columbia-north-hills-hospital-subsidiary-lp-dba-north-hills-hospital ( 2011 )


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  •                       COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-10-00342-CV
    COLUMBIA NORTH HILLS                               APPELLANT
    HOSPITAL SUBSIDIARY, L.P.,
    D/B/A NORTH HILLS HOSPITAL
    V.
    BULMARO ALVAREZ,                                   APPELLEES
    INDIVIDUALLY AND AS
    REPRESENTATIVE OF THE
    ESTATE OF SANDRA ALVAREZ,
    DECEASED AND AS NEXT FRIEND
    OF SARAY ALVAREZ AND
    MARILYN ALVAREZ, MINORS,
    AND SANDY ALVAREZ,
    INDIVIDUALLY
    ----------
    FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
    ----------
    MEMORANDUM OPINION1 ON REHEARING
    ----------
    1
    See Tex. R. App. P. 47.4.
    On April 7, 2011, this court issued an opinion affirming in part and
    reversing in part the trial court’s order denying Appellant Columbia North Hills
    Hospital Subsidiary, L.P.’s motion to dismiss the health care liability claims
    asserted against it by Appellees Bulmaro Alvarez, Individually and as
    Representative of the Estate of Sandra Alvarez, Deceased and as Next Friend of
    Saray Alavarez and Marilyn Alvarez, Minors, and Sandy Alvarez, Individually.
    We withdraw our opinion and judgment dated April 7, 2011, and substitute the
    following.
    After due consideration, we deny North Hills Hospital’s motion for
    rehearing and motion for en banc reconsideration. We grant Appellees’ motion
    for rehearing to the extent that we modify our opinion to permit the trial court on
    remand to determine whether to grant a thirty-day extension to Appellees to cure
    the deficiencies in the expert report regarding Appellees’ pleaded direct liability
    claims.
    I. INTRODUCTION
    Appellant Columbia North Hills Hospital Subsidiary, L.P., d/b/a North Hills
    Hospital appeals from the trial court’s order denying its motion to dismiss the
    health care liability claims asserted against it by Appellees Bulmaro Alvarez,
    Individually and as Representative of the Estate of Sandra Alvarez, Deceased
    and as Next Friend of Saray Alavarez and Marilyn Alvarez, Minors, and Sandy
    Alvarez, Individually.   In three issues, North Hills Hospital complains that
    although Appellees timely served and timely amended the expert report of
    2
    Samuel A. Tyuluman, M.D., the trial court nonetheless abused its discretion by
    refusing to dismiss the claims against North Hills Hospital because Dr. Tyuluman
    was not qualified to offer the opinions he did; because Dr. Tyuluman’s report fails
    to set forth a standard of care, breach, or causation relating to North Hills
    Hospital; and generally because the trial court did not dismiss Appellees’ claims.
    Because the record before us reflects no abuse of discretion by the trial court
    concerning Appellees’ vicarious liability claims against North Hills Hospital, we
    will affirm the portion of the trial court’s order refusing to dismiss those claims.
    But because Dr. Tyuluman’s report does not demonstrate that he is qualified to
    offer an opinion concerning the direct liability causes of action that Appellees
    pleaded against North Hills Hospital, we will reverse the portion of the trial court’s
    order denying North Hills Hospital’s motion to dismiss those claims.
    II. FACTUAL AND PROCEDURAL BACKGROUND
    Forty-five-year-old Sandy Alvarez died at North Hills Hospital after a
    vaginal hysterectomy was performed on her. Following the surgery, Mrs. Alvarez
    was transferred to the recovery room where she experienced difficulties. She
    was eventually diagnosed as suffering from hemorrhagic shock and returned to
    the operating room for surgical repair of the source of her internal bleeding. Mrs.
    Alvarez died approximately five hours after her second surgery. Mrs. Alvarez’s
    autopsy report indicates that she died as a result of ―(1) complications of acute
    hemorrhagic shock due to post-operative bleed and (2) morbid obesity with
    hepatomegaly, severe fatty metamorphosis and early fibrosis.‖
    3
    Appellees filed suit against North Hills Hospital alleging both vicarious
    liability and direct liability theories of recovery. Appellees alleged that North Hills
    Hospital was vicariously liable for its nurses’ negligence and alleged various acts
    and omissions by the North Hills Hospital nursing staff, including the failure to
    invoke the chain of command. Appellees alleged that North Hills Hospital was
    directly liable for failing to adequately train its nurses, failing to enforce its policies
    and procedures, and failing to adequately supervise its nurses. Appellees timely
    served on North Hills Hospital the report and curriculum vitae of Dr. Tyuluman.
