Opinion

Opinion issued April 23, 2015

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-12-01108-CV

———————————

TELICIA OWENS, Appellant

V.

KRISTA G. HANDYSIDE, M.D., SAMUEL J. PRATER, M.D., KENNETH

A. TOTZ, D.O., FACEP, AND MEMORIAL HERMANN HOSPITAL

SYSTEM D/B/A MEMORIAL HERMANN – TEXAS MEDICAL CENTER,

Appellees

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Case No. 2012-07534

OPINION

Appellant, Telicia Owens, challenges the trial court’s dismissal of her health

care liability claims 1 against appellees, Krista G. Handyside, M.D., Samuel J.

Prater, M.D., Kenneth A. Totz, D.O., FACEP, 2 and Memorial Hermann Hospital

System, doing business as Memorial Hermann – Texas Medical Center (“Memorial

Hermann”).3 In three issues, Owens contends that the trial court erred in

dismissing her claims on the grounds that she failed to timely serve her medical

expert report on appellees, her medical expert is not qualified to opine on the

standard of care of hospital emergency room doctors, and her report insufficiently

addresses the issues of standard of care and causation. 4

We reverse and remand.

1

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (Vernon Supp. 2014).

2

Owens sued “Kenneth A. Totz, M.D.” We note that in his answer, Dr. Totz

identifies himself as “Kenneth A. Totz, D.O., FACEP,” as does the trial court in its

dismissal order. Our style of the case is in accord with the trial court’s dismissal

order. See Strobel v. Marlow, 341 S.W.3d 470, 471 n.1 (Tex. App.—Dallas 2011,

no pet.).

3

Owens sued “Memorial Hermann Healthcare System d/b/a Memorial Hermann

Hospital.” In its answer, Memorial Hermann stated that it was incorrectly named.

In its dismissal order, the trial court identifies Memorial Hermann as “Memorial

Hermann Hospital System d/b/a Memorial Hermann – Texas Medical Center.”

Our style of the case is in accord with the trial court’s dismissal order. See id.

4

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp. 2014)

(governing medical expert reports). In 2013, the legislature amended

section 74.351 of the Texas Medical Liability Act. See Act of May 26, 2013, 83rd

Leg. R.S., ch. 870, § 2, 2013 TEX. SESS. LAW SERV. 2220, 2220. The new

provision applies to all suits filed after September 1, 2013. Because Owens filed

her original petition in 2010, we apply the former version of section 74.351 to her

claims. See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 TEX. GEN.

LAWS 1590, 1590 (amended 2013) (current version at TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351).

2

Background

In her petition, Owens alleges that on February 6, 2010, she went to the

“Emergency Department at Memorial Hermann,” complaining of a “severe

headache.” She was diagnosed with a “migraine, tension headache, and headache

associated with sinuses[,]” and “[n]o diagnostic testing was done to rule out any

internal problems.” On February 10, 2010, Owens “returned to the Emergency

Department at Memorial Hermann,” complaining of “the same persisting

symptoms.” Dr. Handyside diagnosed her as suffering from a “headache and

sinitus.” Again, no diagnostic testing was performed. On February 21, 2010,

Owens “returned again to the [E]mergency [D]epartment at Memorial Hermann,”

complaining of a “headache and blurry vision.” Drs. Prater and Totz treated her,

and they diagnosed her as suffering from a “headache.” Again, no diagnostic

testing was performed.

Subsequently, on February 24, 2010, Owens went to “Methodist Hospital for

assessment of the same symptoms that she complained of at Memorial Hermann.”

Doctors administered a “CT scan,” which showed that she was suffering from a

“head bleed.” Methodist admitted Owens into its Intensive Care Unit, and it

discharged her on March 3, 2010.

On April 22, 2010, Owens went to “Ben Taub General Hospital[,]

complaining of sudden blindness, which resulted in [the] placement of a lumbar

3

shunt.” On May 14, 2010, she returned to Ben Taub, “complaining of sutures

coming out, shunt leak[age], blurred vision, and [a] headache.” Ben Taub admitted

Owens for evaluation and subsequently discharged her. On May 17, 2010, Owens

again returned to Ben Taub, “complaining of [a] headache, chest pain, and neck

stiffness.” Her shunt was infected, and it was removed. Owens was “found to

have been infected with MRSA—Methicillin Resistant Staphyloccus Auereus.”

Owens further alleges that she sustained “permanent damage to her optic

nerve and is completely blind in both of her eyes. She has continuous subsequent

damage and pain.” However, Owens does not specify in her petition the medical

cause or reason for her loss of vision and residual “damage and pain.”

Owens brings health care liability claims against Drs. Handyside, Prater, and

Totz for negligence and gross negligence, specifically alleging that they:

• Failed to obtain an accurate assessment of Owens;

• Failed to notice signs and symptoms of “Cerebral Venous Sinus

Thrombosis” (“CVST”);

• Failed to accurately and timely diagnose Owens;

• Failed to consider possible explanations and respond to severe

headaches and blurry vision;

• Failed to order appropriate radiological studies;

• Failed to make a medical diagnosis based on Owens’s clinical

condition;

4

• Failed to consult with a neurologist or other specialist while Owens

was in the emergency department;

• Failed to develop and carry out a proper treatment plan for Owens;

• Failed to admit Owens to “Neurological ICU”;

• Failed to order thrombolytic medication necessary to attempt to

dissolve thrombosis;

• Failed to adhere to “Federal Laws regarding EMTALA regarding

emergently treating a patient” regardless of her inability to pay;

• Failed to order appropriate diagnostic tests and treatments even once

“cerebral venous sinus thrombosis” was suspected as a possible cause

of Owens’s symptoms; and

• Negligently managed a patient with CVST.

Owens likewise brings direct-liability claims for negligence and gross

negligence against Memorial Hermann, specifically alleging that it:

• Failed to select and retain only competent physicians and staff;

• Failed to properly supervise the health care providers who treated Owens;

• Failed to enforce or have in place policies, protocols, by-laws, rules and

regulations regarding proper diagnosis and treatment of Owens’s medical

condition;

• Failed to enforce or have in place policies and protocols, with regard to

consulting specialty physicians;

• Failed to have a medical director or chief of staff in place that properly

supervised physicians and staff; and

• Failed to abide by recommendations and requirements of healthcare

certifying organizations.

5

“As a result of the above-noted acts of negligence,” Owens asserts that

appellees “directly and proximately caused” her “injuries, losses, and damages.”

