No CV COURT OF APPEALS. for the FIFTH DISTRICT OF TEXAS. Dallas, Texas. BARBARA LINDSEY, Appellant,

No. 05-12-00010-CV COURT OF APPEALS for the FIFTH DISTRICT OF TEXAS Dallas, Texas BARBARA LINDSEY, Appellant, v. ACCEPTED 225EFJ016909777 FIFTH COURT OF APPEALS DALLAS, TEXAS 12 June 4 A9:40 Lisa Matz ORAL ARGUMENT REQUESTED CLERK MAX ADLER, M.D., P.A., MAX ADLER, M.D., AND LINDA WHITE Appellees. Appeal from Cause No. DC-11-08937-A 14 TH Judicial District Court, Dallas County, Texas Honorable Eric V. Moyé, Presiding Judge APPELLEES BRIEF ON THE MERITS Russell G. Thornton STINNETT THIEBAUD & REMINGTON LLP 4800 Fountain Place 1445 Ross Avenue Dallas, Texas 75202 (214) 954-2200 Telephone (214) 754-0999 Telecopier ATTORNEYS FOR DEFENDANTS APPELLEES MAX ADLER, M.D., P.A., MAX ADLER, M.D., AND LINDA WHITE June 4, 2012

LIST OF PARTIES AND COUNSEL In order that members of the Court may determine disqualification or recusal, Appellees certify that the following is a complete list of the names and addresses of parties to this appeal and their counsel: APPELLANT: Barbara Lindsey, Pro Se APPELLEES: Max Adler, M.D., P.A., Max Adler, M.D, and Linda White COUNSEL FOR APPELLEES: Russell G. Thornton STINNETT THIEBAUD & REMINGTON LLP 1445 Ross Avenue, Suite 4800 Dallas, Texas 75202 i

TABLE OF CONTENTS LIST OF PARTIES AND COUNSEL... i INDEX OF AUTHORITIES... v STATEMENT OF THE CASE... 2 REQUEST FOR ORAL ARGUMENT... 4 ISSUE PRESENTED... 5 I. Did the trial court err in granting Appellees Max Adler, M.D., P.A., Max Adler, M.D., and Linda White s Motion to Dismiss for Failure to Serve a Chapter 74 Expert Report? STATEMENT OF FACTS... 6 SUMMARY OF ARGUMENT... 9 ARGUMENT... 11 I. Standard of Review... 12 II. What is the Expert Report Requirement Contained in Chapter 74 of the TEXAS CIVIL PRACTICE & REMEDIES CODE... 12 III. What is a Health Care Liability Claim... 13 IV. Appellant s Original Petition and First Amended Petition Assert a Health Care Liability Claim... 15 V. Appellant Cannot Amend Her Petition to Escape Application of Chapter 74 s Expert Report Requirement... 16 VI. Appellant s Second Amended Original Petition Still Asserts a Health Care Liability Claim... 25 VII. Appellant s Constitutional Claim is Without Merit... 28 CONCLUSION... 30 PRAYER... 33 ii

CERTIFICATE OF SERVICE... 34 iii

APPENDIX...INDEX TAB A. December 19, 2011 Order Granting Defendants Max Adler, M.D., P.A., Max Adler, M.D. and Linda White s Motion to Dismiss for Failure to Serve Chapter 74 Expert Report B. January 25, 2012 Order Denying Plaintiff s Motion for New Trial C. Plaintiff s Original Petition D. Plaintiff s First Amended Petition E. Plaintiff s Second Amended Original Petition F. TEX. CIV. PRAC. REM. CODE 74.351 G. TEX. CIV. PRAC. REM. CODE 74.001 iv

TEXAS SUPREME COURT CASES: INDEX OF AUTHORITIES Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005)...14, 15 Garland Community Hospital v. Rose, 156 S.W.3d 541 (Tex. 2004)... 14 In re L.M.I., 119 S.W.3d 707 (Tex. 2003)... 28 Leland v. Brandal, 257 S.W.3d 204 (Tex. 2008)... 18 Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005)...26, 27, 28 Omaha Healthcare Center, LLC v. Johnson, 344 S.W.3d 392 (Tex. 2011)... 14 Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003)... 29 Yamada v. Friend, 335 S.W.3d 192 (Tex. 2010)...15, 22, 23, 25 TEXAS COURTS OF APPEALS CASES: Broxterman v. Carson, 309 S.W.3d 154 (Tex. App. Dallas 2010, pet. denied)...12, 29 Espinosa v. Baptist Health Sys., 2006 Tex. App. LEXIS 8739 (Tex. App. San Antonio)(Oct. 11, 2006)(pet. denied)(mem. op.)... 27 Harris v. Patel, 2011 Tex. App. LEXIS 7647 (Tex. App. Texarkana)(Sep. 22, 2011)(no pet.)(mem. op.)...18, 20, 29 Hayes v. Carroll, 314 S.W.3d 494 (Tex. App. Austin 2010, no pet.)... 13 v

Herrera v. Seton Northwest Hospital, 212 S.W.3d 452 (Tex. App. Austin 2006, no pet.)... 29 Jefferson v. Univ. of Tex. Med. Branch Hosp. at Galveston, 2010 Tex. App. LEXIS 1946 (Tex. App. Houston [1 st Dist.])(Mar. 18, 2010)(pet. denied) (mem. op.)... 28 Jones v. Christus Health Ark-La-Tex, 141 S.W.3d 790 (Tex. App. Texarkana 2004, no pet.)...18, 20, 21, 22 Kingwood Specialty Hospital v. Barley, 328 S.W.3d 611 (Tex. App. Houston [14 th Dist.] 2010, no pet.)... 12 Lowe v. Jefferson Dental Clinics, 2012 Tex. App. LEXIS 3796 (Tex. App. Dallas)(May 14, 2012)(mem. op.)... 28 Ledesma v. Shashoua, 2007 Tex. App. LEXIS 6175 (Tex. App. Austin)(Aug. 3, 2007)(pet. denied)(mem. op.)... 29 Mata v. Calixto-Lopez, 2007 Tex. App. LEXIS 8203 (Tex. App. San Antonio)(Oct. 17, 2007)(no pet.)(mem. op.)...23, 25 Medical Center of Lewisville v. Slayton, 335 S.W.3d 382 (Tex. App. Fort Worth 2011, no pet.)...23, 24, 25 Medical Hospital of Buna Texas, Inc. v. Wheatley, 287 S.W.3d 286 (Tex. App. Beaumont 2009, pet. denied)...20, 21, 22 Offenbach v. Stockton, 285 S.W.3d 517 (Tex. App. Dallas 2009), aff d, 336 S.W.3d 610 (Tex. 2011)...18, 20 Osonma v. Smith, 2009 Tex. App. LEXIS 4959 (Tex. App. San Antonio)(Jul. 1, 2009) (pet. denied)(mem. op.)... 13 Padre Behavioral Health System, L.L.C. v. Chaney, 310 S.W.3d 78 (Tex. App. Corpus Christi 2010, no pet.)... 13 Pisharodi v. Saldana, 2011 Tex. App. LEXIS 582 (Tex. App. Corpus Christi)(Jan. 27, 2011)(pet. denied)(mem. op.)... 15 vi

