MSHC the Waterton at Cowhorn Creek, LLC v. Donna Miller, Individually and as Representative of the Estate of Nellie Mae Jackson , 2012 Tex. App. LEXIS 10362 ( 2012 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
_________________________
No. 06-12-00056-CV
______________________________
MSHC THE WATERTON AT COWHORN CREEK, LLC, Appellant
V.
DONNA MILLER, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF NELLIE MAE JACKSON, Appellee
On Appeal from the 5th Judicial District Court
Bowie County, Texas
Trial Court No. 11C0131-005
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
OPINION
After a five-day stay in a Texarkana nursing and rehabilitation facility named The
Waterton, Nellie Mae Jackson was admitted to a local hospital 1 where hospital personnel drained
almost three liters of fluid from her bladder via catheter and where, the next day, she died. 2 As a
result, Jackson’s daughter, Donna Miller, filed a medical negligence lawsuit against MSHC the
Waterton at Cowhorn Creek, L.L.C., which complaint set out two types of causes of action,
(A) vicarious liability for the alleged acts or omissions of The Waterton’s employees in the
course of caring for Jackson and (B) direct liability for the company’s alleged negligence in
certain employment practices. The Waterton’s motion to dismiss alleging fatal flaws in Miller’s
healthcare liability expert report was overruled by the trial court, and The Waterton appeals that
denial. We affirm the denial as to the vicarious liability claims and reverse as to the direct
liability claims because (1) Miller’s expert report is sufficient to support her vicarious liability
claims, but (2) Miller’s expert report does not support her direct liability claims.
1
Jackson had been admitted to the hospital earlier with weakness and dementia after a fall. Six days later, Jackson
was moved to The Waterton for rehabilitation and recuperation. Miller alleges Jackson’s hospital discharge
summary on that date reflects diagnoses of dementia, history of cerebral vascular accident, history of middle
cerebral artery aneurysm repair, history of abdominal aortic aneurysm status post repair, history of renal artery
stenosis post renal stent, and chronic kidney disease, stage III. Three days after her admission to The Waterton,
Jackson was started on intravenous (IV) fluids at the rate of fifty cc every hour for forty-eight hours. Two days after
that she was found to have an elevated temperature, increased heart rate, low blood pressure, and difficulty
breathing, triggering her readmission to the hospital.
2
The cause of death, as reflected on the death certificate, was cardiopulmonary failure, septic shock, acute renal
failure, and acute diastolic heart failure.
2
To support her lawsuit, Miller retained Milton D. Shaw, M.D., C.M.D., 3 to provide an
expert opinion against The Waterton. The Waterton filed its initial motion to dismiss Shaw’s
timely-filed expert report. The trial court found the report to be deficient, but granted a thirty-
day extension to amend the report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c) (West
2011). Miller timely filed a revised report, which was again challenged. At the hearing on the
motion to dismiss, The Waterton argued the report failed to identify the standard of care, breach,
and causation with respect to Miller’s vicarious liability claims. The Waterton further claimed
the report was deficient because it was silent with respect to the direct liability claims. The trial
court denied the motion to dismiss.
Miller properly sought appeal of this interlocutory order denying the motion to dismiss.
See Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008); Longino v. Crosswhite, 183 S.W.3d
913, 915 (Tex. App.—Texarkana 2006, no pet.).
We review the trial court’s decision regarding the adequacy of an expert report under an
abuse-of-discretion standard. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per
curiam); Goforth v. Bradshaw, 296 S.W.3d 849, 851 (Tex. App.—Texarkana 2009, no pet.). An
abuse of discretion occurs if the ruling in the trial court is arbitrary or unreasonable or made
without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62
3
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. 2003). Nevertheless, “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).
A trial court must grant a motion to dismiss under Section 74.351 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) (West 2011). A good-faith effort requires that the
report discuss the standard of care and breach of that standard with sufficient specificity to
inform the defendant of the conduct the plaintiff has called into question and to provide a basis
for the trial court to conclude the claims have merit. Jernigan v. Langley, 195 S.W.3d 91, 94
(Tex. 2006) (per curiam). A report that merely states an expert’s conclusions about the standard
of care, breach, and causation does not meet the statutory requirements. Wright, 79 S.W.3d at
52. The trial court’s review is limited to the four corners of the expert report, which need not
“marshal all the plaintiff’s proof,” but must include the expert’s opinion on each of the three
main elements—standard of care, breach, and causation. Id.
