Affirmed and Opinion filed July 9, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-01006-CV

HOUSTON METHODIST HOSPITAL F/K/A THE METHODIST 

HOSPITAL, Appellant

V.

KARA NGUYEN, Appellee

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2014-17076

O P I N I O N

Appellant Houston Methodist Hospital brings this interlocutory appeal of the 

trial court’s order denying its motion to dismiss the health care liability claims of 

appellee Kara Nguyen. Concluding that the Hospital waived its objections to 

Nguyen’s expert reports, we affirm. 

Background

This is an interlocutory appeal involving a health care liability claim filed 
2

under chapter 74 of the Civil Practice and Remedies Code.1 Nguyen was 

hospitalized on multiple occasions after undergoing surgery to remove her spleen 

and gallbladder. She alleges that her injuries were proximately caused by 

substandard care provided by four physicians. Nguyen also alleges that the 

Hospital is vicariously liable for the physicians’ conduct because the physicians 

were agents or employees of the Hospital.

Nguyen timely filed three expert reports that detailed how each of the four 

physicians purportedly proximately caused her injuries by breaching applicable 

standards of care. She did not file an expert report that expressly named the 

Hospital. Four months later, the Hospital filed its motion to dismiss, arguing that 

Nguyen had failed to serve it with an expert report. The trial court denied the 

motion.

Discussion

In its sole issue, the Hospital argues that the trial court abused its discretion 

in denying the motion to dismiss, on the basis that Nguyen’s vicarious liability 

claim is frivolous. Nguyen responds that the Hospital waived its objections to the

sufficiency of the expert reports by not filing its motion to dismiss before the 

statutory deadline.

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

a health care liability claim for an abuse of discretion. Obstetrical & Gynecological 

Assocs., P.A. v. McCoy, 283 S.W.3d 96, 100 (Tex. App.—Houston [14th Dist.] 

2009, pet. denied). In the absence of findings of fact or conclusions of law, we 

uphold a trial court’s ruling on a motion to dismiss on any theory supported by the 

record and imply any necessary findings of fact to support the ruling. See

 

1 We have jurisdiction over this interlocutory appeal. Tex. Civ. Prac. & Rem. Code 

§ 51.014(a)(9); see Neason v. Buckner, 352 S.W.3d 254, 257 (Tex. App.—Houston [14th Dist.] 

2011, no pet.) (holding court had jurisdiction over interlocutory appeal in which trial court had 

denied an untimely motion to dismiss expert report).
3

Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011).

The Texas Medical Liability Act governs health care liability claims.2The 

Act requires that after the defendant’s original answer is filed, the claimant must 

file and serve one or more expert reports no later than the 120th day after the 

defendant’s original answer is filed.3Tex. Civ. Prac. & Rem. Code § 74.351(a). 

Once the claimant files her report, 

[e]ach defendant physician or health care provider whose conduct is 

implicated in a report must file and serve any objection to the 

sufficiency of the report not later than the later of the 21st day after 

the date the report is served or the 21st day after the date the 

defendant’s answer is filed, failing which all objections are waived. 

Id. (emphasis added). If a defendant to the health care liability claim has not been 

served with an expert report within the time specified by the Act, the court shall, 

subject to a discretionary 30-day extension, award the affected defendant 

reasonable attorney’s fees and court costs and dismiss the claim with prejudice 

with respect to the affected defendant. Id. § 74.351(b)-(c). 

Because Nguyen claims that the Hospital waived its objections to her expert 

reports by not filing its motion to dismiss within the 21 days allotted for objections

under the statute, we address that threshold matter first. See McCoy, 283 S.W.3d at

101; Troeger v. Myklebust, 274 S.W.3d 104, 108 (Tex. App.—Houston [14th Dist.] 

2008, pet. denied). In making this determination, we are not concerned with 

 

2

Tex. Civ. Prac. & Rem. Code §§ 74.001–.507. All references to the Act are to these 

provisions.

3 An “expert report,” as defined by the Act, is a written report by the expert that 

summarizes the expert’s opinions regarding: (1) the applicable standards of care; (2) the manner 

in which the care provided by the physician or health care provider failed to meet the described 

standards; and (3) the causal relationship between that failure and the injury, harm, or damages 

claimed by the plaintiff. Tex. Civ. Prac. & Rem. Code § 74.351(r)(6); see also Scoresby v. 

Santillan, 346 S.W.3d 546, 549 (Tex. 2011) (“[A] document qualifies as an expert report if it 

contains a statement of opinion by an individual with expertise indicating that the claim asserted 

by the plaintiff against the defendant has merit.”).
4

whether the expert reports fulfill all statutory requirements. Troeger, 274 S.W.3d at 

108. We only are concerned with whether the report implicates the defendant’s 

conduct such that the 21-day deadline for objections was triggered. Id. If it does, 

then the defendant’s failure to object to the report before the deadline waives its 

right to challenge the report on appeal. Neason v. Buckner, 352 S.W.3d 254, 259 

(Tex. App.—Houston [14th Dist.] 2011, no pet.); Troeger, 274 S.W.3d at 108. In 

that event, we do not consider the merits of the defendant’s objections. See 

Neason, 352 S.W.3d at 259; Troeger, 274 S.W.3d at 108.

