Cristina Marente, Individually and as Representative of the Estate of Christian Marente v. Eunice Asah and Epic Health Services, Inc.
06-15-00049-CV
| Tex. App. | Oct 13, 2015Background
- On September 10, 2012 a home‑health nurse (Eunice Asah, RN), employed by Epic Health Services, was caring for 17‑year‑old Christian Marente (tracheostomy, ventilator‑dependent). During a bath the tracheostomy tube became dislodged; Asah attempted reinsertion, provided BVM ventilation and CPR; EMS arrived; Christian later died.
- Plaintiffs (Christian’s mother and estate) sued Asah and Epic for nursing negligence and vicarious liability, alleging Asah improperly removed/attempted to change the trach, delayed/ineffective emergency response (911 communication, failure to identify as RN), and Epic’s failure to train/supervise/maintain protocols.
- Plaintiffs served amended expert reports from Patti Bingham, RN, and Dr. Charles Marable; defendants filed pre‑trial objections and motions to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351 challenging the adequacy and qualifications of the reports.
- The trial court held hearings, sustained defendants’ objections, granted motions to dismiss plaintiffs’ claims with prejudice, and awarded defendants attorney’s fees. Plaintiffs appealed (No. 06‑15‑00049‑CV).
- Plaintiffs’ appeal argues the amended expert reports satisfied §74.351(r)(6) (fair summary of standard, breach, causation) and that no expert report was required for vicarious liability claims against Epic based on ostensible agency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of expert reports under Tex. Civ. Prac. & Rem. §74.351(r)(6) | Bingham (RN) and Marable (MD) provided fair summaries of applicable standards, identified specific breaches by Asah, and explained causation. Reports therefore meet statutory requirements. | Reports are insufficiently specific / experts unqualified for the field of practice: they don’t address specialized home‑health pediatric trach care or the specific circumstances; thus dismissal proper. | Trial court sustained objections and dismissed plaintiffs’ claims with prejudice. Plaintiffs appeal seeking reversal. |
| Qualification of experts under §74.402 | Experts need not be narrowly specialized to the exact patient condition; statute and cases allow experts practicing in a field involving the same type of care. Bingham and Marable are sufficiently qualified by training/experience. | Experts lack requisite field‑of‑practice nexus (e.g., home pediatric trach care for Jeune syndrome) and so cannot opine under §74.402. | Trial court found the experts’ qualifications/report content inadequate and granted dismissal. |
| Notice of the conduct called into question (informing defendant of specific conduct) | Reports identified specific acts Asah allegedly committed (removing/attempting reinsertion, poor 911 communication, failure to call for help) and explained causal link to injury. | Reports allegedly fail to specify and document the precise negligent acts and how they caused the claimed injuries with required specificity. | Trial court concluded the reports did not meet the purposes of §74.351 (inform defendant and provide basis for merit) and sustained objections. |
| Need for expert report to support vicarious liability against Epic (ostensible/agency) | No expert report is required for vicarious liability claims based on ostensible agency; authority supports that expert causation reports are unnecessary for respondeat superior/ostensible agency claims. | Defendants treated plaintiff reports as inadequate; dismissal of vicarious claims followed the dismissal of direct‑liability claims. | Trial court dismissed all claims, including vicarious liability counts; plaintiffs argue on appeal that no expert report was necessary for vicarious liability. |
Key Cases Cited
- Adeyemi v. Guerrero, 329 S.W.3d 241 (Tex. App. — Dallas 2010) (discussing expert qualification analysis and scope of required expertise)
- Larson v. Downing, 197 S.W.3d 303 (Tex. 2006) (caution against overly narrow definitions of expert qualifications)
- Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) (standards for sufficiency of expert reports and the two statutory purposes: inform defendant and show merit)
- American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (§74.351 expert‑report content requirements — standard, breach, causation)
- Group v. Vicenta, 164 S.W.3d 724 (Tex. App. — Houston [14th Dist.] 2005) (rejecting an unduly restrictive reading of §74.402 and explaining "field of practice" analysis)
- Packard v. Guerra, 252 S.W.3d 511 (Tex. App. — Houston [14th Dist.] 2008) (holding that §§74.401(d) and 74.402(d) good‑cause exceptions apply at the expert‑report phase)
(Notes: The trial court’s order sustained defendants’ objections and dismissed plaintiffs’ claims with prejudice and awarded defendants fees; plaintiffs appeal arguing the experts’ reports were adequate and that vicarious liability did not require expert proof.)