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Click here for the full text of this decision FACTS:Belinda Buck went to Houston Neurological Institute for neurological testing, where the physician allegedly had her place her hands behind her back and put a cold metal weight in one hand and then the other, telling her to squeeze. Buck then alleges that the doctor put his penis in one of her hands and told her to squeeze. Buck sued the attending physician, as well as HNI’s two owners, alleging assault and battery. Liability against HNI’s owners was based on respondeat superior and negligence. The trial court granted summary judgment for the defendants on the respondeat superior claim, and dismissed her negligence claim with prejudice. On appeal, Buck alleged that she presented proof Yen was acting in the course and scope of his employment and that appellees failed to present proof he was not. She further argues she was not required to file an expert report because her claims not a “health care liability claim” under the medical-malpractice act. HOLDING:Affirmed. The court notes that respondeat superior claims are usually made in negligence cases, not intentional torts, since an employee is not acting within the scope of his employment when he engages in his own affairs. The theory may apply, however, where the alleged assault is so connected with and immediately arising out of authorized employment tasks so as to merge the task and the conduct into one tort imputed to the employer. Buck argues that the alleged use of the physician’s penis, instead of the metal weight, was simply an alleged inappropriate exercise of his delegated duty to examine her. The court, however, rules that “[a]t the very moment [the physician (allegedly)] placed his body part in her hand (assuming he did), he was acting in his own prurient interest and ceased to be acting for the employer.” The neurological exam would thus have become a pretense for the physician’s own personal gratification. Nor was the physician’s alleged conduct and the task merged into one indivisible tort. Neurology is not an inherently sexual profession, the court states, and never requires the kind of conduct alleged against the physician. The trial court properly dismissed Buck’s negligence claim, the court rules. Though the court cannot find any cases where assault by a treating physician can result in a health-care liability claim, the court finds the facts in this case raise such an issue. Buck’s allegations are that HNI’s owners were negligent in failing to properly supervise the physician and in failing to institute or follow procedures to prevent the kind of assault that was alleged. “Essentially, these claims allege that appellees violated the standards of care related to supervision of a medical doctor performing a medical examination and the institution of procedures governing medical examinations. Thus, we interpret these claims as relating to medical care and constituting health care liability claims as defined by the Act.” OPINION:Hedges, C.J.; Hedges, C.J., Anderson and Seymore, JJ.

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