Humble Surgical Hospital LLC v. Christy L. Traynor
01-15-00718-CV
| Tex. App. | Oct 19, 2015Background
- Plaintiff Christy Traynor sued Humble Surgical Hospital, L.L.C. (HSH) and nurse Kelly Bunyard after an alleged sexual assault on Traynor while she recovered from back surgery. Claims included direct negligence (hiring, supervision, retention, monitoring) and vicarious liability.
- Plaintiff served original expert materials; defendants moved to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351 for inadequate expert reports.
- The trial court granted Plaintiff a 30-day cure period; Plaintiff then served amended expert reports from Priscilla Ray, M.D. (psychiatrist) and Cathy L. Miller, RN, Ph.D. (nurse).
- Defendants argued the experts were unqualified to opine on the facility’s standards and the reports were conclusory as to standard of care, breach, and causation; they also argued vicarious liability cannot be based on a sexual assault outside the scope of employment.
- The trial court overruled defendants’ Chapter 74 objections and denied the motion to dismiss; this brief urges the First Court of Appeals to reverse and render dismissal with prejudice (or remit with instructions to assess fees).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held (trial court) |
|---|---|---|---|
| Whether experts are qualified to opine on HSH’s standard of care | Ray and Miller are competent health‑care experts whose reports support liability | Experts did not demonstrate within the four corners that they have experience with standards applicable to a surgical facility or its administrative hiring/supervision practices | Overruled defendants’ objections (denied dismissal) |
| Whether amended expert reports adequately state applicable standard of care and breach | Reports identify failures (lack of screening, training, policies, monitoring) as the hospital’s breaches | Opinions are conclusory; do not specify what policies/procedures would have been adequate or what precise acts were required | Overruled defendants’ objections (denied dismissal) |
| Whether hospital can be held vicariously liable for nurse’s alleged sexual assault | Plaintiff relies on nurse’s misconduct to implicate hospital via respondeat superior and alleges inadequate policies permitted the assault | Sexual assault is outside course and scope of employment; employer cannot be vicariously liable, so reports relying on nurse’s acts cannot establish hospital liability | Overruled defendants’ objections (denied dismissal) |
| Whether reports adequately establish causation (substantial factor) | Experts link hospital’s alleged policy failures to increased risk and plaintiff’s PTSD/injury | Reports fail to explain how specific policy deficits were a substantial factor or how different policies would have prevented the assault | Overruled defendants’ objections (denied dismissal) |
Key Cases Cited
- American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (expert report must state the standard of care, show how it was breached, and link breach to injury; conclusory statements insufficient)
- Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013) (an expert report addressing at least one pleaded liability theory can satisfy § 74.351’s requirements)
- Buck v. Blum, 130 S.W.3d 285 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (sexual assault by physician was outside course and scope of employment; employer not vicariously liable)
- Gannon v. Wyche, 321 S.W.3d 881 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (standard for appellate review of § 74.351 dismissal and gate-keeping function of trial court)
- Baylor All Saints Medical Center v. Martin, 340 S.W.3d 529 (Tex. App.—Fort Worth 2011, no pet.) (hospital expert opinions describing ‘‘policies to safeguard patients’’ were conclusory where they failed to identify specific policies/practices required)
- Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012) (§ 74.351 serves to weed out claims lacking merit)
- Mackey v. U.P. Enterprises, Inc., 935 S.W.2d 446 (Tex. App.—Tyler 1996, no writ) (employee assaults are unrelated to employer duties and not within scope of employment)
- Texas & Pacific Railway Co. v. Hagenloh, 247 S.W.2d 236 (Tex. 1952) (when servant departs from employer’s business to pursue personal acts, employer not liable)