*1 City Tax See in the Code. cedures Parkinson, 419 S.W.2d
Houston v. 1967, writ ref d (Tex.Civ.App.-Houston
n.r.e.) (due complain- if process is satisfied notice). actual
ing party had
Conclusion by denying hold the trial erred jurisdiction. to the Taxing plea Units’ 42.09(a)(2); Ann. Tex. Tax Code Dist., Appraisal
Cameron Park,
502; First Bank Deer see also taxpayer did (stating at 592 ownership preserve right challenge
not ownership un protest stock because 41.41 Tax section
der Code
filed). sole Taxing We sustain Units’ the order of the trial
issue. We reverse judgment granting render
court and jurisdiction.
plea EMS, INC. CPnS
CERTIFIED d/b/a
Staffing, Appellant, POTTS, Appellee.
Cherie
No. 01-10-00106-CV. Texas, Appeals
Court of (1st Dist.).
Houston 19, 2011.
May *2 Newsom, Robbins, Lunceford, Les
Rigby, Houston, Hardin, Appellant. McDowell, Wells, John T. E. Clinton *3 Wells, Houston, L.L.P., McDowell Vincent Marable, III, Webb, P.C., L. Paul Whar- ton, Appellee. for JENNINGS,
Panel consists of Justices ALCALA, and SHARP. ON REHEARING
OPINION ALCALA, ELSA Justice. interlocutory appeal, appellant, In this EMS, Staffing Inc. CPnS Certified d/b/a/ (“Certified EMS”), challenges the trial motion to denying court’s order dismiss appellee, the health care claim of has filed a Cherie Potts. Certified EMS reconsideration, motion for en banc and response Potts has filed a to that motion. construe EMS’s motion as Certified rehearing and a motion both motion for en banc reconsideration. See Brook Bros., Smith, Inc. v. shire 2004, pet. (Tex.App.-Houston [1st Dist.] denied). January our We withdraw replace and opinion judgment and opinion judgment; and them with this is, motion for en banc reconsideration therefore, Richardson-Eagle, moot. See Mercer, Inc., M. Inc. v. William (Tex.App.-Houston [1st denied). 2006, pet. Dist.] that alleging Potts sued Certified vicariously liable for an directly it was and employees. ap- On by assault one of its that the trial peal, Certified EMS contends (1) Potts an exten- granting court erred cure deficiencies her sion of time to reports expert reports original because the qualify Potts do not served and, therefore, the first motion to reports (2) granted, have been Mayfield, Nathan Mont- dismiss should Debra Ibarra Moore, EMS’s second motion denying Jackson & Certified gomery Rymer, Rymer, Lunceford, in the ulti- Echols, P.C., dismiss based on deficiencies Sprott, Erin E. respondeat superior theory filed Potts. We conclude reports mate jurisdiction training over liable for its own negligence that we lack supervising of the first motion to dis- Hardin. appeal EMS’s miss, reports concerns Potts’s which reports Potts two served granted the court were filed before purported to be under file reports. extension of time to corrected Chapter 74 of the Practice Texas Civil reports ultimately Although the report, by Remedies Code. first Nurse Potts were as to her filed Foster, stated that Hardin’s conduct liability, pleaded theories for direct nursing practice evidence of substandard *4 properly the trial court denied conclude Hardin, by whom em- she identified as an motion to because Certified EMS’s dismiss ployee “Temporary Nursing Agen- of a adequate Potts’s was for vi- cy/Service, Agency Name of or Director liability. carious We affirm the order of are unknown at this time.” The second the trial court. Harrison, Ph.D., Dr. report, by Kit stated that Potts is suffering psychological inju-
Background ries due to Asserting reports assault. to Potts was admitted Christus St. Cath- statutorily they were insufficient so that Texas, Hospital Katy, in in erine’s Novem- effectively no constituted Certified experiencing complications dismiss, ber 2008 after EMS filed its first motion to recurring kidney from a infection. Potts claiming that Nurse Dr. Foster’s and Har- that, Christus, alleged during stay her expert reports identify rison’s do not Cer- Hardin, nurse, name, Les a male asked her and by tified EMS state the standard of her questions EMS, husband several intimate applicable care to Certified describe concerning practices, her sexual which she how Certified conduct fell EMS’s below or her husband She further care, answered. that standard and failed to show that, alleged day following ques- on the how Certified EMS’s conduct or omissions tioning, Hardin returned to her room in injury. caused Potts’s The motion also evening. explained late She that Har- conelusory asserts that are din, acting pretense under the false concerning description of the standard of examination, performing a pro- Hardin, normal applicable to Nurse how ceeded to examine her in a manner that Nurse Hardin’s conduct fell below that left her exposed care, breasts and that he standard of and how that conduct touched her and other breasts areas of her injury. Finally, caused Potts’s as to causa- body in an inappropriate tion, and unwelcome the motion asserts that the reports manner. fail to show Nurse Foster and Dr. qualified opinions Harrison are to offer on reported Potts Hardin’s conduct physician. causation because neither is a nursing risk-management supervisor. Eventually, it was disclosed that Hardin The trial court denied Certified EMS’s not a regular employee was of the hospital motion to dismiss granted Potts a 30- but temporarily working was at the hospi- day extension to supplement amend or her EMS, tal as an employee of Certified reports. expiration Before the of the 30- staffing agency. incident, extension, nurse day After the supplemental Potts filed a Potts complained anxiety panic at- from Nurse Foster a report eventually brought tacks. She suit with curriculum vitae expert, from new asserting Altschuler, M.D., Certified EMS that it was vicari- Dr. Milton responding to ously liable for Hardin’s conduct objections under Certified EMS’s concerning Rice, (Tex. timely EMS filed a Ltd. causation. Certified 2009). dismiss, which to the trial second motion subsequently denied. The second First Motion to Dismiss repeats challenges
