Heriberto Sedeno, P. A. v. Genoveva Mijares

Opinion issued December 23, 2010.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00374-CV

———————————

Heriberto Sedeno, P.A. , Appellant

V.

Genoveva

Mijares , Appellee

On Appeal from the 151st District

Court

Harris County, Texas

Trial Court Case No. 0767945

O P I N I O N

Appellant, Heriberto Sedeno, P.A.

(“Sedeno, P.A.”), appeals the trial court’s denial of its motion to dismiss the

claims of appellee, Genoveva Mijares, against Sedeno, P.A. under section 74.351

of the Texas Civil Practice and Remedies Code. [1] In two issues, Sedeno, P.A. argues that it

was entitled to a mandatory dismissal of Mijares’s claims against it because

(1) her claims against Sedeno, P.A. are health care liability claims that

require service of an expert report under section 74.351 and (2) Mijares

failed to timely file an expert report.

We

reverse.

Background

Mijares

filed her original petition on November 5, 2007, against Heriberto Sedeno, M.D.

(“Dr. Sedeno”) and Sedeno, P.A., alleging that Dr. Sedeno sexually assaulted

her when she visited his office to address her problems with high blood

pressure. Mijares pled causes of action

for sexual assault and intentional infliction of emotional distress against Dr.

Sedeno and against Sedeno, P.A., arguing that it was “jointly and severally

liable for the actions of its officer and/or agent” Dr. Sedeno.

Mijares filed a second amended

petition on February 25, 2008, adding a cause of action against both Dr. Sedeno

and Sedeno, P.A. for gross negligence.

She alleged that Sedeno, P.A. “allowed [Dr. Sedeno] to be unsupervised

with female patients despite its knowledge of [Dr. Sedeno’s] sexual

proclivities” and that such gross negligence was the proximate cause of her

injuries. On March 28, 2008, and again

on September 26, 2008, the trial court entered a protective order in the civil

case preventing discovery until the resolution of the criminal charges against

Dr. Sedeno. [2] Trial of the civil case was set for November

2009. However, on October 30, 2009,

Sedeno filed a suggestion of bankruptcy and the trial court proceedings were

stayed. [3] Once the stay was lifted, trial was reset for

May 2010.

On February 8, 2010, the parties

entered into an agreed docket control order that set May 10, 2010, as the date

by which all dispositive motions and pleas must be set for hearing or

submission.

On February 12, 2010, Mijares filed

her third amended petition, which raised for the first time claims of

negligence against Sedeno, P.A. On March

29, 2010, Mijares filed her fourth amended petition, in which she alleged that,

on the date of the assault, an employee of Sedeno, P.A. led Mijares into an

examination room and left her there “alone and isolated” and that Dr. Sedeno

“entered the examining room alone and unsupervised.”

Mijares alleged that:

[Dr. Sedeno then] requested

that [Mijares] pull down her skirt and bend over the examination table so that

he could administer a B12 shot into her hip.

Although confused by his request, [Mijares] followed [Dr. Sedeno’s]

orders.

While [Mijares] was bent

over the examination table, [Dr. Sedeno] pulled his pants down and raped

her. [Dr. Sedeno] subsequently

ejaculated onto [Mijares] and her clothing and quickly left the room.

Mijares’s fourth amended petition

reasserted her causes of action for sexual assault and intentional infliction

of emotional distress against Dr. Sedeno and Sedeno, P.A.

Mijares also alleged negligence

against Sedeno, P.A., claiming that it “owed a duty to [Mijares] to exercise

reasonable care to provide security and safety to [Mijares] while she was

visiting” the office. Her fourth amended

petition stated that Sedeno, P.A. “retained control over the premises, business

and safety operations of the offices,” that it “had knowledge that other

similar occurrences had occurred in the immediate vicinity,” that it knew or

should have known that Dr. Sedeno was “suffering from depression and other

mental and psychiatric conditions that made him mentally or emotionally

incompetent to perform the functions of an unsupervised physicion [ sic ],” that Dr. Sedeno was “taking

numerous sample medications from the clinic without a prescription” and “had a

continuing problem of drug usage that affected his ability to function as a

medical doctor,” that Sedeno, P.A. knew or should have known that Dr. Sedeno

“was not mentally or emotionally competent to safely perform unsupervised

activity in the clinic with females” and that he “would not be able to respect

the person and/or body of [Mijares] while she was isolated in an examining

room,” and that Sedeno, P.A. “owed a duty to [Mijares] not to place her in a

situation that the risk of sexual abuse was heightened.” The petition stated:

