Kelvin Smith and Angelia Smith v. Dr. Peter Edward Grays, M.D.

Opinion

In the

Court of Appeals

Second Appellate District of Texas at Fort Worth

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No. 02-25-00650-CV

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KELVIN SMITH AND ANGELIA SMITH, Appellants V.

DR. PETER EDWARD GRAYS, M.D., Appellee

On Appeal from the 467th District Court Denton County, Texas

Trial Court No. 24-0625-467

Before Birdwell, Womack, and Walker, JJ.

Memorandum Opinion by Justice Birdwell

MEMORANDUM OPINION

Proceeding pro se, Appellants Kelvin and Angelia Smith (the Smiths) 1 challenge the trial court’s dismissal of health care liability claims they brought against Appellee Peter Edward Grays, M.D. due to their failure to timely file an expert report in compliance with Section 74.351 of the Texas Civil Practice and Remedies Code. In support of their appeal, the Smiths argue that the trial court abused its discretion in so ruling because their amended pleadings—filed after Dr. Grays filed his motion to dismiss but before the hearing thereon—alleged medical battery claims, not health care liability claims, so their failure to serve an expert report should not have resulted in the dismissal of these claims. 2 Because we hold that the Smiths’ amended pleadings

1 We will also refer to the Smiths by their first names as necessary because they share a surname.

2 Although the Smiths couch their three issues in terms of the trial court’s refusal to consider their amended pleadings, nothing in the record reflects such a refusal on the part of the court. See Lake Jackson Med. Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 836–37 (Tex. 2022) (observing in review of a dismissal motion that pleadings to be considered included those timely amended before a hearing even if amendment occurred after dismissal motion’s filing). Indeed, the Smiths filed a motion for the trial court to “reconsider” its dismissal of their medical battery claims as set forth in their amended pleadings, and the court conducted a hearing before rendering the final and appealable order of dismissal made the subject of this appeal. Thus, we construe their complaint on appeal to challenge the trial court’s interpretation of their amended pleadings. See Britton v. Almasri, No. 02-25-00298-CV, 2025 WL 3119024, at *3 & n.6 (Tex. App.—Fort Worth Nov. 6, 2025, no pet.) (consolidating eleven issues concerning challenge to dismissal for failure to comply with expert report requirement); In re J.D., No. 02-24-00515-CV, 2025 WL 2810523, at *3 (Tex. App.— Fort Worth Oct. 2, 2025, no pet.) (construing the argument section of pro se appellant’s brief as complaining about two issues).

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alleged health care liability claims subject to the expert report requirement and not medical battery claims excused therefrom, we affirm.

I. Background

In September 2023, the Smiths filed their original petition 3 alleging a negligence cause of action against Dr. Grays arising from a surgical procedure to repair Kelvin’s inguinal and umbilical hernias.4 The Smiths asserted that Dr. Grays “did not remove the hernia mesh as discussed with” the Smiths prior to the procedure, that the procedure “was not performed within the standards of care for a reasonably prudent general surgeon exercising ordinary care,” and that Dr. Grays “did not close the [u]mbilical navel area . . . [,] which has caused [Kelvin] additional unnecessary pain and suffering among other medical problems such as . . . impotence.” The Smiths also asserted that, although Dr. Grays represented to them that he would remove and replace the mesh from a previous procedure, he failed to do so. Therefore, according to the Smiths, “Dr. Grays was negligent in failing to properly provide proper surgery care and follow[-]up care.”

The Smiths originally filed suit in Dallas County, but their appeal comes to us 3

though a transfer of venue to Denton County.

“A ‘hernia’ is a ‘protrusion of an organ through an abnormal opening in the 4

muscle wall of the cavity that surrounds it.’” Segovia v. Astrue, No. H-11-0727, 2012 WL 948815, at *1 n.2 (S.D. Tex. Mar. 2, 2012) (quoting Hernia, Mosby’s Medical, Nursing & Allied Health Dictionary (5th ed. 1998)), report and recommendation adopted, No. H-11-0727, 2012 WL 951543 (S.D. Tex. Mar. 19, 2012).

