AFFIRM; and Opinion Filed July 31, 2013. 

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In The Court of Appeals Fifth District of Texas at Dallas No. 05
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- 01709
- CV SHAAD BIDIWALA , MD, Appellant V. JEFFERY A. FIELDLER , Appellee
On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC
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- 14132 MEMORANDUM OPINION Before Justices O’ Neill, FitzGerald, and L ang - Miers Opinion by Justice O’ Neill Appellant Shaad Bid i wala, M.D. appeals an order denying his motion to dismiss under the Texas Medical Liability Act. In a single point of error, appellant contends the trial court erred in concluding appe llee Jeffery A. Fielder’s claim against him for assault and battery was not a Health Care Liability Claim (HCLC) . For the following reasons, we affirm the trial court’s judgment. Defendant is a neurosurgeon with privileges at the Baylor University Medical Center. Plaintiff, a physicist , worked with Bidiwala at the Baylor Radiosurgery Center. Fielder fil ed suit against Bidiwala for an assault and battery involving an allegedly offensive touching that occurred in the workplace. Fielder also sued Baylor for sexual harassment and retaliatory discharge claiming Baylor terminated him for reporting the alleged as sault. Bidiwala filed a motion to dismiss under the Act alleging Fielder’s assault and battery claim was a HCLC and– 2

– Fielder did not file an expert report as required by the Act. The trial court denied Bidiwala’s motion. The A ct requires a person wh o asserts a HCLC to file an expert report within 120 days of filing the original petition. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 74.351(a) (West 2011 ). The Act defines a HCLC as including a claim against a health care provider based upon an alleged departure from accepted standards of safety

. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 74.001(a)(13) (West 2011 ). Whether a claim fits within this definition is a question of law , which we review de novo. See Saleh v. Hollinger , 335 S.W.3d 368, 372 (Tex. App.

— Dallas 2011, pet. denied); Lee v. Boothe , 235 S.W.3d 448, 451 (Tex. App.

— Dallas 2007, pet. denied). In his sole issue, Bidiwala asserts the trial court erred in concluding Fielder’s assault and battery claim was not a HCLC because the claim was based upo n an alleged departure from accepted “ standards of safety , ” even though the claim had nothing to do with healthcare. He relies on the Texas Supreme Court’s opinion in Texas W. Oaks Hosp. v. Williams , 371 S.W.3d 171, 185

- 86 (Tex. 2012). In that case, Williams, an employee of the defendant mental hospital , sued the mental hospital for injuries he sustained when assaulted by a mental patient. Williams alleged the h ospita l failed to institute proper safety protocols and monitoring devices. The Court

con cluded Williams ’ claim was a HCLC because it involved deviation fro m safety standards ,
eve n though the plaintiff’s claims were not “directly” related to health care. See id. at 179, 184.
In Good Shepherd Med. Ctr.

- Linen v. Twilley , ___ S.W.3d ___, 2013 WL 772136 (Tex. App.

— Texarkana 2013 , pet. filed) , the Texarkana Court of Appeals held that Williams did not hold that a “safety claim ” entirely unrelated to healthcare was a HCLC. Th at c ourt concluded that for a “safety claim” to come under the Act, there must be at least an indirect relationship to healthcare. Id. at *3. It relied, at least in part, on the Texas Supreme Court’s opinion in
Lo aisiga v. Cerda , 379 S.W.3d 248, 256 (Tex. 2012), decided after Williams . In that case, the– 3

– Court indicated the Legislature could not have intended for the expert report requirement to apply to claims that were wholly separable from the rendition of “medical care, or health care, or safety or professional or administrative services directly related to health care , ” even though the

c onduct occurred in a health care context. Id . at 257. The Court specifically stated that a claim against a medical or heath care provider for assault is not an HCLC if the record shows conclusively that (1) there is no complaint about an y 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, 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 2 57. Bidiwala suggests Lo ai siga is inapplicable because the Court was addressing whether a patient’s complaint was a HCLC under the “ provisio n of health care services ” prong, not the “safety” prong , which requires no “direct” relationship to healthcare. We do not read Lo aisiga so no narrowly. Rather, Loaisiga stands for the proposition th at an assault claim wholly sepa rable from the provision of safety standards is not a health care liability claim even though the conduct occurred in a medical facility. Regardless, we need not decide in this case whether a safety claim wholly unrelated to healthcare is a HCLC. Under the express terms of the Act, to be a HCLC, the cause of action must be “for” a claimed departure from “accepted standards” of safety. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 74.001 (West 2011 ). In making this determination, w e focus on the essence of th e claim and consider the alleged wrongful conduct as well as the duties allegedly breached. See Diversicare Gen. Partner, Inc. v. Rubio , 185 S.W.3d 842, 851 (Tex. 2005 ). Fielder ’s claim again st Bidiwala is for Bidiwala’s own conduct that Fielder alleges constituted an assault and battery. This claim does not depend upon the existence, adequacy, or implementation of any– 4

– safety standards. Reviewing the nature of the wrongful conduct and the duties allegedly breached, we conclude the claim is not “for” any departure from safety standards. In reaching this conclusion, we reject Bi diwala’s assertion that Fielder ’s “judicial admi ssion ” that Bidiwala himself “could ” be Fielder’s employer in his own right is “fatal” to his claim. To show such a judicial admissi on was made, Bidiwala relies on a letter brief Fielder filed in response to a motion for summary judgment regarding whether Fielder could sue Bidiwala for a hostile work environment (a claim he since abandoned). According to Bidiwala , because Fiedler admit ted Bidiwala “could” be his employer, it follows that Bidiwala would then have an affirmative duty to provide a safe working environment, and Fielder’s claim would then implicate a departure from safety standards. At the same time, Bidiwala expressly refuses to concede that he is or even could be Fielder’s employer. Initially , we note t he statements relied upon do not meet the requirements of a judicial admission. See Mapco, Inc. v. Carter , 817 S.W.2d 686, 687 (T ex. 1991) (judicial admission must be deliberate, clear, and unequivocal). Furthermore, regardless of whether Bidiwala “ could ” be Fielder’s employer does not establish Fielder’ s claim was “for” a departure from safety standards or any duties Bidiwala migh t have as an employer. Indeed, an employer would be liable for an intentional assault irrespective of the existence of or departure from any “safety” standards. Because Fielder’s claim was not a HCLC, the trial court did not err in denying Bidiwala’s mot ion to dismiss. We resolve the sole issue against Bidiwala and affirm the trial court’s judgment.

121709F.P05 /Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE– 5

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SHAAD BIDIWALA, Appellant
No. 05

- 12

- 01709

- CV V. JEFFERY A. FIELDLER, Appellee On Appeal from the 160th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC

- 10

- 14132. Opinion delivered by Justice O'Neill. Justices FitzGerald and Lang

- Miers participating. In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee JEFFERY A. FIELDLER recover his costs of this appeal from appellant SHAAD BIDIWALA.
Judgment entered this 31 st day of July, 2013.

/Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE