                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-09-191-CV


BASITH GHAZALI, M.D.                                                   APPELLANT

                                         V.

PATRICIA BROWN                                                            APPELLEE

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        FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

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                                    OPINION

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                                  I. Introduction

      Appellant Basith Ghazali, M.D. appeals the trial court’s denial of his

motion to dismiss Appellee Patricia Brown’s claims. See Tex. Civ. Prac. & Rem.

Code Ann. § 51.014(a)(9) (Vernon 2009), § 74.351(b) (Vernon Supp. 2009).

In two issues, Dr. Ghazali argues that Brown’s claims against him are health

care liability claims and that the trial court erred by failing to dismiss her claims

with prejudice because she did not provide an expert report fulfilling the
requirements of section 74.351. Id. § 74.351(r)(6). Because we hold that

Brown’s claims are not health care liability claims, we will affirm.

                      II. Factual and Procedural History

      In May 2004, Brown visited an American Laser Center location in Fort

Worth for laser hair removal on her lip, cheek, jaw line, and neck. At that time,

Dr. Ghazali served as the medical director at the facility. 1 Between May 2004

and September 2006, Brown went to American Laser Center at recommended

intervals.   But Brown claims she suffered severe burning, blistering, and

lacerations on her face and neck during her visit on September 8, 2006, that

resulted in permanent scarring and discoloration.

      On September 5, 2008, Brown filed her original petition against Dr.

Ghazali and the American Laser Center corporate entities and alleged

negligence, negligent failure to warn, gross negligence, violations of the Texas

Deceptive Trade Practices–Consumer Protection Act, fraud, and lack of

informed consent. 2 Within the 120-day period required by section 74.351,




      1
       Dr. Ghazali was not affiliated with American Laser Center after
September 2005.
      2
        Brown asserts her claim for lack of informed consent as an alternative
to her other causes of action.

                                       2
Brown served Dr. Ghazali with an expert report authored by Dr. Gil Segev.

Relying on Brown’s statements, medical history, and medical files, Dr. Segev

wrote in his report, among other things, that

      •     an African-American individual should be informed that the
            inherent risks of laser hair removal are increased in individuals
            with darker skin tones;

      •     one specific laser, an Nd:YAG laser, is safer to use on
            African-American individuals than other types of hair removal
            lasers;

      •     Dr. Ghazali failed to obtain written informed consent from
            Brown;

      •     Dr. Ghazali failed to obtain verbal informed consent from
            Brown; and

      •     Dr. Ghazali’s failure to obtain informed consent ultimately
            caused Brown’s injuries. 3

      Dr. Ghazali filed a motion to dismiss Brown’s claims pursuant to section

74.351(b). The trial court sustained Dr. Ghazali’s objections to the sufficiency

of Dr. Segev’s report, finding that the report failed to demonstrate a

relationship, direct or indirect, between Dr. Ghazali and Brown, but the trial




      3
       It is undisputed that Dr. Ghazali’s name does not appear in Brown’s
medical records and that Dr. Ghazali did not perform, or participate in
performing, the procedure.

                                        3
court granted Brown a thirty-day extension to correct the deficiency. Brown

then served an amended report with the following additional language:

            I have reviewed Defendant[’]s responses to Plaintiff’s
            discovery requests, which identify [Dr. Ghazali] as the on-site
            medical director for American Laser Center’s Fort Worth
            Office. Based on my experience as a founder and active
            national medical director of Laser Perfect, a laser hair removal
            company with over 20 locations, it is my opinion that an
            indirect physician-patient relationship existed between
            Patricia Brown and [Dr. Ghazali]. 4

Dr. Ghazali thereafter filed a second motion to dismiss. The trial court heard

and denied Dr. Ghazali’s second motion to dismiss on June 4, 2009, and this

interlocutory appeal followed.