The assault described above

occurred directly and proximately as a result of the negligence of [Sedeno,

P.A.] in each and all of the following particulars:

1. In failing to keep proper

safety and security measures on the premises;

2. In failing to have female

clients accompanied by a female staff member at all times;

3. In failing to make the

office secure from sexual predators;

4. In failing to properly

monitor clients/patients while at the office;

5. In failing to provide proper

supervision over its employee [Dr. Sedeno]; and

6. In creating an unsafe

environment that allowed an unstable male to be alone with [Mijares] in an

isolated room.

Mijares alleged a cause of action

for invasion of privacy rights against Dr. Sedeno and Sedeno, P.A. based on Dr.

Sedeno’s actions. Finally, Mijares

alleged a cause of action for gross negligence against Dr. Sedeno and Sedeno,

P.A., again based on Dr. Sedeno’s sexual assault and Sedeno, P.A.’s wrongful

conduct in allowing Dr. Sedeno “to be unsupervised with female clients despite

its knowledge of [Dr. Sedeno’s] sexually deviant proclivities.”

On May 5, 2010, Sedeno, P.A. filed

its motion to dismiss, arguing that Mijares’s claims were health care liability

claims covered by Chapter 74 of the Civil Practice and Remedies Code, that

Mijares had failed to file an expert report as required by section 74.351, and that,

thus, Sedeno, P.A. was entitled to mandatory dismissal of Mijares’s claims

against it. Mijares responded, arguing

in part that her claims were not health care liability claims and that Sedeno,

P.A.’s motion to dismiss was untimely pursuant to an agreed docket control

order filed with the trial court on February 8, 2010, which required all

dispositive motions and pleas to be set for hearing or submission by May 10,

2010. Sedeno, P.A. unsuccessfully

attempted to schedule a hearing on the motion to dismiss for May 10, 2010. The hearing was eventually held on May 12,

2010.

On May 12, 2010, the trial court

signed an order denying Sedeno, P.A.’s motion to dismiss. The order contained the hand-written notation

that the motion was denied “because the motion was not set for hearing in a

timely manner under the agreed DCO.”

On May 14, 2010, Sedeno, P.A. filed

a motion for reconsideration, asking the trial court to reconsider its denial

of the motion to dismiss, arguing that the docket control order does not affect

its right to mandatory dismissal, that there is no deadline for filing a motion

to dismiss pursuant to section 74.351(b), that all of Mijares’s claims were

health care liability claims, and that she failed to timely file an expert

report because the 120-day deadline runs from the filing of the original petition,

not amended petitions.

On

May 17, 2010, the trial court denied Sedeno, P.A.’s motion for

reconsideration. The trial court stated

that it believed the motion for reconsideration should be denied “for at least

two reasons.” The trial court stated its

belief that Sedeno, P.A. waived its right to file the motion to dismiss, or,

alternatively, that “the 120[-day] report period has likely not expired and

thus [Sedeno, P.A.’s] argument is . . . premature.” Specifically, the trial court stated:

[T]he parties in this case have operated under

the working assumption that the issues addressed by the Motion to Dismiss were

raised for the first time no earlier than in [Mijares’s] Third Amended

Petition. The Third Amended Petition was

filed only 93 days ago (approximately) and thus the 120[-day] expert report

deadline has not passed. This is another

reason to deny Sedeno P.A.’s Motion.

Sedeno, P.A. filed its notice of

appeal on May 18, 2010.

Analysis

In

its first issue, Sedeno, P.A. argues that Mijares’s claims against it are

health care liability claims requiring an expert report. In its second issue, Sedeno, P.A. argues that

the trial court erred in denying its motion to dismiss because Mijares failed

to timely file an expert report as required by section 74.351 of the Civil

Practice and Remedies Code.

