Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel--Appeal from 151st District Court of Harris County
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Affirmed and Memorandum Opinion filed March 30, 2010.
In The
Fourteenth Court of Appeals
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NO. 14-09-00450-CV
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MATTHEW W. WASSERMAN, M.D., Appellant
V.
CHRISTINA BERGERON GUGEL, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2008-24997
MEMORANDUM OPINION
This is an interlocutory appeal from an order denying appellant, Matthew W.
Wasserman, M.D.’s motion to dismiss for failure to file an expert report as required by
section 74.351(a) of the Texas Civil Practice and Remedies Code. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is an orthopedic surgeon licensed in the State of Texas. In her Plaintiff’s
Original Petition, appellee, Christina Bergeron Gugel, alleged that during a medical
appointment, Wasserman sexually assaulted her. Gugel’s specific allegations include the
following. Gugel scheduled an appointment with Wasserman for a physical examination
and review of medical history to determine if she needed back surgery. On November 16,
2006, Gugel, accompanied by her sister-in-law, arrived for that appointment. During the
appointment, which took place in the presence of Gugel’s sister-in-law, Wasserman
conducted a physical examination, reviewed Gugel’s medical history, and questioned her
regarding any present pain and numbness. Wasserman then asked Gugel to return the
next day to receive his recommendation regarding her need for back surgery.
Gugel returned, alone, the next afternoon for the surgery consult. A nurse escorted
Gugel into an examination room and explained to her that she was only there for a consult.
The nurse departed and left the door open at the request of Gugel. Then, through the open
door, Gugel saw Wasserman review her magnetic resonance imaging (“MRI”) films.
Wasserman then entered the examination room. Wasserman explained that he did not
believe Gugel needed back surgery. Wasserman then took Gugel out of the examination
room and showed her the MRI films.
Wasserman then led Gugel back into the
examination room and he then shut the door behind them.
Now alone in the examination room with Gugel, Wasserman began a second
physical examination of Gugel.1 Wasserman, who was not wearing examination gloves,
began this second physical examination in two days by pulling Gugel’s sweat pants down
over her hips, discovering she was not wearing underpants.
Wasserman examined
Gugel’s thigh and legs and inquired where she felt numbness. Wasserman then asked
Gugel to walk on her heels, then on tip-toe. Wasserman then asked Gugel to touch her
toes. All of these requests duplicated exactly the physical examination Wasserman had
conducted the previous day. Wasserman then had Gugel lie down on the examination
table. Wasserman pressed his hands down on Gugel’s hips and asked if that hurt. Gugel
replied that it did not. Wasserman then, suddenly and without warning, grabbed Gugel’s
sweat pants from the front and pulled them down low enough to expose her entire pubic
area. Wasserman then put his hands between Gugel’s legs, touched the top part of her
1
In her petition, appellee alleged that since the November 17, 2006 visit was to be a surgery
consult only and would not involve a physical examination, she was wearing sweat pants but no underwear.
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vulva at the opening of her vagina, and asked Gugel if she had feelings there. Wasserman
then pulled appellee’s sweat pants up, and assisted Gugel in rolling over onto her stomach.
Following a brief check of an area of Gugel’s back she had already revealed was
experiencing pain, Wasserman suddenly pulled Gugel’s sweat pants down below her
buttocks. Wasserman then spread Gugel’s buttocks apart, and inserted his finger into her
vagina and asked if she had feelings in her vaginal area. Following this, Gugel quickly
left Wasserman’s office.
Gugel also alleged that, following this office incident, Wasserman made numerous
harassing telephone calls to her.
Gugel filed suit against Wasserman as well as his alleged employers, Richmond
Bone & Joint Clinic, P.A. and Richmond Surgical, PLLC. Gugel asserted causes of action
for sexual assault and battery, intentional infliction of emotional distress, and harassment.
