

                                          NO. 07-09-0321-CV

                          IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL C

                                            MARCH 12, 2010




                                         CLIFFORD J. FAIRFAX,


                                                Appellant
                                                  v.


                          DR. BOBBY SMITH and PAMPA REGIONAL MEDICAL CENTER,


                                                Appellees
                                    _____________________________

                            FROM THE 223rd DISTRICT COURT OF GRAY COUNTY;

                            NO. 35,385; HONORABLE LEE W. WATERS, PRESIDING



                                          Memorandum Opinion



Before  QUINN, C.J., and HANCOCK and PIRTLE, JJ.

           Appellant Clifford J. Fairfax (Fairfax) appeals pro se from the dismissal  of  his  health
care liability claim for the failure to serve an expert report.  In three  issues,  he  contends  the
trial court erred in 1) denying his request for appointment of counsel, 2) failing to  file  findings
of fact and conclusions of law, and 3) dismissing his lawsuit for failure to file an  expert  report.
We affirm the order.
      Fairfax filed his original petition on November 7, 2008, alleging that Dr. Bobby Smith  (Smith)
and the Pampa Regional Medical Center (Medical Center)  were  negligent  with  respect  to  a  hernia
operation performed on him 1) by not disclosing all the risks and hazards of hernia surgery  to  him,
2) in “snatching out and removing [his] right  testicle  from  its  cord  and  scrotum,”  and  3)  in
performing testicle repair surgery without his consent.  On January  16,  2009,  he  filed  a  motion
seeking appointment of counsel and several weeks later he filed a motion asking the court to  appoint
him an expert witness.
      Before the motions of Fairfax were ruled upon, both Smith and the Medical Center filed  motions
to dismiss for the failure of Fairfax to file an expert report in  accordance  with  §74.351  of  the
Texas Civil Practice and Remedies Code.  The trial court held a hearing on the motions of all of  the
parties.  Fairfax attended by telephone.[1] At that hearing, the trial court denied Fairfax’  motions
for an attorney and appointment of an expert witness but gave him an additional 120 days in which  to
obtain an expert report. When he failed to do so within the additional  120  days,  the  trial  court
granted the motions to dismiss.
      Issue 1 – Appointment of Counsel
      In his first issue, Fairfax claims the trial court erred in failing to grant  his  request  for
appointment of counsel.  We overrule the issue.
      The trial court may appoint counsel for a party who makes an affidavit that he is too  poor  to
employ counsel.  Tex. Gov’t Code Ann. §24.016 (Vernon  2004).  Next, a trial  court  does  not  abuse
its discretion in refusing to appoint counsel when the indigent party fails to  demonstrate  why  the
public and private interests at stake are so  exceptional  that  the  administration  of  justice  is
served by the appointment.  Hall v. Treton, 39 S.W.3d 722, 724 (Tex. App.–Beaumont  2001,  no  pet.);
Coleman v. Lynaugh, 934 S.W.2d 837, 839  (Tex.  App.–Houston  [1st  Dist.]  1996,  no  pet.).   While
Fairfax alleged in his motion that this lawsuit was an “exceptional case,” he provided no  basis  for
such a finding.  He merely asserted that, due to his incarceration, he  was  unable  to  present  and
investigate his case, he was financially unable to employ an expert,  and the case was “complex”  and
requires skill in presentation of  evidence  and  cross-examination.   However,  he  did  nothing  to
explain why the case was complex.
      That one is an inmate does not render the cause exceptional.  Gibson  v.  Tolbert,  102  S.W.3d
710, 713 (Tex. 2003).  That the claim may involve medical malpractice does not  make  it  exceptional
either for such claims are rather prevalent.  Moreover, our  Supreme Court noted that  plaintiffs  in
medical malpractice cases are routinely represented on the basis of continency fees; therefore,  such
plaintiffs who may be indigent are not prevented from employing counsel.   Id.   This  being  so,  we
cannot say the trial court erred.[2]
      Issue 2 – Findings of Fact and Conclusions of Law
      In his second issue, Fairfax claims error with respect to the trial  court’s  failure  to  file
findings of fact and conclusions of law with respect to his request for appointment  of  an  attorney
and an expert.  In any case tried without a jury to the trial court, the court  shall  file  findings
of fact and conclusions of law within twenty days after a timely request is made.  Tex.  R.  Civ.  P.
297.  The purpose of the rule is to give  a  party  a  right  to  findings  and  conclusions  finally
adjudicated after a conventional trial on the merits.  Willms v. Americas Tire Co., 190  S.W.3d  796,
801 (Tex. App.–Dallas 2006, pet. denied).  No trial on the merits occurred at bar,  and  thus,  while
findings of fact and conclusions of law would not be improper, they are not required.  Id.
      Issue 3 – Dismissal
      Finally, Fairfax argues that the trial court erred by dismissing his  lawsuit  for  failure  to
file an expert report because his lawsuit is one involving simple negligence and therefore  does  not
fall within the requirements of the Texas Medical Liability Act.  We disagree.
      First, we note that Fairfax failed to make this argument to the trial court  as  a  basis  upon
which to deny the motions to dismiss.   The  failure  to  do  so  waives  error.   Tex.  R.  App.  P.
33.1(a)(1) (stating that to preserve a complaint for appellate review, the complaint must  have  been
made to the trial court by a timely request, objection or motion).
      Even if the matter was not waived, we examine the underlying nature of  a  claim  to  determine
whether it constitues a health care liability claim.  Garland Cmty. Hosp. v. Rose,  156  S.W.3d  541,
543 (Tex. 2004).  A health care liability claim is 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 . .  .  .”   Tex.  Civ.
Prac. & Rem. Code Ann. §74.001(a)(13) (Vernon  2005).  If an act or omission is an  inseparable  part
of the rendition of health care services, then it is a  health  care  liability  claim.   Diversicare
Gen. Partnership, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005).  The necessity of expert  testimony
may be a factor to consider.  Id.
      Fairfax alleged that Smith and the Medical Center breached the applicable standards of care  by
not disclosing to him the risks of surgery of both the  hernia  operation  and  the  testicle  repair
surgery, not obtaining his consent to the repair surgery, and in “snatching  out  and  removing”  his
right testicle.  These acts and omissions are  a  natural  part  of  the  rendition  of  health  care
services.  Accordingly, we find them to constitute health care liability claims.  Therefore,  Fairfax
was required to serve an expert report, and his failure  to  do  so  combined  with  the  motions  to
dismiss required the trial court to dismiss his petition.  See Tex.  Civ.  Prac.  &  Rem.  Code  Ann.
§74.351(b) (Vernon  Supp. 2009).
      Having overruled appellant’s issues, we affirm the order of dismissal.


                                        Per Curiam


      -----------------------
      [1]Fairfax is incarcerated.

      [2]Fairfax complains that the trial court  summarily  denied  his  motion  for  appointment  of
counsel without hearing his “exceptional factors.”  Yet, in his brief, he provides  no  such  factors
above and beyond those set forth in his motion.  Nor does he cite any authority illustrating  that  a
trial court must convene an evidentiary hearing on the matter.



