Douglas A. Terry, D.D.S. v. John Christian Schiro, D.D.S., A/K/A John Phillip Schiro, D.D.S.

Opinion issued July 26, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00060-CV

DOUGLAS A. TERRY, D.D.S., DOUGLAS A. TERRY, D.D.S., INC., AND

DOUGLAS A. TERRY ENTERPRISES, INC., Appellants

V.

JOHN CHRISTIAN SCHIRO, D.D.S. AND SCHIRO-KLINE, L.L.P.,

Appellees

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2005-57985

MEMORANDUM OPINION

In this interlocutory appeal, appellants, Douglas A. Terry, D.D.S., Douglas A.

Terry, D.D.S., Inc., and Douglas A. Terry Enterprises, Inc. (collectively "Dr. Terry"),

appeal the trial court's order that denied their second motion to dismiss the causes of

action asserted by appellees, John Christian Schiro, D.D.S. and Schiro-Kline, L.L.P.

In one issue on appeal, Dr. Terry argues that the trial court abused its discretion by

not dismissing the case.

We affirm.

Background

Dr. Schiro performed dentistry procedures on Lucille Zalud, Paula Stiles, and

Mindy Stiles. Because they were dissatisfied with Dr. Schiro's work, they obtained

a second opinion from Dr. Terry, who informed them that they had received

substandard medical care. (1) After Dr. Schiro discovered what Dr. Terry had been

telling these patients and prospective patients, he hired an attorney to investigate Dr.

Terry. In the course of the investigation, the attorney representing Dr. Schiro

employed private investigators to pose as potential patients for Dr. Terry. While

meeting with Dr. Terry, the investigators wore microphones and tape recorders so that

they could record their conversations with Dr. Terry.

Dr. Schiro filed suit against Dr. Terry on September 8, 2005, alleging causes

of action for libel and slander. Dr. Terry filed a general denial and asserted

affirmative defenses including public figure, truth, public health danger, witness

immunity, and peer review privilege. Dr. Terry later filed a motion to dismiss,

arguing that because Dr. Schiro's claims were health care liability claims and Dr.

Schiro had failed to file an expert report, the claims should be dismissed. (2) The trial

court denied Dr. Terry's first motion to dismiss. Dr. Terry also filed a petition for

writ of mandamus complaining of the trial court's order denying his motion to

dismiss, which was assigned to this Court. We denied Dr. Terry's petition without

opinion. See In re Terry, D.D.S. , 01-06-00731-CV, 2006 WL 2506724 (Tex.

App.--Houston [1st Dist] Aug. 28, 2006, orig. proceeding). After we denied his

petition, Dr. Terry filed a petition for writ of mandamus in the Supreme Court of

Texas that was also denied. See In re Terry, D.D.S. , No. 06-0818 (Tex. Oct. 20,

2006).

On January 8, 2006, Dr. Terry filed a second motion to dismiss in the trial

court, arguing the same points that he had previously asserted in his first motion to

dismiss. The trial court denied his second motion to dismiss, and Dr. Terry now

brings this interlocutory appeal complaining of the trial court's order denying his

second motion to dismiss.

Standard of Review

Generally, we review a trial court's order on a motion to dismiss under an

abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios ,

46 S.W.3d 873, 877 (Tex. 2001). However, "to the extent resolution of this issue

requires interpretation of the statute itself, we review under a de novo standard."

Buck v. Blum , 130 S.W.3d 285, 290 (Tex. App.--Houston [14th Dist.] 2004, no pet.);

Ponce v. El Paso Healthcare Sys., Ltd ., 55 S.W.3d 34, 36 (Tex. App.--El Paso 2001,

pet. denied); Gomez v. Matey , 55 S.W.3d 732 , 735 & n.2 (Tex. App.--Corpus Christi

2001, no pet.). Here, the order complained of states that the "Defendants . . . are not

health care providers against whom a health care liability claim was asserted, and

therefore no expert report need be filed within 120 days of the filing of this suit." We

shall review the statutory interpretation question presented by Dr. Terry's second

motion to dismiss de novo.

Health Care Liability Claim

A health care liability claimant must file an expert report and curriculum vitae

within 120 days after filing a claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (a)

(Vernon Supp. 2006). If a required expert report has not been served by the 120-day

deadline, on proper motion by the defendant the trial court "shall" dismiss the action

with prejudice and award reasonable attorney's fees and court costs incurred by the

defendant. Id . § 74.351(b) (Vernon Supp. 2006).

The expert report requirements of section 74.351(b) apply to a patient's claims,

regardless of whether they are tort claims, when those claims come within the

statutory definition of a "health care liability claim," defined 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 or death of a claimant, whether the claimant's claim

or cause of action sounds in tort or contract.

Id . § 74.001(a)(13) (Vernon 2005).

Artful pleading cannot avoid the requirements of section 74.351 when the

essence of the suit is a health care liability claim. Diversicare Gen. Partner, Inc. v.

