Humble Surgical Hospital LLC v. Christy L. Traynor

ACCEPTED

01-15-00718-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/14/2015 11:40:32 PM

CHRISTOPHER PRINE

CLERK

NO. 01-1500718-CV

FILED IN

1st COURT OF APPEALS

In The First District Court of Appeals HOUSTON, TEXAS

Houston, Texas 12/14/2015 11:40:32 PM

CHRISTOPHER A. PRINE

Clerk

HUMBLE SURGICAL HOSPITAL L.L.C., HUMBLE SURGICAL

HOSPITAL SERVICES, L.L.C., HUMBLE SURGICAL HOLDINGS, L.L.C.,

HOUSTON HUMBLE SURGICAL, P.L.L.C., HUMBLE SPINE SURGERY,

P.L.L.C.,

Appellant,

v.

CHRISTY L. TRAYNOR,

Appellee.

On Appeal from Cause No. 1044724

in the County Court of Law No. 2, Harris County, Texas

APPELLEE’S BRIEF

HOULETTE & GRAY, P.L.L.C.

Jacqueline M. Houlette

State Bar No. 00787718

440 Louisiana, Suite 900

Houston, Texas 77002

Telephone: (713) 236-7740

Facsimile: (713) 583-3010

E-mail: jhoulette@houlette-gray.com

ORAL ARGUMENT REQUESTED

i

REQUEST FOR ORAL ARGUMENT

Appellee requests oral argument. See Tex. R. App. 39.1.

ii

TABLE OF CONTENTS

REQUEST FOR ORAL ARGUMENT ................................................................ ii

TABLE OF CONTENTS ...................................................................................... iii

INDEX OF AUTHORITIES ................................................................................ iv

ISSUES PRESENTED .......................................................................................... vi

STATEMENT OF FACTS .................................................................................... 8

SUMMARY OF THE ARGUMENT .................................................................... 9

STANDARD OF REVIEW .................................................................................. 10

ARGUMENTS AND AUTHORITIES ............................................................... 11

CONCLUSION AND PRAYER .......................................................................... 24

iii

INDEX OF AUTHORITIES

Cases

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,

46 S.W.3d 873, 878 (Tex. 2001). .............................................................. 10, 19, 24

Baylor All Saints Med. Ctr. v. Martin,

340 S.W. 3d 529, 534 (Tex. App.—Fort Worth, 2011, no pet.)............................ 20

Bowie Mem'l Hosp. v. Wright,

79 S.W.3d 48, 52 (Tex. 2002) ............................................................................... 10

Certified EMS, Inc., v. Potts,

392 S.W.3d 625, 632 (Tex. 2013) ................................................................... 22, 23

Christus Spohn Health System Corp. v. Sanchez,

299 S.W.3d 868, 877 (Tex. App.—Corpus Christi, pet. denied.) ......................... 21

Gray v. CHCA Bayshore L.P.,

189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ................. 11

Keo v. Vu,

76 S.W.3d 725, 732 (Tex. App. —Houston [1st Dist.] 2002) ............................... 14

Packard v. Guerra,

252 S.W.3d 511 (Tex. App.—Houston [14th Dist.] 2008) ................................... 12

Pediatrix Med. Grp., Inc., v. Robinson,

352 S.W.3d 879, 884 (Tex. App.—Dallas 2011, no pet.) ..................................... 13

Rittger v. Danos,

332 S.W.3d 550, 558 (Tex. App.—Houston [1st Dist.] 2009, no pet.) ................. 14

Tawa v. Gentry,

01-12-00407-CV, 2013 WL 1694869, at *5 (Tex. App.—Houston [1st Dist.] Apr.

18, 2013, no pet.) ............................................................................... 13, 14, 18, 19

iv

Taylor v. Christus Spohn Health Sys. Corp.,

169 S.W.3d 241, 244 (Tex. App.—Corpus Christi 2004, no pet.) ........................ 10

Walker v. Gutierrez,

111 S.W.3d 56, 62 (Tex. 2003) ............................................................................. 10

Statutes

Tex. Civ. Prac. & Rem Code § 74 ..................................................................... vi, 23

Tex. Civ. Prac. & Rem Code § 74.351 ................................................................. 8, 9

Tex. Civ. Prac. & Rem Code § 74.351 (i)......................................................... 11, 12

Tex. Civ. Prac. & Rem Code § 74.402 ............................................................. 13, 17

Rules

Tex. R. App. 39.1 ..................................................................................................... ii

Tex. R. App. P. 9.4 ................................................................................................. 25

v

ISSUES PRESENTED

Whether the trial court erred when it refused to dismiss this action based on

Appellant’s objections under Chapter 74 of the Texas Civil Practice & Remedies

Code.

