McAllen Hospitals, L.P. v. Salvador Gonzalez, Individually, as Representative of the Estate of Santos Camacho, and as Representative of the Statutory Wrongful-Death Beneficiaries of Santos Camacho , 566 S.W.3d 451 ( 2018 )

NUMBER 13-18-00077-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MCALLEN HOSPITALS, L.P., Appellant,
v.
SALVADOR GONZALEZ, INDIVIDUALLY,
AS REPRESENTATIVE OF THE ESTATE
OF SANTOS CAMACHO, DECEASED,
AND AS REPRESENTATIVE OF THE
STATUTORY WRONGFUL-DEATH
BENEFICIARY OF SANTOS CAMACHO, Appellee.
On appeal from the 139th District Court
of Hidalgo County, Texas.
OPINION
Before Justices Rodriguez, Contreras, and Benavides
Opinion by Justice Contreras
In this interlocutory appeal, appellant McAllen Hospitals, L.P. (the Hospital)
challenges the denial of its motion to dismiss the health care liability claims of appellee
Salvador Gonzalez, individually, as representative of the estate of Santos Camacho,
deceased, and as representative of the statutory wrongful-death beneficiary of Santos
Camacho. By one issue, the Hospital argues the trial court abused its discretion when it
denied its motion to dismiss. We affirm.
I. BACKGROUND
On January 1, 2017, Santos Camacho was admitted to the emergency department
of McAllen Medical Center, which is operated by the Hospital. During his time at the
Hospital, Camacho was overseen by two physicians: Israel Becerra, M.D., and Olga
Olivares-Herrera, M.D. Camacho was an indigent patient in emergent need of
hemodialysis; however, he never received this treatment and passed away almost
eighteen hours after his admission.
Gonzalez, Camacho’s son, sued the Hospital on behalf of his father’s estate and
Camacho’s other children. Gonzalez’s live petition alleged the Hospital was vicariously
liable for: (1) the physicians’ negligence in the medical care and treatment provided to
Camacho; and (2) the physicians’ conduct, because the Hospital owed a nondelegable
duty to provide emergency services to all persons regardless of their ability to pay. See
TEX. HEALTH & SAFETY CODE ANN. § 311.022 (West, Westlaw through 2017 1st C.S.).1
1 Section 311.022 of the Texas Health and Safety Code provides, in part, that:
(a) An officer, employee, or medical staff member of a general hospital may not deny
emergency services because a person cannot establish the person’s ability to pay for the
services or because of the person's race, religion, or national ancestry if:
(1) the services are available at the hospital; and
(2) the person is diagnosed by a licensed physician as requiring those services.
2
Gonzalez also alleged the Hospital was liable for its own “negligence and gross
negligence.”
On October 20, 2017, Gonzalez served the Hospital with an expert report authored
by Bruce Kone, M.D. Dr. Kone’s report noted he had reviewed some of the medical
records of Camacho including the records of his treatment at McAllen Medical Center on
January 1, 2017. In his report, Dr. Kone discussed: the signs and symptoms exhibited
by Camacho upon his admission into McAllen Medical Center; his medical history; how
he was suffering from acute pulmonary edema, uremia, hyperkalemia, and acidosis; and
how he needed urgent hemodialysis. Dr. Kone explained how Dr. Becerra and Dr.
Olivares-Herrera breached applicable standards of care when they failed to get Camacho
hemodialysis and how their breaches of the standards of care led to Camacho’s death.
While Dr. Kone’s report noted that the events that led to Camacho’s death occurred at
McAllen Medical Center, it focused on addressing the conduct of Dr. Becerra and Dr.
Olivares-Herrera.
On December 18, 2017, the Hospital moved to dismiss Gonzalez’s “direct”
negligence claims, if any, on the basis that Gonzalez had not filed an expert report as
required by statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw
through 2017 1st C.S.). At a hearing on the motion, the Hospital argued, in essence, that
(b) An officer or employee of a general hospital may not deny a person in need of
emergency services access to diagnosis by a licensed physician on the hospital staff
because the person cannot establish the person's ability to pay for the services or because
of the person's race, religion, or national ancestry.
