In Andria Solomon v. Rosemary Buckle, Nicole D. Ches, and HCA Health Services of Texas, Inc. (No. 01-23-00349-CV; March 14, 2024), Plaintiff sued health care providers Buckle and Ches, as well as their employer HCA, for negligence. She alleged that Buckle, who performed the examination, submitted a false attending physician’s statement to her insurer, which resulted in the termination of her disability benefits. She further alleged that Ches, who signed the statement, had a duty to ensure the accuracy of the statment. Defendants moved to dismiss under Chapter 74 for failure to serve an expert report. The trial court agreed and dismissed the claim, but did not award attorney’s fees. Plaintiff appealed.

In an opinion by Justice Goodman, the court of appeals affirmed. The issue was whether Plaintiff’s claim constituted a “health care liability claim” as defined by § 74.001(a)(13), CPRC. Plaintiff argued that her claim that the providers submitted a false statement did not meet the definition because it did not constitute “professional or administrative services related to health care.” Sec. 74.001(a)(24) defines “professional or administrative services” as “those duties or services that a physician or health care provider is required to provide as a condition of maintaining the physician’s or health care provider’s license, accreditation status, or certification to participate in state or federal health care programs.” Applying Baylor Scott & White, Hillcrest Medical Center v. Weems, 575 S.W.3d 357 (Tex. 2019), which involved a similar record-falsification claim, the court concluded that Plaintiff’s claim fell within the definition. First, Weems established a presumption that a claim against a provider “based on facts implicating the health care provider’s conduct during the court of a patient’s care, treatment, or confinement” is a health care liability claim under Chapter 74. Second, Weems held that “the plaintiff’s record-falsification claim is premised on an alleged departure from accepted standards of “professional or administrative services directly related to health care.” SCOTX reached this conclusion based on TMB rules requiring physicians to maintain accurate medical records.

In this case, the court held, Plaintiff asserted a records-falsification claim “indistinguishable from the one plaintiff made in Weems.” The “gravaman” of her claim—that Defendants created a false record “concerning her medical treatment and assessment that adversely affected her outside the context of her medical treatment and assessment”—thus constituted a “health care liability claim” under the statute. Plaintiff was therefore required to serve an expert report, which she did not. The court rejected Plaintiff’s argument that because the attending physician’s statement was submitted on an insurance form and not in a medical record, the statute did not apply. The form further supplied to the insurer the physician’s assessment of Plaintiff and a treatment plan, which clearly related to her medical care.

Finally, Defendants sought their statutorily-mandated attorney’s fees, which the trial court declined to award. Here the court held that although the trial court erred in not awarding fees, Defendants did not request in their appeal a remand to the trial court for a trial on the reasonableness and necessity of the fees. Instead, they requested that the court of appeals reverse and render judgment granting them their fees based on the affidavit and billing records of their counsel. While the court acknowledged that this was some evidence, it was not conclusive. Additionally, Defendants did not brief the issue. Consequently, the court declined to grant relief that the Defendants did not request. And in response to Defendants’ request that the court impose sanctions on Plaintiff for alleged false statements in her brief, the court demurred on the basis that Defendants did not identify the standard of review or applicable law under which the court could make such a determination. The court thus affirmed the trial court’s dismissal of the case and denied Defendants’ motion for sanctions.

This is an interesting case that obviously went somewhat awry for the Defendants on appeal. Although they won the substantive legal issue, they ended up foregoing the attorney’s fees they should have gotten under the statute. The moral of the story is to make sure to ask the court of appeals for exactly what you want and give them the thoroughly briefed legal framework to hang their hat on.

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