Affirmed; Opinion Filed February 12, 2018.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00181-CV

  BAYLOR UNIVERSITY MEDICAL CENTER, INC., BAYLOR SCOTT & WHITE
 HEALTH; BSW HEALTH SERVICES AND WILLIAM P. SHUTZE, M.D., Appellants
                               V.
             BAHRAUM DANIEL DANESHFAR, M.D., Appellee

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

     MEMORANDUM OPINION ON MOTION FOR REHEARING
                          Before Justices Francis, Myers, and Whitehill
                                   Opinion by Justice Myers
       We deny the motion for rehearing. We withdraw the memorandum opinion and vacate the

judgment of November 7, 2017. The following is now the opinion of this Court.

       This case concerns whether a medical resident who is terminated from a hospital’s

fellowship residency program and brings suit for various causes of action, including breach of

contract and wrongful termination, is subject to the expert-report requirement of the Texas Medical

Liability Act, section 74.351 of the Civil Practice and Remedies Code. See TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351 (West 2017). 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.

                                                          BACKGROUND1

          In June 2013, Daneshfar entered into a fellowship residency program at Baylor to study

vascular surgery. The hospital placed Daneshfar under the tutelage of Shutze, the director of the

residency 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 also refused Daneshfar permission

to take vacation time near the date of the board exams, and Shutze required Daneshfar to work

more shifts and on-call periods than other residents during the period near the exams.

          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.

          In January 2015, Daneshfar requested a meeting with Dr. William Sutker, Baylor’s

Designated Institutional Officer for the Graduate Medical Education Office, to air his grievances

with the residency 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 a sixty-day formal

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.


   1
       The factual statements are drawn from Daneshfar’s first amended petition, which was his live pleading at the time of the motion to dismiss.

                                                                      –2–
       Daneshfar retained an attorney who sent a letter to Baylor outlining Daneshfar’s conflicts

with Shutze and his problems with the residency program. Daneshfar also sent Baylor a complaint

that he stated he would submit to the Accreditation Council for Graduate Medical Education,

which oversees and certifies post-graduate medical education programs, including Baylor’s

residency programs. The next day, Baylor terminated Daneshfar from the residency program.

Daneshfar followed Baylor’s internal review process, but he was not reinstated. Daneshfar was

told the internal review process was limited to the question of his competency and that he would

not be able “to discuss duty hours, Dr. Shutze, or other issues unrelated to the question of your

competency.”

       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 they were health care liability claims and that Daneshfar did not serve

them with an expert report as required by section 74.351 of the Act. 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 their motion to dismiss.

See CIV. PRAC. § 51.014(a)(9).

                                   STANDARD OF REVIEW

       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 the 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


                                                –3–
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).

       We review a trial court’s decision on a motion to dismiss under section 74.351 for an abuse

of discretion. Whether a cause of action is a health care liability claim is a question of law. Dual

D Healthcare Operations, Inc. v. Kenyon, 291 S.W.3d 486, 488 (Tex. App.—Dallas 2009, no

pet.); see Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010) (explaining

principles of statutory construction).

                   THE EXPERT-REPORT REQUIREMENT OF § 74.351

       Section 74.351 of the Act 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 costs and attorney’s fees. Id. § 74.351(b). In this case,

Daneshfar did not serve Baylor or Shutze with expert reports after filing his claims against them.

       Under the Act, a “claimant” is “a person . . . seeking or who has sought recovery of damages

in a health care liability claim.” Daneshfar is a person seeking recovery of damages. Whether he




                                                –4–
is a claimant, and therefore subject to the expert-report requirement of section 74.351(a), depends

on whether his claims are “health care liability claims.”

                            HEALTH CARE LIABILITY CLAIM

       Appellants assert Daneshfar’s claims are health care liability claims as defined by section

74.001. “Health care liability claim” is defined as:

       a cause of action against a health care provider or physician for treatment, lack of
       treatment, or other claimed departure from accepted standards of medical care, or
       health care, or safety or professional or administrative services directly related to
       health care, which proximately results in injury to or death of a claimant, whether
       the claimant’s claim or cause of action sounds in tort or contract.

