     Case: 15-20278      Document: 00513383239         Page: 1    Date Filed: 02/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-20278                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
HOZAM ALAJMI,                                                            February 17, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

THE METHODIST HOSPITAL; FAROUQ AQRAWI,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:14-CV-753


Before ELROD, GRAVES, and COSTA, Circuit Judges.
PER CURIAM:*
       Hozam Alajmi is a Saudi citizen who lived in the United States
performing diplomatic duties. While he was assigned to Houston, he and his
family frequently received medical services from The Methodist Hospital. To
pay for the medical expenses, Alajmi provided a financial guarantee from the
Armed Forces Office of the Royal Embassy of Saudi Arabia in Washington,
D.C., and instructed Methodist that all billing matters be sent to that office


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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alone.     On one occasion, rather than contacting the Armed Forces Office,
Methodist sent a letter to the Consul General of Saudi Arabia in Houston. The
letter disclosed that Alajmi was a patient and that he owed $31,112.87 in
outstanding debt for medical services. Alajmi filed suit, asserting the following
tort claims based on this allegedly false disclosure: invasion of privacy,
negligence per se, intentional infliction of emotional distress, libel, and
conspiracy. He further alleged that the collection letter violated § 241.152 of
the Texas Health and Safety Code, which prohibits a hospital from disclosing
health information without the patient’s consent.
         The district court dismissed Alajmi’s claims for failure to timely comply
with Texas Civil Practices & Remedies Code § 74.351(a). That statute requires
that for health care liability claims, a claimant serve an expert report within
120 days after the defendant files an answer. Tex. Civ. Prac. & Rem. Code
§ 74.351(r)(6). The expert report must include the applicable standards of care,
how the healthcare provider failed to meet those standards, and a causal
relationship between the failure and the harm claimed. Id. If a plaintiff fails
to timely comply with the expert report requirement, the court is required to
dismiss the claim and award attorney’s fees to the defendant.                   Id.
§ 74.351(b)(1)–(2).    Although Alajmi’s case did not allege classic medical
malpractice, the district court relied on Texas authority indicating that the
statute also applies to claims involving wrongful disclosure of medical
information. Under the mandatory provisions in section 74.351(b), the district
court awarded attorney’s fees to Methodist upon dismissal of Alajmi’s claims.
         Alajmi first contends that the Erie doctrine prevents section 74.351 from
applying in federal courts because it directly collides with the Federal Rules of
Civil Procedure. There has been disagreement about this issue among district




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courts, with the vast majority holding that the Texas statute does not apply in
federal court. 1
       This case does not, however, present us with an opportunity to decide
the Erie question. 2 In the district court, Alajmi did not argue that the Texas
statute should not apply in federal court until he filed a Rule 60(b)(6) motion
for reconsideration. Rule 60(b) motions for reconsideration cannot be used to
argue a new legal theory. See Simon v. United States, 891 F.2d 1154, 1159 (5th
Cir.1990) (holding new legal theory cannot be raised for the first time in post-
judgment Rule 59(e) motion to alter or amend judgment); see Williams v.
Toyota Motor Eng’g & Mfg. N. Am., Inc., 470 F. App’x 309, 313 (5th Cir. 2012)
(applying new legal theory rule in 60(b) context). The district court therefore



       1 Compare Bunch v. Mollabashy, No. 3:13-CV-1075-G BH, 2015 WL 1378698, at *8
(N.D. Tex. Mar. 26, 2015); Milligan v. Nueces Cty., Tex., No. CIV. A. C-08-118, 2010 WL
2352060, at *3 (S.D. Tex. June 9, 2010); Garcia v. LCS Corr. Servs., Inc., No. CIV. A. C-09-
334, 2010 WL 2163284, at *5 (S.D. Tex. May 24, 2010); Basco v. Spiegel, No. CIV. A. 08-0468,
2009 WL 3055319, at *1–2 (W.D. La. Sept. 21, 2009); Guzman v. Mem’l Hermann Hosp. Sys.,
No. CIV. A. H-07-3973, 2008 WL 5273713, at *14–15 (S.D. Tex. Dec. 17, 2008); Mason v.
United States, 486 F. Supp. 2d 621, 625 (W.D. Tex. 2007); Toler v. Sunrise Senior Living
Servs., Inc., No. CIV. A. SA-06-CV-0887-XR, 2007 WL 869581, at *4 (W.D. Tex. Mar. 21,
2007); Hawkins v. Wadley Reg’l Med. Ctr., No. 5:05-CV-154, 2006 WL 5111117, at *1 (E.D.
Tex. May 18, 2006); Hall v. Trisun, No. CIV. A. SA-05-CA-0984 OG NN, 2006 WL 1788192,
at *3 (W.D. Tex. June 23, 2006) report and recommendation adopted, No. SA 05 CA 984 OG,
2006 WL 2329418 (W.D. Tex. Aug. 1, 2006); Beam v. Nexion Health Mgmt., Inc., No. 206 CV
231, 2006 WL 2844907, at *1–3 (E.D. Tex. Oct. 2, 2006); Garza v. Scott & White Mem’l Hosp.,
234 F.R.D. 617, 621–23 (W.D. Tex. 2005); Brown v. Brooks Cty. Det. Ctr., No. C.A. C-04-329,
2005 WL 1515466, at *2 (S.D. Tex. June 23, 2005); Redden v. Senior Living Properties, L.L.C.,
No. CIV. A. 104-CV-125–C, 2004 WL 1932861, at *3 (N.D. Tex. Aug. 27, 2004); McDaniel v.
United States, No. CIV. A. SA-04-CA-0314-, 2004 WL 2616305, at *6–8 (W.D. Tex. Nov. 16,
2004); Poindexter v. Bonsukan, 145 F. Supp. 2d 800, 803–10 (E.D. Tex. 2001) (holding that
predecessor to section 74.351 did not apply in federal cases), with Privett v. United States, No
5:13-CV-79, 2014 WL 174596, at *1–2 (E.D. Tex. Jan.8, 2014) (applying section 74.351
without conducting an Erie analysis); Prentice v. United States, 980 F. Supp. 2d 748, 752
(N.D. Tex. 2013); Cruz v. Chang, 400 F. Supp. 2d 906, 911–15 (W.D. Tex. 2005) (holding that
predecessor to section 74.351 did apply in federal cases).

