Anz v. Glines

1

Reginald Anz, Appellant v. Dr. Chad Glines, D.C. of Genesis Back and Neck, Appellee

No. 02-22-00311-CV

Court of Appeals of Texas, Second District, Fort Worth

May 25, 2023

On Appeal from County Court at Law No. 3 Tarrant County, Texas Trial Court No. 2020-005824-3

Before Sudderth, C.J.; Birdwell and Bassel, JJ.

MEMORANDUM OPINION

Bonnie Sudderth Chief Justice

Appellant Reginald Anz appeals from the trial court's order dismissing his cause of action against Dr. Chad Glines, D.C of Genesis Back and Neck, pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code (the Texas Medical Liability Act). Because Anz's claims against Dr. Glines fall within the established bounds of a health care liability claim (HCLC), we will affirm. See Tex. Civ. Prac &Rem. Code Ann. § 74.001(a)(13).

I. BACKGROUND

After hearing radio advertisements that Dr. Glines could treat bulging spinal discs without surgery, Anz met with Dr. Glines to discuss treatment. According to Anz, Dr. Glines told him that he could fully eliminate Anz's bulging discs without surgery by using a DRX9000 machine. To receive the treatments, Anz financed the $3500 cost with a health care credit company. Anz completed the required treatments but claimed there was no improvement in his condition. Dr. Glines refused Anz's request for a refund.

Anz originally filed suit against Dr. Glines in Justice Court in Tarrant County and, after his claim was dismissed, appealed to the County Court at Law. In that court, Anz brought a claim for fraudulent inducement and stated that, contrary to the advertisements and assertions made by Dr. Glines, the treatments did not work to reduce his bulging discs. Anz also filed a trial brief that alleged a claim for deceptive trade practices under Chapter 17 of the Texas Business and Commerce Code, but he did not amend his petition to include a new cause of action.

Dr. Glines filed a motion to dismiss based upon the Texas Medical Liability Act-specifically alleging that Anz had filed an HCLC and had failed to serve on Dr. Glines a qualified expert report. See Tex. Civ. Prac. &Rem. Code Ann. § 74.351. After a hearing on Dr. Glines's motion, the trial court entered an order dismissing Anz's cause of action.

II. GOVERNING LAW AND STANDARD OF REVIEW

An HCLC is a "cause of action [(1)] against a health care provider^[1] or physician [(2)] for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care^[2], or safety or professional or administrative services directly related to health care, [(3)] 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); see T.C. v. Kayass, 535 S.W.3d 169, 172 (Tex. App.-Fort Worth 2017, no pet.). Anz's argument on appeal focuses on the second element: whether his claims are "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." Tex. Civ. Prac. &Rem. Code Ann. § 74.001(a)(13).

When analyzing this second element, we focus on "the facts underlying the claim, not the form of, or artfully[ ]phrased language in, the plaintiff's pleadings describing the facts or legal theories asserted." T.C., 535 S.W.3d at 173; see Baylor Scott &White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019) (noting that "we consider the underlying nature of the plaintiff s claim rather than its label" as "a party cannot avoid [the Medical Liability Act's] requirements and limitations through artful pleading"). Whether a claim qualifies as an HCLC turns on its "underlying nature," "essence," or "gravamen." Baylor Scott &White, 575 S.W.3d at 363-64; Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 394 (Tex. 2011); Yamada v. Friend., 335 S.W.3d 192, 197 (Tex. 2010); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005).

"We also consider whether expert testimony is necessary to show breach of an applicable standard of care, whether the alleged act involves medical judgment related to the patient's care or treatment, and whether a specialized standard in the healthcare community applies." Drs. Calabria-Ellis, P.C. v. Ho, No. 02-16-00424-CV, 2017 WL 3821872, at *3 (Tex. App.-Fort Worth Aug. 31, 2017, no pet.) (mem. op.). Not all HCLCs require expert testimony, but "if 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).

When a claim is asserted against a health care provider and is based on facts implicating the provider's conduct during the course of the patient's care, treatment, or confinement, a rebuttable presumption arises that the claim qualifies as an HCLC. Baylor Scott &White, 575 S.W.3d at 363; Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012). Because Anz's claim implicated Dr. Glines's conduct during the course of Anz's care, he bore the burden to rebut the presumption with evidence that his claim was not an HCLC. See Baylor Scott &White, 575 S.W.3d at 363.

Whether a cause of action qualifies as an HCLC is a question of law and we review the trial court's order dismissing Anz's cause of action de novo. Id.

III. DISCUSSION

Anz contends in his brief that there are only two questions before this court- (1) "are there any circumstances where the Chapter 17, Deceptive Trade Practices of the Business and Commerce Code can EVER override the Chapter 74 Texas Medical Liability Act," and (2) "does this case rise to that level?" To address Anz's questions, we must first determine whether his claim is an HCLC. Anz argues that the trial court erred by finding his claim is an HCLC and dismissing his claim for failure to serve an expert report on Dr. Glines. He contends that his claim is not an HCLC because: (1) he did not suffer an injury, (2) he is not asserting Dr. Glines was negligent in performing the treatment, and (3) he does not allege a breach of the standard of care.

A. Injury

Anz argues that because he suffered no injury and his claims are only monetary, his claim cannot be considered an HCLC. Health care liability claim means a cause of action against a health care provider that "results in injury 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 Ann. § 74.001(a)(13). The injury requirement is not limited to bodily or physical injuries. Bay/or Scott &White, 575 S.W.3d at 364 n. 22. Anz did not have to suffer a physical injury for his claim to be an HCLC.

B. Negligence

Anz next argues that his claim is not an HCLC because he does not assert that Dr. Glines was "negligent in performing his duties" but rather that Dr. Glines fraudulently misrepresented to him that his treatments with the DRX9000 machine would eliminate his bulging discs. According to Anz, he contends that Dr. Glines operated the DRX9000 correctly, but the machine did not work as claimed.

Anz went to Dr. Glines for treatment to eliminate or reduce his bulging discs. Anz said he had been told by surgeons that, left untreated, the bulging discs could lead to paralysis. Dr. Glines provided treatment for Anz's bulging discs, and Anz claims that the treatment was not successful.

That Anz may have sought treatment from Dr. Glines because of advertising is of no consequence. The gravamen of his complaint is that he received medical treatment from Dr. Glines and that the treatment he received did not improve his medical condition. Even though he states that he is not arguing negligence on the part of Dr. Glines, the efficacy of the treatment he received from Dr. Glines forms the basis of Anz's claim. Tex. Civ. Prac. &Rem. Code Ann. § 74.001(a)(13); Bay/or Scott &White, 575 S.W.3d at 364. Anz cannot avoid Chapter 74 requirements by labeling his claim as fraudulent inducement or deceptive trade practices. Id. at 363.

Furthermore, to prove that the treatment provided by Dr. Glines was unsuccessful, Anz relies upon MRI reports showing the condition of his neck both before and after the treatment. According to Anz, the post-treatment MRI showed no improvement in his neck condition. But Anz admits that his proof requires the evaluation of those MRIs-an evaluation requiring expert medical or health care testimony. See Ononiwu v. Eisenbach, 624 S.W.3d 37, 44 (Tex. App.-Houston [1^stDist.] 2021, no pet.) (holding no error in excluding a chiropractor's expert testimony when the chiropractor lacked requisite training and experience to read and interpret MRI films and reports). And, as the Supreme Court has instructed us, "if 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., 371 S.W.3d at 182.

C. Standard of Care

Finally Anz argues that his claim is not an HCLC because...