Humble Surgical Hospital LLC v. Christy L. Traynor

Opinion issued March 8, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-15-00718-CV
———————————
HUMBLE SURGICAL HOSPITAL LLC, HUMBLE SURGICAL
HOSPITAL SERVICES, L.L.C., HUMBLE SURGICAL HOLDINGS, L.L.C.,
HOUSTON HUMBLE SURGICAL, P.L.L.C., HUMBLE SPINE SURGERY,
P.L.L.C., Appellants
V.
CHRISTY L. TRAYNOR, Appellee

On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Case No. 1044724

MEMORANDUM OPINION

This is an accelerated appeal from the denial of a motion to dismiss for

failure to file an adequate medical malpractice expert report. We affirm.
 BACKGROUND

Plaintiff-appellee Christy Traynor sued defendants Humble Surgical

Hospital, L.L.C., Humble Surgical Hospital Services, L.L.C., Humble Surgical

Holdings, L.L.C., Houston Humble Surgical, P/L.L.C., Humble Spine Surgery,

P.L.L.C. (collectively, “hospital defendants”) and Kelly Joe Bunyard, individually.

Her claims stem from alleged inappropriate physical contact by nurse Bunyard as

Traynor was recovering from surgery.

A. Traynor’s Claims

Traynor’s petition alleges that, “[d]uring the course of [medical] care and

treatment, Defendants and their respective agents, ostensible agents, agents by

estoppels and/or employees, engaged in several acts and omission constituting

negligence, and such acts and omissions, among others, are as follows:

(a) In failing to properly hire and retain the nursing care
provided to Plaintiff;
(b) In failing to properly supervise the nursing care provided to
Plaintiff;
(c) In failing to monitor the nursing care provided to Plaintiff;
and
(d) In failing to properly treat the Plaintiff.”

B. Traynor’s Chapter 74 Expert Reports

Traynor initially filed two Texas Medical Liability Act (TMLA) expert

reports under Chapter 74 of the Texas Civil Practice and Remedies Code, and

curriculum vitaes for their authors, Priscilla Ray, M.D., and Cathy Miller, R.N.,

2
Ph.D. Bunyard did not file an objection to the adequacy of the reports. In

response to the other hospital defendants’ motion to dismiss for failure to produce

an adequate expert report, Traynor was granted an extension to cure any alleged

deficiencies in the reports. Traynor then filed additional reports by Ray and Miller.

Below is a brief summary of the expert reports:

1. Priscilla Ray, M.D.

Dr. Ray is a physician with board certification in Psychiatry and Neurology,

and she is certified in Forensic Psychiatry. Dr. Ray’s report indicated that her

information was derived from (1) records from Humble Surgical Hospital, (2)

records from Hope for the Hurting Home, (3) records from the Texas Nursing

Board, (4) her forensic psychiatric interview of Traynor, (4) her interview with

Traynor’s fiancé Doug Burleson, and (5) her interview with Traynor’s sister,

Wendy Dibenedetto.

The report contains the following factual summary:

Ms. Christy Traynor was admitted to Humble Surgical Hospital in
mid-December 2011 and had C6~7 anterior cervical discectomy and
auxiliary procedures. The night after her surgery, nursing care was
provided by Kelly Bunyard. Ms. Traynor reports that, while she still
had in a urinary catheter, was still unable to speak except in a whisper
and while the call bell was too far to reach, Mr. Bunyard undertook to
massage a “crick” in her neck but massaged her back, untied her
hospital gown and, over her protests, touched her buttocks and tried to
move his hand around to the front. Ms. Traynor, noting Mr. Bunyard’s
sexual excitement, feared she was about to be raped. Even after he
left, he returned several times to offer more pain medication and Ms.
Traynor feared that he would come back to do more. In the morning,

3
 she was reluctant to tell her sister and a nurse about the incident but
ultimately did so.

Ray’s report summarized the three referral questions and her opinions as

follows:

1) “Did the behavior of the staff at Humble Surgical Hospital staff
fall below the standard of care in the treatment of Ms. Traynor?

