Access Orthodontics of East 7th Street, P .A. v. Miriam Jaimes, 03-15-00081-CV

Access Orthodontics of East 7th Street, P .A. v. Miriam Jaimes

03-15-00081-CV

| Tex. App. | Mar 5, 2015

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Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 3/5/2015 11:25:31 AM JEFFREY D. KYLE Clerk NO. 03-15-00081-CV THIRD COURT OF APPEALS 3/5/2015 11:25:31 AM JEFFREY D. KYLE 03-15-00081-CV AUSTIN, TEXAS *1 ACCEPTED ^[4382039] CLERK ________________________________________________________________ IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN, TEXAS

_________________________________________________________________ ACCESS ORTHODONTICS OF EAST 7 TH STREET, P.A. Appellant

MIRIAM JAIMES

Appellee

____________________________________________________________________

On Appeal from the 126 th Judicial District Court Of Travis County, Texas

The Honorable Amy Clark Meachum Presiding ______________________________________________________________ APPELLANT, ACCESS ORTHODONTICS OF EAST 7 TH STREET, P.A.’S , BRIEF ______________________________________________________________ Robert M. Anderton State Bar No. 00795223 Mark J. Hanna State Bar No. 08919500 900 Congress Avenue, Suite 250 Austin, Texas 78701 Telephone: (512) 477-6200 Facsimile: (512) 477-1188 mhanna@markjhanna.com Jon M. Smith State Bar No. 18630750 3305 Northland Drive Suite 500

Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com ORAL ARGUMENT REQUESTED Page i

REQUEST FOR ORAL ARGUMENT

Appellant requests oral argument. Because of the unique nature of the issues presented in this case, oral argument will assist the court in reaching its decision. Page ii *3 IDENTITY OF PARTIES AND COUNSEL Access Orthodontics of East 7 th Street, P.A. Appellant:

Appellant’ s Counsel: Robert M. Anderton

State Bar No. 00795223 Mark J. Hanna

State Bar No. 08919500 900 Congress Avenue, Suite 250 Austin, Texas 78701 Telephone: (512) 477-6200 Facsimile: (512) 477-1188 mhanna@markjhanna.com Jon M. Smith

State Bar No. 18630750 3305 Northland Drive Suite 500

Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com Appellee: Miriam Jaimes

Appellee’s Counsel: J. Lynn Watson

The J.L. Watson Law Firm, P.C.

State Bar No. 20761510 9442 N. Capital of Texas Hwy.

Plaza 1, Suite 500 Austin, Texas 78759 Telephone: (512) 343-4526 Facsimile: (512) 582-2953 Page iii *4 REFERENCE TO THE PARTIES Appellant will refer to Appellant, Access Orthodontics of East 7 th Street, P.A. as “A ccess ” and Appellee, Miriam Jaimes , as “ Jaimes .”

REFERENCE TO THE RECORD Reference Meaning

C.R. Clerk’s Record at page ___

R.R. Reporter’s Record at page ___: line ___ Page iv

TABLE OF CONTENTS

PAGE REQUEST FOR ORAL ARGUMENT ………………………………………………..………..ii

IDENTITY OF PARTIES AN D COUNSEL…………………………………….……………..iii

REFERENCE TO THE PARTIES ……………………………………………………………. iv

REFERENCE TO THE RECORD ……………………………………………………………iv

TABLE OF CONTENTS……………………………………………………………..………… .v

APPENDIX………………………………………………………………………………………vi

INDEX OF AUTHORITIES ……………………………………………………………………vii

STATEMENT OF THE CASE ………………………………………………………………… 1

ISSUE PRESENTED……………………………………………………………………….. .....2

STATEMENT OF FACTS …………………………………………………………… .............2

STANDARD OF REVIEW …………………………………………………………………… ..4

SUMMARY OF THE ARGUMENT …………………………………………………………. ..5

ISSUE...............................................................................................................................5

