Opinion
05-24-00350-CV
12-19-2024
MARK L. MAZOW, M.D. AND EYE PLASTIC SURGERY ASSOCIATES, Appellants v. ANTOINETTE PEOPLES, Appellee
On Appeal from the County Court at Law No. 4 Dallas County, Texas Trial Court Cause No. CC-23-06912-D
Before Justices Partida-Kipness, Goldstein, and Miskel
MEMORANDUM OPINION
ROBBIE PARTIDA-KIPNESS, JUSTICE
In this interlocutory appeal, appellants Mark L. Mazow, M.D. and Eye Plastic Surgery Associates appeal the denial of their motion to dismiss for failure to file a Chapter 74 expert report. See Tex. Civ. Prac. & Rem. Code § 74.351 (expert report requirements where health care liability claim is pleaded); Tex. Civ. Prac. & Rem. Code § 74.353(d) ("A preliminary determination under this section is subject to interlocutory appeal by either the claimant or defendant."); Tex. Civ. Prac. & Rem. Code § 51.014(a)(9) (order denying a motion to dismiss under Section 74.351(b) is subject to interlocutory appeal). Because we conclude appellee Antoinette Peoples' claims are health care liability claims subject to Chapter 74's expert-report requirements, we reverse and remand to the trial court with instructions to render judgment dismissing Peoples' claims with prejudice and awarding Dr. Mazow attorney's fees and court costs pursuant to section 74.351(b) of the Texas Civil Practice & Remedies Code.
BACKGROUND
Because this appeal arises from the trial court's preliminary determination of the expert report requirement under Chapter 74, we have a limited record consisting primarily of the pleadings. See Tex. Civ. Prac. & Rem. Code § 74.351(s) (all discovery in a health care liability claim is limited until a claimant has served the expert report and curriculum vitae as required by section 74.351(a)). Dr. Mazow disagrees with Peoples' characterization of the events and, on appeal, specifically denies her contention that he did not perform the surgery in question. The following factual summary is based solely on the limited record before us and we make no findings as to the veracity of the allegations made below.
Dr. Mazow is a board certified ophthalmologist specializing in eye plastics or oculoplastics. https://www.drmarkmazow.com/aboutus.html (last visited Dec. 19, 2024). Eye Plastic Surgery Associates "specializ[es] in diseases and surgery of the eyelids, orbit and lacrimal (tear duct) system, tumors of the eye and orbit, and cosmetic surgery of the eyelids and face." Id. In July 2021, Peoples went to Dr. Mazow for a consultation concerning enlargement of the glands of her upper eyelids and possible cosmetic surgery for fatty tissue bags under her eyes. According to Peoples, Dr. Mazow diagnosed her during the consultation "as having upper eyelids Bilateral anterior orbitotomy tumors." Peoples contends she told Dr. Mazow she did not have tumors in her upper eyelids and requested a CT scan. Peoples also explained she had surgery for a bilateral lacrimal gland enlargement more than twenty years ago and "there were no symptoms, scars, tissues or pain after the healing process."
Dr. Mazow's records show he diagnosed Peoples preoperatively with "[o]rbital tumor [in] both eyes" as well as "[c]osmetic lower lid rhytids [or wrinkles in] both eyes." On July 9, 2021, Dr. Mazow performed surgery on Peoples during which he removed the tumors from both eyes and performed a "lower lid blepharoplasty [of] both eyes." His records describe the procedure and state he used dissection and resection "until a significant portion of the [left upper] lesion had been removed," doing the same on the right upper lid, and incision of "the conjunctiva [of the left lower lid] to "sculpt[]" "the central, medial, and lateral fat pockets" with repetition of that procedure on the right lower lid. Dr. Mazow sent the tumors to pathology, which found "[b]enign lacrimal glands" on the left that were "[n]egative for malignancy" and "[b]enign fibroadipose tissue" on the right." His postoperative diagnosis was the same as his preoperative diagnosis.
Blepharoplasty "is a type of surgery that removes excess skin from the eyelids." https://www.mayoclinic.org/tests-procedures/blepharoplasty/about/pac-20385174 (last visited Dec. 19, 2024). Blepharoplasty may be performed on the upper eyelids or lower lids. Id. When performed on upper eyelids, "the surgeon cuts along the fold of the eyelid" and "removes some excess skin, muscle and possibly fat." Id. In a lower lid surgery, "the surgeon makes a cut just below the lashes in your eye's natural crease or inside the lower lid" and "removes or redistributes excess fat, muscle and sagging skin." Id.
