Telicia Owens v. Krista G. Handyside, M.D., Samuel J. Prater, M.D., Kenneth A. Totz, D.O., FACEP, and Memorial Hermann Hospital System D/B/A Memorial Hermann - Texas Medical Center

Opinion

ACCEPTED 01-12-01108-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 6/22/2015 4:21:32 PM CHRISTOPHER PRINE CLERK

NO. 01-12-01108-CV

FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOR THE FIRST DISTRICT OF TEXAS6/22/2015 4:21:32 PM AT HOUSTON CHRISTOPHER A. PRINE Clerk

TELICIA OWENS, Appellant,

V.

KRISTA G. HANDYSIDE, M.D.; ET AL., Appellees.

On Appeal from the 152nd Judicial District Court of Harris County, Texas Trial Court Cause No. 2012-07534

KENNETH A. TOTZ, D.O., FACEP’S MOTION FOR REHEARING

Charles B. Holm State Bar No. 09900300 Kyle M. Smith State Bar No. 24054226 Holm Bambace LLP 1010 Lamar Street, Suite 1100 Houston, Texas 77002 (713) 652-9700 – Telephone (713) 652-9702 – Facsimile cholm@holmbambace.com ksmith@holmbambace.com

ATTORNEYS FOR APPELLEE, KENNETH A. TOTZ, D.O., FACEP POINTS PRESENTED FOR REVIEW

POINT ONE

In its April 23, 2015 Opinion (the “Opinion”), the First Court of Appeals (the “Court”) erred by failing to explain how the 152nd Judicial District Court of Harris County, Texas (the “Trial Court”) abused its discretion when it dismissed Appellant, TELICIA OWENS’ (“Appellant”) health care liability claim against Appellee, KENNETH A. TOTZ, D.O., FACEP (“Dr. Totz”), with prejudice on September 6, 2012.

Although the Opinion cites the correct standard of appellate review – abuse of discretion – for the Trial Court’s decision on a motion to dismiss a health care liability claim, the Opinion is completely silent as to how this Court determined that the Trial Court abused its discretion when it dismissed Appellant’s health care liability claim against Dr. Totz with prejudice on September 6, 2012.

The Trial Court’s factual determination of lack of proper “service” was guided by the legal principles established by this Court in Gutierrez, as well as the Fourteenth Court of Appeals in Nexion Health. See University of Texas Health Science Center at Houston vs. Gutierrez, 237 S.W.3d 869, 872 (Tex. App. – Houston [1st Dist.] 2007, pet. denied); Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716, 718 (Tex. App. – Houston [14th Dist.] 2011, no pet.). The Trial Court was required to follow these rulings, because as a Harris County District Court, it must follow the legal authority of this Court and the Fourteenth Court of Appeals. Conversely, the Trial Court had no controlling legal authority before it that would support a determination that Dr. Totz’s attorney, Charles B. Holm’s (“Mr. Holm”) acquisition of an expert report, by any means other than Rule 21a “service,” waived the Section 74.351(a) requirement of “service.”

This Court erred by finding that the Trial Court abused its discretion, without explaining how the Trial Court arrived to its decision in an arbitrary or unreasonable manner, without reference to guiding rules or principles. By doing so, the Court substituted its own judgment for that of the Trial Court, thereby using a “de novo,” standard of appellate review, as opposed the required abuse of discretion standard, to review the Trial Court’s decision, which this Court was not allowed to do. i POINT TWO

In its Opinion, the Court erred by reaching a decision regarding service of Appellant’s May 9, 2012 Expert Report, which was prepared by Brian C. Richardson, M.D. (“Dr. Richardson’s May 9th Expert Report”), that is in direct conflict with a previous decision reached by this Court, as well as decisions reached the Texas Supreme Court and several other Texas Courts of Appeal.

Specifically, in Gutierrez, this Court determined that Texas Rule of Civil Procedure 21a service is required in order to fulfill the requirements of Texas Civil Practice & Remedies Code § 74.351(a). Gutierrez, 237 S.W.3d at 872; see also Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011); Zanchi v. Lane, 408 S.W.3d 373, 380 (Tex. 2013); Nexion Health, 335 S.W.3d at 718.

POINT THREE

In its Opinion, the Court erred by misinterpreting the Texas Supreme Court’s holding in the Zanchi opinion regarding service of an expert report, i.e., Dr. Richardson’s May 9th Expert Report.

Specifically, the Zanchi opinion only concluded that the formal requirements Texas Rule of Civil Procedure 106 service with citation are not required in order to fulfill the requirements of Texas Civil Practice & Remedies Code § 74.351(a). Zanchi did not overturn the requirement of Texas Rule of Civil Procedure 21a service in order to fulfill the requirements of Texas Civil Practice & Remedies Code § 74.351(a), which was the holding of this Court in Gutierrez.

POINT FOUR

This Court’s ruling that service of an expert report in compliance with Rule 21a is not required for compliance with Section 74.351(a) is in direct conflict with this Court’s own jurisprudence and Section 74.351(a)’s clear and unambiguous requirement that an expert report must be “served” on each party or the party’s attorney, pursuant to Rule 21a, within 120 days of filing suit. This Court determined in Gutierrez that “service” means Texas Rule of Civil Procedure 21a service, and it also determined that compliance ii with Texas Civil Practice & Remedies Code § 74.351(a) is mandatory for a health care liability claim to proceed.

iii TABLE OF CONTENTS

Points Presented for Review ........................................................................ i

Index of Authorities ..................................................................................... v

Arguments and Authorities .......................................................................... 1

A. Point One........................................................................................... 1

B. Point Two........................................................................................... 4

C. Point Three ........................................................................................ 7

D. Point Four ........................................................................................ 10

Conclusion and Prayer .............................................................................. 13

Certificate of Service ................................................................................. 14

Certificate of Compliance .......................................................................... 15

Appendix................................................................................................... 16

First Court of Appeals’ April 23, 2015 Opinion ........................................ Tab A

iv INDEX OF AUTHORITIES

Cases

Amaya v. Enriquez, 296 S.W.3d 781 (Tex. App. – El Paso 2009, pet. denied).................................................................................................... 4, 8

American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) ......................................................................... 1

Bowie Memorial Hospital v. Wright, 79 S.W.3d 48 (Tex. 2002) ................... 2

Breiten v. Shatery, 365 S.W.3d 829 (Tex. App. – El Paso 2012, no pet.) ...... ............................................................................................................... 5, 8

Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (Tex. App. – Houston [1st Dist.] 2006, no pet.) ............................................................................... 1

Harris County Hospital District v. Garrett, 232 S.W.3d 170 (Tex. App. – Houston [1st Dist.] 2007, no pet.) ................................................................. 2

Herrera v. Seton Northwest Hospital, 212 S.W.3d 452 (Tex. App. – Austin 2006, no pet.).......................................................................................... 4, 8

Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) ........................................... 2

Kendrick v. Garcia, 171 S.W.3d 698 (Tex. App. – Eastland 2005, pet. denied).................................................................................................... 4, 8

Mathis v. Lockwood, 166 S.W.3d 743 (Tex. 2005) .................................. 5, 9

Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716 (Tex. App. – Houston [14th Dist.] 2011, no pet.).................................................. i-ii, 2-4, 8

Otero v. Alonzo, No. 13-10-00304-CV, 2011 Tex. App. LEXIS 1559 (Tex. App. – Corpus Christi, Mar. 3, 2011, no pet. h.) (mem. op.) .................... 4, 8

Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011) .... ii, 4-5, 8, 11-12

v Strobel v. Marlow, 341 S.W.3d 470 (Tex. App. – Dallas 2001, no pet.) ......... ............................................................................................................ 4-5, 8

University of Texas Health Science Center at Houston v. Gutierrez, 237 S.W.3d 869 (Tex. App. – Houston [1st Dist.] 2007, pet. denied) ............. ........................................................................................... i-ii, 2-5, 8, 11-12

Zanchi v. Lane, 408 S.W.3d 373, 380 (Tex. 2013) ...................... ii, 4-5, 7-10

Statutes

Texas Civil Practice & Remedies Code § 74.351(a)........ i-iii, 3-5, 7-8, 10-13

Texas Civil Practice & Remedies Code § 74.351(b)............................. 11-12

Texas Code of Criminal Procedure 59.04(b) ............................................... 7

Rules

Texas Rule of Appellate Procedure 49.1..................................................... 1

Texas Rule of Civil Procedure 21a ................................................... i-ii, 3-12

Texas Rule of Civil Procedure 106 ...................................................... ii, 7, 9

vi KENNETH A. TOTZ, D.O., FACEP’S MOTION FOR REHEARING

TO THE HONORABLE FIRST COURT OF APPEALS:

Dr. Totz submits this Motion for Rehearing (“Motion”) pursuant to

Texas Rule of Appellate Procedure 49.1, in response to the Court’s Opinion

(attached hereto at Tab “A” of the Appendix), and respectfully requests that

the Court order a rehearing on its Opinion, as follows:

ARGUMENTS AND AUTHORITIES

A. POINT ONE

In its Opinion, the Court erred by failing to explain how the Trial Court abused its discretion when it dismissed Appellant’s health care liability claim against Dr. Totz with prejudice on September 6, 2012.

Although the Opinion cites the correct standard of appellate review –

abuse of discretion – for the Trial Court’s decision on a motion to dismiss a

health care liability claim, the Opinion is completely silent as to how the

Court determined that the Trial Court abused its discretion when it

dismissed Appellant’s health care liability claim against Dr. Totz with

prejudice on September 6, 2012. American Transitional Care Centers of

Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001); Gray v. CHCA

Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App. – Houston [1st Dist.] 2006,

no pet.). In its Opinion, this Court erred by finding that the Trial Court

abused its discretion, without explaining how the Trial Court’s decision was 1 arbitrary or unreasonable, or without reference to guiding rules or

principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010).

