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[W] Healthcare Centers of Texas3/7/2002
stered by a member of LaPorte's staff. Therefore, this is not the type of case the court contemplated when it precluded bystander recovery under the MLIA. See generally art. 4590i.
LaPorte contends the plaintiff's suit for LaPorte's failure to protect Mrs. Underwood from Mr. Jones amounts to a "claimed departure from accepted standards of . . . safety," and is within the definition of medical malpractice. The word "safety," however, cannot be read in isolation, and the phrase "accepted standard of . . . safety" must be read in context to mean "accepted standard of safety within the health care industry." See Rogers v. Crossroads Nursing Serv., Inc. 13 S.W.3d 417, 418-19 (Tex. App.--Corpus Christi 1999, no pet.).
Because the issue of protecting Mrs. Underwood from Mr. Jones is not governed by an accepted standard of safety within the health care industry, but rather is governed by the standard of ordinary care, the plaintiff's cause of action is one of simple negligence not governed by article 4590i. In this case, Mrs. Rigby sued LaPorte and others for simple negligence in failing to take adequate safety measures to protect its residents from a known sexual deviant. Therefore, article 4590i does not preclude Mrs. Rigby's bystander damages. See Sisters of Charity of Incarnate Word v. Gobert, 992 S.W.2d 25, 28 (Tex. App.--Houston [1st Dist.] 1997, no pet.) (holding that cause of action was one of ordinary negligence rather than malpractice where plaintiff was sexually assaulted by another patient).
LaPorte next contends that Mrs. Rigby cannot recover bystander damages because Mrs. Underwood did not suffer "serious bodily injury." A bystander who witnesses a negligently inflicted serious or fatal injury may recover for mental anguish if (1) the bystander was located near the scene of the accident as contrasted with one who was a distance away from it; (2) the shock resulted from a direct emotional impact upon the bystander from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) the bystander and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Hermann Hosp. v. Martinez, 990 S.W.2d 476, 478 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). LaPorte does not challenge the fact that Mrs. Rigby was located near the scene of the assault, that she experienced shock as a direct result of contemporaneous observance of the assault, or that Mrs. Rigby and Mrs. Underwood were closely related. LaPorte claims that Mrs. Rigby cannot recover because her mother did not suffer serious bodily injury from the attempted sexual assault. LaPorte dwells on the fact that Mrs. Underwood was not physically injured. Physical injury, however, is not required for bystander recovery.
LaPorte argues that " ost bystander cases involve contemporaneous perception by a close relative of injuries resulting in death, serious bodily injuries . . . or other permanently disabling injury." LaPorte cites to no case, nor have we found one, that requires physical injury by the complainant for the bystander to recover mental anguish damages. In recognizing a bystander cause of action, the Supreme Court has found, "Before a bystander may recover, he or she must establish that the defendant has negligently inflicted serious or fatal injuries on the primary victim." Boyles v. Kerr, 855 S.W.2d 593, 598 (Tex. 1993). The Supreme Court has not recognized a requirement of physical injury.
In determining whether Mrs. Underwood suffered serious injury, we review the events Mrs. Rigby witnessed. Those events were of such a shocking and dist
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