In Holguin v. Laredo Reg'l Med. Ctr., L.P., 256 S.W.3d 349 (Tex. App.--San Antonio 2008, no pet.), 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. 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 Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) 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 "expert testimony would be required for the safety claim asserted by Holguin." Id. (citing Diversicare, 185 S.W.3d at 851 ("It 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 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.