The trial court did not err when it denied Appellant’s Motion to Dismiss

because:

a. The expert reports and curriculum vitae of Priscilla Ray, M.D. and

Cathy L. Miller, R.N., Ph.D. establish that both are qualified to opine

on Appellant’s standard of care in this case;

b. The expert reports of Priscilla Ray, M.D. and Cathy L. Miller, R.N.,

Ph.D. inform the Appellant of the specific conduct that Traynor has

called into question and provide a basis for the trial court to conclude

that the claims have merit.

c. The expert reports of Priscilla Ray, M.D. and Cathy L. Miller, R.N.,

Ph.D. establish the bases for their opinions that Appellant is culpable

in this case based on a direct theory of liability as well as vicarious

liability.

d. The expert report of Dr. Cathy L. Miller provides information as to

how Appellant’s lack of adequate policies and procedures was a

substantial factor in causing Traynor’s injuries.

e. Appellant cannot limit, as a matter of law, Traynor’s basis for

vicarious liability based solely on its interpretation of Traynor’s

allegations.

vi

NO. 01-1500718-CV

In The First District Court of Appeals

Houston, Texas

HUMBLE SURGICAL HOSPITAL L.L.C., HUMBLE

SURGICAL HOSPITAL SERVICES, L.L.C., HUMBLE SURGICAL

HOLDINGS, L.L.C., HOUSTON HUMBLE SURGICAL, P.L.L.C.,

HUMBLE SPINE SURGERY, P.L.L.C.,

Appellant,

v.

CHRISTY L. TRAYNOR,

Appellee.

On Appeal from Cause No. 1044724

in the County Court of Law No. 2, Harris County, Texas

APPELLEE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, Christy L. Traynor (“Appellee” or “Traynor”), Appellee in

the above-entitled and numbered appeal and submits this her Appellee’s Brief in

response to the brief filed by Appellant, Humble Surgical Hospital L.L.C., Humble

Surgical Hospital Services, L.L.C., Humble Surgical Holdings, L.L.C., Houston

Humble Surgical, P.L.L.C., Humble Spine Surgery, P.L.L.C. (“Appellant”).

7

Traynor requests this court affirm the decision of the County Court of Law No. 2

of Harris County, Texas, denying Appellant's Motion to Dismiss under Section

74.35l of the Texas Civil Practice and Remedies Code, and in support thereof,

would respectfully show this Court as follows:

STATEMENT OF FACTS

On December 19, 2011, Christy L. Traynor (“Traynor”) underwent back

surgery at Humble Surgical Hospital (“Appellant”). (CR 3).That night as she

recovered, she was under the care of Humble Surgical Hospital and its employee,

Nurse Kelly Bunyard. During the course of the night following her surgery, Nurse

Kelly Bunyard entered Ms. Traynor’s room repeatedly and fondled and groped Ms.

Traynor. (CR 53). Ms. Traynor filed this lawsuit on March 6, 2014, asserting

negligence claims against Nurse Kelly Bunyard and his employer, the Appellant.

(CR 4). Traynor asserted both direct and vicarious liability claims against

Appellant. (CR 6-7). With regard to her claims against Appellant, Traynor has

brought a direct cause of action against Appellant for the following:

(a) Failing to properly hire and retain the nursing care provided to Plaintiff;

(b) Failing to properly supervise the nursing care provided to Plaintiff;

(c) Failing to monitor the nursing care provided to Plaintiff; and

(d) Failing to properly treat the Plaintiff.

(CR 6-7).

8

In addition, Ms. Traynor has brought a case against Appellant for vicarious

liability, asserting that:

Defendants are vicariously liable for the acts or omissions of their

respective employees and agents who were employed by or in agency

or contractual relationship with them all times material hereto and

Plaintiff hereby invokes the doctrines of agency, ostensible agency

and/or agency by estoppel with respect to those relationships.

(CR 6-7).