A. “Yes. Mr. Bunyard was a nurse In the Humble Surgical
Hospital caring for Ms. Traynor after her surgery. The Texas Nursing
Board substantiated charges that Mr. Bunyard “Inappropriately”'
touched Ms. Traynor, which falls below the standard of behavior and
care owed a patient. Please see my attached Forensic Psychiatric
Examination report for more details.”
2) “If the answer to Question # 1is affirmative, what psychiatric
illness, if any, did Ms. Traynor suffer as a result of actions
which fell below the standard of care?”

A. “It Is my opinion that, due to the behavior of Mr. Bunyard
described above, Ms. Traynor suffers from the following psychiatric
illness:
Post Traumatic Stress Disorder, Improved but not resolved

She meets the following criteria of Post Traumatic Stress Disorder
from the Diagnostic and Statistical Manual of Mental Disorders Fifth
Edition (DSM 5);
A, B1-5, C1-2, D2, D4-6, E3-6, F, G, H

Information about the above criteria in general and as applied to Ms.
Traynor is contained in my expanded report entitled “Forensic
Psychiatric Examination” (attached).
3) If the answer to Question #2 is affirmative, what is Ms.
Traynor’s prognosis in regard to the Illness?

4
 A. Her prognosis is Fair. Please see my attached Forensic
Psychiatric Examination report for expanded discussion of the
prognostic factors which both Improve and limit her prognosis;

2. Cathy Miller, R.N., Ph.D.

Nurse Miller is a nursing professor with twenty years of nursing experience

and has served in several administrative director positions. She holds adult and

pediatric Sexual Assault Nurse Examiner certificates and has published and

presented on the topics of emergency nursing care of sexual assault victims and

psychological complex trauma. Miller’s report indicates that she reviewed

Traynor’s medical records and the Texas Board of Nursing documents.

Miller’s report identifies a list of specific Texas Board of Nursing Nurse

Practice Act violations by Bunyard. She opines that “Nurse Bunyard violated the

standards of care required of any reasonable nurse in the same or similar situation.”

Her report also opines on the following deficiencies of the other defendants:

1. The organizations were negligent in adequately screening
applicants prior to hire as evidenced by lack of a pre-hire
comprehensive background check.
2. The organizations were negligent inadequately training staff on
sexual misconduct suspicion, reporting, and prevention as evidenced
by a lack of employee handbook or other training materials prior to
the date of incident.
3. The organizations failed to have policy and procedures in place to
determine appropriate patient assignments.
4. The organization failed to have adequate policy and procedures in
place for the supervision of nursing care as evidenced by no record of
charge nurse or house supervisor rounding on Ms. Traynor.

5
 5. The organization failed to have adequate policy and procedures in
place for the monitoring of telemetry patients as evidenced by Ms.
Traynor being “off monitor” for 30 minutes or more. The removal of
Ms. Traynor from the telemetry monitor coinciding with the timing of
the nurse’s hourly rounding documentation as evidenced by a) no
rhythm strip in medical record for the time and b) “0”' showing on the
vital signs system generated vital signs record.

C. The Trial Court’s Proceedings

The hospital defendants renewed their objection to the adequacy of

Traynor’s Chapter 74 reports. Following a hearing, the trial court denied the

hospital defendants’ motion to dismiss, and those defendants’ timely brought this

interlocutory appeal. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West

2014).

ISSUE ON APPEAL

The hospital defendants’ brief identifies their issue on appeal as follows:

“Whether the trial court erred in refusing to dismiss this action as
required by Chapter 74 of the Texas Civil Practice & Remedies Code
after Appellee failed to serve compliant amended expert reports,
despite being given an opportunity to cure her deficient expert reports,
because:

a. neither expert established that they were qualified to opine on
Appellant’s standard of care;

b. the amended expert reports failed to provide specific
information as to what policies and procedures should have
been in place as it relates to Appellant’s hiring, supervision and
retention of employees;

c. the amended expert reports’ reliance on Nurse Bunyard’s
alleged breach of the standard of care is misplaced as to

6
 Appellant because vicarious liability is not applicable to
allegations of sexual assault as a matter of law; and

d. the amended expert reports failed to provide specific
information as to how Appellant’s lack of adequate policies and
procedures was a substantial factor in Appellee’s injuries.”

APPLICABLE LAW AND STANDARD OF REVIEW

Chapter 74 of the Texas Civil Practice and Remedies Code requires a health

care liability claimant to file “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) (West 2011). Chapter 74 does not “require the serving of an expert

report regarding any issue other than an issue relating to liability or causation.” Id.

