Appeal from the 334th District Court Harris County, Texas
Trial Court Cause No. 2016-07219
consists of Justices Christopher, Busby, and Jewell.
appeal requires us to decide whether intentional tort claims
of assault and battery constitute health care liability
claims. Rebecca Lerma, as next friend of her son Joshua
Lerma, sued appellant Hopebridge Hospital Houston, L.L.C. for
assault and battery; Joshua later joined the suit after his
eighteenth birthday. Joshua alleged that, after he was
admitted to Hopebridge for an accidental prescription
medication overdose, Hopebridge's employees committed
assault and battery while forcing him to remain in his bed.
Contending Joshua's claims are health care liability
claims governed by Texas Civil Practice and Remedies Code
Chapter 74, Hopebridge filed a motion to dismiss and for
attorney's fees because Joshua did not serve an expert
report as the code requires. The trial court denied the
motion and Hopebridge appeals.
conclude that Joshua's claims are subject to Chapter
74's expert report requirement. Because the plaintiff
failed to serve an expert report in support of his claims, we
reverse and render judgment that Joshua take nothing against
Hopebridge, and remand for further proceedings consistent
with this opinion.
to Joshua's amended petition, Joshua, a minor at the
time, was admitted to Hopebridge for care related to an
accidental overdose of prescription medications. His mother,
Rebecca, accompanied Joshua during the admissions process,
but later left for the evening at the request of hospital
staff. At approximately midnight, Joshua, anxious and
stressed, remained out of bed and ambulatory in his room.
Three members of Hopebridge's staff attempted to force
Joshua into bed. Joshua resisted these efforts, and during
the ensuing struggle, Joshua allegedly received
"multiple bruises, contusions, bleeding in his mouth and
on his face[, ] and a blood clot in his left eye."
filed suit against Hopebridge on Joshua's behalf. Joshua
subsequently appeared as a party, having reached his
eighteenth birthday. The live pleading alleged that
Joshua's injuries resulted from being "severely
beat[en]" by Hopebridge's staff, "consist[ing]
of multiple blows" and "multiple kicks to all parts
of Joshua's body." Joshua asserted claims for
assault and battery.
answered, asserting a general denial. After the expiration of
120 days, Hopebridge filed a motion to dismiss and for
attorney's fees, contending that Joshua's claims were
health care liability claims governed by Chapter 74, which
requires, among other things, a plaintiff to serve an expert
report on a defendant health care provider not later than 120
days after the defendant files its answer. Because Joshua did
not serve an expert report, Hopebridge argued that the trial
court must dismiss Joshua's claims with prejudice and
award reasonable attorney's fees and costs incurred.
See Tex. Civ. Prac. & Rem. Code §
conducting a hearing on Hopebridge's motion to dismiss,
the trial court denied the motion.
timely filed this accelerated interlocutory
presents three issues for review. First, it contends that
claims for assault and battery against a health care provider
are health care liability claims under Chapter 74. Second, it
argues that the trial court erred as a matter of law by
denying Hopebridge's motion to dismiss. And third, should
we agree with its first two issues, it seeks reasonable
attorney's fees and court costs under section
74.351(b)(1). We address the first two issues together, then
turn to the third.
Chapter 74 Health Care Liability Claims
main issue in this appeal-whether Joshua's claims are
health care liability claims-turns on the reach of the Texas
Medical Liability Act ("TMLA"), a comprehensive
medical malpractice reform measure. See Methodist
Healthcare Sys. of San Antonio, Ltd. v. Rankin, 307
S.W.3d 283, 287 (Tex. 2010) ("[The TMLA] was enacted in
2003 as part of House Bill 4, a top-to-bottom overhaul of
Texas malpractice law."). The TMLA is codified at
Chapter 74 of the Texas Civil Practice and Remedies Code.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204,
§ 10.01, 2003 Tex. Gen. Laws 847, 864-82 (codified at
Tex. Civ. Prac. & Rem. Code ch. 74). Because this case
requires us to interpret the statute to determine whether it
extends to Joshua's claims, our review is de novo.
Loaisiga v. Cerda, 379 S.W.3d 248, 254-55 (Tex.
2012); Mem'l Hermann Hosp. Sys. v. Kerrigan, 383
S.W.3d 611, 612, 613 (Tex. App.-Houston [14th Dist.] 2012,
What is a health care liability claim?
relevant here, section 74.351 requires a plaintiff, in cases
involving a health care liability claim, to serve on the
defendant one or more expert reports, on or before the 120th
day after the defendant's original answer is filed. Tex.
Civ. Prac. & Rem. Code § 74.351(a). An expert report
means "a written report by an expert that provides a
fair summary of the expert's opinions as of the date of
the report regarding applicable standards of care, the manner
in which the care rendered by the physician or health care
provider failed to meet the standards, and the causal
relationship between that failure and the injury, harm, or
damages claimed." Id. §
74.351(r)(6). If the plaintiff fails to serve ...