In the Fifth District Court of Appeals at Dallas

Transcription

1 NO CV In the Fifth District Court of Appeals at Dallas 5th Court of Appeals FILED: 12/15/11 14:00 Lisa Matz, Clerk BOULDER CREEK ACADMEY AND SHEILA TART-ZELVIN vs. Appellants ART KLINE, BRIDGET KLINE AND DAVIS KLINE Appellees ON APPEAL FROM THE 101 ST /68 TH JUDICIAL DISTRICT COURT, DALLAS COUNTY, TEXAS Cause No , The Honorable Martin Lowy, Presiding APPELLANTS BRIEF Katherine K. Elrich Texas State Bar No Frank Alvarez Texas State Bar No Kimberly A. Wilson Texas State Bar No HERMES SARGENT BATES, LLP 901 Main Street, Suite 5200 Dallas, Texas Telephone (214) Facsimile (214) Attorneys for Appellants ORAL ARGUMENT REQUESTED

2 IDENTITY OF PARTIES AND COUNSEL Parties to Trial Court s Order on Appeal Boulder Creek Academy Sheila Tart-Zelvin Art Kline Bridget Kline Davis Kline Appellant/Defendant Appellant/Defendant Appellee/Plaintiff Appellee/Plaintiff Appellee/Plaintiff Trial and Appellate Counsel Katherine K. Elrich HERMES SARGENT BATES, LLP 901 Main Street, Suite 5200 Dallas, Texas Frank Alvarez Kimberly K. Wilson HERMES SARGENT BATES, LLP 901 Main Street, Suite 5200 Dallas, Texas J. Mark Perrin The Perrin Law Firm 325 N. St. Paul Street, Ste. 600 Dallas, TX Peter D. Marketos Reese Gordon Marketos 750 N. Saint Paul St., Suite 610 Dallas, Texas Appellate Counsel for Appellants/Defendants Trial Counsel for Appellants/Defendants Appellate and Trial Counsel for Appellees/Plaintiffs Appellate and Trial Co-Counsel for Appellees/Plaintiffs Trial Judge The Honorable Martin Lowy Judge, 101 st Judicial District Court, Dallas County, Texas i

3 TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL... i INDEX OF AUTHORITIES... iv INDEX OF AUTHORITIES (cont.)... v INDEX OF AUTHORITIES (cont.)... vi STATEMENT OF THE CASE... vii STATEMENT REGARDING ORAL ARGUMENT... viii ISSUES PRESENTED... ix RECORD ON APPEAL... x I. STATEMENT OF FACTS... 1 A. Factual Background B. Procedural Background II. SUMMARY OF THE ARGUMENT... 5 III. ARGUMENT... 6 A. Standard of review for a motion to dismiss under the Act B. Dismissal with prejudice comports with the legislative intent behind the enactment of the Act C. The Klines claims are health care liability claims falling under the requirements of the Act The Act s definition of a health care liability claim a. A health care liability claim is one, however denominated, that implicates an alleged departure from the accepted standards of health care b. Expert testimony is required to show the requisite standard of care The Act s definition of health care provider ii

4 TABLE OF CONTENTS (cont.) Page a. The Act s broad definition of health care provider includes those not expressly listed in the Act b. The Act s definition of health care provider also includes an affiliate of a facility licensed by the State of Texas c. The Act also governs the claims against Ms. Tart- Zelvin because she was an employee of a health care provider acting in the course and scope of her employment D. The trial court erred in refusing to award attorneys fees and costs E. The trial court erred in refusing to admit into evidence Exhibits 1-4 at the motion to dismiss hearing Applicable standards regarding evidentiary rulings The trial court abused its discretion by sustaining the Klines objections to Exhibits 1-4 at the hearing Rendition of an improper ruling on the motion to dismiss IV. CONCLUSION AND PRAYER CERTIFICATE OF SERVICE INDEX TO APPENDIX iii

5 INDEX OF AUTHORITIES Cases Page(s) American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001)... 6 Badiga v. Lopez, 274 S.W.3d 681 (Tex. 2009)... 9 Boothe v. Dixon, 180 S.W.3d 915 (Tex. App. Dallas 2005, no pet.) Buchanan v. O'Donnell, 340 S.W.3d 805 (Tex. App. San Antonio 2011, no pet.) Christus Health v. Beal, 240 S.W.3d 282 (Tex. App. Houston [1st Dist.] 2007 n.p.h.)... 21, 22, 23 Covenant Health Sys. v. Barnett, 342 S.W.3d 226 (Tex. App. Amarillo 2011, no pet.) Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005)... 11, 16, 17, 18, 19, 22 Empowerment Options, Inc. v. Easley, No CV, 2006 WL (Tex. App. Beaumont 2006, pet. denied) Fudge v. Wall, 308 S.W.3d 458 (Tex. App. Dallas 2010, no pet.) Garland Community Hosp. v. Rose, 156 S.W.3d 541 (Tex. 2004)... 9, 11, 16, 18, 19 Groomes v. USH of Timberlawn, Inc., 170 S.W.3d 802 (Tex. App. Dallas 2005, no pet.)... 6, 12, 13, 15, 16, 17 Herrera v. Seton Northwest Hosp., 212 S.W.3d 452 (Tex. App. Austin 2006, no pet.) Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) iv

6 INDEX OF AUTHORITIES (cont.) Cases Page(s) Lee v. Boothe, 235 S.W.3d 448 (Tex. App. Dallas 2005, no pet.)... 11, 13, 14, 16 Mokkala v. Mead, 178 S.W.3d 66, (Tex. App. Houston [14th Dist.] 2004, pet denied)... 7 Perry v. Samuels, 307 S.W.3d 826 (Tex. App. Dallas 2010, no pet.)... 11, 14, 16, 19 Pro Path Servs., L.L.P. v. Koch, 192 S.W.3d 667 (Tex. App. Dallas 2006, pet. denied)... 21, 22 San Antonio Extended Medical Care, Inc. v. Vasquez, 327 S.W.3d 193 (Tex. App. San Antonio 2010, no pet.)... 12, 18, 19, 22, 23, 32 Scientific Image Center Management, Inc. v. Brewer, 282 S.W.3d 233 (Tex. App. Dallas 2009, pet. denied)... 6 Skloss v. Perez, No CV, 2009 WL (Tex. App. Houston [1st Dist] 2009, pet. filed)... 19, 22 Sorokolit v. Rhodes, 889 S.W.2d 239 (Tex. 1994) Strobel v. Marlow, 341 S.W.3d 470 (Tex. App. Dallas, no pet.)... 22, 23 Texas Cypress Creek Hospital v. Hickman, 329 S.W.3d 209 (Tex. App. Houston [14th Dist.] 2010, pet. denied)... 16, 17 Vanderwerf v. Beathard, 239 S.W.3d 406 (Tex. App. Dallas 2007, no pet.) Victoria Gardens of Frisco v. Walrath, 257 S.W.3d 284 (Tex. App. Dallas 2008, pet. denied) Yamada v. Friend, 335 S.W.3d 192 (Tex. 2010)... 11, 17 v

7 INDEX OF AUTHORITIES (cont.) Statutes Page(s) TEX. CIV. PRAC. & REM. CODE passim TEX. CIV. PRAC. & REM. CODE , 8, 9, 28, 31 TEX. GOV'T. CODE ANN vi

8 STATEMENT OF THE CASE Nature of the Case: This is a lawsuit against a health care provider, Boulder Creek Academy (BCA), and its employee, Sheila Tart-Zelvin, to recover damages due to the purported negligent treatment and overdose of medication provided to Davis Kline, while he attended BCA. (CR ). Davis Kline, along with his parents, Art and Bridget Kline, filed suit against BCA and Ms. Tart-Zelvin alleging violations of the Texas Deceptive Trade Practices Act (DTPA), negligence, and fraud. (CR ). Despite BCA s health care treatment of Davis Kline being the gravamen of the Klines claims, the Klines failed to provide an expert report within the 120 days of filing the lawsuit as required by Chapter 74 of the Texas Civil Practice and Remedies Code ( the Act ). Pursuant to the Act s remedies for the failure to serve such expert report, BCA and Ms. Tart-Zelvin filed a motion to dismiss along with a request for attorneys fees and costs. (CR , ). The court conducted a hearing on the motion to dismiss on September 28, During the hearing, the trial court noted potential recusal issues and ultimately recused himself on October 3, 2011 and after entering the order denying the motion to dismiss. (1 RR 18-20). Trial Court: The Honorable Martin Lowy, 101 st Judicial District Court, Dallas County, Texas/transferred to the Honorable Martin Hoffman, 68 th Judicial District Court, Dallas County. Trial Court Disposition: On September 28, 2011, the trial court signed an order denying BCA and Ms. Tart-Zelvin s motion to dismiss with prejudice and request for attorneys fees and costs. (CR 484). vii

