Affirmed and Opinion filed July 9, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-14-01006-CV

      HOUSTON METHODIST HOSPITAL F/K/A THE METHODIST
                   HOSPITAL, Appellant
                                         V.

                           KARA NGUYEN, Appellee

                    On Appeal from the 234th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2014-17076

                                 OPINION
      Appellant Houston Methodist Hospital brings this interlocutory appeal of the
trial court’s order denying its motion to dismiss the health care liability claims of
appellee Kara Nguyen. Concluding that the Hospital waived its objections to
Nguyen’s expert reports, we affirm.

                                    Background
      This is an interlocutory appeal involving a health care liability claim filed
under chapter 74 of the Civil Practice and Remedies Code.1 Nguyen was
hospitalized on multiple occasions after undergoing surgery to remove her spleen
and gallbladder. She alleges that her injuries were proximately caused by
substandard care provided by four physicians. Nguyen also alleges that the
Hospital is vicariously liable for the physicians’ conduct because the physicians
were agents or employees of the Hospital.
       Nguyen timely filed three expert reports that detailed how each of the four
physicians purportedly proximately caused her injuries by breaching applicable
standards of care. She did not file an expert report that expressly named the
Hospital. Four months later, the Hospital filed its motion to dismiss, arguing that
Nguyen had failed to serve it with an expert report. The trial court denied the
motion.
                                         Discussion
       In its sole issue, the Hospital argues that the trial court abused its discretion
in denying the motion to dismiss, on the basis that Nguyen’s vicarious liability
claim is frivolous. Nguyen responds that the Hospital waived its objections to the
sufficiency of the expert reports by not filing its motion to dismiss before the
statutory deadline.
       We review a trial court’s ruling on a health care provider’s motion to dismiss
a health care liability claim for an abuse of discretion. Obstetrical & Gynecological
Assocs., P.A. v. McCoy, 283 S.W.3d 96, 100 (Tex. App.—Houston [14th Dist.]
2009, pet. denied). In the absence of findings of fact or conclusions of law, we
uphold a trial court’s ruling on a motion to dismiss on any theory supported by the
record and imply any necessary findings of fact to support the ruling. See
       1
         We have jurisdiction over this interlocutory appeal. Tex. Civ. Prac. & Rem. Code
§ 51.014(a)(9); see Neason v. Buckner, 352 S.W.3d 254, 257 (Tex. App.—Houston [14th Dist.]
2011, no pet.) (holding court had jurisdiction over interlocutory appeal in which trial court had
denied an untimely motion to dismiss expert report).

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Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011).
       The Texas Medical Liability Act governs health care liability claims. 2 The
Act requires that after the defendant’s original answer is filed, the claimant must
file and serve one or more expert reports no later than the 120th day after the
defendant’s original answer is filed.3 Tex. Civ. Prac. & Rem. Code § 74.351(a).
Once the claimant files her report,
       [e]ach 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 later of the 21st day after
       the date the report is served or the 21st day after the date the
       defendant’s answer is filed, failing which all objections are waived.
Id. (emphasis added). If a defendant to the health care liability claim has not been
served with an expert report within the time specified by the Act, the court shall,
subject to a discretionary 30-day extension, award the affected defendant
reasonable attorney’s fees and court costs and dismiss the claim with prejudice
with respect to the affected defendant. Id. § 74.351(b)-(c).
       Because Nguyen claims that the Hospital waived its objections to her expert
reports by not filing its motion to dismiss within the 21 days allotted for objections
under the statute, we address that threshold matter first. See McCoy, 283 S.W.3d at
101; Troeger v. Myklebust, 274 S.W.3d 104, 108 (Tex. App.—Houston [14th Dist.]
2008, pet. denied). In making this determination, we are not concerned with

       2
         Tex. Civ. Prac. & Rem. Code §§ 74.001–.507. All references to the Act are to these
provisions.
       3
          An “expert report,” as defined by the Act, is a written report by the expert that
summarizes the expert’s opinions regarding: (1) the applicable standards of care; (2) the manner
in which the care provided by the physician or health care provider failed to meet the described
standards; and (3) the causal relationship between that failure and the injury, harm, or damages
claimed by the plaintiff. Tex. Civ. Prac. & Rem. Code § 74.351(r)(6); see also Scoresby v.
Santillan, 346 S.W.3d 546, 549 (Tex. 2011) (“[A] document qualifies as an expert report if it
contains a statement of opinion by an individual with expertise indicating that the claim asserted
by the plaintiff against the defendant has merit.”).