§ 74.351(j).

Section 74.351 requires the expert report to provide a fair summary of the

expert’s opinions regarding: (1) the applicable standards of care; (2) the manner in

which the care rendered failed to meet the standards; and (3) the causal relationship

between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6);

Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 858–59 (Tex. App.—Houston [1st

Dist.] 2006, no pet.).

The expert report need not marshal all of the plaintiff’s proof, but it must

demonstrate an objective good faith effort to comply with the statutory

requirements. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(1); Am.

7
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878–79 (Tex.

2001); Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex. App.—

Houston [1st Dist.] 2003, pet. denied). To constitute a good faith effort to comply

with the statute, the report must provide enough information to fulfill two

purposes: it must (1) inform the defendant of the specific conduct that the plaintiff

has called into question; and (2) provide a basis for the trial court to conclude that

the claims have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011);

Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. In making this

determination, we review the information contained within the four corners of the

report. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A conclusory

report does not fulfill these two purposes. Palacios, 46 S.W.3d at 880. The Act

grants the trial court discretion to grant a plaintiff who timely serves a report one

30–day extension to cure its deficiencies. TEX. CIV. PRAC. & REM. CODE ANN. §

74.351(c).

We review a trial court’s denial of a motion to dismiss under section 74.351

for abuse of discretion. Palacios, 46 S.W.3d at 875; Group v. Vicento, 164 S.W.3d

724, 727 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). A trial court abuses

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

any guiding rules or principles. Larson v. Downing, 197 S.W.3d 303, 304–05 (Tex.

8
2006); Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 757 (Tex.

App.—Houston [14th Dist.] 2007, no pet.).

ANALYSIS

Traynor sued (1) Bunyard, individually, complaining that his nursing

violated the applicable standards of care, and (2) sued the hospital defendants both

under direct-liability theories and under the theory that they are vicariously liable

for Bunyard’s violations of the standard of care.

The hospital defendants argue that (1) the expert reports are deficient as to

Traynor’s direct liability theories against the hospital defendants, and (2) as a

matter of law, they cannot be vicariously liable for Bunyard’s sexual assault.

Traynor responds that (1) the reports as to direct liability against the hospital

defendants are adequate, and (2) the hospital defendants cannot limit her vicarious

liability theories against them based on their own narrow interpretation of her

allegations.

Before considering these arguments, we must preliminarily address the

effect of neither Bunyard nor the hospital defendants’ challenging the adequacy of

the expert reports related to Bunyard’s care of Traynor and Traynor’s reliance, in

part, on a vicarious-liability theory against the hospital defendants.

9
 A. Certified EMS, Inc. v. Potts

Prior to 2013, there was a split among the courts of appeals about whether a

health-care liability claimant needed to support each claim and liability theory with

an adequate Chapter 74 expert report, or whether one viable theory, adequately

supported by an expert report, was sufficient to maintain the entire case. The

supreme court addressed, and resolved, this split in Certified EMS, Inc. v. Potts,

392 S.W.3d 625 (Tex. 2013) by holding that a single viable liability theory is

sufficient to defeat a motion to dismiss for failure to provide an adequate expert

report.

As in this case, the patient-plaintiff in Potts sued complaining of a male

nurse’s inappropriate sexual contact during a hospital stay. Certified EMS v. Potts,

355 S.W.3d 683, 685–86 (Tex. App.—Houston [1st Dist.] 2011) (Potts I), aff’d

392 S.W.3d 625 (Tex. 2013). The nurse, Les Hardin, was not an employee of the

hospital, but instead employed by Certified EMS, a nurse-staffing agency. Id. at

686. Potts sued the hospital, the nurse, and Certified EMS. She specifically

asserted, as to Certified EMS, that it was “vicariously liable for Hardin’s conduct

under a respondeat superior theory and directly liable for its own negligence in

training and supervising Hardin.” Id.

