
of
Medical
Liability
Improvement
Insurance
Act
12.01(a)
clear,
language
The
of section
precludes
knowing misrepresen-
an action for
and,
unambiguous,
when construed as writ-
express warranty
tation or breach of an
un-
ten,
meaning.
not devoid of
Section
disagree.
der the DTPA. We
states that
there can be no DTPA claim
against
physician
provider
a
goal
statutory
The
of
construction
damages
personal
injury
for
for
or death if
give
legisla
is to
effect to the intent of the
result,
result,
damages
alleged
the
or are
County
Attorney’s
ture. Harris
Dist.
Office
physician’s negligence.
from the
Because
J.T.S.,
(Tex.1991).
574
If
legislature
“negligence”
not
the
has
defined
language in a
unambiguous,
statute is
12.01(a),
apply
as it is used
legislature
court
the
must seek
intent of the
meaning,
common law
see Tex.Rev.Civ.Stat.
plain
as found
the
and common
of
1.03(b) (Vernon
4590i, §
Supp.1994)
ANN. art.
the words and terms used. Monsanto Co. v.
Dist.,
Municipal
(requiring
legal
Cornerstones
that
term not defined
Util.
(Tex.1993);
given
S.W.2d
mean-
Moreno v. Ster-
the statute be
its common law
argues against
plain
legislature
expressed
3. Dr. Sorokolit
a
construc-
a whole
its concern
12.01(a),
that,
suggesting
liability
tion of section
even
about "the number of health care
though
"negli-
the
the
malpractice
used
term
their effect on
insur-
claims" and
gence,”
it meant
to exclude
claims
delivery
ance and the
of health care.
Tex.Rev.Civ.
against physicians
providers—
4590i,
(Vernon
and health care
Supp.1994)
art.
1.02
Stat.Ann.
just
negligence. Although
not
those based on
added).
(emphasis
legislature defined
The
legislative history provides
support
some
for this
liability
"health care
claim” as
view,
Liability
see Medical
and Insurance Im-
against
a cause of action
a health care
provement Act: Debate on Tex.H.B. 1048 on the
treatment,
treatment,
physician
lack of
House,
(March 22,
Leg.,
Floor
65th
R.S. 31
departure
accepted
claimed
from
1977) (statement
Uher) (tran-
Representative
medical care or health care or
standards of
script
through
available
the Office of the House
safety
proximately
injury
results in
to or
Coordinator) (arguing
physicians
Committee
that
patient,
patient’s
death of the
whether the
DTPA),
exempted
are
from the
we note that it
or cause of action sounds in tort or
claim
contrary suggestions.
also contains
See Medical
contract.
Liability
Improvement
and Insurance
Act: Debate
1.03(a)(4).
legislature's expressed
The
in
Id.
Senate,
on Tex.H.B.1048 on the Floor
65th
regulate
claims medical
tent to
18, 1977) (comments
Leg.,
(April
R.S.
of Sena-
—
is,
departures
accepted
from
stan
that
claims of
Adams) (tapes
Schwartz and
available
tors
safety
care' or
dards of medical
Office) (stress-
through the Senate Staff Services
—reinforces
be con
conclusion that section
should
ing
help physi-
that the statute is
meant to
from,
literally
resulting
strued
to claims
negligence—
cians obtain insurance for medical
from,
alleged
negligence.
is,
Because
to result
physician's
reasonably
that
failure to
exer-
departure
presents a claim in which
Rhodes
degree
required
cise the
of skill
does not
—and
accepted standard of medical care is
preclude
from the
a cause of action for breach of warran-
issue,
However,
present
not
a health care
ty).
not at
she does
in section 1.02 of the Medical
scope
liability
claim within the
statute.
Monsanto,
(us
ing);
is,
gence
at
S.W.2d
939-940
a suit founded on a breach of
—that
ing the common law to determine the ordi
accepted
standard of medical care.
nary
term),
meaning of an
treating
undefined
it as a breach
standard of
III.
medical care
proximately
dam
causes
Shields,
ages.
e.g., Peterson v.
