
 
 




NUMBER 13-08-00113-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 
 
RGV HEALTHCARE ASSOCIATES, INC. & 
LEGEND RGV McALLEN LP D/B/A LEGEND
TRANSITIONAL CARE- McALLEN,			   	        Appellants,

v.

OFELIA ESTEVIS, ODELIA MARROQUIN, 
OREFELINDA CARDENAS, DELIA FLORES, MIKE
MARROQUIN, BALDEMAR MARROQUIN, OFELIA
M. ESTEVIS, AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF SANTOS MARROQUIN,	  	         Appellees.


On appeal from the 332nd District Court 
of Hidalgo County, Texas.


O P I N I O N

Before Chief Justice Valdez and Justices Rodriguez and Vela
 Opinion by Chief Justice Valdez

 
	Appellants, RGV Healthcare Associates, Inc. &  Legend RGV McAllen LP d/b/a
Legend Transitional Care-McAllen (collectively "RGV Healthcare"), appeal the denial of
their motion to dismiss the healthcare liability claims brought by Odelia Marroquin,
Orfelinda Cardenas Delia Flores, Mike Marroquin, Baldemar Marroquin, and Ofelia M.
Estevis, individually and as personal representative of the Estate of Santos Marroquin
(collectively "the Marroquins") for the wrongful death of Santos Marroquin.  By a single
issue, RGV Healthcare argues that the expert report submitted by the Marroquins does not
constitute a good-faith effort to comply with the expert report requirements.  See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(b), (l), (r)(6) (Vernon Supp. 2008).  We affirm in part and
reverse and remand in part.
I. Background
	On June 1, 2005, Santos, a ninety-three year old woman, was admitted to RGV
Healthcare for rehabilitation of a post-stroke condition.  Santos suffered from diabetes, high
blood pressure, coronary artery disease, and congestive heart failure.  On the morning of
June 4, 2005, nurses discovered that Santos's lower right leg was cool and did not have
a pulse.  At noon, Santos was transferred to the emergency room at Rio Grande Regional
Hospital, and she underwent an embolectomy to remove an embolism that had developed
in her right leg.  During the procedure, the surgeon discovered that Santos's right leg was
pre-gangrenous and amputated it above-the-knee.  On June 10, 2005, Santos's lower left
leg was noted to be cool, but no further surgical intervention was ordered.  Santos then
developed atrial fibrillation, a fever, and a urinary tract infection.  She died on June 13,
2005.
 On March 26, 2007, the Marroquins sued RGV Healthcare, J. Michael Koch, M.D., (1)
Pablo, a registered nurse, and Gracie, a certified nurse's aide. (2)  The Marroquins alleged
that RGV Healthcare was:  (1) directly liable for Santos's death, (2) vicariously liable under
the doctrine of respondeat superior for Pablo's and Gracie's negligence, and (3) liable for
negligent hiring and supervision (collectively "the Marroquins's liability theories").  RGV
Healthcare answered with a general denial, pleaded for limitations under chapter 74 of the
civil practice and remedies code, see Tex. Civ. Prac. & Rem. Code Ann. §§ 74.301, 74.302,
74.303 (Vernon 2005), and asserted various affirmative defenses.  
	On July 24, 2007, the Marroquins tendered an expert report by Lige B. Rushing,
M.D., who, after reviewing Santos's medical records from RGV Healthcare and Rio Grande
Regional Hospital, opined that:
The standards of care for a long-term care facility and its nursing staff such
as [RGV Healthcare] requires that they provide that level of care and
treatment that a reasonable, prudent, and similar facility would provide under
the same or similar circumstances.

Each resident must receive and the facility must provide the necessary care
and services to attain or maintain the highest practicable, physical, mental,
and psychosocial well being, as defined by and in accordance with the
comprehensive assessment and plan of care.

In order to meet the standards of care in this case, Mrs. Marroquin should
have had a daily body check.  This means examination of the upper
extremities and the lower extremities and her body for evidence of edema,
skin integrity, and whether the skin was dry, evidence of abrasions, tears,
ulcers, and the temperature of the skin.  

In this case when the cold right leg was noted, her physician was notified.

The problem is that the arterial occlusion of the right leg more likely than not
occurred 24-36 hours prior to its discovery.  This is evidenced by the fact that
her leg was beyond salvage when she first arrived at the hospital.

By the time Mrs. Marroquin arrived at Rio Grande Medical Center, her leg
was beyond salvage and there was no option, but to amputate her leg.

