Summary
holding disclosure of confidential information to a judge because patient was a danger to himself or others was a health care liability claim
Summary of this case from Thilo Burzlaff, M.D., P.A. v. WeberOpinion
No. 04-06-00747-CV
Delivered and Filed: September 12, 2007.
Appeal from the 216th Judicial District Court, Gillespie County, Texas, Trial Court No. 10,868, Honorable Stephen B. Ables, Judge Presiding.
Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Hugh Bob Spiller appeals the trial court's order dismissing the underlying cause based on Spiller's failure to file an expert report in compliance with section 74.351 of the Texas Civil Practice and Remedies Code. Spiller asserts that the trial court abused its discretion because his claim was not a health care liability claim. We affirm the trial court's order.
Background
Spiller has a past history of vascular dementia and memory loss due to previous strokes. On July 25, 2005, Spiller awoke in a state of confusion and altered mental status. Spiller was transported to a medical center for evaluation. Spiller was found to have a slow heart rate and a condition known as "sick sinus syndrome," an irregular heart condition known to cause fainting spells and/or sudden death. The cardiac condition is treated by an implantation of a pacemaker. Although a cardiologist recommended this procedure, Spiller disagreed and left against medical advice. Because Spiller's condition increased the danger of his passing out, Spiller was instructed not to drive or go on the roof of his house as he planned.
On July 26, 2005, Rad Kothmann, M.D. contacted Spiller and encouraged him to reconsider the procedure due to the potential consequences of his condition. Spiller declined to have the procedure. Dr. Kothmann spoke with Spiller's wife, and she agreed to try to persuade Spiller to have the procedure. Dr. Kothmann informed Spiller's wife that Spiller was not making a reasonable decision and that he intended to contact adult protective services to help secure Spiller's safety.
On July 27, 2005, Dr. Kothmann received a phone call from Spiller's wife. Spiller's wife stated that Spiller was acting inappropriately. Spiller had become angry when some landscapers were cutting down trees near their house, so Spiller was cutting down all the trees on their lot. Spiller's wife also stated that she believed Spiller was capable of harming her and that she slept in her room with a chair under the doorknob out of fear for her safety. Spiller's wife further stated that Spiller was driving to and from their ranch despite his condition and Dr. Kothmann's advice.
As a result of the phone call, Dr. Kothmann sent a letter to a judge seeking to have an emergency detention order issued based on Spiller's medical history and Dr. Kothmann's belief that Spiller evidenced mental illness and an imminent, substantial risk of serious harm to himself or others. Dr. Kothmann was concerned that Spiller was making poor decisions "due to poor heart output and poor blood flow to his brain, complicated by his medical condition." On July 30, 2005, the judge issued an emergency detention warrant. Spiller was apprehended and taken to a hospital for examination. After being examined by a social worker, Spiller was released.
Spiller subsequently sued Dr. Kothmann for damages alleging that he suffered embarrassment and severe trauma as a result of Dr. Kothmann's actions. Dr. Kothmann filed a motion to dismiss when Spiller failed to timely serve a section 74.351 expert report. At the hearing on the motion to dismiss, Spiller's attorney was unable to articulate any cause of action that the petition alleged other than medical malpractice.
After the trial court granted the motion, Spiller filed a motion for new trial, asserting for the first time, that his petition alleged a cause of action for invasion of privacy, not a health care liability claim. At the hearing on the motion for new trial, the trial court noted that the motion was not filed by the attorney-of-record, but the trial court considered the motion and denied it.
Discussion
"A cause of action against a health care provider is a health care liability claim [subject to the expert report requirement of section 74.351] if it is based on a claimed departure from an accepted standard of medical care, health care, or safety of the patient, whether the action sounds in tort or contract." Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005). "A cause of action 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." Id. "The necessity of expert testimony from a medical or health care professional to prove a claim may also be an important factor in determining whether a cause of action is an inseparable part of the rendition of medical or health care services." Id.
In this case, regardless of the label assigned by Spiller, his claim relates to Dr. Kothmann's decision to submit an application for emergency detention based on his treatment of Spiller and his concerns arising from his assessment of Spiller's mental and medical condition. See Tex. Health Safety Code Ann. § 573.011 (Vernon 2003). In order for Dr. Kothmann to be liable for his actions, Spiller would be required to submit expert testimony that Dr. Kothmann's decision to submit the application for emergency detention was a departure from the accepted standard of care. Because the actions taken by Dr. Kothmann were an inseparable part of his rendition of medical or health care services, Spiller's cause of action is a health care liability claim subject to the section 74.351 expert report requirement. Diversicare General Partner, Inc., 185 S.W.3d at 848; see also Groomes v. USH of Timberlawn, Inc., 170 S.W.3d 802, 805-06 (Tex.App.-Dallas 2005, no pet.) (holding tort claims against hospital for failing to discharge mental patient were inextricably intertwined with the patient's medical treatment and provision of medical care; therefore, claims were health care liability claims that could not be recast to avoid the requirements of section 74.351). Therefore, the trial court did not err in granting Dr. Kothmann's motion to dismiss. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(b) (Vernon Supp. 2006) (requiring dismissing of health care liability claim if expert report not served within 120 days after petition is filed).
Conclusion
The trial court's order is affirmed.