                               NUMBER 13-12-00219-CV

                                  COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


ANGELA YOUNG,                                                              Appellant,

                                              v.

MEDICAL IMAGING DIAGNOSTIC ASSOCIATES,
INC., BEEVILLE MEDICAL IMAGING, AND
KINGSVILLE MEDICAL IMAGING,                                               Appellees.


                       On appeal from the 214th District Court
                             of Nueces County, Texas.


                               MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Benavides and Perkes
               Memorandum Opinion by Chief Justice Valdez

      Appellant, Angela Young, appeals from the trial court’s dismissal of her health

care liability claim against appellees, Medical Imaging Diagnostic Associates, Inc.,

Beeville Medical Imaging, and Kingsville Medical Imaging (collectively “MIDA”) and from

the trial court’s award of attorney’s fees. By three issues, Young contends that: (1) the
trial court improperly granted the dismissal; (2) MIDA submitted legally insufficient

evidence to support the trial court’s award of attorney fees; and (3) if her expert report is

deficient, we should grant a thirty-day extension for her to cure the deficiencies. We

affirm in part, reverse and render in part, and reverse and remand in part.

                                   I.     BACKGROUND

       As part of cancer treatment, Nabil El-Milady, M.D. performed a radical

hysterectomy on Young at Christus Spohn Hospital Memorial on November 4, 2008.

Young experienced abdominal pain and nausea after the surgery, and on December 16,

2008, she went to the emergency room at Christus Spohn Hospital Shoreline where she

was examined by James Frame, M.D. Dr. Frame ordered an x-ray of Young’s kidneys,

ureters, and bladder (the “KUB”). Jeffrey Bikle, M.D. reviewed the KUB. Dr. Bikle did

not observe any anomalies in the KUB, and Young was released from the hospital.

Three days later, as part of her ongoing cancer treatment, Young received a CT scan

showing fluid in her pelvis. On December 22, 2008, Young went to the hospital again

complaining of persistent abdominal pain. Eventually, it was discovered that Young had

a ureteral injury, and she remained in the hospital until January 14, 2009.

       On January 14, 2011, Young filed suit against several of the healthcare providers

that she claimed failed to diagnose the ureteral injury, including Dr. Bikle and MIDA. In

her petition, Young claimed the following:

              12.04 Defendant, [MIDA], by and through their actual and
       ostensible agent(s), employee(s), vice principal(s), and/or borrowed
       servant(s), failed to use the ordinary care and diligence that reasonable
       and prudent health care providers would have employed under the same
       or similar circumstances and negligently and proximately caused the injury
       to [Young] as set forth below by, among other acts and omissions, the
       following:



                                                 2
             a.     causing injury to [Young];

             b.     failing to assess the competence of medical staff, including
                    but not limited to physicians such as Defendant BIKLE;

             c.     failing to develop, employ and monitor policies and
                    procedures for the care and treatment of patients;

             d.     failing to care and treat [Young];

             e.     failing to recognize the risk factors apparent in [Young] prior
                    to discharging her from Defendant CHRISTUS SHORELINE
                    emergency room;

             f.     failing to properly review, interpret, diagnose and treat
                    [Young’s] radiologic findings[;]

             g.     causing delay in the treatment of [Young], resulting in
                    permanent and significant kidney damage.

            12.05 Furthermore, [MIDA is] vicariously liable and/or liable
      through respondent superior by and through its actual and ostensible
      agent(s), employee(s), vice principal(s), borrowed servant(s), and/or
      managing and/or limited partner(s) including, but not limited to [Dr. Bikle],
      who failed to use the ordinary care and diligence that reasonable and
      prudent physicians would have employed under the same or similar
      circumstances and negligently and proximately caused the injury to
      [Young] as set forth herein.

      On May 16, 2011, Young filed and served the expert report and curriculum vitae

of Michael Hall, M.D. on MIDA. In his report, Dr. Hall did not mention MIDA. He did,

however, offer his opinion regarding Dr. Bikle’s conduct regarding the KUB.

