Certified EMS, Inc. v. Potts

• Decision Date: 29 March 2013
• Docket Number: No. 11–0517.,11–0517.
• Citation: 392 S.W.3d 625,56 Tex. Sup. Ct. J. 298
• Parties: CERTIFIED EMS, INC. d/b/a CPNS Staffing, Petitioner, v. Cherie POTTS, Respondent.
• Court: Texas Supreme Court

392 S.W.3d 625

56 Tex. Sup. Ct. J. 298

CERTIFIED EMS, INC. d/b/a CPNS Staffing, Petitioner,

v.Cherie POTTS, Respondent.

No. 11–0517.

Supreme Court of Texas.

Argued Oct. 17, 2012.

Delivered Feb. 15, 2013.

Rehearing Denied March 29, 2013.

Debra Ibarra Mayfield, Harris County Civil Courts at Law # 1, Harris County Civil Courthouse, Houston, TX, Laura Denise Wilson Slay and Nathan Montgomery Rymer, Rymer Moore Jackson & Echols, P.C., Houston, TX, for Certified EMS, Inc.

Clinton E. Wells Jr., John T. McDowell, McDowell Wells LLP, Houston, TX, Vincent L. Marable III, Paul Webb PC, Wharton, TX, for Cherie Potts.

Chief Justice JEFFERSON delivered the opinion of the Court.

A patient alleged that a hospital nurse, who was temporarily placed with the hospital by a staffing service, assaulted her. The patient sued under the Texas Medical Liability Act, asserting that the staffing service was directly and vicariously liable for the nurse's conduct. The staffing service sought dismissal because the patient's expert reports did not specify how the service was directly negligent. The service has not challenged, in this Court, the reports' adequacy concerning its vicarious liability.

The trial court denied the motion to dismiss, and the court of appeals affirmed. It held that because the reports support a theory of vicarious liability against the staffing service, the lack of a description supporting direct liability is not fatal to the claimant's maintaining her cause of action. We agree with the court of appeals, but for different reasons. Accordingly, we affirm the court of appeals' judgment.

I. Background

Cherie Potts was admitted to Christus St. Catherine's Hospital for treatment of a kidney infection. One of the nurses assigned to her care, Les Hardin, was referred to the hospital by a staffing service owned by Certified EMS. Potts claims that Hardin assaulted her sexually and verbally during her hospital stay. Potts alleges that the assaults caused her anxiety and physical pain. She sued the hospital, Hardin, and Certified EMS.¹

Potts 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. Potts also alleged that CertifiedEMS was vicariously liable under the theory of respondeat superior.

Because Potts sued under the Texas Medical Liability Act, she was required to serve each defendant with an expert report that met certain statutory requirements. SeeTex. Civ. Prac. & Rem.Code § 74.351 (outlining requirements and guidelines for expert reports in health care liability claims). Potts timely served reports from Nurse S. Francis Scholl Foster and Dr. Kit Harrison, Ph.D. Certified EMS challenged the reports, and the trial court gave Potts thirty days to cure the alleged deficiencies. See id. § 74.351(c). In response, Potts supplemented Nurse Foster's original report and provided a new one from Dr. Milton Altschuler, M.D.

The relevant portions of Nurse Foster's supplemented report outline the appropriate standard of care for nurses and nursing agencies, describe the steps that should have been taken by Hardin and Certified EMS to prevent the assaults, and conclude that Hardin's and Certified EMS's failures caused Potts's injuries. Dr. Altschuler's report states that Hardin engaged in sexually inappropriate and intrusive conduct, causing the injuries that Potts has alleged.

Certified EMS objected to the newly submitted reports and moved to dismiss on numerous grounds, among them that the reports omitted any explicit reference to Certified EMS's direct liability for Hardin's conduct.

The trial court denied the motion, and Certified EMS appealed. SeeTex. Civ. Prac. & Rem.Code § 51.014(a)(9) (allowing interlocutory appeal of an order denying relief sought by motion under section 74.351(b) in certain circumstances). The court of appeals affirmed, holding (as relevant here) that “if the claimant timely serves an expert report that adequately addresses at least one liability theory against a defendant health care provider, the suit can proceed, including discovery, without the need for every liability theory to be addressed in the report.” 355 S.W.3d 683, 693.² We granted Certified EMS's petition for review, which raises a single issue: Must a claimant in a health care liability suit provide an expert report for each pleaded liability theory? 55 Tex. Sup. Ct. J. 461 (Mar. 30, 2012).

