## 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 Stevens2 

### ME MORANDUM OPINION
Michael Sonnier sued Christus Good Shepherd Medical Center (Christus) 1 and alleged
that he suffered damages and emotional distress from th e 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 mo tion, and Christus filed this interlocutory appeal. 4 W e 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 claim s against Christus, and r em and th is case to the trial court for further proceedings

. I. Background Sonnier filed his original petition i n April 2020 and named only Christus as a defendant. According to the original petition, Sonnier had been working as a ch arge nurse in Christ us’s

sur ger y d epartment for over ten years when he was admitted to Christus to have a hernia repaired
i n January 2020 . So nnier alleged that , as a patient under Christus’s care, he had the expectation
that Christus would adhere to a reasonable standard of care. A lth oug h the re were no

1 In his s econd amended petition, Sonnier also named Robin T ravis , Kimb e rl y Alcox , and Mo rg an Davis as defendants. Travis, Alcox, and Davis are not parties to this appeal.

2 See T EX
. C IV
. P RAC

. & R EM
. C ODE A NN
. § 74.351(a) (requiring service of an adequate e xpert report within 120 days after the original answer i s fil ed, abs e nt a stat utorily p ermitted extension).

3 See T EX
. C IV
. P RA C

. & R EM
. C ODE A NN
. § 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 exp ert report)

.
4 Se e T E X
. C IV
. P RAC

. & R EM
. C ODE A NN
. § 51.014(a)(9) (Su pp.)

.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] outs ide 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 m essages such as , “R obin w as 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 devi ated f

rom the stan d ard of care b y 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 . W hen
Sonni er replied t hat he was so re 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 , “ T hat’s good. By the way, I did not paint your toenail s
. . . Anna did. I would have pa inted them be tte r than that, but I did put the diaper on you , lol. Take care. I will check on you later.” Davis, a nother
staff member who had cared for Sonnier , also exchanged text messages with him . Davis asked
how he wa s doing and texted, “How’ s the toe polish , ” f ollowe d by a crying emoji. Sonnier alleged that Christ us “was at all times in a position that required it to provide
medical care and treatment and [Sonnier] was at all times physical ly incapable of defending
h imself against the action s committed by” Ch r istus. Sonnier asserted claims against Christus for
intentional infliction of emotional distress for placing him in a diaper, painting his toenails , and4

affixing the colostomy bag, which he alleged “went beyon d any duties or responsibil i ties as a
M edi cal Center .” He also asserte d claims against Christus for assault, battery, and gross negligence based on this same conduct. Along with these direct claims, Sonnier asse rted that Christus was vicariously liable f or the actions of its emplo y ees through th e d octrines of
respon deat s uperior 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 m oved to dismiss his claims
and for attor ney fees and costs. See T E X
. C IV
. P RAC
. & R EM
. C OD E A NN
. § 74.351(b)(2)

. Sonnier then filed his first amended petition and joined Alcox, Davis, and Travis as defendants. The factual allegations in the fi rst amended petition were the same as in the orig i na l petition, exce pt tha t Sonnier removed all (1) refe rences to any standard of care, (2) references to any deviation from any standard of care , and (3) references that the conduct went beyond
Christu s’ s duties and responsibilities as a medical cente r
. S o nn ier asserted cla ims ag ainst 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 em ployees throug h the doctrines of respondeat superior a nd ratification. Sonnier also oppo sed th e motion to dismiss , alleged that his first amended petition had addressed any pleading deficiencies , and argued that the motion
should be denied because h is claim s against Christus were not HCLC s
. Christus filed sp e cial exceptions to the first amended petition objecting that Sonnier had pleaded no facts supporting his theories of respondeat superior and ratification

. As a r es ult,5

Sonnier filed a second amended petition and added certain allegatio n s to address the s p ecial exceptions. After a hearing, the trial court denied Christus’s motion to dismiss

. On appeal, Christus argues that the claims Sonnier a sserted against Chr is tus were HCLCs
and that the Act required Sonnier to serve Christus with a n expert report no lat er than the 120 th day after it filed its original answer . Since Sonnier failed t o comply with this requirement,
Christus contends that the trial court was r eq uired to dismiss Sonnier’s claims against it and to award it reasonable attorney fees and cost s. We agree.
II. Standard of Review
The determination of whether claims come “ withi n the purview of the Act is a question
of law ” that we review de novo

. Watson v . Good Shepherd Med

. C t r . , 456 S.W.3d 585, 587 (Tex. App.