A. Standard of

Review

We

review a trial court’s decision on a motion to dismiss a suit under Chapter 74

for an abuse of discretion. Am. Transitional Care Ctrs. v. Palacios ,

46 S.W.3d 873, 875 (Tex. 2001) (applying abuse of discretion standard under

predecessor statute). However, to the

extent resolution of this issue requires interpretation of the statute itself

or resolution of another question of law, like whether the statute applies to a

particular claim, we review under a de novo standard. Holguin

v. Laredo Reg’l Med. Ctr., L.P. , 256 S.W.3d 349, 352 (Tex. App.—San Antonio

2008, no pet.) (citing NCED Mental

Health, Inc. v. Kidd , 214 S.W.3d 28, 32 (Tex. App.—El Paso 2006, no pet.)

and Brown v. Villegas , 202 S.W.3d

803, 805 (Tex. App.—San Antonio 2006, no pet.)). Whether a claim is a health care liability

claim is a question of law. Christus Spohn Health Sys. Corp. v. Sanchez ,

299 S.W.3d 868, 873 (Tex. App.—Corpus Christi 2009, pet. denied); Holguin , 256 S.W.3d at 352 .

B. Substantive Law

Section

74.351 of the Civil Practice and Remedies Code requires:

In a health care liability

claim, a claimant shall, not later than the 120th day after the date the

original petition was filed, serve on each party or the party’s attorney one or

more expert reports, with a curriculum vitae of each expert listed in the

report for each physician or health care provider against whom liability is

asserted.

Tex. Civ.

Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2010). If the plaintiff fails to serve an expert

report, the trial court must, on the motion of the affected health care

provider, dismiss the plaintiff’s claim with prejudice and award attorney’s

fees. Id. § 74.351(b). Thus, the

expert report requirements apply to claims that fall within the statutory

definition of “health care liability claim.”

Holguin , 256 S.W.3d at 352

(citing Diversicare Gen. Partner, Inc. v.

Rubio , 185 S.W.3d 842 , 847–48 (Tex. 2005)).

A

health care liability claim is:

[A] cause of action against

a health care provider . . . 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) (Vernon 2005). A health care provider is:

[A]ny person, partnership,

professional association, corporation, facility, or institution duly licensed,

certified, registered, or chartered by the State of Texas to provide health

care. . . .

Id. §

74.001(a)(12).

A cause of action alleges a

departure from accepted standards of medical care or health care if the act or

omission complained of is an inseparable part of the rendition of medical

services. Diversicare , 185 S.W.3d at 848 .

An alleged departure from “accepted standards of medical care or health

care” implicates the professional standards of these respective care

givers. Marks v. St. Luke’s Episcopal Hosp. , 319 S.W.3d 658, 662 (Tex.

2010) (citing Diversicare , 185 S.W.3d

at 850 (observing that “[t]he health care standard applies the ordinary care of

trained and experienced medical professionals to the treatment of patients

entrusted to them”)). An alleged

departure from “standards of . . . safety” is implicated when the unsafe

condition or thing causing the injury to the patient is an inseparable or

integral part of the patient’s care or treatment. Id.

at 664.

A health care liability claim

cannot be recast as another cause of action to avoid the requirements of

Chapter 74. Diversicare , 185 S.W.3d . at

851. Thus we look to the underlying

substance of a claim and not its form. Marks , 319 S.W.3d at 665–66; see also Diversicare , 185 S.W.3d at 851

(holding that “essence” of claim, not form of pleadings, controls determination

of whether cause of action is health care liability claim).

In

Diversicare , the Texas Supreme Court

addressed the question of whether a nursing-home patient’s suit against the

nursing home for her sexual assault by another patient was a health care

liability claim. 185 S.W.3d at 845 . Specifically, the plaintiff in Diversicare alleged that the nursing

home was negligent in failing to provide sufficient staff and supervision to

prevent the assault. Id. at 845 . In holding that the plaintiff’s claims were

health care liability claims, the supreme court observed that the nursing home

provided services to its patients that included supervision of daily

activities, routine examinations, monitoring of patients’ physical and mental

condition, administering medication, and meeting other “fundamental care

needs.” Id. at 849 . It concluded

that rendition of these services, including the monitoring and protection of

the patient, as well as training and staffing policies, were “integral

components of Diversicare’s rendition of health care services.” Id.

at 850 . The supreme court recognized

that “professional decisions on supervising or restraining patients at health

care facilities require medical judgment.”