motion to dismiss issues, made in its first motion to dismiss. earlier In first four Certified EMS also asserts Dr. The second motion contends that the trial court abused its not filed granting Altschuler’s discretion an extension of time report” “no it fails cure and constitutes because deficiencies because the initial re- filed specify ports name or to Potts were so specific expert report. light EMS’s conduct. to constitute implicate Certified that Dr. the trial extension of time to Additionally, it asserts Altschuler court’s cure deficiencies in the filed original reports because his qualified Potts, we jurisdiction conclude we lack do not mention that he is curriculum vitae issues, over Certified EMS’s first four in actively medicine or otherwise practicing which it challenges deficiencies her qualified opine pres- on causation *5 original reports. the second Finally, ent case. motion as- report serts Dr. con- that Altschuler’s is Applicable A. Law clusory as to proximate and insufficient 74.351, Pursuant to section medical-mal causation. practice plaintiffs must serve each defen physician provider dant and health care expert the im- together, reports Viewed expert voluntarily with an report or non- plicate by explaining Hardin’s conduct that suit the action. Tex. Civ. Prao. & Rem.Code in a body sexually inap- he touched Potts’s 74.351(a) (West § Supp.2010). If a ANN. he propriate caring manner when was for report, claimant furnishes an expert hospi- her as her nurse while she was in a a defendant file a motion challenging tal. expert reports’ The description report’s the The trial adequacy. Hardin employee as an Certified EMS grant appears, shall if it motion support theory that Potts’s Certified EMS after a does hearing, report not vicariously liable under doctrine of represent good faith effort to comply respondeat superior. expert reports, expert of an statutory definition however, specifically do address how “ 74.351(l). report. ‘Expert § See id. re might be liable for means an port’ report a written its own conduct. summary provides a fair ex report pert’s opinions as of the date of the Review Standard of care, regarding applicable standards manner in rendered rulings We review trial court’s which the care or failed concerning expert reports physician abuse of dis health Gutierrez, standards, cretion. the causal Walker v. 111 S.W.3d meet rela (Tex.2003); tionship inju 62 Am. between that failure and Transitional Care Palacios, (Tex. harm, ry, 46 or claimed.” Tex. damages Ctrs. S.W.3d 877 Civ. 2001). (r)(6); § 74.351 A trial court abuses discretion if Prac. Jeli Rem.Code Ann. & (Tex. Casas, arbitrarily it acts or nek v. 540 unreasonably without S.W.3d 2010) (“[T]he any guiding reference to rules need not marshal all princi plaintiff Walker, ples. proof [expert] report, 111 S.W.3d at Stat of his in the but he See construction, however, utory include to allow legal is a must sufficient detail HCBeck, question novo. court to if the claim that we review de trial determine has Palacios, merit.”); report). Assuming 877-78 constitute no that a expert’s opin- must include (expert report purported report could be so deficient that statutory three elements —stan- ions on effectively it is find that breach, causation); care, Gray dard of these do not meet that standard. L.P., Bayshore, v. CHCA id.; Wooten, see also Samlowski v. 2006, no (Tex.App.-Houston Dist.] [1st (Tex.2011) (plurality op.) pet.). expert report “If an has not been (Medina, writing, joined by J. Jefferson the report served ... because elements of JJ.) (“A Hecht, deficient deficient, may grant are found the court ... the predicate for the exercise of the 30-day the claimant in one extension to trial court’s discretion under section deficiency.” order to cure Tex. Civ. 74.351(c)” time.); grant extension of id. 74.351(c). § & Ann. Prao. Rem.Code (Wainwright, at 417 J. dissenting part 51.014(a)(9) (“Unless concurring in part)
Section
Texas
Practice and Remedies Code author
Civil
required
addresses all of the
ele-
interlocutory appeal
izes an
from an order
74.351(c)
ments, section
does not authorize
all or
part
sought
that denies
relief
extension.”)
a trial court to consider an
74.351(b).
by a motion under section
Gutierrez,
(citing
Walker v.
51.014(a)(9)
(Tex.2003) (under
Civ. Prao. & Rem.Code Ann.
statute,
predecessor
(West 2006).
If no
is filed
expert report that omits at least one of the
deadline,
may properly appeal
a defendant
statutorily-required
elements of an
denying
order
its motion to dismiss.
care, breach,
and cau-
—standard
*6
Umberson,
763,
Morris v.
312 S.W.3d
766
eligible
grace
sation—is not
for a
period)).
2009,
(Tex.App.-Houston
pet.
[1st Dist.]
In examining
inadequate
whether an
re
denied).
report
timely
When a
has been
port
effectively
is
no
courts have
served, however,
may
ap
a defendant
not
report
considered whether the
implicates
peal
denying
from an order
a motion to
defendant,
if the trial
the conduct of the
grants
regardless
dismiss
court also
of
74.351(c)
extension under section
of the whether the
actually
defendant is
identi
Texas
Practice and Remedies
Morris,
Civil
Code.
by
fied
name.