Gugel alleged Wasserman’s alleged employers were liable under a respondeat superior
theory of liability. Gugel did not file a section 74.351(a) of the Texas Civil Practice and
Remedies Code expert report. After the 120 day deadline to file the expert report had
passed, Wasserman, as well as his alleged employers, moved to dismiss Gugel’s suit
pursuant to section 74.351(a) of the Texas Civil Practice and Remedies Code. The trial
court granted the motion to dismiss Wasserman’s alleged employers, Richmond Bone &
Joint Clinic, P.A. and Richmond Surgical, PLLC, and that action is not at issue in this
appeal. The trial court denied Wasserman’s motion as to Gugel’s claims against him.
This interlocutory appeal followed.
DISCUSSION
I.
The standard of review and the applicable law.
We review a trial court’s order granting or denying a motion to dismiss for failing to
timely file a section 74.351(a) expert report under an abuse of discretion standard. See
Holguin v. Laredo Regional Medical Ctr., L.P., 256 S.W.3d 349, 352 (Tex. App.—San
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Antonio 2008, no pet.) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 875 (Tex. 2001)). However, when the issue presented requires statutory
interpretation or a determination of whether Chapter 74 applies to a claim, that is, a
question of law, we apply a de novo standard of review. Id.
Section 74.351(a) requires that, not later than the 120th day after filing suit, a
claimant serve on each party or the party’s attorney one or more expert reports for each
physician or health care provider against whom a claim is asserted. Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(a) (Vernon Supp. 2009). If the claimant does not serve the
report, the trial court is required upon motion by the affected physician or health care
provider to dismiss the claim with prejudice and award reasonable attorney’s fees and cost.
Id. at § 74.351(b). The expert report requirement applies to all claims that fall within the
statutory definition of a “health care liability claim.” Holguin, 256 S.W.3d at 352. The
statute defines “health care liability claim” 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. (quoting Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13)). Whether a claim falls
within the definition of health care liability claim requires an examination of the essence or
underlying nature of the claim. Id. A cause of action against a health care provider is a
health care liability claim if it is based on a claimed departure from an accepted standard of
medical care, health care, or safety of the patient. Id. “A cause of action 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.” Id. (quoting
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005)). When the
essence of a suit is a health care liability claim, a claimant cannot avoid the expert report
requirements through artful pleading. Id. at 353. Therefore, we must determine whether
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Gugel’s claims against Wasserman are “so inextricably interwoven with the rendition of
medical care or health care so as to constitute a health care liability claim.” Id. (citing
Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 546 (Tex. 2004)).
II.
Appellee’s claim against appellant is not a health care liability claim.
Gugel’s claim against Wasserman is that he sexually assaulted her during a surgical
consult. Like the San Antonio court of appeals before us, we conclude that it would “defy
logic to suggest that a sexual assault [such as that alleged by Gugel], is an inseparable part
of the rendition of medical care or a departure from accepted standards of health care.” Id.
(internal quotation marks omitted). Gugel’s claim against Wasserman, that he injured her
by his own actions, has nothing to do with a lapse in professional judgment or a failure to
protect a patient due to an absence of supervision or monitoring. Id. at 354; see Buck v.
Blum, 130 S.W.3d 285, 291 n. 6 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (noting
that a physician’s assaultive conduct would not be considered an inseparable part of the
rendition of medical care). Therefore, we hold that Gugel’s claim is not a health care
liability claim governed by Chapter 74 of the Texas Civil Practice and Remedies Code and
the trial court did not abuse its discretion when it denied Wasserman’s motion to dismiss.
We overrule Wasserman’s single issue on appeal.
CONCLUSION
Having overruled appellant’s single issue on appeal, we affirm the trial court’s order
denying Wasserman’s motion to dismiss.
/s/
John S. Anderson
Justice
Panel consists of Justices Anderson, Boyce, and Mirabal.2
2
Senior Justice Margaret G. Mirabal sitting by assignment.
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