Colvin Pain Management, PLLC, Interventional Pain and Regenerative Medicine, and Jeffrey N. Colvin, M.D. v. Angela D. Tyler

• Court: Court of Appeals of Texas
• Decided: April 10, 2025
• Docket: 07-24-00363-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00363-CV

COLVIN PAIN MANAGEMENT, PLLC, INTERVENTIONAL PAIN AND REGENERATIVE MEDICINE, AND JEFFREY N. COLVIN, M.D., APPELLANTS

V.

ANGELA D. TYLER, APPELLEE

On Appeal from the 99th District Court Lubbock County, Texas Trial Court No. DC-2024-CV-0311, Honorable J. Phillip Hays, Presiding

April 10, 2025 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

The question before us is whether an expert is needed to explain that a physician

rubbing a patient’s vagina and attempting to solicit oral sex for the purpose of satiating

that doctor’s sexual urge deviates from medical standards of care when the patient sues.

Jeffrey N. Colvin, M.D., argues that Angela D. Tyler’s ensuing suit arising from those

assaults is a health care liability claim mandating an expert report so explaining. Tyler

argues otherwise. The trial court sided with Tyler. We affirm. Background

Colvin Pain Management, PLLC (CPM) and Dr. Jeffrey N. Colvin (collectively

referred to as Colvin) appeal from the trial court’s denial of their motion to dismiss with

prejudice and award of legal fees and costs. As indicated earlier, the underlying suit

arose from Colvin’s sexual assault upon and effort to engage in oral sex with Angela D.

Tyler, an employee at the time. It occurred while purporting to consensually examine

Tyler’s body for purposes of a fat transfer procedure. He later admitted to investigating

officers that he touched Tyler’s vaginal area with intent to “initiate oral sex” and asked

Tyler if he could perform oral sex on her. Tyler described the act as Colvin “rubbing my

vaginal opening,” “asking if it felt good,” and asking, “should he use his tongue.” Colvin

also acknowledged at the evidentiary hearing conducted by the trial court that

“examination of her vagina would be outside of the medical examination that [he was]

giving her.”

Tyler sued because she did not consent to the sexual overture. Her causes of

action sounded in assault, infliction of emotional distress, and constructive discharge from

employment. Colvin joined issue, deemed the causes of action to be health care liability

claims, and moved for their dismissal after Tyler failed to timely file an expert’s report.

The trial court denied that motion. The two issues before us are interrelated. Both

concern whether the causes of action fell under the umbrella of health care liability claims

thereby obligating Tyler to file an expert report per § 74.351(a) of the Texas Civil Practice

and Remedies Code.

2 Preliminary Issue

We address a preliminary matter before considering the substance of the two

issues. Tyler asks that we take judicial notice of a judgment memorializing Colvin’s later

criminal conviction for “Indecent Assault” committed upon her. The Lubbock County

Court at Law Number One purportedly signed the decree on January 13, 2025. Tyler

attached the item as an exhibit to her appellee’s brief. Because it was neither part of the

record before the trial court when denying the motion to dismiss nor otherwise included

within the appellate record via some other permissible means, it lies beyond our purview.

Ramex Constr. Co. v. Tamcon Servs., Inc., 29 S.W.3d 135, 139 (Tex. App.—Houston

[14th Dist. 2000, no pet.) (appellate court may not consider exhibits attached to briefs that

are not part of the appellate record). Thus, we deny the request to take judicial notice of

Colvin’s purported criminal conviction.

Issues One and Two

Underlying each of Colvin’s two issues is the complaint that the trial court erred in

in concluding that the lawsuit did not involve a health care liability claim and,

consequently, there was no need for an expert report. He contends that “[e]ven an assault

claim can be a [health care liability claim] if it meets the statutory definition of” one, and it

“is irrelevant that Tyler framed her claims as intentional torts.” In his view, “her claims are

a [health care liability claim] because they are against a physician and his medical practice

for treatment or other departure from the standard of care that proximately caused her

injuries.” We overrule the issues.