B. jurisdiction determined that it lacked over timely reports Potts did file that she ”); healthcare appeal.’ [the defendant’s] satisfy asserts would the requirements for McKeever v. Cerny, 266 S.W.3d an expert report. Certified EMS asserts (Tex.App.-Corpus Christi pet.) no reports that these were so as (report implicates phy doctor but not expert reports. constitute as no Matthews, Ogletree v. sician assistant who assisted doctor is con (Tex.2007) (Willett, J., (de- concurring) sidered to report” be more than “no so scribing reports some so may grant deficient as to that trial court extension of Second Motion to Dismiss deficiency).1 cure its time to they do not mention Although issue, fifth EMS con- Certified name, first employer specifically by denying that the trial court tends erred implicate Potts filed Specifically, its second motion to dismiss. employer. and his Fos conduct of Hardin Certified EMS asserts that Nurse Foster improper mentions Hardin’s ter’s qualified expert opin- is not to render the explains that at the time conduct her is supplemental report ion and that by a “Tem employed the conduct he was identify deficient because it not does Agency/Service.” This porary Nursing applicable of care standard em implicate Hardin’s was sufficient alleged EMS or the breaches of the stan- EMS, purpose ployer, Certified chal- dard of care. Certified EMS also an extension of granting the trial court Dr. lenges Altschuler in her to Potts to cure the deficiencies time con- contending implicate it does not 768; Id.; Morris, 312 reports. EMS. duct Certified Inc., Imaging, see also Gardner U.S. (“When (Tex.2008) 671-72 Qualifications A. of Nurse Foster alleged health care is party’s 74.402, pertinent part, pro- Section vicarious, adequately purely vides, that party’s the actions of implicates sufficient.”); Univ. agents employees person qualify as [A] Dale, Tex. Sw. Med. Ctr. v. on the issue of whether witness pet.) (Tex.App.-Dallas departed health care from ac- to mention UT (expert report required per- of care if the cepted standards liabili by name for vicarious Southwestern (1) in a practicing son: ty). that involves the same practice field of were sufficient to original reports as that deliv- type of care or treatment of Certified EMS. implicate conduct pro- ered the defendant health care *7 granted an exten- Because the trial court vider, pro- health care if the defendant in the of time to cure deficiencies sion individual, time the at the vider is Potts, filed we lack reports originally testimony given practicing is or was appeal over EMS’s of jurisdiction Certified the time the claim type of health care at and the denial of its first motion dismiss arose.... Ogletree, four issues. See dismiss its first 74.402(b) § Ann. Crv. Tex. Prao. &Rem.Code (“[I]f report at 321 a deficient 262 S.W.3d (West 2005). in- “Practicing health care” thirty grants trial court a is served and the care “serving consulting as a health cludes extension, that decision—even if cou- day certified, licensed, or being provider and a of a motion to dismiss— pled with denial review.”). in same field as the defen- registered subject appellate Marichalar, distinguish v. Garcia distinguish from v. We also 1. We this situation Rivenes 2005, Holden, (Tex.App.- (Tex.App.-San 340-41 Antonio 257 S.W.3d (hold- denied) pet. jurisdic- [14th Dist.] Houston pet.) (holding appellate court had jurisdiction ap- ing appellate had over appeal defendant was not tion over because despite of time that peal motion for extension reports at all or focus of mentioned granted by trial court because no cases, filed). Certified Unlike these that were report tendered claim- was filed as report and de- implicated EMS was "implicate appellant’s conduct” or ant did not nursing agency. temporary as a scribed position”). appellant "refer to name or provider.” health care Id. dress both vicarious and direct dant 74.401(a). past theories for both theories to move § a expert report stage or whether objected to Nurse adequate as to one of those theories is qualifications because she “does Foster’s sufficient for the entire cause of action to actively practices that she not state (1) stage. move to the next We address provide nursing her to care requiring field concerning the law construction of a stat- setting.” in a patient hospital to a Certi (2) ute, statute, plain language objection ignores plain EMS’s lan fied (3) objectives legislation and 74.402(a) provides of section guage consequences of the construction of provider “practic consulting (4) statute, existing the conflict in the care.” Id. Nurse Foster’s cur ing health case law. riculum vitae states that she is “Nurse “Quali Consultant/Expert and a Witness” Concerning 1. Law Construction ty Depart for the Texas Review Nurse” of Statute Disability Aging ment of Services. statute, In construing a Her curriculum vitae also show give Leg must “ascertain and effect to the that she is licensed as a nurse and holds HCBeck, Ltd., islature’s intent.” Thus, nursing certifications. number begin “plain 352. We with the evidence that Nurse record contains meaning and common of the statute’s a consulting Foster health “servfes] Legislature’s words” to ascertain the in licensed, certified, [is] tent. (citing Dep’t Transp. v. registered in the same field as the defen City Valley, Sunset 146 S.W.3d provider.” dant health care id. Ac (Tex.2004)). “If Legislature provides the trial court cordingly, did not abuse its statutes, definitions for words it uses in determining discretion in Nurse Foster is then we use those definitions in our task.” qualified to offer in this Ebrom, Hernandez case. (Tex.2009) (citing Tex. Gov’t Ann. Code Sufficiency Reports Impli- B. 311.011(b)(West 2005)). rely on the cate Certified EMS’s Conduct plain meaning of the text unless such a reports Certified EMS that the contends construction leads to absurd City results. by Nurse Foster and Dr. Altschuler are Hughes, Rockwall v. deficient because the not impli- do (Tex.2008). 625-26 We consider the stat cate Certified EMS’s conduct. Potts re- ute as a provisions whole and not its *8 sponds petition that she asserts in her Downs, isolation. Cont’l Cas. Co. v. 81 both direct and vicarious (Tex.2002). S.W.3d 805 “We also con Certified EMS. Potts ex- objective sider the Legislature sought the plains that the trial properly court statute, denied to through achieve the as well as the motion to dismiss because Certified consequences the a particular of construc only challenged HCBeck, Ltd., direct tion.” 284 at 311.023(1), theories and left the vicarious the- (citing § Tex. Gov’t Ann. Code (5) (West 2005)). ory unchallenged by accepting adequa- cy report’s treatment of Hardin’s Analysis Language 2. of Plain conduct. addressing In whether the trial of Statute in denying erred the second motion dismiss, resolve parties’ dispute begin by examining plain lan- as to whether the expert report guage must ad- pertinent of the statute. Id. In 74.001(13)(West (empha- § Supp.2010) Practice and 74 of the Civil Chapter part, added). not states, Although sis defined Remedies Code 74, a cause of action has been Chapter claim, (a) a In Supreme the Texas Court as described shall, than the later claimant entitling “a fact or facts one to institute original day 120th after the date action, maintain an which must be filed, par- each serve on petition proved in order to obtain relief’ and as attorney one or party’s ty or operative giving facts rise to one “group with a curricu- expert reports, more suing; or more bases for a factual situa- listed in the expert vitae of each lum to obtain a person tion that entitles one or health physician for each in another In remedy person.” court from liabil- against whom a provider care (Tex.2008) Jorden, 416, re 249 S.W.3d .... Each de- ity claim is asserted Corp. A.H. Belo (orig. proceeding) (quoting pro- or health care physician fendant Blanton, 133 Tex. implicated whose conduct is vider Dictionary (1939); Law BlacK’s any and serve must file 2004)). (8th ed. sufficiency objection to day than the 21st report not later the word “claim” with Replacing served, failing it was after the date its defini the term “cause of action” and 74.351(a) are waived. objections which all tion, plain language section (b) the claimant to file an If, requires or physician as to a defendant or health care physician re- for each provider, care
health against whom a cause of action— provider within the has not been served port (a), i.e., operative giving facts rise to group period specified by Subsection court, suing or more bases for asserted. the motion of the af- one on —is See Tex. Civ. Prac. pro- or health care physician fected & Ann. Rem.Code 74.351(a); Jorden, 249 at vider, § In re ... enter an order that shall action”). By (defining “cause of focus respect claim with ... dismisses the partic of action rather than pro- ing on a cause or health care physician con vider, theories that be refiling ular prejudice action, plain within a cause tained the claim. require does not language § 74.351 Ann. Tex. Crv. Prac. & Rem.Code liability theory every each and to set out added). (emphasis by the claimant might pursued be “claim” as “a health Chapter defines one within long as at least care claim.” Prao. & Civ. action is shown cause of 74.351(r)(2). turn, a § Ann. Rem.Code See Tex. Civ. Prac. report. & Rem.Code as: liability claim” is defined “health care Jorden, 74.351(a); In re action a health a cause of treatment, lack physician by replacing the treatment, Similarly, departure claimed or other *9 care, term “cause of ac “claim” with the of medical word accepted from standards definition, plain language care, and its safety professional or tion” or health or 74.351(b) of requires dismissal relat- in section services or administrative action, group operative or of care, re- the cause of proximately which ed to health claimant, or more bases giving rise to one death of a facts injury sults to or or physician suing, respect with the claimant’s claim or cause of whether provider. See Tex. Civ. in tort or contract. action sounds Prac. & 692 74.351(a) (West 74.351(b); Jorden, § § Supp.2010). In re Ann. Ann. Code
Rem.Code
By focusing
Additionally,
at 421.