Saleh v. Hollinger, 335 S.W.3d 368 (Tex. App. Dallas 2011, pet. denied)... 12 Sloan v. Farmer, 217 S.W.3d 763 (Tex. App. Dallas 2007, pet. denied)...14, 26, 28 Solomon-Williams v. Desai, 2009 Tex. App. LEXIS 4898 (Tex. App. Houston [1 st Dist.])(Jun. 25, 2009) (pet. denied)(mem. op.)... 29 Stroud v. Grubb, 328 S.W.3d 561 (Tex. App. Houston [1 st Dist.] 2010, pet. denied)... 13 Vanderwerff v. Beathard, 239 S.W.3d 406 (Tex. App. Dallas 2007, no pet.)...26, 28 TEXAS STATUTORY PROVISIONS: TEX. CIV. PRAC. & REM. CODE, 74.001(a)(10)... 14 TEX. CIV. PRAC. & REM. CODE, 74.001(a)(12)... 11 TEX. CIV. PRAC. & REM. CODE, 74.001(a)(12)(A)... 11 TEX. CIV. PRAC. & REM. CODE, 74.001(a)(12)(B)(ii)... 11 TEX. CIV. PRAC. & REM. CODE, 74.001(a)(13)... 14 TEX. CIV. PRAC. & REM. CODE ANN. 74.351(a)...12, 18, 19 TEX. CIV. PRAC. & REM. CODE ANN. 74.351(b)...12, 18, 19 TEX. R. APP. P. 33.1(a)... 28 vii

No. 05-12-00010-CV COURT OF APPEALS for the FIFTH DISTRICT OF TEXAS Dallas, Texas BARBARA LINDSEY, Appellant, v. MAX ADLER, M.D., P.A., MAX ADLER, M.D., AND LINDA WHITE Appellees. Appeal from Cause No. dc-11-08937-a 14 TH Judicial District Court, Dallas County, Texas Honorable Eric V. Moyé, Presiding Judge TO THE DALLAS COURT OF APPEALS: Appellees Max Adler, M.D., P.A., Max Adler, M.D. and Linda White, defendants in Cause No. DC-11-08937-A in the 14 th Judicial District Court of Dallas County, Texas, Honorable Eric V. Moyé presiding, respectfully submit their Brief on the Merits. Appellant is Barbara Lindsey, plaintiff in the district court. 1

STATEMENT OF THE CASE Nature of the case: Course of proceedings: Appellant filed a health care liability claim against Appellees Max Adler, M.D., P.A. ( Adler, P.A. ), Max Adler, M.D. ( Dr. Adler ) and Linda White ( Nurse White ), governed by Chapter 74 of the TEXAS CIVIL PRACTICE & REMEDIES CODE (CR 6, 7-13, 20-26)( CR refers to the Clerk s Record, 2 RR refers to Volume 2 of the Reporter s Record, and 3 RR refers to Volume 3 of the Reporter s Record). Appellant alleges injuries related to an injection by Nurse White, (CR 8-9, 21-22). Appellant filed her Original Petition against Dr. Adler and Nurse White on July 20, 2011 (CR 7). Appellant filed her First Amended Petition, wherein she named and added Adler, P.A. as a defendant, on August 5, 2011 (CR 20-26). In each of these petitions, Appellant alleged a cause of action based on Negligence under Ch. 74 of the Civil Practice and Remedies Code (CR 10, 23). Dr. Adler, Nurse White and Adler, P.A. timely answered (CR 31-34). Since Appellant alleged a health care liability claim in her Original Petition and First Amended Petition, under Section 74.351 of the TEXAS CIVIL PRACTICE & REMEDIES CODE she had 120 days within which to serve Dr. Adler, Nurse White and Adler, P.A. with an expert report as defined by Section 74.351(c) of the TEXAS CIVIL PRACTICE & REMEDIES CODE. Appellant s 120-day deadline as to Dr. Adler and Nurse White expired on November 17, 2011. Appellant s 120-day deadline as to Adler, P.A. expired on December 4, 2011. Appellant never served Dr. Adler, Nurse White or Adler, P.A. with an expert report. On December 6, 2011, Dr. Adler, Nurse White and Adler, P.A. filed their Motion to Dismiss for Failure to Serve Chapter 74 Expert Report (CR 36-70). On December 12, 2011, well after expiration of Appellant s 120-day expert report deadlines, she filed her Second Amended Original Petition (CR 64-69). While Appellant dropped her claim against Dr. Adler, Nurse White and Adler, P.A. based on Negligence under Ch. 74 of the Civil Practice and Remedies 2

