IN THE

TENTH COURT OF APPEALS

No. 10-23-00249-CV

KORY LEE GILL, D.O., 

Appellant

v.

KELLY GOODSON, 

 Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 22-002437-CV-272

MEMORANDUM OPINION

Kelly Goodson sought to recover damages for claims of sexual assault and battery, 

intentional infliction of emotional distress, harassment, and physical injuries she suffered

when she was sexually assaulted by Kory Lee Gill, D.O. at Central Texas Sports Medicine 

and Orthopedics and at The Physicians Centre Hospital located in Bryan, Texas. Gill filed 

a Chapter 74 Motion to Dismiss pursuant to the Texas Medical Liability Act because

Goodson had not served him with an expert report as required by the Act. After a 

hearing, the trial court denied Gill’s motion. Because the trial court did not abuse its 
Gill. v. Goodson Page 2

discretion in denying Gill’s motion to dismiss, its Order Denying Defendant, Kory Lee

Gill, D.O.’s Chapter 74 Motion to Dismiss is affirmed.

FACTUAL ALLEGATIONS

Goodson scheduled an appointment in the fall of 2020 with Gill seeking medical 

care to address Goodson’s back and pain issues. Gill asked Goodson to unbutton her 

jeans and began to touch her. He slid his hand between her buttocks and began digitally 

penetrating her anus. Goodson moved away as best as she could and told Gill not to do 

that again. Gill then ordered X-rays. Upon Goodson’s return to the exam room from the 

X-ray room, Gill pulled out the front of the paper shorts Goodson was still wearing from 

the X-rays and “slurred utterances” to Goodson. Before Goodson left the room, Gill gave 

Goodson his personal phone number on a sticky note and asked her to call him. He told 

her he wanted to see more of Goodson’s tattoos.

About a month later and experiencing worsening back and hip issues, Goodson

returned to Gill who ordered an MRI. Gill admitted Goodson to the Physicians Centre 

Hospital for outpatient surgery for epidural steroid injections. Arriving late for the

procedure and smelling of alcohol, Gill began talking with Goodson in the pre-op room 

about her tattoos. Gill suddenly and unexpectedly, and without consent, slid his hand 

into Goodson’s underwear and in the folds of her vagina to digitally penetrate her vagina. 

When that happened, Goodson told Gill that if he did not stop, she would scream. 

ISSUE ON APPEAL

The question before this Court is whether Goodson's claims triggered the Texas 

Medical Liability Act (TMLA) requiring her to serve an expert report within 120 days of 
Gill. v. Goodson Page 3

Gill’s answer to Goodson’s petition which set out the breach of the standard of care. See

TEX. CIV. PRAC. & REM. CODE §§ 74.001(a)(13); 74.351(a). Gill claims that Goodson brings 

a health care liability claim because Goodson has not rebutted the presumption that her 

claim against a treating physician triggers the TMLA. Goodson responds that she 

complains only of the alleged offensive contact, not anything related to medical or health 

care services, she did not consent to that alleged contact, and the only relationship 

between the rendition of health care and the alleged offensive contact is the setting where 

it happened. 

Standard of Review

We generally review a trial court's order on a motion to dismiss pursuant to section

74.351(b) of the TMLA under an abuse of discretion standard. See Rosemond v. Al-Lahiq, 

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, whether a claim asserts a health care liability claim

is a question of law which we review de novo. Lake Jackson Med. Spa v. Gaytan, 640 S.W.3d 

830, 836 (Tex. 2022). In doing so, we consider the underlying nature of the claim rather 

than its label. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 

2019).

Health Care Liability Claim?

The TMLA provides that, upon the defendant's motion, a trial court shall dismiss 

a health care liability claim and award attorney's fees to the defendant if the claimant fails 

to provide one or more expert reports within 120 days day after the date each defendant’s 

original answer is filed. TEX. CIV. PRAC. & REM. CODE § 74.351 (a), (b). A health care 
Gill. v. Goodson Page 4

liability claim has three elements: (1) a suit against a physician or health care provider; 

(2) the claims are grounded in treatment, lack of treatment, or a departure from accepted 

standards of medical care, health care, or safety or professional or administrative services 

directly related to health care; and (3) the defendant's act or omission must have 

proximately caused the injury to the plaintiff. Lake Jackson Med. Spa v. Gaytan, 640 S.W.3d 

830, 840 (Tex. 2022). The TMLA creates a rebuttable presumption that a plaintiff's claim 

is a health care liability claim if it is brought against a physician or health care provider 

and is based on facts "implicating the defendant's conduct during the course of a patient's 

care, treatment, or confinement." Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012). 

However, if the conduct of which a plaintiff complains is "wholly and conclusively 

inconsistent with, and thus separable from," receiving health care, it is not a health care 

liability claim. Loaisiga, 379 S.W.3d at 257; Jaffer v. Maestas, No. 01-23-00541-CV, 2024 Tex. 

App. LEXIS 2079, at *7 (Tex. App.—Houston [1st Dist.] Mar. 26, 2024, no pet.) (mem. op.). 

The complained-of conduct is separable from receiving health care if the record shows:

(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 health care was the setting in which the act 

took place.

Id.

This case is factually indistinguishable from the First Court of Appeals’ opinion in 

Jaffer v. Maestas. See Jaffer v. Maestas, No. 01-23-00541-CV, 2024 Tex. App. LEXIS 2079 (Tex. 
Gill. v. Goodson Page 5

App.—Houston [1st Dist.] Mar. 26, 2024, no pet.) (mem. op.). There, the plaintiff awoke 

from a breast augmentation procedure to discover Jaffer pressing his penis to the 

plaintiff’s foot and rubbing her vagina. The First Court of Appeals affirmed the trial 

court’s denial of Jaffer’s motion to dismiss. 

In this case, Goodson does not complain about any medical or health care 

procedure or service by Gill except for the alleged sexual assaults occurring during two 

appointments.1 Nothing in the record suggests that Goodson consented to Gill’s assaults, 

and there is nothing in the record to suggest anything other than the only possible 

relationship between the alleged assaults and the rendition of the medical or health care 

services provided, the X-rays and the epidural, was the setting. Further, no expert 

testimony is required to prove Goodson’s claims. See Jaffer, 2024 Tex. App. LEXIS 2079, 

at *9-10 (and the caselaw cited therein).

As other courts have noted, “it would defy logic to suggest that [this] sexual 

assault[] is an inseparable part of the rendition of medical care or a departure from 

accepted standards of health care.” Id. at *9; Wasserman v. Gugel, No. 14-09-00450-CV, 

2010 Tex. App. Lexis 3749, *7-8 (Tex. App.—Houston [14th Dist.] May 20, 2010, pet. 

denied) (mem. op.); Holguin v. Laredo Reg'l Med. Ctr., L.P., 256 S.W.3d 349, 353 (Tex. 

App.—San Antonio 2008, no pet.). Based on the factual allegations of Goodman’s case, 

we agree.

1 Goodson had raised claims against other parties, but those claims had been disposed of by the time the 

trial court ruled on Gill’s motion to dismiss.
Gill. v. Goodson Page 6

CONCLUSION

Accordingly, Goodson did not assert a health care liability claim, and

consequently, the trial court did not err in denying Gill’s motion to dismiss.

Gill’s sole issue is overruled, and the trial court’s “Order Denying Defendant, Kory 

Lee Gill, D.O’s Chapter 74 Motion to Dismiss,” signed on July 19, 2023 is affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray, 

Justice Johnson, and 

Justice Smith 

Affirmed

Opinion delivered and filed July 18, 2024

[CV06]