Opinion
No. 04-17-00520-CV
03-07-2018
THILO BURZLAFF, M.D., P.A., and Tamela Arabit-Burzlaff, Appellants v. Janet M. WEBER, Appellee
This is an accelerated appeal from the trial court’s interlocutory order denying appellants' motion to dismiss a health care liability claim asserted against appellants by appellee. In her underlying lawsuit, appellee Janet Weber asserted separate claims against Thilo Burzlaff, M.D., P.A. ("the Practice") and against the Practice administrator, Tamela Arabit-Burzlaff (collectively, "appellants"). Weber did not sue her physician, Dr. Thilo Burzlaff, individually. Weber filed an expert report pursuant to Texas Civil Practice and Remedies Code section 74.351. Appellants objected to the expert’s report and jointly moved to dismiss Weber’s claims. The trial court denied the motion. The trial court determined the claims against Arabit-Burzlaff were not healthcare liability claims and overruled the Practice’s objections to the report. This appeal ensued. We affirm the trial court’s order as it pertains to Weber’s claims against Arabit-Burzlaff. We reverse the trial court’s order as it pertains to Weber’s claims against the Practice and remand for further proceedings.
The factual background is taken entirely from the allegations made in Weber’s second amended petition.
Dr. Burzlaff was Weber’s personal physician for almost ten years. Dr. Burzlaff’s wife, Arabit-Burzlaff, was employed by the Practice as its administrator. Weber requires treatments from a rheumatologist every six months with a drug called Rituxan to control her pain and reduce the symptoms of the disease. Before administering the drug to Weber, the rheumatologist required Weber’s family practice physician to authorize the treatment when she had unresolved health issues. Dr. Burzlaff oversaw this portion of Weber’s treatment for rheumatoid arthritis. Weber was due for a Rituxan treatment in November 2012, but Dr. Burzlaff did not authorize the treatment because Weber had trace amounts of blood in her urine. Dr. Burzlaff did not authorize the treatment at subsequent checkups.
On February 6, 2013, Weber called the Practice for another appointment, by which time she was two months late for her treatment "and the pain had become almost unbearable." On February 6, when Weber called the Practice for an appointment, she spoke first to Arabit-Burzlaff’s mother, Eleanor. Eleanor told Weber the next available appointment was a month away. Weber asked to speak directly to Dr. Burzlaff to request an earlier appointment, which she had done in the past. Eleanor told Weber she could not put the doctor on the phone, but she would ask him about an earlier appointment. Eleanor also asked Weber if she wanted to speak with Arabit-Burzlaff, but Weber declined because "talking to [Arabit-Burzlaff] just wouldn't be helpful." Later that same day, Weber received two calls from the Practice. In the first call, Eleanor told Weber she could see the doctor on February 21, 2013. Eleanor also told Weber that Arabit-Burzlaff was offended that Weber refused to talk to her. A few minutes later, Arabit-Burzlaff called to tell Weber "she was being terminated as a patient." About a week later, Weber received a letter advising her Dr. Burzlaff felt it necessary to terminate the physician/patient relationship because Weber had been verbally aggressive and disruptive to the staff. However, Dr. Burzlaff agreed to continue to treat her for thirty days from the date of the letter (February 7, 2013).
On the morning of Weber’s February 21 appointment, the Practice called to cancel the appointment because Dr. Burzlaff was not seeing patients on that date, he would not be in the office, and there was no available appointment within the thirty-day period. Nevertheless, Weber decided to go to the doctor’s office on February 21, at which time she discovered Dr. Burzlaff was present and seeing other patients. At first, the staff refused to allow her to see the doctor, but they later said she could see him. However, instead of going to an exam room, Weber was taken to the lunchroom where she was met by Arabit-Burzlaff and an attorney. At some point, Weber’s sister, who was in the waiting room, and Dr. Burzlaff joined them as well. After appealing to the doctor for a checkup, the doctor "cleared" Weber with a phone call to her rheumatologist, but without conducting a checkup or any tests.
Over the next several months, Weber unsuccessfully attempted to obtain her medical records from the Practice. In May 2014, the staff finally agreed to release Weber’s records. When Weber went to the Practice on May 12, 2014 to get her file, the staff allowed Weber to inspect the file in the lunchroom. When she realized the file was incomplete and asked about the missing records, the staff told her "that [she] should accept only the portion of her file she had been offered and leave. [And when she] asked again about the missing records[, she] was told to leave, and that if she wanted the rest of her file, she would have to get a subpoena." Weber continued to inspect her file until two police officers arrived in the lunchroom. According to Weber, both Dr. Burzlaff and Arabit-Burzlaff had called building security and the police, and "told the police something to make [the police] treat [Weber] like a threat." Weber alleged Arabit-Burzlaff, who was not in the office at the time, was so insistent the police lead Weber out in handcuffs that she told the 9-1-1 operator Weber was "mental," and when the operator asked for confirmation that Weber was a mental patient, Arabit-Burzlaff merely said "she’s got some mental issues." Dr. Burzlaff asked the police officers to arrest Weber as a trespasser, but they refused because Weber had been invited to the office. However, the police escorted Weber out of the building, briefly questioned her, issued her a criminal trespass warning, and released her.
