NUMBER 13-22-00508-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ANNABELLE LOPEZ, Appellant,
v.
NAYELY HERRERA, Appellee.
ON APPEAL FROM THE 206TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Longoria, Silva, and Peña Memorandum Opinion by Justice Peña
Appellant Annabelle Lopez appeals the trial court’s denial of her motion to dismiss
appellee Nayely Herrera’s suit pursuant to Chapter 74 of the Texas Civil Practice and
Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.001–.552. In two issues, which we construe as one, Lopez argues the trial court erred in denying her motion to
dismiss because Herrera’s suit is a health care liability claim and she failed to timely serve
an expert report. We affirm.
I. BACKGROUND
On April 16, 2020, Herrera signed a Cosmetic Surgery Financial Agreement to
schedule a liposuction surgery with Nobu Medical Spa L.L.C. (Nobu) after consulting with
Lopez, a licensed physician. Pursuant to the agreement, Herrera made a $4,000 deposit
with the balance of the surgery fee to be paid at least three weeks before the surgery.
The agreement further provided that $1,000 of the deposit would be forfeited if Herrera
did not show up for surgery or canceled within thirty days of the surgery. Lopez instructed
Herrera that she would need to submit bloodwork to obtain clearance for the procedure,
which Herrera completed. Within the next couple of weeks, a Nobu representative notified
Herrera that Nobu now required patients to present a negative COVID-19 test prior to
surgery upon direction from the Center for Disease Control. Herrera was unable to secure
the required testing, and she later cancelled her surgery and requested a refund. On May
8, 2020, an attorney retained by Herrera presented a written demand to Lopez for a full
refund of $4,000 plus an additional $800 in attorney’s fees. On May 13, 2020, Lopez
issued Herrera a refund of $4,000.
On May 18, 2020, Herrera sued Lopez for violations of the Deceptive Trade
Practices Act (DTPA). 1 See TEX. BUS. & COM. CODE ANN. §§ 17.001–.955. Herrera alleged
Lopez breached her express warranty that she would schedule a liposuction surgery upon
1 Herrera’s live pleading is her third amended petition. Herrera abandoned causes of actions for
fraud and breach of contract.
2 the payment of $4,000 and the submitting of a blood sample. Herrera sought
compensatory damages, statutory penalties, court costs, and attorney’s fees.
Lopez filed an answer, a counterclaim for breach of contract, and later a motion to
dismiss pursuant to § 74.351 of the civil practice and remedies code. See TEX. CIV. PRAC.
& REM. CODE ANN. § 74.351. In her motion, Lopez argued that the “gravamen” of Herrera’s
complaint is a health care liability claim and that Herrera failed to file an expert report as
required by § 74.351. See id. In response, Herrera generally argued that her claim did not
qualify as a health care liability claim as defined by § 74.001(a)(13), thus she was not
required to file an expert report. See id. § 74.001(a)(13). The evidence before the trial
court included affidavit testimony from both parties, the parties’ agreement,
correspondence concerning the refund, and written discovery responses. Following a
hearing, the trial court denied Lopez’s motion to dismiss. This interlocutory appeal
followed. See id. § 51.014(a)(9).
II. DISCUSSION
A. Standard of Review & Applicable Law
The Texas Medical Liability Act (TMLA) requires a claimant who asserts a “health
care liability claim” against a “physician or health care provider” to serve on each
defendant one or more expert reports describing the expert’s opinions addressing the
applicable standards of care, how the defendant’s conduct failed to meet those standards,
and how those failures caused the claimant’s injury, harm, or damages. Id. § 74.351(a),
(r)(6). If a claimant fails to serve the report within 120 days after the defendant files an
original answer, the trial court must dismiss the claim with prejudice and award the
defendant attorney’s fees and costs. Id. § 74.351(b).
3 A “health care liability claim” is defined as:
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.
Id. § 74.001(a)(13). This definition has been construed to include three elements: (1) the
defendant is a physician or health care provider; (2) the claim concerns treatment, lack of
treatment, or a departure from accepted standards of medical care, or health care, or
safety or professional or administrative services directly related to health care; and (3) the
defendant’s conduct is the proximate cause of the plaintiff’s injury. Lake Jackson Med.
Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 840 (Tex. 2022) (citing Tex. W. Oaks Hosp., LP v.
Williams, 371 S.W.3d 171, 179–80 (Tex. 2012)). “[C]laims alleging the negligent provision
of health care fall within the [TMLA] when the alleged damages stem from health-care-
related claims, regardless of the type of injury alleged.” Coming Attractions Bridal &
Formal, Inc. v. Tex. Health Res., 595 S.W.3d 659, 666 (Tex. 2020).
We review de novo the legal question of whether a plaintiff has pleaded a health
care liability claim. Gaytan, 640 S.W.3d at 836 (citing Baylor Scott & White, Hillcrest Med.
Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019)). In making our determination, “we must
consider the ‘entire court record,’ including ‘the pleadings, motions and responses, and
relevant evidence properly admitted.’” Id. (quoting Loaisiga v. Cerda, 379 S.W.3d 248,
258 (Tex. 2012)). We are not bound by how the plaintiff characterizes a claim in her
pleadings if they do not accurately reflect the claim’s underlying nature. See Loaisiga,
379 S.W.3d at 255. Instead, we consider the operative facts underlying the plaintiff’s claim
that are relevant to her alleged injury, rather than how she describes the facts or legal
4 theories in her pleadings. Collin Creek Assisted Living Ctr. v. Faber, 671 S.W.3d 879, 885
(Tex. 2023). If the operative facts could support a “health care liability claim,” then the
TMLA applies, and an expert report is required. See id. The TMLA creates a rebuttable
presumption that a plaintiff’s claim is a health care liability claim if it is brought against a
physician or health care provider and is based on facts “implicating the defendant’s
conduct during the course of a patient’s care, treatment, or confinement.” Loaisiga, 379
S.W.3d at 258.
B. Analysis
The parties do not dispute that Herrera’s claim satisfies the first and third elements
of a health care liability claim—that Lopez is a physician and her conduct is the proximate
cause of Herrera’s injury.
Free access — add to your briefcase to read the full text and ask questions with AI
NUMBER 13-22-00508-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ANNABELLE LOPEZ, Appellant,
v.
NAYELY HERRERA, Appellee.
ON APPEAL FROM THE 206TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Longoria, Silva, and Peña Memorandum Opinion by Justice Peña
Appellant Annabelle Lopez appeals the trial court’s denial of her motion to dismiss
appellee Nayely Herrera’s suit pursuant to Chapter 74 of the Texas Civil Practice and
Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.001–.552. In two issues, which we construe as one, Lopez argues the trial court erred in denying her motion to
dismiss because Herrera’s suit is a health care liability claim and she failed to timely serve
an expert report. We affirm.
I. BACKGROUND
On April 16, 2020, Herrera signed a Cosmetic Surgery Financial Agreement to
schedule a liposuction surgery with Nobu Medical Spa L.L.C. (Nobu) after consulting with
Lopez, a licensed physician. Pursuant to the agreement, Herrera made a $4,000 deposit
with the balance of the surgery fee to be paid at least three weeks before the surgery.
The agreement further provided that $1,000 of the deposit would be forfeited if Herrera
did not show up for surgery or canceled within thirty days of the surgery. Lopez instructed
Herrera that she would need to submit bloodwork to obtain clearance for the procedure,
which Herrera completed. Within the next couple of weeks, a Nobu representative notified
Herrera that Nobu now required patients to present a negative COVID-19 test prior to
surgery upon direction from the Center for Disease Control. Herrera was unable to secure
the required testing, and she later cancelled her surgery and requested a refund. On May
8, 2020, an attorney retained by Herrera presented a written demand to Lopez for a full
refund of $4,000 plus an additional $800 in attorney’s fees. On May 13, 2020, Lopez
issued Herrera a refund of $4,000.
On May 18, 2020, Herrera sued Lopez for violations of the Deceptive Trade
Practices Act (DTPA). 1 See TEX. BUS. & COM. CODE ANN. §§ 17.001–.955. Herrera alleged
Lopez breached her express warranty that she would schedule a liposuction surgery upon
1 Herrera’s live pleading is her third amended petition. Herrera abandoned causes of actions for
fraud and breach of contract.
