                                                 OPINION
                                            No. 04-10-00292-CV

                                Ida Lou BUCHANAN, Individually
                  and as Representative of the Estate of Wilbur Buchanan, Deceased,
                                               Appellant

                                                       v.

                        Dr. William O’DONNELL; Dr. Robert R. Murray, Jr.;
                             and Hill Country Imaging Associates, P.A.,
                                             Appellees

                    From the 216th Judicial District Court, Gillespie County, Texas
                                       Trial Court No. 11574
                             Honorable Frank Andrews, Judge Presiding 1

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: February 23, 2011

AFFIRMED

           Appellant, Ida Lou Buchanan, Individually and as Representative of the Estate of Wilbur

Buchanan, Deceased, appeals from the trial court’s order dismissing her claims against appellees,

Dr. William O’Donnell, Dr. Robert R. Murray, Jr., and Hill Country Imaging Associates, P.A.

(HCIA), and awarding appellees attorneys’ fees. We affirm.

1
 The Honorable N. Keith Williams is the presiding judge of the 216th Judicial District Court of Gillespie County.
However, the Honorable Frank Andrews, retired judge of the 116th Judicial District Court of Dallas County,
presided over the proceedings and signed the order at issue in this appeal.
                                                                                    04-10-00292-CV


                                        BACKGROUND

        Appellant and her husband Wilbur were delivering newspapers when Kristy Dawn

Anders rear-ended their vehicle with her own. As a result of the collision, appellant sustained

serious injuries and Wilbur died.

        Anders, a nurse, was on her way to work at Hill Country Memorial Hospital (HCMH) in

Fredericksburg when she rear-ended appellant and Wilbur.             Appellant sued Anders for

negligently failing to exercise ordinary care in the operation of her vehicle. During discovery,

appellant came to believe Anders may have been under the influence of negligently or illegally

prescribed medications at the time of the collision, which may have contributed to the accident.

Appellant alleges the medications were prescribed by Anders’s primary care physician, Dr.

William O’Donnell; and/or by her boyfriend, Dr. Joseph Pruneda, an associate of HCIA (a

physicians’ group); and/or by Dr. Robert R. Murray, Jr., another HCIA associate. Pruneda

rented the vehicle Anders was driving at the time of the collision, but he was not a passenger.

        Appellant subsequently amended her petition, bringing the following claims against the

parties listed:

        1. Negligence: Anders, Pruneda, O’Donnell, Murray, HCIA, and HCMH;

        2. Negligence Per Se: Anders, Pruneda, O’Donnell, Murray, HCIA, and HCMH;

        3. Negligent Entrustment: Pruneda and HCMH;

        4. Negligent Hiring, Supervision, Training, and Retention: HCMH and HCIA;

        5. Respondeat Superior: HCMH and HCIA; and

        6. Participatory Liability: Pruneda, O’Donnell, Murray, HCIA, and HCMH.

        Arguing the claims against them were health care liability claims under Texas Civil

Practice and Remedies Code Chapter 74, O’Donnell, Murray, HCIA, and Pruneda moved for



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dismissal and severance based on appellant’s failure to timely serve expert reports. As to

O’Donnell, Murray, and HCIA only, the trial court granted the motions to dismiss with

prejudice, awarded attorneys’ fees, and ordered severance. The trial court also dismissed the

claims against Pruneda for negligence, negligence per se, and participatory liability but did not

sever them from the negligent entrustment claim, to which he is still a party. Now, appellant

appeals the trial court’s order dismissing her claims against O’Donnell, Murray, and HCIA

only. 2

                                  NATURE OF APPELLANT’S CLAIMS

           Appellant argues the trial court erred by dismissing her claims against appellees because

they are not health care liability claims subject to Chapter 74’s expert report requirement.

Standard of Review

           Generally, we review a trial court’s order granting a motion to dismiss for failure to

timely file expert reports under an abuse of discretion standard. See, e.g., Am. Transitions Care

Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (applying abuse of discretion

standard in review of trial court’s decision to dismiss under predecessor statute). However, when

the case requires us to determine whether Chapter 74 applies to a claim, a question of law, we

apply a de novo standard of review. Holguin v. Laredo Reg’l Med. Ctr., L.P., 256 S.W.3d 349,

352 (Tex. App.—San Antonio 2008, no pet.); NCED Mental Health, Inc. v. Kidd, 214 S.W.3d

28, 32 (Tex. App.—El Paso 2006, no pet.).