Traynor timely served expert reports upon Appellant on August 26, 2014, to

satisfy § 74.351 requirements. Appellant objected to Traynor’s expert reports and

moved to dismiss the case. (CR 172-73). The Court then granted Traynor a thirty

day extension of time for Traynor to cure the alleged deficiencies in Traynor’s

expert reports. (CR 34).

Traynor subsequently filed amended expert reports, which included the

January 10, 2015, report of Cathy L. Miller, R.N., Ph.D. and the December 22,

2014 and January 12, 2015, reports of Priscilla Ray, M.D. (CR 78-165). Appellant

again objected to the sufficiency of the reports and moved to dismiss the case.

The trial court denied that motion, which led to this appeal.

SUMMARY OF THE ARGUMENT

Traynor has served Appellant with expert reports of Cathy L. Miller, R.N.,

Ph.D. and Priscilla Ray, M.D. that meet the requirements of Chapter 74.

9

The expert reports and attached curricula vitae identify each expert’s

qualifications. Dr. Miller and Dr. Ray identify the standard of care applicable to

Nurse Bunyard, and his conduct which clearly breached that standard. Dr. Miller

identifies the standard of care of the Appellant’s hospital at which Bunyard

worked, and the conduct which breached that standard of care. Dr. Ray identifies

and explains how the above-referenced breaches of duty proximately caused the

injuries sustained by Traynor.

STANDARD OF REVIEW

A trial court's decision on a motion to dismiss under section 74.351 of the

Civil Practice and Remedies Code is reviewed for abuse of discretion. Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).

The trial court abuses its discretion only if it acts unreasonably or arbitrarily or

without reference to any guiding rules or principles. Walker v. Gutierrez, 111

S.W.3d 56, 62 (Tex. 2003). The trial court's ruling is arbitrary and unreasonable

only if “the appellant establishes that the trial court could reasonably have reached

only one decision.” Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241,

244 (Tex. App.—Corpus Christi 2004, no pet.).

When reviewing matters committed to the trial court's discretion, an

appellate court may not substitute its 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

10

abuse its discretion merely because it decides a discretionary matter differently

than an appellate court would in a similar circumstance. Gray v. CHCA Bayshore

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

ARGUMENTS AND AUTHORITIES

A. Plaintiff’s Expert Reports Must Be Considered in the Aggregate

Appellant attempts to suggest that the Court erred in denying its Motion to

Dismiss because of alleged deficiencies in each expert report served by Traynor,

suggesting each report has to independently meet all of the law’s required elements

regarding liability and causation. This is simply not the law. The Texas Medical

Liability Act requires that all of the expert reports and all of the experts’

curriculum vitae be cumulatively considered when evaluating reports for

sufficiency. TEX. CIV. PRAC. & REM CODE § 74.351 (i). The statute is clear

regarding this culmination, stating:

(i) Notwithstanding any other provision of this section, a claimant

may satisfy any requirement of this section for serving an expert

report by serving reports of separate experts regarding different

physicians or health care providers or regarding different issues

arising from the conduct of a physician or health care provider, such

as issues of liability and causation. Nothing in this section shall be

construed to mean that a single expert must address all liability and

causation issues with respect to all physicians or health care

providers or with respect to both liability and causation issues for a

physician or health care provider.

TEX. CIV. PRAC. & REM CODE § 74.351 (i).

11

All of Traynor’s reports must be taken together in determining the liability

and causation of any one Defendant. All of Dr. Ray’s reports, curriculum vitae,

and supplements must be aggregated with all of Dr. Miller’s expert reports,

curriculum vitae and supplements in order to meet the minimum Chapter 74 expert

report requirements Put simply, the statute allows Dr. Miller and/or Dr. Ray to

opine regarding the standard of care, its breach, and the actions which each

Defendant should have taken to prevent that breach and then allow Dr. Ray to

discuss how that breach caused injury to Traynor and the resulting damages. No

single report must contain each and every element.

Any attempt by Appellant to individually parse each particular component of

each expert report rather than considering them in the aggregate must fail under §

74.351 (i) above. When evaluating Chapter 74 expert reports, all reports must ne

considered in the aggregate to determine whether a party has met the statutory

requirements. Packard v. Guerra, 252 S.W.3d 511 (Tex. App.—Houston [14th

Dist.] 2008).

