Affirmed in part and reversed in part and Opinion filed August 28, 2012.




                                          In The

                      Fourteenth Court of Appeals

                                  NO. 14-11-00880-CV
                                  NO. 14-11-00890-CV


MEMORIAL HERMANN HOSPITAL SYSTEM D/B/A MEMORIAL HERMANN
         MEMORIAL CITY HOSPITAL, Appellant/Cross-Appellee,
                                            V.
  SPENCE KERRIGAN, INDIVIDUALLY AND AS ATTORNEY IN FACT FOR
             KATHLEEN KERRIGAN, Appellee/Cross-Appellant.

                       On Appeal from the 127th District Court
                                   Harris County
                         Trial Court Cause No. 2011-15999


                                      OPINION
       This is a case concerning the scope of a statutorily-defined term: “Health care
liability claim.” See Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). The trial court
concluded that parts of the case were health-care-liability claims and other parts were not,
and it dismissed those claims it determined were health-care-liability claims because
Spence Kerrigan failed to timely produce any expert reports. See id. § 74.351(b). Both
parties have appealed. We affirm in part, reverse in part, and remand.

                                              I

       Most of the relevant facts are undisputed. At 4:29 p.m. on January 1, 2010,
Kerrigan brought his daughter, Kathleen, to the emergency room at a hospital operated by
appellant Memorial Hermann Hospital System d/b/a Memorial Hermann Memorial City
Hospital. Kathleen had come to the emergency room to seek treatment of painful sores on
her feet. An initial evaluation performed by the attending physician revealed that
Kathleen had been diagnosed with bipolar disorder several years earlier but that she had
recently stopped taking her medication. Before visiting the emergency room, Kathleen
had spent several days relentlessly pacing throughout her home. The attending physician
concluded that the pacing was a result of a manic episode and that the pacing had caused
the sores on Kathleen’s feet. Further, Kathleen’s erratic behavior during the evaluation
indicated to the attending physician that Kathleen was suffering from acute psychosis and
mania. At 6:35 p.m., the attending physician requested guidance on Kathleen’s mental
status from a member of the hospital’s psych-response team.

       After conducting his own examination of Kathleen, the psych-response doctor
confirmed the attending physician’s diagnosis. He noted that Kathleen was experiencing
auditory and visual hallucinations and was a danger to herself and others. He
recommended transferring Kathleen to an inpatient psychiatric facility for her own safety
until her mental status stabilized. It is unclear whether Kathleen consented to such a
transfer, but the attending physician arranged for the recommended transfer to occur
sometime in the morning on January 2. Kathleen was to stay at the hospital until the
transfer was made.

       During the night, Kathleen became increasingly restless and agitated. She left her
room and expressed a desire to leave the hospital. To preserve the attending physician’s
medical-care plan and to ensure the safety of hospital staff and other patients, the treating

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physicians requested help from hospital security personnel. A security officer quickly
intervened, but what happened next is the subject of some dispute. Kerrigan, who was not
actually present at the time, claims the security officer “unnecessarily and abusively
knocked [Kathleen] to the ground.” He describes the incident as “barbaric” and “a brutal,
physical assault” that “exceed[ed] the force required for the circumstance.” Memorial
Hermann tells a different story: “When a security officer arrived to guide [Kathleen] back
to her room for her safety, she became irate and attempted to strike him. In the process of
attempting to strike the security officer, [Kathleen] fell on the ground and began shouting
racial epithets at the security officer.” Kathleen was transferred to an inpatient psychiatric
facility as planned at 8:19 a.m. on January 2.

       Individually, and as attorney in fact for his daughter, Kerrigan filed suit against
Memorial Hermann, alleging claims for false imprisonment, assault, and negligence.
Under section 74.351 of the Texas Civil Practices and Remedies Code, Memorial
Hermann moved to dismiss all claims for Kerrigan’s failure to provide an expert report.
The trial court granted the motion as to the negligence claim but denied it as to the false-
imprisonment and assault claims. Memorial Hermann appealed the trial court’s failure to
dismiss the intentional-tort claims, and Kerrigan cross-appealed, asserting that the trial
court erred in dismissing the negligence claim.