Weber then filed suit against the Practice and Arabit-Burzlaff, and she filed an expert report by Dr. Federico Roman Ng, M.D., J.D. The Practice and Arabit-Burzlaff jointly objected to the report and asked that Weber’s claims against them be dismissed. Following a hearing on the objections, the trial court overruled the objections and denied the motion to dismiss. The Practice and Arabit-Burzlaff moved for a reconsideration/clarification of the trial court’s ruling. Following a hearing on the motion to reconsider, the trial court denied the motion for reconsideration, but clarified its prior ruling to specifically state that the claims against Arabit-Burzlaff were not healthcare liability claims subject to the requirement of Civil Practice and Remedies Code Chapter 74. The court also restated its overruling of the objections to the expert report and its denial of the motion to dismiss.
STANDARD OF REVIEW & APPLICABLE LAW
We review a trial court’s ruling on a motion to dismiss a health care liability lawsuit brought under Chapter 74 of the Texas Civil Practice and Remedies Code ("the Code") for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 875 (Tex. 2001) ; Bowie Mem'l Hosp. v. Wright , 79 S.W.3d 48, 52 (Tex. 2002). In reviewing the trial court’s decision, we may not substitute our judgment for that of the trial court regarding factual matters. See Bowie , 79 S.W.3d at 52. "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Id.
CLAIMS AGAINST ARABIT-BURZLAFF
Arabit-Burzlaff objected to Dr. Ng’s report on the ground that, although she is a healthcare provider, Dr. Ng’s report never names her; therefore, an expert report was never filed. Alternatively, Arabit-Burzlaff objected that the report is insufficient on several grounds and that Dr. Ng was not qualified. Weber asserts her claims against Arabit-Burzlaff are not healthcare liability claims. The trial court ruled "that [Weber’s] claims against Tamela Arabit-Burzlaff are not Health Care Liability Claims subject to the requirements of Chapter 74 of the Texas Civil Practice & Remedies Code." Therefore, before we address whether the expert report was sufficient, we must first address whether the trial court abused its discretion in determining Weber’s claims against Arabit-Burzlaff were not healthcare liability claims subject to the expert-report requirement.
The Code’s expert-report requirement applies to a plaintiff’s claims when they come within the statutory definition of a "healthcare liability claim." A "health care liability claim" is "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." TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(13) (West 2017). A health care liability claim "contains three basic elements: (1) a physician or health care provider must be a defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s act or omission complained of must proximately cause the injury to the claimant." Texas W. Oaks Hosp., LP v. Williams , 371 S.W.3d 171, 179-80 (Tex. 2012). Courts look to the "gravamen" of a claim to determine whether it is a health care liability clam. Id. at 178 ; see also Diversicare Gen. Partner, Inc. v. Rubio , 185 S.W.3d 842, 854 (Tex. 2005). Whether a claim is a health care liability claim depends on the underlying nature of the claim. Yamada v. Friend , 335 S.W.3d 192, 196 (Tex. 2010). Artful pleading does not alter that nature. Id. ; Diversicare , 185 S.W.3d at 854.
On appeal, Weber does not dispute the first element, which is that Arabit-Burzlaff is a healthcare provider. See TEX. CIV. PRAC. & REM. CODE § 74.001(12)(B)(ii) ("term includes ... an employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship"). On appeal, appellants do not dispute the third element, which is that the acts allegedly committed by Arabit-Burzlaff were the cause of Weber’s injuries. Thus, our analysis focuses on the second element, that is, whether Weber’s 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." See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13).
The Code does not define the term "cause of action," but the generally accepted meaning of that phrase refers to the " ‘fact or facts entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief.’ " In re Jorden , 249 S.W.3d 416, 421 (Tex. 2008) (quoting A.H. Belo Corp. v. Blanton , 133 Tex. 391, 129 S.W.2d 619, 621 (1939) ). "Health care" is broadly defined as "any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement." TEX. CIV. PRAC. & REM. CODE § 74.001(a)(10).
Analysis of the cause of action focuses 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. See, e.g., Yamada , 335 S.W.3d at 196-97 ; Diversicare , 185 S.W.3d at 847, 854. A claim based on one set of facts cannot be spliced or divided into both a health care liability claim and another type of claim. Loaisiga v. Cerda , 379 S.W.3d 248, 255 (Tex. 2012) ; Yamada , 335 S.W.3d at 197 ; Diversicare , 185 S.W.3d at 854. One consideration in that determination is whether proving the claim requires the specialized knowledge of a medical expert. Garland Cmty. Hosp. v. Rose , 156 S.W.3d 541, 544 (Tex. 2004).
"It follows that claims premised on facts that could support claims against a physician or health care provider for departures from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care are [healthcare liability claims], regardless of whether the plaintiff alleges the defendant is liable for breach of any of those standards." Loaisiga , 379 S.W.3d at 255 (emphasis in original). However, a plaintiff may bring both health care and non-health care claims against different defendants in the same suit if the different claims are based on different underlying acts. See Holguin v. Laredo Reg'l Med. Ctr., L.P. , 256 S.W.3d 349, 354 (Tex. App.—San Antonio 2008, no pet.).