Substantive Law

           Chapter 74 requires a claimant to serve on each party or each party’s attorney one or

more expert reports for each physician or health care provider against whom a claim is asserted.


2
    The record is unclear as to the status of appellant’s claims against HCMH.


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TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2005). Upon the affected physician’s or

health care provider’s motion, the trial court is required to dismiss the claim with prejudice and

award reasonable attorneys’ fees and costs if an expert report is not served within 120 days of

filing suit. Id. § 74.351(b). The expert report requirement only applies to health care liability

claims. See id. § 74.351(a).

       In determining whether a claim is a health care liability claim, we look to its nature and

essence, rather than the way it was pleaded. Diversicare Gen. Partner, Inc. v. Rubio, 185

S.W.3d 842, 847 (Tex. 2005). If a claim’s factual allegations are related to and inseparable from

rendition of medical treatment, it is a health care liability claim. Id. at 848. An important factor

in determining whether an act or omission is an inseparable part of providing medical care is

whether expert testimony from a medical or health care professional is necessary to prove the

claim. Id. at 851.

       Texas courts generally characterize claims as health care liability claims if they implicate

standards of medical care. E.g., id. at 850 (patient’s claim for assault by another patient was

health care liability claim because supervision of patients was part of health care); Wilson N.

Jones Mem’l Hosp. v. Ammons, 266 S.W.3d 51, 64 (Tex. App.—Dallas 2008, pet. denied)

(hospital visitor’s claim for injuries caused by unrestrained mental patient was health care

liability claim because how and where to hold mental patient pending transfer was a health care

decision); Holguin, 256 S.W.3d at 356 (patient’s claim against hospital for sexual assault by

hospital employee was health care liability claim because proper staffing and supervision of

employees was part of patient health care); Ruiz v. Walgreen Co., 79 S.W.3d 235, 239 (Tex.

App.—Houston [14th Dist.] 2002, no pet.) (patient’s claim against pharmacy for dispensing

wrong medication was health care liability claim because claim derived from pharmacy’s



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professional duty of dispensing medications). However, courts will not characterize a claim as a

health care liability claim if the health care provider’s conduct went beyond the reasonable

rendition of medical care. E.g., Holguin, 256 S.W.3d at 354 (patient’s claim against hospital

employee for sexual assault was not health care liability claim because sexual assault was not

part of rendition of medical care).

        Here, appellant brought claims against all three appellees for negligence, negligence per

se, and participatory liability. Appellant also claims HCIA is liable under the doctrine of

respondeat superior for Murray’s alleged negligence, as well as for negligent hiring, supervision,

training, and retention. We conclude each of these claims, discussed in turn, is a health care

liability claim.

Negligence

        Appellant claims appellees were negligent in the following ways:

        A. Improperly, illegally, and unnecessarily dispensing prescription drugs and/or
           narcotics to [Anders];
        B. Failing to properly supervise [Anders’s] taking of her prescribed medications;
        C. Failing to properly assess and/or prevent [Anders] from obtaining multiple
           prescriptions from multiple sources;
        D. Failing to warn [Anders] of the dangers of driving while using and/or
           overusing the prescribed medications and failing to warn [Anders] of the
           dangers of overuse of prescribed medications and/or the dangers of taking a
           mixture or cocktail of medications/drugs; [and]
        E. Failing to prevent [Anders] from over-prescribing potentially dangerous drugs
           and/or overusing potentially dangerous drugs.