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As a result of these alleged acts and omissions on the part of Dr. Grays, the Smiths alleged that Kelvin suffered a laceration of his abdominal wall resulting in an open wound in the navel area of his abdomen, infection thereof and of the mesh left in place, swollen testicles, urinary incontinence and sexual dysfunction, persistent and debilitating pain, and the need for further surgery to remove and replace the infected mesh. As damages, the Smiths sought compensation for Kelvin’s past and future pain and suffering, past and future loss of income and earning capacity, past and future loss of household services, past and future medical expenses, and “extreme mental trauma and emotional sorrow and anguish.”5 Critically, the only theory of liability the Smiths alleged against Dr. Grays was for medical negligence or malpractice in that “[h]is treatment deviated from the appropriate standard of care during the surgery he performed on [Kelvin].” Their original pleadings make no mention of medical battery as a distinct theory of liability.

5 Although suggested by their allegation of Kelvin’s impotence in both their original and first amended petitions, the Smiths appear not to have alleged a derivative cause of action or sought damages for loss of consortium on behalf of Angelia. See Whittlesey v. Miller, 572 S.W.2d 665, 666 (Tex. 1978) (“Consortium . . . can generally be defined to include the mutual right of the husband and wife to that affection, solace, comfort, companionship, society, assistance, and sexual relations necessary to a successful marriage.”). Both petitions identify Angelia as a party plaintiff suing “Individually and as Personal Representative and Power of Attorney for the Claimant and Plaintiff” but do not allege a separate and distinct injury for which she seeks damages. Nevertheless, because our disposition of Kelvin’s claims necessarily resolves any derivative claim available to Angelia, we will assume without deciding that the Smiths sought such damages. See Reed Tool Co. v. Copelin, 610 S.W.2d 736, 738–39 (Tex. 1980) (holding that, due to its derivative nature, “a defense that tends to constrict or exclude the tortfeasor’s liability to the injured husband will have the same effect on the wife’s consortium action”).

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On October 26, 2023, Dr. Grays filed his original answer generally denying the allegations urged by the Smiths and asserting as an affirmative defense the two-year statute of limitations made applicable to health care liability claims by Section 74.251. On February 27, 2024, he moved to dismiss the Smiths’ health care liability claims on the grounds that they had failed to serve him with an expert report within 120 days of the filing of his original answer—i.e., by February 23, 2024—as required by Section 74.351. See Tex. Civ. Prac. & Rem. Code § 74.351. In so moving, Dr. Grays urged the complete absence of such service, not the mere inadequacy of an expert report otherwise timely served. He also sought an award of reasonable attorney’s fees and court costs. The same day, Dr. Grays gave the Smiths notice of a hearing on his motion to dismiss set for April 11, 2024.

In March 2024, the Smiths filed their first amended petition alleging that Kelvin “gave” Dr. Grays “informed consent” to perform the surgical procedure, that Dr. Grays “did p[er]form the duties” to which the Smiths “consented,” that Dr. Grays “without informed consent did not remove the hernia mesh as discussed with” the Smiths prior to the procedure, that the procedure “was not performed within the standards of care for a reasonably prudent general surgeon exercising ordinary care and Dr[.] . . . Grays informed” the Smiths, and that Dr. Grays “did not close the [u]mbilical navel area . . . [,] which has caused [Kelvin] additional unnecessary pain and suffering among other medical problems such as . . . impotence and . . . numbness in the surgical area.” The Smiths asserted that Kelvin’s pain and medical

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issues were caused by “the inflicted battery and trauma from Dr. . . . Grays.” More particularly, the Smiths alleged that Dr. Grays “never informed the[m] . . . of the risks . . . from the surgery” and that Dr. Grays “committed battery in failing to properly provide proper surgery care and follow[-]up care.”

As the amended language makes clear, although the Smiths continued to complain of the way Dr. Grays performed the inguinal and umbilical hernia repair surgery—including his failing to remove and replace the preexisting hernia mesh— they now alleged that he (1) failed to obtain Kelvin’s informed consent to the surgery by failing to disclose certain associated risks and (2) committed a medical battery by deviating from the represented surgical technique to be employed. Specifically, the Smiths recalled a pre-operative office visit with Dr. Grays during which he provided them with and discussed a pamphlet describing the surgery he proposed to perform and its risks but never informed them that Kelvin “would suffer damages such as . . . impotence and excruciating pain and suffering.” They asserted that had they been informed, Kelvin would never have consented to the surgery. Additionally, they alleged that Dr. Grays “used a different technique from the described pamphlet”— i.e., the incision he employed was “up and down versus across.”

