Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669 (Tex. 2008). · Go Syfert
Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669 (Tex. 2008). Cases Citing This Book View Copy Cite
339 citation events (339 in the last 25 years) across 4 distinct courts.
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discussed Cited as authority (verbatim quote) Rubena Akhter v. Smooth Solutions DFW One, LLC, Smooth Solutions Franchising, L.P., Smooth Solutions Limited Partnership (2×) also: Cited "see"
Tex. App. · 2012 · signal: see · quote attribution · 1 verbatim quote · confidence high
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.
discussed Cited as authority (verbatim quote) the University of Texas Medical Branch at Galveston v. Kai Hui Qi
Tex. App. · 2012 · quote attribution · 1 verbatim quote · confidence high
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.
discussed Cited as authority (verbatim quote) College Station Medical Center, LLC v. Alma Doreen Todd (2×) also: Cited "see"
Tex. App. · 2010 · signal: see · quote attribution · 1 verbatim quote · confidence high
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.
discussed Cited as authority (quoted) Methodist Hospital D/B/A Houston Methodist Hospital, Hemangshu Podder, MD, and Okeckukwu Okidi, MD; Lifegift Organ Donation Center; K2 Holistic Health Care Services, Inc and Jane Ogle,RN ( Incorrectly Named Nurse Jane); Texas Children's Hospital; Baylor College of Medicine v. Tammy Garner, Individually and as the Surviving Mother of Decedent J.G., a Minor
Tex. App. · 2025 · signal: see also · quote attribution · 1 verbatim quote · confidence low
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.
examined Cited as authority (quoted) El Paso Southwestern Cardiovascular Associates, P. A. v. Erika Vianey Crane, Luis Valdez, Clara Valdez and Pedro Alonso Valdez, Individually and as Representative of the Estate of Norma Lilia Quintana (6×) also: Cited as authority (rule), Cited "see"
Tex. App. · 2021 · signal: see · quote attribution · 1 verbatim quote · confidence high
our statement in gardner distinguished between expert reports required for vicarious liability claims, in which merely implicating the agent's conduct is sufficient, and those required for direct ones, in which the employer's conduct must be implicated.
discussed Cited as authority (quoted) 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
Tex. App. · 2015 · signal: see also · quote attribution · 1 verbatim quote · confidence low
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.
discussed Cited as authority (quoted) 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
Tex. App. · 2015 · signal: see also · quote attribution · 1 verbatim quote · confidence low
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.
discussed Cited as authority (quoted) 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
Tex. App. · 2015 · signal: see also · quote attribution · 1 verbatim quote · confidence low
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.
examined Cited as authority (quoted) Araceli Garza v. Richard Carlson, M. D. (5×) also: Cited as authority (rule), Cited "see"
Tex. App. · 2012 · signal: see · quote attribution · 1 verbatim quote · confidence high
onee a default judgment is taken, all factual allegations contained in the petition, except the amount of damages, are deemed admitted.
discussed Cited as authority (quoted) Frederick Fung, M.D. Mindy Minicucci, R.N. Ana Urukalo, D.P.M. The Austin Diagnostic Clinic Association D/B/A Austin Diagnostic Clinic The Austin Diagnostic Clinic, P.A. Austin Diagnostic Clinic, P.A. v. Kathryn Fischer and Myron Fischer (2×) also: Cited as authority (rule)
Tex. App. · 2012 · quote attribution · 1 verbatim quote · confidence low
to the extent that the gardners allege that sadi is liable only vicariously for dr. keszler's actions, the expert requirement is fulfilled as to sadi if the report is adequate as to dr. keszler.
discussed Cited as authority (quoted) Fung v. Fischer (2×) also: Cited as authority (rule)
Tex. App. · 2012 · quote attribution · 1 verbatim quote · confidence low
to the extent that the gardners allege that sadi is liable only vicariously for dr. keszler's actions, the expert requirement is fulfilled as to sadi if the report is adequate as to dr. keszler.
