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Syed v. Nguyen

Court of Appeals of Texas, First District

September 21, 2017

GHYASUDDIN SYED, M.D. AND SOUTHEAST TEXAS INSTITUTE OF PAIN MANAGEMENT, P.A., Appellants
v.
PHU HUU NGUYEN, PHARM. D., PLLC D/B/A WELLNESS PHARMACY AND PHU "PAUL" HUU NGUYEN, Appellees

         On Appeal from the 133rd District Court Harris County, Texas Trial Court Case No. 2015-64778

          Panel consists of Justices Jennings, Bland, and Brown.

          MEMORANDUM OPINION

          Terry Jennings Justice

          In this interlocutory appeal, [1] appellants, Ghyasuddin Syed, M.D. and Southeast Texas Institute of Pain Management, P.A. ("STIPM"), challenge the trial court's order denying their motion to dismiss[2] the claims brought against them by appellees, Phu Huu Nguyen, Pharm. D., PLLC, doing business as Wellness Pharmacy ("Wellness Pharmacy"), and Phu "Paul" Huu Nguyen, for slander, tortious interference with existing and prospective business relationships, and business disparagement. In their sole issue, appellants contend that the trial court erred in denying their motion to dismiss, in which they asserted that appellees' claims are health care liability claims[3] and appellees did not serve them with an expert report as required by the Texas Medical Liability Act ("TMLA").[4]

         We affirm.

         Background

         In their petition, appellees allege that Nguyen, a licensed pharmacist, owns Wellness Pharmacy, a licensed pharmacy that from 2007 until March 2014 "was a tenant of the Baytown Primary Medical Tower" (the "Medical Tower") in Baytown, Texas. In 2009, Dr. Syed, who owns and operates STIPM, another tenant in the Medical Tower, purchased the Medical Tower and became Wellness Pharmacy's landlord. After purchasing the Medical Tower, Syed increased Wellness Pharmacy's rent to an "above market rate[]" and imposed "burdensome overhead fees" on Wellness Pharmacy.

         In March 2013, Nguyen became concerned about Wellness Pharmacy's "viability" if it were to stay a tenant in the Medical Tower. When he approached Dr. Syed to express "his concerns about the increasing rents, the disproportional overhead fees to maintain the building's common areas, the dwindling number of physicians located in the [Medical Tower] and the drastic decrease in the number of" Wellness Pharmacy customers because of the "departures of physicians and their practices [from the Medical Tower], " Nguyen was "met with retaliation." And Syed told Nguyen, "If [Wellness Pharmacy] move[s], I will no longer allow my patients to fill their prescriptions" there. (Internal quotations omitted.)

         In March 2014, Wellness Pharmacy left the Medical Tower and moved to another location in Baytown, Texas.[5] Wellness Pharmacy then began to experience a decrease in the number of customers, particularly those persons "who were under Dr. Syed's medical care." For instance, before Wellness Pharmacy left the Medical Tower, Syed's patients "routinely filled their prescriptions at Wellness [Pharmacy], " and from January 1, 2013 to December 31, 2013, Wellness Pharmacy filled 10, 570 prescriptions written by Syed for his patients. After its relocation, however, from January 1, 2014 to December 31, 2014, Wellness Pharmacy filled only 6, 094 prescriptions written by Syed for his patients. And from January 1, 2015 to September 24, 2015, Wellness Pharmacy filled only 1, 629 prescriptions written by Syed for his patients.

         Appellees further allege that after Wellness Pharmacy's relocation away from the Medical Tower, Dr. Syed began "intentionally engag[ing] in a pattern of conduct calculated to force [appellees] to close [the pharmacy's] doors." More specifically, Syed "intentionally and maliciously [sought to] divert[] business away from Wellness [Pharmacy] to other pharmacies, including a [new] pharmacy located in [the Medical Tower]." And he falsely told his patients, who had been Wellness Pharmacy customers, that Nguyen was "engaging in illegal conduct, " Nguyen "was in a lot of trouble, " and Wellness Pharmacy "w[ould not] be around much longer." (Internal quotations omitted.)