The Code’s broad language "evidences legislative intent for the statute to have expansive application." Loaisiga , 379 S.W.3d at 256. "The breadth of the statute’s text essentially creates a 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." Id. "But the presumption is necessarily rebuttable. In some instances the only possible relationship between the conduct underlying a claim and the rendition of medical services or healthcare will be the healthcare setting (i.e., the physical location of the conduct in a health care facility), the defendant’s status as a doctor or health care provider, or both." Id.
To determine whether Weber’s causes of action against Arabit-Burzlaff are 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, we focus on the facts underlying the claims, not the form of the pleading. On appeal, appellants contend Weber’s allegations against Arabit-Burzlaff are that she (1) delayed facilitating the scheduling of a doctor’s appointment, (2) mishandled the dismissal of Weber from the Practice, (3) disclosed confidential health information, and (4) mishandled Weber’s request for medical records. Appellants assert the performance of facilitating appointments, creating and releasing medical records, and notifying a patient of her release from the Practice are an inseparable or integral part of the rendition of medical services; therefore, expert health care testimony is necessary to prove these claims. We disagree with appellants' characterization of Weber’s claims against Arabit-Burzlaff.
Although the factual background section of Weber’s petition focuses primarily on actions either taken by or involving Arabit-Burzlaff, not all of those actions form the basis of Weber’s claims against Arabit-Burzlaff. Weber alleged the following claims against Arabit-Burzlaff: defamation, DTPA violations, unauthorized release of confidential information, negligence per se, and intentional infliction of emotional distress. The facts underlying Weber’s claims against Arabit-Burzlaff are as follows. Arabit-Burzlaff was not in the office on May 12, 2014, and, on that date, Weber was no longer a patient of Dr. Burzlaff. Weber was present in the Practice’s office on May 12 only to review and obtain her medical records. After the staff told Weber she would have to get a subpoena to obtain her missing records, both Dr. Burzlaff and Arabit-Burzlaff called building security and then the police to remove Weber from the premises. According to Weber, Arabit-Burzlaff was so insistent the police lead Weber out of the office in handcuffs that she told the police dispatcher Weber was "mental" and had "some mental issues." Weber alleged these statements were false.
Although Arabit-Burzlaff qualifies as a "healthcare provider," this is not dispositive of whether Weber’s claims against Arabit-Burzlaff constitute healthcare liability claims. See Theroux v. Vick , 163 S.W.3d 111, 113 (Tex. App.—San Antonio 2005, pet. denied) (not every action taken by a health care provider or every injury sustained by a patient is a health care liability claim). Also, the fact that Arabit-Burzlaff’s alleged actions occurred on the premises of the Practice does not automatically mean that Weber’s claims of defamation, DTPA violations, negligence per se, and intentional infliction of emotional distress are health care liability claims. Drewery v. Adventist Health Sys./Texas, Inc. , 344 S.W.3d 498, 504 (Tex. App.—Austin 2011, pet. denied) ("not every cause of action for injuries arising in a health care setting is a health care liability claim—even in cases where the defendant was alleged to have been acting in the course of his employment"); accord Parker v. CCS/Meadow Pines, Inc. , 166 S.W.3d 509, 513 (Tex. App.—Texarkana 2005, no pet.) ("Even in a medical setting, claims of torts which are not inseparably part of healthcare services or of safety or professional or administrative services directly related to health care are not healthcare liability claims." (citations and internal quotation marks omitted)).
Appellants asserted Weber’s defamation claim is a health care liability claim because it arises in the context of her attempt to obtain her medical records. However, any claim Weber may have for the failure to release her medical records arose when the staff allegedly told her to "get a subpoena." Separate and apart from providing Weber with her records was the attempt to remove her from the premises by calling the police and allegedly telling the police she had mental issues. We conclude the gravamen of Weber’s defamation, DTPA violations, negligence per se, and intentional infliction of emotional distress claims is that Arabit-Burzlaff called the police and told the police Weber has mental issues for the purpose of removing Weber from the Practice’s premises. These allegations do not give rise to a cause of action "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." In other words, the acts giving rise to Weber’s claims against Arabit-Burzlaff are not "inseparable" from the rendition of medical services and are not based on a breach of a standard of care applicable to Arabit-Burzlaff.
Weber’s remaining claim against Arabit-Burzlaff is for the unauthorized release of confidential information. On appeal, appellants characterize this claim as the unauthorized release of a diagnosis. During oral arguments, appellants asserted the release of confidential information was the call to 9-1-1. A claim for wrongful disclosure of health care information is a health care liability claim subject to the expert-report requirement. Monson v. Allen Family First Clinic, P.A. , 390 S.W.3d 598, 602 (Tex. App.—Dallas 2012, no pet.) ; Sloan v. Farmer , 217 S.W.3d 763, 768 (Tex. App.—Dallas 2007, pet. denied). However, here, nothing in the record indicates Dr. Burzlaff diagnosed Weber as having mental issues, or that Arabit-Burzlaff’s alleged statement to the police that Weber had mental issues was the result of any medical care she received at the Practice. Therefore, the gravamen of Weber’s unauthorized release of confidential information claim is that Arabit-Burzlaff told the police Weber has mental issues.
