In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-21-00031-CV

CHRISTUS GOOD SHEPHERD MEDICAL CENTER, Appellant

V.

MICHAEL SONNIER, Appellee

On Appeal from the 71st District Court

Harrison County, Texas

Trial Court No. 20-0378

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Justice Stevens
2

MEMORANDUM OPINION

Michael Sonnier sued Christus Good Shepherd Medical Center (Christus)1and alleged 

that he suffered damages and emotional distress from the conduct of certain members of 

Christus’s staff while he was under Christus’s care. After Sonnier failed to file an expert report 

as required by the Texas Medical Liability Act (Act),

2 Christus moved to dismiss his claims.3

 

The trial court denied the motion, and Christus filed this interlocutory appeal.4 We find that this 

claim was a health care liability claim (HCLC) subject to the Act’s expert report requirement, 

reverse the trial court’s judgment, dismiss Sonnier’s claims against Christus, and remand this 

case to the trial court for further proceedings.

I. Background

Sonnier filed his original petition in April 2020 and named only Christus as a defendant. 

According to the original petition, Sonnier had been working as a charge nurse in Christus’s 

surgery department for over ten years when he was admitted to Christus to have a hernia repaired

in January 2020. Sonnier alleged that, as a patient under Christus’s care, he had the expectation 

that Christus would adhere to a reasonable standard of care. Although there were no 

1

In his second amended petition, Sonnier also named Robin Travis, Kimberly Alcox, and Morgan Davis as 

defendants. Travis, Alcox, and Davis are not parties to this appeal.

2See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (requiring service of an adequate expert report within 120 

days after the original answer is filed, absent a statutorily permitted extension).

3See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(2) (requiring, upon motion by a health care provider, 

dismissal of the claims against the health care provider if the claimant does not timely file an expert report).

4See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (Supp.).
3

complications with the hernia surgery, when Sonnier awoke from the procedure, he discovered 

that, while he was under anesthesia, certain members of Christus’s staff had:

--placed a diaper on him “despite the fact that it [was] outside of the standard of 

care for most hernia patients to be placed in a diaper post-surgery”;

--taped a plastic baggie containing mixed nuts to the diaper and written, “These 

nuts!” on the baggie;

--signed the diaper, both inside and out, with messages such as, “Robin was here! 

Get well soon!” in the area of his genitals, and “poop shoot” on the buttocks;

--affixed a colostomy bag to him, even though his procedure and recovery did not 

require him to wear a colostomy bag; and

--again deviated from the standard of care by painting his toenails bright red. 

Sonnier also alleged that, while recovering at home, he received text messages from one

of the staff members that had cared for him, Alcox, who inquired how he was doing. When 

Sonnier replied that he was sore but doing well, Alcox texted, “Great. I guess you are not in pain 

are [sic] constipated!!!!!” Sonnier replied, “Not too bad,” to which Alcox texted, “That’s good. 

By the way, I did not paint your toenails . . . Anna did. I would have painted them better than 

that, but I did put the diaper on you, lol. Take care. I will check on you later.” Davis, another 

staff member who had cared for Sonnier, also exchanged text messages with him. Davis asked 

how he was doing and texted, “How’s the toe polish,” followed by a crying emoji. 

Sonnier alleged that Christus “was at all times in a position that required it to provide 

medical care and treatment and [Sonnier] was at all times physically incapable of defending

himself against the actions committed by” Christus. Sonnier asserted claims against Christus for 

intentional infliction of emotional distress for placing him in a diaper, painting his toenails, and 
4

affixing the colostomy bag, which he alleged “went beyond any duties or responsibilities as a 

Medical Center.” He also asserted claims against Christus for assault, battery, and gross 

negligence based on this same conduct. Along with these direct claims, Sonnier asserted that 

Christus was vicariously liable for the actions of its employees through the doctrines of

respondeat superior and ratification. 

Christus filed its original answer on May 22, 2020, and entered a general denial. After 

Sonnier failed to serve an expert report required by the Act, Christus moved to dismiss his claims

and for attorney fees and costs. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(2). 

