Barbara Lindsey v. Max F. Adler, M.D., P.A. F/K/A Park Cities Dermatology Center A/K/A Coppell Dermatology Max F. Adler Linda L. White And John Does

• Court: Court of Appeals of Texas
• Decided: August 26, 2022
• Docket: 05-20-01081-CV
• Status: Published

Opinion

AFFIRMED and Opinion Filed August 26, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-01081-CV

BARBARA LINDSEY, Appellant V. MAX F. ADLER, M.D., P.A. F/K/A PARK CITIES DERMATOLOGY CENTER A/K/A COPPELL DERMATOLOGY, MAX F. ADLER, AND LINDA L. WHITE, AND JOHN DOES1, Appellees

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-07358

MEMORANDUM OPINION Before Justices Molberg, Reichek, and Garcia Opinion by Justice Reichek Barbara Lindsey, representing herself pro se, appeals the trial court’s order

dismissing her claims against Max F. Adler, M.D., P.A. f/k/a Park Cities

Dermatology Center a/k/a Coppell Dermatology, Max F. Adler, and Linda L. White.

In a single issue, Lindsey contends the trial court erred in dismissing her claims

pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code. We

affirm the trial court’s order.

1 The record does not reflect that any John Does were named or served with process in this suit. Background

In July 2009, Lindsey sought medical treatment from Dr. Adler to remove two

scars from her forehead. During the course of treatment, Lindsey was given a

numbing injection by White, a nurse employed by Dr. Adler’s professional

association. Lindsey states that, shortly after the injection was given, the injection

site became red and swollen and she began to feel sick. On July 20, 2011, Lindsey

filed suit against appellees alleging she had suffered a serious injury as a result of

the injection. Specifically, Lindsey alleged she had been injected with a microchip

that caused her pain, suffering, and mental anguish. Lindsey asserted claims for

negligence under chapter 74 of the Texas Civil Practice and Remedies Code,

common law negligence, assault, and intentional infliction of emotional distress.

When Lindsey failed to serve appellees with an expert report as required by

section 74.351 of the civil practice and remedies code, appellees moved to dismiss

her claims. Following a hearing, the trial court granted appellees’ motion and

dismissed all Lindsey’s claims with prejudice. This Court affirmed the dismissal.

See Lindsay v. Adler, No. 05-12-00010-CV, 2013 WL 1456633 (Tex. App.—Dallas

Apr. 9, 2013, no pet.) (mem. op.).

Nearly six years later, on May 24, 2019, Lindsey filed this suit against

appellees alleging claims based on the same procedure made the basis of the 2011

suit. The only substantive difference between the allegations in the current suit and

–2– the allegations in the previous suit is that, in this suit, Lindsey has alleged she

discovered a second “device” implanted as a result of the injection by White. On

September 18, 2019, Lindsey served an expert report in support of her claims.

Appellees again moved to dismiss Lindsey’s suit under section 74.351 on the

ground that she did not timely file an expert report. Appellees argued that Lindsey

could not “restart the clock” for serving a report by filing a second suit based on the

same conduct made the subject of the first suit. In response to Lindsey’s argument

that the second suit was based on a newly discovered injury, appellees contended

that, under the “single action rule,” separate damages arising out of one breach of

duty does not create separate causes of action.

The trial court granted appellees’ motion and, once again, dismissed all of

Lindsey’s claims. In its findings of fact and conclusions of law, the court concluded,

Plaintiff’s re-filing of the claim asserted in Plaintiff’s 2011 Lawsuit in this matter alleging the exact same underlying complaint and simply alleging an additional injury of the same nature and type as alleged in Plaintiff’s 2011 Lawsuit does not allow or provide Plaintiff a new and second 120-day opportunity to serve Defendants an expert report showing her claim against Defendants alleging injuries proximately resulting from the injection given by Defendant Linda L. White has merit.

Lindsey brought this appeal.

