Texarkana Nursing & Healthcare Center, LLC v. Susan Lyle, Independent Guardian of Betty Ruth Vest , 2012 Tex. App. LEXIS 10363 ( 2012 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
_________________________
No. 06-12-00067-CV
______________________________
TEXARKANA NURSING & HEALTHCARE CENTER, LLC, Appellant
V.
SUSAN LYLE, INDEPENDENT GUARDIAN OF BETTY RUTH VEST, Appellee
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 11C1230-202
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Carter
OPINION
I. Background
Betty Ruth Vest was a resident of Texarkana Nursing & Healthcare Center, L.L.C.
(Texarkana Nursing) from 2003 until September 2011, when she passed away. 1 From the time
of her admission, Vest was dependent on the nursing home staff for all of her care. It is alleged
that on July 31, 2009, while under the care of the Texarkana Nursing staff and while receiving
hospice care, Vest was assaulted by Mary Bean, an L.V.N. employed by Texarkana Nursing.
The assault allegedly left scratches on Vest’s forehead, cuts on her left leg, knots on the sides of
her head, and caused bruising and swelling of her left eye. Vest recovered from the assault. 2
Bean was arrested and charged with assault.
In July 2011, Susan Lyle, Vest’s daughter and independent guardian, sued Texarkana
Nursing 3 alleging Vest was assaulted by Bean in July 2009 and was injured as a result. Lyle
pleads that the claims “by Plaintiff against Defendants fall within the scope of Chapter 74 of the
Texas Civil Practice and Remedies Code.” This assertion is incorporated into each theory of
liability thereafter set forth in the petition. Lyle claims Texarkana Nursing is vicariously liable
for the alleged negligence of its employees. Lyle further alleges Texarkana Nursing was directly
responsible for the assault due to negligent supervision, negligent hiring, failure to hire and
1
Lyle died in September 2011, after the petition was filed in July 2011.
2
While Lyle does not claim Vest died as a result of the assault, the prayer for relief is phrased in terms of the
“wrongful death beneficiaries of BETTY RUTH VEST.”
3
Ann Yeager Ellisor (the nursing home administrator) was also a named defendant in the lawsuit. The claim against
Ellisor was nonsuited.
2
provide sufficient staff, and failure to allocate sufficient financial resources to the facility. The
petition also alleges a direct negligence claim against Texarkana Nursing based on the failure to
provide a safe environment for its residents.
Lyle provided an expert report from Milton D. Shaw, M.D., C.M.D. 4 In response,
Texarkana Nursing filed a motion to dismiss for failure to provide an adequate expert report in
accordance with Section 74.351(a) and (b) of the Texas Civil Practice and Remedies Code. TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(a), (b) (West 2011). The trial court denied the motion
to dismiss. On appeal of this interlocutory order, Texarkana Nursing alleges that (1) the trial
court erred in denying its motion to dismiss Lyle’s direct liability claims, and (2) the trial court
erred in denying its motion to dismiss Lyle’s vicarious liability claims.
II. Applicable Law and Standard of Review
Chapter 74 of the Texas Civil Practice and Remedies Code requires a health care liability
claimant to serve on each party one or more expert reports, together with a curriculum vitae of
each expert, no later than 120 days after the original petition is filed. TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(a). An expert report is
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.
4
Shaw is board certified in internal medicine and is certified by the American Medical Directors Association as a
medical director. Shaw is the medical director of the geriatrics and extended care program at the Veterans
Administration (VA) Hospital in Kerrville and is assistant clinical professor of medicine at the University of Texas
Medical School at San Antonio. Shaw is the medical director of two private community nursing homes in Kerrville,
separate from his VA practice.
3
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (West 2011). A motion to dismiss is
properly granted if it appears that the report does not represent a good-faith effort to comply with
subsection (r)(6) or is not sufficiently specific “to provide a basis for the trial court to conclude
that the claims have merit.” Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d
873, 875 (Tex. 2001); see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). A report that
merely states the expert’s conclusions regarding the standard of care, breach, and causation is
deficient. See Palacios, 46 S.W.3d at 879. “[T]he expert must explain the basis of his
statements to link his conclusions to the facts.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52
(Tex. 2002) (per curiam). A motion challenging the adequacy of an expert report shall be
granted if the report “does not represent an objective good faith effort to comply” with the
statutory definition of an expert report. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l) (West
2011). A “good faith effort” is one that (1) provides information sufficient to inform the
defendant of the specific conduct called into question and (2) enables the trial court to conclude
the claims have merit. Wright, 79 S.W.3d at 52.
