NO. 01-1500718-CV

_____________________________________________________________

IN THE 

FIRST COURT OF APPEALS

HOUSTON, TEXAS

_____________________________________________________________

Humble Surgical Hospital L.L.C. (incorrectly named as 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

_____________________________________________________________

APPELLANT’S BRIEF

_____________________________________________________________

 Joshua Anderson

 SBN: 24027198

 Chastiti N. Horne

SBN: 24007385

 HORNE ROTA MOOS, LLP

 2777 Allen Parkway, Suite 1200

 Houston, Texas 77019 

 (713) 333-4500

 (713) 333-4600 Facsimile

ORAL ARGUMENT REQUESTED

ACCEPTED

01-15-00718-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

10/19/2015 4:13:23 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 10/19/2015 4:13:23 PM CHRISTOPHER A. PRINE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

In accordance with TEX. R. APP. P. 38.1(a), the following is a complete list 

of all parties to this appeal: 

Appellant: Humble Surgical Hospital L.L.C. (incorrectly named as 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.)

Counsel for Appellant:

Mr. Joshua Anderson – Appellate Counsel

Ms. Chastiti N. Horne – Trial and Appellate Counsel

HORNE ROTA MOOS, LLP

2777 Allen Parkway, Suite 1200

Houston, Texas 77019

(713) 333-4500

(713) 333-4600 – Fax

Appellee: Christy L. Traynor

Counsel for Appellee:

Jacqueline M. Houlette

SBN: 00787718

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

440 Louisiana Street, Suite 900

Houston, Texas 77002

(713) 236-7740

(713) 583-3010 – Fax
iii

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

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

INDEX OF AUTHORITIES......................................................................................v

REQUEST FOR ORAL ARGUMENT ....................................................................ix

STATEMENT OF THE CASE..................................................................................x

ISSUES PRESENTED..............................................................................................xi

STATEMENT OF FACTS ........................................................................................2

SUMMARY OF THE ARGUMENT ........................................................................7

STANDARD OF REVIEW.......................................................................................8

ARGUMENT.............................................................................................................8

I) The Enactment of the Medical Liability and Insurance Improvement 

Act....................................................................................................................8

II) Section 74.351’s Expert Report Requirements .............................................10

A) Neither expert set forth the requisite qualifications to opine on 

HSH’s standard of care and purported breach thereof........................12

B) Appellee’s amended expert reports are conclusory as to HSH’s 

standard of care and alleged breach thereof........................................16

1) Conclusory opinions as to negligent hiring, supervision 

and retention..............................................................................16
iv

2) Because vicarious liability does not apply in this context, 

Appellee cannot rely on Nurse Bunyard’s alleged 

breaches against HSH ...............................................................19

3) Certified EMS, Inc. v. Potts is distinguishable .........................23

C) Appellee’s amended expert reports are conclusory as to 

causation..............................................................................................24

CONCLUSION AND PRAYER .............................................................................26

CERTIFICATE OF COMPLIANCE.......................................................................27

CERTIFICATE OF SERVICE ................................................................................28

APPENDIX..............................................................................................................29
v

INDEX OF AUTHORITIES

Cases: Page

Al-Lahiq v. Rosemond,

No. 14-13-00158-CV, 2013 WL 5969720 

(Tex. App.—Houston [14th Dist.] Nov. 7, 2013, no pet.) ......................24, 25

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

46 S.W.3d 873 (Tex. 2001) ............................................................8-11, 16-18

Bala v. Maxwell,

909 S.W.2d 889 (Tex. 1995) .......................................................................8, 9

Baylor All Saints Med. Ctr. v. Martin, 

340 S.W.3d 529 (Tex. App.—Fort Worth 2011, no pet.) .......................17, 18

Baylor Medical Center at Waxahachie v. Wallace, 

278 S.W.3d 552 (Tex. App.—Dallas 2009, no pet.).. ...................................14

Buck v. Blum,

130 S.W.3d 285

(Tex. App.—Houston [14th Dist.] 2010, pet. denied)............................. 20-22

Certified EMS, Inc. v. Potts,

392 S.W.3d 625 (Tex. 2013) ...................................................................23, 24

Gannon v. Wyche,

321 S.W.3d 881

(Tex. App.—Houston [14th Dist.] 2010, pet. denied)...............................8, 11

Gardner v. U.S. Imaging, Inc.,

274 S.W.3d 669 (Tex. 2008) ..................................................................19, 20

Garland Cmty. Hosp. v. Rose,

156 S.W.3d 541 (Tex. 2004) ...........................................................................9
vi

Group v. Vicento,

164 S.W.3d 724 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) .........8

Horizon/CMS Healthcare Corp. v. Auld,

34 S.W.3d 887 (Tex. 2000) .............................................................................9

Jelinek v. Casas,

38 S.W.3d 526 (Tex. 2010) ...........................................................................25

Jones v. Ark-La-Tex Visiting Nurses, Inc.,

128 S.W.3d 393 (Tex. App.—Texarkana 2004, no pet.) ..............................15

In re Jorden,

249 S.W.3d 416 (Tex. 2008) (orig. proceeding) .............................................9

Kelly v. Stone,

898 S.W.2d 924 (Tex. App.—Eastland 1995, writ denied) ......................... 21

Larson v. Downing,

197 S.W.3d 303 (Tex. 2006) ...........................................................................8

Loaisiga v. Cerda,

379 S.W.3d 248 (Tex. 2012) .........................................................................24

MacGregor Med. Ass’n v. Campbell,

985 S.W.2d 38 (Tex. 1998) ...........................................................................10

Mackey v. U.P. Enters, Inc.,

935 S.W.2d 446 (Tex. App.—Tyler 1996, no writ)................................20, 21

Memorial Hermann Healthcare Sys. v. Burrell,

230 S.W.3d 755 (Tex. App.—Houston [14th Dist.] 2007, no pet.) ..............12

Maxwell v. Seifert,

237 S.W.3d 423 (Tex. App.—Houston [14th Dist.] 2007, no pet.).. ............19

Murphy v. Russell,

167 S.W.3d 835 (Tex. 2005) .........................................................................10
vii

NCED Mental Health, Inc. v. Kidd,

214 S.W.3d 28 (Tex. App.—El Paso 2006, no pet.) .....................................21

Patel v. Williams,

237 S.W.3d 901 (Tex. App.—Houston [14th Dist.] 2007, no pet.) ..............11

Shirley v. U.S.,

No. 4:03-CV-1385-Y, 2006 WL 708651 (N.D. Tex. May 21, 2006)...........21

Simonson v. Keppard,

225 S.W.3d 868 (Tex. App.—Dallas 2007, no pet.).....................................15

Sylvester v. Dallas Fire Ins. Co.,

No. 04-97-00754-CV, 1998 WL 130341

(Tex. App.—San Antonio Mar. 25, 1998, no pet.)........................................20

