Loaisiga v. Cerda

• Decision Date: 31 August 2012
• Docket Number: No. 10–0928.,10–0928.
• Citation: 379 S.W.3d 248,55 Tex. Sup. Ct. J. 1373
• Parties: 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.
• Court: Texas Supreme Court

379 S.W.3d 248

55 Tex. Sup. Ct. J. 1373

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.

No. 10–0928.

Supreme Court of Texas.

Argued Feb. 29, 2012.

Decided Aug. 31, 2012.

Michael Raphael Cowen, The Cowen Law Group, PC, Brownsville, TX, for Other interested party Sunshine Pediatrics LLP.

Carlos Escobar, Escobar Law Firm, PLLC, McAllen, TX, Gilberto Hinojosa, Gilberto Hinojosa & Associates PC, Brownsville, TX, Petitioners Loaisiga, M.D., Ernesto.

Benigno (Trey) Martinez III, Martinez Barrera & Martinez LLP, Stephanie Elaine Burnett, The Law Office of Benigno, Brownsville, TX, Brendan K. McBride, The McBride Law Firm, San Antonio, TX, for Respondents Cerda, Guadalupe.

Justice JOHNSON delivered the opinion of the Court in which Chief Justice JEFFERSON, Justice WAINWRIGHT, Justice GREEN, and Justice GUZMAN joined, and in Parts I through V.A. and VI.A. of which Justice WILLETT joined.

The Texas Medical Liability Act (TMLA) requires plaintiffs asserting health care liability claims (HCLCs) to timely serve each defendant with an expert report meeting certain requirements. In this case we consider whether claims that a doctor assaulted patients by exceeding the proper scope of physical examinations are subject to the TMLA's expert report requirements.

Two female patients sued a medical doctor, the professional association bearing his name, and a clinic, alleging the doctor assaulted the patients by groping their breasts while examining them for sinus and flu symptoms. Although they maintained that the claims were not HCLCs, the patients served the doctor and professional association with reports from a physician who, based only on the assumption that allegations in the plaintiffs' pleadings were true, opined that the defendant doctor's alleged actions did not fall within any appropriate standard of care. The defendants argued that the claims were HCLCs and moved for dismissal of the suit on the basis that the reports were deficient. The trial court denied the motions. The court of appeals held that the claims were not HCLCs, expert reports were not required, and affirmed the trial court's order without considering the reports' adequacy.

We hold that the TMLA creates a rebuttable presumption that a patient's claims against a physician or health care provider based on facts implicating the defendant's conduct during the patient's care, treatment, or confinement are HCLCs. The record before us does not rebut the presumption as it relates to the TMLA's expert report requirements, nor are the expert reports served by the plaintiffs adequate under the TMLA. We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.

I. Background

Guadalupe Cerda, individually and as next friend of her daughter Marissa Cerda, and Cindy Velez (collectively, the plaintiffs) sued Raul Ernesto Loaisiga, M.D., Raul Ernesto Loaisiga, M.D., P.A. (hereinafter, the P.A.), and Sunshine Pediatrics, LLP. The plaintiffs' claims are based on two separate incidents. Guadalupe alleges that she took Marissa, then age seventeen, to Sunshine Pediatrics for treatment of a sinus problem. According to the pleadings, Dr. Loaisiga examined Marissa and “under the guise of listening to [Marissa's] heart through the stethoscope ... cupped [Marissa's] breast with the palm of his hand.” Velez, who was employed as a nurse at Sunshine Pediatrics, alleges that Dr. Loaisiga offered to examine her when she arrived at work with flu-like symptoms. She further alleges that during the examination Dr. Loaisiga had her take off her upper garment, then “he undid her bra from the front ... [and] palmed her breast with one hand during his entire examination.”

The plaintiffs sued for assault, medical negligence, negligence, gross negligence, and intentional infliction of emotional distress. They allege that Dr. Loaisiga knew or reasonably should have believed that Marissa and Velez would regard his touching of their breasts as offensive or provocative and Sunshine Pediatrics breached its duty and the appropriate standard of care by allowing Dr. Loaisiga to fondle them. The plaintiffs assert that although the case is actually for assault, in an “abundance of caution and in the alternative,” they claim Dr. Loaisiga's actions “fell below the standard of care” for a doctor treating female patients. The pleadings of medical negligence specifically reference “Chapter 74 of the CPRC”—the TMLA. SeeTex. Civ. Prac. & Rem.Code §§ 74.001–.507. The plaintiffs pray for judgment against the three defendants, but they do not specifically allege any type of claim, either direct or vicarious, against the P.A.