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whether the expert reports fulfill all statutory requirements. Troeger, 274 S.W.3d at
108. We only are concerned with whether the report implicates the defendant’s
conduct such that the 21-day deadline for objections was triggered. Id. If it does,
then the defendant’s failure to object to the report before the deadline waives its
right to challenge the report on appeal. Neason v. Buckner, 352 S.W.3d 254, 259
(Tex. App.—Houston [14th Dist.] 2011, no pet.); Troeger, 274 S.W.3d at 108. In
that event, we do not consider the merits of the defendant’s objections. See
Neason, 352 S.W.3d at 259; Troeger, 274 S.W.3d at 108.
      The Hospital complains that the expert reports addressed only the doctors’
conduct and did not name the Hospital; however, the Hospital concedes that
Nguyen pleaded that the Hospital was vicariously liable for the conduct of the
doctors. When a health care liability claim involves a vicarious liability theory, an
expert report that adequately implicates the actions of that party’s agents or
employees is sufficient to implicate the party under the vicarious theory. Gardner
v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per curiam); McCoy,
283 S.W.3d at 102–03. And, if any liability theory has been adequately covered,
the entire case may proceed. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632
(Tex. 2013).
      An expert report is not required to name a hospital expressly or identify a
standard of care breached by a hospital if the theory of liability against the hospital
is based upon the actions of the hospital’s physicians. See Univ. of Tex. Med.
Branch at Galveston v. Qi, 370 S.W.3d 406, 413 (Tex. App.—Houston [14th Dist.]
2012, no pet.); see also Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879
(Tex. App.—Dallas 2006, no pet.) (holding that expert reports were not required to
mention the defendant hospital because reports were based upon the actions of
hospital physicians). Because Nguyen filed and served on the Hospital reports
containing expert opinions as to claims against the defendant physicians, thereby
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implicating the Hospital’s conduct under Nguyen’s pleaded theory of vicarious
liability, we conclude that the Hospital was required to file any objections it had to
the reports by the 21-day deadline. See Neason, 352 S.W.3d at 259.
       The Hospital argues its motion to dismiss should have been granted because
it conclusively established the four doctors were not its agents or employees.4 We
disagree. The Hospital was required to present its objections within 21 days of
Nguyen’s serving her expert reports, which it failed to do. See Troeger, 274
S.W.3d at 108 (holding defendant’s failure to object timely waives its right to
challenge expert report).
       The Hospital argues allowing the case to proceed on a potentially frivolous
vicarious liability claim would encourage claimants to artfully plead vicarious
liability claims against hospital defendants to avoid dismissal of those defendants
from the case. See Loaisiga v. Cerda, 379 S.W.3d 248, 261 (Tex. 2012) (holding
expert may consider and assume “validity of matters set out in pleadings in the
suit, absent a showing that the pleadings are groundless or in bad faith or rebutted
by evidence in the record”). The Hospital would have this court add to the
remedies already provided by Texas law, which we decline to do.5 The Hospital
cites Loaisiga for the proposition that the trial court must consider evidence to
show that pleadings are groundless or in bad faith or rebutted by evidence in the

       4
         The Hospital asserts Nguyen’s vicarious liability claim is frivolous because she signed
six consent forms acknowledging that the doctors who treated her were not employees or agents
of the Hospital. We note that the existence of these forms, standing alone, does not necessarily
establish that the doctors were not agents or employees of the Hospital. See, e.g., Kimbrell v.
Mem’l Hermann Hosp. Sys., 407 S.W.3d 871, 877 n.6 (Tex. App.—Houston [14th Dist.] 2013,
no pet).
       5
         We note that, as an alternative to its motion to dismiss, the Hospital moved for sanctions
on the basis that Nguyen’s vicarious liability claim was filed “in bad faith” and is frivolous. See
Tex. Civ. Prac. & Rem. Code §§ 9.001-.014, 10.001-.006; Tex. R. Civ. P. 13, 215.2b. Even if the
Hospital had challenged the trial court’s failure to grant its motion for sanctions, we would not
have jurisdiction to entertain any such complaint in this interlocutory appeal. See generally Tex.
Civ. Prac. & Rem. Code § 51.014(a) (authorizing appeals from certain interlocutory orders).

                                                5
record. Loaisiga, however, holds only that in formulating opinions, a medical
expert must consider, at a minimum, medical records that are relevant to those
opinions, along with the pleadings. Id. at 261. A medical expert is not qualified to
render an opinion on the legal issue of vicarious liability. RGV Healthcare Assocs.,
Inc. v. Estevis, 294 S.W.3d 264, 273 (Tex. App.—Corpus Christi 2009, pet.
denied) (citing Dale, 188 S.W.3d at 879 n.1). Moreover, the Loaisiga court does
not suggest a merits-based evidentiary hearing as to liability when the trial court
considers the adequacy of an expert report. Even if such a conclusion could be
drawn from Loaisiga or the text of section 74.351, the Hospital missed the 21-day
deadline by which to raise such a challenge.
       In its reply brief, the Hospital asserts that it filed its motion to dismiss under
section 74.351(b), which does not impose a deadline for a defendant to file a
motion to dismiss.6 Tex. Civ. Prac. & Rem. Code § 74.351(b). That section,
however, is predicated on the complete failure of a claimant to file an expert report
implicating the health care provider’s conduct. See id. Nguyen’s expert reports are
not the equivalent of the complete absence of an expert report because, as
discussed, they implicate the Hospital’s conduct. See Neason, 352 S.W.3d at 258.
Consequently, section 74.351(b) does not apply, and the Hospital was required to
object to the reports within 21 days. See id.
       The Hospital filed its motion to dismiss more than three months after the
statutory deadline for objections. Consequently, the Hospital waived all of its
objections to the sufficiency of Nguyen’s expert reports, including its argument
that Nguyen’s vicarious liability claim is frivolous. As a result, the trial court did



       6
         We note that the Hospital did not reveal in the body of its initial brief that the motion to
dismiss was filed three months after the expert reports were filed and served or that Nguyen
raised waiver in response to the motion.

                                                 6
not abuse its discretion by denying the Hospital’s motion to dismiss. See McCoy,
283 S.W.3d at 100, 103.
      We overrule the Hospital’s sole issue. We affirm the trial court’s denial of
the Hospital’s motion to dismiss.




                                      /s/       Martha Hill Jamison
                                                Justice




Panel consists of Chief Justice Frost, and Justices Jamison and Busby.




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