on a cause
prior
249
to the service of the
S.W.3d
particular
than
of action rather
expert report, discovery is limited to writ-
be contained
that
within
theories
discovery
depo-
ten
with no more than two
action,
plain language
of
estab-
cause
questions
sitions on written
and no discov-
that
the entire cause of action is
lishes
ery
nonparties.
from
See Tex. Civ. Prac. &
respect
to the defendant
dismissed
(u).
74.351(s),
§
The short
Rem.Code Ann.
has failed to file an
when the claimant
filing
expert report
deadline for
and the
that sets out at least one
expert report
impractical
limited
make it
discovery
liability theory within a cause of action.
expect a claimant to
all possible
know
lia-
See Tex. Civ.
Prac.
Ann.
Rem.Code
&
bility theories within a cause of action
Friend,
74.351(b);
§
Yamada v.
expert report.
when he files his
(“The
(Tex.2010)
192 196
TMLA
expert report required by
An
sec
requires the trial court to dismiss a suit
74.351(a)
pur
tion
is meant to serve two
asserting health care
claims
(1)
poses:
“to inform the defendant of the
or health care
against physician
specific conduct the claimant is question
if the
does not
file an ex-
plaintiff
(2)
ing”
‘provide
“to
a basis for the
defendant.”);
to that
pert report as
In re
trial court to conclude that the claim has
Jorden,
at 421. But if at least
249 S.W.3d
”
Brandal,
merit.’
Leland v.
257 S.W.3d
one
within a cause of action
(Tex.2008)
(quoting
206-07
Am. Tran
expert report,
is shown
then the
Tex.,
sitional Care
Inc. v.
Ctrs.
Palac
with the
may proceed
claimant
entire
ios,
(Tex.2001)).
46 S.W.3d
defendant,
cause of action
in-
way,
this
section
“gate
74.351 serves as a
cluding particular
TTHR,
den,
keeper.”
Guy
L.P. v.
originally part
were not
re-
(Tex.App.-Houston
[1st
port,
long
as those
theories are
2010, no pet.) (citing
Dist.]
Tex. Civ. Prac. &
contained within the same cause of action.
74.351;
§
Murphy
v. Rus
Rem.Code Ann.
Tex.
Civ. Prao. & Rem.Code Ann.
sell,
(Tex.2005)).
Yamada,
74.351(b);
§
195-
expert report requirement
“establishes
196;
Jorden,
In re
An examination of other
is
sections in
Once the
requirement
Chapter
suggests
that the focus is on
met, the
particular
gate-keeping purpose
causes of action rather than
in-
has been
achieved,
may pro
dividual
theories contained within
claimant’s case
ceed,
including
discovery.
cause of action. The
full
See 74.351(s)
days
due within 120
the filing
of the Civ. Prac. & Rem.Code Ann.
*10
original petition. See (providing
discovery
all but
limited
Civ. Prac. & Rem.
that an
can
ory. Observing
expert report
required
expert
until
stayed
served).
74.351(a)
Therefore,
liability
if the
as to a vicarious
theo
adequate
§
be
expert report
an
timely serves
ry
any specific
claimant
without mention of
conduct
at least one lia
adequately
defendant,
addresses
Imag
Gardner v. U.S.
health
theory against a defendant
bility
Inc.,
(Tex.
671-72
ing,
proceed,
suit can
includ
provider,
care
2008), Certified EMS contends that our
every
the need for
discovery, without
ing
holding
Chapter
contradicts
74’s notifica
re
theory to be addressed
liability
policy by allowing plaintiff
tion
a
to assert
Pokluda,
Med. v.
port.
