Lindsey, Barbara v. Max Adler, M.D., P.A

AFFIRM; and Opinion Filed April 9, 2013.

S In The
Court of Appeals
Fifth District of Texas at Dallas

No. 05-12-00010-CV

BARBARA LINDSEY, Appellant
V.
MAX ADLER, M.D., P.A., MAX ADLER, M.D., AND LINDA WHITE, Appellees

On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-11-08937-A

MEMORANDUM OPINION
Before Justices Lang-Miers, Myers, and Lewis
Opinion by Justice Lewis
Pro se appellant, Barbara Lindsey, appeals the trial court’s order granting appellees’

motion to dismiss health care liability claims for failure to timely serve an expert report. In five

issues, Lindsey complains that the trial court erred by granting appellees’ motion to dismiss

without considering Lindsey’s second amended petition in which she deleted her healthcare

liability claims and retained only her claims for assault and intentional infliction of emotional

distress.

The background and facts of the case are well known to the parties; thus, we do not recite

them here in detail. Because all dispositive issues are settled in law, we issue this memorandum

opinion. TEX. R. APP. P. 47.2(a), 47.4. We overrule Lindsey’s issues and affirm the trial court’s

dismissal order.
 I. BACKGROUND

In July 2009, Lindsey sought medical evaluation, care and treatment from Max Adler,

M.D. (Dr. Adler) to remove two scars on her forehead. During the course of this medical

treatment, Lindsey was given an injection by Linda White, a nurse employed by Dr. Adler’s

professional association, Max Adler, M.D., P.A. (Adler, P.A.). Lindsey claims she suffered

serious injury as a result of the injection. On July 20, 2011, Lindsey filed her original petition

against Dr. Adler and Linda White, specifically alleging a health care liability claim along with

other claims for negligence, assault, and intentional infliction of emotional distress. She filed her

first amended petition on August 5, 2011, adding Adler, P.A. as a defendant.

When Lindsey failed to serve appellees with an expert report within 120 days of filing

suit pursuant to section 74.351 of the Texas Civil Practice and Remedies Code, Dr. Adler, Adler,

P.A., and Linda White moved to dismiss. Lindsey’s 120-day deadline as to Dr. Adler and Linda

White expired on November 17, 2011. Lindsey’s 120-day deadline as to Adler, P.A. expired on

December 4, 2011. The trial court scheduled a hearing on appellees’ motion to dismiss for

December 16, 2011.

On December 12, 2011, Lindsey filed her second amended petition, alleging the same

underlying facts as those set forth in her original and first amended petitions, maintaining the

same underlying claims of assault and intentional infliction of emotional distress, but deleting all

reference to her negligence and health care liability claims. At the hearing on appellees’ motion

to dismiss, the trial court granted appellees’ motion and dismissed all of Lindsey’s claims with

prejudice. The trial court subsequently denied Lindsey’s motion for new trial.

In this pro se appeal, Lindsey argues that the trial court erred because (1) her second

amended petition took precedence over the 120-day expert report deadline, (2) the trial court

judge said he had not read her second amended petition, (3) the case law in her motion for new

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trial showed no expert report was necessary, (4) the trial court judge told her to stop talking, and

(5) she had the right to amend her pleadings.

II. DISCUSSION

We begin by noting that, although we construe pro se pleadings and briefs liberally, we

hold pro se litigants to the same standards as licensed attorneys and require them to comply with

all applicable laws and rules of procedure. See Mansfield State Bank v. Cohn, 573 S.W.2d 181,

184–85 (Tex. 1978); Cooper v. Circle Ten Council Boy Scouts of America, 254 S.W.3d 689, 693

(Tex. App.—Dallas 2008, no pet.). To do otherwise would give a pro se litigant an unfair

advantage over those parties who are represented by counsel. Mansfield State Bank, 573 S.W.2d

at 185; Drum v. Calhoun, 299 S.W.3d 360, 364 (Tex. App.—Dallas 2009, pet. denied).