(1) Miller’s Expert Report Is Sufficient to Support Her Vicarious Liability Claims
Miller’s vicarious liability claims allege The Waterton’s agents, employees, and
representatives were negligent in:
a. Failing to observe, assess, intervene, evaluate, and care for [Jackson];
b. Failing to notice that [Jackson] did not empty her bladder for three days
despite being on IV therapy, resulting in the accumulation of nearly 3
liters of fluid;
4
c. Failing to intervene in a medical emergency on November 7, 2008;
d. Failing to monitor [Jackson]’s known medical conditions;
e. Failing to follow doctor’s orders; and
f. Failing to keep accurate records that charted [Jackson]’s medical condition
and treatment. 4
The Waterton contends Shaw’s report is deficient because it fails to adequately identify a
standard of care applicable to the facility’s staff, the manner in which the staff failed to meet the
standard of care, and the causal relationship between that failure and the injury, harm, or
damages claimed. The report contained the following opinions:
The standard of care for a long-term care facility and its staff such as The
Waterton requires that they provide that level of care and treatment that a
reasonable, prudent, similar facility would provide under the same or similar
circumstances. Each resident must receive and the facility must provide the
necessary care and services to attain or maintain the highest practicable, physical,
mental, and psychosocial well being, as defined by and in accordance with the
comprehensive assessment and plan of care.
Shaw states that the comprehensive assessment 5 must include:
identification and demographic information; customary routine; cognitive
patterns; communication; vision; mood and behavior patterns; psychosocial well-
being; physical functioning and structural problems; continence; disease
diagnoses and health conditions; dental and nutritional status; skin condition;
4
Miller further claims The Waterton was negligent in “failing to ensure the clinical record contains all treatments
given to the resident,” and in failing to “maintain acceptable parameters of nutritional status, such as body weight
and protein levels . . . .”
5
The report further indicates the assessment must be completed “within 14 calendar days after admission, and within
fourteen calendar days after the facility determines, or should have determined, that there has been a significant
change in the resident’s physical or mental condition . . . .” The Waterton takes the position that, because there were
still a number of days left in which to perform the assessment, there could not have been a breach of any standard of
care because Jackson was a Waterton resident for only six days. Here, the initial assessment was completed within
the allotted timeframe.
5
activity pursuit; medications; special treatments and procedures; and discharge
potential.
The report further indicates the initial assessment fell below this standard of care in that
it failed to assess [Jackson’s] respiratory condition, nutritional status, the ability to
take food and fluids, or continence. Further, . . . Jackson’s admission face sheet,
dated November 3, 2008, failed to note the significant cardiac history and stage
III renal disease listed on the Discharge Summary from St. Michael’s Hospital on
November 2.
Moreover, the facility must
maintain clinical records on each resident in accordance with the accepted
professional standards and practices. A complete clinical record . . . must contain
enough information to show that the facility knows the status of the individual,
has adequate plans of care, and provide sufficient evidence of the effects of care
provided. . . . Documentation should provide a picture of the resident’s progress
including response to treatment, change in condition, and changes in treatment.
. . . Jackson’s clinical record does not reflect the deterioration in . . . Jackson’s
condition that resulted in her being transferred to the hospital on November 8.
Further,
[i]n order to meet the standard of care, the nursing home and its staff must provide
adequate fluid intake to prevent dehydration. This was not done. The
harm/injury that resulted was severe dehydration, urosepsis, and acute renal
failure, contributing to . . . Jackson’s death.