B. Christy Traynor’s expert reports reflect that Dr. Ray and Dr. Miller

are qualified to render expert opinions on Appellant’s conduct in this

case

Section 74.402 of the Texas Medical Liability Act states:

(b) In a suit involving a health care liability claim against a health care

provider, a person may qualify as an expert witness on the issue of

12

whether the health care provider departed from accepted standards of

care only if the person:

(1) is practicing health care in a field of practice that involves

the same type of care or treatment as that delivered by the

defendant health care provider, if the defendant heath care

provider is an individual, at the time the testimony is given or

was practicing that type of health care at the time the claim

arose;

(2) has knowledge of accepted standards of care for health care

providers for the diagnosis, care, or treatment of the illness,

injury, or condition involved in the claim; and

(3) is qualified on the basis of training or experience to offer an

expert opinion regarding those accepted standards of health

care.

Tex. Civ. Prac. & Rem Code § 74.402. [NOTE: Section 74.402(b)(1) is not

applicable since Defendant Humble Surgical Hospital is not an individual as is

required by the statute.]

As established in Tawa v Gentry, in assessing an expert’s qualifications,

“The relevant issue is not the physician’s area of practice but the stated familiarity

with the issues involved in the claim before the court.” Tawa v. Gentry, 01-12-

00407-CV, 2013 WL 1694869, at *5 (Tex. App.—Houston [1st Dist.] Apr. 18,

2013, no pet.) (citing Pediatrix Med. Grp., Inc., v. Robinson, 352 S.W.3d 879, 884

(Tex. App.—Dallas 2011, no pet.)). “Where a particular subject of inquiry is

common to and equally developed in all fields of practice, and the prospective

medical expert witness has practical knowledge of what is usually and customarily

13

done by a practitioner charged with malpractice, the witness is qualified to testify.”

Id. at *7 (emphasis added) (citing Rittger v. Danos, 332 S.W.3d 550, 558 (Tex.

App.—Houston [1st Dist.] 2009, no pet.)). Such is the case here where the conduct

at issue so clearly falls outside the standard of care.

Courts use a common sense approach to determine whether an expert is

qualified as to the familiarity of the “field of practice.” Keo v. Vu demonstrates the

common sense approach to be used in considering the “field of practice” by the

expert witness. Keo states:

Courts of appeals have also recognized that an expert witness

need not be a specialist in the particular branch of the medical

profession for which the testimony is offered. See Hernandez v.

Altenberg, 904 S.W.2d 734, 738 (Tex. App.—San Antonio 1995, writ

denied); Simpson v. Glenn, 537 S.W.2d 114, 116 (Tex. Civ. App.—

Amarillo 1976, writ ref'd n.r.e.). Indeed, trial courts may qualify a

medical witness of a different specialty to testify if the witness has

practical knowledge of what is usually and customarily done by

other practitioners under circumstances similar to those confronting

the malpractice defendant. Blan, 7 S.W.3d at 745; see Marling v.

Maillard, 826 S.W.2d 735, 740 (Tex. App.—Houston [14th Dist.]

1992, no writ) (citing Bilderback v. Priestley, 709 S.W.2d 736, 740

(Tex. App.—San Antonio 1986, writ ref'd n.r.e.)).

Keo v. Vu, 76 S.W.3d 725, 732 (Tex. App. —Houston [1st Dist.] 2002) (emphasis

added).

14

1. Dr. Cathy L. Miller has set forth her qualifications to render an

opinion in this case

Doctor Miller’s qualifications are evident within the four corners of her

expert report as well as her curriculum vitae. In the second sentence of Dr. Miller’s

report she states as follows:

“I am qualified to render expert opinion on the standard of care

required of nurses in the medical setting in addition to those

experiencing sexual assault. I hold a PhD in Nursing. I have 20

years’ experience as an emergency department, level 1 trauma,

CVICU, and critical care flight nurse, and multiple administrative

positions such as Director over multiple units in addition to adult and

pediatric Sexual Assault Nurse Examiner didactic certificates.

Furthermore, I have 6 years’ experience in Baccalaureate and

Graduate level nursing education. Past positions held include

director, assistant director, lecturer, assistant clinical professor, and

flight nurse. My current position is as an Adjunct Lecturer at a private

school of nursing. I have published twice in a peer reviewed scholarly

journals on emergency nursing care of sexual assault victims and

psychological complex trauma. I have presented on these topics both

nationally and internationally.”

