The Texas Fourteenth Court of Appeals (“Texas Appellate Court”) held in its Memorandum Opinion filed on July 9, 2020 that “[b]ecause Gaytan’s [plaintiff’s] claims are based on the alleged acts or omissions of an esthetician not related to a physician-patient relationship, Gaytan’s claims were not subject to section 74.351(a)’s expert report requirements. The trial court did not abuse its discretion in denying appellants’ motion to dismiss Gaytan’s health care liability claims for failure to timely serve an expert report.”
The plaintiff, Erica Gaytan (“Gaytan”), sued several defendants for injuries she allegedly sustained after several procedures performed at Lake Jackson Medical Spa. When Gaytan filed her original petition, she gave notice of a health care liability claim under sections 74.051 and 74.052 of the Texas Civil Practice and Remedies Code and alleged that her claims arose from an “improper and negligent course of medical treatment.” Gaytan subsequently amended her petition to delete all references to medical procedures and health care liability, alleging that the defendants are in the business of providing cosmetic services and that Gaytan’s damages were proximately caused by the defendants’ negligent acts or omissions. Gaytan responded to the defendants’ motion to dismiss for her failure to serve a Chapter 74 expert report within the required time by arguing that she sought cosmetic skin treatments that were not sought to “combat, address or prevent any disease, disorder or injury.” The trial court denied the defendants’ motion to dismiss, and they subsequently filed an appeal.
The Texas Appellate Court stated: “In determining whether Gaytan’s claim is a health care liability claim, we focus on the underlying nature of the cause of action and are not bound by the pleadings.”
Texas Medical Liability Act (“TMLA”)
The TMLA 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).
The TMLA defines “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 during the patient’s medical care, treatment, or confinement.” Tex. Civ. Prac. & Rem. Code § 74.001(a)(10). The TMLA defines “medical care” as “any act defined as practicing medicine under Section 151.002, Occupations Code, performed or furnished, or which should have been performed, by one licensed to practice medicine in this state for, to, or on behalf of a patient during the patient’s care, treatment, or confinement.”
The Texas Appellate Court stated that the statutory definition contains three elements: (1) a physician or health care provider must be a defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s act or omission complained of must proximately cause the injury to the claimant.
The Texas Appellate Court stated: “In this case, Gaytan’s claims derive from her allegation that Gutzman improperly treated her back and face and that such actions proximately resulted in her injuries … Gaytan has not alleged damages from the use of a medical device. Gaytan stated in her affidavit that she never saw or consulted with Dr. Yarish and does not recall filling out patient medical history questionnaires or patient informed consent forms. Appellants have not asserted that resolution of Gaytan’s claims requires expert testimony or are matters not within the common knowledge of laypersons. Moreover, the record does not reflect that the dermatological treatment Gaytan received was not an inseparable part of the rendition of medical care. An act or omission by a healthcare provider falls within the scope of the TMLA if it is a departure from the standards of medical care or healthcare or if it is an inseparable part of the rendition of medical services. Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) … Gaytan alleged injuries from the use of an “L.J. skin pen, L.J. phototherapy acne treatment, skin pen spot treatment.” The record in this case does not reflect that the devices used were regulated surgical devices that could only be acquired by a medical professional in a medical practice.”
The Texas Appellate Court concluded: “Gaytan did not meet with, see, or agree to be treated by a physician or other health care provider. She did not fill out any patient history questionnaire forms or patient informed consent forms, or undergo a medical history and physical examination. In short, Gaytan never had a physician-patient relationship with Yarish. As explained above, because no physician-patient relationship was established, this case does not involve medical care or health care, and Gaytan has not pled a health care liability claim.”
Source Lake Jackson Medical Spa, LTD v. Gaytan, No. 14-19-00703-CV.
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