Opinion
No. 05-16-00527-CV
03-20-2017
RODNEY ALSUP, Appellant v. HICKORY TRAIL HOSPITAL AND ANGELA J. DEVINNEY, LPC, Appellees
On Appeal from the 298th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-15-04020
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Stoddart
Opinion by Justice Myers
Rodney Alsup appeals the trial court's judgment dismissing his claims against Hickory Trail Hospital and Angela J. Devinney, LPC. Appellant brings eight issues contending the trial court erred (a) by dismissing appellant's claims for failing to file a proper expert report against appellees, who are health care providers, as required by section 74.351 of the Civil Practice and Remedies Code and (b) by failing to provide appellant with a thirty-day extension to cure any deficiencies in the expert report of Dr. Dunn. We affirm the trial court's judgment in part and reverse in part, and we remand the cause to the trial court for further proceedings.
BACKGROUND
Appellant alleged that on August 27, 2014, his family took him to a hospital emergency room because he was "suffering from a nervous condition and dehydration." Devinney, a licensed professional counselor and an employee of Hickory Trail, a for-profit mental-health hospital, talked to appellant and his family about Alsup voluntarily admitting himself to Hickory Trail. Appellant alleged Devinney told them:
The "Physician Documentation" from the hospital emergency-room physician states appellant was a walk-in patient complaining of suicidal ideation. The "ROS" section of the document states appellant was "Positive for depression, suicidal ideation. Negative for delusions, drug dependence, alcohol dependence, homicidal ideation, suicide gesture." Appellant's petition does not mention his suicidal ideation. The Physician Documentation does not mention "nervous condition" or dehydration.
1. appellant would not receive psychiatric help for six months if he did not go immediately to Hickory Trail;Appellant and his family believed these representations, and appellant was handcuffed and taken to Hickory Trail in a sheriff's vehicle.
2. appellant would be admitted involuntarily to Hickory Trail if he did not agree to go there voluntarily;
3. appellant could leave Hickory Trail at any time if he voluntarily admitted himself;
4. appellant and his wife could not call a lawyer or judge for advice;
5. because appellant became agitated when he was not allowed to contact an attorney, his transportation in a sheriff's vehicle to Hickory Trail would be involuntary but his admission to Hickory Trail would be voluntary; and
6. Hickory Trail had many patients dealing with the same mental issues as appellant, so he would get well much quicker if he went to Hickory Trail.
When he arrived at Hickory Trail, appellant asked to see a lawyer and to call a family friend who was a judge in Ellis County. Hickory Trail's employees denied appellant's request, and they placed him in a hot holding room for several hours. Appellant asked for water, but that was also denied. Appellant's family arrived at Hickory Trail a few hours after appellant and found him dazed and sweaty in the hot holding room. They demanded appellant's release, but a Hickory Trail representative refused, telling them appellant was at the hospital based on a judge's order and that he was a ward of the state.
The next day, the family contacted an Ellis County official and learned that appellant had not been involuntarily committed by a judge. They continued to try to obtain appellant's release. On August 29, 2014, they went to Hickory Trail with an attorney, who obtained appellant's release.
Appellant filed suit against appellees on April 1, 2015 alleging they falsely imprisoned him, fraudulently induced him to consent to admission at Hickory Trail, made fraudulent and negligent misrepresentations, and violated the Texas Patient's Bill of Rights. Appellant also alleged that Hickory Trail committed medical malpractice and that Devinney violated the Texas Licensed Professional Counselor Code of Ethics. Appellant alleged as damages (1) past and future lost wages, (2) past and future medical and psychological expenses needed to recover from appellees' conduct, (3) mental anguish and emotional distress, and (4) the amount paid or owed to Hickory Trail and its providers. Besides actual damages, appellant also demanded exemplary damages and his attorney's fees.
Appellant served appellees with an expert report prepared by Mitchell H. Dunn, M.D. Appellees timely filed objections to the report, and they moved for dismissal of the case under section 74.351 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West Supp. 2016). The parties filed responses and replies to the motion for dismissal. In one of appellees' filings, there were documents attached containing sensitive data that appellees' attorneys did not redact before electronically filing the document. See TEX. R. CIV. P. 21c(a), (c). Appellant then amended his petition, adding a cause of action for invasion of privacy alleged to have resulted from the electronic filing of the document and its attachments. Appellant stated in his response to appellees' motion to dismiss that if the court found Dr. Dunn's report deficient, then appellant requested an additional thirty days to cure the deficiencies pursuant to section 74.351(c). See CIV. PRAC. § 74.351(c).
The trial court granted appellees' motion to dismiss without giving appellant an opportunity to cure the report. The trial court stated in the order, "Plaintiff failed to make a 'good faith effort' at compliance with Texas Civil Practice and Remedies Code Sec. 74.351, and as such, this matter must be dismissed with prejudice." Appellant then renewed his request for thirty days to cure the deficiencies in his report. The court denied the request. The court's final judgment dismissed all of appellant's causes of action with prejudice and ordered appellant to pay appellees $41,353.39 for their attorney's fees.
