John S. Bynon M.D. v. Susie Garcia, as Wrongful Death Beneficiary of Richard Mostacci, Deceased; Dianelys Corrales, as Wrongful Death Beneficiary of Daniel Rodriguez Alvarez; Robert Osuna, Jr., as Wrongful Death Beneficiary of Robert Osuna; Laura Whittington, Individually and as the Representative of the Estate of Jerry Whittington; Nicole Lloyd; Elia Combs; Maxine Whittington; Eden Whittington; And Joseph Whittington

Opinion issued April 2, 2026

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00849-CV
———————————
JOHN S. BYNON M.D., Appellant
V.
SUSIE GARCIA, AS WRONGFUL DEATH BENEFICIARY OF RICHARD
MOSTACCI, DECEASED; DIANELYS CORRALES, AS WRONGFUL
DEATH BENEFICIARY OF DANIEL RODRIGUEZ ALVAREZ; ROBERT
OSUNA, JR., AS WRONGFUL DEATH BENEFICIARY OF ROBERT
OSUNA; LAURA WHITTINGTON, INDIVIDUALLY AND AS THE
REPRESENTATIVE OF THE ESTATE OF JERRY WHITTINGTON;
NICOLE LLOYD; ELIA COMBS; MAXINE WHITTINGTON; EDEN
WHITTINGTON; AND JOSEPH WHITTINGTON, Appellees

On Appeal from the 295th District Court
Harris County, Texas
Trial Court Case No. 2024-26227
OPINION

This appeal involves the terms “health care liability claim,” “answer,” and

“claimant.” It arises in the context of an organ transplant program and the all-

important waiting list. After a newspaper article accused a transplant surgeon of

manipulating the list and depriving patients of lifesaving care, surviving relatives of

his former patients went to court, but not for damages; they asked for injunctive

relief to preserve evidence, while stopping short of requesting damages. Some

intervenors later joined the suit.

The two sides disagree about whether expert reports were required. No reports

were served, so if the law required them, the claims against the doctor must be

dismissed with prejudice. The doctor’s motion to dismiss was denied, and he appeals

that denial. He contends that: (1) the case presents health care liability claims, (2) his

brief in opposition to the request for an injunction counts as an answer, thus starting

the clock for a report, and (3) the statutory definition of “claimant” reaches (a) the

plaintiffs and (b) the intervenors, so they all come under the requirement that a

claimant serve an expert report.

We agree with the doctor on several points. Specifically, we agree with him

on contentions (1), (2), and (3)(b). First, the claims are health care liability claims.

Second, the doctor filed an answer, even though he did not label it as an answer.

Finally, the Texas Medical Liability Act (Civil Practice and Remedies Code Chapter

2
74) requires a report of a “claimant,” which is carefully defined in terms of seeking

damages: “‘Claimant’ means a person, including a decedent’s estate, seeking or who

has sought recovery of damages in a health care liability claim.” TEX. CIV. PRAC. &

REM. CODE § 74.001(a)(2). Hence, all who sought damages are claimants and must

suffer dismissal; those who did not may proceed.

We affirm in part and reverse in part.

BACKGROUND FACTS

The plaintiffs sue for injunctive relief, but not damages

An article in the New York Times reported that transplant surgeon Dr. John

S. Bynon was under investigation for altering the transplant list at Memorial

Hermann–Texas Medical Center and potentially denying his patients lifesaving care.

Susie Garcia, Dianelys Corrales, and Robert Osuna, Jr., surviving relatives of

Bynon’s former patients, thereafter sent Dr. Bynon statutory presuit notices of health

care liability claims. See id. § 74.051(a). These notices reminded him of the

obligation to preserve records that could be relevant to future litigation, and they

sought to settle the controversy without the necessity of litigation. About a week

later, they filed an application for a temporary restraining order and a temporary

injunction.

