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Maria G. Villarreal, L.P.C. v. Fowler

Court of Appeals of Texas, Second District, Fort Worth

June 29, 2017

MARIA G. VILLARREAL, L.P.C. APPELLANT
v.
JULIA FOWLER, INDIVIDUALLY AND AS NEXT FRIEND OF MINORS S.C., L.C., AND E.C. APPELLEE

         FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 067-284797-16

          PANEL: MEIER, SUDDERTH, and PITTMAN, JJ.

          OPINION

          BILL MEIER JUSTICE

         Appellant Maria G. Villarreal, L.P.C. raises several issues in this interlocutory appeal of the trial court's order denying her motion to dismiss the health care liability claim of Appellee Julia Fowler, individually and as next friend of minors S.C., L.C., and E.C., but we limit our analysis to only one-her dispositive argument that a "Clinical Review" timely served by Fowler fails to qualify as an expert report as that term is used in section 74.351(a) of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2017). Because the Clinical Review does not contain the opinion of an individual with expertise that Fowler's claim has merit, it is no report, and the trial court had no option but to dismiss Fowler's health care liability claim. We will reverse and remand.

         According to the few contextual facts contained in Fowler's April 2016 original petition, she hired Villarreal to perform counseling services for her three minor children, S.C., L.C., and E.C, but Villarreal, in violation of the administrative code, instead defamed and emotionally abused the children, causing Appellees "continued financial damage and an ongoing need for additional counseling." In addition to claims for breach of contract, defamation, and violation of the DTPA, Fowler alleged a "health care liability claim, " premised upon the following allegations:

• "Plaintiff formed an enforceable contract with Defendant for the benefit of the Parties in which Defendant agreed to perform counseling services for family reunification and in which Plaintiff agreed to pay Defendant for that counseling";
• "The Parties had a special relationship in which Defendant had a duty to protect Plaintiffs from mental anguish";
• "Defendant accepted Plaintiff's payment, though Defendant was not trained or capable of providing the services requested, and did not provide the service";
• "Plaintiffs have been damaged by the complete failure to provide the services for which they paid, both monetary and in a greater need for additional counseling in order to undo damage caused by Defendant's actions"; and
• "While being paid to counsel Plaintiffs, Defendant gave legal advice to a third party deleterious to Plaintiffs' legal and emotional positions, in violation of the special relationship between the parties."

         Villarreal filed her original answer on May 13, 2016, and moved to dismiss the health care liability claim on September 19, 2016, arguing that Fowler had failed to serve her with an expert report as mandated by chapter 74. Fowler responded that she complied with section 74.351(a)'s expert-report requirement by serving Michael Flynn, Villarreal's prior attorney, with a "Clinical Review, " authored by Shelbie Michaels, MA, LPC-S, before the lawsuit was filed. Fowler's counsel produced an email that he had sent to Flynn on September 4, 2015, which stated, "Michael, [s]ee attached report. I will be filing suit in about two weeks, unless we can come together on a solution." The trial court denied Villarreal's motion to dismiss. Villarreal then filed a motion for rehearing and amended motion to dismiss, arguing that the Clinical Review was no report and that Fowler had failed to serve a curriculum vitae and an expert report from a physician qualified to render an opinion on proximate cause.[1] The trial court specifically denied each ground.

         In her third issue, Villarreal argues that the trial court erred by denying her motion to dismiss Fowler's health care liability claim because, although timely served, the Clinical Review is no report at all. According to Villarreal, the Clinical Review "cannot fairly be said to have been contemplated as a Chapter 74 report" because "[n]othing in the document or the email attaching it put [her] on notice that the instrument being sent was intended to comply with the statute"; the Clinical Review "does not reference the standard of care, breach thereof, or proximate cause" but instead merely "makes a clinical recommendation (to file an ethics complaint) and then suggests that the family consult with an attorney." Fowler responds that the Clinical Review "looks like an expert report and obviously so. At the least, it is a good faith effort."

         We review a trial court's denial of a motion to dismiss for an abuse of discretion. Polone v. Shearer, 287 S.W.3d 229, 232 (Tex. App.-Fort Worth 2009, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241‒42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).

         A plaintiff must serve an expert report for each physician or health care provider against whom a liability claim is asserted. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). An expert report is a written report by an expert that provides a fair summary of the expert's opinions regarding the applicable standard of care, the manner in which the care rendered by the physician or health care provider failed to meet the standard, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. ยง 74.351(r)(6). The information in the report does not have to meet the same requirements as evidence offered in a summary-judgment proceeding or at trial, and the report need not marshal all the plaintiff's proof, but it must include the expert's opinions on each ...


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