In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-25-00650-CV
KELVIN SMITH AND ANGELIA SMITH, Appellants
V.
DR. PETER EDWARD GRAYS, M.D., Appellee
On Appeal from the 467th District Court
Denton County, Texas
Trial Court No. 24-0625-467
Before Birdwell, Womack, and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Proceeding pro se, Appellants Kelvin and Angelia Smith (the Smiths) 1
challenge the trial court’s dismissal of health care liability claims they brought against
Appellee Peter Edward Grays, M.D. due to their failure to timely file an expert report
in compliance with Section 74.351 of the Texas Civil Practice and Remedies Code. In
support of their appeal, the Smiths argue that the trial court abused its discretion in so
ruling because their amended pleadings—filed after Dr. Grays filed his motion to
dismiss but before the hearing thereon—alleged medical battery claims, not health
care liability claims, so their failure to serve an expert report should not have resulted
in the dismissal of these claims. 2 Because we hold that the Smiths’ amended pleadings
1
We will also refer to the Smiths by their first names as necessary because they share a surname.
2
Although the Smiths couch their three issues in terms of the trial court’s refusal to consider their amended pleadings, nothing in the record reflects such a refusal on the part of the court. See Lake Jackson Med. Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 836–37 (Tex. 2022) (observing in review of a dismissal motion that pleadings to be considered included those timely amended before a hearing even if amendment occurred after dismissal motion’s filing). Indeed, the Smiths filed a motion for the trial court to “reconsider” its dismissal of their medical battery claims as set forth in their amended pleadings, and the court conducted a hearing before rendering the final and appealable order of dismissal made the subject of this appeal. Thus, we construe their complaint on appeal to challenge the trial court’s interpretation of their amended pleadings. See Britton v. Almasri, No. 02-25-00298-CV, 2025 WL 3119024, at *3 & n.6 (Tex. App.—Fort Worth Nov. 6, 2025, no pet.) (consolidating eleven issues concerning challenge to dismissal for failure to comply with expert report requirement); In re J.D., No. 02-24-00515-CV, 2025 WL 2810523, at *3 (Tex. App.— Fort Worth Oct. 2, 2025, no pet.) (construing the argument section of pro se appellant’s brief as complaining about two issues).
2
alleged health care liability claims subject to the expert report requirement and not
medical battery claims excused therefrom, we affirm.
I. Background
In September 2023, the Smiths filed their original petition 3 alleging a negligence
cause of action against Dr. Grays arising from a surgical procedure to repair Kelvin’s
inguinal and umbilical hernias.4 The Smiths asserted that Dr. Grays “did not remove
the hernia mesh as discussed with” the Smiths prior to the procedure, that the
procedure “was not performed within the standards of care for a reasonably prudent
general surgeon exercising ordinary care,” and that Dr. Grays “did not close the
[u]mbilical navel area . . . [,] which has caused [Kelvin] additional unnecessary pain
and suffering among other medical problems such as . . . impotence.” The Smiths also
asserted that, although Dr. Grays represented to them that he would remove and
replace the mesh from a previous procedure, he failed to do so. Therefore, according
to the Smiths, “Dr. Grays was negligent in failing to properly provide proper surgery
care and follow[-]up care.”
The Smiths originally filed suit in Dallas County, but their appeal comes to us
3
though a transfer of venue to Denton County.
“A ‘hernia’ is a ‘protrusion of an organ through an abnormal opening in the
4
muscle wall of the cavity that surrounds it.’” Segovia v. Astrue, No. H-11-0727, 2012 WL 948815, at *1 n.2 (S.D. Tex. Mar. 2, 2012) (quoting Hernia, Mosby’s Medical, Nursing & Allied Health Dictionary (5th ed. 1998)), report and recommendation adopted, No. H-11-0727, 2012 WL 951543 (S.D. Tex. Mar. 19, 2012).
3
As a result of these alleged acts and omissions on the part of Dr. Grays, the
Smiths alleged that Kelvin suffered a laceration of his abdominal wall resulting in an
open wound in the navel area of his abdomen, infection thereof and of the mesh left
in place, swollen testicles, urinary incontinence and sexual dysfunction, persistent and
debilitating pain, and the need for further surgery to remove and replace the infected
mesh. As damages, the Smiths sought compensation for Kelvin’s past and future pain
and suffering, past and future loss of income and earning capacity, past and future
loss of household services, past and future medical expenses, and “extreme mental
trauma and emotional sorrow and anguish.”5
Critically, the only theory of liability the Smiths alleged against Dr. Grays was
for medical negligence or malpractice in that “[h]is treatment deviated from the
appropriate standard of care during the surgery he performed on [Kelvin].” Their
original pleadings make no mention of medical battery as a distinct theory of liability.