9 STATEMENT REGARDING ORAL ARGUMENT Appellants respectfully request oral argument pursuant to Rule 39.1 of the Texas Rules of Appellate Procedure. In short, the error presented by this appeal is one upon which oral argument would be beneficial. For instance, this appeal involves the determination of whether the trial court abused its discretion in finding that Appellees claim was not a health care liability claim and denying Appellants motion to dismiss when Appellees sued a therapeutic boarding school for alleged injuries sustained due to alleged overmedication during Davis Kline s stay at the facility but failed to timely file an expert report as is required by the Medical Liability and Insurance Improvement Act. The issue of whether Appellees claim is a healthcare liability claim as that term is defined in Medical Liability and Insurance Improvement Act could benefit from discussion before this Court. As such, oral argument in this case would significantly aid the decisional process. viii

10 ISSUES PRESENTED 1. The trial court abused its discretion in finding that Appellees claim was not a healthcare liability claim and denying Appellants motion to dismiss and request for an award of attorneys fees and costs when Appellee Davis Kline, a student and resident of a therapeutic boarding school providing clinical services to Davis Kline, and his parents sued the facility for overmedication of Davis Kline during his stay at the facility but failed to timely serve an expert report as is required by the Medical Liability and Insurance Improvement Act. 2. The trial court erred in sustaining certain objections to, and refusing to admit, certain evidence in support of Appellants motion to dismiss at the motion to dismiss hearing and such error probably caused the rendition of an improper ruling on the motion to dismiss. ix

11 RECORD ON APPEAL The record on appeal consists of a one-volume Clerk s Record and two-volume Reporter s Record. The Clerk s Record will be cited by page number as (CR ). The Reporter s Record will be cited by volume and page number as ( RR ). x

12 NO CV In the Fifth District Court of Appeals at Dallas BOULDER CREEK ACADMEY AND SHEILA TART-ZELVIN vs. Appellants ART KLINE, BRIDGET KLINE AND DAVIS KLINE Appellees ON APPEAL FROM THE 101 ST /68 TH JUDICIAL DISTRICT COURT, DALLAS COUNTY, TEXAS Cause No , The Honorable Martin Lowy, Presiding APPELLANTS BRIEF TO THE HONORABLE JUSTICES OF THE FIFTH COURT OF APPEALS: Appellants Boulder Creek Academy and Sheila Tart-Zelvin ( Appellants ) respectfully submit this brief requesting that the Court reverse the trial court s order denying Appellants motion to dismiss and request for attorneys fees and costs and dismiss this case with prejudice and award Appellants attorneys fees and costs. A. Factual Background. I. STATEMENT OF FACTS This is a lawsuit against a therapeutic boarding school, Boulder Creek Academy (BCA), and its former employee, Sheila Tart-Zelvin, who acted in the course and scope 1

13 of her employment with BCA. (CR ). Appellees Art and Bridget Kline, along with their son, Appellee Davis Kline, (together referred to as the Klines ) brought this lawsuit against BCA and Ms. Tart-Zelvin complaining about the mis-treatment and overmedication of Davis Kline during his stay at BCA. (CR ). Art and Bridget Kline decided to send Davis Kline to BCA in January of (CR 301). While attending BCA, Davis Kline received an education and earned his high school diploma. (CR 65). He was also treated for his psychological problems. (CR 303). The Klines complained in this lawsuit about Davis Kline s treatment at BCA, as well as about various communications regarding such treatment. (CR ). Namely, the Klines alleged that BCA misdiagnosed and mistreated Davis Kline during his time there. (CR 303). They alleged that [h]e was prescribed drugs that were completely inappropriate and unnecessary and was threatened with expulsion if he did not take the prescribed medication. (CR 303). They also complained that Davis Kline was treated by individuals who were not qualified or trained and little to no attention was paid to his academic or psychological well-being and growth. (CR 303). The Klines further alleged: BCA had not advanced him academically or psychologically, as BCA had done nothing more than drugged him into submission for his time there. (CR 304). Based upon these allegations, the Klines asserted claims of violations of the Texas Deceptive Trade Practices Act (DTPA), negligence, and fraud/misrepresentation. (CR ). 2

14 B. Procedural Background. In response to the Kline s lawsuit, BCA initially filed a special appearance and answer subject thereto challenging personal jurisdiction since the alleged mistreatment occurred in Idaho, where BCA is located. (CR 18-91, ). But, the trial court denied the special appearance. (CR 245). Then, in April 2011, BCA and Ms. Tart-Zelvin filed their motion to dismiss with prejudice requesting the trial court dismiss the lawsuit against BCA and Ms. Tart-Zelvin because the Klines failed to provide an expert report within the prescribed time period in accordance with Chapter 74 of the Texas Civil Practices and Remedies Code (commonly referred to as the Medical Liability and Insurance Improvement Act and referred to herein as the Act ). (CR ). 1 More specifically, BCA and Ms. Tart-Zelvin argued that because the Klines lawsuit was filed on December 31, 2008, they were required under the Act to serve their expert report on or before 120 days from the date of their lawsuit filing, or April 30, (CR ). In response, the Klines did not contest the fact that they failed to serve an expert report by April 30, (CR ). Instead, the Klines argued that their lawsuit was not a health care liability claim governed by the Act, claiming that BCA and Ms. Tart-Zelvin were not health care providers, as that term is defined by the Act. (CR ). In their subsequently filed supplemental brief in support of their motion to dismiss, BCA and Ms. Tart-Zelvin refuted the Klines contention that their lawsuit was 1 Additionally, BCA and Ms. Tart-Zelvin requested the mandatory attorney s fees and costs associated with such dismissals under the Act. (CR 253, 331). 3

15 not a health care liability claim by showing that the claims are health care liability claims because they implicate an alleged departure from accepted standards of health care and the claims are asserted against a health care provider. (CR ). The Klines then filed a response to this supplemental brief arguing erroneously that BCA is not an affiliate of a health care provider under the Act and that the Klines claims are not health care liability claims. (CR ). In turn, BCA and Ms. Tart-Zelvin filed a reply brief further establishing their health care provider status and the nature of the Klines claims being health care liability claims. (CR ). A hearing was conducted on September 28, 2011 in front of the Honorable Martin Lowy. (1 RR 1-24). During the hearing, the trial judge expressed probable grounds for recusal stating that he might have a family connection with the Klines, as well as he had a negative experience with a key fact and expert witness in this case Dr. Edlin Davis Klines treating psychiatrist who referred Davis Kline to BCA. (1 RR 18-20). Nevertheless, the trial court ruled on the motion to dismiss and denied the motion to dismiss. (CR 484); (Tab A). A few days later, on October 3, 2011, after another hearing was conducted, the trial judge signed an order of recusal, whereby he recused himself from further proceedings in the case and transferred the case to the 68 th Judicial District Court of Dallas County. (CR 485) (2 RR 1-14). This appeal followed. 4