— Texarkana 2015 , pet. denied) (cit ing Te x. 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 resoluti on of an issue on appeal requires interpretation of a

statute. ” Stanford v . Cannon , No. 06

- 1 1

- 00 01 1

- CV , 2011 WL 2518856 , at *2 (Tex. App.

— Texarkana June 23, 2011, pe t. denied ) (mem. op.) (citing Vanderwerff v. Beathard , 239 S.W.3d 406, 408 (Tex. App.

— Dall as 2007, no pet.) )

. III. The Texas Medical Liability Act Under the Act, a claim a nt that files a n H CLC ag ainst a physician or health care provider must serve the physician or health care prov ider (or its attorney) one or more expert reports , and the expert’s c urriculum vitae, no later than the 120 th day after the date the physician ’ s or health
care prov ider ’s original answer is filed. T EX
. C IV
. P RAC
. & R EM
. C OD E A NN
. § 74.351(a)

. If the6

claimant fails to serve a physician or health care provider with an e xp ert report within that time, the trial court, on motion by the physician or h ealth care provider, mus t d ismiss the claim with respect to that physician or health care provider and award the physician or health care provider reasonable attorney fee s and costs. T EX
. C IV
. P RAC
. & R EM
. C OD E A NN
. § 74.351( b )

. The Act defines an HCL C as: a cause of action a gai nst a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or h ea lth care, or safety or professional or administrative services directly related t o health care, which pr o xim ate ly results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.
T EX
. C IV
. P RAC
. & R E M
. C OD E A NN
. § 74 .001(a)(13). Under this definition,
an HCLC has three elements : (1) the defendant is a h ealt h care provider or physician; (2) the claimant’s cause of action is for treatment, lack of treatment, or other claimed departure from accepted s tandards of medical care, health care, or safety or professional or administrativ e services directly rel at ed to health care; and (3) the defendant’s alleged departure fro m accepted standards proximately caused the claimant’s injury or death

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

. , 319 S.W.3d 658, 662 ( Te x. 201 0) (plurality op

. ) )

. The Act defines “health care” as “any act or treatment performed or furnished, or that should have been performed or fur ni shed, by any health care provider for, to, or on behalf of a patient during the p a tient’s medical care, tr ea tmen t, or confinement.” T EX
. C IV
. P RAC
. & R EM
. C OD E A NN
. § 74 .001(a)(10). Although the Act does not define “safety,” the Texas Supreme Court “ha s defined it as ‘ the condition of being

“ untouched by danger; not exposed to danger; secure from danger, h arm or lo ss. ” ’” 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. Rub io , 185 S.W.3d 842, 855 (Tex. 2005)) )

.7

Because of the Act’s br oad language, the Texa s Supreme Court has he ld t hat t he
L egislature’s intent was “for the statute to have expansive application , ” Loaisiga , 379 S.W.3d at
256 , and th at the Act “ creates a rebutt ab le presumption that a patient’s claims against a physician

or health care provider b a sed on facts implica ting the defendant’s conduct during the patient’s care, treatment, or confinement are HCLCs , ” i d

. at 252

. When considering whether a claim is an
HCL C , we “focus[] on the facts underlying the claim, not the form of, or artfully

- phras ed language in, the pl a inti ff’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) ). Furt he r, “ a claim based on one set of facts cannot be spliced or di vided into both an HC LC and another type of clai m. ” 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 aga in st a physician or health care provider for departures from ac cepted standards of m ed ical care, health ca r e, o r saf ety or professional or administrative services directly related to health care are HCLCs, regardless of whether the plain tiff alleges the de fe ndant is liable for breach of any of those standards

