The LASIK industry & the FDA have conspired since LASIK's inception to purposely withhold information vital to the public in making a truly informed LASIK decision. With Lasikdecision.com, The hope is to show you what the industry and FDA would not and did not even think of doing until LASIK casualties started speaking out, and yet, they still did NOTHING.
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William A. Boothe Lawsuits/Civil Matters

Jane Doe v. Boothe - graphic and unedited     Brumit v. Boothe     Boothe v. Kraddick     Guaderrama v. Boothe     Tyson v. Boothe     Dixon v. Boothe      Robinson v. Boothe.pdf     Tammy Lee v. Boothe.pdf

Every effort has been made to check the accuracy of the following documents which were converted to Rich Text Format.  


 

 

Court

Civil District Court

Case Number

9407139F

Case Description

DAMAGES

File Date

Jul 19 1994

Estate Status

Creation Code

C

Record Status

1

 

 

 

 

Plaintiff(s)

 

 

COURT
Court

CASE

RECORDTYPE

PROCESSDA1

3

9407139F

P

071994

ACTIVEDAT1

NAME

 

199407

GUADERRAMA, CARMEN

 

 

 

 

 

Defendant(s)

 

 

COURT

3

CASE

9407139F

RECORDTYPE

D

PROCESSDA1

071994

ACTIVEDAT1

199407

NAME

BOOTHE,WILLIAM A

 

 

 


 

 

 

 

Court

Civil District Court

Case Number

0005663E

Case Description

DAMAGES

File Date

Jul 25 2000

 

Creation Code

C

Record Status

1

 

 

 

Plaintiff(s)

 

 

 

Court

3

Case

0005663E

RECORDTYPE

P

PROCESSDA1

072700

200007

NAME

DRAKE,GRACELYN FAITH

 

 

Defendant(s)

 

 

 

COURT

3

CASE

0005663E

RECORDTYPE

D

PROCESSDA1

072700

 

ACTIVEDAT1

200007

NAME

ADMINISTAFF,INC

 

 

 

 

COURT

3

CASE

0005663E

RECORDTYPE

D

PROCESSDA1

072700

ACTIVEDAT1

200007

NAME

BOOTHE,WILLIAM A ETAL

 

 

               

 

 


 

Court

Civil District Court

Case Number

9607923H

Case Description

DAMAGES

File Date

Aug 5 1996

Estate Status

Creation Code

C

Record Status

 

 

Plaintiff(s)

 

 

COURT

CASE

 

PROCESSDA1

3

9607923H

P

080596

ACTIVEDAT1

NAME

 

199608

SHANNON,FRANCES LYNN

 

 

 

Defendant(s)

 

 

COURT

3

CASE

9607923H

RECORDTYPE

D

PROCESSDA1

080596

ACTIVEDAT1

199608

NAME

BOOTHE,WILLIAM A MD

 

 

 

 


 

 

Court

Civil District Court

Case Number

9403788A

Case Description

DAMAGES

File Date

Apr 19 1994

Estate Status

Creation Code

C

Record Status

 

1

 

 

Plaintiff(s)

 

 

COURT

CASE

 

PROCESSDA1

3

9403788A

P

042094

ACTIVEDAT1

NAME

 

199404

BOOTHE,WILLIAM A MD

 

 

 

Defendant(s)

 

 

COURT

3

CASE

9403788A

RECORDTYPE

D

PROCESSDA1

042094

ACTIVEDAT1

199404

NAME

LARIC,RUSSELL DBA

 

 

 

 

COURT

3

CASE

9403788A

RECORDTYPE

D

PROCESSDA1

042094

ACTIVEDAT1

199404

NAME

LARTHOM,MEDICAL CORP

 

 

 

COURT

3

CASE

9403788A

RECORDTYPE

D

PROCESSDA1

042094

ACTIVEDAT1

199404

NAME

MICRO,SUPPLY COMPANY

 

 

 

 


 

 

Court

Civil District Court

Case Number

0105434I

Case Description

DAMAGES

File Date

Jul 3 2001

Estate Status

Creation Code

C

Record Status

1

 

 

 

 

Plaintiff(s)

 

 

 

COURT
Court

CASE

RECORDTYPE

PROCESSDA1

3

0105434I

P

070301

ACTIVEDAT1

NAME

 

200107

ROBINSON, JOHN ETAL

 

 

 

 

 

 

 

COURT
Court

CASE

RECORDTYPE

PROCESSDA1

3

0105434I

P

070301

ACTIVEDAT1

NAME

 

200107

ROBINSON, KATHLEENCARMEN

 

 

 

 

 

 

 

 

COURT
Court

CASE

RECORDTYPE

PROCESSDA1

3

0105434I

P

020102

ACTIVEDAT1

NAME

 

200202

ROBINSON, JOHN ETAL

 

 

 

 

 

 

 

 

COURT
Court

CASE

RECORDTYPE

PROCESSDA1

3

0105434I

P

070301

ACTIVEDAT1

NAME

 

200107

ROBINSON, JOHN ETAL

 

 

 

 

 

 

 

 

COURT
Court

CASE

RECORDTYPE

PROCESSDA1

3

0105434I

P

070301

ACTIVEDAT1

NAME

 

200107

ROBINSON, KATHLEEN

 

 

 

 

 

 

 

 

COURT
Court

CASE

RECORDTYPE

PROCESSDA1

3

0105434I

P

020102

ACTIVEDAT1

NAME

 

200202

ROBINSON, JOHN ETAL

 

 

 

 

 

 

Defendant(s)

 

 

 

COURT

3

CASE

0105434I

RECORDTYPE

D

PROCESSDA1

070301

ACTIVEDAT1

200107

NAME

BOOTHE EYECARE & LASE

 

 

 

 

 

COURT

3

CASE

0105434I

RECORDTYPE

D

PROCESSDA1

070301

ACTIVEDAT1

200107

NAME

BOOTHE EYECARE & LA

 

 

 

 

 

COURT

3

CASE

0105434I

RECORDTYPE

D

PROCESSDA1

070301

ACTIVEDAT1

200107

NAME

BOOTHEWILLIAM A MD D

 

 

 

 

 

 

COURT

3

CASE

0105434I

RECORDTYPE

D

PROCESSDA1

070301

ACTIVEDAT1

200107

NAME

BOOTHE,WILLIAM MD PA

 

 

 

 

 

 

 

COURT

3

CASE

0105434I

RECORDTYPE

D

PROCESSDA1

020102

ACTIVEDAT1

200107

NAME

WORDELMAN,DENAE DELAE

 

 

 

 

 

 

COURT

3

CASE

0105434I

RECORDTYPE

D

PROCESSDA1

070301

ACTIVEDAT1

200107

NAME

BOOTHE EYECARE & LASE

 

 

 

 

 

 

COURT

3

CASE

0105434I

RECORDTYPE

D

PROCESSDA1

070301

ACTIVEDAT1

200107

NAME

BOOTHE,WILLIAM A MD D

 

 

 

 

 

 

COURT

3

CASE

0105434I

RECORDTYPE

D

PROCESSDA1

070301

ACTIVEDAT1

200107

NAME

BOOTHE,WILLIAM MD PA

 

 

 

 

 

 

COURT

3

CASE

0105434I

RECORDTYPE

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PROCESSDA1

020102

ACTIVEDAT1

200107

NAME

WORDELMAN,DENAE DELAE

 

 




Page 1

 

 

1 of 7 DOCUMENTS

 

TAMMIE KAY LEE v. WILLIAM A. BOOTHE, M.D., D/B/A BOOTHE EYE
CARE AND LASER CENTER

 

07-0950


SUPREME COURT OF TEXAS


2008 Tex. LEXIS 354


April 4, 2008, Order Pronounced

 

NOTICE:                DECISION WITHOUT PUBLISHED                  Lee v. Boothe, 235 S.W.3d 448, 2007 Tex. App.

