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holding that although vicarious liability claims were sufficiently addressed in an expert report, direct liability claims were not, and should have been dismissed
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No. 09-09-00316-CV
Submitted on January 14, 2010.
Opinion Delivered March 4, 2010.
On Appeal from the 60th District Court, Jefferson County, Texas, Trial Cause No. B-182,079.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
Beaumont Bone Joint Institute, P.A. appeals from the trial court's denial of a motion to dismiss health care liability claims. See TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(9) (Vernon 2008). The pleadings reveal that Ted Slaughter injured the palm and index finger of his left hand while he was using a circular saw on July 19, 2006. He went to the emergency room that day, and a physician stitched his palm. Slaughter saw Dr. John Taylor on July 20. Because Dr. Taylor was leaving town, he informed Slaughter that Dr. Kramer, another surgeon at Beaumont Bone Joint, would see Slaughter. That appointment was scheduled for July 26. Dr. Kramer noted that on July 26 Slaughter had necrosis in the palm of his hand and problems with the index finger. Kramer also noted that there had been confusion in scheduling Slaughter's appointment. According to Slaughter's petition, Dr. Kramer noted that the finger was only tenuously viable from a vascular standpoint and would likely need amputation. The next day, Dr. Kramer performed surgery and amputated Slaughter's index finger.
PLAINTIFF'S PETITIONS
Slaughter sued Beaumont Bone Joint and Dr. Taylor. The petition asserted, among other things, that the defendants failed to appropriately examine Slaughter; failed to timely initiate "appropriate and required treatments"; and failed to make "timely referrals or request consultations of specialists[.]" The petition also alleged Beaumont Bone Joint was "vicariously liable for the negligence of its nurses, employees, physicians, technicians, servants and/or agents. . .," including Dr. Taylor. Approximately two weeks after filing the original petition, Slaughter timely served Dr. Elizabeth Bonefas's expert report on the defendants.
Slaughter subsequently filed an amended petition adding allegations of negligence concerning Dr. Charles Domingues (another physician at Beaumont Bone Joint), appointment schedulers Hollie Drake and Chelsea Grass, and medical assistant Carin Long. Though named in the amended petition and their conduct was alleged to be negligent, these individuals were not served or named as defendants. Beaumont Bone Joint filed a motion to dismiss those claims. The trial court denied the motion.
CHAPTER 74
Chapter 74 of the Texas Civil Practice and Remedies Code governs medical liability claims. See TEX. CIV. PRAC. REM. CODE ANN. §§ 74.001-74.507 (Vernon 2005 Vernon Supp. 2009). Under Chapter 74, "a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party's attorney 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) (Vernon Supp. 2009). A party may challenge the expert report by filing objections and a motion to dismiss the claims. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a), (b) (Vernon Supp. 2009).
Slaughter argues this Court does not have jurisdiction of Beaumont Bone Joint's accelerated appeal. Section 74.351(b)(2) provides that if the plaintiff does not serve an expert report within a prescribed time period, the trial court, on the defendant's motion, shall dismiss the claim with prejudice. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(b)(2) (Vernon Supp. 2009). Section 51.014(a)(9) provides that a person may appeal from an interlocutory order that denies all or part of the relief sought by a motion under section 74.351(b). TEX. CIV. PRAC. REM. CODE ANN. § 51.014 (a)(9) (Vernon 2008). The motion to dismiss asserted that no expert report was timely filed concerning the alleged negligent conduct of Domingues, Drake, Grass, and Long. The trial court denied the motion. We have jurisdiction of this interlocutory appeal.
Slaughter also argues that Beaumont Bone Joint's objections to Dr. Bonefas's report are waived because they were not made within twenty-one days of receiving the report. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a). If there was no timely report relating to Dr. Domingues and his alleged negligent conduct or to the direct negligence claims against Beaumont Bone Joint, there was nothing to which Beaumont Bone Joint had to object as to those claims. As to Drake, Grass, and Long, Beaumont Bone Joint's objections reference Slaughter's appointment with Kramer and state that the claim has no factual basis and cannot support causation. We conclude Beaumont Bone Joint did not waive its objections.