Tawa v. Gentry,

No. 01-12-00407-CV, 2013 WL 1694869

(Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no pet.)........................ 11-16

Tenet Hospitals Ltd. v. Love, 

347 S.W.3d 743 (Tex. App.—El Paso 2011, no pet.)...................................24

Texas & P. Ry. Co. v. Hagenloh,

247 S.W.2d 236 (Tex. 1952) .........................................................................20
viii

Statutes:

TEX. CIV. PRAC. & REM. CODE § 74.351...................................................................... x

TEX. CIV. PRAC. & REM. CODE § 74.351(a)............................................................... 10

TEX. CIV. PRAC. & REM. CODE § 74.351(b)............................................................... 10

TEX. CIV. PRAC. & REM. CODE § 74.351(c)............................................................... 10

TEX. CIV. PRAC. & REM. CODE § 74.351(l)................................................................ 10

TEX. CIV. PRAC. & REM. CODE § 74.351(r)(5)(B)..................................................... 12

TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6)..................................................... 11, 19

TEX. CIV. PRAC. & REM. CODE § 74.402(b)......................................................... 12, 13

TEX. CIV. PRAC. & REM. CODE § 74.402(c)............................................................... 13

Rules:

TEX. R. APP. P. 9.4....................................................................................................... 27

TEX. R. APP. P. 38.1(a).................................................................................................. ii

TEX. R. APP. P. 38.1(f).................................................................................................. 2

TEX. R. APP. P. 39.1 ..................................................................................................... ix

Miscellaneous:

HOUSE COMM. ON CIV. PRAC., Bill Analysis, Tex. H.B. 971, 

74th Leg., R.S. (1995)........................................................................................ 8
ix

REQUEST FOR ORAL ARGUMENT

Appellant requests oral argument. See TEX. R. APP. P. 39.1. 
x

STATEMENT OF THE CASE

Nature of the Case

and Parties:

Direct and vicarious liability claims brought against 

Appellant by Christy L. Traynor for injuries she 

sustained when she was allegedly sexually assaulted 

during her recuperation from back surgery by Kelly Joe 

Bunyard, one of Appellant’s employees. 

Trial Court: The Honorable Theresa Chang, County Court of Law 

No. 2, Harris County, Texas

Trial Court’s

Disposition:

Denied Appellant’s motion to dismiss pursuant to TEX.

CIV. PRAC. & REM. CODE. ANN. § 74.351, which 

contended that Appellee failed to file compliant expert 

reports, despite being given 30 days to cure deficiencies 

(Apx. Tab 1 & 2).
xi

ISSUES PRESENTED

I. Whether the trial court erred in refusing to dismiss this action as required by 

Chapter 74 of the Texas Civil Practice & Remedies Code after Appellee 

failed to serve compliant amended expert reports, despite being given an 

opportunity to cure her deficient expert reports, because:

a. neither expert established that they were qualified to opine on 

Appellant’s standard of care;

b. the amended expert reports failed to provide specific information as to 

what policies and procedures should have been in place as it relates to 

Appellant’s hiring, supervision and retention of employees;

c. the amended expert reports’ reliance on Nurse Bunyard’s alleged 

breach of the standard of care is misplaced as to Appellant because 

vicarious liability is not applicable to allegations of sexual assault as a 

matter of law; and

d. the amended expert reports failed to provide specific information as to 

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

substantial factor in Appellee’s injuries.
NO. 01-1500718-CV

_____________________________________________________________

IN THE 

FIRST COURT OF APPEALS

HOUSTON, TEXAS

_____________________________________________________________

Humble Surgical Hospital L.L.C. (incorrectly named as 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

_____________________________________________________________

APPELLANT’S BRIEF

_____________________________________________________________

TO THE HONORABLE FIRST COURT OF APPEALS:

Appellant, Humble Surgical Hospital L.L.C. (incorrectly named as 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.) (“HSH”), submits 

this brief demonstrating that this Court should reverse the trial court’s order 

denying its motion to dismiss and render a judgment of dismissal with prejudice as 

required by Chapter 74 of the Civil Practice & Remedies Code, including an 

assessment of attorneys’ fees or, alternatively, remand with instructions to the trial 
2

court to assess statutory attorneys’ fees and then to enter a judgment of dismissal 

with prejudice.

STATEMENT OF FACTS

The following facts are “pertinent to the issues or points presented.” TEX. R.

APP. P. 38.1(f). 

This lawsuit was brought on March 6, 2014 by Christy L. Traynor 

(“Appellee”) against HSH and Kelly Joe Bunyard (“Nurse Bunyard”) (CR 4).1

 

The petition contains little in the way of factual allegations (CR 6). However, as 

Appellee makes clear in her later filings, “[t]his case arises out of Defendant Nurse 

Kelly Bunyard’s sexual molestation of [Appellee] while she was a patient 

recovering from back surgery at [HSH]” (CR 53). She further claims that Nurse

Bunyard was an employee of HSH at the time. (Id.). As for her causes of action, 

Appellee alleges:

During the course of that care and treatment, Defendants and their 

respective agents, ostensible agents, agents by estoppels and/or 

employees, engaged in several acts and omission constituting 

negligence, and such acts and omissions, among others, are as 

follows:

(a) In failing to properly hire and retain the nursing care provided to 

Plaintiff;

 1 Citations to the Clerk’s Record are abbreviated “CR” followed by the corresponding page 

number. Similarly, citations to the Reporter’s Record are abbreviated “RR” followed by the 

corresponding page number. 
3

(b) In failing to properly supervise the nursing care provided to 

Plaintiff;

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

(d) In failing to properly treat the Plaintiff.

Defendants are vicariously liable for the acts and omissions of their 

respective employees and agents who were employed by or in agency 

or contractual relationship with them at 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). Thus, Appellee asserts a direct negligence cause of action against HSH 

for negligent, hiring, supervision, and retention and also purports to hold HSH 

vicariously liable for the actions of Nurse Bunyard. 

After Appellee served her original expert report, HSH objected and moved 

to dismiss for failure to serve a compliant report on September 15, 2014 (CR 172-

73). Appellee requested, and the trial court granted, a 30-day extension of time for 

Appellee to cure the alleged deficiencies in Appellee’s expert reports (CR 34). 