We conclude that in this instance, "the only possible relationship between the conduct underlying [Weber’s] claims and the rendition of medical services or healthcare [is] the healthcare setting (i.e., the physical location of the conduct in a health care facility), [and Arabit-Burzlaff’s] status as ... a health care provider...." See Loaisiga , 379 S.W.3d at 256 (internal citations omitted). The gravamen of Weber’s claims do not implicate Arabit-Burzlaff’s conduct during the course of Weber’s care, treatment, or confinement; therefore, an expert report is not required for Weber’s claims against Arabit-Burzlaff. Accordingly, we conclude the trial court did not abuse its discretion by denying Arabit-Burzlaff’s motion to dismiss Weber’s claims against her.
CLAIMS AGAINST THE PRACTICE
Weber asserted the following causes of action against the Practice: (1) respondeat superior, (2) failure to provide her complete medical records, (3) negligence, and (4) negligence per se. Under her respondeat superior claim, Weber alleged that because Arabit-Burzlaff was in the course and scope of her employment with the Practice, the Practice is liable for her wrongful actions. Under her negligence claim, Weber alleged (1) the Practice breached its duty to treat her in a reasonably prompt manner and to not withhold treatment or cause it to be withheld without justification, and (2) the Practice breached its duty to properly train and supervise Arabit-Burzlaff to not reveal patients' private healthcare information. Under her negligence per se claim, Weber alleged the Practice breached its duty to properly train and supervise Arabit-Burzlaff to not reveal patients' private healthcare information pursuant to the Federal Health Insurance Policy and Accountability Act. The Practice objected to Dr. Ng’s report on the grounds that Dr. Ng was not qualified, his report was conclusory as to causation, and the report did not adequately link the complained-of actions to the damages suffered.
A. Requirements of an Expert Report
Section 74.351(a) of the Code requires a plaintiff to serve each physician or health care provider against whom a health care liability claim is asserted an expert report and curriculum vitae of each expert within a specified time. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2017). The report serves two purposes: (1) to inform the defendant of the specific conduct the plaintiff has called into question; and (2) to provide a basis for the trial court to conclude the plaintiff’s claims have merit. Bowie , 79 S.W.3d at 52 ; Palacios , 46 S.W.3d at 879. The statute defines a valid expert report as "a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding the applicable standards of care, the manner in which the care rendered by the physician or healthcare provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6). A trial court must sustain a challenge to the sufficiency of the report if the report does not constitute an objective good faith effort to comply with the statutory requirements. TEX. CIV. PRAC. & REM. CODE § 74.351(1).
On appeal, neither party disputes the trial court’s implied finding that all of Weber’s claims against the Practice are healthcare liability claims requiring an expert report.
When determining whether a report represents a good faith effort to comply with the statute, the trial court looks only to the information within the four corners of the report and is prohibited from making any inferences therefrom. Bowie , 79 S.W.3d at 52 ; Palacios , 46 S.W.3d at 878. Although the report need not marshal all the plaintiff’s proof, the report must include an opinion as to the applicable standard of care, breach, and causal relationship. Bowie , 79 S.W.3d at 52 ; Palacios , 46 S.W.3d at 878. To constitute a good faith effort, the report cannot merely state the expert’s conclusions about the elements identified above; rather, "[a]n expert must explain, based on facts set out in the report, how and why the breach caused the injury." Van Ness v. ETMC First Physicians , 461 S.W.3d 140, 142 (Tex. 2015) ; see also Jelinek v. Casas , 328 S.W.3d 526, 539-40 (Tex. 2010) ; Bowie , 79 S.W.3d at 52 ; Palacios , 46 S.W.3d at 879.
"In showing how and why a breach of the standard of care caused injury, the expert report must make a good-faith effort to explain, factually, how proximate cause is going to be proven[.]" Columbia Valley Healthcare Sys., L.P. v. Zamarripa , 526 S.W.3d 453, 460 (Tex. 2017). The Zamarripa Court stated:
Proximate cause has two components: (1) foreseeability and (2) cause-in-fact. For a negligent act or omission to have been a cause-in-fact of the harm, the act or omission must have been a substantial factor in bringing about the harm, and absent the act or omission—i.e., but for the act or omission—the harm would not have occurred.
Id. (quoting Rodriguez-Escobar v. Goss , 392 S.W.3d 109, 113 (Tex. 2013) (per curiam)). "This is the causal relationship between breach and injury that an expert report must explain to satisfy the [Code’s requirements]." Id.
The report need not use any particular "magical words" such as "proximate cause," "foreseeability," or "cause in fact." Id. On the other hand, "merely incanting words does not suffice." Id. Also, "merely providing some insight into the plaintiff’s claims does not adequately address causation." Tenet Hosps. Ltd. v. Love , 347 S.W.3d 743, 755 (Tex. App.—El Paso 2011, no pet.). When a report fails to outline how a suggested action "would have resulted in different care and treatment, or a different outcome" then there is "a broad analytical gap between the alleged breach and the ultimate harm" and thus, the report is "insufficient to establish causation." Id.
