January 31, 2019
Petition for Review from the Court of Appeals for the Sixth
District of Texas
Texas Medical Liability Act (Act) requires a claimant
pursuing a "health care liability claim" to timely
serve an adequate expert report. Failure to do so requires
dismissal with prejudice. In this case, the claimant asserts a
nurse fraudulently recorded information in a patient's
medical records, but the claimant did not serve anything
purporting to be an expert report. We hold that dismissal of
the lawsuit is required because this
falsified-medical-records claim is a health care liability
claim subject to the Act's expert-report requirements. We
therefore reverse the court of appeals' judgment and
render judgment for the health care provider.
James Weems III was indicted for aggravated assault by
shooting or striking Ernest Bradshaw and using or exhibiting
a deadly weapon-a firearm-during the commission of the crime.
Weems sued Baylor Scott and White, Hillcrest Medical Center
(the Hospital) for intentional infliction of emotional
distress, alleging he was indicted only because the nurse who
examined Bradshaw after the incident had falsified
Bradshaw's medical record by fraudulently describing
Bradshaw's injury as a "point-blank"
"gunshot wound" to the head.
disputed medical record states, "EMS and patient report
another individual put a gun to his head and patient pushed
it away as it fired. Has two penetrating wound [sic] to left
forehead." The "[i]njury mechanism" is
described as a "gunshot wound" with a description
of the physical exam as showing "[two] penetrating
wounds to left forehead concerning for GSW [gun shot wound]
with entrance and exit wound. No other signs of head
trauma." The record provides a "[f]inal
diagnoses" of "[a]ssault with GSW (gunshot
wound)" and "[t]raumatic hematoma of
forehead." The medical record notes Bradshaw was
discharged after this initial examination and treatment. The
record does not identify Bradshaw's alleged assailant by
name or description.
In Weems's live pleadings, he alleged that, "[a]s a
trained nurse, it had to have been apparent to [the nurse] at
the time that the medical report was written that Ernest
Bradshaw was not shot." Weems elaborated:
4. [T]he nurse who wrote Ernest Bradshaw's medical report
knowingly, intentionally and willingly falsely reported that
Bradshaw had been shot in the head.
5. The nurse . . . was fully aware at the time that the
information in that medical report was being used in a
criminal investigation against Weems, and that the falsity of
[the nurse's] written statements would have a severe
negative impact on Weems's life.
6. Upon information and belief, Plaintiff surmises that this
nurse was coerced into putting this false information down by
[a police officer] in an attempt to cover up an illegal entry
into his motel room and an illegal search of that room and
seizure of Weems's person.
7. Ernest Bradshaw did not have any injuries that were
consistent with any that might have been caused by a gunshot
. . . .
9. The false medical report . . . was constructed with
malicious intent and reckless disregard for truth for the
primary purpose of falsely imprisoning Plaintiff Weems,
ruining his reputation and keeping him incarcerated for the
remainder of his life.
10. The flagrantly false information in this medical report
was used . . . to charge Weems with attempted murder and his
bond was set at $100, 000 as a direct result of it.
27. The actions of the nurse who wrote the fraudulent medical
report were both extreme and outrageous, and because of those
actions Plaintiff Weems has remained incarcerated for nearly
two years to live under purposely oppressive conditions
solely because of the false information that Defendant
recorded in Bradshaw's medical report.
further claimed that he had "made it plainly clear [to
the police] that Bradshaw had not been the victim of a
shooting" and that "the only evidence"
supporting the allegation "was the fabricated medical
report written by the nurse who worked for [the
Hospital]." According to Weems, a forensics expert
subsequently examined pictures of Bradshaw's injury along
with his medical record and determined it was "not
possible" that Bradshaw had been shot.
Hospital answered with a general denial, invoked the
civil-liability limitations in Chapter 74 of the Texas Civil
Practice and Remedies Code, and asserted various affirmative
defenses. For suits involving a "health care liability
claim," Chapter 74 requires the claimant to serve an
adequate expert report within 120 days after the
defendant's original answer has been filed.Dismissal with
prejudice is required if an expert report is not timely
did not serve an expert report even after the Hospital
alerted him to a potential dismissal risk by prematurely
filing a Chapter 74 dismissal motion. Instead, Weems took the
position that Chapter 74 does not apply to his personal
injury claims because they are not medical malpractice
claims. Following a hearing on the Hospital's amended
motion to dismiss, the trial court dismissed Weems's suit
with prejudice and awarded the Hospital its attorney's
fees and costs.
appealed, complaining about the dismissal but not the
monetary award to the Hospital. The appeal was then
transferred pursuant to a docket-equalization
order. Applying the transferring court's
precedent, as required,  the court of appeals reversed and
remanded, holding that "claims involving alteration and
fabrication of medical records are not healthcare liability
claims and, therefore, do not trigger the expert report
requirement of Section 74.351." However, the court noted
that a split exists in the appellate courts on that point and
further opined that the transferring court's precedent
had questionable vitality "[u]nder the current state of
granted the Hospital's petition for review to address
this issue of first impression.
Texas Medical Liability Act's comprehensive statutory
framework strikes "a careful balance between eradicating
frivolous claims and preserving meritorious
ones." 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." The
expert-report mandate is a substantive hurdle that helps
ensure frivolous claims are eliminated quickly. Weems did not
serve anything resembling an expert report, either in name or
substance; therefore, his suit must be dismissed with
prejudice if he is asserting a health care liability
a claim is a health care liability claim under the Act is a
question of law we review de novo. In doing so, we consider
the underlying nature of the plaintiff's claim rather
than its label. Accordingly, we need not consider
whether Weems's claim is for intentional infliction of
emotional distress, as stated in his pleadings, or fraud, as
stated in his appellate briefs. As our precedent makes clear,
a party cannot avoid Chapter 74's requirements and
limitations through artful pleading.
claim brought against a health care provider is "based
on facts implicating the defendant's conduct during the
course of a patient's care, treatment, or
confinement," a rebuttable presumption arises that it is
a health care liability claim for purposes of the Medical
Liability Act.Weems's pleadings invoke the
presumption here. As recounted in his amended petition, the
claim that Bradshaw's medical records were falsified is
based on a nurse's alleged conduct during the course of a
patient's care and treatment. Weems therefore bears the
burden of rebutting the presumption that his claim is a
health care liability claim. He has not done so.
Health Care ...