Appellee then filed and served amended expert reports from Priscilla Ray, 

M.D. and Cathy L. Miller, RN, Ph.D. (CR 78). Dr. Ray provided her curriculum 

vitae, as well as amended expert reports consisting of a January 12, 2015 report 

and a December 22, 2014 Forensic Psychiatric Examination (CR 79-107). 

Beginning with the Forensic Psychiatric Examination, it is precisely that (CR 87). 

Dr. Ray recounts Appellee’s history beginning from childhood and ultimately 

renders a diagnosis of post traumatic stress disorder (CR 87-105). The incident 
4

made the basis of this suit is only discussed as a “stressor” supporting the PTSD 

diagnosis (CR 101). There is no discussion of HSH’s purported standard of care. 

In her January 12th report, Dr. Ray was asked to respond to the following 

questions:

Question # 1) Did the behavior of the staff at Humble Surgical 

Hospital staff [sic] fall below the standard of care in the treatment of 

Ms. Traynor?

Question # 2) If the answer to Question # 1 is affirmative, what 

psychiatric illness, if any, did Ms. Traynor suffer as a result of actions 

which fell below the standard of care?

Question # 3) If the answer to Question # 2 is affirmative, what 

is Ms. Traynor’s prognosis in regard to the illness?

(CR 83). She responded as follows:

Answer # 1: Yes, Mr. Bunyard was a nurse in the Humble 

Surgical Hospital caring for Ms. Traynor after her surgery. The Texas 

Nursing Board substantiated charges that Mr. Bunyard 

“inappropriately” touched Ms. Traynor, which falls below the 

standard of behavior and care owed a patient. Please see my attached 

Forensic Psychiatric Examination report for more details.

Answer # 2: It is my opinion that, due to the behavior of Mr. 

Bunyard described above, Ms. Traynor suffers from the following 

psychiatric illness:

Post Traumatic Stress Disorder, improved but not resolved

She meets the following criteria of Post Traumatic Stress Disorder 

from the Diagnostic and Statistical Manual of Mental Disorders, Fifth 

Edition (DSM 5):

A, B1-5, C1-2, D2, D4-6, E3-6, F, G, H
5

Information about the above criteria in general and as applied to Ms. 

Traynor is contained in my expanded report entitled “Forensic 

Psychiatric Examination” (attached).

Answer # 3: Her prognosis is fair. Please see my attached 

Forensic Psychiatric Examination report for expanded discussion of 

the prognostic factors which both improve and limit her prognosis.

(CR 85).

Additionally, Appellee provided an expert report and curriculum vitae from 

Dr. Miller (CR 108-165). The majority of Dr. Miller’s report is dedicated to Nurse

Bunyard’s purported violations of the standards of care (CR 113-17). However, 

after terming HSH “the organizations,” she offered the following opinions:

1. The organizations were negligent in adequately screening 

applicants prior to hire as evidenced by lack of a pre-hire 

comprehensive background check.

2. The organizations were negligent in adequately training staff on 

sexual misconduct, reporting, and prevention as evidenced 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 place to 

determine appropriate patient assignments.

4. The organization failed to have adequate policy and procedures in 

place for the supervision of nursing care as evidenced by no record 

of charge nurse or house supervisor rounding on Ms. Traynor.

5. The organization failed to have adequate policy and procedures in 

place for 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 

timing of the nurse’s hourly rounding documentation as evidenced 
6

by a) no rhythm strip in medical record for the time and b) “0” 

showing on the vital signs system generated vital signs record.

(CR 116-17). She summarizes her opinions as “[t]he lack of employee screening, 

training, and organization policy and procedures to protect patients from 

employees with dishonorable intentions vicariously places the organization in a 

position of liability for Ms. Traynor’s treatment, exposure to sexual misconduct 

and assault, and increased risk of costly adverse mental and physical health 

outcomes” (CR 117).

HSH then filed its Motion to Dismiss and Objections Pursuant to Chapter 74 

of the Texas Civil Practice and Remedies Code for Failure to File an Adequate 

Expert Report (CR 14). In its motion, HSH argued that neither expert was

qualified and that the expert reports were deficient as to all three required 

elements—standard of care, breach, and proximate cause (Id.). On August 3, 

2015, the trial court overruled HSH’s objections to Appellee’s expert reports and 

denied its motion to dismiss (CR 166).2

 

This interlocutory appeal ensued (CR 168).

 2 Both parties objected to the timeliness of each other’s respective filings; i.e., HSH 

objected to the timeliness of Appellee’s amended expert reports, and Appellee objected to the 

timeliness of HSH’s motion to dismiss. However, at the hearing, both parties agreed to waive 

their respective timeliness objections and requested the trial court to consider HSH’s motion to 

dismiss solely on the merits (RR 4-5).
7

SUMMARY OF THE ARGUMENT

Despite being given an opportunity to cure the defects in her original expert 

reports, Appellee failed to serve compliant expert reports. Appellee’s proffered 

experts have not established the requisite qualifications to opine on HSH’s 

standard of care. Moreover, the amended reports are conclusory as to all three 

required elements—standard of care, breach and proximate cause. 

As to Appellee’s direct negligence theory, the only opinions offered are Dr. 

Miller’s conclusory assertions that HSH lacked “adequate” policies and procedures 

for hiring, supervision and retention. Dr. Miller failed define what would be 

“adequate” and thus, failed to advise HSH what care was expected. As a result, 

she did not provide a fair summary of HSH’s purported standard of care and 

breach.

As to her vicarious liability theory, Texas law is clear that an employer 

cannot be held vicariously liable for the alleged sexual assaults of its employees, as 

these actions are outside the course and scope of employment. As Appellee’s 

vicarious liability theory has no basis in the law, expert reports which rely 

exclusively on this erroneous legal conclusion do not satisfy the purpose of 

Chapter 74’s expert report requirement—providing a basis for the trial court to 

conclude the claim has merit. 
8

Finally, the expert reports fail to explain how HSH’s actions proximately 

caused Appellee’s injuries. In particular, the reports do not explain how HSH’s 

alleged hiring, supervision and retention policies were a substantial factor in 

Appellee’s injuries. Without doing so, she failed to provide a “fair summary” of 

proximate cause. 

The trial court’s order denying HSH’s motion to dismiss should be reversed. 

STANDARD OF REVIEW

A trial court’s denial of a motion to dismiss under Texas Civil Practice and 

Remedies Code section 74.351 is reviewed for abuse of discretion. See Gannon v. 

Wyche, 321 S.W.3d 881, 885 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) 

(citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 

(Tex. 2001); Group v. Vicento, 164 S.W.3d 724, 727 (Tex. App.—Houston [14th 

Dist.] 2005, pet. denied)). “A trial court abuses its discretion if it acts in an 

arbitrary or unreasonable manner without reference to any guiding rules or 

principles.” Id. (citing Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006)). 