Baylor
Coll.
a direct
claim without ever inform
of
(Tex.App.-Hous
n. 3
ing
any
specific
the defendant of
of its
pet.) (explaining
ton [14th Dist.]
conduct.
care
claim
dismissal of health
holding permits
that our
a
disagree
We
was not warranted because
a defen-
plaintiff
proceed
giving
to
without
74.351(r)(6)’srequirement
satisfied section
A plain-
dant notice of the cause of action.
alleged deviation from
respect
to
tiff
notice of a cause of action
receives
“regard
during surgery
standard of
requirement that at least one
through the
report also satisfies
less of whether [the]
adequate. Al-
liability theory must be
74.351(r)(6)’s
with re
requirements
section
a
though
holding
plaintiff
our
allows
from
alleged deviations
spect to [doctor’s]
in the
pursue
a
not found
surgery”).
standard of care before
so
if the
expert report, he
do
reconsidera
In its motion for en banc
theory arises out of the same
additional
tion,
argues
EMS
that our hold
Certified
in the
group
operative
facts set forth
public policy
behind
ing contravenes
against the
expert report and is asserted
74, namely, “to inform the defen
Chapter
See Tex. Civ. Prac. &
same defendant.
claimant is
specific
conduct the
dant
74.351(a);
Jorden,
§
In re
Rem.Code Ann.
in the health care
questioning”
(defining
“cause of ac-
249 S.W.3d at
Leland,
at 206-07.
claim.
giving
“group
operative
tion” as
facts
interprets
purpose
this
Certified EMS
suing”).
or more bases for
rise
one
report is intended to
mean that an
therefore,
defendant,
concern-
is on notice
“ap
the defendant on notice as to
put
the basis of the
ing the conduct that forms
care, the manner in
plicable standards of
of action.
cause
physician
which the care rendered
meet the
health care
failed to
or
the defen-
holding
only places
Our
standards,
relationship be
and the causal
cause of
concerning
on notice
dant
harm,
injury,
that failure and the
tween
action,
pur-
it
satisfies the other
but
also
& Rem.
damages claimed.” Tex. Civ. PRAC.
functioning as
expert report by
pose of
74.351(r)(6).
§
Code ANN.
early
require
dismissal
gatekeeper.
a
plaintiff
a
holding permits
notes that our
if the
particular
defendant
plead
claim to
a cause of
fail to show that there is
a defen
liability theory against
vicarious
See Tex. Civ.
action
a defendant.
dant,
expert report adequate
serve
(u);
74.351(b),(s),
PraC. & Rem.Code
Ann.
plead
then later
a direct
theory,
to that
but
Leland,
319-320;
TTHR, 326 S.W.3d at
theory against the same defendant
at 207.
having
without ever
to submit
narrowly construe the
If we were to
the standard
specifically addressing
standard,
particular
“claim” to mean
care,
word
the failure to meet that
group
operative
than the
the
to the direct
and causation as
—rather
*11
(b).
74.351(a),
to one or
giving
§
facts
rise
more basis for Code Ann.
The dismissal
suing
contemplated by
dismissal
sec- of an entire cause of action
satisfies
—the
74.351(b)
require
tion
would
with
dismissal
Legislature
require
intent of the
only
to that
prejudice
particular theory.
as
early dismissal of
from
defendants
frivo-
contrary to the
This is
intent
the statute
Leland,
lous lawsuits. See
257 S.W.3d at
early
to dismiss
a
defendant from law-
(noting
purpose of section 74.351 is to
See suit.
frequency
severity
“reduce excessive
Civ. Prac. &
ANN.
Rem.Code
74.351(b).
interpretation suggested
The
liability
of health care
claims” while strik-
require
Certified EMS would
the dis-
ing balance between “eradicating frivolous
particular liability
missal of
theo-
ones”).
preserving
claims and
meritorious
ry
not shown
expert report
rather Because the
Legislature
intent of the
is to
than the dismissal of the entire cause of
require
early
dismissal of the entire
74.351(b)
action. Section
states
cause of action from frivolous lawsuits filed
trial court shall enter an order that “dis-
defendants,
we are unpersuaded
respect
misses the claim with
physi-
argument
Certified EMS’s
that our de-
provider,
cian or health care
preju-
with
cision
allow a plaintiff,
would
after the
refiling
By
dice to the
claim.”
expert report filing stage, to later dismiss
claim,
applying
statutory
definition for
vicarious liability
pursue
theories and
di-
action,”
which is “cause of
the section re-
rect
presented
theories never
in an
quires that the trial court enter an order
above,
report. As we have noted
that dismisses the cause of action with
the purpose
is to
respect
to the physician or health care
gatekeeper
serve as a
that allows nonfrivo-
provider with prejudice to the refiling of
lous causes of action
a defendant to
Therefore,
the cause of action.
under this
past
move forward
an initial stage so that
interpretation,
plaintiff
could not contin-
discovery
full
concerning the
lawsuit
ually splice a cause of action
multiple
into
place.
take
After
discovery
full
has taken
liability theories and continue to file these
place, a plaintiffs approach
lawsuit
alternate theories without prejudice if the
might vary from
approach,
its initial
which
particular
liability theory
not been
had
permitted
is
under the
report stat-
presented
pleading.
before in a
ute,
long
as the
theories under-
Chapter 74’s focus on cause of action— lie the same cause of action. See In re
“group
operative
giving
facts
rise to one
Jorden,
695
although
to proceed
cause of action
(determining
same
suits.”
Id.
only to filed
ble
by statuto
disallowed
depositions
respect
202
with
expert report
rule
is deficient
74). Though indi
chapter
ry language
Pokluda,
Compare
the other theories.3
to
rect,
approval
expressed
court has
(declining
at 123 n. 3
to ad
283 S.W.3d
underlying
general,
an examination
concerning
adequacy
report
pre-
dress
constitutes a cause
what
facts to determine
surgery breaches of standard of care when
Yamada,
74. See
Chapter
of action under
expert
report
adequately
addressed
(“Our prior decisions
at 197
385 S.W.3d
occurring during surgery),4 Pe
breaches
or
gravamen
if the
to the effect
are
Toscano,
665,
droza v.
293 S.W.3d
668
of action is a health
essence of a cause
(con
2009, no
(Tex.App.-San
pet.)
Antonio
claim,
the claim to
allowing
then
cluding
testifying expert
that when
relied
into a multitude of other
spliced
split
be
than those disclosed
on different acts
differing standards of
of action with
causes
Chapter
expert
testifying
care,
would con
procedures
damages,
testifying
from
precluded
was not
require
explicit
Legislature’s
travene the
asserting
he was “not
a different
because
Jorden,
ments.”);
249 S.W.3d
In re
action, only
negligence
a different
cause of
421.2
Dubose,
Schmidt v.
theory”),
split
are
appeals
courts of
Intermediate
(Tex.App.-Beaumont
expert report
an
ade
concerning whether
causes of action do not
pet.)
