                                   NO. 07-08-0472-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                 OCTOBER 26, 2009
                          ______________________________

           PADMANEEL B. KANASE, M.D., INDIVIDUALLY AND D/B/A
     AMERICA LASER CENTERS AND LASER PHYSICIANS, PA, APPELLANTS

                                             V.

                           SHELLEY DODSON, APPELLEE
                        _________________________________

             FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                NO. 96,273-C; HONORABLE ANA E. ESTEVEZ, JUDGE
                        _______________________________


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


                                         OPINION


       Appellants, Padmaneel B. Kanase, individually and d/b/a America Laser Centers and

Laser Physicians, PA, appeal the trial court’s denial of Defendants’ Motion to Dismiss

claims of negligence asserted by appellee, Shelly Dodson. By their motion, appellants

contend that dismissal of Dodson’s claims of negligence is mandated because these claims

constitute health care liability claims and Dodson failed to file an expert report within 120

days of filing suit. See TEX . CIV . PRAC . & REM . CODE ANN . § 74.351(a) (Vernon Supp.
2008).1 Dodson did not file a brief in response, but took the position before the trial court

that her claims are for ordinary negligence and are not health care liability claims. We

conclude that the trial court erred by denying appellants’ motion to dismiss.


                                        Background


       According to Dodson’s pleading, on or about December 1, 2006, appellants’

employees negligently performed intense pulse light (IPL) laser treatments on Dodson

which caused severe burns and permanent damage to her arms. On the basis of this

assertion, Dodson claims that appellants (1) failed to use ordinary care in training its

employees in the operation of the IPL, (2) failed to use ordinary care in supervising its

employees in the operation of the IPL, (3) failed to properly train employees to operate the

IPL, (4) failed to use reasonable care to prevent employees from causing an unreasonable

risk of harm to others, (5) failed to use ordinary care in taking precautions to protect the

safety of others when employees perform work that is inherently dangerous, and (6) failed

to exercise the degree of care, skill, and competence that a reasonable, competent

member of the profession would exercise under similar circumstances. Dodson filed her

petition on December 20, 2007. Appellants answered with a general denial that also pled

the limitations on liability contained within chapter 74 of the Texas Civil Practice and

Remedies Code.


       On June 16, 2008, appellants filed a motion to dismiss which contended that

Dodson’s claims were health care liability claims and that she had failed to file an expert



       1
         Further references to provisions of the Texas Civil Practice and Remedies Code
will be to “section __” or “§ __.”

                                             2
report within 120 days of filing suit. See § 74.351. In her response to the motion to

dismiss, Dodson contended that her claims were claims of ordinary negligence and not

health care liability claims. Impliedly, Dodson conceded, in her response, that she had not

filed an expert report within the time required by statute. The parties then each filed

additional replies and briefs relating to the issue of whether the claims asserted by Dodson

constituted health care liability claims. After holding a hearing at which the parties argued

their positions, the trial court denied appellants’ motion without specifying the grounds on

which its decision was based. From this denial, appellants appeal. See § 51.014.


       By their appeal, appellants’ sole issue contends that Dodson was required to file an

expert report. Because Dodson failed to timely file an expert report, appellants contend

that the trial court erred in denying the motion to dismiss.


                                            Law


       Under section 74.351, any person who has brought a suit asserting a health care

liability claim must, within 120 days of filing the claim, provide an expert report for each

physician or health care provider against whom the claim is asserted. § 74.351(a). If the

claimant does not provide an expert report as required, the trial court must, upon motion

of the defendant, dismiss the claim with prejudice and award the defendant reasonable

attorney’s fees and costs of court. § 74.351(b). A health care liability claim is defined 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.


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§ 74.001(a)(13). A plaintiff cannot avoid the requirements of chapter 74 by attempting to

recast a health care liability claim as a different cause of action through artful pleading.