                                                                                                                LEXIS        7878 (Tex. App. Dallas, 2007)

OPINION              

 

PRIOR HISTORY: [*I]                                                                OPINION

                                                                               

From Collin County; 5th district (05-06-00776-CV, 235

SW3d 448, 10-03-07).                                                                         Petition for Review Denied.

 

 

 

 

Page 1

 

 

 

2 of 7 DOCUMENTS

 

TAMMIE KAY LEE, Appellant v. WILLIAM A. BOOTHE, M.D., D/B/A BOOTHE
EYE CARE AND LASER CENTER, Appellee

 

No. 05-06-00776-CV


COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS


235 S. W. 3d 448; 2007 Tex. App. LEXIS 7878


October 3, 2007, Opinion Issued

 

SUBSEQUENT HISTORY: Released for Publication October 29, 2007.

Petition for review denied by Lee v. Boothe, 2008 Tex. LEXIS 354 (Tex., Apr. 4, 2008)

 

PRIOR HISTORY: [**I]

On Appeal from the 416th Judicial District Court, Collin County, Texas. Trial Court Cause No. 416-01562-04.

 

CASE SUMMARY:

 

PROCEDURAL POSTURE: Appellant patient brought suit against appellee doctor alleging claims that included violations of the Texas Deceptive Trade Practices Act (DTPA), assault, and fraud. The 416th Judicial District Court, Collin County (Texas), dismissed these claims on the ground that the patient had not filed an expert report as required by Tex. Civ. Prac. & Rein, Code Ann. § 74.351. The patient appealed.

 

OVERVIEW: The patient engaged the doctor's services to have a laser procedure performed on her eyes. She alleged that the procedure caused her pain and did not correct her vision to 20/20. The patient argued that her claims were not health care liability claims and that therefore she was not required to file the report required by Tex. Civ. Prac. & Rein. Code Ann. § 74.351. However, the court held that: (1) the DTPA claims were health care liability claims, notwithstanding the patient's allegation that the doctor failed to fulfill promises and guarantees made in his advertisements, because the underlying nature of these claims was negligence in the rendition of medical services; (2) the assault claim, involving the doctor's alleged use of excessive force during the

procedure, was a health care claim that required expert testimony on the appropriate standard of care; and (3) the fraud claim, based on the doctor's alleged misrepresentation that the procedure would be free if he did not correct her vision to 20/20, required expert testimony to show that he failed to correct her vision, and thus the claim centered on the quality of medical treatment.

 

OUTCOME: The trial court's judgment was affirmed.

 

LexisNexis(R) Headnotes

 

Torts > Malpractice & Professional Liability > Healthcare Providers

 

[14NI] Under Tex. Civ. Prac. & Rein. Code Ann. § 74.351, any person who has brought a suit asserting a health care liability claim must, within 120 days of filing the claim, provide an expert report for each physician or health care provider against whom the claim is asserted. Tex. Civ. Prac. & Rein. Code Ann. § 74.351(a) (2006). If the claimant does not provide an expert report as required, the trial court must, upon motion by the defendant, dismiss the claim with prejudice. Tex. Civ. Prac. & Rein. Code Ann. § 74.351(b).

 

Torts > Malpractice & Professional Liability Healthcare Providers

 

[HN2] See Tex. Civ. Prac. & Rein. Code Ann. 74,001(a)(13) (2005).

 

Torts > Malpractice & Professional Liability >

 

Page 2

 

 

 

235 S.W.3d 448, *; 2007 Tex. App. LEXIS 7878, * *I

 

Healthcare Providers

[HN3]   A plaintiff cannot avoid the requirements of Tex. Civ. Prac. & Rem. Code Ann. ch. 74 and its predecessor legislation by attempting to recast a health care liability claim as a different cause of action through artful pleading.

 

Civil Procedure > Appeals > Standards of Review > De Novo Review

Civil Procedure > Appeals > Standards of Review > Fact & Law Issues

Torts, > Malpractice & Professional Liability > Healthcare Providers

 

[HN4]   Whether a claim is a health care liability claim is a question of law that an appellate court reviews de novo.

 

Torts > Malpractice & Professional Liability > Healthcare Providers

 

[HN5]   In determining whether a claim is subject to the requirements of Tex. Civ. Prac. & Rem. Code Ann. ch. 74, a court focuses on the nature and essence of the claim rather than the way it was pleaded. The court considers the alleged wrongful conduct as well as the duties allegedly breached and whether expert testimony is necessary to show breach of an applicable standard of care. However, a claim may be a health care liability claim and not require expert testimony to prevail at trial. If the factual allegations are related to the medical treatment provided by the defendant and constitute an inseparable part of the defendant's rendition of medical services, then the plaintiffs claim is a health care liability Claim subject to the requirements of ch. 74.

 

Torts > Business Torts > Unfair Business Practices > General Overview

Torts > Malpractice & Professional Liability > Healthcare Providers

 

[HN6] If the underlying nature of a claim is negligence in the rendition of medical services, the plaintiff may not recast the allegations as a Texas Deceptive Trade Practices Act claim to avoid the statutory restrictions on health care liability claims.

 

Torts > Business Torts > Unfair Business Practices > General Overview

Torts > Malpractice & Professional Liability > Healthcare Providers

 

[HN7]  Tex. Civ . Prac. & Rem. Code Ann. § 74.004 specifically prohibits claims under the Texas Deceptive Trade Practices Act for damages for personal injury or death resulting, or alleged to have resulted, from negligence on the part of any physician or health care provider.

 

COUNSEL: For APPELLANT: Mark M. Donheiser, MATHIS & DONHEISER, P.C., Dallas, TX.

 

For APPELLEE: Heather R. Johnson, John A. Scully, Diana L. Faust, Eric W. Hines, R. Brent Cooper, COOPER & SCULLY, P.C., Dallas, TX.

 

JUDGES: Before Justices Morris, Francis, Mazzant. Opinion By Justice Morris.

 

OPINION BY: JOSEPH B. MORRIS

 

OPINION

 

[*449] The trial court below dismissed appellant Tammie Kay Lee's claims because she failed to file an expert report as required by chapter 74 of the Texas Civil Practice and Remedies Code. Lee contends the trial court erred in dismissing her claims because they were not health care liability [*450] claims and, therefore, not subject to the expert report requirement of chapter 74. After reviewing the record, we conclude the trial court properly dismissed Lee's claims. We affirm the trial court's judgment.

 

I.

 

Tammie Kay Lee engaged the services of William A. Boothe, M.D. d/b/a Boothe Eye Care and Laser Center to have the Interlasik procedure performed on both of her eyes. According to Lee's petition, she had heard Boothe's advertisements describing his services as "virtually pain free" and promising the procedure was "absolutely free" if the patient's vision was not corrected to 20/20. Lee stated that, based upon these representations, she decided to have the operation performed by Boothe.

 

Lee alleges that when [**2] she was in Boothe's office to undergo the operation, she was rushed through the pre-operative procedures and not given the proper topical anesthetic on her eyes. Lee further alleges that Boothe was upset when he performed the procedure on her because of a mistake made involving an earlier patient. According to Lee, Boothe was "out of control"

 

Page 3

 

 

 

235 S.W.3d 448, *450; 2007 Tex. App. LEXIS 7878, **2

 

 

when he approached her and "yanked her right eye open and slammed the clamp on it, causing intense pain and bruising." When Lee screamed in pain, Boothe threatened to stop the procedure without completing it. Lee states she was afraid to leave the procedure partially performed. When Boothe continued with her other eye he again allegedly used excessive force to open the eye and "slammed" the clamp into place. Lee asserts she was in pain for up to three weeks after the procedure and the operation did not correct her vision to 20/20. Lee informed Boothe's office of her dissatisfaction with the procedure. Boothe's office manager acknowledged the 20/20 guarantee and agreed over the phone to give Lee her money back. Lee alleges, however, that instead of refunding her money, Boothe sent her a form to release all claims against him.