Rubio , 185 S.W.3d 842, 851 (Tex. 2005) ("It is well settled that a health care liability

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

[Medical Liability Insurance Improvement Act]."); Garland Cmty. Hosp. v. Rose , 156

S.W.3d 541, 543 (Tex. 2004); MacGregor Med. Ass'n v. Campbell , 985 S.W.2d 38,

40 (Tex. 1998). To determine whether a cause of action falls under chapter 74's

definition of a health care liability claim, we examine the claim's underlying nature.

Garland Cmty. Hosp. , 156 S.W.3d at 543 (citing Sorokolit v. Rhodes , 889 S.W.2d

239, 242 (Tex. 1994)). If the act or omission alleged in the complaint is an

inseparable part of the rendition of health care services, or if it is based on a breach

of a standard of care applicable to health care providers, then the claim is a health

care liability claim. Id . at 544 (citing Walden v. Jeffery , 907 S.W.2d 446, 448 (Tex.

1995)). One consideration in that determination may be whether proving the claim

would require the specialized knowledge of a medical expert. Id . at 544 (citing

Rogers v. Crossroads Nursing Serv., Inc ., 13 S.W.3d 417, 419 (Tex. App.--Corpus

Christi 1999, no pet.)); see Diversicare Gen. Partner , 185 S.W.3d at 851 .

In his first amended petition, Dr. Schiro alleged that:

[Dr. Terry] has made statements to prospective patients, or persons

accompanying prospective patients to Dr. Terry's offices and others, that

reflect poorly on Dr. Schiro's professional abilities as a dentist and his

commitment to a standard of care and treatment that is in the best

interest of patients.

. . . .

[Dr. Terry's] statements were slanderous per se because they had a

tendency to injure [Dr. Schiro] in his profession as a dentist.

[Dr. Terry's] statements were entirely false. [Dr. Schiro] has never

engaged in irresponsible and unnecessary dentistry. Furthermore, [Dr.

Schiro] has performed numerous successful dental procedures and has

been regularly recognized for his commitment to the best interest of his

patients.

Furthermore, [Dr. Terry] made the defamatory statements about [Dr.

Schiro] in bad faith and with malice. In this connection, [Dr. Schiro]

will show that [Dr. Terry] has feelings of ill will against [Dr. Schiro].

[Dr. Terry's] publication of slander per se was made with malice for the

reasons that it was made with the knowledge that it was false or with

such utter recklessness as to indicate a disregard of the consequences

and conscious indifference to the rights of [Dr. Schiro].

Additionally, Plaintiffs intend to show that Dr. Terry has made a public

disclosure of a private fact (or facts) which is offensive and

objectionable to a reasonable person and which is not a legitimate public

concern. Such disclosure has damaged Plaintiffs and they seek to

recover those damages from [Dr. Terry].

Dr. Schiro's pleadings show that the underlying nature of his cause of action

is a claim for damages based on defamatory statements made by Dr. Terry that were

intended to injure Dr. Schiro's reputation. (3)

Dr. Schiro's claim is not a cause of action

against Dr. Terry 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. See Tex. Civ. Prac. & Rem.

Code Ann. § 74.001 (a)(13). Thus, Dr. Schiro's suit is not inseparable from the

rendition of medical services that Dr. Terry provided.

Dr. Terry asserts that his privileged communications with his patients proves

that "[a]ny statement that falls under the privilege must be an inseparable part of the

rendition of health care services as a matter of law." Dr. Terry cites no authority for

this proposition, and we fail to see why the attachment of a privilege transforms

defamation claims into health care liability claims. (4)

Dr. Terry further argues that, because the supreme court prohibited a plaintiff

from recasting health care liability claims as Deceptive Trade Practices Act ("DTPA")

claims, Dr. Schiro should be precluded from recasting this suit as a defamation suit.

See MacGregor Med. , 985 S.W.2d at 40-41 . We disagree with Dr. Terry's broad

reading of MacGregor . In MacGregor , the court stated, "Claims that a physician or

health care provider was negligent may not be recast as DTPA actions to avoid the

standards set forth in the Medical Liability and Insurance Improvement Act." Id. at

40 . The court looked to the underlying nature of the claims and held that the "essence

of [the plaintiff's] DTPA claim is that MacGregor failed to provide quality medical

care as promised in its HMO literature. To successfully prove this claim, [the

plaintiff] must prove a breach of the applicable standard of care for health care

providers." Id . at 41. Contrary to Dr. Terry's argument, the supreme court did not

hold that a claimant could never assert a DTPA claim against a physician. In fact, the

court specifically stated that "if the alleged DTPA claim is not based on the

physician's breach of the accepted standard of medical care, section 12.01(a) does not

preclude suit for violation of the DTPA." Id . at 40 (quoting Sorokolit , 889 S.W.2d

at 242 ). Likewise, Dr. Schiro's claim for damages in the instant case is not based on

Dr. Terry's breach of the accepted standard of medical care that caused harm to his

patients, but rather on the alleged false statements that Dr. Terry allegedly made about

Dr. Schiro.

