Lead Opinion
OPINION ON REHEARING
In this interlocutory appeal, appellant, Certified EMS, Inc. d/b/a/ CPnS Staffing (“Certified EMS”), challenges the trial court’s order denying its motion to dismiss the health care liability claim of appellee, Cherie Potts. Certified EMS has filed a motion for en banc reconsideration, and Potts has filed a response to that motion. We construe Certified EMS’s motion as both a motion for rehearing and a motion for en banc reconsideration. See Brookshire Bros., Inc. v. Smith,
Potts sued Certified EMS alleging that it was directly and vicariously liable for an assault by one of its employees. On appeal, Certified EMS contends that the trial court erred by (1) granting Potts an extension of time to cure deficiencies in her expert reports because the original reports served by Potts do not qualify as expert reports and, therefore, the first motion to dismiss should have been granted, and (2) denying Certified EMS’s second motion to dismiss based on deficiencies in the ulti
Background
Potts was admitted to Christus St. Catherine’s Hospital in Katy, Texas, in November 2008 after experiencing complications from a recurring kidney infection. Potts alleged that, during her stay at Christus, Les Hardin, a male nurse, asked her and her husband several intimate questions concerning her sexual practices, which she or her husband answered. She further alleged that, on the day following the questioning, Hardin returned to her room in the late evening. She explained that Hardin, acting under the false pretense of performing a normal examination, proceeded to examine her in a manner that left her breasts exposed and that he touched her breasts and other areas of her body in an inappropriate and unwelcome manner.
Potts reported Hardin’s conduct to the nursing risk-management supervisor. Eventually, it was disclosed that Hardin was not a regular employee of the hospital but was temporarily working at the hospital as an employee of Certified EMS, a nurse staffing agency. After the incident, Potts complained of anxiety and panic attacks. She eventually brought suit against Certified EMS asserting that it was vicariously liable for Hardin’s conduct under a respondeat superior theory and directly liable for its own negligence in training and supervising Hardin.
Potts timely served two reports that purported to be expert reports under Chapter 74 of the Texas Civil Practice and Remedies Code. The first report, by Nurse Foster, stated that Hardin’s conduct was evidence of substandard nursing practice by Hardin, whom she identified as an employee of a “Temporary Nursing Agency/Service, Name of Agency or Director are unknown at this time.” The second report, by Dr. Kit Harrison, Ph.D., stated that Potts is suffering psychological injuries due to assault. Asserting the reports were statutorily insufficient so that they effectively constituted no report, Certified EMS filed its first motion to dismiss, claiming that Nurse Foster’s and Dr. Harrison’s expert reports do not identify Certified EMS by name, state the standard of care applicable to Certified EMS, describe how Certified EMS’s conduct fell below that standard of care, and failed to show how Certified EMS’s conduct or omissions caused Potts’s injury. The motion also asserts that the reports are conelusory concerning a description of the standard of care applicable to Nurse Hardin, how Nurse Hardin’s conduct fell below that standard of care, and how that conduct caused Potts’s injury. Finally, as to causation, the motion asserts that the reports fail to show that Nurse Foster and Dr. Harrison are qualified to offer opinions on causation because neither is a physician.
The trial court denied Certified EMS’s motion to dismiss and granted Potts a 30-day extension to amend or supplement her reports. Before the expiration of the 30-day extension, Potts filed a supplemental report from Nurse Foster and a report with curriculum vitae from a new expert, Dr. Milton Altschuler, M.D., responding to Certified EMS’s objections concerning
Viewed together, the expert reports implicate Hardin’s conduct by explaining that he touched Potts’s body in a sexually inappropriate manner when he was caring for her as her nurse while she was in a hospital. The expert reports’ description of Hardin as an employee of Certified EMS support Potts’s theory that Certified EMS is vicariously liable under the doctrine of respondeat superior. The expert reports, however, do not specifically address how Certified EMS might be directly liable for its own conduct.
