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Diversicare General Partner10/14/2005
spital neuro-psychiatric ward to engage in sexual relations with other patients is a claim for medical malpractice and not for failure to use ordinary care). But see Sumblin v. Craven County Hosp. Corp., 357 S.E.2d 376, 378--79 (N.C. Ct. App. 1987) (holding that the alleged failure to protect a hospital patient from assaults by another patient does not involve the failure to render professional nursing or medical services).
We do not declare that health care providers have no duty to prevent assaults between inpatients. However, we recognize that judgments concerning health and medical care, including protection of patients, are made by health care professionals as part of the care and treatment of the patients admitted to their facilities. The Legislature has determined that alleged breaches of these standards are health care liability claims. See former TEX. REV. CIV. STAT. art. 4590i, ยง 1.03(a)(4).
In support of her argument that the MLIIA does not govern her claims against Diversicare, Rubio relies on several cases decided by courts of appeals holding that sexual assaults in health care facilities perpetrated by one patient against another are claims for ordinary negligence, not health care liability claims under the MLIIA. See Healthcare Ctrs. of Tex., Inc. v. Rigby, 97 S.W.3d 610, 616--17 (Tex. App.-Houston [14th Dist.] 2002, pet. denied); Zuniga v. Healthcare San Antonio, Inc., 94 S.W.3d 778, 780 (Tex. App.-San Antonio 2002, no pet.); Bush, 39 S.W.3d at 670; Sisters of Charity of the Incarnate Word, Houston, Tex. v. Gobert, 992 S.W.2d 25, 27 (Tex. App.-Houston [1st Dist.] 1997, no pet.). Other Texas courts of appeals have reached the opposite result in analogous situations. See, e.g., Shaw, 100 S.W.3d 8; Waters, 844 S.W.2d 250.
In the cases cited by Rubio, patients who were in weakened conditions or suffered from reduced mental capacities were sexually assaulted by other patients at the facilities. The victims' claims in these cases were based on inadequate monitoring, supervision, and health care. For the reasons explained, we disapprove of these decisions to the extent they hold that the patients' claims for assault by other patients are not health care liability claims, as the Legislature defined that term.
Finally, we note the irony in Rubio's position. She asserts that the MLIIA should not apply to her claim, which she contends is a premises liability claim based on ordinary negligence. If we were to agree with her, our decision would have the effect of lowering the standard from professional to ordinary care for residents in health care facilities under similar circumstances. While we make no general pronouncements in this case on the standard of care applicable to nursing home conduct toward their residents, we decline to lower the standard in Rubio's circumstances as we find no indication that the Legislature intended to lower it.
2. Response to Concurrence and Dissent
In his concurrence, CHIEF JUSTICE JEFFERSON disagrees that Rubio's allegations fall within the MLIIA's definition of health care. __ S.W.3d __, __. CHIEF JUSTICE JEFFERSON would characterize some of Rubio's claims-specifically, Rubio's allegations concerning Diversicare's failure to protect her from sexual assault, failure to implement adequate safety precautions, and failure to establish appropriate safety and staffing procedures-as premises liability claims or "claims for 'inadequate security'" that are "'independent of any medical diagnosis, treatment, or care.'" Id. (quoting Robinson v. W. Fla. Reg'l Med. Ctr., 675 So.2d 226, 228 (Fla. Dist. Ct. App. 1996)). To the contrary, Rubio's claims implicate more than inadequate security or negligent maintenance. Rubi
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