AFFIRM; and Opinion Filed July 31, 2013.




                                         S In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                      No. 05-12-01709-CV

                             SHAAD BIDIWALA, MD, Appellant
                                           V.
                              JEFFERY A. FIELDLER, Appellee

                      On Appeal from the 160th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-10-14132

                               MEMORANDUM OPINION
                      Before Justices O’Neill, FitzGerald, and Lang-Miers
                                   Opinion by Justice O’Neill
       Appellant Shaad Bidiwala, M.D. appeals an order denying his motion to dismiss under

the Texas Medical Liability Act. In a single point of error, appellant contends the trial court

erred in concluding appellee Jeffery A. Fielder’s claim against him for assault and battery was

not a Health Care Liability Claim (HCLC). For the following reasons, we affirm the trial court’s

judgment.

       Defendant is a neurosurgeon with privileges at the Baylor University Medical Center.

Plaintiff, a physicist, worked with Bidiwala at the Baylor Radiosurgery Center. Fielder filed suit

against Bidiwala for an assault and battery involving an allegedly offensive touching that

occurred in the workplace. Fielder also sued Baylor for sexual harassment and retaliatory

discharge claiming Baylor terminated him for reporting the alleged assault. Bidiwala filed a

motion to dismiss under the Act alleging Fielder’s assault and battery claim was a HCLC and
Fielder did not file an expert report as required by the Act.    The trial court denied Bidiwala’s

motion.

       The Act requires a person who asserts a HCLC to file an expert report within 120 days of

filing the original petition. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011). The

Act defines a HCLC as including a claim against a health care provider based upon an alleged

departure from accepted standards of safety.           TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.001(a)(13) (West 2011). Whether a claim fits within this definition is a question of law,

which we review de novo. See Saleh v. Hollinger, 335 S.W.3d 368, 372 (Tex. App.—Dallas

2011, pet. denied); Lee v. Boothe, 235 S.W.3d 448, 451 (Tex. App.—Dallas 2007, pet. denied).

       In his sole issue, Bidiwala asserts the trial court erred in concluding Fielder’s assault and

battery claim was not a HCLC because the claim was based upon an alleged departure from

accepted “standards of safety,” even though the claim had nothing to do with healthcare. He

relies on the Texas Supreme Court’s opinion in Texas W. Oaks Hosp. v. Williams, 371 S.W.3d

171, 185-86 (Tex. 2012). In that case, Williams, an employee of the defendant mental hospital,

sued the mental hospital for injuries he sustained when assaulted by a mental patient. Williams

alleged the hospital failed to institute proper safety protocols and monitoring devices. The Court

concluded Williams’ claim was a HCLC because it involved deviation from safety standards,

even though the plaintiff’s claims were not “directly” related to health care. See id. at 179, 184.

       In Good Shepherd Med. Ctr.-Linen v. Twilley, ___ S.W.3d ___, 2013 WL 772136 (Tex.

App.—Texarkana 2013, pet. filed), the Texarkana Court of Appeals held that Williams did not

hold that a “safety claim” entirely unrelated to healthcare was a HCLC. That court concluded

that for a “safety claim” to come under the Act, there must be at least an indirect relationship to

healthcare. Id. at *3.     It relied, at least in part, on the Texas Supreme Court’s opinion in

Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012), decided after Williams. In that case, the

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Court indicated the Legislature could not have intended for the expert report requirement to

apply to claims that were wholly separable from the rendition of “medical care, or health care, or

safety or professional or administrative services directly related to health care,” even though the

conduct occurred in a health care context. Id. at 257. The Court specifically stated that a claim

against a medical or heath care provider for assault is not an HCLC if the record shows

conclusively that (1) there is no complaint about any act of the provider 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, 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. Bidiwala suggests Loaisiga is inapplicable because the

Court was addressing whether a patient’s complaint was a HCLC under the “provision of health

care services” prong, not the “safety” prong, which requires no “direct” relationship to

healthcare. We do not read Loaisiga so no narrowly. Rather, Loaisiga stands for the proposition

that an assault claim wholly separable from the provision of safety standards is not a health care

liability claim even though the conduct occurred in a medical facility.

       Regardless, we need not decide in this case whether a safety claim wholly unrelated to

healthcare is a HCLC. Under the express terms of the Act, to be a HCLC, the cause of action

must be “for” a claimed departure from “accepted standards” of safety. TEX. CIV. PRAC. & REM.

CODE ANN. § 74.001 (West 2011). In making this determination, we focus on the essence of the

claim and consider the alleged wrongful conduct as well as the duties allegedly breached. See

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005). Fielder’s claim

against Bidiwala is for Bidiwala’s own conduct that Fielder alleges constituted an assault and

battery. This claim does not depend upon the existence, adequacy, or implementation of any




                                               –3–
safety standards. Reviewing the nature of the wrongful conduct and the duties allegedly

breached, we conclude the claim is not “for” any departure from safety standards.

       In reaching this conclusion, we reject Bidiwala’s assertion that Fielder’s “judicial

admission” that Bidiwala himself “could” be Fielder’s employer in his own right is “fatal” to his

claim. To show such a judicial admission was made, Bidiwala relies on a letter brief Fielder

filed in response to a motion for summary judgment regarding whether Fielder could sue

Bidiwala for a hostile work environment (a claim he since abandoned). According to Bidiwala,

because Fiedler admitted Bidiwala “could” be his employer, it follows that Bidiwala would then

have an affirmative duty to provide a safe working environment, and Fielder’s claim would then

implicate a departure from safety standards. At the same time, Bidiwala expressly refuses to

concede that he is or even could be Fielder’s employer. Initially, we note the statements relied

upon do not meet the requirements of a judicial admission. See Mapco, Inc. v. Carter, 817

S.W.2d 686, 687 (Tex. 1991) (judicial admission must be deliberate, clear, and unequivocal).

Furthermore, regardless of whether Bidiwala “could” be Fielder’s employer does not establish

Fielder’s claim was “for” a departure from safety standards or any duties Bidiwala might have as

an employer. Indeed, an employer would be liable for an intentional assault irrespective of the

existence of or departure from any “safety” standards. Because Fielder’s claim was not a HCLC,

the trial court did not err in denying Bidiwala’s motion to dismiss. We resolve the sole issue

against Bidiwala and affirm the trial court’s judgment.




                                                     /Michael J. O'Neill/
                                                     MICHAEL J. O'NEILL
                                                     JUSTICE
121709F.P05



                                               –4–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

SHAAD BIDIWALA, Appellant                              On Appeal from the 160th Judicial District
                                                       Court, Dallas County, Texas
No. 05-12-01709-CV         V.                          Trial Court Cause No. DC-10-14132.
                                                       Opinion delivered by Justice O'Neill.
JEFFERY A. FIELDLER, Appellee                          Justices FitzGerald and Lang-Miers
                                                       participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
       It is ORDERED that appellee JEFFERY A. FIELDLER recover his costs of this appeal
from appellant SHAAD BIDIWALA.


Judgment entered this 31st day of July, 2013.




                                                      /Michael J. O'Neill/
                                                      MICHAEL J. O'NEILL
                                                      JUSTICE




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