    North Hills Hospital filed a motion to dismiss alleging that Dr. Tyuluman was not
    qualified to testify on the standard of care applicable to a hospital and alleging
    various deficiencies in Dr. Tyuluman’s report. After a hearing, the trial court ruled
    that
    the expert reports submitted by Plaintiffs constitute a good faith effort
    and meet the requirements of Chapter 74 of the Civil Practice &
    Remedies Code, with the exception that Plaintiffs are required to
    submit an amended report breaking out specifically by name each
    defendant and/or group of defendants and the specific elements
    relating to the standard of care, breach of the standard of care, and
    causation for each defendant.
    The trial court gave Appellees thirty days to file the amended report; Appellees
    timely served an amended report of Dr. Tyuluman.2 North Hills Hospital then
    filed a second motion to dismiss again alleging that Dr. Tyuluman was not
    qualified and alleging the same deficiencies in his report. After a hearing, the
    2
    All subsequent references to Dr. Tyuluman’s report are to his amended
    report.
    4
    trial court denied North Hills Hospital’s second motion to dismiss, and North Hills
    Hospital perfected this appeal.
    III. STANDARD OF REVIEW
    We review a trial court’s denial of a motion to dismiss for an abuse of
    discretion.   Jernigan v. Langley, 
    195 S.W.3d 91
    , 93 (Tex. 2006); Maris v.
    Hendricks, 
    262 S.W.3d 379
    , 383 (Tex. App.—Fort Worth 2008, pet. denied); Ctr.
    for Neurological Disorders, P.A. v. George, 
    261 S.W.3d 285
    , 290–91 (Tex.
    App.—Fort Worth 2008, pet. denied). To determine whether a trial court abused
    its discretion, we must decide whether the trial court acted without reference to
    any guiding rules or principles; in other words, we must decide whether the act
    was arbitrary or unreasonable.       Downer v. Aquamarine Operators, Inc., 
    701 S.W.2d 238
    , 241–42 (Tex. 1985), cert. denied, 
    476 U.S. 1159
    (1986). Merely
    because a trial court may decide a matter within its discretion in a different
    manner than an appellate court would in a similar circumstance does not
    demonstrate that an abuse of discretion has occurred. 
    Id. But a
    trial court has
    no discretion in determining what the law is or in applying the law to the facts,
    and thus ―a clear failure by the trial court to analyze or apply the law correctly will
    constitute an abuse of discretion.‖ Walker v. Packer, 
    827 S.W.2d 833
    , 840 (Tex.
    1992) (orig. proceeding); Ehrlich v. Miles, 
    144 S.W.3d 620
    , 624 (Tex. App.—Fort
    Worth 2004, pet. denied).
    5
    IV. STATUTORY STANDARDS FOR EXPERT REPORTS
    Chapter 74 requires a health care liability claimant to serve defendants
    with an expert report and curriculum vitae within 120 days of filing the claim. See
    Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon 2011). The purpose of
    the expert report requirement is to inform the defendant of the specific conduct
    the plaintiff has called into question and to provide a basis for the trial court to
    conclude that the claims have merit. Bowie Mem’l Hosp. v. Wright, 
    79 S.W.3d 48
    , 52 (Tex. 2002) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 
    46 S.W.3d 873
    , 878 (Tex. 2001)).         An expert report ―need not marshal all the
    plaintiff’s proof.‖ 
    Palacios, 46 S.W.3d at 878
    (construing former Texas Revised
    Civil Statute article 4590i, section 13.01).     Additionally, the information in the
    report ―does not have to meet the same requirements as the evidence offered in
    a summary-judgment proceeding or at trial.‖ 
    Id. at 879.
    If the defendant files a motion challenging the adequacy of the expert
    report, the court shall grant the motion ―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.‖ Tex. Civ. Prac. & Rem. Code Ann.
    § 74.351(l). The trial court may grant the claimant one thirty-day extension to
    cure a deficiency in the initial expert report. 
    Id. § 74.351(c).
