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Baylor University Medical Center, Inc. v. Daneshfar

Court of Appeals of Texas, Fifth District, Dallas

November 7, 2017


         On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-11793-J

          Before Justices Francis, Myers, and Whitehill



         This case concerns whether a medical resident who is terminated from a hospital's fellowship program and brings suit for wrongful termination is subject to the expert-report requirements of section 74.351 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. Baylor University Medical Center, Inc., Baylor Scott & White Health, BSW Health Services, (collectively "Baylor") and William P. Shutze, M.D. appeal the trial court's denial of their motion to dismiss the suit brought by Bahraum Daniel Daneshfar, M.D. under section 74.351 because Daneshfar failed to serve an expert report. We affirm the trial court's order denying the motion to dismiss.

         BACKGROUND [1]

         In June 2013, Daneshfar entered into a fellowship residency program at Baylor studying vascular surgery. The hospital placed Daneshfar under the tutelage of Shutze, the director of the program. As part of the program, Shutze was supposed to give Daneshfar a review every six months. However, Shutze did not perform the review until April 2014 despite Daneshfar's repeated requests for the review. At that first review, Shutze told Daneshfar he personally did not like him and did not respect him as a medical associate. Shutze required Daneshfar to work far more shifts and on-call periods than the other residents.

         In December 2014, Daneshfar asked Shutze to give him the required review, but Shutze refused. Shutze also berated and belittled Daneshfar in front of others and repeatedly threatened to fire Daneshfar if he complained about Shutze's behavior to the Graduate Medical Education Office.

         Daneshfar requested a meeting with Baylor's Designated Institutional Officer for the Graduate Medical Education Office to air his grievances with the fellowship program and Shutze. However, at the meeting, which Shutze also attended, Daneshfar was not allowed to air his grievances and was told he was on probation because of unsatisfactory performance. After the meeting, Shutze told Daneshfar there was nothing he could do to get off probation. Shutze refused to meet further with Daneshfar despite the requirements of Daneshfar's contract with Baylor and the requirements of the Graduate Medical Education program.

         Daneshfar retained an attorney who sent a cease-and-desist letter to Baylor. Daneshfar also sent Baylor a complaint that he threatened to submit to the Accreditation Council for Graduate Medical Education, which oversees and certifies post-graduate medical education programs, including Baylor's residency programs. Baylor then terminated Daneshfar from the fellowship program. Daneshfar followed Baylor's internal administrative-review process, but he was not reinstated.

         Daneshfar sued Baylor and Shutze for breach of contract, negligence, wrongful discharge, breach of fiduciary duty, assisting or encouraging a breach of fiduciary duty, conspiracy to breach a fiduciary duty, negligent supervision, tortious interference with contract, duress, and intentional infliction of emotional distress. Eight months later, Baylor and Shutze filed a motion to dismiss Daneshfar's claims asserting the claims were health care liability claims and that Daneshfar did not serve them with an expert report as required by section 74.351 of the Civil Practice and Remedies Code. See Civ. Prac. § 74.351(a), (b). The trial court held a hearing on the motion to dismiss and denied it. Baylor and Shutze now bring this interlocutory appeal contending the trial court erred by denying the motion to dismiss. See Civ. Prac. § 51.014(a)(9).


         In their sole issue on appeal, appellants contend the trial court erred by denying their motion to dismiss because Daneshfar's claims are health care liability claims requiring him to serve appellants with expert reports, which he failed to do.

         This case requires interpretation of statutes. When construing statutes, we attempt to ascertain and effectuate the legislature's intent. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). We start with the plain and ordinary meaning of the statute's words. Id. If a statute is unambiguous, we generally enforce it according to its plain meaning. Id. We read the statute as a whole and interpret it so as to give effect to every part. Id.; see also Phillips v. Bramlett, 288 S.W.3d 876, 880 (Tex. 2009) ("We further try to give effect to all the words of a statute, treating none of its language as surplusage when reasonably possible."). We apply a de novo standard of review to the trial court's interpretation of statutes. Levinson Alcoser Assocs., L.P. v. El Pistolon II, Ltd., 513 S.W.3d 487, 493 (Tex. 2017).

         Section 74.351 of the Civil Practice and Remedies Code provides, "In a health care liability claim, a claimant shall . . . serve on [each defendant or the defendant's attorney] one or more expert reports . . . for each physician or health care provider against whom a liability claim is asserted." Civ. Prac. § 74.351(a). The expert report must be served within 120 days after the defendant files its answer. Id. If the expert report is not timely served, then, on motion of the affected physician or health care provider, the trial court must dismiss the claim with prejudice to refiling and award the physician or health care provider its ...

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