health care liability claim in Texas

2007As the Stradley court concluded, to hold otherwise and to find that all safety claims against health care providers and physicians are health care liability claims, regardless of whether they directly relate to health care, "would be an arbitrary and legislatively unauthorized expansion of the health care liability statute." See Stradley , 210 S.W.3d at 775 ; see also Diversicare , 185 S.W.3d at 867 (O'Neill, J., dissenting) ("When it recently amended the definition of 'health care liability claim,' the Legislature clarified that claims falling under the statute must relate to the actual provi

2007As the Stradley court concluded, to hold otherwise and to find that all safety claims against health care providers and physicians are health care liability claims, regardless of whether they directly relate to health care, “would be an arbitrary and legislatively unauthorized expansion of the health care liability statute.” See Stradley, 210 S.W.3d at 775 ; see also Diversicare, 185 S.W.3d at 867 (O’Neill, J., dissenting) (‘When it recently amended the definition of ‘health care liability claim,’ the Legislature clarified that claims falling under the statute must relate to the actual provisi

2025Duerr, 262 S.W.3d at 70 . pleading.”); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004) (“Plaintiffs cannot use artful pleading to avoid the MLIIA’s requirements when the essence of the suit is a health care liability claim.”). 6 See also CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d 528, 534 (Tex. 2016) (when determining whether a claim is a health care liability claim, “we examine the underlying nature and gravamen of the claim, rather than the way it is pleaded”). 10 As we said in Latham v. Castillo, there is a “difference between negligent conduct and deceptive conduct,” a

2022Luke’s Episcopal Hosp., 319 S.W.3d 658, 664 (Tex. 2010) (“[I]t is the gravamen of the claim, not the form of the pleadings, that controls this determination.”); Diversicare, 185 S.W.3d at 847 (“To determine whether a cause of action is a health care liability claim . . . , we examine the underlying nature of the claim and are not bound by the form of the pleading.”); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004) (“Plaintiffs cannot use artful pleading to avoid the [Act’s] requirements when the essence of the suit is a health care liability claim. . . .

2024See, e.g., Loaisiga, 379 S.W.3d at 256 (whether groping sinus/flu patient’s breast departed from standard of care during examination and exceeded scope of consent was question triggering TMLA); Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (per curiam) (holding that plaintiff’s battery claim was a health care liability claim because “[t]here may [have] be[en] reasons for providing treatment without specific consent that do not breach any 8 applicable standard of care[, and] [t]he existence or nonexistence of such reasons is necessarily the subject of expert testimony”).

2024See Murphy, 167 S.W.3d at 836 n.1. 5 We review a trial court’s ruling on a motion to dismiss a health care liability claim for an abuse of discretion.

2026In this manner, the TMLA “essentially creates a [rebuttable] presumption that a claim is [a health care liability claim] if it is against a physician or health care provider and is based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement.” Loaisiga, 379 S.W.3d. at 256 ; Holden, 2025 WL 1954213 , at *6. 1.

2025We focus on the operative facts underlying the claim, not on how the pleadings describe the facts or the legal theories asserted.2 Collin Creek, 671 S.W.3d at 885; 2 The Supreme Court has repeatedly held that “artful pleading and recasting of claims is not permitted.” Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010). “[I]f the gravamen or essence of a cause of action is a health care liability claim, then allowing the claim to be split or spliced into a multitude of other causes of 7 Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012)).

2026The reason behind this expansive reading, according to the Texas Supreme Court, is that that “artful pleading and recasting of claims is not permitted.” Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010). “[I]f the gravamen or essence of a cause of action is a health care liability claim, then allowing the claim to be split or spliced into a multitude of other causes of action with differing standards of care, damages, and procedures would contravene the Legislature’s explicit requirements.” Id. at 197 .2 “The gravamen of a claim is its true nature, as opposed to what is simply alleged or artfu

2026The reason behind this expansive reading, according to the Texas Supreme Court, is that that “artful pleading and recasting of claims is not permitted.” Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010). “[I]f the gravamen or essence of a cause of action is a health care liability claim, then allowing the claim to be split or spliced into a multitude of other causes of action with differing standards of care, damages, and procedures would contravene the Legislature’s explicit requirements.” Id. at 197 .2 “The gravamen of a claim is its true nature, as opposed to what is simply alleged or artfu

2025Oaks, 371 S.W.3d at 178-79 (“Only claimants are obligated to serve expert reports on physicians or health care providers” and “a ‘claimant’ is broadly defined as a ‘person’ . . . bringing [a health care liability claim].” (citing TEX.