According to Peoples, she "had a very bad experience in the recovery room," and woke up with a migraine headache, nausea, and numbness on the left side of her face. She was also dissatisfied with her post-operative interactions with Dr. Mazow. Peoples contends she did not request "removal of Bilateral anterior orbitotomy tumors on both upper eyelids." She further maintains Dr. Mazow did not perform a lower lid blepharoplasty of both eyes. In her pleadings, Peoples alleges that the corner of her upper left eyelid remains numb because "Dr. Mazow cut a nerve on the left eyelid where an incision and a vein is bulging connected." Peoples asserts that when she shared her complaints with Dr. Mazow during their last visit on October 11, 2021, Dr. Mazow admitted he did not perform the lower lid surgery and agreed to refund her $2,540 for the lower eyelid blepharoplasty that was not performed. In a letter dated October 20, 2021, Dr. Mazow provided Peoples with an Acknowledgement and Release she would be required to sign to receive a refund. Peoples refused to sign the Acknowledgment and Release, and Dr. Mazow did not refund her payments.
On March 14, 2023, Peoples filed a small claims case in a Dallas County Justice Court. Her original Statement of Claim filed in the justice court stated the nature of the claim as follows: "Suing for negligence of lower lid blepharoplasty both eyes surgery and my remaining balance of $2,840.00. I am also suing for mental anguish and emotional distress." She attached multiple documents to her Statement of Claim, including the following:
• A letter to the judge assigned to her claim explaining her complaints;
• Letters purportedly sent to Dr. Mazow requesting a refund;
• The radiology report from a June 2021 CT Scan ordered by Dr. Mazow;
• The pathology report concerning the tumors removed during her surgery;
• Billing statements and payment receipts from Eye Plastic Surgery Associates;
• Dr. Mazow's operative report;
• A copy of a $645.00 refund check from the facility where the surgery was performed;
• The October 20, 2021 letter and Acknowledgment and Release from Dr. Mazow;
• Medical records from a consultation with Dr. Adriane Schiano on September 29, 2022;
• Visit Notes from a November 23, 2022, examination by Dr. Jonathan Nathan of Westlake Dermatology Dallas University Park;
• A surgery quote for upper and lower eyelid blepharoplasty from Dr. Nathan; and
• On-line reviews of Dr. Mazow.
In the letter attached to her Statement of Claim, Peoples provided her timeline of events and complaints. She told the court she "did not request for a removal of Bilateral anterior orbitomy tumors on both upper eyelids," and explained she had a "very bad experience in the recovery room," and suffered post-surgery complications, including facial numbness. Peoples then described her complaints as follows:
My complaints are that the surgery on upper and lower eyelids went terribly wrong. Dr. Mazow did an awful procedure on me and I am asking for my full refund of $2,840 for lower eyelid blepharoplasty on both eyes. So that I may have both lower eyelids blepharoplasty surgery done in the future. I have to pay more now due to limited doctors with insurance and l have to go out of network and research to see about the nerve damage, scar tissues and bilateral lacrimal gland on both upper eyelids are blotched.
She concluded the letter as follows:
Dr. Mark Mazow has caused me to suffer severe depression/anxiety, mental anguish and emotional damages. . . . This doctor has caused me mental anguish and emotional damages due to his retaliation and harassment. I am worse off after Dr. Mazow's surgery. Moreover. loss of money on no surgery to both lower eyelids and Dr. Mazow wasted my time and time lost in researching to find doctors in this pandemic recession is difficult and costly for repairs out of pocket. I am suing for negligence of lower eyelid Blepharoplasty both eyes surgery and my remaining 2,840. I am also suing for mental anguish and emotional distress
On March 23, 2023, Peoples filed an Amended Statement of Claim in which she alleged she was suing Dr. Mazow for negligence because he did not do the surgery on both lower eyelids. She stated the following as the nature of her claim:
Suing for negligence of lower lid Blepharoplasty both eyes surgery, no surgery on both lower eyelids and my remaining balance of $2,840.00 I am also suing for mental anguish and emotional distress, damages over all.
On September 8, 2023, the justice court granted Dr. Mazow's motion to dismiss for failure to serve a Chapter 74 expert report.
