Summary
explaining that although plaintiff would be "required to prove vicarious liability exists at trial," expert report need not establish vicarious liability
Summary of this case from Seton Family of Hosps. v. WhiteOpinion
No. 04-15-00049-CV
03-02-2016
MORNINGSIDE MINISTRIES d/b/a Morningside Ministries at the Manor and The Morningside Ministries Foundation, Inc., Appellants v. Rosa Lee RODRIGUEZ, as next friend of Flora Mendez, Appellee
MEMORANDUM OPINION
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-07530
Honorable Laura Salinas, Judge Presiding Opinion by: Jason Pulliam, Justice Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice AFFIRMED
Morningside Ministries d/b/a Morningside Ministries at the Manor and The Morningside Ministries Foundation, Inc. (collectively "MSM") appeal the trial court's order denying a motion to dismiss the health care liability claims asserted against MSM in the underlying cause by Rosa Lee Rodriguez, as next friend of Flora Mendez. On appeal, MSM contends the trial court erred in denying the motion because Rodriguez's expert reports: (1) fail to explain how MSM can be held vicariously liable for an MSM employee's intentional torts; and (2) fail to explain how MSM can be held directly liable for the injuries to Mendez resulting from an MSM employee's intentional conduct. We affirm the trial court's order.
BACKGROUND
Flora Mendez was a resident at MSM's skilled nursing facility when she was allegedly assaulted by Quintin Berry, an MSM employee. Rodriguez, as Mendez's next friend, sued MSM and Berry, asserting health care liability claims arising from the alleged assault. Rodriguez alleged MSM was both vicariously and directly liable for Mendez's injuries.
Rodriguez timely served expert reports to support her claims pursuant to section 74.351 of the Texas Medical Liability Act. After Berry and MSM objected to the initial reports, the parties agreed to allow Rodriguez an extension of time to provide information to address the objections. After Rodriguez filed supplemental reports in furtherance of this agreement, Berry and MSM again objected to the reports and requested the trial court to dismiss the claims under section 74.351(b) of the Act. The trial court denied the motions to dismiss. MSM appeals.
Berry did not appeal the trial court's order. --------
STANDARD OF REVIEW
We review a trial court's ruling on a motion to dismiss for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2011); Southwest Gen. Hosp., L.P. v. Gomez, 357 S.W.3d 109, 111 (Tex. App.—San Antonio 2011, no pet.). A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Gomez, 357 S.W.3d at 111.
VICARIOUS LIABILITY
In its first issue, MSM contends the trial court erred in denying its motion to dismiss because Rodriguez's expert reports failed to explain how MSM could be held vicariously liable for Berry's intentional torts.
1. Law Applicable to Expert Reports on Vicarious Liability
A claimant is required to serve each defendant in a health care liability claim with an expert report. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013); TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 2015). "A valid expert report has three elements: it must fairly summarize the applicable standard of care; it must explain how a physician or health care provider failed to meet that standard; and it must establish the causal relationship between the failure and the harm alleged." Potts, 392 S.W.3d at 630; TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).
In Potts, the Texas Supreme Court clarified that "[a] report that satisfies these [three] requirements, even if as to one theory only, entitles the claimant to proceed with a suit against the physician or health care provider." 392 S.W.3d at 630. The court then examined the application of this holding to its earlier holding in Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008). See Potts, 392 S.W.3d at 632. The court noted, "In Gardner, we stated that '[w]hen a party's alleged health care liability is purely vicarious, a report that adequately implicates the actions of that party's agents or employees is sufficient.'" Id. (quoting Gardner, 274 S.W.3d at 671-72). Clarifying the two holdings, the court stated, "when a health care liability claim involves a vicarious liability theory, either alone or in combination with other theories, an expert report that meets the statutory standards as to the employee is sufficient to implicate the employer's conduct under the vicarious theory. And if any liability theory has been adequately covered, the entire case may proceed." Id. at 632.