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After multiple resets,6 the trial court conducted a hearing on Dr. Grays’s motion to dismiss without the Smiths in attendance and without their having filed a response to the motion. The trial court granted the motion, ordered that the Smiths take nothing, and entered judgment in favor of Dr. Grays by dismissing “[a]ll claims” brought by the Smiths “with prejudice against their refiling.” Over a year later, the trial court resolved Dr. Grays’s lingering request for attorney’s fees and court costs and entered its final judgment.7 The Smiths filed a timely notice of appeal on November 26, 2025.

II. Applicable Law and Standard of Review A. The Expert Report Requirement for Health Care Liability Claims The Texas Medical Liability Act (TMLA) governs the adjudication of health care liability claims. See Tex. Civ. Prac. & Rem. Code §§ 74.001–.551.

“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.

6 The Smiths twice moved the trial court to reset the hearing on Dr. Grays’s motion to dismiss and objected to the trial court’s hearing the motion by submission. The trial court ultimately set the motion for an “in-person” hearing on May 24, 2024.

7 The Smiths attempted to appeal the trial court’s May 24, 2024 judgment, but because the judgment did not address Dr. Grays’s request for reasonable attorney’s fees and court costs, we dismissed the appeal for want of jurisdiction. See Smith v. Grays, No. 02-24-00294-CV, 2025 WL 1840475, at *1–2 (Tex. App.—Fort Worth, July 3, 2025, no pet.).

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Id. § 74.001(a)(13). According to this definition, a health care liability claim has three elements:

(1) the defendant is a health care provider or physician; (2) the claimant’s cause of action is for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care;

and (3) the defendant’s alleged departure from accepted standards proximately cause the claimant’s injury or death.

Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012).

Any person who files suit asserting a health care liability claim must, within 120 days after each defendant’s original answer is filed, serve on that party or the party’s attorney one or more expert reports for each physician or health care provider against whom a health care liability claim is asserted. Tex. Civ. Prac. & Rem. Code § 74.351(a). An “expert report” is

a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Id. § 74.351(r)(6).

The failure of a claimant to comply with this requirement mandates the dismissal of his health care liability claim with prejudice. Id. § 74.351(b). “[E]ven a pro se litigant [is] charged with knowledge of the statute and compliance with its requirements.” Walker v. Gutierrez, 111 S.W.3d 56, 65 n.2 (Tex. 2003); Robinson v. Murthy, No. 2-02-296-CV, 2003 WL 22026593, at *5 n.6 (Tex. App.—Fort Worth

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Aug. 29, 2003, no pet.). If the cause of action is not a health care liability claim, however, then the plaintiff need not serve an expert report upon the defendant to avoid dismissal. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 505 (Tex. 2015). The dismissal of a health care liability claim for failure to comply with the expert report requirement is subject to review for an abuse of discretion. Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 665 (Tex. 2010) (op. on reh’g); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877–78 (Tex. 2001). B. Lack of Informed Consent May Not Be Recast as Medical Battery Whether a plaintiff’s cause of action is a health care liability claim subject to the requirements of the TMLA is a question of law we review de novo. Collin Creek Assisted Living Ctr., Inc. v. Faber, 671 S.W.3d 879, 885 (Tex. 2023); Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019); Merry v. Wilson, 498 S.W.3d 270, 272 (Tex. App.—Fort Worth 2016, no pet.) (“The nature of the claims the legislature intended to include under chapter 74’s umbrella is a matter of statutory construction, which is a legal question reviewed de novo.”).

A cause of action is a health care liability claim if it “alleges a departure from accepted standards of medical care or health care if the act or omission complained of is an inseparable part of the rendition of medical services.” Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005); see Gaytan, 640 S.W.3d at 846 (describing complained-of act as “inseparable or integral”). In making this determination, we

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consider the alleged wrongful conduct and the duties allegedly breached. Rubio, 185 S.W.3d at 851. We also consider whether expert testimony is necessary to show breach of an applicable standard of care, whether the alleged negligence involves medical judgment related to the patient’s care or treatment, and whether a specialized standard in the health care community applies. Id. at 848–51. “[I]f expert medical or health care testimony is necessary to prove or refute the merits of the claim against a physician or health care provider, the claim is a health care liability claim.” Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 182 (Tex. 2012).

