                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-303-CV


MIKE NORGAARD, LPC AND                                            APPELLANTS
RIVERBEND BEHAVIORIAL
HEALTHCARE ASSOCIATES, P.A.

                                       V.

CHERYL LOCKE PINGEL                                                  APPELLEE

                                   ------------

           FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

      Appellants Mike Norgaard, LPC and Riverbend Behavioral Healthcare

Associates, P.A. appeal from the trial court’s denial of their motion to dismiss

Appellee Cheryl Locke Pingel’s claims against them. Because we hold that

Pingel was required to provide an expert report in compliance with section

74.351 of the Texas Civil Practice and Remedies Code, 1 we reverse.


      1
          … Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2008).
       Norgaard is a licensed professional counselor (“LPC”). Riverbend is a

professional association of licensed professional counselors that employs

Norgaard.

       On July 30, 2005, Pingel went to Harris Methodist Southwest Hospital

(“the hospital”) complaining of abdominal pain and vomiting.       While at the

hospital, she also complained of a loss of control and jerking movements of her

right arm and leg.    She was ultimately discharged with medication for her

abdominal symptoms after the examining doctor determined that her abdominal

symptoms were “of uncertain etiology.”

       On August 4, 2005, Pingel returned to the hospital complaining that her

symptoms had worsened and that she had developed headaches and was

having trouble speaking and expressing her thoughts. A doctor examined her

and ordered several tests. As part of Pingel’s examination, Norgaard performed

a consultation, conducting a psychiatric and chemical dependency screening of

her.   This screening included evaluating her memory and speech.            The

examining doctor, Dr. Cochrum, ultimately assessed her condition as a

“neurological spell” of unknown origin and sent Pingel home.

       Pingel subsequently filed suit against Norgaard and Riverbend, as well as

various hospital doctors and nurses, after she experienced a stroke and suffered

brain damage. Norgaard and Riverbend filed a motion to dismiss when Pingel

                                       2
did not serve them with an expert report within the statutory deadline provided

by section 74.351.     The trial court denied the motion, and Norgaard and

Riverbend brought this appeal.2

      We review for abuse of discretion a trial court’s denial of a motion to

dismiss under section 74.351.3 To determine whether a trial court abused its

discretion, we must decide whether the trial court acted without reference to

any guiding rules or principles; in other words, we must decide whether the act

was arbitrary or unreasonable.4

      In their sole issue, Norgaard and Riverbend argue that the trial court

abused its discretion by denying their motion to dismiss because they are health

care providers, and therefore Pingel was required to serve an expert report as

to both Norgaard and Riverbend. Section 74.351 requires a plaintiff asserting

a health care liability claim to serve on each party one or more expert reports

for each physician or health care provider against whom the plaintiff has




      2
      … See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon 2008),
§ 74.351(b).
      3
      … Moore v. Gatica, 269 S.W.3d 134, 139 (Tex. App.—Fort Worth
2008, pet. denied).
      4
       … Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985), cert. denied, 476 U.S. 1159 (1986).

                                       3
asserted a claim.5 If, as to a defendant physician or health care provider, no

expert report is served within 120 days after the plaintiff filed her original

petition, the defendant may move to dismiss the plaintiff’s claim; the trial court

must grant this motion.6

      A health care liability claim is a claim “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.” 7 The term “health care provider” includes

“any person, partnership, professional association, corporation, facility, or

institution duly licensed, certified, registered, or chartered by the State of Texas

to provide health care.” 8

      In her petition, Pingel does not appear to question that she is asserting a

health care liability claim. Her petition begins by stating that “[t]his is a medical

malpractice action” and that she is seeking to recover damages “arising from

the Defendants’ medical, nursing, and health care diagnosis, assessment, care


      5
          … Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).
      6
          … Id. § 74.351(b).
      7
          … Id. § 74.001(13) (Vernon 2005).
      8
          … Id. § 74.001(12)(A).

                                         4
and treatment of her conditions.” Norgaard and Riverbend were included in her

use of the term “Defendants.”