CIV. PRAC. § 74.001(a)(13) (West 2017).

       To determine whether a cause of action is a health care liability claim, we examine the

underlying nature of the claim. Marks, 319 S.W.3d at 664 (citing Garland Cmty. Hosp. v.

Rose, 156 S.W.3d 541, 543 (Tex. 2004)); Dual D Healthcare Operations, Inc., 291 S.W.3d at 489.

We focus on the essence of the claim and consider the alleged wrongful conduct and the duties

allegedly breached. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex.

2005). When the essence of the suit is a health care liability claim, a party cannot avoid the

requirements of the statute through artful pleading. Garland Cmty. Hosp., 156 S.W.3d at

543; see Yamada v. Friend, 335 S.W.3d 192, 194–95, 196–97, 197–98 (Tex. 2010) (unchallenged

holding that claims encompassing physician’s safety advice to water park were health care liability

claims required dismissal of all claims arising from same facts on theory of improper

claim-splitting).

                            Professional or Administrative Services

       Appellants first contend that Daneshfar’s causes of action are health care liability claims

because they are “for . . . claimed departure from accepted standards of professional or

administrative services directly related to health care.” CIV. PRAC. § 74.001(a)(13).


                                                –5–
        The Act defines “Professional or administrative services” as meaning “those duties or

services that a physician or health care provider is required to provide as a condition of maintaining

the physician’s or health care provider’s license, accreditation status, or certification to participate

in state or federal health care programs.” Id. § 74.001(a)(24). To be a health care liability claim,

the cause of action for a claimed departure from accepted standards of professional or

administrative services must be “directly related to health care.” See id. § 74.001(a)(13) (definition

of “health care liability claim”); Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 185 (Tex.

2012). The Act defines “health care” as “any act or treatment performed or furnished, or that

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.” CIV. PRAC. § 74.001(a)(10).

“Medical care” is defined as “any act defined as practicing medicine under Section 151.002,

Occupations Code, performed or furnished, or which should have been performed, by [a physician]

for, to, or on behalf of a patient during the patient’s care, treatment, or confinement.” Id. §

74.001(a)(19). Section 151.002 of the Occupations Code defines “practicing medicine” as “the

diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical

deformity or injury by any system or method, or the attempt to effect cures of those

conditions . . . .” TEX. OCC. CODE ANN. § 151.002(13) (West Supp. 2017). “Treatment” and

“confinement” are not defined by the Act; therefore, they “shall have such meaning as is consistent

with the common law.” CIV. PRAC. § 74.001(b).

        Thus, for Daneshfar’s causes of action to be health care liability claims for professional or

administrative services, they must be against a physician or health care provider for a departure

from duties or services required for appellants to maintain their licenses, accreditation, or

certifications and be directly related to acts or treatments performed or that should have been

performed by a health care provider for, to, or on behalf of a patient during the patient’s medical

                                                  –6–
care, treatment, or confinement. We examine Daneshfar’s claims and determine whether they fit

this description. See Marks, 319 S.W.3d at 664; Diversicare Gen. Partner, 185 S.W.3d at 851.

       Many of Daneshfar’s claims allege violations of requirements of the Accreditation Council

for Graduate Medical Education (ACGME). The ACGME is the organization that accredits and

oversees medical residency programs. It imposes requirements on the programs to obtain and

retain accreditation. It obtains information about existing programs and grants them the status of

“Continued Accreditation” if the program substantially complies with the ACGME’s

requirements. If a program violates the ACGME’s requirements, the program may receive a

warning or be placed on probation. If the violations are not cured, then the ACGME may withdraw

its accreditation of the program. Baylor’s vascular-surgery residency program was ACGME

accredited before Daneshfar was a resident, and it has maintained its status of Continued

Accreditation.