Essentially, the crux of appellant’s claim is appellees were negligent in their treatment of Anders

by improperly or unnecessarily prescribing her medications, as well as in their failure to treat

Anders by failing to supervise her use of those medications and by failing to warn her of the

dangers of overuse. Expert testimony would be required to establish the proper standard of care

for prescribing medications, as well as to determine whether appellees unnecessarily prescribed



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or over-prescribed medications to Anders. Expert testimony would also be required to establish

the proper standard of care for supervising patients’ use of prescribed medications, as well as to

determine whether appellees were negligent in their supervision of or failure to supervise

Anders’s use of the medications.        Therefore, the facts alleged in appellant’s petition are

inseparable from appellees’ rendering of (or failure to render) medical care. For these reasons,

we conclude appellant’s negligence claim is a health care liability claim. Because appellant’s

negligence claim is a health care liability claim and no expert report was served, the claim was

properly dismissed.

Negligence Per Se

       Appellant claims appellees violated their statutory obligation to properly prescribe

medications. Although her petition does not expressly name a statute, appellant claims this

statutory obligation includes proper dispensing of narcotic medications to individuals who are

actual patients in need of such medications, as well as proper monitoring of the actual dispensing

of such medications.      On appeal, appellant contends the violation of appellees’ statutory

obligations constitutes negligence per se, not a health care liability claim.

       We are not bound by appellant’s characterization of her claim in determining whether it

is a health care liability claim. Diversicare, 185 S.W.3d at 847. In fact, at least two of our sister

courts have concluded a claim for negligence per se may be a health care liability claim if it

implicates standards of medical care. Tex. Cypress Creek Hosp., L.P. v. Hickman, No. 14-10-

00149-CV, 2010 WL 4880705, at *5 (Tex. App.—Houston [1st Dist.] Dec. 2, 2010) (plaintiff’s

factual allegations necessarily established health care liability claim because they were directed

to defendant health care provider’s failure to adhere to statutorily prescribed standards of care);

Dunn v. Clairmont Tyler, L.P., 271 S.W.3d 867, 872 (Tex. App.—Tyler 2008, no pet.)



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(plaintiff’s claim for negligence per se was health care liability claim because nursing homes’

statutory duty to report employee’s misconduct “implicates their duty as health care providers”).

       Here, the factual allegations underlying appellant’s negligence per se claim implicate the

standards of care for prescribing medications and supervising patient use of those medications.

Resolution of the claim will likely require expert testimony to establish whether appellees’

conduct breached the standards of care, even if those standards are statutory, as appellant claims

they are.   Because the merits of appellant’s negligence per se claim necessarily implicate

standards of medical care, we conclude it is a health care liability claim. Because appellant’s

negligence per se claim is a health care liability claim and no expert report was served, the claim

was properly dismissed.

Participatory Liability

       Appellant’s petition charges appellees with participatory liability for appellant’s and

Wilbur’s injuries: “[Appellees] knew that [Anders’s] conduct of continuing to take a cocktail of

dangerous drugs and narcotics constituted a tort or wrongful/illegal act. With the intent to assist

[Anders] in the wrongful/illegal acts, [appellees] substantially assisted [Anders] by unnecessarily

prescribing a cocktail of dangerous drugs . . . .” Because this claim is premised on whether

appellees “unnecessarily” prescribed medications, it implicates applicable standards of medical

care and will likely require expert testimony to establish when prescriptions are necessary and

whether they were necessary for Anders.         Therefore, we conclude appellant’s participatory

liability claim is also a health care liability claim, and, because no expert report was filed, it was

properly dismissed.




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Respondeat Superior and Negligent Hiring, Supervision, Training, and Retention

        Appellant alleges HCIA is liable under the doctrine of respondeat superior for Murray’s

alleged negligence, as well as for negligent hiring, supervision, training, and retention.

Appellant’s petition states: “[HCIA] breached the duty to hire, supervise, train and retain

competent employees when [it] hired, supervised, trained and retained . . . Murray, [a radiologist

who was] unnecessarily prescribing drugs and narcotics to [Anders].” In Holguin, we held a

claim for respondeat superior was “nothing more than a recasting” of a claim for negligent

hiring, supervision, training, and retention. Holguin, 256 S.W.3d at 354. Here, we conclude

appellant’s respondeat superior claim is also a recasting of her negligent hiring, supervision,

training, and retention claim; thus, we need only determine whether the latter claim is a health

care liability claim.