Moreover, “we must focus on the claim’s ‘underlying nature . . . rather than its label.’” Gaytan, 640 S.W.3d at 836 (quoting Weems, 575 S.W.3d at 363). We therefore consider the entire record, “including ‘the pleadings, motions and responses, and relevant evidence properly admitted.’” 8 Id. (quoting Loaisiga, 379 S.W.3d at 258). “A lawsuit that is based on one set of facts cannot be divided into both a health care liability claim and a non-health care liability claim.” Holden v. Mesa Springs Healthcare Ctr., No. 11-23-00160-CV, 2025 WL 1954213, at *5 (Tex. App.—Eastland July 17, 2025, no pet.); see Yamada v. Friend, 335 S.W.3d 192, 197 (Tex. 2010) (“[I]f the gravamen or essence of a cause of action is a health care liability claim, then allowing the claim to be split or spliced into a multitude of other causes of action with differing standards of care, damages, and procedures would contravene the Legislature’s

8 The pleadings to be considered include those timely amended before the hearing on a motion to dismiss, even if the amendment occurs after the filing of the motion. Gaytan, 640 S.W.3d at 836–37.

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explicit requirements.”). “It is well settled that such artful pleading and recasting of claims is not permitted.” Yamada, 335 S.W.3d at 196.

As a result, when a cause of action arises from a single set of facts that could potentially qualify as a health care liability claim, then it will necessarily qualify as such a claim, regardless of whether the plaintiff alleges a violation of a professional or institutional standard of care. See Loaisiga, 379 S.W.3d at 255; Holden, 2025 WL 1954213, at *5. In this manner, the TMLA “essentially creates a [rebuttable] presumption that a claim is [a health care liability claim] if it is 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 256; Holden, 2025 WL 1954213, at *6.

1. Informed Consent “[P]hysicians and surgeons have a duty to make a reasonable disclosure to a patient of risks that are incident to medical diagnosis and treatment.” Hood v. Phillips, 554 S.W.2d 160, 166 (Tex. 1977) (quoting Wilson v. Scott, 412 S.W.2d 299, 301 (Tex. 1967) (op. on reh’g)). “This duty is based upon the patient’s right to information adequate for him to exercise an informed consent to or refusal of the procedure.” Wilson, 412 S.W.2d at 301. Although originating under the common law, a physician’s duty to obtain a patient’s informed consent to medical treatment is now a matter of statutory regulation. Tex. Civ. Prac. & Rem. Code § 74.101 (“In a suit against a physician . . . involving a health care liability claim that is based on the failure of the

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physician . . . to disclose or adequately disclose the risks and hazards involved in the . . . surgical procedure rendered by the physician . . . , the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.”); see Peterson v. Shields, 652 S.W.2d 929, 930–31 (Tex. 1983) (recognizing common law superseded by enactment of predecessor of the TMLA).

Our sister court in Texarkana, considering an appeal transferred from this court, summarized the current law of informed consent in the following manner:

“Chapter 74 creates the Texas Medical Disclosure Panel (the ‘Panel’) and charges the Panel with responsibility for identifying those medical and surgical procedures that do and do not require disclosure of risks and hazards to the patient or the person authorized to consent for the patient.” Vaughan v. Nielson, 274 S.W.3d 732, 736 (Tex. App.—San Antonio 2008, no pet.) (citing Tex. Civ. Prac. & Rem. Code [] §§ 74.102– .103 . . . ). “The Panel creates lists of procedures that require specific disclosures, which are referred to as ‘List A’ procedures, and those that require no disclosure, which are referred to as ‘List B’ procedures.” Id.

Consent “in writing, signed by the patient . . . and by a competent witness,” is effective for a List A procedure if the consent “specifically states the risks and hazards that are involved in the medical care or surgical procedure in the form and to the degree required by the disclosure panel under Section 74.103.” Tex. Civ. Prac. & Rem. Code []

§ 74.105 . . . . Disclosure “made as provided in Section 74.104” creates “a rebuttable presumption that the requirements of Sections 74.104”

(duty of physician to provide disclosure of risks and hazards of List A procedure) “and 74.105” (manner of disclosure) “have been complied with.” [Id.] § 74.106 . . . .

Wakefield v. Pinnacle Anesthesia Consultants, P.A., No. 06-17-00056-CV, 2018 WL 1734984, at *14 (Tex. App.—Texarkana Apr. 2, 2018, pets. denied) (op. on reh’g) (footnote omitted).

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As the Wakefield court further explained:

The Texas Supreme Court has rejected the idea that an expert witness can rebut the presumption of informed consent in List A cases by claiming additional risks which, in the expert’s opinion, should have been disclosed. Earle v. Ratliff, 998 S.W.2d 882, 891 (Tex. 1999). . . . A physician cannot, therefore, be found negligent for not disclosing other risks associated with a procedure when the physician made the disclosures as prescribed by the . . . Panel. Id.