       Before turning to Daneshfar’s allegations, we first address appellants’ argument that

because all of Daneshfar’s claims involve his training to be a vascular surgeon, they all involve

the practice of medicine. In support of this argument, appellants rely on section 74.401(b) of the

Act, which states, “For the purposes of this section, ‘practicing medicine’ or ‘medical practice’

includes, but is not limited to, training residents or students at an accredited school of

medicine . . . .” CIV. PRAC. § 74.401(b). However, as the first phrase makes clear, the definition

does not apply outside of section 74.401, which concerns the qualifications of expert witnesses in

suits against physicians. See id. § 74.401. By its own terms, the definition of “practicing

medicine” in section 74.401(b) does not apply to the definition of a health care liability claim in

section 74.001. Applying that definition outside section 74.401 would violate the clear intention

of the legislature. Instead, “medical care” and “practicing medicine” in the statutes applicable to

this case mean “the diagnosis, treatment, or offer to treat a mental or physical disease or disorder

                                                –7–
or a physical deformity or injury by any system or method, or the attempt to effect cures of those

conditions . . . .” OCC. § 151.002(13); see CIV. PRAC. § 74.001(a)(19) (incorporating the definition

of “practicing medicine” in the Occupations Code into the definition of “medical care”). The

training of a resident, such as Daneshfar, constitutes practicing medicine or medical care by the

training physician and health care provider only if their actions meet this definition.

        Daneshfar alleged Baylor failed to “use reasonable efforts to provide a suitable

environment for medical education experience.” To that end, Daneshfar alleged, he “was forced

to endure harassment, berating and belittling at the hands of Baylor’s Program Director, Shutze,

and Baylor’s internal administrative review process.” This obligation is a requirement for an

institution to maintain its accreditation with the ACGME. Although his allegation concerns

Baylor’s duties to maintain its ACGME accreditation, nothing in the record shows that Shutze’s

verbal abuse and other harassment was directly related to health care, i.e., any act or treatment for

the medical care, treatment, or confinement of a patient. Therefore, these facts do not raise a health

care liability claim.

        Daneshfar also alleged Baylor breached its promise that “[t]he evaluation of Resident

Physician will be made on a regular basis, according to ACGME guidelines.” Those guidelines

required that the residency program “provide each resident with documented semiannual

evaluation of performance with feedback.” Daneshfar alleged that Baylor, through Shutze’s

inaction, failed to comply with this requirement. Although this allegation concerns Baylor’s duties

to maintain its accreditation, the record does not show Shutze’s failure to provide the required

reviews directly related to any act or treatment for the medical care, treatment, or confinement of

a patient. Therefore, these facts do not raise a health care liability claim.

        Daneshfar also alleged Baylor and Shutze retaliated against him for making a report to and

seeking a meeting with Dr. William Sutker, Baylor’s Designated Institutional Official for the

                                                 –8–
Graduate Medical Education Office, for Daneshfar to air his grievances about Shutze and the

program. When the meeting occurred, Shutze was present, and Daneshfar was not allowed to talk

about his problems with Shutze and the program. Instead, he was told he was on a formal,

sixty-day probation. Daneshfar alleged this formal probation was retribution for his attempt to

complain to Sutker. Daneshfar also alleged Baylor retaliated against him by terminating him from

the residency program because he hired a lawyer who drafted a complaint to the ACGME about

Daneshfar’s conflicts with Shutze and his problems with the program. The ACGME requires that

a sponsoring institution (such as Baylor) and its residency programs, “provide a learning and

working environment in which residents/fellows have the opportunity to raise concerns and

provide feedback without intimidation or retaliation and in a confidential manner as appropriate.”

Daneshfar’s allegation concerns Baylor’s duties or services it was required to provide as a

condition of maintaining the accreditation of its residency program. However, nothing in the

record shows this violation was directly related to any act or treatment for the medical care,

treatment, or confinement of a patient. Therefore, these facts do not raise a health care liability

claim.