. Id

. (c iting T EX
. C IV
. P RAC
. & R EM
. C OD E A NN
. § 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 an d battery], as stated in his pleadings,” because “a party cann ot avoid Chapter 74’s

r equirements and lim i tati ons th rough artful pleading.” Baylor Scott & White, Hillcrest Med

. C tr.
v. Weems , 575 S.W.3d 357 , 363 ( Tex. 2019) (citing Garland Cmty. Hosp. v. R ose , 156 S.W.3d 541, 543 (Tex. 2004); Diversicare , 185 S.W.3d at 854)

. Rather, “[o ]u r inquiry focuses o n whe ther t he gravamen of [Sonnier] ’s complaint is a ‘ claimed departure from accepted standards of medical care, or health care, or safety or professi on al or administrative services directly8

related to health care. ’ ” Id

. a t 364 (quoti ng T EX
. C IV
. P RAC
. & R EM
. C OD E A N N
. § 74 .001(a)(13) ).
IV. Analysis
A. Which Pleadings Should Be Considered? Here, Sonnier ’s only pleading on file when the 120

- day deadline exp ir ed , and when
Christus moved to dismiss for failure to serve an exp ert report , was his o ri ginal 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 cl aims against it are HCLCs. Sonnier asserts in his brief
that we s hould not consider th e allegation s in h is o riginal pe tition since he filed amended petitions after Christus moved to dismiss, citing Rule 65 of the Texas Rule s of Civil Procedure 5
and FKM P artner

ship, Ltd. v. Board of Regents of Univ ersity of Houston Sys tem , 255 S.W.3d 619, 633 ( Tex

. 2008)

. I n FKM P art

ne r ship , the Texas Supreme Court noted that , because under Rule 65 ,

“ amended pleadings and their contents take the place o f prior pleadings [,]

. . . causes of action

not contained in amended pleadings are effectively dismissed at the time t he ame n ded pleading [s are] filed .” FKM P’ship , 255 S.W.3 d at 633

. That said, FKM P’ship did not involve an alleged
health care liab il ity claimant who sought to avoid the dismissal of his suit by amending his petition to remove allegations that indicated he w as asse rting an HC LC

. But t he Act provides
that , “[i ]n the event of a conflict between [the Act] and another law, including a r ul e of procedure or evidence or court rule, [the Act] controls to the extent of the conflict. ” T EX
. C IV
.

5 Rule 65 pro vides 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 ce rtain exception s
. T E X
. R

. C IV
. P. 65

.9

P RAC
. & R EM
. C ODE A NN
. § 74.0 02(a). Fo r that reason , we look to the Act, a nd 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 t o den y a motion to dismiss, the Texas Supreme Court has construed the
120

- day deadline strictly and described it as a “statute

- o f

- limitations

- type deadline.” Ogletree v.
Matthews , 262 S.W.3d 316, 319

– 20 (Tex. 2007) ; see Rosemond v. Al

- Lahiq , 331 S.W.3d 7 6 4 , 76 7 (Tex. 201 1) (per curiam)

. For that reason, a plaintiff who fails to serve an expert report within the deadline may no t amend his petition and add new HCLCs against a defendant and thereby gain an extension of time to serve the report

. Med

. Hosp. o f Bun a Tex

. , In c. v. Wheatley , 287 S.W.3d 286 , 292 ( Tex. App.

— Beaumont 2009 , pet. denied ) ; Runcie v. Foley , 274 S.W.3d 232, 2 35 (Tex. App.

— Houston [1st Dist.] 2008, no pet.) ; Maxwell v. Seifert , 237 S.W.3d 423 , 426 ( Tex. App.

— Houston [14 th Dist.] 2007 , p et

. den ied ) . Nor m ay the plaintiff non suit his orig inal suit asserting an HCLC after failing to serve an expert report within t he 120

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

- 10

- 00324

- CV , 20 10 W L 54 638 64 , at * 2

– 3 (Tex. App.

— Austin Dec. 22, 201 0, no pet.) (mem. op.) ; White v. Baylor All Saints Med. Ctr

. , No. 07

- 08

- 00 23

- CV, 2009 WL 1361612, at *1 (Tex. App.