 

Lee brought this suit [**3] alleging claims for breach of contract, violations of the Texas Deceptive Trade Practices Act, assault, and fraud. Approximately five months after Lee filed her original petition, Boothe moved to have her claims dismissed because the claims were for health care liability, and she failed to file an expert report as required by section 74.351 of the Texas Civil Practice and Remedies Code. Lee acknowledged in her response to the motion that she did not file an expert report but argued her claims were not health care liability claims and, therefore, not subject to the expert report requirement. The trial court granted Boothe's motion to dismiss Lee's claims for violations of the DTPA, assault, and fraud. The court denied the motion with respect to Lee's claim for breach of contract. Lee later moved to have her claim for breach of contract dismissed without prejudice, and the trial court granted Lee's motion. Lee brings this appeal challenging the trial court's order dismissing her claims for DTPA violations, assault, and fraud.

 

II

 

[HN I] Under section 74.351 of the Texas Civil Practice and Remedies Code, any person who has brought a suit asserting a health care liability claim must, within 120 [**4] days of filing the claim, provide an expert report for each physician or health care provider against whom the claim is asserted. TEX. CIV. PRAC. & REM CODE ANN. § 74.351(a) (Vernon Supp. 2006). If the claimant does not provide an expert report as required, the trial court must, upon motion by the defendant, dismiss the claim with prejudice. [*451] Id. §

74.351(b). A health care liability claim is defined as:

 

[HN2] 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.

 

Id, § 74.001(a)(13) (Vernon 2005).

 

Numerous opinions have been issued by both the Texas Supreme Court and the Texas courts of appeals holding that [HN3] a plaintiff cannot avoid the requirements of chapter 74 and its predecessor legislation by attempting to recast a health care liability claim as a different cause of action through artful pleading. See, e.g., Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005); [**5] Murphy v. Russell, 167 S.W.3d 835, 838-39 (Tex. 2005); Earle v. Ratliff, 998 S.W.2d 882, 893 (Tex. 1999); MacGregor Med. Assn v. Campbell, 985 S.W.2d 38, 40 (Tex. 1998); Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex. 1995); Gormley v. Stover, 907 Sff2d 448, 450 (Tex. 1995); Sorokolit v. Rhodes, 889 SW.2d 239, 242 (Tex. 1994); Boothe v. Dixon, 180 S.W.3d 915 (Tex. App.-Dallas 2005, no pet.); Williams v. Walker, 995 S.W.2d 740, 741 (Tex. App.-Eastland 1999, no pet.). [HN4] Whether a claim is a health care liability claim is a question of law we review de novo. Dixon, 180 S. IV, 3d at 919.

 

[HN5] In determining whether a claim is subject to the requirements of chapter 74, we focus on the nature and essence of the claim rather than the way it was pleaded. See Rubio, 185 S.W.3d at 851. We consider the alleged wrongful conduct as well as the duties allegedly breached. Id. We also consider whether expert testimony is necessary to show breach of an applicable standard of care. See Boothe, 180 S.W.3d at 919. However, a claim may be a health care liability claim and not require expert testimony to prevail at trial. See Murphy, 167 S.W.,3d at 838. If the factual allegations are related to the medical treatment [**6] provided by the defendant and constitute ?an inseparable part of [the defendant?s] rendition of medical services,? then the plaintiff?s claim is a health care liability claim subject to the requirements of chapter

 

 

 

Page 4

 

 

235 S.W.3d 448, *451; 2007 Tex. App. LEXIS 7878, **6

 

74. See Walden, 907 S.W.2d at 448; Williams, 995 S.W.2d at 74 1.

 

Lee argues her DTPA claims are not health care liability claims because she is not alleging that Boothe violated a standard of care but that he failed to fulfill the promises and guarantees made in his advertisements. Lee contends her claims are similar to those in Sorokolit v. Rhodes. In Sorokolit, the plaintiff alleged the defendant doctor knowingly breached an express warranty of a particular result and knowingly misrepresented his skills and the results he could achieve. See Sorokolit, 889 S.W.2d at 242. The supreme court held the plaintiffs DTPA claims were not health care liability claims because they did not involve negligence. Id. at 242-43. Since Sorokolit, the supreme court has routinely noted the limited scope of its ruling in that case and emphasized that [HN6] if the underlying nature of the claim is negligence in the rendition of medical services, the plaintiff may not recast his allegations as a DTPA [**7] claim to avoid the statutory restrictions on health care liability claims. See MacGregor, 985 S.W.2d at 40-41.

 

In this case, Lee's factual allegations are, in essence, claims of negligence. All of Lee's injuries arise out of the allegedly wrongful manner in which Boothe conducted the operation on Lee's eyes. [HN7] Section 74.004 of the civil practice and remedies code specifically prohibits claims under the [*452] DTPA "for damages for personal injury or death resulting, or alleged to have resulted, from negligence on the part of any physician or health care provider." TEX. CIV PRAC & REM. CODE ANN. § 74.004 (Vernon 2005). Because the underlying nature of Lee's alleged DTPA claims is negligence in the rendition of medical services, we conclude the trial court properly applied the requirements of chapter 74 when it dismissed Lee's claims.

 

Lee next argues the trial court erred in dismissing her  claim for assault because Boothe's "physical attack" on her was not an inseparable part of the rendition of medical services. We disagree. The "attack" involved Boothe's alleged use of excessive force during an operation. A determination of whether the force used by Boothe was, in fact, excessive necessarily [**8] requires expert testimony on the appropriate standard of care and whether that standard of care was breached. Accordingly, Lee's assault claim is a health care liability claim subject to the expert report requirements of chapter 74. See Rubio, 185 S.W.3d at 851. We conclude the trial court properly dismissed Lee's claim for assault.

 

Finally, Lee argues the trial court erred in dismissing her fraud claim because the claim has nothing to do with Boothe's rendition of medical services. Lee's fraud claim is based on Boothe's alleged misrepresentation that he would correct her vision to 20/20 or the procedure was free. The fact that Lee alleges Boothe made this misrepresentation knowingly does not affect the underlying nature of the claim. See Dixon, 180 S. If. 3d at 920. To show that Boothe violated his guarantee, Lee must provide expert testimony to show that he failed to correct her vision. Her claim, therefore, centers on the medical treatment provided by Boothe and the quality of that care. Again, the essence of Lee's claim is negligence in the rendition of health care. See Walden, 907 S.W.2d at 448. The trial court did not err in dismissing Lee's fraud claim for failure to file an expert [**9] report.

 

We conclude the trial court properly applied section 74.351 of the Texas Civil Practice and Remedies Code to Lee's claims for violations of the DTPA, assault, and fraud. We affirm the trial Court's judgment.

 

JOSEPH B. MORRIS

 

JUSTICE

 

 


 

Page 1

 

3 of 7 DOCUMENTS

 

WILLIAM A. BOOTHE, M.D., INDIVIDUALLY AND D/B/A BOOTHE EYE
CARE
& LASER CENTER, Appellant v. JOE DIXON, Appellee

 

No. 05-04-01260-CV

 

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

 

180 S. W.3d 915; 2005 Tex. App. LEXIS 10341

 

 

December 13, 2005, Opinion Filed

 

 

SUBSEQUENT HISTORY:                [**1] Released for
Publication January 17, 2005.

 

PRIOR HISTORY: On Appeal from the 199th Judicial District Court. Collin County, Texas. Trial Court Cause No. 199-2824-03.

 

DISPOSITION: REVERSED AND RENDERED in part and REMANDED in part.

