Maurice N. Leibman M.D. v. Cleveratta Waldroup and James Waldroup, Individually and as Next Friends of R. W., a Minor

Supreme Court of Texas
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No. 23-0317
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Maurice N. Leibman M.D.,
Petitioner,

v.

Cleveratta Waldroup and James Waldroup, Individually and as
Next Friends of R.W., a Minor,
Respondents

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On Petition for Review from the
Court of Appeals for the First District of Texas
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JUSTICE HUDDLE, joined by Chief Justice Blacklock, Justice
Bland, and Justice Sullivan, dissenting.

The lamentable facts of this case do not justify disregarding
statutory language and our precedents. For over a decade this Court
has held, consistent with the Texas Medical Liability Act’s “expansive
application,” Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012), that
when a negligence claim against a physician is inseparably intertwined
with health-related services, it is a health care liability claim (HCLC).
See Yamada v. Friend, 335 S.W.3d 192, 197 (Tex. 2010) (“[I]f the
gravamen or essence of a cause of action is [an HCLC], then allowing
the claim to be split or spliced into a multitude of other causes of action
with differing standards of care, damages, and procedures would
contravene the Legislature’s explicit requirements.”). We have rightly
recognized that if the facts as pleaded (as opposed to the plaintiff’s
characterization of a claim) could support an HCLC, the claim is subject
to the Act. Id.; see also Lake Jackson Med. Spa, Ltd. v. Gaytan,
640 S.W.3d 830, 838 (Tex. 2022) (“[T]he claimant cannot avoid the Act
by splitting claims into both [HCLCs] and other types of claims such as
ordinary negligence claims or by amending her pleading to recast her
claims.” (citations and internal quotation marks omitted)).
Today, the Court departs from these precedents and welcomes
artful pleading to avoid the Act’s application. The Court allows the
Waldroups to excise phrases from Dr. Leibman’s letters, which he
provided in the course of rendering medical care to his patient, and
reframe them to allege a negligence claim independent from that
medical care. The Waldroups’ claim against Dr. Leibman should be
dismissed because it is premised on facts inseparably linked to
Dr. Leibman’s rendition of medical care. Because the Court concludes
otherwise, I respectfully dissent.
I. The TMLA is broadly construed.
Chapter 74 of the Civil Practice and Remedies Code—the
TMLA—requires that “[i]n a health care liability claim, a claimant shall,
not later than the 120th day after the date each defendant’s original
answer is filed . . . , serve on that party . . . one or more expert reports.”
TEX. CIV. PRAC. & REM. CODE § 74.351(a). A claimant’s failure to timely
serve the expert report “shall” result in an order that “(1) awards to the

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affected physician . . . reasonable attorney’s fees and costs of court
incurred by the physician . . . ; and (2) dismisses the claim with respect
to the physician . . . with prejudice.” Id. § 74.351(b).
The Act defines an HCLC 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, which proximately results in injury to” the claimant. Id.
§ 74.001(a)(13). “Medical care” is defined as “any act defined as
practicing medicine under Section 151.002, Occupations Code,
performed or furnished, or which should have been performed, by one
licensed to practice medicine in this state for, to, or on behalf of a patient
during the patient’s care [or] treatment.” Id. § 74.001(a)(19). The
Occupations Code defines “[p]racticing medicine” as
diagnos[ing], treat[ing], or offer[ing] to treat a mental or
physical disease or disorder . . . by any system or method,
or the attempt to effect cures of those conditions, by a
person who: (A) publicly professes to be a physician . . . ; or
(B) directly or indirectly charges money . . . for those
services.
TEX. OCC. CODE § 151.002(a)(13). Whether a claim is an HCLC is a
question of law we review de novo. Collin Creek Assisted Living Ctr.,
Inc. v. Faber, 671 S.W.3d 879, 885 (Tex. 2023).
To determine whether the Waldroups’ claim is an HCLC, we look
to the underlying nature of the claim. CHRISTUS Health Gulf Coast v.
Carswell, 505 S.W.3d 528, 534 (Tex. 2016). The Court “should consider
the entire court record, including the pleadings, motions and responses,
and relevant evidence properly admitted.” Loaisiga, 379 S.W.3d at 258.

