                             NUMBER 13-10-00392-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

TOXICOLOGY ASSOCIATES, INC.,                                                  Appellant,

                                            v.

SYLVIA AGUIRRE, INDIVIDUALLY AND AS NEXT
FRIEND OF STACY AGUIRRE AND DYLAN AGUIRRE,                                   Appellee.


                    On appeal from the 117th District Court
                          of Nueces County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Perkes
             Memorandum Opinion by Justice Rodriguez
       This is an accelerated, interlocutory appeal from the trial court's order denying

appellant Toxicology Associates, Inc.'s motion to dismiss the alleged health-care-liability

claim of appellee Sylvia Aguirre, individually and as next friend of Stacy Aguirre and Dylan

Aguirre, because she failed to file a timely expert report as required by the Texas Medical
Liability Act (TMLA). See TEX. CIV. PRAC. & REM. CODE. ANN. § 74.351(a) (Vernon Supp.

2009) (providing that a plaintiff asserting a "health care liability claim" must serve a

medical expert report upon each party's attorney no later than the 120th day after the date

the original petition was filed). Sylvia responds that she is not required to provide an

expert report because her claim is not a health care liability claim, but instead is based on

Toxicology Associates' breach of chapter 164 of the Texas Health and Safety Code and is

actionable under the Texas Deceptive Trade Practices Act (DTPA).1 See TEX. HEALTH &

SAFETY CODE ANN. §§ 164.010(1), 164.013 (Vernon 2010). By a single issue, Toxicology

Associates contends that Sylvia's health care liability claim must be dismissed because

she failed to file a 120-day expert report. See TEX. CIV. PRAC. & REM. CODE. ANN. §

74.351(a). We reverse the trial court's order, render judgment dismissing Sylvia's claim

against Toxicology Associates, and remand to the trial court for determination of

reasonable attorneys' fees and court costs incurred by Toxicology Associates.

                                            I. BACKGROUND2

        Toxicology Associates obtained permits, pursuant to chapter 466 of the Texas

Health and Safety Code, to operate its facilities as narcotic drug treatment programs.


        1
           Throughout her earlier pleadings, Sylvia referred to her claim as a Texas Deceptive Trade
Practices Act (DTPA) claim. During the motion to dismiss proceedings and now on appeal, Sylvia
describes her claim as a violation of chapter 164 of the Texas Health and Safety Code, which uses the
DTPA as a vehicle for its enforcement. See TEX. HEALTH & SAFETY CODE ANN. § 164.010(1) (explaining
that a person violates chapter 164 if he expressly advertises the services of a treatment facility through the
use of promises or guarantees that cannot be substantiated or that are unsubstantiated claims), § 164.013
(setting out that a person may bring suit under chapter 17 of the Texas Business and Commerce Code for a
violation of chapter 164 and a public or private right or remedy prescribed by subchapter E (Deceptive
Trade Practices and Consumer Protection) of chapter 17 may be used to enforce chapter 64) (Vernon
2010).
        2
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                      2
See TEX. HEALTH & SAFETY CODE ANN. §§ 466.021-.024 (Vernon 2010); see also TEX. LOC.

GOV'T CODE ANN. § 245.001 (Vernon 2005) (defining "permit" broadly as "a license,

certificate, approval, registration, consent, permit, contract … or other form of

authorization required by law, rule, regulation, or ordinance that a person must obtain to

perform an action or initiate, continue, or complete a project for which the permit is

sought"). From at least March 3, 2007 to May 27, 2008,3 John Aguirre, Sylvia's husband

and Stacy and Dylan's father, received Methadone treatment at certain Toxicology

Associates' locations, one in Corpus Christi, Texas, and another in Houston, Texas, to be

weaned off of prescription medications. According to the medical examiner's report,

John's cause of death on June 30, 2008, was opiate toxicity.

