Opinion
NO. 01-17-00544-CV
07-03-2018
AVAGENE HARRIS, Appellant v. HOUSTON METHODIST HOSPITAL, Appellee
On Appeal from the 234th District Court Harris County, Texas
Trial Court Case No. 2015-48455
MEMORANDUM OPINION
This is a medical malpractice case. In 2015, Avagene Harris sued Dr. David Chiu, a neurologist. Harris alleged that the doctor had been negligent in providing her care in 2010, causing her to suffer injury in 2011. Dr. Chiu obtained summary judgment against Harris based on limitations. The claims against Dr. Chiu were severed from the claims remaining against another physician, Dr. Lorente, making the judgment in favor of Dr. Chui final. After the severance, Harris amended her petition, adding Houston Methodist Hospital ("Methodist"). She alleged that the hospital was vicariously liable for the negligence of its employee, Dr. Chiu, but she made no direct claims against the hospital. Methodist filed a motion for summary judgment, asserting that it cannot have vicarious liability for Dr. Chiu's negligence when he has been held not to be liable to Harris as a matter of law.
The Hospital also filed a motion to dismiss Harris's claims on the basis that Harris failed to file an expert report sufficient to satisfy the requirements of the Texas Medical Liability Act. The trial court granted Methodist's motion to dismiss, but it did not rule on its motion for summary judgment.
In two issues on appeal, Harris asserts that the trial court erred in granting the motion to dismiss. We conclude that, even if the trial court erred, Harris has not demonstrated that she was harmed by the alleged error because the record shows that her claim against Methodist is precluded as a matter of law by the summary judgment in Dr. Chiu's favor. Thus, we affirm.
Background
In August 2009, Harris sustained a head injury in a car accident. She was initially treated for the injury by Dr. Chiu, a neurologist with Methodist Hospital. Harris also sought treatment outside of Methodist. The following month, Harris's injury was treated by Dr. L. Lorente. She was treated by Dr. H. Gill in October 2010. In May 2011, a fourth doctor surgically removed a cavernous angioma from Harris's brain.
Harris's pleadings describe a cavernous angioma as "a type of blood vessel malformation . . . where a collection of dilated blood vessels form a tumor."
Harris sued Drs. Chiu, Lorente, and Gill in August 2015. She alleged that each had been negligent in failing to advise her that she needed surgery to remove the cavernous angioma. She averred, "Despite the surgery [she] continue[d] to suffer brain damage and other debilitating physical maladies directly related to the Cavernous Angioma and its adverse effect on plaintiff's brain which existed from August 21, 2009 until its removal May 18, 2011." She also alleged that she had "learned that, in spite of the surgery, she was in fact suffering irreparable harm from not having had the required surgery when the Cavernous Angioma occurred and that the treatments given by the Defendants were not the proper or prudent standard for the treatment of Cavernous Angioma."
Dr. Chiu answered and filed a traditional motion for summary judgment. He asserted that Harris had failed to file her suit within the two-year limitations period established for health care liability claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a) (West 2017). He offered evidence showing that the last date that he provided medical care to Harris was September 29, 2010. Dr. Chiu averred, "Thus, limitations expired no later than September 29, 2012. [Harris], however, did not sue until August 19, 2015, almost three full years too late."
Dr. Chiu asserted that the "discovery rule does not apply to health care liability claims." However, he also asserted that, "even if" the discovery rule applied, Harris "knew that she allegedly needed surgery no later than May 18, 2011, the date she actually had the surgery she contends Dr. Chiu should have recommended." Dr. Chiu pointed out that, using the surgery date, "limitations would have expired no later than May 18, 2013, more than two years before she filed her lawsuit."
The trial court granted Dr. Chiu's motion for summary judgment on December 7, 2015. The court ordered that Harris "shall take nothing on her claims and causes of action against Dr. Chiu." The trial court also granted a motion for summary judgment filed by Dr. Gill.
At the time the trial court granted Dr. Chiu's and Dr. Gill's motions for summary judgment, Harris had not yet served Dr. Lorente. Drs. Chiu and Gill filed a joint motion to sever Harris's claims against them from the pending claim against Dr. Lorente. On December 31, 2015, the trial court granted the motion, ordering that Harris's causes of action against Dr. Chiu and Dr. Gill "are hereby severed from [Harris's] causes of action against Dr. L[.] Lorente." At that point, the only claims remaining were Harris's claims against Dr. Lorente.