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A claim “alleges a departure from accepted standards of medical care,”
and thus is an HCLC, “if the act or omission complained of is an
inseparable part of the rendition of medical services.” Diversicare Gen.
Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005); see also Gaytan,
640 S.W.3d at 846 (“[A] claim constitutes [an HCLC] when the conduct
complained of is an ‘inseparable or integral part of the rendition of
health care.’” (quoting Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d
171, 180 (Tex. 2012))).
“Artful pleading” by recasting an HCLC as a non-HCLC does not
transmute the underlying nature of the claim. Yamada, 335 S.W.3d
at 196. If, based on the totality of the circumstances, the underlying
nature of a claim makes it an HCLC, it is impermissible to split it to
avoid the Act’s application. See id. at 197 (“[I]f the gravamen or essence
of a cause of action is [an HCLC], then allowing the claim to be split or
spliced into a multitude of other causes of action with differing
standards of care, damages, and procedures would contravene the
Legislature’s explicit requirements.”). In other words, claims that could
be independently asserted as ordinary negligence claims but are
inseparably intertwined with medical services are HCLCs. See id.
(acknowledging claims that could be asserted as ordinary negligence are
HCLCs if “the specific acts and omissions of the [defendant] were an
inseparable part of the health and medical transaction”). When a claim
is premised on facts that do, or even could, support an HCLC, that claim
is an HCLC, regardless of the pleading’s specific allegations. We have
recognized that a contrary holding would defeat the purposes of the
TMLA because a claimant could easily isolate a specific act by a health

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care provider that could be characterized as distinct from medical care
or health care:
Clearly, particular actions or omissions underlying
[HCLCs] can be highlighted and alleged to be breaches of
ordinary standards of care. . . . Plaintiffs will be able to
entirely avoid application of the TMLA by carefully
choosing the acts and omissions on which to base their
claims and the language by which they assert the claims.
Id.
The TMLA’s broad language “essentially creates a presumption
that a claim is an HCLC if it is against a physician or health care
provider and is based on facts implicating the defendant’s conduct
during the course of a patient’s care, treatment, or confinement.”
Loaisiga, 379 S.W.3d at 256. When the presumption applies, it is the
claimant’s burden to rebut it and show that the claim is not an HCLC.
Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363
(Tex. 2019).
II. The Waldroups’ claim against Dr. Leibman is an HCLC.
The Court concludes that the Waldroups’ claim against
Dr. Leibman cannot be an HCLC because, it asserts, no expert medical
testimony is required to establish the standard of care and any breach
thereof. The Court reaches that conclusion by accepting the Waldroups’
characterization that the only alleged negligence concerns
Dr. Leibman’s statements about the “training, behavior and legal
status” of Kingston, one of Dr. Leibman’s patient’s service animals. The
Court thus limits the operative facts to what the Waldroups artfully
allege was the breach of care, i.e., Dr. Leibman’s isolated comments
about Kingston’s temperament.

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But as this Court acknowledged in Faber, how a court “define[s]
the universe of relevant facts . . . can significantly affect the outcome of
the analysis.” 671 S.W.3d at 885. “Courts must focus on the set of
operative facts ‘underlying the claim’ that are relevant to the alleged
injury, not on how ‘the plaintiff’s pleadings describ[e] the facts or legal
theories asserted.’” Id. (emphasis added) (alteration in original)
(quoting Loaisiga, 379 S.W.3d at 255); see also Loaisiga, 379 S.W.3d
at 255 (defining “cause of action” under the TMLA as the “fact or facts
entitling one to institute and maintain an action, which must be alleged
and proved in order to obtain relief” (quoting In re Jorden, 249 S.W.3d
416, 421 (Tex. 2008))).
The Waldroups, and the Court, limit the “operative facts” to
Dr. Leibman’s comments on Kingston’s “training, behavior and legal
status.” But we have previously observed that even though a claim may
be pleaded in a way that focuses on an act of ordinary negligence, if the
act is an inseparable part of medical services, it is an HCLC. For
example, in Yamada, we described a case in which an embryologist
dropped a tray of embryos, destroying most of them. 335 S.W.3d at 197
(discussing Inst. for Women’s Health, P.L.L.C. v. Imad, No. 04-05-00555-
CV, 2006 WL 334013 (Tex. App.—San Antonio Feb. 15, 2006, no pet.)).
Even though “the care required in carrying a tray of embryos without
dropping it could have been asserted as ordinary negligence” that would
not require a medical expert, we agreed with the court of appeals’
holding that the embryologist’s acts and omissions were an inseparable
part of health and medical services and thus the claim was an HCLC.
Id.