        On June 2, 2009, Sylvia notified Toxicology Associates that she was asserting a

claim, which, at the time, she described as a DTPA claim. See TEX. BUS. & COM. CODE

ANN. § 17.505 (Vernon 2002).            That same day, Sylvia filed suit against Toxicology

Associates claiming advertising or marketing violations, described as breach of

warranties, and alleging that representations made in its literature wrongly induced John

to use Toxicology Associates' services. Toxicology Associates subsequently filed an

amended answer describing the lawsuit as one "of alleged medical negligence which the

Plaintiffs are attempting to recast as a Deceptive Trade Practices Act case."                         On

December 15, 2009, Sylvia filed a first amended petition emphasizing the breach of

warranty and DTPA language and removing the word "negligence" from the body of her

petition.


        3
           Sylvia stated in her affidavit that John received doses of Methadone from Toxicology Associates
at its Corpus Christi, Texas location in 2006.

                                                    3
       On December 28, 2009, Toxicology Associates filed a motion to dismiss arguing

that Sylvia's claim should be dismissed because no expert report had been filed. The

trial court heard the motion on January 24, 2010, and between January 21, 2010 and

June 24, 2010, a volley of responses and replies were filed, as allowed by the trial court.

On June 24, 2010, the trial court denied Toxicology Associates' motion to dismiss. This

accelerated, interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. §

51.014(a)(9) (Vernon 2008) (permitting appeal of an interlocutory order denying all or part

of a motion to dismiss for failure to file an expert report in a health care liability claim); TEX.

R. APP. P. 28.1(a) (stating that appeals from interlocutory orders are accelerated).

                                   II. STANDARD OF REVIEW

       The TMLA requires the dismissal of a suit asserting health care liability claims

against a health care provider if the plaintiff does not timely file an expert report pursuant

to section 74.351(b) of the Texas Civil Practice and Remedies Code. Yamada v. Friend,

No. 08-0262, 2010 Tex. LEXIS 1012, at *8 (Tex. Dec. 17, 2010) (citing TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351). A party may appeal an order that denies all or part of the

relief sought by a 74.351(b) motion.          See TEX. CIV. PRAC. & REM. CODE ANN. §§

51.014(a)(9); 74.351(b).

       We ordinarily review a trial court's denial of a motion to dismiss for failure to comply

with the expert report requirement for abuse of discretion. See Jernigan v. Langley, 195

S.W.3d 91, 93 (Tex. 2006) (per curiam); Am. Transitional Care Ctrs. v. Palacios, 46

S.W.3d 873, 877 (Tex. 2001). However, "whether a claim is a health care liability claim

pursuant to section 74.351 is a question of law and is reviewed de novo." Christus

Spohn Health Sys. Corp. v. Sanchez, 299 S.W.3d 868, 873 (Tex. App.–Corpus Christi

                                                4
2009, pet. denied) (citing Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770, 773 (Tex.

App.–Corpus Christi 2006, pet. denied)).

                                      III. DISCUSSION

       Toxicology Associates contends generally that dismissal is mandated because

Sylvia asserted a health care liability claim and failed to file a 120-day expert report.

More specifically, Toxicology Associates argues that Sylvia's claims are health care

liability claims because (1) Toxicology Associates is a health care provider, and (2) the

nature of her claim concerns the care and treatment rendered to John for narcotic

dependency.

                                A. HEALTH CARE PROVIDER

       Toxicology Associates first asserts that this claim has been brought against it as a

health care provider. A "health care liability claim" is a cause of action against a health

care provider for "treatment, lack of treatment, or other claimed departure from accepted

standards of medical care or health care or safety which proximately results in injury to or

death of the patient, whether the patient's claim or cause of action sounds in tort or

contract."   TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (Vernon 2005). The

TMLA provides that a health care provider is "any person, … corporation, facility or

institution duly licensed, certified, registered or chartered by the State of Texas to provide

health care.…" Id. § 74.001(a)(12)(A) (Vernon 2005). "Health care" is defined as "any

act or treatment performed or furnished, or which should have been performed or

furnished, by any health care provider for, to, or on behalf of a patient during the patient's

medical care, treatment, or confinement." Id. § 74.001(a)(10) (Vernon 2005).