We review a trial court’s ruling on a motion to dismiss for an abuse of discretion. Id.;
Goforth v. Bradshaw, 296 S.W.3d 849, 851 (Tex. App.—Texarkana 2009, no pet.). A trial court
abuses its discretion when it acts arbitrarily or unreasonably or without reference to any guiding
rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). A trial court has no
discretion, however, in correctly analyzing and applying the law. Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992).
4
III. Analysis
A. Shaw’s Report is Deficient, but Not Silent, with Respect to Direct Liability
Claims
Texarkana Nursing argues that Shaw’s report is silent with respect to the pled claims of
direct liability. Texarkana Nursing characterizes the categories of direct negligence listed in the
petition as negligence in hiring, staffing levels, supervision of personnel, provision of financial
resources, and failing to comply with the Code of Federal Regulations. 5
Shaw’s report states that Vest “was assaulted by Mary Ann Bean, an L.V.N. at the
nursing facility, resulting in injuries to Mrs. Vest, including a 1 inch scratch to the forehead,
bilateral contusions with swelling to the forehead, left periorbital ecchymosis, and contusion with
ecchymosis to the left lower leg.” 6
The report includes one paragraph addressing the standard of care, as follows:
The standard of care for a long term care facility and its staff requires that the
facility in question provide that level of care and treatment that a reasonable,
prudent, similar facility would provide under the same or similar circumstances.
The facility must provide the necessary care and services to attain or maintain the
highest practicable physical, mental, and psychosocial wellbeing possible. To do
5
The allegations fall variously under the categories listed in the petition as “Negligence,” “Negligence Resulting in
Health Care Liability Claims,” “Negligence Per Se,” and “Violation of Penal Code § 22.04.” Pled claims include:
the failure to allocate sufficient financial resources to Texarkana Nursing for residents’ needs to be met, resulting in
the mistreatment, abuse, and neglect of Vest; the failure to use reasonable care in treating residents with the degree
of skill and learning ordinarily possessed and used by nursing home facilities in the same or similar locality; the
failure to assist all residents, including Vest, in attaining and maintaining the highest practicable level of physical,
mental, and psychosocial well-being; the failure to properly supervise nurses and aides; the failure to provide
sufficient nurses and aides; the failure to ensure that Vest received timely and accurate care assessments and
necessary supervision; various violations of the Code of Federal Regulations; and violation of Section 22.04 of the
Texas Penal Code (injury to elderly individual). TEX. PENAL CODE ANN. § 22.04 (West Supp. 2012).
6
Ecchymosis is “[t]he passage of blood from ruptured blood vessels into subcutaneous tissue, marked by a purple
discoloration of the skin.” Ecchymosis Definition, TheFreeDictionary.com,
http://www.thefreedictionary.com/ecchymosis (last visited Dec. 10, 2012).
5
so also requires that the nursing facility provide a safe environment for its
residents, insofar as it is possible.
Shaw further opines:
In the case of Ms. Vest, Texarkana Nursing and Healthcare Center clearly did not
provide a safe and secure environment for its residents, allowing the documented
assault of Ms. Vest by one of its own employees. In this regard, Texarkana
Nursing and Healthcare Center breached its responsibility to Ms. Vest and her
family, resulting in injury to the resident.
Shaw concludes that “Texarkana Nursing and Healthcare Center failed to provide a safe
environment for Ms. Vest, resulting in her assault and injury at the hands of an employee of the
facility.”
(1) Standard of Care and Breach
Even though our analysis is confined to the four corners of the report, the report must be
read in conjunction with the pleadings to determine if it provides a basis for Lyle’s claims. See
Palacios, 46 S.W.3d at 878. The report states that the applicable standard of care requires
Texarkana Nursing to “provide the necessary care and services to attain or maintain the highest
practicable physical, mental, and psychosocial wellbeing possible.” This standard includes,
insofar as it is possible, the duty to “provide a safe environment for . . . residents.” Shaw opines
that Texarkana Nursing breached the standard of care by allowing the “documented assault on
Ms. Vest by one of its own employees.” The resulting injuries are listed in the report.
