AFFIRMED; Opinion Filed March 26, 2019.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00749-CV

THELMA HACKWORTH AND CARYL NEAL, AS NATURAL PARENTS/SURVIVORS
           FOR CARYLETTE DESHUN NEAL, DECEASED, Appellants
                                   V.
FRESENIUS MEDICAL CARE NORTH AMERICA, D/B/A/ FRESENIUS SOUTH OAK
   CLIFF DIALYSIS CENTER; AND JANE/JOHN DOE, INDIVIDUALLY, AND AS
  OWNERS’/EMPLOYEES’ OF FRESENIUS MEDICAL CARE NORTH AMERICA,
            D/B/A/ SOUTH OAK CLIFF DIALYSIS CENTER, Appellees

                       On Appeal from the 14th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-17-16081

                             MEMORANDUM OPINION
                      Before Justices Bridges, Partida-Kipness, and Carlyle
                               Opinion by Justice Partida-Kipness
        Appellants Thelma Hackworth and Caryl Neal, as natural parents/survivors for Carylette

DeShun Neal appeal the trial court’s granting of the motion to dismiss filed by appellees Fresenius

Medical Care North America d/b/a Fresenius South Oak Cliff Dialysis Center and Jane/John Doe,

individually and as owners/employees of Fresenius Medical Care North America d/b/a South Oak

Cliff Dialysis Center (collectively, “Fresenius”).

                                        BACKGROUND

       On January 9, 2013, Carylette DeShun Neal signed an “Informed Consent for

Hemodialysis Treatment.” On November 27, 2015, Carylette received dialysis at the South Oak
Cliff Dialysis Center. Following dialysis, Carylette had a “seizure like episode with an apneic

period lasting 10-15 seconds.” Paramedics were called and they described Carylette as “not

coherent with significant bleeding from a busted (sic) shunt.” Carylette was transferred to

Methodist Dallas Medical Center where it was discovered that she had suffered bilateral hip

fractures from the fall at the dialysis center. Carylette underwent surgery for the hip fractures and

was eventually discharged to a rehabilitation facility.

        On November 21, 2017, Carylette filed a petition against Fresenius alleging claims for

negligence, negligence per se, negligent hiring and retention, and respondeat superior. Following

Carylette’s death on January 20, 2018, her parents (Thelma Hackworth and Caryl Neal) filed an

amended petition against Fresenius as the natural parents and survivors of Carylette.

        On April 25, 2018, Fresenius filed a motion to dismiss because plaintiffs failed to serve an

expert report and curriculum vitae as required by Chapter 74 of the Texas Civil Practice and

Remedies Code (the Act). The trial court granted the motion to dismiss. Hackworth and Neal then

filed this appeal.

                                            ANALYSIS

        In their sole issue, appellants argue that the trial court erred in dismissing their claims

because an expert report is not required in a medical malpractice case based solely on a cause of

action for a physician’s alleged failure to disclose the risks and hazards of medical care. We

disagree.

        A.      Standard of Review

        An appellate court reviews a trial judge’s decision on a motion to dismiss a claim under

section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of discretion. See

Wilson N. Jones Mem’l Hosp. v. Ammons, 266 S.W.3d 51, 55 (Tex. App.—Dallas 2008, pet.




                                                –2–
denied). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without

reference to guiding rules or principles. Id.

       B.      Health Care Liability Claim

       A plaintiff who files a health care liability claim must file an expert report within 120 days

of filing suit. See TEX. CIV. PRAC. & REM. CODE § 74.351(a). An expert report must provide the

expert’s opinion as to the applicable standards of care, the manner in which the care rendered by

the physician or health care provider failed to meet the standards, and the causal relationship

between that failure and the claimed injury. Id. § 74.351(r)(6). If the claimant does not provide

an expert report as required, the trial court shall, upon motion by the defendant, dismiss the claim

with prejudice. Id. § 74.351(b).