                                              5
       In this case, each Toxicology Associates facility obtained a permit to treat narcotic

addiction. See TEX. HEALTH & SAFETY CODE ANN. § 466.024. Under section 466, a

"facility" is defined, in relevant part, as "an outpatient clinic" and "any other location in

which a structured narcotic dependency program is conducted."             Id. § 466.002(6)

(Vernon 2010). In addition, "[t]reatment of narcotic addiction by permitted treatment

programs is recognized as a specialty chemical dependency treatment area using the

medical model." Id. § 466.001(b) (Vernon 2010).

       Toxicology Associates asserts that it is a health care provider—treating narcotic

addiction through the use of "the medical model." See id. It argues that the permit

obtained by each facility evidences the fact that Toxicology Associates is engaged in the

treatment of patients and that it provides health care to its patients, one of whom was

John Aguirre. It also asserts that it is a health care provider as evidenced by the records

it produced in this case, records which show John was seen by physicians, counselors,

and nurses at Toxicology Associates' clinics and which it identifies as John's medical

records. And, the Houston Court of Appeals has held that an inpatient drug and alcohol

treatment center licensed under chapter 464 of the health and safety code is a health care

provider for the purposes of chapter 74. See Christus Health v. Beal, 240 S.W.3d 282,

287 (Tex. App.–Houston [1st Dist.] 2007, no pet.).

       We find Toxicology Associates' arguments and the guidance provided by Christus

Health persuasive.    However, we need not reach its health-care-provider argument

because Sylvia does not dispute Toxicology Associates' status as a health care provider

for the purposes of asserting a health care liability claim in this case and did not do so in

the trial court. Rather, on appeal, Sylvia responds only that Toxicology Associates is a

                                             6
chemical dependency facility as prescribed by section 462.001 of the health and safety

code and, as such, is subject to section 164.010's marketing provisions and any violations

thereof. See TEX. HEALTH & SAFETY CODE ANN. § 164.010; id. § 462.001 (Vernon 2010).

Sylvia does not challenge Toxicology Associates' position that John was provided

treatment by health care providers at its clinics or that the facility is a health care provider.

Therefore, on this record, we treat Toxicology Associates, a facility permitted under

chapter 466, as a health care provider. See id. §§ 466.021-.024; TEX. CIV. PRAC. & REM.

CODE ANN. § 74.001(a)(12)(A).

                                  B. NATURE OF THE CLAIM

         Toxicology Associates also argues that Sylvia's claim is a health care liability claim

because the nature of her claim concerns the care and treatment rendered to John. We

agree.

         A claim is a health care liability claim governed by chapter 74 if it alleges a breach

of accepted standards of health care or if the claim is inseparable from the rendition of

health care. Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 664 (Tex. 2010)

(plurality op.); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005);

see, e.g., Earle v. Ratliff, 998 S.W.2d 882, 885, 893 (Tex. 1999) (setting out that a

surgeon's statements that a patient needed surgery, would get "95% better" and able to

return to work, and that devices being implanted were safe and permanent could not be

brought under the DTPA, but were medical negligence claims); MacGregor Med. Ass'n v.

Campbell, 985 S.W.2d 38, 40-41 (Tex. 1998) (per curiam) (holding that a provider's

failure to advise a patient of possible complications in his condition and a

misrepresentation that the patient "was medically fine" indicated a cause of action for

                                               7
medical malpractice); Gormley v. Stover, 907 S.W.2d 448, 449-50 (Tex. 1995) (per

curiam) (concluding that representations that a surgeon "could perform the surgery with

no problems, that a skin graft would work as well as a bone graft, that [the patient's

dentures] would fit well and . . . she would have no problems wearing [them]" all had to do

with whether surgeon's selection of surgical procedure and performance of it met

standard of care for dentists in such circumstances); Walden v. Jeffery, 907 S.W.2d 446,

448 (Tex. 1995) (per curiam) (deciding that the marketing of dentures was inseparable

from the profession of dentistry and the medical services provided and, therefore, was "an

inseparable part of [the defendant's] rendition of medical services"; thus, the plaintiff's

claim was a health care liability claim subject to the requirements of chapter 74).

