AFFIRM; and Opinion Filed June 4, 2013.




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-12-01428-CV

  ENNIS REGIONAL MEDICAL CENTER AND PETER ANTHONY EVENBLY, R.N.,
                             Appellants
                                V.
   BRENDA CRENSHAW, INDIVIDUALLY AND AS NEXT FRIEND FOR MINORS
   DEVEN COLLINS, JACOBIE COLLINS, AND LONNIE COLLINS, III, Appellees

                      On Appeal from the 160th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-11-07250

                               MEMORANDUM OPINION
                         Before Justices FitzGerald, Murphy, and Lewis
                                  Opinion by Justice Murphy
       Ennis Regional Medical Center appeals the trial court’s denial of its chapter 74 motion to

dismiss Brenda Crenshaw’s health care liability claims. See TEX. CIV. PRAC. & REM. CODE ANN

§ 74.351 (West 2011). Crenshaw brought her wrongful death suit individually and on behalf of

her grandchildren arising from the death of her daughter, Natalie Collins. In a single issue, Ennis

Regional contends Crenshaw’s vicarious liability claims based on the alleged negligence of

unspecified nursing staff should be dismissed because they were not addressed in the expert’s

report. We affirm.

                                        BACKGROUND

       Collins died at Presbyterian Hospital Dallas two weeks after presenting to Ennis Regional

complaining of lower back pain. Crenshaw sued numerous parties, including Ennis Regional;
Peter Anthony Evenbly, R.N., a nurse employed by Ennis Regional who administered Dilaudid

to relieve Collins’s pain; Presbyterian Hospital Dallas, where Collins was transferred the day

after presenting to Ennis Regional; Southwest Pulmonary Associates, the employer of Gary L.

Weinstein, M.D.; and a number of doctors, including Weinstein.

       Presbyterian Hospital Dallas and Evenbly originally were part of this appeal. They

dismissed their appeals prior to oral submission. Accordingly, our recitation of background

information and our analysis are limited to Ennis Regional unless context requires otherwise.

       Regarding Ennis Regional, Crenshaw alleged in the original petition that Evenbly

negligently administered an excess dose of Dilaudid and Ennis Regional was responsible for

Evenbly’s negligent actions under the theories of respondeat superior and vicarious liability.

Crenshaw timely served Ennis Regional with an expert report by Matthew C. Lee, M.D. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (requiring service of an expert report within 120

days of filing an original petition). Lee opined in that report that “the medically probable

explanation for Ms. Collins’ respiratory arrest is administration of an overdose of Dilaudid by

[Evenbly].” Lee also stated that his opinions were “limited to the breaches of the standard of

care at Ennis Regional Medical Center in administering the narcotic overdose, and the fact that

the resultant brain injury was a substantial factor in bringing about Ms. Collins’ death.”

       Approximately a year later, Crenshaw filed an amended petition.            Regarding Ennis

Regional, Crenshaw added allegations “the nursing and other staff at [Ennis Regional]” breached

the applicable standards of care and alleged Ennis Regional is liable for those breaches under

theories of respondeat superior and vicarious liability. Crenshaw also amended her negligence

claims against Evenbly, alleging he administered the Dilaudid too rapidly and failed to attend to

Collins after doing so. She did not serve a new expert report.




                                                –2–
       Ennis Regional filed a chapter 74 motion to dismiss Crenshaw’s new claims based in

relevant part on the limited opinions Lee provided in his original report regarding the Dilaudid

overdose. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b). Ennis Regional complained

that Crenshaw’s amended petition added entirely new allegations against Ennis Regional and

“unidentified employees” as well as a new theory of negligence against Evenbly.             Ennis

Regional sought dismissal of the new claims because they were not mentioned in Lee’s expert

report. The trial court denied the motion, and Ennis Regional appealed. See TEX. CIV. PRAC. &

REM. CODE ANN. § 51.014(a)(9) (West Supp. 2012) (allowing interlocutory appeal from an order

denying all or part of the relief sought by a motion under secion 74.351(b)).