discussed Cited as authority (quoted) Certified EMS, Inc. D/B/A CPnS Staffing v. Cherie Potts
Tex. App. · 2011 · signal: see also · quote attribution · 1 verbatim quote · confidence low
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.
examined Cited as authority (quoted) Concentra Health Services, Inc., Gordon McWatt, D.O., Norman McCall, M.D., Angela DeForrest, P.A., and Angela DeForrest, P.A., Individually v. Amanda G. Everly, A/K/A Amanda G. Everly Wagenknecht (3×) also: Cited "see"
Tex. App. · 2010 · signal: see · quote attribution · 1 verbatim quote · confidence high
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.
discussed Cited as authority (quoted) Concentra Health Services, Inc., Gordon McWatt, D.O., Norman McCall, M.D., Angela DeForrest, P.A., and Angela DeForrest, P.A., Individually v. Amanda G. Everly, A/K/A Amanda G. Everly Wagenknecht
Tex. App. · 2010 · quote attribution · 1 verbatim quote · confidence low
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.
discussed Cited as authority (quoted) Tuan A. Vu, Individually and D/B/A Southwest Cosmetic Surgery and Skin Care Center and Tuan A. Vu, M.D., P.A. v. Cicely Solanic
Tex. App. · 2009 · signal: see · quote attribution · 1 verbatim quote · confidence high
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.
examined Cited as authority (quoted) James Clifton Vestal, M.D. and Urology Associates of North Texas AND Brenda Goldston and USMD Hospital at Arlington, L.P. v. Norman E. Wright, Jr. and Jacklyn Wright (4×) also: Cited "see"
Tex. App. · 2009 · signal: see · quote attribution · 1 verbatim quote · confidence high
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.
discussed Cited as authority (quoted) James Clifton Vestal, M.D. and Urology Associates of North Texas AND Brenda Goldston and USMD Hospital at Arlington, L.P. v. Norman E. Wright, Jr. and Jacklyn Wright
Tex. App. · 2009 · quote attribution · 1 verbatim quote · confidence low
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.
discussed Cited as authority (rule) Chris Lingle v. Sage Architecture Inc.
Tex. App. · 2025 · confidence medium
A. Default Judgments “[O]nce a default judgment is taken, all factual allegations contained in the petition, except the amount of damages, are deemed admitted.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex. 2008) (citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992)); see also Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 183 (Tex. 2012) (“[T]he non-answering party in a no-answer default judgment is said to have admitted both the truth of facts set out in the petition and the defendant’s liability on any cause of action properly alleged …
cited Cited as authority (rule) Alstonia Louis v. Liberty County Emergency Medical Services, Inc.
Tex. App. · 2024 · confidence medium
Hebner v. Reddy, 498 S.W.3d 37, 41 (Tex. 2016); Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex. 2008) (per curiam). 3.
cited Cited as authority (rule) James Rinkle M.D. v. William Graf & Linda Graf
Tex. App. · 2022 · confidence medium
Hebner v. Reddy, 498 S.W.3d 37, 41 (Tex. 2016); Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex. 2008) (per curiam).
discussed Cited as authority (rule) Steward Medical Group D/B/A Permian Premier Health Services and John Lee v. Michelle Armstrong, Individually and as Representative of the Estate of Bobby Fosha, and Peggy Fosha
Tex. App. · 2021 · confidence medium
For that reason, the trial court’s order denying Dr. Lee’s and Steward Medical’s joint motion to dismiss is AFFIRMED. _________________________ HOLLIS HORTON Justice Submitted on January 5, 2021 Opinion Delivered April 22, 2021 Before Kreger, Horton, and Johnson, JJ. 22 Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008); see Renaissance Healthcare Sys., Inc. v. Swan, 343 S.W.3d 571, 587 (Tex. App.— Beaumont 2011, no pet.). 14
cited Cited as authority (rule) the University of Texas Medical Branch at Galveston v. Francis Durisseau, Individually and as Administrator of the Estate of Michael Durisseau
Tex. App. · 2019 · confidence medium
Hebner v. Reddy, 498 S.W.3d 37, 41 (Tex. 2016); Gardner v. U.S. 4 Imaging, Inc., 274 S.W.3d 669, 671 (Tex. 2008) (per curiam).
