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It can be. The Medical Liability Act creates a rebuttable presumption about a patient’s claim against a physician or health care provider. Where the claim is based on facts implicating the provider’s conduct during care or treatment, it is presumed to be a health care liability claim. If it stands, the Act’s rules apply to your claim.
Those rules include an expert report within 120 days, a $250,000 cap on non-economic damages, and a two year deadline. That deadline can displace the five years the sexual assault limitations statute would otherwise give you, and whether it does is an open question. The presumption can be rebutted, but it has to be done deliberately, from the first pleading. What cannot wait is the deadline, which may be two years rather than five. Call 713-521-0059.
Section 74.001(a)(13) of the Civil Practice and Remedies Code defines a health care liability claim. The conduct it covers is 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. A cause of action against a health care provider or physician for that conduct, which proximately results in injury or death, qualifies whether the claimant’s claim or cause of action sounds in tort or contract.
Note the words at the end of the first sentence of that definition: whether the claimant’s claim or cause of action sounds in tort or contract. Styling your petition as assault and battery rather than negligence does not decide the question.
In some cases, yes. Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012), involved a physician alleged to have groped patients during sinus and flu examinations. The plaintiffs argued their claims were ordinary assault claims outside the Act. The Texas Supreme Court disagreed on that record.
The court held that the Act creates a rebuttable presumption. It covers 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. Those claims are presumed to be health care liability claims.
The court also said how the presumption is rebutted. An assault claim escapes it where the record conclusively shows all three of the following.
The plaintiffs in Loaisiga lost on the third element and on the state of the record. There was not enough before the court, including the medical records and the clinical complaints, to establish conclusively that the touching fell entirely outside a permissible examination.
In practice, the rebuttal is a record-building exercise. It turns on what the visit was for and what an examination for that complaint properly involves. It also turns on whether the contact had any conceivable clinical purpose, and whether it occurred outside the examination altogether. A case assembled with that test in mind looks different from one that is not.
Section 74.351(a) requires the claimant to serve one or more expert reports, with each expert’s curriculum vitae, not later than the 120th day after the date each defendant’s original answer is filed. The parties can agree in writing to extend that date, and the statute allows a later date in some cases. Notice when the clock starts. It starts at the answer, not at filing, and it runs separately for each defendant. A defendant added later brings its own 120 day period.
Section 74.351(b) states the consequence of missing it. On the defendant’s motion, and subject to the one 30 day extension Subsection (c) allows to cure a deficient report, the court shall award the defendant reasonable attorney’s fees and costs of court. The court shall also dismiss the claim as to that defendant with prejudice to refiling. That is what it costs you to guess wrong about whether Chapter 74 applies.
Where there is any real argument that the Act applies, the safer course is usually to serve a compliant report while contesting whether the Act applies. Serving one does not concede the fight over how your claim is characterized. Not serving one can end the case. That is why the claim has to be framed from the first pleading. A case pleaded only as an assault claim in year three can be dismissed with prejudice.
Section 74.251(a) opens with the words notwithstanding any other law. It requires a health care liability claim to be filed within two years. The two years run from the occurrence of the breach or tort, or from the date the treatment or hospitalization that is the subject of the claim is completed. Except as that section provides, it applies to all persons regardless of minority or other legal disability. A narrow provision gives a child under twelve until the fourteenth birthday.
Section 74.251(b) adds a ten year statute of repose. All claims must be brought within ten years of the act or omission or they are time barred.
Set that against Section 16.0045, which gives five years for sexual assault and thirty years for offenses against a child. If your claim is characterized as a health care liability claim, you may end up arguing about which statute controls. You may be making that argument after one of them has already run. Whether Texas courts have settled that conflict for a sexual assault survivor is an open question. Both statutes say what they say, and the conservative plan is the shorter one.
Section 74.301(a) limits non-economic damages against a physician or health care provider other than a health care institution to $250,000 per claimant. That limit applies regardless of the number of such physicians or providers sued or causes of action. Sections 74.301(b) and (c) set separate limits for health care institutions. Where your injury is almost entirely non-economic, that cap can matter more than any other rule.
That is why the other defendants matter. A claim against the hospital, clinic, staffing agency or practice group for negligent hiring, supervision, credentialing or retention is a different analysis. Whether it too falls under Chapter 74 depends on how it is framed and what it alleges. A claim against a property owner for inadequate security is not a claim against a health care provider at all.
The person who assaulted you is rarely the source of a recovery. The institutions are usually where both the insurance and the more favorable law are. Our page on who is legally responsible for a sexual assault covers how those claims are built.
You can report it to the licensing board as well. The Texas Medical Board, the Board of Nursing and the Behavioral Health Executive Council each investigate provider misconduct. A board complaint is separate from a lawsuit, has its own deadlines, and creates a record.
Ask for your chart, early and in writing. The medical record is what the Loaisiga test is decided on. It shows what the visit was for, what was documented, what a chaperone policy required and whether a chaperone was present.
Prior complaints are the institutional case. Whether the clinic or hospital had been told about this provider before is usually the difference between a capped individual claim and a claim against the institution itself.
Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.
Each of these is a reason to decide early how your claim is framed. The deadline may be two years rather than five, and the report clock starts at the answer. Both can pass while you are still deciding whether to come forward at all.
We start with how your claim is framed, because that decides which deadline, which report rule and which cap may apply. Then we ask for your chart, look at what the institution knew about this provider before, and identify every defendant. You can ask us how this works without giving a name and without deciding anything.
Schiffer Law Firm is a Houston personal injury firm with 50 plus years of combined experience representing injured people and survivors across Texas.
If you are an advocate or a counselor asking on someone’s behalf, you are welcome to call with a general question. We will not ask you for their name.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Written by Jacob Schiffer, Attorney, Schiffer Law Firm. State Bar of Texas No. 24105175.
Call 713-521-0059.
Often, yes. The Medical Liability Act creates a rebuttable presumption that a patient's claim against a provider, based on facts implicating the provider's conduct during care or treatment, is a health care liability claim. Styling the petition as assault does not by itself avoid it.
Loaisiga v. Cerda holds it is rebutted where the record conclusively shows three things. There is no complaint about any act other than the offensive contact, and the contact was not pursuant to actual or implied consent. The only possible relationship between the contact and the rendition of health care was the setting in which it occurred.
Section 74.351(a) requires service of one or more expert reports with each expert's curriculum vitae not later than the 120th day after the date each defendant's original answer is filed. The parties can agree in writing to extend that date. On the defendant's motion, missing it can mean dismissal with prejudice and an award of the defendant's attorney's fees and costs, subject to one 30 day extension to cure a deficient report.
If your claim is a health care liability claim, Section 74.251 requires filing within two years and imposes a ten year statute of repose. That is shorter than the five year period Section 16.0045 gives for sexual assault. Plan around two years.
Section 74.301(a) caps non-economic damages against a physician or health care provider other than a health care institution at $250,000 per claimant. The cap applies regardless of the number of such physicians or providers sued or causes of action. Sections 74.301(b) and (c) set separate limits for health care institutions.
Often, on negligent hiring, supervision, credentialing or retention. Whether those claims also fall under Chapter 74 depends on how they are framed. Prior complaints about the same provider are usually the most valuable evidence in your case.