                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00255-CV

                                           Andres BUENO,
                                              Appellant

                                                   v.

                                       Melissa HERNANDEZ,
                                              Appellee

                    From the 79th Judicial District Court, Jim Wells County, Texas
                                  Trial Court No. 13-03-52114-CV
                           Honorable Richard C. Terrell, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: August 29, 2014

REVERSED, RENDERED, AND REMANDED

           Appellee Melissa Hernandez filed suit alleging that while receiving care in the emergency

room, she was sexually assaulted by an attending nurse, Appellant Andres Bueno.               After

Hernandez failed to meet the mandatory 120-day expert report deadline, prescribed by section

74.351(a) of the Texas Civil Practices and Remedies Code, the trial court granted Bueno’s motion

to dismiss. On March 25, 2014, the trial court granted Hernandez’s motion for new trial as to

Bueno and denied his motion to dismiss. We reverse the trial court’s March 25, 2014 order, render

judgment dismissing, with prejudice, Hernandez’s claims against Bueno, and remand the cause to
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the trial court for a determination of court costs and attorney’s fees to be awarded to Bueno

pursuant to section 74.351(b)(1).

                                  FACTUAL AND PROCEDURAL BACKGROUND

           On March 25, 2011, Hernandez presented to the Christus Spohn Hospital Kleberg

emergency room. She was attended to by Bueno, an employee of the hospital and a registered

nurse. Hernandez alleges that after she was medicated, Bueno sexually assaulted her by touching

and fondling her breasts and stomach.

           On March 25, 2013, Hernandez sued Bueno for assault-infliction of bodily injury, assault-

offensive physical contact, assault-threat of bodily injury, intentional infliction of emotional

distress, and gross negligence. 1 Specifically, Hernandez alleged Bueno “touched and fondled her

breasts and stomach without her consent and removed her undergarments and inappropriately

touched and gazed at her naked body.” In his answer, Bueno contended that he never touched

Hernandez in an inappropriate or unprofessional manner and that he performed his duties as a

registered nurse in the emergency room in accordance with standards of practice.

           Bueno’s amended answer asserted Hernandez’s claim was a health care liability claim

under chapter 74 of the Texas Civil Practices and Remedies Code. TEX. CIV. PRAC. & REM. CODE

ANN. ch. 74 (West Supp. 2014). Although Hernandez eventually served Bueno with a statutory

expert report, the report failed to meet the 120-day deadline prescribed by section 74.351(a). Id.

§ 74.351(a). Bueno objected to Hernandez’s expert report and moved to dismiss her claims for

failure to timely file the expert report. Id. § 74.351(b).

           On November 4, 2013, the trial court concluded Hernandez’s claims against Bueno were

health care liability claims and Hernandez’s failure to file the expert report within the mandatory



1
    Although Hernandez asserted causes of action against the hospital, they are not at issue in this appeal.

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120-day deadline required dismissal of her claims against Bueno. The trial court dismissed with

prejudice all of Hernandez’s claims against Bueno and awarded him attorney’s fees.

       After Hernandez filed several motions requesting the trial court reconsider its dismissal

order, on March 25, 2014, the trial court granted Hernandez’s motion for new trial as to Bueno

and denied Bueno’s motion to dismiss. Bueno appealed.

                                      STANDARD OF REVIEW

       Generally, an appellate court reviews a district court’s ruling on a motion to dismiss under

Chapter 74 for an abuse of discretion. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.

2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877–78 (Tex. 2001).

However, when the resolution of an issue on appeal requires the interpretation of a statute, an

appellate court applies a de novo standard of review. Loaisiga v. Cerda, 379 S.W.3d 248, 255

(Tex. 2012); Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012); Tex. Laurel

Ridge Hosp., L.P. v. Almazan, 374 S.W.3d 601, 604 (Tex. App.—San Antonio 2012, no pet.).

Thus, in determining whether Hernandez’s claims are health care liability claims under Chapter

74, we apply a de novo standard of review. Tex. W. Oaks, 371 S.W.3d at 177.

       When interpreting a statute, an appellate court attempts to ascertain and give effect to the

intent of the legislature. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.

2007). Where the statutory text is clear, an appellate court presumes the words chosen are “‘the

surest guide to legislative intent.’” Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex.

2010) (quoting Entergy Gulf States v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)). In doing so,

we first look to the definitions prescribed by the legislature and any technical or particular meaning

the words have acquired. See TEX. GOV’T CODE ANN. § 311.011(b) (West 2013). Only after

considering the legislature’s definitions does an appellate court look to the words’ “plain and

common meaning[s], unless [the legislature’s] contrary intention is apparent from the context, or
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unless such a construction leads to absurd results.” City of Rockwall v. Hughes, 246 S.W.3d 621,

625–26 (Tex. 2008) (citations omitted).

                    HEALTH CARE LIABILITY CLAIMS UNDER CHAPTER 74

A.     Expert Report Required for Health Care Liability Claims

       Section 74.351(a) requires that, not later than the 120th day after filing suit, a claimant

“serve on [each] party or the party’s attorney one or more expert reports” for each physician or

health care provider against whom a claim is asserted. TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(a). If a report is not served, the trial court is required, upon motion by the affected

physician or health care provider, to dismiss the claim with prejudice and award reasonable

attorney’s fees and costs. Id. § 74.351(b). The statutory expert report requirements apply to claims

that fall within the statutory definition of “health care liability claim.” See Diversicare Gen.

Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005). Only health care liability claims require

an expert report under section 74.351. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a); see Tex.

