Opinion
NO. 03-16-00192-CV
10-13-2016
United Seating and Mobility, L.L.C. d/b/a Numotion, Appellant v. Carolyn Edenbaum and Davis Edenbaum, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-14-002992, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDINGMEMORANDUM OPINION
United Seating and Mobility, L.L.C., d/b/a Numotion brings this interlocutory appeal from the trial court's order denying its objections to one of appellees' expert reports and motion to dismiss. See Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(9) (authorizing interlocutory appeal from order denying relief sought under section 74.351(b) of Texas Medical Liability Act (TMLA)), 74.351(b) (generally requiring dismissal of health care liability claim on motion of affected physician or health care provider when claimant fails to comply with threshold expert report requirement). Because we conclude that the trial court did not abuse its discretion, we affirm the trial court's order.
BACKGROUND
Appellees sued Numotion, James Conwell, and Active American Scooter Company in August 2014 asserting health care liability claims arising from injuries that appellee Carolyn Edenbaum allegedly sustained while using a power wheelchair that was provided to her by the defendants.See id. § 74.001(a)(13) (defining "health care liability claim"). In their amended petition, appellees alleged that the defendants were negligent by: (i) failing to properly assess Ms. Edenbaum on the "potential and proper use of the power chair in question picked and provided by defendants"; (ii) "[f]ailing to properly instruct [her] on the ordinary care and safe use" of the power wheelchair and "to ensure that she could do so"; (iii) "[f]ailing to provide appropriate and necessary instruction and safety training to ensure [she] could safely operate the power chair"; (iv) "[f]ailing to properly provide written instructions and/or an operating manual on the power chair" to her; and (v) "[p]roviding a power chair to [Ms. Edenbaum] "that was unsuited and/or dangerous to her and that caused her substantial injuries and damages." Appellees also alleged that defendant James Conwell was an "authorized agent/employee or representative" of Active American Scooter Company and/or Numotion and that he was acting within the "course and scope of his employment and/or authority" when he delivered the power wheelchair to Ms. Edenbaum as a "loaner," and their claims against Numotion included that it was "vicariously liable for the actions and/or inactions of Defendant Conwell, under the legal doctrine of respondent superior."
Appellee Carolyn Edenbaum died during the pendency of this case. Barbara Misle, as representative of her estate, has filed briefing on behalf of her estate. The other two defendants, Conwell and Active American Scooter Company, are not parties to this interlocutory appeal.
In February 2015, appellees served Numotion with an expert report by James C. Brady, a licensed and practicing physical therapist, and his curriculum vitae. See id. § 74.351(a) (requiring claimant asserting health care liability claims as threshold matter to serve expert report with curriculum vitae "for each physician and health care provider against whom a liability claim is asserted"). In his report, Brady stated he was "qualified by training and experience" to offer an expert opinion on the "applicable standards of care required in the proper treatment of patients by a physical therapist, as well as for health care providers and vendors who participate [in] the assessment and appropriation of durable medical equipment, including power wheelchairs" and recited his work experience, training, and underlying facts related to appellees' claims against the defendants, the applicable standard of care, and his opinions that the defendants were negligent and that their negligence was a proximate cause of injury to Ms. Edenbaum.
Numotion filed objections to the expert report of Brady and a motion to dismiss. Numotion argued that Brady failed to establish that he was qualified to offer an expert report with respect to Numotion as to the applicable standard of care, breach, and causation; that he failed to set out the standard of care and alleged breach applicable to a durable medical equipment supply company such as Numotion; and that he could not testify about causation because he was not a physician. Following a hearing, the trial court granted Numotion's objections to Brady's report and qualifications with regard to causation but overruled all of Numotion's other objections, denied its motion to dismiss, and gave appellees 30 days to cure Numotion's objections with regard to causation. In response, appellees filed an expert report by Dr. Mark Thornton, a physician, and his curriculum vitae.