Id. at 852–53 (citing, e.g., Bell v. Sharp Cabrillo Hosp. , 260 Cal.

Rptr. 886, 896 (Cal Ct. App. 1989) (“[T]he competent selection and review of

medical staff is precisely the type of professional service a hospital is

licensed and expected to provide, for it is in the business of providing

medical care to patients and protecting them from unreasonable risk of harm

while receiving medical treatment. . . .

[T]he competent performance of this responsibility is “inextricably

interwoven” with delivering competent quality medical care to hospital patients.”)).

Subsequently,

other courts of appeals have applied the reasoning in Diversicare to claims arising from a health care provider’s sexual

assault of a patient. In Holguin , the San Antonio Court of Appeals

held that while it “would defy logic to suggest that a sexual assault ‘is an

inseparable part of the rendition of medical care’ or a departure from accepted

standards of health care” in regard to the plaintiff’s suit against the

individual health care provider, the plaintiff’s suit for negligence and

vicarious liability against the hospital was a health care liability claim under

Chapter 74. [4] 256 S.W.3d at 353 , 355–56. The court reasoned that it “need not

determine if Holguin’s claim is a safety claim ‘directly related to health care’”;

rather, it relied on Diversicare in

stating that it “need only determine if the claim is one that is a departure

from accepted standards of safety applicable in the context of health or

medical care.” Id. at 355 . It concluded

that the underlying nature of Holguin’s complaints was that the hospital failed

to protect its patients, that such claims “necessarily implicate acceptable

standards of safety pursuant to the definition of a health care liability

claim,” and that “[e]xpert testimony would be required for the safety claim

asserted by Holguin.” Id. (citing Diversicare , 185 S.W.3d at 851 (“[I]t is not within the common

knowledge of the general public to determine the ability of patients in

weakened conditions to protect themselves, nor whether a potential target of an

attack in a healthcare facility should be better protected and by what

means.”)). The Holguin court also concluded that Holguin’s claims alleged

departures from accepted standards of health care because Holguin alleged that

the hospital failed to properly hire, train, or supervise its staff. Id.

In Christus Spohn , the Corpus Christi Court of Appeals held that the

plaintiff’s negligence claims against the hospital implicated “the standards of

care and safety contemplated by Chapter 74, and directly relate[d] to its rendering

of health care” to the plaintiff. 299

S.W.3d at 874 . The court held:

Decisions regarding the

protection of patients and the supervision and monitoring of staff involve

professional judgment, and “[i]t follows that proper staffing for the care and

protection of patients is related to and part of the rendition of health

care.” Moreover, determining “the

appropriate number, training, and certifications of medical professionals

necessary to care for and protect patients in weakened conditions” requires

health care expertise, which is but another indicator that staffing decisions

are inseparable from the provision of health care. Thus, as here, when a patient is injured

because of an alleged lapse in this professional decision-making, the lawsuit

complaining of that injury is a health care liability claim.

Id. at 875

(citing Diversicare , 185 S.W.3d at

848 , 851 and Holguin , 256 S.W.3d at

356 ) (internal citations omitted). The court concluded that the gravamen of the

plaintiff’s claim against the hospital was that it “breached the standards of

care and safety owed to [the plaintiff] by failing to protect her from the

allegedly assaultive conduct of its nursing staff” and that the complained-of

conduct “was an inseparable part of the care provided to [the plaintiff] as a

patient.” Id. Thus, the court

concluded that the plaintiff’s claims against the hospital were health care

liability claims. [5] Id. ;

see also Kidd , 214 S.W.3d at 31

(holding that claims arising from mental health technician’s alleged sexual

assault of patient were health care liability claims); Oak Park, Inc. v. Harrison , 206 S.W.3d 133 , 135–41 (Tex.