On September 15, 2023, Peoples appealed to the county court at law. On November 22, 2023, Dr. Mazow filed a general denial. On January 16, 2024, Dr. Mazow filed a motion to dismiss for failure to serve a Chapter 74 expert report. People filed a "Supplemental Petition" on February 22, 2024. In the "Supplemental Petition," Peoples asserted a "Breach of Contract" claim in which she asserted she paid Dr. Mazow $2,540 to perform a lower lid blepharoplasty for both eyes, and Dr. Mazow breached that contract by failing to perform the lower lid blepharoplasty. She sought "actual or economic damages for the cost of the procedure," and "[s]pecial or consequential damages for mental anguish, emotional distress, and past and future suffering." The county court heard Dr. Mazow's motion to dismiss on February 26, 2024, and denied the motion by written order on March 13, 2024. This appeal followed.
STANDARD OF REVIEW
Generally, appellate courts review the denial of a Chapter 74 motion to dismiss for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Broxterman v. Carson, 309 S.W.3d 154, 157 (Tex. App.-Dallas 2010, pet. denied). The determination of whether a claim is a health care liability claim, however, is a legal question we review de novo. Baylor Scott & White Hillcrest Med. Ctr., 575 S.W.3d 357, 363 (Tex. 2019); Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012). If we conclude the claims are health care liability claims, then the trial court had no discretion to deny the motion to dismiss where, as here, the plaintiff did not file an expert report as required by section 74.351 of the Texas Civil Practice and Remedies Code and did not challenge the applicability of that statute to her claims. Univ. of Tex. Health Sci. Ctr. at Hous. v. Joplin, 525 S.W.3d 772, 778 (Tex. App.-Houston [14th Dist.] 2017, pet. denied) (citing Tex. Civ. Prac. & Rem. Code § 74.351(a), (b)); Philipp v. Methodist Hosps. of Dall., No. 05-21-00350-CV, 2022 WL 2448118, at *2 (Tex. App.-Dallas July 6, 2022, no pet.) (mem. op.) ("Thus, if the report is not filed by the deadline, the Legislature has denied trial courts the discretion to grant extensions or deny motions to dismiss, and a trial court's refusal to dismiss may be immediately appealed.") (citing Badiga v. Lopez, 274 S.W.3d 681, 683 (Tex. 2009)); Christus Santa Rosa Health Care Corp. v. Botello, 424 S.W.3d 117, 121 (Tex. App.-San Antonio 2013, pet. denied) ("In other words, if the report is not filed by the deadline, a trial court may not grant extensions to file and has no discretion to deny a motion to dismiss filed by a health care provider.") (citing Ogletree v. Matthews, 262 S.W.3d 316, 319-20 (Tex. 2007)); Breiten v. Shatery, 365 S.W.3d 829, 831 (Tex. App.-El Paso 2012, no pet.) ("Trial courts have no discretion to deny motions to dismiss or to grant extension if the statutory deadline is not met.") (citing Badiga, 274 S.W.3d at 683).
SCOPE OF REVIEW
The Texas Medical Liability Act (TMLA) requires a claimant who asserts a "health care liability claim" to serve one or more expert reports describing the applicable standards of care, how the defendant's conduct failed to meet those standards, and how those failures caused the claimant harm. Tex. Civ. Prac. & Rem. Code § 74.351(a), (r)(6). If a claimant fails to serve a compliant report within 120 days after the defendant files its original answer, the trial court must dismiss the claim with prejudice and award the defendant attorney's fees and costs. Id. § 74.351(b).
Whether the Act applies turns on the claim's "underlying nature . . . rather than its label." Collin Creek Assisted Living Ctr., Inc. v. Faber, 671 S.W.3d 879, 885 (Tex. 2023) (quoting Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019); and then citing Lake Jackson Med. Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 836-38 (Tex. 2022)). To determine a claim's nature, a court must carefully define the universe of relevant facts. Id. "How the court does so can significantly affect the outcome of the analysis." Id.
Courts must focus on the set of operative facts "underlying the claim" that are relevant to the alleged injury, not on how "the plaintiff's pleadings describ[e] the facts or legal theories asserted." Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012). If those facts "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[,]" then the TMLA applies "regardless of whether the plaintiff alleges the defendant is liable for breach of any of those standards." Id.; see also Yamada v. Friend, 335 S.W.3d 192, 193 (Tex. 2010) (holding claims based on same set of "underlying facts" as a health care liability claim are health care liability claims); PM Mgmt.-Trinity NC, LLC v. Kumets, 404 S.W.3d 550, 550-52 (Tex. 2013) (same).