ARGUMENT

I) THE ENACTMENT OF THE MEDICAL LIABILITY AND INSURANCE 

IMPROVEMENT ACT.

The Texas Legislature enacted the Medical Liability and Insurance 

Improvement Act (“MLIIA”) “to alleviate a perceived medical malpractice 

insurance crisis in the state of Texas.” Bala v. Maxwell, 909 S.W.2d 889, 892 
9

(Tex. 1995). The Legislature determined that an increase in the frequency and 

severity of health care liability claims negatively impacted the availability and 

affordability of health care in Texas. See Garland Cmty. Hosp. v. Rose, 156 

S.W.3d 541, 543 (Tex. 2004); see also Horizon/CMS Healthcare Corp. v. Auld, 34 

S.W.3d 887, 893 (Tex. 2000) (“The underlying theory was that a medical-liability

insurer could offer lower malpractice rates, which, in turn, would increase the 

availability of medical care for Texans.”). Thus, the MLIIA operates, in part, to 

curtail frivolous claims. See Palacios, 46 S.W.3d at 878.

Chapter 74 (and its predecessors) ensured this purpose by placing several 

restrictions on a health care liability claimant before proceeding with a claim. 

Garland Cmty. Hosp., 156 S.W.3d at 543. One of these restrictions is a 

requirement that an expert report be filed in order to proceed with a health care 

liability claim. See In re Jorden, 249 S.W.3d 416, 420 (Tex. 2008) (orig. 

proceeding) (“to decrease costs associated with frivolous suits, expert reports are 

now required”). The Legislature determined that failing to file a timely expert 

report, or filing a report that did not constitute a good-faith effort to comply with 

the statutory definition of an expert report, “means that the claim is either 

frivolous, or at best has been brought prematurely.” Palacios, 46 S.W.3d at 878

(citing HOUSE COMM. ON CIV. PRAC., Bill Analysis, Tex. H.B. 971, 74th Leg., R.S. 

(1995)).
10

As the Texas Supreme Court later explained, “the Legislature intended 

health care liability claims to be scrutinized by an expert or experts before the suit 

can proceed.” Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (emphasis 

added) (citing MacGregor Med. Ass’n v. Campbell, 985 S.W.2d 38, 41 (Tex. 

1998)).

II. SECTION 74.351’S EXPERT REPORT REQUIREMENTS.

Section 74.351 of the Texas Civil Practice and Remedies Code states: “In a 

health care liability claim, a claimant shall, not later than the 120th day after the 

date each defendant’s original answer is filed, serve on that party or the party’s 

attorney one or more expert reports, with a curriculum vitae of each expert listed in 

the report for each physician or health care provider against whom a liability claim 

is asserted.” TEX. CIV. PRAC. & REM. CODE § 74.351(a). Failure to comply with 

this directive mandates that a claimant’s suit be dismissed with prejudice and the 

affected health care provider be awarded its reasonable attorney’s fees and costs of 

court. See id. at § 74.351(b). However, if the claimant has served a timely report, 

a trial court can dismiss the suit if the report does not represent a good-faith effort 

to comply with the statutory requirements. See id. at § 74.351(l). In the event that 

a trial court finds the report to be a good-faith effort, but nevertheless deficient, 

one thirty-day extension to cure the deficiencies may be granted. See id. at § 

74.351(c). 
11

As for what constitutes a compliant expert report, the statute defines an 

“expert report” as “a written report by an expert that provides a fair summary of 

the expert’s opinions as of the date of the report regarding applicable standards of 

care, the manner in which the care rendered by the physician or health care 

provider failed to meet the standards, and the causal relationship between that 

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

74.351(r)(6). Texas courts have further elaborated on what constitutes a “fair 

summary” and thus, constitutes a “good-faith effort.” See, e.g., Palacios, 46 

S.W.3d at 878-79.

“To constitute a good-faith effort, the report must provide enough 

information to fulfill two purposes: (1) inform the defendant 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, No. 01-12-

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

2013, no pet.) (citing Palacios, 46 S.W.3d at 879); see also Patel v. Williams, 237 

S.W.3d 901, 904 (Tex. App.—Houston [14th Dist.] 2007, no pet.). While a report 

need not marshal all of a plaintiff’s proof, it must include the expert’s opinions on 

the three statutory elements: standard of care, breach, and causation. See id. A 

report which merely states the expert’s conclusions as to the standard of care, 

breach, and causation does not fulfill these two purposes. See id. Instead, the 
12

expert must affirmatively explain the basis for her statement and link her

conclusions to the facts. See id. Finally, a trial court cannot draw any inferences, 

but must rely exclusively on the information contained within the four corners of 

the report. See Gannon, 321 S.W.3d at 897.

In sum, section 74.351 requires the trial court to serve a gate-keeper function 

in order to prevent medical negligence causes of actions from proceeding unless 

the claimant has made a good-faith effort to demonstrate that at least one expert 

believes that a breach of the applicable standard of care caused the claimed injury. 

See Tawa, 2013 WL 1694869, at *2. 

A. Neither expert set forth the requisite qualifications to opine 

on HSH’s standard of care and purported breach thereof.

Before addressing the reports’ contents, it was Appellee’s initial burden to 

establish that the reports were authored by qualified experts. See Memorial 

Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 757 (Tex. App.—Houston 

[14th Dist.] 2007, no pet.). Section 74.351(r)(5)(B) states that an expert who 

purports to establish the standard of care applicable to a non-physician health care 

provider must meet the qualifications of Section 74.402. See TEX. CIV. PRAC. &

REM. CODE § 74.351(r)(5)(B). In pertinent part, section 74.402 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 

whether the health care provider departed from accepted standards of 

care only if the person:
13

(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 health 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(b) (emphasis added).

Subpart (c) then further elaborates on the third prong of subpart (b). It 

states:

(c) In determining whether a witness is qualified on the basis of 

training or experience, the court shall consider whether, at the time the 

claim arose or at the time the testimony is given, the witness:

(1) is certified by a licensing agency of one or more states of the 

United States or a national professional certifying agency, or has 

other substantial training or experience, in the area of health care 

relevant to the claim; and

(2) is actively practicing health care in rendering health care 

services relevant to the claim.

TEX. CIV. PRAC. & REM. CODE § 74.402(c). Finally, these qualifications must be 

evident within the four corners of the expert’s report and curriculum vitae. See 

Tawa, 2013 WL 1694869, at *3. 