 

CASE SUMMARY:

 

PROCEDURAL POSTURE: Appellant doctor sought interlocutory review of an order from the 199th Judicial District Court, Collin County (Texas), which denied the doctor's motion to dismiss and motion for summary judgment on the ground that appellee patient failed to comply with the expert report requirements of Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (2005).

 

OVERVIEW: The patient asserted claims for fraud, breach of fiduciary duty, and deceptive trade practices. He alleged that his vision deteriorated after the doctor performed eye surgery and that the doctor knowingly made misrepresentations as to future treatment in order to obtain a release. The doctor argued that the patient's claims were based on medical treatment or medical opinion as to future events and thus were a recasting of medical negligence claims, which were subject to dismissal for failure to file an expert report within the deadline required by § 74.351(b). The court found merit in the doctor's argument, concluding that the underlying nature of the claim was whether or not the alleged representations regarding future treatment were accurate, which was a question of medical condition, diagnosis,

and treatment. The patient's claim of misrepresentations regarding the release was intertwined with the doctor's rendition of medical services. With respect to the deceptive trade practices claim, the doctor did not make specific statements that could establish a knowing Misrepresentation or breach of an express warranty regarding the results of treatment.

 

OUTCOME: The court reversed the trial court's denial of the motion to dismiss and motion for summary judgment, rendered judgment in the doctor's favor dismissing the patient's claims with prejudice, and remanded for a determination of reasonable attorney fees and costs of court incurred by the doctor.

 

LexisNexis(R) Headnotes

 

Evidence > Testimony > Experts > Qualifications

Torts > Malpractice & Professional Liability > Healtheare Providers

[HN I] Former Tex. Civ. Prac. & Rein. Code Ann. § 74.351(a) provides that a healthcare liability claimant must file an expert report and curriculum vitae within 120 days after filing the claim. If a required expert report has not been served by the 120-day deadline, on proper motion by the defendant the trial court shall dismiss the action with prejudice and award reasonable attorney's fees and court costs incurred by the defendant. § 74.351(b).

 

Evidence > Testimony > Experts > Qualifications Torts > Malpractice & Professional Liability >

 

 

Page 2

 

180 S.W.3d 915, *; 2005 Tex. App. LEXIS 10341, **1

 

 

Healthcare Providers

[HN2]      The expert report requirements of Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) apply to a patient's claims, regardless of whether they are tort claims, when those claims come within the statutory definition of a health care liability claim, defined 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 Ann. § 74, 001 (a)(13) (2005).

 

Evidence > Testimony > Experts > Qualifications

Torts > Malpractice & Professional Liability Healthcare Providers

[HN3]      See Tex. Civ. Prac.& Rein. Code Ann. § 74.001(a)(10) (2005).

 

Evidence > Testimony > Experts > Qualifications

Torts > Malpractice & Professional Liability > Healthcare Providers

[HN4]      See Tex. Civ, Prac. & Rein. Code Ann. 74.001(a)(19) (2005).

 

Torts > Malpractice & Professional Liability > Healthcare Providers

[HN5]   See Tex. Occ. Code Ann. § 151.002(a)(13) (Supp. 2005).

 

Civil Procedure > Pleading & Practice > Pleadings > Complaints

Evidence > Testimony > Experts > Qualifications

Torts > Malpractice & Professional Liability > Healthcare Providers

[HN6]   Artful pleading cannot avoid the requirements of Tex. Civ. Prac. & Rem. Code Ann. § 74.351 when the essence of a suit is a health care liability claim. To determine whether a cause of action falls under Tex. Civ. Prac. & Rein. Code Ann. ch. 74's definition of a health care liability claim, a court examines the claim's underlying nature. If the act or omission alleged in the complaint is an inseparable part of the rendition of health care services, or if it is based on a breach of a standard of care applicable to health care providers, then the claim is

a health care liability claim. One consideration in that determination may be whether proving the claim would require the specialized knowledge of a medical expert.

 

Civil Procedure > Pleading & Practice > Pleadings > Complaints

Evidence > Testimony > Experts > Qualifications

Torts > Malpractice & Professional Liability > Healthcare Providers

[HN7]      An allegation that a misrepresentation is made knowingly is not determinative when analyzing the underlying nature of a claim to determine whether a cause of action falls under Tex. Civ. Prac. & Rem. Code Ann. ch. 74's definition of a health care liability claim.

 

Contracts Law > Contract Conditions & Provisions > Express Warranties

Torts > Business Torts > Fraud & Misrepresentation > Actual Fraud > General Overview

[HN8]   Specific statements are necessary to establish a knowing misrepresentation or breach of an express warranty regarding the results of medical treatment.

 

COUNSEL: For APPELLANT: Carol Elaine Davis, Edward P. Quillan, Quillin Law Finn P.C., Dallas, TX.

 

For APPELLEE: Robert C. Sullivan, Jr., Sullivan Parker & Cook, Dallas, TX; Kent Frank Brooks, law Office of Kent F. Brooks, DALLAS, TX; Mr. Tracey Edward Gajak, Sullivan, Parker & Cook, Dallas, TX.

 

JUDGES: Before Justices Wright, Moseley, and Lang. Opinion By Justice Moseley.

 

OPINION BY: JIM MOSELEY OPINION

 

[*916] In a single issue, William A. Boothe, M.D., individually and dib/a Boothe Eye Care and Laser Center, challenges the trial court's order denying Boothe's motion to dismiss and motion for summary judgment on grounds that Joe Dixon failed to comply with the expert report requirements of section 74.351(b) of the civil practice and remedies code. See TEX. CIV PRAC. & REM. CODE ANN § 74.351(b) (Vernon Supp. 2005). Because we conclude that Dixon's claims are "health care liability claims" making them subject to section 74.351(b), we resolve Boothe's issue in his favor, reverse the trial

 

 

 

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court's order, render judgment dismissing Dixon's claims with prejudice, and remand this case solely for a determination nation of reasonable attorney's fees and costs of court incurred by Boothe.

[**2] I. FACTUAL AND PROCEDURAL BACKGROUND

Based on Dixon's allegations, Dixon sought treatment for his vision from Boothe and underwent laser eye surgery in July 2001. His eyesight improved, but "then dramatically deteriorated." Dixon contacted Boothe, who told Dixon that lie needed "touch up" surgery. Boothe performed another laser surgery, after which Dixon's vision did not significantly improve and "began further deterioration." Dixon reported this result to Boothe, who told Dixon a new procedure called "custom abrasion" would be approved within the next year and that this surgery would solve Dixon's problems. Boothe told Dixon he would be an "ideal candidate" for custom abrasion and he would refund Dixon's money on the two previous surgeries. [*917] Based on Boothe's representations that custom abrasion would be available and would solve Dixon's problems, Dixon and his wife executed a "Release of All Claims" in November 2002. 1 In April 2003, Dixon contacted Boothe's office, but was informed that Boothe did not see patients after one year. Subsequently, Dixon learned that he was not a candidate for the initial surgery or the touch up surgery and, as a result of the two surgeries, he [**3] was not a candidate for custom abrasion.

 

1.        The release of All Claims provides, in pertinent part:

 

 

IN CONSIDERATION of a reimbursement payment made to us in the sum of [$ 2,890], we, the undersigned being of lawful age, do hereby release [Boothe], and their successors, predecessors and agents, employees, partner and all those in privity with them form [sic] all claimes or causes of action which we now or  may hereafter have against the said [Boothe], included but not limited to claims arising out of Lasik eye surgery performed on Joe Dixon and claims not now known. We hereby declare that we fully understand the terms of this release and voluntarily accept the above stated sum for the purpose of making full and final settlement of our claim against [Boothe].

 

WE FURTHER state that the foregoing release has been carefully read; and we understand the contents thereof and have signed the same as our own free act and have not been influenced in making this settlement by any representative of the party or parties released.