If the arterial occlusion had been discovered earlier then more likely then not
her leg could have been salvaged by the performance of an embolectomy. 
The failure of the nurses to appropriately monitor Mrs. Marroquin
resulted in their failure to detect the arterial thrombosis at or near the
time it occurred.  As a result, more likely than not, of the stress and trauma
she developed congestive heart failure, atrial fibrillation, and subsequently
multiorgan failure i.e. kidney, liver and heart, which resulted in her death.

It should be noted that Mrs. Marroquin was stable until the time she
developed her acute arterial occlusion.  Had the acute arterial occlusion
been diagnosed in a timely fashion th[e]n more likely than not the thrombus
could have been removed and she would have survived.

(Emphasis added.)	
	On August 13, 2007, RGV Healthcare filed objections to Rushing's report on the
grounds that it did not define the standard of care, breach, and causation as to each
defendant.  Regarding the causation element, the objection referenced what appears to
be a medical report about a different patient's injuries because it asserts:
Here, Plaintif[s]'s sole statements with regard to causation are: "[t]his
combination of procedures potentially altered blood flow to the nipple
resulting in eventual necreosis;" and "[t]he cumulative effect of these
procedures appears to have caused nipple ischemia and eventual nipple
necrosis and loss of tissue."  Similar to Costello, these statements are
conclusory because they do not explain how or why the alleged failure to
meet the standard of care caused pressure ulcer development.  Further, the
statements do not explain the medical basis or reasoning for the conclusion
that Defendant's alleged breach "appears to have caused nipple ischemia
and eventual necrosis and loss of tissue."  As a result, the statements are
conclusory and thus fail to satisfy the Chapter 74 requirements.