In Tawa, this Court thoroughly detailed when a physician is qualified to 

opine on the standard of care for a non-physician and—by extension—the facility 
14

that employs her. See 2013 WL 1694869, at *12-14. “[T]he courts of appeals 

have consistently required a physician-expert proffering an opinion on the 

applicable standard of care of a nonphysician to affirmatively demonstrate 

experience and familiarity with the standard of care for the nonphysician’s field.” 

Id. at *13. As further noted:

When a physician fails to state in his expert report or affidavit that he 

has knowledge of the standard of care applicable to the specific types 

of health care providers involved in the claim, or that he has ever 

worked with or supervised the specific types of health care providers 

involved in the claim, the physician is not qualified on the issue of 

whether the health care provider departed from the accepted standards 

of care for health care providers.

Id. at *13 (quoting Baylor Med. Center at Waxahachie v. Wallace, 278 S.W.3d 

552, 558 (Tex. App.—Dallas 2009, no pet.)) (emphasis added).

“Neither the text of section 74.402 nor the cases interpreting it allow us to 

make” an assumption that familiarity with similar patients equates to familiarity 

with the standard of care applicable to the health care provider in question. Tawa, 

2013 WL 1694869, at *14. In other words, it is familiarity with the care expected 

of the particular health care provider—not familiarity with how the expert would 

care for a similar patient in their field—which determines whether that expert is 

qualified. 

Dr. Ray did not establish that she is familiar with the standard of care of a 

health care provider such as HSH. While she is a psychiatrist with experience 
15

treating patients such as Appellee, she has not shown within the four corners of her 

report or curriculum vitae that she has any experience or expertise with surgical 

hospitals or its staff. This is particularly true with regard to the direct negligence 

theories asserted against HSH. Accordingly, she is not qualified to opine on 

HSH’s standard of care or alleged breach thereof. See id.; see also Simonson v. 

Keppard, 225 S.W.3d 868, 872 (Tex. App.—Dallas 2007, no pet.) (holding that 

expert was not qualified because he did not state how he had knowledge of the 

standard of care applicable to nurse practitioners or that he had worked with or 

supervised nurse practitioners); Jones v. Ark-La-Tex Visiting Nurses, Inc., 128 

S.W.3d 393, 397 (Tex. App.—Texarkana 2004, no pet.) (holding that expert did 

not explain how his experience qualified him to give the standard of care for nurses 

monitoring a patient in a home healthcare setting or that he was an expert on 

appropriate nursing care). 

Dr. Miller is likewise unqualified as to Appellee’s allegations against HSH. 

Again, Appellee alleges that HSH was negligent in its hiring, supervision and 

retention as well as vicariously liable for the acts of Nurse Bunyard. Despite her 

expertise as a nurse, Dr. Miller has not shown the requisite qualifications for 

opining on HSH’s breach of administrative tasks such as hiring, supervision and 

retention. Without first establishing that Dr. Ray and Dr. Miller are qualified to 

opine on HSH’s standard of care, Appellee failed in her initial burden. 
16

B. Appellee’s amended expert reports are conclusory as to 

HSH’s standard of care and alleged breach thereof.

 Again, Appellee alleges two causes of action: that HSH was directly 

negligent in its hiring, supervision and retention of Nurse Bunyard and that HSH is 

vicariously liable for the acts of Nurse Bunyard. Appellee’s amended expert 

reports are conclusory as to the first and without legal justification as to the second. 

Accordingly, Appellee’s amended expert reports did not provide “a basis for the 

trial court to conclude that the claims have merit.” Tawa, 2013 WL 1694869, at 

*2. 

1. Conclusory opinions as to negligent hiring, 

supervision and retention. 

Any analysis of what is required in an expert report to sufficiently identify 

the standard of care, and any breach thereof, must begin with the Texas Supreme 

Court’s seminal opinion in Palacios. There, the court held that the standard of care 

for a hospital is what an ordinarily prudent hospital would do under the same 

circumstances. See Palacios, 46 S.W.3d at 880. “Identifying the standard of care 

is critical: Whether a defendant breached his or her duty to a patient cannot be 

determined absent specific information about what the defendant should have done 

differently.” Id. Simply put, the expert report must set out what care was 

expected, but not given. See id. 
17

With this in mind, the Palacios court then turned to the proffered standard of 

care before it—that precautions to prevent Palacios’ fall were not properly used. 

See id. Ultimately, the court concluded that this was simply not a statement of a 

standard of care. See id. “Neither the trial court nor American Transitional would 

be able to determine from this conclusory statement if Dr. Bontke believes that the 

standard of care required American Transitional to have monitored Palacios more 

closely, restrained him more securely, or done something else entirely.” Palacios, 

46 S.W.3d at 880. When an expert report’s conclusory statements do not put the 

defendant or the trial court on notice of the conduct complained of, a trial court has 

no discretion but to conclude that the report does not represent a good faith effort 

to provide a fair summary of the standard of care and how it was breached. See id. 

In an opinion that is particularly applicable here, the Fort Worth Court of 

Appeals considered an expert report which purported to set forth a hospital’s 

standard of care for preventing sexual assaults in a patient’s room. See Baylor All 

Saints Med. Ctr. v. Martin, 340 S.W.3d 529, 533-34 (Tex. App.—Fort Worth 

2011, no pet.). The expert report stated that a hospital should have “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’ rooms and 

prevent them from doing so[.]” Id. at 534. The court held that these opinions were 
18

conclusory, as they do not establish what specific policies and safeguards should 

have been in place. See id. “For example, the ‘policies in place to safeguard

patients’ are not identified; neither are the number of security personnel required 

nor the training the staff should have received regarding identifying unauthorized 

persons.” Id. Because “even a fair summary must set out what care was 

expected,” this expert report failed to fulfill the required specificity. See id. 

Dr. Ray does not even attempt to offer an opinion on HSH’s alleged 

negligent hiring, supervision and retention. Thus, this task falls exclusively to Dr. 

Miller. Dr. Miller addresses this with conclusory statements. She states that HSH 

(1) failed to “adequately screen[] applicants,” (2) failed to “adequately train[] staff 

on sexual misconduct, reporting, and prevention,” (3) “failed to have policy and 

procedures in place to determine appropriate patient assignments,” (4) “failed to 

have adequate policy and procedures in place for the supervision of nursing care,” 

and (5) “failed to have adequate policy and procedures in place for the monitoring 

of telemetry patients” (CR 116-17). 