Laurel Ridge Hosp., 374 S.W.3d at 604.

B.     Scope of Health Care Liability Claim

       In the present case, our inquiry focuses on whether Hernandez’s claims are health care

liability claims. See Loaisiga, 379 S.W.3d at 255; Drewery v. Adventist Health Sys./Tex., Inc., 344

S.W.3d 498, 504–05 (Tex. App.—Austin 2011, pet. denied) (citing Nexus Recovery Ctr., Inc. v.

Mathis, 336 S.W.3d 360, 365–66, 368–69 (Tex. App.—Dallas 2011, no pet.)).

       1.      Health Care Liability Claim Definition

       Section 74.001(a)(13) defines a health care liability claim as

       . . . 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.
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TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13); see Diversicare, 185 S.W.3d at 848.

“[C]laims premised on facts that could support claims against a physician or health care provider

for departures from accepted standards of medical care . . . directly related to health care are

HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach of any of those

standards.” Loaisiga, 379 S.W.3d at 255 (emphasis original).

       2.      Relation to Rendition of Medical Services

       “A cause of action alleges a departure from accepted standards of medical care or health

care if the act or omission complained of is an inseparable part of the rendition of medical

services.” Diversicare, 185 S.W.3d at 848. In determining whether a claim is inseparable from

the rendition of medical care, we consider factors such as whether a specialized standard in the

health care community applies to the alleged circumstances and whether the alleged act involves

medical judgment related to the patient’s care or treatment. See id. at 847–52. The Texas Supreme

Court set forth a three prong test to satisfy this definition: “(1) a physician or health care provider

must be a defendant; (2) the claim . . . must concern treatment, lack of treatment, or a departure

from accepted standards of medical care, or health care, or safety or professional or administrative

services directly related to health care; and (3) the defendant’s act or omission complained of must

proximately cause the injury to the claimant.” Tex. W. Oaks, 371 S.W.3d at 179–80; accord

Loaisiga, 379 S.W.3d at 255; Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 662 (Tex.

2010). The Texas Supreme Court explained:

       The breadth of the statute’s text essentially creates a presumption that a claim is an
       HCLC if it is against a physician or health care provider and is based on facts
       implicating the defendant’s conduct during the course of a patients care, treatment,
       or confinement. But the presumption is necessarily rebuttable. In some instances
       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




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       physical location of the conduct in a health care facility), the defendant’s status as
       a doctor or health care provider, or both.

Loaisiga, 379 S.W.3d at 255 (internal citations omitted).

       3.      Underlying Nature of Claims

       Within these parameters, we determine whether the underlying nature of Hernandez’s

claims are so inextricably interwoven with the rendition of medical care or health care so as to

constitute a health care liability claim. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 546 (Tex.

2004). Whether a claim falls within this definition turns on “the gravamen of the claim, not the

form of the pleadings.” Marks, 319 S.W.3d at 664 (citing Diversicare, 185 S.W.3d at 854)

(examining the “essence” or “underlying nature” of the claim); accord Loaisiga, 379 S.W.3d at

255. For Hernandez’s claims to fall under the umbrella of a health care liability claim and require

the timely filing of an expert report, Bueno must be a health care provider and Hernandez’s injuries

must have resulted from either treatment, lack of treatment, or a departure from acceptable

standards of care. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12), (13).

                                             ANALYSIS

       When we examine the essence or underlying nature of Hernandez’s claims against Bueno,

Marks, 319 S.W.3d at 664, we note that all her claims stem from her allegations that he sexually

assaulted her while she was a patient at Christus Spohn Hospital Kleberg. As this court has

previously determined, “[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.”

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).          Yet, we are mindful of the Loaisiga

presumption that a claim is a health care liability claim when it involves a physician or health care

provider and is based on facts evolved during the course of the patient’s care. Loaisiga, 379


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S.W.3d at 255. Here, the record clearly supports that Bueno was a health care provider and the

assault about which Hernandez complains occurred while she was receiving treatment at the

emergency room under Bueno’s care. Accordingly, there is a presumption that the claim is a health

care liability claim. Id.

        Next, we must determine whether Hernandez successfully rebutted the presumption. Id.

The gravamen of Hernandez’s complaint is that she was inappropriately touched by Bueno while

a patient at the emergency room. Hernandez presented at the emergency room complaining of

severe stomach pain. Hernandez had to conclusively show that the allegation did not contain a:

        (1)     . . . complaint about any act of [Bueno’s] 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; compare id. at 255 (conducting “an examination for the purpose of diagnosing or

treating a patient’s condition, [wherein] a medical or health care provider almost always will touch

the patient intentionally.”) with Buck v. Blum, 130 S.W.3d 285, 289–90 (Tex. App.—Houston

[14th Dist.] 2004, no pet.) (concluding neurologist’s placement of his penis in patient’s hand

during neurological examination was not a HCLC).

        Looking at the record as a whole, we cannot conclude that Hernandez conclusively rebutted

“the presumptive application of the [Texas Medical Liability Act’s] expert report requirements.”

Id. at 261.

                                           CONCLUSION

        Because Hernandez failed to conclusively rebut the presumption that her claim was a health

care liability claim requiring an expert report pursuant to section 74.351(a), we reverse the trial

court’s March 25, 2014 order, render judgment dismissing, with prejudice, Hernandez’s claims
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against Bueno, and remand the cause to the trial court for a determination of court costs and

attorney’s fees to be awarded to Bueno pursuant to section 74.351(b)(1). See TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351.


                                               Patricia O. Alvarez, Justice




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