In his expert report, Dr. Thornton stated his qualifications as an expert and then recited substantially the same underlying facts, applicable standard of care, and opinions as Brady offered in his report. Dr. Thornton, however, provided a more detailed explanation as to proximate cause. Numotion thereafter filed objections to Dr. Thornton's report and another motion to dismiss. Numotion argued that Dr. Thornton's report failed to provide a "fair summary" regarding causation and failed to establish that he was qualified with respect to the standard of care, breach, and causation as applicable to Numotion. Following another hearing, the trial court denied Numotion's objections to Dr. Thornton's report and motion to dismiss. This interlocutory appeal followed.
ANALYSIS
In one issue with multiple subsections, Numotion challenges the trial court's denial of its objections to Dr. Thornton's report and motion to dismiss. Numotion argues that the trial court erred in failing to dismiss appellees' case because: (i) Dr. Thornton failed to provide sufficient evidence that he had the expertise necessary to provide an opinion on the standards of care and alleged breach by Numotion; (ii) Dr. Thornton's expert report did "not sufficiently address the standards of care and alleged 'breach' of care that allegedly was delivered by Appellant, Numotion"; (iii) Dr. Thornton "failed to provide any evidence that he had the expertise necessary to provide an opinion on the causation of Appellees' injuries based on Numotion's alleged breach"; and (iv) Dr. Thornton's report did not "sufficiently address the causal relationship between the alleged failure and the injury, harm or damages claimed."
Chapter 74 Expert Report Requirements and Standard of Review
Section 74.351 of the TMLA provides a 120-day window for a claimant who is asserting a health care liability claim to serve each defendant physician and health care provider with an expert report with the expert's curriculum vitae. See Tex. Civ. Prac. & Rem. Code § 74.351(a). "The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits." Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011). Two functions of the expert report are to "inform the defendant of the specific conduct the plaintiff has called into question" and "provide a basis for the trial court to conclude that the claims have merit." Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (quoting American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)).
A trial court should not grant a motion challenging the adequacy of an expert report unless "it appears to the court, after hearing, 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 § 74.351(l). "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." Potts, 392 S.W.3d at 630 (citing Tex. Civ. Prac. & Rem. Code § 74.351(r)(6)). "A report that satisfies these requirements, even if as to one theory only, entitles the claimant to proceed with a suit against the physician or health care provider." Id.; see Scoresby, 346 S.W.3d at 549 (holding that "document qualifies as an expert report if it contains a statement of opinion by an individual with expertise indicating that the claim asserted by the plaintiff against the defendant has merit"). In making its evaluation, "[t]he trial court should look no further than the report itself, because all the information relevant to the inquiry is contained within the document's four corners." Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
Section 74.351(r)(6) of the TMLA defines an expert report to mean:
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 § 74.351(r)(6).
We review a trial court's denial of a motion to dismiss brought under section 74.351 of the TMLA for an abuse of discretion. TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013); Palacios, 46 S.W.3d at 877. "Under that standard, appellate courts defer to the trial court's factual determinations if they are supported by evidence, but review its legal determinations de novo." Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). "A trial court abuses its discretion if it rules without reference to guiding rules and principles." Id. With these standards in mind, we turn to Numotion's arguments.
Adequacy of Dr. Thornton's Expert Report
Among its arguments in the subsections to its issue, Numotion argues that Dr. Thornton is not qualified to provide opinions on the standard of care, breach, or causation with respect to Numotion, a durable medical equipment supply company, and that he did not sufficiently address the applicable standard of care or Numotion's alleged failure to meet that standard. Numotion, however, on appeal has not challenged the trial court's rulings as to Brady's expert report. A claimant may satisfy the expert report requirements "by serving reports of separate experts . . . regarding different issues arising from the conduct of a physician or health care provider, such as issues of liability and causation." See Tex. Civ. Prac. & Rem. Code § 74.351(i); Mitchell v. Satyu, No. 05-14-00479-CV, 2015 Tex. App. LEXIS 6127, at *12 n.3 (Tex. App.—Dallas June 17, 2015, no pet.) (mem. op.) (noting that "expert report requirement may be satisfied by utilizing more than one expert report" and that "courts may read the reports together").