2 the payment of $4,000 and the submitting of a blood sample. Herrera sought
compensatory damages, statutory penalties, court costs, and attorney’s fees.
Lopez filed an answer, a counterclaim for breach of contract, and later a motion to
dismiss pursuant to § 74.351 of the civil practice and remedies code. See TEX. CIV. PRAC.
& REM. CODE ANN. § 74.351. In her motion, Lopez argued that the “gravamen” of Herrera’s
complaint is a health care liability claim and that Herrera failed to file an expert report as
required by § 74.351. See id. In response, Herrera generally argued that her claim did not
qualify as a health care liability claim as defined by § 74.001(a)(13), thus she was not
required to file an expert report. See id. § 74.001(a)(13). The evidence before the trial
court included affidavit testimony from both parties, the parties’ agreement,
correspondence concerning the refund, and written discovery responses. Following a
hearing, the trial court denied Lopez’s motion to dismiss. This interlocutory appeal
followed. See id. § 51.014(a)(9).
II. DISCUSSION
A. Standard of Review & Applicable Law
The Texas Medical Liability Act (TMLA) requires a claimant who asserts a “health
care liability claim” against a “physician or health care provider” to serve on each
defendant one or more expert reports describing the expert’s opinions addressing the
applicable standards of care, how the defendant’s conduct failed to meet those standards,
and how those failures caused the claimant’s injury, harm, or damages. Id. § 74.351(a),
(r)(6). If a claimant fails to serve the report within 120 days after the defendant files an
original answer, the trial court must dismiss the claim with prejudice and award the
defendant attorney’s fees and costs. Id. § 74.351(b).
3 A “health care liability claim” is defined as:
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.
Id. § 74.001(a)(13). This definition has been construed to include three elements: (1) the
defendant is a physician or health care provider; (2) the claim concerns treatment, lack of
treatment, or a departure from accepted standards of medical care, or health care, or
safety or professional or administrative services directly related to health care; and (3) the
defendant’s conduct is the proximate cause of the plaintiff’s injury. Lake Jackson Med.
Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 840 (Tex. 2022) (citing Tex. W. Oaks Hosp., LP v.
Williams, 371 S.W.3d 171, 179–80 (Tex. 2012)). “[C]laims alleging the negligent provision
of health care fall within the [TMLA] when the alleged damages stem from health-care-
related claims, regardless of the type of injury alleged.” Coming Attractions Bridal &
Formal, Inc. v. Tex. Health Res., 595 S.W.3d 659, 666 (Tex. 2020).
We review de novo the legal question of whether a plaintiff has pleaded a health
care liability claim. Gaytan, 640 S.W.3d at 836 (citing Baylor Scott & White, Hillcrest Med.
Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019)). In making our determination, “we must
consider the ‘entire court record,’ including ‘the pleadings, motions and responses, and
relevant evidence properly admitted.’” Id. (quoting Loaisiga v. Cerda, 379 S.W.3d 248,
258 (Tex. 2012)). We are not bound by how the plaintiff characterizes a claim in her
pleadings if they do not accurately reflect the claim’s underlying nature. See Loaisiga,
379 S.W.3d at 255. Instead, we consider the operative facts underlying the plaintiff’s claim
that are relevant to her alleged injury, rather than how she describes the facts or legal
4 theories in her pleadings. Collin Creek Assisted Living Ctr. v. Faber, 671 S.W.3d 879, 885
(Tex. 2023). If the operative facts could support a “health care liability claim,” then the
TMLA applies, and an expert report is required. See id. The TMLA creates a rebuttable
presumption that a plaintiff’s claim is a health care liability claim if it is brought against a
physician or health care provider and is based on facts “implicating the defendant’s
conduct during the course of a patient’s care, treatment, or confinement.” Loaisiga, 379
S.W.3d at 258.