 

WE FURTHER understand that the provisions of this release are contractual and not mere recitals?

 

 

 

[**4] In his first amended petition, Dixon asserted claims for fraud, breach of fiduciary duty and violation of the DTPA.  2 As to the fraud claim, Dixon alleged Boothe made material representations to Dixon to induce him into obtaining the first and touch up laser eye surgeries and executing the Release of All Claims. As to the breach of fiduciary claim, Dixon alleged Boothe ?made misrepresentations  to  Plaintiff  regarding  the  appropriateness of and availability of medical procedures to induce Plaintiff  into executing the ?Release of All Claims.? As to the DTPA claim, Dixon alleged Boothe ?engaged in an unconscionable course of action in misrepresenting the availability of future medical procedures to Plaintiff?; ?represented that an agreement conferred or involved rights, remedies, or obligations which it does not have or involve?; ?knowingly made false or misleading statements of fact concerning the need for corrective service?; ?failed to disclose information about goods or services that was known at the time of the transaction to induce Plaintiff into entering into a transaction that the consumer would not have entered into had the information been disclosed?; and ?further represented [**5] that Plaintiff had an astigmatism to ?upcharge? Plaintiff for the initial surgery.? Dixon requested actual, economic, and exemplary damages, pre- and postjudgement interest, attorney?s fees, costs, and injunctive relief.

 

 

 

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2 Dixon's original petition is not included in the record on appeal. Boothe contends that the only difference between the original petition and the first amended petition is that Boothe deleted claims for medical negligence from the first amended petition. Neither party contends that Dixon's factual allegations in his first amended original petition differed substantively from those in his original petition.

 

      Boothe filed a motion to dismiss and motion for summary judgment and a first amended and supplemental motion to dismiss. Boothe argued that all Dixon's claims were based on Boothe's medical treatment or medical opinion as to future events and thus were a recasting of medical negligence claims, which were subject to dismissal for failure to file an expert report within the deadline required [**6] by section 74.351(b). In addition, Boothe argued [*918] that Dixon's DTPA claims were barred by section 74.004 because they were recast medical negligence claims. 3 Boothe also argued that he was entitled to summary judgment because the Release of All Claims barred all claims as a matter of law. He requested attorney's fees and costs of court. Dixon responded to the motion to dismiss and motion for summary judgment. After a hearing, the trial court denied Boothe's motion to dismiss and motion for summary judgment without specifying the grounds on which its decision was based.

 

3 Section 74.004(a) provides: "Notwithstanding any other law, Sections 17.41-17.63, Business & Commerce Code, do not apply to physicians or health care providers with respect to claims for damages for personal injury or death resulting, or alleged to have resulted, from negligence on the part of any physician or health care provider." TEX. CIV. PRAC. & REM. CODE ANN. § 74.004(a) (Vernon 2005).

 

[**7] II. MOTION TO DISMISS FOR FAILURE TO FILE EXPERT REPORT

 

In his single issue, Boothe argues that the trial court erred in denying his motion to dismiss because all Dixon's claims were improperly recast medical negligence claims subject to dismissal for noncompliance with the expert report requirement of section 74.351(b).

 

A. Applicable Law and Standard of Review

 

 

[HNl] The version of section 74.351(a) that applies to this case provided that a healthcare liability claimant must file an expert report and curriculum vitae within 120 days after filing the claim. Act of June 2, 2003, 78th Leg., R.S., ch. 205, § 10.01, 2003 Tex. Gen, Laws 847, 975, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590 (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp. 2005). If a required expert report has not been served by the 120-day deadline, on proper motion by the defendant the trial court "shall" dismiss the action with prejudice and award reasonable attorney's fees and court costs incurred by the defendant. TEX. CIV PRAC. & REM. CODEANN. § 74.351(b) [**8] .

 

[HN2] The expert report requirements of section 74.351(b) apply to a patient's claims, regardless of whether they are tort claims, when those claims come within the statutory definition of a "health care liability claim," defined 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.

 

Id. § 74.001(a)(13) (Vernon 2005). [HN3] "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. § 74.001(a)(10) (Vernon 2005). [HN4] "Medical care" is defined as:

 

any act defined as practicing medicine under Section 151.002, Occupations Code, performed or furnished, or which should

 

 

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180 S.W.3d 915, *918; 2005 Tex. App. LEXIS 10341, **8

 

have been performed, by one [**9] licensed to practice medicine in this state for, to, or on behalf of a patient during the patient's care, treatment, or confinement.

 

Id. at § 74.001(a)(19) (Vernon 2005). [HN5] "Practicing medicine" means

 

     [*919] the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury 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 surgeon; or

 

 

(B)  directly or indirectly charges money or other compensation for those services.

 

TEX. OCC. CODE ANN. § 151.002(a)(13) (Vernon Supp. 2005).

 

[HN6] Artful pleading cannot avoid the requirements of section 74.351 when the essence of the suit is a health care liability claim. Diversicare Gen. Partner, Inc. v. Rubio, 185 S. W. 3d 842, 49 Tex. Sup. Ct. J. 19, 2005 WL 2585490, at *7 (Tex. 2005) ("It is well settled that a health care liability claim cannot be recast as another cause of action to avoid the requirements of the MLIIA"); Garland Cmty. Hosp. v. Rose, 156 S. W 3 541, 543, 48 Tex. Sup. Ct. J III (Tex. 2004); MacGregor Med. Assn v. Campbell, 985 S. W 2 38, 40, 42 Tex. Slip. Ct. J 101 (Tex. 1998). To [**10] determine whether a cause of action falls under chapter 74's definition of a health care liability claim, we examine the claim's underlying nature. Id. (citing Sorokolit v. Rhodes, 889 S. W. 2d 239, 242, 37 Tex. Sup. Ct. J 680 (Tex. 1994)). If the act or omission alleged in the complaint is an inseparable part of the rendition of health care services, or if it is based on a breach of a standard of care applicable to health care providers, then the claim is a health care liability claim. Id. at 544 (citing Walden v. Jeffer)~ 907 S. W.2d 446, 448, 38 Tex. Sup, Ct. J. 374 (Tex. 1995)). One consideration in that determination may be whether proving the claim would require the specialized knowledge of a medical expert. Garland Cn7ty Hosp., 156 S. W 3 at 544 (citing Rogers v. Crossroads Nursing Serv., Inc., 13 S. W3d 417,

419 (Tex. App.-Corpus Christi 1999, no pet.)); see Diversicare Gen. Partner, Inc., 49 Tex. Sup. J 19, 2005 WL 2585490, at *4. Whether a claim is a health care liability claim pursuant to section 74.351 is a question of law and is reviewed de novo. Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App.-Houston [14th Dist.] 2004, no pet.); Ponce v. El Paso Healthcare Sys., Ltd., 55 S. W. 3d 34, 36 [**11] (Tex. App.-El Paso 2001, pet. denied); Gomez v. Matey, 55 S.W.3d 732, 735 & n.2 (Tex. App.-Corpus Christi 2001, no pet).

 

B. Discussion

 

Boothe argues that Dixon improperly recast medical negligence claims to avoid dismissal. Boothe argues that all Dixon's claims are intertwined with Boothe's rendition of medical services, which involved Boothe's diagnosis of Dixon's medical condition and Boothe's medical judgment and advice as to the choice of medical procedures; the potential risks and complications such as visual deterioration and candidacy for further medical treatment; and Dixon's alleged physical injury from the two surgeries. We agree.