II. Conflict Among the Courts of Appeals

Numerous appellate decisions have discussed the extent to which an expert report must examine every liability theory alleged. The cases reach varied results. Several courts of appeals, like the court of appeals in this case, have determined that a claimant's expert report(s) need address only a single theory for the entire suit to proceed.³ Some of those decisions rely on Potts, either indirectly or explicitly.⁴ The Potts court focused on the Act's plain language, specifically on the requirement that an expert report be served “[i]n a health care liability claim,” which the statute further defines as a “cause of action.” See355 S.W.3d at 690–92;see alsoTex. Civ. Prac. & Rem.Code § 74.001(a)(13) ( “ ‘Health care liability claim’ means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.”). Relying on our discussion of “cause of action” in In re Jorden, 249 S.W.3d 416 (Tex.2008), the Potts court reasoned that the Act requires an expert report only for each set of operative facts that give rise to one or more bases for suing. 355 S.W.3d at 691. Thus, if an expert report adequately addresses a single liability theory within a cause of action, the entire case may proceed. Id.

Other courts insist that an expert report must specifically address each liability theory.⁵ Unsupported theories must be dismissed. Those courts also look to the statute's language. Some interpret “health care liability claim” to mean a singletheory of liability.⁶ Thus, when the statute requires that a “liability claim” be supported by an expert report, these courts reason that the report must address each liability theory. Other courts of appeals interpret “health care liability claim” to mean a cause of action, or set of operative facts, like the Potts court did. But unlike the Potts court, they reason that different theories of liability must be based on different sets of operative facts and each, therefore, requires its own expert report. In that respect, several cases have held that direct and vicarious liability theories involve different sets of operative facts because “the facts required to establish the defendant's vicarious liability, i.e., the acts of [the agent and his relationship] to [the principal], differ from the facts required to establish the ... defendant's direct liability, i.e., [its] provision of particular policies and procedures.” Fung v. Fischer, 365 S.W.3d 507, 522 (Tex.App.-Austin 2012, no pet.); see also MSHC the Waterton at Cowhorn Creek, LLC v. Miller, 391 S.W.3d 551, 560 (Tex.App.-Texarkana, no pet.) (“The facts required to establish direct liability here are qualitatively different from the facts necessary to establish ... vicarious liability....”).

Still other courts have addressed questions that vary slightly from the one before us today. These courts have engaged in analyses that demonstrate the need to definitively resolve the question of how expert reports treat multiple theories of liability.⁷

These conflicts give us jurisdiction over this interlocutory appeal. Tex. Gov't Code § 22.225(c).⁸

III. Addressing Theories of Liability

Certified EMS contends 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, the report is deficient if it does not cover both. We are not persuaded.

Several courts of appeals rely on the statute's use of the term “cause of action” to decide this issue. When we discussed the phrase in In re Jorden, we noted that it “generally applies to facts, not filings.” Jorden, 249 S.W.3d at 421. We also looked to Black's Law Dictionary, which “defines ‘cause of action’ as [a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” Id. (quoting Black's Law Dictionary 235 (8th ed.2004)). From this, several appellate courts have relied on “operative facts” to reach opposing results—either that an expert report must address every pleaded liability theory,⁹ or that it need not. ¹⁰ The competing conclusions demonstrate the pitfalls of this approach.

The focus on operative facts raises more questions than it answers. Are the “operative facts” underlying alleged liability for failure to train different from the underlying allegations of vicarious liability for medical malpractice? The court of appeals here said no,¹¹ but others would say yes.¹² Would each of Potts 's direct liability theories against Certified EMS—for failing to train its employees, failing to enforce accepted standards of care, and failing to employ protocols to ensure quality care for patients—require its own expert report, because the facts underlying each allegation may differ? Will, as the cases suggest, the relevant operative facts be disputed in every case, leading to additional time, expense, and interlocutory appeals?

We appreciate the courts of appeals' reasoning, but decline to follow...