Second Court of Appeals
Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of November 6, 2017.
NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.
Links to full text of opinions (PDF version) can be accessed by clicking the cause number.
T.C. v. Kayass, No. 02-16-00248-CV (Nov. 9, 2017) (Pittman, J., joined by Walker, J.; Gabriel, J., dissents with opinion).
Held: T.C.’s claims against Kayass are not healthcare-liability claims. T.C. alleged that Kayass sexually assaulted her while she was in an exam room seeking medical treatment for her children and that he sent her a harassing text message after she left. T.C. was not a patient and did not consent to an examination by Kayass, and the complained-of actions did not arise from Kayass’s rendition of health care services. The gravamen of T.C.’s complaint against Kayass and the damages she seeks are related to his offensive, intentional conduct, not his alleged violation of the confidentiality of the information in the medical chart, and the specialized knowledge of a medical expert is not necessary to prove T.C.’s claims.
Dissent: T.C.’s claims against Kayass are healthcare-liability claims subject to the expert-report requirement because those claims were based on the same nucleus of operative facts as her claims against the medical facility and its management companies, which the trial court found to be healthcare-liability claims. T.C. does not challenge this finding on appeal. Additionally, T.C.’s claim against Kayass that these same facts revealed a violation of medical-privacy laws was a healthcare-liability claim, requiring her to file an expert report; thus, all claims against Kayass were subject to dismissal.
Van Der Linden v. Khan, No. 02-16-00374-CV (Nov. 9, 2017) (Sudderth, C.J., joined by Kerr, J.; Gabriel, J., concurs and dissents with opinion).
Held: The Texas Citizens Participation Act (TCPA) applies to the private Facebook message in which Appellant told Appellee’s business associates that Appellee had admitted to giving money to the Taliban because the TCPA applies to both public and private communication, and Appellant exercised her right of free speech in a communication made in connection with a matter of public concern related to safety and community well-being (financial support for a terrorist organization). Appellee failed to support his tortious-interference-with-contract claim with clear and specific evidence to support a prima facie showing of what contractual obligation his business associate undertook, the breach of that obligation, proximate cause, or damages. Likewise, Appellee failed to support his tortious-interference-with-prospective-business-relations claim with clear and specific evidence that a relationship would have occurred, causation, or damages. However, Appellee supported his defamation/defamation per se claim with sufficient clear and specific evidence that he had never given money to the Taliban or told Appellant that he had and that Appellant made her statement with knowledge of its falsity. Appellee was not required to offer proof of damages because falsely accusing someone of providing financial support to terrorists constitutes defamation per se. Under D Magazine Partners, L.P. v. Rosenthal, No. 15-1790, 2017 WL 1041234 (Tex. Mar. 17, 2017), the affirmative defense of truth does not come into play when plaintiff bears the burden to prove the falsity of a statement related to a matter of public concern. The TCPA provides for the dismissal of actions, not remedies; accordingly, a TCPA challenge to a request for injunctive relief should be directed at the underlying legal action, not at the requested remedy; other avenues for relief are available should an injunction be wrongfully granted.
Concur and Dissent: Khan failed to proffer clear and specific evidence establishing a prima facie case of the requisite fault by Van Der Linden in making the alleged statements, which is an essential element of Khan’s claim for defamation per se. Even if Khan established a prima facie claim of defamation per se, Van Der Linden established by a preponderance her affirmative defense of truth. Either required the trial court to grant Van Der Linden’s motion to dismiss Khan’s claim for defamation per se under the TCPA. And because Van Der Linden’s alleged statements were defamatory per se, Khan cannot make a prima facie case of defamation, which required the dismissal of Khan’s defamation claim as well under the TCPA.