                               III. Standard of Review

      Generally, we review a trial court’s denial of a motion to dismiss under

section 74.351 for an abuse of discretion. Am. Transitional Care Ctrs. of Tex.,

Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Moore v. Gatica, 269

S.W.3d 134, 139 (Tex. App.—Fort Worth 2008, pet. denied). However, we

review de novo the trial court’s denial of a motion to dismiss when it involves

the determination of whether a claim is a health care liability claim under

chapter 74. Tesoro v. Alvarez, 281 S.W.3d 654, 656 (Tex. App.—Corpus


      4
           There were no other changes to the expert report.

                                           4
Christi 2008, no pet.); Lee v. Boothe, 235 S.W.3d 448, 451 (Tex. App.—Dallas

2007, pet. denied).

           IV. Nonablative Laser Hair Removal Is Not Medical Care

      The legislature enacted the Medical Liability and Insurance Improvement

Act (MLIIA) to “reduce excessive frequency and severity of health care liability

claims” and to “make affordable medical and health care more accessible and

available to the citizens of Texas.” Garland Cmty. Hosp. v. Rose, 156 S.W.3d

541, 543 (Tex. 2004). To serve these purposes, the MLIIA includes numerous

procedural requirements for health care liability claims, including a requirement

that a claimant timely provide each defendant with a sufficient expert report.

See Tex. Civ. Prac. & Rem. Code Ann. § 74.351.

      For the MLIIA to apply, however, a claim must be a “health care liability

claim.” See id.; Rose, 156 S.W.3d at 543; see also Yamada v. Friend, No. 02-

07-00177-CV, 2008 WL 553690, at *4 (Tex. App.—Fort Worth Feb. 28,

2008, pet. granted) (mem. op.) (“A claim alleging a breach of a standard of

medical care is a health care liability claim.”) (citing Wright v. Fowler, 991

S.W.2d 343, 352 (Tex. App.—Fort Worth 1999, no pet.)).                Dr. Ghazali

contends that we need to look no further than Brown’s petition to determine

that her claim is a health care liability claim, but in determining whether a cause

                                        5
of action is a health care liability claim, we examine the underlying nature of the

claim and are not bound by the form of the pleading. Diversicare Gen. Partner,

Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005).

      A. Definitions of Health Care, Medical Care, and Treatment

      In determining whether Brown’s claim is a health care liability claim, we

begin with established principles of statutory construction. Marks v. St. Luke’s

Episcopal, No. 07-0783, 2009 WL 2667801, at *3 (Tex. Aug. 28, 2009). The

prevailing principle is that we give effect to legislative intent. See Tex. Gov’t

Code Ann. § 312.005 (Vernon 2009); see also Crown Life Ins. Co. v. Casteel,

22 S.W.3d 378, 383 (Tex. 2000). We then interpret a statute by reading the

words and phrases in context and construing them according to the rules of

grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a) (Vernon

2009). Words that are not defined are given their ordinary meaning. Fitzgerald

v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999).

When possible, all words are given effect and none of the statute’s language

is treated as surplusage. Cont’l Cas. Ins. Co. v. Functional Restoration Assocs.,

19 S.W.3d 393, 402 (Tex. 2000).

      The MLIIA provides the following definitions relevant to Brown’s claims:




                                        6
     “Health care” means any act or treatment performed or furnished,
     or that should have been performed or furnished, by any health
     care provider for, to, or on behalf of a patient during the patient’s
     medical care, treatment, or confinement.

           ....

     “Health care liability claim” means 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.

           ....

     “Medical care” means any act as defined as practicing medicine
     under Section 151.002, Occupations Code, performed or furnished,
     or which should have been performed, by one licensed to practice
     medicine in this state for, to, or on behalf of a patient . . . .

Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(10), (13), (19) (Vernon 2009)

(emphasis added).

     “Practicing medicine” means the diagnosis, treatment, or offer to
     treat a mental or physical disease or disorder or a physical
     deformity or injury by any system or method, or the attempt to
     effect cures of those conditions . . . .

Tex. Occ. Code Ann. § 151.002(13) (Vernon 2009).

