The Texas Supreme Court clarified an expert report question in medical malpractice cases on Friday, February 15, 2013 in the case of Certified EMS, Inc. d/b/a CPNS Staffing vs. Potts. Chief Justice Wallace Jefferson wrote the opinion which involved a patient who alleged that a hospital nurse, who was temporarily placed with the hospital by a staffing service, assaulted her. Ms. Potts sued the staffing service, who moved to dismiss her case because her expert reports did not specify how the service was directly negligent. The reports only covered the staffing service’s vicarious liability.
Ms. Potts claimed in her original petition that an employee of Certified assaulted her and sued Certified not only for vicarious liability, but direct liability on theories such as failing to train or properly oversee its staff. The plaintiff provided expert reports on vicarious liability, but not on the direct liability issues. The defendant moved to dismiss the case against Certified because there was not a report addressing the direct liability claims. Both the trial court and court of appeals ruled in favor of the plaintiff – Ms. Potts. At the Texas Supreme Court, Chief Justice Jefferson framed the question as follows: Must a claimant in a health care liability suit provide an expert report for each pleaded liability theory?
The court answered that question with a “no”. The court noted, “No provision of the [Texas medical malpractice] Act requires an expert report to address each alleged liability theory. The Act requires a claimant to file an expert report ‘[I]n a health care liability claim.” A report that satisfies the requirements of the statute, “even if as to one theory only, entitles the claimant to proceed with a suit against the physician or health care provider.” The court went on to analyze the legislative intent and it is clear their ruling is consistent with the legislative intent as well. As a result, it is acceptable for plaintiffs to meet the expert report requirement by satisfying each element of the requirements for one of their claims.