                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION

                                         No. 04-18-00429-CV

                                     Benjamin Scott ZERTUCHE,
                                              Appellant

                                                   v.

                                Chelsae WESSELS and Joey Urrabazo,
                                            Appellees

                    From the 218th Judicial District Court, Atascosa County, Texas
                                  Trial Court No. 13-10-0938-CVA
                             Honorable Karen H. Pozza, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: November 14, 2018

DISMISSED WITH PREJUDICE IN PART; REMANDED

           This is an interlocutory appeal from the trial court’s order ruling on a physician’s motion

to dismiss health care liability claims against him. Because the claims based on the set of facts

relating to medical care were health care liability claims (HCLCs), and the plaintiffs did not timely

serve an expert report, the HCLCs should have been dismissed. The claims based on the other set

of facts—distinguishable by time and nature—are not subject to dismissal for lack of an expert

report.
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                                          BACKGROUND

       In conjunction with his divorce proceeding, Appellant Dr. Benjamin S. Zertuche sued

Appellee Chelsae Wessels, his former mistress, for nine causes of action related to a health care

business.

       Wessels counterclaimed against Dr. Zertuche, a physician trained in obstetrics and

gynecology, for assault, intentional infliction of emotional distress, and loss of consortium. Joey

Urrabazo, who married Wessels in June 2016, sued Dr. Zertuche for intentional infliction of

emotional distress and loss of consortium. To support their tort claims, Wessels and Urrabazo

alleged facts spanning several years.

       In 2009, shortly after Wessels began an intimate relationship with Dr. Zertuche, she

became pregnant with Dr. Zertuche’s child. Dr. Zertuche did not want the child, intentionally

misinformed Wessels about the health of her unborn child, performed medical tests and treatments

on her, and eventually subjected her to an abortion.

       In January 2012, Dr. Zertuche violently pushed her onto a bed, pinned her down, and

threatened her with violence. In February 2012, Dr. Zertuche held her in his vehicle for over five

hours, smashed her head into the dashboard and the vehicle’s window, and again threatened her.

And in January 2014, Dr. Zertuche screamed at her, slammed her head against the wall, hit her

head, grabbed her by the face, yelled directly into her ears, and threatened her with violence.

       Dr. Zertuche filed a motion to dismiss their claims. He argued the claims were health care

liability claims (HCLCs), and because Wessels did not serve the required expert report, the trial

court was required to dismiss the claims with prejudice and award him reasonable attorney’s fees

and costs of court.




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       Without dismissing any of the claims, the trial court granted the motion to dismiss but

denied Dr. Zertuche attorney’s fees because “none of the claims alleged malpractice under the

[Texas Medical Liability] Act.”

       Dr. Zertuche appeals.

                                     STANDARDS OF REVIEW

       “We generally review a trial court’s ruling on a motion to dismiss a health care liability

claim for an abuse of discretion.” PHCC—La Hacienda Rehab. & Health Care Ctr. LLC v. Crume,

492 S.W.3d 797, 800 (Tex. App.—Houston [1st Dist.] 2016, no pet.); see Schwartz v. Fipps, 553

S.W.3d 549, 552 (Tex. App.—San Antonio 2018, no pet.). But determining whether a “claim is a

health care liability claim is a question of law we review de novo.” See Bioderm Skin Care, LLC

v. Sok, 426 S.W.3d 753, 757 (Tex. 2014) (citing Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d

171, 177 (Tex. 2012)).

                               HEALTH CARE LIABILITY CLAIMS

A.     Definition

       The Texas Medical Liability Act (TMLA) defines a health care liability claim:

       [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.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13); see Loaisiga v. Cerda, 379 S.W.3d 248, 255

(Tex. 2012) (listing the elements of an HCLC).

B.     Claim Splitting Prohibited

       The Texas Supreme Court has “determined that a claim based on one set of facts cannot be

spliced or divided into both an HCLC and another type of claim.” Loaisiga, 379 S.W.3d at 255



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(citing Yamada v. Friend, 335 S.W.3d 192, 197 (Tex. 2010)). Loaisiga explained this claim-

splitting prohibition further:

        [C]laims premised on facts that could support claims against a physician or health
        care provider for departures from accepted standards of medical care, health care,
        or safety or professional or administrative services directly related to health care
        are HCLCs, regardless of whether the plaintiff alleges the defendant is liable for
        breach of any of those standards.

Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13)).