 

To prove that Boothe's diagnoses and treatment were to Dixon's detriment, Dixon would have to provide proof of his medical condition before and after the laser surgeries and in relation to custom abrasion. Dixon must also prove Boothe undertook a mode or form of treatment that a reasonable and prudent member of the medical profession would not undertake under the same or similar circumstances and rely on expert medical testimony. See Gomez, 55 S.W3d at 735 (concluding allegations of "knowing" misrepresentation [**12] regarding necessity of hysterectomy a health care liability claim). Dixon's claim that Boothe's misrepresentations regarding the release were improper is an inseparable part of Boothe's rendition of medical services because Dixon's claim rests on alleged misrepresentations [*920] regarding medical care and treatment. See Parker v. CCS/Meadow Pines, Inc., 166 S. W 3 509, 513 (Tex. App.-Texarkana 2005, no pet.) (concluding allegations of improper restraint related to course of care or treatment a health care liability claim); Williams v. Walker, 995 S. W 2 740, 741-42 (Tex. App.-Eastland 1999, no pet) (concluding allegations of assault and battery regarding use of medical procedure without patient's consent a health care liability claim).

 

Nevertheless, Dixon contends that his cause of action for fraudulent misrepresentation in procuring a release of health care liability claims is not within the report

 

 

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requirements of chapter 74 because Boothe knowingly made a false statement about Dixon's condition. Dixon contends that this representation constitutes fraud pursuant to Shannon v. Law-Yore, 950 S.W.2d 429 (Tex. App. -Fort Worth 1997, pet. denied) . [** 13] In Shannon, the plaintiff alleged specific fraudulent conduct in connection with keeping him hospitalized, including deceiving him into rescinding requests for release, creating false records, misrepresenting that insurance would not cover his medical bills if he were released against medical advice, and misrepresenting his condition to others. Id. at 432-34. The plaintiff did not allege negligence in his treatment or medical malpractice. Id. at 437.   However,       [HN7]          an allegation that a misrepresentation is made "knowingly" is not determinative when analyzing the underlying nature of a claim. See Savage v. Psychiatric Inst. of Bedford, Inc., 965 S.W.2d 745, 752 (Tex. App.-Fort Worth 1998, pet. denied). Here, the underlying nature of the claim is whether Dixon would be a candidate for custom abrasion after two laser surgeries, which is a question of medical condition, diagnosis, and treatment. See id Consequently, Shannon is distinguishable.

 

Moreover, the only question at this stage is whether the underlying nature of each of Dixon's claims is a health care liability claim; this is a threshold requirement, not a recovery requirement. [**14] See Murphy v. Russell, 167 S.W.3d 835, 838, 48 Tex. Sup. Ct. J 943 (Tex. 2005) (per curiam). Consequently, Dixon's reliance on cases regarding the submission of issues of fraud and informed consent in medical malpractice cases is misplaced. See Gaut v. Quast, 510 S.W.2d 90, 17 Tex. Sup. Ct. J. 308 (Tex. 1974) (per curiam); Crundwell v. Becker, 981 S.W.2d 880 (Tex. App.-Houston (1st Dist.] 1998, pet denied); Melissinos v. Phamanivong, 823 S.W. 2d 339 (Tex. App.-Texarkana 1991, writ denied).

 

Relying primarily on Sorokolit, Dixon next argues that statements amounting to specific promises of cure or a particular result are actionable under the DTPA. In Sorokolit, 889 S.W. 2d at 240, a surgeon "guaranteed and warranted" a specific result, instructing the plaintiff to select a picture and promising, following surgery, her breasts "would look just like those in the picture she selected." Here, in contrast, Boothe's alleged representations were that Dixon was an "ideal candidate" for custom abrasion that would "resolve his problems." Thus, the alleged representation related to a possible

future procedure that was never performed; in any event, they [**15] were not the [HN8] specific statements necessary to establish a knowing misrepresentation or breach of an express warranty regarding the results of treatment. See Mulligan v. Beverly Enters.-Tex., 954 S.W.2d 881, 884 (Tex. App.-Houston [14th Dist.] 1997, no pet) (contrasting representations as to guaranteeing a particular result to representations as to providing care and service).

 

Finally, Dixon contends that any medical malpractice claim is the basis of his damages, not his claims in this suit. However, there are no separate damages pleaded as [*921] between a fraudulent inducement claim and other claims. Moreover, proof of the economic value of the claims released requires proof of those claims, that is, whether Boothe's medical and treatment of Dixon met the applicable standard of care.

 

CONCLUSION

 

We conclude that all Dixon's claims meet the statutory definition of a "health care liability claim" and are thus subject to the expert report requirement of section 74.351(b), and we reject all Dixon's arguments to the contrary. Accordingly, we resolve Boothe's issue in his favor. Because of our resolution of Boothe's argument regarding section 74.351(b), we need [* * 16] not address his argument regarding section 74.004. Because Dixon failed to file an expert report as required by section 74.351(b), we reverse the trial court's order denying motion to dismiss and motion for summary judgment and render judgment in Boothe's favor dismissing Dixon's claims with prejudice.

 

In his motion to dismiss and motion for summary judgment and in his prayer in his brief on appeal, Boothe requested attorney's fees and costs of court, which are mandatory under the statute when a claimant fails to file an expert report in a health care liability claim. See TEX. CIV PRAC. & REM CODE ANN. § 74.351(b)(1). Accordingly, we remand this suit solely for a determination of attorney's fees and costs of court incurred by Boothe.

 

JIM MOSELEY

 

JUSTICE

 


 

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4 of 7 DOCUMENTS

 

IN RE BOOTHE EYE CARE & LASER CENTER, WILLIAM A BOOTHE, M.D.,
PA, WILLIAM A. BOOTHE, U.S. PERSONNEL IX, LP., & U.S. PERSONNEL,
INC., Relators

 

No. 05-05-01019-CV

 

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

 

2005 Tex. App. LEXIS 5862

 

July 28, 2005, Opinion Issued

 

 

SUBSEQUENT HISTORY:                Released for
Publication August 31, 2005.

 

PRIOR HISTORY: Original Proceeding from the 116th Judicial District Court. Dallas County, Texas. Trial Court Cause No. 03-10751.

In re Boothe Eye Care & Laser Ctr., 2005 Tex. App. LEXIS 2502 (Tex. App. Dallas, Apr. 4, 2005)

 

DISPOSITION: Writ of Mandamus Denied.

 

COUNSEL: For RELATOR: Stephen F. Fink, Anthony J. Campiti, THOMPSON & KNIGHT, L.L.P., Dallas, TX.; Bryan P. Neal, THOMPSON & KNIGHT, P.C.

 

For RESPONDENT: Judge, 116th JUDICIAL DISTRICT COURT, Dallas, TX.

 

For REAL PARTIES: Kenneth H. Molberg, WILSON, WILLIAMS, & MOLBERG, P.C., Dallas, TX.

 

JUDGES: Before Justices Wright, O'Neill, and Lang. Opinion by Justice O'Neill.

 

OPINION BY: MICHAEL J. O'NEILL

 

OPINION

 

MEMORANDUM OPINION

 

Opinion by Justice O'Neill

 

Relators contend the trial judge erred in denying their motion to compel arbitration. The facts and issues are well known to the parties, so we need not recount them herein. Based on the record before us, we conclude relators have not shown the trial judge abused his discretion. See TEX. R. APP. P. 52.8(a) [*2] ; Walker v. Packer, 827 S.W. 2d 833, 839-44, 35 Tex. Sup. C1. J. 468 (Tex. 1992) (orig. proceeding). Accordingly, we DENY relators' petition for writ of mandamus.