Sonnier then filed his first amended petition and joined Alcox, Davis, and Travis as 

defendants. The factual allegations in the first amended petition were the same as in the original 

petition, except that Sonnier removed all (1) references to any standard of care, (2) references to 

any deviation from any standard of care, and (3) references that the conduct went beyond 

Christus’s duties and responsibilities as a medical center. Sonnier asserted claims against Alcox, 

Davis, and Travis for intentional infliction of emotional distress, assault, and battery and asserted 

that Christus was vicariously liable for the actions of its employees through the doctrines of

respondeat superior and ratification. Sonnier also opposed the motion to dismiss, alleged that 

his first amended petition had addressed any pleading deficiencies, and argued that the motion 

should be denied because his claims against Christus were not HCLCs. 

Christus filed special exceptions to the first amended petition objecting that Sonnier had 

pleaded no facts supporting his theories of respondeat superior and ratification. As a result, 
5

Sonnier filed a second amended petition and added certain allegations to address the special

exceptions. After a hearing, the trial court denied Christus’s motion to dismiss. 

On appeal, Christus argues that the claims Sonnier asserted against Christus were HCLCs

and that the Act required Sonnier to serve Christus with an expert report no later than the 120th

day after it filed its original answer. Since Sonnier failed to comply with this requirement, 

Christus contends that the trial court was required to dismiss Sonnier’s claims against it and to 

award it reasonable attorney fees and costs. We agree.

II. Standard of Review 

The determination of whether claims come “within the purview of the Act is a question 

of law” that we review de novo. Watson v. Good Shepherd Med. Ctr., 456 S.W.3d 585, 587 

(Tex. App.—Texarkana 2015, pet. denied) (citing Tex. W. Oaks Hosp., LP & Tex. Hosp. 

Holdings, LLC v. Williams, 371 S.W.3d 171, 177 (Tex. 2012)). We also apply a de novo

standard of review “when the resolution of an issue on appeal requires interpretation of a 

statute.” Stanford v. Cannon, No. 06-11-00011-CV, 2011 WL 2518856, at *2 (Tex. App.—

Texarkana June 23, 2011, pet. denied) (mem. op.) (citing Vanderwerff v. Beathard, 239 S.W.3d 

406, 408 (Tex. App.—Dallas 2007, no pet.)).

III. The Texas Medical Liability Act

Under the Act, a claimant that files an HCLC against a physician or health care provider 

must serve the physician or health care provider (or its attorney) one or more expert reports, and 

the expert’s curriculum vitae, no later than the 120th day after the date the physician’s or health 

care provider’s original answer is filed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). If the 
6

claimant fails to serve a physician or health care provider with an expert report within that time, 

the trial court, on motion by the physician or health care provider, must dismiss the claim with 

respect to that physician or health care provider and award the physician or health care provider

reasonable attorney fees and costs. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b).

The Act defines an HCLC 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 to or death of a claimant, whether 

the claimant’s claim or cause of action sounds in tort or contract.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). Under this definition, 

an HCLC has three elements: (1) the defendant is a health care provider or 

physician; (2) the claimant’s cause of action is for treatment, lack of treatment, or 

other claimed 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 alleged departure from accepted standards proximately 

caused the claimant’s injury or death.

Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012) (citing Marks v. St. Luke’s Episcopal 

Hosp., 319 S.W.3d 658, 662 (Tex. 2010) (plurality op.)). The Act defines “health care” as “any 

act or treatment performed or furnished, or that should have been performed or furnished, by any 

health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, 

or confinement.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(10). Although the Act does 

not define “safety,” the Texas Supreme Court “has defined it as ‘the condition of being 

“untouched by danger; not exposed to danger; secure from danger, harm or loss.”’” Rogers v. 

Bagley, 623 S.W.3d 343, 350 (Tex. 2021) (quoting Williams, 371 S.W.3d at 184 (quoting 

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex. 2005))).
7

Because of the Act’s broad language, the Texas Supreme Court has held that the 

Legislature’s intent was “for the statute to have expansive application,” Loaisiga, 379 S.W.3d at 

256, and that 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 HCLCs,” id. at 252. When considering whether a claim is an 

HCLC, we “focus[] on the facts underlying the claim, not the form of, or artfully-phrased

language in, the plaintiff’s pleadings describing the facts or legal theories asserted.” Id. at 255 

(citing Yamada v. Friend, 335 S.W.3d 192, 196–97 (Tex. 2010)). Further, “a claim based on one 

set of facts cannot be spliced or divided into both an HCLC and another type of claim.” Id.