       C.      Informed Consent Case

       The sole issue presented on appeal is whether a Chapter 74 expert report is required in an

informed consent case. Appellants argue that their informed consent claim was not subject to the

expert report requirements of Section 74.351(a) because of the presumption applicable to such a

claim under Section 74.106(a)(2):

       (a) In a suit against a physician or health care provider involving a health care
       liability claim that is based on the negligent failure of the physician or health care
       provider to disclose or adequately disclose the risks and hazards involved in the
       medical care or surgical procedure rendered by the physician or health care
       provider:

       (2) failure to disclose the risks and hazards involved in any medical care or surgical
       procedure required to be disclosed under Sections 74.104 and 74.105 shall be
       admissible in evidence and shall create a rebuttable presumption of a negligent
       failure to conform to the duty of disclosure set forth in Sections 74.104 and 74.105,
       and this presumption shall be included in the charge to the jury; but failure to
       disclose may be found not to be negligent if there was an emergency or if for some
       other reason it was not medically feasible to make a disclosure of the kind that
       would otherwise have been negligence.




                                                 –3–
See TEX. CIV. PRAC. & REM. CODE § 74.106(a)(2). Appellants argue that expert reports are

unnecessary in cases when disclosures are required.1

         We disagree with appellants’ argument for several reasons. First, the Texas Supreme Court

has held that an action alleging a physician’s failure to inform a patient fully of the risks of surgery

is a negligence claim governed by the procedural requirements of the Act. McKinley v. Stripling,

763 S.W.2d 407, 409–10 (Tex. 1989) (addressing TEX. REV. CIV. STAT. art. 4590i, the predecessor

statute to the Act). Expert testimony is necessary, even in a failure-to-disclose action, because

proximate cause remains an issue that must be proven by a plaintiff in such a case:

         Traditional notions of liability in negligence actions require a finding of a duty, a
         breach of that duty, the breach was a proximate cause of injuries, and that damages
         occurred. A medical procedure informed consent case does not differ merely
         because a statute imposes the duty of disclosure. An issue on proximate causation
         must be submitted as in ordinary negligence cases so the jury may determine
         whether any breach of duty caused the injuries suffered. To hold otherwise would
         amount to an imposition of strict liability wherein a failure to warn and an
         undesirable surgical result would automatically create liability on the doctor.

Id. at 409 (internal citations omitted). In addition, there is a considerable amount of case law from

this Court stating that an “allegation of lack of informed consent requires an expert report setting

forth the standard of care, how the standard of care was breached, and how the injury complained

of was caused by the undisclosed risk.” See Peloza v. Cuevas, 357 S.W.3d 200, 204 (Tex. App.—

Dallas 2012, no pet.); see also Hollingsworth v. Springs, 353 S.W.3d 506, 522 (Tex. App.—Dallas

2011, no pet.); Greenberg v. Gillen, 257 S.W.3d 281, 283 (Tex. App.—Dallas 2008, pet.

dismissed); Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 922 (Tex. App.—Dallas 2007, pet.

denied).




    1
       We note that appellants have not cited any case law in support of their assertion that the rebuttable presumption
described in section 74.106(a)(2) creates an exception to the statutory requirement that a plaintiff in a health care
liability case must serve an expert report.
                                                         –4–
        Further, we note that the principles of McKinley have been specifically applied to a required

disclosure claim raised under section 74.106(a)(2). See Tien v. Alappatt, No. 01-10-00072-CV,

2010 WL 4056850, *2–3 (Tex. App.—Houston [1st Dist.] Oct. 14, 2010, pet. denied) (mem. op.).

In Tien, the patient received an injection from a doctor to anesthetize his right eye prior to a

scheduled pan-retinal photocoagulation (PRP procedure). Id. at *1. The doctor did not advise the

patient or have him sign anything to let him know that he could have a loss of vision from the

procedure. Id. The patient allegedly lost all vision in his right eye when the injection was

administered and filed a health care liability claim against the doctor. Id. He filed an expert report

but the doctor alleged that it was insufficient and filed a motion to dismiss. Id. On appeal, the

appellant argued that he did not need to submit an expert report at all because the PRP procedure