App.—Eastland 2006, no pet.) (holding that claims against treatment center

arising from nurses’ and counselors’ alleged physical assault of patient were

health care liability claims); Buck v.

Blum , 130 S.W.3d 285, 291 (Tex. App.—Houston [14th Dist.] 2004, no pet.)

(holding patient’s claims against owners of medical clinic for negligence

arising from alleged assault and battery by neurologist were health care

liability claims because claims alleged that medical clinic “violated the

standards of care related to supervision of a medical doctor performing a

medical examination and the institution of procedures governing medical examinations”).

C. Health Care

Liability Claims

Here,

Sedeno, P.A. argues that beginning with her second amended petition, filed

February 25, 2008, Mijares alleged breaches of the standard of care by Sedeno,

P.A. in every pleading, including her fourth amended petition, which was the

“live” pleading at the time Sedeno, P.A. moved to dismiss the claims against it.

In her second amended petition,

Mijares alleged gross negligence against Sedeno, P.A. for allowing Dr. Sedeno

“to be unsupervised with female patients despite its knowledge of [Dr.

Sedeno’s] sexual proclivities.” In her

third amended petition, Mijares alleged negligence against Sedeno, P.A. for its

own actions, arguing, among other things, that it was negligent in failing to

keep proper safety and security measures on the premises, in failing to have

female patients accompanied by a female staff member, in failing to properly

monitor patients while at the office, and in failing to provide proper

supervision over Dr. Sedeno.

We

conclude that, as in Holguin and Christus Spohn , the gravamen of these

negligence claims against Sedeno, P.A. is that it breached the standards of

care and safety owed to Mijares by failing to protect her from the allegedly

assaultive conduct of Dr. Sedeno. See Chistus Spohn , 299 S.W.3d at 875 ; Holguin , 256 S.W.3d at 355–56. These

claims implicate Sedeno, P.A.’s professional decisions regarding the monitoring

and protection of the patient and its training and staffing policies and thus

are “integral components” of Sedeno, P.A.’s rendition of health care

services. See Diversicare , 185 S.W.3d at 850 .

Mijares argues that Sedeno, P.A. is not a healthcare

institution and should not be afforded the protections granted to healthcare

institutions. She argues that Sedeno,

P.A., “as a lease holder of the premises, did not make the same judgment about

the care, treatment and protections of individual patients as a health care

institution” and that “if any judgments as to health care were involved they

would have been made by Dr. Sedeno.”

However, Mijares alleged separate negligence and gross negligence claims

against Sedeno, P.A. for its own failures distinct from the alleged sexual

assault committed by Dr. Sedeno that do implicate a professional association’s

judgments regarding care, treatment, and protection of an individual

patient.

We acknowledge that Sedeno, P.A. does not meet the definition

of a health care institution. See Tex.

Civ. Prac. & Rem. Code Ann . § 74.001(11) (providing that health care

institution includes, among others, hospitals and nursing homes, but not

listing doctor’s offices or outpatient medical clinics). However, it is clearly a health care

provider. See id. § 74.001(12) (providing that “health care provider”

includes, among others, any professional association or health care

institution). Section 74.351 requires

service of an expert report on “each physician or health care provider against

whom liability is asserted,” and does not make a distinction between health

care providers generally and a health care institution. See id.

§ 74.351(a). Thus, the provisions

of section 74.351 apply to Sedeno, P.A., as does case law construing that

section. Therefore, we conclude that Mijares’s negligence claims are health care

liability claims. [6] See Diversicare ,

185 S.W.3d at 850 .

We

sustain Sedeno, P.A.’s first issue.

D. Timely Expert

Report

In

its second issue, Sedeno, P.A. argues that the trial court erred in denying its

motion to dismiss because Mijares failed to timely file an expert report, and

thus it was entitled to the mandatory dismissal and attorneys fees provided for

in section 74.351(b).

Section

74.351(b) provides:

If, as to a defendant

physician or health care provider, an expert report has not been served within

the period specified by Subsection (a), the court, on the motion of the

affected physician or health care provider, shall . . . enter an order that:

(1) awards to the affected

physician or health care provider reasonable attorney’s fees and costs of court

incurred by the physician or health care provider; and

(2) dismisses the claim with

respect to the physician or health care provider with prejudice to the refiling

of the claim.