While this appeal was pending, appellant declared bankruptcy, and his liability for the $41,353.39 for appellees' attorney's fees was discharged in the bankruptcy proceeding.
EXPERT-REPORT REQUIREMENT
Section 74.351 of the Civil Practice & Remedies Code provides that a plaintiff bringing a health care liability claim must serve defendants who are physicians or health care providers with an expert report within 120 days of their answers. CIV. PRAC. § 74.351(a). The report must provide the expert's opinions regarding the standard of care, the manner in which the care rendered by the defendant failed to meet the standard, and the causal relationship between that failure and the injury, harm, or damages caused. Id. § 74.351(r)(6). A defendant may file objections to the report within twenty-one days after the report is served or the defendant files its answer. Id. § 74.351(a). Any objections to the expert report not filed within that time are waived. Id. If an expert report is not timely filed, the trial court must, on the defendant's motion, dismiss the health care liability claims with prejudice and award the defendant its reasonable attorney's fees and costs of court. Id. § 74.351(b). If the plaintiff serves an expert report that "does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)," then the court must grant a motion challenging the adequacy of the report. Id. § 74.351(l). The court may grant a party that serves a deficient expert report one 30-day extension to cure the deficiencies. Id. § 74.315(c).
For an expert report to "represent an objective good faith effort to comply with the definition of an expert report," the report must provide enough information to inform the defendant of the specific conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). If a report omits any of the statutory elements of section 74.351(r)6), it cannot be a good faith effort. Id. In determining whether the expert report represents a good faith effort to comply with the statutory requirements, the court's inquiry is limited to the four corners of the report. Sanchez v. Martin, 378 S.W.3d 581, 588 (Tex. 2012). A court may not "fill gaps" in an expert report by drawing inferences or guessing what the expert likely meant or intended. Patterson v. Ortiz, 412 S.W.3d 833, 835-36 (Tex. App.—Dallas 2013, no pet.).
One of the mandatory elements of a good faith report is an explanation of the causal relationship between a failure to meet the applicable standard of care and the injury, harm, or damages claimed. CIV. PRAC. § 74.351(r)(6). "A causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm and that, absent this act or omission, the harm would not have occurred." Nexion Health at Lancaster, Inc. v. Wells, No. 05-16-00018-CV, 2016 WL 4010834, at *3 (Tex. App.—Dallas July 25, 2016, no pet.) (mem. op.). "An expert report must explain 'to a reasonable degree [ . . . ] how and why the [breach of the standard of care] caused the injury.'" Id. (quoting Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010)). The report "must explain the basis of [the expert's] statements to link his conclusions to the facts." Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1989)). "An expert's mere conclusion that "in medical probability" one event caused another differs little, without an explanation tying the conclusions to the facts, from an ipse dixit, which the supreme court has consistently criticized." Nexion, 2016 WL 4010834, at *3 (citing Jelinek, 328 S.W.3d at 539).
STANDARD OF REVIEW
We review a trial court's order on the sufficiency of an experts report for an abuse of discretion. Palacios, 46 S.W.3d at 877. A court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
DR. DUNN'S EXPERT REPORT
Dr. Dunn stated in his expert report:
Because Dr. Dunn's qualifications to provide an expert report are not in dispute, we have omitted them from our quotation of his report.
1. My name is Mitchell H. Dunn, M.D. I am over the age of 21 and legally competent to render this affidavit. I was asked to consult concerning Rodney Alsup's admission and treatment at Hickory Trail Hospital from August 27, 2014 through August 29, 2014. . . .
2. In order to arrive at my opinions regarding this matter, I reviewed the following documents:
Baylor Hospital Records—Waxahachie, August 27, 2014
Hickory Trail Hospital Records—August 27-29, 2014
Statements from Sharon Alsup (wife) and Chad Alsup (son)
3. I interviewed Rodney Alsup for approximately two hours on March 20, 2014. I performed a social history and reviewed his history of mental health treatment. We then discussed in depth his experience at Baylor Medical Center—Waxahachie, and his experience at Hickory Trail Hospital.
4. I have significant concern about the alleged statements made by Hickory Trail Hospital employee Angela Devanney [sic], LPC, while she was evaluating Mr. Alsup at Baylor. Mr. Alsup and his family report that Ms. Devanney informed them that:
a. Mr. Alsup would not be able to see a psychiatrist "for six months" unless he was admitted to the hospital.
b. If Mr. Alsup voluntarily admitted himself to the hospital and then decided that he wanted to leave, that he would immediately be allowed to do so.
c. Mr. Alsup could not consult with an attorney about his situation.
5. Such statements, if made, were simply untrue, and constituted a deviation from the standard of care for a Licensed Professional Counselor and Hickory Trail Hospital seeking to admit a patient. The standard of care for admitting patients to mental health hospital is honest communication concerning a patient's legal rights, treatment, housing, and ability to leave the facility.