As the Clerk’s Record clearly demonstrates, Dr. Totz challenged

proper service of Dr. Richardson’s May 9th Expert Report, Appellant never

filed any written response or contradictory evidence to Dr. Totz’s challenge

and evidence, and the Trial Court heard evidence and arguments from

counsel on this issue at an August 24, 2012 oral hearing. Whether the

Appellant properly served Dr. Richardson’s May 9th Expert Report on

Dr. Totz or Dr. Totz’s attorney, Mr. Holm, was a purely factual issue, which

the Trial Court determined did not happen, which was within its discretion.

When reviewing matters committed to a trial court’s discretion, an appellate

court may not substitute its own judgment for that of the trial court. Bowie

Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). Further, 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. Harris County Hospital District v. Garrett, 232 S.W.3d 170,

176 (Tex. App. – Houston [1st Dist.] 2007, no pet.).

The Trial Court’s factual determination of lack of proper “service” was

guided by the legal principles established by this Court in Gutierrez, as well

as the Fourteenth Court of Appeals in Nexion Health. Gutierrez, 2 237 S.W.3d at 872; Nexion Health, 335 S.W.3d at 718. Further, the Trial

Court was required to follow these rulings, because as a Harris County

District Court, it must follow the legal authority of this Court and the

Fourteenth Court of Appeals. Conversely, the Trial Court had no

controlling legal authority before it that would support a determination that

Dr. Totz’s attorney, Mr. Holm’s acquisition of Dr. Richardson’s May 9th

Expert Report, by any means other than Rule 21a “service,” waived the

Section 74.351(a) requirement of “service.”

As explained above, whether or not Dr. Richardson’s May 9th Expert

Report was properly served on Dr. Totz or Dr. Totz’s attorney, Mr. Holm,

was a fact question, which the Trial Court had the discretion to decide.

After the presentation of oral arguments and evidence on August 24, 2012,

the Trial Court determined that proper service pursuant to Texas Rule of

Civil Procedure 21a was not accomplished, and dismissed Appellant’s

health care liability claim against Dr. Totz with prejudice on

September 6, 2012.

In its Opinion, this Court overturned the Trial Court’s ruling, but it did

not explain how the Trial Court abused its discretion, or how the Trial Court

arrived to its decision in an arbitrary or unreasonable manner, without

reference to guiding rules or principles. In doing so, this Court substituted 3 its own judgment for that of the Trial Court, thereby using a “de novo,”

standard or appellate review, as opposed the required abuse of discretion

standard, to review the Trial Court’s decision, which as explained above,

this Court is not allowed to do.

B. POINT TWO

In its Opinion, the Court erred by reaching a decision regarding service of Dr. Richardson’s May 9th Expert Report that is in direct conflict with a previous decision reached by this Court, as well as decisions reached by the Texas Supreme Court and several other Texas Courts of Appeal.

In Gutierrez, this Court determined that Texas Rule of Civil Procedure

21a service is required in order to fulfill the requirements of Texas Civil

Practice & Remedies Code § 74.351(a), and this has also been the holding

of the Texas Supreme Court and several other Texas Courts of Appeal.

Gutierrez, 237 S.W.3d at 872; Nexion Health, 335 S.W.3d at 718; Stockton,

336 S.W.3d at 615; Zanchi, 408 S.W.3d at 380; Kendrick v. Garcia,

171 S.W.3d 698, 703-04 (Tex. App. – Eastland 2005, pet. denied); Amaya

v. Enriquez, 296 S.W.3d 781, 783 (Tex. App. – El Paso 2009, pet. denied);

Herrera v. Seton Northwest Hospital, 212 S.W.3d 452, 459 (Tex. App. –

Austin 2006, no pet.); Otero v. Alonzo, No. 13-10-00304-CV, 2011 Tex.

App. LEXIS 1559, at *7 (Tex. App. – Corpus Christi, Mar. 3, 2011, no pet.

h.) (mem. op.); Strobel v. Marlow, 341 S.W.3d 470, 475-76 (Tex. App. – 4 Dallas 2001, no pet.); Breiten v. Shatery, 365 S.W.3d 829, 832 (Tex. App. –

El Paso 2012, no pet.).

Specifically, this Court stated in its Gutierrez opinion, “Given the

applicability of the Rules of Civil Procedure to health care liability claims,

and the use of ‘serve’ and ‘served’ in the statute, we determine that the

Legislature intended for claimants to comply with rule 21a to fulfill the

requirements of section 74.351(a).” Gutierrez, 237 S.W.3d at 872.

Texas Rule of Civil Procedure 21a authorizes service by one of four

methods of delivery: (1) in person, by agent, or by courier receipted

delivery; (2) by certified or registered mail to the party’s last known

address; (3) by telephonic document transfer to the recipient’s current

telecopier number; or (4) by such other manner as the court in its discretion

may direct. TEX. R. CIV. P. 21a; Zanchi, 408 S.W.3d at 380 at fn.4.;

Stockton, 336 S.W.3d at 615. Notice properly sent pursuant to Texas Rule

of Civil Procedure 21a raises a presumption that notice was received, but

when such service is challenged, the burden of proof shifts to the sender of

the notification or document to demonstrate proper service. Mathis v.

Lockwood, 166 S.W.3d 743, 745 (Tex. 2005).

Dr. Totz denied that he was served with Dr. Richardson’s May 9th

Expert Report, and Dr. Totz’s attorney, Mr. Holm, also denied that he was 5 served by the Appellant, and merely explained that he had “obtained a

copy of Dr. Richardson’s [May 9th] Expert Report through alternative

means.” Dr. Totz challenged Appellant’s assertion of proper service of

Dr. Richardson’s May 9th Expert Report pursuant to Rule 21a, and by doing

so, shifted the burden of proof regarding Rule 21a service to the Appellant.

As the Clerk’s Record clearly demonstrates, Appellant never provided or

filed any arguments or evidence to contradict Dr. Totz’s assertion that

Dr. Richardson’s May 9th Expert Report was not properly served pursuant

to Rule 21a. The Trial Court heard evidence and arguments from counsel

on this very issue and properly concluded that the Appellant had not met

her burden regarding proper Rule 21a service of Dr. Richardson’s May 9th

Expert Report on Dr. Totz or Dr. Totz’s attorney, Mr. Holm.

After hearing the arguments and evidence presented to it at the

August 24, 2014 oral hearing, the Trial Court properly determined that

proper Rule 21a service of Dr. Richardson’s May 9th Expert Report was not

completed on Dr. Totz or Dr. Totz’s attorney, Mr. Holm, and dismissed

Appellant’s health care liability claim against Dr. Totz with prejudice on

September 6, 2012. This was proper and supported by the aforementioned

case law, and was within the Trial Court’s discretion to do so.

6 C. POINT THREE

In its Opinion, the Court erred by misinterpreting the Texas Supreme Court’s holding in the Zanchi opinion regarding service of an expert report.

The Zanchi opinion only concluded that the formal requirements of

Rule 106 service with citation are not required in order to fulfill the

requirements of Texas Civil Practice & Remedies Code § 74.351(a).

Zanchi, 408 S.W.3d at 381 (“We further hold that an expert report need not

be ‘served’ in compliance with the formal requirements of Rule 106 that

apply specifically to service of citation.”). Specifically, in Zanchi, the Texas

Supreme Court wrote:

In Zanchi’s second issue, he argues that in order to “serve” an expert report on a defendant who has not yet been served with process, the claimant must comply with the service-of-citation requirements under Texas Rule of Civil Procedure 106. We disagree. Rule 106 by its terms applies solely to service of citation. TEX. R. CIV. P. 106. If the Legislature had intended to require a claimant to serve an expert report in accordance with Rule 106, it clearly knew how to do so. See, e.g., TEX. CODE CRIM. PROC. ART. 59.04(b) (requiring that, to institute civil forfeiture proceedings, the state’s attorney “shall cause certified copies of the notice to be served … in the same manner as provided for the service of process by citation in civil cases.”). We need not decide whether service in a manner other than that authorized by Rule 21a satisfies the [Texas Medical Liability Act’s] requirement to “serve” an expert report because, here, Zanchi, 7 does not dispute either that Lane sent the expert report on the statutory deadline, via certified mail, or that Zanchi actually received the expert report.” See TEX. R. CIV. P. 21a.

Zanchi, 408 S.W.3d at 380.

As quoted above, it is clear that the Zanchi opinion did not overturn

the requirement of Rule 21a service in order to fulfill the requirements of

Texas Civil Practice & Remedies Code § 74.351(a), which was the holding

of this Court in Gutierrez, the Texas Supreme Court, as well as several

additional Texas Courts of Appeal. See Zanchi, 408 S.W.3d at 380;

Gutierrez, 237 S.W.3d at 872; Nexion Health, 335 S.W.3d at 718; Kendrick,

171 S.W.3d at 703-04; Amaya, 296 S.W.3d at 783; Herrera, 212 S.W.3d at

459; Otero, 2011 Tex. App. LEXIS 1559, at *7; Strobel, 341 S.W.3d at 475-

76; Breiten, 365 S.W.3d at 832.