5
Although suggested by their allegation of Kelvin’s impotence in both their original and first amended petitions, the Smiths appear not to have alleged a derivative cause of action or sought damages for loss of consortium on behalf of Angelia. See Whittlesey v. Miller, 572 S.W.2d 665, 666 (Tex. 1978) (“Consortium . . . can generally be defined to include the mutual right of the husband and wife to that affection, solace, comfort, companionship, society, assistance, and sexual relations necessary to a successful marriage.”). Both petitions identify Angelia as a party plaintiff suing “Individually and as Personal Representative and Power of Attorney for the Claimant and Plaintiff” but do not allege a separate and distinct injury for which she seeks damages. Nevertheless, because our disposition of Kelvin’s claims necessarily resolves any derivative claim available to Angelia, we will assume without deciding that the Smiths sought such damages. See Reed Tool Co. v. Copelin, 610 S.W.2d 736, 738–39 (Tex. 1980) (holding that, due to its derivative nature, “a defense that tends to constrict or exclude the tortfeasor’s liability to the injured husband will have the same effect on the wife’s consortium action”).
4
On October 26, 2023, Dr. Grays filed his original answer generally denying the
allegations urged by the Smiths and asserting as an affirmative defense the two-year
statute of limitations made applicable to health care liability claims by Section 74.251.
On February 27, 2024, he moved to dismiss the Smiths’ health care liability claims on
the grounds that they had failed to serve him with an expert report within 120 days of
the filing of his original answer—i.e., by February 23, 2024—as required by Section
74.351. See Tex. Civ. Prac. & Rem. Code § 74.351. In so moving, Dr. Grays urged the
complete absence of such service, not the mere inadequacy of an expert report
otherwise timely served. He also sought an award of reasonable attorney’s fees and
court costs. The same day, Dr. Grays gave the Smiths notice of a hearing on his
motion to dismiss set for April 11, 2024.
In March 2024, the Smiths filed their first amended petition alleging that
Kelvin “gave” Dr. Grays “informed consent” to perform the surgical procedure, that
Dr. Grays “did p[er]form the duties” to which the Smiths “consented,” that Dr. Grays
“without informed consent did not remove the hernia mesh as discussed with” the
Smiths prior to the procedure, that the procedure “was not performed within the
standards of care for a reasonably prudent general surgeon exercising ordinary care
and Dr[.] . . . Grays informed” the Smiths, and that Dr. Grays “did not close the
[u]mbilical navel area . . . [,] which has caused [Kelvin] additional unnecessary pain
and suffering among other medical problems such as . . . impotence and . . .
numbness in the surgical area.” The Smiths asserted that Kelvin’s pain and medical
5
issues were caused by “the inflicted battery and trauma from Dr. . . . Grays.” More
particularly, the Smiths alleged that Dr. Grays “never informed the[m] . . . of the
risks . . . from the surgery” and that Dr. Grays “committed battery in failing to
properly provide proper surgery care and follow[-]up care.”
As the amended language makes clear, although the Smiths continued to
complain of the way Dr. Grays performed the inguinal and umbilical hernia repair
surgery—including his failing to remove and replace the preexisting hernia mesh—
they now alleged that he (1) failed to obtain Kelvin’s informed consent to the surgery
by failing to disclose certain associated risks and (2) committed a medical battery by
deviating from the represented surgical technique to be employed. Specifically, the
Smiths recalled a pre-operative office visit with Dr. Grays during which he provided
them with and discussed a pamphlet describing the surgery he proposed to perform
and its risks but never informed them that Kelvin “would suffer damages such
as . . . impotence and excruciating pain and suffering.” They asserted that had they
been informed, Kelvin would never have consented to the surgery. Additionally, they
alleged that Dr. Grays “used a different technique from the described pamphlet”—
i.e., the incision he employed was “up and down versus across.”
6
After multiple resets,6 the trial court conducted a hearing on Dr. Grays’s
motion to dismiss without the Smiths in attendance and without their having filed a
response to the motion. The trial court granted the motion, ordered that the Smiths
take nothing, and entered judgment in favor of Dr. Grays by dismissing “[a]ll claims”
brought by the Smiths “with prejudice against their refiling.” Over a year later, the
trial court resolved Dr. Grays’s lingering request for attorney’s fees and court costs
and entered its final judgment.7
The Smiths filed a timely notice of appeal on November 26, 2025.