Whether the Trial Court erred in denying Access’ motion to dismiss pursuant to Texas Civil Practice & Remedies Code §74.351(b)..........................................................5

SUMMARY ……………………………………………………………………………………. ..5

ARGUMENTS AND AUTHORITIES …………………………………………………………. 5

CONCLUSION ………………………………………………………………………………... 12

PRAYER ………………………………………………………………………………………. 12

CERTIFICATE OF COMPLIANCE………………………………………………………….. 14

CERTIFICATE OF SERVICE ……………………………………………………… .............15 Page v

APPENDIX 1. Order Denying Defendant’s Motion to Dismiss with Prejudice for Failure to Provide Expert Report Pursuant to Texas Civil Practice & Remedies Code §74.351(b)

2. Texas Civil Practice & Remedies Code §74.351 Page vi

INDEX OF AUTHORITIES

CASES PAGE

Am. Transitional Care Ctrs. v. Palacios , 46 S.W.3d 873, 877 (Tex. 2001).......................4

Christus Spohn Health Sys. Corp. v. Sanchez , 299 S.W.3d 868, 873 (Tex. App. —

Corpus Christi 2009, pet. denied).....................................................................................4

City of Rockwall v. Hughes , 246 S.W.3d 621, 625-26 (Tex. 2008)...................................8

Coates v. Whittington , 758 S.W.2d 749, 751-52 (Tex. 1988).........................................10

Cont’l Cas. Ins. Co. v. Functional Restoration Assocs. , 19 S.W.3d 393, 402 (Tex.

2000).................................................................................................................................8

Crawford v. Ace Sign, Inc. , 917 S.W.2d 12, 14-15 (Tex. 1996)......................................10

Diversicare Gen. Partner, Inc. v. Rubio , 185 S.W.3d 842, 851 (Tex. 2005).....................6

Garland Cmty. Hosp. v. Rose , 156 S.W.3d 541, 543 (Tex. 2004)....................................6

GTE Southwest v. Bruce , 998 S.W.2d 605, 611 (Tex. 1999).........................................10

Inst. for Women’s Health, P.L.L.C. v. Imad , 2006 Tex. App. LEXIS 1182 (Tex. App. —

San Antonio 2006, no writ).............................................................................................11

Jernigan v. Langley , 195 S.W.3d 91 93 (Tex. 2006)(per curiam).....................................4

Marks v. St. Luke’s Episcopal Hosp. , 319 S.W.3d 658, 664 (Tex. 2010).........................7

Martin v. Texas Dental Plans, Inc. , 948 S.W.2d 799, 805 (Tex. App. — San Antonio

1997, writ denied)...........................................................................................................11

McAllen Hospitals, L.P. v. Gomez , No. 13-12-00421-CV, 2013 Tex. App. LEXIS 1990

(Tex. App. — Corpus Christi 2013)...................................................................................11

Mokkala v. Mead , 178 S.W.3d 66, 70 (Tex. App. — Houston [14 th Dist.] 2005, pet.

denied)..............................................................................................................................4

Moore v. Lillebo , 722 S.W.2d 683, 685 (Tex. 1986).......................................................10

Parkway Co. v. Woodruff , 901 S.W.2d 434, 44 (Tex. 1995)...........................................10

PM Management-Trinity NC, LLC v. Kumets , 368 S.W.3d 711, 720 (Tex. App. — Austin

2012, pet. filed)...............................................................................................................11 Page vii

Sci. Image Ctr. Mgmt. v. Bre wer, 282 S.W.3d 233, 237-38 (Tex. App.—Dallas 2009, pet.

denied)..............................................................................................................................6

St. Elizabeth Hosp. v. Garrard , 730 S.W.2d 649, 652-53 (Tex. 1987)............................10

State v. Shumake , 199 S.W.3d 279, 284 (Tex. 2006)......................................................8

