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Click here for the full text of this decision FACTS:Randall and Sandi Jones filed suit against Dr. Mehdi Khorsandi and the North Central Medical Center. They alleged that Khorsandi sexually assaulted Randall while he was a patient at North Central. The Joneses did not filed an expert report under the medical malpractice statute. North Central moved for and was granted a dismissal, and the trial court severed those claims from the ones against Khorsandi. The Joneses faxed a notice of non-suit without prejudice to Khorsandi’s counsel on the morning of Jan. 30, 2003. The notice of and motion for non-suit were sent by certified mail that day. These were both received by the court on Feb. 3, and file-stamped Feb. 4. On Jan. 30, after receiving the fax, Khorsandi’s counsel called the Joneses’ counsel and asked if the plaintiffs would likely refile. The attorney said yes. Later that day, Khorsandi’s attorney thus prepared a motion to dismiss with prejudice and left it at the clerk’s drop box between 4:30 p.m. and 5 p.m. The motion was filed stamped at 4:45 p.m. on Jan. 30. The trial court granted Khorsandi’s motion, and ordered the Joneses to pay nearly $21,000 in attorneys’ fees and costs. On appeal, the Joneses argue that the non-suit was effective prior to the filing of Khorsandi’s motion to dismiss. They also argue that even if the non-suit was ineffective, the dismissal was improper because Khorsandi’s conduct was alleged to be an intentional tort outside the purview of the medical malpractice statute. They argue their case should be reinstated and that they be given an additional 30 days to file an expert report. Finally, the say the award of attorneys’ fee was improper. HOLDING:Reversed and remanded. The court notes that whether the Joneses’ non-suit was effective prior to the filing of Khorsandi’s motion to dismiss depends on which party won the race to the courthouse created by Art. 4590i, 13.01 of the medical malpractice statute. The court finds that it cannot find that the Joneses’ motion for non-suit was filed before Khorsandi’s motion to dismiss. Even if the court were to accept the Joneses’ contention that their motion should be deemed filed on the 30th under the mailbox rule, there is no evidence indicating what time the motion was placed in the mail. The postmark says only Jan. 30, but not the time of day. Consequently, the Joneses have not demonstrated that they deposited their notice of and motion for non-suit in the U.S. mail prior to 4:45 p.m. on the 30th. “Although we do not condone the gamesmanship that may have occurred in this case, we hold that the trial court did not err in denying the plaintiffs’ special appearance; in failing to enter an order on the plaintiffs’ motion for non-suit; in interpreting and applying the mailbox rule, other applicable rules, or case law; or in determining that Dr. Khorsandi’s motion to dismiss was filed prior to the time the plaintiffs’ non-suit was filed.” The court then turns to the merits of Khorsandi’s motion to dismiss with prejudice. The court finds the trial court erred in lumping all of the Joneses’ claims under the medical malpractice statute. The statute applies to “health care liability claims,” and plaintiffs are not allowed to recast a medical malpractice claims as some other type of a claim in order to avoid the medical malpractice statute, but nor should the statute be extended beyond its bounds. The Joneses allege that Randall was subjected to unwanted and offensive sexual advances by Khorsandi, culminating in a “vile sexual assault and battery” after three days. The court rules that these claims are not health care liability claims. The nature of the allegations against Khorsandi do not involve a breach of the applicable standard of care for health care providers, and the alleged sexual assault is not an inseparable part of the rendition of medical services. Consequently, the trial court erred in dismissing with prejudice the Joneses’ claims against Khorsandi for failing to file an expert report. Based on this holding, the court also finds that the award of attorneys’ fees was improper. OPINION:Arnot, C.J.; Arnot, C.J., and Wright and McCall, JJ.

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