The application for an injunction asserted that their loved ones—Richard

Mostacci, Daniel Rodriguez Alvarez, and Robert Osuna—were put on an organ

3
transplant waiting list overseen by Dr. Bynon in 2021 or 2022. The plaintiffs alleged:

“There is significant concern that [Dr. Bynon] was improperly excluding patients,

including Mr. Mostacci, Mr. Rodriguez-Alvarez, and Mr. Osuna, from receiving a

liver transplant and depriving them of lifesaving care.” They alleged that their loved

ones died in 2023 or 2024, sought preservation of evidence that “might be relevant

to a potential claim that could be filed,” and argued that imminent harm was the

potential “destruction of relevant or material evidence and/or admissible evidence in

future litigation related to this claim.”

The remainder of the plaintiffs’ pleading details the request for injunctive

relief to preserve evidence. It contains counts for a temporary restraining order and

for a temporary injunction, but no count for damages. It never refers to damages,

interest on damages, or dollars.

Dr. Bynon files an opposition to the request for injunctive relief

Dr. Bynon promptly filed a “Brief in Opposition to Plaintiffs’ Application for

Temporary Restraining Order and Temporary Injunction.” This document, which

was filed in the trial court and served on counsel of record, identified the case, the

cause number, and the parties. It was signed by Bynon’s counsel and denied the

factual allegations. It begins:

John S. Bynon, M.D. is a transplant surgeon in Houston, where he is a
Professor in the Department of Surgery at McGovern Medical School
at UTHealth. Plaintiffs’ Application for Temporary Restraining Order
and Temporary Injunction (“Application”) alleges, based on a New
4
York Times article alone, that Dr. Bynon “was improperly excluding
patients, including Mr. Mostacci, Mr. Rodriguez Alvarez, and Mr.
Osuna, from receiving a liver transplant and depriving them of
lifesaving care.” . . . This allegation is false.

....

These accusations are based on hearsay upon hearsay, and there is no
indication that these accusations are medically accurate, or whether the
New York Times article is based on care rendered to the three patients
that are the subject of this Application. . . .

(Emphasis added.)

Bynon also asserted that the plaintiffs did not identify a cause of action in their

application, they did not plead and prove a probable right to the relief sought, and

Susie Garcia’s affidavit supporting the application did not demonstrate any basis for

her personal knowledge of the facts asserted. Therefore, he argued, the request for

injunctive relief was defective and without merit.

Intervenors join the suit and seek damages

Less than a week after Bynon responded to the plaintiffs’ application, Laura

Whittington, individually and as the representative of the estate of Jerry Whittington,

Nicole Lloyd, Elia Combs, Maxine Whittington, Eden Whittington, and Joseph

Whittington filed a petition in intervention.

The intervenors alleged that Jerry Whittington was placed on the same organ

transplant list awaiting a liver transplant and that he died in September 2023. Unlike

the plaintiffs, however, the intervenors expressly referred to damages: “Intervenors

5
seek injunctive relief as permitted by law. . . . This is a suit for all damages legally

recoverable for the wrongful death of Jerry Whittington, under the terms of Section

71.001, et. seq., Civil Practice & Remedies Code.”

Plaintiffs amend but still do not seek damages

The plaintiffs filed a First Amended Application for Temporary Restraining

Order and Temporary Injunction. The only difference between this pleading and the

original is in one sentence in paragraph 15. The original application asked broadly

for preservation of documents, records, data, or “things that might be relevant to a

potential claim that could be filed.” The amended application changed the language

to “things that might be relevant to a potential claim for personal injuries and/or

wrongful death that could be filed.”

Bynon moves to dismiss

Bynon moved to dismiss. He argued that the claims were health care liability

claims, that he filed an answer, and that the case should be dismissed because neither

the plaintiffs nor the intervenors served an expert report within 120 days of his

answer. The plaintiffs and intervenors disagreed and argued, among other things,

that they were not seeking damages and thus fell outside the definition of “claimant,”

which in turn would mean that no expert report was required. The trial court denied

Bynon’s motion to dismiss, and he appealed.

