Dr. Shaad Bidiwala v. Jeffery A. Fieldler ( 2013 )

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
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.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE
121709F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SHAAD BIDIWALA, Appellant On Appeal from the 160th Judicial District
Court, Dallas County, Texas
No. 05-12-01709-CV V. Trial Court Cause No. DC-10-14132.
Opinion delivered by Justice O'Neill.
JEFFERY A. FIELDLER, Appellee 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
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