Tex. Civ.

Prac. & Rem. Code Ann. § 74.351(b).

“If a claimant fails to serve the report with the curriculum vitae on or

before the statutory deadline, and the affected physician or health care

provider files a motion to dismiss the claim under section 74.351(b), the court

has no alternative but to dismiss the claim with prejudice.” Herrera

v. Seton Nw. Hosp. , 212 S.W.3d 452, 457 (Tex. App.—Austin 2006, no pet.).

Mijares argues that even if we construe

her claims as health care liability claims, Sedeno P.A.’s motion to dismiss was

premature because the 120-day deadline had not yet passed. Mijares argues that the deadline begins to

run from the filing of the petition that first alleges a health care liability

claim, while Sedeno, P.A. argues that the 120-day filing deadline runs from the

filing of the original petition. Because

we have already determined that Mijares’s second amended petition, which was

filed February 25, 2008, and alleged gross negligence against Sedeno, P.A. for

allowing Dr. Sedeno to treat her while he was unsupervised, constituted a

health care liability claim, we need not address this argument. [7] The 120-day deadline had passed regardless of

whether we calculate the deadline from the filing of Mijares’s original

petition or her second amended petition.

Mijares

also argues that Sedeno, P.A. “failed to preserve any error for review by not

pleading the affirmative defense of Chapter 74.” However, the authorities Mijares cited in her

brief do not support her contention that the dismissal provision in section

74.351 is an affirmative defense that must be pleaded by the defendant. See

Tsai v. Wells , 725 S.W.2d 271, 275 (Tex. App.—Corpus Christi 1986, writ

ref’d n.r.e.) (holding that damage limit in predecessor to chapter 74 was

affirmative defense and that defendant’s failure to plead statutory damage

limit on judgment against physician operated as waiver to complain on appeal); Webster v. Johnson , 737 S.W.2d 884, 889

(Tex. App.—Houston [1st Dist.] 1987, writ denied) (holding same). Nor could we find any authority suggesting

that Sedeno, P.A. was required to file any additional pleadings to invoke its

right to file a motion to dismiss pursuant to section 74.351.

Mijares also argues that Sedeno,

P.A.’s motion to dismiss was untimely because Sedeno, P.A. “waited 912 days

after it was served with [Mijares’s] Original Petition” to file its motion to

dismiss. Chapter 74 provides no deadline

for filing a motion to dismiss pursuant to section 74.351, and the Texas

Supreme Court has specifically held that there is no statutory deadline to file

a motion to dismiss for failure to timely file an expert report. See

Jernigan v. Langley , 111 S.W.3d 153, 156 (Tex. 2003) (holding, under

predecessor to current statute, that defendant who waited almost two years to

move to dismiss case while participating in discovery and filing motion for

summary judgment and other pleadings did not waive his right to move for

dismissal for failure to comply with expert report requirement); see also Poland v. Grigore , 249 S.W.3d

607 , 616 & n.7 (Tex. App. — Houston [1st

Dist.] 2008, no pet.) (holding “[S]ection 74.351(b) — which establishes the consequences for failure

[to timely serve] an expert report — contains no deadline by which a defendant physician or health care

provider may complain”) (citing Empowerment

Options, Inc. v. Easley , No. 09-06-148-CV, 2006 WL 3239527 , at *4 (Tex.

App.—Beaumont Nov. 9, 2006, pet. denied) (mem. op.) (noting in dictum that “Chapter

74 imposes no deadline for filing a motion to dismiss” for failure to timely

serve an expert report) and Packard v.

Miller , No. 07-06-0454-CV, 2007 WL 1662279 , at *2 (Tex. App.—Amarillo May

31, 2007, pet. denied) (mem. op.) (holding that defendant who waited almost 18

months to move to dismiss for failure to timely serve expert report was not

equitably estopped from seeking dismissal because “[t]he Legislature did not

include an explicit deadline for the filing of a motion to dismiss” under

section 74.351)).