6
ANALYSIS

We review a ruling on a motion to dismiss under Chapter 74 for an abuse of

discretion. Walker v. Baptist St. Anthony’s Hosp., 703 S.W.3d 339, 343 (Tex. 2024)

(per curiam); Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d

869, 871 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). All agree that no expert

report was filed, so our analysis does not address a report’s adequacy, but rather

whether a report was required at all. This question presents a matter of statutory

construction, which we review de novo. See Collin Creek Assisted Living Ctr., Inc.

v. Faber, 671 S.W.3d 879, 885 (Tex. 2023) (reviewing whether plaintiff asserted

health care liability claim under de novo standard).

The statutory scheme contains two significant definitions.

1. Health care liability claim. Start with the definition of health care liability

claim (HCLC). The Act defines 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 or death of a claimant, whether the
claimant’s claim or cause of action sounds in tort or contract.

TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13).

If a cause of action is an HCLC, any claimant must “serve one or more expert

reports describing the applicable standards of care, how the defendant’s conduct

failed to meet those standards, and how those failures caused the claimant harm.”

7
Collin Creek, 671 S.W.3d at 885 (citing TEX. CIV. PRAC. & REM. CODE § 74.351(a),

(r)(6)). This requirement “enables trial courts to ‘identify and eliminate frivolous

[HCLC]s expeditiously, while preserving those of potential merit,’ because any

claim that constitutes an HCLC is subject to dismissal with prejudice if the claimant

fails to produce a sufficient expert report within the statutorily imposed timeframe.”

Leibman v. Waldroup, 715 S.W.3d 367, 373–74 (Tex. 2025) (quoting Samlowski v.

Wooten, 332 S.W.3d 404, 410 (Tex. 2011) (plurality op.), and citing TEX. CIV. PRAC.

& REM. CODE § 74.351(a)–(c)).

2. Claimant. The definition of HCLC forms a subpart of the second definition

in play, namely the definition of “claimant.” The statutory predecessor to the Act

defined HCLC by referencing an injury to “the patient,” but when the Legislature

enacted the Act in 2003, it added a definition for “claimant.” See Tex. W. Oaks Hosp.,

LP v. Williams, 371 S.W.3d 171, 178 (Tex. 2012). The Act defines a claimant as a

person “seeking or who has sought recovery of damages in a health care liability

claim.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2).

Statutory definitions are binding on the courts: “[I]f a statute defines a term,

a court is bound to construe that term by its statutory definition only.” Tex. Dep’t of

Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002); see Bexar Appraisal Dist. v.

Johnson, 691 S.W.3d 844, 847 (Tex. 2024) (similar); Entergy Gulf States, Inc. v.

Summers, 282 S.W.3d 433, 437 (Tex. 2009) (op. on reh’g) (“We do not look to the

8
ordinary, or commonly understood, meaning of the term because the Legislature has

supplied its own definition, which we are bound to follow.”) (citing TEX. GOV’T

CODE § 311.011(b)).

I. The plaintiffs and intervenors filed HCLCs.

Whether a claim is an HCLC depends on the underlying nature of the claim,

rather than the label given by the plaintiff. Collin Creek, 671 S.W.3d at 885. As

relevant to this case, an HCLC is a cause of action that “includes three essential

elements: (1) the defendant is a physician . . . ; (2) the claim is for treatment, lack of

treatment, or another departure from accepted standards of medical care . . . ; and

(3) the defendant’s act or omission proximately caused the claimant’s injury or

death.” Id. at 886 (citing Tex. W. Oaks Hosp., 371 S.W.3d at 179–80).

A cause of action is the fact or facts entitling one to institute and maintain an

action, which must be alleged and proved in order to obtain relief. In re Jorden, 249

S.W.3d 416, 421 (Tex. 2008) (orig. proceeding) (quotation omitted). In addition,

“claims premised on facts that could support claims against a physician . . . for

departures from accepted standards of medical care [or] health care . . . are HCLCs,

regardless of whether the plaintiff alleges the defendant is liable for breach of any

of those standards.” Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012); see In re

Jorden, 249 S.W.3d at 422 (concluding that petition for Rule 202 presuit deposition

9
was HCLC even though no claim had been filed against defendant asserting liability

for injury).

Further, “artful pleading and recasting of claims is not permitted.” Yamada v.

Friend, 335 S.W.3d 192, 196 (Tex. 2010); see CHRISTUS Health Gulf Coast v.