       The same day Ennis Regional filed its reply brief in this appeal, the Texas Supreme Court

issued its opinion in Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013). The court in

Potts held that “an expert report that adequately addresses at least one pleaded liability theory

satisfies the statutory requirements, and the trial court must not dismiss in such a case.” Id. at

632. The court disapproved any cases that previously held differently. Id.

       We allowed the parties to file supplemental briefs after issuance of the Potts decision. In

response, Presbyterian Hospital Dallas and Evenbly forewent their appeals. Ennis Regional and

Evenbly conceded in their supplemental brief that “Potts requires affirmance of the trial court’s

decision in this matter as to [Evenbly]” and withdrew Evenbly’s appeal. Presbyterian Hospital

Dallas’s dismissal similarly was based on “a change in Texas law regarding section 74.351

expert reports” as announced in Potts and TTHR Ltd. P’ship v. Moreno, No. 11-0630, 2013 WL

1366028 (Tex. Apr. 5, 2013).

       Ennis Regional remains the sole appellant, maintaining Crenshaw’s new vicarious

liability claims based on unidentified “nursing and other staff” not mentioned in Lee’s expert

report cannot survive. We therefore address that issue.

                                               –3–
                                          DISCUSSION

                                       Standard of Review

       We review a trial court’s ruling on a motion to dismiss under chapter 74 for an abuse of

discretion. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006) (per curiam); Key v. Muse,

352 S.W.3d 857, 859 (Tex. App.—Dallas 2011, no pet.). Under that standard, we may not

substitute our judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839–40

(Tex.1992) (orig. proceeding). The test for determining an abuse of discretion is whether the

trial court acted without reference to any guiding rules and principles.            See Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). Stated differently, a trial

court abuses its discretion if its decision is arbitrary and unreasonable. Id. at 242. A trial court

has no discretion in determining what the law is or applying the law to the facts. Walker, 827

S.W.2d at 840.

                                         Applicable Law

       Crenshaw was required to comply with the expert-report requirements of chapter 74 of

the Texas Civil Practice and Remedies Code to proceed with her health care liability suit. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351; Stockton v. Offenbach, 336 S.W.3d 610, 614

(Tex. 2011). A valid expert report must provide: (1) a fair summary of the applicable standards

of care; (2) the manner in which the physician or health care provider failed to meet those

standards; and (3) the causal relationship between that failure and the harm alleged. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(r)(6); Moreno, 2013 WL 1366028, at *3. A report is

sufficient to meet the requirements of chapter 74 if it represents “an objective good faith effort to

comply with the definition of an expert report.” See TEX. CIV. PRAC. & REM. CODE ANN. §

74.351(l); Bakhtari v. Estate of Dumas, 317 S.W.3d 486, 489 (Tex. App.—Dallas 2010, no pet.).




                                                –4–
                                   Certified EMS, Inc. v. Potts

       Several appellate court decisions before Potts had discussed the extent to which an expert

report must examine every liability theory alleged. See Potts, 392 S.W.3d at 627. The cases had

reached varied results. Id. Some appellate courts determined an expert report that addressed

only a single liability theory was sufficient for the entire suit to proceed. Id. at 627–28. Others

insisted that any liability theory not addressed by an expert report must be dismissed. Id. at 628.

       Potts resolved the issue. An expert report that satisfies the statutory requirements for

one theory of liability alleged against a defendant is sufficient for the entire suit to proceed

against that defendant. Moreno, 2013 WL 1366028, at *1; Potts, 392 S.W.3d at 632.

       The supreme court explained in Potts that an expert report serves two functions. Potts,

392 S.W.3d at 630. First, it informs the defendant of the specific conduct the plaintiff has called

into question. Id. Second, it provides a basis for the trial court to conclude the claims have

merit. Id. The supreme court reasoned that an expert report need not cover every alleged

liability theory to make the defendant aware of the conduct at issue, and the claim is not

frivolous if that liability theory is supported. Id. at 631. The court also reasoned that this

approach is consistent with the legislature’s intent. “The Legislature’s goal was to deter baseless

claims, not to block earnest ones.” Id.