16 II. SUMMARY OF THE ARGUMENT The Klines claims in this matter are health care liability claims which are subject to the expert report requirements of the Act, and since no report was served in compliance with the requirements, BCA and Ms. Tart-Zelvin are entitled to a dismissal of this cause with prejudice. The mandatory expert report requirements apply in the instant action because the Klines have asserted claims against a licensed health care provider and its employee. BCA qualifies as a health care provider because the services provided to Davis Kline constitute health care treatment under the Act. Ms. Tart-Zelvin qualifies as a health care provider for purposes of the Act as an employee of a health care provider acting in the course and scope of the employment relationship as an employee of BCA. Additionally, both BCA and Ms. Tart-Zelvin are affiliates of a licensed health care provider in Texas, namely Meridell Achievement Center, based on their mutual relationship with UHS of Delaware, Inc., which also renders them health care providers under the affiliate prong of the Act, as discussed in more detail below. Under the Act, the expert report requirement is mandatory and there is no recourse for a plaintiff who wholly fails to timely serve a report within the prescribed 120-day period. The Klines failed to timely serve such a report. Although BCA and Ms. Tart- Zelvin filed a motion to dismiss and request for attorneys fees under the Act, the trial court erroneously denied such request, thereby giving rise to this appeal. Because the trial court erred, this Court should reverse the trial court s order. 5

17 III. ARGUMENT A. Standard of review for a motion to dismiss under the Act. Although a trial court s ruling on a motion to dismiss under the Act is generally reviewed under an abuse of discretion standard, to the extent resolution of the issue requires interpreting the Act itself, the court of appeals review is de novo. American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001); Groomes v. USH of Timberlawn, Inc., 170 S.W.3d 802, 804 (Tex. App. Dallas 2005, no pet.). In fact, this Court has held that a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Scientific Image Center Management, Inc. v. Brewer, 282 S.W.3d 233, 236 (Tex. App. Dallas 2009, pet. denied). And, whether a cause of action is a health care liability claim is a question of law to be reviewed by this Court de novo. Id. The only question before this Court is whether the Klines claims are health care liability claims as that term is defined under the Act. Thus, the issue on appeal requires interpreting the Act itself, and more specifically, the meaning of the Act s term health care liability claim. Accordingly, this Court s review is de novo. Under this standard of review, and as shown in more detail below, this Court should reverse the trial court s order denying the motion to dismiss and request for attorneys fees and costs. B. Dismissal with prejudice comports with the legislative intent behind the enactment of the Act. In 2003, the Texas Legislature recognized that the former medical liability statute had proven ineffectual, and the rising number of frivolous suits being filed, as well as the 6

18 increasing costs of litigating health care liability claims had become a paramount concern of the state. Act of June 2, 2003, 78th Leg., R.S., ch (b)(1), 2003 Tex. Gen. Law 847, 884. Specifically, the Legislature found: the number of health care liability claims has increased since 1995 inordinately [and] health care liability claims in Texas [are] a contributing factor affecting medical professional liability rates. Id. In presenting the bill to recodify the Act, Representative Joe Nixon, Chair of the House Committee on Civil Practices explained: House Bill 4 is designed to promote fairness and efficiency in civil lawsuits, protect Texas citizens and Texas courts from abusive litigation tactics, [and] remove incentives in the system that are causing unwarranted delay and expense Hearings on Tex. H.B. 4 Before the House Comm. on Civil Practices, 78th Leg., R.S. 1 (Feb. 26, 2003) (statement of Rep. Nixon) (transcript available from Capitol Research Services, Austin, Texas). In an effort to ensure the Act s effectiveness in weeding out unmeritorious health care liability claims, the Legislature made significant changes to section of the Texas Civil Practice and Remedies Code, eliminating or amending provisions which were formerly lenient to plaintiffs. See Mokkala v. Mead, 178 S.W.3d 66, (Tex. App. Houston [14th Dist.] 2004, pet. denied) (citing Act of May 5, 1995, 74th Leg., R.S., ch. 140, 1, sec (f), (g), 1995 Tex. Gen. Laws 985, 986 (repealed 2003)). These changes included: reducing the 180-day period provided to plaintiffs to serve expert reports to 120 days; 7

19 eliminating the provision allowing a cost bond or cash deposit in lieu of an expert report served 90 days after a plaintiff filed a health care liability claim; eliminating the provision allowing a plaintiff to nonsuit if an expert report was not filed 180 days after filing his claim; and eliminating former subsections (f) and (g) which provided a 30-day extension and grace period, respectively, if a plaintiff failed to timely comply with the 180-day deadline. Id. As to the deadline to serve an expert report, section of the Texas Civil Practice and Remedies Code clearly sets out the timeframe in which a claimant making a health care liability claim must provide an expert report (120 days) and the defendant s remedy if no such report is timely served (dismissal with prejudice): (a) (b) In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.... If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall... enter an order that: (1) awards to the affected physician or health care provider reasonable attorney s fees and costs of court incurred by the physician or health care provider; and (2) dismisses the claim with respect to the physician or health care provider, with prejudice to refiling of the claim. TEX. CIV. PRAC. & REM. CODE

20 Under the current Act, there are no statutory exceptions to the 120-day deadline, and an extension may only be obtained by mutual consent of the parties or to cure a deficient expert report that was timely served. See Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex. 2009); cf. TEX. CIV. PRAC. & REM. CODE (a), (c). Under Chapter 74, if a plaintiff fails to timely serve its expert report within the 120-day period, the court must enter a dismissal with prejudice and award defendant attorney s fees upon a defendant s motion. TEX. CIV. PRAC. & REM. CODE (b). The Act s expert report requirements were created by the Texas Legislature to effectuate the Act s purpose. Garland Community Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004). The purpose of the Act is to reduce excessive frequency and severity of health care liability claims, and make affordable medical and health care more accessible and available to the citizens of Texas. Id. The Legislature had determined that an increase in the frequency and severity of health care liability claims was negatively affecting the availability and affordability of health care in Texas. Garland Community Hosp., 156 S.W.3d at 543. Thus, these strict deadlines serve a purpose and courts are charged with the duty of applying the Act in all health care liability claims. So much so, that trial courts do not have discretion in dismissing the case when a claimant fails to timely file his expert report. TEX. CIV. PRAC. & REM. CODE (b)(2). The Klines have never taken issue with the above set forth requirements of the Act. What the Klines contest is whether their claims are health care liability claims falling within the scope of the Act. 9

21 C. The Klines claims are health care liability claims falling under the requirements of the Act. More specifically, the Klines do not dispute that a report was required within a prescribed time period under the Act. The Klines do not dispute that they failed to file such report. The Klines do not dispute that the failure to file such report would require the trial court to dismiss their lawsuit with prejudice and award the health care provider reasonable attorneys fees and costs incurred as long as the claim is a health care liability claim. The Klines sole contention is to mistakenly argue that their lawsuit somehow fell outside the scope of the Act thereby negating the need for an expert report as mandated by the Act. The Klines contention must fail as their claims are nothing other than health care liability claims as defined by the Act and are therefore subject to the Act s expert reporting requirements. 1. The Act s definition of a health care liability claim. The Act defines health care liability claim to include any cause of action against a health care provider, however pled, that implicates any alleged departure from an accepted standard of care: Health care liability claim means 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. TEX. CIV. PRAC. & REM. CODE (13). 10

22 a. A health care liability claim is one, however denominated, that implicates an alleged departure from the accepted standards of health care. In analyzing whether a claim fits within this definition, the Texas Supreme Court reiterated that plaintiffs may not artfully plead a claim to avoid the Act s requirements when the essence of the suit is a health care liability claim. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005); see also Garland Community Hosp., 156 S.W.3d at 543; Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994). The key to determining whether a claim is a health care liability claim is to examine the underlying nature of the claim. Garland Community Hosp., 156 S.W.3d at 543; Perry v. Samuels, 307 S.W.3d 826, 829 (Tex. App. Dallas 2010, no pet.); Vanderwerf v. Beathard, 239 S.W.3d 406, 408 (Tex. App. Dallas 2007, no pet.); Lee v. Boothe, 235 S.W.3d 448, 451 (Tex. App. Dallas 2005, no pet.). In so doing, the court is not bound by plaintiff s own characterization of the claims. Diversicare, 185 S.W.3d at 851 ( We are not bound by niceties of pleadings, and a mere recasting of a health care liability claim based on physician or health care provider negligence in the garb of some other cause of action is not sufficient to preclude the application of [the Act]. ); Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010) (holding that the plaintiffs could not avoid the application of the Act by fashioning the claim against the physician as one sounding in negligence). If the act or omission alleged 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 849; Lee, 235 S.W.3d at 451; Perry, 307 S.W.3d at