Texarkana Nursing initially takes issue with Shaw’s opinion addressing the need to
provide Vest with a “safe environment” because it is not a pled claim. Even though not pled in
this precise language, the petition alleges a breach of the nondelegable duty to assist Vest in
6
attaining and maintaining “the highest practicable level of physical, mental, and psychosocial
well being.” As Shaw opines, the provision of a safe environment is required in order to fulfill
this duty. See Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525, 527 (Tex. 2011)
(per curiam) (“services a [health care provider] provides its patients necessarily include those
services required to meet the patients’ fundamental needs such as . . . safety”).
Texarkana Nursing further complains of the inadequacy of the stated standard of care,
because it does not indicate what Texarkana Nursing should have done differently, citing Russ v.
Titus Hospital District, 128 S.W.3d 332, 341–42 (Tex. App.—Texarkana 2004, pet. denied)
(“[w]hether a defendant breached his or her duty to a patient cannot be determined absent
specific information about what the defendant should have done differently”) (quoting Palacios,
46 S.W.3d at 880). 7 In other words, one must be able to determine from the report what was
required by the standard of care. This requires “specific information about what the defendant
should have done differently.” Palacios, 46 S.W.3d at 880. Here, we have a generic statement
that the nursing facility must provide a safe environment. Texarkana Nursing maintains this is
insufficient.
Conversely, Lyle contends that the report meets the criteria set out in Chapter 74.
According to Lyle, the report sets forth the standard of care, requiring the facility to provide the
level of care and services necessary for Vest to maintain and attain the highest level of well-
7
Russ involved an allegedly deficient report regarding a hospital’s duty to keep a suicidal patient from injuring
herself. In that case, the patient sustained injuries from a fall out of a hospital window. This Court held that the
statement “that windows [must] either be secured with metal screens that only staff can open, or be locked” or, “[i]f
the patient has access to the window, a special difficult to break glass or Plexiglass should be used” was sufficient to
apprise the hospital of what it should have done differently in light of the fact that the hospital placed the patient in a
fourth-floor room with unlocked windows. Russ, 128 S.W.3d at 342.
7
being possible, thus necessitating the provision of an environment safe for residents. Lyle
defends the breach and causation sections of the report in reliance on UHS of Timberlawn, Inc. v.
S.B. ex rel. A.B., 281 S.W.3d 207 (Tex. App.—Dallas 2009, pet. denied). In that case, a thirteen-
year-old patient at Timberlawn’s psychiatric treatment facility was placed in a ward with male
patients, where one of them allegedly raped her. The patient claimed her injuries were
proximately caused by the negligence of Timberlawn’s employees and submitted an expert
report in support of her claims. Timberlawn claimed the report was inadequate and conclusory
on the issue of causation. This complaint was based on the premise that the expert did not opine
that the patient was actually raped, and, thus, could not identify the alleged causal relationship
between Timberlawn’s alleged negligence and the patient’s injury. In rejecting this premise, the
court distinguished health care liability claims in which “the ‘injury, harm, or damages claimed’
flow from the existence of a medical condition that itself resulted from the breach of the
applicable standard of care.” Id. at 212. In such a case,
[I]dentifying the causal relationship between the alleged breach of the standard of
care and the resulting harm involves not only an explanation as to how the
standard of care was breached, but also how the breach gave rise to the new,
deleterious medical condition. Similarly, other healthcare liability claims may
allege that a breach of the applicable standard of care exacerbated a pre-existing
medical condition, or hindered or prevented the effective treatment of such a
condition. Identifying the “breach/injury” causal relationship in these cases may
well require an expert to opine as to the existence, extent, and prognosis of the
pre-existing medical condition, as well as how the alleged breach of the standard
of care aggravated such a condition, impeded or prohibited its treatment, and
otherwise affected the patient’s prognosis.
However, S.B.’s claim is different. S.B. alleges that, as a result of Timberlawn’s
failure to meet the applicable standards of care relevant to its treatment of her, she
was raped. Rape is not a medical condition. It is an assault. Moreover, rape may
8
-- or may not -- be accompanied by medically ascertainable evidence of physical
trauma, or even physical evidence that it occurred.