Standard of Review
We review the trial court’s rulings concerning expert reports for abuse of discretion. Walker v. Gutierrez,
First Motion to Dismiss
In its first four issues, Certified EMS contends that the trial court abused its discretion by granting an extension of time to cure deficiencies because the initial reports filed by Potts were so inadequate as to constitute no expert report. In light of the trial court’s extension of time to cure deficiencies in the original reports filed by Potts, we conclude we lack jurisdiction over Certified EMS’s first four issues, in which it challenges the deficiencies in her original reports.
A. Applicable Law
Pursuant to section 74.351, medical-malpractice plaintiffs must serve each defendant physician and health care provider with an expert report or voluntarily non-suit the action. Tex. Civ. Prao. & Rem.Code ANN. § 74.351(a) (West Supp.2010). If a claimant timely furnishes an expert report, a defendant may file a motion challenging the report’s adequacy. Id. The trial court shall grant the motion only if it appears, after a hearing, that the report does not represent a good faith effort to comply with the statutory definition of an expert report. See id. § 74.351(l). “ ‘Expert report’ means a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (r)(6); Jelinek v. Casas,
Section 51.014(a)(9) of the Texas Civil Practice and Remedies Code authorizes an interlocutory appeal from an order that denies all or part of the relief sought by a motion under section 74.351(b). Tex. Civ. Prao. & Rem.Code Ann. § 51.014(a)(9) (West 2006). If no report is filed by the deadline, a defendant may properly appeal an order denying its motion to dismiss. Morris v. Umberson,
B. Analysis
Potts did file timely reports that she asserts would satisfy the requirements for an expert report. Certified EMS asserts that these reports were so inadequate as to constitute as no expert reports. See Ogletree v. Matthews,
In examining whether an inadequate report is effectively no report, courts have considered whether the report implicates the conduct of the defendant, regardless of whether the defendant is actually identified by name. Morris,
Although they do not mention the employer specifically by name, the first reports timely filed by Potts implicate the conduct of Hardin and his employer. Foster’s report mentions Hardin’s improper conduct and explains that at the time of the conduct he was employed by a “Temporary Nursing Agency/Service.” This was sufficient to implicate Hardin’s employer, Certified EMS, for the purpose of the trial court granting an extension of time to Potts to cure the deficiencies in her reports. Id.; Morris,
The original reports were sufficient to implicate the conduct of Certified EMS. Because the trial court granted an extension of time to cure deficiencies in the reports originally filed by Potts, we lack jurisdiction over Certified EMS’s appeal of the denial of its first motion to dismiss and dismiss its first four issues. See Ogletree,
Second Motion to Dismiss
In its fifth issue, Certified EMS contends that the trial court erred by denying its second motion to dismiss. Specifically, Certified EMS asserts that Nurse Foster is not qualified to render the expert opinion and that her supplemental report is deficient because it does not identify the standard of care applicable to Certified EMS or the alleged breaches of the standard of care. Certified EMS also challenges the report of Dr. Altschuler by contending it does not implicate the conduct of Certified EMS.
A. Qualifications of Nurse Foster
Section 74.402, in pertinent part, provides,
[A] person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person: (1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose....
Tex. Crv. Prao. & Rem.Code Ann. § 74.402(b) (West 2005). “Practicing health care” includes “serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defen
Certified EMS objected to Nurse Foster’s qualifications because she “does not state that she actively practices in a field requiring her to provide nursing care to a patient in a hospital setting.” Certified EMS’s objection ignores the plain language of section 74.402(a) that provides a consulting health care provider is “practicing health care.” Id. Nurse Foster’s curriculum vitae states that she is a “Nurse Consultant/Expert Witness” and a “Quality Review Nurse” for the Texas Department of Aging and Disability Services. Her curriculum vitae and report also show that she is licensed as a nurse and holds a number of nursing certifications. Thus, the record contains evidence that Nurse Foster “servfes] as a consulting health care provider and [is] licensed, certified, or registered in the same field as the defendant health care provider.” See id. Accordingly, the trial court did not abuse its discretion in determining Nurse Foster is qualified to offer an expert report in this case.