(CR 115).

Dr. Miller’s curriculum vitae reflects her skill, knowledge, training and

experience, including:

1) Clinical Instructor, August 2011-August 2012

a. University of Texas Health Science Center San Antonio School of

Nursing

b. San Antonio, Texas

c. Courses: Adult 1: Clinical Instructor Disease Management III

2) Clinical Assistant Professor, August 2010-August 2011

Texas A&M University-Corpus Christi, Corpus Christi, TX

a. Courses: Fundamentals of Nursing Practice

15

i. Clinical Instructor-Medical Surgical Nursing II

ii. Clinical Instructor-Fundamentals in Nursing

iii. Burn/Trauma Guest Lecturer

iv. Coordinator Drug Calculations Exam Program

3) Adjunct Assistant Clinical Professor, August 2009-August 2010

Texas A&M University-Corpus Christi, Corpus Christi, TX

a. Courses: Clinical Instructor-Fundamentals of Nursing Practice

i. Health Assessment-Lab Instructor

4) House Supervisor, March 2008-July 2009

Kindred Hospital, Corpus Christi, TX

5) Staff RN-CVICU, January 2007-March 2008

Doctors Regional Medical Center, Corpus Christi, TX

6) Coordinator-Emergency Department, June 2004-April 2005

Driscoll Children’s Hospital, Corpus Christi, TX

7) Director- Emergency Department, Outpatient Surgery, and CVICU

a. October 2003-June 2004 TexSan Heart Hospital, San Antonio, TX

8) Staff RN- Emergency Department-June 2001-October 2003

a. University Medical Center, San Antonio, Texas

(CR 108-110).

Dr. Miller’s qualifications are evident from both her expert report as well as

her curriculum vitae. She details her experience as a nurse and as a nursing

supervisor.

In addition, Dr. Miller elaborated on her qualifications to issue opinions

regarding Defendant Humble Surgical Hospital, stating:

“I am qualified to render these observations based on a doctoral

level of education with extensive knowledge of nursing best practices

16

as well as having been published in peer review nursing journals on

the topics of sexual assault and psychological complex trauma. My

20 years of clinical and administrative experience including

experience as Director over multiple acute care units, House

Supervisor over multiple hospital campuses and having been the

immediate supervisor to over 200 nurses at one time qualifies me to

render these observations, citations of Texas Board Nursing rules and

regulations, and breaches in standards of care in nursing.”

(CR 115).

2. Dr. Priscilla Ray has set forth her qualifications to render an opinion in

this case

Dr. Ray’s qualifications contained on the curriculum vitae include, but are

not limited to:

1. Board certified since 1980 by the American Board of

Psychiatry and Neurology;

2. Medical Director, Methodist Hospital Psychiatry Unit for

the last six years;

3. St. Luke’s Episcopal Hospital Vice Chairman Credential’s

Committee;

4. Baylor College of Medicine – Associate Professor of

Psychiatry

5. University of Texas Health Science Center – Clinical

Associate Professor

(CR 79-81).

As the current Medical Director, Psychiatry Unit, at The Methodist Hospital,

she fully understands and interacts with the workings of the entire department—

including the nursing staff. Dr. Ray fully meets the requirements of §74.402 as she

17

manages, guides, and/or orders the entire medical staff at her unit including the

nursing staff. As such, she is qualified to “opine” about the standard of care.

Further, Dr. Ray clearly establishes in her report that she is qualified to

testify as to a nurses conduct based on the fact she has “worked as a physician in

hospitals, including General/Medical-Surgical hospitals, for over 35 years. I am

generally familiar with the standards for nurses in caring for patients in terms of

behavior and deportment.”

Appellant relies on Tawa as binding authority to suggest a physician is not

qualified to “opine” on the standard of care for a non-physician. Through

Defendants’ “extension” and not the Court’s, Defendants would apply this

statement to all non-physicians. Unfortunately, Defendants fail to inform this

Court that Tawa quotes from Christus Health Southeast Texas and concerns a

physician attempting to “opine about the hospital’s decisions related to the

complainant’s discharge from long-term care.” Tawa v. Gentry, No. 01-12-00407,

2013 WL 1684869 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no pet.).

Specifically, Tawa involves the hierarchy of administrative decisions to “prevent

implementation of another physician’s order.” Id. The case at hand is clearly

distinguishable as it involves a Doctor commenting on the breach of care involved

in a nurse’s care of a patient.