Further, the relevant facts are not limited to those alleged in a claimant's live pleading. Gaytan, 640 S.W.3d at 838-39. Instead, they should be drawn from the "entire court record, including the pleadings, motions and responses, and relevant evidence properly admitted." Loaisiga, 379 S.W.3d at 258. "This broad scope of relevant facts helps to promote the Act's consistent and predictable application to the claims of similarly situated plaintiffs and prevent gamesmanship." Faber, 671 S.W.3d at 886. "[A] party cannot avoid Chapter 74's requirements and limitations through artful pleading." Weems, 575 S.W.3d at 363; see also Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851, 854 (Tex. 2005); Ahmadi v. Moss, 530 S.W.3d 754, 757-58 (Tex. App.-Houston [14th Dist.] 2017, no pet.); Med. Hosp. of Buna Tex., Inc. v. Wheatley, 287 S.W.3d 286, 291 (Tex. App.-Beaumont 2009, pet. denied). Moreover, "[a] clear, deliberate, and unequivocal factual allegation made in a live pleading and not pleaded in the alternative constitutes a judicial admission that conclusively establishes the fact and bars the pleader from disputing it." Gaytan, 640 S.W.3d at 839 (first citing Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000), and then citing Hous. First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983)). However, "allegations contained in a pleading that is superseded by an amended pleading are not 'conclusive and indisputable judicial admissions.'" Id. (quoting Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995)).
ANALYSIS
In a single issue, Dr. Mazow and Eye Plastic Surgery Associates contend the trial court abused its discretion by denying their Chapter 74 motion to dismiss and failing to award them statutory remedies because Peoples' claims are health care liability claims, and she failed to file the required expert report. See Tex. Civ. Prac. & Rem. § 74.351. Peoples maintains her only claim sounds in contract because she is seeking damages from Dr. Mazow's breach of an alleged oral contract to reimburse Peoples for the cost of the procedure. We agree with Dr. Mazow and Eye Plastic Surgery Associates.
To determine whether a given set of operative facts could support a health care liability claim, we turn to the language of the Act. Faber, 671 S.W.3d at 886 (citing Rogers v. Bagley, 623 S.W.3d 343, 350 (Tex. 2021)). The Act defines a health care liability claim as
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 § 74.001(a)(13). This definition includes three essential elements: (1) the defendant is a physician or health care provider; (2) the claim is for treatment, lack of treatment, or another departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's act or omission proximately caused the claimant's injury or death. Faber, 671 S.W.3d at 886 (citing Williams, 371 S.W.3d at 179-180).
Here, Peoples does not dispute the first element. Dr. Mazow and Eye Plastic Surgery Associates are physicians and health care providers under the TMLA. See Tex. Civ. Prac. & Rem. Code § 74.001(a)(23)(A)-(B) (defining "physician" as "an individual licensed to practice medicine in this state;" and "a professional association organized under the Texas Professional Association Act (Article 1528f, Vernon's Texas Civil Statutes) by an individual physician or group of physicians"); see also Tex. Civ. Prac. & Rem. Code §74.001(a)(12)(A)(vi) ("'Health care provider' means any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including: . . . an optometrist[.]").
The parties do not agree, however, about the other two elements, which concern Peoples' "cause of action" and whether Peoples has suffered an "injury" as required by Chapter 74. We examine these two elements in turn.
I. Causes of Action
The second element addresses whether Peoples' claims concern "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[.]" Tex. Civ. Prac. & Rem. Code § 74.001(a)(13); see also Faber, 671 S.W.3d at 886-87; Loaisiga, 379 S.W.3d at 255.
In light of the TMLA's broad definitions, the Act "essentially creates a presumption" that a patient's claim against her physician or health care provider complains of "medical care or treatment" and thus constitutes a health care liability claim if it is based on "the defendant's conduct during the patient's care, treatment, or confinement." Loaisiga, 379 S.W.3d at 256; see also Weems, 575 S.W.3d at 363; Rio Grande Valley Vein Clinic, P.A. v. Guerrero, 431 S.W.3d 64, 65 (Tex. 2014) (per curiam); Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 756 (Tex. 2014). "When-as here-the presumption applies, the burden shifts to the claimant to rebut it by showing that her claims are not based on the defendant's 'departure from accepted standards of medical care or health care.'" Gaytan, 640 S.W.3d at 844 (quoting Bioderm, 426 S.W.3d at 759-60). To decide whether the claimant has met that burden, we "first determine whether expert medical or health care testimony is needed to establish the requisite standard of care and breach." Id. (quoting Bioderm, 426 S.W.3d at 760). "If expert testimony is required, the claim is a health care liability claim." Id. Applying these standards, we conclude Peoples' claims are health care liability claims under the TMLA.
