Certified EMS, Inc. v. Potts

In Certified EMS, Inc. v. Potts, 355 S.W.3d 683 (Tex. App.--Houston 1st Dist. 2011, pet. granted), plaintiff Cherie Potts alleged she was assaulted by a male nurse, Les Hardin, who was employed by Certified EMS, a nurse staffing agency. Id. at 686. Potts sued Certified EMS asserting that it was "vicariously liable for Hardin's conduct under a respondeat superior theory and directly liable for its own negligence in training and supervising Hardin." Id. Potts served her expert reports under section 74.351, and Certified EMS objected to the reports and sought dismissal. Id. After the trial court denied Certified EMS's motion to dismiss, Certified EMS brought an interlocutory appeal. Id. at 685, 687-88. The First Court of Appeals in Houston stated that Potts's experts' reports supported "Potts's theory that Certified EMS is vicariously liable under the doctrine of respondeat superior," but did not "specifically address how Certified EMS might be directly liable for its own conduct." Id. at 687. The court framed the issue presented as "whether the expert report must address both vicarious and direct liability theories for both theories to move past the expert report stage or whether a report adequate as to one of those theories is sufficient for the entire cause of action to move to the next stage." Id. at 690. To resolve that question, the court looked to "(1) the law concerning construction of a statute, (2) the plain language of the statute, (3) the objectives of the legislation and consequences of the construction of the statute, and (4) the conflict in the existing case law." Id. The First Court of Appeals observed that a health care liability claim is defined by section 74.001(a)(13) as a "cause of action" that meets certain requirements. Id. at 691. The court stated the supreme court has described a "cause of action" as "a fact or facts entitling one to institute and maintain an action, which must be proved to 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." Id. According to the court of appeals, "replacing 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." Id. The court concluded that "by focusing on a cause of action rather than particular liability theories that may be contained within a cause of action, the plain language does not require an expert report to set out each and every liability theory that might be pursued by the claimant as long as at least one liability theory within a cause of action is shown by the expert report." Id. Consequently, the court reasoned, an entire cause of action must be dismissed when the expert report fails to "set out at least one liability theory within a cause of action." Id. at 692. However, the court concluded, "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. The court stated that although Potts had asserted two bases for a potential recovery, both arose from the same group of operative facts. Id. at 699. Therefore, the court reasoned, Potts had asserted "one 'cause of action' and thus one 'claim' under chapter 74." Id. Because Potts's expert report adequately addressed at least one liability theory for that cause of action, the court affirmed the trial court's order denying Certified EMS's motion to dismiss. Id. at 700. The court of appeals in Potts acknowledged "intermediate courts of appeals are split concerning whether an expert report adequate as to at least one liability theory within a cause of action is sufficient to permit other liability theories within the same cause of action to proceed although the expert report is deficient with respect to other theories." Id. at 695. However, the court stated it had not found any case "that has performed a statutory analysis of the meaning of claims and causes of action in the context of a medical expert report." Id. at 698. Additionally, the court specifically rejected Certified EMS's argument that its holding "contradicts Chapter 74's notification policy by allowing a plaintiff to assert a direct liability claim without ever informing the defendant of any of its specific conduct." Id. at 693. The court stated that because its holding allows a plaintiff to pursue a liability theory not found in the expert report only if the additional theory arises out of the same group of operative facts set forth in the expert report and is asserted against the same defendant, the defendant is "on notice concerning the conduct that forms the basis of the cause of action." Id. Further, the court stated: "Our holding not only places the defendant on notice concerning the cause of action, but it also satisfies the other purpose of the expert report by functioning as a gatekeeper. We require early dismissal of a particular defendant if the expert reports fail to show that there is a cause of action against a defendant. . . . If we were to narrowly construe the word "claim" to mean a particular liability theory--rather than the group of operative facts giving rise to one or more basis for suing--the dismissal contemplated by section 74.351(b) would require dismissal with prejudice only as to that particular theory. This is contrary to the intent of the statute to dismiss early a defendant from a lawsuit." Id. Finally, in response to Certified EMS's argument that its holding would allow a plaintiff to "later dismiss vicarious liability theories and pursue direct liability theories never presented in the expert report," the court stated: "The purpose of the expert report is to serve as a gatekeeper that allows nonfrivolous causes of action against a defendant to move forward past an initial stage so that full discovery concerning the lawsuit may take place. After full discovery has taken place, a plaintiff's approach to a lawsuit might vary from its initial approach, which is permitted under the expert report statute, as long as the liability theories underlie the same cause of action." Id. at 694.