                                             Analysis

       Ennis Regional concedes the expert report complies with chapter 74 regarding the

allegations against Evenbly and the vicarious liability claims based on those allegations. It

complains about new vicarious liability claims based on new unidentified, unnamed parties.

Specifically, it argues that “[a]s expansive as [Potts] is, it is impossible to read Potts (or any

other case, and much less §74.351 itself) as approving a new complaint in an amended petition

against a party in personam who is not mentioned, and whose alleged conduct is not mentioned,

                                                –5–
in an earlier expert report.” Ennis Regional emphasizes that had Crenshaw’s amended petition

added as parties the new “nurse-staff members (perhaps as John Does),” whose conduct

(unrelated to the drug overdose claims) serves as the basis of Ennis Regional’s vicarious liability,

a chapter 74 motion to dismiss as to those new parties would result in “[c]ertain dismissal.” It

likens the situation to a vicarious liability claim “in the abstract.”

        Ennis Regional insists the holding and reasoning in Potts do not include the situation

presented by Crenshaw’s amended petition. It distinguishes Potts by arguing (1) Potts did not

involve new post-expert-report allegations, and (2) the issue in Potts was whether the adequate

expert report relating to vicarious claims against the medical provider required dismissal of

direct liability claims not mentioned in the report. Underscoring the factual link in Potts between

the conduct giving rise to the direct liability claims against the provider and the conduct

supporting the vicarious liability claims against the provider, Ennis Regional asserts the court’s

holding does not encompass the situation where the new claims are wholly unrelated to the

conduct and care covered by the expert report. Specifically, it argues “the new charge against

the ‘nurses-staff’ is not a new ‘liability theory’” but “a new ‘health care liability claim.’”

        Two decisions issued after Potts are relevant to an understanding of the scope of that

decision and our analysis of Ennis Regional’s arguments. A few months after Potts, the supreme

court decided Moreno. That case concerned an infant injured during birth. See Moreno, 2013

WL 1366028, at *1. The mother brought health care liability claims against the hospital where

the birth occurred, its nurses, and two doctors involved with the labor. She alleged both direct

and vicarious liability claims against the hospital. The court of appeals concluded the expert

reports were inadequate regarding the direct liability claims against the hospital and regarding

the vicarious liability claims based on the nurses’ actions. Regarding the vicarious liability

claims based on the doctors’ negligence, the court concluded the reports were adequate. Id. On

                                                  –6–
review, the supreme court agreed the expert reports addressing the hospital’s vicarious liability

for the actions of the doctors were adequate. Id. at *2, *3. Following its Potts decision, the court

concluded the case could proceed against the hospital regarding all claims, “including [the

wife’s] claims that the hospital has direct liability and vicarious liability for actions of the

nurses.” Id. at *2, *3.

       The second case is Huepers v. St. Luke’s Episcopal Hosp., No. 01-11-00074-CV, 2013

WL 1804470 (Tex. App.—Houston [1st Dist.] Apr. 30, 2013, no. pet. h.). In this case, a wife

filed suit against St. Luke’s when her husband suffered cardiac arrest while in the hospital’s care.

Huepers, 2013 WL 1804470, at *1. She initially sued St. Luke’s for the negligent conduct of

one of its doctors and timely filed an expert report opining on the hospital’s vicarious liability.

Id. No party contested the sufficiency of that report. During discovery, the wife learned the

doctor was employed by Baylor College of Medicine. Id. The wife amended her petition by

dropping St. Luke’s and adding Baylor as a defendant. Later, after Baylor moved to designate

St. Luke’s as a responsible third party and its expert testified that St. Luke’s nursing staff

breached the standard of care by failing to monitor the patient’s hemoglobin levels and notify the

doctors of any changes, the wife amended her pleadings again; she added St. Luke’s back into

the lawsuit as a defendant based on vicarious liability for its nursing staff. Id. The wife served

three additional expert reports regarding the claims based on the negligence of the nursing staff.