Much like the standards of care offered in Palacios and Martin, these are not 

statements of a standard of care; i.e., what care was expected, yet not given. There 

is no explanation for what hiring or training procedures would have been 

“adequate” (CR 116-17). There is likewise no explanation of what policies and 

procedures would be “adequate” (Id.). Instead, she offers general and abstract 
19

pronouncements, devoid of any specifics. HSH and this Court are left to guess as 

to what precisely would have satisfied Dr. Miller’s purported standards. As a 

result, questions like the ones the Palacios and Martin courts raised over precisely 

how a provider meets its standard of care are left unanswered. Accordingly, 

Appellee’s amended expert reports failed to provide a fair summary of her direct 

negligence claim against HSH. The trial court’s ruling should be reversed. 

2. Because vicarious liability does not apply in this 

context, Appellee cannot rely on Nurse Bunyard’s 

alleged breaches against HSH.

The bulk of both Dr. Ray3 and Dr. Miller’s reports address Nurse Bunyard’s 

purported breach of his standard of care by allegedly sexually assaulting Appellee. 

However, Appellee cannot attempt to bootstrap Mr. Bunyard’s alleged breach of 

his standard of care to HSH. 

While there is case law holding that “[w]hen 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,” Gardner v. U.S. Imaging, Inc., 274 

 3 Dr. Ray’s Forensic Psychiatric Examination is nothing more than a medical record 

memorializing Dr. Ray’s diagnosis of Appellee’s psychiatric condition. Nothing in this report 

addresses any of the elements required to be addressed by an expert report; namely, standard of 

care, breach and causation. As the Forensic Psychiatric Examination is Appellee’s medical 

records masquerading as an expert report, it does not meet the definition of an expert report 

under Chapter 74 and should be disregarded. See Maxwell v. Seifert, 237 S.W.3d 423, 427 (Tex.

App.—Houston [14th Dist.] 2007, pet. denied) (holding that medical records do not constitute an 

expert report under section 74.351); TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6) (defining an 

“expert report” as “a written report by an expert that provides a fair summary of the expert’s 

opinions as of the date of the report regarding applicable standards of care, the manner in which 

the care rendered by the physician or health care provider failed to meet the standards, and the 

causal relationship between that failure and the injury, harm, or damages claimed”).
20

S.W.3d 669, 671-72 (Tex. 2008), this line of jurisprudence is inapplicable here. 

The legal tenet underpinning these opinions is that Texas law holds that employers 

may be vicariously liable for the acts of their employees if committed within the 

course and scope of their employment. See Buck v. Blum, 130 S.W.3d 285, 288 

(Tex. App.—Houston [14th Dist.] 2004, no pet.). However, Texas law is equally 

clear that sexual assaults are not within the course and scope of employment. 

When an employee turns away from the advancement of the employer’s 

work to engage in wholly personal actions, the employee ceases to act for the 

employer, and the responsibility for those personal actions is upon the employee 

alone. See Mackey v. U.P. Enters., Inc., 935 S.W.2d 446, 453 (Tex. App.—Tyler 

1996, no writ). Thus, “an employee does not act within the scope of his duties 

when he assaults another person.” Sylvester v. Dallas Fire Ins. Co., No. 04-97-

00754-CV, 1998 WL 130341, at *2 (Tex. App.—San Antonio Mar. 25, 1998, no 

pet.). 

As a result, Texas courts have long held that alleged assaults, sexual or 

otherwise, are not within the course and scope of employment and will not support 

a finding of vicarious liability. See Texas & P. Ry. Co. v. Hagenloh, 247 S.W.2d 

236, 241 (Tex. 1952) (“[W]hen the servant turns aside, for however short a time, 

from the prosecution of the master’s work to engage in an affair wholly his own, 

he ceases to act for the master, and the responsibility for that which he does in 
21

pursuing his own business or pleasure is upon him alone.”); Buck, 130 S.W.3d at

288; NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 34 n.8 (Tex. App.—El 

Paso 2006, no pet.) (noting that the plaintiff recognized that her alleged sexual 

assault complaints against an employee would not be within the course and scope 

of his employment); Mackey, 935 S.W.2d at 454 (“simply no connection between 

[food service managerial] duties and the alleged sexual assaults directed towards 

Mackey”); Kelly v. Stone, 898 S.W.2d 924, 929 (Tex. App.—Eastland 1995, writ 

denied) (sexual harassment and sexual advances were not work-related and were 

motivated by personal obsession and was in pursuit of his own personal 

gratification); Shirley v. U.S., No. 4:03-CV-1385-Y, 2006 WL 708651, at *3 (N.D. 

Tex. May 21, 2006) (“It is clear here that [the employee’s] actions were not workrelated. In sexually assaulting [Plaintiff], [the employee] stepped aside from his 

employment to accomplish his own, rather than [his employer’s], purpose.”). 

The Buck opinion is instructive, as it involved a virtually identical scenario. 

There, the plaintiff brought suit against Dr. Yen and the owners of Houston 

Neurological Institute, based on a sexual assault allegedly perpetrated by Dr. Yen 

during a neurological examination. See Buck, 130 S.W.3d at 287. Dr. Yen 

allegedly was conducting a test of the plaintiff’s hand strength when he placed his 

penis in her hand rather than the test equipment. See id. at 287-88. As a result, the 
22

plaintiff brought suit and an appeal was taken regarding the claims against Mr. 

Yen’s employers based on respondeat superior and negligence. See id. at 287.

The first issue on appeal was whether Dr. Yen’s purported actions were 

within the course and scope of his employment. See id. at 288-90. The court held 

that Dr. Yen’s alleged actions were not within the course and scope of his 

employment. See id. at 290. As the court concluded:

Here, Buck pleaded that during a neurological examination, Yen 

placed his penis in her hand instead of using the metal weight he had 

used previously. Buck contends that since the procedure itself was 

part of the examination, and thus within the scope of Yen’s authority, 

the use of Yen’s body part was simply an inappropriate exercise of the 

delegated duty. While it is undisputed Yen’s alleged action was 

inappropriate, it cannot be fathomed that the action was in furtherance 

of the employer’s business or for the accomplishment of an object for 

which he was employed. At the very moment Yen placed his body 

part in her hand (assuming he did), he was acting in his own prurient 

interest and ceased to be acting for the employer. The neurological 

examination at that point was only a pretense or a means for Yen’s 

inappropriate personal gratification. Nor can it be said the assault was 

so connected with and immediately arising out of Yen’s employment 

tasks as to merge the activities into one indivisible tort. . . . As a 

matter of law, Yen’s alleged conduct did not arise out of the course 

and scope of his employment, and, thus, his employers cannot be held 

liable under respondeat superior.

Id. at 289-90 (citations omitted). 