–3– Analysis

In a single issue, Lindsey contends the trial court erred in dismissing her

claims. Courts of appeals in Texas have consistently held that a plaintiff in a health-

care liability suit cannot restart the mandatory 120-day deadline for filing an expert

report by refiling claims based on the same alleged acts of negligence, even if the

new petition adds additional allegations. See e.g., Davis v. Baker, No. 03-10-00324-

CV, 2010 WL 5463864, at *2 (Tex. App.—Austin Dec. 22, 2010, no pet) (mem.

op.); Toro v. Alaniz, No. 04-06-00814-CV, 2007 WL 1200122, at *1–2 (Tex. App.—

San Antonio Apr. 25, 2007, no pet.) (mem. op.). To allow a plaintiff a second chance

to file an expert report addressing the same alleged conduct would be inconsistent

with the policies, goals, and statutory provisions of chapter 74. Mokkala v. Mead,

178 S.W.3d 66, 76 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

Lindsey correctly points out that the previous cases addressing attempts to

restart the 120-day deadline are procedurally distinguishable from this case because

they concern plaintiffs who refiled their claims during the course of litigation or after

taking a voluntary non-suit. However, the rationale of those cases applies with even

greater force when, as here, the original claims were dismissed with prejudice for

failure to serve an expert report. By requiring that claims be dismissed with

prejudice, section 74.351(b) strongly indicates the Legislature’s intent that plaintiffs

not be allowed a second chance to file an expert report once the initial deadline has

passed. See Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628,

–4– 635 (Tex. 2010) (we rely on plain meaning of text as expressing legislative intent).

The strictness of the deadline is reinforced by the fact that the Legislature denied

trial courts any discretion to grant extensions or deny motions to dismiss when no

report is timely served. See Philipp v. Methodist Hosp. of Dallas, No. 05-21-00350-

CV, 2022 WL 2448118, at *2 (Tex. App.—Dallas July 6, 2022, no pet. h.) (mem.

op.).

Lindsey further attempts to distinguish her suit by arguing her claims are

based on a newly discovered injury. But the conduct and alleged breaches of duty

that form the basis of this suit are identical to the conduct and breaches alleged in

the 2011 suit. As appellees argued both below and on appeal, under the “single

action rule,” only one cause of action exists for each breach of duty. Regency Field

Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 817 (Tex. 2021).

Separate damages stemming from one breach will not result in separate causes of

action, regardless of when the damages are discovered. Id.2 The 120-day deadline

to file an expert report applies to causes of action, not lawsuits. Mokkala, 178

S.W.3d at 71. Because Lindsey has alleged the same breaches of duty in this suit as

in the 2011 suit, the trial court properly concluded Lindsey was not entitled to a

second opportunity to file an expert report concerning the same cause of action.

2 In personal injury cases, the Texas Supreme Court has recognized a limited exception to this rule only for asbestos-related diseases resulting from workplace exposure. Id. –5– Lindsey argues the trial court erred in dismissing all her claims because her

causes of action for intentional wrongdoing are not health care liability claims

subject to the expert report requirement. Lindsey made the same argument in her

appeal in her prior suit. We conclude now, as we did then, that her argument is

without merit.

A health care liability claim cannot be recast as another cause of action in an

attempt to avoid the expert report requirement. See Diversicare Gen. Partner, Inc.

v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005); Garland Cmty. Hosp. v. Rose, 156

S.W.3d 541, 543 (Tex. 2004). We look to the underlying nature of a claim to

determine whether it constitutes a health care liability claim. See Vanderwerff v.

Beathard, 239 S.W.3d 406, 409 (Tex. App.—Dallas 2007, no pet.) (patient’s claim

for assault was a health care liability claim); see also Boothe v. Dixon, 180 S.W.3d

915, 919 (Tex. App.—Dallas 2005, no pet.) (claims for fraud, breach of fiduciary

duty, and violation of the Deceptive Trade Practices Consumer Protection Act were

health care liability claims). “If the act or omission alleged in the complaint is an

inseparable part of the rendition of health care services, or if it is based on a breach

of a standard of care applicable to health care providers, then the claim is a heath

care liability claim.” Boothe, 180 S.W.3d at 919.

As in her previous suit, the essence of each of Lindsey’s claims is the injury

she allegedly suffered as a result of the injection administered by White. The

injection was an inseparable part of the rendition of medical services by appellees.

–6– Accordingly, all of Lindsey’s claims were subject to the expert report requirement.

See Lindsey, 2013 WL 1456633, at *4. As stated above, Lindsey was not entitled to

a second opportunity to file an expert report. Therefore, the trial court properly

dismissed all of Lindsey’s claims.