(citations omitted.) (3)  RGV Healthcare also moved to dismiss the suit.  See id. § 74.351(b). 
The Marroquins responded by claiming that Rushing's report was adequate as to the
standard of care, breach, and causation and that it represented a good-faith effort to
comply with Chapter 74.  In the event that the trial court found the report deficient, the
Marroquins requested a thirty-day extension to file an amended report.  See id. §
74.351(c).
	On October 3, 2007, a hearing on RGV Healthcare's objections and motion to
dismiss was held, and the trial court accepted post-hearing letter briefs.  On February 12,
2008, the trial court overruled the objections and denied the motion to dismiss.  This
interlocutory appeal ensued.  See id. § 51.014(a)(9) (Vernon 2008).
II. Discussion
	In a single issue, RGV Healthcare argues that the trial court abused its discretion
in denying the motion to dismiss because the Marroquins failed to serve a proper expert
report.  
A.	Standard of Review and Applicable Law
	We review the trial court's decision to deny 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).  The trial court is limited to reviewing the information within the four
corners of the report.  Id. at 878.  "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)).  An appellate court may not reverse
for abuse of discretion simply because it would have decided the matter differently. 
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985).
	"With respect to resolution of factual issues or matters committed to the trial court's
discretion, for example, the reviewing court may not substitute its judgment for that of the
trial court."  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.
Conversely, a trial court has no discretion in determining what the law is or in applying the
law to the facts.  "[A] clear failure by the trial court to analyze or apply the law correctly will
constitute an abuse of discretion."  Id.
	Section 74.351 requires that a plaintiff serve on each party "one or more expert
reports, with a curriculum vitae of each expert listed in the report for each physician or
health care provider against whom a liability claim is asserted."  Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(a).  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).
	To qualify as a "good-faith effort," the report must "provide enough information to
fulfill two purposes":  (1) it must "inform the defendant of the specific conduct the plaintiff
has called into question," and (2) it must "provide a basis for the trial court to conclude that
the claims have merit."  Palacios, 46 S.W.3d at 879.  "A report that merely states the
expert's conclusions about the standard of care, breach, and causation does not fulfill
these two purposes.  Nor can a report meet these purposes and thus constitute a
good-faith effort if it omits any of the statutory requirements."  Id.
B.	Waiver
 At the outset, we address whether RGV Healthcare waived its challenge to the
causation element because its objection does not reference Rushing's report at all. 
Instead, RGV Healthcare assails the adequacy of Rushing's report by referring to an expert
report on a different patient's maladies. (4)  At oral argument, the Marroquins suggested that
the objection was insufficient and did not preserve the issue for our review because it
erroneously referenced a different expert report.  RGV Healthcare contended that its
objection was properly preserved because the Marroquins, by responding to the objection,
apparently comprehended it.  In their written response, the Marroquins did not reference
RGV Healthcare's causation argument; they simply urged the trial court to find Rushing's
report sufficient on all of the elements. 
	RGV Healthcare's "apparently it was preserved" argument belies the fact that it had
the burden to articulate an objection and assumes that, by responding to what they
considered a generic, boilerplate objection, the Marroquins converted an incoherent
objection into a sufficient one.  See Tex. R. App. P. 33.1 (providing the prerequisites to
preserving a complaint for appellate review); Estate of Veale v. Teledyne Indus., Inc., 899
S.W.2d 239, 242 (Tex. App.-Houston [14th Dist.] 1995, writ denied) (providing that the
burden is on the complaining party to present a sufficient record to the appellate court to
show error requiring reversal).  Accordingly, RGV Healthcare's objection to "Rushing's
report" on the ground that it was conclusory in opining on the cause of Santos's "nipple
necrosis" and "pressure ulcer development" is insufficient because it is not related to the
facts of this case, presents nothing for our review, and is waived.
C.	Direct Liability
	The Marroquins pleaded, inter alia, that RGV Healthcare was directly liable for the
allegedly negligent care that Santos received.  Before the trial court, RGV Healthcare
objected to Rushing's opinion on its deviation from the standard of care on the ground that
his report did "not explain what [RGV Healthcare] should have done differently and d[id]
not put [RGV Healthcare on] notice of the complained of conduct."  On interlocutory
appeal, RGV Healthcare argues that the report did not specifically identify it by name with
to regard to how it breached the standard of care.  We agree.  
	Although Rushing opines that RGV Healthcare was required to "provide that level
of care and treatment that a reasonable, prudent, and similar facility would provide under
the same or similar circumstances," his report implicates only the conduct of Pablo and
Gracie, RGV Healthcare employees.  See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669,
671-72 (Tex. 2008) (per curiam) (holding that "[w]hen 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.").  Rushing's report did not speak as to how RGV Healthcare's
direct conduct, such as the implementation of procedures, policies, or rules that could have
ensured vigilant care, deviated from the applicable standard of care.  See Ctr. for
Neurological Disorders v. George, 261 S.W.3d 285, 294 (Tex. App.-Fort Worth 2008, pet.
denied) (op. on remand) (finding an expert report 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).  Accordingly, there is nothing in the record to support
the trial court's decision, and we hold that it abused its discretion by denying RGV
Healthcare's objection to Rushing's report as it related to the Marroquins's direct liability
claims.
D.	Vicarious Liability
	1. The Taylor Case
	RGV Healthcare contends Rushing's report is deficient because it does not
delineate the standard of care and breach for Pablo's and Gracie's individual conduct.  To
support its contention, RGV Healthcare relies on this Court's opinion in Taylor v. Christus
Spohn Health Sys. Corp., 169 S.W.3d 241 (Tex. App.-Corpus Christi 2004, no pet.).  In
Taylor, a healthcare liability claimant sued an emergency room physician, a hospital, two
cardiologists, and a cardiology association under Chapter 74's predecessor.  Id. at 242. 
The claimant tendered an expert report that presented only a single standard of care and
asserted that it was equally applicable to all parties involved.  Id. at 246.  The defendants
moved for dismissal on the grounds that the report was conclusory and that it improperly
grouped all the defendants together, thereby failing to specifically address the standard of
care and breach of duty with respect to each defendant.  Id. at 243.  The trial court granted
the defendant's motion and dismissed the suit.  Id. at 242.  We affirmed and noted that
"[c]ollective assertions of negligence against various defendants are inadequate."  Id. at
244 (citing Doades v. Syed, 94 S.W.3d 664, 671-72 (Tex. App.-San Antonio 2002, no
pet.)).  
 Taylor is distinguishable because it did not deal with healthcare liability claims
asserted under a theory of vicarious liability.  The defendants in Taylor were unique
healthcare providers who had all been served, appeared before the trial court, and
objected to the expert report offered by the claimant.  No where in Taylor did we mention
