Robert Lowry, M.D. and Neurology and Neurophysiology Associates, PA v. Peter A. Tarbox, M.D. ( 2011 )

MEMORANDUM OPINION
No. 04-11-00394-CV
Robert LOWRY, M.D. and Neurology and Neurophysiology Associates, P.A.,
Appellants
v.
Peter A. TARBOX, M.D.,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-20160
Honorable Larry Noll, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: October 26, 2011
AFFIRMED
Almost five years ago, a justice on this panel expressed concern about the gamesmanship
being spawned in the area of the law involving health care liability claims and expert reports.
See Regent Care Ctr. of Laredo v. Abrego, No. 04-06-00518-CV, 2006 WL 3613190, at *1 (Tex.
App.—San Antonio Dec. 13, 2006, pet. denied) (Speedlin, J., concurring) (mem. op.). This
appeal raises the same concern. The underlying cause involves a business dispute in which a
physician sued to recover damages for breach of contract and for tortious acts that were
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damaging to the physician as the minority owner of a professional association. The majority
owner and the professional association moved to dismiss the lawsuit, asserting the claims alleged
were health care liability claims that required the service of an expert report. We affirm the trial
court’s order denying the motion.
BACKGROUND
In 1999, Dr. Peter Tarbox and Dr. Robert Lowry formed Neurology and
Neurophysiology Associates, P.A. to provide neurological services to patients. NNPA signed a
contract with Dr. Tarbox regarding his services. Under this contract, Dr. Tarbox was entitled to
receive 33% of the money collected for services he performed. Dr. Tarbox and NNPA were also
parties to a Stock Redemption Agreement requiring the redemption of Dr. Tarbox’s ownership
interest in NNPA when he decided to leave the practice.
In late 2008, Dr. Tarbox was not paid for his services. While investigating the reason for
the non-payment, Dr. Tarbox discovered that Dr. Lowry had been moving revenues and expenses
between NNPA and two other entities owned by Dr. Lowry for Dr. Lowry’s sole benefit. Dr.
Lowry also began taking other actions that would benefit these other entities to the potential
detriment of NNPA and Dr. Tarbox. Based on his discoveries, Dr. Tarbox sued NNPA, Dr.
Lowry, and the other two entities in December of 2010, asserting numerous claims including: (1)
breach of contract for failing to pay him for his services; (2) breach of the Stock Redemption
Agreement and a demand for an accounting to determine the redemption price he was entitled to
receive; (3) shareholder oppression and breach of the fiduciary duty owed to a minority owner;
(4) fraud and negligent misrepresentation for representations made by Dr. Lowry at the time
NNPA was formed; (5) tortious interference by Dr. Lowry and the other two entities with the
contracts between Dr. Tarbox and NNPA; and (6) civil conspiracy. NNPA and Dr. Lowry
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moved to dismiss the lawsuit, asserting the claims were health care liability claims and that Dr.
Tarbox failed to timely serve them with an expert report.
DISCUSSION
The issue presented in this appeal is whether the claims in the underlying lawsuit are
health care liability claims subject to the expert report requirement of Chapter 74 of the Texas
Civil Practice and Remedies Code. Whether Chapter 74 applies to a claim is a matter of
statutory construction which presents a question of law that we review de novo. Marks v. St.
Luke’s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010); Buchanan v. O’Donnell, 340 S.W.3d
805, 810 (Tex. App.—San Antonio Feb. 23, 2011, no pet.).
A health care liability claim is defined in pertinent part 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.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.001(a)(13) (West 2011). “Health care” is defined as “any act or treatment performed or
furnished, or that should have been performed or furnished, by any health care provider for, to,
or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Id. at
§ 74.001(a)(10).
In their brief, NNPA and Dr. Lowry focus on the portion of the definition of health care
liability claim that includes a cause of action for “professional or administrative services directly
related to health care.” They then argue that the underlying claims are “inextricably intertwined
with the rendition of health care” because “the administrative details of the medical practice have
an effect on the quality of care to the patients.” However, in order for claims relating to
professional or administrative services to meet the definition, those claims must directly relate to
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treatment that was or should have been furnished for, to, or on behalf of a patient. Id.; see also
Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527 (Tex. 2011). The underlying claims
have no direct relationship to the “rendition of medical treatment” to a patient, nor do they
“implicate medical or health care judgments made by professionals.” Marks, 319 S.W.3d at 663;
Buchanan, 340 S.W.3d at 810. Instead, the underlying claims relate to contractual and business
relationships and damages resulting from alleged breaches of contracts and tortious acts within
the context of those business relationships. The acts giving rise to these claims are not “an
inseparable or integral part of [a] patient’s care or treatment,” and there is no “substantial and
direct” relationship between these acts and a patient’s care or treatment. Marks, 319 S.W.3d at
664. Moreover, expert testimony from a medical or health care professional will not be
necessary in order for Dr. Tarbox to prove his claims. Buchanan, 340 S.W.3d at 810 (necessity
of expert testimony from a medical or health care professional is important factor in determining
whether a claim is a health care liability claim).
CONCLUSION
Because the underlying claims are not health care liability claims, we affirm the trial
court’s order denying the motion to dismiss.
Catherine Stone, Chief Justice
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