Opinion
No. 04-17-00520-CV
03-07-2018
THILO BURZLAFF, M.D., P.A., and Tamela Arabit-Burzlaff, Individually Appellant v. Janet M. WEBER, Appellee
DISSENTING OPINION
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2015-CI-03358
Honorable Solomon Casseb, III, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice
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)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.
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)
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, 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, 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.
Luz Elena D. Chapa, Justice