23 Additionally, if the plaintiff is required to present specialized knowledge of a medical expert to prove his claim, then it is a health care liability claim. Diversicare, 185 S.W.3d at 851; Groomes, 170 S.W.3d at 805; San Antonio Extended Medical Care, Inc. v. Vasquez, 327 S.W.3d 193, 197 (Tex. App. San Antonio 2010, no pet.). In other words, if the claim involves either the diagnosis, care, or treatment of the patient such that the claim would fail in the absence of expert testimony that the defendant s conduct fell below the standard of care in conducting such diagnosis, care, or treatment, then the claim is a health care liability claim. Diversicare, 185 S.W.3d at 851. For example, in Groomes v. USH of Timberlawn, Inc., this Court held that despite the artful pleading of the plaintiff, the claims were health care liability claims because they arose from the mental health care provided by the facility. Groomes, 170 S.W.3d at 806. There, Groomes son, H.K., was stopped by a police officer while driving without a license, and during their conversation he exclaimed: Maybe I just don t need to live anymore. Id. at 803. The police referred H.K. for observation, he was released, and that night attempted suicide. Id. Groomes took H.K. to Timberlawn where he was evaluated and diagnosed with symptoms of mental illness, and was admitted to the hospital as a voluntary patient. Id. Groomes provided instruction that H.K. was not to receive any medication without her consent, and upon learning that he had been administered medication, she signed a letter requesting his discharge. Id. at 804. She was advised by a doctor that H.K. should remain at the hospital for at least forty-eight hours based on his continual comments regarding suicide. Id. Groomes remained insistent on the discharge. Id. Initially, the doctor consented, however, after consulting with another psychiatrist, 12

24 the doctor discontinued the release. Id. H.K. was ultimately discharged two days later. Id. Groomes sued for false imprisonment, intentional infliction of emotional distress, and abuse of process. Id. at 803. Timberlawn subsequently filed a motion to dismiss claiming that Groomes claims were health liability claims and a dismissal was warranted for failure to comply with the expert report requirement under the then-current medical liability statute. Id. The trial court dismissed Groomes' claims and the Dallas Court of Appeals affirmed, explaining, The underlying nature of all of Groomes' claims against Timberlawn derive[s] from the doctors' decisions to administer medication and to discontinue H.K. s discharge. As a result, the hospital's alleged acts or omissions are inextricably intertwined with the patient's medical treatment and the hospital's provision of medical care.... [T]he trial court properly determined that Groomes' claims were health care liability claims... because they arose from health care provided to H.K. in that his admission, discharge, and discontinuance of discharge order were decisions made by physicians exercising their medical judgment. Id. at 806 (citations omitted). Likewise, in Lee v. Boothe, this Court held that a plaintiff could not recast his health care liability claim as a claim for violations of the DTPA or fraud. Lee, 235 S.W.3d at 451. Although the plaintiff contended that her claim was based upon purported misrepresentations concerning the interlasik procedure performed on her eyes, the nature of plaintiff s claim was really one of negligence. Id. at All of her injuries arose out of the allegedly wrongful manner in which the physician conducted the 13

25 operation on her eyes. Id. This Court concluded that because the underlying nature of the plaintiff s alleged DTPA and fraud claims is negligence in the rendition of medical services, the claims fell within the scope of the requirements of the Act. Id. at 452. Relying on Lee, this Court held in Perry v. Samuels that the plaintiffs fraud claims regarding misrepresentations made concerning an abdominoplasty were related to the medical treatment provided by the defendant and constituted an inseparable part of the defendant s rendition of health care. Perry, 307 S.W.3d at 829. As such, the plaintiff s fraud claim was a health care liability claim requiring an expert report to be served within 120 days of filing suit. Id. Because no report had been served, this Court reversed the trial court s order denying the motion to dismiss and remanded the case to the trial court to determine an award of attorney s fees and costs. Id. Similarly, here, it is readily apparent the Klines claims against BCA likewise constitute health care liability claims recast as different causes of action. The Klines complain: BCA drugged its students, including Davis, into submission; BCA merely chose to keep Davis and its other students in a near constant state of drug-induced lethargy; Davis was misdiagnosed and mistreated at almost every step along the way during his time at BCA; During an involuntary hospitalization, Davis was diagnosed for the first time with significant psychological disorders and placed on powerful prescription medications, including Zyprexa; Davis Kline was prescribed drugs that were completely inappropriate and unnecessary and was threatened with expulsion if he did not take the prescribed medication; 14

26 Davis Kline was treated by people who were not qualified or trained to do so. [L]ittle to no attention was paid to his academic or psychological wellbeing and growth. [T]he staff psychiatrist at BCA, Dr. Ulrich, was also affiliated with Kootenai and treated Davis while he was there. Dr. Ulrich prescribed potent drugs to sedate the students, including Davis [Kline], enrolled there; Dr. Ulrich was entirely uninvolved in, and unaware of the psychological state of the students at BCA, including Davis; Dr. Ulrich was an agent or employee of BCA and as such, BCA is vicariously responsible for his acts and omissions in his treatment of Davis Kline; and Defendants violated a duty of reasonable care though their acts and omissions in their treatment of Davis Arthur Kline. (CR , 307) Indeed, the Klines negligence claim specifically complains only of the treatment of Davis Kline. (CR 306). Given the plain language of the Klines claims, no dispute can exist that the acts and omissions which the Klines allege proximately caused their damages are inextricably intertwined with Davis Kline s medical treatment during his term at BCA. Like Groomes, the Klines assert that Dr. Ulrich wrongfully administered medication to their son. The Klines further assert that Davis was hospitalized involuntarily, which comports with Groomes claims of false imprisonment for failing to discharge H.K. In both cases, the factual basis giving rise to the plaintiffs claims involved decisions made by physicians while exercising their medical judgment, and therefore qualify as health care liability claims. See Groomes, 15

27 170 S.W.3d at 806. Moreover, the Klines claims are health care liability claims because several of the allegations cited above are factual allegations relating to the medical treatment provided to Davis Kline and constitute an inseparable part BCA s rendition of medical services. Diversicare, 184 S.W.3d at 848; Rose, 156 S.W.3d at 544. The Klines also alleged that BCA violated a duty of reasonable care owed Davis Kline. (CR 306). A violation of a treatment facility s duty of care clearly implicates a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care as provided under the statutory definition of a health care liability claim. TEX. CIV. PRAC. & REM. CODE (a)(13). As the Texas Supreme Court has instructed, a claim will fall under the Act if the cause of action is based on a breach of a standard of care by a health care provider. Diversicare, 185 S.W.3d at 851. Moreover, the fact that the treatment and care of Davis Kline involved mental health care does not remove the care from the scope of the Act. See Fudge v. Wall, 308 S.W.3d 458, (Tex. App. Dallas 2010, no pet.); Texas Cypress Creek Hospital v. Hickman, 329 S.W.3d 209, 217 (Tex. App. Houston [14th Dist.] 2010, pet. denied). Texas courts, including this Court, have repeatedly held that [h]ealth care includes the care and treatment of mental conditions. Fudge, 308 S.W.3d at 462 (citing Diversicare, 185 S.W.3d at 850)). Even the Klines misrepresentation allegations forming their fraud and DTPA claims are an inseparable part of the health care treatment provided by BCA just like those allegations in Lee and Perry. Lee, 235 S.W.3d at ; Perry, 307 S.W.3d at 16

