Claims that Doctor Assaulted Patients During Physical Examinations May Not Be Subject to Expert Report Requirements

A female patient complaining of sinus problems was examined by her doctor. During the examination he fondled her breasts. Another female patient complaining of flu-like symptoms was examined by the same doctor and during that examination he fondled her breasts. 


Both patients sued the doctor and parties related to his practice for assault, medical negligence, negligence, gross negligence, and intentional infliction of emotional distress. They filed a family practitioner’s affidavit stating that if their allegations were true, then the doctor’s actions fell below the standard of medical care, constituted assault, and harmed the patients.


The defendants objected to the expert’s report and filed a motion to dismiss. The trial court denied the motions, and the defendants appealed. The Court of Appeals affirmed reasoning that the plaintiffs’ complaint was not a health care liability claim. Therefore, the claim was not subject to the expert report requirements of the Texas Medical Liability Act (TMLA).


The Supreme Court of Texas reversed the Court of Appeals and remanded to the trial court for further proceedings. The Court noted a claim is a health care liability claim if the defendant is a health care provider or physician; 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 the defendant's alleged departure from accepted standards proximately caused the claimant's injury or death. The court focused its analysis on the second element: whether the claimant’s cause of action is for a claimed departure from accepted standards of medical care.


The court held that a claim against a health care provider for assault is not a health care liability claim if (1) there is no complaint about any act of the provider related to 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 performance of medical services was the setting in which the act took place. The court concluded that the record did not contain sufficient information to conclusively show that the doctor’s conduct could not have been part of the examination he was performing. Therefore, the court could not make a determination as to whether the TMLA’s expert report requirements applied. The court remanded the case to the trial court for further proceedings to allow the parties to present evidence responsive to the clarified standard.


The court went on to consider whether the expert report was adequate. The court held that an expert must consider more than the plaintiff’s pleadings in order to generate an adequate expert report. Here, the expert did not do so. The court determined that if on remand the trial court determines that the TMLA's expert report requirements apply to this case, the court should consider the plaintiffs' request for an extension of time to cure deficiencies in the reports.


See: Loaisiga v. Cerda, 2012 WL 3800322 (Tex., August 31, 2012) (not designated for publication).