The issue in this case is whether a contract claim seeking reimbursement of money paid for a procedure the claimant contends was not performed constitutes a health care liability claim. Although Peoples argues her suit is one for recovery of a refund allegedly promised to her by Dr. Mazow, her pleadings are much broader than that alleged oral contract claim.
Peoples' justice court pleadings became part of the county court at law record when Peoples appealed the justice court's order dismissing her claims. See Tex. R. Civ. P. 506.2. However, we do not consider Peoples' Original Statement of Claim for purposes of our Chapter 74 analysis because her Amended Statement of Claim superseded the Original Statement of Claim. See Gayton, 640 S.W.3d at 840 (first citing Tex.R.Civ.P. 65; then citing Bos v. Smith, 556 S.W.3d 293, 306 (Tex. 2018) ("Amended pleadings supersede prior pleadings, and any claim not carried forward in an amended pleading is deemed dismissed."); and then citing FKM P'ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 633 (Tex. 2008) ("[A]mended pleadings and their contents take the place of prior pleadings."))). "Thus, as a general rule, 'any claim not carried forward in an amended pleading is deemed dismissed.'" In re Estate of Phillips, No. 24-0366, 2024 WL 4645492, at *1 (Tex. Nov. 1, 2024) (first quoting Bos, 556 S.W.3d at 306; then citing Gaytan, 640 S.W.3d at 839 n.7; and then citing FKM, 255 S.W.3d at 632)). "Supplemental pleadings, in contrast, do not supersede prior pleadings." In re Estate of Phillips, 2024 WL 4645492, at *1, n.2 (citing Tex.R.Civ.P. 69). Accordingly, Peoples' live pleadings in the county court at law consisted of the Amended Statement of Claim and the Supplemental Petition (the live pleadings), and we will take those pleadings into account when considering whether Peoples' claims are health care liability claims. See Gaytan, 640 S.W.3d at 839; see also In re Estate of Phillips, 2024 WL 4645492, at *1, n.2.
Rule 506.2 provides, "When an appeal has been perfected from the justice court, the judge must immediately send to the clerk of the county court a certified copy of all docket entries, a certified copy of the bill of costs, and the original papers in the case."
"When deciding whether a cause of action is a health care liability claim, we look at the facts underlying the cause of action, not how the cause of action is labeled." Ahmadi, 530 S.W.3d at 757-58 (citing Yamada, 335 S.W.3d at 196). "A plaintiff cannot avoid the requirements of the Act through artful pleading or by splitting and splicing a health care liability claim into other causes of action with differing standards of care, damages, and procedures." Id. If we determine that the cause of action "is against a physician or health care provider and is based on facts implicating the defendant's conduct during the course of a plaintiff's care, treatment, or confinement," then we must presume that the cause of action is a health care liability claim, which the plaintiff has the burden of rebutting. Loaisiga, 379 S.W.3d at 256; Hopebridge Hosp. Hous., L.L.C. v. Lerma, 521 S.W.3d 830, 836, (Tex. App.-Houston [14th Dist.] 2017, no pet.). Also, "if expert medical or health care testimony is necessary to prove or refute the merits of the claim against a physician or health care provider," then we must conclude that the cause of action is a health care liability claim. See Williams, 371 S.W.3d at 182.
Peoples asserted a negligence claim against Dr. Mazow in her Amended Statement of Claim filed in the justice court and sought contract and personal injury damages. Specifically, she alleged she was suing Dr. Mazow for negligence because he did not do the surgery on both lower eyelids. She stated the following as the nature of her claim:
Suing for negligence of lower lid Blepharoplasty both eyes surgery, no surgery on both lower eyelids and my remaining balance of $2,840.00 I am also suing for mental anguish and emotional distress, damages over all.(emphasis added). In her Supplemental Petition, Peoples asserted a "Breach of Contract" claim but again sought contract and personal injury damages. Peoples' factual allegations are set out in one paragraph in the Supplemental Petition:
9. On or about June 10, 2021, ANTOINETTE PEOPLES orally agreed with MARK MAZOW that ANTOINETTE PEOPLES would pay him two thousand five hundred forty dollars to him and MARK MAZOW would perform a lower lid blepharoplasty for both eyes ("the Contract").