Valley Baptist Med. Ctr. v. Stradley , 210 S.W.3d 770, 773 (Tex. App.—Corpus Christi

2006, pet. denied).............................................................................................................4

Walden v. Jeffer y, 907 S.W.2d 446, 448 (Tex. 1995)....................................................6,9

Washam v. Hughes , 638 S.W.2d 646, 648 (Tex. App.—Austin 1982, writ ref’d

n.r.e.)..............................................................................................................................10

STATUTES

Texas Business & Commerce Code §17.41, et seq …………………………… ................2

Texas Civil Practice & Remedies Code §74.001, et seq..................................................2

Texas Civil Practice & Remedies Code, §74.001(10).......................................................7

Texas Civil Practice & Remedies Code, §74.001(12)(A)(ii)..............................................7

Texas Civil Practice & Remedies Code §74.001(13)..............................................6, 8-10

Texas Civil Practice & Remedies Code §74.004..............................................................9

Texas Civil Practice & Remedies Code §74.051(a)..........................................................3

Texas Civil Practice & Remedies Code §74.052(a)..........................................................3

Texas Civil Practice & Remedies Code §74.351(b)..................................................1-3, 5

Texas Government Code §311.011(a).............................................................................8

Appellant’s Brief – Page viii

NO. 03-15-00081-CV ________________________________________________________________ IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN, TEXAS

_________________________________________________________________ ACCESS ORTHODONTICS OF EAST 7 TH STREET, P.A. Appellant

MIRIAM JAIMES

Appellee

____________________________________________________________________

On Appeal from the 126 th Judicial District Court Of Travis County, Texas

Appellant, Access Orthodontics of East 7 th Street, P.A., files this brief requesting that this Court reverse the Trial Court’s Order Denying Defendant’s Motion to Dismiss

with Prejudice for Failure to File Expert Report Pursuant to Texas Civil Practice &

Remedies Code §74.351(b) and would show as follows:

STATEMENT OF THE CASE This is an interlocutory appeal of the Trial Court’s denial of Access’ motion to dismiss plaintiff’s claims for failure to file an expert report pursuant to Texas Civil

Practice & Remedies Code §74.351(b). The Trial Court erred in determining that the

claims asserted by Jaimes were not “health care liability claims” as defined by the

Texas Medical Liability Act (“TMLA”). Tex . Civ. Prac. & Rem. Code §74.001, et seq.

ISSUE PRESENTED The issue presented is whether the Trial Court erred in denying Access’ motion to dismiss pursuant to Texas Civil Practice & Remedies Code §74.351(b).

STATEMENT OF FACTS Jaimes filed her original petition against Access on January 20, 2014. (C.R. 3-8) In her petition she claimed that Access had violated various provisions of the Texas

Deceptive Trade Practices Act. Tex. Bus. & Com. Code §17.41, et seq. (C.R. 6). Jaimes

based her claims on the allegations that “ Access had offered to provide orthodontic

services and goods of full braces (upper and lower), including complete services, at the

cost of $4,000.00.” (C .R. 5) Jaimes went on to allege that Access presented a

document to her entitled “Payment Options” that summarized and confirmed the of fer of

complete braces for $4,000.00 and that set up a payment schedule. (C.R. 5) Jaimes

alleged that she paid for the braces in full, but that Access had failed to set an

appointment to remove the braces. (C.R. 5) She also alleged that she scheduled an

appointment with Access to have the braces removed but that Access cancelled it.