cited Cited as authority (rule) Eduardo Tanhui, M.D. and East Texas Medical Specialties, P.A. v. Minnie Rhodes-Madison
Tex. App. · 2019 · confidence medium
Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008) (per curiam).
discussed Cited as authority (rule) McAllen Hospitals, L.P. v. Salvador Gonzalez, Individually, as Representative of the Estate of Santos Camacho, and as Representative of the Statutory Wrongful-Death Beneficiaries of Santos Camacho
Tex. App. · 2018 · confidence medium
See id. § 74.351(a); Hebner v. Reddy, 498 S.W.3d 37, 44 (Tex. 2016); Ogletree, 262 S.W.3d at 322; Gardner, 274 S.W.3d at 671 (concluding that report’s failure to comply with Chapter 74 regarding the element of causation rendered the report defective rather than no report).
discussed Cited as authority (rule) Renee Rice, D.O. and NSR Physicians, P.A. v. Patricia A. McLaren
Tex. App. · 2018 · confidence medium
“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.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008) (per curiam).
discussed Cited as authority (rule) Drake v. Walker (2×) also: Cited "see"
Tex. App. · 2017 · confidence medium
Specifically, Drake cites CHCA Woman’s Hospital, 403 S.W.3d at 232-34 , and Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex. 2008).
discussed Cited as authority (rule) University of Texas Health Science Center at Houston v. Joplin
Tex. App. · 2017 · confidence medium
Section 74.351’s expert-report requirement serves a “dual purpose” — “to inform the served party of the conduct called into, question and to provide a basis for the trial court to conclude that the plaintiffs claims have merit.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex. 2008) (per curiam); see Hebner, 498 S.W.3d at 41 (citing Palacios, 46 S.W.3d at 879 ).
discussed Cited as authority (rule) Gonzalez v. Padilla
Tex. App. · 2016 · confidence medium
“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.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-71 (Tex.2008).
discussed Cited as authority (rule) Earl Mangin, Jr., M.D. and Zbigniew Wojciechowski, M.D. v. Melissa Wendt, Individually, and as of the Estate of Donald Wendt, and Erin Wendt
Tex. App. · 2015 · confidence medium
Code § 74.351(r)(6), and in some circumstances Texas courts have held that the mere omission of a defendant’s name from an expert report did not render it “no report.” See, e.g., Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex.2008) (when a party’s alleged liability is vicarious, a report that implicates the conduct of a defendant or its employees is adequate); Ogletree v. Matthews, 262 S.W.3d 316, 317, 321-22 (Tex.2007) (report implicated defendant doctor’s conduct “although it did not mention him by name”); Troeger v, Myklebust, 274 S.W.3d 104, 106, 110 (Tex.App.-Ho…
discussed Cited as authority (rule) Pharmacy Healthcare Solutions, Ltd. D/B/A Advocate Rx Solutions v. Ernest Jason Pena
Tex. App. · 2015 · confidence medium
“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.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex.2008).
cited Cited as authority (rule) Zanchi v. Lane
Tex. · 2013 · confidence medium
Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex.2008) (emphasis added).
discussed Cited as authority (rule) Michael A. Zanchi, M.D., Michael A. Zanchi, M.D., P.A., and Paris Regional Anesthesia, P.A. v. Reginald Keith Lane, Individually and as Personal Representative of the Estate of Juameka Cynarra Ross (2×) also: Cited "see"
Tex. · 2013 · confidence medium
Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex. 2008) (emphasis added).
discussed Cited as authority (rule) CHCA Woman's Hospital, L.P. v. Lidji
Tex. · 2013 · confidence medium
In Gardner v. U.S. Imaging, Inc., however, we held, in the default-judgment context, that a defendant’s failure to timely answer after proper service of citation tolled the statutory period to serve the expert report until the defendant made an appearance. 274 S.W.3d 669, 671 (Tex. 2008) (per curiam).