Statute provides that: “[i]n a health care liability claim, a claimant shall, not later

than the 120th day after the date each defendant’s original answer is filed or a later date

3 required under Section 74.353, serve on that party or the party’s attorney one or more

expert reports, with a curriculum vitae of each expert listed in the report for each physician

or health care provider against whom a liability claim is asserted.” TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(a). The failure to do so results in dismissal of the suit, with prejudice,

coupled with an award of attorney’s fees and court costs. Id. at § 74.351(b)(1) & (2). No

one questions that the trial court’s refusal to dismiss under the latter provision is subject

to interlocutory review. See Fuller v. Milton, No. 07-23-00204-CV, 2023 Tex. App. LEXIS

9284, at *4 (Tex. App.—Amarillo Dec. 11, 2023, no pet.) (mem. op.) (citing TEX. CIV. PRAC.

& REM. CODE ANN. § 51.014(a)(9); Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex.

2011)). Furthermore, the applicable standard of review when assessing the accuracy of

that decision is one of abused discretion. Id. (citing Am. Transitional Care Ctrs. of Tex.,

Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)). Such discretion is abused when the

court acts in an arbitrary or unreasonable manner or without reference to any guiding

rules or principles. Id.

Next, the legislature defined a health care liability claim as:

a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). Such a claim has three elements: 1)

the defendant is a health care provider or physician; 2) the claimant’s cause of action is

for treatment, lack of treatment, or other claimed departure from accepted standards of

medical care, health care, or safety or professional or administrative services directly

related to health care; and 3) the defendant’s alleged departure from accepted standards

4 proximately caused the claimant’s injury or death. Loaisiga v. Cerda, 379 S.W.3d 248,

255 (Tex. 2012). According to our Supreme Court, the “breadth of the statute’s text

essentially creates a presumption that a claim is [a health care liability claim] if it is against

a physician or health care provider and is based on facts implicating the defendant’s

conduct during the course of a patient’s care, treatment, or confinement.” Id. at 256. Yet,

it also told us that assault is not such a claim if the record conclusively shows 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 by the plaintiff, 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. And, in conducting our analysis,

“we consider the entire record before the trial court and the overall context of the

[plaintiff’s] suit, including the nature of the factual allegations in their pleadings, [the

defendant’s] contentions, and the motions to dismiss and responses.” Id.

As for Tyler’s pleadings, they describe acts occurring within a physician’s office at

the end of “an exam for fat transfer.” That Tyler submitted and consented to the

examination of her breasts, abdomen, and thighs to determine the presence of sufficient

bodily fat to effectuate the transfer is apparent from her live pleading. Her hesitance arose

when Colvin “asked her to pull down her panties so he could examine and check for laxity

of the vaginal area.” Though questioning the necessity for that, she nonetheless

complied. That led to Colvin “pressing on her vagina” and concluding “[t]here is no

problem with your vagina.” Upon making that determination, he then “began rubbing in

her vaginal opening,” “asked if it felt good,” “asked what he could do to make it feel better”

5 when she said “no,” heard Tyler utter “stop,” and replied with “[w]hat if I use my tongue.”

That resulted in Tyler’s dressing and leaving the room. Admittedly, the verbiage used in

describing her causes of action do not expressly limit her complaint to acts arising after

Colvin initially pressed on her vagina and found “no problem” with it. A reasonable

reading of same could lead one to believe that Colvin’s initial contact with her vagina

when purportedly checking for “laxity” falls within the ambit of her sexual assault and

bodily injury claims. Yet, even at that point, Tyler expressed hesitance. Furthermore,

nothing in the pleading alludes to a purported deviation from standards of care applicable

to health care providers after Colvin concluded there was “no problem” with Tyler’s

vagina, decided to continue rubbing it, and queried about pleasing her sexually with his

tongue.

Colvin did generally deny Tyler’s allegations via his answer. He also premised his

motion to dismiss on 1) consent and 2) the nominal time lapse between the initial

examination of Tyler’s vagina for “laxity,” declaring it to be without problem, and deciding

to “initiate oral sex.” Again, that he so decided to initiate sex was a matter he admitted to

police. That examining Tyler’s vagina was “outside of the medical examination [i.e., fat

transfer examination] that you were giving her” was also a matter to which he admitted to

the trial court. The same is true of endeavoring to engage in oral sex; it too was outside

the scope of the examination being conducted, according to Colvin. So, Colvin’s own

words illustrate that examining Tyler’s vagina was not a component of the medical

procedure he was conducting upon her when he decided to rub the body part and initiate

oral sex. And, though Tyler may have consented to undergoing bodily examination to

facilitate the assessment of her susceptibility to a fat transfer procedure, nothing before

6 the trial court indicated she acquiesced to subsequent vaginal manipulation once Colvin

declared that body part to be free of problem. He pursued such manipulation post-

declaration while intending to “initiate oral sex” and despite Tyler’s spurning his efforts.