Finally, Mijares argues that

Sedeno, P.A.’s motion to dismiss was untimely pursuant to the agreed docket control

order that required all dispositive motions to be set for hearing or submission

by May 10, 2010. Sedeno, P.A. argues

that on May 7, 2010, the trial court tentatively set its motion for a hearing

on May 10, 2010, and thus it was timely under the docket control order,

regardless of Mijares’s refusal to appear on May 10, 2010 — Mijares cited Sedeno, P.A.’s failure to comply

with notice provisions — that

postponed the hearing to May 12, 2010.

Civil Practice and Remedies Code section

74.002(a) provides, “In the event of a conflict between this chapter and

another law, including a rule of procedure or evidence or court rule, this

chapter controls to the extent of the conflict.” Tex.

Civ. Prac. & Rem. Code Ann.

§ 74.002(a) (Vernon 2005). Furthermore,

in Spectrum Healthcare Resources, Inc. v.

McDaniel , the Texas Supreme Court held that a generic docket control order agreed

to by the parties, which made no reference to the deadlines imposed by Chapter

74, did not establish the intent of the parties to extend the statutory expert

report deadline. 306 S.W.3d 249 , 253–54

(Tex. 2010). The supreme court reasoned

that the “section 74.351 threshold expert report has a unique purpose separate

and apart from the procedural rules relating to discovery and typical expert

reports” and that expert reports filed pursuant to Chapter 74 cannot be

categorized as either a testifying or consulting-only retained expert under the

Rules of Civil Procedure. Id. at 253–54. Thus, the court concluded that for an agreed

docket control order to extend the deadline to file an expert report, the order

must explicitly indicate the parties’ intention to extend the deadline and

reference that specific deadline. Id. at 254 .

Admittedly, this case is different

from Spectrum Healthcare in that

Mijares is arguing that the docket control order imposed a deadline for filing

a motion to dismiss pursuant to section 74.351.

However, the reasoning in Spectrum

Health still applies because the mandatory dismissal provision in section

74.351(b) serves a different function from other grounds for dismissal

generally available under the Rules of Civil Procedure, just as the expert

report requirement of section 74.351(a) serves a different function from other

types of expert designations. Here, the

parties made no indication that they intended for the agreed docket control

order to affect their rights under Chapter 74.

Thus, Sedeno, P.A.’s right to mandatory dismissal in the event that

Mijares failed to timely file an expert report was not affected by the agreed

docket control order. See Tex.

Civ. Prac. & Rem. Code § 74.002(a); Spectrum Healthcare , 306

S.W.3d at 253–54.

We

conclude that the trial court erred in denying Sedeno, P.A.’s motion to dismiss

the negligence and gross negligence claims against it because it showed that

Mijares failed to timely serve an expert report on these health care liability

claims. See Herrera , 212 S.W.3d at 457 (“If a claimant fails to serve the

report with the curriculum vitae on or before the statutory deadline, and the

affected physician or health care provider files a motion to dismiss the claim

under section 74.351(b), the court has no alternative but to dismiss the claim

with prejudice.”). The trial court

properly denied dismissal of Mijares’s intentional tort and exemplary damages

claims against Sedeno, P.A. based upon its vicarious liability for Dr. Sedeno’s

sexual assault and intentional infliction of emotional distress.

We

sustain Sedeno, P.A.’s second issue.

Conclusion

We

reverse the order of the trial court and render judgment dismissing Mijares’s

negligence and gross negligence claims against Sedeno, P.A. All other claims against Dr. Sedeno and

Sedeno, P.A. remain pending in the trial court.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Higley, and Bland.

[1] Chapter 74 of the Civil Practice and

Remedies Code governs medical liability.

See Tex. Civ. Prac. & Rem. Code Ann . §§ 74.001–74.507 (Vernon

2005 & Supp. 2010). Section 74.351

requires a plaintiff asserting a health care liability claim to file an expert report

for each health care provider against whom liability is asserted within 120

days of filing an original petition. Id. § 74.351(a) (Vernon Supp.