2. Discussion
As previously noted, the trial court in the underlying cause denied Berry's motion to dismiss the claims asserted against him, thereby concluding the expert reports as to the claims against Berry met the expert report requirements. On appeal, MSM does not raise any challenge regarding the adequacy of the expert reports as they relate to the claims against Berry. Therefore, since Rodriguez's claims against MSM include a claim based on vicarious liability, the expert reports relating to the claims against Berry are sufficient to implicate MSM's conduct under the vicarious liability theory. Potts, 392 S.W.3d at 632; Gardner, 274 S.W.3d at 671-72.
In its reply brief, MSM acknowledges the holding in Potts; however, MSM contends Potts is distinguishable because "the defendant in Potts did not challenge [the] adequacy of the expert's report regarding its vicarious liability for its employee's intentional tort." MSM asserts, "Potts did not even address — much less reject — MSM's argument that the expert reports in this case are insufficient because they fail to explain how MSM can be held vicariously liable for Berry's intentional torts."
MSM's argument assumes an expert report is required to set forth facts establishing an employer is vicariously liable for the acts of its employee. Although Rodriguez will be required to prove vicarious liability exists at trial, MSM does not explain how a medical expert would be qualified "to provide an expert opinion on the legal relationship" between Berry and MSM. RJ Meridian Care of Alice, Ltd. v. Robledo, No. 04-14-00195-CV, 2014 WL 2917669, at *2 (Tex. App.—San Antonio June 25, 2014, no pet.) (mem. op.). This court has previously held a doctor is "likely unqualified to provide an expert opinion" on such a legal relationship, and "Chapter 74 does not require such proof in an expert report." Id.; see also Tenet Hosps. Ltd. v. Bernal, No. 08-14-00181-CV, 2015 WL 7280897, at *4-6 (Tex. App.—El Paso Nov. 18, 2015, no pet.) (holding expert report not required to address vicarious liability for report to be adequate even when the defendant contests the plaintiff's vicarious liability allegation); Univ. of Tex. Southwestern Med. Ctr. v. Dale, 188 S.W.3d 877, 879 n.1 (Tex. App.—Dallas 2006, no pet.) (noting court "fail[ed] to see how a medical expert would be qualified to provide an opinion" on whether "residents were acting in the course and scope of their employment"). As one of our sister courts has noted, "[t]he question of vicarious liability is a legal matter to be decided later, not on the basis of the medical expert reports." Christus Health Ark-La-Tex v. Curtis, 412 S.W.3d 44, 47 n.5 (Tex. App.—Texarkana 2013, pet. denied). Although recognizing a plaintiff may avoid early dismissal of a health care liability claim by "artful pleading" of vicarious liability, another of our sister courts has noted numerous "other remedies provided by Texas law [exist] to address allegations of vicarious liability that are frivolous or made in bad faith." Tenet Hosps. Ltd., 2015 WL 7280897, at *6 (citing TEX. CIV. PRAC. & REM. CODE ANN. §§ 9.001-.014 (West 2002) (providing for sanctions, including the striking of pleadings, when a pleading is determined to be groundless and brought in bad faith); TEX. CIV. PRAC. & REM. CODE ANN. §§ 10.001-.006 (West 2002) (providing for monetary sanctions when a pleading is filed without evidentiary support or is unlikely to have such support after reasonable discovery); TEX. R. CIV. P. 13 (providing for an appropriate sanction under Rule 215 for pleadings brought in bad faith or that are groundless and brought for purposes of harassment); TEX. R. CIV. P. 91a (providing for the dismissal of causes of action having no basis in law or fact)). "Further, a no-evidence motion for summary judgment is available for a determination on the merits [of] whether plaintiffs have any factual basis for [a vicarious liability] allegation." Id.; see also Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (affirming summary judgment on respondeat superior theory).
CONCLUSION
Because the expert reports implicating Berry's actions were determined to satisfy the expert report requirements and Rodriguez alleged MSM was vicariously liable for Berry's actions, the trial court did not err in denying MSM's motion to dismiss. Gardner, 274 S.W.3d at 671-72. Because the expert reports satisfy the statutory requirements regarding Rodriguez's vicarious liability theory, "the entire case may proceed," and we need not address the sufficiency of the expert reports with regard to Rodriguez's direct liability theory. Potts, 392 S.W.3d at 632. The trial court's order is affirmed.
Jason Pulliam, Justice