II. Applicable Law and Standard of Review
A. The Expert Report Requirement for Health Care Liability Claims
The Texas Medical Liability Act (TMLA) governs the adjudication of health
care liability claims. See Tex. Civ. Prac. & Rem. Code §§ 74.001–.551.
“Health care liability claim” means 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.
6
The Smiths twice moved the trial court to reset the hearing on Dr. Grays’s motion to dismiss and objected to the trial court’s hearing the motion by submission. The trial court ultimately set the motion for an “in-person” hearing on May 24, 2024.
7
The Smiths attempted to appeal the trial court’s May 24, 2024 judgment, but because the judgment did not address Dr. Grays’s request for reasonable attorney’s fees and court costs, we dismissed the appeal for want of jurisdiction. See Smith v. Grays, No. 02-24-00294-CV, 2025 WL 1840475, at *1–2 (Tex. App.—Fort Worth, July 3, 2025, no pet.).
7
Id. § 74.001(a)(13). According to this definition, a health care liability claim has three
elements:
(1) the defendant is a health care provider or physician; (2) the claimant’s
cause of action is for treatment, lack of treatment, or other claimed
departure from accepted standards of medical care, health care, or safety
or professional or administrative services directly related to health care;
and (3) the defendant’s alleged departure from accepted standards
proximately cause the claimant’s injury or death.
Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012).
Any person who files suit asserting a health care liability claim must, within 120
days after each defendant’s original answer is filed, serve on that party or the party’s
attorney one or more expert reports for each physician or health care provider against
whom a health care liability claim is asserted. Tex. Civ. Prac. & Rem. Code
§ 74.351(a). An “expert report” is
a written report by an expert that provides a fair summary of the expert’s
opinions as of the date of the report regarding applicable standards of
care, the manner in which the care rendered by the physician or health
care provider failed to meet the standards, and the causal relationship
between that failure and the injury, harm, or damages claimed.
Id. § 74.351(r)(6).
The failure of a claimant to comply with this requirement mandates the
dismissal of his health care liability claim with prejudice. Id. § 74.351(b). “[E]ven a
pro se litigant [is] charged with knowledge of the statute and compliance with its
requirements.” Walker v. Gutierrez, 111 S.W.3d 56, 65 n.2 (Tex. 2003); Robinson v.
Murthy, No. 2-02-296-CV, 2003 WL 22026593, at *5 n.6 (Tex. App.—Fort Worth
8
Aug. 29, 2003, no pet.). If the cause of action is not a health care liability claim,
however, then the plaintiff need not serve an expert report upon the defendant to
avoid dismissal. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 505 (Tex. 2015).
The dismissal of a health care liability claim for failure to comply with the expert
report requirement is subject to review for an abuse of discretion. Marks v. St. Luke’s
Episcopal Hosp., 319 S.W.3d 658, 665 (Tex. 2010) (op. on reh’g); Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873, 877–78 (Tex. 2001).
B. Lack of Informed Consent May Not Be Recast as Medical Battery
Whether a plaintiff’s cause of action is a health care liability claim subject to the
requirements of the TMLA is a question of law we review de novo. Collin Creek
Assisted Living Ctr., Inc. v. Faber, 671 S.W.3d 879, 885 (Tex. 2023); Baylor Scott & White,
Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019); Merry v. Wilson, 498
S.W.3d 270, 272 (Tex. App.—Fort Worth 2016, no pet.) (“The nature of the claims
the legislature intended to include under chapter 74’s umbrella is a matter of statutory
construction, which is a legal question reviewed de novo.”).
A cause of action is a health care liability claim if it “alleges a departure from
accepted standards of medical care or health care if the act or omission complained of
is an inseparable part of the rendition of medical services.” Diversicare Gen. Partner, Inc.
v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005); see Gaytan, 640 S.W.3d at 846 (describing
complained-of act as “inseparable or integral”). In making this determination, we
9
consider the alleged wrongful conduct and the duties allegedly breached. Rubio, 185
S.W.3d at 851. We also consider whether expert testimony is necessary to show
breach of an applicable standard of care, whether the alleged negligence involves
medical judgment related to the patient’s care or treatment, and whether a specialized
standard in the health care community applies. Id. at 848–51. “[I]f expert medical or
health care testimony is necessary to prove or refute the merits of the claim against a
physician or health care provider, the claim is a health care liability claim.” Tex. W.
Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 182 (Tex. 2012).
