                   COURT OF APPEALS

           THIRTEENTH DISTRICT OF TEXAS

             CORPUS CHRISTI - EDINBURG


                   NUMBER 13-09-00055-CV

CHRISTUS SPOHN HEALTH SYSTEM
CORPORATION D/B/A CHRISTUS SPOHN
HOSPITAL CORPUS CHRISTI-SHORELINE,                      Appellant,

                              v.

SANDRA SANCHEZ AND OMAR ALEMAN,                         Appellees.


                   NUMBER 13-09-00092-CV

EDWIN DEJESUS AND ALAIN NJOH,                           Appellants,

                              v.

SANDRA SANCHEZ AND OMAR ALEMAN,                         Appellees.



         On appeal from the County Court at Law No. 3
                   of Nueces County, Texas.
                                            OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
                    Opinion by Justice Rodriguez

       This consolidated appeal involves the alleged sexual assault of a patient by nursing

staff in a hospital intensive care unit (ICU).1 Appellants Christus Spohn Health System

Corporation d/b/a Christus Spohn Hospital Corpus Christi–Shoreline (Spohn-Shoreline),

Edwin DeJesus, and Alain Njoh challenge the trial court's denial of their motions to dismiss

a lawsuit filed by appellees Sandra Sanchez and Omar Aleman for failure to serve an

adequate expert report as required by section 74.351. See TEX . CIV. PRAC . & REM . CODE

ANN . § 74.351(a)-(b) (Vernon Supp. 2009). By three issues on appeal, appellants argue

that: (1) appellees' claims are health care liability claims; (2) appellees' expert reports did

not constitute a good-faith effort to comply with the statute and were fatally deficient; and

(3) section 74.351's expert report requirement is constitutional under the United States and

Texas Constitutions. We affirm.

                                            I. BACKGROUND

       In October 2007, Sanchez underwent spinal fusion surgery at Spohn-Shoreline.

She was recovering in the ICU when she alleges that Njoh and DeJesus, a registered

nurse and a certified nurse's assistant, entered her room and made unwanted sexual

advances toward her. Sanchez alleges that one of the men undressed her and exposed

her body for the other to see. She claims that they turned her over using their hands

instead of a turning pad and, while they were moving her from the bed to a chair in her



       1
           This opinion consolidates the Court's analysis of both appeals. See T EX . R. A PP . P. 47.1.

                                                       2
room, they danced with her. Sanchez alleges that during these physical contacts, Njoh

and DeJesus were making sexual overtures and comments and that the improper conduct

continued until she was discharged from the hospital a few days later.

        In February 2008, appellees sued Spohn-Shoreline for negligent hiring, supervision,

training, and retention of its employees and vicarious liability for the conduct of Njoh and

DeJesus. Appellees timely served the expert report and curriculum vitae of Laura Burchell-

Henson, a registered nurse.2 See TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(a). Spohn-

Shoreline filed objections to the report and a motion to dismiss appellees' lawsuit on the

basis that their expert report did not constitute a good-faith effort to comply with the

requirements of the statute. Appellees responded to the motion, arguing that their claims

were not health care liability claims subject to section 74.351 and that the expert report

requirement was unconstitutional under the United States and Texas Constitutions. In

August 2008, appellees amended their petition to add causes of action against DeJesus

and Njoh, in their individual capacities, for assault and intentional infliction of emotional

distress. After the trial court granted appellees an extension of time to amend their expert

report, appellees filed a report by George S. Glass, M.D. Spohn-Shoreline filed objections

to the second report and all appellants filed motions to dismiss the suit for failure to file an

adequate expert report. The trial court denied both motions to dismiss, and these appeals

ensued. See TEX . CIV. PRAC . & REM . CODE ANN . § 51.014(a)(9) (Vernon 2008) (authorizing

an interlocutory appeal of the denial of a motion to dismiss filed under section 74.351(b)).




        2
          Appellees m aintain that their claim s are not health care liability claim s and that they served an
expert report in an "abundance of caution" to preserve their rights to proceed with the lawsuit.

                                                      3
                                               II. DISCUSSION

A. Health Care Liability Claims

         By the first issue, appellants assert that appellees' claims are health care liability

claims governed by chapter 74 of the civil practice and remedies code. Specifically,

appellants argue that the underlying nature of appellees' claims is that appellants breached

the standards of care and safety owed to Sanchez. With regard to appellees' claims

against Spohn-Shoreline, we agree. However, we cannot so conclude with respect to

appellees' claims against Njoh and DeJesus in their individual capacities.