Texas Rule of Civil Procedure 21a authorizes service by one of four

methods of delivery: (1) in person, by agent, or by courier receipted

delivery; (2) by certified or registered mail to the party’s last known

address; (3) by telephonic document transfer to the recipient’s current

telecopier number; or (4) by such other manner as the court in its discretion

may direct. TEX. R. CIV. P. 21a; Zanchi, 408 S.W.3d at 380 at fn.4.;

Stockton, 336 S.W.3d at 615. Notice properly sent pursuant to Texas Rule

8 of Civil Procedure 21a raises a presumption that notice was received, but

when such service is challenged, the burden of proof shifts to the sender of

the notification or document to demonstrate proper service. Mathis,

166 S.W.3d at 745.

As clearly demonstrated above, the Zanchi opinion did not overrule

the requirement of Rule 21a service of Dr. Richardson’s May 9th Expert

Report on Dr. Totz or Dr. Totz’s attorney, Mr. Holm; rather, it only held that

the Rule 106 service of citation requirement is not required with regard to

the service of an expert report in a health care liability claim. That said,

Rule 21a allows for several forms of service, as outlined above, in order to

be in compliance with Rule 21a. Dr. Totz denied that he was served with

Dr. Richardson’s May 9th Expert Report, and Dr. Totz’s attorney, Mr. Holm,

also denied that he was served by the Appellant, and merely explained that

he had “obtained a copy of Dr. Richardson’s [May 9th] Expert Report

through alternative means.” Dr. Totz challenged Appellant’s assertion of

proper service of Dr. Richardson’s May 9th Expert Report, and by doing so,

shifted the burden of proof regarding Rule 21a service to the Appellant. As

the Clerk’s Record clearly demonstrates, Appellant never provided any

proof to contradict Dr. Totz’s assertion that Dr. Richardson’s May 9th Expert

Report was not properly served pursuant to Rule 21a. Further, the Trial 9 Court heard evidence on this very issue and also properly concluded that

the Appellant had not met her burden regarding proper Rule 21a service of

Dr. Richardson’s May 9th Expert Report on Dr. Totz or Dr. Totz’s attorney,

Mr. Holm.

As demonstrated above, the Zanchi opinion, along with this Court’s

jurisprudence, as well as several other Texas Courts of Appeal’s

jurisprudence, Rule 21a service of Dr. Richardson’s May 9th Expert Report

was required for Appellant to proceed with her health care liability claim

against Dr. Totz. Such Rule 21a service was not properly accomplished,

and as such, the Trial Court’s September 6, 2012 decision to dismiss

Appellant’s health care liability against Dr. Totz must be affirmed.

D. POINT FOUR

In its Opinion, this Court erred by holding that “service” of Dr. Richardson’s May 9th Expert Report was accomplished because Dr. Totz’s attorney stated that he had “obtained a copy of Dr. Richardson’s [May 9th] Expert Report through alternative means.”

The ruling in this Court’s Opinion that service of an expert report in

compliance with Rule 21a is not required for compliance with

Section 74.351(a) is in direct conflict with this Court’s own jurisprudence

and Section 74.351(a)’s clear and unambiguous requirement that an expert

report must be “served” on each party or the party’s attorney within 120

10 days of filing suit pursuant to Rule 21a. Gutierrez, 237 S.W.3d at 873;

Stockton, 336 S.W.3d at 615. This Court determined in Gutierrez that

“service” means Texas Rule of Civil Procedure 21a service, and it also

determined that compliance with Texas Civil Practice & Remedies Code

§ 74.351(a) is mandatory for a health care liability claim to proceed.

Gutierrez, 237 S.W.3d at 873. A claimant must comply with Texas Civil

Practice and Remedies Code § 74.351(a), when asserting a health care

liability claim. Id. (emphasis added). Among the statute’s requirements is

the expert report requirement, which directs a claimant to “serve” an expert

report and the expert’s curriculum vitae on each party or party’s attorney

within 120 days of filing suit. Gutierrez, 237 S.W.3d at 872-73; Stockton,

336 S.W.3d at 615; TEX. CIV. PRAC. & REM. CODE § 74.351(a).1 Compliance

with this provision is mandatory, the claimant must serve an expert report

to proceed with a health care liability claim. Gutierrez, 237 S.W.3d at 872-

73; Stockton, 336 S.W.3d at 615; TEX. CIV. PRAC. & REM. CODE § 74.351(a),

(b). If the claimant has not served an expert report by the statutory

1 In 2013, the Texas Legislature amended Section 74.351 of the Texas Medical Liability Act. See Act of May 26, 2013, 83rd Leg. R.S., ch. 870, § 2, 2013 TEX. SESS. LAW SERV. 2220, 2220. The new provision applies to lawsuits filed after September 1, 2013. Because Appellant filed her Original Petition in 2010, the former version of Section 74.351 is applicable to her claims. See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 TEX. GEN. LAWS 1590, 1590 (Amended 2013) (current version at Texas Civil Practice & Remedies Code § 74.351). 11 deadline, and the parties have not agreed to extend that deadline, which

did not happen in this matter, and subject to an exception, which is not

applicable in this matter, dismiss the health care liability claim with

prejudice. Gutierrez, 237 S.W.3d at 872; Stockton, 336 S.W.3d at 615;

TEX. CIV. PRAC. & REM. CODE § 74.351(b).

This Court determined in Gutierrez that “service” means Texas

Rule of Civil Procedure 21a service, and compliance with Texas Civil

Practice & Remedies Code Section § 74.351(a) is mandatory for a health

care liability claim to proceed. Although Dr. Totz’s attorney, Mr. Holm,

admittedly “obtained a copy of Dr. Richardson’s [May 9th] Expert Report

through alternative means,” such report was not “served” on said counsel

pursuant to Texas Rule of Civil Procedure 21a. Further, Appellant never

presented any evidence to demonstrate that Dr. Totz was served with

Dr. Richardson’s May 9th Expert Report pursuant to Texas Rule of Civil

Procedure 21a. As such, and based upon the aforementioned case law

and statutory language, Appellant did not fulfill her mandatory requirement

to proceed with her health care liability claim against Dr. Totz. This Court’s

ruling to the contrary in its Opinion contradicts Texas Supreme Court

jurisprudence, as well as this Court’s very own jurisprudence, when

12 interpreting the intent and requirements of Texas Civil Practice & Remedies

Code § 74.351(a).

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Dr. Totz prays that the

Court grant this Motion for Rehearing of the April 23, 2015 Opinion,

withdraw the aforementioned April 23, 2015 Opinion, and affirm the Trial

Court’s September 6, 2012 decision to dismiss Appellant’s health care

liability claim against Dr. Totz with prejudice. Dr. Totz also prays for all

other and further relief, both in law and in equity, to which he may be justly

entitled.

Respectfully submitted,

HOLM BAMBACE LLP

By: /s/ Charles B. Holm Charles B. Holm State Bar No. 09900300 Kyle M. Smith State Bar No. 24054226 1010 Lamar, Suite 1100 Houston, Texas 77002 (713) 652-9700 – Telephone (713) 652-9702 – Facsimile cholm@holmbambace.com ksmith@holmbambace.com

ATTORNEYS FOR APPELLEE, KENNETH A. TOTZ, D.O., FACEP

13 CERTIFICATE OF SERVICE

This will certify that pursuant to Texas Rule of Appellate Rule 9.5, a true and correct copy of the above and foregoing Dr. Totz’s Motion for Rehearing was forwarded to the following counsel of record via e-file, e-mail, and facsimile on Monday, June 22, 2015:

Reginald E. McKamie, Sr. Law Office of Reginald E. McKamie, Sr., P.C. 1210 Antoine Drive, Suite 100 Houston, Texas 77055 Via e-File Via e-Mail: reginaldmckamie@gmail.com Via Facsimile: (713) 465-2894

Frank A. Doyle Gabe A. Sassin Myers Doyle 7676 Woodway Drive, Suite 350 Houston, Texas 77063 Via e-File Via e-Mail: fdoyle@myersdoyle.com gsassin@myersdoyle.com Via Facsimile: (713) 278-9163

Richard M. Law Angela M. Nolan Stephanie A. Sanders Smith Adams Law Feehan, LLP 1415 Louisiana Street, Suite 3800 Houston, Texas 77002 Via e-File Via e-Mail: Richard@smithadamslaw.com Angela@smithadamslaw.com Stephanie@smithadamslaw.com Via Facsimile: (713) 652-6000

/s/ Charles B. Holm Charles B. Holm 14 CERTIFICATE OF COMPLIANCE

This will certify that pursuant to Rule of Appellate Procedure 9.4(i)(3), the foregoing Dr. Totz’s Appellee’s Motion for Rehearing complies with Texas Rule of Appellate Procedure 9.4(i)(2)(B)’s word-count limitation for computer-generated documents. Specifically, the undersigned certifies that Dr. Totz’s Motion for Rehearing contains 3,668 words.

/s/ Charles B. Holm Charles B. Holm

1. First Court of Appeals’ April 23, 2015 Opinion ............................... Tab A

16 Tab A Opinion issued April 23, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-01108-CV ——————————— TELICIA OWENS, Appellant V. KRISTA G. HANDYSIDE, M.D., SAMUEL J. PRATER, M.D., KENNETH A. TOTZ, D.O., FACEP, AND MEMORIAL HERMANN HOSPITAL SYSTEM D/B/A MEMORIAL HERMANN – TEXAS MEDICAL CENTER, Appellees

On Appeal from the 152nd District Court Harris County, Texas Trial Court Case No. 2012-07534

OPINION Appellant, Telicia Owens, challenges the trial court’s dismissal of her health

care liability claims 1 against appellees, Krista G. Handyside, M.D., Samuel J.

Prater, M.D., Kenneth A. Totz, D.O., FACEP, 2 and Memorial Hermann Hospital

System, doing business as Memorial Hermann – Texas Medical Center (“Memorial

Hermann”).3 In three issues, Owens contends that the trial court erred in

dismissing her claims on the grounds that she failed to timely serve her medical

expert report on appellees, her medical expert is not qualified to opine on the

standard of care of hospital emergency room doctors, and her report insufficiently

addresses the issues of standard of care and causation. 4

We reverse and remand.

