CROSSOVER: Clinic Gossip Is Not Health Care: Post-Visit Defamation Avoids Chapter 74’s Expert-Report and Discovery Stay

Candice Griffith and Forney Eye Associates, PLLC v. Steve Olkewicz, 05-26-00509-CV, September 29, 2026.

On appeal from 422nd Judicial District Court, Kaufman County, Texas

Synopsis

Claims based on allegedly false, post-visit statements by clinic personnel to a patient’s employer were not health care liability claims because they did not challenge treatment or a departure from standards directly related to health care. Chapter 74 therefore did not require an expert report, mandate dismissal, or support continuation of the statute’s pre-report discovery stay.

Relevance to Family Law

Family law cases frequently generate collateral tort allegations involving physicians, therapists, counselors, evaluators, treatment facilities, and their employees. Those allegations may concern communications to an employer, parent, school, custody evaluator, or other third party. Griffith confirms that a defendant’s status as a health care provider—and the fact that the parties first encountered one another in a clinical setting—does not automatically convert every later communication into a health care liability claim.

The distinction can be consequential in divorce, custody, and property litigation. If the gravamen of a third-party claim is negligent treatment, diagnosis, clinical judgment, or mishandling of medical information under a professional health care standard, Chapter 74 may apply. If the claim instead concerns an allegedly false statement about nonclinical conduct, ordinary defamation, or interference with an employment or contractual relationship, the claimant may proceed without a Chapter 74 expert report. That classification also affects whether discovery is stayed under Texas Civil Practice and Remedies Code § 74.351.

Family Law Crossover

The procedural mechanism is a threshold classification of the pleaded cause of action. When a physician or health care provider contends that a claim is a “health care liability claim” under § 74.001(a)(13), the trial court examines the claim’s underlying nature rather than its caption. If the claim falls within Chapter 74, § 74.351 requires a timely expert report and curriculum vitae, stays most discovery before service of the report, and authorizes dismissal with prejudice and an award of attorney’s fees and costs when no compliant report is timely served.

That procedure can arise in a Texas family law matter when a parent or spouse asserts a collateral claim against a therapist, physician, treatment facility, custody-related professional, or clinical employee. Examples include claims involving communications about a parent’s conduct, disclosures to an employer or school, statements made during a custody dispute, or allegations that a provider interfered with employment or another legal relationship. The court must determine whether proving the claim requires evidence of a departure from accepted medical, health care, safety, professional, or administrative standards directly related to health care. The location of the underlying incident and the defendant’s professional status are relevant, but they do not replace that substantive inquiry.

Case Summary

Fact Summary

Steve Olkewicz visited Forney Eye Associates on August 22, 2025. According to his live pleading, he had a verbal dispute with clinic employee Candice Griffith. Clinic staff contacted law enforcement, and a criminal-trespass warning was issued.

Olkewicz alleged that, after the clinic incident, a complaint reached his employer through the spouse of a clinic employee involved in the event. He claimed that the communication contained false and defamatory statements concerning him and his conduct at the clinic. He further alleged that the communications caused his termination and harmed his reputation.

Based on those events, Olkewicz asserted claims for defamation, invasion of privacy, tortious interference with existing employment, negligence, and negligent hiring, training, supervision, and retention. His petition characterized the challenged communications as unauthorized, false, misleading, and unrelated to any clinical purpose. The negligence-based allegations referred to privacy, communication, confidentiality, and HIPAA-related safeguards.

Forney Eye Associates argued that the references to confidentiality and protected health information made the lawsuit one concerning an improper disclosure of health information and a breach of professional confidentiality. It therefore treated the claims as health care liability claims governed by Chapter 74. The clinic relied on Chapter 74’s discovery stay and, along with Griffith, sought dismissal after Olkewicz did not serve an expert report within the statutory period.

Olkewicz moved for a determination under § 74.353 that his claims were not health care liability claims and asked the trial court to lift the asserted discovery stay. After hearings and additional briefing, the trial court concluded that Chapter 74 did not apply, denied both motions to dismiss, and granted Olkewicz’s motion. The defendants pursued an accelerated interlocutory appeal.

Issues Decided

The Fifth Court of Appeals addressed:

1. Whether the claims arose from treatment, lack of treatment, or a departure from accepted medical, health care, safety, professional, or administrative standards directly related to health care under § 74.001(a)(13).
2. Whether the plaintiff’s failure to serve a Chapter 74 expert report required dismissal with prejudice and an award of attorney’s fees and costs under § 74.351.
3. Whether the asserted timing objection to the plaintiff’s motion for a Chapter 74 applicability determination provided a basis to reverse the trial court’s ruling.

Rules Applied

Texas Civil Practice and Remedies Code § 74.001(a)(13) defines a health care liability claim as a cause of action against a physician or health care provider for treatment, lack of treatment, or another claimed departure from accepted standards of medical care, health care, safety, or professional or administrative services directly related to health care, when the departure proximately causes injury or death.

