Cardwell v. McDonald

The claimant, appellee Marianne McDonald, alleges in part that a physician, appellant David Cardwell, M.D., a psychiatrist, conducted a "counseling" session under false pretenses in order to gain or generate information for McDonald's husband to use against her in a divorce proceeding. Perceiving that her suit was not a health care liability claim and, thus, did not implicate the Texas Medical Liability Act's expert-report requirement, McDonald made no attempt to serve a report. Contending that McDonald's suit was an HCLC, Cardwell moved to dismiss after the TMLA's 120-day deadline for serving expert reports expired. The district court denied the motion in full. Cardwell appeals the district court's order. Although some of McDonald's factual allegations state an HCLC that the TMLA requires to be dismissed, her complaints of misleading or deceitful conduct calculated to aid her husband in divorce litigation do not. Her theories of recovery predicated solely on the latter facts do not overlap with the facts underlying her HCLC in the manner that the Texas Supreme Court has held to require dismissal of both. The district court's order is affirmed in part, and reversed and remanded in part. Cardwell v. McDonald, Austin Court of Appeals, No. 03-10-00086-CV, 08-31-2011.