An article in the New York Times reported that transplant surgeon Dr. John S. Bynon was under investigation for altering the transplant list at Memorial Hermann–Texas Medical Center and potentially denying his patients lifesaving care.
Susie Garcia, Dianelys Corrales, and Robert Osuna, Jr., surviving relatives of Bynon’s former patients, thereafter sent Dr. Bynon statutory presuit notices of health care liability claims. § 74.051(a). These notices reminded him of the obligation to preserve records that could be relevant to future litigation, and they sought to settle the controversy without the necessity of litigation. About a week later, they filed an application for a temporary restraining order and a temporary injunction.
The application for an injunction asserted that their loved ones—Richard Mostacci, Daniel Rodriguez Alvarez, and Robert Osuna—were put on an organ transplant waiting list overseen by Dr. Bynon in 2021 or 2022. The plaintiffs alleged: “There is significant concern that [Dr. Bynon] was improperly excluding patients, including Mr. Mostacci, Mr. Rodriguez-Alvarez, and Mr. Osuna, from receiving a liver transplant and depriving them of lifesaving care.” They alleged that their loved ones died in 2023 or 2024, sought preservation of evidence that “might be relevant to a potential claim that could be filed,” and argued that imminent harm was the potential “destruction of relevant or material evidence and/or admissible evidence in future litigation related to this claim.”
The remainder of the plaintiffs’ pleading details the request for injunctive relief to preserve evidence. It contained counts for a temporary restraining order and for a temporary injunction, but no count for damages. It never referred to damages, interest on damages, or dollars.
Bynon moved to dismiss. He argued that the claims were health care liability claims, that he filed an answer, and that the case should be dismissed because neither the plaintiffs nor the intervenors served an expert report within 120 days of his answer. The plaintiffs and intervenors disagreed and argued, among other things, that they were not seeking damages and thus fell outside the definition of “claimant,” which in turn would mean that no expert report was required. The trial court denied Bynon’s motion to dismiss, and he appealed.
The Court of Appeals for the First District of Texas stated in its April 2, 2026 Opinion: “[T]he Texas Supreme Court has held that when a claim is premised on facts that could support claims against a physician for departures from accepted standards of medical care, the claim is an HCLC regardless of whether the plaintiff has actually alleged that the defendant is liable for a breach of those standards.”
“The fact that the claims came in an application for temporary injunction does not change our conclusion. The plaintiffs and intervenors sought injunctive relief to preserve evidence related to a potential departure from accepted standards of medical care. At the injunction hearing, the plaintiffs argued in favor of the issuance of an injunction, in part based on their pleading of a “potential claim.” Thus, the facts regarding Bynon’s alleged, potential departure from accepted standards of medical care are part of the cause of action pled … We therefore conclude that the claims at issue qualify as HCLCs.”
However, “The statute as written speaks in terms of seeking the recovery of damages. Given the plain language of the statute, we agree with other Texas courts that where a party seeks relief other than damages, he or she is not a claimant within the ambit of the statutory definition … Here the intervenors explicitly described their lawsuit as a suit for damages: “This is a suit for all damages legally recoverable for the wrongful death of Jerry Whittington.” Their lawsuit walks right into the definition of claimant by “seeking” to recover damages. Although their petition in intervention does not elaborate or include a stand-alone count for damages, that does not alter our conclusion. No further detail is necessary. On the other hand, the application filed by the plaintiffs did nothing like this. Their application did not expressly refer to damages or even hint at seeking damages. Unless we are to rewrite the statutory definition in a way that courts should not do, we must conclude that the plaintiffs do not qualify as claimants … we reverse that part of the order that denied dismissal as to the intervenors, and we remand to the trial court for entry of judgment of dismissal and consideration of Bynon’s request for attorney’s fees in that regard.”
Source Bynon v. Garcia, No. 01-24-00849-CV.
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