(“Multiple
no
to at
least one
quate as
physician
on whether the
dependent
arise
to
of action is sufficient
within a cause
before, during, or after the
negligent
within the was
other
theories
permit
reconsideration,
Supreme
In motion for en banc
the Texas
3.
its
Court is aware that
2. This
adequacy
report
“incorrectly
analyzed the
of a
Court has
Certified EMS asserts that
respect
a health
claims
appeals
split
to
opine[
are
that the courts
]
detailing
liability theories within
the various
expert report
whether an
must address
to
Center,
Medical
it. In re McAllen
and direct
theories.”
both vicarious
McAllen,
(Tex.2008).
464-65
opinion.
our
The
This assertion misstates
court, first,
expert report was
said that the
actually
split
refer concerns mul-
to which we
neg
hospital was
that the
to show
general, not vicarious
tiple
theories in
supervising
ligent
hiring, retaining, and
particular.
theories in
versus direct
purported expert was not
because the
doctor
report.
at 463.
qualified
Second,
make the
Id.
Pokluda,
ap-
the Fourteenth court
4. Unlike
the court stated that the
suggested
peals
that an
has also
liability be
inadequate to show vicarious
was
required
separately address direct
suggest
hospital
failed to
cause
single
de-
vicarious
the details of the doctor’s medical
controlled
adequate
be
as to
fendant for the
Third,
explained
the court
tasks. Id. at
Gynecologi-
&
those theories.
Obstetrical
concealment,
fraud,
civil
that the
fraudulent
McCoy,
cal Assocs.
claims
conspiracy,
misrepresentation
2009, pet. de-
(Tex.App.-Houston
Dist.]
[14th
credentialing
re
claims that
were clandestine
nied) (“If
McCoy
has
OGA is correct
quired
expert report, which had not been
it,
negligence against
Although
asserted claims of direct
provided by
claimant.
Id.
it
presented by
OGA with
McCoy
required
the theories
to serve
examined each of
then
claimant,
why
explain
addressing
the court did so to
report specifically
support
presented could
none of the theories
just
conduct of Drs.
rather than
conduct
hospital.
Id.
the cause of action
is vicarious-
and Gunn for which OGA
Jacobs
express any comment con
The court did not
court, however,
liable.”).
ultimately
ly
cerning
expert report would have
whether the
required in
expert report was
held that no
adequate
the theories within
been
as to all
that case.
any
had been
action if
of the theories
cause of
report.
supported
be
found to
with Farishta
v. Tenet
cut.”),
(Tex.App.-Dallas
pet.);
wrong
Dallas,
Inc.,
Hosps.
Inst.,
Healthsystem
Beaumont Bone &
P.A. v.
Joint
*13
448,
09-09-00316-CV,
Slaughter, No.
(Tex.App.-Fort
Worth
2010 WL
2007,
pet.) (affirming
730152,
no
denial of dismissal
(Tex.App.-Beaumont
at *4-5
Mar.
denied) (mem.
injuries
ordering
4, 2010,
but
dismissal
as to some
op.); Obstet
pet.
Assocs.,
injuries
appellant’s petition
as other
where
rical & Gynecological
P.A. v.
multiple injuries
resulting
(Tex
from
alleged
McCoy, 96,
.App.
to meet same standard of
doctor’s failure
2009,
denied);
Houston
pet.
[14th Dist.]
yet expert
report
only
care
addressed
Molina,
Knapp Med.
v.
Ctr.
No. 13-09-
injuries).
some
00372-CV,
(Tex.
2009 WL
at *5
App.-Corpus
pet.)
Christi Nov.
no
In
motion for en banc reconsidera
(mem. op.).
agree
with Certified EMS
tion,
contends
that our
that our decision is inconsistent with the
contrary
to the decisions of oth
holding
Endoscopy decisions from the Beaumont
ap
court of
See River
Oaks
er
appeals.
courts
s.,
Serrano,
peals in Serrano5
L.L.P. v.
Slaughter,6
and
but we
No. 09-
Ctr
(Tex.
10-00201-CV,
disagree with
any
at *2
its characterization of
WL
27, 2011,
App.-Beaumont
holdings
Jan.
no
conflict in the
of the
pet.)
other courts
Churner,
(mem.
op.); Petty v.
in Petty,
appeals.
example,
For
the
Serrano,
plaintiff pleaded
In
liability
against
5.
the
health care
claims
a doctor
liability
against
provider.
claims
a doctor and a health
and a health care
Beaumont Bone
Inst.,
provider
employed
care
that
the
Slaughter,
doctor. Riv
& Joint
P.A. v.
No. 09-09-
n Centers,
Serrano,
00316-CV,
Endoscopy
er Oaks
L.L.P.
(Tex.App.
2010 WL
at n 09-10-00201-CV,
4, 2010,
denied) (mem.
No.
2011 WL
pet.
Beaumont Mar.
27, 2011,
(Tex.App.-Beaumont
pet.)
op.).
plaintiff alleged
Jan.
The
the doctor was
(mem. op.).
plaintiff alleged
directly
negligence.
The
plain
the doctor
liable for
Id. The
negligence.
directly
alleged
was
liable for
provider
directly
Id. at *3.
tiff
the
was
liable for
alleged
plaintiff
provider
the
negligence
vicariously
was
neg
liable for the
doctor,
negligence
vicariously
ligence
liable for
liable for
physician,
of the
another
the
schedulers,
negligence.
pro
appointment
the doctor's
Id. at *3. The
and the medical as
''contending]
vider
filed motion to dismiss
sistant.
Id. After the trial court denied the
dismiss,
plaintiff]
provider’s
did not submit an
[the
motion
provider
the
report
liability
on her direct
interlocutory appeal.
theories of recov
filed an
Id. The Beau
ery against” it. Id. at *1. After the trial
appeals
mont court of
determined that the
dismiss,
provider's
denied the
motion to
report
adequate
was
as to the vicari
provider
interlocutory appeal.
filed an
liability
negligence
ous
theories based on the
doctor,
appeals
The Beaumont court of
schedulers,
held that the
appointment
of the
plaintiff
required
expert reports
was
submit
and the medical assistant.