28 829. The fact that the Klines artfully pled their health care liability claims as other causes of action is of no import as Texas courts have repeatedly rejected a plaintiff s recasting of a health care liability claim. Groomes, 170 S.W.3d at 806 ( Groomes cannot avoid the requirements of the [then current medical liability act] by recasting her claims as nonmedical negligence claims); Yamada, 335 S.W.3d at 196 (holding it is impermissible to recast a health care liability claim as negligence); Diversicare, 185 S.W.3d at 848 (holding it is impermissible to recast health care liability claims as negligence, breach of implied covenant, and fraudulent inducement); Texas Cypress Creek Hospital, 329 S.W.3d at 217 (holding it is impermissible to recast a health care liability claim as a Patient Bill of Rights claim pursuant to Chapter 321 of Texas s Health and Safety Code). In addition to the Klines petition illustrating the nature of their claims as health care liability claims, the deposition testimony of Davis and Art Kline also proves the nature of the Klines claims as health care liability claims. More specifically, Davis Kline testified that the biggest part that he could recall that he told his parents as the reason for filing this lawsuit was the use of prescription drugs at BCA. (CR ). Art Kline testified that he was looking for someone at BCA to provide treatment to his son. (CR 259). Art Kline also noted that the lack of communication among the primary caregivers was a concern of his and noted a concern of what academic progress could be made when the professional, trained care providers were not talking to one other. (CR 261). Furthermore, Mr. Kline testified that a former employee told him that overmedication was running rampant at BCA. (CR 262). Moreover, Mr. Kline testified to complaints about an employee of BCA failing to communicate information to a 17

29 physician to prescribe treatment. (CR 263). Mr. Kline also testified that his complaints about employee Nathan Mraz were that he seemed to be more interested in pushing meds as opposed to helping Davis with issues without meds and also testified that Nathan Mraz s role in the treatment of his son was inappropriate. (CR 264). While Art Kline found former employee Julia Schrom to be an angel on earth, he was complimentary of her because of the care she gave Davis. (CR 265). Mr. Kline s criticism of BCA s admission director, Shawnale Wilson, was that he felt that she was not forthcoming on the meds situation. (CR 266). Additionally, Art Kline testified to further complaints of over-medication of Davis Kline during his time at BCA. (CR ). Mr. Kline also testified that Davis Kline was misdiagnosed or mistreated at BCA when it sent Davis Kline to NIBH Hospital, a psychiatric hospital in Idaho. (CR 271). Clearly, Art Kline and Davis Kline s own deposition testimony illustrates the true nature of the claims in this lawsuit as health care liability claims. b. Expert testimony is required to show the requisite standard of care. Finally, the conclusion that the Klines claims constitute health care liability claims should be compelled by the necessity for expert testimony in this case to determine the requisite standard of care which BCA is alleged to have breached. Diversicare, 185 S.W.3d at 848 ( A factor we consider is whether expert testimony is necessary to prove these alleged lapses in professional judgment and treatment ); Vasquez, 327 S.W.3d at 197 ( This conclusion is further bolstered by the fact that expert testimony will be required to prove Vasquez s claims ) (citing Rose, 156 S.W.3d at 544); 18

30 Skloss v. Perez, No CV, 2009 WL 40438, *6 (Tex. App. Houston [1st Dist.] 2009, pet. filed) (not designated for publication) ( Here the standard of care of a therapist in providing health care, in the form of treatment, requires expert testimony ); Rose, 156 S.W.3d at 546 ( Expert testimony is required to establish liability in the area of credentialing because the procedures ordinarily used by a hospital in evaluating applications for staff privileges are not within the realm of the ordinary experience of jurors ) (internal citations omitted); Perry, 307 S.W.3d at 829 (holding that expert testimony is required to prove the falsity of the representations made concerning the abdominoplasty). The Texas Supreme Court in Diversicare has emphasized this factor by considering whether expert testimony is necessary to prove these alleged lapses in professional judgment and treatment. Diversicare, 185 S.W.3d at 851. When such testimony is needed from a medical or health care professional to prove a claim, the claim almost certainly is a health care liability claim. Id. at 848. To further illustrate, in Vasquez, a provider of oxygen was sued for negligence when a patient expired after the company delivered him two tanks of oxygen, one full and one half full, which were set to a flow rate of two liters per minute. Vasquez, 327 S.W.3d at 200. The court opined that expert testimony would be required to prove Vasquez s claims because it was not within the general public s knowledge as to whether an adequate supply of oxygen had been delivered, or if the flow rate had been properly calibrated. Id. 19

31 In the present case, it is not within the general public s knowledge to make a determination of whether the medication prescribed to Davis Kline was unnecessary and inappropriate, or to determine the requisite standard of care for a behavioral health care facility such as BCA. Indeed, the only expert the Klines have designated is a health care provider who obtained an independent medical evaluation of the Klines. 2 (CR 314, 397; RR 15-17). Thus, expert testimony is necessary to prove any lapse in professional judgment and treatment that may have occurred by BCA and/or Ms. Tart-Zelvin. In sum, the Klines claims against BCA and Ms. Tart-Zelvin are clearly allegations of a departure from the accepted standards of health care. 2. The Act s definition of health care provider. In addition to conduct being a claimed departure from accepted standards of health care, the Act requires that the defendant be a health care provider or physician. TEX. CIV. PRAC. & REM. CODE (13). A health care provider is broadly defined in section (a)(12) to mean: (1) A health care provider means any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered or chartered by the State of Texas to provide health care, including... TEX. CIV. PRAC. & REM. CODE (a)(12)(A). 2 In preparing this Appellants Brief, Appellants noticed that part of exhibit 4 to their supplemental brief in support of their motion to dismiss filed with the trial court on September 9, 2011 was missing from the clerk s record. Specifically, the report of the Klines retained expert, Dr. Lisa K. Clayton, a forensic and general psychiatrist, was missing from the clerk s record. Dr. Clayton s report stated the results of her forensic psychiatric evaluation of the Klines, as well as, rendered her medical opinion concerning the treatment Davis Kline received at BCA. Appellants have requested a supplemental clerk s record be prepared and transmitted to this Court to include this missing item. 20

32 (2) The term health care provider further includes an officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician. TEX. CIV. PRAC. & REM. CODE (a)(12)(B)(i). As shown in more detail below, BCA meets this definition. a. The Act s broad definition of health care provider includes those not expressly listed in the Act. The first part of the health care provider definition sets forth a list of various types of health care providers that the Act covers but does not exclude other types of health care providers. More specifically, although section (a)(12)(A) expressly identifies as health care providers registered nurses, dentists, podiatrists, pharmacists, chiropractors, optometrists, health care institutions as well as health care collaborative certified under Chapter 848 of the Insurance Code, the list is not to the exclusion of other types of health care providers. TEX. CIV. PRAC. & REM. CODE (a)(12)(A) (emphasis added). Unlike the former medical liability statute, the list of entities who qualify for protection under Chapter 74 is non-exclusive, as the Legislature removed the word as and replaced it with including. See Pro Path Servs., L.L.P. v. Koch, 192 S.W.3d 667, 671 (Tex. App. Dallas 2006, pet. denied); Christus Health v. Beal, 240 S.W.3d 282, 286 (Tex. App. Houston [1st Dist.] 2007 n.p.h.). The Code Construction Act states including is a term of enlargement and not of limitation or exclusive enumeration, and use of the term does not create a presumption that components not expressed are excluded. TEX. GOV T. CODE ANN (13). In other words, because the definition is not exclusive, health care provider may include entities and individuals not expressly listed in the statute. See Beal, 240 S.W.3d. at 286 (holding that 21

33 because the definition was non-exclusive and does not exclude a drug and alcohol treatment facility like Christus, the [L]egislature has not expressed an intent that such a facility cannot fall within the protections of the chapter ). Since codification of the Act, Texas courts have been continuously challenged to determine if entities not expressly listed within the statute qualify for protection as a health care provider. See Koch, 192 S.W.3d at 671 (pathology laboratory was a health care provider); Vasquez, 327 S.W.3d at 198 (provider of oxygen therapy services was a health care provider); Skloss, 2009 WL at *6 (not designated for publication) (counselor providing mental health treatment was a health care provider). In multiple cases, Texas courts have concluded that therapeutic residential facilities qualify as healthcare providers covered by the Act. See Beal, 240 S.W.3d at 286 (drug and alcohol rehabilitation facility was a health care provider); Diversicare, 185 S.W.3d at 850 (nursing home was a health care provider); Empowerment Options, Inc. v. Easley, No CV, 2006 WL , *2-3 (Tex. App. Beaumont 2006, pet. denied) (not designated for publication) (group home for mentally retarded was a health care provider). As the Dallas Court of Appeals recently noted, the current statute does not define a health care provider in terms of a medical degree, but whether a person provides health care. See Strobel v. Marlow, 341 S.W.3d 470, 474 (Tex. App. Dallas, no pet.) (citing TEX. CIV. PRAC. & REM. CODE (a)(12)(A)). Accordingly, where a defendant s qualification as a health care provider is at issue, courts consider whether there is evidence that the defendant performed acts or provided services with respect to the 22