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

. Likewise, a plaintiff who asserts both a n H C LC a nd a clai m under a different theory of

recove ry based on the same underlying facts may not avoid dismissal for failure t o file an expert report by amending his petition after the 120

- day deadline and removing the HCLC. In Yamada , the Texas Suprem e Co u rt c onsidere d whether failure to serve a n expert ’s report within the 120

-10

day deadline required dismissal of both an HCLC a nd common - law negligence claims based on the same underlying facts. Yamada , 335 S.W. 3d at 192. In that case, Sar ah Friend collapse d at a city’s w ater 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 a lleg ed that h e had breached his duty to exer cise ordinary care and his duty to act as an emergency medicine physicia n in providing medical consultive advice and recommendations regarding safety procedures to the city. When the Friends did not file an e xp e rt r eport wi thin the 120

- day deadline, Yamada f iled a
motion to dismiss , which the trial court denied. Id

. at 194.
O n appeal, the court of appeals held that the Friends had asserted claims for both a breach
of an emer gency physician’s standard of car e a n d fo r ord in ary negligence. Id

. It then affir med the trial court’s denial of the motion to dismiss as to the claim s for ordinary negligence but held
that th e Friends’ failure to file an expert report require d dismissal of their claims for medical negl ige n ce. Id

. a t 1 95.
The Texas Sup reme Court disag reed

. The c ourt first noted that it had previously

“ rejected the vi ew that [a plaintiff ] could allege a claim for premises liability independent of her healthcare liability claim ,” since that “ ‘ would open the door to sp licing health care liability
claims into a multitude of other causes of action with standards of care, d am ages, and procedure s contrary to the Legislature’s explicit requirements , ’ . . . [and] ‘ such artful pleading and recasting
of claims is n ot p ermi tted .’ ” Id

. at 196 (quoting Diversicar e , 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 und er lying facts are allowed to give rise to both types of claims, then the [Act ] and its procedures and limi ta tions will effectively be negated. Plaintiffs will be able to entirely avoid application of the [Act] by carefully choosing the acts an d o m issi ons 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 o r s p lice d in to a multitude of other causes of acti on with differing standards of care, damages, and procedures would c on travene the Legislature’s explicit requirements

. Id

. at 197 (citation omitted)

. For that reason, the c ourt reversed the cour t of appea l s to the extent
that it affi rmed the trial cour t’s denial of Yamada’s motion to dismiss and rem an ded the case to the trial court with instructions to dismiss all of the Friends’ claims. Id

. at 198.
In Yamada , the Texas Supreme Cou rt reversed t he lower co u rt’s holding that would have
allowed a plaintif

f 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 caus e of action based on
the same facts to go f

or ward

. Relyi n g on Yamada , ou r sister c ourts of appeals ha ve held that a plaintiff who fails to serve an ex pert report within the 120

- day deadline may not avoid dismissal of her claim against a health care provi d er by filing an amended petition deleting th e HCLC
claim a nd p leading putative non

- HCLC causes of acti on 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

. C t r . of Lewisville v. Slayton , 335 S.W.3d 382, 3 83 (Tex. App.

— Fort Worth 2011, no pet

. )

.12

Here, like the pl aintiffs in Lindsey and Slayton , Sonnier has tr ied to evade the requirements of Section 74.351 by amending hi s peti tion after the expiration of the 120

- da y deadline and removing any allegations th at Christus vio l ated any standard of car e for a hospital.
B ecause only considering Sonnier’s amended pet it ion 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 p etition to de t ermi ne whether “the grava men or essence of a cause of action is a health care liability c la im.” 6 Yamada , 335 S.W. 3d at 197.
B. Sonnier’s Claims Against Chris tus Must Be Dismissed 7
I n his original petition, Sonnier alleged (1) t hat he was ad mi tted as a p atie nt to Christus to have a hernia repaired a nd (2) that, while he was under the c ar e of Christus and its medical staff
and while he was under an esthesia , certain members of Christus’s medical staff engaged in
offensive conduct . As a result, Son ni er ass e rted claims against Christus for intentional inflic tion of emotional distress, ass au lt, and battery 8 and for vicarious liability for the conduct of its

e mployees u nder the doct rine s of respondeat superior and ratification

. This shows that
Sonnier ’ s claim s aga ins t Christus “ [are] against a

. . . . health care provider and [are] base d on

6 Our sister courts of appeals have re ached a similar con clusion. See Slayton , 335 S.W.3d 382 , 3 85

– 86 ( considering allegations in original petition to find plaintiff filed a n HCLC when post