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The same is true here. Every letter 1 written by Dr. Leibman for
his patient references her diagnosed anxiety and describes a course of
treatment. Isolating individual statements in the letters and asserting
only those statements as acts of ordinary negligence does not sever them
from Dr. Leibman’s medical services. What underlies the Waldroups’
claim and is relevant to their alleged injury is Dr. Leibman’s rendition
of medical services through the letters. A plaintiff cannot cherry-pick
statements and plead only those statements as independent acts of
negligence to avoid the Act’s application. See id.; Garland Cmty. Hosp.
v. Rose, 156 S.W.3d 541, 543 (Tex. 2004) (“Plaintiffs cannot use artful
pleading to avoid the [statute’s] requirements when the essence of the
suit is [an HCLC].”).
By focusing exclusively on isolated facts highlighted by the
Waldroups, the Court ignores our precedents’ broad construction of the
Act and the presumption that claims against a physician “based on facts
implicating the defendant’s conduct during the patient’s care [or]
treatment . . . are HCLCs.” Loaisiga, 379 S.W.3d at 252. No one
disputes that Dr. Leibman is a licensed practicing physician who wrote
the letters in the context of providing medical care to his patient,
Romano. To rebut the HCLC presumption, the Waldroups must present
evidence showing, or the record must indicate, that their claim does not
relate to Dr. Leibman’s “departure from accepted standards of medical

1 Although the record contains only one letter written by Dr. Leibman,

dated July 15, 2019, several other letters were summarized or directly quoted
in a police report. The Waldroups do not dispute the other letters’ existence or
the report’s characterization of their substance; indeed, they attached a copy
of the police report to their response in the trial court.

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care or health care” in treating Romano’s general anxiety disorder.
Gaytan, 640 S.W.3d at 844 (quoting Bioderm Skin Care, LLC v. Sok,
426 S.W.3d 753, 759–60 (Tex. 2014)). To determine whether the
Waldroups have met this burden, we first examine whether “expert
medical or health care testimony is needed to establish the requisite
standard of care and breach.” Bioderm, 426 S.W.3d at 760. If so, the
claim is an HCLC, and the Waldroups have failed to meet their burden.
Tex. W. Oaks Hosp., 371 S.W.3d at 182. But even if expert testimony is
not needed, we “consider the totality of the circumstances, as a claim
may still be [an HCLC].” Bioderm, 426 S.W.3d at 760; see also Weems,
575 S.W.3d at 366 n.36.
The Waldroups failed to rebut the HCLC presumption. The
letters were all prepared by a physician for his patient and directly refer
to her medical condition. As alleged by the Waldroups, the facts could
have supported a claim that Dr. Leibman breached a medical standard
of care by providing opinions in the course of his medical care that
exceeded his qualifications as a physician. Expert medical testimony
would be necessary to establish the appropriate scope of the written
opinions that a physician may give when providing medical care and
whether the contents of Dr. Leibman’s letters breached that standard.
And the Waldroups acknowledged to the trial court that Dr. Leibman’s
status as a physician was a crucial part of their negligence claim: “It
makes a difference when Dr. Leibman says that Kingston is a ‘service
animal’, is ‘certified’ or does particular tasks. His authority encouraged

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Ms. Romano to hold Kingston out as a ‘service animal’ . . . .” 2
Dr. Leibman’s statements, and the letters generally, were made in the
context of his medical care—his treatment for Romano’s diagnosed
anxiety. See TEX. OCC. CODE § 151.002(13) (defining “[p]racticing
medicine” to include a physician’s diagnosis, treatment, or attempt to
cure a patient’s condition).
The Court contends that “[a]nyone—with or without medical
training—could have described the dog’s behavior and temperament.”
Ante at 18. Perhaps, but that misses the point. A physician
(Dr. Leibman) made these statements in the course of providing medical
care to his patient (Romano), and as the Waldroups concede, the fact
that he was a physician was significant. Based on these facts, the
Waldroups could have pleaded their claim in a way that would have
required expert medical testimony to establish the standard of care and
whether Dr. Leibman breached that standard. Because the facts alleged
by the Waldroups could give rise to an HCLC, their claim is an HCLC
even though they pleaded their claim so as to avoid the Act. Gaytan,
640 S.W.3d at 838; Yamada, 335 S.W.3d at 197.
I acknowledge there are instances where a physician’s purported
negligence is so unrelated to the rendition of medical care that it is not
an HCLC. See Loaisiga, 379 S.W.3d at 256 (recognizing the HCLC

