Owens v. Handyside
478 S.W.3d 172
| Tex. App. | 2015Background
- Owens sued Memorial Hermann and Drs. Handyside, Prater, and Totz for health care liability stemming from alleged delayed diagnosis and treatment of dural sinus thrombosis and idiopathic intracranial hypertension.
- Owens served Dr. Richardson’s expert report in May 2012; defendants objected on timeliness, sufficiency, and Richardson’s qualifications for ER physician standard-of-care analysis.
- Totz moved to dismiss for untimely service; trial court initially sustained objections and dismissed, but allowed a amended report and Owens later served an amended report.
- Dr. Richardson, a neurologist, opined on standard of care, causation, and that earlier imaging, lumbar puncture, neurology consults, and admission could have prevented blindness.
- Court held that service complied with law for purposes of 74.351(a) under Zanchi v. Lane, and that Richardson was qualified to opine on standard of care despite not being an ER physician; causation findings were supported by the report.
- Court reversed the trial court’s dismissal and remanded for further proceedings consistent with its opinion, holding Memorial Hermann’s vicarious-liability claims could proceed based on doctor conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of service on Totz | Totz admitted timely service; waiver argument preserved | Owens failed to preserve waiver/admission arguments; untimely service | Trial court erred; service timely under 74.351(a) |
| Sufficiency and qualifications of Richardson | Richardson qualified to opine on standard of care for conditions involved | Richardson not qualified to opine on ER physicians' standard of care | Richardson qualified; report sufficient on standard of care |
| Causation in Richardson report | Report links breaches to injuries and vision loss | Report fails to causally connect breaches to injury | Report satisfies causation linkage; adequate under 74.351 |
| Vicarious liability against Memorial Hermann | Expert report suffices to implicate hospital's vicarious liability | No separate report required for employer | Memorial Hermann not dismissed; vicarious claims viable |
Key Cases Cited
- Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013) (treats service of expert report on parties under §74.351(a))
- Strobel v. Marlow, 341 S.W.3d 470 (Tex.App.—Dallas 2011) (receipt constitutes service; what was before court matters)
- Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) (requirements for substantive sufficiency of expert reports)
- Wright v. S., 79 S.W.3d 52, 79 S.W.3d 52 (Tex. 2009) (causation linking in expert report must be more than conclusions)
- Gutierrez v. Univ. of Tex. Health Sci. Ctr. of Hous., 237 S.W.3d 869 (Tex.App.—Houston [1st Dist.] 2007) (service of expert report must satisfy Rule 21a; not merely courtesy copy)
- Potts (Certified EMS, Inc. v. Potts), 392 S.W.3d 625 (Tex. 2013) (vicarious liability report sufficiency standard for employer)
- Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669 (Tex. 2008) (agency vicarious liability findings in medical context)