Opinion issued April 30, 2013




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00074-CV
                           ———————————
   GRETCHEN HUEPERS, INDIVIDUALLY, AND AS INDEPENDENT
    EXECUTRIX OF THE ESTATE OF JAMES HUEPERS, Appellants
                                       V.
              ST. LUKE’S EPISCOPAL HOSPITAL, Appellee



                   On Appeal from the 334th District Court
                            Harris County, Texas
                      Trial Court Case No. 2009-04057



                       MEMORANDUM OPINION

      In this interlocutory appeal, Gretchen Huepers, individually, and as

independent executrix of the estate of James Huepers (“Huepers”), argues that,

having satisfied the requirements for an expert report in this medical negligence
case,1 the trial court’s dismissal of her claims against St. Luke’s Episcopal

Hospital’s (“St. Luke’s”) was error. We agree and reverse and remand.

                                  Background

      James Huepers was admitted to St. Luke’s on August 15, 2007 for suspected

upper gastrointestinal bleeding. After an examination by gastroenterologist Dr.

Susana Escalante-Glorsky, an endoscopy was scheduled for the next day to

confirm her impressions.    That night, however, Mr. Huepers’ blood pressure

dropped to dangerously low levels, prompting resident physician Dr. Antonious

Attallah to order intravenous saline and a blood count determination. The next

morning Huepers vomited blood, passed blood rectally, entered cardiac arrest, and

displayed no pulse. He was revived, however, and the endoscopy performed later

that day identified a large ulcer with a visibly bleeding vessel. Although the

bleeding was stopped, Mr. Huepers never regained neurological function from his

cardiac arrest and died August 19, 2007.

      Huepers sued St. Luke’s for wrongful death resulting from the negligent

conduct of “its resident physician, employee, agent and representative,” Dr.

Attallah. St. Luke’s was timely served an expert report and curriculum vitae of Dr.

David Sales, who opined that the failure to diagnose or recognize Mr. Huepers’

hypotension as a life-threatening hemorrhage and immediately advise his attending


1
      TEX. CIV. PRAC. & REM. CODE. ANN. § 74.351 (West 2011).
                                           2
physician and/or gastroenterologist of that hypotension, deviated from the standard

of care. Had the condition been recognized and the gastroenterologist notified, the

report states, an emergency endoscopy could have been performed to stop the

hemorrhaging that ultimately caused Mr. Huepers’ death.

      During discovery, St. Luke’s disclosed that Dr. Attallah was not a St. Luke’s

employee, as recited in Huepers’ Original Petition, but an employee of Baylor

College of Medicine (“Baylor”). So informed, Huepers amended the pleadings,

dropped St. Luke’s as a party, and named Baylor as vicariously responsible for the

conduct of Dr. Attallah. 2 Subsequent to being added as a defendant, Baylor filed a

motion to designate St. Luke’s as a responsible third party, arguing that despite

having been directed to monitor Huepers’ blood pressure and hemoglobin levels

and report any decline below a certain point to Mr. Huepers’ physicians, Dr.

Attallah included, the St. Luke’s nursing staff failed to do so.3

      The August 4, 2010 deposition testimony of Baylor’s expert, Dr. Hamat,

noted that monitoring Mr. Hueper’s test results and alerting the doctors if his

hemoglobin fell below a certain level was the responsibility of the St. Luke’s

nursing staff. Their failure to follow the directives of the patient’s chart and notify

2
      Huepers served St. Luke’s with a notice of “nonsuit” on August 3, 2009.
      Although characterized as a “nonsuit,” it was a voluntary partial dismissal of
      claims. See C/S Solutions, Inc. v. Energy Maint. Servs. Grp. LLC, 274 S.W.3d
      299, 306–07 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
3
      The motion was granted.

                                           3
the physicians of the change in his hemoglobin level breached the standard of care.

Had it not been for the nursing staff’s breach, Dr. Hamat testified, Mr. Huepers

would have likely survived. The following month, Huepers amended her petition

to reflect her claim that St. Luke’s was vicariously liable for Mr. Huepers’ death

due to the negligent conduct of its nursing staff and, on November 22, 2010, served

St. Luke’s with three additional expert reports authored by Keith Fiman, M.D., Dr.