Here the trial court only sustained Numotion's objections to Brady's report as to causation. See Shaw v. West, No. 07-14-00181-CV, 2014 Tex. App. LEXIS 10715, at *7-8 (Tex. App.—Amarillo Sept. 24, 2014, no pet.) (mem. op.) (observing that, although non-physician was not qualified to testify on causation, non-physician may be expert on other matters, assuming otherwise qualified). In his report, Brady provided his qualifications for offering an opinion and then opined about the applicable standard of care and how Numotion failed to meet that standard, informing Numotion of "the specific conduct" that appellees alleged was negligent and providing "a basis for the trial court to conclude that the claims have merit." See Potts, 392 S.W.3d at 630 (quoting Palacios, 46 S.W.3d at 879). Thus, regardless of the adequacy of Dr. Thornton's expert report, we cannot conclude that the trial court abused its discretion in finding that appellees' expert reports when considered together were adequate with respect to the applicable standard of care and Numotion's alleged failure to meet that standard. See Nexion Healthcare Mgmt., Inc. v. Sosa, No. 05-15-01083-CV, 2016 Tex. App. LEXIS 3763, at *9-10 (Tex. App.—Dallas Apr. 12, 2016, no pet.) (mem. op.) (noting that, because health care provider had not challenged nurse's expert report on standard of care or breach of standard of care on appeal, nurse's report properly read together with doctor's report).
As previously noted, however, the trial court granted Numotion's objections to Brady's qualifications and report with regard to causation. We turn then to Numotion's challenge to Dr. Thornton's qualifications to offer an opinion on causation and its argument that Dr. Thornton did not provide evidence that "sufficiently summarized the causal relationship between Numotion's alleged negligence and the alleged injuries, harm, or damages claimed by appellees" to determine whether the trial court abused its discretion in denying Numotion's motion to dismiss and overruling its objections to Dr. Thornton's qualifications and report on these grounds.
Section 74.351(r)(5)(C) of the TMLA includes within the definition of an expert "with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence." See Tex. Civ. Prac. & Rem. Code § 74.351(r)(5)(C); see also id. § 74.403(a) (addressing qualifications of expert witness on causation in health care liability claim). Under Texas Rule of Evidence 702, an expert must have "knowledge, skill, experience, training, or education" regarding the specific issue before the court. Tex. R. Evid. 702.
When the expert is qualified to offer an opinion on causation, "[t]he causation requirement is met if the report explains the basis of the expert's statements linking his conclusions to the facts." See Nexion Healthcare, 2016 Tex. App. LEXIS 3763, at *4-5; see id. at *10 ("[A] casual relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm, and that absent the act or omission, the harm would not have occurred."). An expert report, however, "need not cover every alleged liability theory to make the defendant aware of the conduct that is at issue" and a report that satisfies the requirements as to one theory of liability is sufficient for the trial court to conclude that the claim is not frivolous and that the suit may proceed. See Potts, 392 S.W.3d at 630-31 (noting that "expert report requirement is a threshold mechanism to dispose of claims lacking merit" and contrasting expert report requirement with role of pleadings, discovery, and "full development of all liability theories" for summary judgment and trial stages); see also Tex. Civ. Prac. & Rem. Code § 74.351(r)(6) (requiring "fair summary" of expert's opinions with respect to causal relationship between failure to meet standard of care and "injury, harm, or damages claimed" (emphasis added)).
Numotion focuses on Dr. Thornton's lack of experience working for a durable medical equipment provider to support its position that he is not qualified to offer an opinion on causation. Dr. Thornton's report and curriculum vitae, however, contain information from which the trial court could have concluded that he was qualified to testify about the causal relationship between the injury claimed by Ms. Edenbaum and the alleged departure from the applicable standard of care by Numotion. See Nexion Healthcare, 2016 Tex. App. LEXIS 3763, at *7 (rejecting argument that doctor was not qualified because he did not have training or experience in nursing home and explaining that relevant question on doctor's qualification as to causation was "whether he [was] knowledgeable through his training and experience to opine on the causal relationship between the alleged departure from the accepted standards of care and the injuries suffered").