discussed Cited as authority (rule) Chca Woman's Hospital, L.P. D/B/A the Woman's Hospital of Texas and Woman's Hospital of Texas, Inc. v. Scott Lidji and Angela Lidji, as Next Friends of R.L., a Minor
Tex. · 2013 · confidence medium
In Gardner v. U.S. Imaging, Inc., however, we held, in the default-judgment context, that a defendant’s failure to timely answer after proper service of citation tolled the statutory period to serve the expert report until the defendant made an appearance. 274 S.W.3d 669, 671 (Tex. 2008) (per curiam).
discussed Cited as authority (rule) Nikhilkumar C. Raval v. Annie Dorsey, Individually and as Next Friend of Ezra Dorsey
Tex. App. · 2013 · confidence medium
“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.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008) (emphasis added); see also Univ. of Tex. Sw.
discussed Cited as authority (rule) Intra-Op Monitoring Services, LLC and Justin Hawkins v. Rachel Causey and Bill Causey
Tex. App. · 2013 · confidence medium
Regarding claims of vicarious liability, an expert report is sufficient when it ―adequately implicates the actions of that party‘s agents or employees[.]‖ Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008). ―The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.‖ Palacios, 46 S.W.3d at 879 . 5 III.
discussed Cited as authority (rule) Charles Popeney and Ft. Bend Neurology, P.A. v. Rachel Causey and Bill Causey
Tex. App. · 2013 · confidence medium
Regarding claims of vicarious liability, an expert report is sufficient when it ―adequately implicates the actions of that party‘s agents or employees[.]‖ Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008).
discussed Cited as authority (rule) Certified Ems, Inc. D/B/A Cpns Staffing v. Cherie Potts
Tex. · 2013 · confidence medium
In Gardner , we stated that “[w]hen 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.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex.2008) (per curiam).
discussed Cited as authority (rule) Texarkana Nursing & Healthcare Center, LLC v. Susan Lyle, Independent Guardian of Betty Ruth Vest
Tex. App. · 2012 · confidence medium
Shaw’s Report Fails to Address Vicarious Liability Claims Lyle’s petition alleges that Texar-kana Nursing has “vicarious liability for the acts and omissions of all persons or entities under their control, either directly or indirectly, including employees, agents, consultants, and independent contractors, whether in-house or outside entities, individuals, agencies, or pools causing or contributing to the injuries of BETTY RUTH VEST.” “When a party’s alleged health care liability is purely vicarious, a report that adequately implicates the actions of that party’s agents or employ…
discussed Cited as authority (rule) Rose Rodriguez and Carlos Rodriguez D/B/A the Rose Home v. Carl David Medders, of the Estate of Danese Medders Maxwell, John Kenneth Medders, Jr. and Deborah Medders, Individually
Tex. App. · 2012 · confidence medium
The expert report requirement serves a dual purpose; that is "to inform the served party of the conduct called into question and to provide a basis for the trial court to conclude that the plaintiff's claims have merit.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex. 2008).
discussed Cited as authority (rule) Ortiz v. Patterson (2×) also: Cited "see"
Tex. App. · 2012 · confidence medium
“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.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex.2008) (per curiam) (citing with approval Univ. of Tex. Sw.
examined Cited as authority (rule) Tommy Henry v. Dr. Chad Kelly (3×) also: Cited "see"
Tex. App. · 2012 · confidence medium
See Scoresby, 346 S.W.3d at 557 (concluding that report was defective rather than no report in case in which, though expert might not be qualified, expert was an individual with expertise who ascribed plaintiffs injury to the defendants’ breach of the standards of care); Gardner, 274 S.W.3d at 671 (holding that report’s failure to comply with Chapter 74 regarding the element of causation rendered the report defective rather than no report); Ogletree, 262 S.W.3d at 319-21 (holding that the report was still a defective report allowing the trial court an opportunity to grant an extension, eve…
cited Cited as authority (rule) Austin Regional Clinic, P.A. and Steve Wilkins, M.D. v. Sean Power
Tex. App. · 2012 · confidence medium
Gardner v. U.S. Imaging, Inc ., 274 S.W.3d 669, 67-72 (Tex. 2008). . . . .