     Although the MLIlA defines medical care, it does not define “treatment.”

See generally Tex. Civ. Prac. & Rem.Code Ann. § 74.001; Tesoro, 281 S.W.3d


                                      7
at 658. Therefore, we look to the plain meaning of “treatment” to determine

its application in this case. Tex. Civ. Prac. & Rem. Code Ann. § 74.001(b)

(“Any legal term or word of art used in this chapter, not otherwise defined in

this chapter, shall have such meaning as is consistent with the common law.”);

Kendrick v. Garcia, 171 S.W.3d 698, 704 (Tex. App.—Eastland 2005, pet.

denied) (“[Section 74.001(b)] essentially restates the rule of statutory

construction that terms in a statute are to be given their plain meaning.”).

“Treatment” is defined by Mosby’s Medical Dictionary as “the care and

management of a patient to combat, ameliorate, or prevent a disease, disorder,

or injury.” Mosby's Medical Dictionary 1880 (8th ed. 2009). We will therefore

use this definition in deciding whether laser hair removal constitutes medical

care or treatment.

      Because the parties agree that Dr. Ghazali is a physician, the primary

issue before this court is whether Brown’s claim concerns an act that occurred,

or should have occurred, during her medical care or treatment.

      B. Brown’s Claim Is Not A Health Care Liability Claim

      The parties do not argue, and the record does not suggest, that Brown

sought laser hair removal to “combat, ameliorate, or prevent a disease, disorder,

or injury” or that the hair removal relates to a “physical disease or disorder or



                                       8
physical deformity or injury.”     See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.001(a)(19); Tex. Occ. Code Ann. § 151.002(13); Mosby’s Medical

Dictionary 1880 (8th ed. 2009). Therefore, Brown’s laser hair removal is not

“treatment” or “medical care.” And because Brown’s laser hair removal is not

“treatment” or “medical care,” it follows that it is also not “health care”

because “health care” requires an act or treatment during the patient’s medical

care or treatment. 5 See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(10).

      In 2009, the legislature amended the health and safety code to

specifically regulate laser hair removal procedures and facilities.    See Tex.

Health & Safety Code Ann. §§ 401.501–.520 (Vernon Supp. 2009). Under the




      5
         We are aware of our sister court’s holding that laser hair removal is
related to health care when the pleadings allege either that appellants were
directly negligent for failing to adequately train and supervise employees or for
breaching the standard of care applicable to such health providers. See Kanase
v. Dodson, No. 07-08-00472-CV, 2009 WL 3425633, at *5 (Tex.
App.—Amarillo Oct. 26, 2009, no pet.) However, in the Kanase opinion, the
court does not include an analysis of whether cosmetic laser hair removal
conducted by a layperson meets the statutory definition of medical care,
treatment, or health care. Moreover, “courts must be equally careful not to
extend Chapter 74's reach beyond its stated bounds. Not every action taken
by a health care provider or every injury sustained by a patient falls within the
ambit of the MLIIA.” See Pallares v. Magic Valley Electric Coop., Inc., 267
S.W.3d 67, 71 (Tex. App.—Corpus Christi 2008, pet. denied) (citing Theroux
v. Vick, 163 S.W.3d 111, 113 (Tex. App.—San Antonio 2005, pet. denied).
Thus, we decline to follow Kanase.

                                       9
amended code, an individual does not have to be a physician or health care

provider to perform laser hair removal—and may do so without a physician’s

supervision—as long as the individual holds the appropriate certificate and does

not diagnose, treat, or offer to treat any client for any physical illness, disease,

injury, defect, or deformity. Id. §§ 401.504(b), 401.505. The amendment

limits a physician’s involvement in cosmetic laser hair removal by simply

requiring a laser hair removal facility to have a written contract with a physician

to establish protocols for the facility’s services and to audit the facility’s

protocols and operations. Id. § 401.519. This contractual requirement is not

related to Brown’s claims; nor does Brown assert that Dr. Ghazali diagnosed,

treated, or offered to treat her for any physical illness, disease, injury, defect,