Dr. Thornton's report stated that he was a licensed, practicing primary-care physician who was board certified in internal medicine, treating "a wide spectrum of common illnesses in adult men and women, including conditions present in Ms. Edenbaum and assessments of the need for power wheelchairs," and that he had more than 30 years of experience "of assessing individuals for wheelchair appropriateness, reporting the assessment and the resulting opinion as to what wheelchair is appropriate to durable medical equipment vendors as well as to Medicare and other payors, and working personally with the vendors and therapists in provision of the recommended equipment for the patients."
Turning to Dr. Thornton's opinions in his report on causation, Numotion argues that his report is insufficient because he failed to address Ms. Edenbaum's injuries and damages as claimed in appellees' petition that were based on Ms. Edenbaum's required surgery from the injury and "excruciating attempted recovery," arguing that Dr. Thornton failed to "discuss the severity of the alleged wound, the alleged surgery or her continued treatment and alleged wound care as claimed by Appellees." Numotion also argues that Dr. Thornton's opinions on causation are "wholly conclusory" because he did not discuss Ms. Edenbaum's "mental capacity or her fitness," her "ability to understand how to operate a power wheelchair," or how she operated the power wheelchair "without incident" from February 13 to March 6.
Dr. Thornton, however, recited underlying facts about Ms. Edenbaum's treatment and need for a power wheelchair "to effectively manage daily activities" and her lack of ability to safely operate the "loaner" power wheelchair that was supplied by Conwell and then linked those facts to his opinion as to the proximate cause of the alleged injury to Ms. Edenbaum as follows:
In summary, the lack of an assessment by the Defendants prior to providing the "loaner" PWC [power wheelchair], and subsequent failure to adequately train the Plaintiff and caregivers in its safe use, or to replace the "loaner" PWC with a more appropriate device, resulted in the provision of a power wheel chair that was unsafe for the Plaintiff's level of ability and comprehension, which was a proximate cause of the injury to Ms. Edenbaum. It was a proximate cause because it is readily foreseeable that if an elderly person like Ms. Edenbaum is placed in a power wheelchair to be unsupervised, and that person is not fit or competent to use or operate the particular powered chair without supervision, the person could easily and foreseeably be involved in an accident and be injured when left unsupervised. When people cannot or don't understand how to accurately control their motorized
wheelchairs, they can be injured or cause significant damage. It is foreseeable that a driver who cannot control the speed or direction on the powered vehicle may end up slamming into an object or pedestrian, or may accidentally hit a wall or another stationary object, harming himself or herself in the process. That is precisely what occurred here when Ms. Edenbaum's leg was slammed into a bed and cut open when she lost control of the wheelchair and it moved without her intending it to, cutting her leg severely against a bed.See Wright, 79 S.W.3d at 52 (requiring expert to "explain the basis of his statements to link his conclusions to the facts"); Nexion Healthcare, 2016 Tex. App. LEXIS 3763, at *10 (requiring expert report to "link the causation opinions to the alleged breach").
Reviewing Dr. Thornton's report as a whole, the trial court within its discretion could have concluded that he adequately explained his causation opinions with reference to specific underlying facts such that Numotion had notice of the complained-of conduct and that appellees' claims have merit. See Potts, 392 S.W.3d at 630 (noting that functions of expert report are to "inform the defendant of the specific conduct the plaintiff has called into question" and "provide a basis for the trial court to conclude that the claims have merit"); Columbia N. Hills Hosp., Subsidiary, L.P. v. Tucker, No. 05-14-00056-CV, 2014 Tex. App. LEXIS 13685, at *6 (Tex. App.—Dallas Dec. 22, 2014, no pet.) (mem. op.) ("We review a causation opinion in the context of the entire report when assessing its sufficiency."); see also Christian Care Ctrs., Inc. v. Golenko, 328 S.W.3d 637, 647-48 (Tex. App.—Dallas 2010, pet. denied) (finding that expert report that "articulated the required causal relationship" between alleged failure to meet applicable standards of care and plaintiff's death was sufficient as to causation); UHS of Timberlawn, Inc. v. S.B. ex rel. A.B., 281 S.W.3d 207, 213-15 (Tex. App.—Dallas 2009, pet. denied) (concluding that expert report sufficiently linked health care provider's negligence with alleged harm or injuries—sexual assault of complainant by another patient—to provide sufficient basis for trial court to conclude that claim had merit and that trial court did not abuse discretion in denying motion to dismiss).
