Opinion
No. 04-04-00550-CV
Delivered and Filed: April 6, 2005.
Appeal from the 150th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-13930, Honorable Lori D. Massey, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Wayne Brown appeals the trial court's order dismissing his DTPA claim against Harrison Bowes M.D. for failure to file an expert report. Because the issue in this appeal involves the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion. See Tex.R.App.P. 47.4.
In his brief, Brown refers to the effect of Bowes's failure to file special exceptions to challenge his pleadings; however, the dismissal in this case was not based on a pleading defect but on the failure to file an expert report. See Tex. Civ. Prac. Rem. Code Ann. § 74.351 (Vernon Supp. 2004-2005).
Bowes performed two eye surgeries on Brown. Brown sued Bowes alleging he negligently performed the surgeries. Brown also alleged violations of the DTPA based on Bowes's "false assurances that the precautionary measures [Bowes] had previously indicated to [Brown] were necessary to perform the medical treatment safely were not necessary to [Bowes's] success in the second procedure." Brown stated he relied on these "false assurances" in deciding to undergo the second procedure.
DTPA claims based on negligence are barred by statute, and claims that a health care provider was negligent may not be recast as DTPA claims. See Tex. Civ. Prac. Rem. Code Ann. § 74.004 (Vernon 2004-2005); see also MacGregor Medical Ass'n v. Campbell, 985 S.W.2d 38, 40 (Tex. 1998). To determine whether a DTPA claim is based on negligence, the focus should not be merely on the plaintiff's pleadings but on the underlying nature of the claim. MacGregor Medical Ass'n, 985 S.W.2d at 40.
Brown's claim that Bowes falsely assured him that precautionary measures would be taken in order to safely perform the surgery relates to the manner in which Bowes chose to perform the procedure. The gist of Brown's claim, therefore, is that he was injured because Bowes failed to adhere to the applicable standard of care by not undertaking the precautionary measures necessary for the surgery to be safely performed. See Earle v. Ratliff, 998 S.W.2d 882, 893 (Tex. 1999) (holding negligence claim could not be recast by claiming defendant misrepresented need for surgery or degree of success); Gomez v. Diaz, 57 S.W.3d 573, 580 (Tex.App.-Corpus Christi 2001, no pet.) (holding complaint that defendant misrepresented that a service had particular qualities was a negligence claim). Therefore, Brown's DTPA claim is essentially a negligence claim, and the trial court did not err in dismissing the claim.