Carswell, 505 S.W.3d 528, 534 (Tex. 2016) (stating that when determining whether

claim is HCLC, “we examine the underlying nature and gravamen of the claim,

rather than the way it is pleaded”). “The gravamen of a claim is its true nature, as

opposed to what is simply alleged or artfully pled, allowing courts to determine the

rights and liabilities of the involved parties.” B.C. v. Steak N Shake Operations, Inc.,

512 S.W.3d 276, 283 (Tex. 2017).

We now turn to the question whether the three parts of the test for HCLC

recited earlier—doctor, departure, and causation—have been met. The first element

is plainly satisfied: Bynon is a medical doctor.

Second, the original application and the petition in intervention both alleged

that Bynon was responsible for the liver transplant waiting list at Memorial

Hermann–Texas Medical Center and that each of the appellees’ decedents had, at

one point, been placed on the list to receive an organ transplant. All alleged a

“concern” that Bynon might have excluded their loved ones from the list improperly,

thus depriving them of lifesaving care. All alleged that their loved ones, who had

needed organ transplants, had died. This satisfies the second element of the test.

10
We acknowledge the appellees’ contention to the contrary. They say that the

claims are for preservation of evidence, not production of evidence, and thus do not

require expert medical testimony. But the Texas Supreme Court has held that when

a claim is premised on facts that could support claims against a physician for

departures from accepted standards of medical care, the claim is an HCLC regardless

of whether the plaintiff has actually alleged that the defendant is liable for a breach

of those standards. Loaisiga, 379 S.W.3d at 255. In Jorden, the supreme court

specifically held that a petition for a presuit deposition under Rule 202 was a HCLC.

249 S.W.3d at 422. We find that the nature of the claims at issue here satisfy the

second element of the test.

The third and final element of the test is essentially undisputed. The plaintiffs

and intervenors allege that Bynon’s actions caused the death of their loved ones.

The fact that the claims came in an application for temporary injunction does

not change our conclusion. The plaintiffs and intervenors sought injunctive relief to

preserve evidence related to a potential departure from accepted standards of

medical care. At the injunction hearing, the plaintiffs argued in favor of the issuance

of an injunction, in part based on their pleading of a “potential claim.” Thus, the

facts regarding Bynon’s alleged, potential departure from accepted standards of

medical care are part of the cause of action pled. Although not identical to the Rule

202 setting in Jorden, this case seems analogous enough to that case to persuade us

11
that the pleadings implicate an HCLC. See id. We therefore conclude that the claims

at issue qualify as HCLCs.

II. The “Brief in Opposition to Plaintiffs’ Application for Temporary
Restraining Order and Temporary Injunction” constituted an answer.

The next part of the analysis asks whether Bynon filed an answer. This

question arises because the Act requires a claimant to serve an expert report no later

than 120 days after the defendant files an original answer. TEX. CIV. PRAC. & REM.

CODE § 74.351(a).

According to Bynon, his “Brief in Opposition to Plaintiffs’ Application for

Temporary Restraining Order and Temporary Injunction” counts as an answer,

which started the clock for an expert report. The plaintiffs and intervenors argue that

his response to the application for injunctive relief was not an answer because the

trial court did not view the application as an HCLC. We have already held that the

application for injunctive relief states an HCLC.

The Rules of Civil Procedure generally govern the defendant’s answer. See

TEX. R. CIV. P. 83–85, 90, 92–98. One kind of answer is a general denial, see TEX.

R. CIV. P. 92, but other possibilities exist. Consider Rule 84, which states that an

answer may allege various “matters” in opposition to the lawsuit: “The defendant in

his answer may plead as many several matters, whether of law or fact, as he may

think necessary for his defense, and which may be pertinent to the cause, and such

12
matters shall be heard in such order as may be directed by the court . . . .” TEX. R.

CIV. P. 84.

Texas courts have held that informal responses from pro se defendants

constituted pleadings sufficient to avoid the harsh consequences of default judgment.