discussed Cited as authority (rule) Hillcrest Baptist Medical Center and Hillcrest Health System, Inc. v. Lillie Payne
Tex. App. · 2011 · confidence medium
The Texas Supreme Court has specifically held that “[w]hen a party’s alleged health care liability is purely vicarious, a report that adequately Hillcrest Baptist Medical Center v. Payne Page 19 implicates the actions of that party’s agents or employees is sufficient.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008) (citing Univ. of Tex. Med.
discussed Cited as authority (rule) Southwest General Hospital, LP, IASIS Healthcare Holdings, Inc. v. Pamela Gomez
Tex. App. · 2011 · confidence medium
The supreme court explained in Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008), that “[w]hen a party’s alleged health care liability is purely vicarious, a report that adequately implicates the -3- 04-11-00160-CV actions of that party’s agents or employees is sufficient.” In response to the motion to dismiss, Gomez argued that her expert report was sufficient pursuant to Gardner because the Hospital Defendants were alleged to be vicariously liable for Dr. Rajajoshiwala’s actions.
discussed Cited as authority (rule) Southwest General Hospital, L.P. v. Gomez
Tex. App. · 2011 · confidence medium
The supreme court explained in Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex.2008), that “[w]hen 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 response to the motion to dismiss, Gomez argued that her expert report was sufficient pursuant to Gardner because the Hospital Defendants were alleged to be vicariously liable for Dr. Rajajoshiwala’s actions.
discussed Cited as authority (rule) the Estate of Richard Earl Allen, by Its Beneficiaries, Sidney Abbot Allen and Tammy Lynn Allen-Schulz And Sidney Abbott Allen and Tammy Lynn Allen-Schulz, Individually v. Scott and White Clinic Scott and White Memorial Hospital Scott, Sherwood and Brindley Foundation Does I Through X, and Does XI Through XX
Tex. App. · 2011 · confidence medium
In her concurring and dissenting opinion, Justice Henson notes that the supreme court has applied the concept of tolling to the deadline for filing an expert report in circumstances that differ from those of the present case, see Gardner v. U.S. Imaging, Inc. , 274 S.W.3d 669, 671 (Tex. 2008), and therefore contends that we should apply the doctrine of tolling to this case.
discussed Cited as authority (rule) the Estate of Richard Earl Allen, by Its Beneficiaries, Sidney Abbot Allen and Tammy Lynn Allen-Schulz And Sidney Abbott Allen and Tammy Lynn Allen-Schulz, Individually v. Scott and White Clinic Scott and White Memorial Hospital Scott, Sherwood and Brindley Foundation Does I Through X, and Does XI Through XX
Tex. App. · 2011 · confidence medium
In her concurring and dissenting opinion, Justice Henson notes that the supreme court has applied the concept of tolling to the deadline for filing an expert report in circumstances that differ from those of the present case, see Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex. 2008), and therefore contends that we should apply the doctrine of tolling to this case.
examined Cited as authority (rule) Certified EMS, Inc. v. Potts (4×) also: Cited "see, e.g."
Tex. App. · 2011 · confidence medium
Observing that an expert report can be adequate as to a vicarious liability theory without mention of any specific conduct of the defendant, Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008), Certified EMS contends that our holding contradicts Chapter 74's notification policy by allowing a plaintiff to assert a direct liability claim without ever informing the defendant of any of its specific conduct.
Retrieving the full opinion text from the archive…
Craig GARDNER and Thelma Gardner, Petitioners,
v.
U.S. IMAGING, INC. D/B/A Sadi Pain Management and Berney Keszler, M.D., Respondents
08-0268.