         Daneshfar also alleged Baylor’s internal review process was a sham because he was limited

in the appeals to discussing his competency and was prohibited from discussing his conflicts with

Shutze and his problems with the residency program. He also alleged the review process was a

sham because it “was tainted by the influence, directly and indirectly, of Shutze and others closely

aligned personally and/or professionally with him.” Daneshfar also alleged he was not allowed to

copy his personal file and that it “was subsequently altered and changed by Shutze and/or others.”

Assuming these facts, if true, constitute violations of ACGME requirements for accreditation of

Baylor’s residency program, the record does not show they directly relate to any act or treatment




                                                –9–
for the medical care, treatment, or confinement of a patient. Therefore, they do not raise a health

care liability claim.

        Daneshfar also alleged Baylor failed to monitor Shutze and the residency program to

prevent Shutze’s actions and Daneshfar’s injuries. However, the record does not show that the

lack of monitoring directly related to any act or treatment for the medical care, treatment, or

confinement of a patient.

        Daneshfar’s causes of action allege that the above facts demonstrate that Baylor breached

its contract with him and that his termination constituted wrongful discharge under the contract,

that Shutze should be liable for Baylor’s wrongful discharge of him and for tortiously interfering

with Daneshfar’s contract with Baylor; that Baylor was negligent in supervising Shutze, the

residency program, and the internal review process; that Baylor and Shutze owed him fiduciary

duties which they breached, encouraged each other to breach, and that they conspired to breach;

and that Baylor’s and Shutze’s actions constituted duress and intentional infliction of emotional

distress. The underlying nature or essence of Daneshfar’s claims is that of an employment or

education dispute, not claims for negligent medical or health care. Even though the causes of

action implicate Baylor’s professional or administrative services, the record does not show that

they directly relate to any patient’s medical care, treatment, or confinement. Therefore, they are

not health care liability claims.

                                              Safety

        Appellants also contend that Daneshfar’s causes of action constitute health care liability

claims because they allege a “departure from accepted standards of . . . safety.” CIV. PRAC. §

74.001(a)(13) (definition of “health care liability claim”). “Safety” is not defined by the Act.

However, the Texas Supreme Court has construed it to mean “the condition of being ‘untouched

by danger; not exposed to danger; secure from danger, harm or loss.’” Tex. W. Oaks Hosp. v.


                                              –10–
Williams, 371 S.W.3d 171, 184 (Tex. 2012) (quoting Diversicare Gen. Partner, Inc. v. Rubio, 185

S.W.3d 842, 855 (Tex. 2005) (quoting Safe BLACK’S LAW DICTIONARY (6th ed. 1990))). The

legislature intended a safety-standards-based claim to have “some relationship to the provision of

health care other than the location of the occurrence, the status of the defendant, or both.” Ross v.

St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 504 (Tex. 2015). A safety-standards-based claim

does not have to be “directly related to health care” to be a health care liability claim, but there

does have to be “a substantive nexus between the safety standards allegedly violated and the

provision of health care.” Id.; see Tex. W. Oaks Hosp., 371 S.W.3d at 185, 186 (“directly related

to health care” modifies only “professional or administrative services” and not “safety”). The

supreme court suggested seven factors to consider in determining whether a safety-standards based

claim is substantively related to the defendant’s provision of medical or health care:

       1. Did the alleged negligence of the defendant occur in the course of the defendant’s
       performing tasks with the purpose of protecting patients from harm;

       2. Did the injuries occur in a place where patients might be during the time they
       were receiving care, so that the obligation of the provider to protect persons who
       require special, medical care was implicated;

       3. At the time of the injury was the claimant in the process of seeking or receiving
       health care;

       4. At the time of the injury was the claimant providing or assisting in providing
       health care;

       5. Is the alleged negligence based on safety standards arising from professional
       duties owed by the health care provider;

       6. If an instrumentality was involved in the defendant’s alleged negligence, was it
       a type used in providing health care; or

       7. Did the alleged negligence occur in the course of the defendant’s taking action
       or failing to take action necessary to comply with safety-related requirements set
       for health care providers by governmental or accrediting agencies?

