Vicarious Liability Pleadings and the Chapter 74 Expert Report Requirement for Health Care Liability Claims
By: John Faubion
In Texas, Chapter 74 of the Civil Practice and Remedies Code requires a claimant in a health care liability suit to serve expert reports against each defendant health care provider or physician, within 120 days of the defendant’s answer date. When a report is not served within the 120-day window, the defendant may file a motion to dismiss the claim.
Because of the significant consequences created by this statute, the Chapter 74 expert report requirement generated a significant amount of litigation and law interpreting the statutory requirements as well as the sufficiency of individual case reports. Often, health care entities are sued as a result of the alleged acts or omissions of their employees, agents or representatives through a theory of vicarious liability. This is commonly seen in the scenario where a hospital may be sued for the alleged negligence of its nurse employee. In 2008, the Texas Supreme Court issued its opinion in Gardner v. U.S. Imaging, Inc., holding that an expert report does not have to specifically implicate the health care provider by name if the report implicates its employee or agent (“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.”). 274 S.W.3d 669, 671-72 (Tex. 2008). This makes sense—when an entity is sued purely for the acts or omission of its employee, the conduct of the entity is not at issue, and the expert report must consider the elements of the plaintiff’s claim as they apply to the employee. Of course, in Gardner, the Texas Supreme Court considered the situation where only one employer and only one employee’s conduct were at issue. There was no dispute in Gardner as to whether the plaintiffs properly pleaded a vicarious liability theory or whether the physician in question was an employee or agent of the defendant hospital.
In contrast, where a claimant sues multiple health care entities and multiple individuals, a question may arise as to the sufficiency of the plaintiff’s vicarious liability pleadings. Often, such allegations are clear and state something to the effect of “Hospital is vicariously liable, and consequently responsible for the acts and omissions of Nurse Smith when caring for Plaintiff.” When stated precisely, these types of allegations can provide fair notice to a defendant of the plaintiff’s vicarious liability basis. Other times, pleadings are more opaque, and may fail to provide a defendant entity defendant with fair notice of a vicarious liability basis. In such cases, appellate courts apply the fair notice pleading standard, and look at the plaintiff’s petition to consider issues such as whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy. When a plaintiff fails to properly plead a theory of vicarious liability against an entity defendant, and fails to serve an expert report as to that entity defendant within the 120-day period, the claim should be dismissed. In Southwest General Hosp., L.P. v. Gomez, 357 S.W.3d 109 (Tex. App.—San Antonio 2011, no pet.), the plaintiff brought a health care liability claim against various hospitals and physicians. Id. at 110. On appeal, the court referred to Rules 45 and 47 to determine whether the plaintiff gave the hospitals fair notice of a claim that the plaintiff sought to hold them vicariously liable for the negligence of the physicians.
When considering a Chapter 74 report served on an entity defendant that implicates the conduct of an individual, defendants should carefully consider the sufficiency of the plaintiff’s vicarious liability pleadings. A plaintiff’s failure to provide fair notice of the basis for the entity’s vicarious liability in his or her pleading may provide the entity defendant with a legally sufficient ground supporting dismissal of the claim against it where no expert report was served on the entity implicating its conduct.