Opinion by Justice Contreras.
In this interlocutory appeal, appellant McAllen Hospitals, L.P. (the Hospital) challenges the denial of its motion to dismiss the health care liability claims of appellee Salvador Gonzalez, individually, as representative of the estate of Santos Camacho, deceased, and as representative of the statutory wrongful-death beneficiary of Santos Camacho. By one issue, the Hospital argues the trial court abused its discretion when it denied its motion to dismiss. We affirm.
On January 1, 2017, Santos Camacho was admitted to the emergency department of McAllen Medical Center, which is operated by the Hospital. During his time at the Hospital, Camacho was overseen by two physicians: Israel Becerra, M.D., and Olga Olivares-Herrera, M.D. Camacho was an indigent patient in emergent need of hemodialysis; however, he never received this treatment and passed away almost eighteen hours after his admission.
Gonzalez, Camacho's son, sued the Hospital on behalf of his father's estate and Camacho's other children. Gonzalez's live petition alleged the Hospital was vicariously
On October 20, 2017, Gonzalez served the Hospital with an expert report authored by Bruce Kone, M.D. Dr. Kone's report noted he had reviewed some of the medical records of Camacho including the records of his treatment at McAllen Medical Center on January 1, 2017. In his report, Dr. Kone discussed: the signs and symptoms exhibited by Camacho upon his admission into McAllen Medical Center; his medical history; how he was suffering from acute pulmonary edema, uremia, hyperkalemia, and acidosis; and how he needed urgent hemodialysis. Dr. Kone explained how Dr. Becerra and Dr. Olivares-Herrera breached applicable standards of care when they failed to get Camacho hemodialysis and how their breaches of the standards of care led to Camacho's death. While Dr. Kone's report noted that the events that led to Camacho's death occurred at McAllen Medical Center, it focused on addressing the conduct of Dr. Becerra and Dr. Olivares-Herrera.
On December 18, 2017, the Hospital moved to dismiss Gonzalez's "direct" negligence claims, if any, on the basis that Gonzalez had not filed an expert report as required by statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through 2017 1st C.S.). At a hearing on the motion, the Hospital argued, in essence, that any direct negligence theories against the Hospital at that time, and in the future, should be dismissed with prejudice because Gonzalez failed to provide a statutorily compliant expert report as to any such claims. See id. § 74.351(a). The trial court denied the Hospital's motion. This interlocutory appeal followed. See id. § 51.014(a)(9) (West, Westlaw through 2017 1st C.S.) (authorizing interlocutory appeal of the denial of a motion to dismiss filed under 74.351(b)).
We review a trial court's decision on the sufficiency of an expert's report and on a motion to dismiss under the expert-report rule for an abuse of discretion. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. A court abuses its discretion if it acts in an arbitrary or unreasonable manner
Section 74.351 of the Texas Civil Practice and Remedies Code provides that a plaintiff in a health care liability suit must serve the medical defendant with a statutorily-compliant expert report accompanied by the expert's curriculum vitae. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. If a plaintiff fails to do so within 120 days of filing suit, the trial court must dismiss the claim with prejudice on the defendant's motion. See id. § 74.351(a), (b)(2). The goal is "to deter frivolous lawsuits by requiring a claimant early in litigation to produce the opinion of a suitable expert that his claim has merit." Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017) (citing Scoresby v. Santillan, 346 S.W.3d 546, 552 (Tex. 2011)). Therefore, an expert report is a low threshold a person bringing a claim against a health care provider must cross merely to show that his or her claim is not frivolous. Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex. 2012).
"A trial court must sustain a challenge to a report's adequacy if the report does not represent an objective good faith effort to provide a fair summary of the applicable standard of care, the defendant's breach of that standard, and how that breach caused the patient's harm." Miller, 536 S.W.3d at 513 (internal quotation marks omitted); see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l), (r)(6). "A good-faith effort 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.'" Miller, 536 S.W.3d at 513 (quoting Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam)). All information needed for this inquiry is found within the four corners of the expert report, which need not marshal all of the plaintiff's proof. Jelinek, 328 S.W.3d at 539 (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)).
