                            NUMBER 13-12-00778-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

CHRISTUS SPOHN HEALTH
SYSTEM CORPORATION
D/B/A CHRISTUS SPOHN,                                                      Appellant,

                                           v.


BRET JOHNSTON AND
THE ESTATE OF KAREN
JOHNSTON                                                                   Appellee.


                    On appeal from the 36th District Court
                           of Bee County, Texas.


                         MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria
      Appellant, Christus Spohn Health System Corporation d/b/a Christus Spohn

Hospital Beeville, appeals the trial court’s order denying its motion to dismiss pursuant
to Chapter 74 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351(b) (West 2011). We affirm.

                                              I. BACKGROUND

       In this case, appellees, Bret Johnston and the Estate of Karen Johnston, have

filed health care liability claims against appellant, as well as Jose L. Zamora, M.D.,

Arthur Chin, M.D., Scott Stein, M.D., Kenzer Dirkson, M.D., and Beeville Angel Care

Ambulance Service, Inc. See id. § 74.001(a)(13) (West Supp. 2011) (defining “[h]ealth

care liability claim”).1 The claims arise from the death of Karen Johnston (“Karen”) on

September 22, 2009.              In September 2009, Karen became ill and presented to

appellant’s emergency room on multiple occasions with flu-like symptoms. On the first

emergency room visit, Karen was examined by Dr. Dirkson, who sent her home. On a

second emergency room visit, Karen was examined by Dr. Zamora, who also sent her

home. In this suit, appellees assert a direct liability claim against appellant for negligent

hiring, supervision, retention and control of emergency room physicians Dirkson and

Zamora (“negligent credentialing claim”).                  Additionally, appellees allege that Drs.

Dirkson and Zamora were agents, employees or servants of appellant and that

appellant is therefore vicariously liable for their actions.

       Appellees timely served upon appellant the expert report and curriculum vitae of

Lige B. Rushing, Jr., M.D. Appellant timely filed objections to the expert report based

on Dr. Rushing’s failure to demonstrate that he was qualified to offer any opinions as to

appellant’s alleged negligent credentialing of Drs. Dirkson and Zamora. In addition,

appellant objected that Dr. Rushing’s report failed to address the elements of standard

of care, breach, and causation for appellees’ negligent credentialing claim.
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           Appellant is the only defendant before this Court in this interlocutory appeal.

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Subsequently, appellees served upon appellant a supplemental report by Dr. Rushing.

Appellant filed objections to the second expert report on the basis that it was untimely

and failed to adequately address the elements of standard of care, breach, and

causation for appellees’ negligent credentialing claim. Appellant also filed a motion to

dismiss, which was limited to appellees’ negligent credentialing claim.

       On December 18, 2012, the trial court conducted a hearing on appellant’s

objections to appellees’ second expert report and appellant’s motion to dismiss. The

trial court overruled appellant’s objections and denied its motion to dismiss.          This

interlocutory appeal ensued. Id. § 51.014(a)(9) (West 2011).

                                       II. ANALYSIS

       In one issue, appellant argues that the trial court erred in denying its motion to

dismiss appellees’ negligent credentialing claim.

A. Standard of Review

       “We review the trial court’s grant or denial of a motion for sanctions and dismissal

under the abuse-of-discretion standard.” Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex.

2010). “A district court abuses its discretion if it acts in an arbitrary or unreasonable

manner without reference to any guiding rules or principles.” Id. (citation omitted).

B. Applicable Law

       “A valid expert report has three elements: it must fairly summarize the applicable

standard of care; it must explain how a physician or health care provider failed to meet

that standard; and it must establish the causal relationship between the failure and the

harm alleged.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (citing

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6)).          “A report that satisfies these



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requirements, even if as to one theory only, entitles the claimant to proceed with a suit

against the physician or health care provider.” Id.

       “The report serves two functions.”         Id.    “First, the report must inform the

defendant of the specific conduct the plaintiff has called into question.” Id. “Second,

and equally important, the report must provide a basis for the trial court to conclude that

the claims have merit.” Id. “A report need not cover every alleged liability theory to

make the defendant aware of the conduct that is at issue.” Id. “For the particular

liability theory addressed, the report must sufficiently describe the defendant’s alleged

conduct.”   Id. at 631.   “Such a report both informs a defendant of the behavior in

question and allows the trial court to determine if the allegations have merit.” Id. “If the

trial court decides that a liability theory is supported, then the claim is not frivolous, and

the suit may proceed.” Id.