Ross, 462 S.W.3d at 505.




                                               –11–
        We will apply each of these factors. (1) Nothing shows appellants’ alleged negligence

occurred as the result of appellants’ performing tasks with the purpose of protecting patients from

harm. Instead the acts concerned Daneshfar’s poor relationship with his supervisor and mentor,

Shutze. (2) Although all the acts may have occurred in a hospital, nothing in the record shows

appellants’ acts occurred in front of patients. Also, nothing in the record shows any of the alleged

acts involved medical care as defined in section 74.001(a)(19). (3) Daneshfar was not seeking or

receiving health care at the time of the injury, that is, at the time of the verbal abuse and harassment,

the failure to provide semi-annual reviews, his being placed on formal probation, his termination,

and his failure to be heard and to be reinstated in the administrative review process. (4) Nothing

in the record shows Daneshfar was providing or assisting in providing health care when Shutze

verbally abused him and refused to provide reviews. The record shows he was not providing health

care when he was placed on formal probation—he was in a meeting with Sutker that Shutze also

attended. Nothing in the record shows he was providing health care when he was notified of his

termination or during the administrative review process. (5) The actions were based on appellants’

failure to comply with professional standards of behavior toward residents and supervising of

residency programs; however, as discussed above, nothing in the record shows the alleged acts

were directly related to health care. (6) Daneshfar did not allege, and the record does not indicate,

the use of any instrumentality other than Shutze’s alleged manipulation of the review committees

deciding to place Daneshfar on formal probation and later terminate him and Shutze’s alleged

manipulation of the administrative review process to block Daneshfar’s reinstatement. These

instrumentalities are not “a type used in providing health care.” (7) Appellants’ alleged wrongful

acts did “occur in the course of the defendant’s taking action or failing to take action necessary to

comply with . . . requirements set for health care providers by . . . accrediting agencies.” However,

those requirements concerned the residents’ work and educational environment, the well-being of

                                                 –12–
the residents, and the relationship between residents and the employing hospital and residency

program, the supervisor, and the teaching physicians. They were not “safety-related requirements”

except to the extent that the residents worked with patients, and overworked or improperly

educated resident could be unsafe. However, the requirements allegedly violated were not on their

face safety related.

                                  Medical Care or Health Care

       Appellants also contend that Daneshfar’s causes of action are “for . . . departure from

accepted standards of medical care, or health care.” CIV. PRAC. § 74.001(a)(13) (definition of

“health care liability claim”).

       Appellants quote the supreme court’s statement, “a claim alleges a departure from accepted

standards of health care if the act or omission complained of is an inseparable or integral part of

the rendition of health care. ‘[T]raining and staffing policies and supervision and protection of

[patients] . . . are integral components of a [health care facility’s] rendition of health care

services . . . .” Tex. W. Oaks Hosp., 371 S.W.3d at 180 (quoting Diversicare, 185 S.W.3d at 850).

Appellants assert that because Daneshfar’s claims assert violations of the ACGME requirements,

which concern the training of residents, they must be health care liability claims. We disagree.

Texas West Oaks Hospital involved a claim for the death of a mental-health patient at the hands of

an employee of the mental-health hospital where the patient was admitted. The family sued the

hospital and the employee, and the employee filed a cross claim against the hospital, alleging the

hospital failed to properly train him to work at the hospital. Id. at 175. Diversicare concerned a

nursing-home resident who sued the facility after she fell twice and was sexually assaulted by

another resident. Diversicare, 185 S.W.3d at 845. She alleged the nursing home failed to train a

sufficient number of staff and that it failed to implement adequate policies and procedures for

safety, training, and staffing its nursing homes. Id. The supreme court concluded that the claims


                                              –13–
in both cases were health care liability claims. See Tex. W. Oaks Hosp., 371 S.W.3d at 174, 193;

