Reverse and Remand; Opinion Filed November 17, 2017.




                                            In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-17-00557-CV

      CELEBRITY HEALTHCARE MANAGEMENT, LLC, AKA CELEBRITY
    HEALTHCARE AND CELEBRITY DENTAL, PC AKA CELEBRITY DENTAL,
                            Appellant
                               V.
                      JOHN STANCU, Appellee

                      On Appeal from the 95th Judicial District Court
                                  Dallas County, Texas
                           Trial Court Cause No. DC-16-03438

                            MEMORANDUM OPINION
                        Before Justices Bridges, Fillmore, and Stoddart
                                 Opinion by Justice Stoddart
       This is an interlocutory appeal from the trial court’s denial of appellant’s motion to

dismiss. In a single issue, Celebrity Healthcare Management, LLC, a/k/a Celebrity Healthcare

and Celebrity Dental, PC a/k/a Celebrity Dental (“Celebrity”) asserts the trial court erred by

failing to dismiss John Stancu’s claims because Stancu did not serve an expert report as required

by Chapter 74 of the Texas Civil Practices and Remedies Code. We reverse the trial court’s

order and remand with instructions for the trial court to grant the motion to dismiss, determine

the amount of Celebrity’s reasonable attorney’s fees and costs of court, and render judgment in

favor of Celebrity.

       In his amended petition, Stancu, proceeding pro se, alleges he sought dental care from

Celebrity after his denture was broken in a traffic accident. Celebrity agreed to perform the
necessary work, including repairing his denture, and to delay payment for its services until

Stancu received a settlement check from the insurer covering the accident.

       Stancu alleges that over the course of three months, he had several appointments during

which Celebrity performed dental work, including taking x-rays, wax bites, and imprints.

However, when Stancu went to Celebrity to receive his repaired denture, Celebrity demanded

Stancu pay approximately $1,200 or it would not release the denture. Stancu did not pay and

never received the repaired denture. Stancu’s amended petition asserts a single cause of action

for breach of contract. He alleges:

       By promising to perform the dental work under the agreement to wait for the
       payment until the accident case is settled, [Celebrity] duped [Stancu] to become
       their patient, thus (1) depriving him from going to an honest dentist and get a
       proper medical care, (2) causing further injury to [Stancu’s] health by affecting
       [Stancu’s] eating and digestive organs, and (3) attempting to blackmail [Stancu]
       by telling him that if he wants to get his teeth he has to pay immediately, contrary
       to the agreement, and in complete disregard of the most basic medical ethic: first
       do no harm.


Stancu alleges Celebrity sent a bill for dental work to the lawyer representing him in the car

accident “in spite of the fact that [Celebrity’s] actions produced nothing but harm to [Stancu].”

       Celebrity timely answered. After the expiration of 120 days, Celebrity filed a motion to

dismiss and for attorney’s fees on the ground that Stancu asserts a health care liability claim

governed by Chapter 74 of the civil practice and remedies code and Stancu was required to serve

an expert report on Celebrity. Because Stancu failed to serve an expert report, Celebrity asserted

the trial court must dismiss his cause with prejudice and award reasonable attorney’s fees and

costs. See TEX. CIV. PRAC. & REM. CODE § 74.351(a), (b). In its motion, Celebrity argued

Stancu’s petition presents a medical malpractice case involving allegedly negligent dental care.




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          The trial court conducted a hearing on the motion to dismiss and concluded Stancu’s

petition does not present a health care liability claim and, therefore, Stancu was not required to

file an expert report. The court denied the motion to dismiss and this appeal followed.

          Section 74.351 of the civil practice and remedies code requires a plaintiff in a case

involving a health care liability claim to serve one or more expert reports on the defendant no

later than the 120th day after the defendant’s original answer is filed. Id. § 74.351(a). If the

plaintiff fails to timely serve an expert report, the statute requires the trial court, upon motion, to

dismiss the plaintiff’s claim with prejudice and award reasonable attorney’s fees and costs of

court to the defendant. Id. § 74.351(b). It is uncontested that Stancu did not serve an expert

report.

          The central issue in this case is whether Stancu’s claims constitute health care liability

claims under chapter 74 such that he was required to serve an expert report. Chapter 74 defines a

“health care liability claim” 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.

