In a somewhat unusual case, the Texas Supreme Court has granted a physician’s petition for review of a Houston [1st] Court of Appeals determination that a claim against the physician based on the physician’s letter regarding the suitability of a pit bull as a service animal was not a health care liability claim.
Maurice N. Leibman, M.D. v. Cleveratta Waldroup and James Waldroup, Individually and As Next Friends of R.W., a Minor (No. 23-0317; granted September 27, 2024) arose from serious injuries to a child sustained when a pit bull attacked her in a restaurant. The dog, which was wearing a “service dog” vest, belonged to a restaurant patron. The child’s parents sued the owner, but they also asserted claims for negligence and aiding and abetting against the dog owner’s gynecologist, who had written letters on behalf of the pet owner alleging that she needed the animal for her generalized anxiety disorder. Among other things, the pet owner used the letter to avoid eviction.
It’s worth noting at this point that no government licensing, registration, or certification of service animals exists at the federal or state level, and that registering service animals is not required by law (although there are numerous private websites that offer “registration”). Here’s what the Texas Workforce Commission has to say about them: “Service animals are typically dogs specially trained or equipped to help individuals with disabilities. There is no government licensing, registration, or certification of service animals. Registering service animals is not required by law. Service animals are not pets and should not be treated as such. An animal that provides only comfort or emotional support is not considered a service animal. You may use a service animal with protection under state and federal law only if you are a person with any of the following disabilities:
- Mental health disorder
- Physical disabilities
- Mobility impairment.
- Intellectual or developmental disability
- Hearing loss, including the deaf, hard of hearing, and deafblind
- Communication disorder
- Visual impairment, including the blind and those with low vision
- Post-traumatic stress disorder
- Any other condition that requires special ambulatory devices or services.”
The gynecologist moved to dismiss the parents’ claims against him for failure to serve an expert report under Chapter 74. The trial court denied the motion, and the court of appeal affirmed. The court of appeals held that the claims were not health care liability claims because: (1) the parents’ claims were not inseparable from the practice of health care, (2) the physician did not present any evidence that the letter, which was specifically directed to helping the dog owner avoid eviction, provided any health care (though the physician argued that the letter was an “instrument” of health care), and (3) there were no safety standards or other standard of care that could be identified to invoke Chapter 74. The parents argued further that the physician waived his right to seek dismissal under Chapter 74, but the court of appeals did not reach this issue.
This case raises a novel question regarding the scope of Chapter 74, to be sure. We do wonder what an expert report in this case would even look like, given the lack of regulation of service animals generally and the odd facts that the dog owner’s gynecologist wrote the letter rather than, say, a psychiatrist or other mental health practitioner. Would the report of another gynecologist be required to satisfy § 74.351, should SCOTX decide that Chapter 74 applies? What is the standard of care? Of course, all of this begs the real question in our minds: should the physician have been sued at all, regardless of Chapter 74? It’s hard to see that writing a letter on behalf of a patient makes a physician liable for such an occurrence. What duty does the physician owe to a potential victim of a dog bite? Could the physician reasonably have foreseen the attack? The record reflects, however, that the physician “vouched” for the pit bull’s behavior and claimed that the dog was “certified,” though no such certification exists. There is also the issue of the dog’s vest, which identified the dog as a “service animal,” although the record contains no discussion of whether the dog had any special training to warrant identification as one. A trained service animal would presumably be trained not to maul a three-year-old child in a restaurant. Be that as it may, we’ll see what SCOTX has to say about it.