Diversicare, 185 S.W.3d at 845, 855. The allegations in both cases involved the care of patients,

the failure to provide proper training for the employees performing health care on the injured

patients, and injuries to the patients as a result of the inadequate care. See Tex. W. Oaks Hosp.,

371 S.W.3d at 175; Diversicare, 185 S.W.3d at 845. Both involved “acts or omissions” that were

“an inseparable part of the rendition of medical services,” Diversicare, 185 S.W.3d at 848, namely

the medical services for the patients allegedly injured by the failure to train the institutions’

employees. In this case, however, the wrongful acts and omissions Daneshfar alleged did not

concern health or medical care that caused injury to any patients.2 We conclude that even though

Daneshfar’s claims concern the conditions of his training, education, and employment in the health

care industry, they are not health care liability claims when they do not concern the care of or an

injury to a patient.

           Appellants also contend that the decisions to place Daneshfar on probation and to terminate

him were the decisions of peer review committees. Citing Garland Community Hospital v. Rose,

156 S.W.3d 541 (Tex. 2004), they assert the supreme court has “held the professional evaluation

of physicians is a ‘core function’ of hospitals and medical facilities, and that this evaluation of

physicians is ‘an inseparable part of the health care rendered to patients.” Id. at 545. In Rose, the

plaintiff alleged she was disfigured in cosmetic surgeries performed at the hospital. Id. at 542.

She alleged the hospital was negligent in granting credentials to the surgeon. Id. Although the

plaintiff filed expert reports, the trial court determined they were insufficient, dismissed the claims



      2
        Daneshfar’s attorney sent a letter to Baylor’s attorney, and he drafted a complaint to the ACGME that he sent to Baylor. Both documents
described Daneshfar’s grievances with Shutze and the residency program. One of the areas of complaint was whether the residency program
complied with the ACGME requirement that a residency program “must demonstrate that the appropriate level of supervision is in place for all
residents who care for patients.” The attorney stated, “When DD [Daneshfar] called Dr. Shutze to come in and see a patient who required an
emergent operation, Dr. Shutze would not accept DD’s assessment and questioned the need to operate. This led to an adverse patient event.” Both
the letter and the complaint were attached to Daneshfar’s petition and incorporated into it by reference. However, none of Daneshfar’s causes of
action involve the program’s or Shutze’s lack of supervision of residents or the failure to comply with that ACGME requirement. Nor does the
body of the petition refer to any adverse patient event. We conclude that section of the letter and complaint is not relevant to Daneshfar’s causes
of action.

                                                                     –14–
against the hospital, and severed them from her other claims. Id. at 543. The court of appeals

reversed, concluding the negligent-credentialing claim was not a health care liability claim because

the negligent acts or omissions in credentialing the surgeon did not occur during the plaintiff’s

medical care, treatment, or confinement. Id. at 544. The supreme court determined that “[t]he

court of appeals’ temporal distinction does not comport with the realities of the credentialing

process.” Id. The supreme court stated, “A patient’s complaint about a credentialing decision is

not directed solely to the hospital’s initial decision to credential a physician, but also to the

hospital’s maintaining those privileges during the time of the patient’s treatment . . . . Thus, a

hospital’s credentialing activities occur both before and during the treatment of a patient.” Id. The

court also stated, “A hospital’s credentialing of doctors is necessary to that core function and is,

therefore, an inseparable part of the health care rendered to patients.” Id. at 545. The plaintiff

alleged the hospital was negligent in credentialing the surgeon because there had been complaints

from other patients. Id. at 542. Thus, her credentialing claim involved acts or omissions in the

surgeon’s medical treatment of patients, which is health care under section 74.001. Furthermore,

her claim was expressly one for medical malpractice. In this case, however, nothing in the record

shows the committees’ decisions to place Daneshfar on probation and to terminate him from the

program were based on acts or omissions in his medical treatment of patients. Rose does not show

that Daneshfar’s claims are health care liability claims.