       “This approach is consistent with the Legislature’s intent.” Id. “The Legislature’s

goal was to deter baseless claims, not to block earnest ones.” Id. The Texas Supreme

Court has “opined that one purpose of the report requirement is to expeditiously weed

out claims that have no merit.” Id. The Texas Supreme Court has “also stated that the

purpose of evaluating expert reports is to deter frivolous claims, not to dispose of claims

regardless of their merits.” Id. Thus, “[i]f a health care liability claim contains at least

one viable liability theory, as evidenced by an expert report meeting the statutory

requirements, the claim cannot be frivolous.”           Id.   “In sum, 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.

C. Discussion



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       We begin with the Texas Supreme Court’s recent decision in Potts, which we

conclude is controlling in this case. See id. at 629. In Potts, the plaintiff sued a health

care provider, alleging that it was directly and vicariously liable for an assault committed

by its nurse. Id. at 626. The plaintiff provided expert reports; however, the reports did

not address the plaintiff’s direct liability theories. Id. at 627 n.2. The defendant sought

dismissal because the expert reports did not specify how the defendant was directly

negligent.   Id. at 626.     The defendant did not challenge the reports’ adequacy

concerning its vicarious liability. Id. The trial court denied the motion to dismiss. Id.

       On appeal, the Texas Supreme Court rejected the defendant’s argument that

“the trial court must dismiss those theories that are unsupported by a report.” Id. at 629.

The Court explained that “[n]o provision of the [TMLA] requires an expert report to

address each alleged liability theory.” Id. at 630. The Court further explained that “[i]f a

health care liability claim contains at least one viable liability theory, as evidenced by an

expert report meeting the statutory requirements, the claim cannot be frivolous.” Id. at

631. The Court noted that the plaintiff had “demonstrated to the trial court that at least

one of her alleged theories—vicarious liability—had expert support.” Id. On this basis,

the Court “recognized her right to have the entire case move forward” and affirmed the

trial court’s ruling. Id. In addition, we note that the Texas Supreme Court also reached

the same conclusion in Moreno, which involved the same issue. See also TTHR Ltd.

P’ship d/b/a Presbyterian Hosp. of Denton v. Moreno, No. 11-0630, 2013 Tex. LEXIS

271, at *9 (Tex. April 5, 2013) (“Here, because the trial court did not abuse its discretion

in finding Moreno’s reports adequate as to her theory that Presbyterian is vicariously

liable for the doctors’ actions, her suit against Presbyterian—including her claims that



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the hospital has direct liability and vicarious liability for actions of the nurses—may

proceed.”).

       Similarly, in this case, appellees have asserted claims against appellant based

on direct and vicarious theories of liability. Appellant contends that appellees’ expert

reports are deficient with respect to the direct liability claim (i.e., negligent credentialing)

and that dismissal of the direct liability claim was therefore mandatory. However, like

the defendant in Potts, appellant has not challenged the reports’ adequacy concerning

its vicarious liability. Therefore, it was not error for the trial court to conclude that at

least one of appellees’ alleged theories—vicarious liability—had expert support. See

Potts, 392 S.W.3d at 631. Furthermore, under Potts, “if any liability theory has been

adequately covered, the entire case may proceed.” Id. at 632. Therefore, appellees

have the right to have the entire case move forward. See id. at 630. Accordingly, the

trial court did not abuse its discretion in denying appellant’s motion to dismiss. See

Sims v. Kemmerling, No. 09-12-00338-CV, 2013 Tex. App. LEXIS 3060, at *6 (Tex.

App.—Beaumont Mar. 21, 2013, no pet. h.) (mem. op.) (“The trial court may deny the

motion to dismiss if the plaintiff provides a report that is adequate as to any of the

theories alleged.”); see also Huepers v. St. Luke’s Episcopal Hosp., No. 01-11-00074-

CV, 2013 Tex. App. LEXIS 5227, at *15 (Tex. App.—Houston [1st Dist.] April 30, 2013,

no pet. h.) (mem. op.) (holding that because hospital waived adequacy of expert report

with regard to vicarious liability claim, “[n]o further report was required when [plaintiff’s]

petition was amended to add a new theory of vicarious liability against [hospital] based

upon nursing negligence and the trial court erred in granting [hospital’s] motion to

dismiss”).



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      Accordingly, appellant’s issue is overruled.

                                     III. CONCLUSION

      The order of the trial court is affirmed.



                                                  _______________________
                                                  NORA L. LONGORIA
                                                  Justice

Delivered and filed the
23rd day of May, 2013.




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