6. Tricking or deceiving patients causes distrust, anxiety, agitation, and resentments which impede their treatment and recovery. Mr. Alsup's belief that he was denied his rights and lied to by Hickory Trail is well documented in his medical records. On August 28, 2014, a handwritten Progress Note shows Rodney stating "I was lied to" and demanding to contact his attorney and asking that "it be documented that he was denied the right to use the phone." The same morning at 5:20 AM, Progress Notes indicates "PT say he is trying to get in touch with his lawyer." Upon his release, Mr. Alsup wrote on a Patient Questionnaire: "I was told by a representative of this company I couldn't see a doctor for 6 months if I didn't come here. My family physician has appointments scheduled."
7. A probable patient response to being "lied to" is anger, defensiveness, and rejection of treatment, and that is certainly documented in Mr. Alsup's Hickory Trail hospital records. If Angela Denanney [sic] made the alleged statements, it is my opinion, to a reasonable degree of medical certainty, that those statements caused Rodney distrust, anxiety, agitation and resentment which impeded his treatment and recovery. Further, to a reasonable degree of medical certainty, the misrepresentations negatively impacted the potential effectiveness of Hickory Trail as a mental health hospital for Mr. Alsup.
8. In addition, I have concerns about Mr. Alsup's reported treatment once he arrived at Hickory Trail Hospital. Again, it is alleged that he was refused the opportunity to call an attorney. Though hospitals sometimes have rules regarding the access to phones, whether being admitted on a voluntary or an involuntary basis, patients should always have the opportunity to call an attorney. Violation of this right is a violation of the basic rights given to patients and therefore a deviation from the standard of care. Consultation with an attorney is considered an essential right in either voluntary or involuntary admissions.
9. Mr. Alsup and his family allege that Mr. Alsup was denied water for several hours while being kept in a hot waiting room behind a locked door at Hickory Trail Hospital. Denial of such a basic need as water to a patient who is already in severe emotional distress is a gross violation of the standard of care and, to a reasonable degree of medical certainty, was a contributing cause to Mr. Alsup's sweating, anxiety, and discomfort reported by the Alsup family. Further,
denial of water added to distrust, anxiety, agitation and resentment referenced in paragraph 6, which impeded Mr. Alsup's recovery and negatively impacted the effectiveness of Hickory Trail Hospital as a treatment facility.
Appellees objected to the expert report, stating: "Dr. Dunn's report is nothing more than a series of conclusory statements, unsupported by factual data. Further, it fails entirely to identify a standard of care, how that standard of care was breached by a defendant, and how that particular breach caused Plaintiff's harm."
MEDICAL MALPRACTICE
In his first issue, appellant contends the trial court abused its discretion by dismissing appellant's medical malpractice claim for failing to make a good faith effort to comply with the expert-report requirements of section 74.351. In this issue, we discuss whether the trial court committed an abuse of discretion by sustaining appellant's objections to the adequacy of Dr. Dunn's expert report. We discuss in appellant's third issue whether the trial court abused its discretion by dismissing appellant's causes of action.
In this cause of action, appellant alleged Hickory Trail breached its duty to provide an acceptable level of healthcare by making the alleged false representations, denying appellant the right to an attorney, and denying him water.
Concerning the allegations of denial of appellant's requests to contact an attorney, Dr. Dunn's report does not state that appellant suffered any harm from appellees' refusal to allow appellant to contact an attorney. Therefore, the report is deficient and is not a good-faith effort for this alleged act of malpractice.
Concerning the allegations that appellees lied to appellant, the report states,
[I]t is my opinion, to a reasonable degree of medical certainty, that those statements caused Rodney distrust, anxiety, agitation and resentment which impeded his treatment and recovery. Further, to a reasonable degree of medical certainty, the misrepresentations negatively impacted the potential effectiveness of Hickory Trail as a mental health hospital for Mr. Alsup.To establish causation, the report must show more than that a negligent act was followed by a particular outcome; the report must show that the outcome would not have occurred absent the act. See Nexion, 2016 WL 4010834, at *3 (causal relationship requires showing that, absent the negligent act or omission, the harm would not have occurred). Dr. Dunn's report does not explain how the distrust, anxiety, agitation, and resentment from appellees' lies impeded appellant's recovery, nor does he explain how appellant's treatment and recovery would have differed had appellees not lied to appellant. Nor does Dr. Dunn explain how Hickory Trail would have been more effective as a mental health hospital for appellant if appellees had not lied to appellant and how its being more effective would have led to a different result. Dr. Dunn's report does not establish causation from appellees' lies. See Bowie Mem. Hosp., 79 S.W.3d at 52 (expert report must explain the basis of the expert's statements and link conclusions to facts); Nexion, 2016 WL 4010834, at *3 (statement that one event caused another without explanation tying the conclusion to the facts is conclusory and ipse dixit). Thus, the report is deficient and is not a good-faith effort for this alleged act of malpractice.