In sum, Texas law is clear that an employer cannot be held vicariously liable 

for sexual assaults allegedly committed by its employees, as such actions are not 

within the course and scope of employment. If such a claim has no merit under the 

law, an expert report premised on this same meritless theory is inadequate. Thus, 
23

this Court should reverse the trial court and hold that Appellee failed to serve an 

adequate expert report.

3. Certified EMS, Inc. v. Potts is distinguishable.

It is anticipated that Appellee will rely heavily on the Texas Supreme 

Court’s opinion in Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013). 

However, upon close inspection, this case is distinguishable for the question it does 

not answer. In Potts, the plaintiff brought direct and vicarious negligence claims 

against a staffing service for a sexual assault allegedly committed by one of its 

nurses. See id. at 626. When the plaintiff’s expert reports failed to specify how the 

service was directly negligent for failure to properly train and supervise its staff, 

the staffing service moved to dismiss this claim. See id. The “single issue” 

presented to the Texas Supreme Court was: “Must a claimant in a health care 

liability suit provide an expert report for each pleaded liability theory?” Id. at 627. 

The Court ultimately held that “an expert report that adequately addresses at least 

one pleaded liability theory satisfies the statutory requirements, and the trial court 

must not dismiss in such a case.” Id. at 632. However, “[t]he [staffing] service has 

not challenged, in this Court, the reports’ adequacy concerning its vicarious 

liability.” Id. at 626. 

Thus, the Court left open the question presented here; namely, whether an 

expert report which relies on vicarious liability in this context is adequate. As 
24

shown above, it is not. Again, one of the primary purposes of the expert report 

requirement is to “weed out claims that have no merit.” Loaisiga v. Cerda, 379 

S.W.3d 248, 263 (Tex. 2012). If the only cause of action addressed by an expert 

report is a vicarious liability theory which has no basis under the law, the goal of 

section 74.351—providing a report showing that the claim has merit—has not been 

met. Thus, Appellee finds no refuge in Mr. Bunyard’s alleged breach of his 

standard of care and cannot rely on vicarious liability against HSH. The trial 

court’s ruling should be reversed. 

C. Appellee’s amended expert reports are conclusory as to 

causation. 

“An expert report must provide a fair summary of the causal relationship 

between the failure of a health care provider to meet the standards of care and the 

injury, harm, or damages claimed.” Tenet Hospitals Ltd. v. Love, 347 S.W.3d 743, 

754 (Tex. App.—El Paso 2011, no pet.). This cannot be conclusory. Rather, it 

must explain the basis of the expert’s statements regarding causation and link his 

conclusions to the facts. See id. “A causal relationship is established by proof that 

the negligent act or omission was a substantial factor in bringing about the harm

and that absent said act or omission, the harm would not have occurred.” Id. at 755 

(emphasis added). In this regard, “the expert must go further and explain, to a 

reasonable degree, how and why the breach caused the injury based on the facts 

presented.” Al-Lahiq v. Rosemond, No. 14-13-00158-CV, 2013 WL 5969720, at 
25

*3 (Tex. App.—Houston [14th Dist.] Nov. 7, 2013, no pet.) (quoting Jelinek v. 

Casas, 328 S.W.3d 526, 539-40 (Tex. 2010)) (emphasis added). Stated differently, 

the expert report must demonstrate causation beyond mere conjecture. See id. 

For the reasons explained above, Appellee’s vicarious liability claim fails as 

a matter of law. Without her vicarious liability claim, Appellee is relegated to 

establishing that her injuries were proximately caused by HSH’s alleged negligent 

hiring, supervision and retention. Dr. Ray wholly fails to address how HSH’s 

negligent hiring, supervision and retention caused Appellee’s injuries. Dr. Miller 

purports to address this but fails to explain “how and why” HSH’s policy failures 

in hiring, supervising and retaining Nurse Bunyard proximately caused Appellee’s 

damages. Al-Lahiq, 2013 WL 5969720, at *3. For instance, there is no indication 

in Dr. Miller’s report that a background check of Nurse Bunyard would have 

yielded any information suggesting he was unfit for hire. Instead, Dr. Miller infers 

HSH’s insufficient hiring, supervision and retention policies and procedures 

precipitated this incident. This cannot merely be assumed. By failing to explain 

how HSH’s hiring, supervision and retention policies were a substantial factor in 

Appellee’s injuries, Appellee did not provide a fair summary of causation. The 

trial court’s ruling should be reversed. 
26

CONCLUSION & PRAYER

For the above reasons, this Court should reverse the trial court’s order 

denying Appellant’s motion to dismiss and render a judgment of dismissal with 

prejudice in favor of Appellant, Humble Surgical Hospital L.L.C. (incorrectly 

named as 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.), as 

required by Chapter 74 of the Civil Practice & Remedies Code, including an 

assessment of attorneys’ fees or, alternatively, remand with instructions to the trial 

court to assess statutory attorneys’ fees and then to enter a judgment of dismissal 

with prejudice. 

Respectfully submitted,

HORNE ROTA MOOS, LLP

By: /s/ Joshua Anderson

JOSHUA ANDERSON

SBN: 24027198

janderson@hrmlawyers.com

CHASTITI N. HORNE

SBN: 24007385

chorne@hrmlawyers.com

2777 Allen Parkway, Suite 1200

Houston, Texas 77010

(713) 333-4500

(713) 333-4600 Facsimile

ATTORNEYS FOR APPELLANT
27

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 7,440 words, 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(e) 

because:

This brief has been prepared in a proportionally spaced typeface using 

Microsoft Word XP version 10 in 14 pt Times New Roman (Footnotes in 12 

pt.).

/s/ Joshua C. Anderson

JOSHUA C. ANDERSON
28

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that a true and correct copy of the Appellant’s 

Brief was served on the following counsel of record by electronic filing service, 

email and/or certified mail, return receipt requested on October 19, 2015.

Jacqueline M. Houlette

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

440 Louisiana Street, Suite 900

Houston, Texas 77002

Counsel for Plaintiff/Appellee

/s/ Joshua C. Anderson

JOSHUA C. ANDERSON
29

APPENDIX
30

INDEX TO APPENDIX

1) Order dated August 3, 2015 Overruling Humble Defendants’ Objections to 

Plaintiff’s Chapter 74 Expert Reports and Denying Defendants’ Motions to 

Dismiss (CR 166).