Id. The court, therefore, declined to hold that the causation element of the report was required to
include an opinion that the patient was in fact raped. Id.
This case is different from Timberlawn inasmuch as Texarkana Nursing is not claiming
that the report fails to state that Vest was, in fact, assaulted. There is no dispute that Vest was
assaulted; the assault was photographically documented. 8 Instead, Texarkana Nursing claims the
mere statement that it failed to provide a safe environment is an insufficient statement of the
breach of the standard of care, because it does not indicate what should have been done
differently. In contrast, the Timberlawn report stated that housing the patient
in the male unit exposed [the patient] to harm which resulted in her self reported
rape. Had [S.B.] been housed in a safe and appropriate manner, given her
propensity for sexual victimization, she would not have been placed in a male
unit. By being housed in a male unit it was foreseeable that [S.B.] would be
exposed to and was at higher risk for the exact self reported harm which she
suffered . . . .
Id. at 214. The report made clear the specific conduct called into question and provided a
sufficient basis for the trial court to conclude that the claim had merit. Id. at 215.
In this case, however, the report indicates that Texarkana Nursing failed to provide “a
safe and secure environment for its residents, allowing the documented assault of Ms. Vest by
8
Shaw’s report indicates he reviewed the following records in conjunction with issuing his report:
1) Nursing Home Records from Texarkana Nursing and Healthcare Center
2) Affidavit from the Texas Board of Nursing
3) Offense Report by Officer Steven G. Womack
4) Pictures of Mrs. Vest taken by her daughter
5) Arrest Report of Mary Elliott Bean.
9
one if its own employees.” In other words, the assault itself is the breach of the standard of care,
which requires the provision of a safe and secure environment for nursing home residents. This
statement does not, however, advise Texarkana Nursing of what should have been done in order
to prevent its employee from assaulting Vest.
The question boils down to one of how much detail is needed in order for an expert report
to withstand Chapter 74 scrutiny when the harm alleged arises from assaultive conduct. Lyle
points to Christus Spohn Health System Corp. v. Sanchez, 299 S.W.3d 868 (Tex. App.—Corpus
Christi 2009, pet. denied), in support of her contention that the report is sufficient. Sanchez
involved an action against a hospital and hospital employees in their individual capacities for
assault and intentional infliction of emotional distress. Sanchez was an I.C.U. patient when a
registered nurse and a certified nurse’s assistant allegedly entered her room and made unwanted
sexual advances toward her. Sanchez alleged that one of the men undressed her and exposed her
body for the other to see. She further claimed that they turned her over using their hands instead
of a turning pad and, while they were moving her from the bed to a chair in her room, they
danced with her. Sanchez alleged that during these physical contacts, the nurse and nurse’s
assistant made sexual overtures and comments and that the improper conduct continued until she
was discharged from the hospital a few days later. Id. at 872.
Sanchez sued the hospital for negligent hiring, supervision, training, and retention of its
employees and vicarious liability for the conduct of its employees. Relevant to this case,
Sanchez’s expert report was attacked on the basis that it did not adequately set forth the standard
of care and/or safety and breach because the report was alleged to be conclusive and speculative.
10
Id. at 877. Spohn further argued that the report failed to provide specific information about what
it should have done differently. The report stated, in relevant part, that the “standard of care
requires that the hospital and its nursing staff provide adequate supervision to their certified
nursing assistants and licensed nursing personnel.” The report further stated that the “standard of
care requires that the hospital and its nursing staff protect their patients from sexual harassment
and abuse.” Id.
The court concluded that the report identified the care that was expected, but not rendered
under the applicable standard of care, because it states the hospital “[f]ailed to provide adequate
supervision to the [certified nurse’s assistant] and the [registered nurse],” “[f]ailed to protect
Ms. Sanchez from sexual harassment and sexual abuse,” and “[f]ailed to provide safety to
Ms. Sanchez in her immediate post operative [sic] when the [certified nurse’s assistant] lifted
Ms. Sanchez up and began dancing with her.” Id. The court found that this report put the
hospital on notice of the specific, complained-of conduct. Id.
