Kory Lee Gill, D.O. v. Kelly Goodson

• Court: Court of Appeals of Texas
• Decided: July 18, 2024
• Docket: 10-23-00249-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-23-00249-CV

KORY LEE GILL, D.O., Appellant v.

KELLY GOODSON, Appellee

From the 272nd District Court Brazos County, Texas Trial Court No. 22-002437-CV-272

MEMORANDUM OPINION

Kelly Goodson sought to recover damages for claims of sexual assault and battery,

intentional infliction of emotional distress, harassment, and physical injuries she suffered

when she was sexually assaulted by Kory Lee Gill, D.O. at Central Texas Sports Medicine

and Orthopedics and at The Physicians Centre Hospital located in Bryan, Texas. Gill filed

a Chapter 74 Motion to Dismiss pursuant to the Texas Medical Liability Act because

Goodson had not served him with an expert report as required by the Act. After a

hearing, the trial court denied Gill’s motion. Because the trial court did not abuse its discretion in denying Gill’s motion to dismiss, its Order Denying Defendant, Kory Lee

Gill, D.O.’s Chapter 74 Motion to Dismiss is affirmed.

FACTUAL ALLEGATIONS

Goodson scheduled an appointment in the fall of 2020 with Gill seeking medical

care to address Goodson’s back and pain issues. Gill asked Goodson to unbutton her

jeans and began to touch her. He slid his hand between her buttocks and began digitally

penetrating her anus. Goodson moved away as best as she could and told Gill not to do

that again. Gill then ordered X-rays. Upon Goodson’s return to the exam room from the

X-ray room, Gill pulled out the front of the paper shorts Goodson was still wearing from

the X-rays and “slurred utterances” to Goodson. Before Goodson left the room, Gill gave

Goodson his personal phone number on a sticky note and asked her to call him. He told

her he wanted to see more of Goodson’s tattoos.

About a month later and experiencing worsening back and hip issues, Goodson

returned to Gill who ordered an MRI. Gill admitted Goodson to the Physicians Centre

Hospital for outpatient surgery for epidural steroid injections. Arriving late for the

procedure and smelling of alcohol, Gill began talking with Goodson in the pre-op room

about her tattoos. Gill suddenly and unexpectedly, and without consent, slid his hand

into Goodson’s underwear and in the folds of her vagina to digitally penetrate her vagina.

When that happened, Goodson told Gill that if he did not stop, she would scream.

ISSUE ON APPEAL

The question before this Court is whether Goodson's claims triggered the Texas

Medical Liability Act (TMLA) requiring her to serve an expert report within 120 days of

Gill. v. Goodson Page 2 Gill’s answer to Goodson’s petition which set out the breach of the standard of care. See

TEX. CIV. PRAC. & REM. CODE §§ 74.001(a)(13); 74.351(a). Gill claims that Goodson brings

a health care liability claim because Goodson has not rebutted the presumption that her

claim against a treating physician triggers the TMLA. Goodson responds that she

complains only of the alleged offensive contact, not anything related to medical or health

care services, she did not consent to that alleged contact, and the only relationship

between the rendition of health care and the alleged offensive contact is the setting where

it happened.

Standard of Review

We generally review a trial court's order on a motion to dismiss pursuant to section

74.351(b) of the TMLA under an abuse of discretion standard. See Rosemond v. Al-Lahiq,

331 S.W.3d 764, 766 (Tex. 2011); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 875 (Tex. 2001). However, whether a claim asserts a health care liability claim

is a question of law which we review de novo. Lake Jackson Med. Spa v. Gaytan, 640 S.W.3d

830, 836 (Tex. 2022). In doing so, we consider the underlying nature of the claim rather

than its label. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex.

2019).

Health Care Liability Claim?

The TMLA provides that, upon the defendant's motion, a trial court shall dismiss

a health care liability claim and award attorney's fees to the defendant if the claimant fails

to provide one or more expert reports within 120 days day after the date each defendant’s

original answer is filed. TEX. CIV. PRAC. & REM. CODE § 74.351 (a), (b). A health care

Gill. v. Goodson Page 3 liability claim has three elements: (1) a suit against a physician or health care provider;

(2) the claims are grounded in treatment, lack of treatment, or a 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 act or omission must have

proximately caused the injury to the plaintiff. Lake Jackson Med. Spa v. Gaytan, 640 S.W.3d

830, 840 (Tex. 2022). The TMLA creates a rebuttable presumption that a plaintiff's claim

is a health care liability claim if it is brought 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." Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012).

However, if the conduct of which a plaintiff complains is "wholly and conclusively

inconsistent with, and thus separable from," receiving health care, it is not a health care

liability claim. Loaisiga, 379 S.W.3d at 257; Jaffer v. Maestas, No. 01-23-00541-CV, 2024 Tex.

App. LEXIS 2079, at *7 (Tex. App.—Houston [1st Dist.] Mar. 26, 2024, no pet.) (mem. op.).

The complained-of conduct is separable from receiving health care if the record shows:

(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 health care was the setting in which the act took place.

Id.

This case is factually indistinguishable from the First Court of Appeals’ opinion in

Jaffer v. Maestas. See Jaffer v. Maestas, No. 01-23-00541-CV, 2024 Tex. App. LEXIS 2079 (Tex.

Gill. v. Goodson Page 4 App.—Houston [1st Dist.] Mar. 26, 2024, no pet.) (mem. op.). There, the plaintiff awoke

from a breast augmentation procedure to discover Jaffer pressing his penis to the

plaintiff’s foot and rubbing her vagina. The First Court of Appeals affirmed the trial

court’s denial of Jaffer’s motion to dismiss.

In this case, Goodson does not complain about any medical or health care

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

appointments. 1 Nothing in the record suggests that Goodson consented to Gill’s assaults,

and there is nothing in the record to suggest anything other than the only possible

relationship between the alleged assaults and the rendition of the medical or health care

services provided, the X-rays and the epidural, was the setting. Further, no expert

testimony is required to prove Goodson’s claims. See Jaffer, 2024 Tex. App. LEXIS 2079,

at *9-10 (and the caselaw cited therein).

As other courts have 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 *9; Wasserman v. Gugel, No. 14-09-00450-CV,

2010 Tex. App. Lexis 3749, *7-8 (Tex. App.—Houston [14th Dist.] May 20, 2010, pet.

denied) (mem. op.); Holguin v. Laredo Reg'l Med. Ctr., L.P., 256 S.W.3d 349, 353 (Tex.

App.—San Antonio 2008, no pet.). Based on the factual allegations of Goodman’s case,

we agree.

1 Goodson had raised claims against other parties, but those claims had been disposed of by the time the trial court ruled on Gill’s motion to dismiss.

Gill. v. Goodson Page 5 CONCLUSION

Accordingly, Goodson did not assert a health care liability claim, and

consequently, the trial court did not err in denying Gill’s motion to dismiss.

Gill’s sole issue is overruled, and the trial court’s “Order Denying Defendant, Kory

Lee Gill, D.O’s Chapter 74 Motion to Dismiss,” signed on July 19, 2023 is affirmed.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed July 18, 2024 [CV06]

Gill. v. Goodson Page 6