Nexion Health at Duncanville, Inc. v. Ross
374 S.W.3d 619
| Tex. App. | 2012Background
- Ross sued Nexion for health care liability after Horsley’s death while a resident at Nexion.
- Chapter 74 applies to Ross’s health care liability claims and paragraph 12 of the petition lists seven negligence theories.
- Ross served expert reports from Levine and Rushing.
- Nexion moved to dismiss claims not addressed by the expert reports and sought dismissal with prejudice.
- The trial court dismissed two items (B and C) but denied dismissal of the remaining claims; this is an interlocutory appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must expert reports address every specific act of negligence? | Ross: at least one liability theory suffices. | Nexion: report must link each alleged failure to the injury. | No; need only one sufficient theory within the same action. |
| Do eight unaddressed theories survive if arising from the same operative facts? | Ross: Potts allows proceeding if tied to same facts. | Nexion: unaddressed theories should be dismissed. | Yes; one cause of action permits proceeding with unaddressed theories within same action. |
| Can gross negligence claims survive if ordinary negligence claims survive? | Ross: gross negligence rests on underlying ordinary negligence theories. | Nexion: if ordinary negligence is dismissed, gross negligence must be too. | Remain non-dismissed; findings premised on ordinary negligence do not require dismissal of gross negligence. |
Key Cases Cited
- Certified EMS, Inc. v. Potts, 355 S.W.3d 683 (Tex.App.-Houston [1st Dist.] 2011) (holds a report addressing at least one liability theory can permit other theories within same action to proceed)
- Baylor Med. Ctr. at Waxahachie v. Wallace, 278 S.W.3d 552 (Tex.App.-Dallas 2009) (addressed causation/compatibility of expert report but not the exact issue here)
- In re Jorden, 249 S.W.3d 416 (Tex.2008) (defines ‘cause of action’ and informational function of expert reports)
- Leland v. Brandal, 257 S.W.3d 204 (Tex.2008) (explains purposes of expert reports in health care liability cases)
- Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873 (Tex.2001) (statutory framework for expert reports in health care claims)
- Jernigan v. Langley, 195 S.W.3d 91 (Tex.2006) (describes abuse-of-discretion standard for Chapter 74 rulings)