      In her specific claims against Norgaard, Pingel alleges that Norgaard was

“negligent in the [LPC] diagnosis, assessment, care and treatment of [Pingel]

in that Norgaard failed to meet the reasonable, prudent, and accepted standards

of [LPC] and/or health care applicable to him.” She alleges that as an LPC, he

failed to provide timely, proper, and adequate “diagnosis and assessment” of

her “illnesses, injuries, and/or conditions.” She further alleges that he failed to

provide adequate LPC “and/or health care assessment, testing, evaluation, care

and/or therapy for her illnesses, injuries, and/or conditions.”

      As for Riverbend, Pingel alleges that it was negligent in the “medical

and/or health care diagnosis, assessment, care and treatment” of her. She

asserted that it was vicariously liable for the acts of its employees or agents for

a failure to meet standards of “health care.” She also asserts that Riverbend

was directly liable in connection with her diagnosis, assessment, testing,

evaluation, care, and treatment.

      And, finally, Pingel acknowledges that Norgaard evaluated Pingel after Dr.

Cochrum ordered a consultation, specifically, a “psychiatric and chemical

dependency screening evaluation and assessment,” and that Norgaard

conducted that screening using a “Psychiatric and Chemical Dependency

                                        5
Screening and Referral Form.” At the hearing on the motion to dismiss, Pingel’s

attorney stated that Norgaard “should have recognized that [Pingel] was having

some underlying problems that he could not deal with, and she needed to be re-

evaluated further by the medical doctors.” The acts of Norgaard in assessing

and evaluating Pingel were clearly an inseparable part of the rendition of

medical services to Pingel on August 4, 2005. Thus, Pingel’s claims based on

Norgaard’s acts or omissions in conducting the screening are health care liability

claims.9

      Despite the language used in her petition, Pingel asserts that Norgaard is

not a health care provider and therefore no expert report was necessary. As

explained below, however, an LPC fits within the statute’s definition of a

“health care provider.”

      The term “health care provider” is defined in section 74.001 of the civil

practice and remedies code.10 The definitions in that section are somewhat

circular in that “health care provider” is essentially defined as one licensed to


      9
        … See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848
(Tex. 2005) (“A cause of action alleges a departure from accepted standards
of medical care or health care if the act or omission complained of is an
inseparable part of the rendition of medical services.”); Harris Methodist Fort
Worth v. Ollie, 270 S.W.3d 720, 723 (Tex. App.—Fort Worth 2008, pet. filed)
(“If the act or omission alleged in the complaint is an inseparable part of the
rendition of health care services, then the claim is a health care liability claim.”).
      10
           … Tex. Civ. Prac. & Rem. Code Ann. § 74.001(12)(A).

                                          6
provide “health care,” 11 and “health care” is defined as an act or treatment

performed by a “health care provider” during a patient’s medical care. 12 Section

74.001(12)(B)(ii) states that the term “health care provider” includes “an

employee, independent contractor, or agent of a health care provider or

physician acting in the course and scope of the employment or contractual

relationship.” 13 But neither party addressed and the record does not establish

Norgaard’s relationship with the hospital or Dr. Cochrum, so we cannot

determine if Norgaard fits within that part of the definition.14 Turning to the

another part of the definition, we find some guidance from the inclusion of the

words “licensed, certified, or registered or chartered . . . to provide health care”

in the definition of “health care provider.” 15




      11
           … Id.
      12
           … Id. § 74.001(10).
      13
           … Id. § 74.001(12)(B)(ii).
      14
        … See Brown v. Villegas, 202 S.W.3d 803, 806 (Tex. App.—San
Antonio 2006, no pet.) (holding that laboratory could not rely on status as
independent contractor to a doctor to qualify as a health care provider when
record did not contain any evidence establishing an independent contractor
relationship).
      15
           … Id.

