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Texas Supreme Court: Rebuttable Presumption That Conduct During Patient Care is a Health Care Liability Claim

by Leah Greene, JD, LLM on September 4th, 2012

The Texas Supreme Court has issued seemingly inconsistent holdings regarding whether assault claims fall within the definition of a Chapter 74 health care liability claim. Last week, it held there is a rebuttable presumption that any claim involving conduct occurring during patient care is a health care liability claim.

In Loaisiga v. Cerda, the plaintiffs claimed that the physician defendant inappropriately groped their breasts when he listened to their heart with a stethoscope. Out of an abundance of caution, the plaintiffs served an expert report, likely based on the inconsistent holdings in Texas case law regarding when an assault is subject to the requirements of Chapter 74. One issue before the Court was whether this claim constituted a health care liability claim.

The Court stated that the Texas Legislature intended for Chapter 74 to be applied expansively. It held that Chapter 74 creates a rebuttable presumption that any patient claim against a health care provider involving the defendant’s conduct during patient care is a health care liability claim. It set out a three-prong test for a patient to conclusively prove otherwise:

  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 by the plaintiff; 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.

With respect to the claim at issue, the Court decided there was not sufficient information in the record to demonstrate whether the defendant physician’s conduct was a part of the examination he was performing, so the Court remanded the case to the trial court for that determination.

As we reported last week, it appears the Texas Supreme Court is expanding the scope of Chapter 74. The creation of a rebuttable presumption that any conduct occurring during patient care is a health care liability claim provides greater legal protection for a physician or hospital accused of assault. Often, health care examinations involve touching that would be considered an assault outside the health care context. As a result, it is difficult to imagine a scenario in which an alleged sexual assault occurring during patient care would not be a health care liability claim.

The majority opinion is located here. Concurring and dissenting opinions are located here, here, and here.

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