        In Rose, the Texas Supreme Court determined a negligent hiring, supervision, training,

and retention claim was a health care liability claim because it was based on the defendant-

hospital’s negligent credentialing of a physician-employee. Garland Cmty. Hosp. v. Rose, 156

S.W.3d 541, 546 (Tex. 2004). According to the Court, “[t]he quality of a health care provider’s

medical staff is intimately connected with patient care.” Id. at 545. The Court held that because

doctor credentialing is necessary to ensure quality of care, it is an inseparable part of the

rendition of health care. Id.

        Here, the essence of appellant’s negligent hiring, supervision, training, and retention

claim is that HCIA was negligent because it failed to prevent Murray from “unnecessarily”

prescribing medications to Anders. We believe whether Murray “unnecessarily” prescribed

medications implicates the quality of health care he provided. Therefore, HCIA’s supervision of

its physician-employee, like doctor credentialing in Rose, was necessary to ensure quality of



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care.   Therefore, HCIA’s hiring, supervision, training, and retention of Murray was an

inseparable part of the rendition of health care. For these reasons, we hold appellant’s negligent

hiring, supervision, training, and retention claim is a health care liability claim, and, because no

expert report was served, it was properly dismissed.

                                    EQUITABLE ESTOPPEL

        In her second issue, appellant contends that if the dismissed claims are health care

liability claims, appellees are equitably estopped from arguing for dismissal under Chapter 74’s

expert report requirement because O’Donnell initially argued the claims were not health care

liability claims and because appellees failed to timely provide her with Anders’s medical records.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(d) (West 2005) (“All parties shall be entitled

to obtain complete and unaltered copies of the patient’s medical records from any other party

within 45 days from the date of receipt of a written request for such records . . . .”). In support of

her contention, appellant cites O’Donnell’s plea in abatement, in which he argued appellant did

not have standing to pursue a health care liability claim because neither appellant nor Wilbur

were his patients.    Appellant argues that by subsequently moving for dismissal based on

appellant’s failure to serve him with an expert report, O’Donnell inequitably changed his

position. Appellant also argues that by requesting dismissal after refusing to timely provide

Anders’s medical records, O’Donnell, Murray, and HCIA all inequitably changed position.

        “[E]quitable estoppel is based on the principal that ‘one who by his conduct has induced

another to act in a particular manner should not be permitted to adopt an inconsistent position

and thereby cause loss or injury to the other.’” City of Fredericksburg v. Bopp, 126 S.W.3d 218,

221 (Tex. App.—San Antonio 2003, no pet.) (quoting Maguire Oil Co. v. City of Houston, 69

S.W.3d 350, 367 (Tex. App.—Texarkana 2002, pet. denied)). In Smalling, the plaintiff argued



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the defendants were estopped from requesting dismissal of her claims based on her failure to file

expert reports because they initially denied the existence of a physician-patient relationship.

Smalling v. Gardner, 203 S.W.3d 354, 368 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

In that case, the plaintiff’s obstetricians denied a physician-patient relationship existed between

them and the plaintiff’s baby, who died shortly after birth. Id. The Houston Court of Appeals

held the defendants’ discovery responses and deposition testimony denying the physician-patient

relationship were not, on their own, so inconsistent with an intent to assert the right to dismissal

under Chapter 74 as to estop them from asserting that right, especially because they consistently

invoked the protection of Chapter 74 in their answers. Id. at 369 (citing Jernigan v. Langley, 111

S.W.3d 153, 157 (Tex. 2003) (“[T]o establish an intent to waive the right to dismissal . . . the

defendant’s silence or inaction must be inconsistent with the intent to rely upon the right to

dismissal.”)).