In addition, “[i]n order to properly monitor a patient for dehydration, one must have an accurate
measurement of liquid intake and output. There is no record in . . . Jackson’s chart that permits
the quantification of her urine output, and this should have been done.” Likewise, Shaw notes
that
[t]he nursing home and its staff knew or should have known that . . . Jackson was
at high risk for dehydration due to her multiple risk factors. . . . Jackson’s risk
factors were advanced age, dementia, debility, renal insufficiency, and inability to
obtain liquids on her own. She was dependent upon the nursing staff to provide
6
her with adequate fluid intake. There is no documentation that the nurses tried to
call the attending physician and inform him of . . . Jackson’s lack of intake of
food and fluids, which is clearly below the standard of care.
The care and treatment rendered to . . . Jackson by the nursing home fell below
the standard of care when it failed to keep adequate clinical records as previously
noted and described above. If clinical records and her accurate intake and output
had been kept, it would have been readily apparent that this woman was
developing dehydration and that had this been recognized earlier, it could have
been successfully treated and she would, more likely than not, not have suffered
dehydration, urosepsis, and acute renal failure . . . .
Shaw continues,
[i]n my opinion, as noted above, the nursing staff of The Waterton failed to
adequately assess . . . Jackson, both initially and subsequently during her stay, and
institute measures which could have prevented her deterioration to the point of
needing hospitalization. What can be gleaned from the record is that . . . Jackson
was unable to take or was not offered sufficient fluids to assure adequate
hydration reflected in the laboratory values. IV fluids were started but she
developed a urinary tract infection, and subsequent sepsis. It is a well-known fact
that adequate fluid intake and volume depletion are significant contributors to the
development of urinary tract infections. Once she developed sepsis, her system
was stressed to the point that she apparently had a myocardial infarction and
resultant heart failure, and died the day after readmission to the hospital.
Shaw concludes,
[i]n summary, based on my medical education, training, and direct experience,
and based upon a reasonable degree of medical certainty, that the failures outlined
in this report proximately caused the deterioration in her condition leading to her
hospitalization, and ultimately resulting in the patient’s death.
The Waterton is critical of the report because it states that the initial assessment failed to
assess “respiratory condition, nutritional status, the ability to take food and fluids, or
continence,” and, thus, fell below the standard of care, but also indicates that the initial
assessment was “cursory at best, with no significant assessment of respiratory effort, ability to
7
take food or fluids, or assessment of bowel and bladder elimination other than to mark ‘0.’”
Based on these statements, The Waterton claims the report is contradictory. On the contrary,
these statements indicate the initial assessment failed to provide useful information and, thus, fell
below the standard of care.
The report is further criticized on the basis that it fails to state what an adequate
assessment should include in the specific areas listed. As reflected in the report, the standard of
care for preparation of the initial assessment requires that the assessment include, among other
things, the resident’s disease diagnoses and health conditions. The initial assessment, according
to the report, failed to note significant cardiac history and stage III renal disease listed on the
hospital discharge summary. Jackson’s renal insufficiency, among other things, placed her at
high risk for dehydration. Shaw indicates that, in order to comply with the standard of care,
clinical records must contain enough information to show “the facility knows the status of the
individual” including a change in condition that ultimately requires hospitalization. Here, the
clinical record “does not reflect the deterioration in Mrs. Jackson’s condition that resulted in her
being transferred to the hospital on November 8.” According to Shaw, Jackson’s ADL 6 sheets
“showed no documentation of intake or urinary . . . elimination to a degree which would
evidence actual evaluation, even though . . . Jackson was on IV’s for the 2 days prior to transfer
to the hospital.”
The report states that, “in order to meet the standard of care, the nursing home and its
staff must provide adequate fluid intake to prevent dehydration. This was not done.” Further,
6
In the health care field, the acronym ADL stands for activities of daily living.
8
“[i]n order to properly monitor a patient for dehydration, one must have an accurate
measurement of liquid intake and output.” Shaw then notes that “[t]here is no record in . . .
Jackson’s chart that permits the quantification of her urine output, and this should have been
done.”
The Waterton complains that Shaw failed to state specifically how its staff should have
monitored Jackson’s fluid intake and output and what would have constituted adequate fluid
intake. However, the point is not that Shaw failed to identify which of several possible
monitoring methods should have been implemented; instead, as the report indicates, even though
the staff knew or should have known Jackson was at an increased risk of becoming dehydrated,
there were no records in the chart that would even permit a quantification of urine output.