She also alleges that Memorial Hermann is vicariously liable for the negligent

“acts and/or omissions” of its staff, including, among others, Drs. Handyside,

Prater, and Totz.

To support her claims, Owens, on or about May 29, 2012, filed and served

upon appellees a medical expert report authored by Brian C. Richardson, M.D.

Appellees objected to Dr. Richardson’s report on several grounds, including that

Owens did not timely serve it; it failed to sufficiently address the elements of

standard of care, breach of the standard, and causation; and Richardson, a

neurologist, is not qualified to opine on the standard of care of hospital emergency

room doctors or causation. Dr. Totz filed his objection to the sufficiency of

Richardson’s report on June 19, 2012.

Owens, on July 17, 2012, filed her response to the objections of appellees,

attaching United States Postal Service (“USPS”) certified mail receipts and “green

cards,” which evidence service of Dr. Richardson’s expert report on appellees by

certified mail. However, the signature line on the green card for Dr. Totz does not

contain a signature, and both the USPS certified mail receipt and green card

pertaining to him show the wrong zip code for his home address. On August 15,

2012, Totz filed a “Supplemental Objection” to Richardson’s expert report,

6

attaching to it his affidavit and the affidavit of his attorney, Charles B. Holm. Totz

testified that he had “never received a copy of Dr. Richardson’s Expert Report via

certified mail, return receipt requested at [his] personal residence” and he “never

executed” the green card attached to Owens’s response. Although Holm testified

that he had “never received a copy of Dr. Richardson’s Expert Report from the

Plaintiff or her attorney on or before June 6, 2012,” and neither had anyone at his

law firm, he conceded that he had “obtained a copy of Dr. Richardson’s Expert

Report though alternative means.” Owens did not file a response to Totz’s

supplemental objection.

After a hearing, the trial court sustained Dr. Totz’s specific objection that

Owens had failed to timely serve him with Dr. Richardson’s expert report, and it

dismissed Owens’s claims against him. It also sustained the objections of

Memorial Hermann and Drs. Handyside and Prater as to the adequacy of

Richardson’s expert report, but it allowed Owens thirty days to file and serve upon

them an amended report.

Owens then filed and served Dr. Richardson’s amended medical expert

report on Memorial Hermann and Drs. Handyside and Prater. In Richardson’s

amended report, he notes that he is a “physician in private practice,” is “licensed to

practice medicine in the State of California,” and is “board certified in adult

neurology and vascular neurology.” Richardson further states:

7

I have knowledge of accepted and established standards of medical

care for the patient[’]s diagnosis that is involved in the claim. I

obtained this knowledge via my residency and fellowship training as

well as via experience[] gained in the practice of neurology for over

19 years.

....

As a neurologist board certified in general adult neurology and

vascular neurology[,] I have seen, diagnosed and managed many

patients with dural sinus thrombosis. I have also seen, diagnosed and

managed patients with idiopathic intracranial hypertension (formerly

referred to as pseudotumor cerebri or benign intracranial

hypertension). As such[,] I am familiar with the standard of care for

the diagnosis, care and treatment of both dural sinus thrombosis and

idiopathic intracranial hypertension.

Richardson also explains that he reviewed Owens’s medical records prior to

forming his opinions.

Dr. Richardson notes that the applicable standard of care for Dr. Handyside,

concerning a patient complaining of,

a severe headache of one week duration . . . without a prior history of

recurrent headaches would include cerebral imaging[,] such as [a] CT

or preferably [a] brain MRI. [A] [l]umbar puncture should have been

performed as well. A neurology consultation should have been

obtained. It should have been clear to the examining physician that

the patient had a potentially serious neurological condition. The

differential diagnosis should have included dural sinus thrombosis.

The standard of care would also have included admission or urgent

appropriate outpatient follow-up . . . .

In regard to the applicable standard of care for Dr. Prater, Richardson states the

following:

8

[Owens was diagnosed with] rule out cavernous sinus thrombosis, rule

out meningoenchephalitis. . . . These are two very serious diagnoses

that should have prompted admission to the hospital and [an] urgent

neurological consultation. At the very least[,] neurodiagnostic

studies[,] such as [a] lumbar puncture, [a brain CT], or [a] brain

MRI[,] should have been performed. The standard of care for

evaluating patients with possible meningitis is to perform a lumbar

puncture right away. Neurological consultation and neuroimaging[,]

such as [a brain CT scan] or [a] brain MRI[,] should be done promptly

when cavernous sinus thrombosis is being entertained as a diagnosis.

Patients should be admitted to the hospital rather than discharged

when life-threatening diagnoses such as these are considered. . . . As

stated above, cerebral imagining, [a] CT or preferably [a] brain

MRI[,] should have been done. A lumbar puncture should have been

performed given the diagnoses of the examining physicians.

Finally, regarding the applicable standard of care for Memorial Hermann,

Richardson notes that it “should have had protocols for evaluation, consultation,

admission and follow-up that resulted in adequate care of patients with conditions

such as dural sinus thrombosis and idiopathic intracranial hypertension. The

failure to have in place and abide by such protocols was a bre[a]ch in the standard

of care.”

In regard to causation, Dr. Richardson opines that,

If Dr. . . . Handyside had performed cerebral imaging[,] such as [a]

CT or preferably [an] MRI, performed [a] lumbar puncture or

obtained [a] neurological consultation it is medically probable

that . . . Owens would have had her condition diagnosed and treated in

a timelier manner. Early treatment of dural sinus thrombosis reduces

the likelihood of complications[,] such as idiopathic intracranial

hypertension. Thus[,] her vision would have most likely been spared

and she would not have lost vision in the right and left eyes. Severe

loss of vision is a preventable complication of dural sinus thrombosis.

9

If Dr[]. . . . Prater performed [a] lumbar puncture, ordered cerebral

imaging[,] such as [a] head CT and preferably [an] MRI, admitted

[Owens to the hospital] and/or obtained [a] neurological

consultation, . . . Owens would have likely had a more timely

diagnosis, earlier treatment and her vision would medically probably

have been saved. If . . . Prater had not prescribed dexamethazone

for . . . Owens[,] it is medically probable that her condition would not

have been exacerbated. It is possible she would have not progressed

to . . . have [a] loss of vision.

....

