Stating what should be obvious, the Houston [1st] Court of Appeals has reiterated that a patient’s claim that she was sexually assaulted by a physician following surgery is not a health care liability claim under Chapter 74, CPRC.

Azul Shirazalijaffer, M.D., and Shirazali, PLLC d/b/a Azul Plastic Surgery v. Michelle Maestas (No. 01-23-00541-CV; March 26, 2024) has facts that should not repeated in polite company. Suffice it to say that Plaintiff alleges that when she woke up in the recovery room following breast augmentation surgery, her physician exposed himself and touched her genitalia. She filed suit against the physician and his practice for assault, sexual assault, intentional infliction of emotional distress, negligence, and gross negligence. Defendants moved to dismiss on the ground that Plaintiff failed to serve an expert report pursuant to § 74.351. The trial court denied the motion. Defendants appealed.

In an opinion by Justice Landau, the court of appeals affirmed. Defendants argued that Plaintiff failed to rebut the statutory presumption that a suit against a physician is a Chapter 74 claim. According the court, the only possible basis for applying Chapter 74 to Plaintiff’s claims are to bring them within § 74.001(13)(2)(c)(iii), which covers a claim against a physican that relates to “safety.” The court’s analysis then turned to SCOTX’s opinion in Ross v. St. Luke’s Hospital, 462 S.W.3d 496 (Tex. 2015). In this case, a hospital lobby slip-and-fall case, the Court stated that “[a] claim is a safety-standards health care liability claim only if there is ‘a substantive nexus between the safety standards allegedly violated and the provision of health care.’” The Court proceeded to lay out seven non-exclusive factors for determining whether such a nexus existed. According to the court of appeals, the only factor supporting application of Chapter 74 under the Ross test is that Plaintiff was in the recovery room receving health care services at the time of the assault. Observing that SCOTX has also held that “a claim against a physician for assault was not a health care liability claim if the conduct of which a plaintiff complains is ‘wholly and conclusively inconsistent with, and thus separable from,’ receiving health care” (citing Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012)), the court ruled that the physician’s conduct, which did not require expert testimony to prove, was totally outside the pale. It seems to us, it was arguably criminal as well.

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