Moreover, “we must focus on the claim’s ‘underlying nature . . . rather than its
label.’” Gaytan, 640 S.W.3d at 836 (quoting Weems, 575 S.W.3d at 363). We therefore
consider the entire record, “including ‘the pleadings, motions and responses, and
relevant evidence properly admitted.’” 8 Id. (quoting Loaisiga, 379 S.W.3d at 258). “A
lawsuit that is based on one set of facts cannot be divided into both a health care
liability claim and a non-health care liability claim.” Holden v. Mesa Springs Healthcare
Ctr., No. 11-23-00160-CV, 2025 WL 1954213, at *5 (Tex. App.—Eastland July 17,
2025, no pet.); see Yamada v. Friend, 335 S.W.3d 192, 197 (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
8
The pleadings to be considered include those timely amended before the hearing on a motion to dismiss, even if the amendment occurs after the filing of the motion. Gaytan, 640 S.W.3d at 836–37.
10
explicit requirements.”). “It is well settled that such artful pleading and recasting of
claims is not permitted.” Yamada, 335 S.W.3d at 196.
As a result, when a cause of action arises from a single set of facts that could
potentially qualify as a health care liability claim, then it will necessarily qualify as such
a claim, regardless of whether the plaintiff alleges a violation of a professional or
institutional standard of care. See Loaisiga, 379 S.W.3d at 255; Holden, 2025 WL
1954213, at *5. In this manner, the TMLA “essentially creates a [rebuttable]
presumption that a claim is [a health care liability claim] if it is against a physician or
health care provider and is based on facts implicating the defendant’s conduct during
the course of a patient’s care, treatment, or confinement.” Loaisiga, 379 S.W.3d. at
256; Holden, 2025 WL 1954213, at *6.
1. Informed Consent
“[P]hysicians and surgeons have a duty to make a reasonable disclosure to a
patient of risks that are incident to medical diagnosis and treatment.” Hood v. Phillips,
554 S.W.2d 160, 166 (Tex. 1977) (quoting Wilson v. Scott, 412 S.W.2d 299, 301 (Tex.
1967) (op. on reh’g)). “This duty is based upon the patient’s right to information
adequate for him to exercise an informed consent to or refusal of the procedure.”
Wilson, 412 S.W.2d at 301. Although originating under the common law, a physician’s
duty to obtain a patient’s informed consent to medical treatment is now a matter of
statutory regulation. Tex. Civ. Prac. & Rem. Code § 74.101 (“In a suit against a
physician . . . involving a health care liability claim that is based on the failure of the
11
physician . . . to disclose or adequately disclose the risks and hazards involved in
the . . . surgical procedure rendered by the physician . . . , the only theory on which
recovery may be obtained is that of negligence in failing to disclose the risks or
hazards that could have influenced a reasonable person in making a decision to give
or withhold consent.”); see Peterson v. Shields, 652 S.W.2d 929, 930–31 (Tex. 1983)
(recognizing common law superseded by enactment of predecessor of the TMLA).
Our sister court in Texarkana, considering an appeal transferred from this
court, summarized the current law of informed consent in the following manner:
“Chapter 74 creates the Texas Medical Disclosure Panel (the ‘Panel’) and
charges the Panel with responsibility for identifying those medical and
surgical procedures that do and do not require disclosure of risks and
hazards to the patient or the person authorized to consent for the
patient.” Vaughan v. Nielson, 274 S.W.3d 732, 736 (Tex. App.—San
Antonio 2008, no pet.) (citing Tex. Civ. Prac. & Rem. Code [] §§ 74.102–
.103 . . . ). “The Panel creates lists of procedures that require specific
disclosures, which are referred to as ‘List A’ procedures, and those that
require no disclosure, which are referred to as ‘List B’ procedures.” Id.
Consent “in writing, signed by the patient . . . and by a competent
witness,” is effective for a List A procedure if the consent “specifically
states the risks and hazards that are involved in the medical care or
surgical procedure in the form and to the degree required by the
disclosure panel under Section 74.103.” Tex. Civ. Prac. & Rem. Code []
§ 74.105 . . . . Disclosure “made as provided in Section 74.104” creates
“a rebuttable presumption that the requirements of Sections 74.104”
(duty of physician to provide disclosure of risks and hazards of List A
procedure) “and 74.105” (manner of disclosure) “have been complied
with.” [Id.] § 74.106 . . . .
Wakefield v. Pinnacle Anesthesia Consultants, P.A., No. 06-17-00056-CV, 2018 WL
1734984, at *14 (Tex. App.—Texarkana Apr. 2, 2018, pets. denied) (op. on reh’g)
(footnote omitted).