Code, her claims were still based on the injection administered by Nurse White (CR 66-69). Dr. Adler, Nurse White and Adler, P.A. s motion to dismiss was heard by the trial court on December 19, 2011 (2 RR 1). The trial court granted Dr. Adler, Nurse White and Adler, P.A. s motion to dismiss at the conclusion of that hearing (2 RR 10-11). On December 28, 2011, Appellant filed her Motion for a New Trial (CR 72-74). Dr. Adler, Nurse White and Adler, P.A. filed their response to Appellant s motion for new trial on January 12, 2012 (CR 88-98). Appellant s motion for new trial was heard by the trial court on January 25, 2012 (3 RR 1). The trial court denied Appellant s motion for new trial at the conclusion of that hearing (3 RR 15-18). Trial court s disposition: Appeal: The trial court granted Dr. Adler, Nurse White and Adler, P.A. s motion to dismiss by order signed December 19, 2011 (CR 71; Appendix A ). The trial court denied Appellant s motion for new trial by order signed January 25, 2012 (CR 104; Appendix B ). Appellant timely filed her Notice of Appeal on January 4, 2012 (CR 75). 3

REQUEST FOR ORAL ARGUMENT Pursuant to Rule 39 of the TEXAS RULES OF APPELLATE PROCEDURE, Appellees Max Adler, M.D., P.A., Max Adler, M.D. and Linda White request that this matter be submitted for oral argument to allow the Court to more completely understand the facts and legal issues presented by this appeal. 4

ISSUE PRESENTED Pursuant to Rule 38.2(a)(1)(B) of the TEXAS RULES OF APPELLATE PROCEDURE, Appellees provide the following Issue Presented because they are dissatisfied with the Issues Presented in Appellant s Brief. I. Did the trial court err in granting Appellees Max Adler, M.D., P.A., Max Adler, M.D., and Linda White s Motion to Dismiss for Failure to Serve a Chapter 74 Expert Report? 5

STATEMENT OF FACTS Pursuant to Rule 38.2(a)(1) of the TEXAS RULES OF APPELLATE PROCEDURE, Appellees provide the following Statement of Facts because they are dissatisfied with the Statement of Facts in Appellant s Brief. This health care liability claim arises out of an injection Appellant received on July 22, 2009 (CR 8-9, 21-22; 3 RR 10-11). Appellant received this injection in connection with scar removal treatment provided to her by Max Adler, M.D. ( Dr. Adler ) (CR 8-9, 21-22). The injection was performed by Linda White ( Nurse White ) (CR 8-9, 21-22). Nurse White was a nurse acting within the course and scope of her employment with Max Adler, M.D., P.A. ( Adler, P.A. ) at the time she provided this injection (CR 21). Dr. Adler is a physician with Adler, P.A. (CR 7, 20). Nurse White and Adler, P.A. are health care providers as that term is defined by Section 74.001(12)(A) of the TEXAS CIVIL PRACTICE & REMEDIES CODE (CR 20-22). Adler, P.A. is a medical professional association (CR 20). Nurse White is a nurse and an employee of Adler, P.A. (CR 21). There is no dispute that Appellant sought medical evaluation, care and treatment from Adler, P.A. on July 22, 2009 (CR 8-9, 21-22; 3 RR 10-11). Appellant filed her Original Petition on July 20, 2011 (CR 7). Appellant filed her First Amended Petition on August 5, 2011 (CR 20). In both her Original Petition and her First Amended Petition Appellant specifically alleges a health care liability claim against Dr. Adler and Nurse White (CR 10). In her First Amended Petition, Appellant added Adler, P.A. as a defendant. Appellant specifically alleges a health care liability claim 6

against Adler, P.A. in her First Amended Petition (CR 23). Particularly, in her first two petitions Appellant alleges a claim for negligence under Ch. 74 of the Civil Practice and Remedies Code (CR 10, 23). Appellant also characterized her claim as a health care liability claim on the Civil Case Information Sheet she filed with the trial court on July 20, 2011 (CR 6). Further, in her appeal brief, Appellant admits The case was filed as Medical Malpractice (Lindsey s Appeal Brief, pp. 7, 10). On December 6, 2011, Dr. Adler, Nurse White and Adler, P.A. filed their Motion to Dismiss for Failure to Serve Chapter 74 Expert Report (CR 36-62). Dr. Adler, Nurse White and Adler, P.A. moved for dismissal of Appellant s claims against them because Appellant did not serve them an expert report on or before December 4, 2011, more than 120 days after Appellant filed her original petition against Dr. Adler and Nurse White, and 120 days after Appellant filed her first petition against Adler, P.A. (CR 36-62). Appellant s First Amended Petition was her live petition at the time her 120-day expert report deadlines expired. On December 12, 2011, seven days before the hearing on Dr. Adler, Nurse White and Adler, P.A. s motion to dismiss and after expiration of her 120-day expert report deadlines; Appellant filed her Second Amended Original Petition (CR 64-70). While this amended petition dropped Appellant s claim for Negligence under Ch. 74 of the Civil Practice and Remedies Code, Appellant continues to allege that Dr. Adler, Nurse White and Adler, P.A. are liable to her for injuries from the July 22, 2009 injection by Nurse White (CR 66; 3 RR 10-11). Thus, the claims asserted against Dr. Adler, Nurse White and Adler, P.A. in Appellant s Second Amended Original 7

Petition are based on the exact same underlying facts that are alleged in Appellant s Original Petition and First Amended Petition (CR 8-9, 21-22). The trial court heard Dr. Adler, Nurse White and Adler, P.A. s motion to dismiss on December 19, 2011 (2 RR 1). The trial court granted Dr. Adler, Nurse White and Adler, P.A. s motion to dismiss by order signed December 19, 2011 (CR 71; Appendix A ). On December 28, 2011, Appellant filed her Motion for a New Trial (CR 72-74). Dr. Adler, Nurse White and Adler, P.A. filed their Response to Plaintiff s Motion for New Trial on January 13, 2012 (CR 88-98). The trial court heard Plaintiff s motion for new trial on January 25, 2012 (3 RR 1). The trial court denied Appellant s motion for new trial by order signed January 25, 2012 (CR 104; Appendix B ). Appellant filed her Notice of Appeal on January 4, 2012 (CR 75). 8

