AFFIRM; and Opinion Filed July 31, 2013.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-12-01709-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-10-14132

MEMORANDUM OPINION

Before Justices O’Neill, FitzGerald, and Lang-Miers 

Opinion by Justice O’Neill

Appellant Shaad Bidiwala, 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 appellee 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 filed 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 assault. Bidiwala filed a 

motion to dismiss under the Act alleging Fielder’s assault and battery claim was a HCLC and 
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Fielder did not file an expert report as required by the Act. The trial court denied Bidiwala’s 

motion.

The Act requires a person who asserts a HCLC to file an expert report within 120 days of 

filing the original petition. TEX. CIV. PRAC. & REM. CODE ANN. § 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. TEX. CIV. PRAC. & REM. CODE ANN.

§ 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 upon 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 hospital failed to institute proper safety protocols and monitoring devices. The Court 

concluded Williams’ claim was a HCLC because it involved deviation from safety standards,

even 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. That court 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 

Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012), decided after Williams. In that case, the 
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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 

conduct 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 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, 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. Bidiwala suggests Loaisiga is inapplicable because the

Court was addressing whether a patient’s complaint was a HCLC under the “provision of health 

care services” prong, not the “safety” prong, which requires no “direct” relationship to 

healthcare. We do not read Loaisiga so no narrowly. Rather, Loaisiga stands for the proposition 

that an assault claim wholly separable 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. TEX. CIV. PRAC. & REM.

CODE ANN. § 74.001 (West 2011). In making this determination, we focus on the essence of the 

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 

against 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 
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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 Bidiwala’s assertion that Fielder’s “judicial

admission” that Bidiwala himself “could” be Fielder’s employer in his own right is “fatal” to his 

claim. To show such a judicial admission 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 admitted 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 the statements relied 

upon do not meet the requirements of a judicial admission. See Mapco, Inc. v. Carter, 817 

S.W.2d 686, 687 (Tex. 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 might 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 motion 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
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Court of Appeals

S

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 31st day of July, 2013.

/Michael J. O'Neill/

MICHAEL J. O'NEILL

JUSTICE