                IN THE SUPREME COURT OF TEXAS
                                          444444444444
                                            NO . 10-0928
                                          444444444444

   RAUL ERNESTO LOAISIGA, M.D., AND RAUL ERNESTO LOAISIGA, M.D., P.A.,
                             PETITIONERS,
                                                  v.


GUADALUPE CERDA, INDIVIDUALLY AND AS NEXT FRIEND OF MARISSA CERDA, A
              MINOR, AND CINDY VELEZ, RESPONDENTS

           4444444444444444444444444444444444444444444444444444
                            ON PETITION FOR REVIEW FROM THE
                  COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS
           4444444444444444444444444444444444444444444444444444


       JUSTICE LEHRMANN , concurring and dissenting.


       Whether a claim against a health care provider is a health care liability claim is a knotty issue

this Court has repeatedly struggled with. See, e.g., Tex. W. Oaks Hosp., LP v. Williams, ___ S.W.3d

___, 2012 WL 2476807 (Tex. 2012); St. David’s Healthcare P’ship v. Esparza, 348 S.W.3d 904

(Tex. 2011); Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392 (Tex. 2011); Diversicare

Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005). Claims alleging that a physician’s actions

in examining a patient amounted to an assault can be particularly confounding, for the reasons the

Court discusses: the physical examination of a patient necessarily involves touching, which may be

uncomfortable, unexpected, and misunderstood. I concur in the Court’s judgment remanding this

case to allow the plaintiffs an opportunity to establish that their assault claims are not health care

liability claims. I write separately, however, because I believe the Court places too onerous a burden
on claimants by requiring them to conclusively establish that their claims are not health care liability

claims. I would require a claimant to satisfy a standard comparable to a “clear and convincing”

standard of proof. Under that standard, a trial court should require a claimant asserting claims

against a health care provider arising in the context of the delivery of medical services to file an

expert report unless the record justifies a firm conviction or belief that the claims presented are not

health care liability claims.

        Unquestionably, the Legislature intended to alleviate what it deemed a “health care liability

crisis” when it enacted the Texas Medical Liability Act, TEX . CIV . PRAC. & REM . CODE

§§ 74.001–.507. Accordingly, I agree that claims arising in the context of the delivery of health care

services are presumptively health care liability claims. But, as the Court recognizes, nothing in the

Act signals an intent to shield physicians from liability for sexual assaults or similar intentional

misconduct. I fear that the requirement the Court imposes, that a claimant conclusively establish that

a claim is not a health care liability claim in order to rebut the Act’s presumptive application, may

force assault victims to submit expert reports or see their cases dismissed.

        In describing the expert report requirement imposed by the Act’s predecessor, we have noted

on more than one occasion that claimants are not required to marshal their proof to comply with the

statute. 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, 878 (Tex. 2001). The policy underlying the expert report

requirement in the current Act remains unchanged; not to shield health care providers from

legitimate claims, but to weed out frivolous claims at an early stage, before the parties and the courts

have expended extensive resources. Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011). It

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makes sense not to place a heavy burden on claimants early in the process, in part, because the Act

greatly restricts the discovery that is available before an expert report is filed. TEX . CIV . PRAC. &

REM . CODE § 74.351(s). In my view, the Court’s imposition of a requirement that claimants

conclusively establish that their allegations do not amount to health care liability claims is

inconsistent with those considerations.

        In light of the Act’s purposes and its broad application, I agree that claimants must to do

more than establish that their claims are plausibly, or even likely, not health care liability claims.

But I would not go so far as the Court. Instead, I would hold that plaintiffs whose claims arise in the

medical context are not required to provide expert reports if the record justifies a firm belief or

conviction that the claims are not health care liability claims. This is essentially the same as the

burden of proof required to terminate parental rights. See Santosky v. Kramer, 455 U.S. 745, 769

(1982); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). Surely a burden sufficient to protect parents’

constitutional rights in raising their children should be sufficiently stringent to protect any interest

medical providers might enjoy in having a cause of action alleging assault proceed as a health care

liability claim. Accordingly, I respectfully concur in the Court’s judgment but disagree with the

standard the Court imposes.


                                                _________________________________
                                                Debra H. Lehrmann
                                                Justice


OPINION DELIVERED: August 31, 2012



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