SUMMARY OF ARGUMENT Section 74.351(a) of the TEXAS CIVIL PRACTICE & REMEDIES CODE mandates that when a health care liability claim is filed, within 120 days of the date the original petition is filed the claimant must serve each defendant with an adequate expert report. Section 74.351(b) requires that if no expert report is served within those 120 days, on motion by the affected party or parties, the trial court must dismiss the claims against those parties with prejudice. The record on appeal demonstrates and documents that Dr. Adler is a physician. The records also demonstrates and documents that Nurse White and Adler, P.A. are health care providers, as that term is defined by Section 74.001 of the TEXAS CIVIL PRACTICE & REMEDIES CODE. In fact, Appellant has never challenged and does not challenge that Dr. Adler is a physician and that Nurse White and Adler, P.A. are health care providers. Appellant admits her claim is based on an injection performed by Nurse White in the context of medical treatment (3 RR 10-11). In Appellant s Original Petition against Dr. Adler and Nurse White, she specifically states that her allegations against them constitute a claim for Negligence under Ch. 74 of the Civil Practice and Remedies Code (CR 10). In Appellant s First Amended Petition, Adler, P.A. was added as a new defendant. In her First Amended Original Petition, Appellant states that that her allegations against Adler, P.A. constitute a claim for Negligence under Ch. 74 of the Civil Practice and Remedies Code (CR 23). Appellant also continues to state that her 9

allegations against Dr. Adler and Nurse White constitute a claim for Negligence under Ch. 74 of the Civil Practice and Remedies Code (CR 23). Because Appellant s first two petitions assert a health care liability claim against Dr. Adler, Nurse White and Adler, P.A., Section 74.351 of the TEXAS CIVIL PRACTICE & REMEDIES CODE required Appellant to serve Dr. Adler and Nurse White an expert report within 120 days of when her original petition was filed, and required that Appellant serve Adler, P.A. with an expert report within 120 days of when her first amended petition was filed. Appellant s 120-day expert report deadline as to Dr. Adler and Nurse White expired on November 17, 2011. Appellant s 120-day expert report deadline as to Adler, P.A. expired on December 4, 2011. The record demonstrates and documents that Appellant did not serve Dr. Adler, Nurse White and Adler, P.A. with the required expert report and that Dr. Adler, Nurse White and Adler, P.A. moved for dismissal of Appellant s claims based on her failure to serve an expert report as required by Section 74.351. Because Appellant failed to serve Dr. Adler, Nurse White and Adler, P.A. with an expert report, the trial court had no discretion other than to grant Dr. Adler, Nurse White and Adler, P.A. s motion to dismiss and to dismiss Appellant s claims against them with prejudice. Accordingly, the trial court acted appropriately and its dismissal of Appellant s claims against Dr. Adler, Nurse White and Adler, P.A. should be affirmed. 10

ARGUMENT The trial court did not err in granting Appellees Max Adler, M.D. ( Dr. Adler ), Linda White ( Nurse White ), and Max Adler, M.D., P.A. s ( Adler, P.A. ) Motion to Dismiss for Failure to Serve a Chapter 74 Expert Report: For there to be a health care liability claim, the claim asserted must be asserted against a physician and/or health care provider. There is no dispute that Dr. Adler is a physician (CR 7, 20). There is also no dispute that Nurse White and Adler, P.A. are health care providers as defined by Section 74.001 of the TEXAS CIVIL PRACTICE & REMEDIES CODE. Adler, P.A. is the medical clinic where Dr. Adler practices medicine (CR 20-22). Such clinics are health care providers. TEX. CIV. PRAC. & REM. CODE, 74.001(a)(12)(A). As a nurse, Nurse White is a health care provider. TEX. CIV. PRAC. & REM. CODE, 74.001(a)(12). Nurse White is also a health care provider because she is alleged to be an agent, employee or representative of Adler, P.A. acting in the course and scope of her employment with Adler, P.A. on the occasion in question (CR 21-22). TEX. CIV. PRAC. & REM. CODE, 74.001(a)(12)(B)(ii). In fact, Appellant has never challenged Dr. Adler s status as a physician or Nurse White s and Adler, P.A. s status as health care providers under Chapter 74 of the TEXAS CIVIL PRACTICE & REMEDIES CODE. Based on the arguments asserted by Appellant, the only issues before the Court are (1) whether Appellant can avoid application of the expert report requirement of Section 74.351 by simply amending her petition to drop her health care liability claim after expiration of her expert report deadline, and (2) whether Appellant s contention that her claim is really a claim for battery means the expert report requirement of Section 74.351 11

is not applicable. The answer to both of these questions is no, meaning that the trial court did not err in granting Dr. Adler, Nurse White and Adler, P.A. s motion to dismiss. I. Standard of Review: Determination of whether a claim is a health care liability claim under Chapter 74 of the TEXAS CIVIL PRACTICE & REMEDIES CODE is a question of law. Broxterman v. Carson, 309 S.W.3d 154, 158 (Tex. App. Dallas 2010, pet. denied). For this reason, the question of whether Appellant s claim against Dr. Adler, Nurse White and Adler, P.A. is a health care liability claim subject to the Section 74.351 expert report requirement is reviewed by this Court de novo. Id. II. What is the Expert Report Requirement Contained in Chapter 74 of the TEXAS CIVIL PRACTICE & REMEDIES CODE : Section 74.351 of the TEXAS CIVIL PRACTICE & REMEDIES CODE requires any person who brings suit asserting a health care liability claim must, within 120 days of filing the original petition, provide an expert report relating to each physician or health care provider against whom a claim is asserted. Saleh v. Hollinger, 335 S.W.3d 368, 372 (Tex. App. Dallas 2011, pet. denied)(citing TEX. CIV. PRAC. & REM. CODE ANN. 74.351(a)). If this required report is not provided before expiration of the 120-day deadline, upon motion by the defendant, the trial court shall dismiss the action with prejudice. Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. 74.351(b)). If new defendants are added through amended petitions, the 120-day deadline as to new defendants runs from the date the amended petition naming such new defendants is filed. See, Kingwood Specialty Hospital v. Barley, 328 S.W.3d 611, 613, 616 (Tex. App. 12