(citing Yamada, 335 S.W.3d at 197; Diversicare, 185 S.W.3d at 854). As a result,

claims premised on facts that could support claims against a physician or health 

care provider for departures from accepted standards of medical care, health care, 

or safety or professional or administrative services directly related to health care 

are HCLCs, regardless of whether the plaintiff alleges the defendant is liable for 

breach of any of those standards.

Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13)). This means that “we need not 

consider whether [Sonnier]’s claim[s] [are] for intentional infliction of emotional distress [and 

assault and battery], as stated in his pleadings,” because “a party cannot avoid Chapter 74’s

requirements and limitations through artful pleading.” Baylor Scott & White, Hillcrest Med. Ctr.

v. Weems, 575 S.W.3d 357, 363 (Tex. 2019) (citing Garland Cmty. Hosp. v. Rose, 156 S.W.3d 

541, 543 (Tex. 2004); Diversicare, 185 S.W.3d at 854). Rather, “[o]ur inquiry focuses on

whether the gravamen of [Sonnier]’s complaint is a ‘claimed departure from accepted standards 

of medical care, or health care, or safety or professional or administrative services directly 
8

related to health care.’” Id. at 364 (quoting TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.001(a)(13)).

IV. Analysis

A. Which Pleadings Should Be Considered?

Here, Sonnier’s only pleading on file when the 120-day deadline expired, and when

Christus moved to dismiss for failure to serve an expert report, was his original petition. In its 

brief on appeal, Christus cites mainly to, and relies on, the allegations in the original petition in 

support of its argument that Sonnier’s claims against it are HCLCs. Sonnier asserts in his brief

that we should not consider the allegations in his original petition since he filed amended 

petitions after Christus moved to dismiss, citing Rule 65 of the Texas Rules of Civil Procedure5

and FKM Partnership, Ltd. v. Board of Regents of University of Houston System, 255 S.W.3d 

619, 633 (Tex. 2008).

In FKM Partnership, the Texas Supreme Court noted that, because under Rule 65,

“amended pleadings and their contents take the place of prior pleadings[,] . . . causes of action 

not contained in amended pleadings are effectively dismissed at the time the amended pleading[s 

are] filed.” FKM P’ship, 255 S.W.3d at 633. That said, FKM P’ship did not involve an alleged

health care liability claimant who sought to avoid the dismissal of his suit by amending his 

petition to remove allegations that indicated he was asserting an HCLC. But the Act provides 

that, “[i]n the event of a conflict between [the Act] and another law, including a rule of 

procedure or evidence or court rule, [the Act] controls to the extent of the conflict.” TEX. CIV.

5Rule 65 provides that, when an amended pleading is filed, the prior pleading “shall no longer be regarded as a part 

of the pleading in the record of the cause,” subject to certain exceptions. TEX. R. CIV. P. 65.
9

PRAC. & REM. CODE ANN. § 74.002(a). For that reason, we look to the Act, and the cases 

construing its provisions, to determine which petition should be considered.

Because Section 74.351 provides that, if an expert report is not timely served, the trial 

court has no discretion to deny a motion to dismiss, the Texas Supreme Court has construed the 

120-day deadline strictly and described it as a “statute-of-limitations-type deadline.” Ogletree v. 

Matthews, 262 S.W.3d 316, 319–20 (Tex. 2007); see Rosemond v. Al-Lahiq, 331 S.W.3d 764, 

767 (Tex. 2011) (per curiam). For that reason, a plaintiff who fails to serve an expert report 

within the deadline may not amend his petition and add new HCLCs against a defendant and 

thereby gain an extension of time to serve the report. Med. Hosp. of Buna Tex., Inc. v. Wheatley, 

287 S.W.3d 286, 292 (Tex. App.—Beaumont 2009, pet. denied); Runcie v. Foley, 274 S.W.3d 

232, 235 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Maxwell v. Seifert, 237 S.W.3d 423, 

426 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). Nor may the plaintiff nonsuit his 

original suit asserting an HCLC after failing to serve an expert report within the 120-day 

deadline, then refile his suit and gain another 120 days to file the report. Davis v. Baker, No. 03-

10-00324-CV, 2010 WL 5463864, at *2–3 (Tex. App.—Austin Dec. 22, 2010, no pet.) (mem. 

op.); White v. Baylor All Saints Med. Ctr., No. 07-08-0023-CV, 2009 WL 1361612, at *1 (Tex.

