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Law Alert: Fourteenth Court Of Appeals Narrows Scope of Texas Medical Liability Act

July 13, 2020 E-Alerts

In a dramatic shift from Texas precedent regarding the broad scope of the Texas Medical Liability Act “TMLA”, the Fourteenth Court of Appeals held last week that skin care treatment provided by an esthetician at a medical spa is not a health care liability claim.  Disregarding similar cases holding that such procedures are health care liability claims, the court found that the no physician-patient relationship existed and therefore, the protections of the TMLA did not apply.  Specifically, an appeal was filed following the denial of a motion to dismiss pursuant to the TMLA as the claimant failed to timely serve expert reports required by the Act.  The court affirmed the trial court’s order denying the motion to dismiss as expert reports were not required as it was not a health care liability claim.

The TMLA provides broad protection for health care providers including the requirement that Plaintiffs provide expert reports within a short period of time establishing both liability and damages and damage caps.  Texas courts have historically held that complaints arising from injuries at a med spa constitute health care liability claims within the purview of the act.  Although the treatment is not necessarily performed by licensed health care providers, med spas are required by statute to have a designated medical director who is a licensed physician. 

In this case, Plaintiff Erica Gaytan sought a variety of skin care treatment from Lake Jackson Medical Spa.  Gaytan sued Lake Jackson, Dr. Robert Yarish and the esthetician Jamie Gutzman originally claiming that her claims arose from an “improper and negligent course of medical treatment.”  She alleged that the procedures resulted in  scarring and darkening on her back and face. She further alleged a duty of care as a patient of Lake Jackson Medical Spa.  After no expert report was filed within the requisite time frame, the Defendants moved to dismiss.  Gaytan subsequently amended her petition to delete any reference to medical procedures and health care liability.  The amended petition asserted that Defendants were in the business of providing cosmetic procedures and that they were liable for negligent hiring, negligent supervision and negligent retention.  In support of the change, Gaytan served an affidavit stating she was not seeking treatment to “combat, address or prevent any disease, disorder or injury.”  She further stated that she never saw Dr. Yarish and never established a physician-patient relationship with him.  Significantly, the allegations against Defendants included items such as “failing to properly assess, document and/or request Plaintiff’s medical history...” and “recommending and/or prescribing laser treatment without determining its effect on Plaintiff’s ethnic skin.”  Such allegations certainly seem to relate to medical care.

In analyzing the application of the TMLA, the court noted that the broad language of the TMLA “evinces legislative intent for the staute to have expansive application.” Interpreting the Texas Supreme Court’s opinion in Tex. W. Oaks Hosp., which sets forth the elements of a health care liability claim, the court determined that “health care claims must involve a physician-patient relationship.”  371 S.W.3d 171 (Tex. 2012). The court found that Gaytan’s affidavit established that she had no physician-patient relationship with Yarish or Lake Jackson. The court distinguished the Texas Supreme Court’s opinion in Bioderm Skin Care, LLC v. Sok, holding that a claim involving injury from a laser at a skin care center fell within the purview of the TMLA because Gaytan’s claim did not arise from the use of a medical device.  426 S.W.3d 753 (Tex. 2014).  The court further held that Lake Jackson had not established that the claims required expert testimony or are matters not within the common knowledge of laypersons.  Two other Texas opinions holding that similar treatment would fall within the scope of the TMLA were examined by the court and distinguished.  The crux of the opinion is that the acts in question were performed by an esthetician and did not arise from a physician-patient relationship.  As such, the claims do not constitute a health care liability claim.

This opinion dramatically departs from Texas case precedent and presents a very narrow view of the application of Chapter 74.  The requirement of an established physician-patient relationship exist is a novel interpretation of the statute and also disregards the requirement of licensed physician overseeing cosmetic procedures at a med spa.  The lengthy requirements of a physician overseeing Non-Surgical Medical Cosmetic Procedures are set forth in detail a in the Texas Administrative Code.  22 Tex. Admin. Code Sec. 193.17 As such, it anticipated that a further appeal will follow and give the Texas Supreme Court the opportunity to weigh in.