                                              II

       Despite two cause numbers and five briefs, this case has only one issue: We must
decide which—if any—of Kerrigan’s claims are health-care-liability claims. The
legislature has defined 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 § 74.001(a)(13). “Health care” is broadly defined as “any
act or treatment performed or furnished, or that should have been performed or furnished,
by any health care provider for, to, or on behalf of a patient during the patient’s medical
care, treatment, or confinement.” Tex. Civ. Prac. & Rem. Code § 74.001(a)(10). 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 or health
care services. Diversicare Gen. Partner, Inc., v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005);
Tex. Cypress Creek Hosp., L.P. v. Hickman, 329 S.W.3d 209, 214 (Tex. App.—Houston
[14th Dist.] 2010, pet. denied).
       Determining whether Kerrigan’s claims fit within the statutory definition is a
question of statutory construction, and we review it de novo. See State v. Shumake, 199
S.W.3d 279, 284 (Tex. 2006); Phi Van Cao v. Hardy, 352 S.W.3d 218, 220 (Tex. App.—
Houston [14th Dist.] 2011, no pet.). In making that determination, we examine the
underlying nature of the claim and are not bound by the form of the pleading.
Diversicare, 185 S.W.3d at 847; Hickman, 329 S.W.3d at 214. We must focus on the
essence of the claims and consider the alleged wrongful conduct and the duties allegedly
breached, rather than the injuries allegedly suffered. Diversicare, 185 S.W.3d at 851;
Hickman, 329 S.W.3d at 214. A health-care-liability claim may not be recast as another
cause of action to avoid the requirements of chapter 74. Hickman, 329 S.W.3d at 214; see
Diversicare, 185 S.W.3d at 851. Therefore, we are not bound by Kerrigan’s
characterization of his claims. Hickman, 329 S.W.3d at 214; see Diversicare, 185 S.W.3d
at 851. Hickman, 329 S.W.3d at 214; see Diversicare, 185 S.W.3d at 851.


                                            III
       Kerrigan relies on this court’s opinion in Appell v. Muguerza, in which we
concluded that “[p]unching and violently throwing patients to the ground or into a cabinet
without provocation cannot reasonably be characterized as being part of the medical
services provided by a doctor.” 329 S.W.3d 104, 112–13 (Tex. App.—Houston [14th

                                            4
Dist.] 2010, pet. filed). However, the precedential value of Appell has recently been
called into question. While the present appeal was pending, the supreme court issued
Texas West Oaks Hospital, LP v. Williams, No. 10-0603, ___ S.W.3d ___, 2012 WL
2476807 (Tex. June 29, 2012). The Williams opinion clearly states that the broad terms of
section 74.001 of the Texas Civil Practices and Remedies Code apply to claimed
departures from the accepted standards of safety—even if that safety is not directly
related to health care. Id. at *9–10.
        In the present case, we believe Williams mandates a conclusion that all of
Kerrigan’s claims are health-care-liability claims subject to the expert-report
requirements of section 74.351. Each of Kerrigan’s three claims—false imprisonment,
assault, and negligence—centers on actions taken by Memorial Hermann’s employees to
ensure the safety of Kathleen, other patients, and other Memorial Hermann employees.
All of these actions were taken after Kathleen was medically determined to be a danger to
herself and others, and all were taken to preserve the attending physician’s medical-care
plan for Kathleen. Kerrigan strenuously argues that the actions taken by Memorial
Hermann’s employees were not directly related to Kathleen’s health care. Though we
find Kerrigan’s argument unpersuasive,1 under Williams, we need not decide the issue.2
See id. at *11.
        We conclude that all of Kerrigan’s claims are health-care-liability claims subject
to the expert-report requirements of section 74.351. As a result, the trial court properly

        1
          The decision to transfer Kathleen to a psychiatric facility—and to hold her at the hospital
pending her transfer—implicates her diagnosis, care, or treatment. See Smalling v. Gardner, 203 S.W.3d
354, 365 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Likewise, any treatment or lack of
treatment Kathleen received while she remained at Memorial Hermann Memorial City Hospital
implicates the standard of care because any decision regarding the appropriateness or inappropriateness of
the treatment requires one to consider the duties owed to a patient and what an ordinarily prudent
physician or health-care provider would do under those circumstances. See id.
        2
         The supreme court has recently granted review on a similar case out of this court to decide
whether an expert report is required when a patient sues a doctor alleging sexual assault during an
medical examination. See Wasserman v. Gugel, No. 14-09-00450-CV, 2010 WL 1992622 (Tex. App.—
Houston [14th Dist.] May 20, 2010, pet. granted). Our disposition of Kerrigan’s claims in the present case
should not be construed as expressing any view on the issue to be decided in Wasserman.
                                                    5
dismissed the negligence claim for failure to provide an expert report. It erred, however,
in failing to dismiss Kerrigan’s false-imprisonment and assault claims for the same
reason.
                                          ***
      For the foregoing reasons, we affirm in part, reverse in part, and remand for
further proceedings in accordance with this opinion.




                                         /s/       Jeffrey V. Brown
                                                   Justice



Panel consists of Chief Justice Hedges and Justices Boyce and Brown.




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