St. Luke’s objected to these reports as untimely and moved to dismiss the wife’s new vicarious

liability claims because “the claim as to the nurses’ conduct was separate and distinct from the

vicarious liability claim asserted against St. Luke’s in the original petition and, as such, required

a timely expert report.” Id. at *1. The trial court dismissed the new claims, and the Houston

appellate court reversed and remanded; it concluded that under Potts “[n]o further report was




                                                –7–
required when [the wife’s] petition was amended to add a new theory of vicarious liability

against St. Luke’s based upon nursing negligence . . . .” Id. at *5.

       The courts in both Moreno and Huepers allowed all claims against the hospital to

continue once the expert report or reports satisfied the statutory requirements on one theory of

liability. In Moreno, the report adequately addressed the vicarious liability claim based on

physician negligence, and the case was allowed to proceed as to both direct liability and

vicarious liability based on the nurses’ negligence. Similarly, in Huepers, the unchallenged

expert report addressing the hospital’s vicarious liability based on physician negligence was

sufficient to allow the case to proceed against the hospital based on a new “health care liability

claim” added approximately a year after suit was filed and that involved claims for nursing staff

negligence. See Huepers, 2013 WL 1804470, at *5.

       Neither the supreme court in Moreno nor the appellate court in Huepers distinguished

between links in factual allegations or the timing of the claims. Ennis Regional’s distinction that

Potts did not involve new post-expert-report allegations appears of no consequence based on

these cases. Nor do the cases distinguish between new claims unrelated to the conduct and care

covered by the expert report. Huepers, like the circumstances presented by Ennis Regional here,

involved the argument the new vicarious liability claims—based on “nursing staff” negligence—

were new health care liability claims. The court rejected that argument.

       These decisions are consistent with the reasoning in Potts. The expert report requirement

is a threshold for cases to proceed. If an expert report on a single liability theory against a

particular defendant satisfies the statutory requirements, the lawsuit is not frivolous as to that

defendant. See Potts, 392 S.W.3d at 631. Discovery allows a claimant to develop and pursue—

or to refine and drop—liability theories and claims. Summary judgment motions and other




                                                –8–
procedural mechanisms allow the parties and the trial court to identify the facts to be tried and

the law to be applied to those facts.

       Ennis Regional concedes Lee’s expert report complies with chapter 74 regarding the

allegations against Evenbly and the related vicarious liability claims against Ennis Regional.

Accordingly, the trial court did not abuse its discretion in denying Ennis Regional’s motion to

dismiss based on vicarious liability claims associated with nursing staff negligence. We overrule

the sole remaining issue in this appeal and affirm the trial court’s judgment.




                                                      /Mary Murphy/
                                                      MARY MURPHY
                                                      JUSTICE


121428F.P05




                                                –9–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

ENNIS REGIONAL MEDICAL CENTER                         On Appeal from the 160th Judicial District
AND PETER ANTHONY EVENBLY,                            Court, Dallas County, Texas
R.N., Appellants                                      Trial Court Cause No. DC-11-07250.
                                                      Opinion delivered by Justice Murphy.
No. 05-12-01428-CV         V.                         Justices FitzGerald and Lewis participating.

BRENDA CRENSHAW, INDIVIDUALLY
AND AS NEXT FRIEND FOR MINORS
DEVEN COLLINS, JACOBIE COLLINS,
AND LONNIE COLLINS, III, Appellees

    In accordance with this Court’s opinion of this date, the appeal as to appellant PETER
ANTHONY EVENBLY, R.N. is DISMISSED.

       The judgment of the trial court denying ENNIS REGIONAL MEDICAL CENTER’s
motion to dismiss is AFFIRMED.

     It is ORDERED that appellees BRENDA CRENSHAW, INDIVIDUALLY AND AS
NEXT FRIEND FOR MINORS DEVEN COLLINS, JACOBIE COLLINS, AND LONNIE
COLLINS, III recover their costs of this appeal from appellants ENNIS REGIONAL MEDICAL
CENTER AND PETER ANTHONY EVENBLY, R.N.


Judgment entered this 4th day of June, 2013.




                                                  /Mary Murphy/
                                                  MARY MURPHY
                                                  JUSTICE


                                               –10–
