AFFIRMED and Opinion Filed August 26, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-01081-CV
BARBARA LINDSEY, Appellant
V.
MAX F. ADLER, M.D., P.A. F/K/A PARK CITIES DERMATOLOGY
CENTER A/K/A COPPELL DERMATOLOGY, MAX F. ADLER, AND
LINDA L. WHITE, AND JOHN DOES1, Appellees
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-07358
MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Garcia
Opinion by Justice Reichek
Barbara Lindsey, representing herself pro se, appeals the trial court’s order
dismissing her claims against Max F. Adler, M.D., P.A. f/k/a Park Cities
Dermatology Center a/k/a Coppell Dermatology, Max F. Adler, and Linda L. White.
In a single issue, Lindsey contends the trial court erred in dismissing her claims
pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code. We
affirm the trial court’s order.
1
The record does not reflect that any John Does were named or served with process in this
suit.
Background
In July 2009, Lindsey sought medical treatment from Dr. Adler to remove two
scars from her forehead. During the course of treatment, Lindsey was given a
numbing injection by White, a nurse employed by Dr. Adler’s professional
association. Lindsey states that, shortly after the injection was given, the injection
site became red and swollen and she began to feel sick. On July 20, 2011, Lindsey
filed suit against appellees alleging she had suffered a serious injury as a result of
the injection. Specifically, Lindsey alleged she had been injected with a microchip
that caused her pain, suffering, and mental anguish. Lindsey asserted claims for
negligence under chapter 74 of the Texas Civil Practice and Remedies Code,
common law negligence, assault, and intentional infliction of emotional distress.
When Lindsey failed to serve appellees with an expert report as required by
section 74.351 of the civil practice and remedies code, appellees moved to dismiss
her claims. Following a hearing, the trial court granted appellees’ motion and
dismissed all Lindsey’s claims with prejudice. This Court affirmed the dismissal.
See Lindsay v. Adler, No. 05-12-00010-CV, 2013 WL 1456633 (Tex. App.—Dallas
Apr. 9, 2013, no pet.) (mem. op.).
Nearly six years later, on May 24, 2019, Lindsey filed this suit against
appellees alleging claims based on the same procedure made the basis of the 2011
suit. The only substantive difference between the allegations in the current suit and
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the allegations in the previous suit is that, in this suit, Lindsey has alleged she
discovered a second “device” implanted as a result of the injection by White. On
September 18, 2019, Lindsey served an expert report in support of her claims.
Appellees again moved to dismiss Lindsey’s suit under section 74.351 on the
ground that she did not timely file an expert report. Appellees argued that Lindsey
could not “restart the clock” for serving a report by filing a second suit based on the
same conduct made the subject of the first suit. In response to Lindsey’s argument
that the second suit was based on a newly discovered injury, appellees contended
that, under the “single action rule,” separate damages arising out of one breach of
duty does not create separate causes of action.
The trial court granted appellees’ motion and, once again, dismissed all of
Lindsey’s claims. In its findings of fact and conclusions of law, the court concluded,
Plaintiff’s re-filing of the claim asserted in Plaintiff’s 2011 Lawsuit in
this matter alleging the exact same underlying complaint and simply
alleging an additional injury of the same nature and type as alleged in
Plaintiff’s 2011 Lawsuit does not allow or provide Plaintiff a new and
second 120-day opportunity to serve Defendants an expert report
showing her claim against Defendants alleging injuries proximately
resulting from the injection given by Defendant Linda L. White has
merit.
Lindsey brought this appeal.