Her "Breach of Contract" claim followed her "Factual Allegations." She specifically pleaded the following:
Peoples substantially performed the contract by paying Dr. Mazow in full;
Dr. Mazow failed to perform "his contractual obligations, specifically, defendants failed to perform the lower lid blepharoplasty"; and .
Dr. Mazow's "breach of contract described hereinabove" injured Peoples, "causing mental anguish and emotional distress."
The Supplemental Petition then requests the following damages:
"(a) Actual or economic damages for the cost of the procedure, and
(b) Special or consequential damages for mental anguish, emotional distress, and past and future suffering."
The facts underlying Peoples' suit are, thus, straightforward. Peoples alleges she paid Dr. Mazow for a lower lid blepharoplasty, but that Dr. Mazow failed to perform that surgery and, instead, only performed surgery on her upper eyelids. If true, these facts implicate Dr. Mazow's conduct during the course of Peoples' treatment. See Ahmadi, 530 S.W.3d at 758 (holding that plaintiff's allegation she paid for two procedures but physician only performed one procedure implicated physician's conduct during course of treatment). Accordingly, we presume that Peoples has asserted a health care liability claim. See id. (citing Loaisiga, 379 S.W.3d at 256, and holding allegations of failure to perform medical procedure was presumptively the assertion of a health care liability claim).
The facts also demonstrate that Peoples' suit is about a "lack of treatment"- i.e., Dr. Mazow's failure to perform the lower lid blepharoplasty. See Ahmadi, 530 S.W.3d at 758 (physician's alleged failure to perform liposuction was a claim for lack of treatment under the TMLA); Access Orthodontics of E. 7th St., P.A. v. Jaimes, No. 03-15-00081-CV, 2015 WL 4508946, at *2 (Tex. App.-Austin July 23, 2015, no pet.) (mem. op.) (an orthodontist's failure to remove braces after the claimant had already paid for the removal represented a health care liability claim for "lack of treatment"). This failure represents a "claimed departure from accepted standards of . . . health care." See Ahmadi, 530 S.W.3d at 758 (first citing Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) (defining "health care liability claim"); and then citing Tex. Civ. Prac. & Rem. Code § 74.001(a)(10) (defining "health care" 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"))).
Even though Peoples attempted to cast her causes of action solely as a contract claim, we conclude her complaints concern the "lack of treatment, or other claimed departure from accepted standards of . . . health care." See Tex. Civ. Prac. & Rem. Code § 74.001(a)(13); see also Ahmadi, 530 S.W.3d at 759. The negligence claim is one for which expert testimony is needed to establish the requisite standard of care and breach. See Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998) (a negligence cause of action requires a legal duty, breach of that duty, and damages proximately caused by that breach); see also Midwest Emp. Cas. Co. v. Harpole, 293 S.W.3d 770, 776 (Tex. App.-San Antonio 2009, no pet.) ("A duty is a legal obligation that requires the defendant to conform to a certain standard of conduct."). The essence of Peoples' negligence claim was that Dr. Mazow failed to conform to a standard of conduct, which is the heart of the definition of a health care liability claim. See Tex. Civ. Prac. & Rem. Code § 74.001(a)(13).
Peoples' claims of negligence are based on the breach of the standard of care applicable to a physician and health care provider. The claims involve the duties owed to the patient and what a prudent physician or health care provider would do under the same or similar circumstances. Determining the appropriate standard of care for the evaluation of the claimed negligent conduct in this matter requires testimony of a person or persons knowledgeable in this specialized health care field. See, e.g., Saleh v. Hollinger, 335 S.W.3d 368, 374-76 (Tex. App.-Dallas 2011, pet. denied) (expert testimony concerning the handling and disposition of eggs following in vitro fertilization procedure was required under the TMLA); see also Martinez v. Battelle Mem'l Inst., 41 S.W.3d 685, 692 (Tex. App.-Amarillo 2001, no pet.) (standards of care related to claims directed to how a medical department is organized, operated, and maintained, as well as claims directed at the medical judgments made following evaluation of the plaintiff "are not within the realm of knowledge of an ordinary juror."). Peoples was, therefore, required under the TMLA to serve a Chapter 74 expert report as to those claims. She failed to do so.