Id. at *4. Howev
er,
liability
on both the direct and vicarious
theo
report
it determined that the
was inade
ries,
separate
which it
described
health
quate
liability theory
as to the vicarious
based
liability
claims. Id. at *2. The court then
physician’s negligence.
on the other
Id. at
determined that the
was inade
Finally,
report
*3.
it determined that the
was
quate
liability
as to the direct
theories assert
inadequate
as to the direct
theories
provider.
Noting
ed
Id. at *2.
provider.
asserted
Id. at *4. Ac
challenged
adequacy
had not
cordingly,
appellate
court reversed the
as to the vicarious
theo
denying
provider’s
trial court's order
mo
ries,
appellate
court reversed the trial
tion to
dismiss as to the vicarious
court’s order
to the extent that it denied
physician’s negli
based on the other
dismissal of the direct
Id. at
theories.
gence
and the direct
theories.
Id. at
*3.
agree
*5. We
with Certified EMS that the
appeals' holdings
Beaumont court of
in Serra
Slaughter
Slaughter
case
present
out of
Beau
no and
conflict with our
—another
appeals
plaintiff pleaded
holding.
mont court of
—the
miss,
which is also consistent with our
determined
appeals
court of
Dallas
present holding, although
theo-
the basis for ai-
any
was
lowing
certain
to move
of the entire
required
the dismissal
ry
failure to
case,
present
party’s
with our
forward was
which is consistent
object
adequacy
report.8
Four-
Similarly, McCoy,
holding.7
Furthermore,
Corpus
court of
determined the
Christi
appeals
teenth court of
ques-
not reach the
appeals
Knapp
as to at
least one
did
adequate
tion whether
the direct
liability theory within a cause of action
*14
to dis-
could move forward if the
was ade-
the denial of the motion
affirmed
negligence.
pleaded
plaintiffs
liable for
Id. The
al-
Petty,
plaintiffs
In
the
health care
7.
(1)
liability
against
leged
provider
vicariously
and a health
claims
a doctor
the
liable
Churner,
Petty
respondeat
provider.
superior
under the doctrine of
for
pet.).
(2)
The
(Tex.App.-Dallas
negligence;
the
the doctors’
liable under
directly
alleged
liable
plaintiffs
the doctor was
Texas Professional Association Act based on
alleged
plaintiffs
conduct;
negligence.
(3)
Id. The
also
the doctors’
liable for the doc-
vicariously
provider were
the doctor and the
(4)
gross negligence; and
on
tor's
liable based
negligence.
at
a technician’s
Id.
liable for
allegation
vice-principal
a
and an
that
provider
the doctor and the
133-34. Both
provider
the
authorized or ratified the doc-
The trial
filed motions to dismiss. Id. at 134.
Id. at
106-08. After the
tors' conduct.
granted the
motion but denied
court
doctor’s
provider's
trial court denied the
motion
plaintiffs
provider’s
Id. Both the
the
motion.
dismiss,
interlocutory
provider
the
filed an
provider appealed.
Id. The Dallas
and the
appeal.
appeal,
provider
the
Id. at 99. On
appeals determined that the
court of
(2), (3),
(4)
allegations
characterized
as
inadequate
were
as to the vicarious
104, 106,
being
Id. at
direct
theories.
against
provider,
liability theory
the
asserted
Although
disputing
provider’s
108.
the
court’s denial of the
and it reversed the trial
characterization,
ap-
the Fourteenth court of
provider’s
Id. at 136-37.
motion
dismiss.
allegation
peals determined that each
based
reasons,
appellate
court
For the same
provider’s
doc-
on the conduct of
reports inadequate as to the vicari-
found the
distinguished from the conduct of the
tors as
liability theory
the doctor. Id. at
ous
asserted
entity.
at 110. The court
as an
Id.
Determining
reports were also
138.
that the
party’s liability
explained that where a
is
liability theory
the direct
as to
conduct,
upon
no addi-
predicated
another’s
doctor,
against
appellate
asserted
party's
required if the
tional
is
grant
the trial court’s
of the
court affirmed
legal principal, rather
based on a
is
Al-
motion to dismiss.
Id. at 138.
doctor’s
care.
Id. at 106.
than a medical standard of
though
Petty
separately analyzed the
court
Accordingly,
provider had failed
because the
expert reports
adequacy of the
as to both
timely object
expert reports concern-
theories,
and vicarious
direct
conduct,
held that
ing
the court
the doctors'
may
if the
have done so to determine
court
within
discretion to not
the trial court was
theory.
adequate
either
See id.
as to
provider’s
dismiss. Id. at
grant the
motion to
assertion,
Contrary
to Certified EMS’s
Contrary
asser-
to Certified EMS’s
110.
holding
Petty
appeals'
in
Dallas court of
tion,
holding
appeals’
the Fourteenth court
holding
present
as the
consistent with our
McCoy
present hold-
with our
in
is consistent
adequate
expert reports
to be
were not found
adequate
ing:
expert reports were
as to
liability theory within the
as to at least one
within the cause
least one
single
de-
cause of action asserted
action,
appellate
affirmed the
and the
fendant.
Neverthe-
denial of the motion to dismiss.
less,
McCoy court's reason-
we note that the
McCoy,
plaintiffs pleaded health care
8.
holding in
present
ing is inconsistent with our
and a
liability claims
two doctors
suggests
and vicarious
that it
direct
employed
which
provider,
Assocs.,
against the
defendant
asserted
same
Gynecological
doctors. Obstetrical &
expert reports
proceed
if the
each
(Tex.App.-
McCoy,
P.A. v.
denied).
theory.
id. at
adequate
to each
pet.
are
Dist.]
Houston [14th
directly
plaintiffs alleged the doctors were
liability theory,
only as to vicarious
trial court acted within its dis-
quate
theories were allowed to
although both
determining
cretion in
that Evans was
in that
move forward
case because
qualified
opinions
to offer causation
in
challenge
the direct
defendant did
support Karber’s claim.
