Justice David Gunn
The Houston [1st] Court of Appeals has reversed a trial court order denying a physician’s motion to dismiss claims that he changed a liver transplant list to exclude claimants’ relatives, all of whom later died, for failure to serve an expert report.
John S. Bynon v. Susie Garcia, As Wrongful Death Beneficiary of Richard Mostacci, Deceased, et al. (No. 01-24-00849-CV; April 2, 2026) arose from a news report revealing that Dr. Bynon was being investigated for altering the transplant list at Memorial Herman-Texas Medical Center. Surviving relatives of Bynon’s former patients sent him statutory presuit notices of health care liability claims. They subsequently filed an application for a TRO and temporary injunction, asserting that Bynon excluded their relatives from receiving liver transplants. They sought preservation of evidence potentially relevant to a potential claim but contained no count for damages. Bynon opposed the application and denied the allegation. Shortly thereafter, several parties filed a petition to intervene, alleging that their relatives were likewise placed on the transplant list and didn’t get their transplants. They sought both injunctive relief and wrongful death damages. Bynon moved to dismiss on the basis that the claims were health care liability claims and Plaintiffs and Intervenors didn’t serve an expert report. Plaintiffs/Intervenors responded that they weren’t “claimants” under Chapter 74. The trial court denied Bynon’s motion to dismiss, and he appealed.
In an opinion by Justice Gunn, the court of appeals affirmed in part and reversed in part. The first question was whether Plaintiffs/Intervenors filed Chapter 74 health care liability claims. An HCLC requires three elements: (1) a cause of action against a physician or health care provider (2) for a departure from accepted standards of medical care, (3) which proximately results in injury or death of a claimant. § 74.001(a)(13), CPRC. Plaintiffs argued that since their claims were for preservation of evidence, not production of evidence, they didn’t constitute HCLCs and didn’t require an expert report. “But the Texas Supreme Court has held,” the court observed, “that when a claim is premised on facts that could support claims against a physician for departures from accepted standards of medical care, the claim is an HCLC regardless of whether the plaintiff has actually alleged that the defendant is liable for a breach of those standards” (citation omitted). As the other two elements (suit against physician and proximate cause) were undisputed, the court concluded that Plaintiffs application for injunctive relief constituted HCLCs.
The court next turned to whether Bynon’s opposition to the application constituted an “answer” for purpose of the expert report requirement of § 74.351. Although Bynon’s brief in opposition to the application “was not entitled ‘Answer’ or ‘Original Answer,’” the court observed, “it identified the case and the parties, and it denied the factual allegations against Bynon—that he improperly excluded patients from the organ transplant list, thus allegedly depriving them of lifesaving care—by quoting the language from the plaintiffs’ application and stating, ‘This allegation is false.’” The brief also included specific denials, was signed by an attorney, and served on all parties’ counsel of record. And at oral argument, Plaintiffs’ “counsel essentially agreed that it qualifies as answer.” Since Plaintiffs claims were HCLCs and Dr. Bynon filed an answer, the expert report requirement applied to the “claimants.”
But what does “claimant” mean? Bynon argued that all plaintiffs and intervenors were claimants, but Plaintiffs disagreed on the basis that they sought only injunctive relief. According to the statute, a “claimant” seeks recovery of damages. If a party seeks other relief and not damages, “he or she is not a claimant within the ambit of the statutory definition ….” The intervenors, on the other hand, “explicitly described their lawsuit as a suit for damages,” bringing them within the statutory definition. Consequently, they should’ve served an expert report. The court thus reversed the part of the trial court’s order that denied dismissal as to the intervenors and remanded for entry of judgment dismissing the case and consideration of Bynon’s request for attorney’s fees. The court affirmed as to the original Plaintiffs, leaving Dr. Bynon to fight that battle.
