Lead Opinion
OPINION
Opinion by
Appellants, RGV Healthcare Associates, Inc. & Legend RGV McAllen LP d/b/a Legend Transitional Care-McAllen (collectively “RGV Healthcare”), appeal the denial of their motion to dismiss the healthcare liability claims brought by Odelia Marro-quin, Orfelinda Cardenas Delia Flores, Mike Marroquin, Baldemar Marroquin,
I. Background
On June 1, 2005, Santos, a ninety-three year old woman, was admitted to RGV Healthcare for rehabilitation of a post-stroke condition. Santos suffered from diabetes, high blood pressure, coronary artery disease, and congestive heart failure. On the morning of June 4, 2005, nurses discovered that Santos’s lower right leg was cool and did not have a pulse. At noon, Santos was transferred to the emergency room at Rio Grande Regional Hospital, and she underwent an embolectomy to remove an embolism that had developed in her right leg. During the procedure, the surgeon discovered that Santos’s right leg was pre-gangrenous and amputated it above-the-knee. On June 10, 2005, Santos’s lower left leg was noted to be cool, but no further surgical intervention was ordered. Santos then developed atrial fibrillation, a fever, and a urinary tract infection. She died on June 13, 2005.
On March 26, 2007, the Marroquins sued RGV Healthcare, J. Michael Koch, M.D.,
On July 24, 2007, the Marroquins tendered an expert report by Lige B. Rushing, M.D., who, after reviewing Santos’s medical records from RGV Healthcare and Rio Grande Regional Hospital, opined that:
The standards of care for a long-term care facility and its nursing staff such as [RGV Healthcare] requires that they provide that level of care and treatment that a reasonable, prudent, and similar facility would provide under the same or similar circumstances.
Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable, physical, mental, and psychosocial well being, as defined by and in accordance with the comprehensive assessment and plan of care.'
In order to meet the standards of care in this case, Mrs. Marroquin should have had a daily body check. This means examination of the upper extremities and the lower extremities and her body for evidence of edema, skin integrity, and whether the skin was dry, evidence*268 of abrasions, tears, ulcers, and the temperature of the skin.
In this case when the cold right leg was noted, her physician was notified.
The problem is that the arterial occlusion of the right leg more likely than not occurred 24-36 hours prior to its discovery. This is evidenced by the fact that her leg was beyond salvage when she first arrived at the hospital.
By the time Mrs. Marroquin arrived at Rio Grande Medical Center, her leg was beyond salvage and there was no option, but to amputate her leg.
If the arterial occlusion had been discovered earlier then more likely then not her leg could have been salvaged by the performance of an embolectomy. The failure of the nurses to appropriately monitor Mrs. Marroquin resulted in their failure to detect the arterial thrombosis at or near the time it occurred. As a result, more likely than not, of the stress and trauma she developed congestive heart failure, atrial fibrillation, and subsequently multiorgan failure i.e. kidney, liver and heart, which resulted in her death.
It should be noted that Mrs. Marroquin was stable until the time she developed her acute arterial occlusion. Had the acute arterial occlusion been diagnosed in a timely fashion th[e]n more likely than not the thrombus could have been removed and she would have survived.
(Emphasis added.)
On August 13, 2007, RGV Healthcare filed objections to Rushing’s report on the grounds that it did not define the standard of care, breach, and causation as to each defendant. Regarding the causation element, the objection referenced what appears to be a medical report about a different patient’s injuries because it asserts:
Here, Plaintif[s]’s sole statements with regard to causation are: “[t]his combination of procedures potentially altered blood flow to the nipple resulting in eventual necreosis;” and “[t]he cumulative effect of thesе procedures appears to have caused nipple ischemia and eventual nipple necrosis and loss of tissue.” Similar to Costello, these statements are conclusory because they do not explain how or why the alleged failure to meet the standard of care caused pressure ulcer development. Further, the statements do not explain the medical basis or reasoning for the conclusion that Defendant’s alleged breach “appears to have caused nipple ischemia and eventual necrosis and loss of tissue.” As a result, the statements are concluso-ry and thus fail to satisfy the Chapter 74 requirements.
(citations omitted.)
On October 3, 2007, a hearing on RGV Healthcare’s objections and motion to dismiss was held, and the trial court accepted post-hearing letter briefs. On February 12, 2008, the trial court overruled the objections and denied the motion to dismiss.
