521 S.W.3d 830
Tex. App.2017Background
- Joshua Lerma was admitted to Hopebridge for treatment after an accidental prescription overdose; while a patient he left his bed, and staff attempted to force him back into bed.
- Joshua (initially sued by his mother as next friend) alleged Hopebridge’s staff assaulted and battered him, causing bruises, oral bleeding, and a blood clot in his eye.
- Hopebridge is a health care provider; Joshua sued the facility (not individual employees) for assault and battery.
- Hopebridge moved to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351 for failure to timely serve an expert report required for health care liability claims.
- Trial court denied the motion; Hopebridge appealed interlocutorily.
- The appellate court considered whether intentional tort claims (assault and battery) against a health care provider are health care liability claims subject to Chapter 74’s expert-report requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether assault and battery claims against a health care provider are health care liability claims under Chapter 74 | Lerma: claims are intentional torts by rogue employees and do not implicate medical/health-care standards | Hopebridge: conduct occurred during patient care/confinement and therefore falls within Chapter 74, requiring an expert report | Held: Claims are presumptively health care liability claims and Lerma failed to rebut the presumption; Chapter 74 applies |
| Whether plaintiff’s failure to serve an expert report required dismissal and fees | Lerma: no expert required because claims allege nonmedical intentional wrongdoing | Hopebridge: §74.351 mandates dismissal and attorney’s fees if no timely expert report served | Held: Trial court erred; dismissal required and remand to determine reasonable attorney’s fees and costs |
Key Cases Cited
- Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012) (establishes presumption that claims against health care providers arising during care are health care liability claims and sets tests to rebut)
- Memorial Hermann Hosp. Sys. v. Kerrigan, 383 S.W.3d 611 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (assault and related claims during inpatient care implicated patient safety and care standards)
- Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (Tex. 2012) (employee supervision and staffing are integral to health care services)
- Psychiatric Sols., Inc. v. Palit, 414 S.W.3d 724 (Tex. 2013) (if expert medical testimony is necessary to resolve merits, claim is a health care liability claim)
- Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (TMLA broadly construed; health care services include acts by varied facility staff)
- Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658 (Tex. 2010) (discusses TMLA scope regarding claims during health care)
- Hernandez v. Ebrom, 289 S.W.3d 316 (Tex. 2009) (if no timely expert report, trial court must dismiss and award fees)
- Simmons v. Texoma Med. Ctr., 329 S.W.3d 163 (Tex. App.—El Paso 2010, no pet.) (claims arising from restraint of patient treated for overdose required expert proof of restraint standards)
- Parker v. CCS/Meadow Pines, Inc., 166 S.W.3d 509 (Tex. App.—Texarkana 2005, no pet.) (claims from improper restraint are health care liability claims)
- Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005) (existence of permissible reasons for treatment or restraint is a matter for expert testimony)