         1. Standard of Review and Applicable Law

         "[W]hether a claim is a health care liability claim pursuant to section 74.351 is a

question of law and is reviewed de novo." Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d

770, 773 (Tex. App.–Corpus Christi 2006, pet. denied). A health care liability claim is

defined as:

         [A] cause of action against a health care provider . . . 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.

TEX . CIV. PRAC . & REM . CODE ANN . § 74.001(a)(13) (Vernon 2005).3 "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 Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005). Standards of


         3
            The statute's definition of health care provider includes hospitals, registered nurses, and em ployees
acting in the course and scope of their em ploym ent with the health care provider. See T EX . C IV . P RAC . & R EM .
C OD E A N N . § 74.001(a)(11)(G), (12)(A)(i), (12)(B)(ii) (Vernon 2005).

                                                          4
safety implicate claimants' "exposure to unreasonably dangerous or defective conditions

or things" in the course of their care. Marks v. St. Luke's Episcopal Hosp., No. 07-0783,

2009 WL 2667801, at *8 (Tex. Aug. 28, 2009). The necessity of expert testimony is an

important factor in determining whether the plaintiff's claim is inseparable from the rendition

of health care. Diversicare, 185 S.W.3d at 848.

       In determining whether appellees' claims are indeed health care liability claims, we

focus on the "gravamen," or underlying nature, of the claim. Id. "[W]e are not bound by

the form of the pleading," and the nature of the claim is not determined simply by the status

of the defendant or the place of injury. Id.; see Marks, 2009 WL 2667801, at *8. Instead,

"it is the cause of the injury and its relationship to medical or professional judgment that

determines" the nature of the claim and the applicability of the health care liability statute.

Marks, 2009 WL 2667801, at *8.

       2. Claims against Njoh and DeJesus

       Njoh and DeJesus argue that appellees' claims against them for assault and

intentional infliction of emotional distress actually center on their rendering of health care

services to Sanchez. They contend that Sanchez's allegations—that they undressed her

so they could view her naked body, moved her with their hands instead of a turning pad,

and danced with her while they were moving her from the bed to a chair—are all subjective

interpretations of what, in reality, were specific tasks routinely performed by nursing staff,

i.e. changing her clothes in preparation for the doctor, turning her over in her bed, and

helping her to the chair in her room. Njoh and DeJesus argue that Sanchez's differing

perception of the conduct does not take her claims outside the confines of the health care

liability statute. We disagree.


                                              5
       Although we acknowledge that the previously described tasks may be part and

parcel of the care given to hospital patients by nursing staff, we do not view the conduct

challenged by appellees in isolation from the surrounding circumstances, as do Njoh and

DeJesus. Because in addition to describing the undressing, turning over, and moving of

Sanchez, appellees also allege that Njoh and DeJesus made sexual overtures toward

Sanchez in the process of performing these tasks. Appellees claim that Njoh and DeJesus

commented to Sanchez about her body while they were undressing her and allegedly

danced with her and, at one point, even tried to climb in the bed with her. Appellees further

allege that one of the two wrote "I love you" on the white board in Sanchez's room. We

would be remiss to conclude that such conduct was related to the health care being

provided to Sanchez or somehow involved the professional judgment of Njoh and DeJesus.

See Jones v. Khorsandi, 148 S.W.3d 201, 206 (Tex. App.–Eastland 2004, pet. denied)

(holding that allegations of sexual assault against a doctor did not involve "a breach of the

applicable standards of care for health care providers").

       Appellees' amended petition alleges causes of action against Njoh and DeJesus for

assault and intentional infliction of emotion distress, and we conclude that the underlying

nature of appellees' claims, indeed, rests squarely in these intentional actions that had

"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 v. Laredo Reg'l

Med. Ctr., L.P., 256 S.W.3d 349, 354 (Tex. App.–San Antonio 2008, no pet.); see Jones,

148 S.W.3d at 206. "It 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 care."

Holguin, 256 S.W.3d at 353 (citing Diversicare, 185 S.W.3d at 848). When a claim is

                                             6
based on the injurious actions of an individual unrelated to the provision of health care, that

individual cannot hide behind the procedural safeguards of chapter 74 merely because he

or she was also a health care provider at the time of the assault or other harmful conduct.

See id. (reasoning that the plaintiff's claim that his doctor sexually assaulted him was not

a health care liability claim because the allegation was not that the doctor had negligently

allowed the assault to occur, but rather, that the doctor injured the plaintiff "by his own

actions"). Appellees' claims against Njoh and DeJesus in their individual capacities are,

therefore, not health care liability claims, and we overrule the first issue as it applies to

Njoh and DeJesus.4

        3. Claims against Spohn-Shoreline

        Similarly, Spohn-Shoreline contends that the underlying nature of appellees' claims

is that it did not care for Sanchez within the accepted standards of care and safety.