(C.R. 5) She claimed that she attempted to reschedule the appointment multiple times

but that Access repeatedly cancelled and made excuses in order to avoid removing the

braces. (C.R. 5)

Jaimes alleged that she was damaged because Access failed to remove her braces. (C.R. 7) Jaimes claimed in paragraph 14 of the petition economic and mental

anguish damages as a result of Access’ conduct. (C.R. 7)

Access answered on February 13, 2014, alleging in a verified plea that the services that it had provided to Jaimes were health care services. (C.R. 12-15) Access

went on to allege in its answer that Jaimes’ claims were subject to Chapter 74 of the

Texas Civil Practice & Remedies Code and that Jaimes had failed to provide Access

with notice of suit as required by Texas Civil Practice & Remedies Code §74.051(a) nor

did she provide Access with a medical authorization as required by Texas Civil Practice

& Remedies Code §74.052(a). (C.R. 13)

On May 16, 2014 Jaimes filed her first amended petition adding an allegation that her claims were for monetary damage of more than $100,000.00 but less than

$200,000.00. (C.R. 16-22) All of the claims in her original petition were repeated in the

first amended petition. (C.R. 16-22) Jaimes did not serve an expert report regarding her

health care liability claims.

On August 21, 2014, Access filed its motion to dismiss with prejudice for failure to provide an expert report pursuant to Texas Civil Practice & Remedies Code

§74.351(b). (C.R. 23-32) The motion alleged that Jaimes’ claims were health care

liability claims as defined by Chapter 74. (C.R. 23-24) The motion further alleged that

Jaimes had not complied with Chapter 74 because she did not serve an expert report as

required by the statute. (C.R. 24) Jaimes did not file a response to the motion.

A hearing was held on the motion on December 16, 2014. (R.R. 1) Attorneys appeared for both parties and argued the motion. (R.R. 2-3) Counsel for Access

testified to reasonable and necessary attorney’s fees in the amount of $5,345.00. (RR

15:3-16:23) The trial court denied the motion by order dated January 21, 2015. (C.R.

41) Access filed its notice of appeal on February 4, 2015. (C.R. 45-46)

STANDARD OF REVIEW A trial court’s denial of a motion to dismiss for failure to comply with the TMLA’s expert report requirement is ordinarily reviewed for an abuse of discretion. Jernigan v.

Langley , 195 S.W.3d 91 93 (Tex. 2006)(per curiam); Am. Transitional Care Ctrs. v.

Palacios , 46 S.W.3d 873, 877 (Tex. 2001). However, whether a claim is a health care

liability claim pursuant to section 74.351 is a question of law and is reviewed de novo.

Christus Spohn Health Sys. Corp. v. Sanchez , 299 S.W.3d 868, 873 (Tex. App. —

Corpus Christi 2009, pet. denied), citing Valley Baptist Med. Ctr. v. Stradley , 210

S.W.3d 770, 773 (Tex. App. — Corpus Christi 2006, pet. denied); Mokkala v. Mead , 178

S.W.3d 66, 70 (Tex. App. — Houston [14 th Dist.] 2005, pet. denied).

POINT OF ERROR The trial court erred in denying Acc ess’ motion to dismiss Jaimes’ claims for failure to serve an expert report as required by Texas Civil Practice & Remedies Code

Chapter 74.

SUMMARY OF THE ARGUMENT ISSUE

The sole issue on appeal is whether the trial court erred by denying Acc ess’ motion to dismiss Jaimes’ claims for failure to serve an expert report as required by

Texas Civil Practice & Remedies Code Chapter 74.

SUMMARY OF THE ARGUMENT

Jaimes’ claims are “health care liability claims” as defined by Chapter 74 because they specifically relate to a claimed “lack of treatment” which proximately resulted in

“injury” to Ms. Jaimes. Despite artfully pleading these claims as DTPA claims , Jaimes’

claims are health care liability claims as defined by Chapter 74 of the Texas Civil

Practice & Remedies Code. Because Jaimes failed to serve an expert report pursuant

to Section 74.351(b) her lawsuit must be dismissed with prejudice and attorney’s fees

should be awarded against her.