Concerning the allegations that Hickory Trail committed malpractice by denying appellant's request for water when he first arrived at Hickory Trail and was being kept in a hot room, Dr. Dunn's report states the denial of water "was a contributing cause to Mr. Alsup's sweating, anxiety, and discomfort reported by the Alsup family. Further, denial of water added to distrust, anxiety, agitation and resentment . . . , which impeded Mr. Alsup's recovery and negatively impacted the effectiveness of Hickory Trail Hospital as a treatment facility." At the time appellant was denied water, he was in a hot room "in severe emotional distress." Dr. Dunn does not explain in his report that appellant's sweating, anxiety, and discomfort would have been lessened by providing him water. Nor does the report state that appellant's recovery would have been different if he had been provided water as he requested. Nor does the report explain how Hickory Trail would have been more effective as a mental health hospital for appellant if it had provided appellant with water and how its being more effective would have led to a different result. Dr. Dunn's report concerning causation of appellant's sweating, anxiety, and discomfort from the denial of water is conclusory and does not establish causation. Therefore, the report is deficient and is not a good-faith effort for this alleged act of malpractice.
Dr. Dunn's report was deficient for failing to show the causal relationship between appellees' failure to meet the standards of care and appellant's injury. We conclude the trial court did not abuse its discretion by granting appellees' motion challenging the adequacy of Dr. Dunn's expert report because the report did not constitute a good-faith effort to comply with the definition of an expert report in 74.351(r)(6). See CIV. PRAC. § 74.351(l). We overrule appellant's first issue.
Because we conclude that Dr. Dunn's report fails to meet the requirement of explaining the causal relationship between appellees' failure to meet the applicable standard of care and appellant's injury, harm, or damages claimed, we do not address whether any of appellees' other objections to the report were meritorious.
WAIVER OF OBJECTIONS TO REPORT
In his second issue, appellant contends the trial court abused its discretion by failing to find that appellees waived their objections to Dr. Dunn's opinion regarding the withholding of water. Appellees' objections to the report begins with appellees identifying themselves as the parties filing the objections to the report and stating that the objections were timely filed. Appellees then state in the second paragraph,
Appellant's issue is, "The trial court misapplied the law, and abused its discretion, in failing to find that Defendants waived their objection to two theories of liability set forth in Dr. Dunn's report." Appellant then argues that appellees waived their objections to the denial-of-water theory of liability. Appellant does not argue that appellees waived their objections to appellant's denial-of-an-attorney theory of liability.
In this matter, Plaintiff has filed suit against Hickory Trail Hospital and Devinney, asserting healthcare liability claims in their care and treatment rendered to Rodney Alsup. The summary of Plaintiff's claims are that Devinney made allegedly false statements during her evaluation of Mr. Alsup to determine the appropriateness of inpatient psychiatric treatment. See Plaintiff's Original Petition.Appellant asserts that appellees' failure to mention the denial-of-water theory in this paragraph, or to mention it specifically elsewhere in the document, meant appellees waived their objections to the report concerning that theory of liability. We disagree. This portion of the document was an introductory section intended to inform the court about the matter before it. Appellees' "summary of Plaintiff's claims" was a summary (albeit inaccurate) of appellant's petition as shown by appellees' citation to the petition. The statement was not part of appellees' objections to the report. Appellees actual objections were later in the document where they stated that Dr. Dunn's report failed to provide a factual context for his opinions, did not state what appellees should have done differently, and that the report
is nothing more than a series of conclusory statements, unsupported by factual data. Further, it fails to identify a standard of care, how that standard of care was breached by a defendant, and how that particular breach caused Plaintiff's harm. Dr. Dunn's failure to identify specifically what Defendants should have done differently must result in the Court's determination that Dr. Dunn's report is inadequate.These objections identified the deficiencies in the report. Appellees did not limit their objections to appellant's causes of action based on Devinney's misrepresentations. These objections applied to appellant's claims for failure to provide water as much as they applied to appellant's claims for misrepresentations.
We conclude the trial court did not err by failing to find that appellees waived their objections to Dr. Dunn's opinion regarding the withholding of water. We overrule appellant's second issue.
THIRTY-DAY EXTENSION
In his third issue, appellant contends the trial court abused its discretion by denying his request for a thirty-day extension of time to cure any deficiencies in Dr. Dunn's report. Section 74.351(c) provides, "If an expert report has not been served within the period specified by Subsection (a) because the elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency." CIV. PRAC. § 74.351(c). Appellant requested a thirty-day extension to cure any deficiencies in Dr. Dunn's report, but the trial court denied the request.
If an expert report is absent rather than merely deficient, the trial court may not grant an extension under section 74.351(c). See Ortiz v. Patterson, 378 S.W.3d 667, 676 (Tex. App.—Dallas 2012, no pet.). A report is not "absent" if it (a) is served by the statutory deadline, (b) contains the opinion of an individual with expertise that the claim has merit, and (c) implicates the defendant's conduct. Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011). If the report meets this minimal standard, then "[t]he trial court should err on the side of granting the additional time and must grant it if the deficiencies are curable." Id. at 549 (footnotes omitted) (emphasis added). If Dunn's report meets these requirements and if the deficiencies were curable, then the trial court was required to grant the thirty-day extension.
