In Certified EMS, Inc. v. Potts, 355 S.W.3d 683 (Tex. App.--Houston 1st Dist. 2011, pet. filed), the plaintiff sued complaining of a male nurse's inappropriate sexual conduct during a hospital stay. 355 S.W.3d at 685-86.
It was later discovered that the nurse, Les Hardin, was not an employee of the hospital, but instead 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 Tex. Civ. Prac. & Rem. Code section 74.351, and Certified EMS objected to the reports and sought dismissal. Id. After the trial court denied the motion to dismiss, Certified EMS brought an interlocutory appeal to this Court. Id. at 685, 687-88.
In reviewing the sufficiency of Potts's reports and Certified EMS's objections, we determined that the experts' reports adequately supported "Potts's theory that Certified EMS is vicariously liable under the doctrine of respondeat superior," but did not support her claim that "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.
After analyzing each, the Court concluded that "if the claimant timely serves an expert report that adequately addresses at least one liability theory against a defendant health care provider, the suit can proceed, including discovery, without the need for every liability theory to be addressed in the report." Id. at 693.