On April 11, 2016, Harris filed her second amended petition, adding Methodist Hospital to the suit. Harris sought to hold the hospital vicariously liable for medical treatment provide by Dr. Chiu, who she alleged was its employee. She claimed that the medical treatment provided by Dr. Chiu was "a departure from accepted standards of health care." She asserted that the hospital was negligent because Dr. Chiu "owed [her] a duty [of] care when it provided medical advice and treatment to [her] for the Cavernous Angioma." She asserted that the duty of care was breached when Dr. Chiu did not advise her that she "would need neurosurgery to remove a Cavernous Angioma." Harris also alleged that Methodist Hospital "by and through Dr. David Chiu, engaged in several acts or omissions constituting negligence, which include: (a) failing to choose an appropriate procedure, (b) failing to consult a specialist, (c) failing to diagnose [her] condition properly, (d) failing to treat [her] condition properly." Harris asserted no direct theory of liability against Methodist but sought only to hold the hospital vicariously liable for Dr. Chiu's treatment of her.
Methodist filed a traditional motion for summary judgment, relaying the following procedural history:
[Harris] filed suit against Dr. Chiu and the other three neurologists on August 19, 2015. On December 7, 2015, this Court granted summary judgment in favor of Dr. Chiu and Dr. Gill on limitations grounds. The claims against those two defendants were severed and that judgment became final on January 25, 2016. [Harris] did not appeal from that judgment.(Methodist's citation to supporting summary judgment exhibits omitted.) The hospital asserted that the take-nothing summary judgment in Dr. Chiu's favor barred, as a matter of law, Harris's ability to hold the hospital vicariously liable for Dr. Chiu's alleged negligence.
In September 2016, Harris then filed and served Methodist Hospital with two medical expert reports: (1) the report of G.E. Mallory, an emergency room physician and (2) the report of B. Engstrand, a neurologist. The hospital filed objections regarding the sufficiency of the reports. Harris responded by filing a motion for leave to amend her expert reports, which the trial court granted.
Harris filed the amended expert reports of Drs. Mallory and Engstrand on December 12, 2016. In his amended report, Dr. Mallory stated that "the standard of care compelled Dr. Chiu to recommend necessary, timely surgical repair of [Harris's] [c]avernous angioma in light of the symptoms she was experiencing, including seizures and recurrent bleeding. This Dr. Chiu did not do."
In her amended report, Dr. Engstrand averred that Dr. Chiu's "failure to conduct more extensive testing resulted in Ms. Harris having a cerebral bleed and its complications[.]" She stated in her original report that, in September 2010, a CT scan had shown that Harris had "a right parietal hemorrhage" and a possible "cavernous malformation." She averred that "[t]he failure to properly work-up and surgically resect Ms. Harris's parietal angioma caused her to have a recurrent hemorrhage and suffer the deficits of a stroke[.]"
On December 30, 2016, Methodist Hospital filed objections to the expert reports and a motion to dismiss "for failure to serve an adequate expert report." The hospital pointed out that, in December 2015, the trial court had granted summary judgment in favor of Drs. Chiu and Gill on limitations grounds. The claims against the two doctors "were severed and that judgment became final on January 25, 2016. The hospital further pointed out, "[d]espite [the trial court's] ruling five months earlier that [her] claims against Dr. Chiu were barred by limitations," Harris added Methodist as a defendant. Methodist noted that Harris had "no direct liability claims against [it]." Stating that Harris's "sole compliant is that Methodist is vicariously liable for the alleged negligence of Dr. Chiu based on actions that [the trial court] has already ruled occurred outside the limitations period." Methodist noted that its motion for summary judgment—in which it argued that, as a matter of law, it could not be held vicariously liable for Dr. Chiu's medical treatment of Harris when the trial had ruled that Dr. Chiu was not liable to Harris—was still pending.
Methodist Hospital also noted in its motion to dismiss that Harris's claims against Dr. Lorente had been dismissed in June 2016, leaving only Harris's claims against the hospital remaining in the trial court.
