Opinion
No. 05-04-00546-CV
Opinion issued May 11, 2005.
On Appeal from the 191st District Court, Dallas County, Texas, Trial Court Cause No. 02-10915-J.
Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
Ghinica Staev appeals the summary judgment in favor of defendant David Azouz, M.D. In four issues, Staev argues the trial court erred in (1) granting the no-evidence motion; and granting the motion for summary judgment on the grounds that (2) her medical negligence lawsuit was recast as fraud and Deceptive Trade Practices Act (DTPA) causes of action, (3) the fraud and DTPA causes of action were barred by the applicable statute of limitations, and (4) the fraud and DTPA actions were barred by the statute of frauds. We affirm the trial court's judgment.
BACKGROUND
In 2002, Staev decided she wanted a face lift. She visited with several plastic surgeons but decided not to use them because she did not like their results as shown in their before-and-after pictures. When Staev visited Azouz, he showed her a before-and-after picture of a woman about Staev's age who looked much younger in the "after" picture. Staev hired Azouz to perform the face lift, paid him a $9000 fee for the operation, and paid the hospital $900 for its fees.
After the operation, Staev suffered much more pain and swelling than she expected. She learned that Azouz had almost completely removed her ears during the operation and had reattached them crookedly, with one ear lower than the other. Azouz had also shortened her eyelids to the point her eyes would not close. She also had a swelling in her cheek that had not subsided since the operation. Staev filed suit against Azouz under then-controlling article 4590i, the Medical Liability and Insurance Improvement Act. She alleged Azouz was negligent in failing to properly inform her of the risks of the surgery, was negligent in his performance of the surgery, and committed battery by performing surgery exceeding her informed consent. Staev failed to file the required expert report and curriculum vitae in compliance with section 13.01 of article 4590i. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01 (repealed 2003). Instead, she amended her petition to include causes of action for fraud and violations of the DTPA and nonsuited her claims for negligence and battery.
Staev testified in her deposition that this swelling makes it appear she has a toothache, and because she works in a dentist's office, this has been a source of embarrassment.
See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985-87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (now codified at Tex. Civ. Prac. Rem. Code Ann. § 74.351 (Vernon Supp. 2004-05)).
In her fraud and DTPA actions, Staev alleged seven misrepresentations by Azouz:
a. Dr. Azouz falsely represented that the face lift procedure he intended to perform would be simple and uncomplicated;
b. Dr. Azouz falsely represented that Plaintiff would not have any significant swelling;
c. Dr. Azouz omitted to reveal the Plaintiff would actually suffer painful and embarrassing swelling for up to two months after the surgery;
d. Dr. Azouz falsely represented that Plaintiff could comfortably return to work on the fifth (5) day after the surgery;
e. Dr. Azouz omitted to reveal that the surgery he planned to perform would be significant and extensive, that during the surgery he would almost fully detach her ears and that he would permanently cut of [sic] the bony protrusions of the ears, that he would have to cut her eye lids and that doing so might result in her not being able to close her eyes;
f. Dr. Azouz falsely represented factual details pertaining to a "before and after" photo of a former patient used to demonstrate the success of his surgery;
g. Dr. Azouz falsely represented himself to be the best plastic surgeon in the Dallas area and that he exclusively performed facial plastic surgery[.]
Staev also asserted under the DTPA claim that Azouz "engaged in an unconscionable act" by taking advantage of her lack of knowledge, ability, experience or capacity to a grossly unfair degree and by exploiting his position of trust as a doctor; and she alleged "He told Plaintiff to 'trust him.'" As damages, Staev sought $9,900, which was the amount of Azouz's fee for performing the surgery plus the charge for the operating room and hospital fees.
In response to the causes of action for fraud and violations of the DTPA, Azouz moved for summary judgment on the grounds that he was entitled to judgment as a matter of law because Staev's claims were merely a recasting of her negligence claim, her claims were barred by the statute of frauds and limitations, and on the ground that Staev had no evidence to support her causes of action. See Tex. R. Civ. P. 166a(c) (i). The trial court ruled that the summary judgment motion should be granted "in all things" and dismissed all of Staev's claims.