Houston [14 th Dist.] 2010, no pet.); Stroud v. Grubb, 328 S.W.3d 561, 563, 566 (Tex. App. Houston [1 st Dist.] 2010, pet. denied); Hayes v. Carroll, 314 S.W.3d 494, 501 (Tex. App. Austin 2010, no pet.); Padre Behavioral Health System, L.L.C. v. Chaney, 310 S.W.3d 78, 85 (Tex. App. Corpus Christi 2010, no pet.); Osonma v. Smith, 2009 Tex. App. LEXIS 4959 *4-6 (Tex. App. San Antonio)(Jul. 1, 2009)(mem. op.)(pet. denied). The plain language of Sections 74.351(a) and (b) establish that the trial court and this Court need focus only on three issues. These issues are (1) the dates Appellant s Original Petition and First Amended Petition were filed, (2) whether Appellant asserts a health care liability claim in her Original Petition and First Amended Petition, and (3) whether Appellant served Dr. Adler, Nurse White and Adler, P.A. with an expert report within 120 days of the date her first petition against each one of them was filed. The plain language of Sections 74.351 (a) and (b) dictate the focus is on what Appellant did and did not do during the first 120 days her suit was on file. What happened after the first 120 days Appellant s first two petitions were on file is not pertinent or relevant to whether her claims against Dr. Adler, Nurse White and Adler, P.A. must be dismissed under Section 74.351(b). III. What is a Health Care Liability Claim: A health care liability claim is: 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 13

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, 74.001(a)(13). 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. Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005); TEX. CIV. PRAC. & REM. CODE, 74.001(a)(10). As the Texas Supreme Court explained in Omaha Healthcare Center, LLC v. Johnson, 344 S.W.3d 392 (Tex. 2011), health care involves more than acts of physical care and medical diagnosis and treatment. Omaha Healthcare Center, LLC, 344 S.W.3d at 395. Health care involves any act performed or furnished by any health care provider for, to or on behalf of a patient Id. To determine if a health care liability claim is being asserted, this Court looks to see if the underlying nature of the claim in this case is so inextricably interwoven with the rendition of health care services as to constitute a health care liability claim. Sloan v. Farmer, 217 S.W.3d 763, 767 (Tex. App. Dallas 2007, pet. denied)(citing Garland Community Hospital v. Rose, 156 S.W.3d 541, 546 (Tex. 2004)). If the act or omission that forms the basis of the complaint is an inseparable part of the rendition of health care services then the claim is a health care liability claim. Id. (citing Rose, 156 S.W.3d at 544). Claimants cannot attempt to avoid application of Chapter 74 s expert report requirement by recasting a health care liability claim as another cause of action. Id. 14

(citing Diversicare Gen. Partner, Inc., 185 S.W.3d at 851). If a health care liability claim is being or has been asserted, a cause of action based on the same set of underlying facts cannot alternatively be maintained as a claim that does not require submission of the expert report required by Chapter 74. Yamada v. Friend, 335 S.W.3d 192, 196-97 (Tex. 2010). IV. Appellant s Original Petition and First Amended Petition Assert a Health Care Liability Claim: Appellant s live petitions during the first 120 days of her suit were the original petition she filed on July 20, 2011 and the amended petition she filed on August 5, 2011 (CR 7, 20; Appendix C, and Appendix D ). In her original petition, Appellant asserts a health care liability claim against Dr. Adler and Nurse White because her claim is based on an injection she received from Nurse White (CR 8-9; 3 RR 10-11). See, e.g., Pisharodi v. Saldana, 2011 Tex. App. LEXIS 582 (Tex. App. Corpus Christi)(Jan. 27, 2011)(pet. denied)(mem. op.). Appellant cannot dispute that she filed a health care liability claim against Dr. Adler and Nurse White. Appellant alleged in her original petition that Dr. Adler and Nurse White s actions constitute a claim for Negligence under Ch. 74 of the Texas Civil Practice and Remedies Code (CR 10). Appellant also informed the trial court in the Civil Case Information Sheet she completed and filed that her claim was a health care liability claim (CR 6). Further, Appellant admitted to the trial court that Nurse White s injection was provided in the context of medical treatment (3 RR 10-11). Finally, 15

Appellant admits in her brief to the Dallas Court of Appeals that her case was filed as Medical Malpractice (Lindsey s Appeal Brief, pp. 7, 10). Appellant s First Amended Petition changed nothing about her claim other than to add Adler, P.A. as a defendant. Appellant s claim was still based on the injection she received from Nurse White (CR 21-22). Appellant also still alleged that Dr. Adler, Nurse White and Adler, P.A. s actions constitute a claim for Negligence under Ch. 74 of the Texas Civil Practice and Remedies Code (CR 23). The record conclusively establishes that at the time Appellant s 120-day expert report deadlines expired as to Dr. Adler, Nurse White and Adler, P.A., Appellant asserted a health care liability claim against Dr. Adler, Nurse White and Adler, P.A., but did not serve on them the expert report required by Section 74.351(a). The only question is whether Appellant can escape application of the expert report requirement of Section 74.351 by merely (1) amending her petition after expiration of her 120-day deadlines to drop her allegation that that Dr. Adler, Nurse White, and Adler, P.A. s actions constitute a claim for Negligence under Ch. 74 of the Texas Civil Practice and Remedies Code and (2) stating that her claim is really a battery claim. V. Appellant Cannot Amend Her Petition to Escape Application of Chapter 74 s Expert Report Requirement: After receipt of Dr. Adler, Nurse White and Adler, P.A. s Motion to Dismiss for Failure to Serve a Chapter 74 Expert Report, Appellant recognized that in her Original Petition and First Amended Petition she specifically alleged a health care liability claim against Dr. Adler, Nurse White and Adler, P.A. She also recognized that because she 16

failed to serve Dr. Adler, Nurse White and Adler with the expert report required by Section 74.351 her claim would be dismissed with prejudice. Seven days before the hearing on Dr. Adler, Nurse White and Adler, P.A. s motion to dismiss, Appellant filed her Second Amended Original Petition (CR 64-70). This action by Appellant cannot be construed as anything other than an improper attempt to avoid application of Section 74.351 s expert report requirement. In what is an obvious attempt to avoid application of Chapter 74 s expert report requirement and the mandated dismissal of her claim, more than 140 days after filing her original petition Appellant filed her Second Amended Original Petition (CR 64-70). It is obvious that Appellant s December 12, 2011 amended petition was filed in an effort to circumvent application of Chapter 74 s expert report requirement for four reasons. One, this amended petition was filed after the expiration of Appellant s 120-day expert report deadlines on November 17, 2011 and December 4, 2011. Two, this amended petition was filed after Dr. Adler, Nurse White and Adler, P.A. filed their motion to dismiss based on Appellant s failure to serve them with an expert report (CR 36). Three, the only material difference between Appellant s First Amended Petition and Second Amended Original Petition is Appellant s deletion of her causes of action for Negligence under Ch. 74 of the Civil Practice and Remedies Code, Negligence, and Negligence-Res Ipsa Loquitor (Compare, CR 20-27 to CR 64-70). The factual bases for Appellant s claims in her Second Amended Original Petition remain exactly the same as the factual bases alleged in her Original Petition and First Amended Petition (Compare, CR 20-27 to CR 64-70). For the reasons set forth below, Appellant s Original Petition and First 17