2025See id. at 182 (“[I]f expert medical or health care testimony is necessary to prove or refute the merits of the claim against a physician or health care provider, the claim is a health care liability claim.”); Foster v. Spring Hosp., No. 01-24-00296-CV, 2025 WL 2413076 , at *6 (Tex. App.—Houston [1st Dist.] Aug. 21, 2025, no pet. h.) (mem. op.) (concluding standard of care applicable to hospital staff in escorting post- operative knee patient to his vehicle “is an issue that would benefit from expert testimony”). 10 We hold that the Ross factors support the conclusion that Spiller’s claims are

2021Identifying the standard of care in a health care liability claim is critical: whether a defendant breached its duty to a patient cannot be determined absent specific information about what the defendant should have done differently. 8 Id.

2019Standard of Care and Breach In their second issue, appellants argue that Dr. Burdine’s report is substantively inadequate as to the applicable standard of care and breach because Burdine’s report is “internally inconsistent” and “conclusory.” Identifying the standard of care in a health care liability claim is critical: “Whether a defendant breached his or her duty to a patient cannot be determined 16 absent specific information about what the defendant should have done differently.” Palacios, 46 S.W.3d at 880 .

2017Appellees respond that “Dr. Dunn’s CV standing on its own clearly illustrate that he is more than qualified to offer opinions regarding the subject matter” and that “his report is not conclusory and it clearly outlines to Appellant how if Appellant had had policies and procedures in place that [H.H.] would not have been sexually assaulted by its employee.” Appellees assert that Dr. Dunn –3– “is absolutely an expert with knowledge, skill, experience, training, or education of general policies at psychiatric hospitals.” A. Standard of Review “Generally, we review a trial court’s order on a motio

2015See Jernigan, 195 S.W.3d at 94 . physicians (including the hospitalists), and the hospital Accordingly, we hold that the trial court erred in denying staff-during her hospitalization at Mainland Medical Mainland’s December 6, 2005 motion to dismiss the Center.” However, the report fails to mention the health care liability claim of the Burkhalters. appropriate standard of care specifically in regard to Mainland, its nurses, and its staff.

2022Luke’s Episcopal Hosp., 319 S.W.3d 658, 664 (Tex. 2010) (“[I]t is the gravamen of the claim, not the form of the pleadings, that controls this determination.”); Diversicare, 185 S.W.3d at 847 (“To determine whether a cause of action is a health care liability claim . . . , we examine the underlying nature of the claim and are not bound by the form of the pleading.”); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004) (“Plaintiffs cannot use artful pleading to avoid the [Act’s] requirements when the essence of the suit is a health care liability claim. . . .

2022See id. (holding “[w]hen the unsafe or defective condition of [medical] equipment injures the patient, the gravamen of the resulting cause of action is a health care liability claim”).

2005Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994) (holding that a claim that a physician “knowingly breached his express warranty of a particular result” was not a health care liability claim because it did not require “a determination of whether a physician faded to meet the standard of medical care”).

2005The court “looks to the underlying nature of the claim to determine its true character and whether it is actually a health care liability claim or something else.” Gomez v. Matey, 55 S.W.3d 732, 735 (Tex.App.-Corpus Christi 2001, no pet.) (citing Sorokolit, 889 S.W.2d at 242 ).

2026Claims against Creative Solutions and Honor X Creative Solutions and Honor X argue that they “do not own or operate Pebble Creek and would have a separate and distinct standard of care from the licensed operator,” thus Reyes was “required to give fair notice . . . as to the standard of care each [of them] owed . . . and how each [of them] breached that standard[.]” However, in his live pleading, Reyes asserts a vicarious liability claim against all defendants. 3 As the Texas Supreme Court has explained, “when a health care liability claim involves a vicarious liability theory, either alone or

2023“If a health care liability claim contains at least one viable liability theory, as evidenced by an expert report meeting the statutory requirements, the claim cannot be frivolous.” Id. at 631 . “[A]n expert report that adequately addresses at least one pleaded liability theory satisfies the statutory requirements, and the trial court must not dismiss in such a case.” Id. at 632 .