Id. at *15.

The supreme court has additionally denied that a physician’s oral misrepresentations concerning the risks of a procedure invalidate the informed consent of a patient so obtained; consent obtained employing the form and disclosures prescribed by the Panel can be invalidated only by showing the “invalidity of the consent form, such as by proof that the patient’s signature was forged, or that the patient lacked capacity to sign.” Id. (quoting Earle, 998 S.W.2d at 891–92). Absent any such challenge, consent obtained as prescribed by the Panel satisfies the physician’s duty to obtain his patient’s informed consent before performing a procedure. Id.

Finally, the disclosure and consent form prescribed by the Panel for medical care and surgical procedures expressly identifies risks that all such care and procedures involve, including “infection, blood clots in veins, lungs or other organs, hemorrhage (severe bleeding), allergic reactions, poor wound healing, and death.” See 25 Tex. Admin. Code § 604.1(a)(1) (English form). The prescribed form requires the patient

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to confirm both his understanding that during the procedure his physician “may discover other conditions which require additional or different care/procedure(s) than originally planned” and his authorization for his physician “to use [his] professional judgment to perform the additional or different care/procedure(s) [he] believe[s] are needed.” See id.

2. Medical Battery

By way of contrast, a cause of action for a total lack of consent to medical treatment sounds in battery and is distinct from a health care liability claim for a lack of informed consent under the TMLA. Schaub v. Sanchez, 229 S.W.3d 322, 324 (Tex. 2007); Arani v. Fisher, No. 14-18-00117-CV, 2018 WL 5289932, at *4 (Tex. App.— Houston [14th Dist.] Oct. 25, 2018, no pet.) (“Informed consent claims, however, differ materially from claims alleging that a patient gave no consent at all for the treatment.”). “The tort of battery has been recognized when a physician, with no justification or excuse, performs an operation without the express or implied consent of the patient.” Ranelle v. Beavers, No. 02-08-00437-CV, 2009 WL 1176445, at *3 (Tex. App.—Fort Worth Apr. 30, 2009, no pet.) (citing Gravis v. Physicians & Surgeons Hosp. of Alice, 427 S.W.2d 310, 311 (Tex. 1968)).

“Medical treatment will not constitute a battery unless it is provided without the patient’s consent.” Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (citing Miller ex rel. Miller v. HCA, Inc., 118 S.W.3d 758, 767 (Tex. 2003)). “But failure to obtain consent does not automatically result in liability. There may be reasons for providing

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treatment without specific consent that do not breach any applicable standard of care.” Id. Whether such reasons exist “is necessarily the subject of expert testimony.” Id. By enacting the expert report requirement, therefore, the Legislature intended that health care liability claims be scrutinized by the courts through the written opinions of one or more experts before authorizing suit to proceed. Id. Again, this requirement is not subject to avoidance “by filing a bare-bones pleading that asserts battery based on lack of consent” or “artful pleading.” Id. C. Patient Consent is Usually Inseparable From Rendition of Treatment For example, in Murphy, the Supreme Court of Texas held that an anesthesiologist’s administration of a general anesthetic—contrary to his alleged agreement to administer a local anesthetic—for a biopsy procedure stated a health care liability claim subject to the expert report requirement of the TMLA because the patient’s denying her consent nevertheless called into question “whether the administration of a general anesthetic under all the circumstances met the standard of care for anesthesiologists.” Id. Subsequently, in Loaisiga, the supreme court held that claims of assault by “offensive or provocative” contact brought by two female patients against their physician alleging that he had improperly and without their consent groped their breasts while examining them for unrelated flu and sinus symptoms nevertheless failed to qualify as claims for civil assault but were instead health care liability claims. 379 S.W.3d at 256–60. The supreme court explained that the plaintiffs needed expert testimony to conclusively rebut the presumption that his

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conduct was an inseparable part of his rendition of medical services. Id.; cf. T.C. v. Kayass, 535 S.W.3d 169, 170–76 (Tex. App.—Fort Worth 2017, no pet.) (holding mother’s claim against pediatrician alleging he sexually assaulted her in front of her children during an appointment was not health care liability claim subject to expert report requirement).