However, unlike appellees' claims against Njoh and DeJesus, appellees' claims against

Spohn-Shoreline are based on negligence, implicate the standards of care and safety

contemplated by chapter 74, and directly relate to its rendering of health care to Sanchez.

See TEX . CIV. PRAC . & REM . CODE ANN . § 74.001(a)(13); see also Stradley, 210 S.W.3d at

775. In their amended petition, appellees allege that Spohn-Shoreline owed a duty to

Sanchez "to provide a reasonably safe recovery environment free from offensive contact"

and that Spohn-Shoreline "breached this duty by failing to properly hire, supervise, train,

and retain its employees." In other words, appellees' claims are that Spohn-Shoreline



        4
         Having decided that appellees' claim s against Njoh and DeJesus are not health care liability claim s,
we need not reach Njoh and DeJesus's contentions regarding the adequacy of appellees' expert reports or
concerning the constitutionality of the expert report requirem ent. See T EX . R. A PP . P. 47.1.

                                                      7
failed to protect her from the alleged unwanted sexual advances made by Njoh and

DeJesus.

       Decisions regarding the protection of patients and the supervision and monitoring

of staff involve professional judgment, see Diversicare, 185 S.W.3d at 851, and "[i]t follows

that proper staffing for the care and protection of patients is related to and part of the

rendition of health care." Holguin, 256 S.W.3d at 356. Moreover, determining "the

appropriate number, training, and certifications of medical professionals necessary to care

for and protect patients in weakened conditions" requires health care expertise, which is

but another indicator that staffing decisions are inseparable from the provision of health

care. Diversicare, 185 S.W.3d at 848, 851. Thus, as here, when a patient is injured

because of an alleged lapse in this professional decision-making, the lawsuit complaining

of that injury is a health care liability claim. See id. at 851.

       Appellees respond that their claim against Spohn-Shoreline for vicarious liability, in

particular, is not a health care liability claim subject to the expert report requirement.

However, Texas courts have clearly held that a plaintiff cannot circumvent the expert report

requirement by artfully pleading her health care liability claim based upon the negligence

of the health care provider as some other cause of action, such as vicarious liability. See

Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004); NCED Mental Health,

Inc. v. Kidd, 214 S.W.3d 28, 34-35 (Tex. App.–El Paso 2006, no pet.); Oak Park, Inc. v.

Harrison, 206 S.W.3d 133, 140-41 (Tex. App.–Eastland 2006, no pet.). Appellees' claim

is not that Spohn-Shoreline, through its employees, committed the sexual assault. Instead,

despite the recasting of their claim as common law vicarious liability, the underlying nature



                                               8
of appellees' claim is, nonetheless, that "through lapses in professional judgment and

treatment [Spohn-Shoreline] negligently allowed the sexual assault to occur." Diversicare,

185 S.W.3d at 851; see Harrison, 206 S.W.3d at 141. We are, therefore, unpersuaded by

appellees' vicarious liability argument.

         We conclude that the "gravamen" of appellees' claims is that Spohn-Shoreline

breached the standards of care and safety owed to Sanchez by failing to protect her from

the allegedly assaultive conduct of its nursing staff. See Marks, 2009 WL 2667801, at *8.

The complained-of conduct was an inseparable part of the care provided to Sanchez as

a patient at Spohn-Shoreline, and appellees' claims against Spohn-Shoreline therefore

constituted health care liability claims subject to the expert report requirement of section

74.351. See id.; see also TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(a). We sustain the

first issue as it applies to Spohn-Shoreline.