- deadline amended petit ion a sserted only a p re mis es l iability slip

- and

- fall claim); Lindsey , 2013 WL 145 6633 , at * 1, *4 ( ho ld ing that , since original petition asserted HCLC, post

- deadline amended petition asserting only assault and i ntentional infliction of emotional distress ba sed o n same facts “r e fl ect s th e type of claim splitting expressly prohibited by Y amada ” )

.
7 Sonnier’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 th is ap peal, and this op ini on h as no bearing on Sonnier’s claims against those defe ndants.

8 Although S onnier alleges that the conduct of Christus’s staff members was intentional, “ the statutory definition of a h ealth care liability claim does not distinguis h bet ween departure s t ha t are intentional or merely negligent. ” Weems , 575 S.W.3 d at 366.13

facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or
confin ement. ” Lo aisiga , 379 S.W.3d at 256. As a result, Sonnier’s claim s ag a inst Chris tu s are presumptively HCLC s
. 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 rel ated to medical or health care services other than the alleged offensiv e con tact, (2 ) the alleged offensive contact was not pursuant to actual or im plied 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 whic h the ac t took place

. Id

. at 257

. Christus doe s not argue that th e f ir st two rebuttal factors have not been met

. S till , the
record 9 does not conclusively establish the third fac tor. In analyzing the record , we keep in mind
that we should “ focus [] o n wh ether th e gravamen of [Sonnier] ’s complaint is a ‘ claimed departure fr om accepted standards of medical care, or health care, or safety or professional or
administrative services di rectly related to health care. ’ ” Weems , 575 S.W.3d at 364 (quoting
T EX
. C IV
. P RAC
. & R EM
. C OD E A NN
. § 74 .001(a)(13)).
In his original petition, S on nier made several allegations that Christus, through its employees, departed from the expected stand ard s of health care and safety

. Along with alleging that as a patient he expec t ed C hristus t o adhere to reasonable standards of care , Sonnier alleged

t h a t , while h e was under anesthesia , Christus’s employees placed a diaper on him “despite the fact that it [was] ou tside the standard of care for most hernia p atients to be placed in a diap er post

- su rgery ” and that they a ffix ed a colostomy bag to him even th ou gh his procedure and

9 Sonnier did not offer any evidence in the trial court, so the record consists only of the parties’ pleadings , the moti on to dismiss, the responses and replies, and the d ocuments attac h ed to the same.14

recovery did not require him to wear a colostomy bag. Th ese allegation s recognize the
po ssibility that , for at least some hernia patients , it is within the st a ndar d of ca re to be placed in a diaper post

- surgery and that a colostomy b ag may be required after some types of hernia surgeries

. Thus, the gravamen of these complaint s alleges a claim ed departure from the accepted
standards of medical care and health c a re. In addition, Sonnier ’s bare allegation that he had a hernia repair d oe s not inform us of what type of hernia he had, and no medical records were produced to establish the nature of h is
hernia. It is not within the general knowledge of a lay person to know w hether in the repair of Sonnier’s particular hern ia , or because of S onnier’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 h e alt h care testimony would be necessary to establish the appropri at e standa rd of care regarding Sonnier’s hernia surgery and his post

- operative care

. The
Texas Supreme Court has held tha t , “ if expert medical or health care testimony is necessary to
prove o r r e f

ute the merits of the claim against a physician or health c ar e provide r, the claim is a
health care liabilit y claim

. ” Tex

. W

. Oaks Hosp., LP v. Williams , 371 S.W.3d 171 , 182 ( Tex.
2 012)