Although other
intermediate
theory.9
Court, therefore,
Id. This
found that the
have
similar
appeals
courts of
addressed
adequacy
as to the fracture
situations,
any
we have not found
case that
was sufficient for the entire cause of ac-
performed
statutory analysis
has
tion,
which included
theories based
meaning of
and causes of action in
claims
subsequent
amputa-
on the
infection and
the context of medical
tion,
However,
to move forward.
we, therefore,
guided
are
this case
Karber,
this
did not
discuss
Court
plain meaning
purpose
of the stat-
split
whether
claim should be
or under
ute.
occur,
what
circumstances
should
nor
holding
supported by
Our
is also
our
*15
argument
by
parties
was that
made
the
in
suggestion
earlier
that an expert report
that appeal. See id.
need not set forth each
theory
In its motion for en banc reconsidera-
within a cause of action. See Clear Lake
tion,
suggests
Certified EMS
en banc re-
Karber,
Hosp.
Rehab.
v.
No. 01-09-
L.L.C.
required
consideration is
because our opin-
00883-CV,
987758,
2010 WL
at *5 n. 7
ion
with a prior
conflicts
decision of this
2010,
(Tex.App.-Houston [1st Dist.]
no
See
Court.
Univ.
Tex. Med. Branch v.
Karber,
In
pet.).
this Court stated:
Railsback,
860,
864 (Tex.App.-
that,
recognize
We
in his
Evans
pet.).
Houston
no
[1st Dist.]
opines that Clear Lake’s breach of the
disagree.
analysis
Railsback concerned an
proximately
standard of care
caused not
hospital’s
of a
liability based on the con-
only Karber’s fracture but also the sub-
duct
Ivey,
three different actors: Dr.
sequent
amputation.
infection
and
staff,
hospital nursing
the
and Dr. Max-
However, because Karber has asserted a
well. Id. at
685. Railsback
the
based,
sued
healthcare
claim
at least
(1)
hospital
on
a direct
fracture,
in
part, upon her
and because
(a)
negligence
failing
have
to monitor
quali-
we
concluded that Evans is
its
(b)
physicians
opine
employees
negli-
fied to
on the
and
and
relationship
causal
between
breach
gent supervision
Clear Lake’s
and Kar-
failure
and
to train its
fracture,
injury
ber’s
of a
physicians
conclude
and
in
employees
proper
the
dismiss,
Knapp,
plaintiff pleaded
In
the
provider's
court denied the
motion to
against
claims
and
provider
interlocutory appeal.
nurse
a health
filed an
Id.
provider
employed
Corpus
appeals
nurse.
at *1. The
Christi court of
Molina,
Knapp Med. Ctr. v.
No. 13-09-00372-
determined that the
was ade-
CV,
(Tex.App.-Cor-
2009 WL
quate
against
*1
as to the claim asserted
19, 2009,
(mem.
pus
pet.)
Accordingly,
Christi Nov.
nurse.
Id. at *5.
it found the
op.).
plaintiff alleged
report adequate
the nurse was
di-
to the
as
vicarious
rectly
negligence.
plaintiff
against
liable for
Id. The
pro-
asserted
the health care
alleged
provider
Noting
was
provider
liable for
vider.
that the
had not
negligence
vicariously
challenged
and
liable for
adequacy
report specifi-
negligence.
plaintiff's expert
cally
liability theory,
nurse's
Id. The
as to the direct
the court
report
adequate only
provider's challenge
claim
overruled the
to the deni-
provider
the nurse.
Id. at *5. The
al
dismissal. Id. Because the
it,
filed
a motion to
challenged
adequacy
dismiss
claim
had not
including
liability theory,
both the direct and vicarious liabili-
as to the direct
the Kaupp
*1,
ty theories.
Id. at
question
*5 n. 4. After the trial
did not
reach tire
at issue here.
Therefore,
holding of
implicit
Rails-
tourniquet
of a
positioning
technique
back relied on
Certified EMS
(2)
theory for the
a vicarious
motion for en banc reconsideration does
employees
of its
omissions
acts and
binding precedent.
not constitute
By focusing on
Id. at 862.
agents.
Indus.,
Servs., Inc.,
Cooper
Inc. v. Aviall
particular
con-
discussion of
report’s
157, 170,
actors,
543 U.S.
S.Ct.
Rails-
by the three different
duct
(2004) (“Questions
L.Ed.2d 548
which
that the
men-
analysis notes
back’s
record,
in the
neither
merely
brought
lurk
once, finds the
Dr. Maxwell
tions
to the attention of the court nor ruled
concerning his
having
upon, are not to be considered as
conduct,
the dismissal of the
and orders
prece
so decided as to constitute
been
prem-
and vicarious
direct
dents.”)
Fall, (quoting Webster v.
U.S.
Id. at 865-66.
ised on his conduct.
507, 511,
148, 149,
45 S.Ct.
adequately concurring. facts describing addresses nurse, improper sexual conduct therefore, adequate as to his EMS,
employer, the vicari- under
ous-liability legal theory of respondeat su-
perior. Because the lawsuit Potts
proceed against Certified EMS under at
least one for the cause concerning improper action nurse’s ENERGY, LLC, Appellant, GSF Potts, may pro- sexual contact with Potts any ceed with and all theories for action, regardless this cause of whether PADRON, Individually Herlinda and as those other theories were shown in Padron, Heir at Law of Adan De contrast, an adequate expert report. if ceased, and as Next Friend of Adam provided adequate Potts had not Padron, Padron, Fernando Arturo Pa any for this cause of dron, Padron, Minors; and Hector action, the entire cause of action would Tayna Padron, Appellees. have with prejudice, been dismissed re- gardless whether those theories had been *17 No. 01-09-00622-CV. pleaded. hold the trial properly Texas, of Appeals Court denied motion to dismiss. (1st Dist.). Houston We overrule Certified EMS’s fifth issue. June Conclusion Because lack jurisdiction, we do not
address EMS’s appeal concern-
ing affirm its first motion to dismiss. We
the trial court’s order denying Certified
EMS’s second motion to dismiss. JENNINGS, Justice,
TERRY
concurring. join
I majority opinion. I write
separately respond to Certified EMS’s
arguments on rehearing that this Court’s
opinion the instant case conflicts with opinion
our in University Texas Medi- Railsback, cal Branch v.
864 (Tex.App.-Houston [1st Dist.]