      On May 20, 2011, MIDA filed a motion to dismiss, alleging that Young had failed

to file an expert report as to it. On August 4, 2011, the trial court held a hearing on

MIDA’s motion to dismiss. In addition to arguing that Dr. Hall’s report failed to even

mention it, MIDA further argued that Dr. Bikle was never its employee. Young argued

that because she had alleged vicarious liability, Dr. Hall’s report was only required to

address the agent’s actions or omissions to satisfy the requirements of section 74.351

                                                 3
of the civil practice and remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. §

74.351 (West 2011).              The trial court then granted MIDA’s motion to dismiss and

awarded it attorney’s fees.1 Young filed an amended expert report on September 6,

2011.2 On September 29, 2011, the trial court granted Dr. Bikle’s motion to dismiss and

severed MIDA and Dr. Bikle from Young’s case against the other defendants. This

appeal followed.3

                          II.      STANDARD OF REVIEW AND APPLICABLE LAW

        We review the trial court’s decision on a motion to dismiss under an abuse of

discretion standard.            Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d

873, 877–78 (Tex. 2001). “An abuse of discretion occurs when a trial court acts in an

arbitrary or unreasonable manner or without reference to any guiding principles.” Moore

v. Sutherland, 107 S.W.3d 786, 789 (Tex. App.—Texarkana 2003, pet. denied) (citing

Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999)). We may not reverse for abuse

of discretion simply because we would have decided the matter differently. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985).

        We may not substitute our judgment for that of the trial court concerning the

resolution of factual issues or matters committed to the trial court’s discretion. Walker v.

Packer, 827 S.W.2d 833, 839 (Tex.1992). The appellant must “establish that the trial

court could reasonably have reached only one decision.” Id. at 840. A trial court has no

discretion in determining what the law is or in applying the law to the facts, and “a clear


        1
          The trial court recessed the hearing on Dr. Bikle’s motion to dismiss and gave Young ten days to
provide “some authority on the qualifications of Dr. Hall” to opine regarding Dr. Bikle’s alleged negligence.
        2
            The report does not mention MIDA.
        3
            Young has not filed an appeal of the trial court’s order granting Dr. Bikle’s motion to dismiss.


                                                            4
failure by the trial court to analyze or apply the law correctly will constitute an abuse of

discretion.” Id.

       Section 74.351 requires a plaintiff to serve on each defendant physician or health

care provider whose conduct is implicated by a healthcare liability claim, a curriculum

vitae of each expert listed in the report and one or more expert reports setting forth the

standard of care, breach of the standard of care, and causation. TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(a), (r)(6). An “expert report” is defined as

       a written report by an expert that provides a fair summary of the expert’s
       opinions as of the date of the report regarding 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.

Id. § 74.351(r)(6).

       A court must grant a motion to dismiss under section 74.351(b) if, after the 120-

day deadline has passed, it appears to the court that the report does not represent an

objective, good-faith effort to comply with the definition of an expert report.       Id. §

74.351(l). A “good-faith effort” means that the report “provide[s] enough information

to . . . inform the defendant of the specific conduct the plaintiff has called into

question . . . [and] a basis for the trial court to conclude that the claims have merit.”

Palacios, 46 S.W.3d at 879. A report cannot constitute a good-faith effort if it omits any

of the statutory requirements. Id.

              When a plaintiff’s claim against a hospital is not for direct
       negligence, but is based on the conduct of an employee through the
       doctrine of respondeat superior, the expert report need not identify the
       hospital by name or include an opinion about how the employee was
       acting in the course and scope of employment for the hospital.




                                                5
RGV Healthcare Assocs., Inc. v. Estevis, 294 S.W.3d 264, 273 (Tex. App.—Corpus

Christi 2009, pet. denied) (citing Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877,

879 (Tex. App.—Dallas 2006, no pet.)). A medical expert is not qualified to render an

opinion on the legal issue of vicarious liability. Id.; Dale, 188 S.W.3d at 879 n.1; see

also In re CHCA Conroe, L.P., No. 09-04-453-CV, 2004 Tex. App. LEXIS 10481, at *3

(Tex. App.—Beaumont Nov. 23, 2004, orig. proceeding) (mem. op.) (“The conduct by

the hospital on which the agency relationship depends is not measured by a medical

standard of care. These are principles of agency law on which no expert report is

required.”).