II. Discussion
In a single issue, RGV Healthcare argues that the trial court abused its discretion in denying the motion to dismiss because the Marroquins failed to serve a proper expert report.
A. Standard of Review and Applicable Law
We review the trial court’s decision to deny a motion to dismiss under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
“With respect to resolution of factual issues or matters committed to the trial court’s discretion, for example, the reviewing court may not substitute its judgment for that of the trial court.” Walker v. Packer,
Section 74.351 requires that a plaintiff serve on each party “one or more expert repоrts, 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.” Tex. Civ. Prao. & Rem.Code Ann. § 74.351(a). An “expert report” is defined as
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.
Id. § 74.351(r)(6). A court must grant a motion to dismiss under section 74.351(b) if, after the 120-day deаdline has passed, it appears to the court that the report does not represent an objective, good-faith effort to comply with the definition of an expert report. Id. § 74.351(i).
To qualify as a “good-faith effort,” the report must “provide enough information to fulfill two purposes”: (1) it must “inform the defendant of the specific conduct the plaintiff has called into question,” and (2) it must “provide a basis for the trial court to conclude that the claims have merit.” Palacios,
B. Waiver
At the outset, we address whether RGV Healthcare waived its challenge to
RGV Healthcare’s “apparently it was preserved” argument belies the fact that it had the burden to articulate an objection and assumes that, by responding to what they considered a generic, boilerplate objection, the Marroquins converted an incoherent objection into a sufficient one. See Tex.R.App. P. 33.1 (providing the prerequisites to preserving a complaint for appellate review); Estate of Veale v. Teledyne Indus., Inc.,
C. Direct Liability
The Marroquins pleaded, inter alia, that RGV Healthcare was directly liable for the allegedly negligent care that Santos received. Before the trial court, RGV Healthcare objected to Rushing’s opinion on its deviation from the standard of care on the ground that his report did “not explain what [RGV Healthcare] should have done differently and d[id] not put [RGV Healthcare on] notice of the complained of conduct.” On interlocutory appeal, RGV Healthcare argues that the report did not specifically identify it by name with to regard to how it breached the standard of care. We agree.
Although Rushing opinеs that RGV Healthcare was required to “provide that level of care and treatment that a reasonable, prudent, and similar facility would provide under the same or similar circumstances,” his report implicates only the conduct of Pablo and Gracie, RGV Healthcare employees. See Gardner v. U.S. Imaging, Inc.,
D. Vicarious Liability
1. The Taylor Case
RGV Healthcarе contends Rushing’s report is deficient because it does not delineate the standard of care and breach for Pablo’s and Gracie’s individual conduct. To support its contention, RGV Healthcare relies on this Court’s opinion in Taylor v. Christus Spohn Health Sys. Corp.,
Taylor is distinguishable because it did not deal with healthcare liability claims asserted under a theory of vicarious liability. The defendants in Taylor were unique healthcare providers who had all been served, appeared before the trial court, and objected to the expert report offered by the claimant. No where in Taylor did we mention vicarious liability claims. In this case, the Marroquins sued RGV Healthcare, Pablo, and Gracie. Pablo and Gracie have not been served and are not parties to this appeal. As to RGV Healthcare, the Marroquins asserted three liability theories against it, and they presented a report that singled out alleged omissions made by RGV Healthcare’s nurses. RGV Healthcare, responding to only the vicarious liability theory, objected to the report because it did not delineate the expert report requirements as to Pablo, Gracie, and itself and relied on Taylor as on point authority.
Taylor, however, does not require that an expert report delineate and define allegedly negligent conduct as between an agent and a principal because it implicitly dealt with direct liability claims. Furthermore, in a memorandum opinion issued four years after Taylor, we declined to draft the rule that RGV Healthcare urges on us. See Jimenez,
2. The Railsbaek Case
The Marroquins argue that Rushing’s report properly set forth the standard of care for nurses — the positions that Pablo and Gracie held while employed by RGV Healthcare — and how they breached that standard of care. They direct us to the Railsbaek case as supporting authority. In University of Texas Medical Branch v. Railsback, a healthcare liability claimant sued the hospital where she had an allegedly negligent knee surgery and the surgeons who performed the procedure.