2012Partner, Inc. v. Rubio , 185 S.W.3d 842, 848 (Tex. 2005) (citing Walden v. Jeffrey , 907 S.W.2d 446, 448 (Tex. 1995), for the proposition that breach of contract claim for ill-fitting dentures is a health care liability claim). [3] The rules of civil procedure allow a trial court to dismiss a case under certain circumstances, such as for want of prosecution under rule 165(a).

2012Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005) (citing Walden v. Jeffrey, 907 S.W.2d 446, 448 (Tex. 1995), for the proposition that breach of contract claim for ill-fitting dentures is a health care liability claim). 2 based on the jury’s verdict after a trial on the negligence claim.

2024Code Ann. § 74.351 . (“Sometimes, potentially meritorious claims are even dismissed because claimants fail to serve an expert report not realizing that their claim is a health care liability claim.”); see e.g., Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 756 (Tex. 2014) (ordering dismissal of claims arising out of allegedly improper laser hair removal because they were health care liability claims and no expert report had been filed); Simmons v. Outreach Health Cmty. Care Services, L.P., 511 S.W.3d 163, 166 (Tex. App.—El Paso 2014, pet. denied) (dismissing with prejudice claim of nursing as

2023In determining whether a claim alleges a departure from accepted standards of health care, the supreme court has “held that ‘if expert medical or health care testimony is necessary to prove or refute the merits of the claim against a physician or health care provider, the claim is a health care liability claim.’” Bioderm Skin Care, LLC, 426 S.W.3d at 760 (quoting Tex. W.

2017"If a health care liability claim contains at least one viable *210 liability theory, as evidenced by an expert report meeting the statutory requirements, the claim cannot be frivolous." Potts , 392 S.W.3d at 631 . "[T]o constitute a good-faith effort to establish the causal-relationship element, the expert report must fulfill Palacios 's two-part test." Wright , 79 S.W.3d at 52 (citing Palacios , 46 S.W.3d at 879 ).

2007However, the Turners do argue, in the alternative, that a ruling on a motion to dismiss on a health care liability claim is reviewed for clear abuse of discretion, citing Bowie Memorial Hospital v. Wright, 79 S.W.3d 48 (Tex.2002). 3 .

2015By four issues, VBMC asks us to determine whether: (1) Stradley's 210 S.W.3d 770 allegation that VBMC was negligent in its safety practices Court of Appeals of Texas, alleges a departure from “accepted standards of safety” Corpus Christi–Edinburg. such that she is making a health care liability claim and VALLEY BAPTIST MEDICAL CENTER, Appellant, is required to provide an expert report; (2) in light of the v. current definition of “health care liability claim” and the Margaret STRADLEY, Appellee.

2015Ctr. v. Stradley, 210 S.W.3d 770, 773 (Tex.App.-Corpus Christi 2006, pet. filed) (finding that, while motions to dismiss are generally reviewed for abuse of discretion, the issue of whether plaintiff's claim is a health care liability claim in accordance with the statute at issue is a question of law and is thus reviewed de novo ).

2012The Mokkala court expressly held that re-filing a health care liability claim after an earlier nonsuit does not “restart the 120-day period” and does not provide the claimant with an additional 120 days in which to serve his expert report. 178 S.W.3d at 73 ; see also Cannon, 331 S.W.3d at 796 (“We hold that a claimant who nonsuits healthcare liability claims asserted against a particular healthcare provider and subsequently refiles the same healthcare liability claims against the same healthcare provider does not restart the 120-day time period for the service of an expert report and a curricu

2012As a result, the court stated that it “need not decide whether filing of a nonsuit before the expiration of the 120-day period would toll the 120 days for the period that elapses between the filing of the nonsuit and the refiling of the same health care liability claim.” Id.

2011However, when the issue is whether the claim is a health care liability claim under Chapter 74, we review the order de novo. *191 Lee v. Boothe, 235 S.W.3d 448, 451 (Tex.App.-Dallas 2007, pet. denied).