Memorial Herman[n] . . . failed to have and/or implement adequate

protocols for evaluation, consultation, admission and follow-up that

resulted in adequate care of this patient with dural sinus thrombosis

and idiopathic intracranial hypertension. The failure to have in place

and abide by such protocols was a bre[a]ch in the standard of care that

was a proximate cause of . . . Owens subsequently developing

blindness in the right and left eyes.

(Footnote omitted.) Richardson further opines that:

. . . Owens developed dural sinus thrombosis . . . . This is an

uncommon, but well known condition that is treatable with

anticoagulant medications. There was a significant delay in the

diagnosis of this condition. This delay resulted in the development of

a complication, severe vision loss due to idiopathic intracranial

hypertension. Severe vision loss due to intracranial complication can

generally be easily treated with medication if it is diagnosed early.

And he explains that: “Untreated dural sinus thrombosis is well known to

potentially cause idiopathic intracranial hypertension. Idiopathic intracranial

hypertension may progress to blindness if untreated. It is medically probable that

early diagnosis would have prevented [Owens’s] later development of vision loss.”

(Footnote omitted.)

10

Memorial Hermann and Drs. Handyside and Prater objected to Dr.

Richardson’s amended medical expert report and moved to dismiss Owens’s

claims against them on the grounds that Richardson is not qualified to opine on the

standard of care for hospital emergency room doctors and his report insufficiently

addresses the issues of standard of care and causation. Drs. Handyside and Prater

also reasserted their untimeliness objections. Without stating its reasons, the trial

court granted the motions of Memorial Hermann and Drs. Handyside and Prater to

dismiss Owens’s health care liability claims.

Standard of Review

We review a trial court’s decision on a motion to dismiss a health care

liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex.,

Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P.,

189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court

abuses its discretion if it acts in an arbitrary or unreasonable manner without

reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539

(Tex. 2010). When reviewing matters committed to a trial court’s discretion, we

may not substitute our own judgment for that of the trial court. Bowie Mem’l

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its

discretion merely because it decides a discretionary matter differently than an

11

appellate court would in a similar circumstance. Harris Cnty. Hosp. Dist. v.

Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Timeliness of Expert Report

In her first issue, Owens argues that the trial court erred in dismissing her

claims against Dr. Totz because he admitted in his objection, filed on June 19,

2012, to Dr. Richardson’s report that he had timely received the report and he did

not raise his timeliness objection “until August 15, 2012, more than two months

after the expiration of the 120-day deadline.” Totz argues that Owens “failed to

preserve her argument regarding [his] admission” of his timely receipt of

Richardson’s expert report because she did not “ever raise [in the trial court] the

argument that [he] admitted that he was timely served” with the report.

The former version of section 74.351 of the Texas Civil Practice and

Remedies Code, in effect at the time this suit was filed, provided that a health care

liability claimant shall, “not later than the 120th day after the date the original

petition [is] filed, serve on each party or the party’s attorney one or more expert

reports.”5 See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 TEX. GEN.

LAWS 1590, 1590 (amended 2013) (current version at TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(a) (Vernon Supp. 2014)). It further provided that if an expert

5

The legislature’s 2013 amendment to section 74.351(a) requires each health care

liability claimant to serve an expert report “not later than the 120th day after each

defendant’s original answer is filed.” See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(a) (emphasis added).

12

report is not timely served, the affected health care provider may move to dismiss a

claim asserted against it, and the court must dismiss the claim with prejudice. TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(b); Heriberto Sedeno, P.A. v. Mijares,

333 S.W.3d 815, 818, 822–23 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A

health care provider may waive its right to complain about the adequacy of an

expert report by failing to challenge the report’s adequacy within twenty-one days

of service of the report. See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1,

2005 TEX. GEN. LAWS 1590, 1590 (amended 2013) (current version at TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a)); Ogletree v. Matthews, 262 S.W.3d 316,

321–22 (Tex. 2007). However, there is no deadline to file a motion to dismiss for

failure to timely serve a chapter 74 expert report. Jernigan v. Langley, 111 S.W.3d

153, 156 (Tex. 2003); Heriberto, 333 S.W.3d at 823–24. In other words, a health

care provider does not waive its right to dismissal of an untimely expert report by

waiting to file its motion to dismiss. See Jernigan, 111 S.W.3d at 156–57 (waiting

more than 600 days to move for dismissal). Accordingly, we hold that Dr. Totz

did not waive his right to complain about the timeliness of Owens’s service of Dr.

Richardson’s report.

Regarding Dr. Totz’s argument that Owens “failed to preserve her argument

regarding [his] admission” of his timely receipt of Dr. Richardson’s expert report,

we note that in reviewing a trial court’s judgment, we may only consider what was

13

before the trial court at the time it made its decision. San Jacinto Methodist Hosp.

v. Carr, No. 01-07-00655-CV, 2008 WL 2186473, at *3 (Tex. App.—Houston [1st

Dist.] May 22, 2008, no pet.) (mem. op.); Hansen v. Starr, 123 S.W.3d 13, 18

(Tex. App.—Dallas 2003, pet. denied); see also TEX. R. APP. P. 33.1(a). As Totz

noted, Owens did not respond to his supplemental objection, in which he raised the

issue of the timeliness of Owens’s service of Richardson’s report. And, thus, she

did not argue to the trial court that Totz had admitted that he had timely received

Richardson’s report. However, it was not necessary for her to make this assertion

in her response.

Dr. Totz’s attorney, Charles B. Holm, in his affidavit attached to Totz’s

August 15, 2012 “Supplemental Objection” to Dr. Richardson’s expert report,

conceded that he had “obtained a copy of Dr. Richardson’s Expert Report though

alternative means.” His affidavit testimony does not contain an affirmative

statement that he did not timely receive a copy of the report. Rather, he merely

states that he “never received a copy of Dr. Richardson’s Expert Report from the

Plaintiff or her attorney on or before June 6, 2012” and neither had anyone at his

law firm. (Emphasis added.) Likewise, Totz, in his affidavit, does not

affirmatively state that he did not receive a copy of the report. Rather, he states

that he “never received a copy of Dr. Richardson’s Expert Report via certified

14

mail, return receipt requested at my personal residence” and had “never executed”

the green card attached to Owens’s response to his objection. (Emphasis added.)