More particularly, in Hunsucker v. Fustok, our sister court in Houston held that the surgeon’s employment of an incision through the nipple to replace the patient’s breast implants, contrary to his alleged agreement to employ an incision underneath the breast, stated a health care liability claim requiring an expert report. 238 S.W.3d 421, 424–29 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see Stewart v. Civitas Senior Healthcare, LLC, No. 02-22-00388-CV, 2023 WL 2607762, at *8 (Tex. App.—Fort Worth Mar. 23, 2023, no pet.) (holding that alleged dental battery claim for extraction of patient’s teeth without consent qualified as health care liability claim subject to expert report requirement); Samson v. Small, No. 01-09-00451-CV, 2011 WL 1529729, at *1–4 (Tex. App.—Houston [1st Dist.] Feb. 24, 2011, no pet.) (holding that patient’s alleged medical battery claim for implantation of pedical screws and spinal rods during bilateral decompressive lumbar laminectomy and posterolateral fusion contrary to his consent only to a bone graft fusion was health care liability claim subject to expert report requirement).

Thus, a claim that a surgeon failed to perform a surgical procedure in the form or manner to which the patient contracted and consented has been held to state a

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health care liability claim subject to the expert report requirement when the issue of consent is inseparable from and integral to the surgery performed. See Mazow v. Peoples, No. 05-24-00350-CV, 2024 WL 5165185, at *7–10 (Tex. App.—Dallas Dec. 19, 2024, pet. denied) (holding that failure of ophthalmologist to perform bilateral lower eyelid blepharoplasty to which patient consented asserted health care liability claim); see also Ahmadi v. Moss, 530 S.W.3d 754, 756–58 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (holding that failure of plastic surgeon to include liposuction in breast reduction surgery to which patient contracted and consented stated health care liability claim).

III. Analysis

The Smiths argue that, in response to Dr. Grays’s motion to dismiss, they timely amended their pleadings to allege a cause of action for medical battery complaining that “Dr. Grays performed a substantially different procedure than the one to which [Kelvin] consented, failed to remove existing hernia mesh as promised, used an unauthorized surgical technique, caused the bursting of a testicle, and failed to disclose material risks including impotence.” In this manner, they seek to demonstrate that Dr. Grays performed the inguinal and umbilical hernia repair procedure without any consent whatsoever thereby excusing their failure to serve the expert report required to prosecute health care liability claims under the TMLA. This is the very splitting, splicing, and recasting foreclosed by Yamada and Loaisiga. Because the Smiths’ complaints concerning the surgical technique employed by Dr. Grays, his failure to remove the allegedly infected mesh, and the risks he failed to disclose are all

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alleged violations of the standard of care that were inseparable parts of the medical services he provided, the allegations of their amended pleading stated health care liability claims subject to the expert report requirement of the TMLA.

As an initial matter, a cause of action for personal injury arising from the alleged negligence of a physician in performing a surgical procedure to repair a hernia is a health care liability claim subject to the expert report requirement of the TMLA. See Rath v. Seimet, No. 02-25-00670-CV, 2026 WL 2275293, at *3–9 (Tex. App.—Fort Worth Aug. 6, 2026, no pet. h.) (upholding sufficiency of patient’s expert report for health care liability claim arising from surgeons’ alleged negligence in performing similar surgical procedure); Gale v. Chaudhry, No. 01-22-00833-CV, 2024 WL 3707572, at *1–6 (Tex. App.—Houston [1st Dist.] Aug. 8, 2024, pet. denied) (affirming dismissal of health care liability claim due to inadequate expert report demonstrating surgeon’s negligence in performing similar surgical procedure with similar medical injuries); Hendricks v. Perales, No. 05-16-01258-CV, 2017 WL 1075637, at *6–7 (Tex. App.—Dallas Mar. 21, 2017, no pet.) (holding that patient’s expert report, while meeting standard of care and breach elements for health care liability claim arising from hernia repair, failed to establish causal connection between breach and injuries sustained); Avila v. Jimenez, No. 13-12-00101-CV, 2013 WL 1500328, at *1–4 (Tex. App.—Corpus Christi–Edinburg Apr. 11, 2013, pet. denied) (affirming denial of surgeon’s motion to dismiss because expert report adequately demonstrated his negligence in performing surgical procedure resulting in patient’s death); Plemons v.