In its motion to dismiss, Methodist asserted that Harris's expert reports did not "represent an objective good-faith effort to comply with Texas Civil Practice and Remedies Code § 74.351(r)(6)." To support this assertion, Methodist stated, "[Harris] has not pleaded a direct liability claim against Methodist and none of [her] expert reports criticize or implicate any conduct by Methodist." Instead, Harris "alleges that Methodist is vicariously liable for the actions of Dr. David Chiu." The hospital also argued that the reports were inadequate as to claims against Dr. Chiu because (1) the reports did not demonstrate that Dr. Mallory, an emergency room physician, was qualified to testify regarding the standard of care for a neurologist treating a cavernous angioma, (2) "the reports are conclusory as to standard of care," and (3) "the reports are conclusory and speculative with regard to causation."
The trial court granted Methodist's motion, dismissing Harris's claims against it with prejudice. Harris then filed a motion for new trial, challenging the dismissal. The trial court did not expressly rule on the motion for new trial, and it was overruled by operation of law. This appeal followed in which Harris raises two issues, challenging the trial court's dismissal of her vicarious-liability claim against Methodist.
Harris contends that the trial court abused its discretion (1) by granting Methodist's motion to dismiss based on Harris's failure "to serve an adequate expert report under Texas Civil Practice & Remedies Code, Section 74.351(r)(6)" and (2) by not granting her motion for new trial. In support of her points, Harris asserts that the trial court's judgment dismissing her vicarious liability claim against Methodist should be reversed because her two expert reports satisfied the requirements of the Medical Liability Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2017) (providing that a claimant under the Act must serve each defendant health-care provider with one or more expert reports and with curriculum vitae of each expert listed in the report); id. § 74.351(r)(6) (stating that expert report must provide fair summary of expert's opinions regarding applicable standard of care, manner in which healthcare provider failed to meet that standard, and causal relationship between that failure and injury or harm alleged).
Severed Summary Judgment in Favor of Dr. Chiu
Renders Any Error Harmless
Even if we were to assume error here, erroneous rulings require reversal only if a review of the record reveals the error was harmful. See Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 728 (Tex. 2016). "It is the complaining party's burden to show harm on appeal." Bowser v. Craig Ranch Emergency Hosp. L.L.C., No. 05-16-00639-CV, 2018 WL 316880, at *2 (Tex. App.—Dallas Jan. 8, 2018, no pet.) (mem. op.) (citing Ford Motor Co. v. Castillo, 279 S.W.3d 656, 667 (Tex. 2009)).
The harmless error rule states that, before reversing a judgment because of an error of law, the reviewing court must find that the error amounted to such a denial of the appellant's rights as was reasonably calculated to cause and probably did cause "the rendition of an improper judgment," or that the error "probably prevented the appellant from properly presenting the case [on appeal]." G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (citing TEX. R. APP. P. 44.1(a)). The harmless error rule applies to all errors. Magee, 347 S.W.3d at 297; see, e.g., Progressive Cty. Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 921 (Tex. 2005) (concluding that any error committed by granting summary judgment on insurance bad-faith and extra-contractual claims was harmless because jury's finding in subsequent proceeding negated coverage, which was prerequisite for asserting bad-faith and extra-contractual claims); Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80, 82 (Tex. 2003) (holding that directed verdict granted during first witness's testimony was "irregular" but harmless because plaintiffs had "affirmatively limited their claim to damages they could not recover as a matter of law"); Goldman v. Olmstead, No. 05-15-01470-CV, 2016 WL 7163876, at *5 (Tex. App.—Dallas Nov. 14, 2016, no pet.) (mem. op.) (holding that trial court's judgment, on remand from appellate court, dismissing attorney's fees claim for lack of jurisdiction was incorrect because trial court had jurisdiction; however, dismissal for lack of jurisdiction was harmless because attorney's fees claim "were, as a matter of law, beyond the trial court's authority under [the appellate court's] mandate," making dismissal of claims correct for that reason); Ramsey v. State, 249 S.W.3d 568, 581 (Tex. App.—Waco 2008, no pet.) (holding that, although trial court erred in summarily dismissing bill-of-review petition, error was harmless because appellant had judicially admitted that he could not satisfy elements of claim and remanding case would serve no legitimate purpose).
In G & H Towing v. Magee, the Supreme Court of Texas applied the harmless error rule to uphold a summary judgment granted in favor of G & H on a vicarious liability claim for negligent entrustment. 347 S.W.3d at 298. The supreme court upheld the judgment even though G & H had not addressed the vicarious-liability claim in its motion for summary judgment. Id. at 296, 298.