         According to appellees, Wellness Pharmacy customers have told them that "Dr. Syed [is] forcing [them] to use" the new pharmacy in the Medical Tower and "intimidat[ing]" them into no longer filling their prescriptions with Wellness Pharmacy. (Internal quotations omitted.) And Syed told some Wellness Pharmacy customers that he will no longer "see" them if they continue to use Wellness Pharmacy and "someone will be watching where" their prescriptions are being filled. (Internal quotations omitted.)

         In regard to their claim of slander, appellees allege that appellants have "defamed Nguyen by accusing [him], " the "lead licensed pharmacist" and owner of Wellness Pharmacy, of "engaging in illegal conduct" and being "in a lot of trouble." Appellants have "published" false statements "imputing criminal misconduct on . . . Wellness [Pharmacy]" and Nguyen, thereby injuring appellees' relationships with their customers. And the false statements made by appellants, "without legal justification, " were "intended to, and in fact did, humiliate, disgrace, degrade, and impeach Nguyen's reputation, integrity, and virtue" and were defamatory per se.

         In regard to their claims of tortious interference with existing and prospective business relationships, appellees allege that appellants have "intentionally and maliciously interfered with existing business relationships between Wellness [Pharmacy] and its [customers] as well as [its] prospective relationships [with new customers]." "As a direct and proximate result of [appellants'] publication of defamatory statements" and their actions seeking to prohibit Wellness Pharmacy customers "from [continuing to] fill[] their prescriptions" at the pharmacy, appellees have "endured shame, embarrassment, humiliation, mental pain, and anguish." And they have, and will in the future, suffer injury to their business, reputation, and "standing in the community."

          In regard to their claim of business disparagement, appellees allege that appellants, "despite knowledge of the truth, " have "made malicious and reckless statements about [appellees] in bad faith by publishing false and disparaging information." Appellants communicated these statements "knowing [that] they were false" and/or with a "reckless disregard for the truth." They made them with "ill-will, " "intending to interfere with [appellees'] relationships" with Wellness Pharmacy customers and appellees' "economic interests in those relationships." Appellants have "played a substantial part in" causing Wellness Pharmacy customers to "ceas[e]" "deal[ing] with [the pharmacy]." And appellants have "preclude[ed]" customers "from seeking pharmaceutical services and counseling at Wellness [Pharmacy]." As a result, appellees have suffered damages, including lost profits and lost dealings.

         Appellants answered, generally denying appellees' allegations and asserting various affirmative defenses. Nine months later, appellants moved to dismiss appellees' claims against them for failure to serve appellants with an expert report as required by the TMLA.[6] Appellants asserted that appellees' claims against them for slander, tortious interference with existing and prospective business relationships, and business disparagement are "health care liability claims"[7]governed by the TMLA, and as such, appellees were required to "serve an expert report upon [appellants] within 120-days of [appellants] filing an [a]nswer."[8]According to appellants, appellees' "entire petition is replete with references to medical standards of care, patient-physician and/or patient[-]pharmacy relationships, and damages related to conversations which contemplate medical standards and practices related to prescribing authority." "There is simply no construction of [appellees'] claims that could possibly fall outside of" the TMLA. Because appellees were required to serve an expert report in the instant case and did not do so, their claims against appellants must be dismissed.[9]

         In response to appellants' motion to dismiss, appellees asserted that their claims for slander, tortious interference with existing and prospective business relationships, and business disparagement are not health care liability claims[10]governed by the TMLA. Instead, appellees' claims arise from appellants' intentional and "calculated" conduct intended to "disparage . . . Nguyen as a pharmacist, " "undermine Wellness Pharmacy, " and "destroy [appellees'] business." More specifically, appellees asserted that appellants "slandered [appellees'] name[s] and reputation[s] to dozens of" their customers "and others" by claiming that appellees were "conducting illegal or untoward activities"; "intimidated and threatened" appellees' customers; and "sent prescription requests to other ...


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