Diagnostic Research Group and John R. Holcomb, M.D. v. Sushma Vora

473 S.W.3d 861, 2015 Tex. App. LEXIS 8691, 2015 WL 4932832
Court of Appeals of Texas·Decided August 19, 2015·No. 04-15-00029-CV·Published·Cited by 10 cases

Opinions

OPINION

Opinion by:

Jason Pulliam, Justice

This is an interlocutory appeal of the trial court’s denial of a motion to dismiss filed by Appellants Diagnostic Research Group (DRG) and Dr. John Holcomb. DRG and Dr. Holcomb contend the trial court abused its discretion in denying the motion to dismiss, finding the causes of action asserted against DRG are not [865]*865health care liability claims under the Texas Medical Liability Act (TMLA). Further, DRG and Dr. Holcomb contend the trial court abused its discretion .by denying their challenges to the expert report of Plaintiff Sushma Vora’s (Vora) expert, Dr. Amy Mulroy.

Based upon the particular record in this case, we affirm in part and reverse in part the trial court’s order denying DRG and Dr. Holcomb’s motion to dismiss. We remand for further proceedings consistent with this opinion.

.BACKGROUND

This case arises- from Vora’s participation in the pre-market study of a drug, linaclotide, anticipated to treat irritable bowel syndrome. The drug study was conducted by DRG, with Dr. Holcomb serving as the Principal Investigator.- .It is undisputed that during her participation in the study, Vora experienced three severe adverse events, each resulting in hospitalization. After the third event, Vora was removed from the pre-market drug study. Vora later suffered seizures and strokes, which she alleges severely disabled her.

Vora filed suit against DRG and Dr. Holcomb asserting causes of action of negligence and gross negligence. In her petition, Vora asserts DRG and Dr. Holcomb departed from accepted standards of medical care “by conducting a study of a dangerous medication and allowing Ms. Vora to receive linaclotide which- had serious side effects ....”• Vora asserts this conduct caused preventable, permanent and debilitating injury.

Although Vora maintains her negligence claims do not fall within the ambit of the TMLA, in the interest of caution, she timely served upon all defendants the expert report and curriculum vitae of Dr. Amy Mulroy, as required by Section 74.351 of the TMLA. See Tex. Civ. PRAc. & Rem. Code Ann. § 74.351(a)(West Supp.2014). DRG and Dr. Holcomb timely objected to Dr. Mulroy’s report based upon her lack of qualifications to serve as an expert on causation. DRG and Dr. Holcomb also timely filed a motion to dismiss Vora’s negligence claims asserting the causes of action are health care liability claims, and as such,, Vora was required to timely serve an expert report. Because Vora’s expert report did not meet the statutory requirements, DRG and Dr. Holcomb contended the suit should be dismissed.

Following a hearing on the motion to dismiss, the trial court overruled the objections to Dr. -Mulroy’s expert report- and denied DRG and Dr. Holcomb’s motion to dismiss. In its denial of their motion to dismiss, the trial court found Vora’s suit against Dr. Holcomb asserts health care liability claims; however, Vora’s suit against DRG-does not assert health care liability claims. Also, the trial court found Dr. Mulroy’s expert report was “adequate as to Dr. Holcomb as it puts him on notice of the claims asserted by Plaintiff.” DRG, and Dr. Holcomb then perfected this interlocutory appeal.

Analysis

Issue One: Whether Vora’s causes of action asserted against DRG are “Health Care Liability Claims”

DRG and Dr. Holcomb first contend Vora’s negligence causes of action asserted against DRG are health care liability claims pursuant to the TMLA because DRG is a health care provider, and the nature of her claims concern the care and treatment rendered to-Vora during her participation in the drug study. DRG and Dr. Holcomb assert DRG satisfies the statutory definition of “health care provider” because DRG is an affiliate of a physician, Dr. Holcomb.

[866]*866 Standard of Review

Ordinarily, an appellate court reviews a trial court’s determination of a motion to dismiss for failure to comply with Section 74.351 of the TMLA under an abuse of discretion standard. San Antonio Extended Med. Care, Inc. v. Vasquez, 327 S.W.3d 193, 196-97 (Tex.App.—San Antonio 2010, no pet.). However, determination whether a petition asserts a health care liability’ claim under the TMLA is a question of law, to which we apply a de novo standard of review. Id.; Inst. for Women’s Health, P.L.L.C. v. Imad, No. 04-05-00555-CV, 2006 WL 334013, *1 (Tex.App.—San Antonio 2006, no pet.) (mem.op.). “[W]hen making that determb nation courts- should consider the entire court record, including the pleadings, motions and responses, and relevant evidence properly admitted.” Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex.2012). In construing a statute, an appellate court must give it the effect the Legislature intended as found in the plain meaning of the statute’s text. Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 757-58 (Tex.2014); Lopez v. Osuna, 453 S.W.3d 60, 64 (Tex.App.—San Antonio 2014, no pet.).

Applicable Law

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.

TeI Civ. PRAC. & Rem. Code Ann. § 74.001(a)(13) (West Supp.2014). Following this statutory definition, a health care liability claim under the TMLA has three elements: (1) the defendant is á health care provider or physician;' (2) the essence of the nature of the underlying claim concerns treatment, lack of treatment or other 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 alleged act or omission was a proximate cause of the claimant’s alleged injury.1 Loaisiga, 379 S.W.3d at 255. The party asserting application of the TMLA carries the burden to show the causes of action asserted are health care liability claims. Bioderm Skin Care, 426 S.W.3d at 758; Brown v. Villegas, 202 S.W.3d 803; 806 (Tex.App.—San Antonio 2006, no pet.).

With regard to the first definitional element, a health care provider is “any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the §>tate of Texas to provide health care.” Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(12)(A) (West Supp.2014). The term includes an officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician. See id. at § 74.001(a)(12)(B)(i).

Following the statutory definition, the crux of classification as a “health care provider” is the" initial requirement that the party be licensed or. certified to provide health care. See id. at § 74.001(a)(12)(A). As the party, asserting application of the TMLA, DRG had the burden to present evidence to establish, this licensure or certification.

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Diagnostic Research Group and John R. Holcomb, M.D. v. Sushma Vora, 473 S.W.3d 861, 2015 Tex. App. LEXIS 8691, 2015 WL 4932832 (Tex. Ct. App. 2015).

473 S.W.3d 861 (Diagnostic Research Group and John R. Holcomb, M.D. v. Sushma Vora) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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