REVERSE and REMAND; and Opinion Filed June 5, 2014.




                                        S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                     No. 05-13-01065-CV

  MATTHEW D. BARROWS, M.D., P.A. D/B/A DERMATOLOGY & SKIN CANCER
        SURGERY CENTER AND MELISSA MCANALLY, Appellants
                                  V.
                   SUZETTE CARNES, Appellee

                       On Appeal from the 116th Judicial District Court
                                    Dallas County, Texas
                           Trial Court Cause No. DC-12-09350-F

                                         OPINION
                          Before Justices Bridges, Fillmore, and Lewis
                                   Opinion by Justice Lewis
       This is an interlocutory appeal from orders denying motions to dismiss filed by appellants

Matthew D. Barrows, M.D., P.A. d/b/a Dermatology & Skin Cancer Surgery Center (Barrows)

and Melissa McAnally (McAnally).        Appellee Suzette Carnes (Carnes) sued Barrows and

McAnally seeking damages for injuries she sustained during an intense pulsed light (IPL) skin

rejuvenation procedure. For the reasons that follow, we reverse and remand to the trial court for

further proceedings.

                                       BACKGROUND

       Carnes sought IPL skin rejuvenation treatments from the RejuveDermMD Aesthetic

Center (Center), located within the Dermatology & Skin Cancer Surgery Center owned by

Barrows. During her third IPL treatment performed by McAnally, the Center’s aesthetician,
Carnes allegedly sustained injuries to her left eye, including a decrease in vision, inability to

tolerate light, and pupil disfigurement. Carnes sued Barrows and McAnally, asserting claims for

negligence, gross negligence, assault, and violations of the Texas Deceptive Trade Practices Act.

       Barrows and McAnally asserted Carnes’s claims were health care liability claims, subject

to the Texas Medical Liability Act (TMLA), as codified in Chapter 74 of the Texas Civil

Practice and Remedies Code. Although Carnes maintained that her claims were negligence

claims that did not fall within the ambit of Chapter 74, she nevertheless served expert reports

pursuant to section 74.351 of the TMLA. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)

(West Supp. 2013). Barrows and McAnally objected to Carnes’s expert reports as failing to

meet the requirements of Chapter 74 and they filed individual motions to dismiss Carnes’s

claims. The trial court conducted a hearing and denied Barrow’s and McAnally’s motions to

dismiss. Barrows and McAnally filed this interlocutory appeal. See id. § 51.014(a)(9) (West

Supp. 2013).

                                         DISCUSSION

       On appeal, Barrows and McAnally present one issue with two sub-parts. They ask that

we determine whether the trial court abused its discretion in denying their motions to dismiss

pursuant to section 74.351 of the TMLA. Appellants ask that we first consider whether Carnes’s

claims are health care liability claims and second, whether Carnes complied with the expert

report requirements of section 74.351.

       Carnes argues that our opinion in Bioderm Skin Care, LLC v. Sok, 345 S.W.3d 189 (Tex

App.—Dallas 2011, pet. granted) is controlling and requires that we conclude her claims are not

health care liability claims. However, shortly after submission of this appeal, the Texas Supreme

Court issued its opinion reversing the judgment in Bioderm. See Bioderm Skin Care, LLC v. Sok,

426 S.W.3d 753 (Tex. 2014).

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A. HEALTH CARE LIABILITY CLAIM

       Whether Carnes’s claims are health care liability claims under Chapter 74 is a question of

law we review de novo. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012).

The determination of whether a claim is a health care liability claim requires an examination of

the underlying nature of the claim, rather than any characterization given to the claim by the

pleadings.   See Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 664 (Tex. 2010);

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005).

       A health care liability claim consists of three elements: (1) the claim is asserted against a

physician or health care provider, (2) for treatment, lack of treatment, or other claimed departure

from accepted standards of medical care, health care, or safety or professional or administrative

services directly related to health care, (3) 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. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.001(a)(13) (West Supp. 2013); see Tex. W. Oaks Hosp., 371

S.W.3d at 179–80. Additionally, the TMLA “creates a rebuttable presumption that a patient’s

claims against a physician or health care provider based on facts implicating the defendant’s

conduct during the patient’s care, treatment, or confinement” are health care liability claims.

Loaisiga v. Cerda, 379 S.W.3d 248, 252 (Tex. 2012).