Id. § 74.001(a)(13). The Texas Supreme Court identified three basic elements of a health care

liability claim:

          (1) the defendant is a health care provider or physician; (2) the claimant’s cause of
          action is 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; and (3) the defendant’s
          alleged departure from accepted standards proximately caused the claimant’s
          injury or death.

Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012).

          Whether a claim is a health care liability claim is a question of law we review de novo.

See id. at 254-55. The statute “creates a rebuttable presumption that a patient’s claims against a
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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].” Id. at 252.

       There is no dispute that Celebrity is a health care provider. Stancu claims he was a

patient of Celebrity and was injured by Celebrity’s failure to provide him with the repaired

denture as a result of their dispute over payment. Stancu alleges Celebrity failed to complete its

treatment of him, failed to provide the dental care it agreed to provide, and deprived him of the

opportunity to receive proper medical care. Stancu asserts this was “in complete disregard of the

most basic medical ethic: first do no harm.” Because Stancu alleges claims against a health

care provider based on facts implicating Celebrity’s conduct during his care or treatment, a

rebuttable presumption arose that Stancu’s claim is a health care liability claim. See id.

       We next consider whether Stancu’s cause of action is 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.       See id. at 255. To

determine whether Stancu’s claim satisfies the second element of a health care liability claim, we

focus on the facts underlying the claim, not the form of the pleading. Id. Stancu alleges

Celebrity failed to provide him with a repaired denture pursuant to their agreed payment terms,

which means Celebrity allegedly failed to deliver the services for which the parties agreed.

Although Stancu contends he only seeks to recover for breach of contract, upon considering the

underlying nature of his pleading, we conclude his complaint concerns a “lack of treatment,”

namely the failure to provide his repaired denture, and that omission implicates a departure from

accepted standard of medical care or, as stated by Stancu, a disregard of the most basic medical

ethic, first do no harm. Stancu was Celebrity’s patient receiving dental treatment and the desired

end of that treatment for Stancu was the receipt of the repaired denture, which never occurred.

Providing the repaired denture was an inseparable part of that treatment. Because Stancu’s claim

                                                 –4–
concerns the lack of treatment, we conclude Stancu’s claim satisfies the second element of a

health care liability claim.

        The third element of a health care liability claim is that the defendant’s departure from

accepted standards of care must have proximately resulted “in injury to or death of a claimant.”

Id. Stancu alleges Celebrity’s actions caused him not to receive proper medical care and injured

him “by affecting [Stancu’s] eating and digestive organs.” Further, he alleges Celebrity’s actions

“produced nothing but harm” to him. On appeal, he alleges he suffered economic injuries. We

conclude the third element is satisfied.

        Having determined all three elements are satisfied, we conclude Stancu failed to rebut the

presumption that his claim against Celebrity is a health care liability claim. Because Stancu did

not serve an expert report as required by Chapter 74, we also conclude the trial court erred by

denying Celebrity’s motion to dismiss. We reverse the trial court’s order and remand with

instructions for the trial court to grant the motion to dismiss, determine the amount of Celebrity’s

reasonable attorney’s fees and costs of court, and render judgment in favor of Celebrity.




                                                      /Craig Stoddart/
                                                      CRAIG STODDART
170557F.P05                                           JUSTICE




                                                –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

CELEBRITY HEALTHCARE                                 On Appeal from the 95th Judicial District
MANAGEMENT, LLC, AKA CELEBRITY                       Court, Dallas County, Texas
HEALTHCARE AND CELEBRITY                             Trial Court Cause No. DC-16-03438.
DENTAL, PC AKA CELEBRITY                             Opinion delivered by Justice Stoddart.
DENTAL, Appellant                                    Justices Bridges and Fillmore participating.

No. 05-17-00557-CV          V.

JOHN STANCU, Appellee

        In accordance with this Court’s opinion of this date, the order of the trial court is
REVERSED and this cause is REMANDED to the trial court with instructions to grant the
motion to dismiss, determine the amount of appellant’s reasonable attorney’s fees and court
costs, and render judgment in favor of appellant.

       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 17th day of November, 2017.




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