1 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (Vernon Supp. 2014). 2 Owens sued “Kenneth A. Totz, M.D.” We note that in his answer, Dr. Totz identifies himself as “Kenneth A. Totz, D.O., FACEP,” as does the trial court in its dismissal order. Our style of the case is in accord with the trial court’s dismissal order. See Strobel v. Marlow, 341 S.W.3d 470, 471 n.1 (Tex. App.—Dallas 2011, no pet.). 3 Owens sued “Memorial Hermann Healthcare System d/b/a Memorial Hermann Hospital.” In its answer, Memorial Hermann stated that it was incorrectly named. In its dismissal order, the trial court identifies Memorial Hermann as “Memorial Hermann Hospital System d/b/a Memorial Hermann – Texas Medical Center.” Our style of the case is in accord with the trial court’s dismissal order. See id. 4 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp. 2014) (governing medical expert reports). In 2013, the legislature amended section 74.351 of the Texas Medical Liability Act. See Act of May 26, 2013, 83rd Leg. R.S., ch. 870, § 2, 2013 TEX. SESS. LAW SERV. 2220, 2220. The new provision applies to all suits filed after September 1, 2013. Because Owens filed her original petition in 2010, we apply the former version of section 74.351 to her claims. See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 TEX. GEN. LAWS 1590, 1590 (amended 2013) (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 74.351).

2 Background

In her petition, Owens alleges that on February 6, 2010, she went to the

“Emergency Department at Memorial Hermann,” complaining of a “severe

headache.” She was diagnosed with a “migraine, tension headache, and headache

associated with sinuses[,]” and “[n]o diagnostic testing was done to rule out any

internal problems.” On February 10, 2010, Owens “returned to the Emergency

Department at Memorial Hermann,” complaining of “the same persisting

symptoms.” Dr. Handyside diagnosed her as suffering from a “headache and

sinitus.” Again, no diagnostic testing was performed. On February 21, 2010,

Owens “returned again to the [E]mergency [D]epartment at Memorial Hermann,”

complaining of a “headache and blurry vision.” Drs. Prater and Totz treated her,

and they diagnosed her as suffering from a “headache.” Again, no diagnostic

testing was performed.

Subsequently, on February 24, 2010, Owens went to “Methodist Hospital for

assessment of the same symptoms that she complained of at Memorial Hermann.”

Doctors administered a “CT scan,” which showed that she was suffering from a

“head bleed.” Methodist admitted Owens into its Intensive Care Unit, and it

discharged her on March 3, 2010.

On April 22, 2010, Owens went to “Ben Taub General Hospital[,]

complaining of sudden blindness, which resulted in [the] placement of a lumbar

3 shunt.” On May 14, 2010, she returned to Ben Taub, “complaining of sutures

coming out, shunt leak[age], blurred vision, and [a] headache.” Ben Taub admitted

Owens for evaluation and subsequently discharged her. On May 17, 2010, Owens

again returned to Ben Taub, “complaining of [a] headache, chest pain, and neck

stiffness.” Her shunt was infected, and it was removed. Owens was “found to

have been infected with MRSA—Methicillin Resistant Staphyloccus Auereus.”

Owens further alleges that she sustained “permanent damage to her optic

nerve and is completely blind in both of her eyes. She has continuous subsequent

damage and pain.” However, Owens does not specify in her petition the medical

cause or reason for her loss of vision and residual “damage and pain.”

Owens brings health care liability claims against Drs. Handyside, Prater, and

Totz for negligence and gross negligence, specifically alleging that they:

• Failed to obtain an accurate assessment of Owens;

• Failed to notice signs and symptoms of “Cerebral Venous Sinus Thrombosis” (“CVST”);

• Failed to accurately and timely diagnose Owens;

• Failed to consider possible explanations and respond to severe headaches and blurry vision;

• Failed to order appropriate radiological studies;

• Failed to make a medical diagnosis based on Owens’s clinical condition;

4 • Failed to consult with a neurologist or other specialist while Owens was in the emergency department;

• Failed to develop and carry out a proper treatment plan for Owens;

• Failed to admit Owens to “Neurological ICU”;

• Failed to order thrombolytic medication necessary to attempt to dissolve thrombosis;

• Failed to adhere to “Federal Laws regarding EMTALA regarding emergently treating a patient” regardless of her inability to pay;

• Failed to order appropriate diagnostic tests and treatments even once “cerebral venous sinus thrombosis” was suspected as a possible cause of Owens’s symptoms; and

• Negligently managed a patient with CVST.

Owens likewise brings direct-liability claims for negligence and gross

negligence against Memorial Hermann, specifically alleging that it:

• Failed to select and retain only competent physicians and staff;

• Failed to properly supervise the health care providers who treated Owens;

• Failed to enforce or have in place policies, protocols, by-laws, rules and regulations regarding proper diagnosis and treatment of Owens’s medical condition;

• Failed to enforce or have in place policies and protocols, with regard to consulting specialty physicians;

• Failed to have a medical director or chief of staff in place that properly supervised physicians and staff; and

• Failed to abide by recommendations and requirements of healthcare certifying organizations.

5 “As a result of the above-noted acts of negligence,” Owens asserts that

appellees “directly and proximately caused” her “injuries, losses, and damages.”

She also alleges that Memorial Hermann is vicariously liable for the negligent

“acts and/or omissions” of its staff, including, among others, Drs. Handyside,

Prater, and Totz.

To support her claims, Owens, on or about May 29, 2012, filed and served

upon appellees a medical expert report authored by Brian C. Richardson, M.D.

Appellees objected to Dr. Richardson’s report on several grounds, including that

Owens did not timely serve it; it failed to sufficiently address the elements of

standard of care, breach of the standard, and causation; and Richardson, a

neurologist, is not qualified to opine on the standard of care of hospital emergency

room doctors or causation. Dr. Totz filed his objection to the sufficiency of

Richardson’s report on June 19, 2012.

Owens, on July 17, 2012, filed her response to the objections of appellees,

attaching United States Postal Service (“USPS”) certified mail receipts and “green

cards,” which evidence service of Dr. Richardson’s expert report on appellees by

certified mail. However, the signature line on the green card for Dr. Totz does not

contain a signature, and both the USPS certified mail receipt and green card

pertaining to him show the wrong zip code for his home address. On August 15,

2012, Totz filed a “Supplemental Objection” to Richardson’s expert report,

6 attaching to it his affidavit and the affidavit of his attorney, Charles B. Holm. Totz

testified that he had “never received a copy of Dr. Richardson’s Expert Report via

certified mail, return receipt requested at [his] personal residence” and he “never

executed” the green card attached to Owens’s response. Although Holm testified

that he had “never received a copy of Dr. Richardson’s Expert Report from the

Plaintiff or her attorney on or before June 6, 2012,” and neither had anyone at his

law firm, he conceded that he had “obtained a copy of Dr. Richardson’s Expert

Report though alternative means.” Owens did not file a response to Totz’s

supplemental objection.

After a hearing, the trial court sustained Dr. Totz’s specific objection that

Owens had failed to timely serve him with Dr. Richardson’s expert report, and it

dismissed Owens’s claims against him. It also sustained the objections of

Memorial Hermann and Drs. Handyside and Prater as to the adequacy of

Richardson’s expert report, but it allowed Owens thirty days to file and serve upon

them an amended report.

Owens then filed and served Dr. Richardson’s amended medical expert

report on Memorial Hermann and Drs. Handyside and Prater. In Richardson’s

amended report, he notes that he is a “physician in private practice,” is “licensed to

practice medicine in the State of California,” and is “board certified in adult

neurology and vascular neurology.” Richardson further states:

7 I have knowledge of accepted and established standards of medical care for the patient[’]s diagnosis that is involved in the claim. I obtained this knowledge via my residency and fellowship training as well as via experience[] gained in the practice of neurology for over 19 years.

....

As a neurologist board certified in general adult neurology and vascular neurology[,] I have seen, diagnosed and managed many patients with dural sinus thrombosis. I have also seen, diagnosed and managed patients with idiopathic intracranial hypertension (formerly referred to as pseudotumor cerebri or benign intracranial hypertension). As such[,] I am familiar with the standard of care for the diagnosis, care and treatment of both dural sinus thrombosis and idiopathic intracranial hypertension.

Richardson also explains that he reviewed Owens’s medical records prior to

forming his opinions.

Dr. Richardson notes that the applicable standard of care for Dr. Handyside,

concerning a patient complaining of,

a severe headache of one week duration . . . without a prior history of recurrent headaches would include cerebral imaging[,] such as [a] CT or preferably [a] brain MRI. [A] [l]umbar puncture should have been performed as well. A neurology consultation should have been obtained. It should have been clear to the examining physician that the patient had a potentially serious neurological condition. The differential diagnosis should have included dural sinus thrombosis. The standard of care would also have included admission or urgent appropriate outpatient follow-up . . . .

In regard to the applicable standard of care for Dr. Prater, Richardson states the

following:

8 [Owens was diagnosed with] rule out cavernous sinus thrombosis, rule out meningoenchephalitis. . . . These are two very serious diagnoses that should have prompted admission to the hospital and [an] urgent neurological consultation. At the very least[,] neurodiagnostic studies[,] such as [a] lumbar puncture, [a brain CT], or [a] brain MRI[,] should have been performed. The standard of care for evaluating patients with possible meningitis is to perform a lumbar puncture right away. Neurological consultation and neuroimaging[,] such as [a brain CT scan] or [a] brain MRI[,] should be done promptly when cavernous sinus thrombosis is being entertained as a diagnosis. Patients should be admitted to the hospital rather than discharged when life-threatening diagnoses such as these are considered. . . . As stated above, cerebral imagining, [a] CT or preferably [a] brain MRI[,] should have been done. A lumbar puncture should have been performed given the diagnoses of the examining physicians.

Finally, regarding the applicable standard of care for Memorial Hermann,

Richardson notes that it “should have had protocols for evaluation, consultation,

admission and follow-up that resulted in adequate care of patients with conditions

such as dural sinus thrombosis and idiopathic intracranial hypertension. The

failure to have in place and abide by such protocols was a bre[a]ch in the standard

of care.”

