RAUL ERNESTO LOAISIGA, M.D., AND RAUL ERNESTO LOAISIGA, M.D., P.A., PETITIONERS, v. GUADALUPE CERDA, INDIVIDUALLY AND AS NEXT FRIEND OF MARISSA CERDA, A MINOR, AND CINDY VELEZ, RESPONDENTS
No. 10-0928
IN THE SUPREME COURT OF TEXAS
August 31, 2012
ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS
Argued February 29, 2012
JUSTICE HECHT filed a concurring and dissenting opinion, in which JUSTICE MEDINA joined.
JUSTICE WILLETT filed a concurring and dissenting opinion.
JUSTICE LEHRMANN filed a concurring and dissenting opinion.
The
We hold that the
I. Background
Guadalupe Cerda, individually and as next friend of her daughter Marissa Cerda, and Cindy Velez (collectively, the plaintiffs) sued Raul Ernesto Loaisiga, M.D., Raul Ernesto Loaisiga, M.D., P.A. (hereinafter, the P.A.), and Sunshine Pediatrics, LLP. The plaintiffs’ claims are based on two separate incidents. Guadalupe alleges that she took Marissa, then age seventeen, to Sunshine
The plaintiffs sued for assault, medical negligence, negligence, gross negligence, and intentional infliction of emotional distress. They allege that Dr. Loaisiga knew or reasonably should have believed that Marissa and Velez would regard his touching of their breasts as offensive or provocative and Sunshine Pediatrics breached its duty and the appropriate standard of care by allowing Dr. Loaisiga to fondle them. The plaintiffs assert that although the case is actually for assault, in an “abundance of caution and in the alternative,” they claim Dr. Loaisiga’s actions “fell below the standard of care” for a doctor treating female patients. The pleadings of medical negligence specifically reference “Chapter 74 of the CPRC”—the
Within 120 days after filing their petition, the plaintiffs served Dr. Loaisiga and the P.A. with a report and curriculum vitae from Michael R. Kilgore, M.D., a family practitioner. See
Dr. Loaisiga and the P.A. filed objections to the reports and motions to dismiss. They argued that the reports were deficient because they failed to (1) implicate conduct of either Dr. Loaisiga or the P.A., (2) set out the applicable standard of care, (3) identify a breach of the standard of care, or (4) identify how the actions of Dr. Loaisiga or the P.A. proximately caused the alleged injuries. The motions also asserted that Dr. Kilgore’s report was “based upon pure speculation and assumption” and Dr. Kilgore, as a family practitioner, was not qualified to render an expert opinion regarding Dr. Loaisiga’s conduct as a pediatrician. The P.A. separately argued that neither the original nor the supplemental report addressed any theories of liability as to it and, in any event, the supplemental report was deficient because it gave no explanation of why the opinions in the original report applied to the P.A. The plaintiffs’ response to each motion maintained that Dr. Kilgore’s reports were adequate; Dr. Loaisiga was acting both individually and as the P.A., so there was no difference between the actions of the two; and Dr. Kilgore’s reports were directed to both. In the alternative, the plaintiffs requested thirty-day extensions to cure any defects in the reports. See
The trial court held a hearing on the motions to dismiss and denied them without stating why. Dr. Loaisiga and the P.A. appealed. See
We granted the petition for review of Dr. Loaisiga and the P.A. 55 Tex. Sup. Ct. J. 145 (Dec. 16, 2011). Before turning to the parties’ arguments on the merits, we address our jurisdiction to consider this interlocutory appeal.
II. Jurisdiction
Texas appellate courts generally have jurisdiction only over final judgments. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001). But an exception exists for certain interlocutory orders. See
A person may appeal from an interlocutory order of a district court, county court at law, or county court that:
. . .
(9) denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351.
A court of appeals’ judgment ordinarily is conclusive when an interlocutory appeal is taken pursuant to section 51.014(a)(9). See
III. Health Care Liability Claims
A. General
Determining whether claims are HCLCs requires courts to construe the
The
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.
This case focuses on the second element which concerns the nature of a claimant’s “cause of action” and the definitions of medical care, health care, safety and professional or administrative services directly related to health care. See
The broad language of the
B. Assaults and the TMLA
The elements of a civil assault mirror those of a criminal assault. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n.4 (Tex. 2010). Under the
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
Distinguishing between claims to which the
The threshold questions raised by Beathard’s pleadings are whether she consented to treatment and whether Vanderwerff’s examination was within the scope of a chiropractic examination. Was the examination a “routine” examination as Beathard contends? These questions cannot be answered without reference to the standard of care required of a chiropractic provider.