An allegation of assault against a physician is not a health care liability claim if the

conduct of which a plaintiff complains is “wholly and conclusively inconsistent with, and

thus separable from,” receiving healthcare. Loaisiga, 379 S.W.3d at 257. That

encompasses the circumstances here given Colvin’s concessions about 1) his intention

to initiate oral sex and 2) the vaginal examination and oral sex being outside the scope of

the fat transfer assessment in which he engaged. He may have been conducting a

consensual exam attendant to a potential fat transfer procedure. His intent avowedly

changed from conducting a medical examination to the pursuit of sexual activity. Nothing

of record suggests that digitally manipulating her vagina to arouse Tyler then offer to

perform cunnilingus to further that goal was part of the fat transfer examination. Nothing

of record suggests Tyler consented to his attempt to engage in sexual activity. Nothing

of record suggests that in complaining of those acts, Tyler complains of some deviation

from applicable medical standards of care. Indeed, the trial court had reasonable

evidentiary basis to conclude that the only relationship between the sexual assault and

medical care was the setting, for Colvin had stopped any semblance of treatment to

pursue his personal sexual whims.

Arguably, an alleged assault that transpired during a medical procedure may

implicate a health care liability claim. See, e.g., Vanderwerff v. Beathard, 239 S.W.3d

406, 409 (Tex. App.—Dallas 2007, no pet.) (so finding). But, not every sexual assault

upon a patient by a physician within a health care facility does. Opinions from sister

7 appellate courts prove as much. For example, in Jaffer v. Maestas, No. 01-23-00541-

CV, 2024 Tex. App. LEXIS 2079 (Tex. App.—Houston [1st Dist.] Mar. 26, 2024, no pet.)

(mem. op.), the plaintiff awoke after a breast augmentation procedure to find Jaffer

pressing his penis to the plaintiff’s foot and rubbing her vagina. Id. at 2024 Tex. App.

LEXIS 2079 at *1. The court found that Maestas did not “complain about the procedure

she had performed at Azul, only the alleged offensive touching as she came out of the

procedure.” Id. at *7-8. And, though she consented to the augmentation procedure,

nothing in that record suggested she did so to the actions involving her foot and vagina.

Id. The only possible relationship between the alleged sexual assault and medical

procedure consisted of their occurrence in a medical facility by a physician. Id. Thus, the

trial court did not err in refusing to dismiss the suit when Maestas failed to provide an

expert report. Id. at 11.

In Gill v. Goodson, No. 10-23-00249-CV, 2024 Tex. App. LEXIS 5075 (Tex. App.—

Waco July 18, 2024, pet. denied) (mem. op.), Goodson sought medical care from Gill to

address back and pain issues. Id. at *1-2. Under the auspices of providing that care, Gill

directed her to unbutton her jeans, slid his hand between her buttocks, and began digitally

penetrating her anus. Id. at *2. During a later examination, Gill slid his hand into

Goodson’s underwear and digitally penetrated her vagina, resulting in her directive to

stop. Id. at *2-3. Her ensuing causes of action against Gill for sexual assault, intentional

infliction of emotional distress, harassment, and physical injury founded upon the

aforementioned conduct were not health care liability claims, according to the reviewing

court. Id. at *6. “Goodson [did] not complain about any medical or health care procedure

or service by Gill except for the alleged sexual assaults occurring during two

8 appointments.” Id. at *5. Nothing suggested she “consented to Gill’s assaults, and the

setting was the only relationship between those assaults and the provision of medical or

health care. Id. As the court noted, “‘it would defy logic to suggest that [this] sexual

assault[] is an inseparable part of the rendition of medical care or a departure from

accepted standards of health care.’” Id. at *6 (quoting Jaffer, supra).

Most similar to the circumstances before us are those in Wasserman v. Gugel, No.

