Laura claims she was lying in her hospital bed at Ben Taub nearly two years ago after being admitted for severe asthma when she saw was sexually assaulted by a doctor. Photo: Marie D. De Jesus, Staff / © 2015 Houston Chronicle
Photo: Marie D. De Jesus, Staff
Laura claims she was lying in her hospital bed at Ben Taub nearly two years ago after being admitted for severe asthma when she saw was sexually assaulted by a doctor.
At every turn in her ordeal, Laura has felt irrelevant.
The Houston mother of two says she was raped in her hospital bed by a doctor who she claims checked his phone afterward while she cried. She reported the rape to nurses who responded with cold skepticism. She had to wait nearly two years for police to collect the alleged attacker's DNA and make an arrest.
And now, there's this: the physician charged with assaulting her at Ben Taub hospital in November 2013, Dr. Shafeeq Sheikh, may get off scot-free in civil court.
And Texas law may entitle her to only modest compensation from Sheikh's employer at the time of the rape, the prestigious Baylor College of Medicine.
Sheikh continued at Baylor for seven months following the incident and was then hired by Houston Methodist. A Baylor spokeswoman, citing pending litigation, has refused to allow interviews with Baylor officials or to answer questions.
The Texas Medical Board suspended Sheikh's license following his arrest, and he has been fired from Methodist. His attorney says Sheikh looks forward to proving his innocence in court.
On Oct. 19, Laura's attorney sued Sheikh, Baylor, Ben Taub and Harris Health, alleging, among other things, negligence.
Baylor's lawyers have submitted to the court a proposed order to dismiss Sheikh from the case, as "mandated" by law. Baylor's attorney, Jeff McClure, declined comment.
The law he cited, in the "tort claims" chapter of the Civil Practice and Remedies Code, says that if a governmental unit and its employee are sued, the employee shall "immediately" be dismissed.
How is a doctor at a private medical college considered a government employee?
Baylor doctors staff Ben Taub, which is a public hospital owned by Harris County.
The doctor isn't the only one who can deploy the "government unit" shield. Baylor lawyers have successfully argued that the college itself can be construed as a government entity and is entitled to the same protections a county institution would enjoy.
In Texas, a limited government liability state, those protections are great. Baylor can argue it is immune to the claim altogether. Even if Laura's lawyers are successful in challenging that immunity, and she is granted an award, the most a municipality can be forced to pay is $100,000.
"You can get about $300,000 if you spill coffee in your lap at McDonald's," says her lawyer, Mark Weycer. "But this poor lady gets raped at Ben Taub Hospital and on her best day at the courthouse, she gets $100,000."
Malpractice laws
Weycer said Laura, now 29, is suing to hold the doctor and hospitals accountable, but she's also attempting to make herself whole after a horrific attack that made it difficult for her to work, and some days, to get out of bed. Her depression became too much for her husband, Laura told me in an interview, and the two separated, leaving her with custody of their two daughters. She is being identified here only by her first name, as the Chronicle grants anonymity to alleged victims of sexual assault.
"She may need therapy for the rest of her life," Weycer said. "Who pays for that? Why should she pay for that?"
If those obstacles aren't enough in Laura's court battle, here's one more.
The Texas Supreme Court has ruled that rape in some circumstances is covered by medical malpractice laws.
In 2003, as part of a sweeping tort reform package, lawmakers tweaked the definition of medical liability claims to include breaches in "standard of care" and safety. With some dissent, courts construed that definition to include sexual assault in the health care setting. Texas' medical malpractice statutes are considered among the most prohibitive in the country. Lawmakers severely capped damages for pain and suffering and set up expensive hurdles for potential plaintiffs. As a result of the law, Laura must pay to retain a physician expert to testify to the obvious fact that rape is a violation of acceptable standard of care.
If Laura's attacker was an employee of an AC repair company servicing her home, the egregious nature of the case and the malicious conduct could produce an award of millions in court, said veteran Houston personal injury lawyer Jim Perdue Jr.
"It should be offensive to every Texan, the idea that tort reform could be used to defend a rapist in about the most horrific crime that can be committed on a woman," Perdue said.
How can this be? The 2003 tort reforms were flawed in many ways, but did lawmakers really intend to go so far as to protect doctors who rape patients?
Absolutely not, said former state Rep. Joe Nixon, a Houston Republican who sponsored the legislation in the House. He said he was "flabbergasted" and "stunned" to hear that the Texas Supreme Court would interpret his bill to mean assault is medical malpractice.
"Any criminal activity by any medical personnel is not covered by this bill, under any circumstances," he said.
'It's a mess'
Nixon, an attorney, cautioned in an interview Friday that he doesn't handle medical malpractice cases, he wasn't familiar with Laura's case and he doesn't comment on pending litigation. But he pushed back on the notion that his bill is responsible for the hurdles Laura faces in her civil action.
That includes the provision that allows Sheikh and Baylor to claim government protections. Perdue, the personal injury lawyer not connected to her case, said a slight change in Nixon's 2003 bill allowed medical providers to be considered public servants.
Nixon denied that change, but when presented with the language, he argued that a doctor who rapes a patient isn't a public servant because he's acting outside the "course and scope" of duty.
"It's a mess," Weycer, Laura's attorney, acknowledged. He said he took the case knowing the odds were against them and that he may never get fully compensated.
"Sometimes you do it because it's the right thing to do," he said.
Bless him for that.
Here's the sad truth, though: In Texas, right now, we have laws designed to protect doctors, to protect hospitals, to protect counties. In this case, those laws may end up protecting a rapist.
And what of the victim? Apparently, she's irrelevant.