Summary
holding that a claimant alleging theories of direct and vicarious liability must provide an expert report that addresses all theories so that the defendant can be made aware of the specific conduct being called into question
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No. 09-10-00201-CV
Submitted on October 11, 2010.
Opinion Delivered January 27, 2011.
On Appeal from the 9th District Court Montgomery County, Texas, Trial Cause No. 09-03-02222 CV.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
Nivian Serrano, individually and as representative of the estate of Otilia A. Torres, filed health care liability claims against, among others, River Oaks Endoscopy Centers, L.L.P. River Oaks filed a dismissal motion challenging the plaintiff's expert report. The trial court denied appellant's motion. This appeal followed.
BACKGROUND
Dr. Sunil Reddy performed a colonoscopy on Otilia Torres at River Oaks Endoscopy Center. During the procedure, her colon was punctured. Torres developed peritonitis and died approximately ten days later. Serrano sued Dr. Reddy for negligence, and also pled that River Oaks Endoscopy was negligent.
Plaintiff submitted the expert report of Dr. Michael Stavinoha. The report expresses an opinion on the standard of care, breach of the standard of care, and causation as to Dr. Sunil Reddy. The report does not address those issues with regard to River Oaks Endoscopy.
River Oaks objected to the report and filed a motion to dismiss under section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. § 74.351 (West Supp. 2010). The motion contends that Serrano did not submit an expert report on her direct liability theories of recovery against River Oaks, and as a result, those claims must be dismissed for lack of an expert report.
APPLICABLE LAW
Within 120 days of filing suit, a plaintiff asserting a health care liability claim must serve an expert report for each physician or health care provider against whom a claim is asserted. Tex. Civ. Prac. Rem. Code Ann. § 74.351(a). The expert report must identify the "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). An expert means "a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence[.]" Id. § 74.351(r)(5)(c).
Section 74.351 provides that the trial court "shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Id. § 74.351(l); Christus Health Se. Tex. v. Broussard, 306 S.W.3d 934, 936 (Tex. App.-Beaumont 2010, no pet.). The trial court reviews the pleadings to determine the claims alleged, and whether the report addresses those claims. Broussard, 306 S.W.3d 934 at 938. In determining whether the report represents a good-faith effort to comply with the statutory requirements, the trial court's inquiry is limited to the four corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). The reviewing court cannot fill in gaps in an expert report by drawing inferences or guessing as to what the expert likely meant or intended. See Wright, 79 S.W.3d at 53; Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.-Austin 2007, no pet.).
The expert report has two purposes: (1) to inform the defendant of the specific conduct the plaintiff has called into question; and (2) to provide a basis for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 879. The report need not marshal all of the plaintiff's proof, but it must include the expert's opinion on each of the elements identified in the statute. Id. at 878. We review the trial court's denial of a motion to dismiss under an abuse of discretion standard. See id. at 875, 877 (discussing predecessor statute); see also Moore v. Garcia, 269 S.W.3d 134, 139 (Tex. App.-Fort Worth 2008, pet. denied).
APPLICATION OF LAW
A cause of action against a health care provider is a health care liability claim under the Medical Liability Act when it is based on a "claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care[.]" Tex. Civ. Prac. Rem. Code Ann. § 74.001(13) (West 2005). The pleadings assert River Oaks failed to provide medical attention to Torres under accepted standards of practice, failed to supervise its staff to provide for the safety of its patient, failed to ensure the safety of its patient in the performance of a risky and medically inappropriate procedure, and failed to establish, implement, and enforce ambulatory surgery center statutory and industry standards consistent with the Texas Health and Safety Code standards, as well as with River Oaks's own rules, regulations, policies, procedures, and operations standards.
Serrano's claims regarding River Oaks's departures from standards of care and practice are liability claims which must find support in an expert report. Dr. Stavinoha's report does not inform River Oaks about River Oaks's conduct, separate from Dr. Reddy's conduct. The report does not implicate liability claims against River Oaks other than purely vicarious liability claims based on Dr. Reddy's conduct. See Petty v. Churner, 310 S.W.3d 131, 138 (Tex. App.-Dallas 2010, no pet.) (Expert report must address direct liability claims.). Because the separate liability claims against River Oaks involve the provision of health care, Serrano was required to submit an expert report on those claims. See Obstetrical Gynecological Assocs., P.A. v. McCoy, 283 S.W.3d 96, 103 (Tex. App.-Houston [14th Dist.] 2009, pet. denied) (If plaintiff asserts claims of direct negligence against a health care provider, then the plaintiff must serve the provider with an expert report specifically addressing its conduct, rather than just the conduct of the doctors involved.). The trial court abused its discretion in denying the motion to dismiss the claims against River Oaks asserted on grounds other than purely vicarious liability. See Beaumont Bone Joint Institute, P.A. v. Slaughter, No. 09-09-00316-CV, 2010 WL 730152, at **4-5 (Tex. App.-Beaumont Mar. 4, 2010, pet. denied).
Serrano pled that River Oaks was vicariously liable for Reddy's negligent acts and omissions. River Oaks does not argue that the report is deficient or inadequate as to Dr. Reddy. "When 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." Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008). To the extent Serrano alleges that River Oaks is liable vicariously for Dr. Reddy's conduct, the expert report requirement is fulfilled as to River Oaks because it is adequate as to Dr. Reddy.
We, therefore, reverse the trial court's order only to the extent it denied dismissal of those claims against River Oaks that were not purely vicarious. The case is remanded to the trial court for entry of an appropriate order, and for further proceedings consistent with this opinion.
REVERSED AND REMANDED.