       With respect to the first element, the parties do not dispute that Barrows is a physician as

defined in Chapter 74. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(23). Although

Carnes discusses the lack of evidence in the record to show that McAnally held any medical

licenses, had any medical training, or otherwise possessed any specialized knowledge, skill, or

training in any field related to health care, Carnes does not dispute that McAnally is an employee

of Barrows. Accordingly, we conclude McAnally is a “health care provider” as defined in

Chapter 74. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12)(B).

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       With respect to the third element, Carnes alleges her injuries were caused by the IPL skin

rejuvenation treatment she received from McAnally.        For purposes of analyzing whether

Carnes’s claims are health care liability claims, we will assume the truth of her causation

allegation. The third element is met.

       Having determined that Barrows is a physician and McAnally is a health care provider,

and having accepted as true Carnes’s allegation concerning causation, we next consider the

second element: whether Carnes’s claims are based on facts implicating the conduct of Barrows

and McAnally during Carnes’s care, treatment, or confinement. See Bioderm, 426 S.W.3d at

759. In her pleading, Carnes claimed that Barrows breached a duty to ensure that McAnally used

the laser in a safe, reasonable and prudent manner by (1) employing McAnally, who was

unqualified to use the laser device, (2) allowing McAnally to perform the procedure without

Carnes’s consent, and (3) using the laser near and around Carnes’s eye. Carnes alleged that

Barrows, as McAnally’s employer, was vicariously liable for McAnally’s negligence.        Carnes

alleged McAnally ignored the risk of using a high-powered laser around Carnes’s eye when she

moved Carnes’s safety glasses from their proper position and performed the IPL treatment

directly over Carnes’s exposed eye.

       According to the record, Carnes received physician-supervised treatment in the

physician’s clinic. Prior to treatment, Carnes completed a “Patient History Questionnaire,”

which included medical history.         Carnes’s rheumatologist was consulted before the IPL

procedure was performed.        Carnes signed various forms, including a “Patient History

Questionnaire,” “Financial Policy,” and “Cosmetic Interest Questionnaire,” on lines designated

for a patient’s signature. McAnally’s “Progress Notes” refer to Carnes as the patient. Medical

records, consisting of progress notes and IPL treatment documentation, were generated in

connection with the procedure. On this record, we conclude Carnes’s claims are based on

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conduct of Barrows, a physician, and McAnally, a health care provider, in the context of care and

treatment, implicate medical expertise, and involve the alleged departure from accepted

standards of health care. See TEX. CIV. PRAC. & REM. CODE ANN. §74.001(a)(13); see also Rio

Grande Valley Vein Clinic, P.A., d/b/a RGV Vein Laser & Aesthetic Clinic v. Guerrero, No. 12-

0843, 2014 WL 1661495, at *2 (Tex. April 25, 2014) (per curiam); Bioderm, 426 S.W.3d at 759.

We further conclude Carnes has not rebutted the presumption that a patient’s claims against a

physician and health care provider based on facts implicating the defendants’ conduct during the

patient’s care or treatment are health care liability claims. See Loaisiga, 379 S.W.3d at 252.

Accordingly, the second element is met.

       Our conclusion is consistent with a recent ruling of the Amarillo Court of Appeals,

concluding the plaintiff’s claims were health care liability claims in a factually similar case

involving IPL treatment provided by a physician’s employee. See Kanase v. Dodson, 303

S.W.3d 846 (Tex. App.—Amarillo 2009, no pet.). In Kanase, the plaintiff alleged Kanase’s

employees negligently performed IPL laser treatments, causing severe burns and permanent

damage to her arms. Id. at 847. The plaintiff asserted claims of ordinary negligence against

Kanase for, among other things, failing to properly train and supervise employees in the use of

the IPL technology. Id. The Amarillo Court of Appeals held that “claims that a health care

provider did not adequately staff, train, or supervise employees are integral components of the

rendition of health care, which implicate medical expertise and the departure from accepted

standards of health care, and are, therefore, health care liability claims. Id. at 849 (citing Marks,

319 S.W.3d at 661).

       Our conclusion is supported by the fact expert medical or health care testimony would be

necessary to prove or refute Carnes’s claims. The TMLA defines health care as “any act or

treatment performed or furnished, or that should have been performed or furnished, by any health

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

confinement.” TEX. CIV. PRAC. & REM. CODE ANN. §74.001(a)(10). If expert medical or health

care testimony is necessary to prove or refute accepted standards of medical or health care and

their breach, the claim is a health care liability claim. See Tex. W. Oaks, 371 S.W.3d at 182.