Hamat, and Bonnie Juneau, Ph.D. in support of the nursing negligence claims. St.

Luke’s objected to these reports as untimely (669 days after the original petition

was filed) 4 and moved to dismiss with prejudice, arguing that 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.

      St. Luke’s further argued that the report authored by Dr. Sales, although

timely, was so deficient as to Huepers claim of nursing misconduct, it constituted

“no report at all”. Huepers filed a response and, in the event the trial court found

any portion of her report to be deficient, requested a thirty-day extension to cure

such deficiencies under section 74.351(c). See TEX. CIV. PRAC. & REM. CODE

§ 74.351(c) (West 2011).


4
      See TEX. CIV. PRAC. & REM. CODE § 74.351(a) (requiring health care liability
      plaintiffs serve expert reports within 120 days of date first petition naming
      defendant filed).

                                         4
      The trial court granted St. Luke’s motion, dismissed Huepers claims with

prejudice, and this interlocutory appeal followed.

                                    Jurisdiction

      St. Luke’s challenges our jurisdiction to consider this interlocutory appeal,

characterizing it as an appeal not from the grant of a motion seeking relief pursuant

to section 74.351(l), but, rather, the grant of a motion to dismiss pursuant to

74.351(b), from which interlocutory order there is no appeal. See TEX. CIV. PRAC.

& REM. CODE § 74.351(b), (l) (West 2011).

      Huepers maintains this to be an interlocutory appeal filed pursuant to section

51.014(a)(10) of the Texas Civil Practice and Remedies Code, 5 which permits

interlocutory appeal from the grant of a defendant’s motion challenging an expert

report’s sufficiency if, after hearing, it appears to the trial court that the report

“does not represent an objective good faith effort to comply with the definition of

an expert report in Subsection (r)(6).”         TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(l).

Standard of Review

      We review a challenge to our jurisdiction de novo. IFS Sec. Grp., Inc. v.

Am. Equity Ins. Co., 175 S.W.3d 560, 562 (Tex. App.—Dallas 2005, no pet.); cf.

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) (explaining that


5
      See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(10) (West Supp. 2012).
                                            5
standard of review for appellate jurisdiction under ripeness doctrine is de novo).

We must dismiss the appeal “[i]f the record does not affirmatively demonstrate

[our] jurisdiction.” IFS Sec. Grp., 175 S.W.3d at 562.

Applicable Law

      In the absence of the entry of a final and appealable order by the trial court,

our jurisdiction to consider an interlocutory appeal is limited to those specifically

authorized by statute. Morris v. Umberson, 312 S.W.3d 763, 765 (Tex. App.—

Houston [1st Dist.] 2009, no pet.) (citing Stary v. DeBord, 967 S.W.2d 352, 352–

53 (Tex. 1998)). Appeal of interlocutory rulings on the expert reports required by

Chapter 74 can proceed under two scenarios—only one of which is applicable

here: when the trial court grants relief sought by a motion under section 74.351(l). 6

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(10). Section 74.351(l) requires a

trial court to grant a defendant’s motion challenging the report’s sufficiency if,

after hearing, 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 in Subsection

(r)(6).” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l).




6
      Section 51.014(a)(9) of the Civil Practice and Remedies permits interlocutory
      appeals when a trial court denies all or part of the relief sought by a motion under
      section 74.351(b). TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9) (West Supp.
      2012). The order here, however, was a grant of relief and section 51.014(a)(9)
      does not apply.

