      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00334-CV



                                   Chauncey Drewery, Appellant

                                                 v.

 Adventist Health System/Texas, Inc.; Metroplex Health System d/b/a Metroplex Hospital;
     Barbara Wiedebusch, R.N.; Kristien Williams, R.N.; Betty S. Thorp, R.N.; and
                              Warren Voegele, Appellees


      FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
           NO. 235,885-C, HONORABLE RICK MORRIS, JUDGE PRESIDING



                               DISSENTING OPINION


               On the facts of this case, I could agree with the majority that appellant Chauncey

Drewery’s claims, as alleged in his amended petition, are not health care liability claims subject to

the expert-report requirement of chapter 74. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001(13),

.351 (West 2011). The majority’s conclusion, however, disregards the actual allegations contained

in Drewery’s original petition. It also ignores the thornier problem of whether a plaintiff, whose

pleadings are subject to the requirements of chapter 74, may later amend those pleadings deleting

unnecessary facts and legal conclusions after the deadline for filing an expert report has passed to

avoid application of chapter 74.

               I would conclude that Drewery’s claims as alleged in his original petition—the only

petition filed during the statutory deadline for filing an expert report—were in essence health care
liability claims, subject to dismissal for failure to serve an expert report. See Harris Methodist

Fort Worth v. Ollie, No. 09-0025, slip op. at 2, 4-5 (Tex. May 13, 2011), available at

http://www.supreme.courts.state.tx.us/historical/2011/may/090025.pdf (concluding patient’s slip and

fall claim against hospital in amended petition was health care liability claim and dismissing claim

for failure to file expert report; patient amended petition to omit “medical malpractice claim” based

upon same underlying facts as ordinary negligence claim); Diversicare Gen. Partner, Inc. v. Rubio,

185 S.W.3d 842, 851 (Tex. 2005). I further would conclude that the claims in Drewery’s amended

petition were an improper attempt to recast his claims in order to avoid the expert-report

requirement. See Medical Hosp. of Buna Tex., Inc. v. Wheatley, 287 S.W.3d 286, 290-92, 294 (Tex.

App.—Beaumont 2009, pet. denied); NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 32, 37

(Tex. App.—El Paso 2006, no pet.); Jones v. Christus Health Ark-La-Tex, 141 S.W.3d 790, 793-94

(Tex. App.—Texarkana 2004, no pet.) (recasting of pleadings after time for filing expert report does

not operate to nullify requirement imposed by this statute to dismiss action).

               The plain language of section 74.351 requires: (i) a claimant to serve an expert report

within 120 days from the filing of the claimant’s original petition to support health care

liability claims and (ii) the trial court to dismiss the claims for the failure to do so. See Tex. Civ.

Prac. & Rem. Code Ann. § 74.351; Tex. Gov’t Code Ann. § 311.016(2) (West 2005) (“shall”

imposes duty); Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010) (words in

statute are “given their ordinary meaning unless a contrary intention is apparent from the context,

or unless such a construction leads to absurd results”). Dismissal for failure to follow the mandates

of section 74.351 is not discretionary. See Wheatley, 287 S.W.3d at 294; see also Mokkala v. Mead,



                                                  2
178 S.W.3d 66, 76 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (courts are “bound by the

express provisions of statute” and it is “the province of the legislature—not this court—to provide

for extensions or grace periods regarding [120 day] deadline”). Further, “[i]t is well settled that a

health care liability claim cannot be recast as another cause of action to avoid the requirements of

[chapter 74].” Rubio, 185 S.W.3d at 851; see Wheatley, 287 S.W.3d at 290-92, 294 (claims asserted

in plaintiff’s amended petition “for intentional, reckless and negligent bodily injury” and “failing to

provide . . . adequate supervision” were dismissed as attempts to recast health care claims in prior

pleadings). “This is true even where a plaintiff attempts to completely abandon its health care

liability claims in favor of alternative claims.” Wheatley, 287 S.W.3d at 291; see Kidd, 214 S.W.3d

at 32, 37 (following motion to dismiss, plaintiff non-suited medical malpractice claims and

amended petition to assert negligent hiring, gross negligence, sexual assault, sexual exploitation, and

premises liability claims; court held that claims were in essence health care liability claims subject

to dismissal).

                 In his original petition, Drewery’s claims focus on the individual appellees’ actions

taken prior to and during surgery, and he claims damages based upon the individual appellees’ duties

and their roles as health care providers, their knowledge of risks based upon their medical or health

care training, and “proper surgery practices/patient care.” Specifically, Drewery complains that his

fingernails and toenails were painted with pink polish, and that his feet were marked with a marker

and his thumb taped. These intentional assaults, Drewery asserts, were committed by the appellees

despite “the extreme degree of risk these actions created for a patient.” Similarly, in regard to his




                                                   3
claim for intentional infliction of emotional distress, Drewery alleged that appellees were liable for

their conduct in damages in part because


        these actions were taken either prior to or during a surgical procedure in which
        Plaintiff was given anesthesia. During this type of surgical procedure, it is
        imperative for the treating surgeons, nurses and staff conducting the procedure to be
        able to see the patient’s fingernails and toenails (to determine if cyanosis is present),
        and with them covered in pink polish this was not possible. During the surgery, any
        number of serious or lethal events could have happened, but the surgeons, nurses and
        staff would have missed the indications because Plaintiff’s nails were painted and in
        fact, post-surgery, Plaintiff did develop a surgical hemorrhage, which required
        emergency surgery to control the bleeding. Each and every assault committed prior
        to this second surgery, including the paint on the nails, the writing on the feet and the
        tape on the thumb created an extreme degree of risk for the Plaintiff during the
        second surgery. All Defendants had actual subjective awareness of the risks involved
        as each one was licensed or certified in their area of practice and was trained in
        proper surgery practices/patient care.


He further sought exemplary damages based upon appellees’ “gross negligence.” Then, when faced

with a motion to dismiss pursuant to chapter 74, and after the time for filing an expert report had

expired, Drewery amended. When he did so, Drewery maintained the same underlying claims of

assault and intentional infliction of emotional distress, but deleted references to the health risks

caused by the individual appellees, their departures from accepted standards of care, and their gross

negligence. Drewery also provided argument as to why his claims were not, and were never intended

to be, health care liability claims, yet the crux of his claims arises from the same underlying and

singular factual scenario. See Ollie, slip op. at 2, 4-5.

                Because I would conclude that Drewery alleged health care liability claims in the only

petition that he filed during the statutory deadline for filing an expert report and then improperly

attempted to recast those claims in his amended petition to avoid the expert-report requirement, I

                                                   4
would affirm the trial court’s order dismissing Drewery’s claims with prejudice. Because the

majority does not, I respectfully dissent.



                                       __________________________________________

                                       Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Filed: May 20, 2011




                                                5