In this case, unlike Sanchez, the report simply states that Texarkana Nursing failed to
provide a safe and secure environment for Vest. In Sanchez, however, the report stated that the
hospital was required to provide adequate supervision of its certified nursing assistants and
licensed nursing personnel, to protect its patient from sexual harassment and abuse, and to keep
the patient safe. Granted, this is not much more detail than we have in this case, but Sanchez
may be close to the line of what is permissible.
11
For example, Baylor All Saints Medical Center v. Martin, 340 S.W.3d 529 (Tex. App.—
Fort Worth 2011, no pet.), involved an alleged sexual assault on a patient in her hospital room.9
The hospital objected to the sufficiency of the patient’s expert report. The report in question
articulates the standard of care as follows:
A hospital such as Baylor All Saints Medical [C]enter is expected to adhere to
specific standards of care in regard to all of its patients. A bedrock principal [sic]
in providing care to its patients is the understanding that all of a hospital’s patients
by nature of their disease or injury are potentially vulnerable and necessarily need
to receive treatment in a safe and secure environment. The Joint Commission on
Accreditation of Health Care Organizations (JCAHO) has established in its
Hospital Standards that all healthcare organizations must have in place policies
which safeguard patients from assault by hospital staff and by strangers that enter
the hospital. The JCAHO requires that hospitals adequately implement these
standards, and monitor this implementation. The JCAHO patient security and
safety expectations would require at a minimum that hospitals should employ a
sufficient number of security personal [sic] to insure that no unauthorized persons
enter patients[’] rooms and physically assault their patients. Additionally, the
JCAHO standards would expect that all hospital staff should be trained to identify
persons that are not authorized to enter patients[’] rooms and should monitor and
prevent unauthorized persons from having access to patients receiving treatment
at the hospital.
Id. at 533–34. The court determined this to be an insufficient statement of the standard of care.
For example, the report stated that there must be policies in place to safeguard patients from
assault, including employing a sufficient number of security personnel. The court wrote that this
statement failed to indicate what specific policies and safeguards should have been in place.
Further, the “‘policies in place to safeguard patients’ are not identified.” Id. at 534. The number
of security personnel needed and the training the staff should have received is not described. Id.
This report failed in light of the required standard, i.e., “what an ordinary prudent hospital would
9
The Martin opinion does not indicate whether the assault was committed by a hospital employee, another patient, or
some other third party.
12
do under the same or similar circumstances,” and “even a fair summary must set out what care
was expected.” Id. (citing Palacios, 46 S.W.3d at 880). 10
Kingwood Pines Hospital, LLC v. Gomez, 362 S.W.3d 740 (Tex. App.—Houston [14th
Dist.] 2011, no pet.), further illustrates the need for detail when an expert offers opinions
regarding patient safety. In that case, a patient of Kingwood Pines Hospital was sexually
assaulted by another patient. Gomez offered an expert report indicating a failure “to ensure that
there were appropriately trained and adequate staffing and millieu structure such that a young
girl . . . would not be sexually molested.” The report stated that the standard of care was
breached when the physician failed to insure her patient’s safety using “any of the number of
measures available,” by failing to “provide additional supervision” and not affording the patient
“the most basic supervision.” Id. at 750. The report further indicated that (the physician) was
required “to insure her patients are being treated in a safe and secure environment by being
aware of the environment, patient population, and safety measures taken by the hospital.” Id. at
749. In concluding the report was conclusory, the court noted that it did not provide information
about how the physician was to insure that the hospital was adequately staffed and that staff
members were appropriately trained or what measures were available to insure the patient’s
10
The court also addressed Martin’s claim that the report was all that could be done at the time in light of the fact
that Section 74.351(s) only allows discovery of medical records and billing records, which do not contain the
circumstances surrounding the assault and hence provide no discovery as to whether security standards were met.
The court wrote that this was a misreading of the discovery allowed under Section 74.351(s). Because assaults in
health care settings are covered by Section 74.351, said the court (Martin, 340 S.W.3d at 534 (citing Diversicare
Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005))), logically, discovery of the hospital’s policies and
procedures regarding the protection of patients from assault must be covered by Section 74.351(s). Martin, 340
S.W.3d at 534.