In her second issue, Lindsey complains that the trial court erred by not reading her second

amended petition before granting appellees’ motion to dismiss. Her argument is unsupported by

appropriate citations to authorities. In her third issue, Lindsey states that the case law she

presented in her motion for new trial showed no expert report was required. Because Lindsey

does not provide a clear and concise argument supported by appropriate citations to authorities,

we cannot determine if Lindsey’s third issue asserts error by the trial court in granting appellees’

motion to dismiss, or in denying Lindsey’s motion for new trial. In her fourth issue, Lindsey

contends the trial court erred by telling her to stop talking. She cites generally to the Federal

Rules of Evidence and the Federal Rules of Civil Procedure for the proposition that a person has

the right to testify without interruption. Rule 38.1 of the rules of appellate procedure requires an

appellant’s brief to contain “a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1 (i). We cannot

review an issue on appeal when it is not supported by argument or citation to applicable legal

authority. Drum, 299 S.W.3d at 364. We conclude that Lindsey’s second, third, and fourth

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issues are not sufficiently presented for appellate review. TEX. R. APP. P. 38.1(i). Consequently,

we overrule Lindsey’s second, third, and fourth issues.

Affording Lindsey’s first and fifth issues a liberal interpretation, she complains that the

trial court erred by granting appellees’ motion to dismiss. She argues that based on rules 63 and

65 of the Texas Rules of Civil Procedure, she had a right to amend her petition, the second

amended petition took the place of the first amended petition, and the prior pleadings were no

longer part of the record. Lindsey contends that because the second amended petition deleting

her health care liability claims was filed before the trial court ruled on appellees’ motion to

dismiss, there was no basis for appellees’ motion to dismiss and the trial court erred in granting

it. Lindsey cites two cases to support her argument that an amended pleading supersedes and

supplants the original pleading. However, neither case involved a health care liability claimant

seeking to avoid dismissal of her suit against a health care provider by filing an amended petition

pleading other common law non-health care liability claims against the same health care provider

and based on the same facts as alleged in her original petition.

We review a trial court’s decision to grant or deny a motion to dismiss for failure to

timely serve an expert report under an abuse of discretion standard. See Jernigan v. Langley,

195 S.W.3d 91, 93 (Tex. 2006) (per curiam); Broxterman v. Carson, 309 S.W.3d 154, 157 (Tex.

App.—Dallas 2010, pet. denied). “We may find abuse of discretion where a trial court acts

arbitrarily or unreasonably or without reference to any guiding rules or principles, or fails to

correctly determine, analyze, or apply the law, but we may not substitute our judgment in

deciding discretionary matters.” Broxterman, 309 S.W.3d at 157 (citing Cayton v. Moore, 224

S.W.3d 440, 444–45 (Tex. App.—Dallas 2007, no pet.). However, when resolution of an issue

on appeal requires interpretation of a statute, we apply a de novo standard of review. See

Vanderwerff v. Beathard, 239 S.W.3d 406, 408 (Tex. App.—Dallas 2007, no pet.). Whether a

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claim is a health care liability claim is a question of law we review de novo. Id.; see also Lee v.

Boothe, 235 S.W.3d 448, 451 (Tex. App.—Dallas 2007, pet. denied).

Under section 74.351 of the Texas Civil Practice and Remedies Code, any person who

brings a suit asserting a health care liability claim must, within 120 days of filing the claim,

provide an expert report for each physician or health care provider against whom the claim is

asserted. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011). If the claimant does not

provide an expert report as required, the trial court must, upon motion by the defendant, dismiss

the claim with prejudice. Id. § 74.351(b). A health care liability claim is defined 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.

Id. § 74.001(a)(13) (West Supp. 2012).

The primary question presented by this appeal is whether, after the expiration of the 120-

day expert report deadline set forth in section 74.351, a health care liability claimant may avoid

dismissal of her suit against a health care provider by filing an amended petition, deleting her

negligence and health care liability claims, and pleading assault and intentional infliction of

emotional distress causes of action against the same health care providers and based on the same

facts as alleged in her original and first amended petitions. We conclude the trial court did not

err in granting the appellees’ motion to dismiss for two reasons. First, application of the Texas

Medical Liability Act (TMLA) cannot be avoided by artfully pleading around it or splitting

claims into both health care liability claims and other types of claims. See Yamada v. Friend,

335 S.W.3d 192, 193–94 (Tex. 2010). In Yamada, the Texas Supreme Court held:

[B]ecause all the claims against Dr. Yamada were based on the same underlying
facts, they must be dismissed because the Friends did not timely file an expert
report. When the underlying facts are encompassed by provisions of the TMLA

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 in regard to a defendant, then all claims brought against that defendant based on
those facts must be brought as health care liability claims.