The same is true for the "Breach of Contract" claim included in her Supplemental Petition. That claim, like the negligence claim, arises from Dr. Mazow's treatment and alleged non-treatment of Peoples. Specifically, Peoples alleges that Dr. Mazow did not perform a procedure for which she contracted with him to perform and for which she paid in full. The Supplemental Petition defines "the Contract" as Dr. Mazow agreeing to perform a lower lid blepharoplasty for both eyes in exchange for Peoples' payment for the procedure. Peoples pleaded that Dr. Mazow breached "the Contract" by failing to perform the lower lid blepharoplasty. Finally, she pleaded that Dr. Mazow's breach (i.e., the alleged failure to perform the lower lid blepharoplasty) injured her by "causing mental anguish and emotional distress." The very nature of those allegations require expert testimony to determine if Dr. Mazow performed the lower eyelid procedure and whether failing to perform the surgery breached the requisite standard of care. See, e.g., Armstrong v. Robinsons, No. 14-08-01077-CV, 2010 WL 4817100, *2 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (refund claim sought because dental practice did not provide dentures that fit was inseparable from the dental care provided because whether the patient was entitled to a refund turned on whether the dentures properly fit); see also Loaisiga, 379 S.W.3d at 255 ("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 HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach of any of those standards. See Tex. Civ. Prac. & Rem. Code § 74.001(a)(13).")
Moreover, eye surgery and plastic surgery involve specialized knowledge beyond a layman's common experience or understanding. A layman does not have knowledge about the procedures involved in Peoples' care and treatment, including the reasons a physician like Dr. Mazow may decide to perform some but not all parts of a planned surgery when the physician is in the operating room. Expert testimony is, therefore, required to establish the requisite standard of care and breach. See Gaytan, 640 S.W.3d at 844. Because expert testimony is required, the claims are health care liability claims. Id. Applying these standards, we conclude the second element is satisfied.
II. Injury Caused by Dr. Mazow's Alleged Departure from Accepted Standards of Care
The third element of a health care liability claim is that the defendant's departure from accepted standards of care must have proximately resulted "in injury to or death of a claimant[.]" Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). On appeal, Peoples presented no specific briefing addressing the third required element of a health care liability claim. She does, however, assert that her injuries were caused by Dr. Mazow's failure to reimburse her, not his failure to perform the lower lid blepharoplasty. The record belies that assertion. Peoples' live pleadings do not allege an oral contract for reimbursement as she contends in this Court. Nor do the live pleadings state that her injuries were caused by lack of reimbursement. On the contrary, the live pleadings assert only that Dr. Mazow's failure to perform the lower lid blepharoplasty proximately caused her to suffer economic damages for services paid for and never performed and non-economic damages for mental anguish, emotional distress, and past and future suffering. Those alleged injuries fall squarely within the definition of a health care liability claim. See, e.g., Ahmadi, 530 S.W.3d at 760 ("We conclude that Moss has alleged an injury-economic damages for services paid for and never performed-and that this injury is the proximate result of Dr. Ahmadi's alleged departure from the standard of care."); see also Armstrong, 2010 WL 4817100, *2-3 (refusal to allow claimant to return ill-fitting dentures for a refund was "an inseparable part of the rendition of dental services, and her claim is a health care liability claim").
However, our analysis would not change if Peoples had alleged the failure to reimburse her was the cause of her injuries and damages because even that claim would require a fact-finder to determine if Dr. Mazow failed to perform the lower eyelid surgery. See Ahmadi, 530 S.W.3d at 756-759 (concluding that patient's contract-based claim for a refund for treatment paid for but allegedly not performed was a health care liability claim); see also Jaimes, 2015 WL 4508946, at *2 (concluding that refund claims arising out of treatment not performed were health care liability claims). Non-economic damages are not required for Peoples' claims to be health care liability claims. The Legislature defined a health care liability claim with reference to "injury," not to "personal injury," and specifically states that a "health care liability claim," may be asserted "whether [her] claim or cause of action sounds in tort or contract." Tex. Civ. Prac. & Rem. Code § 74.001(a)(13); Ahmadi, 530 S.W.3d at 759. Because the Legislature did not qualify the type of injury that defined a health care liability claim, we must presume that it intended for "injury" to be construed broadly and is not limited to claims for physical injuries. Ahmadi, 530 S.W.3d at 759-60 (claims for economic damages can amount to health care liability claims); Shanti v. Allstate Ins. Co., 356 S.W.3d 705, 714 n.4 (Tex. App.- Houston [14th Dist.] 2011, pet. denied) (recognizing that Chapter 74 can apply to claims of non-physical injuries); Victoria Gardens of Frisco v. Walrath, 257 S.W.3d 284, 288 (Tex. App.-Dallas 2008, pet. denied) (rejecting argument that a plaintiff can only assert a health care liability claim if she seeks traditional tort damages).