                                           6
Analysis

      Our determination of the jurisdiction issue is premised upon the nature of the

relief sought from the trial court by St. Luke’s motion to dismiss, and is guided not

merely by the motion’s title, but its substance. Castro v. Shell Oil Co., No. 01-10-

00609-CV, 2011 WL 1234382, at *1 (Tex. App.—Houston [1st Dist.] March 31,

2011, no pet.) (mem. op.) (citing Surgitek, Bristol–Myers Corp. v. Abel, 997

S.W.2d 598, 601 (Tex. 1999)). St. Luke’s motion to dismiss argues that no timely

expert report was filed with respect to Huepers’ vicarious liability claim for

nursing negligence since Fiman’s, Hamat’s, and Juneau’s reports addressing the

nursing negligence claim were served 669 days after the original petition was filed.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011). As to Dr. Sales’

report, although timely served, because it failed to address the conduct of the

nurses, St. Luke’s argues it to have been so deficient as to constitute “no report at

all” on the nursing negligence claim. 7 Because the substance of St. Luke’s motion

to dismiss challenged both the timeliness of the Fiman, Hamat and Juneau reports,

as well as the sufficiency of Sales report, we conclude that the trial court’s order

granted the relief sought by the motion under section 74.351(l). See TEX. CIV.


7
      Although objections to the sufficiency of a report must be lodged with 21 days or
      are waived, see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), St. Luke’s
      motion complaining of Dr. Sales’ report challenges the sufficiency of his report
      and thus seeks relief pursuant to section 74.351(l). See TEX. CIV. PRAC. & REM.
      CODE ANN. § 51.014(a)(10).
                                          7
PRAC. & REM. CODE ANN. § 74.351(l) (challenge to sufficiency of expert report).

As such, our consideration of Huepers’ appeal is pursuant to the statutory

jurisdictional grant. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(10).

              WAS THE GRANT OF ST. LUKE’S MOTION TO DISMISS ERROR?

      Huepers’ sole issue contends that the trial court erred in granting St. Luke’s

motion to dismiss since the requirements of section 74.351 were satisfied when Dr.

Sales’ report was timely served because the allegations of nursing negligence are

within the same cause of action to which Dr. Sales’ report speaks.

Standard of Review

      We review the trial court’s ruling regarding expert reports for abuse of

discretion. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Am. Transitional

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court

abuses its discretion if it acts in an arbitrary or unreasonable manner without

reference to any guiding rules or principles. See Walker, 111 S.W.3d at 62. A trial

court does not abuse its discretion merely because it decides a discretionary matter

differently than an appellate court would in a similar circumstance. Maxwell v.

Seifert, 237 S.W.3d 423, 426 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)

(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.

1985)). However, if resolution of the issue requires statutory construction we

apply a de novo standard of review. HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352


                                         8
(Tex. 2009); Stoud v. Grubb, 328 S.W.3d 561, 563 (Tex. App.—Houston [1st

Dist.] 2010, no pet.).

Applicable Law

      Medical-malpractice plaintiffs must serve each defendant physician and

health care provider with an expert report or voluntarily nonsuit the action. TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(a). If a claimant timely furnishes an

expert report, a defendant may file a motion challenging the report’s adequacy. Id.

The trial court shall grant the motion only if, after a hearing, it appears that the

report does not represent a good faith effort to comply with the statutory definition

of an expert report. See id. § 74.351(l). “‘Expert report’ means 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.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Jelinek v. Casas,

328 S.W.3d 526, 540 (Tex. 2010) (“[T]he plaintiff need not marshal all of his

proof in the [expert] report, but he must include sufficient detail to allow the trial

court to determine if the claim has merit.”); Palacios, 46 S.W.3d at 877–78 (expert

report must include expert’s opinions on three statutory elements—standard of

care, breach, and causation); Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 859

                                          9
(Tex. App.—Houston [1st Dist.] 2006, no pet.). “If an expert report has not been

served . . . because elements of the report are found deficient, the court may grant

one 30–day extension to the claimant in order to cure the deficiency.” TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(c).

      The Texas Supreme Court recently affirmed our opinion in Certified EMS,

Inc. v. Potts, albeit on different grounds. Certified EMS, Inc. v. Potts, 355 S.W.3d

683, 691 (Tex. App.—Houston [1st Dist.] 2011), aff’d on other grounds, 392

S.W.3d 625 (Tex. 2013) (Potts I).       In that case, we held that if a medical-

malpractice claimant served a timely expert report that adequately addressed at

least one theory of a defendant health care provider’s liability, that claimant could

proceed with the entire cause of action against that defendant, including any

particular liability theories not addressed by the initial expert report, as long as

those liability theories were contained within the same cause of action (i.e., arose

out of the same set of operative facts). See Potts I, 355 S.W.3d at 691. Noting that