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Analysis
In a single issue, Lindsey contends the trial court erred in dismissing her
claims. Courts of appeals in Texas have consistently held that a plaintiff in a health-
care liability suit cannot restart the mandatory 120-day deadline for filing an expert
report by refiling claims based on the same alleged acts of negligence, even if the
new petition adds additional allegations. See e.g., Davis v. Baker, No. 03-10-00324-
CV, 2010 WL 5463864, at *2 (Tex. App.—Austin Dec. 22, 2010, no pet) (mem.
op.); Toro v. Alaniz, No. 04-06-00814-CV, 2007 WL 1200122, at *1–2 (Tex. App.—
San Antonio Apr. 25, 2007, no pet.) (mem. op.). To allow a plaintiff a second chance
to file an expert report addressing the same alleged conduct would be inconsistent
with the policies, goals, and statutory provisions of chapter 74. Mokkala v. Mead,
178 S.W.3d 66, 76 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
Lindsey correctly points out that the previous cases addressing attempts to
restart the 120-day deadline are procedurally distinguishable from this case because
they concern plaintiffs who refiled their claims during the course of litigation or after
taking a voluntary non-suit. However, the rationale of those cases applies with even
greater force when, as here, the original claims were dismissed with prejudice for
failure to serve an expert report. By requiring that claims be dismissed with
prejudice, section 74.351(b) strongly indicates the Legislature’s intent that plaintiffs
not be allowed a second chance to file an expert report once the initial deadline has
passed. See Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628,
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635 (Tex. 2010) (we rely on plain meaning of text as expressing legislative intent).
The strictness of the deadline is reinforced by the fact that the Legislature denied
trial courts any discretion to grant extensions or deny motions to dismiss when no
report is timely served. See Philipp v. Methodist Hosp. of Dallas, No. 05-21-00350-
CV, 2022 WL 2448118, at *2 (Tex. App.—Dallas July 6, 2022, no pet. h.) (mem.
op.).
Lindsey further attempts to distinguish her suit by arguing her claims are
based on a newly discovered injury. But the conduct and alleged breaches of duty
that form the basis of this suit are identical to the conduct and breaches alleged in
the 2011 suit. As appellees argued both below and on appeal, under the “single
action rule,” only one cause of action exists for each breach of duty. Regency Field
Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 817 (Tex. 2021).
Separate damages stemming from one breach will not result in separate causes of
action, regardless of when the damages are discovered. Id.2 The 120-day deadline
to file an expert report applies to causes of action, not lawsuits. Mokkala, 178
S.W.3d at 71. Because Lindsey has alleged the same breaches of duty in this suit as
in the 2011 suit, the trial court properly concluded Lindsey was not entitled to a
second opportunity to file an expert report concerning the same cause of action.
2
In personal injury cases, the Texas Supreme Court has recognized a limited exception to this
rule only for asbestos-related diseases resulting from workplace exposure. Id.
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Lindsey argues the trial court erred in dismissing all her claims because her
causes of action for intentional wrongdoing are not health care liability claims
subject to the expert report requirement. Lindsey made the same argument in her
appeal in her prior suit. We conclude now, as we did then, that her argument is
without merit.
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 v.
Beathard, 239 S.W.3d 406, 409 (Tex. App.—Dallas 2007, no pet.) (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, then the claim is a heath
care liability claim.” Boothe, 180 S.W.3d at 919.
As in her previous suit, the essence of each of Lindsey’s claims is the injury
she allegedly suffered as a result of the injection administered by White. The
injection was an inseparable part of the rendition of medical services by appellees.
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Accordingly, all of Lindsey’s claims were subject to the expert report requirement.
See Lindsey, 2013 WL 1456633, at *4. As stated above, Lindsey was not entitled to
a second opportunity to file an expert report. Therefore, the trial court properly
dismissed all of Lindsey’s claims.
Lindsey makes a variety of arguments that the trial court’s dismissal violated
her constitutional rights. Lindsey first contends that appellees’ motion to dismiss
under section 74.351 was, in reality, a motion for summary judgment based on res
judicata. Because of this, Lindsey argues, she was not given proper notice of the
hearing or the grounds for dismissal in violation of her right to due process.
