A Houston-area plastic surgeon who is accused of sexually assaulting a patient in the recovery room following a breast augmentation procedure failed to convince an appellate court that the lawsuit against him is actually a health care liability claim that should be dismissed for failure to file an expert report.
Dr. Azul Shirazali Jaffer is being sued by Michelle Maestas in Fort Bend County district court. She alleges that when she woke up in the recovery room in October 2022, Jaffer was “pressing his penis against her feet, rubbing her vagina with his ungloved hand then putting her fingers in her mouth, and using Maestas’s hand to rub his penis.”
Fort Bend County District Judge Surendran Pattel in July 2023 rejected Jaffer’s argument that Maestas’ lawsuit was a health care liability lawsuit — which requires plaintiffs file an expert report outlining how the standard of care was allegedly breached — and that her failure to file the expert report mandated dismissal under the Texas Medical Liability Act.
First Court of Appeals Justices Sarah Beth Landau, Gordon Goodman and Richard Hightower affirmed that ruling this week.
“As our sister court concluded in a similar sexual assault claim, ‘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,’” the panel wrote, quoting from the Fourteenth Court of Appeals’ May 2010 ruling in Wasserman v. Gugel. “There is a separate reason to conclude that Maestas’s claims are not health care liability claims here: their proof requires no expert testimony. It does not require professional medical judgment to conclude that allegations of sexual assault by a treating physician fall outside acceptable safety or medical standards.”
Jaffer had argued that because the alleged sexual assault occurred while Maestas was under his care, and because Maestas failed to rebut the presumption that the claim against her treating physician was a healthcare liability claim, her failure to file the expert report was fatal to her suit.
Maestas argued that she had no complaints about the procedure or Jaffer’s provision of medical
services, and that her lawsuit is based only on the allegedly inappropriate contact Jaffer made with her without her consent.
Jaffer is represented by James B. Edwards and Stacy T. Garcia of Edwards & Garcia.
Maestas is represented by Anthony G. Buzbee and Jessica C. Dent of The Buzbee Law Firm.
The case number is 01-23-005410CV.