Tthr Limited Partnership D/B/A Presbyterian Hospital of Denton v. Claudia Moreno, Individually and as Next Friend of F.C., a Minor

IN THE SUPREME COURT OF TEXAS
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NO . 11-0630
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TTHR LIMITED PARTNERSHIP D/B/A PRESBYTERIAN HOSPITAL OF DENTON,
PETITIONER,
v.

CLAUDIA MORENO, INDIVIDUALLY AND AS NEXT FRIEND OF F.C., A MINOR,
RESPONDENT

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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
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Argued November 6, 2012

JUSTICE JOHNSON delivered the opinion of the Court.

Plaintiffs suing on health care liability claims must serve each defendant with an expert report

meeting the requirements of the Texas Medical Liability Act (“TMLA” or “the Act”)1 or face

dismissal of their claims. We recently held that an expert report satisfying the requirements of the

TMLA as to a defendant, even if it addresses only one theory of liability alleged against that

defendant, is sufficient for the entire suit to proceed against the defendant. Certified EMS, Inc. v.

Potts, ___ S.W.3d ___ (Tex. 2013). In this case the plaintiff’s expert reports satisfy the TMLA

requirements as to her claim that a hospital is vicariously liable for the allegedly negligent actions

of two doctors. Accordingly, the plaintiff’s case against the hospital may proceed.

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T EX . C IV . P RAC . & R EM . C O D E §§ 74.001–.507.
 We affirm the judgment of the court of appeals in part, reverse in part, and remand the cause

to the trial court for further proceedings.

I. Background

Claudia Moreno, pregnant with twins, was admitted to TTHR Ltd., d/b/a Presbyterian

Hospital of Denton (“Presbyterian” or “the hospital”) for difficulties associated with the pregnancy.

The hospital’s nurses began having problems monitoring Moreno and the twins, so they paged the

physician on call, Dr. Lorie Gore-Green. Dr. Gore-Green and Moreno’s regular doctor, Dr. Marc

Wilson, attended to Moreno the next morning. Dr. Wilson induced labor and used forceps and

vacuum extraction to deliver the second baby, F.C. At some point shortly before or during the birth

process F.C. suffered blood loss and a hypoxic-ischemic insult. It was later determined that his

nervous system and kidneys were damaged.

Moreno, individually and as next friend of F.C., sued the hospital, Dr. Wilson, and Dr. Gore-

Green.2 She alleged that the hospital was liable for the injuries to F.C. because of its own direct

negligence as well as its vicarious liability for the negligence of its nurses and the two doctors.

Moreno timely served Presbyterian with a report by Dr. Samuel Tyuluman, an obstetrician

and gynecologist. See TEX . CIV . PRAC. & REM . CODE § 74.351(a) (requiring service of an expert

report not later than the 120th day after a health care liability claim is filed). The hospital objected

to Dr. Tyuluman’s report on the basis that he was not qualified to express opinions about the cause

of F.C.’s neurological and kidney damage, and also because his opinions about the standards of care,

2
Neither Dr. W ilson nor Dr. Gore-Green are parties to this appeal. W e will reference only the claims against
the hospital.

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breach of the standards, and causation were conclusory. In response to the objections, Moreno

served a report by Dr. Billy Arant, a pediatric nephrologist.3 See id. § 74.351(I) (authorizing

fulfilling the expert report requirements by serving multiple reports). Presbyterian objected to Dr.

Arant’s report on various grounds.

The trial court sustained only Presbyterian’s objection that the reports failed to show a causal

relationship between the alleged failures of the hospital and its nurses to meet the applicable

standards of care and F.C.’s neurological injury. The court granted Moreno a thirty-day extension

to cure the reports. See id. § 74.351(c) (providing that if “elements of the report are found deficient,

the court may grant one thirty-day extension to the claimant in order to cure the deficiency”). She

then filed a report by Dr. John Seals, a pediatric neurologist. Presbyterian objected to Dr. Seals’s

report on the basis that it did not set out any acts of alleged negligence on the part of the hospital,

nor did it set out a causal connection between any allegedly negligent act or omission of the hospital

or its nurses and F.C.’s neurological injury. The trial court determined that when the reports of Drs.

Tyuluman, Arant, and Seals were read in concert, Moreno had met the TMLA’s requirements. It

denied the hospital’s motion to dismiss, and this interlocutory appeal followed. See id.

§ 51.014(a)(9).