Accordingly, we conclude that the trial court did not abuse its discretion by denying Numotion's motion to dismiss and objections to Dr. Thornton's report that were based on his qualifications and opinions as to causation. See Tex. Civ. Prac. & Rem. Code § 74.351(l) (precluding trial court from granting motion challenging adequacy of expert report if report represents "objective good faith effort to comply with definition of expert report"); Texas San Marcos Treatment Ctr. v. Payton, No. 03-14-00726-CV, 2015 Tex. App. LEXIS 11818, at *12 (Tex. App.—Austin Nov. 18, 2015, no pet.) (mem. op.) (noting that expert's assertions on causation were "tied to the facts and standards of care laid out by [expert]" and showed connection alleged between act or omission and injuries and, thus, concluding that trial court did not abuse discretion by finding report to be good-faith effort to inform health care provider of basis of claim and denying motion to dismiss).
Did Dr. Thornton improperly group the defendants together when addressing causation?
Among its arguments in its subsections to its issue, Numotion argues that Dr. Thornton's report improperly addressed and grouped all defendants together and was conclusory. In their reports, Brady and Dr. Thornton generally refer to the "defendants," stating the same standard of care and alleged breaches of that standard by the defendants collectively. The trial court, however, could have concluded that the same standard of care applied to the defendants, including Numotion, because they were alleged to be within the same category of health care providers—the suppliers of the power wheelchair. See Livingston v. Montgomery, 279 S.W.3d 868, 871-73 (Tex. App.—Dallas 2009, no pet.) (rejecting arguments that expert reports were inadequate because they "'lumped together' all of the doctors and all of the nurses" and that the "trial court should not have permitted [the expert] to identify one standard of care for more than one defendant" and, in reaching decision to reject arguments, distinguishing reports at issue from report in another case that was found inadequate because it "addressed the conduct of several different categories of health care providers—including a hospital, a doctor's association, and an emergency room doctor" without differentiating between different categories as to standard of care); In re Stacy K. Boone, P.A., 223 S.W.3d 398, 405-06 (Tex. App.—Amarillo 2006, orig. proceeding) (concluding that report was adequate that stated same standard of care as to multiple defendants and distinguishing report at issue from report in another case that was found inadequate because it failed to explain standard of care of individual defendants who "'owed different duties to the deceased'" (citation omitted)).
Brady stated the standard of care in his report as follows:
The standard of care required of the Defendants for the provision of powered medical equipment, such as a PWC, which requires comprehension of consistently safe operation by the user, is for the Vendor of the equipment to assure appropriateness of the equipment given the user's medical condition and mental status, via direct assessment and in conference with medical professionals and caregivers for the user, and to assure the user's ability to safely operate the equipment prior to and at the time of delivery. This should include hands-on training and provision of sufficient operation and safety instructions.In his report, Dr. Thornton agreed with Brady's statement of the standard of care.
We find the cases cited by Numotion that address deficiencies in expert reports because the reports improperly lumped defendants together to be factually distinguishable. See, e.g., Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244-46 (Tex. App.—Corpus Christi 2004, no pet.) (concluding that expert report with "single standard of care" had improperly grouped "emergency room physician, a hospital, and cardiology association, among others" together "without providing an explanation of how each defendant specifically breached the standard and how that breach caused or contributed to the cause of injury" because each defendant owed different duties to patient); Eichelberger v. St. Paul Med. Ctr., 99 S.W.3d 636, 638-39 (Tex. App.—Dallas 2003, pet. denied) (concluding that expert report was inadequate as to multiple defendants, including medical center, emergency department, and doctors, because it did "not mention any of the appellees by name or summarize the ways in which any of the appellees breached the standard of care or caused [plaintiff] any injury"); Doades v. Syed, 94 S.W.3d 664, 667, 672 (Tex. App.—San Antonio 2002, no pet.) (holding that expert report was inadequate as to doctor, speciality clinic, and hospital because it failed "to set forth the standard of care for each health care provider and contain[ed] mere conclusions regarding breach and causation"); Rittmer v. Garza, 65 S.W.3d 718, 720, 722 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding that "expert report [did] not discuss the standard of care or causation with sufficient specificity to inform the defendant doctors of the conduct . . . called into question" and noting that plaintiff conceded that "her expert provided a report which did not explicitly set out the causal relationship between the individual doctor's failure to meet the standard of care and the injury, harm, or damages claimed"). --------
Further, appellees' claims against Numotion include that Numotion is vicariously liable for Conwell's conduct, and Brady and Dr. Thornton in their reports specifically identify complained-of actions taken by Conwell—the alleged agent or representative of Numotion—that, in their opinions, breached the applicable standard of care. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008) ("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."); see also St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541-42 (Tex. 2002) (citing Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998)) ("Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong.").