Two decisions by the Texas Supreme Court—TTHR Ltd. Partnership v. Moreno and Certified EMS, Inc. v. Potts— have made it clear that the Texas Medical Liability Act requires a plaintiff to timely file an adequate expert report as to each defendant in a health care liability claim, but it does not require an expert report as to each liability theory alleged against that defendant. TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013) ("[B]ecause the trial court did not abuse its discretion in finding Moreno's reports adequate as to her theory that [the hospital] is vicariously liable for the doctor's actions, her suit against [the hospital]—including her claims that the hospital has direct liability and vicarious liability for actions of the nurses—may proceed."); Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013) ("[W]hen a healthcare 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 theory under the vicarious theory. And if any liability theory has been adequately covered, the entire case may proceed."); see, e.g., Bay Oaks SNF, LLC v. Lancaster, 555 S.W.3d 268, 278-84 (Tex. App.—Houston
On appeal, the Hospital argues that Gonzalez pleaded direct liability claims and that the trial court erred when it did not dismiss them. Specifically, the Hospital points to Gonzalez's claims regarding (1) the Hospital's alleged nondelegable duty
First, the Hospital argues that "no report" was filed as to the direct liability claims because Dr. Kone's report did not "implicate" the Hospital. The Hospital argues the report focuses on the actions of non-party physicians—Dr. Becerra and Dr. Olivares-Herrera—and that the report "failed to name the Hospital, let alone address the standard of care, breach, or causation attributable to the direct liability allegations."
However, as previously noted, an expert report that adequately addresses at least one pleaded liability theory against a defendant is enough to defeat that defendant's
Next, the Hospital challenges the denial of its motion to dismiss the direct liability claims on the basis that the expert report did not include the standard of care, breach, and causation for the direct liability claims—i.e., as to the Hospital itself. However, the statute provides that a medical defendant must object to an expert report's sufficiency regarding the standard of care, breach of the standard of care, and causation of the plaintiff's injuries no later than twenty-one days after service. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). A defendant who fails to do so waives "all" objections to the report. Id.; see Ogletree v. Matthews, 262 S.W.3d 316, 322 (Tex. 2007). Furthermore, the statute does not require dismissal of deficient but curable reports. Ogletree, 262 S.W.3d at 320. If a report is deficient, the plaintiff should be given thirty days to file an amended report to cure the deficiency. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c).
Here, the Hospital's objections regarding the standard of care, breaches thereof, and causation as to the Hospital itself are directed to the report's sufficiency, and they could have been brought within the statutory twenty-one-day period, as required. See id. § 74.351(a); Hebner v. Reddy, 498 S.W.3d 37, 44 (Tex. 2016); Ogletree, 262 S.W.3d at 322; Gardner, 274 S.W.3d at 671 (concluding that report's failure to comply with Chapter 74 regarding the element of causation rendered the report defective rather than no report). Gonzalez served the Hospital with Dr. Kone's report on October 20, 2017, and the Hospital filed its motion to dismiss on December 18, 2017. Therefore, the hospital waived its objections to the report's sufficiency because they were not raised within twenty-one days of receiving Dr. Kone's report. Ogletree, 262 S.W.3d at 322; Houston Methodist Hosp. v. Nguyen, 470 S.W.3d 127, 130 (Tex. App.—Houston [14th Dist.] 2015, pet. denied); Troeger v. Myklebust, 274 S.W.3d 104, 110 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). We also note that an expert report is not required to identify a standard of care breached by a hospital if the theory of liability against the hospital is vicarious and based on the actions of the hospital's
We reject the Hospital's argument based on the sufficiency of Dr. Kone's report.