App.—Amarillo May 13, 2009, pet. denied) (mem. op.).

Likewise, a plaintiff who asserts both an HCLC and a claim under a different theory of 

recovery based on the same underlying facts may not avoid dismissal for failure to file an expert 

report by amending his petition after the 120-day deadline and removing the HCLC. In Yamada, 

the Texas Supreme Court considered whether failure to serve an expert’s report within the 120-
10

day deadline required dismissal of both an HCLC and common-law negligence claims based on 

the same underlying facts. Yamada, 335 S.W.3d at 192. In that case, Sarah Friend collapsed at a

city’s water park, was given emergency aid, and was transported to a hospital where she died

from a heart condition. Yamada had advised the city on safety procedures and the placement of 

defibrillators at the park. Friend’s parents sued Yamada and alleged that he had breached his

duty to exercise ordinary care and his duty to act as an emergency medicine physician in 

providing medical consultive advice and recommendations regarding safety procedures to the 

city. When the Friends did not file an expert report within the 120-day deadline, Yamada filed a 

motion to dismiss, which the trial court denied. Id. at 194. 

On appeal, the court of appeals held that the Friends had asserted claims for both a breach 

of an emergency physician’s standard of care and for ordinary negligence. Id. It then affirmed 

the trial court’s denial of the motion to dismiss as to the claims for ordinary negligence but held 

that the Friends’ failure to file an expert report required dismissal of their claims for medical 

negligence. Id. at 195.

The Texas Supreme Court disagreed. The court first noted that it had previously

“rejected the view that [a plaintiff] could allege a claim for premises liability independent of her 

healthcare liability claim,” since that “‘would open the door to splicing health care liability 

claims into a multitude of other causes of action with standards of care, damages, and procedures 

contrary to the Legislature’s explicit requirements,’. . . [and] ‘such artful pleading and recasting 

of claims is not permitted.’” Id. at 196 (quoting Diversicare, 185 S.W.3d at 854). It then 

explained,
11

Clearly, particular actions or omissions underlying health care liability claims can 

be highlighted and alleged to be breaches of ordinary standards of care. But if the

same underlying facts are allowed to give rise to both types of claims, then the 

[Act] and its procedures and limitations will effectively be negated. Plaintiffs will 

be able to entirely avoid application of the [Act] by carefully choosing the acts 

and omissions on which to base their claims and the language by which they 

assert the claims.

Our prior decisions are to the effect that if the gravamen or essence of a cause of 

action is a health care liability claim, then allowing the claim to be split or spliced 

into a multitude of other causes of action with differing standards of care, 

damages, and procedures would contravene the Legislature’s explicit 

requirements. 

Id. at 197 (citation omitted). For that reason, the court reversed the court of appeals to the extent 

that it affirmed the trial court’s denial of Yamada’s motion to dismiss and remanded the case to 

the trial court with instructions to dismiss all of the Friends’ claims. Id. at 198.

In Yamada, the Texas Supreme Court reversed the lower court’s holding that would have

allowed a plaintiff who failed to timely file an expert report to evade the requirements of Section 

74.351 by dismissing the HCLC but allowing the putative non-HCLC cause of action based on 

the same facts to go forward. Relying on Yamada, our sister courts of appeals have held that a 

plaintiff who fails to serve an expert report within the 120-day deadline may not avoid dismissal 

of her claim against a health care provider by filing an amended petition deleting the HCLC 

claim and pleading putative non-HCLC causes of action based on the same facts. Lindsey v. 

Adler, No. 05-12-00010-CV, 2013 WL 1456633, at *3–4 (Tex. App.—Dallas Apr. 9, 2013, no 

pet.) (mem. op.); Med. Ctr. of Lewisville v. Slayton, 335 S.W.3d 382, 383 (Tex. App.—Fort

Worth 2011, no pet.).
12

Here, like the plaintiffs in Lindsey and Slayton, Sonnier has tried to evade the 

requirements of Section 74.351 by amending his petition after the expiration of the 120-day 

deadline and removing any allegations that Christus violated any standard of care for a hospital. 