Importantly, neither Dr. Totz nor his attorney, in their affidavit testimony,

denies having timely received a copy of Dr. Richardson’s report. And the trial

court, at the time it made its decision to dismiss Owens’s claims against Totz, had

before it Holm’s testimony that he had “obtained a copy of Dr. Richardson’s

Expert Report though alternative means.” Accordingly, we hold that Owens did

not fail to preserve her argument regarding Totz’s admission that he had timely

received a copy of Richardson’s expert report.6

In regard to the merits of Owens’s first issue, Dr. Totz argues that the trial

court did not err in dismissing Owens’s claims against him because, under a proper

construction of section 74.351 of the Civil Practice and Remedies Code, she had

6

Dr. Totz also argues that Owens waived her “appellate issues” as to him because

she did not reference in her notice of appeal the September 6, 2012 order granting

Totz’s motion to dismiss or serve Totz with certain documents. As explained in

our April 29, 2014 order, although Owens did not list the trial court’s September

6, 2012 order granting Totz’s motion to dismiss in her notice of appeal, “the rules

do not require [her] to list in the notice of appeal every interlocutory ruling that

[she] may wish to appeal.” See Ostrovitz & Gwinn, LLC v. First Specialty Ins.

Co., 393 S.W.3d 379, 386 (Tex. App.—Dallas 2012, no pet.). Further, we note

that “our decisions construing the appellate rules have not favored disposing of

appeals on harmless procedural defects.” See Sweed v. Nye, 323 S.W.3d 873, 875

(Tex. 2010); see also Higgins v. Randall Cnty. Sheriff’s Office, 257 S.W.3d 684,

688 (Tex. 2008) (“[W]e have long interpreted the Rules of Appellate Procedure

liberally in favor of preserving appellate rights.”); Tex. S. Univ. v. Araserve

Campus Dining Servs. of Tex., Inc., 981 S.W.2d 929, 935 n.12 (Tex. App.—

Houston [1st Dist.] 1998, pet. denied) (docketing statement does not limit or waive

party’s appellate arguments).

15

not timely served Dr. Richardson’s expert report upon him, even though he had

received it and was able to timely object to its sufficiency, as she had not served

him by certified mail or in person. However, the Texas Supreme Court has

concluded otherwise, on similar facts. See Zanchi v. Lane, 408 S.W.3d 373 (Tex.

2013). In Zanchi, the court specifically held:

[W]e conclude, that, under section 74.351(a) of the TMLA, a

physician or health care provider against whom [a health care liability

claim] is asserted is a “party” who may be served with an expert

report regardless of whether he has been served with process. We

further hold that an expert report need not be “served” in compliance

with the formal requirements of Rule 106 [governing citation and

service of process] that apply specifically to service of citation.

Id. at 380–81.

Here, the record reveals that Owens filed her petition on February 7, 2012,

naming Dr. Totz as a defendant. She then filed and served Dr. Richardson’s initial

expert report on the defendants on or about May 29, 2012. Although the USPS

certified mail receipt and green card show that Owens used the wrong zip code in

mailing the report to Totz and he was not served with the expert report in person or

by certified mail, Totz and his attorney did in fact timely obtain a copy of the

report “though alternative means.” Accordingly, we hold that the trial court erred

in granting Totz’s motion to dismiss Owens’s claims against him on the ground

16

that she had failed to timely serve him with Richardson’s report. We sustain

Owens’s first issue.7

Sufficiency of Expert Report

In her second issue, Owens argues that the trial court erred in dismissing her

claims against Memorial Hermann and Drs. Handyside and Prater because “Dr.

Richardson is fully qualified . . . to offer opinions in this case” and he adequately

addresses the elements of standard of care and causation in his report.8

As noted above, a health care liability claimant must timely provide each

defendant health care provider with an expert report. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351; Gray, 189 S.W.3d at 858. The report must provide a “fair

summary” of the expert’s opinions as of the date of the report regarding the

applicable standards of care, the manner in which the care rendered by the health

care provider failed to meet the standard, and the causal relationship between that

7

In her brief, Owens also asserts that she timely served Dr. Richardson’s report on

Memorial Hermann and Drs. Handyside and Prater. In response, Drs. Handyside

and Prater state that they “no longer object to the timeliness of the expert report of

Dr. Richardson.” Similarly, in its brief, Memorial Hermann states, “[o]n or about

May 30, 2012, [Owens] timely served on [Memorial Hermann] an initial expert

report of Brian C. Richardson, M.D.” Accordingly, we do not address this portion

of Owens’s first issue.

8

Owens also asserts that Dr. Richardson’s expert report adequately addresses the

element of breach of the standard of care. However, neither Memorial Hermann

nor Drs. Handyside or Prater objected to Richardson’s report on this ground.

Further, to the extent that Owens asserts that the report is sufficient in regard to

Dr. Totz, we note that the trial court dismissed Owens’s claims against Totz on the

ground that she had not timely served him with the report. Accordingly, we do not

address these portions of Owens’s second issue.

17

failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(r)(6).

If a defendant health care provider files a motion to dismiss, challenging the

adequacy of a claimant’s expert report, a trial court must grant the motion if it

appears, after a hearing, that the report does not represent an objective good faith

effort to comply with the definition of an expert report or is not sufficiently

specific to provide a basis for the trial court to conclude that the claims have merit.

Id. § 74.351(l); Scoresby v. Santillan, 346 S.W.3d 546, 555–56 (Tex. 2011). In

setting out the expert’s opinions, the report must provide enough information to

fulfill two purposes: (1) it must inform the defendant of the specific conduct that

the plaintiff has called into question, and (2) it must provide a basis for the trial

court to conclude that the claims have merit. Scoresby, 346 S.W.3d at 556.

Dr. Richardson’s Qualifications

Owens first argues that the trial court, to the extent that it granted Drs.

Handyside’s and Prater’s motions to dismiss her claims on the ground that Dr.

Richardson is not qualified to address the standard of care, erred because

“Richardson is more than qualified to offer []his opinion.”9 Owens asserts that it

does not matter that Richardson is “not an emergency room physician” and he is

9

Memorial Hermann did not challenge Dr. Richardson’s qualifications, and Drs.

Handyside and Prater only assert that Richardson is not qualified to opine on the

standard of care of hospital emergency room doctors.

18

“more than qualified to testify about dural sinus thrombosis and idiopathic

intracranial hypertension, the conditions involved in [Owens’s] claim[s].”