2010). If the plaintiff fails to file

such an expert report, the court is required to dismiss the suit and grant

attorney’s fees on the defendant’s motion.

Id. § 74.351(b).

[2] Dr. Sedeno was eventually sentenced to

community supervision for indecent exposure regarding his conduct toward

Mijares.

[3] The suggestion of bankruptcy stated

that “Heriberto Sedeno, Heriberto Sedeno, M.D. also known as Heriberto Sedeno,

P.A. (“Debtor”)” filed for Chapter 7 bankruptcy in the Southern District of

Texas.

[4] In Holguin ,

the plaintiff sued Morales, the allegedly tortious employee of Laredo Regional

Medical Center, for his negligent failure to “control his sexual urges” and

asserted claims against Laredo Regional for vicarious liability and for its own

negligence in failing to protect Holguin from Morales. Holguin

v. Laredo Reg’l Med. Ctr., L.P. , 256 S.W.3d 349, 353 (Tex. App.—San Antonio

2008, no pet.). The San Antonio Court of

Appeals held that the vicarious liability claim, based on Morales’s negligence,

was “nothing more than a recasting of” the direct negligence claim against Laredo

Regional. Id. at 354 . Holguin did not

sue Morales for the intentional tort of sexual assault and assert vicarious

liability against Laredo Regional arising out of that claim.

[5] In Christus

Spohn , Sanchez also sued two employees who allegedly committed the sexual

assault for assault and intentional infliction of emotional distress. Christus

Spohn Health Sys. Corp. v. Sanchez , 299 S.W.3d 868, 872 (Tex. App.—Corpus

Christi 2009, pet. denied). The Corpus

Christi Court of Appeals held that the underlying nature of these claims “rests

squarely in these intentional actions that had ‘nothing to do with a health

care provider’s lapse in professional judgment or failure to protect a patient

due to an absence of supervision or monitoring.’” Id.

at 874 (quoting Holguin , 256 S.W.3d

at 354 ). Sanchez did not claim that the

hospital, through its employees, committed sexual assault. See id.

at 875 (“However, unlike appellees’ claims against [the employees], appellees’

claims against Spohn-Shoreline are based on

negligence . . . .”).

[6] Mijares also argues that Sedeno, P.A.

is liable for Dr. Sedeno’s acts because Dr. Sedeno is the sole officer of

Sedeno, P.A. However, in the claims at

issue here — her

negligence and gross negligence claims against Sedeno, P.A. — Mijares did not allege

that Sedeno, P.A., through its employee, committed the sexual assault. Rather, she alleged claims against Sedeno,

P.A. for its own wrongful, negligent acts separate from those of Dr.

Sedeno. Thus, the underlying nature of

Mijares’s complaint against Sedeno, P.A. in her negligence claims is that it

failed to properly exercise medical judgment to protect its patients and

provide proper supervision of its employees.

See Christus Spohn , 299 S.W.3d

at 875 (holding that “despite the recasting of their claim as common law

vicarious liability, the underlying nature of appellees’ claim is, nonetheless,

that ‘through lapses in professional judgment and treatment [Spohn-Shoreline]

negligently allowed the sexual assault to occur’” and finding that such claims

were still properly considered health care liability claims requiring expert

report).

[7] Mijares argues in her appellate brief

that the potential health care liability claims were raised for the first time

in her third amended petition and that Sedeno, P.A.’s motion to dismiss

specifically referenced the allegations in the fourth amended petition, and

thus, “the deadline to serve a report, at its earliest, was June 12,

2010.” We disagree. It is well-settled that a plaintiff cannot

circumvent the expert report requireme nt

by artfully pleading a health care liability claim based on negligence as some

other cause of action. Diversicare Gen. Partner, Inc. v. Rubio ,

185 S.W.3d 842, 851 (Tex. 2005); Christus

Spohn , 299 S.W.3d at 875 . Mijares’s

claim for gross negligence against Sedeno, P.A. implicated its professional decisions regarding the

monitoring and protection of the patient and its staffing policies, just as her

general negligence claims did, and thus implicated an “integral component” of

Sedeno, P.A.’s rendition of health care services. See

Diversicare , 185 S.W.3d at 850 .