“is a surgery that the Panel determined required disclosure, no expert report is required and that a

rebuttable presumption is thereby created that [the doctor] was negligent by failing to disclose the

risks.” Id. at *3. The First District Houston Court of Appeals concluded that because “causation

was an issue to be determined in Tien’s cause of action, section 74.106 did not relieve him of

timely filing the required expert report” and held that the trial court did not abuse its discretion in

dismissing the lawsuit. Id. Similar to Tien, appellants in this case assert that no expert report is

needed because Carylette’s medical procedure required certain disclosures. As in Tien, proximate

cause is an issue in this case that must be proven by the plaintiff. Id.; McKinley, 763 S.W2d at

409. As causation was an issue to be determined in Carylette’s cause of action, appellants were

not relieved from timely filed an expert report in this case.

        We note one additional distinction in this case in support of our conclusion—Carylette did

sign an extensive informed consent for her hemodialysis.2 Although the pleadings describe the



    2
     The informed consent for hemodialysis treatment included an acknowledgement of the following risks: low
blood pressure, high blood pressure, significant blood loss, air embolisms, hemolysis, graft/fistula infiltrations,

                                                       –5–
complications which arose from Carylette’s dialysis treatment, they do not specify which specific

risk was not disclosed to her. Without an expert report clarifying which risk was not disclosed to

Carylette and how that lack of disclosure lead to an injury, appellants have failed to comply with

the requirements of Section 74.351(a).

        For these reasons, we overrule appellants’ sole issue.

                                               CONCLUSION

        On the record of this case, we affirm the trial court’s judgment.



                                                              /Robbie Partida-Kipness/
                                                              ROBBIE PARTIDA-KIPNESS
                                                              JUSTICE



180749F.P05




infections, chemical imbalances and metabolic disorders, decreased blood flow to limbs, decreased blood flow through
access, allergic reactions, pyrogenic reactions, hyperkalemia, hypokalemia, and loss of amino acids/protein.
                                                       –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 THELMA HACKWORTH AND CARYL                           On Appeal from the 14th Judicial District
 NEAL, AS NATURAL PARENTS I                           Court, Dallas County, Texas
 SURVIVORS FOR CARYLETTE                              Trial Court Cause No. DC-17-16081.
 DESHUN NEAL, DECEASED, Appellants                    Opinion delivered by Justice Partida-
                                                      Kipness. Justices Bridges and Carlyle
 No. 05-18-00749-CV          V.                       participating.

 FRESENIUS MEDICAL CARE NORTH
 AMERICA, D/B/A/ FRESENIUS SOUTH
 OAK CLIFF DIALYSIS CENTER; AND
 JANE/JOHN DOE, INDIVIDUALLY,
 AND AS OWNERS’/EMPLOYEES’ OF
 FRESENIUS MEDICAL CARE NORTH
 AMERICA, D/B/A/ FRESENIUS SOUTH
 OAK CLIFF DIALYSIS CENTER,
 Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellees FRESENIUS MEDICAL CARE NORTH AMERICA,
D/B/A/ FRESENIUS SOUTH OAK CLIFF DIALYSIS CENTER; AND JANE/JOHN DOE,
INDIVIDUALLY, AND AS OWNERS'/EMPLOYEES' OF FRESENIUS MEDICAL CARE
NORTH AMERICA, D/B/A/ FRESENIUS SOUTH OAK CLIFF DIALYSIS CENTER recover
their costs of this appeal from appellants THELMA HACKWORTH AND CARYL NEAL, AS
NATURAL PARENTS I SURVIVORS FOR CARYLETTE DESHUN NEAL, DECEASED.


Judgment entered this 26th day of March 2019.




                                                –7–