       An expert report that identifies the conduct of the health care provider’s agent or

employee implicates the health care provider. Estevis, 294 S.W.3d at 273 (“When a

plaintiff’s claim against a hospital is not for direct negligence, but is based on the

conduct of an employee through the doctrine of respondeat superior,” the hospital is

implicated if the report identifies conduct by the hospital’s employee); Dale, 188 S.W.3d

at 879; see also Women’s Clinic of S. Tex. v. Alonzo, No. 13-10-00159-CV, 2011 Tex.

App. LEXIS 2177, at *13–14 (Tex. App.—Corpus Christi Mar. 24, 2011, no pet.) (mem.

op.) (“A health care liability plaintiff fulfills her expert report requirement as to a

defendant hospital, clinic, or other facility alleged to be vicariously liable if the report is

adequate as to the employees alleged to be directly liable.” (citing Gardner v. U.S.

Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per curiam); Knapp Med. Ctr. v.

Molina, No. 13-09-00372-CV, 2009 Tex. App. LEXIS 8914, at *10 (Tex. App.—Corpus

Christi Nov. 19, 2009, no pet.) (mem. op.) (explaining that the expert report requirement

for a vicarious liability claim implicates the health care provider if “the report identifies



                                                  6
conduct by the health care provider’s employee”). The report is sufficient as against the

health care provider to satisfy the expert report requirement for the vicarious liability

claims so long as it adequately addresses the standard of care applicable to the

employee, how the employee breached the standard of care, and how the breach

caused the plaintiff’s injury. Dale, 188 S.W.3d at 879; see also Molina, 2009 Tex. App.

LEXIS 8914, at *10.

                              III.   ABUSE OF DISCRETION

      By her first issue, Young asserts that the trial court improperly granted MIDA’s

motion to dismiss. First, Young argues that MIDA waived its sufficiency challenge to Dr.

Hall’s report. Young further argues that her claims against MIDA are all based on

vicarious liability; and, because Dr. Hall’s report implicated the conduct of Dr. Bikle,

MIDA’s agent or employee, Young satisfied the requirements of chapter 74.

A.    Vicarious Liability

      Young asserts that Dr. Hall’s report implicates MIDA and MIDA failed to object

within twenty-one days of being served with the report. Therefore, Young argues MIDA

waived its objections to the sufficiency of the report. MIDA responds that it had no duty

to object because the report did not implicate MIDA.

      However, as stated above, when the allegation is one of vicarious liability, the

expert report implicates the principal if it explains the negligent acts and omissions of

the agent. Estevis, 294 S.W.3d at 273; Dale, 188 S.W.3d at 879; see also Alonzo, 2011

Tex. App. LEXIS 2177, at *113–14; Molina, 2009 Tex. App. LEXIS 8914, at *10. A

health care provider whose conduct is implicated in an expert report must file and serve

any objection to the sufficiency of the expert report not later than twenty-one days after



                                               7
the date the report is served, or all objections are waived. Obstetrical & Gynecological

Assocs., P.A. v. McCoy, 283 S.W.3d 96, 101 (Tex. App.—Houston [14th Dist.] 2009,

pet. denied) (concluding that the trial court did not abuse its discretion by not dismissing

the plaintiff’s vicarious liability claims against a health care provider not mentioned in the

expert reports because the health care provider waived any challenges to the

sufficiency of those reports by not objecting within twenty-one days).

        In this case, Young alleged in her petition that MIDA was responsible for Dr.

Bikle’s conduct under the theory of respondeat superior. Young then served MIDA with

Dr. Hall’s expert report regarding Dr. Bilke’s conduct, thus implicating MIDA’s conduct.4

See Estevis, 294 S.W.3d at 273; Dale, 188 S.W.3d at 879; see also Alonzo, 2011 Tex.

App. LEXIS 2177, at *113–14; Molina, 2009 Tex. App. LEXIS 8914, at *10.

Consequently, MIDA was required to file objections to the sufficiency of Dr. Hall’s report

within twenty-one days of being served with his report. See McCoy, 283 S.W.3d at 101;

Dale, 188 S.W.3d at 879. MIDA did not make any objections to the sufficiency of Dr.

