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. | Dec 15, 2015Background
- Decedent Christian Marente was a ventilator-dependent 17-year-old with a tracheostomy who received home-health nursing from Eunice Asah (employed by Epic Health Services). A tracheostomy tube was displaced during bathing; Asah could not reinsert it, emergency services were called, and Christian later died.
- Cristina Marente (individually and as representative of the estate) sued Asah and Epic for health-care liability and related claims; claims centrally depend on nursing care in a home-health emergency involving a tracheostomy.
- Under Tex. Civ. Prac. & Rem. Code ch. 74, Marente was required to serve expert reports within the statutory window. She served reports from neurologist Charles Marable, M.D., and nurse Patti Bingham, R.N., and later amended those reports after defendants objected to qualifications.
- Defendants objected that neither expert showed the requisite qualifications to opine about home‑health tracheostomy care and emergency response under § 74.402; the trial court held multiple hearings and extensive briefing, found both experts unqualified, granted motions to dismiss with prejudice, and awarded attorneys’ fees.
- Central procedural/legal point: dismissal at the Chapter 74 expert-report stage was based on lack of qualified experts (not on merits), and the trial court gave one statutory 30‑day extension before dismissing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether experts were qualified under Tex. Civ. Prac. & Rem. Code § 74.402 to criticize care provided to a home‑health, ventilator‑dependent patient (tracheostomy care and emergency response). | Marente: physician who supervises nurses and an experienced RN are qualified to opine; report content shows standards and breaches. | Asah/Epic: § 74.402 requires expertise in the same type of care at the time of the event or testimony; neither expert had home‑health tracheostomy/emergency experience or showed how their experience fit the specific subject matter. | Trial court found both experts not qualified; reports deemed deficient; claims dismissed with prejudice. |
| Whether a claimant can rely on a non‑expert (the plaintiff/mother) or on alleged employer job‑duty statements to substitute for expert proof of standard of care. | Marente: experts could rely on mother’s statement about job duties and that changing the trach was not Asah’s responsibility. | Asah/Epic: lay statements do not establish the professional standard; experts may not cure their own lack of qualifications by relying on an unqualified lay source. | Court held plaintiff’s lay statement does not establish standard of care or cure experts’ lack of qualifications. |
| Whether an expert report on an employee suffices for vicarious liability against the employer without a separate report on the employee. | Marente: vicarious liability can proceed without a separate employer expert report. | Asah/Epic: Potts and McCoy permit using an employee‑focused report to cover vicarious liability only if the employee’s report itself satisfies § 74 requirements; here the employee‑level reports were deficient. | Court held vicarious liability claim fails because no qualified expert report adequately addressed the employee’s conduct. |
| Whether a physician expert may opine about agency policies/protocols and employer direct liability without showing relevant experience in policy formation or agency standards. | Marente: Marable criticized Epic’s protocols; that suffices to state a direct‑liability theory. | Asah/Epic: Marable’s CV and reports show no experience drafting or evaluating home‑health agency protocols; he did not explain how protocols would have prevented the outcome. | Court rejected Marable’s policy opinions as unsupported by qualifications; employer claims fail absent qualified expert linking policy breach to harm. |
Key Cases Cited
- Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) (expert must have knowledge, skill, experience, training, or education regarding the specific issue to qualify to render an opinion)
- American Transitional Care Centers of Texas v. Palacios, 46 S.W.3d 873 (Tex. 2001) (abuse‑of‑discretion standard of review for Chapter 74 dismissal motions)
- Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013) (expert report requirement satisfied if a report connects the elements for at least one theory of liability; an adequate employee report can support vicarious‑liability claims)
- Larson v. Downing, 197 S.W.3d 303 (Tex. 2006) (trial court within discretion to exclude expert who lacks recent or relevant practice experience in the subject procedure)
- Bowie Memorial Hospital v. Wright, 79 S.W.3d 48 (Tex. 2002) (purpose of expert report is to inform defendant of conduct called into question and demonstrate claim has merit)
- FFE Transportation Services, Inc. v. Fulgham, 154 S.W.3d 84 (Tex. 2004) (policy or contractual requirements exceeding the standard of care do not themselves establish negligence; expert testimony must connect policy breach to negligent care)
Outcome summary: The trial court determined, on the four‑corners review of the reports and CVs and consistent with Chapter 74 and relevant precedent, that neither Marable nor Bingham demonstrated the requisite expertise in home‑health tracheostomy care and emergency response. The court sustained defendants’ objections, dismissed plaintiff’s claims with prejudice, and awarded attorneys’ fees.