Under this record, we conclude that Peoples has (1) pleaded injuries consisting of economic damages for services paid for and never performed and non-economic damages for mental anguish, emotional distress, and past and future suffering from the alleged failure to perform the surgery, and (2) alleged that those injuries were the proximate result of Dr. Mazow's alleged departure from the standard of care. See Ahmadi, 530 S.W.3d at 760; see also Armstrong, 2010 WL 4817100, at *2-3. Thus, the third element is satisfied.
III. Failure to Serve Chapter 74 Expert Report
Having determined that all three elements are satisfied, we conclude Peoples asserted a health care liability claim against Dr. Mazow. Because Peoples did not serve Dr. Mazow an expert report as required by Chapter 74, we also conclude that the trial court erred by denying Dr. Mazow's motion to dismiss. See Ahmadi, 530 S.W.3d at 760.
At the hearing on appellants' motion to dismiss, the trial judge indicated she thought the medical records from Dr. Nathan and Dr. Schiano, which were attached to Peoples' Original Statement of Claim, were Chapter 74 expert reports. We disagree. As a preliminary matter, those documents were not attached to Peoples' Amended Statement of Claim or the Supplemental Petition. They were, therefore, not part of her live pleadings. See In re Estate of Phillips, 2024 WL 4645492, at *1; see also Gaytan, 640 S.W.3d at 839. Further, those records do not meet the requirements of Chapter 74 because Peoples did not serve Dr. Mazow or Eye Plastic Surgery Associates with those records, and they do not mention Dr. Mazow and do not include any statements indicating Peoples' claims against Dr. Mazow have merit or that her alleged injuries proximately resulted from Dr. Mazow's conduct. See Tex. Civ. Prac. & Rem. Code 74.351(a) (expert report must be served on defendant by statutory deadline); see also Abilene Reg'l Med. Ctr. v. Pierce, 684 S.W.3d 564, 572-73 (Tex. App.-Eastland 2024, pet. filed) (notice of document or its filing do not constitute service under section 74.351); Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011) (to qualify as an expert report it must contain, at minimum, "a statement of opinion by an individual with expertise indicating that the claim asserted by the plaintiff against the defendant has merit."). Accordingly, we conclude the trial judge abused her discretion to the extent she denied the motion to dismiss based on an incorrect conclusion that Peoples served appellants with a compliant expert report. We sustain Appellants' sole appellate issue.
CONCLUSION
Under this record, we conclude Peoples' claims against Dr. Mazow and Eye Plastic Surgery Associates are healthcare liability claims as a matter of law and subject to the TMLA's expert report requirements. Peoples failed to file the required expert report within the statutory deadline and, therefore, the trial court had no discretion to deny Appellants' Chapter 74 motion to dismiss. Accordingly, we sustain appellants' sole appellate issue and reverse and remand to the trial court with instructions to render judgment dismissing Peoples' claims with prejudice and awarding Dr. Mazow attorney's fees and court costs pursuant to section 74.351 of the Texas Civil Practice & Remedies Code.
JUDGMENT
In accordance with this Court's opinion of this date, the trial court's March 13, 2024 Order denying Defendants Mark L. Mazow, M.D. and Eye Plastic Surgery Associates' Motion to Dismiss is REVERSED and this cause is REMANDED to the trial court with instructions to render judgment dismissing Plaintiff Antionette Peoples' claims with prejudice and awarding Dr. Mazow attorney's fees and court costs pursuant to section 74.351(b) of the Texas Civil Practice & Remedies Code.
It is ORDERED that appellants MARK L. MAZOW, M.D. AND EYE PLASTIC SURGERY ASSOCIATES recover their costs of this appeal from appellee ANTOINETTE PEOPLES.
Judgment entered.