“[t]he focus on operative facts raises more questions than it answers,” the Supreme

Court declined to follow this approach and held instead that a medical-malpractice

claimant can proceed with its case against a defendant so long as it timely files an

expert report that adequately addresses at least one pleaded theory of liability

asserted against that defendant—period. See Certified EMS, Inc. v. Potts, 392

S.W.3d 625, 630, 632 (Tex. 2013) (Potts II). After discussing the gate-keeping

                                         10
function served by section 74.351 and important policy considerations, the Court

concluded its approach was consistent with the legislative intent behind chapter 74.

Id. at 631 (“[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. The Legislature’s goal was to deter baseless claims, not

to block earnest ones;” noting that if chapter 74 was interpreted to require

claimants to serve new report each time new theory of liability was discovered, as

Certified EMS argued, this would “effectively eliminat[e] a claimant’s ability to

add newly discovered theories,” and there was no indication legislature intended

such a result). The Court 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.

Analysis

      Huepers’    service   of   an   expert   report   and   curriculum vitae     of

gastroenterologist Dr. David Sales upon defendant St. Luke’s within 120 days of

filing her original petition complied with the statute. Critical of Dr. Attallah’s,

failure to, inter alia, recognize Mr. Huepers’ life threatening condition and notify

his physicians, Dr. Sales’ report mistakenly described Dr. Attallah as employed by

St. Luke’s. Lodging no objection to the sufficiency of the report with 21 days as

required, St. Luke’s waived any challenges to the adequacy of the report.

                                         11
         When subsequently discovered that Dr. Attallah was an employee of Baylor,

Baylor was named as a defendant and St. Luke’s dropped as a defendant and added

as a responsible third party. Thereafter, further discovery established that St.

Luke’s nursing staff was also responsible for monitoring Mr. Huepers’ test results

and informing his physicians of declines of his hemoglobin or blood pressure,

Huepers amended her pleading to add St. Luke’s as a defendant for its vicariously

liability for Mr. Huepers death based upon the negligent conduct of its nursing

staff.

         Huepers maintains that because Dr. Sales’ previous expert report detailed at

least one viable theory of liability against St. Luke’s, the vicarious liability claim

for nursing negligence set out in her amended petition required no additional

expert report detailing the additional claim. 8

         St. Luke’s argued to the trial court that Huepers’ nursing negligence

argument was a new “health care liability claim” that required her to file a new

expert report; the trial court agreed.      Neither St. Luke’s nor the trial court,

however, had the benefit of the opinions in Potts I and Potts II.

         As the Supreme Court acknowledged in that case, “[i]t may be difficult or

impossible for a claimant to know every viable liability theory within 120 days of

filing suit, and the Act reflects this reality.” Potts II, 392 S.W.3d at 632. The

8
         St. Luke’s appellate briefing focuses on the jurisdictional issue and does not
         address Huepers’ argument with respect to this issue.
                                           12
Court further stated that chapter 74 only requires “the expert report to summarize

the expert’s opinions ‘as of the date of the report,’ and thus, the statute recognizes

that those “opinions are subject to further refinement.” Id. (citing TEX. CIV. PRAC.

& REM. CODE ANN. § 74.351(r)(6)). Moreover, “[d]iscovery can reveal facts

supporting additional liability theories, and the [chapter 74] does not prohibit a

claimant from amending her petition accordingly.” Id.

      Such is the case here. Initially understanding that the St. Luke’s employee

responsible for monitoring Mr. Huepers’ test results was Dr. Attalla, a timely

expert report was served that addressed this theory of vicarious liability. St.

Luke’s did not timely object to the sufficiency of the report, and, thus, it waived

any challenge to the adequacy of the report. No further report was required when

her petition was amended to add a new theory of vicarious liability against St.

Luke’s based upon nursing negligence and the trial court erred in granting St.

Luke’s motion to dismiss. Id.

                                    Conclusion

      We reverse and remand for further proceedings.




                                              Jim Sharp
                                              Justice

Panel consists of Justices Jennings, Sharp, and Brown.
                                         13
