In Fung v. Fischer, 365 S.W.3d 507, No. 03-10-00298-CV (Tex. App.--Austin Apr. 13, 2012, no pet.), the Court found that the expert report at issue was adequate as to the vicarious liability claims asserted against the health care provider but that the trial court should have dismissed the direct liability claims against the provider because the report failed to address those claims. Id.
In reaching the conclusion, the Court noted that the facts required to establish a health care provider's vicarious liability, "i.e., the acts of the physician and the physician's relationship" to the health care provider, differ from the facts required to establish the health care provider's direct liability, "i.e., the provider's provision of particular policies and procedures." Id. at *30.
The Court further explained:
Under the doctrine of respondeat superior, an employer or principal may be vicariously liable for the tortious acts of an employee or agent acting within the scope of the employment or agency, even though the principal or employer has not personally committed a wrong. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541-42 (Tex. 2002) (citing Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998)). If 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).
. . . .
The converse implication of Gardner is that if a party's alleged health care liability is not "purely vicarious" but direct, then a report that implicates only the actions of that party's agents or employees is insufficient to that extent. Cf. Gardner, 274 S.W.3d at 671-72. (Id.)