Andres Bueno v. Melissa Hernandez Appeal from 79th Judicial District Court of Jim Wells County (memorandum opinion )

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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00255-CV Andres BUENO, Appellant v. Melissa HERNANDEZ, Appellee From the 79th Judicial District Court, Jim Wells County, Texas Trial Court No. 13-03-52114-CV Honorable Richard C. Terrell, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Patricia O. Alvarez, Justice Delivered and Filed: August 29, 2014 REVERSED, RENDERED, AND REMANDED Appellee Melissa Hernandez filed suit alleging that while receiving care in the emergency room, she was sexually assaulted by an attending nurse, Appellant Andres Bueno. After Hernandez failed to meet the mandatory 120-day expert report deadline, prescribed by section 74.351(a) of the Texas Civil Practices and Remedies Code, the trial court granted Bueno s motion to dismiss. On March 25, 2014, the trial court granted Hernandez s motion for new trial as to Bueno and denied his motion to dismiss. We reverse the trial court s March 25, 2014 order, render judgment dismissing, with prejudice, Hernandez s claims against Bueno, and remand the cause to 04-14-00255-CV the trial court for a determination of court costs and attorney s fees to be awarded to Bueno pursuant to section 74.351(b)(1). FACTUAL AND PROCEDURAL BACKGROUND On March 25, 2011, Hernandez presented to the Christus Spohn Hospital Kleberg emergency room. She was attended to by Bueno, an employee of the hospital and a registered nurse. Hernandez alleges that after she was medicated, Bueno sexually assaulted her by touching and fondling her breasts and stomach. On March 25, 2013, Hernandez sued Bueno for assault-infliction of bodily injury, assaultoffensive physical contact, assault-threat of bodily injury, intentional infliction of emotional distress, and gross negligence. 1 Specifically, Hernandez alleged Bueno touched and fondled her breasts and stomach without her consent and removed her undergarments and inappropriately touched and gazed at her naked body. In his answer, Bueno contended that he never touched Hernandez in an inappropriate or unprofessional manner and that he performed his duties as a registered nurse in the emergency room in accordance with standards of practice. Bueno s amended answer asserted Hernandez s claim was a health care liability claim under chapter 74 of the Texas Civil Practices and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. ch. 74 (West Supp. 2014). Although Hernandez eventually served Bueno with a statutory expert report, the report failed to meet the 120-day deadline prescribed by section 74.351(a). Id. § 74.351(a). Bueno objected to Hernandez s expert report and moved to dismiss her claims for failure to timely file the expert report. Id. § 74.351(b). On November 4, 2013, the trial court concluded Hernandez s claims against Bueno were health care liability claims and Hernandez s failure to file the expert report within the mandatory 1 Although Hernandez asserted causes of action against the hospital, they are not at issue in this appeal. -2- 04-14-00255-CV 120-day deadline required dismissal of her claims against Bueno. The trial court dismissed with prejudice all of Hernandez s claims against Bueno and awarded him attorney s fees. After Hernandez filed several motions requesting the trial court reconsider its dismissal order, on March 25, 2014, the trial court granted Hernandez s motion for new trial as to Bueno and denied Bueno s motion to dismiss. Bueno appealed. STANDARD OF REVIEW Generally, an appellate court reviews a district court s ruling on a motion to dismiss under Chapter 74 for an abuse of discretion. See 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). However, when the resolution of an issue on appeal requires the interpretation of a statute, an appellate court applies a de novo standard of review. Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012); Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012); Tex. Laurel Ridge Hosp., L.P. v. Almazan, 374 S.W.3d 601, 604 (Tex. App. San Antonio 2012, no pet.). Thus, in determining whether Hernandez s claims are health care liability claims under Chapter 74, we apply a de novo standard of review. Tex. W. Oaks, 371 S.W.3d at 177. When interpreting a statute, an appellate court attempts to ascertain and give effect to the intent of the legislature. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). Where the statutory text is clear, an appellate court presumes the words chosen are the surest guide to legislative intent. Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010) (quoting Entergy Gulf States v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)). In doing so, we first look to the definitions prescribed by the legislature and any technical or particular meaning the words have acquired. See TEX. GOV T CODE ANN. § 311.011(b) (West 2013). Only after considering the legislature s definitions does an appellate court look to the words plain and common meaning[s], unless [the legislature s] contrary intention is apparent from the context, or -3- 04-14-00255-CV unless such a construction leads to absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 26 (Tex. 2008) (citations omitted). HEALTH CARE LIABILITY CLAIMS UNDER CHAPTER 74 A. Expert Report Required for Health Care Liability Claims 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). If a report is not served, 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 costs. Id. § 74.351(b). The statutory expert report requirements apply to claims that fall within the statutory definition of health care liability claim. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005). Only health care liability claims require an expert report under section 74.351. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a); see Tex. Laurel Ridge Hosp., 374 S.W.3d at 604. B. Scope of Health Care Liability Claim In the present case, our inquiry focuses on whether Hernandez s claims are health care liability claims. See Loaisiga, 379 S.W.3d at 255; Drewery v. Adventist Health Sys./Tex., Inc., 344 S.W.3d 498, 504 05 (Tex. App. Austin 2011, pet. denied) (citing Nexus Recovery Ctr., Inc. v. Mathis, 336 S.W.3d 360, 365 66, 368 69 (Tex. App. Dallas 2011, no pet.)). 