Id. In essence, the court of appeals recognized that an expert report was necessary because Vanderwerff’s conduct in the overall context of the chiropractic examination could have been part of the care he was rendering pursuant to Beathard’s consent to be examined and treated for pain which, in part, she reported extended from her knee to the upper thigh.
In balancing the respective rights of and burdens on claimants and medical and healthcare defendants, the Legislature has determined that requiring claimants to bear the expense of obtaining
We conclude that a claim against a medical or health care provider for assault is not an HCLC if the record conclusively shows that (1) there is no complaint about any act of the provider related to medical or health care services other than the alleged offensive contact, (2) the alleged offensive contact was not pursuant to actual or implied consent by the plaintiff, and (3) 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. See Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (per curiam) (holding that a plaintiff’s battery claim was an HCLC because “[t]here may [have] be[en] reasons for providing treatment without specific consent that do not breach any applicable standard of care[, and] [t]he existence or nonexistence of such reasons is necessarily the subject of expert testimony”); Buck v. Blum, 130 S.W.3d 285, 289-90 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (concluding that a neurologist’s conduct was not in the course and scope of his
IV. Expert Reports
The
In Palacios we held that the
In light of the foregoing, we turn to the parties’ contentions. We address the defendants separately, beginning with Dr. Loaisiga.
V. Dr. Loaisiga
A. Was an Expert Report Required?
Dr. Loaisiga argues that the plaintiffs were required to file an expert report because the alleged assaults occurred during the course of his administering medical services and all his actions were inseparable from the rendition of those medical services. The plaintiffs urge that, as the court of appeals held, their assault claims are not subject to the
We look first to the pleadings. The plaintiffs’ pleadings contain allegations that except for Dr. Loaisiga’s touching of their breasts, the examinations were routine. The pleadings do not assert a lack of proper care by Dr. Loaisiga other than his touching of their breasts. Further, the plaintiffs’ brief on the merits posits that their pleadings made “no factual allegations that they were injured by any deficiencies in the medical care provided by Dr. Loaisiga.”
The plaintiffs’ claims are qualitatively similar to the claims in Vanderwerff. See 239 S.W.3d at 407. Like the plaintiff in Vanderwerff, the plaintiffs here allege an examining doctor inappropriately touched parts of their bodies during the course of otherwise routine examinations. See id. But because the determination of whether the plaintiffs were required to serve an expert report is to be made based on the whole record, we must also consider other relevant documents in the record and Dr. Loaisiga’s contentions. In that regard, this case is distinguishable from Vanderwerff.
One distinguishing factor is that the plaintiff in Vanderwerff did not serve an expert report. Here the plaintiffs served a report that stated, in part:
During a routine “sick” visit with a physician, a stethoscope may be utilized to listen to the heartbeat of the patient. However, in all applicable medical standards of care, it is unnecessary that a patient remove their brazier, nor is it necessary to cup, palm or touch the breast of a female patient either with the hand holding the stethoscope or the other hand not holding the instrument to listen to a heart beat.
The substance of the plaintiffs’ complaint is that Dr. Loaisiga’s conduct exceeded the scope of the examinations to which they consented, and Dr. Kilgore’s report shows that it is unnecessary for a physician to touch a female patient’s breasts during routine examinations of the type Dr. Loaisiga was performing. But even taken together, these aspects of the record do not conclusively rebut the presumptive application of the
We conclude that the record does not contain sufficient information to conclusively show that Dr. Loaisiga’s conduct could not have been part of the examination he was performing. But because
B. Adequacy of the Reports
The court of appeals did not consider whether Dr. Kilgore’s reports are adequate to meet the requirements of section 74.351 because it concluded that no expert reports were necessary. ___ S.W.3d at ___. If, on remand, the trial court determines expert reports are necessary under the
When a document purporting to be an expert report is timely served in an HCLC and is properly challenged, the trial court
shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6).
