                                         In The

                                  Court of Appeals
                     Ninth District of Texas at Beaumont
                               _________________
                                 NO. 09-12-00292-CV
                               _________________

   OAK MANAGEMENT SERVICES, INC. AND BURMONT, INC., Appellants

                                           V.

      CATHY MELANCON, INDIVIDUALLY AND AS PERSONAL
   REPRESENTATIVE OF THE ESTATE OF MURIEL BOGGAN, DAVID
  BOGGAN, JOHN BOGGAN, BRUCE BOGGAN, SUSAN RYE, AND CAROL
                       NASH, Appellees

________________________________________________________________________

                   On Appeal from the 88th District Court
                          Hardin County, Texas
                           Trial Cause No. 52315
________________________________________________________________________

                             MEMORANDUM OPINION

       This accelerated appeal of a health care liability case requires that we decide

whether appellants, added after the suit was initially filed, and who are allegedly liable

solely on a theory of vicarious liability for the conduct of the defendant named in

Plaintiffs’ Original Petition, are required to be served with expert reports. We hold that

the Texas Medical Liability Act requires an expert report be served on the newly added

defendants addressing the health care liability claims for which the plaintiffs are

                                            1
attempting to hold newly added defendants liable. See Tex. Civ. Prac. & Rem. Code Ann.

§§ 74.001-74.507 (West 2011 & Supp. 2012). Because Oak Management Services, Inc.

and Burmont, Inc. were not served with an expert report after being added to the suit, we

hold the trial court abused its discretion by denying their motion to dismiss. We reverse

the order denying the motion to dismiss. We remand the case to the trial court for an

order dismissing the claims against Oak Management and Burmont with prejudice and

awarding those entities reasonable attorney’s fees and costs of court. See Tex. Civ. Prac.

& Rem. Code Ann. § 74.351(b) (West 2011).

                                      Background

      Muriel Boggan died while residing in a nursing home operated by Silsbee Oaks

Health Care, L.L.P.1 On June 27, 2011, the Boggans, Cathy Melancon, Individually and

as Personal Representative of the Estate of Muriel Boggan, David Boggan, John Boggan,

Bruce Boggan, Susan Rye, and Carol Nash filed a suit alleging that the negligence of

Silsbee caused Muriel’s personal injury and death. The plaintiffs’ petition alleges Muriel

was to receive a pureed diet, but the nursing home fed her a doughnut on which she

choked, causing her death by asphyxia. With the original petition, the Boggans served

Silsbee with expert reports from a pathologist and a dietician. Subsequently, the Boggans

amended their original petition, adding as defendants Oak Management and Burmont.


      1
        We issued a separate opinion that concerns Silsbee’s interlocutory appeal with
respect to the expert reports that were served on it in Cause No. 52315. See Silsbee Oaks
Health Care, L.L.P. v. Melancon, No. 09-12-00293-CV (Tex. App.—Beaumont Oct. 25,
2012, no pet. h.).
                                             2
The amended petition alleges that Oak Management and Burmont wholly own and

participate in managing Silsbee’s operations.

                   Vicarious Liability for a Health Care Liability Claim

       On April 10, 2012, Oak Management and Burmont moved to dismiss the claims

against them because they had not been served with an expert report within the 120 day

period allowed to serve expert reports under the TMLA. See Tex. Civ. Prac. & Rem.

Code Ann. § 74.351(a) (West 2011). The Boggans did not challenge whether they had

served Oak Management and Burmont with an expert report;2 instead, they argued that

because they sought to impose liability on these entities on a theory of vicarious liability,

no report is required.

       Muriel’s injury and death relate to the allegedly inadequate care that she received

while a resident in Silsbee’s nursing home. The Boggans concede that Silsbee’s facility is

a nursing home, and that their claim against Silsbee is a health care liability claim. With

respect to their claims against Oak Management and Burmont, the Boggans argue that the

TMLA does not apply because their amended petition asserts purely vicarious liability

claims.



       2
        Copies of the expert reports were attached to the original petition served on
Silsbee through its registered agent. The Boggans have neither argued, at trial or on
appeal, that they served a copy of the report on Oak Management, Burmont, or their
counsel within 120 days of having added them to the suit, nor can we determine from the
record that Oak Management and Burmont, or its counsel, were provided with copies of
expert reports within the 120 day period that is at issue.

                                             3
       The Boggans’ argument is foreclosed by a recent opinion of the Texas Supreme

Court. See Loaisiga v. Cerda, No. 10-0928, 2012 WL 3800322 (Tex. Aug. 31, 2012). In

Loaisiga, the two plaintiffs sued Dr. Loaisiga and his professional association, but did not

allege an act of negligence by the P.A. Id. at *1, *11. The Corpus Christi Court of

Appeals held the TMLA did not apply because the plaintiffs had not asserted a health

care liability claim against the P.A. See Loaisiga v. Cerda, No. 13-09-00666-CV, 2010

WL 3049086, at *5 (Tex. App.—Corpus Christi Aug. 5, 2010) (mem. op.), reversed, No.

10-0928, 2012 WL 3800322 (Tex. Aug. 31, 2012). However, in reversing the judgment

of the Court of Appeals, the Supreme Court stated “the expert report requirements are

triggered when a plaintiff names a person or entity as a defendant and seeks to obtain

relief from that defendant based on facts that possibly implicate the TMLA.” Loaisiga,

2012 WL 3800322, at *11. Even though the P.A. would only be vicariously liable for the

doctor’s conduct, the Supreme Court determined that “the TMLA’s expert report

requirements apply to the claims against the P.A. just as they do to the claims against Dr.

Loaisiga individually.” Id. *12.

       Because the Boggans assert a health care liability claim against Silsbee, their

claims against Oak Management and Burmont are also health care liability claims. Id. at

*12. As a result, the Boggans were required to serve an expert report on these defendants

under the TMLA. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Although not

relevant in this case, we note that health care claimants may be able to satisfy the TMLA

by serving a defendant with a copy of an expert report that adequately addresses the
                                             4
conduct of the medical provider who committed the conduct if the defendant’s liability is

purely vicarious. See, e.g., Hiner v. Gaspard, No. 09-07-240 CV, 2007 WL 2493471, at

*5 (Tex. App.—Beaumont Sep. 6, 2007, pet. denied) (mem. op.); In re CHCA Conroe,

L.P., No. 09-04-453 CV, 2004 WL 2671863, *1 (Tex. App.—Beaumont 2004, orig.

proceeding). Nevertheless, the TMLA requires an expert report be served “on each party

or the party’s attorney” after the claim is filed, and that was not done here. Tex. Civ.

Prac. & Rem. Code Ann. § 74.351(a).

       We hold the trial court abused its discretion by denying Oak Management’s and

Burmont’s motion to dismiss. We sustain the sole issue presented for review.

                                         Remedy

       We reverse the trial court’s order denying the motion to dismiss filed by Oak

Management Services, Inc. and Burmont, Inc., and we remand the case to the trial court

with instructions to dismiss the claims against Oak Management Services, Inc. and

Burmont, Inc., with prejudice. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2). We

further instruct the trial court to consider the requests of these defendants for attorney’s

fees and costs. See id. § 74.351(b)(1); Omaha Healthcare Ctr., LLC v. Johnson, 344

S.W.3d 392, 396 (Tex. 2011).

       REVERSED AND REMANDED.
                                                 ________________________________
                                                          HOLLIS HORTON
                                                              Justice
Submitted on September 12, 2012
Opinion Delivered October 25, 2012
Before Gaultney, Kreger, and Horton, JJ.
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