Maurice N. Leibman M.D. v. Cleveratta Waldroup and James Waldroup, Individually and as Next Friends of R. W., a Minor

Supreme Court of Texas

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No. 23-0317

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Maurice N. Leibman M.D.,

Petitioner,

v.

Cleveratta Waldroup and James Waldroup, Individually and as

Next Friends of R.W., a Minor,

Respondents

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On Petition for Review from the

Court of Appeals for the First District of Texas

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JUSTICE HUDDLE, joined by Chief Justice Blacklock, Justice

Bland, and Justice Sullivan, dissenting.

The lamentable facts of this case do not justify disregarding

statutory language and our precedents. For over a decade this Court

has held, consistent with the Texas Medical Liability Act’s “expansive

application,” Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012), that

when a negligence claim against a physician is inseparably intertwined

with health-related services, it is a health care liability claim (HCLC).

See Yamada v. Friend, 335 S.W.3d 192, 197 (Tex. 2010) (“[I]f the

gravamen or essence of a cause of action is [an HCLC], then allowing

the claim to be split or spliced into a multitude of other causes of action

with differing standards of care, damages, and procedures would

contravene the Legislature’s explicit requirements.”). We have rightly

recognized that if the facts as pleaded (as opposed to the plaintiff’s

characterization of a claim) could support an HCLC, the claim is subject

to the Act. Id.; see also Lake Jackson Med. Spa, Ltd. v. Gaytan,

640 S.W.3d 830, 838 (Tex. 2022) (“[T]he claimant cannot avoid the Act

by splitting claims into both [HCLCs] and other types of claims such as

ordinary negligence claims or by amending her pleading to recast her

claims.” (citations and internal quotation marks omitted)).

Today, the Court departs from these precedents and welcomes

artful pleading to avoid the Act’s application. The Court allows the

Waldroups to excise phrases from Dr. Leibman’s letters, which he

provided in the course of rendering medical care to his patient, and

reframe them to allege a negligence claim independent from that

medical care. The Waldroups’ claim against Dr. Leibman should be

dismissed because it is premised on facts inseparably linked to

Dr. Leibman’s rendition of medical care. Because the Court concludes

otherwise, I respectfully dissent.

I. The TMLA is broadly construed.

Chapter 74 of the Civil Practice and Remedies Code—the

TMLA—requires that “[i]n a health care liability claim, a claimant shall,

not later than the 120th day after the date each defendant’s original

answer is filed . . . , serve on that party . . . one or more expert reports.”

TEX. CIV. PRAC. & REM. CODE § 74.351(a). A claimant’s failure to timely

serve the expert report “shall” result in an order that “(1) awards to the

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affected physician . . . reasonable attorney’s fees and costs of court

incurred by the physician . . . ; and (2) dismisses the claim with respect

to the physician . . . with prejudice.” Id. § 74.351(b).

The Act defines an HCLC as “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” the claimant. Id.

§ 74.001(a)(13). “Medical care” is defined as “any act 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

during the patient’s care [or] treatment.” Id. § 74.001(a)(19). The

Occupations Code defines “[p]racticing medicine” as

diagnos[ing], treat[ing], or offer[ing] to treat a mental or

physical disease or disorder . . . by any system or method,

or the attempt to effect cures of those conditions, by a

person who: (A) publicly professes to be a physician . . . ; or

(B) directly or indirectly charges money . . . for those

services.

TEX. OCC. CODE § 151.002(a)(13). Whether a claim is an HCLC is a

question of law we review de novo. Collin Creek Assisted Living Ctr.,

Inc. v. Faber, 671 S.W.3d 879, 885 (Tex. 2023).

To determine whether the Waldroups’ claim is an HCLC, we look

to the underlying nature of the claim. CHRISTUS Health Gulf Coast v.

Carswell, 505 S.W.3d 528, 534 (Tex. 2016). The Court “should consider

the entire court record, including the pleadings, motions and responses,

and relevant evidence properly admitted.” Loaisiga, 379 S.W.3d at 258.

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A claim “alleges a departure from accepted standards of medical care,”

and thus is an HCLC, “if the act or omission complained of is an

inseparable part of the rendition of medical services.” Diversicare Gen.

Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005); see also Gaytan,

640 S.W.3d at 846 (“[A] claim constitutes [an HCLC] when the conduct

complained of is an ‘inseparable or integral part of the rendition of

health care.’” (quoting Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d

171, 180 (Tex. 2012))).

“Artful pleading” by recasting an HCLC as a non-HCLC does not

transmute the underlying nature of the claim. Yamada, 335 S.W.3d

at 196. If, based on the totality of the circumstances, the underlying

nature of a claim makes it an HCLC, it is impermissible to split it to

avoid the Act’s application. See id. at 197 (“[I]f the gravamen or essence

of a cause of action is [an HCLC], then allowing the claim to be split or

spliced into a multitude of other causes of action with differing

standards of care, damages, and procedures would contravene the

Legislature’s explicit requirements.”). In other words, claims that could

be independently asserted as ordinary negligence claims but are

inseparably intertwined with medical services are HCLCs. See id.

(acknowledging claims that could be asserted as ordinary negligence are

HCLCs if “the specific acts and omissions of the [defendant] were an

inseparable part of the health and medical transaction”). When a claim

is premised on facts that do, or even could, support an HCLC, that claim

is an HCLC, regardless of the pleading’s specific allegations. We have

recognized that a contrary holding would defeat the purposes of the

TMLA because a claimant could easily isolate a specific act by a health

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care provider that could be characterized as distinct from medical care

or health care:

Clearly, particular actions or omissions underlying

[HCLCs] can be highlighted and alleged to be breaches of

ordinary standards of care. . . . Plaintiffs will be able to

entirely avoid application of the TMLA by carefully

choosing the acts and omissions on which to base their

claims and the language by which they assert the claims.

Id.

The TMLA’s broad language “essentially creates a presumption

that a claim is an HCLC if it is against a physician or health care

provider and is based on facts implicating the defendant’s conduct

during the course of a patient’s care, treatment, or confinement.”

Loaisiga, 379 S.W.3d at 256. When the presumption applies, it is the

claimant’s burden to rebut it and show that the claim is not an HCLC.

Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363

(Tex. 2019).

II. The Waldroups’ claim against Dr. Leibman is an HCLC.

The Court concludes that the Waldroups’ claim against

Dr. Leibman cannot be an HCLC because, it asserts, no expert medical

testimony is required to establish the standard of care and any breach

thereof. The Court reaches that conclusion by accepting the Waldroups’

characterization that the only alleged negligence concerns

Dr. Leibman’s statements about the “training, behavior and legal

status” of Kingston, one of Dr. Leibman’s patient’s service animals. The

Court thus limits the operative facts to what the Waldroups artfully

allege was the breach of care, i.e., Dr. Leibman’s isolated comments

about Kingston’s temperament.

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But as this Court acknowledged in Faber, how a court “define[s]

the universe of relevant facts . . . can significantly affect the outcome of

the analysis.” 671 S.W.3d at 885. “Courts must focus on the set of

operative facts ‘underlying the claim’ that are relevant to the alleged

injury, not on how ‘the plaintiff’s pleadings describ[e] the facts or legal

theories asserted.’” Id. (emphasis added) (alteration in original)

(quoting Loaisiga, 379 S.W.3d at 255); see also Loaisiga, 379 S.W.3d

at 255 (defining “cause of action” under the TMLA as the “fact or facts

entitling one to institute and maintain an action, which must be alleged

and proved in order to obtain relief” (quoting In re Jorden, 249 S.W.3d

416, 421 (Tex. 2008))).

The Waldroups, and the Court, limit the “operative facts” to

Dr. Leibman’s comments on Kingston’s “training, behavior and legal

status.” But we have previously observed that even though a claim may

be pleaded in a way that focuses on an act of ordinary negligence, if the

act is an inseparable part of medical services, it is an HCLC. For

example, in Yamada, we described a case in which an embryologist

dropped a tray of embryos, destroying most of them. 335 S.W.3d at 197

(discussing Inst. for Women’s Health, P.L.L.C. v. Imad, No. 04-05-00555-

CV, 2006 WL 334013 (Tex. App.—San Antonio Feb. 15, 2006, no pet.)).