14-09-00450-CV, 2010 Tex. App. LEXIS 3749 (Tex. App.—Houston [14th Dist.] May 20,

2010, pet. denied) (mem. op.). There, under the pretense of examining Gugel’s complaint

about back pain, Wasserman pulled down Gugel’s sweatpants, touched her vulva, spread

her buttocks after she rolled over, inserted his finger into her vagina, and asked if she had

feeling in her vaginal area. Id. at *4. Gugel quickly left Wasserman’s office thereafter.

Id. Gugel’s causes of action for sexual assault and battery, intentional infliction of

emotional distress, and harassment founded upon those acts also were held not to be

health care liability claims. Id. at *10. The Wasserman panel observed that “[t]his is not

a case where the defendant doctor’s alleged conduct could be explained as a necessary

part of his treatment of the plaintiff’s pain in her upper thigh or a slip of the hand during

that treatment.” Id. at *10. “Under no reasonable view of the allegations . . . could it be

argued that a surgical consult for back surgery would require Wasserman, an orthopedic

surgeon, to insert his finger into Gugel’s vagina and ask if had she feelings in that

location.” Id.

In comparison, the chiropractor in Vanderwerff was tasked with investigating the

source of pain in Beathard’s neck, wrists, and left knee. Vanderwerff, 239 S.W.3d at 409.

In response to his inquiry, Beathard placed an X on a drawing to demarcate the areas of

9 pain. Id. One X appeared in the upper thigh area. Apparently while examining her knee,

the chiropractor touched her genitals. He contended that the procedure being pursued

included manipulation “from the area around a patient’s knee for diagnostic and treatment

purposes,” and several “of these muscles . . . stretch from the knee to the pelvis.” Id.

Given this, according to the court, the “threshold questions” included whether his

examination was within the scope of a chiropractic examination. Id. It continued by

saying that the question “cannot be answered without reference to the standard of care

required of a chiropratic provider.” Id. So, “[a]s a result, Beathard’s claim was a health

care liability claim subject to the expert report requirements . . . .” Id.

It takes little to see that the circumstances at bar liken not to those in Vanderwerff.

To reiterate, Colvin uttered words which can be reasonably interpreted as acknowledging

his perusal and manipulation of Tyler’s vagina to instigate sex was not part of the overall

fat transfer examination. Vanderwerff made no such admissions when touching his

patient’s genitalia. 1

Our circumstances liken to those in Wasserman, Gill, and Jaffer. We, like the

Jaffer court, believe “[i]t does not require professional medical judgment to conclude that

allegations of sexual assault . . . fall outside acceptable safety or medical standards” when

the acts occur once the procedure ends. Jaffer, 2024 Tex. App. LEXIS 2079, at *9-10.

And, Colvin himself provided the evidence indicating the fat transfer examination ended

when he decided to rub Tyler’s vagina with the intent to engage in oral sex. 2 Furthermore,

1 It could also be said that even if a medical report were needed to explain that rubbing the vagina

and soliciting sex was not part of the standard of care applicable to this fat transfer procedure, Colvin himself provided it. One cannot reasonably ignore his admissions to the court and investigating officer. 2 See footnote one.

10 she objected and left, as did the patient in Wasserman after experiencing her physician

touch her vulva, insert his finger in her vagina, and inquire if she felt anything while

purportedly examining her back for pain. Additionally, the touchings in Gill and

Wasserman apparently transpired during the procedure being conducted. That those

courts, nonetheless, found that the circumstances did not render the ensuing suits health

care liability claims is informative. They negate Colvin’s suggestion that the mere

passage of a few seconds between a legitimate examination and the pursuit of personal

sexual interests renders an assault a health care liability claim.

Simply put, our analysis of the circumstances within the framework of the law leads

us to conclude that the trial court did not abuse its discretion in denying Colvin’s motion

to dismiss. Tyler was not and does not pursue a health care liability claim. Thus, she

had no need to proffer Colvin an expert report explaining that rubbing her vagina and

soliciting oral sex for the purpose of satiating his sexual urge deviated from acceptable

medical standards of care when assessing the viability of the particular fat transfer

procedure here.

We overrule Colvin’s issues and affirm the trial court’s order refusing to dismiss

Tyler’s suit.

Brian Quinn Chief Justice