B. Analysis
The parties do not dispute that Herrera’s claim satisfies the first and third elements
of a health care liability claim—that Lopez is a physician and her conduct is the proximate
cause of Herrera’s injury. In reviewing the entire record, we agree that those elements
have been satisfied. As to the second element, Lopez argues that the true nature of
Herrera’s complaint is a claim for lack of treatment or a deviation from accepted safety
standards. Herrera responds that her claim concerns only “how much refund is due to
Herrera”. 2
We disagree that Herrera is complaining of a lack of treatment. The operative facts
underlying Herrera’s claim are whether Herrera’s own cancellation of a procedure
because she could not procure a negative COVID-19 test entitles her to a refund of her
2 Herrera further contends that Lopez did not raise in the trial court with sufficient specificity how Herrera’s claim is a health care liability claim; therefore, Lopez did not preserve her appellate arguments. We disagree. Lopez’s motion to dismiss argues that the gravamen of Herrera’s claim is a health care liability claim. The motion identifies the governing statutory authority. At the hearing on the motion, Lopez elaborated that the claim is centered on the COVID-19 testing requirement which “clearly involves health care.” We conclude Lopez stated the grounds for dismissal with sufficient specificity “to make the trial court aware of the complaint[.]” TEX. R. APP. P. 33.1(a)(1)(A).
5 deposit. 3 It was Herrera’s decision to forgo the surgery. Cf. Lopez v. Osuna, 453 S.W.3d
60, 66–67 (Tex. App.—San Antonio 2014, no pet.) (holding that DTPA claims based on
health care provider’s refusal to provide promised labor and delivery services were health
care liability claims). Although Herrera’s pleading complains that Lopez breached her
warranty to provide liposuction surgery, 4 the record is clear that Herrera did not want to
pursue the surgery and is complaining of Lopez’s actions in the handling of her refund
request. In other words, Herrera does not seek recovery for injuries resulting from Lopez’s
failure to perform the procedure.
Just as a claimant cannot avoid the [TMLA]’s application by artfully pleading claims for ordinary negligence or premises liability, she cannot activate the [TMLA]’s application by inartfully pleading claims for “medical negligence.” In both circumstances, the [TMLA]’s application depends not on the labels contained within the pleading but on the facts revealing the claim’s underlying nature, as found within the entire record.
Gaytan, 640 S.W.3d at 838.
Next, Lopez contends that Herrera alleges a safety-standards claim. Herrera’s
claim is at least tangentially related to safety, but her complaint, as it concerns her
entitlement to a refund, is regarding Lopez’s adherence to, rather than deviation from, a
safety standard. See Coming Attractions, 595 S.W.3d at 664 (noting that a hospital’s
efforts in “controlling the spread of a virus to its nursing staff and the public . . . implicates
safety standards directly related to health care”). A safety-standards claim against a
physician or health care provider is a health care liability claim only if a “substantive
nexus” exists between the “safety standards allegedly violated and the provision of health
3 It appears from the record that Herrera contends that she is entitled to more than the $4,000
returned to her. Although Lopez refunded this sum, Lopez claims Herrera is not entitled to any refund.
4 For purposes of this opinion, we need not decide whether such a warranty exists or is actionable.
6 care.” Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 504 (Tex. 2015). Resolving
Herrera’s claim does not require an examination of whether Lopez violated a safety
standard. There is no dispute that she did not. Cf. Coming Attractions, 595 S.W.3d at 667
(holding that a claim alleging that a hospital’s departure from safety standards related to
caring for and treating a patient with the Ebola virus was a health care liability claim where
the claimant alleged that it had to close its store because a hospital failed to prevent the
spread of the virus). Because Herrera does not allege a deviation from, or violation of, a
safety standard, her claim is not a safety-standards claim. 5 See Ross, 462 S.W.3d at 504.
Having rejected each of Lopez’s arguments, we conclude that Herrera’s claim does
not concern treatment, lack of treatment, or a departure from accepted standards of
medical care, or health care, or safety or professional or administrative services directly
related to health care. See Gaytan, 640 S.W.3d at 840. Therefore, Herrera’s claim does
not constitute a health care liability claim, and the trial court did not err in denying Lopez’s
motion to dismiss. We overrule Lopez’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
L. ARON PEÑA JR. Justice
Delivered and filed on the 9th day of May, 2024.
5 If Herrera’s claim did allege a deviation or violation of a safety standard, we would analyze whether
there is a substantive nexus between the safety standards violated and the provision of health care, using the seven-factor test announced in Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 504 (Tex. 2015). See Collin Creek Assisted Living Ctr., Inc. v. Faber, 671 S.W.3d 879, 888 (Tex. 2023).