Under Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012), a health care liability claim has three components:

1. The defendant is a physician or health care provider.
2. The claim concerns treatment, lack of treatment, or a departure from an accepted standard identified in § 74.001(a)(13).
3. The complained-of conduct proximately caused the alleged injury.

Optometrists, as well as their employees acting within the course and scope of employment, may qualify as health care providers under §§ 74.001(a)(12)(A)(vi) and 74.001(a)(12)(B)(ii). Provider status, however, addresses only one element of the analysis.

Section 74.351 requires a claimant asserting a health care liability claim to serve an expert report and the expert’s curriculum vitae. Before the report is served, the statute stays most discovery. If an expert report is required but not timely served, § 74.351(b) directs the trial court to dismiss the claim with prejudice and award the affected provider its reasonable attorney’s fees and costs.

Whether a cause of action is a health care liability claim is a question of law reviewed de novo. The court examines the claim’s underlying nature and is not controlled by the plaintiff’s chosen labels. Under Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 847 (Tex. 2005), and Garland Community Hospital v. Rose, 156 S.W.3d 541, 544 (Tex. 2004), a claim falls within Chapter 74 when the complained-of act or omission is an inseparable part of the rendition of health care services. Likewise, Monson v. Allen Family First Clinic, P.A., 390 S.W.3d 598, 600–01 (Tex. App.—Dallas 2012, no pet.), recognizes that a claim based on the standard of care applicable to health care providers may fall within the statute regardless of its pleading label.

Conversely, a tort claim does not become a health care liability claim merely because the defendant is a provider or because the events have some connection to a clinic. The second statutory element still requires a claimed departure from one of Chapter 74’s enumerated standards.

Application

The court focused on the substance of the alleged wrong. Olkewicz did not complain that the clinic misdiagnosed him, mistreated him, failed to provide treatment, or exercised deficient clinical judgment. His central allegation was that clinic personnel communicated false information to his employer about his behavior during a dispute at the clinic, causing employment and reputational injuries.

Although the petition included references to privacy, confidentiality, HIPAA-related safeguards, and training, the court did not treat those words as dispositive. It examined what Olkewicz would have to prove. The alleged injuries arose from the content and consequences of the third-party communications, not from the rendition of optometric services.

The defamation claim turned on whether a false and defamatory statement was published to a third party and caused legally cognizable injury. The tortious-interference theory similarly focused on allegedly false communications that affected Olkewicz’s employment relationship. Those theories did not require proof that an optometrist or clinic employee departed from an accepted clinical standard.

The alleged communication also concerned Olkewicz’s conduct during the clinic incident rather than his diagnosis, treatment, or medical condition. On the pleaded facts, the communication was not made to accomplish a clinical purpose and was not an inseparable part of providing optometric care. Thus, an expert opinion addressing accepted standards of medical or health care would not resolve the principal liability questions.

The court’s analysis illustrates why merely placing words such as “negligence,” “privacy,” “confidentiality,” or “HIPAA” in a petition does not answer the Chapter 74 question. The court must identify the precise act or omission alleged, the nature of the duty allegedly breached, and whether the applicable standard is a professional health care standard or an ordinary legal duty.

Because the claims did not satisfy the substantive definition of a health care liability claim, the statutory consequences attached to such claims—including the expert-report requirement, pre-report discovery stay, and dismissal remedy—did not apply. The appellate court also did not allow the asserted procedural objection to the claimant’s applicability motion to override that substantive classification. The opinion specifically noted that Forney Eye Associates had not presented its timeliness argument to the trial court.

Holding

The court held that the defamation and related tort claims were not health care liability claims under § 74.001(a)(13). Although the defendants qualified as health care providers, the pleaded claims did not challenge treatment, lack of treatment, clinical judgment, or a departure from an accepted standard directly related to health care.

Because the causes of action were not health care liability claims, Olkewicz was not required to serve an expert report under § 74.351. His failure to serve one therefore did not authorize dismissal with prejudice or an award of attorney’s fees and costs.

The court further left intact the trial court’s determination that Chapter 74 did not govern the suit. The asserted timing challenge did not furnish a basis for reversal, and the Fifth Court of Appeals affirmed the March 25, 2026 orders denying the motions to dismiss.

Practical Application

For family law litigators, Griffith is particularly useful when a suit or counterclaim involves a professional who also happens to be participating in a divorce, conservatorship, possession, or child-support dispute. Counsel should resist categorical arguments based solely on professional status. The operative question is what duty the claim seeks to enforce.

In a custody case, for example, a parent may allege that a therapist made false statements to a school, employer, evaluator, or third party. If the theory is that the communication was knowingly or negligently false and caused reputational or economic injury, the claim may be governed by ordinary tort principles. If the theory is that the therapist improperly interpreted clinical information, departed from accepted therapeutic standards, or mishandled information whose disclosure requires professional judgment, Chapter 74 may present a materially stronger issue.