Because only considering Sonnier’s amended petition may result in impermissibly allowing the 

claim to be “split or spliced into a multitude of other causes of action,” we must consider his 

original petition to determine whether “the gravamen or essence of a cause of action is a health 

care liability claim.”6 Yamada, 335 S.W.3d at 197. 

B. Sonnier’s Claims Against Christus Must Be Dismissed7

In his original petition, Sonnier alleged (1) that he was admitted as a patient to Christus to 

have a hernia repaired and (2) that, while he was under the care of Christus and its medical staff

and while he was under anesthesia, certain members of Christus’s medical staff engaged in

offensive conduct. As a result, Sonnier asserted claims against Christus for intentional infliction 

of emotional distress, assault, and battery8and for vicarious liability for the conduct of its 

employees under the doctrines of respondeat superior and ratification. This shows that 

Sonnier’s claims against Christus “[are] against a . . . . health care provider and [are] based on 

6Our sister courts of appeals have reached a similar conclusion. See Slayton, 335 S.W.3d 382, 385–86 (considering 

allegations in original petition to find plaintiff filed an HCLC when post-deadline amended petition asserted only a 

premises liability slip-and-fall claim); Lindsey, 2013 WL 1456633, at *1, *4 (holding that, since original petition 

asserted HCLC, post-deadline amended petition asserting only assault and intentional infliction of emotional distress 

based on same facts “reflects the type of claim splitting expressly prohibited by Yamada”).

7Sonnier’s second amended petition joined Alcox, Davis, and Travis as defendants and asserted new claims against 

them. Alcox, Davis, and Travis are not parties to this appeal, and this opinion has no bearing on Sonnier’s claims 

against those defendants.

8Although Sonnier alleges that the conduct of Christus’s staff members was intentional, “the statutory definition of a 

health care liability claim does not distinguish between departures that are intentional or merely negligent.” Weems, 

575 S.W.3d at 366.
13

facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or 

confinement.” Loaisiga, 379 S.W.3d at 256. As a result, Sonnier’s claims against Christus are

presumptively HCLCs. Id.

Even so, this presumption can be rebutted

if the record conclusively shows that (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 healthcare was the 

setting in which the act took place.

Id. at 257. Christus does not argue that the first two rebuttal factors have not been met. Still, the 

record9does not conclusively establish the third factor. In analyzing the record, we keep in mind 

that we should “focus[] on whether the gravamen of [Sonnier]’s complaint is a ‘claimed 

departure from accepted standards of medical care, or health care, or safety or professional or 

administrative services directly related to health care.’” Weems, 575 S.W.3d at 364 (quoting 

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13)).

In his original petition, Sonnier made several allegations that Christus, through its 

employees, departed from the expected standards of health care and safety. Along with alleging

that as a patient he expected Christus to adhere to reasonable standards of care, Sonnier alleged 

that, while he was under anesthesia, Christus’s employees placed a diaper on him “despite the 

fact that it [was] outside the standard of care for most hernia patients to be placed in a diaper 

post-surgery” and that they affixed a colostomy bag to him even though his procedure and 

9Sonnier did not offer any evidence in the trial court, so the record consists only of the parties’ pleadings, the motion 

to dismiss, the responses and replies, and the documents attached to the same.
14

recovery did not require him to wear a colostomy bag. These allegations recognize the 

possibility that, for at least some hernia patients, it is within the standard of care to be placed in a 

diaper post-surgery and that a colostomy bag may be required after some types of hernia 

surgeries. Thus, the gravamen of these complaints alleges a claimed departure from the accepted 

standards of medical care and health care.

In addition, Sonnier’s bare allegation that he had a hernia repair does not inform us of 

what type of hernia he had, and no medical records were produced to establish the nature of his 

hernia. It is not within the general knowledge of a lay person to know whether in the repair of 

Sonnier’s particular hernia, or because of Sonnier’s reaction to the surgery or anesthesia, it

would be within the standard of care to place him in a diaper post-surgery or to affix a colostomy 

bag. For that reason, expert health care testimony would be necessary to establish the

appropriate standard of care regarding Sonnier’s hernia surgery and his post-operative care. The 

Texas Supreme Court has held that, “if expert medical or health care testimony is necessary to 

prove or refute the merits of the claim against a physician or health care provider, the claim is a 

health care liability claim.” Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 182 (Tex. 