or deformity. Id. §§ 401.504(b), 401.505. We therefore hold that Brown’s

lawsuit concerning her laser hair removal does not constitute a health care

liability claim. 6




       6
        Having held Brown’s laser hair removal is not health care, medical
care, or treatment, we decline to conclude that the mere use of the word
“treatment” in Brown’s petition requires a determination that the underlying
nature of her claim is a health care liability claim. See Tesoro, 281 S.W.3d at
659; Diversicare Gen. Partner, Inc., 185 S.W.3d at 847.

                                        10
      The reasoning in Tesoro v. Alvarez supports our conclusion that Brown’s

claim is not a health care liability claim.   See 281 S.W.3d at 660–65.        In

concluding that Alvarez’s claim was not a health care liability claim, the Tesoro

court determined that laser hair removal is not transformed into “health care”

simply because the procedure occurs in a medical clinic or the alleged

negligence involved a regulated medical device. Id. at 660–61. In addition, the

Tesoro court considered the following factors: (1) a laser hair removal device

could be used by a lay person without a physician or a health care provider

present; (2) the absence of allegations of medical treatment or breaches of

medical care in Alvarez’s original petition; 7 (3) the absence of legislation

concerning the regulation of laser hair removal; and (4) the holdings of other

states’ courts of appeals that laser hair removal is not “health care.” Id. at

662–65. We agree with the Tesoro court’s analysis and believe it supports our

holding here.



      7
        Brown’s petition alleges that “employees” operated the laser hair
removal machines and does not allege a breach of medical care. Thus, we find
this case distinguishable from Sarwal v. Hill. No. 14-01-01112-CV, 2002 WL
31769295, at *2–3 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (not
designated for publication) (holding that appellee’s claim of negligence was a
health care liability claim because the appellee alleged that (1) her physician
explained the laser hair removal procedure to her and (2) the physician’s
registered nurse who performed the procedure, resulting in the burning and
scarring of appellee’s skin, “breached nursing standards of care”).

                                       11
      C. Brown’s Laser Hair Removal Is Not An Inseparable Part Of The
Rendition of Medical Care

      An act or omission by a healthcare provider falls within the scope of the

MLIIA if it is a departure from the standards of medical care or healthcare or if

it is an inseparable part of the rendition of medical services. Tex. Civ. Prac. &

Rem. Code Ann. § 74.001(a)(13); Marks, 2009 WL 2667801, at *4.                Dr.

Ghazali contends that Brown’s laser hair removal is an inseparable part of the

rendition of medical care, but in doing so, Dr. Ghazali incorrectly argues that

laser hair removal procedures constitute “medical care.” Because laser hair

removal is not health care, medical care, or treatment, the failure to warn of the

risks of the procedure or the negligent performance of the procedure cannot be

an inseparable part of the rendition of health care, medical care, or treatment.

See Marks, 2009 WL 2667801, at *7 (holding that because the alleged

negligence was not directly related to the rendition of medical or health care,

the MLIIA did not apply).

      We therefore conclude that Brown’s claim against Dr. Ghazali is not

inseparable from the rendition of medical services and is not a health care

liability claim. We overrule Dr. Ghazali’s first issue.




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                               V. Expert Report

      In his second issue, Dr. Ghazali contends the trial court erred by denying

his motion to dismiss because Brown’s expert report did not meet the

requirements of section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. §

74.351. However, Brown was not required to file an expert report because she

did not assert a health care liability claim. See id.; Tesoro, 281 S.W.3d at 666.

We therefore overrule Dr. Ghazali’s second issue.

                                VI. Conclusion

      Having held that Brown’s claims concerning her laser hair removal

procedure do not constitute health care liability claims, we affirm the trial

court’s denial of Dr. Ghazali’s motion to dismiss.




                                            BILL MEIER
                                            JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DELIVERED: February 25, 2010




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