E.g., Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992) (per curiam). These

courts have concluded that a responsive pleading may constitute an answer even if

it does not comply with the Rules of Civil Procedure. Id.; see Sells v. Drott, 259

S.W.3d 156, 159 (Tex. 2008) (per curiam) (concluding that answer was sufficient

despite extrinsic evidence raising question about whether adult daughter had signed

answer for her mother); Hale v. Off. of Att’y Gen. of Tex., No. 01-22-00111-CV,

2023 WL 2249200, at *3 (Tex. App.—Houston [1st Dist.] Feb. 28, 2023, no pet.)

(mem. op.) (summarizing cases in which courts have found that pro se defendants

filed answers, when such answers were in form of letters that did not fully comply

with Rules of Civil Procedure). For a filing to constitute an answer, it “must contain

sufficient information to place in issue the claims made in the suit.” Guadalupe

Econ. Servs. Corp. v. DeHoyos, 183 S.W.3d 712, 716 (Tex. App.—Austin 2005, no

pet.).

Bynon’s brief in opposition to the plaintiffs’ application for injunctive relief

was not entitled “Answer” or “Original Answer.” Even so, it identified the case and

the parties, and it denied the factual allegations against Bynon—that he improperly

13
excluded patients from the organ transplant list, thus allegedly depriving them of

lifesaving care—by quoting the language from the plaintiffs’ application and stating,

“This allegation is false.”

It also pleaded specific denials relating to plaintiffs’ request for injunctive

relief, asserting that they did not show themselves entitled to it. It was signed by his

attorney and served on all parties’ counsel of record. At oral argument, appellees’

counsel essentially agreed that it qualifies as an answer. We agree with Bynon that

his brief in opposition to the injunction constituted an answer.

III. Intervenors meet the definition of claimants, but the plaintiffs do not.

The last question involves the defined term “claimant.” The Act defines a

claimant as “a person . . . seeking or who has sought recovery of damages in a health

care liability claim.” TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2). A claimant must

serve an expert report within 120 days of the defendant filing an original answer. Id.

§ 74.351(a). Bynon says that the appellees are all claimants, but they disagree

because they sought only injunctive relief and not damages.

The definition largely dictates the analysis. If the Act had not defined

“claimant,” we would have latitude to construe the term in a way that does not

involve damages, but the Legislature supplied its own definition. We have no

authority to rewrite that language. The statute as written speaks in terms of seeking

the recovery of damages. Given the plain language of the statute, we agree with other

14
Texas courts that where a party seeks relief other than damages, he or she is not a

claimant within the ambit of the statutory definition:

Here, Sosa seeks declaratory relief; he does not seek to recover
damages. Consequently, he is not a claimant within the meaning of the
medical liability act, and he was not required to file the expert report
required by § 74.351(a). See McAllen Hosps., L.P. v. Gomez, No. 13-
12-00421-CV, 2013 WL 784688, at *6 (Tex. App.—Corpus Christi–
Edinburg Feb. 28, 2013, no pet.) (mem. op.) (concluding plaintiff, with
respect to his claim seeking a declaration that a hospital lien was
invalid, was not a “claimant” under TMLA because he sought
“declaratory relief, not an award of damages”). Notably, this is not a
case in which the plaintiff seeks damages and also seeks declaratory
relief, which we previously concluded compels a different result than
the one we reach today. See Tinnard v. Dallas Cnty. Hosp. Dist., No.
05-13-01161-CV, 2015 WL 273123, at *5 (Tex. App.—Dallas Jan. 22,
2015, no pet.) (mem. op.) (when plaintiff sued hea[l]th care providers
under the tort claims act seeking actual, statutory, and punitive
damages, he was a claimant seeking damages under the TMLA, and the
“fact that [the plaintiff] also filed a claim for declaratory relief does not
alter the underlying nature of his lawsuit, and his claim cannot be
divided into both a health care liability claim and another type of
claim”). Sosa seeks only a judicial declaration under Chapter 37 that
the hospital lien allegedly authorized by Lopez and Humphrey is
invalid, and he seeks attorney’s fees under § 37.009—he does not seek
to recover damages. E.g., CBIF Ltd. P’ship v. TGI Friday’s Inc., No.
05-15-00157-CV, 2017 WL 1455407, at *15 (Tex. App.—Dallas Apr.
21, 2017, pet. denied) (mem. op.) (“attorney’s fees are not ordinarily
considered as an element of damages”).

