Opinion
No. 04-06-00540-CV
Delivered and Filed: October 17, 2007.
Appeal from the 341st Judicial District Court, Webb County, Texas, Trial Court No. 2005-CVQ-000817-D3, Honorable Elma Teresa Salinas Ender, Judge Presiding.
AFFIRMED.
Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
Jose Luis Mata, Jr. appeals the trial court's order dismissing the underlying lawsuit based on Mata's failure to timely file an expert report as required by Chapter 74 of the Texas Civil Practice and Remedies Code ("Code"). Because Mata's claims were health care liability claims, we affirm the trial court's order.
Background
Mata was arrested for driving while intoxicated. The Webb County Jail refused to accept Mata without medical clearance because of his altered mental status and his complaints of nausea, vomiting, and abdominal pain. When Mata refused to consent to the urine and blood tests needed to diagnose him for medical clearance, Mata alleges that the appellees forcibly performed the tests.
In his original petition, Mata sued the appellees alleging they were negligent in the medical care, advice, and treatment provided to him and in treating him without his consent. Mata also pled causes of action for false imprisonment and violation of his civil rights. Mata's petition stated that he had complied with sections 74.051 and 74.052 of the Code by providing the appellees with the statutorily required notice. When Mata failed to timely serve the appellees with an expert report as required by section 74.351 of the Code, the appellees moved to dismiss the lawsuit.
The day before the hearing on the appellees' motion to dismiss, Mata amended his petition. In his amended petition, Mata deleted the claims for negligence in medical care and treatment without consent and replaced them with claims for assault and battery, sexual assault, civil conspiracy, and violation of his civil rights. After a hearing, the trial court dismissed Mata's claims against the appellees.
Physician-Patient Relationship
Mata initially contends that he was not required to serve appellees with a section 74.351 expert report because no physician-patient relationship existed between Mata and the appellees. Creation of a physician-patient relationship does not require the formalities of a contract. St. John v. Pope, 901 S.W.2d 420, 424 (Tex. 1995). If services are contracted for the benefit of a patient with the patient's implied consent, a physician-patient relationship exists. Lopez v. Aziz, 852 S.W.2d 303, 306 (Tex.App.-San Antonio 1993, no writ).
In Garay v. County of Bexar, this court considered whether a physician-patient relationship was established when medical personnel examined an unconscious detainee pursuant to a policy that required such an examination upon a detainee's entry into a detention center. 810 S.W.2d 760, 764 (Tex.App.-San Antonio 1991, writ denied). This court concluded:
Although the detainee could not in her state of unconsciousness agree to a medical examination, it was the responsibility of the authority that placed her in confinement to see that her condition did not merit medical treatment and it was for this reason that medical personnel examined her. Having been examined by medical personnel we conclude that a physician-patient relationship was established.
Id.
In this case, although Mata was not unconscious, he exhibited an altered condition and complained of health issues. Just as in Garay, the hospital was required to examine Mata to provide medical clearance for his entry into jail. Although Mata contends that he refused to submit to the testing, the appellees had the responsibility to examine Mata and diagnose the source of his altered condition and medical complaints. Unlike the workers' compensation cases cited by Mata where a physician renders services for an employer, the services rendered by the appellees were for Mata's benefit. Accordingly, a physician-patient relationship was established.
Health Care Liability Claim
To determine whether a cause of action is a health care liability claim, we examine the underlying nature of the claim and are not bound by the form of the pleading. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005). A cause of action is a health care liability claim if it is based on a claimed departure from an accepted standard of medical or health care, regardless of whether the action sounds in contract or tort. Id. at 848. A cause of action alleges a departure from accepted standards of medical or health care if the act or omission complained of is an inseparable part of the rendition of medical services. Id. Whether expert testimony is necessary to prove the claim is an important factor in determining whether a cause of action is an inseparable part of the rendition of medical or health care services. Id. Expert testimony is necessary to establish the applicable standard of care when the alleged negligence is of such a nature as not to be within the experience of the layman. Institute for Women's Health, P.L.L.C. v. Imad, No. 04-05-00555-CV, 2006 WL 334013, at *3 (Tex.App.-San Antonio Feb. 15, 2006, no pet.).
In this case, the actions of taking the urine and blood samples were an inseparable part of the rendition of medical services. The samples were needed for testing so that a diagnosis could be made regarding Mata's altered condition and complaints of abdominal pain and nausea. Expert testimony would be necessary to establish the standard of care because a layman does not have the experience to know when and how urine and blood samples can be forcibly taken from a patient or what an ordinarily prudent physician or health care provider would do under the circumstances. See Groomes v. USH of Timberlawn, Inc., 170 S.W.3d 802, 806 (Tex.App.-Dallas 2005, no pet.) (whether doctor was authorized to detain a patient required expert testimony regarding the departure from the accepted standard of care); Theroux v. Vick, 163 S.W.3d 111, 114 (Tex.App.-San Antonio 2005, pet. denied) (claim that physician performed more invasive surgery without consent was a health care liability claim); Williams v. Walker, 995 S.W.2d 740, 742 (Tex.App.-Eastland 1999, no pet.) (claim that physician performed medical procedure without consent held to be health care liability claim). Accordingly, Mata's claims were health care liability claims subject to the expert report requirement of Chapter 74 of the Code.
Claims Asserted
Mata finally argues that even if some of his claims are health care liability claims, he also pled causes of action for assault and battery, sexual assault, civil conspiracy, and civil rights violations. It is well settled that a health care liability claim cannot be recast as another cause of action to avoid the requirements of Chapter 74. Diversicare Gen. Partner, Inc., 185 S.W.3d at 851. As previously noted, we examine the nature of the underlying claims and allegations and are not bound by the form of the pleading. Id. at 847; Imad, 2006 WL 334013, at *3. A recasting of a health care liability claim in the garb of some other cause of action will not be allowed to circumvent Chapter 74. NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 34-35 (Tex.App.-El Paso 2006, no pet.). Although Mata amended his pleading to assign different labels to his causes of action, the underlying allegation that the appellees forcibly performed medical procedures on him without his consent remains the same. Mata's claims based on this allegation were health care liability claims subject to the expert report requirement of Chapter 74.
Conclusion
The trial court's order is affirmed.