On appeal, appellants challenge only the causal relationship element. Appellants assert that because Dr. Ng did not review Weber’s medical records, and he considered only the allegations in her lawsuit, there is no factual basis to support Dr. Ng’s opinion that the Practice caused Weber increased pain, increased depression, worsened rheumatoid arthritis, mental anguish, post-traumatic stress disorder, or any other symptom. Thus, appellants conclude Dr. Ng’s causation opinions are conclusory.
On appeal, the Practice does not challenge Dr. Ng’s qualifications.
B. Respondeat Superior
Weber alleged a respondeat superior claim against the Practice based on Arabit-Burzlaff’s actions. On appeal, the Practice contends Weber’s respondeat superior claim is moot because Weber’s claim against Arabit-Burzlaff should be dismissed for failure to timely file an expert report naming Arabit-Burzlaff. The Practice does not contend an expert report is required to set forth facts establishing an employer is liable for the acts of its employee based on respondeat superior.
A doctor "is likely unqualified to provide an expert opinion on the legal relationship between [Arabit-Burzlaff and the Practice]. And Chapter 74 does not require such proof in an expert report." RJ Meridian Care of Alice, Ltd. v. Robledo , 04-14-00195-CV, 2014 WL 2917669, at *2 (Tex. App.—San Antonio June 25, 2014, no pet.). "Part of the reason an expert report is not required for the vicariously liable party is that the elements of a Chapter 74 report relating to standards of care and causation cannot be applied to vicarious liability that is based on respondeat superior or partnership principles rather than direct allegations of negligence." Akhter v. Smooth Sols. DFW One, LLC , 04-11-00263-CV, 2012 WL 3776481, at *4 (Tex. App.—San Antonio Aug. 31, 2012, no pet.). Therefore, because we have concluded an expert report is not required for Weber’s claims against Arabit-Burzlaff, and the Practice provides no other argument on appeal for dismissing Weber’s respondeat superior claim against the Practice, we conclude no expert report was required for Weber’s respondeat superior claim against the Practice.
C. Failure to Provide Complete Medical Records, Negligence, and Negligence Per Se
Weber also alleged the Practice (1) failed to timely provide her with a complete copy of her medical records; (2) breached its duty to treat her in a reasonably prompt manner and to not withhold treatment or cause it to be withheld without justification; (3) breached its duty to properly train and supervise Arabit-Burzlaff to not reveal patients' private healthcare information; and (4) breached its duty to properly train and supervise Arabit-Burzlaff to not reveal patients' private healthcare information pursuant to the Federal Health Insurance Policy and Accountability Act.
In his report, Dr. Ng generally opined as follows:
I have reviewed the materials sent to me concerning Ms. Weber and Dr. Burzlaff, including Plaintiff’s Second Amended Petition. I have concluded that Ms. Weber suffered three months of unnecessary pain and suffering and destruction of her joint tissue, as well as Post-Traumatic-Stress-Disorder and worsening depression as a result of several breaches by Dr. Burzlaff of the applicable standard of care. These standards include his duty to see and treat Ms. Weber in a timely fashion, which he breached by unnecessarily delaying treatment of her Rheumatoid Arthritis ; his duty to continue to see and treat Ms. Weber in a timely fashion for thirty days after terminating the doctor-patient relationship, which he breached by refusing to see Ms. Weber, further delaying her treatment; and his duty to construct and maintain adequate medical records, which he breached by failing to document his professional interaction with Ms. Weber on February 21, 2013, nor the reasons—if any—he finally allowed treatment of Ms. Weber’s Rheumatoid Arthritis without the testing he had previously maintained was needed to end her delay in treatment. These conclusions are based on a reasonable medical probability, and are further detailed below.
In the next several paragraphs, Dr. Ng’s report states Dr. Burzlaff demonstrated "reckless endangerment and negligence in caring for" Weber by delaying her care for approximately three months; Dr. Burzlaff had a duty to "construct and maintain notes describing the events and discussions surrounding the doctor-patient encounters"; AMA privacy rules dictate a non-professional may be in the room during a patient visit only with the patient’s consent; Dr. Burzlaff violated his statutory duty to see and treat his patient for thirty days after terminating the doctor-patient relationship; and Weber was not provided her medical records within fifteen days.
As to damages and causation, Dr. Ng opined
Damages or repercussions to the above actions can and most likely did cause at least 3 separate types of damage to Ms. Weber. First, physical damage due to the progression of the disease that occurred as a result of the delay in treatment. Some of this delay may have been caused by the work-up that must or should have occurred due to hematuria but much of which seems to have been caused by clerical mishap and office mishandling of patient’s appointment. As noted above, rheumatoid arthritis is a disfiguring illness that causes loss of function and this undoubtedly occurred during Ms. Weber’s wait to receive treatment. Second, rheumatoid arthritis is a very painful condition; Ms. Weber makes it quite clear in the facts of the case when she informs the Dr’s Staff that the pain is "almost intolerable". Medical sources have described depression as one of the symptoms of RA as it can render a person incapable of performing activities such as dressing, eating, or brushing one’s teeth. And thirdly, loss of time. The time of one’s life is a commodity that cannot be bought or sold and the enjoyment of such is often taken for granted by the healthy. A person who is sick and awaiting care spends their time in trust that the people (doctors, nurses, office staff and others employed in the care of one’s health) will work quickly and in a courteous manner to provide rapid restoration of one’s health to an acceptable capacity—even if it means simply spending "time" with the patient and showing concern for the patient’s plight. Lastly, Ms. Weber describes her feelings after the event. In causing increased pain, feelings of betrayal, loss of faith in providers of health care, placing her under arrest and fostering hopelessness in a patient with physical pain. It is my professional opinion that Ms. Weber suffers from Post-Traumatic-Stress-Disorder and chronic/acute depression as a direct result of her treatment and lack thereof as described in the facts of this case. The doctor may argue that depression is a manifestation of RA and he would be right in doing so. ... In this case I believe we are seeing a doctor do exactly what doctors are not supposed to do—take a bad situation and make it worse. ....