B. Sufficiency of Reports to Implicate Certified EMS’s Conduct
Certified EMS contends that the reports by Nurse Foster and Dr. Altschuler are deficient because the reports do not implicate Certified EMS’s conduct. Potts responds that she asserts in her petition both direct liability and vicarious liability theories against Certified EMS. Potts explains that the trial court properly denied the motion to dismiss because Certified EMS only challenged the direct liability theories and left the vicarious liability theory unchallenged by accepting the adequacy of the report’s treatment of Hardin’s conduct. In addressing whether the trial court erred in denying the second motion to dismiss, we resolve the parties’ dispute as to whether the expert report must address both vicarious and direct liability theories for both theories to move past the expert report stage or whether a report adequate as to one of those theories is sufficient for the entire cause of action to move to the next stage. We address (1) the law concerning construction of a statute, (2) the plain language of the statute, (3) the objectives of the legislation and consequences of the construction of the statute, and (4) the conflict in the existing case law.
1. Law Concerning Construction of Statute
In construing a statute, we must “ascertain and give effect to the Legislature’s intent.” HCBeck, Ltd.,
2. Analysis of Plain Language of Statute
We begin by examining the plain language of the statute. Id. In pertinent
(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted .... Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.
(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall ... enter an order that ... dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.
Tex. Crv. Prac. & Rem.Code Ann. § 74.351 (emphasis added).
Chapter 74 defines “claim” as “a health care liability claim.” Tex. Civ. Prao. & Rem.Code Ann. § 74.351(r)(2). In turn, a “health care liability claim” is defined as:
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.
Id. § 74.001(13) (West Supp.2010) (emphasis added). Although not defined by Chapter 74, a cause of action has been described by the Texas Supreme Court as “a fact or facts entitling one to institute and maintain an action, which must be proved in order to obtain relief’ and as a “group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” In re Jorden,
Replacing the word “claim” with the term “cause of action” and its definition, the plain language in section 74.351(a) requires the claimant to file an expert report for each physician or health care provider against whom a cause of action— i.e., group of operative facts giving rise to one or more bases for suing — is asserted. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a); In re Jorden,
Similarly, by replacing the word “claim” with the term “cause of action” and its definition, the plain language in section 74.351(b) requires dismissal of the cause of action, or group of operative facts giving rise to one or more bases for suing, with respect to the physician or health care provider. See Tex. Civ. Prac. &
3. Objectives of Legislation and Consequences of Construction
An examination of other sections in Chapter 74 suggests that the focus is on causes of action rather than particular individual liability theories contained within a cause of action. The expert report is due within 120 days of the filing of the original petition. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp.2010). Additionally, prior to the service of the expert report, discovery is limited to written discovery with no more than two depositions on written questions and no discovery from nonparties. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s), (u). The short deadline for filing an expert report and the limited discovery make it impractical to expect a claimant to know all possible liability theories within a cause of action when he files his expert report.