B. Expert Reports

         In the second issue, Spohn-Shoreline argues that appellees' expert reports were

fatally deficient.5


         5
              By a sub-issue, Spohn-Shoreline com plains that the trial court erred in granting appellees' request
for a thirty-day extension to am end the report of Nurse Burchell-Henson. Spohn-Shoreline argues that
because the only expert report served by appellees within the 120-day deadline was authored by a nurse who,
under the express term s of the statute, cannot offer an opinion regarding causation, appellees effectively
failed to serve any expert report on Spohn-Shoreline within the tim e fram e required by section 74.351. See
T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.351(c) ("If an expert report has not been served within the period
specified . . . because elem ents of the report are found deficient, the court m ay grant one thirty-day extension
to the claim ant in order to cure the deficiency."). In other words, Spohn-Shoreline argues that the report by
Nurse Burchell-Henson was not m erely deficient but, rather, no report at all and that, even if they were entitled
to a thirty-day extension, appellees could use the extension only to am end the Burchell-Henson report, not
to file a new report by a separate expert. However, the Texas Suprem e Court has held that objections to a
nurse's qualifications to act as an expert in a health care liability claim go to the sufficiency of the report and
not to its existence. Ogletree v. Matthews, 262 S.W .3d 316, 322 (Tex. 2007). Moreover, appellees were well
within their rights to supplem ent Nurse Burchell-Henson's report with a report on causation by Dr. Glass,
because deficiencies in an expert report can be cured during the thirty-day extension period by serving a
report by a separate expert. Lewis v. Funderburk, 253 S.W .3d 204, 208 (Tex. 2008). As such, we are
unpersuaded by Spohn-Shoreline's argum ent and overrule the second issue to the extent that it challenges
the trial court's decision to grant appellees a thirty-day extension.

                                                         9
       1. Standard of Review and Applicable Law

       We review a trial court's decision on a motion to dismiss under section 74.351 of the

civil practice and remedies code for abuse of discretion. Jernigan v. Langley, 195 S.W.3d

91, 93 (Tex. 2006); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,

878 (Tex. 2001). The trial court abuses its discretion if it acts unreasonably or arbitrarily

or without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d

56, 62 (Tex. 2003). The trial court's ruling is arbitrary and unreasonable only if "the

appellant establishes that the trial court could reasonably have reached only one decision."

Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex. App.–Corpus

Christi 2004, no pet.).

       Under section 74.351 of the Texas Civil Practice and Remedies Code, a claimant

must "serve on each party or the party's attorney" an expert report and curriculum vitae

"not later than the 120th day after the date the original petition was filed." See TEX . CIV.

PRAC . & REM . CODE ANN . § 74.351(a). An expert report is "a written report by an expert that

provides a fair summary of the expert's opinions . . . regarding applicable standards of

care, the manner in which the care rendered . . . failed to meet the standards, and the

causal relationship between that failure and the injury, harm, or damages claimed." Id. §

74.351(r)(6).

       In our review of the expert report, we are limited to the four corners of the report in

determining whether the report manifests a good-faith effort to comply with the statutory

definition of an expert report. Palacios, 46 S.W.3d at 878; see TEX . CIV. PRAC . & REM .

CODE ANN . § 74.351(l) (requiring that the trial court "grant a motion challenging the



                                             10
adequacy of the expert report only if appears to the court, after hearing, that the report

does not represent an objective good faith effort to comply" with the statutory definition).

"Nothing in [section 74.351] should be construed to mean that a single expert report must

address all liability and causation issues . . . ." TEX . CIV. PRAC . & REM . CODE. ANN . §

74.351(i). Moreover, the reports "need not marshal all the plaintiff's proof." Palacios, 46

S.W.3d at 878; see Jernigan, 195 S.W.3d at 93. If the expert report puts the defendant

on notice of the specific conduct complained of and provides the trial court a basis on

which to conclude the claims have merit, the report represents a good-faith effort to comply

with the statute. Palacios, 46 S.W.3d at 879.

       2. Analysis

       Spohn-Shoreline first argues that Nurse Burchell-Henson's report did not adequately

set forth the standard of care and/or safety and breach because the report is conclusory,

speculative, and does not differentiate between the standards of care applicable to Spohn-

Shoreline as opposed to the individual defendants. See Taylor, 169 S.W.3d at 244 ("An

expert report may not assert that multiple defendants are all negligent for failing to meet

the standard of care without providing an explanation of how each defendant specifically

breached the standard . . . ."). Spohn-Shoreline further argues that the report does not

provide specific information about what it should have done differently. See Palacios, 46

S.W.3d at 880 (holding that a "fair summary" of the applicable standard of care and breach

identifies the type of care expected but not rendered). We disagree.

       Nurse Burchell-Henson's report states that the "standard of care requires that the

hospital and its nursing staff provide adequate supervision to their certified nursing



                                            11
assistants and licensed nursing personnel." The report further states that the "standard

of care requires that the hospital and its nursing staff protect their patients from sexual

harassment and abuse." It is clear to this Court that, although she references the "nursing

staff" in these articulated standards of care, Nurse Burchell-Henson is describing the duties

owed by Spohn-Shoreline to its patients. See Univ. of Tex. Sw. Med. Ctr. v. Dale, 188

S.W.3d 877, 879 (Tex. App.–Dallas 2006, no pet.) (holding that an expert report need not

explicitly refer to the hospital employer by name where a plaintiff is asserting vicarious, and

not direct, liability, and where it is clear that the conduct of the hospital employer is

implicated). By specifying that the hospital is to adequately supervise its "certified nursing

assistants and licensed nursing personnel," Nurse Burchell-Henson effectively

differentiates between Spohn-Shoreline and the individual defendants.