Although there is no dispute there was a delay in Weber receiving the Rituxan, Dr. Ng does not state her disease actually progressed because of the delay. Dr. Ng also states rheumatoid arthritis is a very painful disease and Weber’s pain became "almost unbearable." Finally, Dr. Ng stated his belief that Weber suffered from post-traumatic stress disorder and chronic/acute depression "as a direct result of her treatment and lack thereof as described in the facts of this case." But, Dr. Ng speaks only in general terms about Weber’s pain and possible depression and PTSD. To the degree Weber’s disease may have progressed and/or caused her additional pain and suffering, Dr. Ng’s opinion is conclusory: "the above actions can and most likely did cause at least 3 separate types of damage," "[s]ome of this delay may have been caused by the work-up that must or should have occurred due to hematuria but much of which seems to have been caused by clerical mishap and office mishandling of patients appointment;" "rheumatoid arthritis is a disfiguring illness that causes loss of function and this undoubtedly occurred ;" and "we are seeing a doctor do exactly what doctors are not supposed to do—take a bad situation and make it worse." See JSC Lake Highlands Operations, LP v. Miller , 05-15-01373-CV, 2016 WL 4575536, at *6 (Tex. App.—Dallas Aug. 31, 2016, pet. filed) (mem. op.) (concluding expert’s opinion that "Not removing the foreign body in a timely manner can lead to aspiration, which can be deadly" was conclusory and failed to establish the alleged negligent act or omission was "a substantial factor in bringing about the harm."). Therefore, we conclude Dr. Ng’s report was deficient as to causation.
D. Remedy
Appellants assert Weber’s claims against the Practice should be dismissed with prejudice because the minimal standard for a curable report is not satisfied in this case because the deficiencies could only be cured with an entirely new report. Appellants contend no report, as opposed to a deficient report, was filed; therefore, Weber is not entitled to an opportunity to cure any deficiencies in the report.
When an expert report is timely served and properly challenged, the trial court "shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." TEX. CIV. PRAC. & REM. CODE § 74.351(l). The Code "also authorizes the trial court to give a plaintiff who meets the 120-day deadline an additional thirty days in which to cure a ‘deficiency’ in the elements of the report." Scoresby v. Santillan , 346 S.W.3d 546, 549 (Tex. 2011) (citing TEX. CIV. PRAC. & REM. CODE § 74.351(c) ). "The trial court should err on the side of granting the additional time and must grant it if the deficiencies are curable." Id. (internal citations omitted). "The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits." Leland v. Brandal , 257 S.W.3d 204, 207 (Tex. 2008) (citing Palacios , 46 S.W.3d at 878 ). "A court may not provide opportunities to cure, however, when an expert report is ‘absent’ as opposed to deficient," such as when a report "fails to address all required elements of a claim." Hollingsworth v. Springs , 353 S.W.3d 506, 524 (Tex. App.—Dallas 2011, no pet.) (denying a health care liability claimant an opportunity to cure when the expert report "omitted any discussion of the element of causation," so the "report could not qualify as a good faith effort to meet Chapter 74’s requirements").
In Scoresby , the Texas Supreme Court set a "minimal standard" for when a thirty-day extension may be granted. The Court held "a thirty-day extension to cure deficiencies in an expert report may be granted if the report is served by the statutory deadline, if it 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 557. "An individual’s lack of relevant qualifications and an opinion’s inadequacies are deficiencies the plaintiff should be given an opportunity to cure if it is possible to do so." Id. at 549.
We now address whether Dr. Ng’s report meets the standard identified in Scoresby . See Scoresby , 346 S.W.3d at 557. Dr. Ng’s report was served by the statutory deadline, and it "implicates" the Practice’s conduct by stating the breach of various duties by Dr. Burzlaff and/or the Practice’s staff. We have concluded Dr. Ng’s expert report was deficient because it did not contain a fair summary of the basis of his opinion concerning the statutory element of causation. However, because Dr. Ng’s report is not so deficient as to constitute no report at all, we remand for the trial court to consider whether to allow Weber the thirty-day extension to cure deficiencies.
