William E. De La Vergne v. Methodist Healthcare System of San Antonio, Ltd., L.L.P.--Appeal from 224th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00307-CV

William E. DE LA VERGNE,

Appellant

v.

METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, L.L.P.,

Appellee

From the 224th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CI-07548

Honorable Michael P. Peden, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 7, 2005

AFFIRMED

In the underlying litigation, appellant asserted claims for false imprisonment, misrepresentation under the Texas Deceptive Trade Practices Act ( DTPA ), and intentional infliction of emotional distress. All claims were based on appellant s allegations that he was not properly sedated during an MRI procedure and, during the procedure, he was positioned in a manner that caused him extreme pain and numbness. The trial court dismissed appellant s lawsuit for failure to file an expert report pursuant to Texas Civil Practice and Remedies Code section 74.351. We affirm.BACKGROUND

Appellant suffers from claustrophobia; therefore, he consented to the MRI procedure based upon appellee s assurances that he would be fully sedated and he would be retrieved from the MRI machine in the unlikely event he experienced any anxiety whatsoever. Although appellant was sedated three times before he was placed in the MRI machine, he continued to feel anxiety. Despite his protests that he felt neither relaxed nor tranquil, he was placed in the machine, which proved to be a struggle due to his large frame. According to appellant, appellee s employees more or less stuffed and shoved [him] into the machine as if he were a load of laundry, [and despite his pleading] with them to either free him from the machine or administer more sedation. A towel was thrown over his face, his pleas were ignored, and he was left pinned [in the machine] with his arms above his head in a position that caused extreme pain and numbness in multiple parts of his body. Appellant continued to plead to be released from the machine, but for approximately forty-five minutes he endured a living hell as his cries were ignored, and all the while he was fully conscious.

Appellee filed special exceptions, arguing that appellant s claims were governed by Civil Practice and Remedies Code chapter 74. The trial court granted the special exceptions and ordered appellant to amend his pleadings. After appellant refused to amend his petition, appellee filed a motion to dismiss, arguing that appellant s claims were medical negligence claims and, because the deadline had passed in which to file an expert s report, the claims should be dismissed. The trial court agreed and dismissed appellant s claims with prejudice.

DISCUSSION

Chapter 74 applies only to health care liability claims, which are defined as claims 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 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. Tex. Civ. Prac. & Rem. Code Ann. 74.001(13) (Vernon 2005). Plaintiffs may not avoid the requirements of chapter 74 by recasting their causes of action as something other than health care liability claims. See Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004); MacGregor Med. Ass n v. Campbell, 985 S.W.2d 38, 40 (Tex. 1998) (per curiam); Theroux v. Vick, 163 S.W.3d 111, 113 (Tex. App. San Antonio 2005, pet. denied). However, courts must be equally careful not to extend chapter 74 s reach beyond its stated bounds. Theroux, 163 S.W.3d at 113. Not every action taken by a health care provider or every injury suffered by a patient is a health care liability claim. See id. The act or omission complained of must be an inseparable part of the rendition of medical services. See Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex. 1995); see also Drury v. Baptist Memorial Hosp. Sys., 933 S.W.2d 668, 676 (Tex. App. San Antonio 1996, writ denied).

A cause of action will be considered a health care liability claim if it is based on a breach of a standard of care applicable to health care providers. Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994); see also MacGregor Med. Ass n, 985 S.W.2d at 40-41. To determine whether a cause of action fits this definition, we look, not merely at the pleadings, but at the underlying nature of the claim. MacGregor Med. Ass n, 985 S.W.2d at 40; Sorokolit, 889 S.W.2d at 242.

On appeal, appellant devotes his argument to whether the trial court properly dismissed his DTPA claim; appellant does not address his false imprisonment or intentional infliction of emotional distress claims. Accordingly, we treat those claims as abandoned, and affirm the trial court s judgment as to those claims. Therefore, in determining whether the trial court erred in granting appellee s motion to dismiss, we decide only whether the court correctly characterized appellant s DTPA claim as a health care liability claim.

Appellant concedes he did not comply with chapter 74 s requirement that an expert report be served on each party. See Tex. Civ. Prac. & Rem. Code Ann. 74.351. Appellant contends section 74.351 does not apply because his allegations are not based upon any deviation from or breach of an acceptable standard of medical care. Instead, he asserts his complaints are based upon promises and representations made by appellee about the MRI procedure. Appellant relies on this court s opinion in Trevino v. Christus Santa Rosa Healthcare Corp., No. 04-01-00764-CV, 2002 WL 31423711 (Tex. App. San Antonio Oct. 30, 2002, no pet.) (not designated for publication), in which a nurse s alleged misrepresentations that she would be over there in a little bit led to the plaintiff s baby being born in a public restroom. A panel of this court held that the plaintiff did not allege the hospital or nurse deviated from an accepted standard of medical care, and therefore, that the claim constituted a fraud claim, as opposed to a medical negligence claim. Id. at *3.

Recently the Texas Supreme Court decided a case in which a patient was sedated without her consent. See Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005). In that case, the patient specifically informed her anesthesiologist that she would permit only a local anesthetic and that she did not want to be sedated or lose consciousness. However, once she was in the operating room, the hospital staff inserted an air tube into her nose and she lost consciousness. The anesthesiologist admitted he had sedated her contrary to her instructions. The patient sued for battery, breach of contract, and DTPA violations. She did not file an expert report. The Supreme Court held that the failure to obtain consent does not automatically result in a battery because [t]here may be reasons for providing treatment without specific consent that do not breach any applicable standard of care. Id. at 838. The existence or nonexistence of such reasons is necessarily the subject of expert testimony. Id. As to her DTPA claims, the Court held that the anesthesiologist s alleged representations that he would not sedate her are nothing more than an attempt to recast [a] malpractice claim as a DTPA claim. Id. at 839. The Court concluded that the patient s DTPA claims all have to do with whether the administration of a general anesthetic under all the circumstances met the standard of care for anesthesiologists. Id.

We conclude that under the reasoning of Murphy, appellant was required to file an expert report. Appellant asserted in his petition that appellee s misrepresentations concerning the precautions to be taken to accommodate [his] claustrophobia and to ensure his sedation, constitute violations of the [DTPA]. The essence of appellant s claim is that appellee failed to properly sedate him and failed to remove him from the MRI machine upon his request to do so. These allegations necessarily involve the health care provided by appellee. See Tex. Civ. Prac. & Rem. Code Ann. 74.001(10) (defining health care as any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient s medical care, treatment, or confinement. ). Therefore, appellant was required to provide appellee with an expert report. Because he failed to do so within the statutory time period, the trial court did not err in dismissing his suit.

CONCLUSION

We overrule appellant s issue on appeal and affirm the trial court s judgment.

Sandee Bryan Marion, Justice