       Moreover, we conclude that Nurse Burchell-Henson identified the care that was

expected but not rendered under the applicable standard of care. She states that Spohn-

Shoreline "[f]ailed to provide adequate supervision to the CNA [DeJesus] and the RN

[Njoh]," "[f]ailed to protect Ms. Sanchez from sexual harassment and sexual abuse," and

"[f]ailed to provide safety to Ms. Sanchez in her immediate post operative [sic] when the

CNA lifted Ms. Sanchez up and began dancing with her." She explains the specific tasks

and responsibilities required of Spohn-Shoreline and notes that it failed to perform as such.

In short, the report put Spohn-Shoreline on notice of the specific complained-of conduct,

and we cannot say that the trial court abused its discretion in finding that the report

sufficiently set forth the standard of care and breach. See Palacios, 46 S.W.3d at 879.

       Spohn-Shoreline next complains that the report of Dr. Glass did not establish the

causation element required under the statute. See Bowie Mem'l Hosp. v. Wright, 79

                                              12
S.W.3d 48, 52 (Tex. 2002) (holding that an expert report "cannot merely state the expert's

conclusions" regarding causation; rather, the basis of the expert's statements must link his

conclusions to the facts). Specifically, Spohn-Shoreline contends that Dr. Glass's report

is conclusory, does not show that Spohn-Shoreline's conduct caused the events upon

which appellees' claims are based, and does not differentiate between the conduct of

Spohn-Shoreline, versus that of Njoh and DeJesus, as the cause of injury. Again, we

disagree.

       In his report, Dr. Glass opines at length about the alleged conduct of Njoh and

DeJesus and describes the depression, severe anxiety, panic, nightmares, and social

isolation that Sanchez suffered following her stay at Spohn-Shoreline. Dr. Glass observes

that Sanchez was "unable to care [sic] and protect herself [sic] felt vulnerable, harassed

by the people who were supposed to be caring for her in the hospital ICU." He then

concludes that: "The fact that [Sanchez] was vulnerable, unable to protect herself, and felt

as if her person was violated has caused her to now have symptoms of Major Depression

and Post Traumatic Stress Disorder."

       Dr. Glass's emphasis on Sanchez's vulnerable condition, in particular, puts Spohn-

Shoreline on notice of the conditions called into question by appellees' claims. See

Palacios, 46 S.W.3d at 879; Wright, 79 S.W.3d at 53 (agreeing that plaintiffs are not

required to use any sort of magic words to meet the section 74.351 expert report

obligation). Read in combination with Nurse Burchell-Henson's report on the standard of

care, which provided that Spohn-Shoreline had a duty to provide a safe recovery

environment for its vulnerable post-operative patients, we conclude that Dr. Glass

sufficiently linked Sanchez's assault to Spohn-Shoreline's failure to protect her from the

                                            13
assaultive conduct of Njoh and DeJesus. See TEX . CIV. PRAC . & REM . CODE ANN . §

74.351(i) (allowing standard of care and causation to be established in separate reports);

see also Wright, 79 S.W.3d at 52. The trial court did not abuse its discretion in finding the

report sufficient as to causation. See TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(r)(6).

         Based on the foregoing, we conclude that the expert reports of Nurse Burchell-

Henson and Dr. Glass adequately set forth the standard of care, identified how Spohn-

Shoreline breached the standard, and explained how the breach caused the injuries

claimed by appellees. See Palacios, 46 S.W.3d at 878. The reports constituted a good

faith effort to comply with the statute because they put Spohn-Shoreline on notice of the

specific conduct complained of and provided the trial court with a basis on which to

conclude appellees' claims have merit. See TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(l);

Palacios, 46 S.W.3d at 879. We overrule the second issue.6

                                             III. CONCLUSION

         The orders of the trial court denying appellants' motions to dismiss are affirmed.



                                                                  NELDA V. RODRIGUEZ
                                                                  Justice

Opinion delivered and filed this
29th day of October, 2009.




         6
            Having concluded that appellees' expert reports m et the requirem ents of section 74.351 and that
the trial court did not err in denying Spohn-Shoreline's m otion to dism iss, we need not reach its third issue
regarding appellees' argum ent that the expert report requirem ent is unconstitutional. See T EX . R. A PP . P. 47.1.

                                                         14