. Sonnier ’s allegations could also be characterized as departure s fr o m accepted standards of safety

. T EX
. C IV
. P RAC
. & R EM
. C OD E A NN
. § 74 .0 01(a)(13) ; see Williams , 371 S.W.3d at 183 (examining whether the plaintiff’s claim s “may be characterized as HC LCs under the definition’s

‘ safety ’ prong ” )

. As referenced above, t he T e xa s Supreme Court has construed the term “as the
cond itio n of being ‘unt ouched by danger; not e xposed to danger; secure from danger, harm [,] or15

loss. ’” Williams , 371 S.W.3d at 184 (quoti ng Diversicare , 185 S.W.3d at 855 (quoting Safety , B LACK ’ S L AW D ICTI O NARY (6 th ed. 1990)))

. While Sonnier was a patient unde r i ts care, Christu s 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 pro t ect him f rom harm both while he was in surgery and un der its p ost

- operative care

. Finally, t he gravamen of Sonnier’s pleadings was that he was assaulted and suffered
emotional distress becau se of the intentional conduct of Christus’s employees while he w as a pati ent of Christus and incapable of defending himself , f or which Christus was liable either directly or vicariously. Th e facts pleaded by Sonnier could support allegations that Christus depa rted from accepted standards of safety by failing to prote c t hi m fro m harm while he was incapacitated by anesthesia

. S e e , e.g. , Diversicar e , 185 S.W.3d at 85 5 (finding that patient’s allegations of assault by nurse could be characterized as departure from safety standard s by the
defendant nursing home); Christus Spoh n Hea lth Sys

. Corp. v. Sanchez , 299 S.W.3d 868 , 872,
874

– 7 5 ( Tex. App.

— Corpu s Christi 2009 , pet. denied ) ( finding that the gravamen of pati ent’s allegations of sexual assault by nurse whil e she was recovering and alleg ati ons that hospital was liable f o r ne glig ent h iring, supervision, training, and retent io n of its e mployees and vicar ious ly
liab le for the acts of its employee was that hospital breached standards of safety by failing to protect her); Holguin v. Laredo Reg ’ l Med

. C t r . , L.P

. , 256 S.W.3d 34 9 , 35 4

– 55 ( T ex. App.

— San Antonio 2008 , no pet. ) (sa me ); NCED Men tal 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 and16

that mental

- health facility was vicariously li a ble for s exual assault could be characterized as de parture from safety standards b y facility)

. 10 Even so, “ for a safety standards

- based claim to be an HCLC there must be a substantive
nexus bet ween the safety standards allegedly violated and the provision o f he alt h care. ” Ross , 462 S.W.3d at 504 . In Ros s , the Texas Supreme Court set out seve n non - exclusive
consideration s that courts are to use in analyzing whether a s afety standards claim is
substan tively related to the provision of medical or health care : 1. Di d th e alleged negligence of the defendant occu r in the course of t he defendant’s perf

orming tasks with the purpose of protecting patients from harm;
2. Did the injuries occur in a place where patie nts might be during the time they were receiving care, so tha t th e obligation of the provider to protect pe rs ons who require sp ecial, medical care was implicated ; 3. At the time of the injury was the claimant in the process of seeking or receiving health car e; 4. At the time of the injury was the claimant providing o r a ssis t ing in providing health care;

10 Sonnier cites several cases in support of hi s argument that we should consider his claims a s assault, battery, and intentional infliction of emotional distress , and not as H CLCs. Yet , those cases are distinguishable

. First , almost all o f t he case s were decided before Lo aisiga , did not apply the Lo aisiga presumption of an HCLC , did not analyze the f actors to rebut the presumption, and were decided before Williams and Ross , in whi ch the Supreme C ourt examined the safety p rong of HCLC s. Se e D rewery v. Adventist Health Sys

. /Tex

. , Inc. , 344 S.W.3d 498 ( Tex. App

. — Texarkana 201 1 , pet. denied ) ; Nexus Recovery C t r . , 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 [14 th 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 again st the individual defendants were no t con sidered H CLC s, the c la ims aga inst 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 indiv idual d ef

endant. K

h or sandi , 148 S.W.3d at 202. The one post

- Loaisiga case cited by S onnier was a claim by a non

- patient asserted against only an individual d octor for alleged sexual assault and intentional inflict ion of emotio nal distress and did no t inv olve th e safety pro n g of an H CLC. T.C. v. Kayass , 535 S.W.3d 169 ( Tex. App.