        “[P]ermitting the same underlying facts to give rise to both types of claims would

effectively negate the procedures and limitations of the TMLA.” Turtle Healthcare Grp., L.L.C.

v. Linan, 337 S.W.3d 865, 868 (Tex. 2011) (per curiam) (citing Yamada, 335 S.W.3d at 196–97).

Thus, “[w]hen a plaintiff asserts a claim that is based on the same underlying facts as an HCLC

that the plaintiff also asserts, both claims are HCLCs and must be dismissed if the plaintiff fails to

produce a sufficient expert report.” PM Mgmt.-Trinity NC, LLC v. Kumets, 404 S.W.3d 550, 552

(Tex. 2013) (per curiam); accord Loaisiga, 379 S.W.3d at 255; Yamada, 335 S.W.3d at 196–97.

C.      Prohibition Based on One Set of Facts

        The claim-splitting prohibition is addressed in cases where “the gravamen or essence of a

cause of action is a health care liability claim.” E.g., Yamada, 335 S.W.3d at 197 (citing

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 854 (Tex. 2005)) (proscribing claim

splitting for HCLCs). The prohibition applies when the claims are “based on one set of facts,”

Loaisiga, 379 S.W.3d at 255, “based on the same factual allegations,” Kumets, 404 S.W.3d at 552,

or “based on the same underlying facts,” Turtle Healthcare, 337 S.W.3d at 868; Yamada, 335

S.W.3d at 193.




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                                 WESSELS’S ASSAULT, IIED CLAIMS

        In his first issue, Dr. Zertuche argues the trial court erred by not dismissing Wessels’s

assault and intentional infliction of emotional distress (IIED) claims because the claims are HCLCs

and it is undisputed that no expert report was served.

        Wessels contends her claims should not be dismissed because they are not HCLCs. In her

view, she has not alleged HCLCs because she does not assert that Dr. Zertuche departed from any

accepted standards of care, and she only included the medical care facts to show Dr. Zertuche’s

history of dealing with her and as a defense for his claims pertaining to the health care business.

A.      Pregnancy, Abortion Facts

        Wessels’s first set of alleged facts occurred in July–August 2009 and the facts pertain to

her pregnancy and abortion. 1 She alleges that in July 2009, after she told Dr. Zertuche she was

pregnant with his child, he told her he felt the baby was not healthy. He intentionally misled her

about the condition of her unborn child and falsely stated she had undergone a “missed abortion.”

He ordered medical tests to determine her pregnancy hormone levels, and despite the normal test

results, he told her the unborn child was not healthy. He administered injections and oral

medications that he told her would improve her hormone levels, but he later admitted the injections

and medications were intended to induce a miscarriage or abortion.

        Dr. Zertuche convinced Wessels to stop seeing her physician and entrust him with her

medical care, which she did. Dr. Zertuche performed an ultrasound on Wessels. Although he told

her at the time that the baby no longer had a heartbeat and the pregnancy was no longer viable, he

later admitted he turned off the sound and held the ultrasound wand to make it appear as if the

baby had no heartbeat.


1
 Paragraphs 24–39 of Defendants’ First Amended Answer to Third Amended Third Party Petition and Counterclaim
are the principal paragraphs that recite the facts pertaining to Wessels’s pregnancy and abortion.

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       On the morning of August 28, 2009, Dr. Zertuche took Wessels to a hospital, admitted her,

performed an abortion, and then discharged her.

B.     Pregnancy, Abortion Facts Support HCLC

       Dr. Zertuche argues that the facts Wessels alleges could support an HCLC. With respect

to the pregnancy and abortion facts, we agree.

       First, it is undisputed that Dr. Zertuche is a physician. See Loaisiga, 379 S.W.3d at 255

(stating the first element is “the defendant is a health care provider or physician”). Second,

Wessels supports her assault claim with facts pertaining to how Dr. Zertuche diagnosed her

pregnancy, treated her “missed abortion,” and performed medical tests and procedures on her. See

id. (stating the second element pertains to “treatment, lack of treatment, or other claimed departure

from accepted standards of medical care”). Third, Wessels’s facts could support a claim that Dr.

Zertuche “depart[ed] from accepted standards [and] proximately caused [her] injury.” See id.

(third element).

       Even though Wessels expressly states she is not alleging Dr. Zertuche departed from

accepted standards of care, her statement does not prevent her assault claim from being an HCLC.