ARGUMENTS AND AUTHORITIES A plaintiff in a “health care liability claim” must serve an expert report in a timely fashion or have its lawsuit dismissed with prejudice. Texas Civil Practice & Remedies

Code §74.351(b) states that if an expert report is not provided as required by the Act,

the court “shall” enter an order that (1) awards reasonable attorney’s fees and costs of

court incurred by the physician or health care provider; and (2) dismisses the claim with

prejudice to its refiling. As stated above, it is undisputed that Jaimes did not serve an

expert report in the trial court. The question then becomes whether her claim is a

“health care liability claim” as defined by the statute.

Jaimes’ Claim is a Health Care Liability Claim

Whether a claim is a health care liability claim depends on the underlying nature of the claim being made. Garland Cmty. Hosp. v. Rose , 156 S.W.3d 541, 543 (Tex. 2004).

In determining a claim’s underlying nature, we consider the duties allegedly breached

as well as the allegedly wrongful conduct, looking to the factual allegations to determine

the gravamen of the complaint and not being bound by the form of the pleading or how

complaints are labeled. Diversicare Gen. Partner, Inc. v. Rubio , 185 S.W.3d 842, 851

(Tex. 2005). If the act or omission alleged in the complaint is an inseparable part of the

rendition of health care services, then the claim is a health care liability claim.

Diversicare , 185 S.W.3d at 848; Walden v. Jeffer y, 907 S.W.2d 446, 448 (Tex. 1995).

The Texas Supreme Court has repeatedly held that plaintiffs cannot, through artful

pleading, avoid the strictures of Chapter 74 by recasting health care liability claims as

other causes of action. Sci. Image Ctr. Mgmt. v. Bre wer, 282 S.W.3d 233, 237-38 (Tex.

App. — Dallas 2009, pet. denied).

Section 74.001(13) of the statute defines “Health care liability claim” as 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 cont ract or tort.” A claim is a health care liability claim

governed by chapter 74 if it alleges a breach of accepted standards of health care or if

the claim is inseparable from the rendition of health care. Marks v. St. Luke’s Episcopal

Hosp. , 319 S.W.3d 658, 664 (Tex. 2010).

The Texas Supreme Court has held that there are three elements in a health care liability claim: (1) A physician or health care provider must be a defendant; (2) The suit

must be about the patient’s treatment, lack of treatment or so me other departure from

accepted standards of medical care or health care or safety ;; and (3) the defendant’s

act, omission or other departure must proximately cause the patien t’s injury or death.

Marks , 319 S.W.3d at 662. As explained in the following pa ragraphs, Jaimes’ claim

satisfies all three elements and is, therefore, a “health care liability claim.”

Access is a “Health Care Provider”

Access is a “health care provider” as defined by the TMLA. The term “Health care

provider” includes “professional association” and “dentist” . Texas Civil Practice &

Remedies Code, §74.001(12)(A)(ii). Additionally, the term “health care” means “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. Tex. Civ. Prac. & Rem. Code

§74.001(10).

Access fits the definition of “health care provider” because it is a professional association that provides dental services as alleged by Jaimes in her petition. (C.R. 17-

18 ) Additionally, Jaimes’ claim is for an act or treatment “that should have been

performed” – the removal of her braces. (C.R. 19) Ther efore, it is clear that Jaimes’

claim is for “health care.” The first element of “health care liability claim” is satisfied.

Jaimes’ Claim is for a “Lack of Treatment”

The first amended petition itself makes it clear that the complaint is about a “lack of treatment” or an “act or treatment that should have been performed” – the failure to

remove the braces. (C.R. 5)

When construing a statute, words and phrases are read in context and construed according to the rules of grammar and common usage. Tex. Gov’t Code §311.011(a).

Words that are not defined are given their ordinary meaning unless a contrary intention

is apparent from the context, or unless such a construction leads to absurd results. City

of Rockwall v. Hughes , 246 S.W.3d 621, 625-26 (Tex. 2008). When possible, the

Legislature’s intent is drawn from the pl ain meaning of the words chosen, giving effect

to all words s o that none of the statute’s language is treated as surplusage. State v.