                                         7
      The State of Texas requires LPCs to be licensed.16       By statute, the

practice of an LPC includes the planning, implementing, and evaluation of

treatment plans using “counseling treatment interventions” that include

counseling, assessment, and consulting.17      The term “counseling treatment

intervention” expressly “does not permit or include the diagnosis or treatment

of a physical condition or disorder.” 18 The term “assessment” expressly does

not permit “the diagnosis of a physical condition or disorder.” 19 Thus, an LPC

may not diagnose or treat a physical condition or disorder.      But the term

“counseling treatment intervention” does include “the assessment, evaluation,

and treatment of a person with a mental, emotional, or behavioral disorder.” 20

And the statute expressly provides that an LPC’s practice may include the

prevention, assessment, evaluation, and treatment of “mental, emotional, or

behavioral disorders and associated distresses that interfere with mental




      16
           … Tex. Occ. Code Ann. § 503.301 (Vernon 2004).
      17
           … Id. § 503.003(a) (Vernon 2004).
      18
           … Id. § 503.003(b)(4).
      19
           … Id. § 503.003(b)(1).
      20
           … Id. § 503.003(b)(4)(C) (emphasis added).

                                        8
health.” 21    Thus, an LPC may evaluate and treat a mental, emotional, or

behavioral, but not physical, disorder.22

      Health care includes the care of mental conditions. 23 Because LPCs are

licensed to treat mental or emotional conditions that interfere with mental

health, and are therefore licensed to provide health care, LPCs are health care

providers under the statute.24 Because Pingel’s suit involves an LPC acting in

his capacity as a health care provider, specifically in his psychiatric and

chemical dependency assessment and evaluation of her,25 Pingel was required




      21
           … Id. § 503.003(a)(2).
      22
           … Id. § 503.003(b)(4)(C).
      23
        … See id. § 151.002 (13) (Vernon Supp. 2008) (defining “practicing
medicine” to include “the diagnosis, treatment, or offer to treat a mental or
physical disease or disorder”) (emphasis added); Tex. Health & Safety Code
Ann. § 166.002(7) (Vernon Supp. 2008) (regulating advance directives and
defining “health care or treatment decision” as “consent, refusal to consent, or
withdrawal of consent to health care, treatment, service, or a procedure to
maintain, diagnose, or treat an individual’s physical or mental condition”);
Diversicare, 185 S.W.3d at 850 (noting that health care staff make judgments
about the care, treatment, and protection of patients “based on the mental and
physical care the patients require”) (emphasis added).
      24
           … See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(10).
      25
         … See Tex. Occ. Code Ann. § 503.003(a)(2) (including within the
definition of “practice of professional counseling” the assessment and
evaluation of “mental, emotional, or behavioral disorders and associated
distresses that interfere with mental health”).

                                       9
to provide an expert report as to Norgaard.26 Because she failed to do so, the

trial court abused its discretion by failing to grant Norgaard’s motion to

dismiss.27

      We recognize that the Austin Court of Appeals has held that an LPC is

not a “health care provider.” 28    But that case arose under the predecessor

statute to section 74.351, and that statute applied only to the professions

specifically named in the statute as “health care provider[s].” 29       Under the

current version of the statute, the list of professions expressly included in the

definition of “health care provider” is nonexclusive. 30 Accordingly, Grace is

inapplicable here.

      As for Riverbend, Pingel’s claims allege that it was both directly and

vicariously liable for its negligence in the “medical and/or health care” diagnosis,




      26
           … See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b).
      27
           … See id.
      28
        … Grace v. Colorito, 4 S.W.3d 765, 769 (Tex. App.—Austin 1999, pet.
denied).
      29
           … See id.
      30
       … See Christus Health v. Beal, 240 S.W.3d 282, 286 (Tex.
App.—Houston [1st Dist.] 2007, no pet.); Skloss v. Perez, No.
01-08-00484-CV, 2009 WL 40438, at *6 (Tex. App.—Houston [1st Dist.] Jan
8, 2009, no pet.) (mem. op.) (concluding that LPC defendant was a health care
provider).