For example, Brady in his report included the following recited facts:
• Ms. Edenbaum was determined by her doctor and therapists to need a powered mobility device, such as a wheelchair, to effectively manage daily activities at home, as well as slide boards and family education on assisting her.In his report, Dr. Thornton similarly recited the above facts but also addressed alleged conduct by Conwell in his section addressing the defendants' breaches of the standard of care, expressly opining: "Despite not knowing if the 'loaner' PWC was safe for Ms. Edenbaum's use, and despite the unsafe operational incidents that occurred before she left for Granite Mesa, no initial or additional training, manuals or efforts to assure her safety were provided to Ms. Edenbaum by Conwell when it should have been."
• Active American Scooter Co., United Seating & Mobility and James Conwell, the Defendants were enlisted to meet, evaluate and provide Ms. Edenbaum the appropriate device.
• Mr. Conwell met Ms. Edenbaum at the rehab center and left a "loaner" powered wheelchair (PWC) with the patient while at the rehab center on 2/13/13. No manual, no adequate operational safety instruction, nor adequate hands on training were provided.
• Notations by the therapists were made on 2/14/13 and again 2/15/13 that Ms. Edenbaum's ability to safely operate the wheelchair was poor and at times unsafe, requiring repeated verbal instructions by the therapists on how to utilize the controls safely.
• The Defendant Mr. Conwell returned on 2/17/13 to meet with the therapist and Ms. Edenbaum to conduct a "power wheelchair assessment," and again did not provide manuals nor further assessment or training to address the safety concerns, nor take steps to provide a safer alternative device suitable for Ms. Edenbaum given her capabilities and conditions. He left the "loaner" PWC with the Edenbaums and was not heard from again before or after her discharge from rehab on 2/18/14 [sic] and transfer to the Granite Mesa nursing facility.
• The Plaintiffs were left utilizing the "loaner" PWC at Granite Mesa . . . to the date of the injury 3/6/13 without further contact from the Defendants.
Based on the above recited facts and opinions as to Conwell's complained-of conduct, the trial court within its discretion could have concluded that the expert reports were adequate with respect to appellees' asserted theory of vicarious liability against Numotion and that appellees therefore satisfied the threshold expert report requirement to proceed with their suit against Numotion. See Potts, 392 S.W.3d at 630-31 (concluding that expert report "need not cover every alleged liability theory to make the defendant aware of the conduct that is at issue" and that report that satisfies requirements for one theory of recovery entitles the claimant to proceed with suit against health care provider); see also Moreno, 401 S.W.3d at 44-45 (concluding that "because the trial court did not abuse its discretion in finding Moreno's reports adequate as to her theory that [hospital] is vicariously liable for the doctors' actions, her suit against [hospital]—including her claims that the hospital has direct liability and vicarious liability for actions of the nurses—may proceed"). Thus, on this record, we reject Numotion's argument that the trial court abused its discretion in denying Numotion's motion to dismiss and objections to Dr. Thornton's expert report on the ground that he improperly grouped the defendants together.
CONCLUSION
For these reasons, we overrule Numotion's issue and affirm the trial court's order.
/s/_________
Melissa Goodwin, Justice Before Justices Puryear, Goodwin, and Field Affirmed Filed: October 13, 2016