The criticisms of The Waterton staff can be succinctly stated as the failure to maintain
adequate records and assessments and a failure to monitor Jackson’s physical condition,
particularly her fluid intake and output. The report sets forth the standard of care for patient
assessments, the maintenance of clinical records, and monitoring Jackson’s physical condition
and identifies specific failures on the part of the facility amounting to a breach of those
standards.
As to causation and injuries, The Waterton argues that Shaw’s report is conclusory
because it fails to set forth the causal relationship between alleged deviations from the
appropriate standard of care and Jackson’s alleged injuries and death. The Waterton relies on
Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010), in support of this proposition. In that case, the
expert testified that “the Hospital’s negligence ‘in medical probability’ caused Casas additional
9
pain and suffering.” Id. at 535. This opinion was based on the presence of an intra-abdominal
infection that could have been treated with certain antibiotics. Circumstantial evidence of
infection existed, but there was no direct evidence of an infection. The expert conceded that the
circumstantial evidence, on which he relied to form the opinion the patient suffered from an
infection, was equally consistent with two other infections cultured from the patient’s incision
and blood—neither of which were treatable by the antibiotics in question. Id. The court held,
“When the only evidence of a vital fact is circumstantial, the expert cannot merely draw possible
inferences from the evidence and state that ‘in medical probability’ the injury was caused by the
defendant’s negligence.” Id. at 536.
Here, we are not dealing with circumstantial evidence of a vital fact. Nevertheless, an
expert report must include a fair summary of the causal relationship between the defendant’s
failure to meet the appropriate standard of care and the injury, harm, or damages claimed. TEX.
CIV. PRAC. & REM. CODE ANN. § 74.352(r)(6). The Waterton complains that the report did not
explain the basis for the finding that Jackson was dehydrated or how that condition, if it existed,
led to her death.
The issue is whether the report articulated a causal relationship between The Waterton’s
alleged failure to meet the applicable standards of care and Jackson’s death. See id. Here, the
report indicates that Jackson became dehydrated at some point during her stay at The Waterton.
The finding that Jackson was dehydrated is based on laboratory values. 7 This condition is not
7
Shaw indicates his report is based on a review of The Waterton records and the hospital records pertaining to
Jackson. Shaw states that Jackson “subsequently developed dehydration reflected in the laboratory values.” On
10
documented in the initial assessment or the clinical records, and risk factors for this condition are
likewise not documented in the initial assessment. Shaw states that inadequate fluid intake and
volume depletion are significant contributors to the development of urinary tract infections.
Jackson was readmitted to the hospital on November 8 with septic shock 8 due to urosepsis. By
definition, urosepsis 9 results from urinary tract infections. Documented urosepsis “stressed
Jackson’s weakened system to a point that she suffered heart failure,” as reflected in the death
certificate. Here, the report stated that The Waterton staff failed to adequately document and
monitor Jackson’s condition and did not transport her to the hospital until the day before her
death when it became obvious that Jackson was indeed significantly ill.
An abuse of discretion occurs only when action is taken in an arbitrary or unreasonable
manner without reference to any guiding rules or principles. Wright, 79 S.W.3d at 52. Given
this standard, we cannot conclude, as to the vicarious liability claims, there was any abuse of
discretion in the finding that Shaw’s report represents an objective, good-faith effort to comply
with the definition of an expert report provided in subsection (r)(6). TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(r)(6). The report discusses the standard of care, breach, and causation with
sufficient specificity to inform The Waterton of the conduct Miller has alleged, and it provides a
November 6, Jackson was started on IV fluids “presumably due to results of initial laboratory drawn on admission to
The Waterton.”
8
Septic shock is a “condition of physiologic shock caused by an overwhelming infection, especially sepsis or
septicemia.” Septic Shock Definition, TheFreeDictionary.com, http://www.medical-
dictionary.thefreedictionary.com/septic+shock (last visited Dec. 10, 2012).