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Harris, No. 2-08-326-CV, 2009 WL 51290, at *1 (Tex. App.—Fort Worth Jan. 8, 2009, no pet.) (affirming denial of anesthesiologist’s motion to dismiss challenging adequacy of expert report demonstrating his negligence in providing anesthesia for surgical procedure resulting in patient’s death); Renaissance Surgical Ctrs.–S. Tex., L.L.P. v. Jimenez, No. 13-07-121-CV, 2008 WL 3971096, at *3–7 (Tex. App.—Corpus Christi–Edinburg Aug. 28, 2008, no pet.) (affirming denial of surgical center’s motion to dismiss because expert report adequately demonstrated negligence of certified registered nurse anesthetist in providing anesthesia for surgical procedure resulting in patient’s death underlying center’s alleged vicarious liability); Robinson, 2003 WL 22026593, at *1 (affirming dismissal of patient’s health care liability claims arising from post-operative injuries from hernia repair surgery); Buruato v. Mercy Hosp. of Laredo, 2 S.W.3d 385, 386–87 (Tex. App.—San Antonio 1999, pet. denied) (affirming dismissal of couple’s health care liability claims for failure to file expert report demonstrating negligence in treating husband’s hernia).

Although they recast their original claim for negligence complaining of the longitudinal incision allegedly employed by Dr. Grays and his failure to remove allegedly infected mesh as (1) performing a surgical technique to which Kelvin did not consent and (2) omitting a part of the procedure for which they contracted, i.e., the removal of the allegedly infected mesh, the manner in which Dr. Grays performed the surgery was an inseparable and integral part of the medical and surgical services he provided to Kelvin. Accordingly, these allegations state health care liability claims

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subject to the expert report requirement. See Murphy, 167 S.W.3d at 839 (holding that choice between local and general anesthesia was a matter of medical judgment requiring expert testimony); Hunsucker, 238 S.W.3d at 424–29 (holding that choice between incision sites was a matter of medical judgment requiring expert testimony).

Moreover, hernia repair is a List A surgical procedure for which the Panel has identified the following risks and hazards as the standard for disclosure for a surgeon to obtain a patient’s informed consent to the procedure:

(1) Injury to adjacent structures (bowel, bladder, blood vessels, nerves).

(2) Seroma (fluid) or hematoma (blood) collection at surgical site.

(3) Chronic pain.

(4) Testicular injury (for those of male sex).

(5) If mesh used, infection, failure, migration, or rejection of the mesh.

(6) Recurrence.9

9 Although the Panel has identified impotence and sexual dysfunction as material risks of certain spine surgeries, it has not done so for hernia repair procedures. See Earle, 998 S.W.2d at 891 n.40 (observing that “spine operation” is defined as a List A surgical procedure requiring written disclosure of certain enumerated risks, including “incontinence or impotence”); Bianco Brain & Spine, PLLC v. Jones, No. 02-23-00220-CV, 2025 WL 1141886, at *11 (Tex. App.—Fort Worth Apr. 17, 2025, pet. filed) (discussing informed consent form executed by patient before spinal fusion surgery listing “incontinence, impotence or impaired bowel function” as risks of procedure); Weidner v. Marlin, No. 04-96-00160-CV, 1997 WL 531129, at *5 (Tex. App.—San Antonio Aug. 29, 1997, no writ) (observing spinal

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25 Tex. Admin. Code § 602.3(m). As a matter of law, therefore, any cause of action predicated upon the lack or absence of consent is governed by the Panel’s List A designation and is, by definition, a health care liability claim subject to the expert report requirement of the TMLA. See Binur v. Jacobo, 135 S.W.3d 646, 654–57 (Tex. 2004) (holding that only risks and hazards identified by Panel for procedure included in List A are subject to disclosure to obtain patient’s informed consent).

For example, in Rush v. Honeycutt, our sister court in Corpus Christi–Edinburg held that the bilateral removal of portions of the patient’s fallopian tubes to which she did not consent during the course of a left inguinal hernia repair to which she did consent stated a health care liability claim. No. 13-05-579-CV, 2007 WL 1706255, at *3 (Tex. App.—Corpus Christi–Edinburg June 14, 2007, pet. denied). Although the patient pleaded the claim as one for medical battery, “all fallopian tube and ovarian surgery with or without hysterectomy, including removal and lysis of adhesions” was a List A procedure, and disclosure and consent was specifically required by the TMLA. Id. at *4. And although Honeycutt is a summary judgment case, it stands for the proposition that any cause of action for the total absence of consent arising from a surgical procedure that has been designated a List A procedure by the Panel is a health care liability claim subject to the expert report requirement, even if it alleges a medical

surgery was List A surgical procedure with six enumerated risks, including “incontinence or impotence”); see also 25 Tex. Admin. Code § 602.13(c)(3) (identifying “[i]ncontinence, impotence or impaired bowel function (loss of bowel/bladder control and/or sexual function)” as one of ten enumerated risks identified by Panel for “spine operation”).