Next, the Hospital attempts to distinguish this case from the Texas Supreme Court's decisions in Moreno and Potts, which concluded that an expert report is not required for each pleaded theory of liability. Moreno, 401 S.W.3d at 44; Potts, 392 S.W.3d at 632. The Hospital argues those decisions are inapplicable because the doctors at hand are independent contractors and the supreme court used the words "employee" and "employer" in Potts, while the nurses in Moreno "were clearly employees of the hospital." See Moreno, 401 S.W.3d at 43-44; Potts, 392 S.W.3d at 632. Therefore, according to the Hospital, the trial court should have dismissed the direct claims because the physicians in questions were independent contractors. The Hospital's argument is misplaced.
In Texas, it is well settled that a hospital is generally not vicariously liable for the acts or omissions of a physician who is an independent contractor. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009); Columbia Med. Ctr. v. Hogue, 271 S.W.3d 238, 247 (Tex. 2008); Kimbrell v. Memorial Hermann Hosp. Sys., 407 S.W.3d 871, 876 (Tex. App.—Houston [14th Dist.] 2013, no pet.). However, this is not a proper basis for dismissing a health care liability claim under the expert report rule.
The cases cited by the Hospital in support of its argument make it clear that the Hospital can negate liability based on the physician's independent contractor status either at trial or in a motion for summary judgment. See Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862-65 (Tex. 2009) (jury charge);
Finally, the Hospital argues that the direct claims should have been dismissed because, otherwise, it would provide a loophole by allowing plaintiffs to conduct discovery regarding their direct claims without first providing a statutory-compliant report as to those claims. The Hospital argues that "Dr. Kone's expert report is a veiled attempt to investigate healthcare liability claims that have not been asserted." Again, this argument is misplaced.
The Texas Medical Liability Act requires the plaintiff to serve an expert report at the outset of litigation and before the opportunity to engage in significant discovery, including taking oral depositions of the defendants and its agents. Mangin v. Wendt, 480 S.W.3d 701, 713 (Tex. App.—Houston [1st Dist.] 2015); see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (stating that an expert report must be served no later than 120 days after the defendant's answer is filed); id. § 74.351(s) (limiting discovery until after the plaintiff serves the medical defendant with the expert report). As such, the Texas Supreme Court has noted that it may be difficult for a plaintiff to know every viable liability theory within 120 days of filing suit. Potts, 392 S.W.3d at 632; Lancaster, 555 S.W.3d at 279. Furthermore, the statute itself contemplates that the amount and quality of evidence available at the time of drafting the expert reports will be less than that available at trial on the merits or even the summary judgment stage. Mangin, 480 S.W.3d at 713; cf. Wright, 79 S.W.3d at 52 (noting that the report "need not marshal all the plaintiff's proof"); Palacios, 46 S.W.3d at 878 (same).
"Through the discovery process, a claimant can `refine [his or her] pleadings to abandon untenable theories and pursue supported ones,' and a defendant may move for summary judgment to dispose of a claim that lacks evidentiary support." Lancaster, 555 S.W.3d at 279 (quoting Potts, 392 S.W.3d at 632). Carving out causes of action—i.e., alternative theories of liability—at the beginning of the suit before discovery has occurred would essentially require plaintiffs to meet summary judgment standard of proof at the expert-report stage, which the Texas Supreme Court has repeatedly rejected. Ince, 496 S.W.3d at 115; see Potts, 392 S.W.3d at 630-31; Palacios, 46 S.W.3d at 879. Requiring an expert report each time a plaintiff discovers a liability theory would "be impractical," and this requirement would "prohibit altogether those theories asserted more than 120 days after the original petition was filed—effectively eliminating a claimant's ability to add newly discovered theories." Lancaster, 555 S.W.3d at 279 (quoting Potts, 392 S.W.3d at 632). This would go beyond the purpose of the medical liability act and would provide for the disposal of claims that are not baseless. Because this is an interlocutory appeal, our disposition does not end the litigation but instead returns the parties to the district court to proceed to trial on the merits
After rejecting all of the Hospital's arguments, we overrule its sole issue.
We affirm the trial court's order.
TEX. HEALTH & SAFETY CODE ANN. § 311.022 (West, Westlaw through 2017 1st C.S.); see also id. § 241.003(5) (West, Westlaw through 2017 1st C.S.) (defining general hospital).