         Here, like the doctors in Smalling, O’Donnell initially argued appellant had no standing

to bring a health care liability claim against him. However, we believe there are two reasons

O’Donnell was not estopped from subsequently seeking dismissal under Chapter 74. First,

whether non-patients have standing to pursue health care liability claims under amended Chapter

74 is still an unsettled issue. 3 Thus, it was well within reason for O’Donnell to file a plea in

abatement alleging lack of standing. Second, O’Donnell, like Murray and HCIA, consistently

invoked the protection of Chapter 74 in his original answer and in later motions. Therefore, we




3
  Chapter 74’s predecessor statute, former article 4590i, defined a health care liability claim as a “patient’s claim,”
whereas Chapter 74 replaces “patient” with “claimant.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West
2005). The Dallas Court of Appeals concluded removal of the word “patient” from the definition of “health care
liability claim” demonstrates the Legislature’s intent to permit claims relating to the injury or death of non-patients.
Wilson, 266 S.W.3d at 61. However, as the Dallas court acknowledged, “no [other] reported case addresses whether
an injured non-patient can constitute a claimant under [C]hapter 74.” Id. at 60.


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conclude O’Donnell did not act so inconsistently that he is estopped from seeking dismissal for

appellant’s failure to timely serve him with an expert report.

       As to the production of Anders’s medical records, appellant concedes O’Donnell did

produce his records. Murray and HCIA were both consistent in their contention that they had no

records to produce because Murray never treated Anders. Even if Murray did treat Anders, it

was appellant’s responsibility to seek, obtain, and provide an authorization from Anders for

release of her protected health information. TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(a)

(West 2005). Nothing in the record indicates appellant delivered to Murray or HCIA any

authorization from Anders for release of her medical records. Although appellant filed two

motions to compel Anders to produce her medical records, the record does not indicate the trial

court ruled on the motions. Appellant also filed a motion to compel all defendants, including

Murray and HCIA, to respond to all outstanding requests for discovery, but the record does not

indicate the trial court ruled on that motion either. Therefore, nothing in the record supports

appellant’s contention that Murray or HCIA “refused” to turn over Anders’s medical records.

Accordingly, we conclude appellant’s equitable estoppel argument is without merit.

                        CONSTITUTIONALITY OF SECTION 74.351

       In her third issue, appellant argues section 74.351(a), which requires timely filing of

expert reports, is unconstitutional as applied to her due to its lack of “equity-based provisions.”

According to appellant, it was impossible for her to comply with section 74.351 because

appellees “refused” to produce Anders’s medical records. Therefore, appellant argues, Chapter

74 makes a remedy by due course of law contingent upon an impossible condition, which is a

violation of the “open courts” provision of the Texas Constitution. See TEX. CONST. art. I, § 13

(“All courts shall be open, and every person for an injury done him, in his lands, goods, person



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or reputation, shall have remedy by due course of law.”); Moreno v. Sterling Drug, Inc., 787

S.W.2d 348, 355 (Tex. 1990) (“[T]he ‘open courts’ provision[] is premised upon the rationale

that the legislature has no power to make a remedy by due course of law contingent upon an

impossible condition.”). “A claimant who brings an open courts challenge [to Chapter 74] has

the burden of showing that the expert-report requirements actually prevented him from pursuing

his claims.” Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 461 (Tex. App.—Austin 2006, no

pet.).

         As discussed above, O’Donnell did produce Anders’s medical records, and nothing in the

record supports appellant’s contention that Murray and HCIA “refused” to produce Anders’s

medical records. Accordingly, appellant has not met her burden of demonstrating that Chapter

74’s expert report requirement actually prevented her from pursuing her claims. Therefore, we

conclude her constitutional argument is without merit.

                                           ATTORNEYS’ FEES

         In her final issue, appellant argues appellees’ alleged refusal to provide medical records

makes the trial court’s award of attorneys’ fees “inappropriate” in this case. According to

appellant, her failure to obtain an expert report was due to appellees’ noncompliance with their

statutory obligation to turn over Anders’s medical records.                 She argues she should not be

sanctioned for appellees’ misconduct. Appellant also contends the award of attorneys’ fees to

HCIA is “particularly inappropriate” because HCIA’s attorneys’ fees have not been properly

segregated from those expended on behalf of Pruneda. 4




4
  The same law firm represented both HCIA and Pruneda. The trial court dismissed but did not sever the health care
liability claims brought against Pruneda, and he remains a party to appellant’s non-health care liability claims.

