      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00079-CV



                                   Doctors Data, Inc., Appellant

                                                   v.

                           Ronald Stemp and Carrie Stemp, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
         NO. D-1-GN-09-002279, HONORABLE TIM SULAK, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Ronald and Carrie Stemp (collectively, “the Stemps”) sued Doctors Data, Inc.,

Care Clinics, Inc., Nutrigenomics, Inc., Jesus Antonio Caquias, MD, and other individuals and

entities, in connection with Ronald Stemp’s treatment at a facility in Austin, Texas, known as

Care Clinics. The Stemps alleged multiple claims, including assault, violation of the Deceptive

Trade Practices Act, breach of fiduciary duty, and fraud and fraud-based acts and omissions. Doctors

Data moved to dismiss the action against it on the basis that the Stemps asserted health-care-liability

claims but failed to serve their medical-expert report within the time required by section 74.351 of

the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 74.351. Doctors

Data contended that it is a health-care provider, that the Stemps’ claims are health-care-liability

claims, and that the trial court erred by failing to dismiss the cause as a result of the Stemps’ failure

to comply with section 74.351. The Stemps responded that their complaints sound in fraud and, in
any event, Doctors Data is not a health-care provider. The trial court rendered an interlocutory order

denying Doctors Data’s motion to dismiss. Doctors Data appeals. We will affirm.


                                    STANDARD OF REVIEW

                A trial court’s ruling on a motion to dismiss a cause for failure to comply with section

74.351(b) is subject to review for abuse of discretion. American Transitional Care Ctrs. of Tex., Inc.

v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).


                                          BACKGROUND

                Care Clinics, Inc., and Nutrigenomics, Inc., are both Texas Corporations. Doctors

Data, Inc., is an Illinois corporation.1 Dr. Jesus Antonio Caquias is a physician licensed to practice

medicine in Texas. Care Clinics apparently employed Dr. Caquias to perform medical work

requiring a physician.

                Care Clinics holds itself out to be a homeopathic or naturopathic clinic, specializing

in alternative treatment for autistic children. On his initial visit to Care Clinics, Ronald2 met with

Kazuko Curtin, president and sole director of Care Clinics, Inc. Curtin and Jeff Baker, an employee,

informed Ronald that he likely suffered from heavy-metal poisoning, Alzheimer’s disease, and heart

disease. Neither Curtin nor Baker is a physician; Baker claims to be a doctor of naturopathic

medicine. The State of Texas does not license homeopathic clinics or naturopathic doctors.



       1
           An uncertified copy of an assumed name certificate form attached to a Doctors Data
pleading states that Nutrigenomics, Inc. intended to do business in Travis County as “Care Clinics.”
It is unclear whether Care Clinics, Inc. and Care Clinics are the same or related entities.
       2
           To avoid confusion, we will refer to Ronald by his first name where appropriate.

                                                   2
                Care Clinics does not have a laboratory. Tests on specimens taken at Care Clinics

were conducted by outside laboratories, including Doctors Data.

                Ronald underwent multiple tests at Care Clinics, including laboratory analysis of his

urine to determine whether it contained toxic metals. Doctors Data performed some laboratory

analysis of the samples for Care Clinics. Allegedly, a provoking agent was administered to Ronald’s

samples, causing elevated levels of lead, heavy metals, and the like. The Stemps alleged that

Ronald’s true levels were normal, as later determined by medical professionals, and the testing and

treatment were fraudulently administered as part of a scheme among the parties to justify

unnecessary testing and treatment and to charge and collect costly and fraudulent bills. Ronald

underwent chelation therapy,3 which he discontinued after ten months when he concluded that the

treatment proved unsuccessful.

                The Stemps unsuccessfully attempted to obtain copies of Stemp’s records from Care

Clinics. Their attorney also made demand and made several unsuccessful attempts to obtain the

records. At some point, the Federal Bureau of Investigation and the Internal Revenue Service seized

control of the records of Care Clinics. The Stemps attempted to obtain copies of the records from

these federal agencies, but their requests were declined. They were not able to obtain the necessary

records through the U.S. Attorney’s Office from the Department of Justice until several months after

they filed suit. They filed an expert report relating to their claims, but it was not filed within the time

limit provided by section 74.351.




        3
        Chelation therapy is a medical procedure that involves the administration of certain agents
to remove heavy metals from the body.

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                A claimant urging health-care-liability claims has a duty to serve an expert report on

the defendant within the time prescribed in the statute. See Tex. Civ. Prac. & Rem. Code § 74.351.

The Stemps concede that if their claims are health-care-liability claims, and if Doctors Data is a

health-care provider, they missed the deadline due to the particular facts of their case and failed to

serve their expert report in time.

                Doctors Data filed a motion to dismiss the cause of action against it due to the

Stemps’ untimely filing of their expert report. As a basis for its motion, Doctors Data contended that

the Stemps’ complaints are health-care-liability claims and that it is a health-care provider because

it was both an independent contractor of Dr. Caquias and an affiliate of Dr. Caquias. In support of

its motion, Doctors Data attached to its motion and relied upon the plaintiffs’ original petition, a

copy of a contract between Doctors Data, Inc. and Nutrigenomics, Inc., an uncertified copy of

an assumed name certificate, an affidavit from Dr. Caquias with attachments, and excerpts from

Ronald Stemp’s deposition.

                Dr. Caquias attached to his affidavit copies of some of Ronald’s Care Clinics records

and lab tests by Doctors Data. The doctor conceded that the records belonged to Care Clinics, and

not to him, and that he is not the custodian of the records. As a result of the Stemps’ objections to

the affidavit, the trial court ruled that the records were not properly authenticated. Doctors Data does

not complain of this ruling.

