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 H ORNE R OTA M OOS , LLP 2777 Allen Parkway, Suite 1200 Houston, Texas 7701 9 (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

CLERKii IDENTITY OF PARTIES AND COUNSEL In accordance with T EX
. R. A PP
. 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., Humb le Spine Surgery, P.L.L.C.) Counsel for Appellant: Mr. Joshua Anderson

– Appellate Counsel Ms. Chastiti N. Horne

– Trial and Appellate Counsel H ORNE R OTA M OOS , 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 H OULETTE & G RAY , P.L.L.C. 440 Louisiana Street, Suite 900 Houston, Texas 77002 (713) 236

- 7740 (713) 583

- 3010

– Faxiii 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 ISSUE S PRESENTED

................................ ................................ .............................. x i
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

........................ 1 2 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

................................ ................................ .............. 16iv 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

................................ ................................ ................................ .............. 29v 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 , 1 6

- 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.)

....................... 1 7, 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. d enied)

............................. 20

- 22 Certified EMS, Inc. v. Potts , 392 S.W.3d 625 (Tex. 2013 )

................................ ................................ ... 23, 24 Gannon v. Wyche , 321 S.W.3d 88 1 (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)

................................ ................................ ........... 9vi 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 200 4, 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 (T ex. 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
M axwell 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)

................................ ................................ ......... 10vii 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 90 1 (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

- 1 6 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)

................................ ................................ ......... 20viii Statutes : T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.351

................................ ................................ ...... x T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.351 (a)

................................ ............................... 10
T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.351 (b)

................................ ............................... 10
T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.351 (c)

................................ ............................... 10
T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.351 ( l )

................................ ................................ 10
T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.351 (r)(5)(B)

................................ ..................... 12
T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.351 (r)(6)

................................ ..................... 11, 19
T EX
. C IV
. P RAC
. & R EM
. C ODE § 74. 402 (b)

................................ ......................... 12, 1 3
T EX
. C IV
. P RAC
. & R EM
. C ODE § 74. 402(c)

................................ ............................... 13
Rules : T EX
. R. A PP
. P

. 9.4

................................ ................................ ................................ ....... 27
T EX
. R. A PP
. P . 38.1(a)

................................ ................................ ................................ .. ii
T EX
. R. A PP . P. 38.1(f)

................................ ................................ ................................ .. 2
T EX
. R. A PP
. P. 39.1

................................ ................................ ................................ ..... i x Miscellaneous : H OUSE C OMM
. ON C IV
. P RAC ., Bill Analysis, Tex. H.B. 971, 74th Leg., R.S. (1995)

................................ ................................ ........................ 8ix REQUEST FOR ORAL ARGUMENT Appellant requests oral argument. See T EX
. R. A PP
. P. 39.1.x STATEMENT OF THE CASE Nature of the Case and Parties: Direct and vicarious liability claim s brought against Appellant by Christy L. Traynor for injuries she sustained wh en 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 T EX
. C IV
. P RAC
. & R EM
. C ODE
. A NN
. § 74.351, which contende d that Appellee failed to file compliant expert report s , despite being given 30 days to cure deficiencies (Apx. Tab 1 & 2).xi ISSUE S 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 report s , despite being given an opportunity to cur e her deficient expert report s , because:

a. neither expert established that they were qualified to opine on Appellant’s standard of care; b. t he amended expert report s 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 a pplicable to allegations of sexual assault as a matter of law; and d

. the amended expert report s 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.) (“ H SH ”), 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 prej udice as required by Chapter 74 of the Civil Practice & Remedies Code , including an assessment of attorneys’ fees or, alternatively, remand with instructions to the trial2 court to assess statutory attorneys’ fees and then to enter a judgment of dismissal

w ith prejudice. STATEMENT OF FACTS The following facts are “pertinent to the issues or points presented.” T EX
. R.
A PP
. P. 38.1(f). This lawsuit was brought on March 6, 2014 by Christy L. Traynor (“Appellee”) against HSH and Kelly Joe Bunyard (“Nurse B unyard”) (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 o f 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 fai ling 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 doct rines 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 hol d 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, an d 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 tha t (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 incident4 made the basis of this suit is only discussed as a “stressor” supporting the PTSD diagn osis (CR 101). There is no discussion of HSH ’s purported standard of care. In her January 12 th report , Dr. Ray was a s ked 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, imp roved 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, H5 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 discussio n 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 nurs e 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. Tr aynor from the telemetry monitor coinciding with the timing of the nurse’s hourly rounding documentation as evidenced6 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

- 1 7). 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. T raynor’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 R emedies Code for Failure to File an Adequate Expert Report (CR 14)

. In its motion, HSH argued that neither expert w as 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 objecti ons 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 h er original expert report s , Appellee failed to serve compliant expert report s . Appellee’s proffered experts have not established the requisite qualifications to opine on HSH’s standard of care. Moreover, the amended reports are conclusor y 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, s upervision 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 liabili ty 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 th e 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 fail ed 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. Transiti onal 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 wi thout reference to any guiding rules or principles.” Id . ( citing Larson v. Downing , 197 S.W.3d 303, 304