Shumake , 199 S.W.3d 279, 284 (Tex. 2006); Cont’l Cas. Ins. Co. v. Functional

Restoration Assocs. , 19 S.W.3d 393, 402 (Tex. 2000).

As stated above, Section 74.001(13) defines a “Health care liability claim” as 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 contract or tort.” (emphasis adde d) Ms. Jaimes’ sole

complaint is that her braces were not removed – a lack of treatment .

The Texas Supreme Court has previously held that claims arising from alleged misrepresentations related to dental work amount to a health care liability claim. Walden

v. Jeffery , 907 S.W.2d 446 (Tex. 1995). In Walden , the plaintiff sued her dentist for

failing to provide her dentures that fit, as he had promised. Walden , 907 S.W.2d at 447.

The plaintiff made claims under the DTPA, breach of warranty and breach of contract.

Id. The Supreme Court held that the dentist’s providing of the dentures was an

inseparable part of his rendition of health care services and that therefore the plaintiff’s

claims were health care liability claims. Walden , 907 S.W.2d at 448. Similarly, the

providing and removal of braces was an inseparable part of the rendition of health care

services provided by Access to Jaimes. Therefore, the claim for failure to remove the

braces was a health care liability claim.

The Act also specifically states that the DTPA does not apply to health care liability claims. Section 74.004 states, “Notwithstanding any other law, Sections 17.41 -17.63,

Business & Commerce Code, do not apply to physicians or health care providers with

respect to claims for damages for personal injury or death resulting, or alleged to have

resulted, from negligence on the part of any physician or health care provider.”

Although Jaimes attempts to avoid the TMLA by avoiding the use of the term “negligent”

or “negligence” that is the nature of her claim and the statute specifically excepts such

claims from the DTPA.

It is also important to note here the last phrase of the definition of “health care liability claim” which states, “whether the claimant’s claim or ca use of action sounds in

tort or contract.” Tex. Civ. Prac. & Rem. Code §74.001(13). Jaimes’ claim is essentially

a breach of contract claim. She alleges that she entered into an agreement for the

provision of full braces for a set price, that she performed by paying and that Access

breached the agreement by failing to take off the braces. A simple breach of contract

claim does not give rise to liability under the DTPA. Crawford v. Ace Sign, Inc. , 917

S.W.2d 12, 14-15 (Tex. 1996).

Because Ms. Jaimes’ claim fits the pla in language of the definition of “health care liability claim” the second element is satisfied.

Jaimes Claims an “Injury”

The third element of a “health care liability claim” is that the alleged action of the defendant “proximately results in injury or death of a claimant.” Tex. Civ.

Prac. & Rem. Code §74.001(13). This element is satisfied because Jaimes

claims that Access’ conduct proximately caused an injury – mental anguish.

The statute does not define the word “injury.” But, as stated above, in interpreting statutes, when an undefined term is used its usual and customary

meaning is assigned. Texas courts have long used the term “injury” to describe

purely mental injury. Moore v. Lillebo , 722 S.W.2d 683, 685 (Tex. 1986); Coates

v. Whittington , 758 S.W.2d 749, 751-52 (Tex. 1988); St. Elizabeth Hosp. v.

Garrard , 730 S.W.2d 649, 652-53 (Tex. 1987); Parkway Co. v. Woodruff , 901

S.W.2d 434, 44 (Tex. 1995); GTE Southwest v. Bruce , 998 S.W.2d 605, 611

(Tex. 1999); Washam v. Hughes , 638 S.W.2d 646, 648 (Tex. App. — Austin 1982,

writ ref’d n.r.e.).