STANDARD OF REVIEW
When he presented his traditional motion for summary judgment, Azouz had the burden to demonstrate no genuine issues of material fact existed and that he was entitled to judgment as a matter of law. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Once Azouz established his right to summary judgment, the burden shifted to Staev to present the trial court with evidence of any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Azouz's no-evidence motion for summary judgment required Staev to present sufficient evidence to raise a genuine issue of fact on each challenged element of her claims. See Gen. Mills Rest. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). If more than one ground for summary judgment is asserted and the trial court does not specify on which ground it granted summary judgment, or as in this case where the trial court granted the motion "in all things," the summary judgment will be affirmed if any of the theories advanced in support of it are meritorious. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
RECAST NEGLIGENCE CLAIM
In her second issue, Staev asserts the trial court erred in granting Azouz's motion for summary judgment on the ground that Staev's claims were an attempt to recast health care liability claims as fraud and DTPA claims so as to avoid the requirements of article 4590i. Such recasting of claims involving informed consent is prohibited by section 6.02:
In a suit against a physician or health care provider involving a health care liability claim that is based on the failure of the physician or health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.
Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.02 (repealed 2003). Furthermore, section 12.01 provides that the DTPA does not apply to claims for damages for personal injury resulting from a physician's negligence. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 12.01 (repealed 2003). Staev asserts that these provisions do not apply to her claims because they are not "health care liability claim[s]." Staev argues they are not health care liability claims because (1) they do not require a determination of whether there was a breach of a physician's standard of care and (2) Staev is seeking economic damages, not personal injury damages. See id. art. 4590i, § 1.02(a)(4) (repealed 2003) (defining "health care liability claim" as cause of action against a physician for departure from accepted standard of medical proximately resulting in injury to the patient, whether the claim or cause of action sounds in tort or contract); Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994) (DTPA claim is not "health care liability claim" if not based on physician's breach of standard of medical care).
Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 6.02, 1977 Tex. Gen. Laws 2039, 2048, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (now codified at Tex. Civ. Prac. Rem. Code Ann. § 74.101 (Vernon Supp. 2004-05)).
Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 12.01, 1977 Tex. Gen. Laws 2039, 2053, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (now codified at Tex. Civ. Prac. Rem. Code Ann. § 74.004 (Vernon Supp. 2004-05)).
Staev's allegations of Azouz's failure to disclose the risks and hazards of her surgery, alleged misrepresentations "a" through "e" in her petition, involve whether a physician in this situation was required or prohibited from making the alleged representations. Thus, the fraud and DTPA claims concerning these misrepresentations are based upon Azouz's departure from accepted standards of medical care.
That Staev seeks only her out-of-pocket costs for the surgery does not prevent her suit from being based on her injuries resulting from the alleged breach of the standard of care (i.e., the misrepresentations). The nature of the alleged misrepresentations and her affidavit and deposition testimony show her suit is based on the physical and emotional suffering she endured after the operation; that she has chosen to limit her damages to her out-of-pocket costs does not remove her lawsuit from the restrictions and requirements of article 4590i. Under section 6.02, Staev's fraud and DTPA claims based on misrepresentations "a" through "e" could be brought only as a negligence claim under article 4590i. Staev failed to comply with the expert-report requirements of article 4590i. Likewise, section 12.01 prohibits Staev from bringing these claims under the DTPA. Accordingly, the trial court did not err in granting Azouz's motion for summary judgment to the extent the fraud and DTPA claims involved alleged misrepresentations "a" through "e."
Staev also alleged Azouz violated the DTPA by committing an unconscionable act. See Tex. Bus. Com. Code Ann. § 17.50(a)(3) (Vernon 2002). An "unconscionable action or course of action" is defined in the DTPA as "an act or practice which, to a consumer's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree." Id. § 17.45(5). In her affidavit, Staev paraphrased this definition and then stated, "He told me to 'trust him.'" Staev does not explain, and we do not perceive, how a surgeon's telling a patient to "trust him" is evidence that the surgeon has "take[n] advantage of the lack of knowledge, ability, experience, or capacity of the [patient] to a grossly unfair degree." Id. In her deposition, the only evidence of how Azouz "[took] advantage" was Staev's deposition testimony: "He took advantage of me as a patient to perform the surgery, and didn't perform the surgery the way how it's supposed to be. So that is his advantage." This testimony shows Staev's unconscionable act claim is based on Azouz's breach of the physician's standard of care. Thus, under sections 6.02 and 12.01, this claim could be brought only as a negligence claim, not a DTPA claim. Id. art. 4590i, §§ 6.02, 12.01. We conclude the trial court did not err in granting Azouz's motion for summary judgment on Staev's DTPA claim based on the allegation that Azouz committed an unconscionable act. We overrule Staev's first issue in part.