There, the plaintiffs had claimed that G & H was vicariously liable for a vehicle owner's alleged negligent entrustment of his vehicle. Id. at 295. The vehicle owner filed his own motion for summary judgment regarding all of the claims against him, including the negligent-entrustment claim. Id. at 295-96. The trial court granted the vehicle owner's and G & H's summary-judgment motions. Id. The trial court severed the claims against the vehicle owner and G & H into two separate causes, making each summary judgment final. Id.
The plaintiffs then appealed the summary judgments. Id. at 296. This Court held that the trial court had properly granted summary judgment in favor of the vehicle owner. Id. at 296. But we held that the trial court had reversibly erred in granting G & H's motion for summary judgment on the vicarious-liability claim for the vehicle owner's negligent entrustment because the motion had failed to address it. Id. G & H then sought review in the Supreme Court of Texas.
The supreme court concluded that, although a trial court errs in granting summary judgment on a claim not addressed in the summary-judgment motion, the error is harmless when the unaddressed claim "is precluded as a matter of law by other grounds raised in the case." Id. at 298. The court held that the trial court erred in granting summary judgment on the vicarious-liability claim but that this error was harmless because "[t]he undisputed facts and [the vehicle owner's] final judgment establish that [the vehicle owner] did not negligently entrust his vehicle" and that "G & H therefore cannot have vicarious liability for negligent entrustment because its agent did not commit the tort." Id. at 298. The supreme court concluded that, because an employer cannot be vicariously liable in tort when its agent or employee has not engaged in tortious conduct, this Court erred by remanding to the trial court the claim that G & H was vicariously liable for the vehicle owner's alleged tortious conduct while simultaneously holding that the vehicle owner had not committed a tort. Id.; see also Johnson v. Ram, No. 01-13-00404-CV, 2014 WL 3697881, at *8 (Tex. App.—Houston [1st Dist.] July 24, 2014, no pet.) (mem. op.) (concluding, in medical malpractice case, "that it would be meaningless to reverse the [summary] judgment as to [doctor's] vicarious liability for the acts and omissions of her nurses and staff [even though the vicarious liability claim was not addressed in motion for summary judgment] because the [plaintiffs] could not recover on this ground as a matter of law").
Here, Harris can never prevail on her claim for vicarious liability against Methodist because—being dependent on her direct health care liability claim against Dr. Chiu—it is precluded as a matter of a law. See Magee, 347 S.W.3d at 298. Dr. Chiu obtained summary judgment on Harris's claims, establishing that the claims against him are barred as a matter of law. Those claims were then severed from the remaining claims, making the summary judgment final. See Doe v. Pilgrim Rest Baptist Church, 218 S.W.3d 81, 82 (Tex. 2007). Because an employer cannot be vicariously liable in tort when liability against its employee or agent is barred as a matter of law, Methodist cannot be held vicariously liable for Dr. Chiu's alleged tortious acts and omissions. See Magee, 347 S.W.3d at 298. It would be meaningless and without legitimate purpose to reverse the trial court's judgment when Harris's vicariously liability claim cannot, as a matter of law, provide her recovery against Methodist. See Magee, 347 S.W.3d at 297 (citing Zarzosa v. Flynn, 266 S.W.3d 614, 621 (Tex. App.—El Paso 2008, no pet.) (holding reversal would be meaningless because questioned recovery precluded as matter of law). Assuming without deciding that the trial court erred, we hold that the trial court's grant of summary judgment in favor of Dr. Chiu rendered harmless any error in later dismissing Harris's claims of vicarious liability against Methodist. See id. at 298.
We take judicial notice of the Harris County District Clerk's records in indicating that Harris did not appeal the summary judgment in favor of Dr. Chiu. See TEX. R. EVID. 201(b)(2) (providing that court may "judicially notice a fact that is not subject to reasonable dispute because it: . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned"); In re M.S., No. 01-15-00451-CV, 2015 WL 5769993, at *1 n.1 (Tex. App.—Houston [1st Dist.] Sept. 29, 2015, no pet.) (mem. op.) (taking judicial notice of Harris County District Clerk's records in criminal case involving appellant).
We overrule Harris's two issues.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Justices Higley, Brown, and Caughey.