    6
    V. CHALLENGES TO DR. TYULUMAN’S QUALIFICATIONS
    A. Dr. Tyuluman is Qualified Concerning North Hills Hospital’s Nurses’
    Conduct
    Dr. Tyuluman’s report demonstrates that he practices health care in a field
    of practice that involves the same type of care or treatment as that delivered by
    the nurses at North Hills Hospital. It states, in pertinent part,
    I practice obstetrics and gynecology in Dallas, Texas and have
    been since 1986. I am a Clinical Professor of Obstetrics and
    Gynecology, University of Texas Southwestern Medical School,
    Parkland Memorial Hospital. I maintain board certification with the
    American Board Obstetrics and Gynecology. I am a Fellow of the
    American College of Obstetrics and Gynecology and the American
    College of Surgeons. . . . I was the Chairman of the Texas Health
    Resources, Presbyterian Hospital Dallas, Quality Improvement
    Committee from 1998 until 2002. I served as an elected member of
    the Clinical Case Reviews Committee (Advisory Committee) of
    Margot Perot Hospital of Texas Health Resources.
    Dr. Tyuluman’s report demonstrates that he has knowledge of the accepted
    standards of health care providers for the condition at issue and by training or
    experience is qualified to offer an expert opinion regarding those accepted
    standards. The report states, in pertinent part,
    Over the past 22 years, I have cared for patients just like Mrs.
    Alvarez hundreds of times. I am familiar with the standard of care
    for such patients based both on my personal experience and my
    decades in the profession. As a function of my practice in obstetrics
    and gynecology, as well as the administrative positions noted above,
    I am familiar with not only standards of care as they apply to
    gynecologists, but also as they apply to other physicians caring for
    patients in the post operative period following a vaginal
    hysterectomy with a suspicion of post operative hemorrhage. The
    standard of care is to return the patient in a situation such as this
    case back to surgery to fix the bleed. This standard applies across
    lines of specialty. . . . Further, I am familiar with the standards of
    7
    care as they apply to nurses and to the administration of the
    department of gynecology from both a physician’s point of view and
    an administrator’s. I work with consulting physicians as well as
    recovery room and postoperative nurses and am familiar with their
    training and standards as they apply to them. I am qualified to
    review this case from all of these perspectives. For further details,
    please see a copy of my CV, which is attached.
    In part of its first issue, North Hills Hospital claims that the trial court
    abused its discretion by determining that Dr. Tyuluman was qualified to render
    opinions concerning post-operative nursing care or nurses invoking the chain of
    command in a hospital setting. North Hills Hospital argues that because Dr.
    Tyuluman is not a nurse, he is not qualified to opine on the nursing standard of
    care. When a physician states that he is familiar with the standard of care for
    both nurses and physicians and for the prevention and treatment of the illness,
    injury, or condition involved in the claim, the physician is qualified on the issue of
    whether the health care provider departed from the accepted standards of care
    for health care providers. See Baylor Med. Ctr. at Waxachachie v. Wallace, 
    278 S.W.3d 552
    , 558 (Tex. App.––Dallas 2009, no pet.) (holding doctor expert’s
    statement that he had worked with nurses, nurse practitioners, physician’s
    assistants, and physicians, including emergency room physicians, and was
    familiar with the standards of care that applied to such health care providers in
    similar situations, was sufficient to show expert was qualified to render opinion as
    to each type of health care provider); San Jacinto Methodist Hosp. v. Bennett,
    
    256 S.W.3d 806
    , 814 (Tex. App.––Houston [14th Dist.] 2008, no pet.) (holding
    doctor expert qualified to render opinion on nursing standard of care in field in
    8
    which doctor practiced); see also Jorgensen v. Tex. MedClinic, 
    327 S.W.3d 285
    ,
    288–89 (Tex. App.––San Antonio 2010, no pet.) (holding doctor expert qualified
    to render opinion as to standard of care for all health care providers concerning
    proper protocol for administration of flu vaccine because standard of care did not
    vary among health care providers).
    As quoted above, after setting forth his credentials and board certification
    in obstetrics and gynecology, Dr. Tyuluman’s report indicates that he is familiar
    with the standard of care for treating patients like Mrs. Alvarez, that he has cared
    for hundreds of patients like her during the past twenty-two years, and that he is
    familiar with the standards of care for recovery room and post-operative nurses
    caring for patients like Mrs. Alvarez through his experience working with those
    nurses. Looking to the four corners of Dr. Tyuluman’s report, we hold that it
    establishes that he is qualified to testify concerning North Hills Hospital’s nurses’
    conduct in the care of Mrs. Alvarez. See Tex. Civ. Prac. & Rem. Code Ann. §
    74.402(b)(1), (2), (3) (Vernon 2011) (setting forth qualifications required for
    experts providing statutory report); see also, e.g., 
    Wallace, 278 S.W.3d at 558
    .