See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005). Whether

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

v. Dixon, 180 S.W.3d 915, 919 (Tex.App.–Dallas 2005, no pet.); Gomez v. Matey, 55

S.W.3d 732, 735 (Tex.App.–Corpus Christi 2001, no pet.). In determining whether a cause

of action is a health care liability claim, we examine the underlying nature of the claim

rather than the way it was pleaded. Boothe, 180 S.W.3d at 919. If the act or omission

alleged in the complaint is an inseparable part of the rendition of health care services or if

it is based on the breach of a standard of care applicable to health care providers, then the

claim is a health care liability claim. Diversicare Gen. Partner, Inc., 185 S.W.3d at 848;

Boothe, 180 S.W.3d at 919.


                                          Analysis


       In the present case, there is no dispute that appellants are health care providers.

See § 74.001(a)(12). Further, Dodson has alleged that the acts of appellants proximately

caused her injuries. Thus, the only issue before this Court is whether Dodson’s claims are

“for treatment, lack of treatment, or other claimed departure from accepted standards of

medical care, or health care.” § 74.001(a)(13).


       Dodson alleges that appellants’ employees negligently performed IPL treatments on

Dodson which caused severe burns and permanent damage to her arms. Dodson then

asserts claims of ordinary negligence against appellants for failing to properly train and

supervise employees in the use of the IPL, failure to provide properly trained employees,


                                              4
failure to take reasonable care to prevent employees from causing an unreasonable risk

of harm to others, failure to use ordinary care to protect the safety of others when

employees are performing inherently dangerous work, and failure to exercise the degree

of care, skill, and competence that a reasonable, competent member of the profession

would exercise under similar circumstances.


       Dodson’s claims derive from her allegation that appellants’ employees improperly

used the IPL and that such actions proximately resulted in her injuries.2 However, her

specific claims relate to appellants’ alleged negligent failure to properly train and supervise

their employees in the use of the IPL. 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. Marks v. St. Luke’s Episcopal Hosp.,

No. 07-0783, 2009 Tex. LEXIS 636, at *14 (Tex. August 28, 2009) (citing Diversicare Gen.

Partner, Inc., 185 S.W.3d at 850). See Holguin v. Laredo Reg’l Med. Ctr., L.P., 256 S.W.3d

349, 356 (Tex.App.–San Antonio 2008, no pet.) (a health care provider’s staffing and

supervision of staff is an integral component of health care); Espinoza v. Baptist Health

Sys., No. 04-05-00131-CV, 2006 Tex.App. LEXIS 8739, at *7 (Tex.App.–San Antonio

October 11, 2006, pet. denied) (memo. op.) (claims of failure of health care provider to


       2
         We are aware of our sister court’s holding that laser hair removal treatments are
not related to health care and that claims that the operator of the laser was negligent and
that the physician was vicariously liable for the acts of his agent do not constitute health
care liability claims subject to the expert report requirement. See Tesoro v. Alvarez, 281
S.W.3d 654, 666 (Tex.App.–Corpus Christi 2009, no pet. h.). However, as all of Dodson’s
pled claims allege either that appellants were directly negligent for failing to adequately
train and supervise employees or breaching the standard of care applicable to such health
care providers, rather than that they were vicariously liable for the acts of their employees,
we conclude that the present case is distinguishable from Tesoro.

                                              5
train, supervise, or hire competent personnel amount to a claim of departure from accepted

standards of medical care). Further, that Dodson’s claims allege a breach of a standard

of medical care is evidenced by her claim that appellants, who are health care providers

under the statute, failed “to exercise the degree of care, skill, and competence that a

reasonable, competent member of the profession would exercise under similar

circumstances.”


       Because the nature of all of the claims alleged by Dodson are integral components

of the rendition of health care and, therefore, allege departure from accepted standards of

care, the claims are subject to the expert report requirement of section 74.351. As Dodson

failed to file an expert report within 120 days of filing her claim, the trial court erred in

denying appellants’ motion to dismiss.


                                         Conclusion


       For the foregoing reasons, we reverse the order of the trial court denying appellants’

motion to dismiss, render judgment that Dodson’s claims be dismissed with prejudice, and

remand the case to the trial court solely on the issue of the appropriate award of attorney’s

fees and costs incurred by appellants in relation to this case.




                                                  Mackey K. Hancock
                                                       Justice




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