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Drewery v. Adventist Health System/Texas Inc.

Appellant was an employee of the a hospital as a surgical technician. He was admitted as a patient at the hospital to undergo a tonsillectomy. The appellant alleges that, while he was under anesthesia, two nurses painted his fingernails and toenails with pink nail polish, wrapped his thumb with tape and wrote "Barb was here" and "Kris was here" on the bottoms of his feet. The appellant brought suit under several non health-care liability causes of action against the nurses, the hospital and other hospital employees. The appellant did not serve any employee with an expert report. The trial court dismissed all of appellant's claims with prejudice. Appellant's claims are not health care liability claims impermissibly "recast" as intentional torts. The trial court's dismissal is reversed and the cause is remanded. Austin Court of Appeals, No. 03-10-00334-CV, 05-20-2011.

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OPINION

Appellant Chauncey Drewery filed suit against appellees Barbara Wiedebusch, R.N., and Kristien Williams, R.N., alleging causes of action for assault and intentional infliction of emotional distress. He alleged the same causes of action against Wiedebusch and Williams’ colleagues, appellees Betty S. Thorp, R.N., and Warren Voegele, under a theory of “aider and encourager” liability, and against their employer, Adventist Health System/Texas, Inc. and Metroplex Health System d/b/a Metroplex Hospital (collectively, “the Hospital”) under a theory of vicarious liability. All defendants filed motions to dismiss Drewery’s claims against them under chapter 74 of the civil practice and remedies code, asserting that they were health care liability claims in support of which Drewery had failed to file a medical expert report. The trial court granted the defendants’ motions and dismissed all of Drewery’s claims with prejudice. Drewery appeals, arguing that the trial court erred in characterizing his assault and intentional infliction of emotional distress claims as health care liability claims subject to the expert-report requirement. We will reverse the trial court’s order and remand the cause for further proceedings.

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