The Corpus Christi Court of Appeals has held that a DTPA claim for an economic injury accompanied by mental anguish was sufficient to satisfy the

requirement of an “injury” to qualify as a health care liability claim. McAllen

Hospitals, L.P. v. Gomez , No. 13-12-00421-CV, 2013 Tex. App. LEXIS 1990

(Tex. App. — Corpus Christi 2013). In the McAllen Hospitals case, Gomez

claimed that the hospital overcharged him for services, that was unconscionable

under the DTPA and it caused him to suffer mental anguish. McAllen p. 8. The

court held that a claim for mental anguish damages satisfied the “injury”

requirement and cited the Kumets case decided by this court. McAllen , p. 9,

citing PM Management-Trinity NC, LLC v. Kumets , 368 S.W.3d 711, 720 (Tex.

App. — Austin 2012) affirmed in part, reversed in part on other grounds, PM

Management-Trinity NC, LLC v. Kumets , 404 S.W.2d 550 (Tex. 2013).

In Kumets , this court considered whether a retaliation claim qualified as a health care liability claim. In deciding that it did not, the court stated, “in the

context of a medical negligence claim, and particularly the language of section

74.351(a) of the TMLA (“injury to or death of a claimant”), the term “injury” would

seem to carry with it the implication that the alleged deviation from an accepted

standard of care must cause the plaintiff to suffer some personal injury, whether

physical, mental, or emotional.” Kumets , 368 S.W.3d at 720 ^[1] .

Because Jaimes’ claim for mental anguish qualifies as an “injury” under the TMLA, the third element of the analysis is met and Jaimes’ claim is a “health care

*20 liability claim” as defined by the TMLA. Therefore, the trial cou rt was in error to

deny Access’ motion to dismiss.

CONCLUSION The Trial Court erred when it denied the motion to dismiss. Therefore, this court should reverse the court of appeals and render judgment that the case is dismissed with

prejudice to its refiling and that Access is awarded attorneys fees in the amount of

$5,345.00.

PRAYER FOR THE FOREGOING REASONS , Appellant prays that this Court reverse the trial court’s order denying the motion to dismiss, and render judgment that Appellee’s

claims are dismissed with prejudice and order her to pay attorney’s f ees in the amount

of $5,345.00.

Respectfully submitted, LAW OFFICES OF HANNA & ANDERTON By:__________________________________ Robert M. Anderton State Bar No. 00795223 Mark J. Hanna State Bar No. 08919500 900 Congress Avenue, Suite 250 Austin, Texas 78701 Telephone: (512) 477-6200 Facsimile: (512) 477-1188 Email: mhanna@markjhanna.com *21 Jon M. Smith State Bar No. 18630750 3305 Northland Drive Suite 500

Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 Email: jon@jonmichaelsmith.com ATTORNEYS FOR APPELLANT CERTIFICATE OF COMPLIANCE I, Jon Michael Smith, do hereby certify that the Appellant ’ s Brief contains 2,848 words, according to the word count of the computer program used to prepare it, in

compliance with Texas Rule of Appellate Procedure 9.4(i)(3).

____________________________________ Jon Michael Smith *22 CERTIFICATE OF SERVICE I, Jon Michael Smith, do hereby certify that a true and correct copy of APPELLANT’S BRIEF was delivered to all attorneys of record as listed below via fax on

March 4, 2015.

J. Lynn Watson

The J.L. Watson Law Firm, P.C.

State Bar No. 20761510

9442 N. Capital of Texas Hwy.

Plaza 1, Suite 500

Austin, Texas 78759

(512) 582-2953

_____________________________________ ROBERT M. ANDERTON

[1] See also Inst. for Women’s Health, P.L.L.C. v. Imad , 2006 Tex. App. LEXIS 1182 (Tex. App. — San Antonio 2006, no writ) in which the San Antonio court of appeals held that a couple’s claim for mental anguish, loss of companionship and society and medical bills because of the defendant’s destruction of several embryos was a health care liability claim. The court cited Martin v. Texas Dental Plans, Inc. , 948 S.W.2d 799, 805 (Tex. App. —San Antonio 1997, writ denied) for the proposition that “mental anguish is a compensable injury.”

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