Recently, the Texas Supreme Court ruled that the claims of two female patients against a doctor who fondled them may be entitled to the protections provided by the statute that governs medical malpractice cases.
The Court’s opinion was issued in Loaisiga v. Cerda, ___ S.W.3d ___ (Tex. 2012). Two patients brought suit in Loaisiga. One, a seventeen year old girl, presented to the doctor with a sinus problem. While using his stethoscope, the doctor “cupped” her breast with his hand. Another patient was an employee of the clinic. When she had flu-like symptoms, he examined her, and during the process, he unfastened her bra and “palmed” her breast.
The medical malpractice statute in Texas is located in Chapter 74 of the Texas Civil Practice and Remedies Code. It creates numerous advantages for a doctor who is sued. For instance, it establishes various damages limitations so that, even if a health care provider is proven to be negligent, and even if that negligence caused substantial harm, the provider is shielded from any non-economic damages he caused beyond a comparatively low threshold. Another substantial advantage created to favor health care providers requires the filing of an expert report within 120 days after commencing suit. If it is not done correctly or on time, the suit must be dismissed forever and attorney’s fees awarded against the patient. Judicial decisions have required an extremely high degree of detail from such reports. In addition, the statute gives the doctor a free chance to immediately appeal a ruling on the adequacy of the report without waiting until the end of the case.
In Loaisiga, the lawyer for the patients indicated in the suit that the case did not involve a malpractice claim. Yet, out of an abundance of caution, he filed an expert report. But the Supreme Court said the report was not sufficient. The Court then had to determine if this case-which was pleaded as an assault-comes within the medical malpractice statute. It ruled that the law “creates a rebuttable presumption that a patient’s claims against a physician” based upon his conduct is a health care liability claim under Chapter 74. The Court then ruled that, for an assault case not to be a health care liability claim under Chapter 74, the evidence had to “conclusively show” that there is no complaint related to any health care and the “only possible relationship” to medical services was the “setting.” In this case, the record did not “conclusively show” that the fondling “could not have been part of the examination….” Therefore, the Court reversed the decision of the court of appeals, which had ruled that an assault claim is not governed by Chapter 74.