Even though “the care required in carrying a tray of embryos without

dropping it could have been asserted as ordinary negligence” that would

not require a medical expert, we agreed with the court of appeals’

holding that the embryologist’s acts and omissions were an inseparable

part of health and medical services and thus the claim was an HCLC.

Id.

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The same is true here. Every letter 1 written by Dr. Leibman for

his patient references her diagnosed anxiety and describes a course of

treatment. Isolating individual statements in the letters and asserting

only those statements as acts of ordinary negligence does not sever them

from Dr. Leibman’s medical services. What underlies the Waldroups’

claim and is relevant to their alleged injury is Dr. Leibman’s rendition

of medical services through the letters. A plaintiff cannot cherry-pick

statements and plead only those statements as independent acts of

negligence to avoid the Act’s application. See id.; Garland Cmty. Hosp.

v. Rose, 156 S.W.3d 541, 543 (Tex. 2004) (“Plaintiffs cannot use artful

pleading to avoid the [statute’s] requirements when the essence of the

suit is [an HCLC].”).

By focusing exclusively on isolated facts highlighted by the

Waldroups, the Court ignores our precedents’ broad construction of the

Act and the presumption that claims against a physician “based on facts

implicating the defendant’s conduct during the patient’s care [or]

treatment . . . are HCLCs.” Loaisiga, 379 S.W.3d at 252. No one

disputes that Dr. Leibman is a licensed practicing physician who wrote

the letters in the context of providing medical care to his patient,

Romano. To rebut the HCLC presumption, the Waldroups must present

evidence showing, or the record must indicate, that their claim does not

relate to Dr. Leibman’s “departure from accepted standards of medical

1 Although the record contains only one letter written by Dr. Leibman,

dated July 15, 2019, several other letters were summarized or directly quoted

in a police report. The Waldroups do not dispute the other letters’ existence or

the report’s characterization of their substance; indeed, they attached a copy

of the police report to their response in the trial court.

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care or health care” in treating Romano’s general anxiety disorder.

Gaytan, 640 S.W.3d at 844 (quoting Bioderm Skin Care, LLC v. Sok,

426 S.W.3d 753, 759–60 (Tex. 2014)). To determine whether the

Waldroups have met this burden, we first examine whether “expert

medical or health care testimony is needed to establish the requisite

standard of care and breach.” Bioderm, 426 S.W.3d at 760. If so, the

claim is an HCLC, and the Waldroups have failed to meet their burden.

Tex. W. Oaks Hosp., 371 S.W.3d at 182. But even if expert testimony is

not needed, we “consider the totality of the circumstances, as a claim

may still be [an HCLC].” Bioderm, 426 S.W.3d at 760; see also Weems,

575 S.W.3d at 366 n.36.

The Waldroups failed to rebut the HCLC presumption. The

letters were all prepared by a physician for his patient and directly refer

to her medical condition. As alleged by the Waldroups, the facts could

have supported a claim that Dr. Leibman breached a medical standard

of care by providing opinions in the course of his medical care that

exceeded his qualifications as a physician. Expert medical testimony

would be necessary to establish the appropriate scope of the written

opinions that a physician may give when providing medical care and

whether the contents of Dr. Leibman’s letters breached that standard.

And the Waldroups acknowledged to the trial court that Dr. Leibman’s

status as a physician was a crucial part of their negligence claim: “It

makes a difference when Dr. Leibman says that Kingston is a ‘service

animal’, is ‘certified’ or does particular tasks. His authority encouraged

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Ms. Romano to hold Kingston out as a ‘service animal’ . . . .” 2

Dr. Leibman’s statements, and the letters generally, were made in the

context of his medical care—his treatment for Romano’s diagnosed

anxiety. See TEX. OCC. CODE § 151.002(13) (defining “[p]racticing

medicine” to include a physician’s diagnosis, treatment, or attempt to

cure a patient’s condition).

The Court contends that “[a]nyone—with or without medical

training—could have described the dog’s behavior and temperament.”

