We have a pair of starkly conflicting opinions recently issued by the Dallas Court of Appeals in the arena of Health Care Liability claims to report.  In one, the court applies the well-settled principle that a plaintiff’s pleadings do not determine whether a claim is a health care liability claim and the court applies the Texas Supreme Court’s analysis in Marks v. St. Lukes Episcopal Hospital to the legal determination of whether the claim is a health care liability claim.  In the second case, the court does not mention the Marks test, and holds that the plaintiff’s pleadings do determine whether a claim is a health care liability claim.


InNexus Recovery Center, Inc. v. Mathis, the court held that a claim against a mental healthcare facility for mental and emotional injuries that arose from contact between an employee of the facility and the plaintiff after the time the plaintiff was a patient at the facility, was not a health care liability claim subject to the expert reporting requirements.  Applying the Supreme Court’s analytical framework from Marks v. St. Lukes Episcopal Hospital, the court examined "the underlying nature of the claim" as opposed to the pleadings. The court concluded that the plaintiff’s claims related to health care only in the sense that the plaintiff first met Nexus Recovery Center’s employee when the plaintiff was a patient at Nexus.  The court distinguished other opinions by pointing out that the claims arose on the premises of the healthcare facitily.  Finally the court rejected Nexus’ assertion that the plaintiff was recasting her claims to avoid application of Chapter 74, emphasizing that artful pleading will not avoid the scope of the act since it is the facts that determine whether the claim is subject to Chapter 74.  The court’s opinion may be found here.

Contrast Nexus, with a case decided two weeks earlier.  In Giron v. Baylor University Medical Center, the opinion does not include a discussion of the rule that the plaintiff’s pleadings are not controlling as to whether the claim falls within Chapter 74.  Quite the opposite.  Here, the court concluded that Giron’s own pleading characterized the claim as one subject to Chapter 74.  The court appears to say that Giron is estopped by her pleadings to contest that the claim is subject to Chapter 74.  The court did not engage in an analysis of the claim using the Marks test.  Giron’s claim was that the medical facility was negligent in two respects, honoring powers of attorney that had been challenged in court and failing to provide her deceased mother with adequate security and a safe environment.  The court’s opinion may be found here.

So what’s the take-away lesson for practitioners?  Neither the Nexus opinion nor the Giron opinion explains why one plaintiff’s pleadings were determinative of the applicability of Chapter 74 while the other plaintiff’s pleadings were not and the claim was, instead, evaluated under Marks.  Practitioners will want to be wary of these two cases when pleading their claims.  It may be that Giron stands for the proposition that if a plaintiff affirmatively states that his or her claim is a Chapter 74 claim, the court won’t look beyond that or allow the party to claim otherwise.