       "Whether a claim is a health care liability claim depends on the underlying nature

of the claim being made." Yamada, 2010 Tex. LEXIS 1012, at *9 (citing Garland Cmty.

Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004)). In determining a claim's underlying

nature, we consider the duties allegedly breached as well as the alleged wrongful

conduct, see Rubio, 185 S.W.3d at 851, looking to the factual allegations to determine the

gravamen of the complaint and not being bound by the form of the pleading or how

complaints are labeled. See id; Sci. Image Ctr. Mgmt. v. Brewer, 282 S.W.3d 233,

237-38 (Tex. App.–Dallas 2009, pet. denied) ("The Texas Supreme Court repeatedly has

held that plaintiffs cannot, through artful pleading, avoid the strictures … [of] chapter 74

by recasting health care liability claims as other causes of action[,]" however, while not

being "bound by Brewer's pleadings, a review of her allegations [in her statement of facts

on appeal] is helpful in evaluating whether her allegations … are health care liability

claims recast as a DTPA action.") (citations omitted); see also Yamada, 2010 Tex. LEXIS

                                             8
1012, at *2, 13 (concluding that claims against a health care provider based on one set of

underlying facts cannot be brought as both health care liability claims subject to the TMLA

and ordinary negligence claims not subject to the TMLA because the TMLA and its

procedures and limitations would be effectively negated); but see Sorokolit v. Rhodes,

889 S.W.2d 239, 242-43 (Tex. 1994) (concluding that a physician's explicit promise that

his patient's appearance following cosmetic surgery would be identical to a specific

magazine photograph of a nude model did not involve negligence and was, therefore,

actionable under the DTPA).

       In her petition, Sylvia claimed that the following statements found in Toxicology

Associates' literature induced John to use the services of the facility: (1) "Methadone

taken under a doctor's care causes no harm to any of your body organs and does not

change your ability to think clearly"; (2) "Properly prescribed Methadone is not intoxicating

and does not create euphoria, sedation[,] or an analgesic effect"; and (3) "Methadone is

medically safe."     She further asserted that these alleged warranties were breached

because "none of the results guaranteed were delivered. The results guaranteed in

[Toxicology Associates'] literature did not occur."           In addition, Sylvia asserted that

Toxicology Associates "wrongfully disseminat[ed] information concerning the toxicity of

Methadone," and "wrongfully advis[ed] the Deceased concerning the use of

Methadone."4 Sylvia asserted that these allegedly unlawful acts and practices were a

producing cause of damages and, without identifying specific damages, claimed that the


       4
          In her original petition, Sylvia claimed that Toxicology Associates was negligent when it
"wrongfully disseminat[ed] information concerning the toxicity of Methadone," and "wrongfully advis[ed
John] concerning the use of Methadone." In her amended petition, she asserted that these acts violated
the DTPA.

                                                  9
suit was to recover the amount of money which would fairly and reasonably compensate

her for those damages.

        In her pleadings, Sylvia also asserted, however, that John's cause of death was

"Opiate (Methadone) Toxicity"5 and claimed the following:

        On multiple occasions, as shown in [Toxicology Associates'] internal
        records, [John] stated to [Toxicology Associates] that he was not living a
        healthier and better life as was guaranteed. His ability to think clearly was
        also impared [sic] and he did feel "high" or "drugged." At one point
        [Toxicology Associates] was forced to call 911 to transport John … to the
        hospital due to his "drugged" state.

According to her petition, John asked to be "'weaned off' of [M]ethadone in order to

function in his day to day life," which "had gotten worse, not better since being on

[Toxicology Associates'] [M]ethadone." Sylvia claimed, in her petition, that Toxicology

Associates again "warranted to John … 'Methadone taken under a doctor's care causes

no harm to any of your body organs and does not change your ability to think clearly.'"