The court of appeals affirmed as to the adequacy of the reports regarding Moreno’s claim that

Presbyterian is vicariously liable for the doctors’ negligence. ___ S.W.3d ___. In doing so, it

determined that Dr. Tyuluman’s report specified several standards of care, how the defendant doctors

3
Nephrology involves the study of functions and treatment of the kidneys.

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breached them, and that Drs. Arant and Seals were qualified to and did opine on the causal

connection between the breaches by the doctors and F.C.’s injuries. Id. at ___. The appeals court

also determined that the reports adequately addressed a causal relationship between the events at

delivery and F.C.’s neurological and kidney injuries. Id. at ___. But in addressing the direct liability

claims, the court concluded that Dr. Tyuluman’s report did not adequately address the applicable

standards of care or how Presbyterian breached those standards, and neither the report of Dr. Arant

nor that of Dr. Seals addressed any standard or breach by the hospital. Id. at ___. As to the vicarious

liability claims based on the nurses’ actions, the court concluded that Dr. Tyuluman’s report did not

state how any of the nurses violated applicable standards of nursing care and the reports of Drs.

Arant and Seals did not attempt to address either nursing standards of care or breaches of those

standards. Id. at ___. The court remanded the case to the trial court and instructed it to consider

granting Moreno a thirty-day extension to cure the deficiencies found on appeal. Id. at ___.

Presbyterian appeals, arguing that the court of appeals erred by concluding Moreno’s reports

were adequate as to causation, but even if the reports were adequate in that respect, the court erred

by remanding the case for the trial court to consider granting another thirty-day extension to cure the

other deficiencies.

After we heard oral argument in this case we held in Certified EMS that the TMLA does not

require an expert report for each liability theory pleaded against a defendant. Certified EMS, Inc.,

___ S.W.3d at ___. Our decision in that case controls the outcome here because we conclude that

Moreno’s expert reports addressing the hospital’s alleged liability for the actions of Drs. Wilson and

Gore-Green are adequate. Given that determination, we do not address whether the court of appeals

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erred by remanding the case for the trial court to consider granting a second extension of time for

Moreno to cure deficiencies in her reports.

II. Vicarious Liability for the Doctors’ Actions

The court of appeals held that the trial court did not abuse its discretion by determining

Moreno’s reports were adequate as to her claim that the hospital is vicariously liable for the

negligence of Drs. Wilson and Gore-Green. ___ S.W.3d at ___. Its review of the trial court’s ruling

was under the abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,

46 S.W.3d 873, 877 (Tex. 2001). So is ours, and we reach the same conclusion as did the court of

appeals.

A valid expert report under the TMLA 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 § 74.351(r)(6). Dr. Tyuluman’s report set out applicable standards of care for doctors

treating a patient with conditions similar to those with which Moreno presented. He opined that

(1) the standard of care for a doctor caring for a patient presenting with conditions such as Moreno’s

was to immediately deliver the babies by cesarean section; (2) failing to do so was a breach of that

standard; and (3) the doctors’ failing to perform a cesarean section resulted in the extended labor and

birthing process. We agree with the court of appeals that as to the foregoing standard of care and

breach, Dr. Tyuluman’s report was not conclusory. Dr. Arant’s report explained that asphyxia during

the birth process caused F.C.’s kidney injury, and Dr. Seals’s report stated his opinion that the

hypoxic-ischemic event during the labor and delivery process caused F.C.’s brain injury.

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Accordingly, we agree with the court of appeals that the trial court did not abuse its discretion by

finding Moreno’s reports adequate as to the claim that Presbyterian is vicariously liable for actions

of the doctors.4

III. Direct Liability and Vicarious Liability for Nurses’ Negligence

As we articulated in Certified EMS, the TMLA requires a claimant to timely file an adequate

expert report as to each defendant in a health care liability claim, but it does not require an expert

report as to each liability theory alleged against that defendant. Certified EMS, Inc., ___ S.W.3d at

___. 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 the hospital has direct liability and vicarious liability for

actions of the nurses—may proceed. See id. at ___.

IV. Conclusion

We affirm the court of appeals’ judgment as to the adequacy of the reports regarding the

claim that Presbyterian is vicariously liable for the doctors’ actions. We need not and do not

consider whether the TMLA authorized the court of appeals to remand the case to the trial court for

it to consider granting a second extension of time for Moreno to cure her reports. We reverse that

part of the court of appeals’ judgment by which it did so, but affirm its judgment remanding the

entire suit to the trial court.

The cause is remanded to the trial court for further proceedings consistent with this opinion.

4
Presbyterian does not concede that it can be held vicariously liable for the doctors’ actions. But it
acknowledges that whether it can be is not a question to be determined in this appeal.

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 ________________________________________
Phil Johnson
Justice

OPINION DELIVERED: April 5, 2013

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