(c) In addition, the person needing emergency services may not be subjected to arbitrary,
capricious, or unreasonable discrimination based on age, sex, physical condition, or
economic status.
TEX. HEALTH & SAFETY CODE ANN. § 311.022 (West, Westlaw through 2017 1st C.S.); see also id.
§ 241.003(5) (West, Westlaw through 2017 1st C.S.) (defining general hospital) .
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any direct negligence theories against the Hospital at that time, and in the future, should
be dismissed with prejudice because Gonzalez failed to provide a statutorily compliant
expert report as to any such claims. See id. § 74.351(a). The trial court denied the
Hospital’s motion. This interlocutory appeal followed. See id. § 51.014(a)(9) (West,
Westlaw through 2017 1st C.S.) (authorizing interlocutory appeal of the denial of a motion
to dismiss filed under 74.351(b)).
II. DISCUSSION
A. Standard of Review
We review a trial court’s decision on the sufficiency of an expert’s report and on a
motion to dismiss under the expert-report rule for an abuse of discretion. Jelinek v.
Casas, 328 S.W.3d 526, 539 (Tex. 2010); see TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351. A court abuses its discretion if it acts in an arbitrary or unreasonable manner
and without reference to any guiding rules or principles. Crawford v. XTO Energy, Inc.,
509 S.W.3d 906, 911 (Tex. 2017). “When reviewing matters committed to the trial court’s
discretion, ‘the reviewing court may not substitute its judgment for that of the trial court.’”
Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 512–13 (Tex. 2017)
(quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)).
B. Applicable Law
Section 74.351 of the Texas Civil Practice and Remedies Code provides that a
plaintiff in a health care liability suit must serve the medical defendant with a statutorily-
compliant expert report accompanied by the expert’s curriculum vitae. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351. If a plaintiff fails to do so within 120 days of filing suit,
the trial court must dismiss the claim with prejudice on the defendant’s motion. See id.
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§ 74.351(a), (b)(2). The goal is “to deter frivolous lawsuits by requiring a claimant early
in litigation to produce the opinion of a suitable expert that his claim has merit.” Columbia
Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017) (citing
Scoresby v. Santillan, 346 S.W.3d 546, 552 (Tex. 2011)). Therefore, an expert report is
a low threshold a person bringing a claim against a health care provider must cross merely
to show that his or her claim is not frivolous. Loaisiga v. Cerda, 379 S.W.3d 248, 264
(Tex. 2012).
“A trial court must sustain a challenge to a report’s adequacy if the report does not
represent an objective good faith effort to provide a fair summary of the applicable
standard of care, the defendant’s breach of that standard, and how that breach caused
the patient’s harm.” Miller, 536 S.W.3d at 513 (internal quotation marks omitted); see
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l), (r)(6). “A good-faith effort must ‘provide
enough information to fulfill two purposes: (1) it must inform the defendant of the specific
conduct the plaintiff has called into question, and (2) it must provide a basis for the trial
court to conclude that the claims have merit.’” Miller, 536 S.W.3d at 513 (quoting Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam)). All information
needed for this inquiry is found within the four corners of the expert report, which need
not marshal all of the plaintiff’s proof. Jelinek, 328 S.W.3d at 539 (citing Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 879, 879 (Tex. 2011)).
Two decisions by the Texas Supreme Court—TTHR Ltd. Partnership v. Moreno
and Certified EMS, Inc. v. Potts—have made it clear that the Texas Medical Liability Act
requires a plaintiff to timely file an adequate expert report as to each defendant in a health
care liability claim, but it does not require an expert report as to each liability theory
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alleged against that defendant. TTHR Ltd. P’ship v. Moreno, 401 S.W.3d 41, 44 (Tex.