Sylvia alleged that Toxicology Associates "never decreased his dosage in the face of

failed guarantees, but rather, continued with the same 190 milligram dosage, daily until"

his death. She also asserted that Mr. Aguirre's "death resulted form [sic] the Defendants

willful act or omission, which intitles [sic] [him] to exemplary damages."

        In addition to the above-mentioned pleadings, Sylvia's attorney sent a notice letter

to Toxicology Associates. The letter appears in the record as an exhibit to one of

Sylvia's responses to Toxicology Associates' motion to dismiss.                      While referencing

statements made in the literature and their inducement effect, the following portions of the

letter referring to Toxicology Associates' negligence are also helpful in our evaluation:

        5
           Sylvia's original petition set out that "[t]he cause of death was [o]piate [t]oxicity, completely
attributable to the build up [sic] of Methadone in [John's] system."

                                                    10
               Please be advised that we represent the widow and children of John
        Aguirre. Mr. Aguirre was a patient at your clinic. He was in treatment at
        your establishment for two years.…

                After consulting Mr. Aguirre's medical records as provided by your
        clinic, he exhibited all the intoxicating effects previously mentioned.… [U]p
        until his time of death he was administered 190 milligrams of Methadone
        daily, with complete disregard to his symptoms [and his request to be
        weaned off of Methadone].

              Mr. Aguirre died as a result of the "care" provided by your clinic. His
        cause of death was Opiate Toxicity. The only Opiate in his system at the
        time was Methadone as provided by your clinic, under your care.… As you
        can imagine, the damages caused by your actions are immense. Please
        present this letter to your insurance carrier. If you do not have insurance
        please contact our offices that we may address this matter, and make whole
        Mr. Aguirre's widow and children. This letter is sent in adherence to the
        Texas Deceptive Trade Practices Act.

        Furthermore, it was not until Sylvia filed her response to Toxicology Associates'

motion to dismiss that she asserted the claim that she now argues on appeal: that

Toxicology Associates violated chapter 164 through its misleading marketing practices.

See TEX. HEALTH & SAFETY CODE ANN. § 164.010(1). On appeal, Sylvia argues that her

claim against Toxicology Associates is for its violation of the Treatment Facilities

Marketing and Admission Practices Act found in chapter 164 of the health and safety

code, a claim that can be brought through the DTPA.6 See id. §§ 164.010(1), 164.013.

Sylvia specifically refers us to section 164.010 which provides, in relevant part, the

following: "It is a violation of this chapter, in connection with the marketing of mental

health services, for a person to: (1) advertise, expressly or impliedly, the services of a

treatment facility through the use of (A) promises of cure or guarantees of treatment

results that cannot be substantiated; or (B) any unsubstantiated claims .…"                       Id. §

        6
         Also, in response to Toxicology Associates' motion to dismiss, Sylvia asserted that Toxicology
Associates failed to disclose material facts concerning John's purchase of a product and that Toxicology
Associates' "brochure does not state that Methadone itself is addictive."
                                                  11
164.010(1). This language, however, is absent from her petition. Rather, the factual

allegations in Sylvia's petition involve "undelivered" DTPA warranties that allegedly

induced John to use services provided by Toxicology Associates and the wrongful

dissemination of information and wrongful advice given by Toxicology Associates

concerning the toxicity of Methadone.

       Nonetheless, Sylvia now argues that the alleged breach was not in the standard of

care provided by Toxicology Associates, but in its marketing practices. See id. Sylvia

contends that the duties imposed in chapter 164 are not related to the care provided to

each patient, but to the marketing and advertising used to induce consumers to utilize its

services. We agree that, given certain factual allegations, a party's claim that a mental

health facility and a chemical dependency treatment facility violated section 164 of the

health and safety code could survive. See id. § 164.002 (Vernon 2010) ("The purpose of

this chapter is to safeguard the public against fraud, deceit, and misleading marketing

practices and to foster and encourage competition and fair dealing by mental health

facilities and chemical dependency treatment facilities by prohibiting or restricting

practices by which the public has been injured in connection with the marketing and

advertising of mental health services and the admission of patients."). However, we do

not agree that the facts and claims alleged in this case support such a cause of action.