Hall’s report.5 Because MIDA waived its objections to the adequacy of Dr. Hall’s report,


        4
          As discussed above in this memorandum opinion, Young was not required to file an expert
report concerning MIDA’s vicarious liability—a legal issue upon which a medical professional is unable to
opine. RGV Healthcare Assocs., Inc. v. Estevis, 294 S.W.3d 264, 273 (Tex. App.—Corpus Christi 2009,
pet. denied); Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 n.1 (Tex. App.—Dallas 2006, no
pet); see also In re CHCA Conroe, L.P., No. 09-04-453-CV, 2004 Tex. App. LEXIS 10481, at *3 (Tex.
App.—Beaumont Nov. 23, 2004, orig. proceeding) (mem. op.).
        5
           MIDA only filed a motion to dismiss claiming that Young failed to file any expert report
concerning its conduct. MIDA did not make any objections to Dr. Hall’s report in its motion to dismiss.
Furthermore, MIDA did not file a motion to dismiss challenging Dr. Hall’s expert report and may not rely
on any objections made by Dr. Bilke to Dr. Hall’s report. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)
(“Each defendant physician or health care provider whose conduct is implicated in a report must file and
serve any objection to the sufficiency of the report not later than the 21st day after the date it was served,
failing which all objections are waived.”) (Emphasis added); Otero v. Leon, 319 S.W.3d 195 (Tex. App.—
Corpus Christi 2010, pet. denied) (declining to reach the merits of two of the defendants’ claims that the
amended expert report was inadequate because they failed to object to the amended report in the trial
court, while addressing the other defendant’s claim that the expert report was inadequate because he had
objected in the trial court); Hawkins v. Herrera, 296 S.W.3d 366, 370 (Tex. App.—Houston [14th Dist.]
2009, no pet.) (stating that “in the context of challenges to the adequacy of an expert report, [section

                                                          8
we conclude the trial court abused its discretion by dismissing Young’s vicarious liability

claims against MIDA.6 See McCoy, 283 S.W.3d at 101; Dale, 188 S.W.3d at 879. We

sustain Young’s first issue regarding her vicarious liability claims.

B.      Direct Liability

        A report that omits all of the statutorily required elements is not merely deficient,

but amounts to no report at all. Fung v. Fischer, 365 S.W.3d 507, 529 (Tex. App.—

Austin 2012, no pet.). A health care provider has no duty to object to the sufficiency of

a medical report if no report has been served on it addressing any direct-liability claims.

Id. at 525.

        Here, although Young served Dr. Hall’s report on MIDA concerning Dr. Bikle’s

conduct, Young failed to serve MIDA with an expert report addressing its own conduct.

MIDA had no duty to object to Young’s failure to serve an expert report addressing

MIDA’s direct liability, if any.7 See id.


74.351(l)] naturally places the burden on the objecting party . . . to secure a ruling.) (citing TEX. R. APP. P.
33.1; TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l)).
        6
            At the motion to dismiss hearing, MIDA argued that Dr. Bilke has never been its employee.
        7
           It is unclear whether Young is claiming on appeal that she did not make any direct liability
claims against MIDA. However, in her petition, Young “adopted and reallege[d] each and every
Paragraph of All Counts of [her] petition” against MIDA. In count one, paragraph 6.02, Young asserted
that the health care provider “had a duty to exercise ordinary care in [her] treatment . . . that is, that
degree of care that a reasonable and prudent health care provider would have exercised under the same
or similar circumstances.” Accordingly, Young also alleged that MIDA had that duty. Young then claimed
that MIDA had held out to the public that it had competent and qualified personnel to diagnose, treat, care
for, and monitor its patients. Young asserted that MIDA “failed to use the ordinary care and diligence that
a reasonable and prudent health care provider would have employed under the same or similar
circumstances and negligently and proximately caused” her injury as listed. Young stated that MIDA was
negligent “by, among other acts and omissions, the following”: (1) causing her injury; (2) “failing to
assess the competence of medical staff, including but not limited to physicians such as Defendant
BIKLE”; (3) “failing to develop, employ and monitor policies and procedures for the care and treatment of
patients”; (4) failing to care and treat her; (5) “failing to recognize the risk factors apparent in [Young] prior
to discharging her from Defendant CHRISTUS SHORELINE emergency room”; (6) “failing to properly
review, interpret, diagnose and treat [Young’s] radiologic findings”; (7) and “causing delay in the treatment
of [Young], resulting in permanent and significant kidney damage.” In her petition, Young does not
identify any agents or employees who failed to assess the competence of medical staff or develop,
employ, and monitor policies and procedures for the care and treatment of patients.

