UPDATE: Applying the Loaisiga Presumption to Determine Whether Claims for Sexual Assault are Health Care Liability Claims
By: Ashley Nelson
Chapter 74 of the Texas Civil Practice and Remedies Code sets forth requirements for lawsuits against health care providers. Generally, sexual assault claims are outside the scope of the Texas Medical Liability Act (“TMLA”), and, occasionally, plaintiffs file sexual assault claims against providers in an effort to avoid certain damages caps and expert requirements mandated for Chapter 74 health care liability claims (“HCLC”). Regardless of how a plaintiff postures his or her pleadings, it is important to determine whether the plaintiff’s claim is a HCLC, subject to the TMLA, or truly a sexual assault claim.
Overview of Health Care Liability Claims
HCLCs have three elements: (1) the defendant is a health care provider or physician; (2) the claimant's cause of action is for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s alleged departure from accepted standards proximately caused the claimant's injury or death. Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012). Moreover, “claims premised on facts that could support claims against a physician or health care provider for departures from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care are HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach of any of those standards.” Id. (emphasis in original). This article explains how courts determine whether a claim involving sexual assault allegations satisfies the second element of an HCLC: the nature of the claimant’s cause of action.
Importantly, as held in Loaisiga, the TMLA creates a rebuttable presumption that a claim is an HCLC if (1) it is brought by a patient against a physician or health care provider, and (2) it is based on facts implicating the defendant’s conduct during the patient’s care, treatment, or confinement. Id. at 256. However, this presumption is rebuttable when “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 physical location of the conduct in a health care facility), the defendant's status as a doctor or health care provider, or both.” Id. Specifically, this presumption is rebutted in assault cases if the plaintiff shows:
(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.
Id. at 257.
Whether a claim is an HCLC depends on the “underlying nature” of the claim and the “essence” of the claim. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004). Regardless of the plaintiff’s artful pleading, the determination of the nature of the claims is a fact-intensive inquiry. See Loaisiga, 379 S.W.3d at 255; Yamada v. Friend, 335 S.W.3d 192, 196-97 (Tex. 2010). Also, another consideration when characterizing a plaintiff’s claim is the nexus of the alleged wrongful acts to the rendition of health care services. The Texas Supreme Court has held that, if “the act or omission alleged in the complaint is an inseparable part of the rendition of health care services, then the claim is a health care liability claim.” Garland Cmty. Hosp., 156 S.W.3d at 544 (citing Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995)) (emphasis added).
When determining if the act is inseparable from the rendition of health care services, the court considers whether a specific standard in the health care community applies and “whether the alleged act involves medical judgment related to the patient’s care or treatment.” Bueno v. Hernandez, 454 S.W.3d 178, 183-84 (Tex. App.—San Antonio 2014, pet. denied). Therefore, it must be determined whether the underlying nature of the plaintiff’s claims is “so inextricably interwoven with the rendition of medical care or health care so as to constitute a health care liability claim.” Id. (quoting Garland Cmty. Hosp., 156 S.W.3d at 546).
Sexual Assault or a Health Care Liability Claim?
It can be difficult to determine whether a claim is an HCLC when the sexual assault allegedly occurred during a physical examination to which the patient consented. See Loaisiga, 379 S.W.3d at 256. It is difficult because physical examinations frequently involve touching the patient’s body in places that would otherwise be assaults but for the patient’s implied or actual consent, “[a]nd the examiner may need to examine parts of the patient’s body that might not be anticipated by a person without medical or health care training.” Id.
Courts will consider whether the allegations in the plaintiff’s pleading raise questions that require referencing the standard of care required of a health care provider. See Vanderwerff v. Beathard, 239 S.W.3d 406, 407 (Tex. App.—Dallas 2007, no pet.). For example, when questions arise, such as whether it was a routine examination, or whether the examination was within the scope of a health care provider’s examination, then a court is more likely to characterize the claim as an HCLC. Id.
While “[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,” some Texas courts have determined pre-Loaisiga that a plaintiff’s claims of sexual assault are HCLCs. 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; Rose, 156 S.W.3d at 544). In Loaisiga, the Court held that the plaintiffs were required to comply with the expert report requirements mandated under the TMLA for HCLCs when the plaintiffs alleged that they were sexually assaulted by a doctor when he touched their breasts. Loaisiga, 379 S.W.3d at 253. The Court looked at the entire record to determine whether the claims were HCLCs. Id. at 258-59.
The Loaisiga court found it persuasive that the plaintiffs’ pleadings alleged that they were inappropriately touched during the course of the doctor’s routine examination that exceeded the scope to which they consented. Id. at 259. While the plaintiffs’ report indicated that it was unnecessary for a doctor to touch a female patient’s breasts during routine examinations, the Court concluded it was not enough to rebut the presumption because there was a lack of information regarding the context of the doctor’s actions during examinations. Id. Such information that would be necessary to rebut the presumption would include medical records and/or a record of the plaintiffs’ symptoms, to prove conclusively that the “only relationship between the alleged touching of their breasts and Dr. Loaisiga’s rendition of medical services was the physical location of the examinations at the offices of Sunshine Pediatrics and his status as a doctor or health care provider.” Id. (emphasis added).
Similarly in Bueno, the court determined the claim against a nurse for fondling a patient’s breast and stomach was an HCLC because a factfinder would have to reference a medical standard to determine if the conduct was within the scope of an examination of a patient seeking treatment for stomach pain. See Bueno, 454 S.W.3d at 181. Further, the court reasoned that, “[w]hile this court readily agrees that sexual assault of a patient is not within any medical standard of care, to proceed with [plaintiff]’s claim without the benefit of an expert report setting forth the appropriate standard of care and any breaches of that standard would require the trial court to assume the truth of [plaintiff]’s allegations—that she was sexually assaulted.” Id. Thus, the Court held the patient failed to conclusively rebut the presumption that her claim was an HCLC. Id.
However, other circumstances warranted other courts concluding that sexual assault claims were not HCLCs when “the claim has nothing to do with a health care provider’s lapse in professional judgment or failure to protect a patient due to an absence of supervision or monitoring.” Holguin, 256 S.W.3d at 354. In Christus, the court held the plaintiff’s claims were not HCLCs when the health care provider’s intentional actions had nothing to do with a “lapse in judgment” of a health care provider. Christus Spohn Health Sys. Corp. v. Sanchez, 299 S.W.3d 868, 873-74 (Tex. App.—Corpus Christi 2009, pet. denied). While the court conceded that changing, turning, and moving the plaintiff from her hospital bed could have been providing health care services, the court emphasized that the health care providers were making sexual advances towards the plaintiff while doing these activities. Id.
Similarly, in Holguin and Khorsandi, the courts concluded the claims were not HCLCs when the plaintiffs claimed that they were sexually assaulted by health care providers after being given medications that either made them drowsy or caused them to fall asleep. See Holguin, 256 S.W.3d at 354; Jones v. Khorsandi, 148 S.W.3d 201, 206 (Tex.App.–Eastland 2004, pet. denied). Both courts distinguished these circumstances from HCLCs because the alleged conduct was unrelated to a lapse in professional judgment and did not involve an alleged breach of any standard of care. Id.