In order to qualify as an expert, an individual need not be a specialist in the

particular area of the profession for which testimony is offered. Rittger v. Danos,

332 S.W.3d 550, 558 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Keo v. Vu,

76 S.W.3d 725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). However,

merely being a doctor is insufficient. See Broders v. Heise, 924 S.W.2d 148, 152

(Tex. 1996). Instead, “[a] medical [expert] who is not of the same school of

medicine” must show that “he has practical knowledge of what is usually and

customarily done by a practitioner under circumstances similar to those

confronting the defendant.” Marling v. Maillard, 826 S.W.2d 735, 740 (Tex.

App.—Houston [14th Dist.] 1992, no writ); see also Roberts v. Williamson, 111

S.W.3d 113, 121 (Tex. 2003) (doctor need not practice in particular field about

which he opines if demonstrates knowledge, skill, experience, training, or

education regarding specific issue before court qualifying him to give opinion on

issue); Keo, 76 S.W.3d at 732. Analysis of an expert’s qualifications to opine as an

expert on the subject matter of the report is limited to the four corners of the expert

report or accompanying curriculum vitae. See Mem’l Hermann Healthcare Sys. v.

Burrell, 230 S.W.3d 755, 758 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

19

In order to opine on the standard of care, a person must (1) be “practicing

medicine at the time such testimony is given or [have been] practicing medicine at

the time the claim arose”; (2) have “knowledge of accepted standards of medical

care for the diagnosis, care, or treatment of the illness, injury, or condition

involved in the claim”; and (3) be “qualified on the basis of training or experience

to offer an expert opinion regarding those accepted standards of medical care.”

TEX. CIV. PRAC. & REM. CODE § 74.401(a) (Vernon 2011); see also id.

§ 74.351(r)(5)(A) (defining “expert,” with respect to person opining as to whether

doctor departed from accepted standards of medical care, as one “qualified to

testify under the requirements of Section 74.401”). To determine whether a person

is qualified on the basis of training or experience, the court shall consider whether

he “is board certified or has other substantial training or experience in an area of

medical practice relevant to the claim” and “is actively practicing medicine in

rendering medical care services relevant to the claim.” Id. § 74.401(c).

Drs. Handyside and Prater assert that “[i]n order to satisfy the expert report

requirement of [c]hapter 74, [Owens] needed to serve on [them] an expert report

from someone who is qualified to offer opinions on the standard of care as it

relates to the care they provided, as emergency physicians.” According to Drs.

Handyside and Prater,

Dr. Richardson’s curriculum vitae and reports solely list his

occupation as a medical doctor specializing in neurology. He also

20

lists his clinical experience as that of being in private practice. He

fails to show that he has any experience in emergency

medicine . . . [and] fails to show that he has ever worked in an

emergency department or worked closely with emergency physicians

in treating and diagnosing patients . . . .

(Internal citations omitted.)

In his expert report, Dr. Richardson notes that he is a “physician in private

practice,” “licensed to practice medicine in the State of California.” He has been

in “private practice for 19 years” and is “board certified in adult neurology and

vascular neurology by the American Board of Psychiatry and Neurology.” And

Richardson further states:

I have knowledge of accepted and established standards of medical

care for the patient[’]s diagnosis that is involved in the claim. I

obtained this knowledge via my residency and fellowship training as

well as via experience[] gained in the practice of neurology for 19

years.

....

As a neurologist board certified in general adult neurology and

vascular neurology[,] I have seen, diagnosed and managed many

patients with dural sinus thrombosis. I have also seen, diagnosed and

managed many patients with idiopathic intracranial hypertension

(formerly referred to as pseudotumor cerebri or benign intracranial

hypertension). As such[,] I am familiar with the standard of care for

the diagnosis, care and treatment of both dural sinus thrombosis and

indiopathic intracranial hypertension.

Richardson’s curriculum vitae also reveals that he is a board certified

neurologist in private practice, his fellowship focused on “[c]erebral blood flow

and metabolism, and dementia,” he completed his residency in the field of

21

neurology, and has conducted research related to Alzheimer’s disease, vascular

dementia, and strokes.

In determining whether an expert is qualified, we must be careful not to

draw expert qualifications “too narrowly.” Larson v. Downing, 197 S.W.3d 303,

305 (Tex. 2006); Adeyemi v. Guerrero, 329 S.W.3d 241, 247 (Tex. App.—Dallas

2010, no pet.). The specific issue in this case is whether Drs. Handyside and Prater

failed to timely and appropriately diagnose and treat Owens’s conditions.

Dr. Richardson’s report shows that he has experience in treating and

diagnosing patients with the conditions suffered by Owens, namely dural sinus

thrombosis and idiopathic intracranial hypertension, which Drs. Handyside and

Prater allegedly failed to diagnose and treat properly. And he is familiar with the

standard of care applicable to doctors who care for patients with the same

conditions with which Owens presented. See Tawa v. Gentry, No. 01-12-00407-

CV, 2013 WL 1694869, at *7 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no

pet.) (mem. op.) (expert sufficiently qualified to opine on standard of care by

“showing the injury involved was of the type [the expert] treated in his practice”

(internal quotation marks omitted)); Hillery v. Kyle, 371 S.W.3d 482, 487 (Tex.

App.—Houston [1st Dist.] 2012, no pet.) (concluding expert qualified, where

expert stated familiarity “with the standards of care relevant to the condition

involved in th[e] claim” and he had “diagnosed and treated, ‘patients with the

22

conditions similar to those experienced by’” plaintiff); Rittger, 332 S.W.3d at 558–

59 (noting focus not on defendant doctor’s area of expertise, but on condition

involved in claim).

Further, we note that the fact that Dr. Richardson is a neurologist, rather than

an emergency room doctor, does not disqualify him as an expert in this case. See

Rittger, 332 S.W.3d at 559 (holding neurologist/professor of medicine qualified to

opine on standard of care in case against emergency room doctor who failed to

diagnose stroke in pregnant patient, explaining fact patient “was pregnant when

she experienced her stroke or that she presented herself in an emergency room

setting does not require that [expert] be an obstetrician or emergency room

physician”); see also Hayes v. Carroll, 314 S.W.3d 494, 504–05 (Tex. App.—

Austin 2010, no pet.) (holding doctor, board certified in general and vascular

surgery, qualified to render opinion on standard of care applicable to emergency

room specialist); Blan v. Ali, 7 S.W.3d 741, 746–47 (Tex. App.—Houston [14th

Dist.] 1999, no pet.) (concluding neurologist qualified as expert on strokes,

although defendant doctors were emergency room doctor and cardiologist).

