By: Michelle Robberson
The Texas Supreme Court recently released two opinions on the same day addressing issues involving Chapter 74 health care liability claims. In Lake Jackson Med Spa v. Gaytan, No. 20-0802, 2022 WL 587610 (Tex., Feb. 25, 2022), the Court held the plaintiff’s claims against a medical spa (and its physician-owner and aesthetician) met the criteria to be health care liability claims, requiring service of an expert report. In a mandamus proceeding, In re LCS SP, LLC, No. 20-0694, 2022 WL 587608 (Tex., Feb. 25, 2022), the Court held the plaintiff was not entitled to discovery of a facility’s policies and procedures prior to serving the required expert report, per its interpretation of section 74.351(s) of the Texas Civil Practice & Remedies Code.
A. Lake Jackson Med Spa v. Gaytan
In Lake Jackson, the plaintiff (Gaytan) sued a “med spa” for negligence in administering various treatments that allegedly caused scarring and discoloration to her skin. Initially Gaytan’s pleadings asserted “medical negligence” and that she had received “medical treatments.” Gaytan did not serve any expert report within the 120-day period.
The spa moved to dismiss under section 74.351(b), and Gaytan responded by arguing her claims were not health care liability claims (HCLCs). The day before the hearing on the motion to dismiss, Gaytan filed an amended petition removing all references to “medical” treatments or negligence and all references to Chapter 74. The facts alleged, however, remained largely the same as in the original pleading. The trial court and court of appeals held the claims were not HCLCs.
The Texas Supreme Court granted review and reversed, making two interesting rulings. First, in what it characterized as an issue of first impression, the Court held that a plaintiff could amend a petition after a defendant asserted the claims were HCLCs. The Court reasoned:
• The statute imposed only a 120-day deadline to serve a report, not to amend pleadings. Nothing else in the statute addresses pleading amendments one way or the other.
• Rule 63 of the Texas Rules of Civil Procedure freely permits pleading amendments unless the amendment operates as a surprise to the opponent. Nothing in rule 63 conflicts with Chapter 74. Because the spa did not assert surprise, neither Chapter 74 nor rule 63 precluded Gaytan from amending her petition in response to the motion to dismiss.
• The trial court could consider the amended petition because, in deciding whether a claim is an HCLC, the court considers the facts that reveal the underlying nature of the claim, and it is not bound by the pleading, any “artful” wording, or the labels applied to the claims in the pleading. Rather, the court considers the entire record, including evidence submitted.
• Finally, courts generally must allow plaintiffs to amend their pleadings before they dismiss the plaintiffs’ claims. Thus, the trial court properly could consider Gaytan’s amended petition; but, the Court reiterated that the law prevents a plaintiff from merely “recasting” an HCLC as another type of claim.
Second, the Court considered the facts and allegations in the amended petition (not the prior ones, as they had been superseded) and concluded Gaytan did, in fact, assert an HCLC against a physician and health care providers.
The defendants all were “health care providers” under relevant statutory definitions: one was a physician, the medical spa was an “affiliate” of the physician, and the aesthetician was an employee of either the physician or the spa. And the claims were HCLCs because Gaytan alleged that the defendants violated accepted standards of “medical care” and “health care.” In light of these two key facts, Gaytan failed to rebut the presumption that her claims were HCLCs.
As part of this second issue, the Court held that a physician-patient relationship existed even though Gaytan never saw or received services directly from the physician. The physician owned the med spa, and Gaytan went there to seek treatments of her skin. She received the treatments from the aesthetician, who was an employee of the spa. Instead of improving her skin, Gaytan alleged the treatments “by Defendants” caused scarring and discoloration of her skin. And she alleged the physician was negligent for hiring, failing to train, and retaining the aesthetician. These facts conclusively established a physician-patient relationship, which is required for the care to be “health care” as defined in Chapter 74.
Another factor that determines whether a claim is an HCLC is the need for expert testimony to prove or refute the claim. The Court concluded that expert testimony would be required to prove Gaytan’s claims, which alleged the aesthetician negligently administered a course of skin treatments that included “L.J. acne treatment, L.J. skin pen, L.J. phototherapy acne treatment, skin pen spot treatment, microdermabrasion, and L.J. VI peel treatment.”
The standards for proper administration of these treatments were not within the common knowledge of laypersons. As to other allegations in the amended petition, the Court held that proper and applicable standards of “dermatological care,” reliance on medical histories, risks involving the use of tretinoin cream, and proper adjustments of a laser-treatment device, as well as whether defendants’ conduct fell below those standards, all were matters that required expert testimony.
Another factor in determining whether the claim is an HCLC is whether the services provided were an inseparable part of the rendition of health care. The Court held that all the Defendants’ conduct of which Gaytan complained was inseparable from the rendition of “medical care” and “health care” as defined in Chapter 74.
The Texas Administrative Code includes nonsurgical medical cosmetic procedures as part of the practice of medicine (and, therefore, “medical care”). The common meaning of “nonsurgical medical cosmetic procedures” would include the course of treatments that Gaytan alleged she received from a physician-owned “medical spa.” The Court also recognized that Texas statutes authorize physicians to delegate the provision of such services or procedures to a properly qualified and trained nonphysician, such as the aesthetician.
Therefore, Gaytan’s claims were HCLCs, and her failure to timely serve an expert report to support them required dismissal with prejudice. The Court remanded so the trial court could award the defendants their reasonable attorneys’ fees and costs as required by section 74.351(b).
B. In re LCS SP, LLC
In In re LCS, a husband sued a skilled nursing facility for negligent care of his wife, which included failures to monitor that led to falls that caused several fractures. Before the husband served any expert report, he sought in discovery copies of the facility’s general operating policies and procedures for the five years preceding his suit. However, the Texas Administrative Code requires such facilities to make some policies and procedures publicly available.
The facility objected to the discovery on grounds that section 74.351(s) precluded this discovery until the defendant served an expert report. Section 74.351(s) provides:
Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in a health care liability claim is stayed except for the acquisition by the claimant of information, including medical or hospital records or other documents or tangible things, related to the patient’s health care.…
The trial court denied the husband’s motion to compel but the court of appeals reversed. The Texas Supreme Court reversed the court of appeals.
First, the trial court did not abuse its discretion in refusing to compel discovery of policies and procedures that were publicly available to the husband. Second, the Court rejected the argument that the “related to the patient’s health care” language in section 74.351(s) should be read broadly. The Court recognized that the Legislature had narrowed the limits of discovery in Chapter 74 cases, and that Chapter 74 supplants normal discovery parameters. To read “related to” broadly would swallow the limitation on pre-report discovery imposed by section 74.351(s).
The Court read the term “related to” as requiring relation to the subject patient’s medical or hospital records, and that policies and procedures do not relate to the subject patient’s health care. In other words, permissible pre-report discovery must specifically relate to the patient in question—not all patients.
Lastly, the Court rejected the argument that, just because it had previously recognized such policies and procedures were relevant to an HCLC, this did not mean they were discoverable pre-expert report. Because policies and procedures do not specifically relate to a particular “patient’s health care,” like medical or hospital records, they are not excepted from the stay of discovery before the plaintiff serves a report. For these reasons, the Court granted mandamus relief and reversed the court of appeals’ ruling compelling production.