ANALYSIS
In its first issue, Beaumont Bone Joint argues that Slaughter's amended petition adds new health care liability claims that must be supported by an expert report. Slaughter asserts he did not plead new claims in his amended petition, and no new expert report was required. Relying on American Transitional Care Centers of Texas, Inc. v. Palacios, he argues that a plaintiff cannot be required to marshal all evidence in the original petition or in the initial report. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). As Slaughter points out, there is a statutory limitation on discovery prior to the service of the expert report. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(s), (u) (Vernon Supp. 2009). He also explains that after he served his expert report, he conducted more discovery, as allowed by the statute, and discovered new facts. See TEX. CIV. PRAC. REM. CODE ANN. § 74.352(h) (Vernon 2005). Slaughter states he did not learn until Dr. Taylor's deposition that Taylor claimed the scheduling personnel mistakenly set Slaughter's appointment "six days out" rather than the following day. Slaughter contends he "re-pled [in the amended petition] to specify additional facts learned through discovery. . . ." He states he filed the amended petition only in response to special exceptions and not to assert new claims.
In the amended petition, Slaughter refers to Dr. Domingues, Drake, Grass, and Long for the first time and asserts certain negligent acts and omissions allegedly attributable to them. The amended petition states that after the emergency room physician evaluated and treated Slaughter on July 19, 2009, Dr. Domingues (Beaumont Bone Joint's on-call orthopedic physician on that date), "without ascertaining the severity of the injury and without knowledge of vascular compromise to the digit, scheduled a follow-up visit with Defendant Dr. Taylor . . . for the following day. . . ." The amended petition also alleges negligent conduct by "the scheduling personnel of Beaumont Bone Joint or Dr. Taylor's staff" for failing to schedule Slaughter's appointment "until six (6) days later — July 26, 2006." In the list of negligence allegations, the amended petition states, as did the original petition, that the defendants failed "to make timely referrals or request consultations of specialists[.]" The amended petition adds to that statement the clause, "including but not limited to Dr. Taylor's referral of Mr. Slaughter to Dr. Kramer and [Beaumont Bone Joint's] untimely and incorrect scheduling of a follow-up appointment for Mr. Slaughter with Dr. Kramer per the request of Dr. Taylor[.]"
Slaughter argues that no expert report is required for liability claims based on the negligence of non-medical staff. Section 74.001(a)(13) provides that a health care liability claim is a "cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant. . . ." TEX. CIV. PRAC. REM. CODE ANN. § 74.001(a)(13) (Vernon 2005) (emphasis added); see generally Marks v. St. Luke's Episcopal Hosp., No. 07-0783, 2009 WL 2667801, at *4 (Tex. Aug. 28, 2009) (not yet released for publication). The claims based on the scheduling by Beaumont Bone and Joint are health care liability claims under the statute and require a timely expert report.
The amended petition pleads vicarious liability against Beaumont Bone Joint for the allegedly negligent conduct of Dr. Domingues, Drake, Grass, and Long. "When 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." Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008); see also Renaissance Surgical Ctrs.-S. Tex., L.L.P. v. Jiminez, No. 13-07-121-CV, 2008 WL 3971096, at *5 (Tex. App.-Corpus Christi Aug. 28, 2008, no pet.) (mem. op.); Casados v. Harris Methodist H-E-B, No. 2-05-080-CV, 2006 WL 2034230, at *4 (Tex. App.-Fort Worth July 20, 2006, no pet.) (mem. op.). As the Supreme Court explained in Gardner, to the extent the plaintiff alleges the health care facility is liable vicariously for a doctor's actions, the expert report requirement is fulfilled as to the facility if the report is adequate as to the doctor. Gardner, 274 S.W.3d at 672. The same is true of other health care providers. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351(r)(6) (Vernon Supp. 2009) (The expert report includes the expert's opinion "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.") (emphasis added). If the report is adequate as to the conduct of the agents or employees, the report is adequate as to the alleged vicarious liability claim against Beaumont Bone Joint.
Dr. Bonefas's report does not explain the standard of care, breach, or causation related to the claimed negligence of Dr. Domingues, the on-call orthopedic physician, who was allegedly contacted by the emergency room doctor on July 19. The amended petition states Domingues failed to ascertain the severity of the injury, and scheduled a follow-up visit for the next day (July 20, 2006). Slaughter saw Taylor on July 20. The report does not address how Dr. Domingues's particular conduct on July 19 constitutes negligence. See Univ. of Tex. S.W. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.-Dallas 2006, no pet.). Because the report does not address Dr. Domingues's alleged negligence, the report is not sufficient to satisfy the expert report requirement as to the claims against Beaumont Bone Joint for his conduct.
