Randall Jones and Sandi Jones v. Mehdi Khorsandi, M.D.

Citation: Not availableDocket: 11-03-00144-CV

Court: Court of Appeals of Texas; September 9, 2004; Texas; State Appellate Court

Original Court Document: View Document

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Randall and Sandi Jones filed a lawsuit against Dr. Mehdi Khorsandi and North Central Medical Center, alleging sexual assault of Randall while he was a patient. The plaintiffs failed to submit an expert report as required under former TEX.REV.CIV.STAT. art. 4590i. 13.01 (2003), prompting the Medical Center to seek dismissal, which the trial court granted on January 14, 2003, severing the claims against it from those against Dr. Khorsandi. After the plaintiffs indicated their intention to nonsuit but refile later, Dr. Khorsandi moved for dismissal with prejudice, which the trial court granted, along with an award of $20,969 in attorney's fees and costs to Dr. Khorsandi. The plaintiffs appealed, raising 11 issues.

The first six issues focus on the effectiveness of their nonsuit, arguing it terminated the trial court's jurisdiction and should have been recognized before Dr. Khorsandi’s motion to dismiss was filed. They claim the trial court erred in not applying the mailbox rule for their nonsuit notice, failed to rule on their motion, did not adhere to relevant case law, misinterpreted TEX.R.CIV.P. 162 regarding nonsuits, and wrongly granted dismissal with prejudice. The effectiveness of the nonsuit hinges on who filed first under Article 4590i, section 13.01. Evidence indicates that the plaintiffs' attorney notified Dr. Khorsandi's counsel of the nonsuit motion via fax and certified mail on January 30, 2003, the same day it was sent to the court. The appellate court reversed and remanded the case for further proceedings.

The plaintiffs' notice of and motion for nonsuit were received on February 3, 2003, and file-stamped on February 4, 2003. On January 30, one of Dr. Khorsandi's attorneys, Steve Nagle, after receiving a fax from the plaintiffs' counsel, inquired whether the plaintiffs intended to refile, to which Phipps confirmed they would. Nagle subsequently filed Dr. Khorsandi's motion to dismiss with prejudice at the clerk's office between 4:30 and 5:00 p.m. on January 30, with the motion being file-stamped at 4:45 p.m. The plaintiffs argued that their nonsuit should be deemed filed when mailed on January 30, referencing several cases that support the mailbox rule. However, there was no evidence indicating the exact time the plaintiffs' nonsuit was mailed, only that it was postmarked January 30. The affidavits from the plaintiffs' counsel did not specify the mailing time but noted when the fax was sent. Consequently, the plaintiffs did not demonstrate that their nonsuit was filed before Dr. Khorsandi's motion to dismiss. The court ruled that the plaintiffs' nonsuit did not prejudice Dr. Khorsandi’s pending claim for attorney's fees, and thus, the trial court did not err in denying the plaintiffs' special appearance or in its rulings related to the motions. The plaintiffs' first six issues were overruled. In issues seven, eight, and nine, the plaintiffs contended that the trial court erred in dismissing their claims under Article 4590i and in ruling that their intentional tort claims were encompassed by this article, asserting these claims were timely filed and not subject to the expert report requirement.

A dismissal under Article 4590i is reviewed under an abuse of discretion standard unless it involves the applicability or interpretation of the statute, in which case a de novo standard applies. Article 4590i mandates that claimants must provide an expert report to each defendant within 180 days of filing a health care liability claim. The statute defines a 'health care liability claim' as a cause of action against a health care provider for treatment-related issues that result in patient injury or death, encompassing tort or contract claims. To determine if a claim qualifies as a health care liability claim, courts examine the nature of the allegations. Generally, a claim is categorized as such if it pertains to a breach of the standard of care for health care providers or if it is integral to the delivery of medical services. Courts have consistently rejected attempts to reclassify health care liability claims to evade Article 4590i's requirements. However, not all actions by health care providers or all patient injuries fall within the statute’s scope. In the case at hand, the plaintiffs' claims against Dr. Khorsandi for intentional infliction of emotional distress and assault and battery, arising from alleged sexual advances during treatment, were deemed not to be health care liability claims. Thus, the plaintiffs were not obligated to provide an expert report, aligning with precedents where similar claims were found outside the purview of Article 4590i.

In the case of Rubio, a nursing home resident filed a lawsuit against the facility following a sexual assault by another resident. Similarly, in Buck, a patient sued both a hospital and a neurologist for assault and battery after inappropriate conduct during an examination. The appellate court highlighted that the neurologist's actions were not considered part of medical care. The allegations against Dr. Khorsandi, like those in Rubio and Buck, did not pertain to a breach of the standard of care expected from healthcare providers, and the alleged sexual assault was not integral to medical services rendered. Consequently, the plaintiffs' claims against Dr. Khorsandi were deemed outside the health care liability claims defined under Article 4590i, leading to the conclusion that the trial court erred in dismissing the claims with prejudice for lack of an expert report.

The court sustained the plaintiffs' issues regarding the dismissal and did not address their request for additional time to obtain an expert report since the claims fell outside Article 4590i's scope. Additionally, the court reversed the trial court's award of attorney's fees to Dr. Khorsandi, stating that since an expert report was not required, the fees awarded as sanctions for failing to provide one were also erroneous. The trial court's judgment was reversed, and the case was remanded for further proceedings. The document notes that Article 4590i was in effect when the lawsuit was filed, despite its repeal in 2003, and draws a contrast to the case of Williams, where an assault was inseparable from medical services, thus invoking Article 4590i.