In regard to causation, Dr. Richardson opines that,

If Dr. . . . Handyside had performed cerebral imaging[,] such as [a] CT or preferably [an] MRI, performed [a] lumbar puncture or obtained [a] neurological consultation it is medically probable that . . . Owens would have had her condition diagnosed and treated in a timelier manner. Early treatment of dural sinus thrombosis reduces the likelihood of complications[,] such as idiopathic intracranial hypertension. Thus[,] her vision would have most likely been spared and she would not have lost vision in the right and left eyes. Severe loss of vision is a preventable complication of dural sinus thrombosis.

9 If Dr[]. . . . Prater performed [a] lumbar puncture, ordered cerebral imaging[,] such as [a] head CT and preferably [an] MRI, admitted [Owens to the hospital] and/or obtained [a] neurological consultation, . . . Owens would have likely had a more timely diagnosis, earlier treatment and her vision would medically probably have been saved. If . . . Prater had not prescribed dexamethazone for . . . Owens[,] it is medically probable that her condition would not have been exacerbated. It is possible she would have not progressed to . . . have [a] loss of vision.

....

Memorial Herman[n] . . . failed to have and/or implement adequate protocols for evaluation, consultation, admission and follow-up that resulted in adequate care of this patient with dural sinus thrombosis and idiopathic intracranial hypertension. The failure to have in place and abide by such protocols was a bre[a]ch in the standard of care that was a proximate cause of . . . Owens subsequently developing blindness in the right and left eyes.

(Footnote omitted.) Richardson further opines that:

. . . Owens developed dural sinus thrombosis . . . . This is an uncommon, but well known condition that is treatable with anticoagulant medications. There was a significant delay in the diagnosis of this condition. This delay resulted in the development of a complication, severe vision loss due to idiopathic intracranial hypertension. Severe vision loss due to intracranial complication can generally be easily treated with medication if it is diagnosed early.

And he explains that: “Untreated dural sinus thrombosis is well known to

potentially cause idiopathic intracranial hypertension. Idiopathic intracranial

hypertension may progress to blindness if untreated. It is medically probable that

early diagnosis would have prevented [Owens’s] later development of vision loss.”

(Footnote omitted.)

10 Memorial Hermann and Drs. Handyside and Prater objected to Dr.

Richardson’s amended medical expert report and moved to dismiss Owens’s

claims against them on the grounds that Richardson is not qualified to opine on the

standard of care for hospital emergency room doctors and his report insufficiently

addresses the issues of standard of care and causation. Drs. Handyside and Prater

also reasserted their untimeliness objections. Without stating its reasons, the trial

court granted the motions of Memorial Hermann and Drs. Handyside and Prater to

dismiss Owens’s health care liability claims.

Standard of Review

We review a trial court’s decision on a motion to dismiss a health care

liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex.,

Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P.,

189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court

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

reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539

(Tex. 2010). When reviewing matters committed to a trial court’s discretion, we

may not substitute our own judgment for that of the trial court. Bowie Mem’l

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its

discretion merely because it decides a discretionary matter differently than an

11 appellate court would in a similar circumstance. Harris Cnty. Hosp. Dist. v.

Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Timeliness of Expert Report

In her first issue, Owens argues that the trial court erred in dismissing her

claims against Dr. Totz because he admitted in his objection, filed on June 19,

2012, to Dr. Richardson’s report that he had timely received the report and he did

not raise his timeliness objection “until August 15, 2012, more than two months

after the expiration of the 120-day deadline.” Totz argues that Owens “failed to

preserve her argument regarding [his] admission” of his timely receipt of

Richardson’s expert report because she did not “ever raise [in the trial court] the

argument that [he] admitted that he was timely served” with the report.

The former version of section 74.351 of the Texas Civil Practice and

Remedies Code, in effect at the time this suit was filed, provided that a health care

liability claimant shall, “not later than the 120th day after the date the original

petition [is] filed, serve on each party or the party’s attorney one or more expert

reports.”5 See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 TEX. GEN.

LAWS 1590, 1590 (amended 2013) (current version at TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(a) (Vernon Supp. 2014)). It further provided that if an expert 5 The legislature’s 2013 amendment to section 74.351(a) requires each health care liability claimant to serve an expert report “not later than the 120th day after each defendant’s original answer is filed.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (emphasis added).

12 report is not timely served, the affected health care provider may move to dismiss a

claim asserted against it, and the court must dismiss the claim with prejudice. TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(b); Heriberto Sedeno, P.A. v. Mijares,

333 S.W.3d 815, 818, 822–23 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A

health care provider may waive its right to complain about the adequacy of an

expert report by failing to challenge the report’s adequacy within twenty-one days

of service of the report. See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1,

2005 TEX. GEN. LAWS 1590, 1590 (amended 2013) (current version at TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a)); Ogletree v. Matthews, 262 S.W.3d 316,

321–22 (Tex. 2007). However, there is no deadline to file a motion to dismiss for

failure to timely serve a chapter 74 expert report. Jernigan v. Langley, 111 S.W.3d

153, 156 (Tex. 2003); Heriberto, 333 S.W.3d at 823–24. In other words, a health

care provider does not waive its right to dismissal of an untimely expert report by

waiting to file its motion to dismiss. See Jernigan, 111 S.W.3d at 156–57 (waiting

more than 600 days to move for dismissal). Accordingly, we hold that Dr. Totz

did not waive his right to complain about the timeliness of Owens’s service of Dr.

Richardson’s report.

Regarding Dr. Totz’s argument that Owens “failed to preserve her argument

regarding [his] admission” of his timely receipt of Dr. Richardson’s expert report,

we note that in reviewing a trial court’s judgment, we may only consider what was

13 before the trial court at the time it made its decision. San Jacinto Methodist Hosp.

v. Carr, No. 01-07-00655-CV, 2008 WL 2186473, at *3 (Tex. App.—Houston [1st

Dist.] May 22, 2008, no pet.) (mem. op.); Hansen v. Starr, 123 S.W.3d 13, 18

(Tex. App.—Dallas 2003, pet. denied); see also TEX. R. APP. P. 33.1(a). As Totz

noted, Owens did not respond to his supplemental objection, in which he raised the

issue of the timeliness of Owens’s service of Richardson’s report. And, thus, she

did not argue to the trial court that Totz had admitted that he had timely received

Richardson’s report. However, it was not necessary for her to make this assertion

in her response.

Dr. Totz’s attorney, Charles B. Holm, in his affidavit attached to Totz’s

August 15, 2012 “Supplemental Objection” to Dr. Richardson’s expert report,

conceded that he had “obtained a copy of Dr. Richardson’s Expert Report though

alternative means.” His affidavit testimony does not contain an affirmative

statement that he did not timely receive a copy of the report. Rather, he merely

states that he “never received a copy of Dr. Richardson’s Expert Report from the

Plaintiff or her attorney on or before June 6, 2012” and neither had anyone at his

law firm. (Emphasis added.) Likewise, Totz, in his affidavit, does not

affirmatively state that he did not receive a copy of the report. Rather, he states

that he “never received a copy of Dr. Richardson’s Expert Report via certified

14 mail, return receipt requested at my personal residence” and had “never executed”

the green card attached to Owens’s response to his objection. (Emphasis added.)

Importantly, neither Dr. Totz nor his attorney, in their affidavit testimony,

denies having timely received a copy of Dr. Richardson’s report. And the trial

court, at the time it made its decision to dismiss Owens’s claims against Totz, had

before it Holm’s testimony that he had “obtained a copy of Dr. Richardson’s

Expert Report though alternative means.” Accordingly, we hold that Owens did

not fail to preserve her argument regarding Totz’s admission that he had timely

received a copy of Richardson’s expert report.6

In regard to the merits of Owens’s first issue, Dr. Totz argues that the trial

court did not err in dismissing Owens’s claims against him because, under a proper

construction of section 74.351 of the Civil Practice and Remedies Code, she had

6 Dr. Totz also argues that Owens waived her “appellate issues” as to him because she did not reference in her notice of appeal the September 6, 2012 order granting Totz’s motion to dismiss or serve Totz with certain documents. As explained in our April 29, 2014 order, although Owens did not list the trial court’s September 6, 2012 order granting Totz’s motion to dismiss in her notice of appeal, “the rules do not require [her] to list in the notice of appeal every interlocutory ruling that [she] may wish to appeal.” See Ostrovitz & Gwinn, LLC v. First Specialty Ins. Co., 393 S.W.3d 379, 386 (Tex. App.—Dallas 2012, no pet.). Further, we note that “our decisions construing the appellate rules have not favored disposing of appeals on harmless procedural defects.” See Sweed v. Nye, 323 S.W.3d 873, 875 (Tex. 2010); see also Higgins v. Randall Cnty. Sheriff’s Office, 257 S.W.3d 684, 688 (Tex. 2008) (“[W]e have long interpreted the Rules of Appellate Procedure liberally in favor of preserving appellate rights.”); Tex. S. Univ. v. Araserve Campus Dining Servs. of Tex., Inc., 981 S.W.2d 929, 935 n.12 (Tex. App.— Houston [1st Dist.] 1998, pet. denied) (docketing statement does not limit or waive party’s appellate arguments).

15 not timely served Dr. Richardson’s expert report upon him, even though he had

received it and was able to timely object to its sufficiency, as she had not served

him by certified mail or in person. However, the Texas Supreme Court has

concluded otherwise, on similar facts. See Zanchi v. Lane, 408 S.W.3d 373 (Tex.