There can
no DTPA
be
claim
(Tex.1983);
S.W.2d
Phillips,
Hood v.
damages
personal injury
(Tex.1977);
Chap
result,
damages
or death if the
alleged
or are
Wilson,
man v.
result,
physician’s
negligence;
denied).
App.
Although
however,
alleged
if the
DTPA claim is not
—Austin
the DTPA does not create a cause of action
physician’s
based on the
breach of the ac
*4
see,
negligence,
e.g.,
for
Tex.Bus. & Com.Code
care,
cepted standard of medical
section
17.50(a) (Vernon 1987)
§
(only requir
Ann.
12.01(a)
preclude
does not
suit for violation of
ing proof that an act
producing
is a
cause
Thus,
underlying
the DTPA.
the
nature of
proximate
rather
a
damages);
than
the
claim determines whether
section
Alderman,
Richard M.
The Business Med
12.01(a) prevents
suit for violation of the
Providers, Physicians,
icine—Health Care
physician
DTPA. Claims that a
or health
Act,
Deceptive
and the
Trade Practices
provider
negligent may
care
was
not be re
(“Theoretically,
Hous.L.Rev.
cast as DTPA actions to avoid the standards
a DTPA
‘resulting
action should never be one
Liability
set forth in the Medical
and Insur
Bragg
”);
negligence.’
al.,
David F.
et
Improvement
ance
Act.
Litigation
2.02,
at n. 90
Texas ConsumeR
allege
Rhodes does not
that Dr. Sorokolit
(2d
1983) (stating
ed.
that claims under the
accepted
deviated from the
standard of care
DTPA are not
negligence), plain-
based on
performing
surgery,
the
nor is it evident
attempt
bring
tiffs at times
might
what
knowing misrepre-
that her DTPA
for
suit
otherwise be
claims
DTPA
as
sentation
express warranty
and breach of
is
See,
al.,
e.g.,
suits.
T.
John Montford et
merely the
a negligence
recharacterization of
Texas DTPA
Closing
Reform:
guaran-
suit. Her claim that
is
Dr. Sorokolit
Loophole in the 1987 Tort
Laws and
Reform
surgery
teed the results of his
and that the
Quest
Laws,
Ongoing
Fairer DTPA
knowingly
Mary’s
doctor
breached his
(1990).
war-
21 St.
L.J. 525
Because sec-
ranty
particular
12.01(a)
knowingly
of a
result and
operates
tion
to bar characterization
misrepresented his skills and the results he
against physi-
of medical
claims
“knowing-
could achieve. The DTPA defines
providers
cians and health care
as
ly” meaning
claims,
12.01(a)
“actual awareness of the falsi-
we conclude that section
is
ty, deception, or unfairness of the act or
meaningless
Consequently,
not
as written.
it
practice giving rise to the consumer’s claim
duty
to construe the statute as written
or ... actual
by
practice
awareness of the act or
legislature.
Government Personnel
Wear,
constituting
warranty....”
Mut.
breach of
Ins. Co. v.
151 Tex.
Life
17.45(9)(Vernon
(1952).
legislature
If the
Tex.Bus. &Com.Code Ann.
otherwise,
negli-
had
Neither DTPA claim
intended
it could
involves
have ex-
pressed
gence
plain
specific
requires
its intent in
a determination of
lan-
—neither
guage.
Accordingly,
physician
Id. at
whether a
528-529.4
failed to meet the stan-
12.01(a) only
care;
claim,
precludes
by
conclude that section
dard of medical
each
its
nature,
physician
negli-
a DTPA
deception
suit
a
concerns intentional
Furthermore,
cians,
Act,
Deceptive
we note that
court
this
and the
Trade Practices
(1989);
is not the first to conclude that section
should be
David F.
Bragg
HousL.Rev.