The Hospital complains that the expert reports addressed only the doctors’ 

conduct and did not name the Hospital; however, the Hospital concedes that 

Nguyen pleaded that the Hospital was vicariously liable for the conduct of the 

doctors. When a health care liability claim involves a vicarious liability theory, an 

expert report that adequately implicates the actions of that party’s agents or 

employees is sufficient to implicate the party under the vicarious theory. Gardner 

v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per curiam); McCoy, 

283 S.W.3d at 102–03. 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).

An expert report is not required to name a hospital expressly or identify a 

standard of care breached by a hospital if the theory of liability against the hospital 

is based upon the actions of the hospital’s physicians. See Univ. of Tex. Med. 

Branch at Galveston v. Qi, 370 S.W.3d 406, 413 (Tex. App.—Houston [14th Dist.] 

2012, no pet.); see also Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 

(Tex. App.—Dallas 2006, no pet.) (holding that expert reports were not required to

mention the defendant hospital because reports were based upon the actions of 

hospital physicians). Because Nguyen filed and served on the Hospital reports

containing expert opinions as to claims against the defendant physicians, thereby 
5

implicating the Hospital’s conduct under Nguyen’s pleaded theory of vicarious 

liability, we conclude that the Hospital was required to file any objections it had to 

the reports by the 21-day deadline. See Neason, 352 S.W.3d at 259.

The Hospital argues its motion to dismiss should have been granted because

it conclusively established the four doctors were not its agents or employees.4 We 

disagree. The Hospital was required to present its objections within 21 days of 

Nguyen’s serving her expert reports, which it failed to do. See Troeger, 274 

S.W.3d at 108 (holding defendant’s failure to object timely waives its right to 

challenge expert report).

The Hospital argues allowing the case to proceed on a potentially frivolous 

vicarious liability claim would encourage claimants to artfully plead vicarious 

liability claims against hospital defendants to avoid dismissal of those defendants 

from the case. See Loaisiga v. Cerda, 379 S.W.3d 248, 261 (Tex. 2012) (holding 

expert may consider and assume “validity of matters set out in pleadings in the 

suit, absent a showing that the pleadings are groundless or in bad faith or rebutted 

by evidence in the record”). The Hospital would have this court add to the 

remedies already provided by Texas law, which we decline to do.5The Hospital 

cites Loaisiga for the proposition that the trial court must consider evidence to 

show that pleadings are groundless or in bad faith or rebutted by evidence in the 

 

4

The Hospital asserts Nguyen’s vicarious liability claim is frivolous because she signed 

six consent forms acknowledging that the doctors who treated her were not employees or agents 

of the Hospital. We note that the existence of these forms, standing alone, does not necessarily 

establish that the doctors were not agents or employees of the Hospital. See, e.g., Kimbrell v. 

Mem’l Hermann Hosp. Sys., 407 S.W.3d 871, 877 n.6 (Tex. App.—Houston [14th Dist.] 2013, 

no pet).

5 We note that, as an alternative to its motion to dismiss, the Hospital moved for sanctions 

on the basis that Nguyen’s vicarious liability claim was filed “in bad faith” and is frivolous. See

Tex. Civ. Prac. & Rem. Code §§ 9.001-.014, 10.001-.006; Tex. R. Civ. P. 13, 215.2b. Even if the 

Hospital had challenged the trial court’s failure to grant its motion for sanctions, we would not 

have jurisdiction to entertain any such complaint in this interlocutory appeal. See generally Tex. 

Civ. Prac. & Rem. Code § 51.014(a) (authorizing appeals from certain interlocutory orders).
6

record. Loaisiga, however, holds only that in formulating opinions, a medical 

expert must consider, at a minimum, medical records that are relevant to those 

opinions, along with the pleadings. Id. at 261. A medical expert is not qualified to 

render an opinion on the legal issue of vicarious liability. RGV Healthcare Assocs., 

Inc. v. Estevis, 294 S.W.3d 264, 273 (Tex. App.—Corpus Christi 2009, pet. 

denied) (citing Dale, 188 S.W.3d at 879 n.1). Moreover, the Loaisiga court does 

not suggest a merits-based evidentiary hearing as to liability when the trial court 

considers the adequacy of an expert report. Even if such a conclusion could be 

drawn from Loaisiga or the text of section 74.351, the Hospital missed the 21-day 

deadline by which to raise such a challenge.

In its reply brief, the Hospital asserts that it filed its motion to dismiss under 

section 74.351(b), which does not impose a deadline for a defendant to file a 

motion to dismiss.

6

Tex. Civ. Prac. & Rem. Code § 74.351(b). That section, 

however, is predicated on the complete failure of a claimant to file an expert report 

implicating the health care provider’s conduct. See id. Nguyen’s expert reports are 

not the equivalent of the complete absence of an expert report because, as 

discussed, they implicate the Hospital’s conduct. See Neason, 352 S.W.3d at 258. 

Consequently, section 74.351(b) does not apply, and the Hospital was required to 

object to the reports within 21 days. See id.

The Hospital filed its motion to dismiss more than three months after the 

statutory deadline for objections. Consequently, the Hospital waived all of its

objections to the sufficiency of Nguyen’s expert reports, including its argument 

that Nguyen’s vicarious liability claim is frivolous. As a result, the trial court did 

 

6 We note that the Hospital did not reveal in the body of its initial brief that the motion to 

dismiss was filed three months after the expert reports were filed and served or that Nguyen 

raised waiver in response to the motion.
7

not abuse its discretion by denying the Hospital’s motion to dismiss. See McCoy, 

283 S.W.3d at 100, 103.

We overrule the Hospital’s sole issue. We affirm the trial court’s denial of 

the Hospital’s motion to dismiss.

/s/ Martha Hill Jamison

Justice

Panel consists of Chief Justice Frost, and Justices Jamison and Busby.