2012).

Sonnier’s allegations could also be characterized as departures from accepted standards 

of safety. TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13); see Williams, 371 S.W.3d at 183 

(examining whether the plaintiff’s claims “may be characterized as HCLCs under the definition’s 

‘safety’ prong”). As referenced above, the Texas Supreme Court has construed the term “as the 

condition of being ‘untouched by danger; not exposed to danger; secure from danger, harm[,] or 
15

loss.’” Williams, 371 S.W.3d at 184 (quoting Diversicare, 185 S.W.3d at 855 (quoting Safety, 

BLACK’S LAW DICTIONARY (6th ed. 1990))). While Sonnier was a patient under its care, Christus 

had a duty as a health care provider to provide for his safety. See Ross v. St. Luke’s Episcopal 

Hosp., 462 S.W.3d 496, 505 (Tex. 2015). This would include the duty to protect him from harm 

both while he was in surgery and under its post-operative care. 

Finally, the gravamen of Sonnier’s pleadings was that he was assaulted and suffered 

emotional distress because of the intentional conduct of Christus’s employees while he was a

patient of Christus and incapable of defending himself, for which Christus was liable either 

directly or vicariously. The facts pleaded by Sonnier could support allegations that Christus

departed from accepted standards of safety by failing to protect him from harm while he was 

incapacitated by anesthesia. See, e.g., Diversicare, 185 S.W.3d at 855 (finding that patient’s 

allegations of assault by nurse could be characterized as departure from safety standards by the 

defendant nursing home); Christus Spohn Health Sys. Corp. v. Sanchez, 299 S.W.3d 868, 872, 

874–75 (Tex. App.—Corpus Christi 2009, pet. denied) (finding that the gravamen of patient’s 

allegations of sexual assault by nurse while she was recovering and allegations that hospital was

liable for negligent hiring, supervision, training, and retention of its employees and vicariously

liable for the acts of its employee was that hospital breached standards of safety by failing to 

protect her); Holguin v. Laredo Reg’l Med. Ctr., L.P., 256 S.W.3d 349, 354–55 (Tex. App.—

San Antonio 2008, no pet.) (same); NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 34–35

(Tex. App.—El Paso 2006, no pet.) (finding patient’s allegations of sexual assault by nurse and
16

that mental-health facility was vicariously liable for sexual assault could be characterized as 

departure from safety standards by facility).

10

Even so, “for a safety standards-based claim to be an HCLC there must be a substantive 

nexus between the safety standards allegedly violated and the provision of health care.” Ross, 

462 S.W.3d at 504. In Ross, the Texas Supreme Court set out seven non-exclusive 

considerations that courts are to use in analyzing whether a safety standards claim is 

substantively related to the provision of medical or health care:

1. Did the alleged negligence of the defendant occur in the course of the 

defendant’s performing tasks with the purpose of protecting patients from 

harm;

2. Did the injuries occur in a place where patients might be during the time 

they were receiving care, so that the obligation of the provider to protect 

persons who require special, medical care was implicated;

3. At the time of the injury was the claimant in the process of seeking or 

receiving health care;

4. At the time of the injury was the claimant providing or assisting in 

providing health care;

10Sonnier cites several cases in support of his argument that we should consider his claims as assault, battery, and 

intentional infliction of emotional distress, and not as HCLCs. Yet, those cases are distinguishable. First, almost all

of the cases were decided before Loaisiga, did not apply the Loaisiga presumption of an HCLC, did not analyze the 

factors to rebut the presumption, and were decided before Williams and Ross, in which the Supreme Court examined 

the safety prong of HCLCs. See Drewery v. Adventist Health Sys./Tex., Inc., 344 S.W.3d 498 (Tex. App.—

Texarkana 2011, pet. denied); Nexus Recovery Ctr., Inc. v. Mathis, 336 S.W.3d 360 (Tex. App.—Dallas 2011, no 

pet.); Sanchez, 299 S.W.3d 868; Holguin 256 S.W.3d 349; Buck v. Blum, 130 S.W.3d 285 (Tex. App.—Houston 