Dr. Loaisiga advances three arguments why the case should be dismissed if the
The fact that pleadings are not verified does not relieve attorneys and parties from their obligation to avoid including groundless or bad faith allegations in them. To the contrary, including such allegations in pleadings is sanctionable. See
On the other hand, the purpose of an expert report is to give the trial court sufficient information within the four corners of the report to determine if the plaintiff’s claim has merit. Scoresby, 346 S.W.3d at 554, 556. If an expert could formulate an adequate expert report by merely reviewing the plaintiff’s pleadings and assuming them to be true, then artful pleading could neutralize the Legislature’s requirement that expert reports demonstrate the plaintiff’s claims have merit. See id. That is because the facts and circumstances alleged in the plaintiff’s pleadings might omit or misstate, inadvertently or otherwise, matters critical to a valid expert opinion. An expert report based only on the plaintiff’s pleadings could mask the context of the medical services or health care rendered. Significant matters involved in the rendition of the care, such as the patient’s complaints or the health care provider’s findings, could warrant investigation and examination beyond that which might otherwise seem to have been appropriate, yet be unknown to the expert. If such matters were not in the plaintiff’s pleadings the expert would not have considered them, the expert report would not reference them, and because they are outside the four corners of the report,
We conclude that in formulating an adequate expert report under section 74.351, an expert may consider and rely on the plaintiff’s pleadings, but the expert must consider more than the pleadings. How much more will depend on the particular circumstances of the claim. But we fail to see how in most instances, and particularly in claims involving the scope of an examination, an expert report could be adequate unless the expert at least considered and commented on the patient’s medical records to the extent the records and their contents—or lack of appropriate contents—are relevant to the expert’s opinion.
In this case Dr. Kilgore’s reports and curriculum vitae demonstrate that he is a trained and practicing physician. He has sufficient expertise in the medical field to be qualified to provide an adequate expert report. See Scoresby, 346 S.W.3d at 557. The reports also demonstrate that he is of the opinion the plaintiffs’ claims have merit. See id. But his failure to consider any matters other than the plaintiffs’ pleadings in formulating his opinion make his existing reports inadequate to comply with section 74.351’s expert report requirements. On the other hand, we disagree with Dr. Loaisiga’s position that the deficiencies in Dr. Kilgore’s reports require dismissal of the plaintiffs’ claims against him. The reports meet the standard set out in Scoresby, and the plaintiffs requested a thirty-day extension to cure defects in them in the event they were deficient. Accordingly, if on remand the trial court determines that the
A. Was an Expert Report Required?
The plaintiffs’ petition names the P.A. as a defendant and prays for judgment against it, but the pleading does not mention the P.A. otherwise. The court of appeals concluded that the
The court of appeals focused on the latter part of the first sentence of section 74.351(a), emphasizing the requirement of an expert report “for each physician or health care provider against whom a liability claim is asserted.” ___ S.W.3d at ___ (quoting
This construction of the statute furthers the purpose of the expert report requirements. See Scoresby, 346 S.W.3d at 554; see also Molinet, 356 S.W.3d at 411 (stating that our objective in construing a statute is to ascertain and give effect to the Legislature’s intent). If a plaintiff could name and seek judgment against a medical or health care provider based on facts that fall within the
In this case the plaintiffs made the P.A. a party to the case and sought judgment against it based on no facts other than those underlying their claims against Dr. Loaisiga. The P.A. is named after Dr. Loaisiga, and he has not disputed the plaintiffs’ allegation that he was and is its sole officer and director. The plaintiffs’ response to the P.A.’s motion to dismiss alleged that Dr. Loaisiga acted both individually and as the P.A. when he assaulted the plaintiffs and there “is no differentiation between the two.”
As we discuss above, the determination of whether a plaintiff’s expert report is adequate is not a merits determination, but rather a preliminary determination designed to expeditiously weed out claims that have no merit. In this case the pleadings and record were sufficient to make the plaintiffs’ claims as to the P.A. clear: they claimed it was vicariously liable for Dr. Loaisiga’s conduct. The P.A. could have excepted to and sought clarification of the pleadings if it desired to have them clarified, but it did not do so.
B. Adequacy of the Reports
The court of appeals did not consider whether Dr. Kilgore’s reports are adequate to meet the requirements of section 74.351 as to the P.A. ___ S.W.3d at ___. We address the issue for the same reasons expressed above as to Dr. Loaisiga. See
Dr. Kilgore stated in his September 3, 2009 report that “[a]ll opinions expressed and contained in my previous report are adopted in this supplemental report and are also applicable to [the P.A.].” His previous report demonstrated that he is a trained and practicing physician who holds the opinion that Dr. Loaisiga’s conduct is implicated and the plaintiffs’ claims against Dr. Loaisiga have merit. See supra Part V.B. But, as we explain above, Dr. Kilgore’s previous report is not adequate to comply with section 74.351 because he considered only the plaintiffs’ pleadings in formulating his opinions. By adopting the previous report, the supplemental report meets the minimal standard set out in Scoresby, just as the original report did, but it is deficient as to the P.A., just as the original report was deficient as to Dr. Loaisiga. So, if on remand the plaintiffs’ claims are determined to be HCLCs subject to the
We reverse the judgment of the court of appeals. We remand the case to the trial court for further proceedings in accordance with this opinion. See id.; Scoresby, 346 S.W.3d at 557.
Phil Johnson
Justice
OPINION DELIVERED: August 31, 2012