2013). In Zanchi, the court specifically held:

[W]e conclude, that, under section 74.351(a) of the TMLA, a physician or health care provider against whom [a health care liability claim] is asserted is a “party” who may be served with an expert report regardless of whether he has been served with process. We further hold that an expert report need not be “served” in compliance with the formal requirements of Rule 106 [governing citation and service of process] that apply specifically to service of citation.

Id. at 380–81.

Here, the record reveals that Owens filed her petition on February 7, 2012,

naming Dr. Totz as a defendant. She then filed and served Dr. Richardson’s initial

expert report on the defendants on or about May 29, 2012. Although the USPS

certified mail receipt and green card show that Owens used the wrong zip code in

mailing the report to Totz and he was not served with the expert report in person or

by certified mail, Totz and his attorney did in fact timely obtain a copy of the

report “though alternative means.” Accordingly, we hold that the trial court erred

in granting Totz’s motion to dismiss Owens’s claims against him on the ground

16 that she had failed to timely serve him with Richardson’s report. We sustain

Owens’s first issue.7

Sufficiency of Expert Report

In her second issue, Owens argues that the trial court erred in dismissing her

claims against Memorial Hermann and Drs. Handyside and Prater because “Dr.

Richardson is fully qualified . . . to offer opinions in this case” and he adequately

addresses the elements of standard of care and causation in his report.8

As noted above, a health care liability claimant must timely provide each

defendant health care provider with an expert report. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351; Gray, 189 S.W.3d at 858. The report must provide a “fair

summary” of the expert’s opinions as of the date of the report regarding the

applicable standards of care, the manner in which the care rendered by the health

care provider failed to meet the standard, and the causal relationship between that

7 In her brief, Owens also asserts that she timely served Dr. Richardson’s report on Memorial Hermann and Drs. Handyside and Prater. In response, Drs. Handyside and Prater state that they “no longer object to the timeliness of the expert report of Dr. Richardson.” Similarly, in its brief, Memorial Hermann states, “[o]n or about May 30, 2012, [Owens] timely served on [Memorial Hermann] an initial expert report of Brian C. Richardson, M.D.” Accordingly, we do not address this portion of Owens’s first issue. 8 Owens also asserts that Dr. Richardson’s expert report adequately addresses the element of breach of the standard of care. However, neither Memorial Hermann nor Drs. Handyside or Prater objected to Richardson’s report on this ground. Further, to the extent that Owens asserts that the report is sufficient in regard to Dr. Totz, we note that the trial court dismissed Owens’s claims against Totz on the ground that she had not timely served him with the report. Accordingly, we do not address these portions of Owens’s second issue.

17 failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(r)(6).

If a defendant health care provider files a motion to dismiss, challenging the

adequacy of a claimant’s expert report, a trial court must grant the motion if it

appears, after a hearing, that the report does not represent an objective good faith

effort to comply with the definition of an expert report or is not sufficiently

specific to provide a basis for the trial court to conclude that the claims have merit.

Id. § 74.351(l); Scoresby v. Santillan, 346 S.W.3d 546, 555–56 (Tex. 2011). In

setting out the expert’s opinions, the report must provide enough information to

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

the plaintiff has called into question, and (2) it must provide a basis for the trial

court to conclude that the claims have merit. Scoresby, 346 S.W.3d at 556.

Dr. Richardson’s Qualifications

Owens first argues that the trial court, to the extent that it granted Drs.

Handyside’s and Prater’s motions to dismiss her claims on the ground that Dr.

Richardson is not qualified to address the standard of care, erred because

“Richardson is more than qualified to offer []his opinion.”9 Owens asserts that it

does not matter that Richardson is “not an emergency room physician” and he is

9 Memorial Hermann did not challenge Dr. Richardson’s qualifications, and Drs. Handyside and Prater only assert that Richardson is not qualified to opine on the standard of care of hospital emergency room doctors.

18 “more than qualified to testify about dural sinus thrombosis and idiopathic

intracranial hypertension, the conditions involved in [Owens’s] claim[s].”

In order to qualify as an expert, an individual need not be a specialist in the

particular area of the profession for which testimony is offered. Rittger v. Danos,

332 S.W.3d 550, 558 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Keo v. Vu,

76 S.W.3d 725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). However,

merely being a doctor is insufficient. See Broders v. Heise, 924 S.W.2d 148, 152

(Tex. 1996). Instead, “[a] medical [expert] who is not of the same school of

medicine” must show that “he has practical knowledge of what is usually and

customarily done by a practitioner under circumstances similar to those

confronting the defendant.” Marling v. Maillard, 826 S.W.2d 735, 740 (Tex.

App.—Houston [14th Dist.] 1992, no writ); see also Roberts v. Williamson, 111

S.W.3d 113, 121 (Tex. 2003) (doctor need not practice in particular field about

which he opines if demonstrates knowledge, skill, experience, training, or

education regarding specific issue before court qualifying him to give opinion on

issue); Keo, 76 S.W.3d at 732. Analysis of an expert’s qualifications to opine as an

expert on the subject matter of the report is limited to the four corners of the expert

report or accompanying curriculum vitae. See Mem’l Hermann Healthcare Sys. v.

Burrell, 230 S.W.3d 755, 758 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

19 In order to opine on the standard of care, a person must (1) be “practicing

medicine at the time such testimony is given or [have been] practicing medicine at

the time the claim arose”; (2) have “knowledge of accepted standards of medical

care for the diagnosis, care, or treatment of the illness, injury, or condition

involved in the claim”; and (3) be “qualified on the basis of training or experience

to offer an expert opinion regarding those accepted standards of medical care.”

TEX. CIV. PRAC. & REM. CODE § 74.401(a) (Vernon 2011); see also id.

§ 74.351(r)(5)(A) (defining “expert,” with respect to person opining as to whether

doctor departed from accepted standards of medical care, as one “qualified to

testify under the requirements of Section 74.401”). To determine whether a person

is qualified on the basis of training or experience, the court shall consider whether

he “is board certified or has other substantial training or experience in an area of

medical practice relevant to the claim” and “is actively practicing medicine in

rendering medical care services relevant to the claim.” Id. § 74.401(c).

Drs. Handyside and Prater assert that “[i]n order to satisfy the expert report

requirement of [c]hapter 74, [Owens] needed to serve on [them] an expert report

from someone who is qualified to offer opinions on the standard of care as it

relates to the care they provided, as emergency physicians.” According to Drs.

Handyside and Prater,

Dr. Richardson’s curriculum vitae and reports solely list his occupation as a medical doctor specializing in neurology. He also

20 lists his clinical experience as that of being in private practice. He fails to show that he has any experience in emergency medicine . . . [and] fails to show that he has ever worked in an emergency department or worked closely with emergency physicians in treating and diagnosing patients . . . .

(Internal citations omitted.)

In his expert report, Dr. Richardson notes that he is a “physician in private

practice,” “licensed to practice medicine in the State of California.” He has been

in “private practice for 19 years” and is “board certified in adult neurology and

vascular neurology by the American Board of Psychiatry and Neurology.” And

Richardson further states:

I have knowledge of accepted and established standards of medical care for the patient[’]s diagnosis that is involved in the claim. I obtained this knowledge via my residency and fellowship training as well as via experience[] gained in the practice of neurology for 19 years.

....

As a neurologist board certified in general adult neurology and vascular neurology[,] I have seen, diagnosed and managed many patients with dural sinus thrombosis. I have also seen, diagnosed and managed many patients with idiopathic intracranial hypertension (formerly referred to as pseudotumor cerebri or benign intracranial hypertension). As such[,] I am familiar with the standard of care for the diagnosis, care and treatment of both dural sinus thrombosis and indiopathic intracranial hypertension.

Richardson’s curriculum vitae also reveals that he is a board certified

neurologist in private practice, his fellowship focused on “[c]erebral blood flow

and metabolism, and dementia,” he completed his residency in the field of

21 neurology, and has conducted research related to Alzheimer’s disease, vascular

dementia, and strokes.

In determining whether an expert is qualified, we must be careful not to

draw expert qualifications “too narrowly.” Larson v. Downing, 197 S.W.3d 303,

305 (Tex. 2006); Adeyemi v. Guerrero, 329 S.W.3d 241, 247 (Tex. App.—Dallas

2010, no pet.). The specific issue in this case is whether Drs. Handyside and Prater

failed to timely and appropriately diagnose and treat Owens’s conditions.

Dr. Richardson’s report shows that he has experience in treating and

diagnosing patients with the conditions suffered by Owens, namely dural sinus

thrombosis and idiopathic intracranial hypertension, which Drs. Handyside and

Prater allegedly failed to diagnose and treat properly. And he is familiar with the

standard of care applicable to doctors who care for patients with the same

conditions with which Owens presented. See Tawa v. Gentry, No. 01-12-00407-

CV, 2013 WL 1694869, at *7 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no

pet.) (mem. op.) (expert sufficiently qualified to opine on standard of care by

“showing the injury involved was of the type [the expert] treated in his practice”

(internal quotation marks omitted)); Hillery v. Kyle, 371 S.W.3d 482, 487 (Tex.

App.—Houston [1st Dist.] 2012, no pet.) (concluding expert qualified, where

expert stated familiarity “with the standards of care relevant to the condition

involved in th[e] claim” and he had “diagnosed and treated, ‘patients with the

22 conditions similar to those experienced by’” plaintiff); Rittger, 332 S.W.3d at 558–

59 (noting focus not on defendant doctor’s area of expertise, but on condition

involved in claim).