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battery. See id. at *3; see also Meyer v. Strahan, 578 S.W.3d 165, 171–72 (Tex. App.— Tyler 2019, pet. denied) (holding that patient’s expert report sufficient to establish standard of care, breach, and causation elements of claim arising from left inguinal hernia repair alleging lack of consent to intraoperative addition of right inguinal hernia repair); Merckling v. Curtis, 911 S.W.2d 759, 768–70 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (holding no error in refusing jury questions on informed consent because patient failed to present any evidence that nerve entrapment was a material risk inherent in List B hernia repair procedure otherwise designated by the Panel as requiring no disclosure of risks); see also Arani, 2018 WL 5289932, at *1, *4–6 (holding that, even though patient alleged claim for medical battery arising from physician’s failure to obtain any consent to administration of “highly toxic drug” to treat a leukemia diagnosis of which he had not made her aware, patient’s expert report properly complied with Section 74.351(a) to avoid dismissal); Ranelle, 2009 WL 1176445, at *2–4 (holding that, even though patient alleged a claim for medical battery, because she consented to spine surgery that surgeon falsely represented to be necessary to address ruptured disc that did not exist, patient’s expert report sufficiently set forth standard of care, breach, and causation elements of health care liability claim to avoid dismissal).

Finally, as to the complaint that Dr. Grays failed to obtain Kelvin’s informed consent by disclosing the risks and hazards of the inguinal and umbilical hernia repair surgery, other than the risk of trauma to and loss of his testicle and the resulting

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impotence and sexual dysfunction, the Smiths identify no other risk of which Kelvin was not informed. And although they concede he consented to a surgical procedure to repair inguinal and umbilical hernias with removal of mesh, they do not allege that the consent form by which he consented failed to disclose the risks identified by the Panel for this List A procedure, which include testicular injury but exclude impotence and sexual dysfunction. See Earle, 998 S.W.2d at 891–92 (holding that consent obtained employing form and disclosures prescribed by Panel can only be invalidated by showing “invalidity of the consent form, such as by proof that the patient’s signature was forged, or that the patient lacked capacity to sign”).

In Fairfax v. Smith, our sister court in Amarillo affirmed the dismissal of a health care liability claim due to the pro se patient’s failure to serve an expert report. No. 07-09-0321-CV, 2010 WL 890161, at *1 (Tex. App.—Amarillo Mar. 12, 2010, no pet.). The patient’s allegations were remarkably similar to those of the Smiths, i.e., that the surgeon and medical center where he underwent surgery were negligent in performing hernia repair surgery on him “[(1)] by not disclosing all the risks and hazards of hernia surgery to him, [(2)] in ‘snatching out and removing [his] right testicle from its cord and scrotum, and [(3)] in performing testicle repair surgery without his consent.” Id. Although the patient did not allege a medical battery claim, he did argue that the expert report requirement did not apply to his allegations of simple negligence claims. Id. at *2. Considering the underlying nature of his claims to determine whether the acts and omissions of which he complained were an inseparable

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part of the rendition of health care services he received, the court concluded that they were, so the patient was required to serve an expert report under the TMLA. Id.

We reach the same conclusion regarding the acts and omissions alleged against Dr. Grays by the Smiths—the alleged manner of his performing the hernia repair itself and his alleged failure to disclose the risks the Smiths identify with the procedure—they are acts and omissions that are inseparable from the medical and surgical services he provided and their characterization as a medical battery is an impermissible recasting of health care liability claims. As such, the Smiths were required to serve Dr. Grays with an expert report in compliance with Section 74.351(a), and their undisputed failure to do so left the trial court without any discretion but to dismiss all their claims with prejudice. Tex. Civ. Prac. & Rem. Code § 74.351(b).

IV. Conclusion

Because the trial court did not abuse its discretion by misinterpreting or misapplying the TMLA in dismissing the health care liability claims alleged by the Smiths for their failure to serve Dr. Grays with an expert report, we affirm.

/s/ Wade Birdwell

Wade Birdwell

Justice

Delivered: August 27, 2026