13
safety. Further, the report did not indicate what kind of supervision by the hospital was
sufficient to provide a secure environment for the patient. Id. at 750.
In this case, the only direct negligence claim addressed in Shaw’s report is that of failing
to provide Vest with a safe and secure environment. Because the report fails to articulate what
Texarkana Nursing should have done differently to prevent the assault, it is deficient with respect
to articulation of the standard of care and its breach.
(2) Causation
Texarkana Nursing further contends that Shaw’s report is deficient in that it fails to set
forth the causal relationship between Texarkana Nursing’s alleged deviations from the standard
of care and Vest’s injuries. The report does, however, indicate that Texarkana Nursing breached
its responsibility to Vest in allowing the documented assault of Vest by one of its own
employees, resulting in injury to Vest. The resulting injuries are described. Lyle maintains that
this is a sufficient statement of causation under Timberlawn. After all, assault is not a medical
condition. Conversely, if the report is not sufficiently detailed in its statement of the standard of
care and breach, and, thus, fails to advise Texarkana Nursing of what it should have done
differently to provide a safe and secure environment for Vest, then it logically follows that
causation should be described in terms of the specific shortcomings that created a situation in
which assault could occur.
B. Deficiencies Regarding Direct Liability Are Curable
Texarkana Nursing contends that because the report does not address the pleaded cause
of action, it does not constitute a good-faith effort to comply with the statutory requirements and
14
should, therefore, be dismissed in reliance on Windsor v. Maxwell, 121 S.W.3d 42, 51 (Tex.
App.—Fort Worth 2003, pet. denied) (to inform defendant of specific conduct plaintiff has called
into question, report must support cause of action alleged by plaintiff in its pleadings). Here, as
previously discussed, the report does address the claim that Texarkana Nursing had a duty to
assist Vest in attaining and maintaining “the highest practicable level of physical, mental, and
psychosocial well being.” Implicit in this duty is the provision of a safe and secure environment.
See Harris Methodist Fort Worth, 342 S.W.3d at 527. The report, albeit in a conclusory manner,
addresses this claim.
Because the report is deficient with respect to Lyle’s direct liability claim regarding the
failure to provide a safe and secure environment for Vest, the trial court should be permitted the
opportunity to consider whether to grant a thirty-day extension to cure the deficiencies. See TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(c) (West 2011); 11 Leland v. Brandal, 257 S.W.3d 204,
207 (Tex. 2008); Longino v. Crosswhite, 183 S.W.3d 913, 918 n.2 (Tex. App.—Texarkana 2006,
no pet.); see also Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011) (trial court should err
on side of granting additional time and must grant it if deficiencies are curable). 12 Because at
least three of Lyle’s direct liability claims necessarily relate to the provision of a safe
11
Section 74.351 of the Texas Civil Practice and Remedies Code states, “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.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(c).
12
Scoresby involved a letter report that failed to state the standard of care but implied that it was inconsistent with
the physicians’ conduct. Even so, the report contained the opinion of an individual with expertise that the claim had
merit and implicated the defendants’ conduct. This minimal standard is met here as well. The report is written by
an individual with expertise, implicates the conduct of Texarkana Nursing, and indicates that the claim has merit.
Scoresby, 346 S.W.3d at 557.
15
environment, they are not completely unaddressed, and we decline to find that such claims
should be dismissed. 13 See Querry v. Sanders, No. 06-08-00099-CV, 2009 WL 1097904, at *7
(Tex. App.—Texarkana Apr. 24, 2009, no pet.) (mem. op.) (report which wholly failed to
address alleged negligence in failing to properly identify and isolate main bile duct before
initiating main procedure not curable deficiency).
C. Shaw’s Report Fails to Address Vicarious Liability Claims
Lyle’s petition alleges that Texarkana Nursing has “vicarious liability for the acts and
omissions of all persons or entities under their control, either directly or indirectly, including
employees, agents, consultants, and independent contractors, whether in-house or outside
entities, individuals, agencies, or pools causing or contributing to the injuries of BETTY RUTH
VEST.” “When a party’s alleged health care liability is purely vicarious, a report that adequately
implicates the actions of that party’s agents or employees is sufficient.” Gardner v. U.S.
Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per curiam). Thus, if the report identifies
conduct by Texarkana Nursing’s employee, Texarkana Nursing is implicated. As long as the
report adequately addresses the standard of care applicable to the employee, how the employee
breached the standard of care, and that the breach caused the plaintiff’s injury, it is sufficient as
against Texarkana Nursing to satisfy the expert report requirement for the vicarious liability
claims. See RGV Healthcare Assocs., Inc. v. Estevis, 294 S.W.3d 264, 273 (Tex. App.—Corpus
Christi 2009, pet. denied).
13
Lyle alleges that Texarkana Nursing was negligent in terms of hiring, staffing levels, supervision of personnel,
provision of financial resources, and in failing to comply with the Code of Federal Regulations.
16
Lyle pled that the staff of Texarkana Nursing did not provide Vest with timely and
accurate care assessments and necessary supervision; failed to use reasonable care in treating
residents with the degree of skill and learning ordinarily possessed and used by nursing home
facilities in the same or similar locality; failed to assist residents (including Vest) in attaining and
maintaining the highest practicable level of physical, mental, and psychosocial well-being; failed
to meet the applicable standards of care; violated their duty of care to Vest through mistreatment,
abuse and neglect; and violated Section 22.04 of the Texas Penal Code (injury to elderly
individual). Shaw’s report is silent with respect to each of these claims, with the exception of
assaultive conduct and mistreatment. The report identifies conduct by Texarkana Nursing’s
employee—the alleged assault on Vest. The report fails, however, to identify the standard of
care, breach of the standard of care, or causation.
The only statement regarding the standard of care in the entire report regarding the staff
is: “The standard of care for a long term care facility and its staff requires that the facility in
question provide that level of care and treatment that a reasonable, prudent, similar facility would
provide under the same or similar circumstances.” (Emphasis added.) The report says nothing
regarding the breach of the standard of care by the staff or how that breach caused Vest’s
injuries. While the underlying nature of the vicarious liability claim rests in the intentional acts
of Bean, which appear to be unrelated to the rendition of health care, Lyle’s pleading alleges her
claims fall within the purview of Chapter 74. 14 We must, therefore, analyze them as such. See
14
Recently, the Texas Supreme Court decided Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012). Loaisiga was not
decided until after the appellant’s brief was filed here and well after the hearing in the trial court. In Loaisiga, two
female patients sued a medical doctor, the professional association bearing his name, and a clinic alleging the doctor
17
assaulted them by groping their breasts while examining them for sinus and flu symptoms. Id. at 253. The patients
served the doctor and professional association with reports from a physician who, based on the assumption that the
allegations in the plaintiffs’ pleadings were true, opined that the doctor’s alleged actions did not fall within any
appropriate standard of care. The defendants argued that the claims were health care liability claims and moved for
dismissal on the basis that the reports were deficient. The trial court denied the motions. The court of appeals held
that the claims were not health care liability claims and that expert reports were not required and affirmed the trial
court’s order without considering the report’s adequacy. Id. at 254. The high court recognized a presumption:
The breadth of the statute’s text essentially creates a presumption that a claim is an HCLC if it is
against a physician or health care provider and is based on facts implicating the defendant’s
conduct during the course of a patient’s care, treatment, or confinement. See [Marks v. St. Luke’s
Episcopal Hosp., 319 S.W.3d 658, 662 (Tex. 2010)]. But the presumption is necessarily
rebuttable. In some instances the only possible relationship between the conduct underlying a
claim and the rendition of medical services or healthcare will be the healthcare setting (i.e., the
physical location of the conduct in a health care facility), the defendant’s status as a doctor or
health care provider, or both.
Id. at 256. Following a discussion of the statute’s requirement that claimants in health care liability claims file
expert reports, the high court wrote:
[W]e fail to see how the Legislature could have intended the requirement of an expert report to
apply under circumstances where the conduct of which a plaintiff complains is wholly and
conclusively inconsistent with, and thus separable from, the rendition of “medical care, or health
care, or safety or professional or administrative services directly related to health care” even
though the conduct occurred in a health care context. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.001(a)(13); see also TEX. GOV’T CODE ANN. § 311.021 (“In enacting a statute, it is presumed
that . . . a just and reasonable result is intended . . . .”).
Id. at 257.