Appellees' argue the report must meet the requirement of being a "good faith effort" to qualify for the thirty-day extension. Their position is based on a selective quotation from Loaisiga v. Cerda:
To qualify as an objective good faith effort the report must (1) inform the defendant of the specific conduct the plaintiff questions, and (2) provide a basis for the trial court to conclude that the plaintiff's claims have merit. Scoresby, 346 S.W.3d at 556 (citing Palacios, 46 S.W.3d at 879). . . . But if a report does not meet the standard set in Scoresby, it is not an expert report under the statute, and the trial court must dismiss the plaintiff's claims if the defendant has properly moved for dismissal. TEX. CIV. PRAC. & REM. CODE § 74.351(b).Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012). The ellipsis appellees inserted is in place of these two sentences:
A report meets the minimum qualifications for an expert report under the statute "if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant's conduct is implicated." Id. at 557. If a report meets these qualifications but is deficient, and an extension to cure is requested, the trial court may grant one thirty-day extension to cure the deficiencies. See TEX. CIV. PRAC. & REM. CODE § 74.351(c).When these two sentences are put in place of the ellipsis, it becomes apparent that Loaisiga was quoting two different standards from Scoresby. The first is the standard for a "good faith effort" to comply with the definition of an expert report in § 74.351(r)(6). See CIV. PRAC. § 74.351(l). The requirement of a "good faith effort" is for determining whether the court should grant a challenge to the adequacy of an expert report. Id. The second standard, the one omitted by appellees in their quotation from Loaisiga, is the relevant standard under this issue, namely, the standard for determining whether a deficient report is subject to a thirty-day extension for curing the deficiencies. That standard is not whether there was a good-faith effort; instead, it is whether the report "contains the opinion of an individual with expertise that the claim has merit, and if the defendant's conduct is implicated." Scoresby, 346 S.W.3d at 549. This latter standard was the one "set in Scoresby"; the standard for a "good faith effort" was set forth in Palacios and quoted in Scoresby.
Appellant timely served appellees with the expert report. Appellees have not challenged Dr. Dunn's qualifications to be an expert in this case; therefore, we consider whether the report "contains a statement of opinion . . . indicating that the claim asserted by the plaintiff against the defendant has merit" and implicates appellees' conduct. Dr. Dunn's report describes appellees' conduct—the misrepresentations, the denial of contact with an attorney, and the denial of water—and stated that this conduct breached the standards of care. He opined that the misrepresentations and the denial of water harmed appellant by interfering with his recovery. Although Dr. Dunn's report did not say that the denial of appellant's right to contact an attorney harmed him, he did say in the report that "[v]iolation of this right is a violation of the basic rights given to patients and therefore a deviation from the standard of care. Consultation with an attorney is considered an essential right in either voluntary or involuntary admissions." Dr. Dunn's report, although deficient, meets the threshold test in Scoresby for an expert report being present. See id. at 557.
Appellant had to serve appellees with Dr. Dunn's report within 120 days after appellees filed their original answers. See CIV. PRAC. 74.351(a). The record does not show the date appellant served appellees with Dr. Dunn's report. However, appellees filed their objections to the report 20 days after Hickory Trail filed its original answer and 12 days after Devinney filed her original answer. Therefore, appellant must have served appellees with the expert report within 120 days of appellees' original answers.
Next, we must consider whether the deficiencies could be cured. Appellees' objections to the report were that it "failed to provide any summary of events whatsoever"; Dunn's opinions "are without any context for the Court to determine the merits of the claim"; the report "is nothing more than a series of conclusory statements, unsupported by factual data"; the report "fails entirely to identify a standard of care, how that standard of care was breached by a defendant, and how that particular breach caused Plaintiff's harm"; and the report fails "to identify specifically what Defendants should have done differently." Appellant could cure all of these alleged deficiencies within the thirty-day extension period by submitting a more detailed, non-conclusory expert report.
Appellees assert appellant is not entitled to a thirty-day extension because the report omits important facts, including that appellant presented to the emergency room with suicidal ideation, that he was involuntarily committed, and that he refused treatment. Appellees assert the report failed to meet the minimum standard because it:
was nothing more than his opinions about a hypothetical scenario—it was in no way a report of his opinions regarding an accurate representation of the circumstances the defendants found themselves in while caring for Mr. Alsup. Dr. Dunn's "report" makes no mention of how the defendants should care for a suicidal patient who is refusing treatment, which was the actual situation clearly presented in the records. Instead, Dr. Dunn's "report" sought to mask or mislead the reader from knowing the true nature of the case.Appellees also assert that the report did not state how or why tricking or deceiving patients impedes their treatment and recovery or explain what Dr. Dunn meant by stating that appellant's treatment and recovery were impaired. These assertions point out potential deficiencies in the report, but they do not prevent the report from meeting the minimal requirement of containing a statement of opinion from an expert that the plaintiff's claim has merit and implicating the defendant's conduct. Appellees do not explain why all the deficiencies they assert could not be cured. When the deficiencies in an expert report can be cured within thirty days, the trial court must grant a motion requesting the extension under section 74.351(c). Id. at 549, 554.