See id. (“[C]laims premised on facts that could support claims against a physician . . . for

departures from accepted standards of medical care . . . are HCLCs, regardless of whether the

plaintiff alleges the defendant is liable for breach of any of those standards.”). Wessels’s

pregnancy and abortion facts could support an HCLC, and thus her assault and IIED claims based

on the pregnancy and abortion facts are HCLCs. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.001(a)(13) (HCLC definition); Loaisiga, 379 S.W.3d at 255.




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C.     Family Violence Facts

       Wessels’s second set of alleged facts are separated by time and nature from her pregnancy

and abortion facts. This separate set of facts—which occurred in January and February of 2012,

and in January of 2014—pertains to incidents of family violence.

       Wessels alleges that in January 2012, Dr. Zertuche violently pushed her onto the bed,

pinned her down, and repeatedly threatened her with violence. She alleges that in February 2012,

while she was riding with Dr. Zertuche, he became angry, he held her in the vehicle for five hours

and then smashed her head into the dash and window. She also alleges that in January 2014, Dr.

Zertuche became enraged, threatened to harm her, slammed her against the wall, hit her head,

grabbed her by the face, and yelled directly in her ears.

D.     Family Violence Facts Do Not Support HCLC

       The alleged family violence facts are separated by time and nature from the pregnancy and

abortion facts, and the family violence facts cannot support an HCLC. Although it is undisputed

that Dr. Zertuche is a physician, Dr. Zertuche’s alleged family violence acts have nothing to do

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

care,” and Dr. Zertuche’s acts do not implicate any “alleged departure from accepted standards

[that] proximately caused [Wessels’s] injury.” See Loaisiga, 379 S.W.3d at 255 (three elements).

       We conclude that Wessels’s assault and IIED claims based on the family violence facts are

not HCLCs. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (HCLC definition);

Loaisiga, 379 S.W.3d at 255 (HCLC elements).

E.     Separate Assault, IIED Claims

       Wessels’s assault and IIED claims each rely on two different sets of facts that are separated

by time and nature. In legal effect, Wessels has two assault claims and two IIED claims: one



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assault and one IIED claim are based on the pregnancy and abortion facts; the other assault and

IIED claims are based on the family violence facts.

       The former claims are HCLCs; the latter are not. See Loaisiga, 379 S.W.3d at 255. The

absence of an expert report was no basis to dismiss the latter claims, see Bueno v. Hernandez, 454

S.W.3d 178, 183 (Tex. App.—San Antonio 2014, pet. denied) (“Only health care liability claims

require an expert report under section 74.351.”); the trial court was required to dismiss with

prejudice the former claims, see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b); Univ. of Tex.

Health Sci. Ctr. at Houston v. Joplin, 525 S.W.3d 772, 778 (Tex. App.—Houston [14th Dist.]

2017, pet. denied).

                                   URRABAZO’S IIED CLAIM

       Wessels’s husband Joey Urrabazo also sued Dr. Zertuche for IIED. In the same manner as

his argument against Wessels’s claims, Dr. Zertuche argues that Urrabazo’s IIED claim is an

HCLC, and because no expert report was served, Urrabazo’s IIED claim should have been

dismissed.

       Urrabazo had, in legal effect, two IIED claims: one based on the pregnancy and abortion

facts, and the other based on the family violence facts. Like Wessels’s IIED claim, Urrabazo’s

IIED claim based on the pregnancy and abortion facts was an HCLC, and the trial court should

have dismissed it with prejudice. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (mandatory

dismissal); Loaisiga, 379 S.W.3d at 255. But Urrabazo’s IIED claim based on the family violence

facts is not an HCLC, see TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (HCLC definition);

Loaisiga, 379 S.W.3d at 255 (HCLC elements), and the absence of a timely served expert report

provides no basis to dismiss it, see Bueno, 454 S.W.3d at 183.




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                                 LOSS OF CONSORTIUM CLAIMS

       Wessels and Urrabazo sued Dr. Zertuche for loss of consortium based on the injuries each

suffered due to on Dr. Zertuche’s actions. Wessels’s and Urrabazo’s loss of consortium claims

derive from their assault and IIED claims. See Brewerton v. Dalrymple, 997 S.W.2d 212, 217

(Tex. 1999) (explaining that a wife’s loss of consortium claim was “wholly derivative of her

husband’s intentional infliction claim” and because the IIED claim failed, the derivative loss of

consortium claim also failed); see also In re Labatt Food Serv., L.P., 279 S.W.3d 640, 646 (Tex.

