In Texas, If Patient's Claim Contains One Viable Liability Theory, as Shown by Expert Report Meeting TMLA Requirements, Entire Case Moves Forward

A woman was admitted to the hospital for treatment of a kidney infection. A nurse assigned to her care allegedly assaulted her sexually and verbally. The nurse was referred to the hospital by a staffing service.


Under the Texas Medical Liability Act (TMLA), the woman sued the nurse, the hospital, and the staffing service. The woman claimed that the staffing service was directly liable for the nurse's conduct because it failed to properly train and oversee its staff, enforce applicable standards of care, and employ protocols to ensure quality patient care and adequate staff supervision. The woman also alleged that the staffing service was vicariously liable under the theory of respondeat superior.


In order to comply with the TMLA, the woman served the staffing service with expert reports. The reports stated that the nurse engaged in sexually inappropriate and intrusive conduct, causing the injuries that the woman had alleged, outlined the appropriate standard of care for nurses and nursing agencies, described the steps that should have been taken by the nurse and the staffing service to prevent the assaults, and concluded that the nurse's and the staffing agency's failures caused the woman's injuries.


The staffing service moved to dismiss on the ground that the expert reports omitted any explicit reference to the staffing service's direct liability for the nurse's conduct. The 270th District Court for Harris County denied the staffing service's motion to dismiss. The staffing service filed an interlocutory appeal. The Court of Appeals for the First District of Texas affirmed. The staffing service petitioned for review.


The Supreme Court of Texas affirmed the appellate court’s decision. The court acknowledged conflicts between appellate courts over the extent to which an expert report must examine every liability theory alleged in a case brought under the TMLA. The court explained that, under the TMLA, a valid expert report has three elements: (1) it must fairly summarize the applicable standard of care, (2) it must explain how a physician or health care provider failed to meet that standard, and (3) it must establish the causal relationship between the failure and the harm alleged. A report that satisfies these requirements, even if as to one theory only, entitles the claimant to proceed with a suit against the physician or health care provider.


The Supreme Court agreed with the Court of Appeals for the First District that dismissal of the patient's claim, which alleged both vicarious liability and direct liability, was not warranted, even though the expert reports submitted by the patient only supported her vicarious liability claims. The court held that as long as the patient's claim contained at least one viable liability theory, as evidenced by an expert report meeting the statutory requirements, the entire case was allowed to move forward. More specifically, when a health care 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 conduct under the vicarious theory. If any liability theory has been adequately covered, the entire case may proceed.


See: Certified EMS, Inc. v. Potts, 2013 WL 561471 (Tex., February 15, 2013) (not designated for publication).