    We hold that the trial court did not abuse its discretion by determining that Dr.
    Tyuluman was qualified to offer expert medical opinions concerning Appellees’
    vicarious liability claims against North Hills Hospital for the alleged negligence of
    its nurses, including negligence in failing to invoke the chain of command. We
    overrule the portion of North Hills Hospital’s first issue contending that the trial
    court abused its discretion by determining that Dr. Tyuluman was qualified to
    9
    opine on the recovery room nursing standard of care applicable to a patient like
    Mrs. Alvarez.
    B. Dr. Tyuluman is Not Qualified Concerning North Hills Hospital’s Direct
    Liability
    In the balance of its first issue, North Hills Hospital contends that the trial
    court abused its discretion by determining that Dr. Tyuluman was qualified to
    render opinions concerning North Hills Hospital’s direct liability.       Appellees
    pleaded that North Hills Hospital was directly liable for failing to adequately train
    its nurses, failing to enforce its policies and procedures, and failing to adequately
    supervise its nurses. Looking only to the four corners of Dr. Tyuluman’s report,
    we hold that it does not establish that he has any familiarity, training, or
    experience that would allow him to opine as to the standard of care for a hospital
    in formulating training programs, formulating or enforcing its policies and
    procedures, or supervising its nurses. See Hendrick Med. Ctr. v. Conger, 
    298 S.W.3d 784
    , 788 (Tex. App––Eastland 2009, no pet.). As set forth above, Dr.
    Tyuluman is qualified to opine on the standard of care applicable to recovery
    room nurses caring for a patient like Mrs. Alvarez; but the standard of care
    applicable to a hospital in training its nurses, in enforcing its policies and
    procedures, and in supervising its nurses is an entirely separate standard. See
    generally Denton Reg’l Med. Ctr. v. LaCroix, 
    947 S.W.2d 941
    , 950–51 (Tex.
    App.––Fort Worth 1997, writ denied) (discussing theories of direct hospital
    liability and applicable standard of care). Although Dr. Tyuluman’s report states
    10
    that he has served as chairman of a hospital quality improvement committee and
    a member of a clinical case review committee, nowhere in the report does he
    state that as a result of this or other experience he is familiar with the standard of
    care for a reasonable, prudent hospital in training its nurses, in enforcing its
    policies and procedures, and in supervising its nurses.        The report does not
    indicate that, as a result of his committee service, Dr. Tyuluman gained
    experience in formulating, implementing, or monitoring either hospital nurses’
    training or enforcement of hospital policies and procedures or hospital nurses’
    supervision. In short, looking only to the four corners of Dr. Tyuluman’s report,
    we hold that it does not establish that he is qualified to opine on these hospital
    standards of care.    We sustain the portion of North Hills Hospital’s first issue
    contending that the trial court abused its discretion by determining that Dr.
    Tyuluman was qualified to opine on the standard of care applicable to a hospital
    in training its nurses, in enforcing its policies and procedures, and in supervising
    its nurses.
    In a subargument included in its second issue, North Hills Hospital
    contends that Dr. Tyuluman’s report does not provide a fair summary of how
    North Hills Hospital breached the standard of care applicable to a hospital.
    Looking to the four corners of Dr. Tyuluman’s report, we hold that it does not set
    forth what the standard of care is for North Hills Hospital with respect to adequate
    training of its nurses, enforcement of its policies and procedures, or supervision
    of its nurses. Accord Reed v. Granbury Hosp. Corp., 
    117 S.W.3d 404
    , 409 (Tex.
    11
    App.––Fort Worth 2003, no pet.). That is, Dr. Tyuluman’s report does not state
    anywhere what the standard of care is for a reasonable, prudent hospital in
    training its nurses, in enforcing its policies and procedures, and in supervising its
    nurses.3   Accordingly, even if the four corners of Dr. Tyuluman’s report had
    established that he was qualified to opine on these standards of care applicable
    to a hospital, because his report does not set forth these standards of care, we
    alternatively hold that any determination by the trial court that Dr. Tyuluman’s
    report adequately set forth these standards of care constituted an abuse of
    discretion.4
    VI. CHALLENGES TO ELEMENTS OF STATUTORY EXPERT REPORT
    In its second issue, North Hills Hospital challenges the adequacy of Dr.
