AUSTIN, Texas (Legal Newsline) - A woman whose attorneys artfully rewrote her lawsuit to try to avoid a Texas medical-malpractice law requiring plaintiffs to supply expert reports within 120 days lost her case and must pay the other side’s legal fees, the Texas Supreme Court ruled.
Regardless of what a plaintiff’s complaint says, trial courts must decide whether a lawsuit involves “health care liability claims” under the Texas Medical Liability Act, the state’s high court ruled in a Feb. 25 decision. That law requires plaintiffs to supply the defense with expert reports within four months detailing how they allegedly deviated from the standard of care and caused the plaintiff’s injuries.
Erika Gaytan sued Lake Jackson Medical Spa, Dr. Robert Yarish and employee Jamie Gutzman after she claimed treatments for acne on her face and back caused discoloration and scarring. She originally sued only the spa and Gutzman, claiming she was injured due to improper “medical treatment.” The defense moved to dismiss, citing the Medical Liability Act, and Gaytan’s lawyers said she wasn’t making a medical claim but only seeking damages for negligent provision of “cosmetic skin treatments.”
Gaytan said she didn’t remember signing any papers agreeing to treatment and said she never consulted with Dr. Yarish. The day before a hearing to dismiss the case, her lawyers filed an amended petition deleting all references to “medical treatment.”
The trial court rejected the defense’s motion to dismiss the case for failing to provide expert statements, ruling that Gaytan had successfully rewritten her lawsuit to avoid the malpractice statute. A Houston appeals court affirmed, buy the Texas Supreme Court reversed and ordered the plaintiff to pay attorney’s fees.
The Texas Supreme Court agreed with the appeals court that it was proper to focus on the amended complaint, rather than dismissing Gaytan’s case entirely once the 120-deadline had passed. But the high court rejected the appeals court’s finding that Gaytan was no longer subject to the med-mal law.
Our rules generally permit parties to freely amend their pleadings, so long as doing so does not “operate as a surprise to the defense,” the high court observed. But “whether a claim constitutes a health care liability claim depends on `the facts underlying the claim, not the form of, or artfully-phrased language in, the plaintiff’s pleadings describing the facts,’” the court said.
“What matters is the physician’s express or implied agreement to provide, and the patient’s express or implied agreement to accept, the physician’s `professional services,’” the court concluded. “By seeking treatments from an employee at a medical spa Dr. Yarish owned and operated, she necessarily sought and agreed to receive his professional services.”