vicarious liability claims.  In this case, the Marroquins sued RGV Healthcare, Pablo, and
Gracie.  Pablo and Gracie have not been served and are not parties to this appeal.  As to
RGV Healthcare, the Marroquins asserted three liability theories against it, and they
presented a report that singled out alleged omissions made by RGV Healthcare's nurses. 
RGV Healthcare, responding to only the vicarious liability theory, objected to the report
because it did not delineate the expert report requirements as to Pablo, Gracie, and itself
and relied on Taylor as on point authority.
 Taylor, however, does not require that an expert report delineate and define
allegedly negligent conduct as between an agent and a principal because it implicitly dealt
with direct liability claims.  Furthermore, in a memorandum opinion issued four years after
Taylor, we declined to draft the rule that RGV Healthcare urges on us.  See Jimenez, 2008
Tex. App. LEXIS 6857, at **12-21. (5)
	The dissent posits that our holding in this case conflicts with Taylor because that
case stands for the proposition that an expert report must explain how each defendant
breached the standard of care.  It does, when each defendant is sued on a theory of direct
liability, is served with citation, answers the suit, and challenges the expert report.  But that
is not the case here.  In essence, the dissent ignores the procedural posture of Taylor to
read into the case its own unprecedented requirement that an expert report detail specific
and discrete conduct of individual employees--in this case Pablo and Gracie--whose
standard of care has already been defined as a class.  We will not contort our precedent
to result such a result.
	2. The Railsback Case
	The Marroquins argue that Rushing's report properly set forth the standard of care
for nurses--the positions that Pablo and Gracie held while employed by RGV
Healthcare--and how they breached that standard of care.  They direct us to the Railsback
case as supporting authority.  In University of Texas Medical Branch v. Railsback, a
healthcare liability claimant sued the hospital where she had an allegedly negligent knee
surgery and the surgeons who performed the procedure.  259 S.W.3d 860, 862 (Tex.
App.-Houston [1st Dist.] 2008, no pet.).  The claimant asserted that the hospital was
directly liable and vicariously liable for the surgeon's and nursing staff's negligence.  Id. 
She tendered an expert medical report that detailed the standard of care for the surgeon
and the "operating room nursing staff," but it never referenced any nurse by name.  Id. at
866-67.  The hospital objected to the report and moved for dismissal, but the trial court
denied the hospital's objection and motion.  Id. at 864.  
	On interlocutory appeal, the hospital argued that the report could not support, inter
alia, the claims for direct liability and vicarious liability based upon the nursing staff's
alleged negligence.  Id. at 864-66.  The Houston First District Court of Appeals held that
the trial court abused its discretion by not dismissing the direct liability claims.  Id. at 866. 
It also held that the trial court did not abuse its discretion in denying the hospital's motion
to dismiss as to the vicarious liability claims because the claimant had not named any
nurse as a defendant.  Id. at 868 (citing Kettle v. Baylor Med. Ctr. at Garland, 232 S.W.3d
832, 841 (Tex. App.-Dallas 2007, pet. denied); Tovar v. Methodist Healthcare Sys. of San
Antonio, Ltd., 185 S.W.3d 65, 70 (Tex. App.-San Antonio 2005, pet. denied)).
	RGV Healthcare focuses on the clause noting that the claimant had not named any
nurse as a defendant and contends that Railsback is distinguishable from this case
because the Marroquins named Pablo and Gracie as defendants.  But, neither the
Railsback Court nor the two courts that it cites explain why an expert report may group
nurses together if a hospital is alleged to be vicariously liability for their actions and the
nurses are not sued.  Furthermore, RGV Healthcare has not provided us with a rationale
for the "not sued" requirement.  Given the lack of supporting rationale for the "not sued"
requirement, that Pablo and Gracie have not been served and are not parties to this
appeal, and that Rushing's report details the conduct of vicariously liable parties, we see
no reason to apply it in the instant case.
	3. Analysis
	Section 74.351 requires that the plaintiff serve on each defendant whose conduct
is implicated by a healthcare liability claim an expert report that sets forth the standard of
care, breach of that standard, and causation.  Tex. Civ. Prac. & Rem. Code Ann. §
74.351(a), (r)(6).  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.  Univ. of
Tex. Sw. Med. Center v. Dale, 188 S.W.3d 877, 879 (Tex. App.-Dallas 2006, no pet.).  In
fact, a medical expert would not be qualified to render such an opinion on the legal issue
of vicarious liability.  Id. 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."). 
	If the report identifies conduct by the hospital's employee, the hospital is implicated,
and as long as the report adequately addresses the standard of care applicable to the
employee, how the employee breached the standard of care, and that the breach caused
the plaintiff's injury, it is sufficient as against the hospital to satisfy the expert report
requirement for the vicarious liability claims.  Dale, 188 S.W.3d at 879; see also Casados
v. Harris Methodist H-E-B, No. 02-05-080-CV, 2006 Tex. App. LEXIS 6357, at *12 (Tex.
App.-Fort Worth 2006, no pet.) (mem. op.) (holding plaintiff satisfied expert report
requirements with respect to vicarious liability claims by filing expert report detailing
negligence of doctors, for whose actions hospital was liable).
	Rushing's report provided that the standard of care for nurses at rehabilitation
facilities such as RGV Healthcare was to perform daily body checks of the extremities for,
among other things, body temperature.  As to breach, the report notes that Rushing
reviewed RGV Healthcare's medical records, and the report does not mention whether
daily body checks were noted in the records.  Accordingly, we hold that the trial court did
not abuse its discretion by relying on Rushing's report to satisfy the expert report
requirements on the Marroquins's vicarious liability claims against RGV Healthcare.
E.	Negligent Hiring and Supervision
 The Marroquins's third liability theory against RGV Healthcare is that it negligently
hired and supervised employees.  The context of Rushing's report clearly implicates RGV
Healthcare's role as Pablo's and Gracie's supervisor.  However, neither before the trial
court nor on interlocutory appeal has RGV Healthcare articulated an objection, issue, or
argument in which it asserts that Rushing's report was deficient as to the Marroquins's
negligent hiring and supervision theory.  Accordingly, the issue is waived.  See Tex. R. App.
P. 33.1.  Cf. Obstetrical & Gynecological Assocs., P.A. v. McCoy, No. 14-08-00762-CV,
2009 Tex. App. LEXIS 2410, at *14 (Tex. App.-Houston [14th Dist.] Apr. 9, 2009, pet. filed)
(holding that a professional association's objection regarding the sufficiency of an expert
report's opinion on a claimant's vicarious liability claim against the association is waived
when a proffered report detailing the association's doctor's conduct sufficiently implicated
the association and the association did not object).  (6)
	RGV Healthcare's first issue sustained in part, and overruled in part.
III. Conclusion
	We affirm the trial court's order denying RGV Healthcare's objections as it relates
to the Marroquins's claims for vicarious liability and negligent hiring and supervision.  We
reverse the trial court's order as it relates to the Marroquins's direct liability claim.  The
case is remanded so that the trial court may consider whether to grant a thirty-day
extension to cure defects in the report.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c);
Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008). 