On interlocutory appeal, the hospital argued that the report could not support, inter alia, the claims for direct liability and vicarious liability based upon the nursing staffs alleged negligence. Id. at 864-66. The Houston First District Court of Appeals held that the trial court abused its discretion by not dismissing the direct liability claims. Id. at 866. It also held that the trial court did not abuse its discretion in denying the hospital’s motion to dismiss as to the vicarious liability claims because the claimant had not named any nurse as a defendant. Id. at 868 (citing Kettle v. Baylor Med. Ctr. at Garland,
RGV Healthcare focuses on the clause noting that the claimant had not named any nurse as a defendant and contends that Railsbaek is distinguishable from this case because the Marroquins named Pablo and Gracie as defendants. But, neither the Railsbaek Court nor the two courts that it cites explain why an expert report may group nurses together if a hospital is alleged to be vicariously liability for their actions and the nurses are not sued. Furthermore, RGV Healthcare has not provided us with a rationale for the “not sued”
3. Analysis
Section 74.351 requires that the plaintiff serve on each defendant whose conduct is implicated by a healthcare liability claim an expert report that sets forth the standard of care, breach of that standard, and causation. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a), (r)(6). When a plaintiffs claim against a hospital is not for direct negligence, but is based on the conduct of an employee through the doctrine of respondeat superior, the expert report need not identify the hospital by name or include an opinion about how the employee was acting in the course and scope of employment for the hospital. Univ. of Tex. Sw. Med. Center v. Dale,
If the report identifies conduct by the hospital’s employee, the hospital is implicated, and as long as the report adequately addresses the standard of care applicable to the employee, how the employee breached the standard of care, and that the breach caused the plaintiffs injury, it is sufficient as against the hospital to satisfy the expert report requirement for the vicarious liability claims. Dale,
Rushing’s report provided that the standard of care for nurses at rehabilitation facilities such as RGV Healthcare was to perform daily body checks of the extremities for, among other things, body temperature. As to breach, the report notes that Rushing reviewed RGV Healthcare’s medical records, and the report does not mention whether daily body checks were noted in the records. Accordingly, we hold that the trial court did not abuse its discretion by relying on Rushing’s report to satisfy the expert report requirements on the Marroquins’s vicarious liability claims against RGV Healthcare.
E. Negligent Hiring and Supervision
The Marroquins’s third liability theory against RGV Healthcare is that it negligently hired and supervised employees. The context of Rushing’s report clearly implicates RGV Healthcare’s role as Pablo’s and Gracie’s supervisor. However, neither before the trial court nor on interlocutory appeal has RGV Healthcare articulated an objection, issue, or argument in which it asserts that Rushing’s report was deficient as to the Marroquins’s negligent hiring and supervision theory. Aсcordingly, the issue is waived. See Tex. R.App. P. 33.1. Cf. Obstetriml & Gynecological Assocs., P.A. v. McCoy,
RGV Healthcare’s first issue sustained in part, and overruled in part.
III. Conclusion
We affirm the trial court’s order denying RGV Healthcare’s objections as it relates to the Marroquins’s claims for vicarious liability and negligent hiring and supervision. We reverse the trial court’s order as it relates to the Marroquins’s direct liability claim. The case is remanded so that the trial court may consider whether to grant a thirty-day extension to cure defects in the report. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c); Leland v. Brandal,
Dissenting In Part and Concurring In Part Opinion by Justice ROSE VELA.
Notes
. Michael Koch, M.D., was Santos’s attending physician at RGV Healthcare. The Marro-quins subsequently nonsuited him, and he is not a party to this appeal.
. The Marroquins did not know Pablo's and Grade's last names when they filed suit, and despite discovery, the family has not ascertained their last names. To date, Pablo and Gracie have not been served in the underlying suit, аnd they are not parties to this appeal.
. A review of the record does not reveal that the Marroquins's claims involve nipple necrosis or pressure ulcers. RGV Healthcare’s objections were never amended within the twenty-one day period to reference Rushing's report as to causation. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp. 2008).
. RGV Healthcare never amended its objection to Rushing's report within the twenty-one day period after Rushing's report was served. Admittedly, RGV Healthcare filed a letter brief on September 20, 2007. However, by that date the trial court could have only considered the August 13, 2007 objections. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) ("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.”) (emphasis added).