- 05 (Tex. 2006)). ARGUMENT I) T HE E NACTMENT OF THE M EDICAL L IABILITY AND I NSURANCE I MPROVEMENT A CT . The Texas Legislature enacted the Medical Liabili ty 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, 8929 (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 requirem ent 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 Le gislature 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 bro ught prematurely.” Palacios , 46 S.W.3d at 878 (citing H OUSE C OMM
. ON C IV
. P RAC ., Bill Analysis, Tex. H.B. 971, 74th Leg., R.S. (1995)).10 As the Texas S upreme C ourt 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. Campbe ll , 985 S.W.2d 38, 41 (Tex. 1998))

. II. S ECTION 74.351’ S E XPERT R EPORT R EQUIREMENTS . 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 asse rted. ” T EX
. C IV
. P RAC
. & R EM
. C ODE § 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 co urt 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 manne r 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.” T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.351(r)(6). Texas courts have f urther 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) inf orm 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, the12 expert must affirmatively explain the basis for h er 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 repo rt. 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 th at 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 qual ifications to opine on HSH ’ s standard of care and purported breach t hereof. 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 T EX
. C IV
. P RAC
. &
R EM
. C ODE § 74.351(r)(5) (B). In pertinent part, s ection 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 standard s 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 involv ed 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.
T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.402( b ) (emphasis added). Subpart (c) then further elaborates on t he 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 c ertified 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 healt h care in rendering health care services relevant to the claim.
T EX
. C IV
. P RAC
. & R EM
. C ODE § 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 facility14 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 nonphys ician’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 . a t *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 simi lar 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 familiari ty 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 p syc hiatrist with experience15 treating patients such as Appellee, she has not shown within the four corners of her report or curriculum vitae that she ha s 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 Vi siting 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 e xpert 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 B unyard . Despite her expertise as a nurse, Dr. Miller has not shown the requisite qualifications for

o pining on HSH’s breach of administrative tasks such as hiring, supervision and retention

. Without first establishing that Dr. Ray and Dr. Miller are qual ified 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 secon d

. 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 hospit al 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 specifi c 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 bef ore 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 sec urely, 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 th e 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 pur ported 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 were18 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 address es thi s 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).
Muc h like the standards of care offered in Palacios and Martin , the s e are not
statement s 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 abstract19 pronouncement s, devoid of any specifics. HSH and this Court are left to guess as to what precisely would have satisfie d Dr. Miller’s purported standard s . 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 re ly on Nurse Bunyard’s alleged breaches against HSH.
T he bulk of both Dr. Ray 3 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 bootst rap 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 impli cates 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 ); T EX
. C IV
. P RAC
. & R EM
. C ODE § 74.351(r)(6) (defining an “expert report” as “a written report by an expert that provides a fair summary of the exper t’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 opinion s 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 employme nt. 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 responsibi lity for that which he does in21 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 all eged 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 Macke y”); 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 work

related. In sexually assaulting [Plaintiff], [the employee] stepped aside from his employment to accomplish his own, rather tha n [ 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 conducti ng 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, the22 plaintiff brought suit and an appeal was taken regarding the claims against Mr. Yen’s employers based on r espondeat 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. T he 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 inter est 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 Ye n’s employment tasks as to merge the activit ies 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 superio r. Id . a t 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, t his case is distinguishable for the question it does

no t 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

serv ice 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 pro vide 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 dism iss 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. A s24 shown above, it is not

. Again, o ne 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

. T hus, 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 om ission 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, at25 *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. With out 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
purp orts 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 indicati on 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 th is 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 Ho spital 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, re mand 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 1 200 Houston, Texas 77010 (713) 333

- 4500 (713) 333

- 4600 Facsimile
ATTORNEYS FOR APPELLANT27 CERTIFICATE OF COMPLIANCE Pursuant to Texas Rules of Appellate Procedure, the undersigned certifies this brief complies with the type

- volume limitations of T EX
. R. A PP
. P . 9.4.
1. This brief complies with the type

- volume limitations of T EX
. R. A PP
. P . 9.4 because: This brief contains 7,440 words, excluding the parts of the brief exempted by T EX
. R. A PP
. P . 9.4(i)(1).
2. This brief complies with the typeface requirements of T EX
. R. A PP
. P . 9.4(e) because: This brief has been prepared in a proportionall y spaced typeface using Microsoft Word XP version 10 in 14 pt Times New Roman (Footnotes in 12 pt.).

/s/ Joshua C. Anderson JOSHUA C. ANDERSON28 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 Octo ber 19 , 201 5

. Jacqueline M. Houlette H OULETTE & G RAY , P.L.L.C. 440 Louisiana Street, Suite 900 Houston, Texas 77002 Counsel for Plaintiff/Appellee

/s/ Joshua C. Anderson JOSHUA C. ANDERSON29 APPENDIX30 INDEX TO APPENDIX 1) Order dated August 3 , 201 5 Overruling Humble Defendants’ Objections to Plaintiff’s Chapter 74 Expert Reports and Denying Defendants’ Motion s to Dismiss (CR 166 ). 2) T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . § 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



### 1665 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 

# .,, --.

### r

## m 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