       2The issue of whether section 74.351 should apply in federal courts is pending in
another case before this court, Passmore v. Baylor Health Care System, et al., Case No. 15-
10358.
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                                   No. 15-20278
did not abuse its discretion in finding that Alajmi could not raise his Erie
challenge to the application of section 74.351 for the first time at the Rule 60
stage.
         That leaves Alajmi’s argument that section 74.351 should not apply
because his claims are not “health care liability claims” under the statute. See
Tex. W. Oaks Hosp. v. Williams, 371 S.W.3d 171, 179–80 (Tex. 2012) (A health
care liability claim contains three elements: “(1) a physician or health care
provider must be a defendant; (2) the claim or claims at issue must concern
treatment, lack of treatment, or a departure from accepted standards of
medical care, or health care, or safety or professional or administrative services
directly related to health care; and (3) the defendant’s act or omission
complained of must proximately cause the injury to the claimant.”). Health
care liability claims under section 74.351 operate like the Three Musketeers—
all for one and one for all. See PM Mgmt.-Trinity NC, LLC v. Kumets, 404
S.W.3d 550, 552 (Tex. 2013) (holding that when a plaintiff asserts a claim
based on the same underlying facts as a separate health care liability claim
that the plaintiff also asserts, all claims are treated as health care liability
claims). Methodist thus needs to show only that one of the factually related
claims Alajmi asserts falls within the statute.
         On appeal, Alajmi argues that the case is simply about debt collection—
his complaint being that Methodist sent the bill to the consulate which resulted
in the consulate believing he was delinquent on a debt—and does not turn on
the disclosure of medical information. But that is not how the case was pled
or argued in the district court. Separate from its allegations that the letter to
the consulate “contained false statements because Mr. Alajmi did not owe
money to the Hospital,” the complaint alleges that Methodist “conspired . . . to
wrongfully disclose Mr. Alajmi’s health information, knowing that the
disclosure of Mr. Alajmi’s health information would significantly damage Mr.
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Alajmi’s reputation within the consulate and in Riyadh and damage his
promotion opportunity.”     The complaint also asserts a cause of action for
wrongful disclosure of medical information under the Texas Health and Safety
Code and a negligence per se claim premised on the allegation that
“Defendant’s unauthorized disclosure of health information was in violation of
the Health Insurance Portability and Accountability Act (“HIPAA”), and the
Texas Medical Records Privacy Act (“TMRPA”).” Given these allegations, it is
not surprising that Alajmi’s counsel argued to the district court that the case
involved allegations about the wrongful disclosure of medical information.
      Taking the case in the posture it was litigated in the district court, as we
must, the district court did not err in reading Texas law to treat claims alleging
wrongful disclosure of medical information as “health care liability claims”
within the meaning of section 74.351. See Monson v. Allen Family First Clinic,
P.A., 390 S.W.3d 598, 602 (Tex. App.—Dallas 2012, no pet.) (“A claim for
wrongful disclosure of health care information is a health care liability claim
subject to the expert-report requirement.”); Sloan v. Farmer, 217 S.W.3d 763,
768 (Tex. App.—Dallas 2007, pet. denied) (“Maintaining the confidentiality of
patient records is part of the core function of providing health care services.”);
see also Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 754, 757–58 (Tex. 2014)
(“[T]he broad language of the Medical Liability Act evinces legislative intent
for the statute to have expansive application.”).
      We thus AFFIRM the district court’s dismissal of this case under the
expert report requirement of section 74.351 as well as the award of attorney’s
fees that the Texas statute compels.




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