Lopez v. Sosa, No. 05-22-00295-CV, 2023 WL 3914553, at *7 (Tex. App.—Dallas

June 9, 2023, pet. denied) (mem. op.). Further, Texas courts have held that the State

is not a “claimant” under the Act when suing a health care provider for imposition

of statutory civil penalties because penalties are not damages. State v. Emeritus

Corp., 466 S.W.3d 233, 246–51 (Tex. App.—Corpus Christi–Edinburg 2015, pet.
15
denied); see Nazari v. State, 497 S.W.3d 169, 181 (Tex. App.—Austin 2016) (op.

on reh’g) (discussing Emeritus Corp. and concluding that civil penalties sought by

State did not qualify as “damages or monetary relief” and therefore health care

providers’ counterclaims against State were barred by sovereign immunity), aff’d,

561 S.W.3d 495 (Tex. 2018).

Here the intervenors explicitly described their lawsuit as a suit for damages:

“This is a suit for all damages legally recoverable for the wrongful death of Jerry

Whittington.” Their lawsuit walks right into the definition of claimant by “seeking”

to recover damages. Although their petition in intervention does not elaborate or

include a stand-alone count for damages, that does not alter our conclusion. No

further detail is necessary.

On the other hand, the application filed by the plaintiffs did nothing like this.

Their application did not expressly refer to damages or even hint at seeking damages.

Unless we are to rewrite the statutory definition in a way that courts should not do,

we must conclude that the plaintiffs do not qualify as claimants.

At argument, we asked the parties to supply additional briefing on this issue.

Both sides addressed Lopez v. Sosa, which we find persuasive and opt to follow here.

Bynon expects to see a request for damages in the future; he reasons that otherwise,

the pursuit of an injunction would amount to an empty exercise. But that is not an

argument against Lopez. The pursuit of the injunction may or may not be empty, but

16
the remedy for a problematic injunction is to appeal it immediately, see TEX. CIV.

PRAC. & REM. CODE § 51.014(a)(4), not to ask us to disregard the statutory text about

who counts as a claimant. We will reverse a bad injunction because it is bad; we will

not rewrite a statute just to overturn one injunction that might look anomalous.

Conclusion

We affirm in part and reverse in part. Specifically, we reverse that part of the

order that denied dismissal as to the intervenors, and we remand to the trial court for

entry of judgment of dismissal and consideration of Bynon’s request for attorney’s

fees in that regard. See id. § 74.351(b). We affirm as to the other appellees.

David Gunn
Justice

Panel consists of Justices Guerra, Gunn, and Dokupil.

Justice Dokupil, concurring and dissenting.

17

Opinion issued April 2, 2026

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00849-CV
———————————
JOHN S. BYNON M.D., Appellant
V.
SUSIE GARCIA, AS WRONGFUL DEATH BENEFICIARY OF RICHARD
MOSTACCI, DECEASED; DIANELYS CORRALES, AS WRONGFUL
DEATH BENEFICIARY OF DANIEL RODRIGUEZ ALVAREZ, AND
ROBERT OSUNA, JR., AS WRONGFUL DEATH BENEFICIARY OF
ROBERT OSUNA, LAURA WHITTINGTON, INDIVIDUALLY AND AS
THE REPRESENTATIVE OF THE ESTATE OF JERRY WHITTINGTON,
NICOLE LLOYD, ELIA COMBS, MAXINE WHITTINGTON, EDEN
WHITTINGTON, AND JOSEPH WHITTINGTON, Appellees

On Appeal from the 295th District Court
Harris County, Texas
Trial Court Case No. 2024-26227
CONCURRING AND DISSENTING OPINION

I join the Court’s opinion in its entirety with the exception of Part III, in which

the majority concludes that the plaintiffs cannot be claimants as they have not yet

asked for damages. The TMLA defines a claimant as “a person . . . seeking or who

has sought recovery of damages in a health care liability claim.” TEX. CIV. PRAC. &

REM. CODE § 74.001(a)(2) (emphasis added).