Here, Carnes argues expert medical or health care testimony is not required to prove the merits

of her claims. However, the IPL skin rejuvenation treatment performed on Carnes utilized an

intense pulsed light (IPL) device. We note that in her pleading, Carnes also referred to the IPL

device as a laser. In Bioderm, the Texas Supreme Court considered the necessity of expert

medical or health care testimony when the claim involved injuries caused during laser hair

removal. 426 S.W.3d at 760. The Court looked to specific facts in the record and concluded that

expert health care testimony was necessary to prove or refute Sok’s claim for two reasons. Id. at

761. First, because Bioderm’s laser was a regulated surgical device that could only be acquired

by a licensed medical practitioner for supervised use in her medical practice, testimony of a

licensed medical practitioner was required to prove or refute Sok’s claim that use of the device

departed from accepted standards of health care.      Id. at 761–62.    Second, because proper

operation and use of the laser required extensive training and experience, expert testimony was

necessary to prove or refute Sok’s claim concerning improper use of the device. Id. at 762. The

Supreme Court concluded that “because expert health care testimony is needed to prove or refute

Sok’s claim against a physician and a health care provider, her claim is a health care liability

claim.” Id.

       Here, Carnes’s claims derive from her allegation that McAnally improperly used the IPL

device and that such action proximately resulted in Carnes’s injuries. Her specific claims relate

to an alleged failure by Barrows to adequately staff, train, or supervise McAnally in the use of

the IPL device. Such claims are integral components of health care, which implicate medical

                                              –6–
expertise and the departure from accepted standards of health care. See Marks, 319 S.W.3d at

661; Kanase, 303 S.W.3d at 849. On this record, Carnes’s claims are health care liability claims.

See Bioderm, 426 S.W.3d at 762.

B. EXPERT REPORTS

       In the second sub-part of their sole issue, Barrows and McAnally ask that we consider

whether Carnes complied with the expert report requirements of chapter 74. Appellants contend

that Carnes’s expert reports do not constitute objective, good faith efforts to comply with the

statutory requirements of section 74.351.      We note that Barrows and McAnally raised the

sufficiency of Carnes’s expert reports in their motions to dismiss. However, based on our review

of the record, we conclude the trial court did not consider or make any ruling with respect to the

sufficiency of Carnes’s expert reports.     The trial court should be given the opportunity to

determine the sufficiency of the expert reports.

                                         CONCLUSION

       In denying appellants’ motions to dismiss, the trial court relied on our opinion in Bioderm

Skin Care, LLC v. Sok, 345 S.W.3d 189 (Tex App.—Dallas 2011, pet. granted) to reach its

conclusion that Carnes’s claims were not health care liability claims. The trial court did not have

the benefit of the recent Texas Supreme Court’s opinion reversing Bioderm and clarifying the

factors to be considered in determining whether a claim constitutes a health care liability claim.

See Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753 (Tex. 2014).




                                                   –7–
In light of the Supreme Court’s decision in Bioderm, we reverse the trial court’s orders denying

Barrows’ and McAnally’s motions to dismiss and remand to the trial court to determine whether

Carnes’s expert reports satisfy the expert report requirements of chapter 74.




                                                     /David Lewis/
                                                     DAVID LEWIS
                                                     JUSTICE

131065F.P05




                                               –8–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

MATTHEW D. BARROWS, M.D., P.A.                       On Appeal from the 116th Judicial District
D/B/A DERMATOLOGY & SKIN                             Court, Dallas County, Texas
CANCER SURGERY CENTER AND                            Trial Court Cause No. DC-12-09350-F.
MELISSA MCANALLY, Appellants                         Opinion delivered by Justice Lewis.
                                                     Justices Bridges and Fillmore participating.
No. 05-13-01065-CV         V.

SUZETTE CARNES, Appellee

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.

       It is ORDERED that appellants MATTHEW D. BARROWS, M.D., P.A. D/B/A
DERMATOLOGY & SKIN CANCER SURGERY CENTER AND MELISSA MCANALLY
recover their costs of this appeal from appellee SUZETTE CARNES.


Judgment entered this 5th day of June, 2014.




                                                     /David Lewis/
                                                     DAVID LEWIS
                                                     JUSTICE




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