We conclude that Dr. Richardson has the knowledge, skill, experience,

education, or training to render an opinion on the standard of care applicable to a

doctor treating a patient with the conditions with which Owens presented.

Accordingly, we hold that the trial court erred to the extent that it granted Drs.

23

Handyside’s and Prater’s motions to dismiss Owens’s claims on the ground that

Richardson is not qualified to opine on the standard of care.

Causation

Owens next argues that the trial court, to the extent that it granted Drs.

Handyside’s and Prater’s motions to dismiss her claims on the ground that Dr.

Richardson did not adequately address the issue of causation, erred because

Richardson, in his report, adequately addresses the issue of causation as it related

to the doctors. 10

An expert report must provide a “fair summary” of the expert’s opinions

regarding the causal relationship between the failure of a health care provider to

provide care in accord with the pertinent standard of care and the injury, harm, or

damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). In

assessing the sufficiency of a report, a trial court may not draw inferences; instead,

it must exclusively rely upon the information contained within the four corners of

the report. Wright, 79 S.W.3d at 52. “No particular words or formality are

required [in the expert report], but bare conclusions will not suffice.” Scoresby,

346 S.W.3d at 556 (footnotes omitted).

10

Because of our disposition of Owens’s final issue below, we do not address the

portion of her second issue in which she argues that the trial court erred to the

extent that it granted Memorial Hermann’s motion to dismiss her direct-liability

claims against it on the ground that Dr. Richardson’s report did not adequately

address the issues of standard of care and causation. See infra.

24

A causal relationship is established by proof that a negligent act or omission

constituted a substantial factor in bringing about harm and, absent the act or

omission, the harm would not have occurred. Costello v. Christus Santa Rosa

Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no pet.).

However, an expert report need not marshal all of the plaintiff’s proof necessary to

establish causation at trial, and it need not anticipate or rebut all possible defensive

theories that may ultimately be presented to the trial court. Wright, 79 S.W.3d at

52; Fortner v. Hosp. of the Sw., LLP, 399 S.W.3d 373, 383 (Tex. App.—Dallas

2013, no pet.). The expert must simply provide some basis that the defendant

health care provider’s act or omission proximately caused injury. Wright, 79

S.W.3d at 52–53. And the expert must explain the basis of his statements and link

his conclusions to the facts. Id. at 52. A report that merely states an expert’s

conclusions regarding causation is not sufficient. Id.; Palacios, 46 S.W.3d at 879.

“[I]f an expert report contains only conclusions about [causation], the trial court

has ‘no discretion but to conclude . . . that the report does not represent a good-

faith effort’ to satisfy the statute.” Smith v. Wilson, 368 S.W.3d 574, 577 (Tex.

App.—Austin 2012, no pet.) (quoting Palacios, 46 S.W.3d at 877, 880).

In his expert report, Dr. Richardson explains:

. . . Owens developed dural sinus thrombosis . . . . This is an

uncommon, but well known condition that is treatable with

anticoagulant medications. There was a significant delay in the

diagnosis of this condition. This delay resulted in the development of

25

a complication, severe vision loss due to idiopathic intracranial

hypertension. Severe vision loss due to intracranial complication can

generally be easily treated with medication if it is diagnosed early. In

the case of failure of medications, serial lumbar punctures can be done

in some cases. Surgical procedures[,] such as lumboperitoneal shunt

placement[,] are effective second line treatments. Optic nerve

fenestration is an effective third level of treatment . . . .

Further, Richardson notes: “Untreated dural sinus thrombosis is well known to

potentially cause idiopathic intracranial hypertension. Idiopathic intracranial

hypertension may progress to blindness if untreated. It is medically probable that

early diagnosis would have prevented [Owens’s] later development of vision loss.”

(Footnote omitted.)

In regard to Dr. Handyside specifically, Dr. Richardson, in his report, states

that she breached the standard of care “by failing to perform a fundiscopic

examination and failing to perform cerebral imaging[,] such as [a] head CT or

preferably [a] brain MRI.” Further, “[t]he failure to obtain a neurology

consultation . . . and the failure to admit the patient if urgent follow-up could not

be obtained also constitutes a bre[a]ch of the standard [of] care.” In regard to

causation, Richardson opines:

If Dr. . . . Handyside had performed cerebral imaging[,] such as [a]

CT or preferably [an] MRI, performed [a] lumbar puncture[,] or

obtained [a] neurological consultation[,] it is medically probable

that . . . Owens would have had her condition diagnosed and treated in

a timelier manner. Early treatment of dural sinus thrombosis reduces

the likelihood of complications[,] such as idiopathic intracranial

hypertension. Thus[,] her vision would have most likely been spared

26

and she would not have lost vision in the right and left eyes. Severe

loss of vision is a preventable complication of dural sinus thrombosis.

(Footnote omitted.)

Dr. Handyside asserts that Dr. Richardson “merely state[s] that had

[she] . . . diagnosed [Owens], then [Owens] might have had a better outcome,” but

fails to explain “how [her] . . . conduct caused the permanent loss of vision.” In

other words, Richardson “does not explain how and why the complained of delay

in diagnosis and treatment . . . were substantial factors in causing [Owens’s]

blindness.”

An expert report must explain, to a reasonable degree, how and why the

alleged breach caused the complained of injury based on the facts presented. See

Jelinek, 328 S.W.3d at 539–40. Here, contrary to Dr. Handyside’s assertions, Dr.

Richardson’s report does just that. Richardson opines that Handyside’s failure to

“perform[] cerebral imaging[,] such as [a] CT or preferably [an] MRI, perform[]

[a] lumbar puncture or obtain[] [a] neurological consultation” resulted in a delay in

the diagnosis and treatment of Owens’s conditions. And “[t]his delay resulted in

the development of a complication, severe vision loss due to idiopathic intracranial

hypertension. Severe vision loss due to intracranial complication can generally be

easily treated with medication if it is diagnosed early.” Cf. Patterson v. Ortiz, 412

S.W.3d 833, 839 (Tex. App.—Dallas 2013, no pet.) (holding sufficient report

“show[ing] that performing the tests and examinations would have led to the

27

diagnosis of pneumonia and Raul’s admission to the hospital, where he would have

received ‘early, aggressive treatment [that], more likely than not, would have saved

his life’”). An expert may show causation by explaining a chain of events that

begins with a defendant doctor’s negligence and ends in injury to the plaintiff. See

McKellar v. Cervantes, 367 S.W.3d 478, 485 (Tex. App.—Texarkana 2012, no

pet.); see also Woofter v. Benitez, No. 01-09-00161-CV, 2009 WL 3930839, at *7

(Tex. App.—Houston [1st Dist.] Nov. 19, 2009, no pet.) (mem. op.) (“Dr. Flye’s

report sets forth a chain of events involving breaches of the standard of care by

each of the defendant physicians, which resulted in Islam’s death.”).