Appellants also contend Dr. Ng’s report is conclusory because, allegedly, Dr. Ng did not consider Weber’s medical records. "[A]n expert must consider more than the pleadings. How much more will depend on the particular circumstances of the claim." Loaisiga , 379 S.W.3d at 261. Here, Dr. Ng begins his report by stating, "I have reviewed the materials sent to me concerning Ms. Weber and Dr. Burzlaff, including Plaintiff’s Second Amended Petition." Dr. Ng also asserted Dr. Burzlaff "fail[ed] to document his professional interaction with Ms. Weber on February 21, 2013," and he failed to document "the reasons—if any—he finally allowed treatment of Ms. Weber’s Rheumatoid Arthritis without the testing he had previously maintained was needed to end her delay in treatment." This specific allegation is not contained in Weber’s petition. Although we do not hold an expert report must specifically identify all the records on which an expert relies, to the extent there is a deficiency here, it may be cured. See id. (concluding that, although expert’s "failure to consider any matters other than the plaintiffs' pleadings in formulating his opinion [made] his existing reports inadequate to comply with section 74.351 ’s expert report requirements," the deficiencies did not require dismissal of the plaintiffs' claims because the reports met the Scoresby standard).
CONCLUSION
We conclude the trial court did not err in denying Arabit-Burzlaff’s motion to dismiss Weber’s claims against her. We also conclude the trial court did not err in denying the Practice’s motion to dismiss Weber’s claim against the Practice based on respondeat superior. Accordingly, we affirm that portion of the trial court’s order dated July 26, 2017. We conclude the trial court erred in overruling the Practice’s objection that Weber’s expert report was conclusory. Because we reverse the trial court’s overruling of the Practice’s objection that the report was conclusory, we also reverse the trial court’s denial of the Practice’s motion to dismiss Weber’s claims against the Practice. Accordingly, we reverse that portion of the trial court’s order dated July 26, 2017 and remand the cause to the trial court to consider whether to grant Weber a thirty-day extension to cure the deficiencies in her expert report. See Leland , 257 S.W.3d at 208 (holding when court of appeals finds an expert report to be deficient after trial court concluded it was adequate, court of appeals "has the discretion to remand the case for consideration of a thirty-day extension to cure the deficiency.").
Dissenting Opinion by: Luz Elena D. Chapa, Justice
Luz Elena D. Chapa, Justice, dissenting.
I would hold the claims against Tamela Arabit-Burzlaff, individually, are health care liability claims, and that Dr. Ng’s expert report is not deficient. Because I would affirm the trial court’s order as to the Practice and reverse as to Arabit-Burzlaff, I respectfully dissent.
THE CLAIMS AGAINST ARABIT-BURZLAFF ARE HEALTH CARE LIABILITY CLAIMS
Whether Weber’s claims against Arabit-Burzlaff are health care liability claim turns on the gravamen of those claims. The majority holds all of Weber’s claims against Arabit-Burzlaff are based only on the statements she made during the 911 call. The majority too narrowly views the gravamen of Weber’s claims and, consequently, reaches an incorrect result.
A. The majority incorrectly holds the gravamen of Weber’s claims is only the 911 call.
First, the majority’s conclusion regarding the gravamen of Weber’s claims is contrary to Weber’s pleadings when viewed as whole. See Loaisiga v. Cerda , 379 S.W.3d 248, 259 (Tex. 2012) (stating we must look at the whole record, not just parts in isolation). Weber pled five legal theories of recovery. Three theories—defamation, negligence per se, and unauthorized release of medical records—are based on Arabit-Burzlaff’s statements during the 911 call. The others—DTPA and intentional infliction of emotional distress—are based on how Arabit-Burzlaff "acted." Weber’s pleadings alleged Arabit-Burzlaff’s actions from November 2013 to May 2014 included not only making the 911 call, but also delaying medical care, terminating Weber as a patient, and failing to release medical records. Certainly, Weber pled all the other facts about Arabit-Burzlaff’s actions to support her claims that Arabit-Burzlaff’s actions were "extreme," "outrageous," and "unconscionable." Considering the pleadings as a whole, as we must, I would hold Weber’s claims are based on conduct other than simply the 911 call. See id.
Second, the majority assumes that because Weber relies on Arabit-Burzlaff’s conduct for her claims against the Practice, those allegations cannot comprise the basis of her claims against Arabit-Burzlaff, individually. But employees may always be held "individually liable for their own torts, even when committed in the course of employment" and the employer and employee may be held jointly and severally liable. See Franka v. Velasquez , 332 S.W.3d 367, 383 (Tex. 2011) ; Leyendecker & Assocs., Inc. v. Wechter , 683 S.W.2d 369, 375 (Tex. 1984). Although Arabit-Burzlaff’s conduct gives rise to claims against the Practice, Arabit-Burzlaff’s conduct in the scope of her employment can also form the basis for Weber’s claims against Arabit-Burzlaff, individually. The record as a whole establishes Weber is suing Arabit-Burzlaff, individually, for all of her alleged conduct over several months, not just the 911 call.
B. Due to its overly narrow view of the gravamen of Weber’s claims, the majority errs by concluding the claims against Arabit-Burzlaff are not health care liability claims.
Considering the record as a whole, Weber’s claims against Arabit-Burzlaff are based on: (1) delaying Weber’s medical care; (2) terminating Weber as a patient; (3) failing to release medical records to Weber; and (4)(a) wrongfully disclosing Weber’s private medical information to the police or, alternatively, (4)(b) falsely reporting Weber’s medical history to law enforcement to show Weber was a danger to herself or others (during an in-progress dispute about the release of her medical records). These are all health care liability claims under the plain meaning of section 74.001. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(10), (13), (24) (West 2017). Thus, the trial court’s order should be reversed as to the claims against Arabit-Burzlaff.