NO EVIDENCE
In her second issue, Staev asserts the trial court erred in granting Azouz's no-evidence motions for summary judgment. Azouz moved for summary judgment under rule 166a(i), asserting there was no evidence to support the alleged misrepresentations. In response, Staev stated her affidavit and deposition contain evidence of the misrepresentations. Because we have concluded Staev cannot recover under her causes of action for fraud and DTPA on misrepresentations "a" through "e," we consider whether there is evidence to support the remaining misrepresentations, "f" and "g."
In this case, the evidence in the record consists of Staev's deposition and affidavit. Azouz did not object to Staev's affidavit or deposition testimony on the ground that it was conclusory. However, conclusory statements in affidavits are substantively defective, and their defectiveness may be raised for the first time on appeal. Brown v. Brown, 145 S.W.3d 745, 751 (Tex.App.-Dallas 2004, pet. denied). Conclusory testimony is "not competent summary judgment evidence." Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994). "A conclusory statement is one that does not provide the underlying facts to support the conclusion." Brown, 145 S.W.3d at 751.
After reviewing Staev's deposition and affidavit, we conclude the record contains no evidence of the falsity of the second half of representation "g," "that he exclusively performed facial plastic surgery." This representation is not mentioned in Staev's deposition. In her affidavit, Staev repeats the laundry list of representations, including the representation "[t]hat Azouz's exclusive expertise was in plastic surgery," and she then states, "Sometime after the surgery, I discovered that Dr. Azouz's representations and omissions concerning his services above were false and that he intentional [sic] made these statements or omissions to me knowingly." This sentence contains only Staev's conclusion that the representation was false; it contains no underlying facts to support the conclusion. Accordingly, the statement of the falsity of Azouz's representation that he practiced plastic surgery exclusively was conclusory and is no evidence.
Likewise, there is no evidence to support the falsity of Azouz's representation that he was the best plastic surgeon in Dallas. Besides the conclusory statement from Staev's affidavit quoted above, the only statements purporting to show the falsity of this representation is Staev's deposition testimony:
Q. So did he, in fact, say to you that he was the best plastic surgeon?
A. Yes, he did.
Q. And do you believe this is a false statement?
A. Now, yes.
Q. Why do you believe that's a false statement?
A. Because he didn't perform the best surgery on me.
This testimony shows only that Staev was displeased with the outcome of Azouz's surgery on her; it constitutes no evidence of whether he is the best plastic surgeon in Dallas.
As for alleged misrepresentation "f" concerning the before-and-after photographs of another patient, Staev testified Azouz showed her a photograph of a woman about her age who, after the surgery, looked twenty years younger. Staev testified about the photograph:
Q. When you went to the very first doctor that you selected from the Yellow Pages, why did you not pick him at that time?
A. Because I didn't see very good result in their before and after surgery pictures. Dr. Azuoz [sic] show me this picture, which was very stunning. It looks like the woman looked 20 years younger after the surgery, which today I think that picture maybe was a fraud. He show me only one single picture of one single person.
* * *
Q. Let's go ahead and talk about the photo
A. About the photo, I think that was fraud photo, because the change that I saw on the picture before and after the surgery was extreme change. This person looked like 20 years younger, and I think that this photo may be was photo from this person 20 years ago.
Q. But do you know that that's, in fact, what he did?
A. I don't know if this it for fact, but that's what I think. . . .
Q. And why do you feel that's a misrepresentation?
A. I feel this is a fraud.
Q. Why?
A. Why? Because it's not real. It can't be. He didn't perform near that good surgery on me.
* * *
Q. Did he tell you in any words — did he say any sentences to you one way or the other that would indicate to you that you were going to have the same result as the woman in the photo?
A. No, he didn't say, You're going to look as exactly like this woman.
This testimony shows Staev's allegation that Azouz "falsely represented factual details pertaining to a 'before and after' photo of a former patient used to demonstrate the success of his surgery" is supported by nothing more than Staev's unsupported conclusion that the photograph was not authentic. These conclusory statements are no evidence in a summary judgment proceeding.
After considering Staev's affidavit and deposition, we conclude the trial court did not err in granting Azouz's motion for summary judgment on the ground of no evidence to support Staev's claims of fraud and DTPA violations based on alleged misrepresentations "f" and "g." We overrule Staev's second issue in part.
CONCLUSION
We hold the trial court did not err in granting Azouz's motion for summary judgment. Accordingly, we need not reach Staev's third and fourth issues challenging the granting of the summary judgment on the grounds of limitations and the statute of frauds. See Tex.R.App.P. 47.1.
We affirm the trial court's judgment.