The same distinction applies to substance-abuse treatment and mental-health evidence. A claim that a facility inaccurately diagnosed a spouse or failed to follow accepted treatment protocols likely implicates professional standards. A claim that a staff member falsely told an employer that the spouse committed disruptive or criminal conduct may not, even if the communication followed a treatment visit.

In divorce and property litigation, alleged communications may affect employment, business goodwill, earning capacity, reimbursement claims, or valuation evidence. Counsel should determine at the outset whether the alleged damages flow from medical care or from a separate communication to a third party. That determination can control pleading strategy, expert deadlines, discovery sequencing, and the availability of an interlocutory appeal.

Practitioners also should separate Chapter 74 from other possible defenses. A determination that a claim is not a health care liability claim does not establish the tort’s elements or defeat privileges, immunities, causation defenses, damages challenges, or statutory confidentiality arguments. It decides the applicable procedural framework, not ultimate liability.

Checklists

Classify the Claim at Intake

• Identify each defendant’s status as a physician, health care provider, employee, or nonprovider.
• Isolate the exact act or omission alleged against each defendant.
• Determine whether the alleged duty arises from treatment, diagnosis, clinical judgment, or professional health care standards.
• Determine whether the communication concerned medical information, nonclinical conduct, or both.
• Ask whether the claim can be proved through ordinary evidence or requires expert testimony about accepted health care standards.
• Identify whether the alleged injury arose from treatment or from a later publication, disclosure, or communication.
• Analyze each cause of action separately rather than treating the entire lawsuit as governed by a single classification.

Evaluate Chapter 74 Early

• Calendar the 120-day expert-report deadline if Chapter 74 may apply.
• Determine whether a written agreement extends the report deadline.
• Assess whether § 74.351’s discovery stay is in effect.
• Identify the limited categories of discovery permitted before service of an expert report.
• Consider seeking a determination under § 74.353 when Chapter 74’s applicability is disputed.
• Preserve all statutory arguments and procedural objections in the trial court.
• Evaluate whether an interlocutory appeal is authorized from the resulting order.

Plead Collateral Claims Precisely

• Describe the challenged communication with sufficient specificity.
• Identify the speaker, recipient, subject matter, timing, and alleged damages.
• Distinguish clinical information from statements about conduct unrelated to treatment.
• State whether the communication served a treatment or health care purpose.
• Avoid combining ordinary defamation duties with professional negligence standards in the same undifferentiated count.
• Plead the factual basis for negligent hiring, training, supervision, or retention rather than relying on labels.
• Recognize that disclaiming Chapter 74 is not controlling if the pleaded substance invokes professional health care standards.

Analyze Family Law Communications

• Identify communications to custody evaluators, amicus attorneys, guardians ad litem, schools, employers, and treatment providers.
• Determine whether the statement was made for diagnosis, treatment, evaluation, or another professional purpose.
• Evaluate potential judicial-proceeding, quasi-judicial, statutory, or common-law privileges independently of Chapter 74.
• Review confidentiality statutes, HIPAA regulations, authorization forms, and relevant court orders.
• Determine whether the speaker was acting within the course and scope of employment.
• Trace claimed damages to the communication rather than assuming they arose from the family law proceeding.
• Consider whether the tort claim belongs in a separate proceeding and whether joinder, severance, or abatement issues exist.

Support or Oppose a Chapter 74 Motion

• Quote the statutory definition in § 74.001(a)(13).
• Address each of the three Loaisiga elements.
• Explain why the alleged conduct is—or is not—an inseparable part of health care.
• Identify the standard of care that would govern the challenged conduct.
• Explain whether expert testimony is necessary to establish that standard.
• Connect each alleged injury to the specific act or omission at issue.
• Avoid relying exclusively on the defendant’s professional title or the location of the incident.
• Obtain a clear written order suitable for interlocutory review.
• Preserve every complaint by timely presenting it to the trial court and obtaining a ruling.

Avoid the Nonprevailing Appellants’ Procedural Position

• Do not assume that every claim against a clinic or provider falls within Chapter 74.
• Do not treat a reference to HIPAA or confidentiality as conclusive.
• Analyze the actual information allegedly disclosed and the purpose of the communication.
• Distinguish treatment-related disclosures from statements about nonclinical conduct.
• Present procedural objections to the trial court before raising them on appeal.
• Develop alternative defenses in case the court concludes that Chapter 74 does not apply.
• Avoid relying on the expert-report deadline until the statutory classification has been carefully evaluated.

Citation

Candice Griffith and Forney Eye Associates, PLLC v. Steve Olkewicz, __ S.W.3d __, No. 05-26-00509-CV (Tex. App.—Dallas Sept. 29, 2026, no pet. h.) (mem. op.).

Full Opinion

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