                Dr. Caquias swore in his affidavit that he examined Ronald and ordered testing from

Doctors Data related to his medical complaints. Ronald points out that in his deposition he testified




                                                   4
that he never met Dr. Caquias or spoke with him until Ronald’s deposition, and that Dr. Caquias

never examined him or met with him to discuss any test results or for any reason.

                Doctors Data attached to its motion what purports to be an assumed-name certificate

reflecting that Nutrigenomics, Inc., intended to do business in Travis County as “Care Clinics.” It

also attached a copy of a contract between Nutrigenomics, Inc. and Doctors Data, Inc., whereby

Nutrigenomics would use Doctors Data exclusively for certain lab testing in exchange for Doctors

Data’s performing tests for Nutrigenomics at a discounted price. Doctors Data asserted that “by

virtue of this written agreement,” Dr. Caquias ordered Doctors Data to perform lab work on Ronald’s

specimens taken at Care Clinics. The agreement was dated and commenced three months after

Ronald discontinued going to Care Clinics; thus, it does not relate to the period when Ronald was

being seen and tested at Care Clinics. In any event, the agreement does not make any reference to

Care Clinics or Care Clinics, Inc. or provide any agreement for Doctors Data to perform services for

Care Clinics.


                                           DISCUSSION

                The trial court declined to dismiss the cause against Doctors Data. The ruling must

be upheld unless Doctors Data can show that the trial court abused its discretion by denying its

motion. Even assuming without deciding for purposes of this review that the Stemps’ claims are

health-care-liability claims, Doctors Data must also demonstrate that it is a health-care provider. To

do so, the record must show that Doctors Data is an independent contractor or an affiliate of

Dr. Caquias, the two grounds it alleged in its motion to dismiss.




                                                  5
                Several statutes relate to determining Doctors Data’s status as a health-care provider.

A health-care provider is defined as any person, partnership, professional association, corporation,

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

health care. Tex. Civ. Prac. & Rem. Code § 74.001(a)(12)(A). The record contains no evidence that

Doctors Data, Inc., is licensed, certified, registered, or chartered by the State for this purpose. Thus,

although Doctors Data apparently performs laboratory services, we cannot say that Doctors Data

comes within the primary definition of health-care provider.

                The term also includes an affiliate of a health-care provider or physician.

Id. § 74.001(a)(12)(B)(i). An “affiliate” is a person who directly or indirectly controls, is controlled

by, or is under common control with a specified person. Id. § 74.001(1). “Control” means the

possession of power to direct or cause the direction of the management and policies of the person,

through ownership, by contract, or otherwise. Id. § 74.001(3). It is undisputed that Dr. Caquias is

licensed to practice medicine in Texas. Although Doctors Data asserted in its motion below that it

was an affiliate of Dr. Caquias, it does not make this argument on appeal.

                The term “health care provider” also includes an employee, independent contractor,

or agent of a health-care provider or physician acting in the course and scope of the employment or

contractual relationship. Id. § 74.001(a)(12)(B)(ii). On appeal, Doctors Data suggests that it is an

independent contractor of Care Clinics. This was not a ground alleged in its motion to dismiss and

thus cannot be a ground for reversal of the trial court’s ruling. In any event, the record does not

contain any evidence that Care Clinics, Care Clinics, Inc., or Nutrigenomics, Inc. is licensed,

certified, registered, or chartered by the State of Texas to provide health care. Indeed, the State of



                                                     6
Texas does not license homeopathic, naturopathic, or such facilities. Even if Doctors Data

were an independent contractor of Care Clinics, that would not qualify Doctors Data as a

health-care provider.

               Finally, Doctors Data alleged in its motion and argues on appeal that it is a health-care

provider because it is an independent contractor of Dr. Caquias, a licensed physician. Doctors Data’s

position seems to be that a contractual relationship with an employer can create a contractual

relationship with the employer’s agent or employee. Doctors Data argues that Care Clinics

contracted with Doctors Data to perform lab work for its medical director, Dr. Caquias ordered lab

tests, Doctors Data performed the tests, and by doing so Doctors Data acted as the doctor’s

independent contractor. We disagree. An independent contractor relationship does not require a

written agreement; it can be created by implication. Pitchfork Land & Cattle Co. v. King,

346 S.W.2d 598, 602-04 (Tex. 1961). Doctors Data contends that it provided specific services to

Dr. Caquias which created an independent-contractor relationship with the doctor. Dr. Caquias does

not claim to have any independent agreement with Doctors Data. Dr. Caquias was an employee of

Care Clinics. He did not have a contractual agreement with Doctors Data. Even assuming Doctors

Data had an agreement with Care Clinics, his employer, that agreement does not somehow create

an agreement with Dr. Caquias. As earlier noted, any written agreement was between Nutrigenomics

and Doctors Data and became effective several months after Ronald quit Care Clinics. Thus, the

record does not support the conclusion that Doctors Data was an independent contractor of

Dr. Caquias.




                                                  7
                                         CONCLUSION

               Doctors Data has not shown from the record before us that it is a health-care provider;

thus, it cannot show that the trial court abused its discretion by denying its motion to dismiss. We

overrule all of Doctors Data’s issues on appeal and affirm the trial court’s ruling.



                                              _____________________________________________

                                              Marilyn Aboussie, Justice

Before Justices Goodwin, Field, and Aboussie*
  Concurring Opinion by Justice Goodwin

Affirmed

Filed: July 31, 2014

       * Before Marilyn Aboussie, Chief Justice (retired), Third Court of Appeals, sitting by
assignment. See Tex. Gov’t Code § 74.003(b).




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