 

MICHAEL J. O'NEILL

 

JUSTICE


Dr. William A. Boothe
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TEXAS MEDICAL BOARD Information for Dr. William A. Boothe

 

PUBLIC VERIFICATION / PHYSICIAN PROFILE

PHYSICIAN INFORMATION

NAME:  WILLIAM ALBERT  BOOTHE    MD  DATE: 07/15/2008

THE INFORMATION IN THIS BOX HAS BEEN VERIFIED

BY THE TEXAS MEDICAL BOARD

License Number: F9221 

Issuance Date: 08/23/1981 

Expiration Date of Physician?s Annual Registration Permit: 02/28/2009 

 

Registration Status: ACTIVE  Registration Date: 06/18/1984 

Disciplinary Status: SEE PREVIOUS ORDER  Disciplinary Date: 12/20/2007 

Licensure Status: NONE  Licensure Date: NONE 

 

Mailing Address:

DALLAS , TX   75287 

Medical School of Graduation:

At the time of licensure, TMB verified the physician?s graduation from medical school as follows: 

4812 - UNIV OF TEXAS, SOUTHWESTERN MED SCH, DALLAS

Medical School Graduation Year: 1981

TMB Actions and License Restrictions

The Texas Medical Board has taken the following board actions against this physician. (Also included are any formal complaints filed by TMB that are currently pending before the State Office of Administrative Hearings).

View the documents containing action taken by the Board against this individual.

Action Date:  12/20/2007

Description:  STATUS CLEARED 12/20/2007.

Action Date:  11/30/2007

Description:  ON NOVEMBER 30, 2007, THE BOARD AND DR. BOOTHE ENTERED INTO AN ADMINISTRATIVE AGREED ORDER REQUIRING DR. BOOTHE TO PAY AN ADMINISTRATIVE PENALTY OF $1,000. THE ACTION WAS BASED ON DR. BOOTHE'S FAILURE TO RETAIN COPIES OF ALL ADVERTISEMENTS USED FOR A PERIOD OF TWO YEARS FROM THE LAST DATE OF BROADCAST OR PUBLICATION AND TO MAKE THEM AVAILABLE TO THE BOARD UPON REQUEST.

Action Date:  10/04/2005

Description:  STATUS CLEARED 10/04/2005

Action Date:  08/26/2005

Description:  ON AUGUST 26, 2005, THE BOARD AND DR. BOOTHE ENTERED INTO AN AGREED ORDER ASSESSING AN ADMINISTRATIVE PENALTY OF $500. THE ACTION WAS BASED ON ALLEGATIONS THAT DR. BOOTHE FAILED TO TIMELY RELEASE THE PROPERLY REQUESTED MEDICAL RECORDS OF ONE PATIENT WITHIN 15 BUSINESS DAYS OF RECEIPT OF THE WRITTEN REQUEST.

Investigations by TMB of Medical Malpractice

Section 164.201 of the Act requires that: the board review information relating to a physician against whom three or more malpractice claims have been reported within a five year period. Based on these reviews, the following investigations were conducted with the listed resolutions.

Action Taken: DISMISSED   Date: 04/02/1998

Status History

Status history contains entries for any updates to the individual?s registration, licensure or disciplinary status types (beginning with 1/1/78, when the board?s records were first automated). Entries are in reverse chronological order; new entries of each type supersede the previous entry of that same type. These records do not display status type. Should you have any questions, please contact our Customer Information Center at 512-305-7030 or verifcic@tmb.state.tx.us

Status Code:  CL Effective Date:  12/20/2007

Description:  SEE PREVIOUS ORDER

 

Status Code:  RB Effective Date:  11/30/2007

Description:  UNDER BOARD ORDER

 

Status Code:  CL Effective Date:  09/23/2005

Description:  SEE PREVIOUS ORDER

 

Status Code:  RB Effective Date:  08/26/2005

Description:  UNDER BOARD ORDER

 

Status Code:  AC  Effective Date:  06/18/1984

Description:  ACTIVE

 

Status Code:  DQ  Effective Date:  06/01/1984

Description:  DELINQUENT-NON PAYMENT

 

Status Code:  AC  Effective Date:  09/01/1981

Description:  ACTIVE

 

Status Code:  LI  Effective Date:  08/01/1981

Description:  LICENSE ISSUED

 

2007

 

LICENSE NO. F-9221

IN THE MATTER OF

THE LICENSE OF

WILLIAM ALBERT BOOTHE, M.D.

BEFORE THE

TEXAS MEDICAL BOARD

 

ADMINISTRATIVE AGREED ORDER

On the  30  day of November,    2007, came on to be heard before the

Texas Medical Board (the "Board"), duly in session, the matter. of the license of William Albert Boothe, M.D. ("Respondent").

By the signature of the Respondent on this Administrative Order, Respondent waives the right to appear at an Informal Show Compliance Proceeding and Settlement Conference pursuant to Section 164.004, Medical Practice Act, Title 3, Subtitle B, Texas Occupations Code ("Act") and Board Rule 187.18 and all rights pursuant to Sections 2001.051 and 2001.054, Texas Government Code, including, but not limited to, the right to notice and hearing, and instead agrees to the entry of this Administrative Agreed Order pursuant to Section 164.0025 of the Act and Board Rule 187.14. John Heisler represented Board staff.

With the consent of Respondent, the Board makes the following Findings of Fact and Conclusions of Law and enters this Administrative Agreed Order.

FINDINGS OF FACT

The Board finds that:

1.                   Respondent received all notice required by law. All jurisdictional requirements have been satisfied. Respondent waives any defect in notice and any further right to notice or hearing under the Act or the Rules of the Board.

2.                   Respondent currently holds Texas Medical License No. F-9221. Respondent was originally issued this license to practice medicine in Texas on August 23, 1981. Respondent is also licensed to practice in the state of California.

3.                   Respondent is primarily engaged in the practice of ophthalmology and is board certified in this specialty by the American Board of ophthalmology, a member board of the American Board of Medical Specialties.

4.                    Respondent is 54 years of age.

5.                    Respondent has previously been the subject of one disciplinary action by the Board which resulted in an Agreed Order entered on August 26, 2005, providing for an administrative penalty of $500 based on findings that Respondent failed to release medical records to a patient within 15 business days of receipt of the patient's request. As a result of Respondent's compliance, the Agreed Order was terminated on October 4, 2005.

6.                    Section 164.5 of the Medical Board Rules requires that a recording of every advertisement communicated by electronic media, and a copy of every advertisement communicated by print media and a copy of any other form of advertisement shall be retained by the licensee for a period of two years from the last date of broadcast or publication and be made available for review upon request by the Board or its designee.

7.                    Respondent was unable to obtain and produce copies of every advertisement communicated over the previous two years from the last date of broadcast or publication by print, electronic media or any other form of advertisement.

8.                    After the initiation of the investigation by the Board in this matter,. Respondent terminated his business relationship with an independent advertising agency to whom he delegated the responsibility of maintaining records of Respondent's advertisements during the period of time set forth in the preceding paragraph.

9.                    Respondent has cooperated in the investigation of the allegations related to this Administrative Agreed Order. Respondent's cooperation, through consent to this Administrative Agreed Order, pursuant to the provisions of Section 164.002 of the Act, will save money and resources for the State of Texas. To avoid further investigation, hearings, and the expense and inconvenience of litigation, Respondent agrees to the entry of this Administrative Agreed, Order and to comply with its terms and conditions.

CONCLUSIONS OF LAW

 

Based on the above Findings of Fact, the Board concludes that:

1.         The Board has jurisdiction over the subject matter and Respondent pursuant to the Act.

2.         Section 164.051(a)(3) of the Act authorizes the Board to take disciplinary action against Respondent based on Respondent's violation of a rule adopted under this Act, specifically, Board Rule 164.5(d), requiring Respondent to retain records of all advertisements promulgated over the previous two years from the last date of broadcast of any advertisement

3.         Section 164.0025 of the Act and Board Rule 187.14 authorize the Board to resolve and make a disposition of this matter through an Administrative Agreed Order.

4.              Section 164.002(d) of the Act provides that this Administrative Agreed Order is a settlement agreement under the Texas Rules of Evidence for purposes of civil litigation.