18

B. Christy Traynor’s expert’s opinions are not conclusory and

meet the requirements of Chapter 74

Pursuant to Tawa, a proper expert report must (1) inform Defendants of the

specific conduct that the plaintiff has called into question; and (2) provide a basis

for the trial court to conclude that the claims have merit. See Tawa v. Gentry, 01-

12-00407-CV, 2013 WL 1694869, at *2 (Tex. App.—Houston [1st Dist.] Apr. 18,

2013, no pet.) (citing Am. Transitional Care Centers of Texas, Inc. v. Palacios, 46

S.W.3d 873, 879 (Tex. 2001)).

In this case, Dr. Miller identifies the standard of care applicable to Nurse

Bunyard, Appellant’s employee, and identifies his breaches in that regard. In doing

so, she cites, in part, to the Texas Board of Nursing Nurse Practice Act. (CR 113-

114). In addition, she opines on the conduct of the Appellant and its lack of

policies and procedures. She identifies with specificity the Appellant’s conduct of

which she complains as follows;

1. The organizations were negligent in adequately screening applicants prior

to hire as evidenced by lack of pre-hire comprehensive background

check.

2. The organizations were negligent in adequately training staff on sexual

misconduct, reporting and prevention as evidence by a lack of employee

handbook or other training materials prior to the date of incident;

3. The organizations failed to have policy and procedures in charge for the

supervision of nursing care as evidence by no record of charge nurse or

hose supervisor rounding on Ms. Traynor.

19

4. The organization filed to have adequate policy and procedures in place of

the monitoring of telemetry patients, as evidenced by Ms. Traynor being

off monitor for 30 minutes or more. The removal of Ms. Traynor from

the telemetry monitor coinciding with the time of the nurses’’ hourly

rounding documentation as evidenced by a) no rhythm strip in medical

records for the time and b) “0” showing on the vital signs systems

generated vital signs record.

(CR 116-117).

Dr. Miller’s expert report explains the standard of care and the basis for her

opinions and supports her opinion with facts regarding Appellant’s actions.

Appellant relies on Baylor All Saints Medical Center v. Martin, to suggest

that Dr. Miller’s report is insufficient. That expert report at issue in that case,

however, is distinguishable. In that case, which also involved a patient who was

the subject of mistreatment while recovering from surgery, the expert report under

scrutiny offered no detail. Specifically, in that case, the expert report stated simply

that “Baylor was expected to adhere to “specific standards of care” for its patients

that there must be policies in place to safeguard patients from assault including

employing a sufficient number of security personal [sic] to insure that no

unauthorized persons assault patients and training staff to identify persons not

authorized to enter patients room and prevent them from doing so.” Baylor All

Saints Med. Ctr. v. Martin, 340 S.W. 3d 529, 534 (Tex. App.—Fort Worth, 2011,

no pet.). The court held that the report was insufficient because it did not establish

what specific polices and safeguards should have been in place. Id. at 534.

20

On the other hand, in yet another similar case involving a patient who was

the victim of sexual misconduct by a nurse while recovering from surgery, the

court found that an expert report that stated the hospital “[f]ailed to provide

adequate supervision to the CNA [DeJesus] and the RN [Njoh], [f]ailed to protect

Ms. Sanchez from sexual harassment and sexual abuse, and [f]ailed to provide

safety to Ms. Sanchez in her immediate post operative [sic] when the CNA lifted

Ms. Sanchez up and began dancing with her” met the Chapter 74 standards. See

Christus Spohn Health System Corp. v. Sanchez, 299 S.W.3d 868, 877 (Tex.

App.—Corpus Christi, pet. denied.).

In this case, Dr. Miller has identified five specific acts or omissions of

Appellant of which she complains. Accordingly, the report meets the requirements

of Chapter 74.

C. Traynor is not Required to Provide an Expert Report for Each

Pleaded Liability Theory

Appellant argues that the Court erred in declining to dismiss this case based

on Appellant’s allegation that Traynor has not provided an expert report on each

theory of liability pled in her petition against Appellant. This argument fails for

two reasons. First, Traynor has offered expert opinions on both direct liability and

vicarious liability against Appellant. Second, even if she had not, or if one of those

opinions were to be found insufficient, the Texas Supreme Court has ruled that

“when a health care liability claim involves a vicarious liability theory, either alone

21

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 conduct

under the vicarious theory. And if any liability theory has been adequately

covered, the entire case may proceed.” Certified EMS, Inc., v. Potts, 392 S.W.3d

625, 632 (Tex. 2013) (emphasis added).