   				ROGELIO VALDEZ
							Chief Justice


Dissenting In Part and Concurring In Part Opinion
by Justice Rose Vela.
 
Opinion delivered and filed on 
this the 2nd day of July, 2009. 
1.  Michael Koch, M.D., was Santos's attending physician at RGV Healthcare.  The Marroquins
subsequently nonsuited him, and he is not a party to this appeal.
2.  The Marroquins did not know Pablo's and Gracie's last names when they filed suit, and despite
discovery, the family has not ascertained their last names.  To date, Pablo and Gracie have not been served
in the underlying suit, and they are not parties to this appeal.
3.  A review of the record does not reveal that the Marroquins's claims involve nipple necrosis or
pressure ulcers.  RGV Healthcare's objections were never amended within the twenty-one day period to
reference Rushing's report as to causation.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp.
2008).
4.  RGV Healthcare never amended its objection to Rushing's report within the twenty-one day period
after Rushing's report was served.  Admittedly, RGV Healthcare filed a letter brief on September 20, 2007. 
However, by that date the trial court could have only considered the August 13, 2007 objections.  See 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).
5.  In Jimenez, healthcare liability claimants sued a surgical facility, the surgeon, two nurses, and a
certified registered nurse anesthetists ("CRNA").  Renaissance Surgical Centers-South Texas, L.L.P. v.
Jimenez, No. 13-07-00121-CV, 2008 Tex. App. LEXIS 6857, at **2-3 (Tex. App.-Corpus Christi Aug. 28,
2008, no pet.) (memo op.).  The claims against the surgical facility were brought under theories of direct and
vicarious liability.  Id. at **12-25.  As to the vicarious liability theory against the surgical facility, the claimants
tendered a report by an anesthesiologist that outlined alleged omissions made by the CRNA.  Id. at **12-14. 
The surgical facility objected on the grounds that the report did not specifically identify it nor explain how it was
vicariously liable, and it moved for dismissal.  Id. at *15.  The CNRA also moved for dismissal.  Id. at *2, n3.
The trial court denied both motions to dismiss.  Id. at *5.  Only the surgical facility appealed, and we affirmed. 
Id. at *21.
6.  The dissent summarily states that because "the Marroquins failed to serve an expert report
addressing their claims for negligent hiring, supervision, training, and retention, I believe that the trial court
was required to dismiss the complained-of claims upon appellants' request."  The problem with the dissent's
position is that RGV Healthcare never lodged an objection against Rushing's report as to the aforementioned
claim and never moved to dismiss that claim. 