— Fort Wort h 2017 , no pet. )

.17

5. Is the all eg ed negligence base d on safety standar ds arising from pr ofessional duties owed by the health care provider ; 6. If an instrumentality was involved in t he defendant’s alleged negligence, was it a type used in p rov idin g health care; or
7. Did the alleged neglige nc e occur in the cou rse of the defendan t’s taking action or failing to take action necessary to comply with safety

- related requirements set for healt h care providers by governmental or accrediting agencies?
Id

. at 505. In any given case, only some of the se con siderations wi ll apply , depending on the
status of the claimant (i.e., patient, relative of patient, health care worker, other employee , visito r, etc. ) and the circumstances under which the claim aros e
. Th i s case involves a patient who was under t he care of Christus when the injury occ urred. According to Sonnier’s allegations, the offensive conduct took pl ace while he was under
anesthesia for a hernia repair , either while he was in surgery or in the recov er y room afte r the surgery was complete. So , considerations t wo 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 fiv e shou ld be answered in the affirmative

. The pa rties did
not cite a ny applicable safet y - related requirements set for hospitals or nurses by governmental or accrediting agencies , and we have fo und no applicable requirements for hospitals. But the Texa s Bo a rd of N ursing has promulgated unprofe ss ional conduct rules tha t “are intended to protect clients and the public from incompetent, unethic al, or illegal conduct of licensees.” 22 T EX
. A DMIN
. C ODE § 217.12 (2019) (Tex. Board of Nur sing, Unprofessional Cond u ct). C onduct prohibited by these rul es include s “[c]ausing or permitting physical , emotional or verbal abuse or injury or neglect to the client .” 22 T EX
. A DMIN
. C ODE § 217.12( 6)(C). Since S onnier has18

alleged that Christus was vicariously liable for its nurses’ conduct , consideration seven s hould
also be answered in the affirmative. None of the other considerations are applicable to this case.
Since all of the Ross considerations applica ble to this case yield affirmative answers , this
indicates that the claimed departure s from safety stand ar ds are subs tantively re lated to Christus’s
prov ision of health care to Sonnier and that Sonnier’s claims were HCLCs. For that reason, and
because Sonnier a lleged departures from accepted standards of medical car e and health care that
would require e xpert testimony to establish , we f ind 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 set ting in whic h the act took place. ” L oaisiga , 379
S.W.3d at 257. As a result , we find tha t Sonnier has not overcome the presumption that his claims against Chris tus were HCLCs.
Because Sonnier’s clai ms against Christus were HCLCs , Sonnier was required to serv e
an exp ert report on Christus wi thin 120 days after Christus filed it s original answe r. T EX
. C IV
. P RAC
. & R EM
. C OD E A NN
. § 74.351(a)

. Since Sonnier serve d no expert report on Christus a nd
Christus move d to dismiss on that basis, the trial co urt w as requ i red to grant Chri st us’s motion
and to award it reasonable attorney fees and costs

. T EX
. C IV
. P RAC
. & R EM
. C OD E A NN
. § 74.351( b )

. For that reason, we find that the trial cour t erred when it denied Christus’s motion
to dismiss. W e , therefore, sust ain Chr i stus’s issues.
V. C on clus ion For the reasons stated, we reve rse the trial court ’s order and remand this case to the trial
court with instruction s to dismiss Sonnier’s claims against Christu s and to award Christus19

reasonable attorney fees and co sts i n accord a nce wit h Sectio n 74.351(b) of the Texas Civil
Practice an d Remedies Code.

Scott E. Stevens Justice
Date Submitted: July 6, 2021 Date Decided: September 3 , 2021