                                        10
assessment, and treatment of her. With respect to her vicarious liability claims,

Pingel alleges that Riverbend is liable for the acts of its “shareholder(s),

director(s), or officer(s) or employee(s) or agent(s) or servant(s)” acting in the

course and scope of their “applicable capacities.”      Norgaard was the only

person associated with Riverbend specifically named by Pingel. But because

the claims against Norgaard should have been dismissed for failure to file an

expert report, any claim holding Riverbend vicariously liable for Norgaard’s

actions should have been dismissed as well. 31

      As for her direct liability claims, those claims, too, required an expert

report. A professional association fits within the definition of a health care

provider.32   In this case, Pingel alleges that Riverbend is a professional


      31
         … Compare In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 463–64
(Tex. 2008) (stating that vicarious liability claim against hospital based on
doctor’s acting as agent of hospital was viable only if doctor was negligent, and
thus the claim had to be supported by an expert report), with Univ. of Tex. Sw.
Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.—Dallas 2006, no pet.)
(holding that expert report is sufficient as to hospital if it is sufficient as to
resident physicians because plaintiff’s claims sought to hold hospital vicariously
liable for actions of resident physicians).
      32
        … See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(12)(A) (providing
that term “health care provider” includes “any . . . professional association . .
. registered . . . to provide health care”); see also Tex. Rev. Civ. Stat. art.
1528f, §2(B)(2), (3) (authorizing the formation of a professional association by
physicians and by “[p]rofessionals, other than physicians, engaged in related
mental health fields such as psychology, clinical social work, licensed
professional counseling, and licensed marriage and family therapy”); Tex. Bus.
Orgs. Code Ann. § 301.003(2)A) (Vernon 2008) (defining “professional

                                       11
association of LPCs, and LPCs are licensed mental health professionals.33 LPCs

are health care providers, and therefore Riverbend is a health care provider. 34

Furthermore, Pingel has asserted health care liability claims against Riverbend

by alleging that it “failed to timely, properly, safely, or adequately govern or

supervise the quality of medical and health care services to and for” Pingel and

that it departed from “reasonable, prudent and accepted standards of licensed

professional counselors’ professional association care and/or health care” in its

“diagnosis, assessment, testing, evaluation, care and treatment of [Pingel’s]

illnesses, injuries, and/or conditions.” 35 Pingel therefore was required to provide

an expert report for any direct liability claims asserted against Riverbend. 36

Because she did not do so, the trial court abused its discretion by denying

Riverbend’s motion to dismiss.37



association” as an association formed to provide the services of “a doctor of
medicine, doctor of osteopathy, doctor of podiatry, dentist, chiropractor,
optometrist, therapeutic optometrist, veterinarian, or licensed mental health
professional”).
      33
           … See Tex. Occ. Code Ann §§ 503.001, 503.301.
      34
           … See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(12)(A).
      35
           … See id. § 74.001(10).
      36
       … Id. § 74.351(a); see also Ctr. For Neurological Disorders, P.A. v.
George, 261 S.W.3d 285, 294 (Tex. App.—Fort Worth 2008, pet. denied).
      37
           … Tex. Civ. Prac. & Rem. Code Ann § 74.351(b).

                                        12
      Pingel argues in her brief that the trial court properly denied the motion

to dismiss because section 74.351 violates her rights under both the United

States Constitution and the Texas Constitution.          She fails to make any

argument as to why this statute is unconstitutional and cites no authority in

support. Accordingly, we overrule her argument as inadequately briefed.38 We

sustain Norgaard and Riverbend’s sole isssue.

      Having sustained Norgaard and Riverbend’s issue, we reverse the trial

court’s determination that no expert report was required. However, because

this case involves a matter of first impression in this court as well as an

unsettled area of law, we remand this case in the interest of justice for the trial

court to allow Pingel to file an expert report.39




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.


      38
           … See Tex. R. App. P. 38.1(i).
      39
          … See Tex. Civ. Prac. & Rem. Code Ann § 74.351(a); Tex. R. App. P.
43.3; In re Doe, 19 S.W.3d 249, 257 (Tex. 2000) (remanding in the interest
of justice when case involved matter of first impression); Scott Bader, Inc. v.
Sandstone Prods., Inc., 248 S.W.3d 802, 822 (Tex. App.—Houston [1st Dist.]
2008, no pet.) (“Appellate courts have broad discretion to remand for a new
trial in the interest of justice.”).

                                        13
WALKER, J. concurs without opinion.

DELIVERED: August 31, 2009




                                  14