       The basis for Sylvia's claim lies in her allegations of negligence by Toxicology

Associates, negligence in the care and advice provided to John as part of his treatment at

its clinics in Houston and Corpus Christi. In her notice letter, Sylvia acknowledged that

John died as a result of the "care" provided at Toxicology Associates' clinic. Sylvia sets

out in her petition, as well as in other documents, that the personnel at the facilities failed

                                              12
to listen to John when he complained about not living a healthier and better life and about

feeling "high" or "drugged" while on Methadone and asked to be weaned off of

Methadone. Sylvia alleges that Toxicology Associates "never decreased his dosage in

the face of failed guarantees, but rather, continued with the same 190 milligram dosage,

daily until" his death. And it is undisputed that the cause of death was opiate toxicity.

These allegations and undisputed facts support a claim that John's death arose out of the

allegedly wrongful manner in which Toxicology Associates conducted John's Methadone

treatment.

       Moreover, although the complained-of statements in the literature may have

induced John to participate in Toxicology Associates' Methadone treatment program,

Sylvia's allegations do not concern damages caused by Toxicology Associates' marketing

practices that allegedly made unsubstantiated claims through its literature. Sylvia cites

no damages related to her marketing-violation claim, such as the cost of John's

treatment. Rather, her allegations concern damages allegedly caused by Toxicology

Associates' negligent treatment of John's prescription drug addiction. This is supported

by her comment in the notice letter that the damages caused by Toxicology Associates'

actions are "immense."

       Sylvia's claim derives from Toxicology Associates' alleged negligent actions that

were inextricably related to its professional duty of treating John's drug addiction with

Methadone, a claim that is inseparable from the rendition of health care. See Marks, 319

S.W.3d at 664. The claim also derives from Toxicology Associates' alleged breach of

accepted standards of health care. See id. Regardless of what Sylvia would like this

case to be, it is a claim that the treatment facility departed from an accepted health care

                                            13
standard. Sylvia's claim is dependent on a finding of negligence against Toxicology

Associates—a determination of whether Toxicology Associates, through its counselors,

nurses, or physicians, failed to meet the required standard of health care. Therefore, in

our de novo review, we conclude that the essence of Sylvia's claims is that Toxicology

Associates committed medical negligence, and Sylvia may not recast her claims as

violations of chapter 164 in an attempt to avoid the requirements of chapter 74.

        Because it is undisputed that Toxicology Associates is a health care provider and

we have concluded that the nature of Sylvia's claim concerns the care and treatment

Toxicology Associates rendered to John, her failure to file a 120-day expert report as

required by the TMLA mandates dismissal. See TEX. CIV. PRAC. & REM. CODE ANN. §

74.351. We sustain Toxicology Associates' sole issue.7

                                           IV. CONCLUSION

        Accordingly, we reverse the trial court's order denying Toxicology Associates'

motion to dismiss, render judgment dismissing Sylvia's claims against Toxicology

Associates with prejudice, and remand to the trial court for determination of reasonable

attorneys' fees and costs of court incurred by Toxicology Associates.



                                                            NELDA V. RODRIGUEZ
                                                            Justice

Delivered and filed the 31st
day of January, 2011.

        7
          By a second sub-issue, Toxicology Associates argues that Sylvia's claims cannot be asserted
under the DTPA because (1) the TMLA prohibits DTPA claims against health care providers and (2) the
DTPA itself excludes a lawsuit of this nature—a lawsuit involving personal injury, survival, and wrongful
death claims. Having concluded that Sylvia's claims are health-care-liability claims and subject to chapter
74, we need not address Toxicology Associates' remaining sub-issue as it is not dispositive of this appeal.
See TEX. R. APP. P. 47.1.
                                                   14