Texas Supreme Court.
Dec 19, 2008.
274 S.W.3d 669
Elizabeth Leslie Higginbotham, Higginbotham & Associates, Austin, and William M. Nichols, William M. Nichols, P.C., San Antonio, TX, for Petitioner., Lynn Cullen Moore, Debra Ibarra May-field, Nathan Montgomery Rymer, Rymer Moore Jackson & Echols, P.c., Houston,, Michael J. Morris, Morris & Allen, and Stephanie S. Bascon, Law Office of Stephanie S. Bascon PLLC, New Braunfels, TX, Respondent.
Per Curiam.
Cited by 158 opinions  |  Published
4 passages pin-cited by 14 cases
Pinpoint authority: #3,845 of 633,719
Citer courts: Court of Appeals of Texas (14)
PER CURIAM.

Craig Gardner and Thelma Gardner brought this health care liability suit against Dr. Berney Keszler, who performed a lumbar epidural procedure on Craig, and U.S. Imaging, Inc. d/b/a SADI Pain Management (“SADI”), the owner and operator of the facility where the procedure was performed. The Gardners served an expert report on Dr. Keszler and SADI, who both contested the report as untimely and deficient. See Tex. Civ. PRAC. & Rem.Code § 74.351(a). The trial court denied the defendants’ motion to dismiss the suit, but the court of appeals determined the report was deficient and ordered the case dismissed. 274 S.W.3d 693, 694, 2007 WL 4547506. Although we do not disturb the court of appeals’ determination that the report was deficient, in light of our decision in Leland v. Brandal, 257 S.W.3d 204 (Tex.2008), we vacate the court of appeals’ judgment and remand the case to the trial court to consider granting the Gardners an extension to cure under section 74.351(c) of the Texas Civil Practice and Remedies Code.

On August 24, 2006, the Gardners filed this suit alleging that Dr. Keszler was negligent in choosing to perform a lumbar epidural procedure, that he did not conform to the standard of care while performing the procedure, and that he failed to obtain Craig Gardner’s informed consent. The Gardners contend Dr. Keszler’s actions led to Craig’s contracting spinal meningitis, which caused his hearing loss. Dr. Keszler timely answered the suit, and pursuant to section 74.351(a), the Gardners served Dr. Keszler with an expert report from Dr. Edson O. Parker (the “Parker report”) within 120 days of filing suit. Tex. Civ. Prac. & Rem.Code § 74.351(a).

Unlike Dr. Keszler, SADI failed to timely answer the suit and, before the 120-day period for filing an expert report expired on December 22, 2006, the Gardners moved for default judgment against SADI. The trial court rendered a default judgment on December 14, 2006, and severed the suit against SADI. Upon learning of the default judgment, SADI filed an answer in the severed suit, along with a motion for new trial and a motion to set aside the default judgment. Pursuant to the parties’ agreement, the court, on February 8, 2007, granted a new trial and set aside the default judgment. In accordance with the agreed order, the Gardners non-suited the severed suit, SADI filed an answer in the original suit on February 12, and the Gardners filed an amended petition in the original suit on February 16. On March 20, the Gardners served SADI with the expert report they had served on Dr. Keszler.