Amended Petition, not her Second Amended Original Petition, are pertinent to this Court s review of the dismissal of Appellant s claim. A. The Plain Language of Sections 74.351(a) and (b) Limit the Relevant Time Frame to the First 120 Days After the Original Petition Was Filed: Rules of statutory construction require that when statutory language is unambiguous, the plain meaning of the statutory text prevails and should be followed. See, Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008); Offenbach v. Stockton, 285 S.W.3d 517, 520 (Tex. App. Dallas 2009), aff d, 336 S.W.3d 610 (Tex. 2011). Dr. Adler, Nurse White and Adler, P.A. submit that consideration and evaluation of Appellant s pleadings after the first 120 days of her lawsuit is improper because such action would ignore the plain meaning of the statute. Section 74.351 clearly and plainly establishes that in this situation the only query for trial courts and appellate courts is what a claimant did and did not do during the first 120 days of her lawsuit against a party. TEX. CIV. PRAC. & REM. CODE, 74.351(a), (b). See, Harris v. Patel, 2011 Tex. App. LEXIS 7647 *9-10 (Tex. App. Texarkana)(Sep. 22, 2011)(no pet.)(mem. op.)(expert report and request for extension filed after 120 day deadline not relevant to determination of whether dismissal was appropriate); Offenbach, 285 S.W.3d at 520 (plain meaning of Section 74.351(a) is that if a claimant does not serve an expert report within 120 days of filing the claim, the trial court shall dismiss the claim); Jones v. Christus Health Ark-La- Tex, 141 S.W.3d 790, 793 (Tex. App. Texarkana 2004, no pet.)(plain meaning of statute establishes relevant time frame under consideration). 18

Section 74.351(a) reads: In a health care liability claim, a claimant shall, not later than the 120 th 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 (emphasis added). Section 74.351(b) states: If, as to a defendant physician or health care provider, an expert report has not been served within the time period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), 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 the refilling of the claim (emphasis added). In connection with motions to dismiss for failure to serve an expert report, the plain language of Section 74.351(a) and Section 74.351(b) limits trial courts and appellate courts to consideration of two matters during the first 120 days of the lawsuit against a defendant. The first matter to resolve is whether or not the claimant asserts a health care liability claim. If a health care liability claim is asserted, courts are then directed to look at whether or not the defendants were served with an expert report within 120 days after the first petition against them was filed. If an expert report was not served within 120 days after that first petition was filed, then a dismissal with prejudice of the claim is mandatory. The plain language of the statute establishes that the relevant time frame is the first 120 days after the first petition against a defendant is filed. The plain language of the statute renders irrelevant and meaningless any action taken more than 120 days after that 19

first petition. See, Harris, 2011 Tex. App. LEXIS 7647 at *9-10; Offenbach, 285 S.W.3d at 520; Jones, 141 S.W.3d at 793. Accordingly, Sections 74.351(a) and (b) render the Second Amended Original Petition Appellant filed on December 12, 2011, more than 120 days after the date her Original Petition and First Amended Petition were filed, irrelevant and meaningless in evaluation of Appellant s compliance with the expert report requirement of Section 74.351. As such, Appellant s Second Amended Original Petition should not have been considered by the trial court in ruling on Dr. Adler, Nurse White and Adler, P.A. s motion to dismiss, and it should not be considered by this Court in review of the trial court s action. The relevant petitions at issue are Appellant s Original Petition and First Amended Petition. Two cases, Medical Hospital of Buna Texas, Inc. v. Wheatley, 287 S.W.3d 286 (Tex. App. Beaumont 2009, pet. denied) and Jones v Christus Health Ark-La-Tex, 141 S.W.3d 790 (Tex. App. Texarkana 2004, no pet.), illustrate and establish the validity of Dr. Adler, Nurse White and Adler, P.A. s argument and position. In Wheatley, Medical Hospital of Buna appealed the trial court s denial of its motion to dismiss for plaintiff s failure to serve expert reports within 120 days after her original petition was filed. Wheatley, 287 S.W.3d at 289. In her original petition, plaintiff alleged a health care liability claim against the hospital. Id. Plaintiff did not, however, serve an expert report within 120 days of when her original petition was filed. Id. at 290. The hospital moved for dismissal because plaintiff did not provide the required expert report. On the day that the hospital s motion to dismiss was heard by the trial court, plaintiff filed an amended petition that deleted all references to a health care liability 20

claim against the hospital. Plaintiff argued that she was now pursuing a non-health care liability claim. The trial court denied the hospital s motion to dismiss. Id. The Beaumont Court of Appeals reversed the trial court s denial of Medical Hospital of Buna s motion to dismiss. In review of the denial of the hospital s motion to dismiss, the Beaumont Court of Appeals held that plaintiff failed to file the required expert report within 120 days of when she filed her original petition. Id. at 294. The Beaumont Court of Appeals also stated that Wheatley s attempt to avoid application of [Chapter 74] by re-pleading her health care liability claims after failing to comply with chapter 74 fails under Texas law. Id. The Texarkana Court of Appeals in Jones reached the same conclusion. Jones involved the 180-day expert report deadline provided for under Chapter 74 s predecessor statute, article 4590i of the TEXAS REVISED CIVIL STATUTES ANNOTATED. In Jones, claimants alleged negligent treatment of a patient while she was in a nursing home and hospital. Claimants never served an expert report. After expiration of the expert report deadline, the defendants moved for dismissal. After defendants filed their motion to dismiss, claimants amended their petition and abandoned their earlier claim of negligent health care. Claimants proceeded under a premises liability theory. The trial court granted defendants motions to dismiss and claimants appealed. Jones, 141 S.W.3d at 792. The Texarkana Court of Appeals affirmed the trial court s dismissal of claimants claims. Specifically, the Texarkana Court of Appeals addressed claimants amendment of their pleadings after expiration of their expert report deadline. The court held that to 21