An expert report required by section 74.351(a) is meant to serve two purposes: (1) “to inform the defendant of the specific conduct the claimant is questioning” and (2) “to ‘provide a basis for the trial court to conclude that the claim has merit.’ ” Leland v. Brandal,
In its motion for en banc reconsideration, Certified EMS argues that our holding contravenes the public policy behind Chapter 74, namely, “to inform the defendant of the specific conduct the claimant is questioning” in the health care liability claim. Leland,
We disagree that our holding permits a plaintiff to proceed without giving a defendant notice of the cause of action. A plaintiff receives notice of a cause of action through the requirement that at least one liability theory must be adequate. Although our holding allows a plaintiff to pursue a liability theory not found in the expert report, he may do so only if the additional theory arises out of the same group of operative facts set forth in the expert report and is asserted against the same defendant. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a); In re Jorden,
Our holding not only places the defendant on notice concerning the cause of action, but it also satisfies the other purpose of the expert report by functioning as a gatekeeper. We require early dismissal of a particular defendant if the expert reports fail to show that there is a cause of action against a defendant. See Tex. Civ. PraC. & Rem.Code Ann. § 74.351(b), (s), (u); TTHR,
If we were to narrowly construe the word “claim” to mean a particular liability theory — rather than the group of operative
Chapter 74’s focus on cause of action— “group of operative facts giving rise to one or more basis for suing” — means that the failure to provide an expert report adequate as to at least one liability theory arising from the “group of operative facts” requires the dismissal with prejudice of all liability theories within that cause of action. Although it is correct to observe that a plaintiff may proceed against a defendant if he asserts at least one liability theory within a cause of action, it must also be noted that a defendant is entitled to dismissal with prejudice of all liability theories within a cause of action if no liability theory is timely shown by an expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (b). The dismissal of an entire cause of action satisfies the intent of the Legislature to require the early dismissal of defendants from frivolous lawsuits. See Leland,
4. Conflict in the Case Law
The Supreme Court of Texas has not directly decided whether an expert report must set out each and every liability theory within a cause of action. The court has discussed the meaning of “cause of action” as used by Chapter 74 by stating, “The statute here confirms in several places that the term ‘cause of action’ was used in the general sense relating to underlying facts rather than a more limited sense applica
Intermediate courts of appeals are split concerning whether an expert report adequate as to at least one liability theory within a cause of action is sufficient to permit other liability theories within the same cause of action to proceed although the expert report is deficient with respect to the other theories.
In its motion for en banc reconsideration, Certified EMS contends that our holding is contrary to the decisions of other courts of appeals. See River Oaks Endoscopy Ctrs., L.L.P. v. Serrano, No. 09-10-00201-CV,
Our holding is also supported by our earlier suggestion that an expert report need not set forth each liability theory within a cause of action. See Clear Lake Rehab. Hosp. L.L.C. v. Karber, No. 01-09-00883-CV,
We recognize that, in his report, Evans opines that Clear Lake’s breach of the standard of care proximately caused not only Karber’s fracture but also the subsequent infection and amputation. However, because Karber has asserted a healthcare liability claim based, at least in part, upon her fracture, and because we have concluded that Evans is qualified to opine on the causal relationship between Clear Lake’s breach and Kar-ber’s injury of a fracture, we conclude that the trial court acted within its discretion in determining that Evans was qualified to offer causation opinions in support of Karber’s claim.
Id. This Court, therefore, found that the adequacy of the report as to the fracture was sufficient for the entire cause of action, which included liability theories based on the subsequent infection and amputation, to move forward. Id. However, in Karber, this Court did not directly discuss whether a claim should be split or under what circumstances that should occur, nor was that argument made by the parties in that appeal. See id.
In its motion for en banc reconsideration, Certified EMS suggests en banc reconsideration is required because our opinion conflicts with a prior decision of this Court. See Univ. of Tex. Med. Branch v. Railsback,
• adequate against the hospital for vicarious liability for acts and omissions premised on the conduct by Dr. Ivey and the hospital’s nursing staff; and
• inadequate against the hospital for direct liability and vicarious liability for acts and omissions premised on the conduct by Dr. Maxwell.