34 plaintiff which would qualify as health care under the statute for purposes of forming a conclusion. See Strobel, 341 S.W.3d at The determination of whether a defendant qualifies as a health care provider under the Act often cannot be resolved by mere consideration of licenses and degrees. In these cases, courts look to the record to determine if there is evidence that the defendant performed any acts, or failed to perform any acts, with respect to the plaintiff that met the statutory definition of health care. See Strobel, 341 S.W.3d at Health care is broadly defined as 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 (a)(10). Where the record evidences that the defendant s acts or omissions constitute health care under the Act, the court should be persuaded to find that the defendant qualifies as a health care provider. See Strobel, 341 S.W.3d at (prosthetist who physically examined and prepared an prosthetic limb for plaintiff was a health care provider); Beal, 240 S.W.3d at 287 (drug and alcohol treatment center that required plaintiff to be on time for group, participate in various duties about the facility, see a counselor at an assigned time, stay with the treatment plan, and complete assignments was a health care provider); Vasquez, 327 S.W.3d at 198 (oxygen therapy service that made one delivery of prescribed oxygen to plaintiff was a health care provider). Here, BCA qualifies as a health care provider. While the Klines attempted to diminish BCA s health care services in erroneously characterizing BCA as simply a 23

35 school, the Klines cannot refute the therapeutic services BCA provided. Indeed, it is these very services which the Klines allege form the basis of their claims. Furthermore, the Klines own briefing in opposition to the motion to dismiss shows that BCA is a health care provider when they allege that BCA is run more like a hospital. (CR 405). The bottom line is BCA is not a typical school providing simply an education to its students. Instead, BCA provides medical treatment in addition to educating its students. (CR , ). In fact, the records of Dr. John Edlin of Adolescent Health Associates, P.A. included a letter from Dr. Edlin discussing diagnoses of Davis Kline and indicating that due to Davis Kline s deepening depression Dr. Edlin recommended that Davis be sent to BCA, a therapeutic boarding school in Idaho. (CR ). During Davis Kline s stay at BCA he underwent various forms of treatment, including, but not limited to, meeting with and being treated by clinical staff and being prescribed and given medication. (CR 241, , ). In fact, it is BCA s provision of health care services to Davis Kline that is at the very core of the Klines complaints in this lawsuit. The Klines specifically alleged, among other things, that BCA misdiagnosed and mistreated Davis Kline, that BCA drugged its students, including Davis [Kline], into submission, that Dr. Ulrich prescribed potent drugs to sedate the students, including Davis [Kline], BCA paid little to no attention to Davis Kline s psychological well-being and growth, and that Davis Kline was prescribed drugs that were completely inappropriate and unnecessary. (CR , 307). The Klines own pleadings bear out the fact that BCA provided health care to Davis Kline. Id. 24

36 Moreover, Art and Bridget Kline even contracted with BCA for health care services for their son, Davis, as evidenced by the following: Art Kline executed a copy of an agreement for pharmacy services which indicated that Boundary Medicine Man was to be the designated pharmacy, and that the pharmacy would be available on a 24 hours basis. (CR 343, ). Art Kline initialed the Admissions Agreement for BCA which stated that the facility provided a therapeutic clinical program. (CR 343). Art and Bridget Kline completed the admissions application indicating that a Dallas physician, Dr. John Edlin, had referred them to BCA, and further indicated that Dr. Edlin was to receive periodic updates on Davis Kline. (CR , ). Art and Bridget Kline authorized the release of all medical insurance information necessary to process any insurance claims for Davis Kline and consented to BCA s purchasing all medication prescribed to him. (CR , 365). Art and Bridget Kline consented to medical treatment for Davis Kline as directed by any physician licensed to practice medicine in the state where such services are provided. (CR , 365). Art and Bridget Kline consented to the use of reasonable force by BCA personnel to restrain, control, and detain Davis Kline to protect the student, property, personnel or others from physical injury or threat of injury from the student. (CR , 366). Art and Bridget Kline initialed an activity consent for Davis Kline s participation in all activities and programs, and voluntarily released and discharged all employees and agents from all claims, demands, actions, suits or proceedings stemming from any and all injuries, damages and expenses, including but not limited to personal injuries and illnesses related to the student s participation in any activity or program conducted by or on behalf of the facility. (CR , 366). 25

37 Each and every one of these commitments was made by Art and Bridget Kline before Davis Kline attended his first day at BCA. Based on the foregoing, it can fairly be stated that the Klines selected BCA, on the recommendation of a physician, for the very purpose of providing Davis Kline with an environment where he could concurrently receive both clinical and educational services. Moreover, initially, the Klines only argument in opposition to BCA s evidence proving that it is a health care provider was not that BCA did not provide health care services, but that BCA was not duly licensed, certified, registered, or chartered by the State of Texas to provide health care. (CR ). But, as shown in more detail below, the Act does not limit its scope to health care providers in Texas. b. The Act s definition of health care provider also includes an affiliate of a facility licensed by the State of Texas. While the Act s definition of health care provider does include a facility licensed, certified, registered or chartered by the State of Texas, the Act also includes those who are affiliates of such facilities. TEX. CIV. PRAC. & REM. CODE (a)(12)(A), (B)(i). Indeed, the statutory definition of health care provider also includes an officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician. TEX. CIV. PRAC. & REM. CODE (a)(12)(B)(i) (emphasis added). The Act further defines affiliate to mean a person, who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a specified person, including any direct or indirect parent or subsidiary. TEX. CIV. PRAC. & REM. CODE (a)(1). Finally, the Act defines control to mean the 26

38 possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the person, whether through ownership of equity or securities, by contract, or otherwise. TEX. CIV. PRAC. & REM. CODE (a)(3). While BCA may not be licensed by the State of Texas, it is licensed by the State of Idaho and is an affiliate of at least one facility duly licensed by the State of Texas to provide health care. Furthermore, both BCA and its affiliate share common management services provided by UHS of Delaware, Inc. (CR , ). More specifically, UHS of Delaware, Inc. provides common administrative management services to facilities nationwide, including to BCA and Meridell Achievement Center ( Meridell ), a comparable residential behavioral health care facility located in Liberty Hill, Texas. (CR ). The record shows that UHS of Delaware, Inc. provides such services that these entities would need in terms of management services to direct their operations and that Paul Johnson, as CEO of BCA and as an employee of UHS of Delaware, Inc., oversees the implementation of and approves all policies in place at BCA. (CR , 471). UHS of Delaware, Inc. is a subsidiary of Universal Health Services, Inc. (CR 372). Both BCA and Meridell are also subsidiaries of Universal Health Services, Inc. (CR ). Both BCA and Meridell are residential facilities dedicated to treating and educating adolescents with behavioral, motivational, academic and/or emotional challenges. (CR ). Due to BCA s affiliate status with Meridell, a health care provider licensed in the State of Texas, BCA clearly meets the Act s affiliate status to subject BCA to the Act and the Klines to the requirements set forth in the Act. 27

39 c. The Act also governs the claims against Ms. Tart-Zelvin because she was an employee of a health care provider acting in the course and scope of her employment. Additionally, the claims against Ms. Tart-Zelvin fall within the Act because Ms. Tart-Zelvin qualified as an employee of a health care provider. The Act s definition of health care provider expressly includes an employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship. TEX. CIV. PRAC. & REM. CODE (12)(B)(ii). No dispute exists that Ms. Tart-Zelvin was an employee of BCA at all pertinent times to this lawsuit. (CR , ). Additionally, no dispute exists that the services Ms. Tart-Zelvin provided as an employee of BCA were inseparable from the services in providing information to potential patients and referral sources about BCA. (CR , ). As such, Ms. Tart-Zelvin fell within the definition of health care provider in this instance and the claims asserted against her fell within the scope of the Act. Because no expert report was timely served as required by the Act, the trial court erred in refusing to dismiss the claims against Ms. Tart-Zelvin as well. D. The trial court erred in refusing to award attorneys fees and costs. Like the trial court s erroneous denial of the motion to dismiss, the trial court also erred in refusing to award attorneys fees and costs. The Act mandates the award of attorneys fees and costs when a claimant fails to provide an expert report that complies with the Act s requirements by the 120th day after suit is filed. TEX. CIV. PRAC. & REM. CODE (b). Because the Act governed the Klines claims, and because the Klines failed to provide an expert report that complied 28