In regard to Dr. Prater, Dr. Richardson, in his report, states that Prater

breached the standard of care by “fail[ing] to perform a lumbar puncture on

[Owens],” “fail[ing] to admit her,” failing to “perform cerebral imagining[,] such

as [a] head CT or [a] brain MRI,” failing to “obtain a neurological consultation to

have [Owens] assessed urgently despite the diagnoses of possible

meningoencephalitis and possible cavernous sinus thrombosis,” and failing to

provide “adequate neurological follow-up” after Owens was discharged from

Memorial Hermann. In regard to causation, Richardson opines:

If Dr[]. . . . Prater performed [a] lumbar puncture, ordered cerebral

imaging[,] such as [a] head CT and preferably [an] MRI, admitted

[Owens to the hospital] and/or obtained [a] neurological

consultation, . . . Owens would have likely had a more timely

diagnosis, earlier treatment and her vision would medically probably

have been saved. If . . . Prater had not prescribed dexamethazone

28

for . . . Owens[,] it is medically probable that her condition would not

have been exacerbated. It is possible she would have not progressed

to . . . have [a] loss of vision.

Further, Richardson states that “[i]f [Owens] was admitted [to the hospital], if a

neurology consultation was obtained, and if a lumbar puncture had been done, it is

medically probable that her condition, dural sinus thrombosis[,] would have been

diagnosed earlier and her vision would have been saved with treatment.” As stated

above, the treatments available to prevent Owens’s loss of vision are also

addressed by Richardson in his report.

Dr. Prater asserts that Dr. Richardson “merely state[s] that had . . . Prater

diagnosed [Owens], then she might have had a better outcome” and fails to explain

“how . . . Prater’s conduct caused the permanent loss of vision.” In other words,

Richardson “does not explain how and why the complained of delay in diagnosis

and treatment and the prescription of dexamethasone were substantial factors in

causing [Owens’s] blindness.”

Contrary to Dr. Prater’s assertions, however, Dr. Richardson’s report

“explain[s], to a reasonable degree, how and why the [alleged] breach [by Prater]

caused [Owens’s] injury.” See Jelinek, 328 S.W.3d at 539–40. Richardson opines

that Prater’s failure to “perform[] [a] lumbar puncture, order[] cerebral imaging[,]

such as [a] head CT and preferably [an] MRI, admit[] [Owens to the hospital],

and/or obtain[] [a] neurological consultation” resulted in a delay of the diagnosis

29

and treatment of Owens’s conditions. And “[t]his delay resulted in the

development of a complication, severe vision loss due to idiopathic intracranial

hypertension. Severe vision loss due to intracranial complication can generally be

easily treated with medication if it is diagnosed early.” With earlier detection and

treatment, Owens’s “vision would medically probably have been saved.” Cf.

Patterson, 412 S.W.3d at 839; see also McKellar, 367 S.W.3d at 485; Woofter,

2009 WL 3930839, at *7.

In support of their argument that it is insufficient for an expert report to

merely state that a plaintiff “might have had a better outcome” without linking the

expert’s conclusion (that the plaintiff might have had a better outcome) to a

doctor’s alleged breach, Drs. Handyside and Prater rely on Wright. In Wright, the

plaintiff alleged that a physician’s assistant misread or misplaced an x-ray and,

therefore, did not discover that the plaintiff had fractured her foot. 79 S.W.3d at

50. Approximately one month later, the plaintiff’s orthopedic surgeon discovered

the fracture. Id. The plaintiff served on the defendant the report of an expert, who

stated that had the x-ray been properly read, the plaintiff “would have had the

possibility of a better outcome.” Id. at 51. The Texas Supreme Court, after

recognizing that an expert in his report need not use any particular phrase, held that

the trial court could have reasonably determined that the report did not represent a

good-faith effort to summarize the causal relationship. Id. at 53. The supreme

30

court noted that the expert in his report simply opined that the plaintiff had “‘the

possibility of a better outcome,’” and did not sufficiently “link[] the expert’s

conclusion (that [the plaintiff] might have had a better outcome) to [the hospital’s]

alleged breach (that it did not correctly read and act upon the x-rays).” Id.

Here, in contrast, Dr. Richardson does not simply assert that Owens would

have had the “possibility of a better outcome” if not for Drs. Handyside’s and

Prater’s alleged breaches of the standard of care. Instead, Richardson explains that

the doctors’ breaches caused a delay in the diagnosis and treatment of Owens’s

conditions. As stated in the report: “Untreated dural sinus thrombosis is well

known to potentially cause idiopathic intracranial hypertension.” The delay in

diagnosis and treatment “resulted in the development of a complication, severe

vision loss due to idiopathic intracranial hypertension.” “It is medically probable

that early diagnosis would have prevented [Owens’s] later development of vision

loss.” The treatments available to prevent Owens’s vision loss included

medication, “serial lumbar punctures,” “lumboperitoneal shunt placement,” and

“[o]ptic nerve fenestration.” See Khan v. Ramsey, No. 01-12-00169-CV, 2013

WL 1183276, at *9 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (mem.

op.) (holding expert report sufficient where breach of standard of care caused delay

in diagnosis, which resulted in “permanent disability”); Foster v. Richardson, 303

S.W.3d 833, 841 (Tex. App.—Fort Worth 2009, no pet.) (holding expert report

31

adequate regarding causation because it explained how doctor’s delayed diagnosis

subjected patient to prolonged pain); Gelman v. Cuellar, 268 S.W.3d 123, 130

(Tex. App.—Corpus Christi 2008, pet. denied) (holding expert report adequate

regarding breach and causation because it explained had patient “been properly

monitored and timely treated post-operatively with aggressive respiratory care, she

would not have developed respiratory insufficiency,” which caused her “anoxic

brain damage”); In re Barker, 110 S.W.3d 486, 491 (Tex. App.—Amarillo 2003,

orig. proceeding) (concluding expert report sufficient because it explained

negligent failure to recognize medical condition and delay in treatment increased

severity of plaintiff’s injuries).