2013) (“[B]ecause the trial court did not abuse its discretion in finding Moreno’s reports
adequate as to her theory that [the hospital] is vicariously liable for the doctor’s actions,
her suit against [the hospital]—including her claims that the hospital has direct liability
and vicarious liability for actions of the nurses—may proceed.”); Certified EMS, Inc. v.
Potts, 392 S.W.3d 625, 632 (Tex. 2013) (“[W]hen a healthcare liability claim involves a
vicarious liability theory, either alone or in combination with other theories, an expert
report that meets the statutory standards as to the employee is sufficient to implicate the
employer’s theory under the vicarious theory. And if any liability theory has been
adequately covered, the entire case may proceed.”); see, e.g., Bay Oaks SNF, LLC v.
Lancaster, 555 S.W.3d 268, 278–84 (Tex. App.—Houston [1st Dist.] 2018, pet. filed)
(concluding that the expert report satisfied section 74.351’s requirements as to a survival
claim; therefore, the trial court did not abuse its discretion by denying the healthcare
providers’ motion to dismiss the wrongful death claim, and the entire case could proceed);
SCC Partners, Inc. v. Ince, 496 S.W.3d 111, 114–15 (Tex. App.—Fort Worth 2016, pet
dism’d) (providing that “if at least one alleged claim, theory, or cause of action in a
healthcare liability suit has expert support, then the legislative intent of deterring frivolous
suits has been satisfied”); THN Physicians Assoc. v. Tiscareno, 495 S.W.3d 599, 616
(Tex. App.—El Paso 2016, no pet.).2 In other words, the report need not cover every
2 The Hospital cites a prior opinion of this Court in support of its argument that a plaintiff is required
to file an expert report for both direct and vicarious liability claims. See RGV Healthcare Assocs., Inc. v.
Estevis, 294 S.W.3d 264, 270–74 (Tex. App.—Corpus Christi 2009, pet. denied). However, we decided
Estevis before the Supreme Court established that a plaintiff is not required to file an expert report for each
liability theory alleged against a medical defendant, as long as the plaintiff files an adequate expert report
as to one theory of liability against that defendant. TTHR Ltd. P’ship v. Moreno, 401 S.W.3d 41, 44 (Tex.
2013); Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013). We follow the precedent the Texas
Supreme Court has established. City of New Braunfels v. Stop the Ordinances Please, 520 S.W.3d 208,
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alleged liability theory to make the defendant aware of the conduct that is at issue, nor is
it required for the report to include “litigation-ready” evidence. Potts, 392 S.W.3d at 630–
31 (citing Palacios, 46 S.W.3d at 879); see Ince, 496 S.W.3d at 114–15.
C. Analysis
On appeal, the Hospital argues that Gonzalez pleaded direct liability claims and
that the trial court erred when it did not dismiss them. Specifically, the Hospital points to
Gonzalez’s claims regarding (1) the Hospital’s alleged nondelegable duty3 and (2) the
Hospital’s own negligence and gross negligence. The Hospital presents several
arguments in support of its assertion that these “direct” claims should have been
dismissed.
1. “No Report”
First, the Hospital argues that “no report” was filed as to the direct liability claims
because Dr. Kone’s report did not “implicate” the Hospital. The Hospital argues the report
focuses on the actions of non-party physicians—Dr. Becerra and Dr. Olivares-Herrera—
and that the report “failed to name the Hospital, let alone address the standard of care,
breach, or causation attributable to the direct liability allegations.”
224 (Tex. App.—Austin 2017, pet. denied); Capetillo v Crosby Cty. Fuel Ass’n, 407 S.W.2d 335, 337 (Tex.
App.—Amarillo 1966, no writ).
3 A claim brought against a party based on a nondelegable duty is one of vicarious liability, not
direct. See MBank El Paso, N.A. v. Sanchez, 836 S.W.2d 151, 153–54 (Tex. 1992); Alamo Nat’l Bank v.
Kraus, 616 S.W.2d 908, 910–11 (Tex. 1981); Bond v. Otis Elevator Co., 388 S.W.2d 681, 685–86 (Tex.