Further, we note that the fact that Dr. Richardson is a neurologist, rather than

an emergency room doctor, does not disqualify him as an expert in this case. See

Rittger, 332 S.W.3d at 559 (holding neurologist/professor of medicine qualified to

opine on standard of care in case against emergency room doctor who failed to

diagnose stroke in pregnant patient, explaining fact patient “was pregnant when

she experienced her stroke or that she presented herself in an emergency room

setting does not require that [expert] be an obstetrician or emergency room

physician”); see also Hayes v. Carroll, 314 S.W.3d 494, 504–05 (Tex. App.—

Austin 2010, no pet.) (holding doctor, board certified in general and vascular

surgery, qualified to render opinion on standard of care applicable to emergency

room specialist); Blan v. Ali, 7 S.W.3d 741, 746–47 (Tex. App.—Houston [14th

Dist.] 1999, no pet.) (concluding neurologist qualified as expert on strokes,

although defendant doctors were emergency room doctor and cardiologist).

We conclude that Dr. Richardson has the knowledge, skill, experience,

education, or training to render an opinion on the standard of care applicable to a

doctor treating a patient with the conditions with which Owens presented.

Accordingly, we hold that the trial court erred to the extent that it granted Drs.

23 Handyside’s and Prater’s motions to dismiss Owens’s claims on the ground that

Richardson is not qualified to opine on the standard of care.

Causation

Owens next argues that the trial court, to the extent that it granted Drs.

Handyside’s and Prater’s motions to dismiss her claims on the ground that Dr.

Richardson did not adequately address the issue of causation, erred because

Richardson, in his report, adequately addresses the issue of causation as it related

to the doctors. 10

An expert report must provide a “fair summary” of the expert’s opinions

regarding the causal relationship between the failure of a health care provider to

provide care in accord with the pertinent standard of care and the injury, harm, or

damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). In

assessing the sufficiency of a report, a trial court may not draw inferences; instead,

it must exclusively rely upon the information contained within the four corners of

the report. Wright, 79 S.W.3d at 52. “No particular words or formality are

required [in the expert report], but bare conclusions will not suffice.” Scoresby,

346 S.W.3d at 556 (footnotes omitted).

10 Because of our disposition of Owens’s final issue below, we do not address the portion of her second issue in which she argues that the trial court erred to the extent that it granted Memorial Hermann’s motion to dismiss her direct-liability claims against it on the ground that Dr. Richardson’s report did not adequately address the issues of standard of care and causation. See infra.

24 A causal relationship is established by proof that a negligent act or omission

constituted a substantial factor in bringing about harm and, absent the act or

omission, the harm would not have occurred. Costello v. Christus Santa Rosa

Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no pet.).

However, an expert report need not marshal all of the plaintiff’s proof necessary to

establish causation at trial, and it need not anticipate or rebut all possible defensive

theories that may ultimately be presented to the trial court. Wright, 79 S.W.3d at

52; Fortner v. Hosp. of the Sw., LLP, 399 S.W.3d 373, 383 (Tex. App.—Dallas

2013, no pet.). The expert must simply provide some basis that the defendant

health care provider’s act or omission proximately caused injury. Wright, 79

S.W.3d at 52–53. And the expert must explain the basis of his statements and link

his conclusions to the facts. Id. at 52. A report that merely states an expert’s

conclusions regarding causation is not sufficient. Id.; Palacios, 46 S.W.3d at 879.

“[I]f an expert report contains only conclusions about [causation], the trial court

has ‘no discretion but to conclude . . . that the report does not represent a good-

faith effort’ to satisfy the statute.” Smith v. Wilson, 368 S.W.3d 574, 577 (Tex.

App.—Austin 2012, no pet.) (quoting Palacios, 46 S.W.3d at 877, 880).

In his expert report, Dr. Richardson explains:

. . . Owens developed dural sinus thrombosis . . . . This is an uncommon, but well known condition that is treatable with anticoagulant medications. There was a significant delay in the diagnosis of this condition. This delay resulted in the development of

25 a complication, severe vision loss due to idiopathic intracranial hypertension. Severe vision loss due to intracranial complication can generally be easily treated with medication if it is diagnosed early. In the case of failure of medications, serial lumbar punctures can be done in some cases. Surgical procedures[,] such as lumboperitoneal shunt placement[,] are effective second line treatments. Optic nerve fenestration is an effective third level of treatment . . . .

Further, Richardson notes: “Untreated dural sinus thrombosis is well known to

potentially cause idiopathic intracranial hypertension. Idiopathic intracranial

hypertension may progress to blindness if untreated. It is medically probable that

early diagnosis would have prevented [Owens’s] later development of vision loss.”

(Footnote omitted.)

In regard to Dr. Handyside specifically, Dr. Richardson, in his report, states

that she breached the standard of care “by failing to perform a fundiscopic

examination and failing to perform cerebral imaging[,] such as [a] head CT or

preferably [a] brain MRI.” Further, “[t]he failure to obtain a neurology

consultation . . . and the failure to admit the patient if urgent follow-up could not

be obtained also constitutes a bre[a]ch of the standard [of] care.” In regard to

causation, Richardson opines:

If Dr. . . . Handyside had performed cerebral imaging[,] such as [a] CT or preferably [an] MRI, performed [a] lumbar puncture[,] or obtained [a] neurological consultation[,] it is medically probable that . . . Owens would have had her condition diagnosed and treated in a timelier manner. Early treatment of dural sinus thrombosis reduces the likelihood of complications[,] such as idiopathic intracranial hypertension. Thus[,] her vision would have most likely been spared

26 and she would not have lost vision in the right and left eyes. Severe loss of vision is a preventable complication of dural sinus thrombosis.

(Footnote omitted.)

Dr. Handyside asserts that Dr. Richardson “merely state[s] that had

[she] . . . diagnosed [Owens], then [Owens] might have had a better outcome,” but

fails to explain “how [her] . . . conduct caused the permanent loss of vision.” In

other words, Richardson “does not explain how and why the complained of delay

in diagnosis and treatment . . . were substantial factors in causing [Owens’s]

blindness.”

An expert report must explain, to a reasonable degree, how and why the

alleged breach caused the complained of injury based on the facts presented. See

Jelinek, 328 S.W.3d at 539–40. Here, contrary to Dr. Handyside’s assertions, Dr.

Richardson’s report does just that. Richardson opines that Handyside’s failure to

“perform[] cerebral imaging[,] such as [a] CT or preferably [an] MRI, perform[]

[a] lumbar puncture or obtain[] [a] neurological consultation” resulted in a delay in

the diagnosis and treatment of Owens’s conditions. And “[t]his delay resulted in

the development of a complication, severe vision loss due to idiopathic intracranial

hypertension. Severe vision loss due to intracranial complication can generally be

easily treated with medication if it is diagnosed early.” Cf. Patterson v. Ortiz, 412

S.W.3d 833, 839 (Tex. App.—Dallas 2013, no pet.) (holding sufficient report

“show[ing] that performing the tests and examinations would have led to the

27 diagnosis of pneumonia and Raul’s admission to the hospital, where he would have

received ‘early, aggressive treatment [that], more likely than not, would have saved

his life’”). An expert may show causation by explaining a chain of events that

begins with a defendant doctor’s negligence and ends in injury to the plaintiff. See

McKellar v. Cervantes, 367 S.W.3d 478, 485 (Tex. App.—Texarkana 2012, no

pet.); see also Woofter v. Benitez, No. 01-09-00161-CV, 2009 WL 3930839, at *7

(Tex. App.—Houston [1st Dist.] Nov. 19, 2009, no pet.) (mem. op.) (“Dr. Flye’s

report sets forth a chain of events involving breaches of the standard of care by

each of the defendant physicians, which resulted in Islam’s death.”).

In regard to Dr. Prater, Dr. Richardson, in his report, states that Prater

breached the standard of care by “fail[ing] to perform a lumbar puncture on

[Owens],” “fail[ing] to admit her,” failing to “perform cerebral imagining[,] such

as [a] head CT or [a] brain MRI,” failing to “obtain a neurological consultation to

have [Owens] assessed urgently despite the diagnoses of possible

meningoencephalitis and possible cavernous sinus thrombosis,” and failing to

provide “adequate neurological follow-up” after Owens was discharged from

Memorial Hermann. In regard to causation, Richardson opines:

If Dr[]. . . . Prater performed [a] lumbar puncture, ordered cerebral imaging[,] such as [a] head CT and preferably [an] MRI, admitted [Owens to the hospital] and/or obtained [a] neurological consultation, . . . Owens would have likely had a more timely diagnosis, earlier treatment and her vision would medically probably have been saved. If . . . Prater had not prescribed dexamethazone

28 for . . . Owens[,] it is medically probable that her condition would not have been exacerbated. It is possible she would have not progressed to . . . have [a] loss of vision.

Further, Richardson states that “[i]f [Owens] was admitted [to the hospital], if a

neurology consultation was obtained, and if a lumbar puncture had been done, it is

medically probable that her condition, dural sinus thrombosis[,] would have been

diagnosed earlier and her vision would have been saved with treatment.” As stated

above, the treatments available to prevent Owens’s loss of vision are also

addressed by Richardson in his report.

Dr. Prater asserts that Dr. Richardson “merely state[s] that had . . . Prater

diagnosed [Owens], then she might have had a better outcome” and fails to explain

“how . . . Prater’s conduct caused the permanent loss of vision.” In other words,

Richardson “does not explain how and why the complained of delay in diagnosis

and treatment and the prescription of dexamethasone were substantial factors in

causing [Owens’s] blindness.”

Contrary to Dr. Prater’s assertions, however, Dr. Richardson’s report

“explain[s], to a reasonable degree, how and why the [alleged] breach [by Prater]

caused [Owens’s] injury.” See Jelinek, 328 S.W.3d at 539–40. Richardson opines

that Prater’s failure to “perform[] [a] lumbar puncture, order[] cerebral imaging[,]

such as [a] head CT and preferably [an] MRI, admit[] [Owens to the hospital],

and/or obtain[] [a] neurological consultation” resulted in a delay of the diagnosis

29 and treatment of Owens’s conditions. And “[t]his delay resulted in the

development of a complication, severe vision loss due to idiopathic intracranial

hypertension. Severe vision loss due to intracranial complication can generally be

easily treated with medication if it is diagnosed early.” With earlier detection and

treatment, Owens’s “vision would medically probably have been saved.” Cf.