12
As the Wakefield court further explained:
The Texas Supreme Court has rejected the idea that an expert witness
can rebut the presumption of informed consent in List A cases by
claiming additional risks which, in the expert’s opinion, should have
been disclosed. Earle v. Ratliff, 998 S.W.2d 882, 891 (Tex. 1999). . . . A
physician cannot, therefore, be found negligent for not disclosing other
risks associated with a procedure when the physician made the
disclosures as prescribed by the . . . Panel. Id.
Id. at *15.
The supreme court has additionally denied that a physician’s oral
misrepresentations concerning the risks of a procedure invalidate the informed
consent of a patient so obtained; consent obtained employing the form and
disclosures prescribed by the Panel can be invalidated only by showing the “invalidity
of the consent form, such as by proof that the patient’s signature was forged, or that
the patient lacked capacity to sign.” Id. (quoting Earle, 998 S.W.2d at 891–92). Absent
any such challenge, consent obtained as prescribed by the Panel satisfies the
physician’s duty to obtain his patient’s informed consent before performing a
procedure. Id.
Finally, the disclosure and consent form prescribed by the Panel for medical
care and surgical procedures expressly identifies risks that all such care and procedures
involve, including “infection, blood clots in veins, lungs or other organs, hemorrhage
(severe bleeding), allergic reactions, poor wound healing, and death.” See 25 Tex.
Admin. Code § 604.1(a)(1) (English form). The prescribed form requires the patient
13
to confirm both his understanding that during the procedure his physician “may
discover other conditions which require additional or different care/procedure(s) than
originally planned” and his authorization for his physician “to use [his] professional
judgment to perform the additional or different care/procedure(s) [he] believe[s] are
needed.” See id.
2. Medical Battery
By way of contrast, a cause of action for a total lack of consent to medical
treatment sounds in battery and is distinct from a health care liability claim for a lack
of informed consent under the TMLA. Schaub v. Sanchez, 229 S.W.3d 322, 324 (Tex.
2007); Arani v. Fisher, No. 14-18-00117-CV, 2018 WL 5289932, at *4 (Tex. App.—
Houston [14th Dist.] Oct. 25, 2018, no pet.) (“Informed consent claims, however,
differ materially from claims alleging that a patient gave no consent at all for the
treatment.”). “The tort of battery has been recognized when a physician, with no
justification or excuse, performs an operation without the express or implied consent
of the patient.” Ranelle v. Beavers, No. 02-08-00437-CV, 2009 WL 1176445, at *3 (Tex.
App.—Fort Worth Apr. 30, 2009, no pet.) (citing Gravis v. Physicians & Surgeons Hosp.
of Alice, 427 S.W.2d 310, 311 (Tex. 1968)).
“Medical treatment will not constitute a battery unless it is provided without
the patient’s consent.” Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (citing Miller
ex rel. Miller v. HCA, Inc., 118 S.W.3d 758, 767 (Tex. 2003)). “But failure to obtain
consent does not automatically result in liability. There may be reasons for providing
14
treatment without specific consent that do not breach any applicable standard of
care.” Id. Whether such reasons exist “is necessarily the subject of expert testimony.”
Id. By enacting the expert report requirement, therefore, the Legislature intended that
health care liability claims be scrutinized by the courts through the written opinions of
one or more experts before authorizing suit to proceed. Id. Again, this requirement is
not subject to avoidance “by filing a bare-bones pleading that asserts battery based on
lack of consent” or “artful pleading.” Id.
C. Patient Consent is Usually Inseparable From Rendition of Treatment
For example, in Murphy, the Supreme Court of Texas held that an
anesthesiologist’s administration of a general anesthetic—contrary to his alleged
agreement to administer a local anesthetic—for a biopsy procedure stated a health
care liability claim subject to the expert report requirement of the TMLA because the
patient’s denying her consent nevertheless called into question “whether the
administration of a general anesthetic under all the circumstances met the standard of
care for anesthesiologists.” Id. Subsequently, in Loaisiga, the supreme court held that
claims of assault by “offensive or provocative” contact brought by two female
patients against their physician alleging that he had improperly and without their
consent groped their breasts while examining them for unrelated flu and sinus
symptoms nevertheless failed to qualify as claims for civil assault but were instead
health care liability claims. 379 S.W.3d at 256–60. The supreme court explained that
the plaintiffs needed expert testimony to conclusively rebut the presumption that his
15
conduct was an inseparable part of his rendition of medical services. Id.; cf. T.C. v.
Kayass, 535 S.W.3d 169, 170–76 (Tex. App.—Fort Worth 2017, no pet.) (holding
mother’s claim against pediatrician alleging he sexually assaulted her in front of her
children during an appointment was not health care liability claim subject to expert
report requirement).