2 The Waldroups likewise concede in their briefing in this Court that

their claim relies on Dr. Leibman’s status as a physician. See Respondents’
Brief in Response at 11 (“Dr. Leibman acted outside his qualifications,
capacities, and role as a doctor in his representations of Romano’s dogs.”), 20
(“It is these statements on which Leibman slapped his ‘MD’ as a[n]
imprimatur, that are the basis of Waldroup’s claims against Leibman.”).

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presumption would be rebutted if “the only possible relationship
between the conduct underlying a claim and the rendition of medical
services or healthcare [is] the healthcare setting,” i.e., “the physical
location of the conduct”); see also Reddy v. Veedell, 509 S.W.3d 435, 438
(Tex. App.—Houston [1st Dist.] 2014, pet. denied) (holding a bicyclist’s
claim against a physician who struck her with his car while distracted
was not an HCLC). This is not such a case. The gravamen of the
Waldroups’ claim is that a physician in the course of providing medical
care to a patient for general anxiety disorder committed negligence by
making statements he allegedly was not qualified to make. The
Waldroups’ attempt to limit the facts in this doctor–patient interaction
to only those that they allege fall outside that relationship does not
make their fiction a reality. Because the Waldroups failed to overcome
the presumption that this claim is an HCLC, I would hold that it is and
therefore is subject to the Act.
Because the Court concludes that the Waldroups’ claim is not an
HCLC, it does not address the alternative ground for affirmance
advanced by the Waldroups. They argue that they were entitled to
notice that Dr. Leibman believed the claim against him was an HCLC
and would seek dismissal for failure to produce an expert report and
that dismissal would violate their due process rights. They also contend
dismissal would inappropriately reward Dr. Leibman for failing to
disclose his defenses as Texas Rule of Civil Procedure 194.2 requires.
I am unpersuaded. The Act does not require the defendant to
notify the parties of his belief that a claim is an HCLC or that he will
seek dismissal absent a timely expert report. See TEX. CIV. PRAC. & REM.

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CODE § 74.351; cf. Walker v. Gutierrez, 111 S.W.3d 56, 65 (Tex. 2003)
(noting that an earlier version of the Act similarly “does not contain a
requirement that a defendant provide a claimant with notice of
noncompliance before that defendant moves to dismiss the case”). But
the Act also makes clear that a court must dismiss a cause of action
where an HCLC claimant fails to serve an expert report—there is no
discretion. TEX. CIV. PRAC. & REM. CODE § 74.351(b). And while
Rule 194.2 requires a party to provide “legal theories and, in general,
the factual bases of the responding party’s claims or defenses,” TEX. R.
CIV. P. 194.2(b)(3), the failure to satisfy Rule 194.2 cannot preclude
dismissal under Section 74.351. See TEX. CIV. PRAC. & REM. CODE
§ 74.002(a) (providing that the Act controls in the event of a conflict with
another law or rule of procedure).
III. Conclusion
The TMLA has an expansive application that creates a rebuttable
presumption that a claim against a physician grounded in facts
connected to his conduct during the rendition of a patient’s medical care
is an HCLC. The Waldroups assert a claim against a physician based
on letters he wrote in the course of providing medical care for his patient.
Because expert medical testimony is necessary to establish the scope of
statements a physician could properly include in such letters and
whether the physician breached the standard of care by including
statements he should have omitted, the Waldroups failed to rebut the
presumption that their claim is an HCLC. Therefore, despite the
Waldroups’ attempt to circumvent the Act, I would hold that it requires

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dismissal of their claim with prejudice for failing to timely serve an
expert report. Because the Court holds otherwise, I respectfully dissent.

Rebeca A. Huddle
Justice

OPINION FILED: June 6, 2025

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