The Texas Legislature may have defined what constitutes a Health Care Liability claim, but as is so often true, facts and circumstances are not always as cut-and-dried as a black-letter definition. The Austin Court of Appeals grappled with this sticky issue in Drewery v. Adventist Health System/Texas Inc. In this case, Planitiff Drewery brought suit for an assault and intentional infliction of emotional distress stemming from actions of the defendants that occurred while he was under general anesthesia. Drewery was employed by Adventist Health System/Texas, Inc. He was admitted as a patient for a tonsillectomy and two co-workers were assigned to assist with the surgery. When Drewery awoke from the anesthesia, he discovered that his co-workers had painted his fingernails and toenails with pink nail polish, had written on the bottom of his feet, and had wrapped his thumb with tape. He alleged that their intentional actions subsequently caused a hostile work environment and severe emotional distress. The trial court concluded that Drewery’s claims were Health Care Liability claims and dismissed because he filed no expert reports.
On appeal, a majority of the panel held that the claims were not Health Care Liability Claims. The majority considered the factors set out in the Texas Supreme Court’s opinion in Diversicare General Partner, Inc. v. Rubio. Noting that Drewery had not pleaded damages based upon any physical injury, that the claims were for intentional acts as opposed to negligent acts, and that expert testimony was not required to address the standard of care, the majority held that Drewery was not required to furnish an expert report. The majority’s opinion may be found here.
Justice Melissa Goodwin dissented on the ground that the majority had examined Drewery’s pleaded claims as they were presented in an amended petition. Justice Goodwin argued that Drewery’s original petition more closely asserted claims that would be defined as "Health Care Liability Claims" and that Drewery could not avoid the expert report filing requirement by amending his petition after the time expired for filing such reports. The dissenting opinion may be found here.