       Appellants also contend the causes of action are health care liability claims because expert

medical or health care will be needed to prove and refute the claims. In Texas West Oaks Hospital,

the supreme court stated, “we now hold that if expert medical or health care testimony is necessary

to prove or refute the merits of the claim against a physician or health care provider, the claim is a

health care liability claim.” Tex. W. Oaks Hosp., 371 S.W.3d at 182; see Psychiatric Solutions,

Inc. v. Palit, 414 S.W.3d 724, 727 (Tex. 2013) (claims of psychiatric nurse injured while

                                                –15–
restraining a patient were health care liability claims because his “suit claims that Mission Vista

departed from the accepted standards of safety and health care, which requires the use of expert

testimony to support or refute the allegations.”). Appellants argue that expert testimony of

physicians or other health care providers is necessary to determine whether Shutze and Baylor

acted properly or improperly.

       We agree that expert testimony by physicians or other health care providers will be

necessary for the parties to prove whether Shutze and Baylor acted properly or improperly. As

appellants stated in their motion to dismiss, “One cannot dispute the evaluation, handling and

supervision of physicians participating in a vascular surgery fellowship is not something within

the common knowledge of lay individuals.” However, the questions are whether that expert

testimony involves medical care or health care as defined in section 74.001 and whether that type

of testimony is “require[d]” or “necessary.” See Psychiatric Solutions, 414 S.W.3d at 727; Tex.

W. Oaks Hosp., 371 S.W.3d at 182. Not all expert testimony that a physician might present

involves medical care or health care as defined in section 74.001. Testimony about medical care

must concern “the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or

a physical deformity or injury by any system or method, or the attempt to effect cures of those

conditions.” OCC. § 151.002(13). Testimony about health care must concern an “act or treatment

performed or furnished, or that 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.” CIV. PRAC. § 74.001(a)(10). Both definitions require the testimony concern the

treatment of a patient.

       Although appellants asserted that such testimony will be necessary, they did not explain to

the trial court why it will be necessary. Even though the expert testimony of a physician might be

necessary to explain why the facts Daneshfar alleged were or were not appropriate by Baylor and

                                               –16–
Shutze, nothing in the record shows such testimony will necessarily require testimony about

medical care or heath care, that is, testimony about acts or omissions in the diagnosis or treatment

of a patient. As for whether medical care or health care testimony will be necessary or required to

prove appellants’ defense that Daneshfar was not competent in the program, appellants did not

explain to the trial court what evidence would be necessary. The record contains the letter placing

Daneshfar on formal probation, which stated, “Among the areas in which you have shown

deficiencies are:            technical and surgical skills, clinical knowledge, attention to detail, time

management and organization.” Although testimony about any of these areas could conceivably

involve testimony about medical care or health care as defined in section 74.001, the record does

not show that such testimony will be “necessary” or “require[d].” Nothing in the record shows

proof of Daneshfar’s competence or lack of competence will necessarily require evidence about

acts or omissions in the diagnosis or treatment of patients.

                                                             CONCLUSION

           The essence and underlying nature of Daneshfar’s claims are that they are those of a former

employee who alleges he was mistreated in the workplace and believes he was wrongfully

terminated. Because of the dual employment/teaching nature of the residency program, the claims’

essence and underlying nature are also those of a former student claiming he was not provided an

appropriate environment to learn and was wrongfully terminated from the education program. The

supreme court has stated that “the Legislature did not intend for the expert report requirement to

apply to every claim for conduct that occurs in a health care context.” Ross, 462 S.W.3d at 502.