Id. In her appellate brief, Lindsey concedes that her original and first amended petitions asserted

health care liability claims. Lindsey also concedes she did not file an expert report. Because her

second amended petition asserting assault and intentional infliction of emotional distress claims

against Dr. Adler, Adler, P.A., and Linda White is based on the same facts as the health care

liability claims asserted in her original and first amended petitions, the record before us reflects

the type of claim splitting expressly prohibited by Yamada. See Yamada, 335 S.W.3d at 193–94;

see also Med. Ctr. of Lewisville v. Slayton, 335 S.W.3d 382, 386 (Tex. App.—Fort Worth 2011,

no pet.) (patient could not avoid application of TMLA in suit against hospital by amending her

petition to state a claim for premises liability arising from injuries sustained in a fall, when her

original petition, based on the same facts, stated a health care liability claim).

Second, Lindsey’s claims for assault and intentional infliction of emotional distress are

health care liability claims. In determining whether a claim is a health care claim, a question of

law that we review de novo, we look to the nature and essence of the claim, rather than the way it

was pleaded. Lee, 235 S.W.3d at 451. A health care liability claim cannot be recast as another

cause of action in an attempt to avoid the expert report requirement. See Diversicare Gen.

Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005); Garland Cmty. Hosp. v. Rose, 156

S.W.3d 541, 543 (Tex. 2004). We look to the underlying nature of a claim to determine whether

it constitutes a health care liability claim. See Vanderwerff, 239 S.W.3d at 409 (patient’s claim

for assault was a health care liability claim); see also Boothe v. Dixon, 180 S.W.3d 915, 919

(Tex. App.—Dallas 2005, no pet.) (claims for fraud, breach of fiduciary duty, and violation of

the Deceptive Trade Practices Consumer Protection Act were health care liability claims). “If

the act or omission alleged in the complaint is an inseparable part of the rendition of health care

services, or if it is based on a breach of a standard of care applicable to health care providers,
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then the claim is a heath care liability claim.” Boothe, 180 S.W.3d at 919 (citing Garland Cmty.

Hosp., 156 S.W.3d at 544).

Here, the record conclusively shows that the essence of each of Lindsey’s claims is the

injury she allegedly suffered as a result of the deadening injection administered by Linda White

prior to the laser treatment of Lindsey’s scars. The injection was an inseparable part of the

rendition of medical treatment by Dr. Adler and Linda White. See Vanderwerff, 239 S.W.3d at

409. The conduct about which Lindsey complains occurred during the course of treatment by a

health care professional and is therefore inseparable from the rendition of health care services.

As a result, Lindsey’s claims are health care liability claims subject to the expert report

requirements of section 74.351. Because Lindsey failed to file an expert report as required by

section 74.351(a), we conclude the trial court did not abuse its discretion in granting appellees’

motion to dismiss and dismissing Lindsey’s claims with prejudice. TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(b); Broxterman, 309 S.W.3d at 157. We overrule Lindsey’s first and fifth

issues.

III. CONCLUSION

We conclude the trial court properly applied section 74.351 of the Texas Civil Practice

and Remedies Code to Lindsey’s claims for assault and intentional infliction of emotional

distress. Having overruled all of Lindsey’s issues on appeal, we affirm the trial court’s order.

/David Lewis/
DAVID LEWIS
JUSTICE

120010F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

BARBARA LINDSEY, Appellant On Appeal from the 14th Judicial District
Court, Dallas County, Texas
No. 05-12-00010-CV V. Trial Court Cause No. DC-11-08937-A.
Opinion delivered by Justice Lewis.
MAX ADLER, M.D., P.A, ET AL, Justices Lang-Miers and Myers
Appellees participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

It is ORDERED that appellee MAX ADLER, M.D., P.A, ET AL recover their costs of
this appeal from appellant BARBARA LINDSEY.

Judgment entered this 9th day of April, 2013.

/David Lewis/
DAVID LEWIS
JUSTICE

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