Ante at 18. Perhaps, but that misses the point. A physician

(Dr. Leibman) made these statements in the course of providing medical

care to his patient (Romano), and as the Waldroups concede, the fact

that he was a physician was significant. Based on these facts, the

Waldroups could have pleaded their claim in a way that would have

required expert medical testimony to establish the standard of care and

whether Dr. Leibman breached that standard. Because the facts alleged

by the Waldroups could give rise to an HCLC, their claim is an HCLC

even though they pleaded their claim so as to avoid the Act. Gaytan,

640 S.W.3d at 838; Yamada, 335 S.W.3d at 197.

I acknowledge there are instances where a physician’s purported

negligence is so unrelated to the rendition of medical care that it is not

an HCLC. See Loaisiga, 379 S.W.3d at 256 (recognizing the HCLC

2 The Waldroups likewise concede in their briefing in this Court that

their claim relies on Dr. Leibman’s status as a physician. See Respondents’

Brief in Response at 11 (“Dr. Leibman acted outside his qualifications,

capacities, and role as a doctor in his representations of Romano’s dogs.”), 20

(“It is these statements on which Leibman slapped his ‘MD’ as a[n]

imprimatur, that are the basis of Waldroup’s claims against Leibman.”).

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presumption would be rebutted if “the only possible relationship

between the conduct underlying a claim and the rendition of medical

services or healthcare [is] the healthcare setting,” i.e., “the physical

location of the conduct”); see also Reddy v. Veedell, 509 S.W.3d 435, 438

(Tex. App.—Houston [1st Dist.] 2014, pet. denied) (holding a bicyclist’s

claim against a physician who struck her with his car while distracted

was not an HCLC). This is not such a case. The gravamen of the

Waldroups’ claim is that a physician in the course of providing medical

care to a patient for general anxiety disorder committed negligence by

making statements he allegedly was not qualified to make. The

Waldroups’ attempt to limit the facts in this doctor–patient interaction

to only those that they allege fall outside that relationship does not

make their fiction a reality. Because the Waldroups failed to overcome

the presumption that this claim is an HCLC, I would hold that it is and

therefore is subject to the Act.

Because the Court concludes that the Waldroups’ claim is not an

HCLC, it does not address the alternative ground for affirmance

advanced by the Waldroups. They argue that they were entitled to

notice that Dr. Leibman believed the claim against him was an HCLC

and would seek dismissal for failure to produce an expert report and

that dismissal would violate their due process rights. They also contend

dismissal would inappropriately reward Dr. Leibman for failing to

disclose his defenses as Texas Rule of Civil Procedure 194.2 requires.

I am unpersuaded. The Act does not require the defendant to

notify the parties of his belief that a claim is an HCLC or that he will

seek dismissal absent a timely expert report. See TEX. CIV. PRAC. & REM.

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CODE § 74.351; cf. Walker v. Gutierrez, 111 S.W.3d 56, 65 (Tex. 2003)

(noting that an earlier version of the Act similarly “does not contain a

requirement that a defendant provide a claimant with notice of

noncompliance before that defendant moves to dismiss the case”). But

the Act also makes clear that a court must dismiss a cause of action

where an HCLC claimant fails to serve an expert report—there is no

discretion. TEX. CIV. PRAC. & REM. CODE § 74.351(b). And while

Rule 194.2 requires a party to provide “legal theories and, in general,

the factual bases of the responding party’s claims or defenses,” TEX. R.

CIV. P. 194.2(b)(3), the failure to satisfy Rule 194.2 cannot preclude

dismissal under Section 74.351. See TEX. CIV. PRAC. & REM. CODE

§ 74.002(a) (providing that the Act controls in the event of a conflict with

another law or rule of procedure).

III. Conclusion

The TMLA has an expansive application that creates a rebuttable

presumption that a claim against a physician grounded in facts

connected to his conduct during the rendition of a patient’s medical care

is an HCLC. The Waldroups assert a claim against a physician based

on letters he wrote in the course of providing medical care for his patient.

Because expert medical testimony is necessary to establish the scope of

statements a physician could properly include in such letters and

whether the physician breached the standard of care by including

statements he should have omitted, the Waldroups failed to rebut the

presumption that their claim is an HCLC. Therefore, despite the

Waldroups’ attempt to circumvent the Act, I would hold that it requires

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dismissal of their claim with prejudice for failing to timely serve an

expert report. Because the Court holds otherwise, I respectfully dissent.

Rebeca A. Huddle

Justice

OPINION FILED: June 6, 2025

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