We conclude the trial court abused its discretion by dismissing appellant's health care liability claims without granting his request for a thirty-day extension under section 74.351(c) permitting him an opportunity to cure the deficiencies in Dr. Dunn's expert report. We sustain appellant's third issue.
EXPERT REPORT OF DR. SKINNER
In his fourth issue, appellant contends the trial court erred by not considering the affidavit of John R. Skinner Jr., Ph.D. After the trial court granted appellees' motion to dismiss, appellant filed a motion for reconsideration and asked the court to consider Dr. Skinner's report in conjunction with Dr. Dunn's report and conclude that they met the expert-report requirements of section 74.351.
A deficiency in Dr. Dunn's report was that it failed to meet the causation requirements for an expert report. For Dr. Skinner's report to cure the deficiencies of Dr. Dunn's report, Dr. Skinner had to be qualified to address causation. Appellees objected to Dr. Skinner's report on several grounds, including that Dr. Skinner was not qualified to testify as an expert on causation because he was not a physician. Section 74.351 defines "expert" for purposes of an expert report differently for claims against different types of health care providers. The section also defines "expert" differently for experts reporting on the standard of care and whether it was breached versus experts reporting on causation of damages from the breach of the standard of care. For purposes of an expert report discussing causation in a suit against a health care provider who is not a dentist or podiatrist, "'Expert' means . . . (C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence . . . ." CIV. PRAC. § 74.351(r)(5)(C). Because Dr. Skinner is not a physician, he is not qualified under section 74.351(r)(5)(C) to offer an opinion on the causal relationship between appellees' breaches of the standards of care and appellant's harm. See Rusk State Hosp. v. Black, 379 S.W.3d 283, 292 (Tex. App.—Tyler 2010) (psychologist qualified to give expert report on hospital's standard of care and breach by allowing patient access to plastic bag, but psychologist was not qualified under section 74.351(r)(5)(C) to give expert report on the causal relationship between the breach and the patient's death by asphyxiation), aff'd, 392 S.W.3d 88 (Tex. 2012).
Appellant argues that although Dr. Skinner is not a physician, he meets the statutory qualifications for an expert witness at trial, citing sections 74.401(d) and 74.402(d). Those provisions concern the qualifications of experts to testify at trial about whether the defendant physician or health care provider departed from accepted standards of medical or health care. See CIV. PRAC. §§ 74.401, .402 (West 2011). Because these provisions do not address an expert's qualifications to testify about causation, they are not relevant. Section 74.403 addresses whether a witness is qualified as an expert to testify about causation:
Except as provided by Subsections (b) [claims against dentists] and (c) [claims against podiatrists], in a suit involving a health care liability claim against a physician or health care provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.Id. § 74.403(a) (emphasis added). This statute makes clear that an expert witness testifying about causation must be a physician unless the defendant is a dentist or podiatrist. Dr. Skinner did not meet the statutory qualifications for an expert witness testifying about causation.
Appellant also cites Packard v. Guerra, 252 S.W.3d 511 (Tex. App.—Houston [14th Dist.] 2008, pet. denied), in which a corporate attorney who was not a physician or heath care provider was allowed to provide an expert report about which entity a physician was employed by, whether various agreements and stock transfers showed that another entity controlled the entity that employed the physician, the legal effect of limited partnerships and general partners, and the responsibilities of officers and directors of corporations. The trial court and the court of appeals concluded the attorney was qualified as an expert under sections 74.401 and .402 because paragraph (d) of those sections allows a person who is not a physician or health care provider to give expert testimony about the breach of the standard of care "if, under the circumstances, the court determines that there is [a] good reason to admit the expert's testimony." Id. at 528-29; see CIV. PRAC. §§ 74.401(d), .402(d). The trial court and the court of appeals agreed there was good reason to permit the attorney to provide the report because the information provided by the attorney "would not be within the experience of a typical physician otherwise qualified to render a report in this case." Packard, 252 S.W.3d at 529. Section 74.403 does not contain a similar provision allowing a non-physician to provide an opinion about the causal relationship between a defendant's departure from the standard of care and the plaintiff's injury, harm, or damages. See CIV. PRAC. § 74.403. Packard and its reasoning are not applicable to this case. Appellant does not cite any case where a psychologist was permitted to present an expert report under section 74.351 on causation.
Because Dr. Skinner was not a physician, he was not qualified to provide an expert report on the causal relationship between appellees' breaches of the standards of care and appellant's injury, harm, or damages. We overrule appellant's fourth issue.
PATIENT'S BILL OF RIGHTS
In his fifth issue, appellant contends the trial court abused its discretion by dismissing appellant's claim under the Patient's Bill of Rights for failure to comply with the expert-report requirements.