The plaintiffs admit that they will be seeking damages as the suit proceeds—

and, indeed, what would be the point of this lawsuit if they did not want monetary

compensation for the death of their loved ones?—even though they have not yet filed

a court document announcing this intention on the record. The question this Court

must answer is this: “At what point is a plaintiff seeking damages, such that they

become a claimant under the Act?” The plaintiffs, and the majority, believe that the

correct answer is “when they file a pleading asking for damages.” This reading is

consistent with the language of the statute and also has the benefit of being a clear

and administrable rule. Courts would know when the expert report is due because

they can count the days from the filing in which an HCLC claimant asks for

damages. This is a reasonable reading of the plain language and an administratively

sound approach for the court to take.

I write separately, however, to note that this apparently reasonable reading has

the disadvantage of creating an environment for artful pleading that avoids the

2
strictures of the statutory scheme. Under the majority’s reasoning, a defendant can

be hauled into court on an HCLC under the guise of injunctive relief and be subject

to discovery and trial, just so long as the plaintiff never actually asks for damages.

The plaintiff essentially has the opportunity to build their tort case outside the TMLA

structure, then add a claim for damages in a subsequent pleading. I seriously question

whether this is what the Legislature intended when passing the TMLA.

The Texas Supreme Court has created a presumption that if a claim is based

on facts that could be a Health Care Liability Claim, it already is one, regardless of

how it is styled or presented.1 Texas courts should similarly apply a presumption that

if plaintiffs bring an HCLC claim, and the underlying facts could support a claim for

damages, even if the word “damages” has not yet appeared in a pleading, then those

plaintiffs are “claimants.” To do otherwise creates a loophole that potentially upends

the entire statutory scheme.

With regard to Health Care Liability Claims, the Texas Supreme Court has

specifically said that if the facts underlying a claim could support an HCLC, then

the claim already is one: “claims premised on facts that could support claims against

a physician . . . for departures from accepted standards of medical care . . . are

HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach

1
See Loaisiga v. Cerda, 379 S.W.3d 248, 255–56 (Tex. 2012); In re Jorden, 249
S.W.3d 416, 421–22 (Tex. 2008).
3
of any of those standards.” Loasiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012); see

also In re Jorden, 249 S.W.3d 416, 422 (Tex. 2008) (holding that petition for Rule

202 presuit deposition was an HCLC even though no claim had been filed against

defendant asserting liability for injury).

The reason behind this expansive reading, according to the Texas Supreme

Court, is that that “artful pleading and recasting of claims is not permitted.” Yamada

v. Friend, 335 S.W.3d 192, 196 (Tex. 2010). “[I]f the gravamen or essence of a cause

of action is a health care liability claim, 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.” Id. at

197.2 “The gravamen of a claim is its true nature, as opposed to what is simply

alleged or artfully pled, allowing courts to determine the rights and liabilities of the

involved parties.” B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276, 283 (Tex.

2017).

The same reasoning should apply to “claimants.” Particularly where, as here,

a suit admittedly could become one for damages in the future, as plaintiffs’ counsel

2
See also CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d 528, 534
(Tex. 2016) (when determining whether claim is HCLC “we examine the
underlying nature and gravamen of the claim, rather than the way it is
pleaded”).
4
stated at oral argument,3 it should be treated as a claim for damages from the

beginning. The only practical difference between the intervenors’ case (which the

majority rightly dismisses) and the plaintiffs’ case is artful pleading.