2010“If the factual allegations are related to the medical treatment provided by the defendant and constitute ‘an inseparable part of [the defendant’s] rendition of medical services,’ then the plaintiffs claim is a health care liability claim subject to the requirements of chapter 74.” Lee, 235 S.W.3d at 451 (quoting Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995)).

2022Id. § 74.051(a), (c); see also Carreras v. Marroquin, 339 S.W.3d 68, 74 (Tex. 2011) (“[F]or the statute of limitations to be tolled in a health care liability claim pursuant to Chapter 74, a plaintiff must provide both the statutorily required notice and the statutorily required authorization form.”).

2021If a claimant provides the pre-suit notice and health information authorization form, the limitations period is tolled up “to and including a period of 75 days following the giving of the notice, and this tolling shall apply to all parties and potential parties.” Id. § 74.051(c); see Carreras v. Marroquin, 339 S.W.3d 68, 74 (Tex. 2011) (“[F]or the statute of limitations to be tolled in a health care liability claim pursuant to Chapter 74, a plaintiff must provide both the statutorily required notice and the statutorily required authorization form.”).

2010See Ammons , 266 S.W.3d at 55 ; Kidd , 214 S.W.3d at 32 (cases noting that although appellate courts ordinarily review the denial of a motion to dismiss filed pursuant to Section 74.351 under an abuse of discretion standard, a de novo standard is applied in determining whether a causes of action is a health care liability claim for purposes of applying Chapter 74).

2010See Ammons, 266 S.W.3d at 55 ; Kidd, 214 S.W.3d at 32 (cases noting that although appellate courts ordinarily review the denial of a motion to dismiss filed pursuant to Section 74.351 under an abuse of discretion standard, a de novo standard is applied in determining whether a causes of action is a health care liability claim for purposes of applying Chapter 74).

2022See 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).

2013See 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).

2026See Ross, 462 S.W.3d at 502 ; see also Jackson, 2020 WL 1480166 at 479 9 (“[A] claim can be a health care liability claim regardless whether the plaintiff’s petition explicitly cites the TMLA or alleges a breach of any accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care.”).

2024The Supreme Court of Texas nonetheless concluded that this was a health care liability claim because it was “a safety claim directly related to services meeting her fundamental needs” as a patient, specifically, “cleanliness” and “safety.” Id.; see Ross, 462 S.W.3d at 502 (discussing Ollie and explaining that “[a]lthough the claims . . . alleged general negligence, they were 6 [health care liability claims] because the underlying nature of the claims involved violations of safety standards directly related to the provision of health care, including protecting patients”).

2025Leland v. Brandal, 257 S.W.3d 204 , 207–08 (Tex. 2008); see also Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008) (stating deficient report may be cured by amending report or by serving new report from separate expert that cures deficiencies in previously filed report).

2012In Lewis , the Texas Supreme Court addressed a split in the courts of appeals over whether the denial of a motion to dismiss of a health care liability claim on the ground that the expert report was inadequate under section 74.351—as opposed to the ground that no expert report was timely filed—constituted a denial of relief under a subsection (b) motion, such that courts of appeals had jurisdiction over an interlocutory appeal from the order denying relief. 253 S.W.3d at 206–08.

2019Discussion The Texas Medical Liability Act’s comprehensive statutory framework strikes “a careful balance between eradicating frivolous claims and preserving meritorious ones.”9 As one of its chief features, the Act imposes a threshold requirement that suits asserting health care liability claims must be supported by an expert report “before litigation gets underway.”10 The expert-report mandate is a substantive hurdle that helps ensure frivolous claims are eliminated quickly.11 Weems did not serve anything resembling an expert report, either in name or substance; therefore, his suit must be d

2009See Leland v. Brandal, 257 S.W.3d 204, 205, 207-08 (Tex.2008) (“In this health care liability claim, we must decide whether a plaintiff may be afforded a thirty-day extension to cure an expert report after a trial court’s ruling that the report is adequate is reversed on appeal.