determine whether [article 4590i s] requirement that a medical expert report be filed within 180 days of the lawsuit s commencement [sic], we will look only to the petition(s) on file during that first 180 days of the suit s pendency. Id. at 793 (emphasis added). The court went on to state the recasting of pleadings after the 180 days expired does not operate to nullify the requirement imposed by this statute to dismiss the action. Id. at 795. Appellant s Second Amended Original Petition was filed on December 12, 2011, almost one month after expiration of her November 17, 2011 expert report deadline as to Dr. Adler and Nurse White, and one week after expiration of her expert report deadline as to Adler, P.A. As claimants did in Wheatley and Jones, Appellant dropped her specific health care liability claim after her expert report deadlines passed. As established by Wheatley and Jones, Appellant s post-deadline amendment has no bearing on whether or not she was required to serve Dr. Adler, Nurse White and Adler, P.A. with an expert report prior to expiration of her 120-day deadlines. In evaluation of whether or not an expert report was required, this Court should only consider Appellant s Original Petition and First Amended Petition, the petitions on file during the first 120 days of her lawsuit against Dr. Adler, Nurse White and Adler, P.A. Wheatley, 287 S.W.3d at 294; Jones, 141 S.W.3d at 793, 795. B. Artful Pleading or Claim-Splitting Is Improper: Appellant s Second Amended Original Petition also has no relevance and does not merit consideration because claimants cannot artfully plead or split claims in order to avoid the expert report requirement of Chapter 74. Yamada, 335 S.W.3d at 193-94. 22

When there is a set of underlying facts that gives rise to a health care liability claim, the claimant cannot, based on that same set of underlying facts, split her claim into a nonhealth care liability claim in order to avoid the expert report requirement of Chapter 74. Yamada, 335 S.W.3d at 196-97; Medical Center of Lewisville v. Slayton, 335 S.W.3d 382, 385-86 (Tex. App. Fort Worth 2011, no pet.). In particular, claimants do not have the ability to avoid application of Chapter 74 s expert report requirement by simply amending their petition to drop their health care liability claim, as Appellant did here after Dr. Adler, Nurse White and Adler, P.A. filed their motion to dismiss. Slayton, 335 S.W.3d at 385-86; Mata v. Calixto-Lopez, 2007 Tex. App. LEXIS 8203 *7 (Tex. App. San Antonio)(Oct. 17, 2007) (no pet.)(mem. op.). The key matter for the Court to note here is the fact that the claims asserted by Appellant in her Original Petition, her First Amended Petition and her Second Amended Original Petition are all based on the exact same underlying set of facts. Slayton is instructive on the importance of this point. In Slayton, claimant alleged a health care liability claim against Medical Center of Lewisville in her original petition. Slayton, 335 S.W.3d at 383-84. Claimant did not serve Medical Center of Lewisville with an expert report prior to expiration of her expert report deadline. Id. After Medical Center of Lewisville filed a motion to dismiss for failure to file an expert report, claimant amended her petition, dropped the health care liability claim and alleged a common law cause of action based on the same incident and same set of underlying facts. Id. To avoid dismissal of her claim, claimant argued to the trial court that her amended petition non-suited her health care liability claim and that it 23

related back to the filing of her original petition. The trial court agreed with claimant s argument and denied Medical Center of Lewisville s motion to dismiss. Id. at 384. On appeal, the Fort Worth Court of Appeals ruled that the trial court erred in denying Medical Center of Lewisville s motion to dismiss. The court of appeals ruled that claimant s actions were the exact kind of claim-splitting that was expressly prohibited by the Texas Supreme Court in Yamada. Id. at 386. The Fort Worth Court of Appeals found claimant s actions constituted prohibited claim-splitting because her purported non-health care liability claim was based on the same facts as the health care liability claim asserted in her original petition. Id. The court then reversed the trial court s denial of Medical Center of Lewisville s motion to dismiss and remanded the case to the trial court for a hearing on attorney s fees. Id. The Second Amended Original Petition Appellant filed after expiration of her expert report deadlines presents this Court with the same situation the Fort Worth Court of Appeals was faced with in Slayton, with one exception. In this case the trial court made the proper ruling and dismissed Appellant s claim for failure to serve an expert report. First, Appellant s Original Petition and First Amended Petition both specifically allege a health care liability claim (CR 10, 23). Second, Appellant failed to serve an expert report before her 120-day deadlines expired. Third, Dr. Adler, Nurse White and Adler, P.A. moved for dismissal based on Appellant s failure to provide the required expert report (CR 36-63). Fourth, after Dr. Adler, Nurse White and Adler, P.A. filed their motion to dismiss for failure to provide an expert report; Appellant amended her 24

petition to drop her health care liability claim, but based her remaining purported nonhealth care liability claims on the same incident and same set of underlying facts (CR 64-69). Under Slayton, this is prohibited claim-splitting. Slayton, 335 S.W.3d at 386. Regardless of the specific cause of action or claim alleged, Appellant s claims in all of her petitions are based on the allegation that she was injured as a result of Nurse White s July 22, 2009 injection (CR 3, 21-22, 66; 3 RR 10-11). Because the purported non-health care liability claims asserted by Plaintiff in her Second Amended Original Petition are based on the same facts that gave rise to the health care liability claim asserted in her Original Petition and First Amended Petition, Plaintiff s Second Amended Original Petition represents nothing more than an improper attempt to avoid Chapter 74 s expert report requirement through artful pleading or claim splitting. Yamada, 335 S.W.3d at 193-94; Slayton, 335 S.W.3d at 386; Mata, 2007 Tex. App. LEXIS at *7. For this reason, Plaintiff s Second Amended Original Petition is not relevant to review of this matter and cannot provide the Court a basis on which to reverse the trial court s dismissal of Appellant s claims against Dr. Adler, Nurse White and Adler, P.A.. VI. Appellant s Second Amended Original Petition Still Asserts a Health Care Liability Claim: Even if Appellant s Second Amended Original Petition is considered, the trial court s dismissal of Appellant s claims against Dr. Adler, Nurse White and Adler, P.A. was appropriate. Consideration of Appellant s Second Amended Original Petition does not change the outcome because this amended petition still asserts a health care liability claim against Dr. Adler, Nurse White and Adler, P.A. 25

