Certified EMS, Inc. v. Potts
355 S.W.3d 683
| Tex. App. | 2011Background
- Potts sued Certified EMS for direct and vicarious liability for an assault by a Certified EMS employee nurse (Hardin) working at Christus St. Catherine's Hospital.
- Potts served two expert reports; the first by Foster and the second by Harrison; Certified EMS challenged adequacy, timing, and identity as to Certified EMS.
- Trial court denied the first motion to dismiss and granted Potts a 30-day extension to cure deficiencies; Potts later filed supplemental reports.
- Certified EMS filed a second motion to dismiss, challenging causation and qualifications of the experts; the trial court denied it.
- The court held that Potts’ reports implicated Hardin’s conduct and Certified EMS as his employer for vicarious liability, and were adequate for at least one theory, allowing the action to proceed.
- This interlocutory appeal concerns the trial court’s handling of the two motions to dismiss and the court’s jurisdiction to review them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over first motion to dismiss | Potts implicates Hardin and Certified EMS; extension cures defects. | No jurisdiction to review denied first motion due to extension. | Lack of jurisdiction over first four issues; dismissal upheld for those as moot. |
| Qualifying as an expert for Foster's testimony | Foster is a licensed nurse and consultant; qualified under §74.402. | Foster lacks active hospital practice, thus not qualified. | Foster qualified to offer opinions for vicarious liability; trial court not abuse. |
| Adequacy of reports to implicate Certified EMS's conduct | Reports implicate Hardin and his employer for vicarious liability; sufficient basis. | Reports do not implicate Certified EMS's direct liability. | Reports adequately address at least one liability theory (vicarious liability); action may proceed. |
| Effect of allowing vicarious liability theory on other theories | A single adequate theory permits pursuing the entire cause of action against defendant. | Need separate adequate reports for each liability theory. | An adequate report for at least one theory allows the entire cause of action to proceed; direct theories may follow if within same cause of action. |
Key Cases Cited
- Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) (recognizes when reports are deficient as no report and extension rules)
- Morris v. Umberson, 312 S.W.3d 763 (Tex.App.-Houston [1st Dist.] 2009) (discusses extension and reviewability)
- In re Jorden, 249 S.W.3d 416 (Tex. 2008) (defines 'cause of action' and governs the scope of theories within a single action)
- Yamada v. Friend, 335 S.W.3d 192 (Tex. 2010) (examines whether a claim can be split into multiple health care liability theories)
- Leland v. Brandal, 257 S.W.3d 204 (Tex. 2008) (gatekeeper function of expert reports)
- Pokluda, 283 S.W.3d 110 (Tex.App.-Houston [14th Dist.] 2009) (treatment of theories within a single cause of action)
- Railsback, 259 S.W.3d 860 (Tex.App.-Houston [1st Dist.] 2008) (discusses direct vs vicarious liability theories and reports)
- Petty v. Churner, 310 S.W.3d 131 (Tex.App.-Dallas 2010) (split analysis of adequacy for vicarious/direct theories)
- McCoy v. Obstetrical & Gynecological Assocs., P.A., 283 S.W.3d 96 (Tex.App.-Houston [14th Dist.] 2009) (discusses direct vs vicarious liability adequacy in McCoy context)
- Serrano, 2011 WL 303795 (Tex.App.-Beaumont 2011) (Beaumont court cases on direct/vicarious liability reports)