The record shows that both appellees’ motion to dismiss and the trial court’s
order of dismissal were based on Lindsey’s failure to file an expert report within the
120-day time period specified by section 74.351. Lindsey contends that, because
the focus of the motion was her failure to file an expert report in her 2011 lawsuit,
the basis of the dismissal in this case must be res judicata. But the discussion of the
2011 suit was not to show that Lindsey’s claims were barred because they had been
previously litigated, but to show when the 120-day period to file her expert report
began and ended. Because the report filed by Lindsey in 2019 did not fall within
that window, the trial court was required to dismiss her claims under section
74.351(b).
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To the extent the “single action rule” is a species of res judicata3, it was raised
by appellees below not as an independent ground for judgment, but in response to
Lindsey’s argument that her claims in this suit are different from the claims asserted
in her 2011 suit. The “single action rule” dictated that Lindsey had only one,
indivisible cause of action for all damages arising out of the breaches of duty made
the subject of the 2011 suit. SM Energy, 2022 WL 2252423, at *6. Accordingly she
was entitled to only one 120-period within which to serve her expert report
addressing those breaches of duty. Lindsey had full notice of this argument below
and an opportunity to respond.
Lindsey next argues that “requiring expert reports on unknown foreign bodies
is an impossible condition in violation of the Texas Constitution’s open courts and
right to jury trial provisions.” No such report was required. The report Lindsey was
required to serve in 2011 needed to show only how appellees’ conduct breached the
applicable standard of care and how those alleged breaches caused the injury, harm,
or damages that Lindsey was aware of at that time. TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(r)(6). It is undisputed that Lindsey was aware she was injured by the
conduct at issue when she filed suit in 2011, even if she was not aware of the extent
of her alleged injuries. Where a claimant is prevented from bringing her claims
because of her own failure to timely provide an expert report rather than an
3
See SM Energy Co. v. Union Pac. R.R. Co., No. 11-21-00052-CV, 2022 WL 2252423, at *6
(Tex. App.—Eastland June 23, 2022, no pet. h.).
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unconstitutional application of the expert report requirement, an open court’s
challenge is unavailing. Simmons v. Outreach Health Cmty. Care Servs., L.P., 511
S.W.3d 163, 172 (Tex. App.—El Paso 2014, pet. denied).
Finally, Lindsey argues the requirement under section 74.351(b) that her
claims be dismissed with prejudice is excessive and violates her constitutional rights.
“Every court that has considered whether the expert report requirement passes
constitutional muster has concluded that it does.” Broxterman v. Carson, 309
S.W.3d 154, 159 (Tex. App.—Dallas 2010, pet. denied); see also Hebert v. Hopkins,
395 S.W.3d 884, 895–901 (Tex. App.—Austin 2013, no pet.). We resolve Lindsey’s
sole issue against her.
We affirm the trial court’s order dismissing Lindsey’s claims.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
201081F.P03
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BARBARA LINDSEY, Appellant On Appeal from the 160th Judicial
District Court, Dallas County, Texas
No. 05-20-01081-CV V. Trial Court Cause No. DC-19-07358.
Opinion delivered by Justice
MAX F. ADLER, M.D., P.A. F/K/A Reichek. Justices Molberg and
PARK CITIES DERMATOLOGY Garcia participating.
CENTER A/K/A COPPELL
DERMATOLOGY, MAX F.
ADLER, LINDA L. WHITE, AND
JOHN DOES, Appellees
In accordance with this Court’s opinion of this date, the order of the trial
court dismissing BARBARA LINDSEY’s claims is AFFIRMED.
It is ORDERED that appellees MAX F. ADLER, M.D., P.A. F/K/A PARK
CITIES DERMATOLOGY CENTER A/K/A COPPELL DERMATOLOGY,
MAX F. ADLER, and LINDA L. WHITE recover their costs of this appeal from
appellant BARBARA LINDSEY.
Judgment entered August 26, 2022
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