    Tyuluman’s report as to specific statutory elements. In its third issue, North Hills
    3
    Dr. Tyuluman’s report does state that ―[t]he standard of care required the
    hospital to have adequately trained and qualified PACU and ICU nurses‖ and that
    ―[t]he standard also required that the hospital have and enforce proper chain of
    command policies.‖ But these statements are very broad, general, and
    conclusory; they fall short of stating any standard of care as to what specific
    training or policies were required. See Bowie Mem’l 
    Hosp., 79 S.W.3d at 53
    (―A
    conclusory report does not meet the Act’s requirements, because it does not
    satisfy the Palacios test.‖).
    4
    Because we have held that Dr. Tyuluman’s report does not establish that
    he was qualified to opine on the hospital’s standard of care on the direct liability
    claims pleaded by Appellees and because we have alternatively held that, in any
    event, Dr. Tyuluman’s report does not adequately state the standard of care
    applicable to a hospital concerning Appellees’ pleaded theories of direct liability,
    we need not address North Hills Hospital’s contention that Dr. Tyuluman’s report
    does not adequately set forth causation concerning Appellees’ direct liability
    theories of recovery. See Tex. R. App. P. 47.1 (requiring appellate court to
    address in opinion only issues necessary to disposition of appeal).
    12
    Hospital simply argues that the trial court generally abused its discretion by
    failing to dismiss Appellees’ health care liability claim with prejudice. North Hills
    Hospital argues its third issue together with its second issue in its brief. North
    Hills Hospital’s third issue therefore presents only the same arguments and
    grounds for reversal as presented in its second issue. We accordingly address
    issues two and three together.
    A. Nurses’ Breach of the Standard of Care
    In part of its second and third issues, North Hills Hospital contends that Dr.
    Tyuluman’s report does not provide a fair summary of how the nurses breached
    the applicable standard of post-operative nursing care.
    Dr. Tyuluman’s report states, in pertinent part concerning the nurses’
    breach of the standard of care,
    The standard of care for North Hill[s] Hospital and its nursing
    staff caring for a patient like Mrs. Alvarez in the PACU and CCU is to
    recognize the emergent and critical post-operative bleed and to fully
    invoke the chain of command to make sure she was returned to
    surgery by Dr. Allen or some other surgeon in a timely fashion.
    Additionally, North Hill[s] Hospital nurses were required, according to
    the applicable standard of care, to properly evaluate operative blood
    loss. The nursing staff of North Hill[s] Hospital was negligent when
    they grossly underestimated operative blood loss, not accounting for
    approximately 4800 cc’s. The nursing staff of North Hill[s] Hospital
    was also negligent in their post-operative management of Mrs.
    Alvarez, watching her decline throughout the day without effectively
    utilizing the chain of command [] to make sure that Dr. Allen or some
    other surgeon returned Mrs. Alvarez to surgery. The standard of
    care for the nursing staff requires that they both recognize and
    effectively communicate the emergency nature of the situation and
    then, should Dr. Allen not move quickly to surgery, go up the chain
    of command. By 1900, the Assistant CNO and Nurse Manager were
    13
    at the bedside. The standard of care required that the nursing staff
    insist on their involvement much earlier.
    As set forth above, Dr. Tyuluman’s report specifically identifies how North
    Hills Hospital’s recovery room nurses breached the standard of care: they did
    not recognize the emergent and critical post-operative bleed; they watched Mrs.
    Alvarez decline throughout the day; they did not properly evaluate Mrs. Alvarez’s
    blood loss; they failed to account for 4800 cc’s of lost blood; and they failed to
    invoke the chain of command to get the Assistant CNO and Nurse Manager to
    come to Mrs. Alvarez’s bedside much sooner.
    Looking to the four corners of Dr. Tyuluman’s report, we hold that the trial
    court did not abuse its discretion by determining that the report adequately sets
    forth how the recovery room, post-operative nurses breached the standards of
    care set forth in the report. We overrule the portion of North Hills Hospital’s
    second and third issues contending otherwise.
