dissenting.
I must respectfully dissent from the majority opinion.
The majority correctly states,
Believing that appellants’ failure to properly feed and water the animals had caused the death of the foal ... Smith filed the underlying suit.1
The majority also correctly states,
In a medical malpractice action, expert testimony is required to prove negligence unless the form or mode of treatment is a matter of common knowledge, or the matter is within the experience of a layperson.2
The problem, as I see it, is that the majority has applied the medical malpractice standard of proof to an ordinary negligence cause of action. The feeding and watering of animals left in your care is not medical treatment. If the foal had been a human child left with a relative, failure to feed and provide liquids to the child would not give rise to a medical malpractice cause of action, even though that relative was a physician.
In a single footnote, the majority addresses “the dissent’s misunderstanding of the nature of this case.” The majority is correct. I do not understand, from the majority’s opinion, what converts this case from an ordinary negligence case based on failure to feed and water an animal over a hot, three-day weekend into a veterinary medical malpractice case. Does the majority claim that feeding and watering are medical treatment, or does the majority contend that a case becomes a veterinary medical malpractice case every time a doctor of veterinary medicine is sued?
This court has held that veterinary malpractice cases are to be analyzed under the standard applied to physicians and surgeons in medical malpractice cases.3 We did not hold, however, that every case involving a veterinarian becomes a medical malpractice case anymore than every case involving a physician or surgeon becomes a medical malpractice case under the Texas Medical Liability and Insurance Improvement Act.
Additionally, this court has expressly held that veterinarians are neither “physicians” nor “health care providers.” 4
“Practicing medicine” means the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any sys*729tem or method, or the attempt to effect cures of those conditions, by a person who:
(A) publicly professes to be a physician or surgeon; or
(B) directly or indirectly charges money or other compensation for those services.5
This court has distinguished the practice of medicine from the practice of veterinary medicine by pointing out:
At the time the Legislature enacted article 4590i, a different statute, article 8890 of the Texas Revised Civil Statutes, governed the practice of veterinary medicine. Section 2(1) of article 8890 defined “veterinarian” as “any person who is licensed to practice Veterinary Medicine by the Texas State Board of Veterinary Medical Examiners,” and section 2(2)(A) defined the “practice of Veterinary Medicine” as “the diagnosis, treatment ... or prevention of animal disease.... ” Although article 8890 was recently repealed and recodified as Chapter 801 of the Texas Occupation Code, this definition of a “veterinarian” remains unchanged.6
Just as a cause of action against a surgeon or physician is not a “health care liability claim” when the basis for the cause of action is ordinary negligence rather than a breach of an accepted standard of safety within the health care industry,7 a claim of ordinary negligence against a veterinarian or a veterinary hospital is not a claim of veterinary malpractice.
Because the majority applies the veterinary malpractice standard of proof and analysis to an ordinary negligence claim without explaining what caused the metamorphosis of the ordinary negligence cause of action contained in Appellee’s pleadings into a veterinary medical malpractice case, I must dissent. Nowhere does Appellee plead veterinary medical malpractice, nor did Appellee offer evidence of veterinary medical malpractice. Indeed, the only possible evidence of veterinary medical malpractice was offered by Appellants as a defense. Their position was that the foal died not as a result of failure to feed and water the animals but as the result of their medical treatment of the foal.
The majority reverses the jury verdict in Appellee’s favor and renders a take-nothing judgment on the basis that there was no evidence of veterinary medical malpractice. It would be helpful if the majority would explain why Appellee is required to prove a cause of action never pled. Because the majority opinion answers none of these questions, I must respectfully dissent.
. Maj. Op. at 726 (emphasis added).
. Id. at 727.
. Downing v. Gully, 915 S.W.2d 181, 183 (Tex.App.-Fort Worth 1996, writ denied).
. Neasbitt v. Warren, 22 S.W.3d 107, 111-12 (Tex.App.-Fort Worth 2000, no pet.) (holding "veterinarians" are not "physicians” within the plain meaning of Texas Medical Liability and Insurance Improvement Act, which requires posting of bonds when filing health care liability claims, and, thus, the Act does not apply to veterinarians).
. Tex. Occ.Code Ann. § 151.002(a)(13) (Vernon 2003); see Neasbitt, 22 S.W.3d at 111.
. Neasbitt, 22 S.W.3d at 111 (interpreting Tex.Occ.Code Ann. §§ 801.001-.507).
. Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d 417, 419-20 (Tex.App.-Corpus Christi 1999, no pet.).