The definition of "health care provider" includes:
any person, partnership, professional association, corporation, facility, or institution duly licensed or chartered by the State of Texas to provide health care as a registered nurse, hospital, dentist, podiatrist, pharmacist, or nursing home, or an officer, employee, or agent thereof acting in the course and scope of his employment. Id. at § 1.03(a)(3).
The Williams v. Good Health Plus, Inc. supports its arguments. (Tex.App.-San Antonio 1987, no writ) court concluded a health maintenance organization (HMO) proved as a matter of law it could not "practice medicine, so as to be subjected to liability" for an alleged failure to diagnose and properly treat a staph infection. Id. at 378.
The Hunte v. Hinkley (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.) court relied on TEX. REV. CIV. STAT. ANN. art. 4495b (Vernon Supp. 1987) in holding a clinic was not liable for a failure to diagnose. Hunte, 731 S.W.2d at 572.
However, the Hunte court also held, as a matter of law, the alleged acts or omissions were by independent contractors. Id. at 571.
Several courts have construed the definition of "health care provider" in section 1.03(a)(3) of article 4590i. See Grace v. Colorito, 4 S.W.3d 765, 769 (Tex. App.--Austin 1999, pet. denied) (licensed counselor not "health care provider" since not listed in definition); Terry v. Barrinuevo, 961 S.W.2d 528, 530-31 (Tex. App.--Houston [1st Dist.] 1997, no pet.) (op. on reh'g) (physical therapist not included as "health care provider" since not listed); Townsend v. Catalina Ambulance Co., 857 S.W.2d 791, 796 (Tex. App.--Corpus Christi 1993, no writ) (ambulance companies not included in definition).
Each court to address the issue has held that professionals or services not expressly listed in the definition are not included in the Act. See Grace v. Colorito, 4 S.W.3d at 769; Terry v. Barrinuevo, 961 S.W.2d at 530-31; Townsend v. Catalina Ambulance Co., 857 S.W.2d at 796.
In Lenhard v. Butler, this Court held that a psychologist is not a "health care provider" as defined by the act, relying on the statutory construction rule expressio unius est exclusion alterius. 745 S.W.2d 101, 105-06 (Tex. App.--Fort Worth 1988, writ denied).
In Lenhard, we reasoned that including podiatrists, nurses, dentists, and pharmacists while excluding other professionals such as chiropractors, optometrists, or psychologists was not a mere oversight. Id.