Appellant s Second Amended Original Petition asserts a health care liability claim because Appellant admits the injection on which her claim was based was provided in the context and course of medical treatment (3 RR 10-11). This establishes that Appellant s claim is inseparable from the rendition of health care services and is inextricably interwoven with the rendition of health care services. See, Vanderwerff v. Beathard, 239 S.W.3d 406, 408-09 (Tex. App. Dallas 2007, no pet.); Sloan, 217 S.W.3d at 768-69. Appellant s argument that she is absolved from Chapter 74 s expert report requirement because her claim against Dr. Adler, Nurse White and Adler, P.A. is based on battery, and that claims of battery are not subject to Chapter 74 s expert report requirement, is incorrect. The Texas Supreme Court has already addressed and rejected Appellant s argument. In Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005), the underlying claim was that an anesthesiologist sedated a patient for surgery contrary to express instructions from the patient that she not be sedated. The claimant failed to provide an expert report as required by Chapter 74 s predecessor statute, article 4590i of the TEXAS REVISED CIVIL STATUTES. Id. at 836-37. The claimant in Murphy, like Appellant here, contended that no expert report was required because she asserted a claim for battery, and not a claim for lack of informed consent or a breach of some standard of care. The Texas Supreme Court explained that claimant asserted a health care liability claim because her battery claim arises from treatment rendered by [the anesthesiologist]. Id. at 838. The Texas Supreme Court went on to state that because the claim arose out of medical treatment claimant was required to provide [defendant] with an expert report in order to proceed 26

with those claims. Because [claimant] failed to do so within the statutory period, we reverse the court of appeals judgment without hearing oral argument and dismiss [claimant s] suit. Id. at 839. The only authority cited by Appellant in support of her argument that an expert was not required of her is Espinosa v. Baptist Health Sys., 2006 Tex. App. LEXIS 8739 (Tex. App. San Antonio)(Oct. 11, 2006)(pet. denied)(mem. op.) (Lindsey s Appeal Brief, p. 15). Espinosa does not stand for the proposition cited. The issue before the San Antonio Court of Appeals in Espinosa was whether or not allegations arising out of the failure of a hospital bed trapeze-patient lift device stated a health care liability claim. Espinosa, 2006 Tex. App. LEXIS 8739 at *1-2. The trial court held that these allegations did assert a health care liability claim and that the claimant s failure to produce an expert report mandated dismissal of the case. Id. at *1. The San Antonio Court of Appeals affirmed the trial court s dismissal of the claim because the acts or omissions alleged were an inseparable part of the rendition of medical services and that the claimant was not injured by a random object unrelated to [his] diagnosis, care and treatment. Id. at *12. Appellant s allegations and own admission conclusively establish that the claim she asserts against Dr. Adler, Nurse White and Adler, P.A. in her Second Amended Petition is a health care liability claim, despite her efforts to cloak this claim under the guise of an intentional tort/battery cause of action. The key matter is the fact that the claim in Appellant s Second Amended Original Petition directly arises out of medical services and is inseparable from the rendition of those medical services. Thus, despite 27

Appellant s argument to the contrary, her Second Amended Original Petition asserts a health care liability claim subject to the expert report requirement of Section 74.351. See, Murphy, 167 S.W.3d at 838; Vanderwerff, 239 S.W.3d at 408-09; Sloan, 217 S.W.3d at 768-69. Accordingly, even if the Court considers Plaintiff s Second Amended Original Petition, the dismissal of her claim was appropriate because she failed to serve Dr. Adler, Nurse White and Adler, P.A. with the required expert report. VII. Appellant s Constitutional Claim is Without Merit: As a final point in her request that this Court reverse the trial court s dismissal of her claim, Appellant apparently raises a due process claim under the United States Constitution, presumably arguing that the expert report provisions of Chapter 74 violate her constitutional rights (Lindsey s Appeal Brief, p. 16). Appellant s constitutional claim fails for two reasons. First, Appellant improperly raises this issue for the first time on appeal. Appellant did not present or raise any constitutional challenge or issues in the trial court. Thus, Appellant has waived any ability to make this argument on appeal. In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003); Lowe v. Jefferson Dental Clinics, 2012 Tex. App. LEXIS 3796 *3-5 (Tex. App. Dallas)(May 14, 2012)(mem. op.)(citing TEX. R. APP. P. 33.1(a)); Jefferson v. Univ. of Tex. Med. Branch Hosp. at Galveston, 2010 Tex. App. LEXIS 1946 (Tex. App. Houston [1 st Dist.])(Mar. 18, 2010)(pet. denied)(mem. op.). Second, Appellant s claim that the expert report requirement of Chapter 74 violates due process is without merit. As stated by this Court, Every court that has considered whether the [Chapter 74] expert report requirement passes constitutional 28

muster has concluded that it does. Broxterman, 309 S.W.3d at 159. (string citations omitted). In fact, numerous Texas appellate courts have specifically held that Chapter 74 s expert report requirement does not violate due process. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003); Harris, 2011 Tex. App. LEXIS 7647 at *4-5; Solomon- Williams v. Desai, 2009 Tex. App. LEXIS 4898 *8-10 (Tex. App. Houston [1 st Dist.])(Jun. 25, 2009) (pet. denied)(mem. op.); Ledesma v. Shashoua, 2007 Tex. App. LEXIS 6175 *22-23 (Tex. App. Austin)(Aug. 3, 2007)(pet. denied)(mem. op.); Herrera v. Seton Northwest Hospital, 212 S.W.3d 452, 461 (Tex. App. Austin 2006, no pet.). 29