    B. Causation Element of Nurses’ Negligence
    In the balance of its second and third issues, North Hills Hospital argues
    that Dr. Tyuluman’s report fails to adequately set forth how the nurses’
    negligence proximately caused Mrs. Alvarez’s death.        Dr. Tyuluman’s report
    provides,
    The failure of all defendants to provide surgery to control the
    hemorrhage, continuing to administer pressor agents when
    contraindicated, failure to properly monitor intraoperative blood loss,
    and failure to recognize the compromised status of the patient during
    this process are proximate cause of the death of [Mrs.] Alvarez. Had
    prompt surgery been performed, it is more likely than not that the
    14
    injury would have been easily found and corrected, preventing
    further blood loss. I have performed such surgeries to locate and
    repair injury following vaginal hysterectomy and know from my
    experience the effectiveness of such procedures. Had ordinary care
    been provided during the operative and post operative period, in all
    medical probability, Mrs. Alvarez would be alive today.
    Looking to the four corners of Dr. Tyuluman’s report, we hold that the trial
    court did not abuse its discretion by determining that the report adequately sets
    forth how the nurses’ negligence proximately caused Mrs. Alvarez’s death. See
    Bowie Mem’l 
    Hosp., 79 S.W.3d at 52
    . The fact that a trier of fact may ultimately
    reject Dr. Tyuluman’s opinion regarding the nurses’ causation––i.e., that the
    nurses failed to properly monitor Mrs. Alvarez’s blood loss, failed to recognize
    her compromised status, and failed to invoke the chain of command, proximately
    causing Mrs. Alvarez’s death––does not render the report insufficient.           See
    Hayes v. Carroll, 
    314 S.W.3d 494
    , 507 (Tex. App.––Austin 2010, no pet.). The
    report sufficiently informs North Hills Hospital of the specific conduct of its nurses
    that Appellees are questioning and provides a basis for the trial court to
    determine that Appellees’ claims have merit. This is all that is required of an
    expert report.   See Leland v. Brandal, 
    257 S.W.3d 204
    , 206–07 (Tex. 2008)
    (explaining that expert report is meant to serve two purposes: (1) to inform the
    defendant of the specific conduct the claimant is questioning and (2) to provide a
    basis for the trial court to conclude the claims have merit).
    We overrule the remainder of North Hills Hospital’s second and third
    issues contending otherwise.
    15
    VII. CONCLUSION
    Having sustained the portion of North Hills Hospital’s first issue claiming
    that the four corners of Dr. Tyuluman’s report does not establish that he was
    qualified to opine on the standard of care applicable to a hospital in training its
    nurses, in enforcing its policies and procedures, and in supervising its nurses, we
    reverse the trial court’s September 13, 2010 order to the extent that it failed to
    dismiss Appellees’ direct liability claims against North Hills Hospital for allegedly
    failing to adequately train its nurses, failing to enforce its policies and procedures,
    and failing to adequately supervise its nurses. Because Appellees did not have
    an opportunity to amend this defect in Dr. Tyuluman’s report––the trial court
    specifically directed the deficiency to be addressed during the thirty-day
    extension that it granted––and because the trial court has not had an opportunity
    to consider whether Appellees should be granted an extension of time to cure the
    deficiency found by this court to exist in Dr. Tyuluman’s report concerning
    Appellees’ pleaded direct liability claims, we remand those claims to the trial
    court for a determination of whether to dismiss them or to grant a thirty-day
    extension of time for Appellees to cure the deficiencies found by this court in Dr.
    Tyuluman’s report regarding Appellees’ pleaded direct liability claims. See TTHR
    Ltd. P’ship v. Moreno, No. 02–10–00334–CV, 
    2011 WL 2651813
    , at *12–14 (Tex.
    App.—Fort Worth July 7, 2011, no pet. h.) (mem. op. on reh’g); Estorque v.
    Schafer, 
    302 S.W.3d 19
    , 25 (Tex. App.––Fort Worth 2009, no pet.).
    16
    Having overruled the balance of North Hills Hospital’s first issue and its
    second and third issues and having held that the trial court did not abuse its
    discretion by determining that Dr. Tyuluman was qualified to opine on the
    standard of care applicable to North Hills Hospital’s recovery room nurses or by
    determining that Dr. Tyuluman’s report adequately sets forth the nurses’ breach
    of the standard of care and how that breach proximately caused Mrs. Alvarez’s
    death, we affirm the trial court’s September 13, 2010 order to the extent that it
    denied North Hills Hospital’s motion to dismiss Appellees’ vicarious liability
    claims.5
    SUE WALKER
    JUSTICE
    PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
    DELIVERED: July 28, 2011
    5
    This court’s November 30, 2010 order staying discovery in the trial court is
    lifted.
    17