9
Urosepsis is “a term used imprecisely to denote infection ranging from urinary tract infection to generalized sepsis
which may result from such infection.” Urosepsis Definition, TheFreeDictionary.com, http://www.medical-
dictionary.thefreedictionary.com/urosepsis (last visited Dec. 10, 2012).
11
basis for the trial court to conclude that the claims have merit. See Scoresby v. Santillan, 346
S.W.3d 546, 556 (Tex. 2011) (citing Palacios, 46 S.W.3d at 879). The report is sufficient as to
the vicarious liability claims.
(2) Miller’s Expert Report Does Not Support Her Direct Liability Claims
On the other hand, Miller’s claims of direct negligence include The Waterton’s alleged
failure to “employ sufficient staff to provide nursing and related services to maintain the highest
practical physical, mental and [Jackson’s] psychosocial well being,” and the alleged failure to
exercise ordinary care “in hiring, supervising, training, and retaining competent employees.” It
is undisputed that Shaw’s report does not address these claims. The question before us is
whether the report is sufficient to cover the direct liability claims as well as the vicarious liability
claims. We conclude that it is insufficient for that purpose.
In denying the motion to dismiss Miller’s direct liability claims, the trial court relied on
Certified EMS, Inc. v. Potts, 355 S.W.3d 683 (Tex. App.—Houston [1st Dist.] 2011, pet.
granted). Potts involved a sexual assault by a male nurse employee of Certified EMS, a nurse
staffing agency. While Potts’ petition alleged both direct and vicarious liability claims against
Certified EMS, her expert reports did not address the direct liability claims. In its opinion
affirming the trial court’s order denying EMS Certified’s motion to dismiss, the Court of
Appeals determined Chapter 74 does not require an expert report to address each liability theory;
rather, a report is sufficient if it sets out “at least one liability theory.” Id.
In reaching this conclusion, the court recognized that the term “health care liability
claim” is defined by Section 74.001(a)(13) as a “cause of action.” Id. at 691. Because
12
Chapter 74 does not define a “cause of action,” the court extracted the definition used in In re
Jorden, 249 S.W.3d 416 (Tex. 2008) (orig. proceeding). The Jorden court described a “cause of
action” as “a fact or facts entitling one to institute and maintain an action, which must be proved
in order to obtain relief” and as a “group of operative facts giving rise to one or more bases for
suing; a factual situation that entitles one person to obtain a remedy in court from another
person.” Potts, 355 S.W.3d at 691 (quoting Jorden, 249 S.W.3d at 421). By
[r]eplacing the word “claim” with the term “cause of action” and its definition, the
plain language in section 74.351(a) requires the claimant to file an expert report
for each physician or health care provider against whom a cause of action—i.e.,
group of operative facts giving rise to one or more bases for suing—is asserted.
Potts, 355 S.W.3d at 691. Therefore,
if at least one liability theory within a cause of action is shown by the expert
report, then the claimant may proceed with the entire cause of action against the
defendant, including particular liability theories that were not originally part of
the expert report, as long as those liability theories are contained within the same
cause of action.
Id. at 692. Because Potts asserted “one ‘cause of action’ and thus one ‘claim’ under chapter 74,”
and the expert report adequately addressed at least one theory of liability for that cause of action,
denial of the motion to dismiss was upheld. Id. at 699–700.
Here, Shaw’s report adequately addresses one theory of liability. Under the Potts
analysis, even though the report is inadequate as to Miller’s theory for direct liability, her cause
of action need not be dismissed because the report would be adequate for vicarious liability.
However, because we are not persuaded that Potts correctly interprets the expert report
requirements of Chapter 74, we decline to adopt its analysis.
13
In the recent case of Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012), two female patients
sued Raul Ernesto Loaisiga, M.D., and Raul Ernesto Loaisiga, M.D., P.A., together with the
clinic where Loaisiga practiced, claiming they were sexually assaulted during examinations for
sinus and flu symptoms. While plaintiffs maintained their claims were not health care liability
claims, they nevertheless filed expert reports. The reports were attacked as insufficient, but both
the trial court and the court of appeals denied Loaisiga’s motion to dismiss. The issue before the
high court was whether the claims were health care liability claims. The court held that the
Texas Medical Liability Act creates a rebuttable presumption that a claim is a health care
liability claim “if it is against a physician or health care provider and is based on facts
implicating the defendant’s conduct during the patient’s care, treatment, or confinement.” Id. at
256.