The close question is whether Dr. Bonefas's report adequately implicates the alleged negligent conduct of Beaumont Bone and Joint through Grass, Drake, and Long. Dr. Bonefas's report states that "[m]aking an appointment one week out with Dr. Kramer was below the standard of care and represents a deviation[,]" and "the delay in treatment resulted in a lack of function from both a neurological and motor standpoint." Though the report does not name Drake, Grass, and Long, it describes the appointment with Kramer "as previously scheduled by Dr. Taylor and Beaumont Bone Joint Institute[.]" Both the original petition and Bonefas's report describe conduct relating to the alleged untimely scheduling of Dr. Kramer's examination. The addition of the names of the schedulers to the amended petition does not alter the sufficiency of Dr. Bonefas's report as to the failure to timely schedule Slaughter's appointment with Dr. Kramer. We conclude Dr. Bonefas's report apprised Beaumont Bone Joint of the claim that scheduling the appointment "one week out" was beneath the standard of care, a breach of that standard, and causally related to Slaughter's injury. In addressing the conduct of Beaumont Bone Joint regarding the scheduling of Slaughter's appointment with Dr. Kramer, the report satisfies the requirements of section 74.351(a) for that claim. We sustain issues one and two in part.
A day before the filing of the amended petition, Slaughter served on defendants the report of Dr. Joseph Kearney, Jr. Dr. Kearney's report concluded that Dr. Domingues and Beaumont Bone Joint's scheduling staff breached a standard of care by failing to properly schedule a follow-up visit for Slaughter. In his brief and in oral argument in this Court, Slaughter indicated that Dr. Kearney's report is not an expert report governed by Chapter 74 and was not intended to satisfy the statute's requirements. Consequently, we do not consider Dr. Kearney's report in our review of the trial court's denial of the Chapter 74 motion to dismiss, and so need not address issue three.
In issue four, Beaumont Bone Joint argues that Slaughter provided no report to support his allegations of Beaumont Bone Joint's "direct negligence." The claims appellant identifies, contained in both the original and amended petitions, are the following:
(5) Failing to adopt and/or enforce appropriate policies and rules;
(6) Failing to provide and/or engage appropriate staff;
(7) Failing to supervise and/or adequately supervise Defendants' agents, servants, representatives, and/or employees;
(9) Failing to promulgate and/or adhere to Defendants' medical protocol to ensure proper and adequate medical care for the Plaintiff.
Dr. Bonefas's report does not address the claims. See Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App.-Fort Worth 2008, no pet.) (Negligent hiring, training, retention, and supervision are direct negligence claims.). The report is inadequate as to those claims against Beaumont Bone Joint. See Azle Manor, Inc. v. Vaden, No. 2-08-115-CV, 2008 WL 4831408, at **4-5 (Tex. App.-Fort Worth Nov. 6, 2008, no pet.) (mem. op.); see also Ctr. For Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 294 (Tex. App.-Fort Worth 2008, pet. denied) (finding an expert report deficient on a claim for direct liability against a professional association because report only discussed the association's vicarious liability and not its specific conduct). The trial court abused its discretion by denying Beaumont Bone Joint's motion to dismiss claims not addressed in the expert report. We sustain issue four.
CONCLUSION
As to the liability claim against Beaumont Bone Joint for Dr. Domingues's alleged negligent conduct, we reverse the trial court's order denying the motion to dismiss.
As to the vicarious liability claims against Beaumont Bone and Joint for the alleged negligence of Dr. Taylor and the claims that assert negligence related to the scheduling of an appointment with Dr. Kramer, we conclude the trial court did not abuse its discretion by denying the defendant's motion to dismiss.
As to the negligence claims against Beaumont Bone Joint not related to the scheduling of Dr. Kramer's examination and not related to the claims against Dr. Taylor, we reverse the trial court's order denying the motion to dismiss.
We affirm in part, reverse in part, and remand the case to the trial court for entry of an appropriate order and for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.