See,
given
plain meaning.
e.g.,
(2d
2.02
ed.
Consumer Litigation
al.,
et
Texas
Wilson,
Chapman v.
Supp.1993) (stating
only pure negligence
denied).
App.
Commentators
—Austin
12.01(a)).
leg
are
claims
barred
section
The
generally agree that
bars DTPA
islature,
recently
amended the Medical
against physicians
provid
suits
and health care
has
negli
ers
if the cause of action is based on
disagreement
not indicated
with such an
Alderman,
gence.
e.g., Richard M.
The Busi
12.01(a).
interpretation of section
Providers, Physi
Medicine—Health Care
ness of
express guarantees.
statutory provision meaningless.
intentional breach
Rather
12.01(a),
statute,
Accordingly, we hold that
nullify
duty-
the court is
than
preclude
which does
DTPA suits founded on
legislature’s
bound to ascertain the
intent.
a breach of the
standard of medical
produce
the words of a statute
a doubt
When
care,
preclude
does not
suits under
intended,
as to the
a
knowing misrepresentation
DTPA for
long
court’s role has
been to determine the
express warranty
breach of
cases which
spirit
of it.” 1
“reason
William Black-
a
warrants
Bogged
stone,
down
*61.
COMMENTARIES
particular
result.5 For the reasons ex-
semantics,
determining
the court succeeds in
herein,
plained
we affirm the
neither.
appeals.
court of
MEDICAL NEGLIGENCE CLAIMS
CORNYN, Justice,
GONZALEZ,
joined by
RECAST AS DTPA CLAIMS
Justice, dissenting.
13, 1987,
April
On
Janice S. Rhodes sued
adequate discharge
duty
is not an
[I]t
Sorokolit, M.D.,
plastic surgeon,
Bob
say:
you
for courts to
We see what
are
arising
augmentation
claims
out of breast
at,
it,
driving
you
but
have not said
surgery
and abdominal scar revision
that So-
go
therefore we shall
on as before.
*5
5,
performed
February
rokolit
on Rhodes on
States,
(1st
30,
Johnson v. United
163 F.
paragraph
original
In
III
peti-
of her
Cir.1908)
J.).
(Holmes,
tion, Rhodes characterized her
a
claim as
disagree
I
with the court on two counts:
negligence
“medical
cause of action.” She
first, in its conclusion that this is not a case
alleged
surgery
up
that her
and follow care
alleged
negligence
medical
recast under
Sorokolit,
negligently performed by
and
(Ver-
§§
17.41-17.63.
Tex.Bus. & Com.Ann.
negligence
proximate
that such
was a
Supp.1994),
non
&
Deceptive
the Texas
damages traditionally recognized
in medi-
(DTPA),
Trade Practices Act
to avoid the bar
negligence
pain,
anguish,
cal
cases:
mental
created
section 12.011 of the Medical Lia-
physical disfigurement, and medical ex-
bility
Act,
and
Insurance
Tex.
penses.
(Vernon Supp.
art. 4590i
Rev.Civ.Stat.Ann.
1994) (MLIIA);
second,
general
and
After Sorokolit filed his
denial to
holding
language
original petition,
that
Rhodes
an
“[t]he
of section
is
filed
amend-
clear, unambiguous,
petition.
petition
ed
In
and when construed as
that
she retained her
written,
meaning,” supra
not devoid of
889 characterization of her claim as “a medical
action,”
S.W.2d at 241.
reading
negligence
The court’s
renders
cause of
reiterated her
expressions
hope, opinion,
Our conclusion that section
does not
and
reassurances
prevent
predictions
suit under the DTPAfor claims not based
that
be held to constitute
cannot
addition,
warranties).
suggest
on medical
possible
does not
that
In
we note the
procedurally
a
such suit will succeed either
on
application
of the statute of frauds in such cases
example,
the
law,
merits. For
under Texas
properly
common
when
raised
a defendant as an affir
physician
presumed
a
is not
to warrant a
mative defense.