[14th Dist.] 2004, no pet.); Jones v. Khorsandi, 148 S.W.3d 201 (Tex. App.—Eastland 2004, pet. denied). In 

addition, in most of those cases, even if the claims against the individual defendants were not considered HCLCs, 

the claims against the institutional defendants were found to be HCLCs. Sanchez, 299 S.W.3d at 872; Holguin 256 

S.W.3d at 354–55; Buck, 130 S.W.3d at 291. Also, Khorsandi involved only an appeal of the dismissal of a claim 

against an individual defendant. Khorsandi, 148 S.W.3d at 202. The one post-Loaisiga case cited by Sonnier was a 

claim by a non-patient asserted against only an individual doctor for alleged sexual assault and intentional infliction 

of emotional distress and did not involve the safety prong of an HCLC. T.C. v. Kayass, 535 S.W.3d 169 (Tex. 

App.—Fort Worth 2017, no pet.).
17

5. Is the alleged negligence based on safety standards arising from 

professional duties owed by the health care provider;

6. If an instrumentality was involved in the defendant’s alleged negligence, 

was it a type used in providing health care; or

7. Did the alleged negligence occur in the course of the defendant’s taking 

action or failing to take action necessary to comply with safety-related 

requirements set for health care providers by governmental or accrediting 

agencies?

Id. at 505. In any given case, only some of these considerations will apply, depending on the 

status of the claimant (i.e., patient, relative of patient, health care worker, other employee, 

visitor, etc.) and the circumstances under which the claim arose. 

This case involves a patient who was under the care of Christus when the injury occurred. 

According to Sonnier’s allegations, the offensive conduct took place while he was under 

anesthesia for a hernia repair, either while he was in surgery or in the recovery room after the 

surgery was complete. So, considerations two and three should be answered in the affirmative. 

As discussed earlier, Christus had a duty to protect Sonnier from harm while he was under its 

care. For that reason, consideration five should be answered in the affirmative. The parties did 

not cite any applicable safety-related requirements set for hospitals or nurses by governmental or 

accrediting agencies, and we have found no applicable requirements for hospitals. But the Texas 

Board of Nursing has promulgated unprofessional conduct rules that “are intended to protect 

clients and the public from incompetent, unethical, or illegal conduct of licensees.” 22 TEX.

ADMIN. CODE § 217.12 (2019) (Tex. Board of Nursing, Unprofessional Conduct). Conduct 

prohibited by these rules includes “[c]ausing or permitting physical, emotional or verbal abuse or 

injury or neglect to the client.” 22 TEX. ADMIN. CODE § 217.12(6)(C). Since Sonnier has 
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alleged that Christus was vicariously liable for its nurses’ conduct, consideration seven should 

also be answered in the affirmative. None of the other considerations are applicable to this case.

Since all of the Ross considerations applicable to this case yield affirmative answers, this 

indicates that the claimed departures from safety standards are substantively related to Christus’s 

provision of health care to Sonnier and that Sonnier’s claims were HCLCs. For that reason, and 

because Sonnier alleged departures from accepted standards of medical care and health care that 

would require expert testimony to establish, we find that the record does not clearly establish that

“the only possible relationship between the alleged offensive contact and the rendition of 

medical services or healthcare was the setting in which the act took place.” Loaisiga, 379 

S.W.3d at 257. As a result, we find that Sonnier has not overcome the presumption that his 

claims against Christus were HCLCs.

Because Sonnier’s claims against Christus were HCLCs, Sonnier was required to serve

an expert report on Christus within 120 days after Christus filed its original answer. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a). Since Sonnier served no expert report on Christus and 

Christus moved to dismiss on that basis, the trial court was required to grant Christus’s motion

and to award it reasonable attorney fees and costs. TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(b). For that reason, we find that the trial court erred when it denied Christus’s motion 

to dismiss. We, therefore, sustain Christus’s issues.

V. Conclusion

For the reasons stated, we reverse the trial court’s order and remand this case to the trial 

court with instructions to dismiss Sonnier’s claims against Christus and to award Christus 
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reasonable attorney fees and costs in accordance with Section 74.351(b) of the Texas Civil 

Practice and Remedies Code.

Scott E. Stevens

Justice

Date Submitted: July 6, 2021

Date Decided: September 3, 2021