Id. at 866, 870. Railsback, therefore, split the health care liability claim by allowing the vicarious liability theories premised on the conduct by Dr. Ivey and the hospital’s nursing staff to move forward but dismissing the vicarious and direct liability theories premised on the conduct of Dr. Maxwell. Id. If we applied our present holding to the facts in Railsback, we would determine that, despite the expert report’s failures concerning some of the liability theories, the entire cause of action concerning the placement of the tourniquet could move forward against the hospital because at least one liability theory within the cause of action was shown by the expert report. See id. However, we note that the argument presently before us does not appear to have been made by the parties in Railsback and the opinion does not directly discuss the propriety of allowing a cause of action to proceed against a defendant when not all liability theories are shown by the expert report. See id. Therefore, the implicit holding of Rails-back relied on by Certified EMS in its motion for en banc reconsideration does not constitute binding precedent. See Cooper Indus., Inc. v. Aviall Servs., Inc.,
5. Analysis of Report Filed by Potts
Here, the facts giving rise to Potts’s right to institute and maintain an action include Hardin’s actions and the actions of Certified EMS in employing, hiring, training, and supervising Hardin. This group of operative facts give rise to at least two bases for suing Certified EMS— direct liability and vicarious liability. In other words, although Potts has asserted two bases for a potential recovery from Certified EMS, it is one “cause of action” and thus one “claim” under chapter 74. Compare Tex. Civ. Prao. & Rem.Code Ann. § 74.001(a)(13) (defining “health care liability claim”) with In re Jorden,
We conclude that Potts’s expert report adequately addresses facts describing the improper sexual conduct by the nurse, and the report, therefore, is adequate as to his employer, Certified EMS, under the vicarious-liability legal theory of respondeat superior. Because the lawsuit by Potts may proceed against Certified EMS under at least one liability theory for the cause of action concerning the nurse’s improper sexual contact with Potts, Potts may proceed with any and all liability theories for this cause of action, regardless whether those other liability theories were shown in an adequate expert report. In contrast, if Potts had not provided an adequate expert for any liability theory for this cause of action, the entire cause of action would have been dismissed with prejudice, regardless whether those theories had been pleaded. We hold the trial court properly denied the motion to dismiss.
We overrule Certified EMS’s fifth issue.
Conclusion
Because we lack jurisdiction, we do not address Certified EMS’s appeal concerning its first motion to dismiss. We affirm the trial court’s order denying Certified EMS’s second motion to dismiss.
Notes
. We distinguish this situation from Rivenes v. Holden,
. This Court is aware that the Texas Supreme Court has analyzed the adequacy of a report with respect to a health liability claims by detailing the various liability theories within it. In re McAllen Medical Center,
. In its motion for en banc reconsideration, Certified EMS asserts that we “incorrectly opine[ ] that the courts of appeals are split as to whether an expert report must address both vicarious and direct liability theories.” This assertion misstates our opinion. The split to which we actually refer concerns multiple liability theories in general, not vicarious versus direct liability theories in particular.
. Unlike Pokluda, the Fourteenth court of appeals has also suggested that an expert report is required to separately address direct and vicarious liability theories against a single defendant for the report to be adequate as to those theories. See Obstetrical & Gynecological Assocs. v. McCoy,
. In Serrano, the plaintiff pleaded health care liability claims against a doctor and a health care provider that employed the doctor. River Oaks Endoscopy Centers, L.L.P. v. Serrano, No. 09-10-00201-CV,
. In Slaughter — another case out of the Beaumont court of appeals — the plaintiff pleaded health care liability claims against a doctor and a health care provider. Beaumont Bone & Joint Inst., P.A. v. Slaughter, No. 09-09-00316-CV,
. In Petty, the plaintiffs pleaded health care liability claims against a doctor and a health care provider. Petty v. Churner,
. In McCoy, the plaintiffs pleaded health care liability claims against two doctors and a health care provider, which employed the doctors. Obstetrical & Gynecological Assocs., P.A. v. McCoy,
. In Knapp, the plaintiff pleaded health care liability claims against a nurse and a health care provider that employed the nurse. Knapp Med. Ctr. v. Molina, No. 13-09-00372-CV,
Concurrence Opinion
concurring.
I join the majority opinion. I write separately to respond to Certified EMS’s arguments on rehearing that this Court’s opinion in the instant case conflicts with our opinion in University of Texas Medical Branch v. Railsback,
Justice JENNINGS, concurring.