Patterson, 412 S.W.3d at 839; see also McKellar, 367 S.W.3d at 485; Woofter,

2009 WL 3930839, at *7.

In support of their argument that it is insufficient for an expert report to

merely state that a plaintiff “might have had a better outcome” without linking the

expert’s conclusion (that the plaintiff might have had a better outcome) to a

doctor’s alleged breach, Drs. Handyside and Prater rely on Wright. In Wright, the

plaintiff alleged that a physician’s assistant misread or misplaced an x-ray and,

therefore, did not discover that the plaintiff had fractured her foot. 79 S.W.3d at

50. Approximately one month later, the plaintiff’s orthopedic surgeon discovered

the fracture. Id. The plaintiff served on the defendant the report of an expert, who

stated that had the x-ray been properly read, the plaintiff “would have had the

possibility of a better outcome.” Id. at 51. The Texas Supreme Court, after

recognizing that an expert in his report need not use any particular phrase, held that

the trial court could have reasonably determined that the report did not represent a

good-faith effort to summarize the causal relationship. Id. at 53. The supreme

30 court noted that the expert in his report simply opined that the plaintiff had “‘the

possibility of a better outcome,’” and did not sufficiently “link[] the expert’s

conclusion (that [the plaintiff] might have had a better outcome) to [the hospital’s]

alleged breach (that it did not correctly read and act upon the x-rays).” Id.

Here, in contrast, Dr. Richardson does not simply assert that Owens would

have had the “possibility of a better outcome” if not for Drs. Handyside’s and

Prater’s alleged breaches of the standard of care. Instead, Richardson explains that

the doctors’ breaches caused a delay in the diagnosis and treatment of Owens’s

conditions. As stated in the report: “Untreated dural sinus thrombosis is well

known to potentially cause idiopathic intracranial hypertension.” The delay in

diagnosis and treatment “resulted in the development of a complication, severe

vision loss due to idiopathic intracranial hypertension.” “It is medically probable

that early diagnosis would have prevented [Owens’s] later development of vision

loss.” The treatments available to prevent Owens’s vision loss included

medication, “serial lumbar punctures,” “lumboperitoneal shunt placement,” and

“[o]ptic nerve fenestration.” See Khan v. Ramsey, No. 01-12-00169-CV, 2013

WL 1183276, at *9 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (mem.

op.) (holding expert report sufficient where breach of standard of care caused delay

in diagnosis, which resulted in “permanent disability”); Foster v. Richardson, 303

S.W.3d 833, 841 (Tex. App.—Fort Worth 2009, no pet.) (holding expert report

31 adequate regarding causation because it explained how doctor’s delayed diagnosis

subjected patient to prolonged pain); Gelman v. Cuellar, 268 S.W.3d 123, 130

(Tex. App.—Corpus Christi 2008, pet. denied) (holding expert report adequate

regarding breach and causation because it explained had patient “been properly

monitored and timely treated post-operatively with aggressive respiratory care, she

would not have developed respiratory insufficiency,” which caused her “anoxic

brain damage”); In re Barker, 110 S.W.3d 486, 491 (Tex. App.—Amarillo 2003,

orig. proceeding) (concluding expert report sufficient because it explained

negligent failure to recognize medical condition and delay in treatment increased

severity of plaintiff’s injuries).

Based on the foregoing, Dr. Richardson’s report represented a “good faith

effort” to inform Drs. Handyside and Prater of the causal relationship between their

failure to adhere to the pertinent standard of care and the injury, harm, or damages

claimed. See Kelly v. Rendon, 255 S.W.3d 665, 679 (Tex. App.—Houston [14th

Dist.] 2008, no pet.) (emphasizing expert reports “are simply a preliminary method

to show a plaintiff has a viable cause of action that is not frivolous or without

expert support”). Accordingly, we hold that the trial court erred to the extent that it

granted Drs. Handyside’s and Prater’s motions to dismiss Owens’s claims on the

32 ground that Richardson’s expert report did not adequately address the issue of

causation.11

We sustain Owens’s second issue, in part.

Vicarious Liability

In her third issue, Owens argues that the trial court erred in dismissing her

vicarious-liability claims against Memorial Hermann because an expert report is

not necessary regarding such claims. Memorial Hermann asserts that dismissal of

Owens’s vicarious-liability claims against it is mandatory because Owens “failed

to serve [a sufficient] expert report as to the individual physicians’ conduct that [is]

the basis of the vicarious liability claim[s].”

In addition to her direct-liability claims against Memorial Hermann, Owens

alleges that it is vicariously liability for the conduct of its “nurses, technicians,

servants and[/]or agents” and “Amy Rasmussen, M.D.; Brian Zachariah, M.D.;

Krista G. Handyside, M.D.; Inez A. Serrano, P.A.; Samuel J. Prater, M.D.; [and]

Kenneth A. Totz, [D.O., FACEP].”

“[W]hen 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 11 In her brief, Owens also asserts that Dr. Richardson’s report adequately addresses the standard of care as it relates to the doctors. However, because Drs. Handyside and Prater did not object to the report on this ground, we do not consider this portion of Owens’s argument.

33 conduct under the vicarious theory.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625,

632 (Tex. 2013); see also 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.”). In other words, a report that is sufficient as to an employee, whose

alleged negligent conduct a vicarious-liability claim is based, is also sufficient as to

the employer health care provider. See, e.g., Ctr. for Neurological Disorders, P.A.

v. George, 261 S.W.3d 285, 295 (Tex. App.—Fort Worth 2008, pet. denied) (“[I]f

the expert report is sufficient as to the claims against Dr. Ward, and we have held

that it is[,] . . . then the report is sufficient as to claims against CND that are based

on Dr. Ward’s alleged negligence.” (Footnote omitted.)).

Here, we have held that the trial court erred in dismissing Owens’s direct-

liability claims against Drs. Handyside and Prater because Dr. Richardson’s expert

report complies with chapter 74 regarding Owens’s allegations against the doctors.

Therefore, contrary to Memorial Hermann’s assertion, dismissal of Owens’s

vicarious-liability claims against it is not “mandatory.” Instead, Owens may

proceed on her vicarious-liability claims against Memorial Hermann based on the

conduct of Drs. Handyside and Prater. See Potts, 392 S.W.3d at 632; Gardner,

274 S.W.3d at 671–72.

34 Further, we note that Owens alleges that Memorial Hermann is vicariously

liable not only for the conduct of Drs. Handyside and Prater, but also for the

conduct of “nurses, technicians, servants and[/]or agents,” Drs. Rasmussen,

Zachariah, and Totz, and physician assistant Serrano. Because Owens may

proceed on her vicarious-liability claims against Memorial Hermann based on the

alleged negligence of Drs. Handyside and Prater, she may also proceed on her

vicarious-liability claims against Memorial Hermann based on the alleged

negligent conduct of the other individuals. See TTHR Ltd. P’ship v. Moreno, 401

S.W.3d 41, 45 (Tex. 2013) (holding plaintiff’s vicarious-liability claim against

hospital for actions of nurses could proceed because expert report adequate

regarding plaintiff’s vicarious-liability claim for negligent acts of doctors); Potts,

392 S.W.3d at 629–32 (plaintiff entitled to proceed with her entire suit against

health care provider so long as expert report valid as to one theory of liability

against defendant); Huepers v. St. Luke’s Episcopal Hosp., No. 01-11-00074-CV,

2013 WL 1804470, at *3–5 (Tex. App.—Houston [1st Dist.] Apr. 30, 2013, no

pet.) (mem. op.) (holding no further report required where amended petition added

new theory of vicarious liability against hospital based on nursing negligence

because initial report sufficient as to plaintiff’s vicarious-liability claim against

hospital based on doctor conduct).

35 And because Dr. Richardson’s report satisfies the requirements of chapter 74

as to Memorial Hermann’s vicarious liability for the conduct of Drs. Handyside

and Prater, Owens may also proceed on her direct-liability claims against

Memorial Hermann.12 See Potts, 392 S.W.3d at 629–32 (holding plaintiff’s direct-

liability claim against nursing staffing agency could proceed because expert report

submitted by plaintiff supported her vicarious-liability claims); Children’s Med.

Ctr. of Dall. v. Durham, 402 S.W.3d 391, 403–04 (Tex. App.—Dallas 2013, no

pet.) (concluding, because expert report valid as to vicarious-liability claims

against hospital, plaintiffs’ direct-liability claims against hospital “may proceed as

well”).

Accordingly, we hold that the trial court erred in granting Memorial

Hermann’s motion to dismiss Owens’s direct- and vicarious-liability claims against

it.

We sustain Owens’s third issue.

12 Because Dr. Richardson’s expert report is sufficient as to Owens’s vicarious- liability claims against Memorial Hermann, based on the conduct of Drs. Handyside and Prater, we need not consider the report’s sufficiency as to Owens’s direct-liability claims against Memorial Hermann. See San Jacinto Methodist Hosp. v. McCoy, No. 14-12-00682-CV, 2013 WL 3009318, at *5 n.3 (Tex. App.— Houston [14th Dist.] June 13, 2013, no pet.) (mem. op.). Therefore, as stated previously, we do not address the portion of Owens’s second issue in which she asserts that Richardson’s report is adequate as to the issues of standard of care and causation as it pertained to her direct-liability claims against Memorial Hermann.

36 Conclusion

We reverse the trial court’s dismissal of Owens’s health care liability claims

against Memorial Hermann and Drs. Handyside, Prater, and Totz. And we remand

Owens’s health care liability claims against them to the trial court for further

proceedings consistent with this opinion.

Terry Jennings Justice

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