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Award in General

       Chapter 74 provides that if an expert report has not been timely served, the court, on

motion of the affected health care provider, shall award the health care provider reasonable

attorneys’ fees. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(1) (West 2005). The attorneys’

fees awarded must be both “reasonable” and actually “incurred.” Id. Like dismissal for failure

to file expert reports, the award of attorneys’ fees is not discretionary. Id. § 74.351(b).

       In a recent opinion, the Texas Supreme Court stated: “Although we can imagine a case in

which discovery sanctions might offset an award of fees and costs under section 74.351(b), this

is not such a case because the trial court has made no finding of discovery abuse.” Garcia v.

Gomez, 319 S.W.3d 638, 643 (Tex. 2010). In Garcia, the plaintiff argued the physician waived

his right to recover attorneys’ fees because he was slow to produce medical records and

ultimately failed to produce records critical to the plaintiff’s case. Id. However, the physician

maintained that he produced all records in his possession, and the parties eventually discovered

the critical records were never under the physician’s control. Id. Because the plaintiff could not

establish abuse of the discovery process, the Court held she was liable for the full amount of the

physician’s reasonable and incurred attorneys’ fees. Id.

       Similarly, here, because appellant did not obtain rulings on any motions to compel

production of the medical records, the trial court made no findings of discovery abuse. Also,

appellant concedes O’Donnell turned over all records in his possession, and nothing in the record

supports appellant’s contention that HCIA or Murray refused to produce records in their

possession, if they had any. Appellant does not argue the amount of the award is unreasonable

or was not actually incurred, nor does she cite any legal authority supporting her contention that

the amount awarded is in any way inappropriate.



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Award to HCIA

       The trial court’s order on appellees’ motion to dismiss reads as follows:

       Hill Country Imaging Associates, P.A.                               $18,500.00
              (these are the same fees for Dr. Pruneda)
       Dr. William O’Donnell                                               $21,035.76
       Dr. Robert R. Murray, Jr.                                           $17,429.83

On appeal, appellant argues the award to HCIA’s and Pruneda’s attorneys should have been

segregated between the two parties. Appellant explains in her brief: “Logically, the work and

time involved in defending [HCIA and Pruneda] was the same and to hold that [appellant is]

responsible for each and ever[y] dollar incurred would be tantamount to double-dipping and is

unreasonable and unconscionable.”

       First, we note appellant made no objection to the trial court regarding segregation of the

fees. Regardless, “[a] recognized exception to this duty to segregate arises when the attorney’s

fees rendered are in connection with claims arising out of the same transaction and are so

interrelated that their ‘prosecution or defense entails proof or denial of essentially the same

facts.’” Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991) (quoting Flint &

Assoc. v. Intercontinental Pipe & Steel, Inc., 739 S.W.2d 622, 624–25 (Tex. App.—Dallas 1987,

writ denied)); see also Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313–14 (Tex. 2006)

(“[I]t is only when discrete legal services advance both a recoverable and unrecoverable claim

that they are so intertwined that they need not be segregated.”).

       Here, the trial court heard the testimony of HCIA’s and Pruneda’s attorney and also

reviewed her firm’s billing records. Appellant’s trial counsel had the opportunity to cross-

examine HCIA’s and Pruneda’s attorney at length regarding her testimony that “[t]he total

amount of the bill is $18,500 for the representation of two defendants in a case with multiple

issues.” There is nothing in the record to suggest the award of $18,500.00 does not represent the

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amount incurred for both parties “in connection with claims arising out of the same transaction[,

which] are so interrelated that their ‘prosecution or defense entails proof or denial of essentially

the same facts.’” See Stewart Title, 822 S.W.2d at 11. There is also nothing in the record

indicating the award is unreasonable or that appellant may be double-billed when the order

dismissing her claims against Pruneda becomes final. Finally, appellant does not contradict

HCIA’s and Pruneda’s attorney’s testimony that her firm’s work on behalf of both parties

justifies the $18,500.00 award. Based on the above, we conclude the trial court did not err in

failing to segregate the award. See id. Accordingly, we overrule appellant’s final issue.

                                         CONCLUSION

       Based on the above, we affirm the trial court’s judgment in all respects.



                                                  Sandee Bryan Marion, Justice




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