Daneshfar’s employment- and education-based causes of action are not the types of claims the

legislature intended the protections of the Texas Medical Liability Act to apply.3


      3
        There are numerous Texas cases where doctors terminated from hospital residency programs have sued for wrongful termination. None of
the opinions show that the defendant hospitals and physicians in those cases asserted the terminated-doctors’ claims were health care liability claims
requiring service of expert reports. See Univ. of Tex. Health Sci. Ctr. at Tyler v. Nawab, 528 S.W.3d 631 (Tex. App.—Texarkana Apr. 21, 2017,


                                                                       –17–
          We conclude the record does not show that Daneshfar’s claims are health care liability

claims. Therefore, he is not a claimant as defined by the Act, and he is not subject to the

expert-report requirement of section 74.351(a). We overrule appellants’ issue on appeal.4

          We affirm the trial court’s order denying appellants’ motion to dismiss.




                                                                        /Lana Myers/
                                                                        LANA MYERS
                                                                        JUSTICE


170181HF.P05




pet. denied); Tex. Tech Univ. Health Scis. Ctr. v. Enoh, No. 08-15-00257-CV, 2016 WL 7230397 (Tex. App.—El Paso 2016, no pet.); Swate v.
Tex. Tech. Univ., No. 03-98-00227-CV, 1999 WL 106718 (Tex. App.—Austin Mar. 4, 1999, no pet.) (not designated for publication); Brown v.
Univ. of Tex. Health Ctr. at Tyler, 957 S.W.2d 911 (Tex. App.—Tyler 1997, no pet.); see also Rose v. Univ. of Tex. Sw. Med. Sch. at Dallas, No.
01-10544, 32 Fed. Appx. 131, 2002 WL 335277 (5th Cir. Feb. 22, 2002) (per curiam); Shaboon v. Duncan, 252 F.3d 722 (5th Cir. 2001); Karagounis
v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 168 F.3d 485, 1999 WL 25015 (5th Cir. 1999) (per curiam); Shah v. Univ. of Tex. Sys., Med.
Found., No. 97-20775, 156 F.3d 182, 1998 WL 546475 (5th Cir. Aug. 7, 1998) (per curiam); Simmons v. Jackson, No. 3:15-CV-1700-D, 2017 WL
3051484 (N.D. Tex. July 9, 2017); Refaei v. McHugh, No. 14-51148, 624 Fed. Appx. 142 (5th Cir. June 11, 2015); Beltran v. Univ. of Tex. Health
Sci. Ctr. at Houston, 837 F. Supp. 2d 635 (S.D. Tex. 2011); Sayibu v. Univ. of Tex. Sw. Med. Ctr. at Dallas, No. 3:09-CV-1244-B, 2010 WL
4780732 (N.D. Tex. Nov. 22, 2010); Nagm v. Univ. of Tex. Health Sci. Ctr. at Houston, No. Civ.A. H-04-2132, 2005 WL 1185801 (S.D. Tex. May
11, 2005).
    4
      Our decision concerns only whether the record shows Daneshfar’s suit was subject to the expert-report requirement of section 74.351. We
make no determination concerning the merits of Daneshfar’s claims.

                                                                   –18–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 BAYLOR UNIVERSITY MEDICAL                            On Appeal from the 191st Judicial District
 CENTER, INC., BAYLOR SCOTT &                         Court, Dallas County, Texas
 WHITE HEALTH; BSW HEALTH                             Trial Court Cause No. DC-15-11793.
 SERVICES AND WILLIAM P. SHUTZE,                      Opinion delivered by Justice Myers.
 M.D., Appellants                                     Justices Francis and Whitehill participating.

 No. 05-17-00181-CV          V.

 BAHRAUM DANIEL DANESHFAR,
 M.D., Appellee

      This Court’s judgment of November 17, 2017 is VACATED. The following is now the
judgment of this Court.

     In accordance with this Court’s opinion of this date, the order of the trial court is
AFFIRMED.

        It is ORDERED that appellee BAHRAUM DANIEL DANESHFAR, M.D. recover his
costs of this appeal from appellants BAYLOR UNIVERSITY MEDICAL CENTER, INC.,
BAYLOR SCOTT & WHITE HEALTH; BSW HEALTH SERVICES AND WILLIAM P.
SHUTZE, M.D.


Judgment entered this 12th day of February, 2018.




                                               –19–