. In Jimenez, healthcare liability claimants sued a surgical facility, the surgeon, two nurses, and a certified registered nurse anesthetists ("CRNA”). Renaissance Surgical Centers-South Texas, L.L.P. v. Jimenez, No. 13-07-00121-CV,
. The dissent summarily states that because "the Marroquins failed to serve an expert report addressing their claims for negligent hiring, supervision, training, and retention, I believe that the trial court was required to dismiss the complаined-of claims upon appellants’ request.” The problem with the dissent's position is that RGV Healthcare never lodged an objection against Rushing’s report as to the aforementioned claim and never moved to dismiss that claim.
Concurrence Opinion
concurring and dissenting.
I concur, in part, with the majority’s opinion and dissent, in part. I believe that Dr. Rushing’s report does not meet the statutory requirements for an expert report under section 74.351 of Texas Civil Practice and Remedies Code. Tex. Crv. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp. 2008). I would reverse the order of the trial court denying RGV’s motion to dismiss.
I. Direct Liability Claims Against RGV
I concur in the majority’s holding that Rushing’s report did not address how RGV’s direct conduct deviated from the standard of care. But, I disagree with the majority’s decision to exclude the negligent hiring and negligent supervision claims from its holding. Claims against an employer for negligent hiring, supervising, training, or retaining an employee are based on the theory of direct liability. La-Bella v. Charlie Thomas, Inc.,
The majority decides that the negligent hiring and supervision claims have been waived because RGV did not articulate an objection that Rushing’s report was deficient with regard to those direct liability theories. While the majority states that “the context of Rushing’s report clearly implicates RGV Healthcare’s role as Pablo and Gracie’s supervisor,” the opinion also recognizes that Rushing’s report “implicated only the conduct of Pablo and Gracie, RGV Healthcare’s employees.”
Rushing’s report does not state the standard of care for RGV with respect to direct liability or how RGV breached the standard of care in that role. But, even if the report implicated RGV in its role in the implementation of policies, rules, and procedures, I would conclude that RGV’s objections werе sufficient with respect to all of the direct liability claims.
There is no reason that RGV would be required to be more specific in its objections. The Marroquins sought direct liability against RGV for negligent hiring, supervision and implementation of policies and procedures. When objecting to the sufficiency of a report, the statute does not set forth the specificity required for objections. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp. 2006); see also Meyers v. Golden Palms Ret. & Health Ctr., Inc., No. 13-06-289-CV,
II. Claims Against The Nurse And CNA
The Marroquins also asserted vicarious liability claims against RGV that complained of the conduct of a nurse and an assistant and asserted negligence claims against the nurse and the CNA, individually. I would hold that Rushing’s report was inadequate in articulating the applicable standard of care and breach concerning each of the defendants. The expert report is required to specifically implicate the conduct of each defendant (emphasis added). Am. Transitional Care Ctrs. of Tex. v. Palacios,
Rushing’s report does nоt specify a standard of care for a nurse or a certified nursing assistant. With respect to the standard of care, Rushing’s report indicates that a body check should have been performed. However, Rushing does not state that such a check had not been done. Even the majority acknowledges that the report does not mention whether daily body checks were done during the two- and-a-half day period that Mrs. Santos resided at RGV. Rushing also fails to articulate whose duty it was to perform the body check. Was it the duty of the nurse, the CNA, or both? Dr. Rushing’s report is inadequate with regard to the standards of care for an entity such as RGV, a nurse and a CNA. It is also inadequate with respect to how the standards of care were breached in this case.
III. Taylor v. Christus Spohn
I also believe the majority opinion conflicts with Taylor v. Christus Spohn Health System, where this Court said “an expert report may not assert that multiple defendants are all negligent for failing to meet the standard of care without providing an explanation of how each defendant specifically breached the standard and how that breach caused or contributed to the cause of injury.” Taylor,
We are also confined to the four corners of the report in our review. Palacios,
whether or not the care and treatment provided by The Legend Transitional Health Care Center and its staff [RGV], Pablo, RN last name unknown, Gracey [sic], last name unknown, CNA, met the applicable standards of care and if the care did fall below such standards, whether the injuries resulted from the breach of the standards.
I believe the report does not meet the statutory standard and is inadequate. I would reverse the order of the trial court.