40 with the Act, the trial court should have awarded Appellees their attorneys fees and costs as required by the Act. BCA and Ms. Tart-Zelvin presented evidence supporting the award of such fees and costs. (CR ). As such, this Court should reverse and render a decision awarding attorneys fees. Alternatively, should the Court find that further evidence is needed to award fees and costs, BCA and Ms. Tart-Zelvin request that this Court reverse and remand with instructions to the trial court to obtain further evidence of such fees and/or costs because the record shows a request for attorneys fees and costs was clearly made. (CR , 331, ); see also Covenant Health Sys. v. Barnett, 342 S.W.3d 226, 234 (Tex. App. Amarillo 2011, no pet.) (holding that a remand was warranted for the limited purposes of determining the hospital s reasonable attorney fees and costs when the hospital had requested attorneys fees and costs but did not offer evidence of its incurred attorneys fees at the hearing on the motion to dismiss); Boothe v. Dixon, 180 S.W.3d 915, 916, 921 (Tex. App. Dallas 2005, no pet.) (remanding case to the trial court for the sole determination of reasonable fees and costs incurred by the health care provider); cf Victoria Gardens of Frisco v. Walrath, 257 S.W.3d 284, 291 (Tex. App. Dallas 2008, pet. denied) (holding that the nursing home, who prevailed on appeal that it was a health care provider under the Act and was entitled to dismissal, but who did not plead any request for attorneys fees was not entitled to a remand as to the amount of such fees). Accordingly, this Court must reverse the trial court s order denying BCA and Tart-Zelvin s request for attorneys fees and costs. 29

41 E. The trial court erred in refusing to admit into evidence Exhibits 1-4 at the motion to dismiss hearing. At the hearing on the motion to dismiss, counsel for Appellants offered to admit into evidence Exhibits 1-4 in further support of the motion to dismiss. (1 RR 5-10). The trial court refused to admit these exhibits into evidence at the hearing stating that the hearing was a non-evidentiary hearing. (1 RR 8-10). Such ruling was in error. Although these same exhibits were attached to and filed with Appellants reply in support of its motion to dismiss and therefore are a part of the record, in an abundance of caution Appellants challenge the trial court s refusal to also admit these exhibits as evidence at the hearing on the motion to dismiss as such refusal probably caused the rendition of an improper ruling on the motion to dismiss and should be reversed. 1. Applicable standards regarding evidentiary rulings. On appeal, a trial court s evidentiary rulings are reviewed for an abuse of discretion. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). Erroneous evidentiary rulings are reversed when they probably caused the rendition of an improper judgment. Id. 2. The trial court abused its discretion by sustaining the Klines objections to Exhibits 1-4 at the hearing. The Klines asserted two objections to the evidence offered at the hearing on the motion to dismiss. The trial court ultimately refused to admit the evidence because the court found that the hearing was a non-evidentiary hearing. (1 RR 8-10). The trial court erred in its ruling refusing to admit the evidence. 30

42 First, Appellants offered the Supplemental Affidavit of Frank Alvarez as Exhibit 1. (1 RR 6, Def s Ex. 1). This affidavit is evidence of Appellants reasonable attorneys fees and costs that should be awarded along with the dismissal under the Act. (Def. s Ex. 1). Counsel for the Klines objected to this affidavit arguing that the amount of fees were not segregated among the amounts that are reasonable in connection with the motion to dismiss and other tasks completed in the case. (1 RR 6-7). Yet, such objection is unfounded. The express language of the Act mandates an award of attorneys fees and costs of court incurred by the health care provider. TEX. CIV. PRAC. & REM. CODE It does not limit such fees to only those tasks associated with the motion to dismiss as suggested by counsel for the Klines. Additionally, a well-established exception to the duty to segregate arises when the attorneys fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts. Buchanan v. O Donnell, 340 S.W.3d 805, (Tex. App. San Antonio 2011, no pet.) (rejected the argument that the attorneys fees on a Chapter 74 motion to dismiss needed to be segregated). Thus, no segregation was required and the trial court erred in sustaining the Klines objection. Next, Appellants offered the Affidavit of Dr. John C. Edlin with attached records of Dr. Edlin related to his care and treatment of Davis Kline. (1 RR 7, Def. Ex. 2). Counsel for the Klines objected to this evidence contending that he might have some question as to authenticity and arguing relevance. (1 RR 8). Again, the Klines objections are unfounded. First, the records were authenticated by Dr. Edlin s affidavit 31

43 proving such records as authentic in his business records affidavit. (Def. Ex. 2 to RR). Second, the records are relevant as they show that Davis Kline s mental health was under the care and treatment of Dr. Edlin and it was Dr. Edlin who recommended BCA, a therapeutic boarding school, to aid in treating Davis Kline s mental health. Id. Ultimately, the trial court decided that this exhibit would not be admitted into evidence at the hearing because the hearing was non-evidentiary but that the exhibit was in the record since it was filed with Appellants reply brief. (1 RR 8). The court issued the same ruling with respect to Exhibits 3 (Affidavit of Paul Johnson with attached exhibits) and Exhibit 4 (Affidavit of Gail M. Oberta with attached exhibit). The trial court erred in finding that the hearing was not an evidentiary hearing and refusing to admit the exhibits as evidence is a necessary part of the motion to dismiss and no authority precludes such admission. See San Antonio Extended Medical Care, Inc. v. Vasquez, 327 S.W.3d 193, 198 (Tex. App. San Antonio 2010, no pet.) (noting the evidence that was admitted at the hearing on the motion to dismiss to prove the defendant s status as a health care provider); Herrera v. Seton Northwest Hosp., 212 S.W.3d 452, 463 (Tex. App. Austin 2006, no pet.) (noting that affidavit testimony could have been presented at the hearing on the motion to dismiss for failure to timely file an expert report). As such, the trial court abused its discretion in refusing to admit these exhibits into evidence at the hearing. 3. Rendition of an improper ruling on the motion to dismiss. The trial court s erroneous evidentiary rulings caused, or at least probably caused, the rendition of an improper ruling on the motion to dismiss because the evidence to 32

44 which the Klines objected established Appellants entitlement to attorneys fees and costs and further established Appellants as health care providers under the Act, which should have resulted in the trial court granting a dismissal of the claims against Appellants and awarding fees and costs since the Klines failed to timely serve an expert report under the terms of the Act. Thus, the challenged evidentiary rulings and order denying the motion to dismiss should be reversed. IV. CONCLUSION AND PRAYER In sum, this is a health care liability case: the Klines claims are health care liability claims recast as other causes of action, and BCA and Ms. Tart-Zelvin fall under the definition of health care providers as provided under the Act and Texas case law precedent. The Klines failed to timely serve an expert report under the requirements of the Act. The Act requires dismissal and an award of attorneys fees and costs for such failure. As such, the trial court erred in denying the motion to dismiss and request for attorneys fees and costs. For these reasons, Appellants BCA and Sheila Tart-Zelvin respectfully pray that this Court reverse the order of the trial court and dismiss this lawsuit and award them attorneys fees and costs for the Klines failure to timely file an expert report in accordance with the Act. Appellants further request such other relief to which they may be justly and equitably entitled. 33

45 Respectfully submitted, HERMES SARGENT BATES, LLP By: /s/ Katherine Elrich KATHERINE ELRICH Lead Appellate Counsel State Bar No FRANK ALVAREZ Lead Trial Counsel State Bar No KIMBERLY A. WILSON State Bar No Main Street, Suite 5200 Dallas, Texas (214) (214) (Facsimile) ATTORNEYS FOR APPELLANTS BOULDER CREEK ACADEMY AND SHEILA TART-ZELVIN 34

