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Because Texas presumes it is. The Medical Liability Act creates a rebuttable presumption that a patient’s claim against a physician or health care provider, based on facts implicating the provider’s conduct during care or treatment, is a health care liability claim. If that presumption stands, a set of rules designed for surgical errors attaches to an assault: an expert report within 120 days, a $250,000 cap on non-economic damages, and a two year deadline instead of the five years the sexual assault limitations statute would otherwise give.
This is the most dangerous mismatch in Texas law for a survivor, and almost nothing published in this state explains it.
The presumption can be rebutted. The Texas Supreme Court set out how. But it has to be done deliberately, from the first pleading, and a case filed as a straightforward assault claim in year three can be dismissed with prejudice on a motion the survivor never saw coming.
Section 74.001(a)(13) defines a health care liability claim as a cause of action against a health care provider or physician for 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, which proximately results in injury or death, whether the claim sounds in tort or contract.
Read the last clause. Styling the petition as assault and battery rather than negligence does not decide the question.
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 the claims were ordinary assault claims outside the Act. The court disagreed on that record.
The court held the Act 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 health care liability claims.
It also held the presumption is rebuttable, and said how. 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.
What that means in practice. The rebuttal is a record-building exercise. What the visit was for, what an examination for that complaint properly involves, 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.
Note when the clock starts. Not at filing. At the answer, and 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 the court shall award the defendant reasonable attorney’s fees and costs of court, and shall dismiss the claim as to that defendant with prejudice to refiling.
Dismissal with prejudice and a fee award against the survivor. That is what it costs to guess wrong about whether Chapter 74 applies.
The safe course, where there is any real argument that the Act applies, is to serve a compliant report while contesting applicability. Serving one is not a concession that ends the fight over characterization, and not serving one ends the case.
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 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. It states that except as provided in that section it applies to all persons regardless of minority or other legal disability, with a narrow provision giving 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 a claim is characterized as a health care liability claim, the survivor may be arguing about which statute controls, from a position where 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, regardless of the number of defendants or causes of action. Section 74.301(b) sets a separate limit for a health care institution.
In a case where the injury is almost entirely non-economic, that cap is the case.
A claim against the hospital, clinic, staffing agency or practice group for negligent hiring, supervision, credentialing or retention is a different analysis, and 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 practical point for a survivor is that the assailant is rarely the recovery, and the institutional defendants are where both the insurance and the more favorable law usually are.
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.
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 the chart. The medical record is what the Loaisiga test is decided on. What the visit was for, what was documented, what a chaperone policy required and whether one was present. Request it early and in writing.
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 real one.
The first conversation is free, it is confidential, and it does not commit anyone to anything.
This is the wrong claim to sit on. Not because of pressure, but because the deadline may be two years rather than five, the expert report clock starts at the answer, and both can pass while a survivor is deciding whether to come forward at all.
You can ask us how this works without giving a name and without deciding anything.
If you are an advocate, a SANE nurse or a counselor asking on someone’s behalf, you are welcome to call with a general question.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
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 there is no complaint about any act other than the offensive contact, the contact was not pursuant to actual or implied consent, and 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. Missing it means dismissal with prejudice and an award of the defendant’s attorney fees and costs.
If the 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, regardless of the number of defendants or causes of action.
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 the case.