See Tex.Bus.
&
Com.Code
result,
particular
26.01(b)(8) (Vernon 1987);
physician may
cure or a
but a
Tex.R.Civ.P.
agreement.
e.g.,
enter into such an
Graham
Gautier,
(1858) (stating
21 Tex.
that
subheading,
1. That section follows the
"MIS-
ordinary undertaking
the rule is that the
of a
PROVISIONS, Exception
CELLANEOUS
From
physician
partic-
does not include insurance of a
Laws,”
provides:
Certain
and
special agreements may vary
ular result but that
(a)
rule);
Heinrich,
Notwithstanding any
Sec. 12.01.
Weeks v.
447 S.W.2d
17.41-17.63,
law,
provisions
no
of Sections
(Tex.Civ.App. Corpus
n.r.e.);
writ
Christi
—
[DTPA],
ap-
Business & Commerce Code
shall
Day,
ref'd
Helms v.
ply
physicians
providers
dism’d).
to
or health care
as
(Tex.Civ.App.
Worth
—Fort
1.03(3)
defined in Section
of this
with
physician’s
may
that a
Concerns
reassurances
be
respect
damages
personal
guarantee may properly
to claims
mistaken for a
lead
injury
resulting,
alleged
concluding
or death
to have
courts
hesitate in
that such a con-
guarantee
tract
resulted from
on the
was created or that a
was of-
physician
provider.
Malprac-
or health care
fered. See Jim Mac
Perdue,
Texas Medical
(b)
(stating
pharma-
This section shall not
that
tice
Handbook
promises
distinguished
therapeutic
must be
cists.
negligence allegations
personal
meaningless.
earlier
and
would render
section
Un
claims,
circumstances,
injury damage
allega-
duty
der such
added new
to ascer
legislature’s
pur
DTPA.
tions under the
Rhodes later aban-
tain and enforce the
evident
negligence allegations.
pose
enacting
Penning
doned her
the statute. See
Singleton,
ton v.
response
filing
In
to the
First
Plaintiffs
Petition,
Original
Amended
Sorokolit filed
special exceptions, claiming that
12.01
Despite contrary
legisla-
evidence of
of the MLIIA barred
DTPA claim.
Rhodes’
general
specific purposes,
ture’s
Agreeing that
the MLIIA barred Rhodes’
12.01(a) only
court
“that
concludes
claims,
DTPA
the trial court sustained the
precludes
against
physician
a DTPA suit
exceptions. When Rhodes declined to amend
is,
on a
suit founded
—that
pleadings
light
ruling,
her
of this
the trial
breach of the
standard of medical
ap-
court dismissed her case. The court of
care.”
or a memorandum of
(1) in writing; and
(2) signed by person to be
charged promise agreement with the lawfully someone authorized to
sign for him.
(b) (a) applies Subsection this section
to: contract, agreement, promise, an relating of cure to medical by physi-
care or results thereof made
cian or health care as defined 1.03, Section Medical
Insurance Act of Texas. pharma-
This section shall not
cists. 26.01(b)(8)
Tex.Bus. & Com.Code Ann. 1987).5 (Vernon reasons,
For these I would reverse the of the court of and render
judgment for Sorokolit. MOORE, Individually
Shannon By Friend, Next Donal Moore, Petitioners,
R.
BRUNSWICK BOWLING & BILLIARDS
CORPORATION, Mercury Division, In dividually Mercury and dba Outboard Mercruiser;
Motors and Vivian and/or Plastics, Inc., Individually Industrial Boats, Respondents.
and dba V.I.P.
No. D-3997.
Supreme Court of Texas.
Argued Feb. 1994. April
Decided 1994.
Rehearing Overruled June
Certiorari Denied Dec.
See 115 S.Ct. allegations solely at 240. 5. Rhodes' are based on oral supra misrepresentations and warranties. See