 

ORDER

 

Based on the above Findings of Fact and Conclusions of Law, the Board ORDERS that Respondent shall be subject to the following terms and conditions:

1.         Respondent shall pay an administrative penalty in the amount of $1000 within 90 days of the date of the entry of this Order. The administrative penalty shall be paid in a single payment by cashier's check or money order payable to the Texas Medical Board and shall be submitted to the Director of Enforcement for the Board for routing so as to be remitted to the Comptroller of Texas for deposit in the general revenue fund. Respondent's failure to pay the administrative penalty as ordered shall constitute grounds for further disciplinary action by the Board, and may result in a referral by the Executive Director of the Board for collection by the Office of the Attorney General.

2.         Respondent shall comply with all the provisions of the Act and other statutes regulating the Respondent's practice.

3.         Respondent shall inform the Board in writing of any change of Respondent's mailing or practice address within 10 days of the address change. This information shall be submitted to the Permits Department and the Director of Enforcement for the Board. Failure to provide such information in a timely manner shall constitute a basis for disciplinary action by the Board against Respondent pursuant to the Act.

4. This Order shall automatically terminate upon the payment of the administrative penalty by Respondent as outlined in Ordering Paragraph No. 1.

RESPONDENT WAIVES ANY FURTHER HEARINGS OR APPEALS TO THE BOARD OR TO ANY COURT IN REGARD TO ALL TERMS AND CONDITIONS OF THIS AGREED ORDER. RESPONDENT AGREES THAT THIS IS A FINAL ORDER.

THIS ORDER IS A PUBLIC RECORD.

I, WILLIAM ALBERT BOOTHE, M.D., HAVE READ AND UNDERSTAND THE FOREGOING ADMINISTRATIVE AGREED ORDER. I UNDERSTAND THAT BY SIGNING, I WAIVE CERTAIN RIGHTS. I SIGN IT VOLUNTARILY. I UNDERSTAND THIS ADMINISTRATIVE AGREED ORDER CONTAINS THE ENTIRE AGREEMENT AND THERE IS NO OTHER AGREEMENT OF ANY KIND, VERBAL, WRITTEN OR

OTHERWISE.

 

 

 DATED:

 

 

WILLIAM ALBERT BOOTHE, M.D. Respondent

 

2005

 

LICENSE NO. F-9221

 

IN THE MATTER OF

THE LICENSE OF

WILLIAM ALBERT BOOTHE, M.D.

BEFORE THE

TEXAS MEDICAL BOARD



 

AGREED ORDER

 

On this the  [26]  day of  [August] 2005, came on to be heard
before the Texas State Board of Medical Examiners (the Board), duly in session the matter of the
license of William A. Boothe, M.D. (Respondent).

By the signature of Respondent on this Order, Respondent waived the right to appear at an Informal Show Compliance Proceeding and Settlement Conference pursuant to TEX. Om CODE, Title 3, Subtitle B, §164.004 and 22 TEX. ADMIN. CODE, §187.18 and all rights pursuant to TEX. GOVT CODE, §2001.051 and §2001.054, including, but not limited to the right to notice and hearing, and instead agrees to the entry of this Order to resolve the matters addressed in this Order. Mark Martyn represented Board Staff.

Upon the recommendation of the Board's staff and with the consent of Respondent, the Board makes the following findings of fact and conclusions of law and enters the Order as set forth herein:

FINDINGS OF FACT

The Board finds that:

1.      Respondent received all notice required by law. All jurisdictional requirements have been satisfied. Respondent waives any defect in notice and any further right to notice or hearing under TEX. Occ. CODE ANN, Title 3, Subtitle B (Vernon 2004) (the Act) or the Rules of the Board.

2.      Respondent currently holds Texas Medical License No, F-9221, Respondent was originally issued this license to practice medicine in Texas on August 23, 1981 Respondent is not licensed to practice in any other state.

3.      Respondent is primarily engaged in the practice of ophthalmology. Respondent is board certified in this specialty by the American Board of Medical Specialties.

4.      Respondent is 52 years of age.

5.      Respondent has not previously been the subject of disciplinary action by the Board.

6.      Respondent performed Lasik eye surgery on J.T. in 2001 and 2002. On December 3, 2004, J.T. requested copies of his medical records from the Respondent and paid a fee of $25.00 for the records. The record could not be immediately located. On January 8, 2005, J.T. was verbally informed that his records could not be located. On February 4, 2005, the records were found and released to J.T.

7.      Respondent has cooperated in the investigation of the allegations related to this Agreed Order. Respondent's cooperation, through consent to this Agreed Order, pursuant to the provisions of Section 164.002 the Act, will save money and resources for the State of Texas. To avoid further investigation, hearings, and the expense and inconvenience of litigation, Respondent agrees to the entry of this Agreed Order and to comply with its terms and conditions.

 

CONCLUSIONS OF LAW

 

Based on the above Findings of Fact, the Board concludes that:

 

1.         The Board has jurisdiction over the subject matter and Respondent pursuant to the Act.

2.         Section 164.051(a)(3) of the Act authorizes the Board to take disciplinary action against Respondent based on Respondent's violation of a rule adopted under this Act. Respondent failed to comply with Section 165.2 of the Rules of the Board, which provides the requirements for timely and appropriate release of medical records and the documentation requirements regarding medical records that may be withheld.

3.      Section 164.001 of the Act authorizes the Board to impose a range of disciplinary actions against a person for violation of the Act or a Board rule. Such sanctions include: revocation, suspension, probation, public reprimand, limitation or restriction on practice, counseling or treatment, required educational or counseling programs, monitored practice, public service, and an administrative penalty.

4.      Section 164,002(a) of the Act authorizes the Board to resolve and make a disposition of this matter through an Agreed Order.

5.      Section 164.002(d) of the Act provides that this Agreed Order is a settlement agreement under the Texas Rules of Evidence for purposes of civil litigation.

 

ORDER

 

Based on the above Findings of Fact and Conclusions of Law, the Board ORDERS that:

1.      Respondent shall pay an administrative penalty in the amount of $500 within 60 days of the entry of this Order. The administrative penalty shall be paid in a single payment by cashier's check or money order payable to the Texas State Board of Medical Examiners and shall be submitted to the Director of Compliance for the Board for routing so as to be remitted to the Comptroller of Texas for deposit in the general revenue fund. Respondent's failure to pay the administrative penalty as ordered shall constitute grounds for further disciplinary action by the Board, and may result in a referral by the Executive Director of the Board for collection by the Office of the Attorney General.

2.      Respondent shall be permitted to delegate prescriptive authority to a physician assistant and advanced practice nurse. Respondent shall be permitted to supervise physician assistant, advanced practice nurse, or surgical assistant.

3.      Upon payment of the Administrative penalty the Order will automatically terminate.

RESPONDENT WAIVES ANY FURTHER HEARINGS OR APPEALS TO THE BOARD OR TO ANY COURT IN REGARD TO ALL TERMS AND CONDITIONS OF THIS AGREED ORDER. RESPONDENT AGREES THAT THIS IS A FINAL ORDER.

THIS ORDER IS A PUBLIC RECORD.

I, WILLIAM A. BOOTHE, M.D., HAVE READ AND UNDERSTAND THE FOREGOING AGREED ORDER, I UNDERSTAND THAT BY SIGNING, I WAIVE CERTAIN RIGHTS. I SIGN IT VOLUNTARILY. I UNDERSTAND THIS AGREED ORDER CONTAINS THE ENTIRE AGREEMENT AND THERE IS NO OTHER AGREEMENT OF ANY KIND, VERBAL, WRITTEN OR OTHERWISE.

 

DATED:  7- 25- 2005,         2005.

William A. Boothe, M.D. Respondent


Dr. William A. Boothe
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