The high court’s analysis of whether Chapter 74 applied to the professional association
(the “P.A.”)—in light of the fact that the petition named the P.A. as a defendant and sought
judgment against it, but did not otherwise mention the P.A.—is relevant here. The court
referenced Section 74.351(a), which requires an expert report “for each physician or health care
provider against whom a liability claim is asserted.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(a) (West 2011). The term “liability claim” in Section 74.351(a) is simply shorthand,
said the court, for “health care liability claim,” which is “elsewhere defined in the TMLA as a
‘cause of action.’” Loaisiga, 379 S.W.3d at 262. A “cause of action” means the “fact or facts
entitling one to institute and maintain an action, which must be alleged and proved in order to
obtain relief.” Id. at 255 (citing Jorden, 249 S.W.3d at 421). “Therefore, the expert report
14
requirements are triggered when a plaintiff names a person or entity as a defendant and seeks to
obtain relief from that defendant based on facts that possibly implicate the TMLA.” Id. 10
In this case, unlike Loaisiga, the issue is whether the report must address both direct and
vicarious liability theories asserted against a single health care provider. Nevertheless, the high
court’s analysis is instructive here to the extent the Jorden definition of a “cause of action”—i.e.,
“facts entitling one to institute and maintain an action, which must be alleged and proved in
order to obtain relief”—is used to determine when an expert report is required, rather than what
such a report should include. Conversely, in Potts, the defined cause of action was used to parse
the contents of the report. The contents of the report are correctly governed by Section
74.351(r)(6), which states that the report must provide
a fair summary of the expert’s opinions as of the date of the report regarding the
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.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). The facts required to establish direct
liability here are qualitatively different from the facts necessary to establish The Waterton’s
vicarious liability for the acts or omissions of its staff. The purpose of the expert report
requirement is twofold—it must inform the defendant of the conduct the plaintiff has called into
question and it must provide a basis for the trial court to conclude that the claims have merit.
Jernigan, 195 S.W.3d at 94. This dual purpose would be frustrated if a claimant could seek
recovery against a medical or health care provider by pleading a theory of liability covered by
10
The court noted that the plaintiff’s claims against the P.A. were that it was vicariously liable for Loaisiga’s
conduct, and the expert report requirements apply to the claims against the P.A. just as they do to the physician
individually. Id. at 263.
15
Chapter 74, yet submit a report that fails to identify the standard of care, breach, and causation
with respect to that theory or claim. Therefore, in order to fulfill the requirements of Chapter 74,
the expert report must separately and adequately address both vicarious and direct liability
claims. See Fung v. Fischer, 365 S.W.3d 507, 523 (Tex. App.—Austin 2012, no pet.) (expert
report must address both vicarious and direct liability claims); see also Hendrick Med. Ctr. v.
Miller, No. 11-11-00141-CV, 2012 WL 314062, at *3 (Tex. App.—Eastland Jan. 26, 2012, no
pet.) (mem. op.) (expert report must separately address direct and vicarious liability claims);
Binzer v. Alvey, 359 S.W.3d 364, 366 (Tex. App.—Fort Worth 2012, pet. denied) (report that
sufficiently addressed some pled theories of liability but not others is “deficient, but curable”).
Because Shaw’s report failed to address Miller’s direct liability claims, those claims cannot
stand.
We, therefore, affirm the trial court’s order to the extent it overrules The Waterton’s
motion to dismiss Miller’s vicarious liability claims. We reverse the trial court’s order only to
the extent it denied dismissal of Miller’s direct liability claims against The Waterton, and we
render judgment dismissing those claims.
Josh R. Morriss, III
Chief Justice
Date Submitted: October 4, 2012
Date Decided: December 14, 2012
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