Dr. Keszler and SADI objected to the report and moved for dismissal under section 74.351(b), which provides that a health care liability suit must be dismissed if a non-compliant report is served, subject to the availability of one thirty-day extension to cure under section 74.351(c). Tex Civ. Prac. & Rem.Code § 74.351(b), (c); see Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex.2008). The trial court, presumably finding that the report complied with the statute, denied the defendants’ motions to dismiss. The court of appeals reversed, however, reasoning that the report was deficient because the discussion of causation was conclusory. 274 S.W.3d at 693. The court remanded the case to the trial court to award the defendants reasonable attorneys’ fees and costs pursuant to section 74.351(b). Id. at 696. In their motion for rehearing before the court of appeals,[*671] the Gardners argued that, in light of our decision in Leland, 257 S.W.3d 204, the court of appeals should have also remanded the suit to the trial court to consider granting a thirty-day extension to cure. [1] We agree, and reject the defendants’ contention that the Parker report is so deficient as to constitute no report at all. See Ogletree v. Matthews, 262 S.W.3d 316, 323 (Tex.2007) (WILLETT, J., concurring); Funderburk, 253 S.W.3d at 211 (WIL-LETT, J., concurring). [2]

SADI asserts an additional challenge, contending it was not served with an expert report within the statutory deadline. Section 74.351(a) states that, within 120 days of filing an original petition, a claimant must “serve on each party or the party’s attorney one or more expert reports.” Tex. Crv. PRAC. & Rem.Code § 74.351(a). Because SADI was named in the original petition as a party to this suit, the Gardners were required to serve it with a report before the statutory period expired on December 22, 2006, and it is undisputed they failed to do so. However, before the 120-day period expired, SADI defaulted and judgment was taken against it. The statute does not specify the effect of a default judgment on the 120-day period. But the effect of default on a plaintiffs claim for unliquidated damages is clear: once a default judgment is taken, all factual allegations contained in the petition, except the amount of damages, are deemed admitted. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992). In light of the expert-report requirement’s dual purpose to inform the served party of the conduct called into question and to provide a basis for the trial court to conclude that the plaintiffs claims have merit, it makes little sense to require service of an expert report on a party who by default has admitted the plaintiffs allegations. Moreover, our jurisprudence requires that, for a default judgment to be set aside, the plaintiff must be placed “in no worse position than he would have been had an answer been filed....” Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 125 (1939). Accordingly, when SADI failed to timely answer the Gardners’ suit by the Monday following the expiration of twenty days after it was served, see Tex.R. Civ. P. 99(b), the statutory period for serving it with an expert report was tolled until such time as SADI made an appearance. Once the default judgment was set aside and SADI filed an answer, tolling ended and the Gardners had 100 days remaining in which to serve SADI with an expert report. SADI filed an answer in the original suit on February 12, and the Gardners served it with an expert report on March 20, well within the remaining statutory period.

SADI additionally contends it was not served with an expert report because the report that was served does not mention SADI or implicate its behavior. The Gardners respond that because SADI’s alleged liability is purely vicarious in nature, the report as to Dr. Keszler was sufficient. To the extent the allegations against SADI are based upon respondeat superior, we agree with the Gardners. When a party’s alleged health care liability is purely vicar[*672] ious, a report that adequately implicates the actions of that party’s agents or employees is sufficient. See Univ. of Tex. Med. Branch v. Railsback, 259 S.W.3d 860, 864 (Tex.App.-Houston [1st Dist.] 2008, no pet.); Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex.App.-Dallas 2006, no pet); Casados v. Harris Methodist HE-B, No. 2-05-080-CV, 2006 WL 2034230, at *l-*2, 2006 TexApp. LEXIS 6357, at * 12-* 13 (Tex.App.-Fort Worth July 20, 2006, no pet.) (not designated for publication). Thus, to the extent the Gardners allege that SADI is liable only vicariously for Dr. Keszler’s actions, the expert report requirement is fulfilled as to SADI if the report is adequate as to Dr. Keszler.

We grant the petition and, without hearing oral argument, reverse the court of appeals’ judgment and remand to the trial court for further proceedings consistent with this opinion. See Tex.R.App. P. 59.1, 60.2(f).

1

. Because the Gardners argued that the trial court's decision should have been affirmed, and remand constitutes lesser included relief, the Gardners need not have requested an extension earlier to preserve such relief. See Martinez-Partido v. Methodist Specialty & Transplant Hosp., 267 S.W.3d 881 (Tex.2008).

2

. The defendants additionally contend the report is deficient because Dr. Parker was not qualified to render an opinion. Because such a deficiency would be subject to cure on remand, we do not address the defendants' challenge to Dr. Parker’s qualifications. Fun-derburk, 253 S.W.3d at 207.