1965) (op. on reh’g). If a statute imposes a nondelegable duty on a party, the party is liable for acts violating
the duty even if the duty was performed by an independent contractor. Fifth Club, Inc. v. Ramirez, 196
S.W.3d 788, 795–95 (Tex. 2006); see MBank El Paso, 836 S.W.2d at 153; see also RESTATEMENT (SECOND)
OF TORTS § 424. “A duty is nondelegable when it ‘is imposed by law on the basis of concerns for public
safety.’” Ramirez, 196 S.W.3d at 795 (quoting MBank El Paso, 836 S.W.2d at 153); Edwards v. Hammerly
Oaks, Inc., 908 S.W.2d 270, 273 (Tex. App.—Houston [1st Dist.] 1995), aff’d as modified, 958 S.W.2d 385(Tex. 1997).
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However, as previously noted, an expert report that adequately addresses at least
one pleaded liability theory against a defendant is enough to defeat that defendant’s
motion to dismiss under the expert report rule, Moreno, 401 S.W.3d at 44; Potts, 392
S.W.3d at 632, and the Hospital does not argue that Dr. Kone’s report did not satisfy the
statute as to Gonzalez’s vicarious liability claims. On the contrary, the record indicates
that the Hospital conceded that Dr. Kone’s expert report satisfied the statute as to the
vicarious liability claims.4 When a health care liability claim involves a vicarious liability
theory, either alone or in combination with other theories, and there is an expert report
sufficient to support that vicarious liability theory, the entire case may proceed past a
motion to dismiss based on the expert report rule. E.g., Moreno 401 S.W.3d at 45; Potts,
392 S.W.3d at 632. Therefore, we reject the Hospital’s argument that the trial court erred
in denying its motion to dismiss Gonzalez’s direct liability claims.
2. Sufficiency
Next, the Hospital challenges the denial of its motion to dismiss the direct liability
claims on the basis that the expert report did not include the standard of care, breach,
and causation for the direct liability claims—i.e., as to the Hospital itself. However, the
statute provides that a medical defendant must object to an expert report’s sufficiency
regarding the standard of care, breach of the standard of care, and causation of the
plaintiff’s injuries no later than twenty-one days after service. TEX. CIV. PRAC. & REM.
4 For vicarious liability claims, a report that adequately implicates the actions of that party’s agents
or employees is sufficient. Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per
curiam). At the hearing on the Hospital’s motion to dismiss, the Hospital’s counsel stated: “Your Honor,
we ask that any direct liability claims be dismissed as to the hospital. Vicarious liability claims, Your Honor,
that we believe there’s no legal basis for that either, but at this point we’ll proceed with those and we’ll
provide the evidence that they’re not under control of the hospital at a later date. But for this point, that’s
the basis for the Motion to Dismiss.”
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CODE ANN. § 74.351(a). A defendant who fails to do so waives “all” objections to the
report. Id.; see Ogletree, 262 S.W.3d at 322. Furthermore, the statute does not require
dismissal of deficient but curable reports. Ogletree, 262 S.W.3d at 320. If a report is
deficient, the plaintiff should be given thirty days to file an amended report to cure the
deficiency. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c).
Here, the Hospital’s objections regarding the standard of care, breaches thereof,
and causation as to the Hospital itself are directed to the report’s sufficiency, and they
could have been brought within the statutory twenty-one-day period, as required. See id.
§ 74.351(a); Hebner v. Reddy, 498 S.W.3d 37, 44 (Tex. 2016); Ogletree, 262 S.W.3d at
322; Gardner, 274 S.W.3d at 671 (concluding that report’s failure to comply with Chapter
74 regarding the element of causation rendered the report defective rather than no
report). Gonzalez served the Hospital with Dr. Kone’s report on October 20, 2017, and
the Hospital filed its motion to dismiss on December 18, 2017. Therefore, the hospital
waived its objections to the report’s sufficiency because they were not raised within
twenty-one days of receiving Dr. Kone’s report. Ogletree, 262 S.W.3d at 322; Houston
Methodist Hosp. v. Nguyen, 470 S.W.3d 127, 130 (Tex. App.—Houston [14th Dist.] 2015,
pet. denied); Troeger v. Myklebust, 274 S.W.3d 104, 110 (Tex. App.—Houston [14th Dist.]