2) TEX. CIV. PRAC. & REM. CODE ANN. § 74.351.
2 

Ci 

8 

4 

::1 

6 

CAUSE NO. 1044724 

CHRISTY L. TRAYNOR § IN THE COUNTY COURT 

§ 

~ § 

§ 

HUMBLE SURGICAL HOSPITAL § ATLAWN0.2 

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., and § 

KELLY JOE BUNYARD, individually § HARRIS COUNTY, TEXAS 

ORDER OVERRULING HUMBLE DEFENDANTS' OBJECTIONS TO PLAINTIFF'S 

CHAPTER 74 EXPERT REPORTS AND DENYING DEFENDANTS' MOTIONS TO 

DISMISS 

On this day, came on to be heard Defendants 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.'s 

("HUMBLE DEFENDANTS") Objections to Plaintiff's Chapter 74 Expert Reports and Motion 

to Dismiss. 

The Court, having considered the pleadings, the evidence and the arguments of counsel, 

finds that Defendants' 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. Objections to 

Plaintiff's Chapter 74 Expert Reports are OVERRULED. 

Further, having considered the pleadings, the evidence, and the argument of counsel, the 

Court finds that Defendants' HUMBLE SURGICAL HOSPITAL L.L.C., HUMBLE 

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

Traynor· TMLA· 1044724-CCL2 1 

166 
5 HOUSTON HUMBLE SURGICAL, P.L.L.C., HUMBLE SPINE SURGERY, P.L.L.C 's Motion 

0 

8 to Dismiss should be denied. 

CJ 

3 

] 

4 

It is, THEREFORE ORDERED, ADJUDGED and DECREED that Defendants' 

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.'s Motion to Dismiss is in all things DENIED. 

Signed this _ __....]_u\_ day of __ ...._/bt-=--....,'ff---"-tA~>'---'f-'----'' 2015. 

APPROVED AND ENTRY REQUESTED: 

Isl Jacqueline M. Houlette 

Jacqueline M. Roulette 

TBA No. 00787718 

440 Louisiana, Suite 900 

Houston, Texas 77002 

Phone:(713)236-7740 

Fax: (713) 583-3010 

ATTORNEY FOR PLAINTIFF 

Traynor-TM!.A·1044724-CCL2 2 

.,, 

--. 

rm 

CJ 

·':···· 

•, 

167 
§ 74.351. Expert Report, TX CIV PRAC & REM§ 74.351 

KeyCite Yell ow Flag - Negative Treatment 

Proposed Legislation 

Vernon's Texas Statutes and Codes Annotated 

Civil Practice and Remedies Code (Refs & Annos) 

Title 4. Liability in Tort 

Chapter 74. Medical Liability (Refs & Annos) 

Subchapter H. Procedural Provisions (Refs & Annos) 

V.T.C.A., Civil Practice & Remedies Code§ 74.351 

§ 74.35i. Expert Report 

Effective: September 1, 2013 

Currentness 

(a) In a health care liability claim, a claimant shall, not later than the !20th day after the date each defendant's original answer 

is filed, serve on that party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the 

report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may 

be extended by written agreement of the affected parties. Each 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. 

(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified 

by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), 

enter an order that: 

(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the 

physician or health care provider; and 

(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim. 

(c) If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found 

deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. If the claimant does not 

receive notice of the court's ruling granting the extension until after the 120-day deadline has passed, then the 30-day extension 

shall run from the date the plaintiff first received the notice. 

(d) to (h) [Subsections (d)-(h) reserved] 

(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. 

v·~ 't·~ext ~f) 2015 Thomson Reuters, f\!o claim to U.S. Government VVo:ks. 
§ 74.351. Expert Report, TX CIV PRAC & REM§ 74.351 

(j) Nothing in this section shall be construed to require the serving of an expert report regarding any issue other than an issue 

relating to liability or causation. 

(k) Subject to Subsection (t), an expert report served under this section: 

(I) is not admissible in evidence by any party; 

(2) shall not be used in a deposition, trial, or other proceeding; and 

(3) shall not be referred to by any party during the course of the action for any purpose. 

( l) A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that 

the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6). 

(m) to (q) [Subsections (m)-(q) reserved] 

(r) In this section: 

(I) "Affected parties" means the claimant and the physician or health care provider who are directly affected by an act or 

agreement required or permitted by this section and does not include other parties to an action who are not directly affected 

by that particular act or agreement. 

(2) "Claim" means a health care liability claim. 

(3) [reserved] 

(4) "Defendant" means a physician or health care provider against whom a health care liability claim is asserted. The term 

includes a third-party defendant, cross-defendant, or counterdefendant. 

(5) "Expert" means: 

(A) with respect to a person giving opinion testimony regarding whether a physician departed from accepted standards of 

medical care, an expert qualified to testify under the requirements of Section 74.40 l; 

(B) with respect to a person giving opinion testimony regarding whether a health care provider departed from accepted 

standards of health care, an expert qualified to testify under the requirements of Section 74.402; 

No claim to original U.S. Governrrient VVorks. 2 
§ 74.351. Expert Report, TX CIV PRAG & REM§ 74.351 

(C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages 

claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who 

is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence; 

(D) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages 

claimed and the alleged departure from the applicable standard of care for a dentist, a dentist or physician who is otherwise 

qualified to render opinions on such causal relationship under the Texas Rules of Evidence; or 

(E) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages 

claimed and the alleged departure from the applicable standard of care for a podiatrist, a podiatrist or physician who is 

otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence. 

(6) "Expert report" means a written report by an expert that provides a fair summary of the expert's opinions as of the date 

of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care 

provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages 

claimed. 

(s) Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in a health 

care liability claim is stayed except for the acquisition by the claimant of information, including medical or hospital records or 

other documents or tangible things, related to the patient's health care through: 

(1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure; 

(2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and 

(3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure. 

(t) If an expert report is used by the claimant in the course of the action for any purpose other than to meet the service requirement 

of Subsection (a), the restrictions imposed by Subsection (k) on use of the expert report by any party are waived. 

(u) Notwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take not more than 

two depositions before the expert report is served as required by Subsection (a). 

Credits 

Added by Acts 2003, 18th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003. Amended by Acts 2005, 79th Leg., ch. 635, § 1, eff. Sept. 

1, 2005; Acts 2013, 83rd Leg., ch. 870 (H.B. 658), § 2, eff. Sept. 1, 2013. 

Notes of Decisions (1902) 

V. T. C. A., Civil Practice & Remedies Code§ 74.351, TX CIV PRAC & REM§ 74.351 

• · Next '.'.> 2015 Thcmson Reute;s. No ciaim to origina' U.S. Gcve~nment Works. 3 
§ 74.351. Expert Report, TX CIV PRAC & REM§ 74.351 

Current through the end of the 2015 Regular Session of the 84th Legislature 

End of Document '\ 2015 Thomson Reuters. J\o claim to original L.S. GoYemment Works. 

.Next·'£ 2015 Thomson Reuters. ~fo claim to origina! U.S. Government \Norks. 4