More particularly, in Hunsucker v. Fustok, our sister court in Houston held that
the surgeon’s employment of an incision through the nipple to replace the patient’s
breast implants, contrary to his alleged agreement to employ an incision underneath
the breast, stated a health care liability claim requiring an expert report. 238 S.W.3d
421, 424–29 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see Stewart v. Civitas Senior
Healthcare, LLC, No. 02-22-00388-CV, 2023 WL 2607762, at *8 (Tex. App.—Fort
Worth Mar. 23, 2023, no pet.) (holding that alleged dental battery claim for extraction
of patient’s teeth without consent qualified as health care liability claim subject to
expert report requirement); Samson v. Small, No. 01-09-00451-CV, 2011 WL 1529729,
at *1–4 (Tex. App.—Houston [1st Dist.] Feb. 24, 2011, no pet.) (holding that patient’s
alleged medical battery claim for implantation of pedical screws and spinal rods during
bilateral decompressive lumbar laminectomy and posterolateral fusion contrary to his
consent only to a bone graft fusion was health care liability claim subject to expert
report requirement).
Thus, a claim that a surgeon failed to perform a surgical procedure in the form
or manner to which the patient contracted and consented has been held to state a
16
health care liability claim subject to the expert report requirement when the issue of
consent is inseparable from and integral to the surgery performed. See Mazow v. Peoples,
No. 05-24-00350-CV, 2024 WL 5165185, at *7–10 (Tex. App.—Dallas Dec. 19, 2024,
pet. denied) (holding that failure of ophthalmologist to perform bilateral lower eyelid
blepharoplasty to which patient consented asserted health care liability claim); see also
Ahmadi v. Moss, 530 S.W.3d 754, 756–58 (Tex. App.—Houston [14th Dist.] 2017, no
pet.) (holding that failure of plastic surgeon to include liposuction in breast reduction
surgery to which patient contracted and consented stated health care liability claim).
III. Analysis
The Smiths argue that, in response to Dr. Grays’s motion to dismiss, they
timely amended their pleadings to allege a cause of action for medical battery
complaining that “Dr. Grays performed a substantially different procedure than the
one to which [Kelvin] consented, failed to remove existing hernia mesh as promised,
used an unauthorized surgical technique, caused the bursting of a testicle, and failed
to disclose material risks including impotence.” In this manner, they seek to
demonstrate that Dr. Grays performed the inguinal and umbilical hernia repair
procedure without any consent whatsoever thereby excusing their failure to serve the
expert report required to prosecute health care liability claims under the TMLA. This
is the very splitting, splicing, and recasting foreclosed by Yamada and Loaisiga. Because
the Smiths’ complaints concerning the surgical technique employed by Dr. Grays, his
failure to remove the allegedly infected mesh, and the risks he failed to disclose are all
17
alleged violations of the standard of care that were inseparable parts of the medical
services he provided, the allegations of their amended pleading stated health care
liability claims subject to the expert report requirement of the TMLA.
As an initial matter, a cause of action for personal injury arising from the
alleged negligence of a physician in performing a surgical procedure to repair a hernia
is a health care liability claim subject to the expert report requirement of the TMLA.
See Rath v. Seimet, No. 02-25-00670-CV, 2026 WL 2275293, at *3–9 (Tex. App.—Fort
Worth Aug. 6, 2026, no pet. h.) (upholding sufficiency of patient’s expert report for
health care liability claim arising from surgeons’ alleged negligence in performing
similar surgical procedure); Gale v. Chaudhry, No. 01-22-00833-CV, 2024 WL 3707572,
at *1–6 (Tex. App.—Houston [1st Dist.] Aug. 8, 2024, pet. denied) (affirming
dismissal of health care liability claim due to inadequate expert report demonstrating
surgeon’s negligence in performing similar surgical procedure with similar medical
injuries); Hendricks v. Perales, No. 05-16-01258-CV, 2017 WL 1075637, at *6–7 (Tex.
App.—Dallas Mar. 21, 2017, no pet.) (holding that patient’s expert report, while
meeting standard of care and breach elements for health care liability claim arising
from hernia repair, failed to establish causal connection between breach and injuries
sustained); Avila v. Jimenez, No. 13-12-00101-CV, 2013 WL 1500328, at *1–4 (Tex.
App.—Corpus Christi–Edinburg Apr. 11, 2013, pet. denied) (affirming denial of
surgeon’s motion to dismiss because expert report adequately demonstrated his
negligence in performing surgical procedure resulting in patient’s death); Plemons v.