In Potts, which involved claims placed against both the employee and

employer in a health care liability claim stated “[n]o provision of the Act requires

an expert report to address each alleged liability theory.” Id. 631. Potts opined on

the Legislature’s intent and this State’s application of the Texas Medical Liability

Act. Specifically, “[i]f a health care liability claim contains at least one viable

liability theory, as evidenced by an expert report meeting the statutory

requirements, the claim cannot be frivolous. The Legislature’s goal was to deter

baseless claim, not to block earnest ones.” Id. (emphasis added).

Potts involved the exact same fact set contained in the present cause—a

nurse who sexually molested a patient and a responsible hospital. The Defendant

unsuccessfully argued that the “reports omitted any explicit reference to [their]

direct liability for [the nurse’s] conduct.” Id. The Texas Supreme Court stated that

“[t]o require an expert report for each and every theory would entangle the court

and the parties in collateral fights about intricacies of pleadings rather than the

merits of a cause of action, creating additional expense and delay as trial and

22

appellate courts parse theories that could be disposed of more simply through other

means as the case progresses.” Id. (citing Scoresby v. Santillan, 346 S.W.3d 546,

556 (Tex. 2011) (applying a lenient standard to cure a deficient report, noting that

approach avoids the expense and delay of multiple interlocutory appeals and

assures a claimant a fair opportunity to demonstrate that his claim is not frivolous).

Appellant attempts to argue, briefing the issue for the first time in this

appeal, that Traynor is not entitled to assert a claim for vicarious liability against

Appellant, therefore the Court should ignore expert opinions in that regard. In

doing so, Appellant attempts to entangle the court in the very sort of collateral fight

described by the Texas Supreme Court in Potts. Asserting a summary judgment

argument regarding vicarious liability, before discovery has even begun, is

premature and inappropriate. The fact of the matter is that the issue of whether

vicarious liability will ultimately succeed is not before this Court. According to

Chapter 74, and Palacios, the only issue before the Court at this phase in this

proceeding is whether Traynor has presented expert reports which inform the

Appellants of the specific conduct that Traynor has called into question and

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

Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.

2001).

23

Traynor has done so, and this Court should affirm the trial court’s decision

denying Appellant’s Motion to Dismiss.

CONCLUSION AND PRAYER

Respectfully submitted,

HOULETTE & GRAY P.L.L.C.

/s/ Jacqueline M. Houlette

Jacqueline M. Houlette

TBA No. 00787718

440 Louisiana, Suite 900

Houston, Texas 77002

Telephone: (713) 236-7740

Facsimile: (713) 583-3010

jhoulette@houlette-gray.com

ATTORNEY FOR APPELLEE

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CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rules of Appellate Procedure, the undersigned certifies

this brief complies with the type-volume limitations of Tex. R. App. P. 9.4.

1. This brief complies with the type-volume limitations of Tex. R. App. P. 9.4

because:

This brief contains 4720 words, as determined by the computer software's

word-count function, excluding the parts of the brief exempted by Tex. R.

App. P. 9.4(i)(1).

2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4

because:

This brief has been prepared in a conventional typeface using Microsoft

Word 2013 in 14 pt. Times New Roman (Footnotes in 12 pt.).

___/s/Jacqueline M. Houlette__________

Jacqueline M. Houlette

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Appellee’s Brief was served

upon the counsel below via the methods identified below on December 14, 2015.

Joshua C. Anderson Via Electronic Service

Horne Rota Moos L.L.P. and E-mail

2777 Allen Parkway, Suite 1200

Houston, Texas 77019

(713) 333-4500 Telephone

(713) 333-4600 Facsimile

Chastiti N. Horne Via Electronic Service

Horne Rota Moos L.L.P. and E-mail

2777 Allen Parkway, Suite 1200

Houston, Texas 77019

(713) 333-4500 Telephone

(713) 333-4600 Facsimile

_____/s/Jacqueline M. Houlette__________

Jacqueline M. Houlette

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