Texas has a Patient's Bill of Rights. Its provisions include:
The Patient's Bill of Rights is on the website of Texas Department of State Health Services, http://www.dshs.texas.gov/mhsa-rights/?terms=patient%27s%20bill%20of%20rights (last updated Nov. 8, 2016).
Basic Rights for All Patients
. . . .
9. You have the right to talk and write to people outside the hospital. You have the right to have visitors in private, make private phone calls, and send and receive sealed and uncensored mail. In no case may your right to contact or be contacted by an attorney, the department, the courts, or the state attorney general be limited. This right includes a prohibition on barriers to communication imposed by a hospital, such as:
. . . .
• Limited access to telephones . . . .
Emergency Detention—Special Rights for People Brought to the Hospital Against Their Will
. . . .
2. You have the right to call a lawyer. The people talking to you must help you call a lawyer if you ask.A mental health facility that violates a provision of the Patient's Bill of Rights is liable to a person receiving care at the facility who is harmed by the violation. TEX. HEALTH & SAFETY CODE ANN. § 321.003(a) (West 2010). A person harmed by the violation may sue for damages, exemplary damages, and attorney's fees. Id. § 321.003(b)-(d); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 698 (Tex. 2003). Appellant alleged appellees violated his right to contact an attorney.
Section 321.003 of the Health & Safety Code makes a treatment or mental-health facility liable to a patient for violating "a provision of, or a rule adopted under, this chapter." HEALTH § 321.003(a). Section 321.002 requires the Texas Board of Mental Health to adopt a "patient's bill of rights." Id. § 321.002(a). The Patient's Bill of Rights was promulgated under section 321.002. Tex. Laurel Ridge Hosp., L.P. v. Almazan, 374 S.W.3d 601, 603 (Tex. App.—San Antonio 2012, no pet.).
Appellant argues this claim is not a "health care liability claim," so he was not required to present an expert report on this claim. The legislature defined "health care liability claim" as follows:
"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. The term does not include a cause of action described by Section 406.033(a) or 408.001(b), Labor Code, against an employer by an employee or the employee's surviving spouse or heir.CIV. PRAC. § 74.001(a)(13) (West Supp. 2016). Appellant alleged he was denied his right to contact an attorney by Devinney when he was at the emergency room trying to decide whether to voluntarily enter Hickory Trail and again when he was at Hickory Trail and requested permission to use the telephone to contact his attorney.
The Patient's Bill of Rights is a list of standards to be followed by health care providers while a patient is in their care. One of those standards is the duty to allow a patient access to a telephone to contact an attorney and to assist a patient in doing so. Dr. Dunn's report indicates that violating this duty is a breach of the standard of care of a licensed professional counselor and a mental health hospital. Therefore, appellant's cause of action under the Patient's Bill of Rights alleging the denial of access to a telephone or other means to contact an attorney is "a cause of action against a health care provider . . . for . . . departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care." We conclude appellant's claim is a health care liability claim under chapter 74. Therefore, the expert-report requirement of section 74.351 applies.
Several cases have considered whether a Patient's Bill of Rights claim was a health care liability claim, and they concluded the claims were health care liability claims subject to the requirements of chapter 74. See Tex. Laurel Ridge Hosp., L.P. v. Alamzan, 374 S.W.3d 601, 606-07 (Tex. App.—San Antonio 2012, no pet.); Tex. Cypress Hosp., L.P. v. Hickman, 329 S.W.3d 209, 215-17 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); Simmons v. Texoma Med. Ctr., 329 S.W.3d 163, 169 (Tex. App.—El Paso 2010, no pet.); Emeritus Corp. v. Highsmith, 211 sw3d 321, 382 (Tex. App.—San Antonio 2006, pet. denied); Parker v. CCS/Meadow Pines, Inc., 166 S.W.3d 509, 513 (Tex. App.—Texarkana 2005, no pet.); Estate of Allen v. Polly Ryon Hosp. Auth., No. 01-0400151-CV, 2005 WL 497291, at *6-7 (Tex. App.—Houston [1st Dist.] Mar. 3, 2005, no pet.) (mem. op.). Appellant does not cite any case where a suit against a health care provider for violating the Patient's Bill of Rights was not held to be a health care liability claim.
The trial court did not err by concluding that appellant's claim for violations of the Patient's Bill of Rights was a health care liability claim subject to the expert-report requirements of section 74.351. We overrule appellant's fifth issue.
FRAUD AND NEGLIGENT MISREPRESENTATION
In his sixth and seventh issues, appellant contends the trial court erred by dismissing appellant's fraud and negligent-misrepresentation claims for failure to comply with the expert-report requirements of section 74.351. Appellant argues that these claims were not health care liability claims, so he was not required to submit an expert report on these claims.
