Must a claimant in a health care liability suit provide an expert report for each pleaded liability theory? This month, the Texas Supreme Court has resolved a split among the courts of appeal. Some courts had ruled that as long as the plaintiff’s health care expert report adequately addressed a single liability theory within a cause of action, the entire case could proceed. However, other courts held that an expert report must specifically address each liability theory and any unsupported theories must be dismissed.
In Certified EMS, Inc. v. Potts, No. 11–0517 (Tex. February 15, 2013), the Texas Supreme Court considered a lawsuit by a woman who alleged that a nurse assaulted her sexually and verbally during her hospital stay for treatment of a kidney infection. The woman sued the nurse, Les Hardin, and the nurse’s employer, Certified EMS.
The plaintiff asserted two theories of liability against Certified EMS. First, she claimed that Certified EMS was directly liable for Hardin’s conduct because it failed to properly train and oversee its staff, enforce applicable standards of care, and employ protocols to ensure quality patient care and adequate staff supervision.
She also alleged that Certified EMS was vicariously liable under the theory of respondeat superior. Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his agency or employment even though the principal or employer has not personally committed a wrong. The justification for imposing this liability is that the principal or employer has the right to control the means and methods of the agent or employee’s work.
Because the plaintiff sued under the Texas Medical Liability Act, she was required to serve each defendant with an expert report that met certain statutory requirements. See TEX. CIV. PRAC. & REM.CODE § 74.351. The plaintiff provided expert reports that outlined the claim against the nurse (and noted that the nurse was working as an employee of Certified EMS at the time). However, the expert reports did not specifically address how Certified EMS might be directly liable for its own conduct.
Certified EMS moved to dismiss the claim that it could be directly liable for its own negligence. Certified EMS contended that if a claimant’s report does not adequately address each asserted theory, the trial court must dismiss those theories that are unsupported by a report. Thus, if a plaintiff’s allegations include both direct and vicarious liability claims, they argued, the report is deficient if it does not cover both.
After noting the split among the courts of appeals, the Texas Supreme Court rejected Certified EMS’s argument and held that the plaintiff’s entire case could proceed:
“A report need not cover every alleged liability theory to make the defendant aware of the conduct that is at issue. […] [A]n expert report does not require litigation-ready evidence. Rather, “to avoid dismissal … [t]he report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.” For the particular liability theory addressed, the report must sufficiently describe the defendant’s alleged conduct. Such a report both informs a defendant of the behavior in question and allows the trial court to determine if the allegations have merit. If the trial court decides that a liability theory is supported, then the claim is not frivolous, and the suit may proceed.”
Because the plaintiff’s expert report sufficiently addressed one liability theory (i.e., that Certified EMS could be vicariously liable for the negligence of its employee), the Supreme Court held that trial court correctly denied the motion to dismiss.
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The attorneys at Heygood, Orr & Pearson have the experience and expertise to assist injured patients with their medical malpractice claims. Our attorneys have successfully represented numerous victims of medical malpractice. Among our attorneys’ recent verdicts, settlements and results are the following:
Jim Orr negotiated a $6.75 million settlement for the family of an 8 year-old child who suffered permanent brain damage due to medical errors occurring at a VA hospital.
Michael Heygood achieved a $2.2 million jury verdict in a medical malpractice lawsuit arising from the premature discharge of a newborn infant from the hospital with low glucose levels.
Eric Pearson argued the appeal in Columbia Medical Center of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2009), in which the Texas Supreme Court upheld a gross negligence finding against the defendant hospital in a medical malpractice case and affirmed the jury’s $9 million verdict on behalf of his clients.
At Heygood, Orr & Pearson, we have the knowledge, experience and financial resources necessary to prosecute even the most complex medical negligence case. If you believe you or a loved one has suffered as a result of medical malpractice, please contact us or a free consultation to discuss your legal rights and options.