Texas Lobbyist News: Certified EMS, Inc. v. Potts
Numerous appellate decisions in Texas have addressed whether an expert report must examine each theory of liability alleged in a suit under the Texas Medical Liability Act, with conflicting results. On Friday, February 15th, the Texas Supreme Court settled the matter in Certified EMS, Inc. v. Potts. Certified EMS, Inc. v. Potts, 11-0517, 2013 WL 561471 (Tex. Feb. 15, 2013). The Court held if an expert report appropriately addresses at least one theory of liability, the claimant is entitled to proceed with the entire suit under the Texas Medical Liability Act (the Act).
Cherie Potts alleged that a nurse assaulted her while she was a hospital patient. The nurse had been temporarily placed at the hospital by a staffing service, Certified EMS. Ms. Potts filed suit under the Texas Medical Liability Act against Certified EMS, for both direct and vicarious liability for the nurse’s conduct.
The Act required Ms. Potts to serve each party with an expert report. Under Texas Civil Practice & Remedies Code Section 74.351(r)(6), an expert report must: (1) summarize the applicable standard of care; (2) explain how the health care provider failed to meet that standard; and (3) establish the causal relationship between the failure and harm alleged.
Certified EMS objected to the expert report and supplements provided by Ms. Potts, in part, because they did not address how the staffing service was directly liable for the nurse’s conduct. The expert report only referenced their alleged vicarious liability. Certified EMS believed that an expert report must be provided for each theory of liability. The Court disagreed; since the expert report included the elements detailed in Texas Civil Practice & Remedies Code Section 74.351(r)(6), even if only with respect to one theory of liability, Ms. Potts is entitled to proceed with the entire suit.
The full opinion can be found at http://www.supreme.courts.state.tx.us/historical/2013/feb/110517.pdf.