Lindsey makes a variety of arguments that the trial court’s dismissal violated

her constitutional rights. Lindsey first contends that appellees’ motion to dismiss

under section 74.351 was, in reality, a motion for summary judgment based on res

judicata. Because of this, Lindsey argues, she was not given proper notice of the

hearing or the grounds for dismissal in violation of her right to due process.

The record shows that both appellees’ motion to dismiss and the trial court’s

order of dismissal were based on Lindsey’s failure to file an expert report within the

120-day time period specified by section 74.351. Lindsey contends that, because

the focus of the motion was her failure to file an expert report in her 2011 lawsuit,

the basis of the dismissal in this case must be res judicata. But the discussion of the

2011 suit was not to show that Lindsey’s claims were barred because they had been

previously litigated, but to show when the 120-day period to file her expert report

began and ended. Because the report filed by Lindsey in 2019 did not fall within

that window, the trial court was required to dismiss her claims under section

74.351(b).

–7– To the extent the “single action rule” is a species of res judicata3, it was raised

by appellees below not as an independent ground for judgment, but in response to

Lindsey’s argument that her claims in this suit are different from the claims asserted

in her 2011 suit. The “single action rule” dictated that Lindsey had only one,

indivisible cause of action for all damages arising out of the breaches of duty made

the subject of the 2011 suit. SM Energy, 2022 WL 2252423, at *6. Accordingly she

was entitled to only one 120-period within which to serve her expert report

addressing those breaches of duty. Lindsey had full notice of this argument below

and an opportunity to respond.

Lindsey next argues that “requiring expert reports on unknown foreign bodies

is an impossible condition in violation of the Texas Constitution’s open courts and

right to jury trial provisions.” No such report was required. The report Lindsey was

required to serve in 2011 needed to show only how appellees’ conduct breached the

applicable standard of care and how those alleged breaches caused the injury, harm,

or damages that Lindsey was aware of at that time. TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(r)(6). It is undisputed that Lindsey was aware she was injured by the

conduct at issue when she filed suit in 2011, even if she was not aware of the extent

of her alleged injuries. Where a claimant is prevented from bringing her claims

because of her own failure to timely provide an expert report rather than an

3 See SM Energy Co. v. Union Pac. R.R. Co., No. 11-21-00052-CV, 2022 WL 2252423, at *6 (Tex. App.—Eastland June 23, 2022, no pet. h.). –8– unconstitutional application of the expert report requirement, an open court’s

challenge is unavailing. Simmons v. Outreach Health Cmty. Care Servs., L.P., 511

S.W.3d 163, 172 (Tex. App.—El Paso 2014, pet. denied).

Finally, Lindsey argues the requirement under section 74.351(b) that her

claims be dismissed with prejudice is excessive and violates her constitutional rights.

“Every court that has considered whether the expert report requirement passes

constitutional muster has concluded that it does.” Broxterman v. Carson, 309

S.W.3d 154, 159 (Tex. App.—Dallas 2010, pet. denied); see also Hebert v. Hopkins,

395 S.W.3d 884, 895–901 (Tex. App.—Austin 2013, no pet.). We resolve Lindsey’s

sole issue against her.

We affirm the trial court’s order dismissing Lindsey’s claims.

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE

201081F.P03

–9– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BARBARA LINDSEY, Appellant On Appeal from the 160th Judicial District Court, Dallas County, Texas No. 05-20-01081-CV V. Trial Court Cause No. DC-19-07358. Opinion delivered by Justice MAX F. ADLER, M.D., P.A. F/K/A Reichek. Justices Molberg and PARK CITIES DERMATOLOGY Garcia participating. CENTER A/K/A COPPELL DERMATOLOGY, MAX F. ADLER, LINDA L. WHITE, AND JOHN DOES, Appellees

In accordance with this Court’s opinion of this date, the order of the trial court dismissing BARBARA LINDSEY’s claims is AFFIRMED.

It is ORDERED that appellees MAX F. ADLER, M.D., P.A. F/K/A PARK CITIES DERMATOLOGY CENTER A/K/A COPPELL DERMATOLOGY, MAX F. ADLER, and LINDA L. WHITE recover their costs of this appeal from appellant BARBARA LINDSEY.

Judgment entered August 26, 2022

–10–