Within 120 days after filing their petition, the plaintiffs served Dr. Loaisiga and the P.A. with a report and curriculum vitae from Michael R. Kilgore, M.D., a family practitioner. See id.§ 74.351(a), (b). Dr. Kilgore stated in the report that he had reviewed the plaintiffs' petition. He recited allegations from the petition and stated that if they were true, then Dr. Loaisiga's actions were not within any appropriate standard of care, comprised an assault, and harmed the plaintiffs. In a supplemental report, Dr. Kilgore stated that the opinions he expressed as to Dr. Loaisiga also applied to the P.A.

Dr. Loaisiga and the P.A. filed objections to the reports and motions to dismiss. They argued that the reports were deficient because they failed to (1) implicate conduct of either Dr. Loaisiga or the P.A., (2) set out the applicable standard of care, (3) identify a breach of the standard of care, or (4) identify how the actions of Dr. Loaisiga or the P.A. proximately caused the alleged injuries. The motions also asserted that Dr. Kilgore's report was “based upon pure speculation and assumption” and Dr. Kilgore, as a family practitioner, was not qualified to render an expert opinion regarding Dr. Loaisiga's conduct as a pediatrician. The P.A. separately argued that neither the original nor the supplemental report addressed any theories of liability as to it and, in any event, the supplemental report was deficient because it gave no explanation of why the opinions in the original report applied to the P.A. The plaintiffs' response to each motion maintained that Dr. Kilgore's reports were adequate; Dr. Loaisiga was acting both individually and as the P.A., so there was no difference between the actions of the two; and Dr. Kilgore's reports were directed to both. In the alternative, the plaintiffs requested thirty-day extensions to cure any defects in the reports. See id.§ 74.351(c) (stating that if an expert report is not timely served “because the elements of the report are found deficient, the court may grant one 30–day extension to the claimant in order to cure the deficiency”).

The trial court held a hearing on the motions to dismiss and denied them without stating why. Dr. Loaisiga and the P.A. appealed. See id. § 51.014(a)(9) (permitting immediate appeal of a trial court order denying all or part of a motion to dismiss for failure to serve an expert report in an HCLC). The court of appeals affirmed. 2010 WL 3049086. The court reasoned that the plaintiffs were not required to file expert reports because their claims against Dr. Loaisiga are assault claims, not HCLCs. See id. at *4. It did not reach the question of whether Dr. Kilgore's reports were deficient. The court also concluded that the TMLA does not apply to the plaintiffs' claims against the P.A. because the plaintiffs refer to the P.A. only in the introductory part of their pleadings and do not assert liability claims against it. See id. at *5.

We granted the petition for review of Dr. Loaisiga and the P.A. 55 Tex. Sup. Ct. J. 145 (Dec. 16, 2011). Before turning to the parties' arguments on the merits, we address our jurisdiction to consider this interlocutory appeal.

II. Jurisdiction

Texas appellate courts generally have jurisdiction only over final judgments. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex.2001). But an exception exists for certain interlocutory orders. SeeTex. Civ. Prac. & Rem.Code § 51.014(a); Jackson, 53 S.W.3d at 355.Section 51.014(a) provides in relevant part:

A person may appeal from an interlocutory order of a district court, county court at law, or county court that:

...

(9) denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351.

Tex. Civ. Prac. & Rem.Code § 51.014(a)(9).

A court of appeals' judgment ordinarily is conclusive when an interlocutory appeal is taken pursuant to section 51.014(a)(9). SeeTex. Gov't Code § 22.225(b)(3). However, we may consider an interlocutory appeal when the court of appeals' decision creates an inconsistency in the law that should be clarified to remove unnecessary uncertainty and unfairness to litigants. Id.§§ 22.001(a)(2), (e); 22.225(c), (e). This case involves an issue on which the courts of appeals have issued inconsistent decisions. Compareat *4 (holding that a doctor's alleged fondling of the plaintiffs' breasts during medical examinations could not feasibly be explained as a necessary part of medical treatment and therefore does not give rise to an HCLC), with Vanderwerff v. Beathard, 239 S.W.3d 406, 409 (Tex.App.-Dallas 2007, no pet.) (concluding that a chiropractor's alleged rubbing of a plaintiff's genitals during a chiropractic examination gave rise to an HCLC because whether the chiropractor's actions were within the scope of a chiropractic examination could not be answered without reference to the standard of care required of a chiropractic provider). We have jurisdiction to resolve this issue. Tex. Gov't Code § 22.001(a)(2).

III. Health Care Liability Claims

A. General

Determining whether claims are HCLCs requires courts to construe...