Appellant alleged in his petition,
Defendants' Representations were materially false and Plaintiffs [sic] reasonably relied upon them to their [sic] detriment. Devinney made the Representations knowing they were false, or they were made recklessly without regard to truth with the intent of Plaintiff acting on them. Plaintiff acted in reliance of the false statements and suffered an injury as a result. Defendants' actions constitute fraud, constructive fraud, misrepresentation and negligent misrepresentation.In the "Factual Background" section of his petition, appellant also alleged, "Emergency room medications and his condition made Rodney more vulnerable to the fraud, misrepresentations, duress, and coercion by Devinney." Appellant's alleged damages were lost wages, medical and psychological expenses to recover from appellees' conduct, mental anguish and emotional distress, and the amount appellant paid Hickory Trail and its providers "as the services rendered by Hickory Trail were ineffective due to its misconduct." These allegations raise the issue of whether the representations breached the standard of care for a health care provider and whether those breaches caused harm, injury, or damage to appellant. The representations were directly related to appellant's medical care because they concerned his treatment at Hickory Trail and they were the information he allegedly relied on in deciding to submit to treatment at Hickory Trail. Appellant alleged he suffered injury from the misrepresentations. This claim meets the definition of a "health care liability claim." See CIV. PRAC. § 74.001(a)(13) (defining "health care claim").
Appellant argues, "No Texas case has ever held that a Plaintiff must first obtain an expert report satisfying the requirement of Section 74.351 to seek the return of money from a dishonest health care provider." Appellant alleged in his petition that he sought as damages "the amount paid or owed to Hickory Trail and its providers, as the services rendered by Hickory Trail were ineffective due to its misconduct." Deciding whether Hickory Trail's health care services were ineffective due to misconduct requires determination of whether Hickory Trail breached a standard of care resulting in its treatment of appellant to become ineffective. This is a health care liability claim. See id.
We conclude the trial court did not err by determining that appellant's fraud and negligent-misrepresentation claims were health care liability claims subject to the expert-report requirements of section 74.351. We overrule appellant's sixth and seventh issues.
INVASION OF PRIVACY
In his eighth issue, appellant contends the trial court abused its discretion by dismissing appellant's invasion-of-privacy claim for failing to comply with section 74.351. Appellant alleged appellees committed invasion of privacy because their attorneys e-filed documents during the litigation that included sensitive information that should have been redacted. See TEX. R. CIV. P. 21c(c). Those documents could be viewed by the public on the internet until the trial court sealed the documents.
A lawsuit for invasion of privacy by wrongful disclosure of medical records by a health care provider is a health care liability claim when the disclosure of records was directly related to the providing of health care services. See Monson v. Allen Family First Clinic, P.A., 390 S.W.3d 598, 599-603 (Tex. App.—Dallas 2012, no pet.). However, the alleged disclosure in this case was part of appellees' actions in defending themselves against appellant's lawsuit. The filing of the records with the court was not directly related to appellees' provision of health care services. Therefore, appellant's claim alleging he was damaged by that conduct is not a health care liability claim.
Appellees argue that even if the claim was not subject to dismissal as a health care liability claim, the trial court did not err by dismissing the claim because it was frivolous. However, appellant did not move for dismissal of the claim as frivolous. There are only a few situations in which a trial court may sua sponte dismiss an action as frivolous. See, e.g., CIV. PRAC. §§ 13.001(a)(2) (affidavit of inability to pay), 14.003(a)(2) (inmate litigation) (West 2002). Otherwise, a party must move for dismissal of the claim as frivolous. See, e.g., TEX. R. CIV. P. 91a.1. Appellant's invasion-of-privacy claim does not fall into any category in which the trial court may dismiss a claim without a written motion requesting dismissal of the claim as frivolous.
We conclude the trial court erred by dismissing appellant's claim for invasion of privacy. We sustain appellant's eighth issue.
CONCLUSION
Although the trial court correctly granted appellees' motion challenging the adequacy of Dr. Dunn's expert report, the trial court erred by dismissing appellant's claims for medical malpractice, fraud, negligent misrepresentation, and violations of the Patient's Bill of Rights without granting appellant's request for a thirty-day extension of time to cure the deficiencies in the report. The trial court also erred by dismissing appellant's claim for invasion of privacy because it was not a health care liability claim. We reverse the trial court's judgment as to these claims and remand them to the trial court for further proceedings. Appellant does not challenge on appeal the trial court's dismissal of his claims for false imprisonment, "fraudulent inducement/rescission," and breach of licensed professional counselor duty. We affirm the trial court's dismissal of these claims.
/Lana Myers/
LANA MYERS
JUSTICE 160527F.P05
JUDGMENT
On Appeal from the 298th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-15-04020.
Opinion delivered by Justice Myers. Justices Bridges and Stoddart participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED in part and AFFIRMED in part as follows: The trial court's dismissal of appellant Rodney Alsup's claims for medical malpractice, fraud, negligent misrepresentation, violations of the Patient's Bill of Rights, and invasion of privacy are REVERSED and those claims are remanded to the trial court for further proceedings consistent with this opinion; in all other respects the trial court's judgment is AFFIRMED.
It is ORDERED that appellant Rodney Alsup recover his costs of this appeal from appellees Hickory Trail Hospital and Angela J. Devinney, LPC. Judgment entered this 20th day of March, 2017.