18
Harris, No. 2-08-326-CV, 2009 WL 51290, at *1 (Tex. App.—Fort Worth Jan. 8,
2009, no pet.) (affirming denial of anesthesiologist’s motion to dismiss challenging
adequacy of expert report demonstrating his negligence in providing anesthesia for
surgical procedure resulting in patient’s death); Renaissance Surgical Ctrs.–S. Tex., L.L.P.
v. Jimenez, No. 13-07-121-CV, 2008 WL 3971096, at *3–7 (Tex. App.—Corpus
Christi–Edinburg Aug. 28, 2008, no pet.) (affirming denial of surgical center’s motion
to dismiss because expert report adequately demonstrated negligence of certified
registered nurse anesthetist in providing anesthesia for surgical procedure resulting in
patient’s death underlying center’s alleged vicarious liability); Robinson, 2003 WL
22026593, at *1 (affirming dismissal of patient’s health care liability claims arising
from post-operative injuries from hernia repair surgery); Buruato v. Mercy Hosp. of
Laredo, 2 S.W.3d 385, 386–87 (Tex. App.—San Antonio 1999, pet. denied) (affirming
dismissal of couple’s health care liability claims for failure to file expert report
demonstrating negligence in treating husband’s hernia).
Although they recast their original claim for negligence complaining of the
longitudinal incision allegedly employed by Dr. Grays and his failure to remove
allegedly infected mesh as (1) performing a surgical technique to which Kelvin did not
consent and (2) omitting a part of the procedure for which they contracted, i.e., the
removal of the allegedly infected mesh, the manner in which Dr. Grays performed the
surgery was an inseparable and integral part of the medical and surgical services he
provided to Kelvin. Accordingly, these allegations state health care liability claims
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subject to the expert report requirement. See Murphy, 167 S.W.3d at 839 (holding that
choice between local and general anesthesia was a matter of medical judgment
requiring expert testimony); Hunsucker, 238 S.W.3d at 424–29 (holding that choice
between incision sites was a matter of medical judgment requiring expert testimony).
Moreover, hernia repair is a List A surgical procedure for which the Panel has
identified the following risks and hazards as the standard for disclosure for a surgeon
to obtain a patient’s informed consent to the procedure:
(1) Injury to adjacent structures (bowel, bladder, blood vessels, nerves).
(2) Seroma (fluid) or hematoma (blood) collection at surgical site.
(3) Chronic pain.
(4) Testicular injury (for those of male sex).
(5) If mesh used, infection, failure, migration, or rejection of the mesh.
(6) Recurrence.9
9
Although the Panel has identified impotence and sexual dysfunction as material risks of certain spine surgeries, it has not done so for hernia repair procedures. See Earle, 998 S.W.2d at 891 n.40 (observing that “spine operation” is defined as a List A surgical procedure requiring written disclosure of certain enumerated risks, including “incontinence or impotence”); Bianco Brain & Spine, PLLC v. Jones, No. 02-23-00220-CV, 2025 WL 1141886, at *11 (Tex. App.—Fort Worth Apr. 17, 2025, pet. filed) (discussing informed consent form executed by patient before spinal fusion surgery listing “incontinence, impotence or impaired bowel function” as risks of procedure); Weidner v. Marlin, No. 04-96-00160-CV, 1997 WL 531129, at *5 (Tex. App.—San Antonio Aug. 29, 1997, no writ) (observing spinal
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25 Tex. Admin. Code § 602.3(m). As a matter of law, therefore, any cause of action
predicated upon the lack or absence of consent is governed by the Panel’s List A
designation and is, by definition, a health care liability claim subject to the expert
report requirement of the TMLA. See Binur v. Jacobo, 135 S.W.3d 646, 654–57 (Tex.
2004) (holding that only risks and hazards identified by Panel for procedure included
in List A are subject to disclosure to obtain patient’s informed consent).
For example, in Rush v. Honeycutt, our sister court in Corpus Christi–Edinburg
held that the bilateral removal of portions of the patient’s fallopian tubes to which she
did not consent during the course of a left inguinal hernia repair to which she did
consent stated a health care liability claim. No. 13-05-579-CV, 2007 WL 1706255, at
*3 (Tex. App.—Corpus Christi–Edinburg June 14, 2007, pet. denied). Although the
patient pleaded the claim as one for medical battery, “all fallopian tube and ovarian
surgery with or without hysterectomy, including removal and lysis of adhesions” was a
List A procedure, and disclosure and consent was specifically required by the TMLA.