46 CERTIFICATE OF SERVICE Pursuant to Texas Rule of Appellate Procedure 9.5(e), the undersigned certifies that on the 15 th day of December, 2011 a true and correct copy of the foregoing document was served via certified mail, return receipt requested, to the following: J. Mark Perrin The Perrin Law Firm 325 N. St. Paul Street, Ste. 600 Dallas, TX Counsel for Appellees Peter D. Marketos Reese Gordon Marketos 750 N. Saint Paul St., Suite 610 Dallas, Texas Counsel for Appellees /s/ Katherine Elrich KATHERINE ELRICH 35

47 INDEX TO APPENDIX Order Denying Defendants Boulder Creek Academy and Sheila Tart-Zelvin s Motion to Dismiss with Prejudice Pursuant to Civil Practice and Remedies Code (b) and Brief in Support Thereof (CR 484)... Tab A TEX. CIV. PRAC. & REM. CODE Tab B TEX. CIV. PRAC. & REM. CODE Tab C TEX. GOV'T. CODE ANN Tab D

48 Tab A

49 cf4 If-.. ooo6~9 CAUSE NO ART KLINE, BRIDGET KLINE. and DAVIS ARTHUR KLINE v. Plaintiffs, BOULDER CREEK ACADEMY and SHEILA TART-ZELVIN, Defendants. IN THE DISTRICT COURT DALLAS COUNTV, TEXAS lop' JUDICIAL DISTRICT ORDER DENYING DEFENDANTS BOULDER CREEK ACADEMY AND SHEILA TART-ZELVIN'S MOTION TO DISMISS WITH PRE~UDICE PURSUANT TO CIVIL PRACTICE AND REMEDIES CODE (b) AND BRIEF IN SUPPORT THEREOF ~.. On this the~day of September, came on to be considered Defendants BouJderCreek Academy and Sheila Tart-Zelvin' s Motion to Dismiss With Prejudice Pursuant to Civil Practice and Remedies Code 74.J 51 (b) and B ricfl n Support Thereof. After considering Defendants' Motion, Plaintiff's Response thereto, and the arguments of counsel, the Court isof the opinion that the Motion should be denied. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendants Boulder Creek Academy and Sheila Tart-Zelvin's Motion to Dismiss With Prejudice Pursuant to Civil Practice and Remedies Code (b) and BriefIn Support Thereof is denied. SIGNED this 26:!YOf 5~ JUDGE PRESIDfNG ORUt:R Dt.:NYING l>t:ft.:ndants DOllLOt:R CRU:K A(;AOf.~t\ ANosm:lI.t\ TART-ZEI.VI:'i'S ~IOTI():-; TO DIS~tlSS \VlTlt f'r[jtjoice Pl;RStJANTTO CIVIL f'kacnct:asi) RUIt:DJESCOOt: 7".J~l(b) A:'OiO Blm:foT'iSUPPORTTH.:REOF -Solof'egf 484

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51 o Westlaw. V.T.C.A., Civil Practice & Remedies Code Page I Effective: September 28, 2011 Vernon's Texas Statutes and Codes Annotated CUlTentncss Civil Practice and Remedies Code (Refs & Anllos) Title 4. Liability in Tort. "00 Chapter 74. Medical Liability (Rets & Annos) "Ii! Subchapter A. General Provisions Definitions (a) In this chapter: (l) "Affiliate" means a person who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a specified person, including any direct or indirect parent or subsidiary. (2) "Claimant" means a person, including a decedent's estate, seeking or who has sought recovery of damages in a health care liability claim. All persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant. (3) "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the person, whether through ownership of equity or securities, by contract, or otherwise. (4) "Court" means any federal or state court. (5) "Disclosure panel" means the Texas Medical Disclosure Panel. (6) "Economic damages" has the meaning assigned by Section (7) "Emergency medical care" means bona fide emergency services provided after the sudden onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or that is unrelated to the original medical emergency Thomson Reuters. No Claim to Orig. US Gov. Works.

52 V.T.C.A., Civil Practice & Remedies Code Page 2 (8) "Emergency medical services provider" means a licensed public or private provider to which Chapter 773, Health and Safety Code, applies. (9) "Gross negligence" has the meaning assigned by Section I. (10) "Health care" means any act or treatment perfonned 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. (11) "Health care institution" includes: (A) an ambulatory surgical center; (B) an assisted living facility licensed under Chapter 247, Health and Safety Code; (C) an emergency medical services provider; (D) a health services district created under Chapter 287, Health and Safety Code; (E) a home and community support services agency; (F) a hospice; (G) a hospital; (H) a hospital system; (I) an intermediate care facility for the mentally retarded or a home and community-based services waiver program for persons with mental retardation adopted in accordance with Section 1915(c) of the federal So-. cial Security Act (42 U.S.C. Section I 396n), as amended; (J) a nursing home; or (K) an end stage renal disease facility licensed under Section , Health and Safety Code. (12)(A) "Health care provider" means any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

53 V.T.C.A., Civil Practice & Remedies Code Page 3 care, including: (i) a registered nurse; (ii) a dentist; (iii) a podiatrist; (iv) a pharmacist; (v) a chiropractor; (vi) an optometrist; (vii) a health care institution; or (viii) a health care collaborative certified under Chapter 848, Insurance Code. (B) The term includes: (i) an officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician; and (ii) an employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship. (13) "Health care liability claim" means 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. (14) "Home -and community support services agency" means a licensed public or provider agency to which Chapter 142, Health and Safety Code, applies. (15) "Hospice" means a hospice facility or activity to which Chapter 142, Health and Safety Code, applies. (16) "Hospital" means a licensed public or private institution as defined in Chapter 241, Health and Safety 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

54 V.T.C.A., Civil Practice & Remedies Code Pagc4 Code, or licensed under Chapter 577, Health and Safety Code. (17) "Hospital system" means a system of hospitals located in this state that are under the common governance or control of a corporate parent. (18) "Intermediate care facility for the mentally retarded" means a licensed public or private institution to which Chapter 252, Health and Safety Code, applies. (19) "Medical care" means any act defined as practicing medicine under Section , Occupatiolls Code, performed or furnished, or which should have been performed, by one licensed to practice medicine in this state for, to, or on behalf of a patient during the patient's care, treatment, or confinement. (20) "Noneconomic damages" has the meaning assigned by Section J. (21) "Nursing home" means a licensed public or private institution to which Chapter 242, Health and Safety Code, applies. (22) "Pharmacist" means one licensed under Chapter 551, Occupations Code, who, for the purposes of this chapter, performs those activities limited to the dispensing of prescription medicines which result in health care liability claims and does not include any other cause of action that may exist at common law against them, including but not limited to causes of action for the sale of mishandled or defective products. (23) "Physician" means: (A) an individual licensed to practice medicine in this state; (B) a professional association organized under the Texas Professional Association Act (Article I 528f: Vernon's Texas Civil Statutes) by an individual physician or group of physicians; (C) a partnership or limited liability partnership formed by a group of physicians; (D) a nonprofit health corporation certified under Section J, Occupations Code; or (E) a company formed by a group of physicians under the Texas Limited Liability <?ompany Act (Article I 528n, Vernon's Texas Civil Statutes). (24) "Professional or administrative services" means those duties or services that a physician or health care provider is required to provide as a condition of maintaining the physician's or health care provider's license, 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

55 V.T.C.A., Civil Practice & Remedies Code Page 5 accreditation status, or certification to participate in state or federal health care programs. (25) "Representative" means the spouse, parent, guardian, trustee, authorized attorney, or other authorized legal agent of the patient or claimant. (b) Any legal term or word of art used in this chapter, not otherwise defined in this chapter, shall have such meaning as is consistent with the common law. CREDIT(S) Added by Ac\s 2003, 78th Leg., ell. 204, 10.0], eff. Sept. ], 2003; Amended by Ac\s 2011, 82nd Leg., lsi C.S., eh. 7 (S.B. 7), 4.02, eff. Sept. 28, Current through the end of the 20 II Regular Session and First Called Session of the 82nd Legislature (e) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. END OF DOCUMENT 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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