2009) (discussing loss of consortium as a derivative claim).

       Wessels’s assault and IIED claims and Urrabazo’s IIED claim that were based on the

pregnancy and abortion facts must be dismissed with prejudice. Because the claims from which

they are derived fail, Wessels’s and Urrabazo’s loss of consortium claims must also fail. See

Loberg v. HEB Grocery Co., L.P., No. 04-10-00877-CV, 2011 WL 4828198, at *2 (Tex. App.—

San Antonio Oct. 12, 2011, pet. denied) (recognizing that a loss of consortium claim fails as a

matter of law if the claim from which it is derived fails); Am. Indus. Life Ins. Co. v. Ruvalcaba, 64

S.W.3d 126, 144 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (same).

                                        ATTORNEY’S FEES

       In his second issue, Dr. Zertuche argues that because the assault and IIED claims were

HCLCs, and no expert report was served, the trial court was required to award him reasonable

attorney’s fees and costs of court. With respect to the claims based on the pregnancy and abortion

facts, we agree.

A.     Statutory Requirement

       The TMLA imposes specific requirements for HCLCs when an expert report has not been

served as required:



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       (b) If, as to a defendant physician or health care provider, an expert report has not
       been served within the period specified by Subsection (a), the court, on the motion
       of the affected physician or health care provider, shall, subject to Subsection (c),
       enter an order that:
           (1) awards to the affected physician or health care provider reasonable
           attorney’s fees and costs of court incurred by the physician or health care
           provider; and
           (2) dismisses the claim with respect to the physician or health care provider,
           with prejudice to the refiling of the claim.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b); see Garcia v. Marichalar, 185 S.W.3d 70, 74

(Tex. App.—San Antonio 2005, no pet.).

B.     Trial Court’s Order

       After Wessels did not timely serve an expert report, Dr. Zertuche filed a motion to dismiss

the claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b); PM Mgmt.-Windcrest NC, LLC

v. Sanchez, 256 S.W.3d 396, 397 (Tex. App.—San Antonio 2008, no pet.) (citing Garcia, 185

S.W.3d at 74).

       Without dismissing any of Wessels’s or Urrabazo’s claims, the trial court granted the

motion to dismiss but denied Dr. Zertuche attorney’s fees because “none of the claims alleged

malpractice under the [Texas Medical Liability] Act.”

C.     Reasonable Attorney’s Fees, Costs

       As Loaisiga explains, alleging a departure from accepted standards of medical care is not

an HCLC prerequisite. Loaisiga, 379 S.W.3d at 255 (“[F]acts that could support claims against a

physician . . . for departures from accepted standards of medical care . . . are HCLCs, regardless

of whether the plaintiff alleges the defendant is liable for breach of any of those standards.”). Even

though Wessels did not assert that Dr. Zertuche departed from any accepted standards of care, the

assault and IIED claims based on the pregnancy and abortion facts are HCLCs. See id. Thus, the

trial court was required to award Dr. Zertuche reasonable attorney’s fees and costs of court that


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were required to defend against only the HCLCs. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(b); PM Mgmt.-Windcrest, 256 S.W.3d at 397.

                                           CONCLUSION

       In their counterclaims against Dr. Zertuche, Wessels and Urrabazo alleged two sets of facts:

one set pertaining to Wessels’s pregnancy and abortion, and a second set, separated by time and

nature, pertaining to instances of family violence.

       The claims based on the family violence facts are not HCLCs and are not subject to

dismissal under the TMLA. But the claims based on the pregnancy and abortion facts are HCLCs,

and because no expert report was timely served, and Dr. Zertuche moved to dismiss the claims,

the trial court erred in not dismissing the claims with prejudice and awarding reasonable attorney’s

fees and costs of court.

       We dismiss with prejudice the HCLCs that are based on the pregnancy and abortion facts,

i.e., Wessels’s assault, IIED, and loss of consortium claims, and Urrabazo’s IIED and loss of

consortium claims. The counterclaimants’ assault, IIED, and loss of consortium claims based on

the family violence facts are not HCLCs and are not subject to dismissal under the TMLA.

       We remand this cause to the trial court to award reasonable attorney’s fees and costs of

court incurred for the dismissed claims only, and for further proceedings consistent with this

opinion.

                                                  Patricia O. Alvarez, Justice




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