2017Finally, we note that the Supreme Court of Texas has held “that if expert medical or health care testimony is necessary to prove or refute the merits of a claim against a physician or health care provider, the claim is a health care liability claim.” Palit, 414 S.W.3d at 726 .

2017The only dispute, then, pertains to the second element of a health care liability claim—whether Joshua’s claims at issue “concern treatment, lack of treatment, or a departure from the accepted standards of medical care, or health care, or safety.” Id.

2019Code Ann. § 74.001 (a)(13) (defining “health care liability claim”); see also Omaha Healthcare Ctr. v. Johnson, 344 S.W.3d 392, 395 (Tex. 2011) (holding that a plaintiff’s suit against a nursing home for a death caused by a brown recluse spider bite was a health care liability claim that required the service of an expert report); Fields v. Metroplex Hosp.

2019See Diversicare, 185 S.W.3d at 845 (failure to provide adequate supervision leading one nursing home resident to sexually assault a co-resident stated a health care liability claim because the supervision of both was “inseparable from the health care and nursing services provided”); Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 395 (Tex. 2011)(failure to guard nursing home resident from brown recluse spider bite implicated safety standard and triggered TMLA); Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8, 15 (Tex.App.--Tyler 2002, pet. denied)(decision of nursing home to administer chemi

2020See Rehabilitative Care Sys. of Am. v. Davis, 73 S.W.3d 233, 234 (Tex. 2002) (stating a suit against physical therapist is “no different from any other medical-malpractice suit in that the applicable standard of care must generally be established by expert testimony.”); Ponce v. El Paso Healthcare Sys., Ltd., 55 S.W.3d 34 , 36-38 (Tex. App.—El Paso 2001, pet. denied) (finding a health care liability claim arose from physical therapist’s conduct where physical therapist acted as an agent to another health care provider); Trevino, 2012 WL 4577484 , at *3.

2004Buck v. Blum, supra; Ponce v. El Paso Healthcare System, Ltd., supra. Article 4590i, section 13.01(d) provided that a claimant must furnish an expert report to counsel for each defendant not later than the 180th day after the date on which the health care liability claim was filed.

2019In Jorden, we held that the Act’s stay of discovery “in a health care liability claim” applies even to presuit depositions sought under Texas Rule of Civil Procedure 202. 249 S.W.3d at 418 .

2018That court held that the discovery was unavailable under section 74.351(s) because “[u]nder this particular set of facts, where Sanchez is seeking to investigate a health care liability claim against health care providers, even though those providers –6– have not been named in the lawsuit, the requested discovery falls within the protection of section 74.351(s) as explained in Jorden.” Id. (citing In re Jorden, 249 S.W.3d at 422 ).

2025Oaks Hosp., 371 S.W.3d at 182 (“[W]e now hold that if expert medical or health care testimony is necessary to prove or refute the merits of the claim against a physician or health care provider, the claim is a health care liability claim.”); 46 • Rogers, 623 S.W.3d at 351 (holding claims were health care liability claims because “their proof requires expert testimony”—without analyzing the Ross factors); • Coming Attractions, 595 S.W.3d at 667 (holding—without analyzing the Ross factors—that the claims alleging violations of both health care and safety standards were health care liability clai

2025Ctr. v. Weems, 575 S.W.3d 357, 362 (Tex. 2019); see also Rusk State Hosp. v. Black, 392 S.W.3d 88, 93 (Tex. 2012) (“[A] court must dismiss a health care liability claim if the plaintiff does not timely serve an expert report and the defendant physician or health care provider properly objects.”). 4 The parties do not dispute that the 120-day deadline was not extended either by agreement or under Section 74.353.

2015Instead, they state that “[t]he facts show otherwise” and then re- summarize the facts they allege support their fraud claim. 14 “Whether the action is a health care liability claim is a question of law, which this court reviews de novo.” Gomez v. Matey, 55 S.W.3d 732 , 735 & n. 2 (Tex. App.—Corpus Christi 2001, no pet.).

2005The court “looks to the underlying nature of the claim to determine its true character and whether it is actually a health care liability claim or something else.” Gomez v. Matey, 55 S.W.3d 732, 735 (Tex.App.-Corpus Christi 2001, no pet.) (citing Sorokolit, 889 S.W.2d at 242 ).