In a rare opinion that should make life easier for medical-malpractice plaintiffs attorneys, the Texas Supreme Court has ruled that expert reports do not have to address every liability theory presented in the corresponding original petitions.
The adequacy of expert reports, which the Texas Medical Liability Act requires, is a regular battleground between litigants in med-mal cases. And appeals from those disputes have caused numerous splits of opinions from Texas’ 14 intermediate courts of appeal on the issue.
Those decisions often have not favored med-mal plaintiffs, but the high court’s Feb. 15 decision Certified EMS Inc. D/B/A CPnS Staffing v. Cherie Potts is an exception.
That background to that case is as follows. Cherie Potts was admitted to a hospital for treatment of a kidney infection. A staffing service owned by Certified EMS referred to the hospital one of the nurses assigned to her care. Potts claimed that the nurse "assaulted her sexually and verbally" during her hospital stay. Potts sued the hospital, the nurse and Certified EMS, according to the opinion.
In her petition, Potts claimed that Certified EMS was directly liable for the nurse’s conduct because it failed to properly train and oversee its staff, among other things. She also alleged that Certified EMS was vicariously liable under the theory of respondeat superior, according to the opinion.
Because Potts sued under the Texas Medical Liability Act, she was required to serve each defendant with an expert report that met certain statutory requirements. She served expert reports on all the defendants and later supplemented with an expert report that detailed what steps the nurse and Certified EMS should have taken to prevent the alleged assault, according to the opinion.
Certified EMS objected to the reports and moved to dismiss on numerous grounds, including that the reports omitted any explicit reference to Certified EMS’ direct liability for the nurse’s alleged conduct, according to the opinion.
The trial court denied the motion, and Certified EMS appealed. Houston’s 1st Court of Appeals affirmed the trial court’s decision. Certified EMS appealed to the Supreme Court. The nurse and the hospital are not parties to the appeal.
Writing for the unanimous court, Chief Justice Wallace Jefferson explained that the court agreed to hear Certified EMS to answer a single question: "Must a claimant in a health care liability suit provide an expert report for each pleaded liability theory?"
Jefferson noted that "numerous" appellate court decisions have discussed the extent to which an expert report must examine every liability theory raised. Some courts have ruled that a plaintiff need only address a single theory for the entire suit to proceed, while other courts insist that an expert report specifically must address each liability theory.
Jefferson wrote that court was rejecting the latter approach. "No provision of the Act requires an expert report to address each alleged liability theory," Jefferson wrote.
Jefferson also noted that that the legislative intent behind requiring expert reports is "to deter frivolous claims, not to dispose of claims regardless of their merits."
"Our holding today satisfies these purposes," Jefferson wrote. "If a health care liability claim contains at least one viable theory, as evidenced by an expert report meeting the statutory requirements, the claim cannot be frivolous. The Legislature’s goal was to deter baseless claims, not to block earnest ones."
Vincent "Tripp" Marable, a shareholder in Wharton’s Paul Webb PC who represents Potts, says the decision will make it easier for plaintiffs to file expert reports in medical-malpractice cases in two ways.
"If I’m suing a defendant and I have one act of negligence, I’m going to be allowed to proceed if my expert report is adequate on that one act of negligence. Secondly, if I am suing an entity for vicarious liability, I can proceed on a direct liability claim at a later time, even if my expert report doesn’t address the direct liability aspects, as long as I address the vicarious liability aspects."
Nathan Rymer, the managing shareholder in Houston’s Rymer Moore Jackson & Echols who represents Certified EMS, says his client is filing a motion for rehearing in the case. Rymer believes the decision has some bad implications for defendants in med-mal cases.
"It appears that if you sue a single defendant and provide an expert report for that defendant that meets the requirement, you can then sue an unlimited number of additional health-care defendants and just plead in your petition that they may be vicarious liable for actions you have in a report," Rymer says. "And then you’ve eliminated your requirement to provide a report for each of those defendants."
Marable disputes Rymer’s conclusion, noting that "for each defendant, you have to have an expert report."