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T.C. v. Kayass

Court of Appeals of Texas, Second District, Fort Worth

November 9, 2017

T.C. APPELLANT
v.
AHMAD ABO KAYASS APPELLEE

         FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 348-282045-15

          PANEL: WALKER; GABRIEL and PITTMAN, JJ.

          OPINION

          MARK T. PITTMAN, JUSTICE.

         This appeal involves the alleged sexual assault by a physician of a nonpatient who went to an urgent care clinic to obtain medical treatment for her children. Appellant T.C. challenges the trial court's granting of a motion to dismiss filed by appellee Ahmad Abo Kayass for failure to serve an expert report as mandated by section 74.351 of the Texas Medical Liability Act (the Act). See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (West 2017). Specifically, T.C. asserts that the trial court erred in granting the motion to dismiss because her claims against Kayass are not health care liability claims for which she would be required to file an expert report under the Act. For the reasons set forth herein, we agree and reverse and remand for further proceedings.

         I. BACKGROUND

         On October 28, 2013, T.C. took her three children, twin two-year-old daughters and a five-year-old son, to an urgent care clinic to obtain medical care for her children. T.C. alleged that while she and her children were in the exam room, Kayass, a physician working at the urgent care clinic, sexually assaulted her in front of her children. T.C.-who was not a patient and was not being examined-claimed that Kayass intentionally and knowingly assaulted her without her consent when he groped her right breast and right thigh multiple times, "kissed her on the lips, " "forced [her] to touch and/or rub on his penis, " and "licked her face." T.C. also alleged that shortly after leaving the urgent care clinic, Kayass obtained her telephone number from a medical chart and sent her a "harassing message" via text.

         T.C. reported the alleged incident to the Fort Worth Police Department the next day. Kayass was charged, and on April 30, 2015, he entered a plea of nolo contender to the offense of disorderly conduct and was placed on community supervision for three months.

         On October 27, 2015, T.C. filed her original petition against defendants Kayass; Cook Children's Health Care System (Cook Children's); EmCare Holdings, Inc. (EmCare); and EmCare HoldCo, Inc. (EmCare HoldCo). T.C. amended her petition on December 29, 2015, adding Texas Emergency Room Services, P.A. (TERS) as a defendant. The amended petition alleged causes of actions against Kayass for sexual assault, intentional infliction of emotional distress, and conspiracy to cover up sexual assault. T.C. brought causes of action against the remaining defendants for intentional infliction of emotional distress, negligence and gross negligence, premises liability, being criminally complicit, and breach of fiduciary duty.

         On May 9, 2016, Kayass filed a motion to dismiss alleging that T.C.'s lawsuit should be dismissed because she was alleging health care liability claims and had never filed an expert report as required by the Act. Likewise, on May 10, 2016, Cook Children's filed a motion to dismiss and a motion for summary judgment, and on May 25, 2016, EmCare, EmCare HoldCo, and TERS filed a joint motion to dismiss seeking to dismiss T.C.'s lawsuit due to her failure to file an expert witness report under the Act. The trial court granted the defendants' motions on June 20, 2016 and dismissed the lawsuit.

         T.C. originally appealed the trial court's decision as to the dismissal of her lawsuit against all defendants. However, on November 17, 2016, T.C. filed an agreed motion to dismiss her appeal against all defendants except Kayass, and notified this court that she had also nonsuited her claims against those defendants. This court granted the motion on December 1, 2016, and T.C. now challenges only the part of the trial court's order dismissing her lawsuit against Kayass.

         Upon closer review of the record, we were concerned that the dismissal order as to Kayass appeared to be neither a final judgment nor an appealable interlocutory order because it did not appear to finally resolve Kayass's claim for attorney's fees. Therefore, on August 12, 2017, we issued an order requesting that any party wishing to continue the appeal either file a response presenting the grounds for continuing or furnish this court with a signed copy of the trial court's order or judgment finally resolving Kayass's claim for attorney's fees or risk this appeal being dismissed for want of jurisdiction. On October 3, 2017, T.C. filed her jurisdictional brief, providing this court with the trial court's order granting Kayass's nonsuit of his claims for attorney's fees against T.C. and leaving no ambiguity that this appeal is properly before the court.

         II. ANALYSIS

         The sole issue in this appeal concerns whether T.C. was required to file an expert witness report under section 74.351(a) of the Act with regard to her claims against Kayass. We conclude that T.C.'s claims are not health care liability claims and are not subject to the Act's expert witness report mandate.

         A. The Standard of Review for Determining Health Care Liability Claims.

         There is no dispute that the issue presented in this appeal implicates the scope of claims covered by the Act. See Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012). We generally review a trial court's order granting a motion to dismiss pursuant to section 74.351(b) of the Act under an abuse-of-discretion standard. See Rosemond v. AlLahiq, 331 S.W.3d 764, 766 (Tex. 2011); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). However, the question of whether the Texas Legislature intended claims such as T.C.'s to be health care liability claims, falling with the Act's mandatory expert report requirement, is a question of law to which we apply a de novo standard of review. See Loaisiga v. Cerda, 379 S.W.3d 248, 254- 55 (Tex. 2012); Tex. W. Oaks Hosp., 371 S.W.3d at 177.

         We are mindful that in construing the Act, this court must "'determine and give effect to the Legislature's intent.'" Tex. W. Oaks Hosp., 371 S.W.3d at 177 (quoting McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003)). In making this determination, we must begin by looking at the "plain and common meaning of the statute's words." Id.; cf. Ogden v. Sanders, 25 U.S. (12 Wheat.) 213, 332 (1827) (Marshall, C.J., dissenting) (stating "that the intention of the [statute] must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers").

         B. How Does the Act Define a Health Care ...


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