2008, pet. denied). We also note that an expert report is not required to identify a
standard of care breached by a hospital if the theory of liability against the hospital is
vicarious and based on the actions of the hospital’s physicians. Nguyen, 470 S.W.3d at
130; see Thilo Burzlaff, M.D., P.A. v. Weber, No. 04-17-00520-CV, __ S.W.3d __, __,
2018 WL 1176378, at *7 (Tex. App.—San Antonio Mar. 7, 2018, no pet.) (“Part of the
reason an expert report is not required for the vicariously liable party is that the elements
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of a Chapter 74 report relating to standards of care and causation cannot be applied to
vicarious liability that is based on respondeat superior or partnership principles rather
than direct allegations of negligence.”); Univ. of Med. Branch at Galveston v. Qi, 370
S.W.3d 406, 413 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Dale, 188 S.W.3d at
879.
We reject the Hospital’s argument based on the sufficiency of Dr. Kone’s report.
3. Independent Contractor
Next, the Hospital attempts to distinguish this case from the Texas Supreme
Court’s decisions in Moreno and Potts, which concluded that an expert report is not
required for each pleaded theory of liability. Moreno, 401 S.W.3d at 44; Potts, 392 S.W.3d
at 632. The Hospital argues those decisions are inapplicable because the doctors at
hand are independent contractors and the supreme court used the words “employee” and
“employer” in Potts, while the nurses in Moreno “were clearly employees of the hospital.”
See Moreno, 401 S.W.3d at 43–44; Potts, 392 S.W.3d at 632. Therefore, according to
the Hospital, the trial court should have dismissed the direct claims because the
physicians in questions were independent contractors. The Hospital’s argument is
misplaced.
In Texas, it is well settled that a hospital is generally not vicariously liable for the
acts or omissions of a physician who is an independent contractor. Columbia Rio Grande
Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009); Columbia Med. Ctr. v.
Hogue, 271 S.W.3d 238, 247 (Tex. 2008); Kimbrell v. Memorial Hermann Hosp. Sys., 407
S.W.3d 871, 876 (Tex. App.—Houston [14th Dist.] 2013, no pet.). However, this is not a
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proper basis for dismissing a health care liability claim under the expert report rule.5 See
TEX. CIV. PRAC. & REM. CODE. ANN. § 74.351; Hebner, 498 S.W.3d at 40 (quoting
Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011)) (“The Texas Medical Liability
Act aims to ‘identify and eliminate frivolous healthcare liability claims expeditiously, while
preserving those of potential merit.’”); Potts, 392 S.W.3d at 631 (noting that, “while a full
development of all liability theories may be required for pretrial motions or to convince a
judge or jury during trial, there is no such requirement at the expert report stage”);
Scoresby, 346 S.W.3d at 552. In other words, the purpose of the statutorily mandated
expert report is not to prove liability, but rather to simply show that a medical liability claim
is not baseless before allowing the claim to proceed to discovery. See Potts, 392 S.W.3
at 631–32 (noting that the Legislature’s intent in enacting the expert report requirement
was to demonstrate to the trial court that the plaintiff has “at least one viable liability
theory”).
The cases cited by the Hospital in support of its argument make it clear that the
Hospital can negate liability based on the physician’s independent contractor status either
at trial or in a motion for summary judgment. See Columbia Rio Grande Healthcare, L.P.
v. Hawley, 284 S.W.3d 851, 862–65 (Tex. 2009) (jury charge); Drennan v. Cmty. Health
Inv. Corp., 905 S.W.2d 811, 818–19 (Tex. App.—Amarillo 1995, writ denied) (summary
judgment); Berel v. HCA Health Servs. of Tex., Inc., 881 S.W.2d 21, 23–26 (Tex. App.—
Houston [1st Dist.] 1994, writ denied) (summary judgment). And the Hospital cites no
authority in support of its argument that a claim against a Hospital can be dismissed at
the expert-report stage due to the independent contractor status of the physician
5 At oral argument before this Court, the Hospital agreed that the employment status of the
attending physicians is not a proper reason to dismiss Gonzalez’s claims at the expert report stage.