Based on the foregoing, Dr. Richardson’s report represented a “good faith

effort” to inform Drs. Handyside and Prater of the causal relationship between their

failure to adhere to the pertinent standard of care and the injury, harm, or damages

claimed. See Kelly v. Rendon, 255 S.W.3d 665, 679 (Tex. App.—Houston [14th

Dist.] 2008, no pet.) (emphasizing expert reports “are simply a preliminary method

to show a plaintiff has a viable cause of action that is not frivolous or without

expert support”). Accordingly, we hold that the trial court erred to the extent that it

granted Drs. Handyside’s and Prater’s motions to dismiss Owens’s claims on the

32

ground that Richardson’s expert report did not adequately address the issue of

causation.11

We sustain Owens’s second issue, in part.

Vicarious Liability

In her third issue, Owens argues that the trial court erred in dismissing her

vicarious-liability claims against Memorial Hermann because an expert report is

not necessary regarding such claims. Memorial Hermann asserts that dismissal of

Owens’s vicarious-liability claims against it is mandatory because Owens “failed

to serve [a sufficient] expert report as to the individual physicians’ conduct that [is]

the basis of the vicarious liability claim[s].”

In addition to her direct-liability claims against Memorial Hermann, Owens

alleges that it is vicariously liability for the conduct of its “nurses, technicians,

servants and[/]or agents” and “Amy Rasmussen, M.D.; Brian Zachariah, M.D.;

Krista G. Handyside, M.D.; Inez A. Serrano, P.A.; Samuel J. Prater, M.D.; [and]

Kenneth A. Totz, [D.O., FACEP].”

“[W]hen 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

11

In her brief, Owens also asserts that Dr. Richardson’s report adequately addresses

the standard of care as it relates to the doctors. However, because Drs. Handyside

and Prater did not object to the report on this ground, we do not consider this

portion of Owens’s argument.

33

conduct under the vicarious theory.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625,

632 (Tex. 2013); see also Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72

(Tex. 2008) (“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.”). In other words, a report that is sufficient as to an employee, whose

alleged negligent conduct a vicarious-liability claim is based, is also sufficient as to

the employer health care provider. See, e.g., Ctr. for Neurological Disorders, P.A.

v. George, 261 S.W.3d 285, 295 (Tex. App.—Fort Worth 2008, pet. denied) (“[I]f

the expert report is sufficient as to the claims against Dr. Ward, and we have held

that it is[,] . . . then the report is sufficient as to claims against CND that are based

on Dr. Ward’s alleged negligence.” (Footnote omitted.)).

Here, we have held that the trial court erred in dismissing Owens’s direct-

liability claims against Drs. Handyside and Prater because Dr. Richardson’s expert

report complies with chapter 74 regarding Owens’s allegations against the doctors.

Therefore, contrary to Memorial Hermann’s assertion, dismissal of Owens’s

vicarious-liability claims against it is not “mandatory.” Instead, Owens may

proceed on her vicarious-liability claims against Memorial Hermann based on the

conduct of Drs. Handyside and Prater. See Potts, 392 S.W.3d at 632; Gardner,

274 S.W.3d at 671–72.

34

Further, we note that Owens alleges that Memorial Hermann is vicariously

liable not only for the conduct of Drs. Handyside and Prater, but also for the

conduct of “nurses, technicians, servants and[/]or agents,” Drs. Rasmussen,

Zachariah, and Totz, and physician assistant Serrano. Because Owens may

proceed on her vicarious-liability claims against Memorial Hermann based on the

alleged negligence of Drs. Handyside and Prater, she may also proceed on her

vicarious-liability claims against Memorial Hermann based on the alleged

negligent conduct of the other individuals. See TTHR Ltd. P’ship v. Moreno, 401

S.W.3d 41, 45 (Tex. 2013) (holding plaintiff’s vicarious-liability claim against

hospital for actions of nurses could proceed because expert report adequate

regarding plaintiff’s vicarious-liability claim for negligent acts of doctors); Potts,

392 S.W.3d at 629–32 (plaintiff entitled to proceed with her entire suit against

health care provider so long as expert report valid as to one theory of liability

against defendant); Huepers v. St. Luke’s Episcopal Hosp., No. 01-11-00074-CV,

2013 WL 1804470, at *3–5 (Tex. App.—Houston [1st Dist.] Apr. 30, 2013, no

pet.) (mem. op.) (holding no further report required where amended petition added

new theory of vicarious liability against hospital based on nursing negligence

because initial report sufficient as to plaintiff’s vicarious-liability claim against

hospital based on doctor conduct).

35

And because Dr. Richardson’s report satisfies the requirements of chapter 74

as to Memorial Hermann’s vicarious liability for the conduct of Drs. Handyside

and Prater, Owens may also proceed on her direct-liability claims against

Memorial Hermann.12 See Potts, 392 S.W.3d at 629–32 (holding plaintiff’s direct-

liability claim against nursing staffing agency could proceed because expert report

submitted by plaintiff supported her vicarious-liability claims); Children’s Med.

Ctr. of Dall. v. Durham, 402 S.W.3d 391, 403–04 (Tex. App.—Dallas 2013, no

pet.) (concluding, because expert report valid as to vicarious-liability claims

against hospital, plaintiffs’ direct-liability claims against hospital “may proceed as

well”).

Accordingly, we hold that the trial court erred in granting Memorial

Hermann’s motion to dismiss Owens’s direct- and vicarious-liability claims against

it.

We sustain Owens’s third issue.

12

Because Dr. Richardson’s expert report is sufficient as to Owens’s vicarious-

liability claims against Memorial Hermann, based on the conduct of Drs.

Handyside and Prater, we need not consider the report’s sufficiency as to Owens’s

direct-liability claims against Memorial Hermann. See San Jacinto Methodist

Hosp. v. McCoy, No. 14-12-00682-CV, 2013 WL 3009318, at *5 n.3 (Tex. App.—

Houston [14th Dist.] June 13, 2013, no pet.) (mem. op.). Therefore, as stated

previously, we do not address the portion of Owens’s second issue in which she

asserts that Richardson’s report is adequate as to the issues of standard of care and

causation as it pertained to her direct-liability claims against Memorial Hermann.

36

Conclusion

We reverse the trial court’s dismissal of Owens’s health care liability claims

against Memorial Hermann and Drs. Handyside, Prater, and Totz. And we remand

Owens’s health care liability claims against them to the trial court for further

proceedings consistent with this opinion.

Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

37