This approach is consistent with that of appellate courts around the state,

which have looked to the underlying nature of the relief sought. For example, when

the State prosecutes a medical practice for statutory violations and seeks civil

penalties, the State is not considered a “claimant” seeking damages.4 Similarly, when

a plaintiff seeks declaratory relief that a hospital lien is invalid, that plaintiff is not

considered a “claimant” seeking damages because the plaintiff is disputing the

hospital’s claim for payment, not asking for compensation.5

The situation here is distinct from a State prosecution or a hospital lien, where

the plaintiff is not seeking compensatory damages for departing from accepted

standards of care. Here, we have a claim for injunctive relief to preserve medical

records precisely as a prologue to a suit for damages. For this reason, I disagree with

3
Texas First Court of Appeals, Case No. 24-0849-CV, John S. Bynon, MD v. Susie
Garcia, Wrongful Death Beneficiary, at 28:45 (YouTube, June 19, 2025).
4
See Nazari v. State, 497 S.W.3d 169, 181 (Tex. App.—Austin 2016), aff’d, 561
S.W.3d 495 (Tex. 2018); State v. Emeritus Corp., 466 S.W.3d 233, 244, 248–49
(Tex. App.—Corpus Christi–Edinburg 2015, pet. denied).
5
See McAllen Hosps., LP v. Gomez, 2013 WL 784688, at *5–6 (Tex. App.—Corpus
Christi–Edinburg Feb. 28, 2013, no pet.) (mem. op.); Lopez v. Sosa, No. 05-22-
00295-CV, 2023 WL 3914553, at *7 (Tex. App.—Dallas June 9, 2023, pet. denied)
(mem. op.).
5
the majority’s reliance on Lopez v. Sosa (a hospital lien case). While Lopez does say

that if a plaintiff only seeks declaratory relief and not damages, he is not a

“claimant,” the case also notes that the nature of the suit was not one against a health

care provider for an injury due to negligent provision of services. Further, there was

no suggestion that damages would ever be sought for negligent provision of services.

Finally, Lopez is not binding precedent on our Court. Therefore, I would decline to

follow Lopez here.

By contrast, our sister court has held that the duty to serve an expert report

dated from the earliest pleading, even when damages were not pled until the

plaintiff’s fourth amended petition. Mem’l Hermann Hosp. Sys. v. Ponce, No. 14-

14-00136-CV, 2014 WL 5685726, at *4 (Tex. App.—Houston [14th Dist.] Nov. 4,

2014, pet. denied). Ponce began as a petition for writ of mandamus to obtain medical

records that a hospital refused to provide. Id. However, by the fourth amended

petition, the plaintiffs expressly pled a claim for damages due to medical negligence.

Id. Although they ultimately served an expert report, the Fourteenth Court of

Appeals held that it was untimely because they became claimants on the date of the

original petition for writ of mandamus.6 Id.

6
This case dealt with a prior version of the TMLA which version of the Act required
the expert report to be served within 120 days of the filing of the plaintiff’s petition,
rather than the defendant’s answer, but the reasoning holds.
6
Similarly, in Victoria Gardens of Frisco v. Walrath, 257 S.W.3d 284, 289

(Tex. App.—Dallas 2008, pet. denied), the court of appeals found that Walrath could

not avoid being a “claimant” by presenting what was essentially an HCLC as a

breach of contract claim. Id. at 288. Walrath did not plead tort damages until the

third amended petition, but the court of appeals found that the duty to file the expert

report as a “claimant” was triggered at the first filing, when it was clear that the

plaintiff alleged an HCLC. Id. at 289. Noting that waiting to plead tort damages was

“merely another variation of the artful-pleading tactic that Texas courts have

frequently condemned,” the court concluded that the plaintiff’s expert report was

untimely, and the claim was dismissed. Id.

The precise issue here—in which pleaded claims that are plainly HCLCs have

begun life as declaratory relief but have not yet metamorphosed into a suit for tort

damages—appears to be a matter of first impression. One might suggest that this

lack of precedent lends credence to the interpretation of such pleading as artful.

Regardless, extending the rationale of Ponce and Victoria Gardens here, looking to

the gravamen of the claim, and declining to wait until the plaintiff asks for damages

to determine that plaintiff is a “claimant” under the TMLA is the most consistent

approach with the greater thrust of the applicable precedent.

If the majority’s seemingly quite reasonable rule is allowed to stand, then

plaintiffs can get the very discovery needed to build their case under the guise of

7
injunctive relief while evading the TMLA safeguards. Faced with alternative

interpretations consistent with the statutory language, we should err on the side of

choosing the one that supports the statutory scheme as a whole.

Susanna Dokupil
Justice

8