Dr. Terry also relies on Murphy v. Russell , 167 S.W.3d 835 (Tex. 2005). In

Murphy , the court concluded that the plaintiff's pleadings "'all have to do with'

whether the administration of a general anesthetic under all the circumstances met the

standard of care for anesthesiologists." Id . at 839. Like MacGregor , Murphy is

factually distinguishable from the instant facts because, in Murphy , the plaintiff's

DTPA claims alleged that the defendant sedated her after he expressly represented

and warranted that he would not. Id . The court stated that these type of allegations

"all have to do with whether [the dentist's] selection of the surgical procedure and

performance of it met the standard of care for dentists in such circumstances." Id .

Here, contrary to Murphy , the underlying nature of Dr. Schiro's claim for damages

to his reputation has no relevance to Dr. Terry's medical performance and whether

he met the standard of care. Nor could it, because none of Dr. Terry's patients were

alleging that Dr. Terry breached the standard of care in his medical performance.

Thus, we conclude that Dr. Schiro's claims are not health care liability claims

and, therefore, the expert report requirements found in section 74.351(a)(13) do not

apply. Accordingly, the trial court properly denied Dr. Terry's second motion to

dismiss.

We overrule Dr. Terry's sole issue on appeal.

Conclusion

We affirm the trial court's order that denied Dr. Terry's second motion to

dismiss.

Evelyn V. Keyes

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

1.

Because of the substandard dentistry, the patients filed complaints with the board of

dentistry. See In the Matter of State Bd. of Dental Exam'rs v. John P. Schiro, D.D.S.

(Docket no. XXX-XX-XXXX). The patients also brought suit against Dr. Schiro for

medical negligence. See Lucille C. Zalud v. John Christian Schiro, D.D.S. , No. 04-CV-137189 (Fort Bend County, Texas); Paula Stiles v. John Christian Schiro, D.D.S. ,

No. 04-CV-139332 (Fort Bend County, Texas); Mindy Stiles v. John Christian Schiro,

D.D.S. , No. 04-CV-139637 (Fort Bend County, Texas). At the trial, Dr. Terry served

as the patients' testifying expert.

2. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (b) (Vernon Supp. 2006).

3. A statement is defamatory if it tends to injure a person's reputation and thereby

expose the person to public hatred, contempt, ridicule, or financial injury or to

impeach any person's honesty, integrity, virtue, or reputation. See Tex. Civ. Prac.

& Rem. Code Ann. § 73.001 (Vernon 2005). There are two types of defamation: per

quod and per se. Moore v. Waldrop , 166 S.W.3d 380, 384 (Tex. App.--Waco 2005,

no pet.). Statements that are defamatory per quod are actionable only upon allegation

and proof of damages. Alaniz v. Hoyt , 105 S.W.3d 330, 345 (Tex. App.--Corpus

Christi 2003, no pet.); see also Time, Inc. v. Firestone , 424 U.S. 448, 459 , 96 S. Ct.

958, 968 (1976) (holding that evidence of injury is required to support award of

compensatory damages in defamation case). A false statement will typically be

classified as defamatory per se if it injures a person in his office, profession, or

occupation, Alaniz , 105 S.W.3d at 346 ; charges a person with the commission of a

crime, Leyendecker and Associates, Inc. v. Wechter , 683 S.W.2d 369, 374 (Tex.

1984); imputes sexual misconduct, Moore v. Waldrop , 166 S.W.3d 380, 384 (Tex.

App.--Waco 2005, no pet.); or accuses one of having a loathsome disease, Bolling

v. Baker , 671 S.W.2d 559, 570 (Tex. App.--San Antonio 1984, no writ); see also

Alaniz , 105 S.W.3d at 345-46 .

The issue of whether statements are defamatory per se is generally a matter of law to

be decided by the court. West Tex. Utils. Co. v. Wills , 164 S.W.2d 405, 411 (Tex. Civ.

App.--Austin 1942, no writ). The trial court should consider the statements and

determine whether, even without proof of harm, the statements were so obviously

injurious to the plaintiff that, as a matter of law, the plaintiff is entitled to recover

damages. See Alaniz , 105 S.W.3d at 345 . The court may, however, pass the inquiry

to the jury if it determines that an ambiguity exists about the meaning and effect of

the words or that a predicate fact question remains about whether the statements were

published or were false. Musser v. Smith Protective Serv., Inc ., 723 S.W.2d 653, 655

(Tex. 1987); West Tex. Utils ., 164 S.W.2d at 411 .

4. Dr. Terry asserts that anything he says to patients that relates to the professional

services he renders is privileged. See Tex. Occ. Code Ann. § 258.102 (Vernon 2004)

(stating that communication between dentist and patient that relates to professional

service provided by dentist is privileged). Dr. Terry's privileged communication

defense relates to his defense to defamation, and not to whether his claims should be

classified as health care liability claims. Health care liability claims are claims in

which the liability derives from the allegedly substandard delivery of health care--not

from every aspect of a relationship to a health care provider or facility.