The court then listed three factors that must be reflected in the record in order for an assault claim against a
medical or health care provider not to be considered a health care liability claim:
[A] claim against a medical or health care provider for assault is not an HCLC if the record
conclusively shows that (1) there is no complaint about any act of the provider related to medical
or health care services other than the alleged offensive contact, (2) the alleged offensive contact
was not pursuant to actual or implied consent by the plaintiff, and (3) the only possible
relationship between the alleged offensive contact and the rendition of medical services or
healthcare was the setting in which the act took place.
Id.
In determining whether a claim is subject to the Texas Medical Liability Act’s (TMLA) expert report
requirements, the trial court is not limited to the four corners of the expert report; instead, the trial court should
consider the entire record, including pleadings, motions and responses, and relevant evidence properly admitted. Id.
at 258. In Loaisiga, the court noted a lack of information to give context to the physician’s actions during the
examinations, such as medical records, reports, and other information regarding the plaintiffs’ symptoms and
complaints to the physician. This lack of information prevented the plaintiffs from conclusively showing that “the
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Giron v. Baylor Univ. Med. Ctr., No. 05-09-00825-CV, 2011 WL 149981, at *2 (Tex. App.—
Dallas Mar. 1, 2011, pet. denied) (mem. op.) (when Giron chose to proceed under Chapter 74
and plead her cause of action as health care liability claim, she bound herself to statutory
requirements).
The lone statement regarding the standard of care applicable to the staff of Texarkana
Nursing fails to specify what is required of a reasonable and prudent staff under the same or
similar circumstances. This statement is not a fair summary of Shaw’s opinions regarding the
standard of care for the Texarkana Nursing staff. The mere recitation of a legal standard, in the
absence of specific facts applicable to this case, is not a good-faith effort to articulate the
standard of care. See Lira v. Cerna, No. 08-01-00250-CV, 2002 WL 1767569, at *6 (Tex.
App.—El Paso Aug. 1, 2002, no pet.) (not designated for publication) (The statement that “[t]he
standard of care requires that a physician provide that level of care which a reasonable prudent
physician would provide in the same or similar circumstances” does not demonstrate good-faith
only relationship between the alleged touching of their breasts and Dr. Loaisiga’s rendition of medical services was
the physical location of the examination . . . .” Id. at *259. The court went on to say that
because we are clarifying the standard for whether claims are subject to the TMLA’s expert report
requirements and the plaintiffs maintain that theirs are not, we conclude it is appropriate to remand
the case to the trial court for further proceedings regarding that issue. See Low v. Henry, 221
S.W.3d 609, 621 (Tex. 2007) (remanding “to allow the parties to present evidence responsive to
our guidelines”).
Id. at 260.
In light of Loaisiga, this Court questioned whether to remand the case to the trial court for a determination
of whether or not Lyle’s claim is, in fact, a health care liability claim. However, in Loaisiga, the plaintiffs
maintained that their claims were not health care liability claims. Here, Lyle has represented to this Court that her
claims are health care liability claims, and, in oral argument, Lyle’s counsel stated it was not her wish to remand the
case to the trial court for a determination of whether her claims are subject to the TMLA’s expert report
requirements.
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effort to provide fair summary of expert’s opinions and does not identify standard of care.); see
also Hood v. Phillips, 554 S.W.2d 160, 165 (Tex. 1977) (holding that legal standard for medical
profession is “reasonable and prudent” physician “under the same or similar circumstances”).
Moreover, the report is silent regarding the breach of the standard of care and causation.
Because the standard of care applicable to the staff is not identified, and because breach and
causation are not addressed, these deficiencies are not curable. Lyle’s vicarious liability claims
should, therefore, have been dismissed by the trial court.
IV. Conclusion
Because the report is deficient with respect to Lyle’s direct liability claim regarding the
failure to provide a safe and secure environment for Vest, we remand this claim to the trial court
to consider whether to grant a thirty-day extension to cure these deficiencies.
Shaw’s report is silent with respect to the standard of care, breach, and causation
regarding her vicarious liability claims. Because these deficiencies are not curable, Lyle’s
vicarious liability claims are dismissed.
Jack Carter
Justice
Date Submitted: November 20, 2012
Date Decided: December 14, 2012
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