Id. at *4. And although Honeycutt is a summary judgment case, it stands for the
proposition that any cause of action for the total absence of consent arising from a
surgical procedure that has been designated a List A procedure by the Panel is a health
care liability claim subject to the expert report requirement, even if it alleges a medical
surgery was List A surgical procedure with six enumerated risks, including “incontinence or impotence”); see also 25 Tex. Admin. Code § 602.13(c)(3) (identifying “[i]ncontinence, impotence or impaired bowel function (loss of bowel/bladder control and/or sexual function)” as one of ten enumerated risks identified by Panel for “spine operation”).
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battery. See id. at *3; see also Meyer v. Strahan, 578 S.W.3d 165, 171–72 (Tex. App.—
Tyler 2019, pet. denied) (holding that patient’s expert report sufficient to establish
standard of care, breach, and causation elements of claim arising from left inguinal
hernia repair alleging lack of consent to intraoperative addition of right inguinal hernia
repair); Merckling v. Curtis, 911 S.W.2d 759, 768–70 (Tex. App.—Houston [1st Dist.]
1995, writ denied) (holding no error in refusing jury questions on informed consent
because patient failed to present any evidence that nerve entrapment was a material
risk inherent in List B hernia repair procedure otherwise designated by the Panel as
requiring no disclosure of risks); see also Arani, 2018 WL 5289932, at *1, *4–6 (holding
that, even though patient alleged claim for medical battery arising from physician’s
failure to obtain any consent to administration of “highly toxic drug” to treat a
leukemia diagnosis of which he had not made her aware, patient’s expert report
properly complied with Section 74.351(a) to avoid dismissal); Ranelle, 2009 WL
1176445, at *2–4 (holding that, even though patient alleged a claim for medical
battery, because she consented to spine surgery that surgeon falsely represented to be
necessary to address ruptured disc that did not exist, patient’s expert report
sufficiently set forth standard of care, breach, and causation elements of health care
liability claim to avoid dismissal).
Finally, as to the complaint that Dr. Grays failed to obtain Kelvin’s informed
consent by disclosing the risks and hazards of the inguinal and umbilical hernia repair
surgery, other than the risk of trauma to and loss of his testicle and the resulting
22
impotence and sexual dysfunction, the Smiths identify no other risk of which Kelvin
was not informed. And although they concede he consented to a surgical procedure
to repair inguinal and umbilical hernias with removal of mesh, they do not allege that
the consent form by which he consented failed to disclose the risks identified by the
Panel for this List A procedure, which include testicular injury but exclude impotence
and sexual dysfunction. See Earle, 998 S.W.2d at 891–92 (holding that consent
obtained employing form and disclosures prescribed by Panel can only be invalidated
by showing “invalidity of the consent form, such as by proof that the patient’s
signature was forged, or that the patient lacked capacity to sign”).
In Fairfax v. Smith, our sister court in Amarillo affirmed the dismissal of a
health care liability claim due to the pro se patient’s failure to serve an expert report.
No. 07-09-0321-CV, 2010 WL 890161, at *1 (Tex. App.—Amarillo Mar. 12, 2010, no
pet.). The patient’s allegations were remarkably similar to those of the Smiths, i.e., that
the surgeon and medical center where he underwent surgery were negligent in
performing hernia repair surgery on him “[(1)] by not disclosing all the risks and
hazards of hernia surgery to him, [(2)] in ‘snatching out and removing [his] right
testicle from its cord and scrotum, and [(3)] in performing testicle repair surgery
without his consent.” Id. Although the patient did not allege a medical battery claim,
he did argue that the expert report requirement did not apply to his allegations of
simple negligence claims. Id. at *2. Considering the underlying nature of his claims to
determine whether the acts and omissions of which he complained were an inseparable
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part of the rendition of health care services he received, the court concluded that they
were, so the patient was required to serve an expert report under the TMLA. Id.
We reach the same conclusion regarding the acts and omissions alleged against
Dr. Grays by the Smiths—the alleged manner of his performing the hernia repair
itself and his alleged failure to disclose the risks the Smiths identify with the
procedure—they are acts and omissions that are inseparable from the medical and
surgical services he provided and their characterization as a medical battery is an
impermissible recasting of health care liability claims. As such, the Smiths were
required to serve Dr. Grays with an expert report in compliance with Section
74.351(a), and their undisputed failure to do so left the trial court without any
discretion but to dismiss all their claims with prejudice. Tex. Civ. Prac. & Rem. Code
§ 74.351(b).
IV. Conclusion
Because the trial court did not abuse its discretion by misinterpreting or
misapplying the TMLA in dismissing the health care liability claims alleged by the
Smiths for their failure to serve Dr. Grays with an expert report, we affirm.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: August 27, 2026
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