1. Health Care Liability Claim Definition Section 74.001(a)(13) defines a 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. -4- 04-14-00255-CV TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13); see Diversicare, 185 S.W.3d at 848. [C]laims premised on facts that could support claims against a physician or health care provider for departures from accepted standards of medical care . . . directly related to health care are HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach of any of those standards. Loaisiga, 379 S.W.3d at 255 (emphasis original). 2. Relation to Rendition of Medical Services 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. Diversicare, 185 S.W.3d at 848. In determining whether a claim is inseparable from the rendition of medical care, we consider factors such as whether a specialized standard in the health care community applies to the alleged circumstances and whether the alleged act involves medical judgment related to the patient s care or treatment. See id. at 847 52. The Texas Supreme Court set forth a three prong test to satisfy this definition: (1) a physician or health care provider must be a defendant; (2) the claim . . . must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant s act or omission complained of must proximately cause the injury to the claimant. Tex. W. Oaks, 371 S.W.3d at 179 80; accord Loaisiga, 379 S.W.3d at 255; Marks v. St. Luke s Episcopal Hosp., 319 S.W.3d 658, 662 (Tex. 2010). The Texas Supreme Court explained: The breadth of the statute s text essentially creates a presumption that a claim is an HCLC 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 patients care, treatment, or confinement. But the presumption is necessarily rebuttable. In some instances the only possible relationship between the conduct underlying a claim and the rendition of medical services or healthcare will be the healthcare setting (i.e., the -5- 04-14-00255-CV physical location of the conduct in a health care facility), the defendant s status as a doctor or health care provider, or both. Loaisiga, 379 S.W.3d at 255 (internal citations omitted). 3. Underlying Nature of Claims Within these parameters, we determine whether the underlying nature of Hernandez s claims are so inextricably interwoven with the rendition of medical care or health care so as to constitute a health care liability claim. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 546 (Tex. 2004). Whether a claim falls within this definition turns on the gravamen of the claim, not the form of the pleadings. Marks, 319 S.W.3d at 664 (citing Diversicare, 185 S.W.3d at 854) (examining the essence or underlying nature of the claim); accord Loaisiga, 379 S.W.3d at 255. For Hernandez s claims to fall under the umbrella of a health care liability claim and require the timely filing of an expert report, Bueno must be a health care provider and Hernandez s injuries must have resulted from either treatment, lack of treatment, or a departure from acceptable standards of care. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12), (13). ANALYSIS When we examine the essence or underlying nature of Hernandez s claims against Bueno, Marks, 319 S.W.3d at 664, we note that all her claims stem from her allegations that he sexually assaulted her while she was a patient at Christus Spohn Hospital Kleberg. As this court has previously determined, [i]t would defy logic to suggest that a sexual assault is an inseparable part of the rendition of medical care or a departure from accepted standards of health care. Holguin v. Laredo Reg l Med. Ctr., L.P., 256 S.W.3d 349, 353 (Tex. App. San Antonio 2008, no pet.) (quoting Diversicare, 185 S.W.3d at 848). Yet, we are mindful of the Loaisiga presumption that a claim is a health care liability claim when it involves a physician or health care provider and is based on facts evolved during the course of the patient s care. Loaisiga, 379 -6- 04-14-00255-CV S.W.3d at 255. Here, the record clearly supports that Bueno was a health care provider and the assault about which Hernandez complains occurred while she was receiving treatment at the emergency room under Bueno s care. Accordingly, there is a presumption that the claim is a health care liability claim. Id. Next, we must determine whether Hernandez successfully rebutted the presumption. Id. The gravamen of Hernandez s complaint is that she was inappropriately touched by Bueno while a patient at the emergency room. Hernandez presented at the emergency room complaining of severe stomach pain. Hernandez had to conclusively show that the allegation did not contain a: (1) (2) (3) . . . complaint about any act of [Bueno s] related to medical or health care services other than the alleged offensive contact, the alleged offensive contact was not pursuant to actual or implied consent by the plaintiff, and the only possible relationship between the alleged offensive contact and the rendition of medical services or healthcare was the setting in which the act took place. Id. at 257; compare id. at 255 (conducting an examination for the purpose of diagnosing or treating a patient s condition, [wherein] a medical or health care provider almost always will touch the patient intentionally. ) with Buck v. Blum, 130 S.W.3d 285, 289 90 (Tex. App. Houston [14th Dist.] 2004, no pet.) (concluding neurologist s placement of his penis in patient s hand during neurological examination was not a HCLC). Looking at the record as a whole, we cannot conclude that Hernandez conclusively rebutted the presumptive application of the [Texas Medical Liability Act s] expert report requirements. Id. at 261. CONCLUSION Because Hernandez failed to conclusively rebut the presumption that her claim was a health care liability claim requiring an expert report pursuant to section 74.351(a), we reverse the trial court s March 25, 2014 order, render judgment dismissing, with prejudice, Hernandez s claims -7- 04-14-00255-CV against Bueno, and remand the cause to the trial court for a determination of court costs and attorney s fees to be awarded to Bueno pursuant to section 74.351(b)(1). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. Patricia O. Alvarez, Justice -8-

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