Although artfully pled, these claims are based on "lack of treatment," and departures from accepted standards of professional or administrative services directly related to health care, including statutorily and administratively prescribed standards for terminating patients, releasing a patient’s medical records, and discussing a patient’s medical history to law enforcement for the safety of the patient or others. See 42 U.S.C. §§ 1320d –1320d-6 (providing HIPPA standards for disclosing medical information); 45 C.F.R. 164.512(j) (same) ; Tex. Occ. Code Ann. § 159.001 -.009 (West 2012 & Supp. 2017) (providing state standards for disclosing medical information); 22 Tex. Admin. Code §§ 165.2 (setting standards for release of medical records), 190.8(1)(J) (setting standards for terminating patient care); Spiller v. Kothmann , No. 04-06-00747-CV, 2007 WL 2608562, at *2 (Tex. App.—San Antonio Sept. 12, 2007, no pet.) (mem. op.) (holding disclosure of confidential information to a judge because patient was a danger to himself or others was a health care liability claim); see also Alajmi v. Methodist Hosp. , 639 Fed. Appx. 1028, 1031 (5th Cir. 2016) (holding, under Texas law, that "[c]laims alleging wrongful disclosure of medical information" are "health care liability claims"); Sloan v. Farmer , 217 S.W.3d 763, 768 (Tex. App.—Dallas 2007, pet. denied) ("Maintaining the confidentiality of patient records is part of the core function of providing health care services.").
DR. NG'S EXPERT REPORT AS TO THE PRACTICE IS NOT DEFICIENT
Appellants do not challenge the sufficiency of the expert report regarding Dr. Ng’s opinion that the three-month delay in Weber’s treatment breached the applicable standard of care. They also do not contest that Weber’s injuries are compensable. Instead, they generally argue the expert report is deficient as to causation because Dr. Ng failed to explain how any of Weber’s injuries were caused by any of appellants' conduct. They also assert the expert report is speculative.
Weber complained of physical pain, which is a compensable injury in medical malpractice cases. See Sax v. Votteler , 648 S.W.2d 661, 667 (Tex. 1983) ; Casas v. Paradez , 267 S.W.3d 170, 185 (Tex. App.—San Antonio 2008, pet. denied). Dr. Ng’s expert report explains how and why the three-month delay was a reasonably foreseeable, but-for cause of Weber’s physical pain. See Columbia Valley Healthcare Sys., L.P. v. Zamarripa , 526 S.W.3d 453, 460 (Tex. 2017) (requiring expert report to show foreseeability and but-for causation). Dr. Ng’s report states:
1. Rheumatoid Arthritis (RA) causes pain due to destruction of joint tissue. (¶ 1)
2. Rituxan (a form of chemotherapy, the science of which is explained in the report) mediates RA symptoms, including joint inflammation. (¶¶ 1-2)
3. Early treatment is to key to preventing pain caused by RA. (¶ 1)
4. Weber has RA. (¶ 3)
5. The Practice delayed scheduling Weber for an appointment for approximately three months. (¶ 3)
6. Because of the delay, Weber was unable to receive Rituxan treatment. (¶ 4)
7. The Practice prescribed Rituxan for Weber on February 21, 2013, without testing her for hematuria. (¶ 4).
8. During the three-month delay, Weber complained of "almost unbearable" and "intolerable" pain from her RA. (¶¶ 3, 12)
9. "[B]ased on a reasonable medical probability," the report concludes the Practice’s three-month delay "most likely did" cause Weber’s unnecessary physical pain. (Introduction, ¶ 12)
Appellants argue Weber could not receive Rituxan because she had hematuria, but the report states the Practice prescribed Rituxan without assessing her for hematuria (Introduction). The expert report is not conclusory because it explains how and why: (1) physical pain is a reasonably foreseeable consequence of untreated RA; and (2) without an appointment, Weber suffered unnecessary RA-related pain because she could not receive Rituxan treatment. See id.
The expert report is also not speculative. The majority isolates and emphasizes the words "can" and "may have" in the expert report, but the supreme court "ha[s] explained that courts must view the report in its entirety, rather than isolating specific portions or sections, to determine whether it includes such information." Baty v. Futrell , No. 16-0164, 543 S.W.3d 689, 694, 2018 WL 665456, at *4 (Tex. Feb. 2, 2018). The report concludes "based on a reasonable medical probability," that the Practice’s three-month delay "most likely did" cause Weber’s unnecessary physical pain.
Dr. Ng’s expert report certainly requires the reader to piece together the causation analysis, but "the trial court [i]s entitled to read the causation section in the context of the entire report." See Stephanie M. Philipp, P.A. v. McCreedy , 298 S.W.3d 682, 690 (Tex. App.—San Antonio 2009, no pet.). We too must read the expert report as a whole to determine whether it contains the necessary information and not isolate and emphasize specific words or parts. See Baty , 543 S.W.3d 689, 2018 WL 665456, at *4. When read as a whole, the report is neither conclusory nor speculative as appellants argue, and thus the trial court’s order should be affirmed as to the Practice.