Potts served her expert reports under section 74.351, and Certified EMS

objected to the reports and sought dismissal. Id. After the trial court denied the

10
motion to dismiss, Certified EMS brought an interlocutory appeal to this Court. Id.

at 685, 687–88. In reviewing the sufficiency of Potts’s reports and Certified EMS’s

objections, we determined that the experts’ reports adequately supported “Potts’s

theory that Certified EMS is vicariously liable under the doctrine of respondeat

superior,” but that it did not support her claim that “Certified EMS might be

directly liable for its own conduct.” Id. at 687. We nonetheless concluded that the

trial court properly denied Certified EMS’s motion to dismiss:

We conclude that Potts’s expert report adequately addresses facts
describing the improper sexual conduct by the nurse, and the report,
therefore, is adequate as to his employer, Certified EMS, under the
vicarious-liability legal theory of respondeat superior. Because the
lawsuit by Potts may proceed against Certified EMS under at least one
liability theory for the cause of action concerning the nurse’s improper
sexual contact with Potts, Potts may proceed with any and all liability
theories for this cause of action, regardless whether those other
liability theories were shown in an adequate expert report.

Id. at 700.

The supreme court affirmed our opinion, noting that “[n]o provision of the

Act requires an expert report to address each alleged liability theory.” Potts, 392

S.W.3d at 630. Rather, the court explained, the trial court’s task when faced with a

motion to dismiss for failure to file an adequate expert report is not to parse and

individually examine each theory of liability, but only to determine if there is a

complying report supporting at least one theory:

A valid expert report has three elements: it must fairly summarize the
applicable standard of care; it must explain how a physician or health

11
 care provider failed to meet that standard; and it must establish the
causal relationship between the failure and the harm alleged. TEX.
CIV. PRAC. & REM. CODE § 74.351(r)(6); see Scoresby v. Santillan,
346 S.W.3d 546, 556 (Tex. 2011). 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. Because the expert’s report in Potts sufficiently supported the plaintiff’s theory

of vicarious liability against Certified EMS, the court held the “lack of a

description supporting direct liability is not fatal to the claimant’s maintaining her

cause of action.” Id. at 626.

B. Application of Potts to this case

The hospital defendants do not challenge the adequacy of the reports as to

Baryard’s conduct. But they argue that Potts is distinguishable because Certified

EMS did not challenge the expert’s report’s adequacy concerning vicarious

liability in that case. In contrast, the hospital defendants here argue that, as a

matter of law, they are not vicariously liable for Barnyard’s sexual assault. Thus,

they argue that any expert report premised upon vicarious liability is insufficient as

a matter of law.

Traynor responds that “whether vicarious liability will ultimately succeed is

not before this Court.” She contends that the hospital’s “[a]sserting a summary

judgment argument regarding vicarious liability, before discovery has even begun,

is premature and inappropriate.” Instead, she insists, “the only issue before the

Court at this phase in this proceeding is whether Traynor has presented expert

12
reports which inform the Appellants of the specific conduct that Trynor has called

into question and provide a basis for the trial court to conclude that the claims have

merit.” We agree with Traynor.

The hospital defendants argue that an employer cannot be vicariously liable

for sexual assault, and cite various cases finding assaults to be outside the scope of

employment. The hospital defendants do not cite, however, authority for the

proposition that the ultimate viability of legal theories such as vicarious liability

are the appropriate subject of review in an interlocutory appeal from a denial of a

motion to dismiss under Chapter 74. Our own research likewise has failed to

uncover any authority supporting this argument.

Whether Traynor’s vicarious liability theory against the hospital defendants

ultimately succeeds should be determined on the merits in the trial court in the first

instance. As the supreme court’s opinion in Potts recognized, claims get

abandoned and added throughout discovery, and summary judgment motions allow

trial courts to dispose of ultimately untenable claims. 392 S.W.3d at 632.

Potts hold that “when a health care liability claim involves a vicarious

liability theory, either alone or in combination with other theories, an expert report

that meets the statutory standards as to the employee is sufficient to implicate the

employer’s conduct under the vicarious theory.” Id. The hospital defendants do

not dispute that the expert reports here meet the statutory standards as to Bunyard’s

13
conduct. The reports also implicate the hospital defendants, both directly and

through vicarious liability for Bunyard’s actions. Under Potts, the trial court did

not err in refusing to grant the hospital’s motion to dismiss.

CONCLUSION

We affirm the trial court’s interlocutory order denying appellants’ motion

to dismiss.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

14