                                                            9
        Dr. Hall’s report only addresses the conduct of MIDA’s alleged agent, Dr. Bikle.

Dr. Hall’s report does not mention MIDA.                 Furthermore, Dr. Hall’s report does not

address MIDA’s alleged failure “to assess the competence of medical staff, including but

not limited to physicians such as Defendant BIKLE” and alleged failure “to develop,

employ and monitor policies and procedures for the care and treatment of patients.”

Thus, Young failed to file an expert report regarding MIDA’s direct liability, if any. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Estevis, 294 S.W.3d at 271

(concluding that the expert report did not support a direct liability claim against the

health care provider because it failed to address all of the required elements); Ctr. for

Neurological Disorders v. George, 261 S.W.3d 285, 294 (Tex. App.—Fort Worth 2008,

pet. denied) (op. on remand) (finding that an expert report was deficient as to a claim for

direct liability against a professional association because it only discussed the

association’s vicarious liability and not its specific conduct); see also In re Knapp Med.

Ctr. Hosp., No. 13-09-00381-CV, 2009 Tex. App. LEXIS 5995, at *9–10 (Tex. App.—

Corpus Christi July 31, 2009, orig. proceeding) (mem. op.) (explaining that because the

plaintiffs raised, in addition to their vicarious-liability claims, direct-liability claims against

the health care provider, the plaintiffs were required to produce an expert report as to

the health care provider’s negligence not based on vicarious liability). Therefore, to the

extent that Young has made any direct-liability claims against MIDA, the trial court did


          Because Young has used such broad language in her petition, and the alleged conduct is not
attributable to Dr. Bikle, it appears that she has made allegations that MIDA is directly liable for her
injuries. See Azle Manor, Inc. v. Vaden, No. 2-08-115-CV, 2008 Tex. App. LEXIS 8414 at *4–5 (Tex.
App.—Fort Worth Nov. 6, 2008, no pet.) (mem. op.) (finding broad language in petition stating that health
care provider “fail[ed] to act as an ordinary prudent person would have under the same or similar
circumstances” and the words “among other things” preceding the enumerated list of acts and omission
“[left] the door open for further allegations of direct liability against Appellants”); see also Estevis, 294
S.W.3d at 270–71; In re Knapp Medical, 2009 Tex. App. LEXIS 5995, at *9–10.


                                                         10
not abuse its discretion by granting MIDA’s motion to dismiss.8 We overrule Young’s

first issue to the extent that she argues that the trial court abused its discretion in

dismissing her direct-liability claims against MIDA.

                                     III.     ATTORNEY’S FEES

       By her second issue, Young contends that there was legally insufficient evidence

to support the trial court’s award of attorney’s fees. MIDA states in its brief that it

“waives any entitlement to attorney’s fees in the interest of expediting this inquiry.”

Accordingly, we dismiss Young’s second issue as moot.

                                        IV.    CONCLUSION9

       We affirm the trial court’s order granting MIDA’s motion to dismiss as it relates to

Young’s direct liability claims against MIDA. We reverse the trial court’s order granting

MIDA attorney’s fees of $2,500 from Young and render judgment that no attorney’s fees

are to be awarded. We reverse the trial court’s order granting MIDA’s motion to dismiss

as it relates to Young’s vicarious liability claims against MIDA and remand the cause to

the trial court for further proceedings.

                                                                       ____________________
                                                                       ROGELIO VALDEZ
                                                                       Chief Justice

Delivered and filed the
29th day of November, 2012.




       8
           “[W]hen no expert report is served within 120 days of filing the claim, a trial court has no
authority to grant an extension.” See Garcia v. Marichalar, 185 S.W.3d 70, 73 (Tex. App.—San Antonio
2005, no pet.). Therefore, no extension is warranted here. See id.
       9
          We need not address Young’s third issue because it is not dispositive of the appeal. See TEX.
R. APP. P. 47.1, 47.4.


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