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responsible for the plaintiff’s injuries. Accordingly, we reject the Hospital’s argument that
the trial court should have dismissed Gonzalez’s direct claims because the doctors in
question may have been independent contractors.
4. Discovery
Finally, the Hospital argues that the direct claims should have been dismissed
because, otherwise, it would provide a loophole by allowing plaintiffs to conduct discovery
regarding their direct claims without first providing a statutory-compliant report as to those
claims. The Hospital argues that “Dr. Kone’s expert report is a veiled attempt to
investigate healthcare liability claims that have not been asserted.” Again, this argument
is misplaced.
The Texas Medical Liability Act requires the plaintiff to serve an expert report at
the outset of litigation and before the opportunity to engage in significant discovery,
including taking oral depositions of the defendants and its agents. Mangin, 480 S.W.3d
at 713; see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (stating that an expert report
must be served no later than 120 days after the defendant’s answer is
filed); id. § 74.351(s) (limiting discovery until after the plaintiff serves the medical
defendant with the expert report). As such, the Texas Supreme Court has noted that it
may be difficult for a plaintiff to know every viable liability theory within 120 days of filing
suit. Potts, 392 S.W.3d at 632; Lancaster, 555 S.W.3d at 279. Furthermore, the statute
itself contemplates that the amount and quality of evidence available at the time of drafting
the expert reports will be less than that available at trial on the merits or even the summary
judgment stage. Mangin, 480 S.W.3d at 713; cf. Wright, 79 S.W.3d at 52 (noting that the
report “need not marshal all the plaintiff’s proof”); Palacios, 46 S.W.3d at 878 (same).
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“Through the discovery process, a claimant can ‘refine [his or her] pleadings to
abandon untenable theories and pursue supported ones,’ and a defendant may move for
summary judgment to dispose of a claim that lacks evidentiary support.” Lancaster, 555
S.W.3d at 279 (quoting Potts, 392 S.W.3d at 632). Carving out causes of action—i.e.,
alternative theories of liability—at the beginning of the suit before discovery has occurred
would essentially require plaintiffs to meet summary judgment standard of proof at the
expert-report stage, which the Texas Supreme Court has repeatedly rejected. Ince, 496
S.W.3d at 115; see Potts, 355 S.W.3d at 630–31; Palacios, 46 S.W.3d at 879. Requiring
an expert report each time a plaintiff discovers a liability theory would “be impractical,”
and this requirement would “prohibit altogether those theories asserted more than 120
days after the original petition was filed—effectively eliminating a claimant’s ability to add
newly discovered theories.” Lancaster, 555 S.W.3d at 279 (quoting Potts, 392 S.W.3d
at 632). This would go beyond the purpose of the medical liability act and would provide
for the disposal of claims that are not baseless. Because this is an interlocutory appeal,
our disposition does not end the litigation but instead returns the parties to the district
court to proceed to trial on the merits or avail themselves of other procedural avenues for
seeking dismissal if there is evidence conclusively showing that the wrong party has been
sued or that liability is negated. See Mangin, 480 S.W.3d at 714; see also, e.g., TEX. R.
CIV. P. 166a. The Hospital cites no authority for the proposition that a plaintiff in a medical
liability suit must plead all theories of liability at the expert report stage, and we find none.
Therefore, we reject this argument.
5. Summary
After rejecting all of the Hospital’s arguments, we overrule its sole issue.
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III. CONCLUSION
We affirm the trial court’s order.
DORI CONTRERAS
Justice
Delivered and filed the 28th
day of December, 2018.
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